In re Jonathan N. CA2/4 ( 2023 )


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  • Filed 5/24/23 In re Jonathan N. CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    In re JONATHAN N. et al.,                                    B319063
    Persons Coming Under the                                     (Los Angeles County
    Juvenile Court Law.                                          Super. Ct. Nos.
    19CCJP05125,
    19CCJP05125A,
    19CCJP05125B)
    LOS ANGELES COUNTY
    DEPARTMENT OF
    CHILDREN AND FAMILY
    SERVICES,
    Plaintiff and Respondent,
    v.
    DIANA O., et al.,
    Defendants and
    Respondents.
    APPEAL from an order of the Superior Court of
    Los Angeles County, Hernan D. Vera, Judge. Affirmed.
    Johanna R. Shargel, under appointment by the Court of
    Appeal, for Defendant and Appellant Diana O.
    Karen B. Stalter, under appointment by the Court of
    Appeal for Defendant and Appellant Jonathan N.
    Dawyn R. Harrison, County Counsel, Kim Nemoy,
    Assistant County Counsel, Sarah Vesecky, Deputy County
    Counsel, for Plaintiff and Respondent.
    INTRODUCTION
    Children J., age two, and N., eight months, were detained
    from mother Diana O. (mother) and father Jonathan N.1 (father)
    in August 2019 and placed with their maternal grandmother.
    Mother and father failed to reunify with the children, and
    reunification services were terminated in September 2021. In
    March 2022, under Welfare and Institutions Code section
    366.26,2 the juvenile court terminated parental rights over the
    parents’ objection that the parental-benefit exception applies.
    The parents appealed.
    We affirm. Although mother’s visitation with the children
    was consistent and pleasant, she did not offer evidence showing
    that continuation of the relationship would benefit the children
    or that termination of her parental rights would be detrimental
    to the children. Father forfeited his claims by failing to argue
    below that the parental benefit exception applies to him, and he
    also failed to present sufficient evidence to support the parental-
    benefit exception.
    1     Father’s name is also spelled “Jonathon” in parts of the
    record on appeal.
    2     All further statutory references are to the Welfare and
    Institutions Code unless otherwise indicated.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    A.    Initial proceedings
    The children came to the attention of the Los Angeles
    County Department of Children and Family Services (DCFS) in
    June 2019, when J. was two years old and N. was seven months
    old.3 DCFS received a report that on June 9, father “was
    frustrated with child [J.] crying and punched the child once on
    the leg.” The report stated that father had been “physically
    aggressive” with mother, and mother suspected father was using
    drugs.
    On June 20, 2019, a children’s social worker (CSW) met
    with mother and the children at their home while father was out.
    Mother reported that father had punched J. on the leg because he
    was crying, but said it did not leave a bruise and father did not
    intend to cause harm. Mother said it was an isolated incident,
    and father had never spanked J. Mother also said that a couple
    of weeks earlier, father pulled on mother’s arm during an
    argument. Mother called law enforcement, who removed father
    from the home so he could cool off. Mother said father had been
    under stress lately, and when he was not stressed, everything
    was fine. Mother denied ongoing domestic violence. The children
    had no visible marks or bruises, and appeared happy and
    comfortable in mother’s presence.
    The CSW met with father at the DCFS office the same day.
    Father denied that he punched J., saying instead that he
    “spanked” him while he was having a tantrum; the open-handed
    slap landed on J.’s ankle. Father denied any domestic violence
    with mother. He stated that in a recent incident, he and mother
    3     There had been one previous referral for the family in May
    2018, which was deemed unfounded.
    3
    were arguing. Mother blocked the door and refused to let him
    leave, so he moved mother by grabbing her arm and leg. Father
    stated that long hours from his previous job had caused
    relationship problems with mother; he had recently quit his job
    and he was unemployed. Father said that the children’s
    maternal grandmother (MGM) interfered a lot with the children.
    Father was on parole; his parole agent said father had been doing
    well on his parole until about two months earlier, when he tested
    positive for methamphetamine and he and mother began having
    relationship problems. Father’s drug test dated June 27 was
    positive for amphetamine, methamphetamine, and marijuana
    metabolites. DCFS found the family to be at high risk of future
    abuse or neglect, and stated that it was seeking court oversight to
    monitor the safety of the children.
    On August 12, 2019, DCFS filed a petition under section
    300, subdivisions (a), (b)(1), and (j). Counts a-1, b-1, and j-1
    alleged that father physically abused J. by striking his leg, which
    was excessive, and that the physical abuse created an
    environment that endangered the safety of both children. Counts
    a-2 and b-2 alleged that father and mother engaged in a violent
    physical altercation in which father pulled mother’s arm, and the
    violent conduct by father endangered the children’s physical
    health and safety. Count b-3 alleged that father had a history of
    substance abuse and was a current user of amphetamine,
    methamphetamine, and marijuana, which interfered with
    father’s ability to care for the children. Count b-3 further alleged
    that mother knew of father’s substance abuse and failed to
    protect the children.
    A last-minute information filed August 13 stated that on
    August 11, mother and father were involved in another domestic
    4
    violence incident in the presence of the children in which mother
    hit father. Mother had been arrested and she was in jail. DCFS
    recommended that the children be detained from both mother
    and father. The court ordered the children detained on August
    13, 2019 and ordered reunification services for the family.
