In re L.C. CA2/5 ( 2023 )

Filed 8/18/23 In re L.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re L.C. et al., Persons Coming
Under the Juvenile Court Law. B325965
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, DK05400B–C)
Plaintiff and Respondent,
v.
PRISCILLA G. et al.,
Defendants and Appellants;
D.C. et al.,
Interveners and Respondents.
APPEALS from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Vincent W. Davis for Defendant and Appellant Priscilla G.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Defendant and Appellant Jonathan C.
Dawn R. Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and Stephen Watson, Deputy County Counsel,
for Plaintiff and Respondent.
Christine Johnson, under appointment by the Court of
Appeal, for Intervenors and Respondents.
_______________________________________
INTRODUCTION
Priscilla G. (mother) and Jonathan C. (father) appeal from
the juvenile court’s orders terminating their parental rights to
their children. They argue they were denied meaningful
visitation with the children, which made it impossible for them to
prove the parental-benefit exception to adoption set forth in
Welfare and Institutions Code section 366.26, subdivision
(c)(1)(B)(i).1 We affirm.
BACKGROUND
The family in this case consists of mother, father, L.C.
(daughter), and N.C. (son).
1. Prior Dependency Proceedings
In 2014, the Los Angeles County Department of Children
and Family Services (Department) filed section 300 petitions
against mother and father on behalf of daughter, then two years
old, and son, a newborn, alleging issues related to substance
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2
abuse and domestic violence. Both children were eventually
placed with the paternal grandfather, D.C., and paternal step-
grandmother, S.I. In 2016, following an unsuccessful
reunification period, paternal grandparents were declared the
children’s legal guardians.
In 2017, father filed a section 388 petition asking the court
to re-open reunification services. After a hearing, the court found
father’s circumstances were changing but had not changed, and
he had not demonstrated that granting the request would be in
the children’s best interests. The court denied the petition, and
jurisdiction remained terminated under guardianship.
In March 2020, mother and father each filed a petition
under section 388 asking the court to re-open reunification
services. The court denied both petitions, finding they did not
state sufficient new evidence or change of circumstances; the
court suggested the parents resubmit the petitions with reports
and certificates from service providers and letters from therapists
with knowledge of the case issues and the extent to which those
issues had been addressed or resolved. Those petitions are not
the subject of the present appeal.
In November 2020, the parents again petitioned the court
to re-open reunification services under section 388. This time,
the petitions included documentation. Father provided a
certificate of completion of a residential drug treatment program,
a progress report from his substance abuse counselor verifying
attendance and compliance with drug testing, and evidence of
steady employment and release from probation. Mother
submitted evidence that she had completed a drug/alcohol
program and aftercare program, anger management classes, and
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parenting classes, and was receiving individual therapy and
medication.
The Department recommended denying the parents’
petitions. It acknowledged the parents had made “much
progress,” but opined that the “children view their Guardians as
their parents and unfortunately, the years away from their
parents has left them without an established parent/child
bond . . . and the children do not want to live with the parents.”
It noted the legal guardians “have not helped to support the
parent/child relationship for reasons that are assessed as
protective and also as a result of some animosity. . . .”
2. Reinstatement of Reunification Services
On May 4, 2021, the court held that circumstances had
changed sufficiently to warrant reinstatement of reunification
services and it would be in the children’s best interests to do so.
The Department was ordered to provide the parents with low-cost
referrals to recommended programs, to include on-demand drug
testing. Visits, which were to be monitored by the Department,
were to occur a minimum of once per week for at least two hours.
The Department did not seek appellate review of the
reinstatement order.
On August 4, 2021, mother’s attorney submitted a walk-on
request for the Department to prepare a report on visitation
issues and for the court to admonish the legal guardians not to
interfere with the parents’ reunification services. Counsel stated
the children were refusing to get into the Department’s vehicle
for visits, and the guardians were unwilling to transport them.