    B.     Adjudication
    A jurisdiction/disposition report filed August 30, 2019
    stated that the children had been placed with MGM. The parents
    had not made themselves available to DCFS. Neither mother nor
    father had contacted DCFS to set up visitation with the children.
    MGM reported that the family lived with her before the
    case began. MGM said that several times a week she heard
    father verbally abuse and possibly hit mother while they were in
    their bedroom; MGM tried to intervene but at times she was
    unable to enter the bedroom. MGM said that when she was able
    to, she would remove the children from the bedroom so they
    would not witness the domestic violence. MGM said she also
    heard father yell at and possibly spank J. MGM reported that
    she was able to care for the children, but J. cried at night because
    he wanted mother.
    A last-minute information filed September 16, 2019 stated
    that DCFS had been able to contact mother. Mother denied the
    allegation that father hit J.’s leg, stating that father was
    attempting to spank J., but J. moved. Mother admitted that she
    and father “fight like cats and dogs,” including pushing and
    pulling each other. Mother said she believed police had been
    called seven times, and she had been arrested once because she
    left marks on father. Mother’s criminal case for spousal battery
    was pending. Mother said she was participating in parenting
    classes, and she had inquired about individual therapy. Mother
    5
    said she was willing to comply with court orders and cooperate
    with DCFS. Mother said she suspected father was using drugs,
    but father denied it when she asked.
    A last-minute information filed October 8, 2019 stated that
    parents had both attended a team meeting on September 26 and
    were seen walking together afterward, even though there was a
    criminal protective order requiring mother to stay away from
    father and the CSW had spoken to both parents about the
    importance of complying with that order. Father still had not
    agreed to be interviewed about the allegations. The last-minute
    information did not describe any visits between the parents and
    children. Father had not provided information about the person
    he requested to monitor the visits. When the CSW offered to
    have visits monitored by MGM, father declined.
    A last-minute information filed December 9, 2019 stated
    that father had not submitted to drug testing. Five drug test
    results from September 27 to November 26 stated that father was
    a no-show each time. Father had not visited the children, stating
    that his work schedule prevented visits. Father still had not
    spoken with the CSW about the allegations. Father had
    completed nine sessions of a parenting class.
    Mother had completed 10 sessions of a parenting class, and
    she had started attending domestic violence classes. Mother had
    been visiting the children, and the visits were going well. Mother
    said she wanted to work on her relationship with father, but
    because the criminal protective order was still in place, they were
    not living together.
    At the adjudication hearing December 9, 2019, the juvenile
    court sustained the petition as amended by interlineation; the
    amended petition is not in the record on appeal. The court’s
    6
    minute order states that counts b-2 and b-3 were sustained as
    amended regarding mother and father; counts a-1, b-2, and j-1
    were dismissed. The court declared the children dependents of
    the court under section 300, subdivision (b). The court ordered
    reunification services for the parents, and stated that mother’s
    visitation with the children could be unmonitored within MGM’s
    home, and monitored outside the home. Father’s visits were to
    remain monitored.
    C.     Reunification period
    A status review report filed May 12, 2020 stated that the
    children remained living with MGM and were doing well. J. had
    developmental delays and was receiving therapy.
    A new incident had been reported to the child protection
    hotline on March 25, 2020. The reporter stated that father and
    mother lived together in paternal grandmother’s (PGM’s) home.
    On March 24, 2020 father slapped mother and punched PGM on
    the eye; father was arrested. When the CSW relayed this
    allegation to father, he initially denied it, but later said that
    following an argument with mother he was arrested for being
    under the influence of a controlled substance. Mother also denied
    the allegation, but the CSW stated that a “pertinent collateral”
    confirmed that the information in the report was accurate.
    Father’s parole officer confirmed that father had been arrested in
    March.
    Both parents maintained consistent visitation with the
    children; their visits were monitored by MGM, who reported no
    concerns. Mother had attended some medical and therapy visits
    for J. Mother had also completed parenting classes and was
    attending domestic violence classes, but she had not started
    individual counseling. Father was discharged from a substance
    7
    abuse program in March 2020 without completing it. Father had
    been arrested in March 2020 for being under the influence of a
    controlled substance. Father’s drug test results from December
    9, 2019 to April 29, 2020 had one negative test and nine no-
    shows.
    An interim review report filed August 31, 2020 stated that
    MGM reported that the children continued having consistent
    visitation with their parents; MGM had no concerns. Mother
    continued to attend medical and therapy appointments for J.
    Mother maintained regular contact with the CSW, she had
    completed eight of ten domestic violence classes, and she had
    enrolled in individual counseling. Mother had monitored and
    unmonitored visits with the children, and no issues were
    reported. Father had “limited to no contact with [the] CSW.”
    Father was not enrolled in a substance abuse program, he was
    not completing drug tests, he had been discharged from his
    domestic violence program for missing sessions, and he was about
    to be discharged from an anger management program for failing
    to participate.
    The interim review report stated that father had the
    criminal protective order lifted, and mother and father now
    resided together. DCFS determined that the family was still at
    high risk for future abuse or neglect, and recommended ongoing
    reunification services. At the review hearing on September 9,
    2020, the juvenile court ordered continuing reunification services,
    and set a date for a permanency planning hearing. (§ 366.21,
    subd. (f).)
    A status review report filed February 17, 2021 stated that
    the children remained living with MGM and were doing well.
    Mother was consistent with her monitored and unmonitored
    8
    visitation, and she “interacts well with both children as she plays
    with them with their toys.” Father was “semi-consistent” with
    visitation, and was “appropriate” during visitation. However,
    MGM reported that when mother and father visited the children
    together on December 29, 2020, they asked MGM what she does
    with the funding she receives from caring for the children. MGM
    replied that she had discussed the issue with the CSW and did
    not need to answer to them. Father “raised his voice and said he
    was going to do everything possible to have the children
    removed.” The CSW informed mother and father that they could
    no longer visit together, and the visits would no longer occur at
    MGM’s home. The court had ordered three visits per week for
    father; in January 2021, father had visited on the 8th, 15th, and
    17th. Specific dates of other visits are not included in the report.
    At the hearing on March 10, 2021, the court continued
    reunification services for the parents, and ordered an
    unmonitored 29-day visit for mother if DCFS confirmed that
    father had moved out. Father’s visits were to remain monitored
    and separate from mother’s visits. The court set an 18-month
    review hearing for September 9, 2021.
    The extended visit with mother never occurred. Although
    it appeared that father had moved his belongings out of the room
    he and mother shared, the CSW was unsure he had actually
    vacated the apartment, and the CSW was unable to verify the
    names and dates of birth of mother’s roommates. Mother said
    she was not willing to live with MGM.
    A status review report filed August 16, 2021 stated that J.,
    now age 4, and N., now age 2, remained living with MGM; they
    were healthy and thriving. J. was developmentally on track and
    no longer receiving therapy services. Mother and father were
    9
    “consistent” with visitation and MGM reported no concerns about
    the visits. During mother’s visits, she played with the children,
    fed them, and watched television with them. During father’s
    visits, he took them to a park or got food with them, and he
    “redirects them in an appropriate manner.”
    Father had been arrested on July 24, 2021 for cohabitant
    battery, possession of a controlled substance, and possession of
    unlawful paraphernalia. The status review report stated, “Per
    police report, the incident occurred at PGM’s home with PGM,
    MGM, mother, father, [J.] and [N.] present. Father slapped
    mother on the right ear using his left hand while mother was
    sitting on the toilet due to their ‘ongoing troubled relationship.’”
    Father was arrested, and police found a methamphetamine pipe
    and baggies containing what appeared to be methamphetamine.
    MGM confirmed the incident, stating that several family
    members were celebrating a birthday when father showed up and
    would not leave. MGM said the children were present, but they
    did not witness the incident. Mother told the CSW it was “a big
    misunderstanding” and “not a big deal.” Mother said she lied to
    police about father hitting her, and she believed that father was
    sober. Father told the CSW that PGM forced mother to lie to
    police about the hitting incident, but he admitted the
    methamphetamine was his and that he continued to struggle
    with substance abuse.
    Mother had been evicted from the room she was renting
    and she and father were living together in a hotel. DCFS
    recommended that the court terminate reunification services and
    set a section 366.26 hearing.
    At the review hearing on September 9, 2021, the court
    terminated family reunification services, noting that the case was
    10
    more than two years old, and mother and father had not
    addressed the issues that led to jurisdiction. The court noted
    that with mother and father living together and the recent
    domestic violence incident, “we are at square one on everything,
    and cannot be at square one under California law two years
    later.” The court set a section 366.26 hearing for January 11,
    2022.
    D.     Termination of parental rights
    The section 366.26 report filed December 17, 2021 stated
    that the children were living with MGM and doing well. J. was
    in kindergarten; his teacher noted that he was learning quickly
    and was well-behaved in class. MGM told the CSW that “since
    turning 5 years of age, [J.] has been asking why he is not going
    home to his mother. [MGM] states that it has become instinct to
    tell him that ‘soon you will be,’ but added, ‘I don’t know what to
    say to him.’” MGM also said that sometimes J. cries, and he is
    “questioning [his] life and his environment, such as why he is not
    going home with his mother.” The CSW advised MGM to be
    honest with J. N. was developing well and had no issues.
    MGM was the prospective adoptive parent and was “very
    motivated and committed [to] adopting the children.” MGM was
    a stay-at-home parent in a clean and safe home; she had a
    “strong and positive attachment” to the children. MGM provided
    the children “all of the essential necessities in a nurturing and
    loving home environment.” The children “wish to remain under
    the care and supervision” of MGM. DCFS found that it would be
    in the best interests of the children to be adopted by MGM, and
    recommended that the court terminate parental rights and
    proceed with adoption.
    11
    Mother continued to visit the children on her previous
    visitation schedule: Mondays, Wednesdays, and Fridays for six
    hours per day. The children were happy to see mother and would
    cry when she left. MGM reported that father had not visited the
    children for four months, but said he planned to resume
    visitation soon. MGM said she would no longer monitor father’s
    visits, because father had yelled at her and been disrespectful. A
    paternal uncle was planning to monitor father’s next visit.
    At the section 366.26 hearing on January 11, 2022, mother
    testified that she visits the children three days per week, six
    hours per visit. Mother said the visits were “really good,” and “I
    get to do a lot of things with the kids.” Toward the end of the
    visits, “it depends on the mood. It’s usually when they want to go
    home or they actually don’t want to. They keep asking why they
    have to go back to my mom’s house.” Mother testified that the
    children are bonded to her, and she had attempted to attend
    some medical appointments, but during the Covid-19 pandemic
    additional people were not allowed at visits. Mother said she
    wanted to be more involved in the children’s medical or dental
    care, but MGM “would shut me out.” No additional evidence was
    submitted.