Accordingly, the parents had not had a visit with the children for
five weeks. Attached to the request was a letter from the family’s
therapist, who offered his “current and professional opinion that
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the legal guardians are doing all they can to impede the
reunification process between the children and their biological
parents.”
At the hearing on the request, the juvenile court ordered
the legal guardians to transport the children to visits and
directed the Department to facilitate family counseling between
the parents and legal guardians. A progress hearing was
scheduled for three weeks’ later.
In the meantime, two monitored visits were scheduled
between the parents and children; both were unsuccessful. At
the first visit, the children refused to exit the guardians’ car. At
the social worker’s urging, the paternal step-grandmother
physically removed son from the car, but he ran around the
vehicle and got back in. At one point, the children ran around
the car, got in, and locked it. The children continued that
behavior for 30 minutes, then began to argue with each other and
physically hurt themselves. The parents tried to coax the
children out, but their requests were ignored. The social worker
ended the visit.
The guardians later reported that son had soiled his pants.
Mother and father believed the children were acting this way
because too much time had passed since their last visit; they had
not seen the children in more than nine weeks. The Department
acknowledged the nine-week absence was due to the
Department’s many failed attempts to transport the children to
visits, combined with the guardians’ refusal to transport them on
the Department’s behalf.
The second visit was scheduled for a week later. The social
worker and children’s therapist were both present. Although the
guardians drove the children to the visit, the children argued and
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refused to leave the car. Whenever the social worker or the
parents tried to talk to them through the car windows, the
children would close the windows and lock the doors. Again, the
social worker ended the visit after 30 minutes because the
children were getting aggressive and hurting each other. After
the visit, the guardians reported that son appeared fearful and
was having trouble sleeping. Daughter had become defiant and
irritable and was having trouble concentrating.
On September 8, 2021, the court held a progress hearing on
the visitation issue. Neither parent objected that there had been
a lack of meaningful visitation. Children’s counsel requested
another follow-up hearing, which the court denied in light of the
pre-permanency hearing scheduled for November.
Although initially scheduled for November, the pre-
permanency hearing was repeatedly trailed to allow time for an
Evidence Code section 730 evaluation. The effect of these delays
was that the reunification period was extended, and the parents
appeared in court in November 2021, December 2021, January
2022, and February 2022. At no point during these hearings did
the parents argue that they had not been afforded meaningful
visitation with the children.
3. Termination of Reunification Services
The juvenile court began the February 25, 2022 pre-
permanency hearing by noting it had been impressed “with how
far the parents have come, how hard they’ve worked, the
incredible progress they’ve made, and [it] was really hoping
that . . . the children would be able to see that. But up until this
point, they don’t seem to be willing to recognize that.” It also
commended the legal guardians for “having really made an effort,
as well. They’ve been participating in family counseling with the
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parents, and at times have tried to encourage the children to
participate in the visits. We don’t have information that the
guardians have done anything to poison the situation.” The court
heard argument from counsel and trailed the matter to March 1,
2022, for its ruling. Neither parent objected that there had been
a lack of meaningful visitation.
At the March 2022 hearing, the court held that although
the parents had proven changed circumstances, neither
continuing reunification services nor returning the children to
parents would be in the children’s best interests. (See In re
Michael D. (1996) 51 Cal.App.4th 1074, 1086–1087 [the “burden
of proof to modify a permanent placement plan is by a
preponderance of the evidence to prove both changed
circumstances and that the best interest of the child would be a
change in placement to the parent’s home”].) The court
terminated reunification services and set the matter for a
permanency planning hearing under section 366.26. The court
also ordered continued visitation and therapy for the children,
with participation in family therapy with the parents and legal
guardians upon recommendation of the children’s therapists.
Mother and father filed notices of intent to file a writ
petition.2 After appointed counsel filed letters pursuant to
Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, indicating
they were unable to file petitions on the merits, mother and
father each filed a self-represented petition. Their principal
argument was that the legal guardians had obstructed their
2 On our own motion, we take judicial notice of our docket
and opinion in case No. B319064. (Evid. Code, §§ 459, subd. (a),
452, subd. (d)(1).)