    In argument, DCFS’s counsel noted, “I assume mother will
    argue that the beneficial relationship exception should apply.”
    DCFS’s counsel stated that mother had not met the burden to
    support the exception. Counsel conceded that mother met the
    first prong—regular contact with the children—but asserted that
    mother had not shown a beneficial relationship that would
    outweigh the benefits of permanency for the children.
    Counsel for the children joined in DCFS’s argument, and
    also asserted the parental benefit exception did not apply to
    12
    father, who had not visited the children for four months. The
    children’s counsel agreed that mother had not submitted any
    evidence to show that terminating parental rights would be
    detrimental to the children.
    Mother’s counsel asked the court “to find that the child-
    parent bond exists, and order that the permanent plan be legal
    guardianship instead of the termination of parental rights and
    adoption.” She noted that the children are happy to see mother
    and cry when she leaves. She further asserted that the children
    have a “significant and positive attachment” to mother. Father’s
    counsel stated only, “I join with mother’s counsel. I would ask
    the court to order a plan of legal guardianship. Submitted.”
    The court asked the children’s counsel whether legal
    guardianship would be a better option, “if we assume that
    terminating mother’s parental rights may in some ways
    discourage continued contact.” The children’s counsel responded
    that the children are young, three and five years old, and “[i]t’s
    always best to go with a permanent plan, which is adoption.” The
    children’s counsel also noted that none of the evidence suggested
    the relationship between mother and the children would change,
    “quite the contrary. . . . [MGM] is more than willing to facilitate
    contact with mother.” He also stated that there was no benefit to
    guardianship over adoption. “The only benefit with legal
    guardianship would be to open the door for mother to file a
    [section] 388 [petition]. But . . . she’s had ample time to do
    everything she needs to do” to reunify with the children. The
    children’s counsel further noted that the children were well-
    bonded to MGM. Counsel for DCFS joined the children’s
    arguments “in their entirety.”
    13
    The court took the matter under submission, and ordered
    the parties to return on January 18, 2022. The Court of Appeal
    ordered a stay upon mother’s request, so the hearing was
    continued to March 10, 2022. The stay was lifted on February 17,
    2022 after mother did not file a writ petition.
    A last-minute information filed February 16, 2022 stated
    that MGM remained adoption-ready, and adoption continued to
    be the permanent plan for the children. A status review report
    filed the same day stated that J. was doing well in school, he had
    “a strong connection to MGM,” and he “enjoys having visits with
    mother and father.” N. was having some behavior issues and had
    started attending school from 11:45 a.m. to 3:30 p.m. five days
    per week. The report did not mention N.’s visits with mother or
    father. Overall, the children were “happy, active, playful
    children who are completely bonded with their caretaker.
    Likewise, [MGM] already see[s] and treat[s] [J.] and [N.] as her
    children.” DCFS stated, “Adoption with [MGM] remains as the
    best and most appropriate permanent plan for” the children.
    Mother continued visiting three days per week, four hours
    per visit. Mother would take the children to a park, eat dinner
    with them, and watch television with them. On October 21, 2021,
    a school night, mother brought the children home at 1:28 a.m.
    Father was visiting with the children on Saturdays and Sundays,
    monitored by other family members after father threatened
    MGM.
    Father filed a section 388 petition seeking to change the
    court’s order terminating reunification services, stating that he
    was enrolled in various programs that were ordered during the
    reunification period.
    14
    At the hearing on March 10, 2022, the court noted father’s
    section 388 petition, and allowed father to make an offer or proof.
    Father’s counsel argued that father’s participation in services
    constituted a change in circumstances, and father’s visits with
    the children have been “high quality.” The court asked the
    children’s counsel for his position on father’s petition, noting that
    typically at a section 366.26 hearing, “the court does not look at a
    parent’s progress at this stage.” The children’s counsel argued
    that the petition should be denied, noting that father was
    requesting additional reunification services 30 months into the
    case.
    Counsel for DCFS objected to the petition as untimely,
    given that the court already had the section 366.26 hearing and
    the parties were returning only for the court’s ruling. DCFS also
    argued that father made no showing that the change would be in
    the children’s best interests. The court denied father’s section
    388 petition “for procedural reasons, given that I have heard the
    [366.26] previously,” and “also because the court finds it is not in
    the best interests of the children.”
    Turning to the section 366.26 ruling, the court stated that
    it had reviewed the case record, and the parents were never able
    to resolve their issues. The court stated, “I do believe that
    California law requires me to terminate parental rights today. I
    don’t find that an exception applies.” The court found the
    children were adoptable; it had “considered the various parental
    exceptions and find they are not applicable.” The court found it
    would be detrimental to return the children to the parents, and
    “no other exception to adoption applies in this case.” The court
    therefore terminated mother’s and father’s parental rights, and
    designated MGM as the prospective adoptive parent. The court
    15
    acknowledged to the parents, “I know that this decision is not one
    that you wanted to hear. . . . I also want you to understand that
    this process is also traumatic for the children, and there has to be
    an end to it. They do deserve permanency and so that is why the
    law does balance those interests.”
    When the court asked if the parties had anything else to
    add, mother’s counsel said, “Mother objects to the termination of
    her parental rights. She requests a stay. She also wants to know
    [sic] the maternal grandmother says she preferred legal
    guardianship over adoption.” The court moved on to father’s
    counsel, who stated that father objected “to the termination of
    parental rights on the basis that there is, first of all, prima facie
    evidence for our 388, as well as on the grounds of a parent/child
    bond.” The court stated, “[L]et the record be clear that I did
    consider that parental benefit exception and found that it does
    not apply on the various prongs that are laid out. The parents
    haven’t played a sufficient parental role and they do not meet the
    standard laid out in the cases on the parental benefit exception.”
    Mother and father timely appealed the termination of
    parental rights.
    DISCUSSION
    Mother and father both contend the juvenile court erred in
    finding that the beneficial relationship exception did not apply to
    their relationship with the children. DCFS asserts that mother
    has not shown that the beneficial relationship exception applies
    to her, and no one below contended the beneficial relationship
    exception should apply to father.
    A.     Legal principles
    Children have “compelling rights . . . to have a placement
    that is stable, permanent, and that which allows the caretaker to
    16
    make a full emotional commitment to the child.” (In re Marilyn
    H. (1993) 
    5 Cal.4th 295
    , 306.) “The objective of the dependency
    scheme is to protect abused or neglected children and those at
    substantial risk thereof and to provide permanent, stable homes
    if those children cannot be returned home within a prescribed
    period of time.” (Id. at p. 307.) “[W]here possible, adoption is the
    first choice. ‘Adoption is the Legislature’s first choice because it
    gives the child the best chance at [a full] emotional commitment
    from a responsible caretaker.” [Citation.] ‘Guardianship, while a
    more stable placement than foster care, is not irrevocable and
    thus falls short of the secure and permanent future the
    Legislature had in mind for the dependent child.’” (In re Celine
    R. (2003) 
    31 Cal.4th 45
    , 53 (Celine R.).)
    Thus, at a section 366.26 hearing, the court is required to
    terminate parental rights and order the child placed for adoption
    unless a statutory exception applies. (§ 366.26, subd. (c)(1).)
    “The statutory exceptions merely permit the court, in exceptional
    circumstances [citation], to choose an option other than the norm,
    which remains adoption.” (Celine R., supra, 31 Cal.4th at p. 53.)
    One of the statutory exceptions is the beneficial parent-child
    relationship exception, which applies when “[t]he court finds a
    compelling reason for determining that termination would be
    detrimental to the child” where “[t]he parents have maintained
    regular visitation and contact with the child and the child would
    benefit from continuing the relationship.” ((§ 366.26, subd.
    (c)(1)(B)(i).) “[T]he exception applies in situations where a child
    cannot be in a parent’s custody but where severing the child’s
    relationship with the parent, even when balanced against the
    benefits of a new adoptive home, would be harmful for the child.”
    (In re Caden C. (2021) 
    11 Cal.5th 614
    , 630 (Caden C.).)
    17
    There are “three elements the parent must prove to
    establish the [parental-benefit] exception: (1) regular visitation
    and contact, and (2) a relationship, the continuation of which
    would benefit the child such that (3) the termination of parental
    rights would be detrimental to the child.” (Caden C., supra, 11
    Cal.5th at p. 631.) In other words, “the parent asserting the
    parental benefit exception must show, by a preponderance of the
    evidence, three things. The parent must show regular visitation
    and contact with the child, taking into account the extent of
    visitation permitted. Moreover, the parent must show that the
    child has a substantial, positive, emotional attachment to the
    parent — the kind of attachment implying that the child would
    benefit from continuing the relationship. And the parent must
    show that terminating that attachment would be detrimental to
    the child even when balanced against the countervailing benefit
    of a new, adoptive home. When the parent has met that burden,
    the parental-benefit exception applies such that it would not be
    in the best interest of the child to terminate parental rights, and
    the court should select a permanent plan other than adoption.”
    (Id. at pp. 636-637.)
    We review the court’s determination on the first two
    elements for substantial evidence; the third element “is
    discretionary and properly reviewed for abuse of discretion.”
    (Caden C., 
    supra,
     11 Cal.5th at pp. 639-640.) However, where, as
    here, a parent contends the court erred in finding she did not
    meet her burden of proof, we must determine whether “the
    evidence compels a finding in favor of the appellant as a matter of
    law. [Citations.] Specifically, the question becomes whether the
    appellant’s evidence was (1) ‘uncontradicted and unimpeached’
    and (2) ‘of such a character and weight as to leave no room for a
    18
    judicial determination that it was insufficient to support a
    finding.’ [Citation.]” (In re I.W . (2009) 
    180 Cal.App.4th 1517
    ,
    1528, disapproved on another ground in Conservatorship of O.B.
    (2020) 
    9 Cal.5th 989
    , 1003, fn. 4, 1010, fn. 7.)
    We consider the three elements below, addressing mother’s
    contentions first.
    B.     Mother’s appeal
    Mother argues the juvenile court erred by finding that she
    failed to meet her burden regarding the Caden C. elements. She
    also contends the juvenile court relied on improper factors when
    it stated that mother did not take a parental role with the
    children, and by suggesting that mother’s relationship with the
    children likely would not be completely severed. DCFS asserts
    that the court’s rulings were correct, and that mother forfeited
    any contention that the court relied on improper factors by failing
    to assert any specific objections below. We find no error.