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reunification efforts; they also attached documents showing the
progress they had made in reunification. We invited counsel for
the parents to file supplemental petitions if they believed
additional briefing was warranted in light of the issues raised in
the petitions personally filed by mother and father. Neither
attorney filed a supplemental petition. By contrast, children’s
counsel, the Department, and the legal guardians all opposed the
petitions.
We stayed the section 366.26 hearing, issued an order to
show cause, then denied the petitions by unpublished opinion.
(P.G. et al. v. Los Angeles Superior Court (Sep. 1, 2022, B319064)
[nonpub. opn.] (P.G.).) We held: “In light of the anxiety and
distress experienced by the children at the prospect of
reunification and increased contact with the parents, . . . the
juvenile court reasonably found that continued reunification
efforts would not be in the children’s best interests. As the
juvenile court recognized in making its decision, the parents were
compliant with their case plan and had made ‘incredible progress’
in their lives. At the post-permanency stage, however, the
cornerstone of the juvenile court’s analysis is the children’s best
interests and not the parents’ progress.” (Id. at pp. 12–13.)
We continued: “The record also supports the juvenile
court’s statement that legal guardians ‘hav[e] really made an
effort’ and have not ‘done anything to poison the situation.’
Although there is evidence legal guardians resisted visitation for
a time for fear of Covid exposure, the record also shows they
drove the children to visits, encouraged the children to get out of
the car and interact with the parents and, on at least one
occasion, even physically picked up [son] and set him down
outside the car. Legal guardians also participated in family
8
counseling with the parents. The record demonstrates that,
ultimately, it was the parents’ lack of bond with the children, and
the children’s exceptionally strong bond with legal guardians,
that hampered the parents’ reunification efforts.” (P.G., supra,
B319064, at p. 13.)
4. Termination of Parental Rights
While the writ petitions were pending before this court, the
parents continued to visit with the children, but the quality of
those visits improved only sporadically, and even then, only at
the margins. By this point, son was eight years old and daughter
was turning 10. Typically, the guardians transported the
children to a park in Pasadena. Usually, the children refused to
get out of the car and spoke to the parents through the window.
Sometimes, the parents were able to coax them out of the car
with toys; other times, the children refused to speak at all. Most
visits lasted about 30 minutes, but some went longer if the
children were playing and seemed engaged.
Although the parents continued not to object about the
nature of the visits, the court encouraged the guardians to exit
the car during visits and to leave the windows rolled down if the
children chose to stay in the car. The children resisted even this
small change.
Son began to lose his appetite after these visits and said, “I
didn’t sign up for this” when referring to them. During one
encounter, son said his parents were not mother and father; his
actual parents—namely, the legal guardians—were in the car
with him. When the parents said goodbye at the end of the visit,
son responded, “bye losers.” Son referred to another visit as
“torture.” Before a subsequent visit, the social worker heard son
screaming in the car. In a similar vein, daughter explained, “l
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don’t like them. I don’t know why they say they love me if I don’t
love them.”
The Department twice recommended the court terminate
visitation because of the harm to the children, but the court
denied the requests. Still, the weekly interactions remained
challenging. The children did not want to participate, got
discouraged when they had to go, regressed throughout the
encounters, and became defiant after them. They were
consistently, adamantly opposed to visitation.
The court ultimately terminated parental rights on
December 9, 2022. The court considered the entire court file and
heard testimony from the parents as well as closing argument
from counsel.