    1.     Regular visitation and contact
    “The first element—regular visitation and contact—is
    straightforward. The question is just whether ‘parents visit
    consistently,’ taking into account ‘the extent permitted by court
    orders.’” (Caden C., supra, 11 Cal.5th at p. 632.) This element is
    not in dispute with respect to mother. By all accounts, mother
    maintained regular and consistent visitation with the children
    throughout the pendency of the case.
    2.     A relationship, the continuation of which would
    benefit the children
    The second element considers “whether ‘the child would
    benefit from continuing the relationship’” with the parent.
    (Caden C., supra, 11 Cal.5th at p. 632, quoting § 366.26, subd.
    (c)(1)(B)(i).) A beneficial relationship is one that “promotes the
    19
    well-being of the child to such a degree as to outweigh the well-
    being the child would gain in a permanent home with new,
    adoptive parents.” (In re Autumn H. (1994) 
    27 Cal.App.4th 567
    ,
    575.) Thus, “the parent must show that the child has a
    substantial, positive, emotional attachment to the parent—the
    kind of attachment implying that the child would benefit from
    continuing the relationship.” (Caden C., 
    supra,
     11 Cal.5th at p.
    636.) The focus is on the child, and the relationship may be
    shaped by “a slew of factors, such as ‘[t]he age of the child, the
    portion of the child’s life spent in the parent’s custody, the
    “positive” or “negative” effect of interaction between parent and
    child, and the child’s particular needs.’” (Id. at p. 632.)
    Mother has not demonstrated that the court was compelled
    to find in her favor on this element. N. was about seven months
    old when the case began in June 2019, about eight months old
    when she was detained from parents in August 2019, and three
    years old at the time of the section 366.26 hearing in March 2022.
    J. was two years old when the case began, nearly three years old
    at the time of detention, and five and a half at the time of the
    section 366.26 hearing. Thus, N. had spent only eight months of
    her life in mother’s care, and J. had spent about his first three
    years in mother’s care. The children had been in MGM’s care
    continuously for about two and a half years.
    Mother spent several hours each week with the children.
    Mother points out that she fed the children, played with them,
    and they sometimes cried at the end of their visits. However,
    “the beneficial relationship exception demands something more
    than the incidental benefit a child gains from any amount of
    positive contact with her natural parent.” (In re Katherine J.
    (2022) 
    75 Cal.App.5th 303
    , 318.) “A positive attachment between
    20
    parent and child . . . is nurturing and provides the child with a
    sense of security and stability. . . . [A]n emotional attachment is
    one where the child views the parent as more than a mere friend
    or playmate and [whose] interactions with the parent were not
    ambivalent, detached, or indifferent.” (In re B.D. (2021) 
    66 Cal.App.5th 1218
    , 1230.) Here, although mother’s visits with the
    children were consistent and pleasant, there was no evidence
    that the children derived a sense of security from those visits, or
    that the children saw mother as more than a trusted friend.
    Mother argues DCFS “was derelict in not gathering” more
    information about how the children felt about visiting with her,
    stating that J. was not “interviewed in any depth about his
    feelings about” mother, and N., age three, was “certainly old
    enough to have been questioned.” However, the burden of
    proving the parental-benefit exception fell on mother—not DCFS.
    (See Caden C. 
    supra,
     11 Cal.5th at p. 636 [“the parent asserting
    the parental benefit exception must show, by a preponderance of
    the evidence,” the three elements].)
    Mother focuses on some of her own actions, such as her
    attendance at the children’s medical appointments or J.’s therapy
    sessions, as proof that her visits were beneficial to the children.
    But this was only true in the first part of the case. Toward the
    end of the case, J. was no longer receiving therapy, and mother
    testified that although she wanted to be more involved with the
    children’s medical care, MGM “would shut me out.” Mother also
    does not suggest how her involvement in the children’s medical
    care—as opposed to MGM’s involvement alone, which was by all
    accounts entirely effective—benefited the children.
    21
    Mother further contends the court erred in stating that the
    parents had not “played a sufficient parental role.”4 We find no
    error. Many cases before Caden C. held that it was appropriate
    to consider whether parents play a “parental role” when
    determining the parental benefit exception, distinguishing the
    parent’s role in the children’s life from that of a friend or non-
    parent family member. In In re C.F. (2011) 
    193 Cal.App.4th 549
    ,
    555, for example, the court stated, “A parent must show more
    than frequent and loving contact or pleasant visits. . . . The
    parent must show he or she occupies a parental role in the child’s
    life, resulting in a significant, positive, emotional attachment
    between child and parent.” Similar language has been used in
    many cases addressing the parental-benefit exception. (See, e.g.,
    In re K.P. (2012) 
    203 Cal.App.4th 614
    , 621 [“No matter how
    loving and frequent the contact, and notwithstanding the
    existence of an ‘emotional bond’ with the child, ‘the parents must
    show that they occupy “a parental role” in the child's life’”]; In re
    A.G. (2020) 
    58 Cal.App.5th 973
    , 995; In re B.D. (2008) 
    159 Cal.App.4th 1218
    , 1234; In re Dakota H. (2005) 
    132 Cal.App.4th 212
    , 229.)
    4      DCFS contends mother has forfeited this argument,
    because she did not object to the court’s statement below. Mother
    asserts that because she raised the parental-benefit objection
    below, all objections involving any “legal standard” have been
    preserved. DCFS is correct that in order to preserve issues for
    review, an objection must be specific and “state the ground or
    grounds upon which the objection is based.” (In re E.A. (2012)
    
    209 Cal.App.4th 787
    , 790; see also In re S.B. (2004) 
    32 Cal.4th 1287
    , 1293 [parties should “bring errors to the attention of the
    trial court, so that they may be corrected”].) We nevertheless
    exercise our discretion to address mother’s contention.
    22
    Caden C. did not discuss a “parental role,” but it also did
    not disapprove cases that used the phrase. As our colleagues in
    the Fourth District, Division Two, have noted, “[T]he words
    ‘parental role,’ standing alone, can have several different
    meanings,” and because of this ambiguity, it may be “better not
    to use the words ‘parental role’ at all.” (In re L.A.-O. (2021) 
    73 Cal.App.5th 197
    , 210, 211; see also In re Katherine J. (2022) 
    75 Cal.App.5th 303
    , 319 [“problems arise when juvenile courts use
    the phrase ‘parental role’ without explaining which meaning(s)
    they impart to it”].) Even so, in order for the parental-benefit
    exception to apply, “the emotional attachment between the child
    and parent must be that of parent and child rather than one of
    being a friendly visitor or friendly non-parent relative, such as an
    aunt” (In re Angel B. (2002) 
    97 Cal.App.4th 454
    , 468), keeping in
    mind that “rarely do ‘[p]arent-child relationships’ conform to an
    entirely consistent pattern.” (Caden C., 
    supra,
     11 Cal.5th at p.
    632.) Here, nothing in the record suggests the court relied so
    heavily on an inappropriate definition of a “parental role” that it
    failed to appropriately consider the Caden C. elements. To the
    contrary, when the court made the “parental role” statement, it
    said in the same sentence that the parental-benefit exception
    elements had not been met.
    In short, substantial evidence supports the court’s finding
    that although mother’s visits with the children were pleasant and
    enjoyable, mother did not establish a benefit from continuing the
    relationship. Mother has not demonstrated that the court was
    compelled by law to find in her favor on this element. Even
    assuming this element had been met, however, the court’s ruling
    as to the third and final element was not an abuse of discretion.
    23
    3.     Whether termination of parental rights would be
    detrimental to the children
    For the third element, “the court must decide whether it
    would be harmful to the child to sever the relationship and
    choose adoption.” (Caden C., supra, 11 Cal.5th at p. 633.) “[I]n
    assessing whether termination would be detrimental, the trial
    court must decide whether the harm from severing the child’s
    relationship with the parent outweighs the benefit to the child of
    placement in a new adoptive home.” (Id. at p. 632.)
    Mother asserts this element was also met, pointing to only
    two pieces of evidence: her “interactions with the children were
    observed to be uniformly positive,” and J.’s questions to MGM
    about whether he would be returned to mother’s home. This
    evidence is not sufficient to demonstrate an abuse of discretion.
    Regarding her visits with the children, “pleasant and cordial
    [parental] visits are, by themselves, insufficient to mandate a
    permanent plan other than adoption.” (In re Brian R. (1991) 
    2 Cal.App.4th 904
    , 924.) Notably, mother points to no other
    evidence suggesting that terminating her relationship with N.
    would be detrimental to N.
    Regarding J. asking about living with mother, mother
    contends that J., “more than two-and-a-half years after being
    detained, continued to ask why he was not going home to mother,
    and continued to cry for mother, ‘questioning his life and
    environment.’” This does not accurately reflect the evidence.
    MGM reported that after J. turned five—more than two years
    after detention, and after he had started kindergarten—he began
    asking why he did not live with mother. In response, MGM
    repeatedly told J. that he would be going to live with mother
    “soon,” because she did not know what else to say.
    24
    This evidence does not favor finding that termination of
    mother’s rights would be detrimental to the children. To the
    contrary, it highlights the importance of permanency and
    stability in a child’s life. It is not surprising that J. was
    “questioning life and his environment” after being told multiple
    times that his home with MGM was not permanent and would
    soon change. The relevant question for the court is “whether
    losing the relationship with the parent would harm the child to
    an extent not outweighed, on balance, by the security of a new,
    adoptive home.” (Caden C., 
    supra,
     11 Cal.5th at p. 634.) The
    evidence does not show that the benefit of continuing J.’s
    pleasant relationship with mother outweighed his expressed need
    for a stable, permanent home. (See In re Angel B. (2002) 
    97 Cal.App.4th 454
    , 468 [“if mother’s parental rights were not
    terminated, the [children] would be denied a permanent, stable
    adoptive family, [which is by statute] more desirable than legal
    guardianship”].)
    Mother argues the court erred by making an “assumption
    that the children’s relationship with mother would continue after
    termination of parental rights.” She points to the section 366.26
    hearing, in which the court asked the children’s counsel, “[I]f we
    assume that terminating mother’s parental rights may in some
    ways discourage continued contact, why wouldn’t legal
    guardianship be better for the children?” The children’s counsel
    responded that it is “always best to go with the permanent plan,
    which is adoption,” and added that because MGM and mother
    have an ongoing relationship, “I don’t think that terminating
    parental rights will discourage communication with mom.”
    Mother argues that from this exchange, “[t]he juvenile court here
    seems to have been misled into believing that it could terminate
    25
    parental rights with the assurance that maternal grandmother
    would allow mother ongoing visits.”5
    This conclusion is not supported by the record. The court
    correctly acknowledged that adoption, rather than legal
    guardianship, requires a court to consider that the parental
    relationship may be severed completely. (See Caden C., 
    supra,
     11
    Cal.5th at p. 633 [“Because terminating parental rights
    eliminates any legal basis for the parent or child to maintain the
    relationship, courts must assume that terminating parental
    rights terminates the relationship”].) Nothing in the record
    suggests the court was misled or changed its position due to
    counsel’s suggestion that visitation might continue even if the
    court terminated mother’s parental rights.
    In short, mother has not demonstrated that the juvenile
    court abused its discretion in finding that the parental-benefit
    exception did not apply. We therefore turn to father’s appeal.
    C.     Father’s appeal
    Father argues that he also met the three Caden C.
    elements, and therefore the parental-benefit exception applies to
    him as well. DCFS correctly points out that father never
    suggested in the juvenile court that he was entitled to the
    parental-benefit exception, and he presented no evidence on the
    issue. The sole issue father asserted at the January 11, 2022
    hearing involved his section 388 petition seeking to reinstate
    reunification services, which the court denied. During the
    portion of the same hearing addressing the section 366.26 issues,
    after mother testified and her counsel argued that the parental-
    benefit exception applied to mother, father’s counsel stated, in
    5     DCFS correctly points out that neither mother’s nor
    father’s counsel objected to any part of this exchange.
    26
    full, “Your honor, I join with mother’s counsel. I would ask the
    court to order a plan of legal guardianship. Submitted.” When
    the parties returned on March 10, 2022 for the court’s ruling,
    after the court stated its ruling terminating parental rights,
    father’s counsel objected “to the termination of parental rights on
    the basis that there is . . . prima facie evidence for our 388, as
    well as on the grounds of a parent/child bond.”
    Thus, father presented no evidence or argument suggesting
    to the juvenile court that he was asserting that the parental-
    benefit exception applied to him. The issue has therefore been
    forfeited. (See, e.g. In re S.B. (2004) 
    32 Cal.4th 1287
    , 1293 [a
    reviewing court ordinarily will not consider an issue not raised
    below]; In re Dakota H. (2005) 
    132 Cal.App.4th 212
    , 222
    [forfeiture “applies in juvenile dependency litigation and is
    intended to prevent a party from standing by silently until the
    conclusion of the proceedings”].)
    Even if we were to consider the merits of father’s
    contention on appeal, however, he has not demonstrated error.
    He does not meet the first Caden C. element: he did not maintain
    consistent visitation with the children. Father argues in his
    appellate brief that he “maintained consistent visitation with [the
    children] throughout the two-and-a-half-years of dependency
    proceedings.” However, father did not visit the children for
    months when the case began, father admits he missed five visits
    in January 2021, and the December 17, 2021 section 366.26
    report stated that father had not visited the children for four
    months. Missing visits for months at a time, when the court
    allowed three visits per week, does not constitute “regular
    visitation and contact.”
    27
    The record also does not support a finding that father met
    the second element: “a relationship, the continuation of which
    would benefit the child.” (Caden C., 
    supra,
     11 Cal.5th at p. 631.)
    Father contends he met this element because the “interactions
    between the minors and father were positive and . . . the visits
    went well.” As discussed above, however, a parent must show
    more than pleasant visits with the children to satisfy the second
    element of the Caden C. analysis.
    Father does not point to any evidence supporting the third
    Caden C. element, whether termination of parental rights would
    be detrimental to the children. Instead, he argues the juvenile
    court “relied on impermissible factors, such as whether the
    parents had resolved the problems that led to the minors’
    dependency and whether the parents occupied a parental role in
    the children’s lives.” Father argues that remand is required so
    the court can follow Caden C. more closely.
    We disagree. Although the juvenile court did not expressly
    discuss each of the three Caden C. elements, it did state that the
    elements had not been met. Moreover, the court’s references to
    what father contends are “impermissible factors” do not
    demonstrate error. For example, father argues the court “focused
    on the parents’ lack of progress in addressing the reasons that
    the minors were detained,” but in the portion of the reporter’s
    transcript father cites, the court was stating its reasons for
    denying father’s section 388 petition. Father argues the court
    impermissibly considered “whether the parents had resolved the
    problems that led to the minors’ dependency,” but on the cited
    page the court was simply making a statement that continued
    jurisdiction under section 300 was necessary—it was not stating
    its reasons for terminating parental rights. We also find no error
    28
    in the court’s comment about the “parental role,” as we discussed
    in relation to mother’s appeal above. And because father has
    cited no evidence that could support a different conclusion as to
    the third Caden C. element, he has not demonstrated the juvenile
    court abused its discretion.
    In short, even if he had not forfeited his claim to the
    parental-benefit exception, father has not demonstrated
    reversible error.
    DISPOSITION
    The juvenile court’s March 10, 2022 order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    COLLINS, J.
    We concur:
    CURREY, ACTING, P.J.
    STONE, J.
    
    Judge of the Los Angeles County Superior Court, assigned
    by the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    29
    

Document Info

Docket Number: B319063

Filed Date: 5/24/2023

Precedential Status: Non-Precedential

Modified Date: 5/24/2023