Mother’s attorney asked the court to apply the sibling
exception and the parental-benefit exception to adoption.3
Counsel emphasized that mother had visited the children
regularly and consistently to the extent allowed by the court. He
did not object that visitation had not been meaningful. As to the
detriment prong, counsel acknowledged that “this is a difficult
one, especially given the children’s recent behaviors at
visitations.” He conceded that “in the short term, I don’t think
the children will necessarily feel the immediate impact of the
termination of parental rights and the severing of that
relationship. I think it’s in the long run, in the long term, that
3 Mother’s older son—the children’s half-brother—had been
involved earlier in the proceedings. The half-brother had been
placed with a foster parent, who later became his legal guardian;
he never resided with son and daughter. Parents do not pursue
the sibling exception on appeal.
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the children are going to understand the gravity of everything
that has occurred.” At that point, “years from now,” termination
of parental rights “would negatively impact them
emotionally . . . .” Thus, he asked the court to “take a long-term
view of the situation for the children.”
Counsel for father joined in arguing both exceptions but
focused on the parental-benefit exception. He pointed out that
father had maintained consistent contact with the children since
the case began in 2014. He did not argue that visitation had not
been meaningful. To the contrary, visits had gone well until
reunification services were reinstated. At that point, everything
“went south.” Thus, counsel argued the “real issue” was
detriment. Father’s relationship with his own father—the legal
guardian—was “toxic” and “cannot be fixed.” If parental rights
were terminated, therefore, the legal guardians would not allow
the parents to see the children.
The Department argued there was no evidence of a
beneficial relationship between the children and the parents and
no evidence that terminating parental rights would be
detrimental to the children. Counsel explained: “The kids have
been with the grandparents for almost their entire life, and the
kids want to stay with their grandparents. They see their
grandparents as their parents, and they see their biological
parents as strangers.”
Children’s counsel joined with the Department’s request to
terminate parental rights. She argued “there is no positive
relationship or beneficial relationship between [the children] and
the parents. The evidence is overwhelming regarding how [the
children] feel regarding their interactions with their parents.”
Daughter’s “anxiety level was so high prior to visits that [her]
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psychiatrist was considering prescribing medication to be given
as needed . . . .” The visits got progressively worse because of the
children’s “constant fear that they will be returned to their
parents.” In short, the children wanted to be adopted; they did
not want the visits to continue.
The court found mother and father had not proven the
sibling exception. As to the parental-benefit exception, based on
the factors in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.),
the court held that the parents had satisfied the first prong by
maintaining regular contact and visitation. The court then
looked at the nature of the relationship between the children and
the parents, which it concluded “for the most part, has not been
positive.” Although there had been moments in which the
children had opened up, such moments had been “few and far
between.” And “even then, nothing about the interaction in the
last year-and-a-half that there has been an effort to really form
and create and nurture the relationship, nothing has been shown
to be effective in actually creating a substantial positive
emotional attachment from the children to the parents.” Because
it could not find that a substantial, positive emotional
attachment existed, the court could not find a benefit in
continuing the relationship under the second prong of Caden C.
It also concluded that, to the extent the court might be wrong on
that point, even if a beneficial relationship existed, severing it
would not be detrimental to the children, and any benefit of
preserving it did not outweigh the benefits of adoption.
Mother and father filed timely notices of appeal.
DISCUSSION
Mother and father argue the court erred when it declined to
apply the parental-benefit exception to adoption. They contend
12
that although they were afforded regular visits, they were denied
meaningful visitation with their children, which made it
impossible for them to establish a relationship and prove the
parental-benefit exception. Accordingly, the juvenile court
violated their due process rights when it terminated parental
rights.4 The Department argues the parents have forfeited this
contention by failing to object on this basis below. We agree with
the Department.
1. The Parental-benefit Exception
The purpose of section 366.26 proceedings is “to provide
stable, permanent homes” for dependent children. (§ 366.26,
subd. (b).) In cases in which the juvenile court terminates
reunification services, adoption is the Legislature’s preferred
permanent plan for the child. (§ 366.26, subd. (b)(1); see In re
Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds the child is
adoptable, “the court must order adoption and its necessary
consequence, termination of parental rights,” unless a parent can
4 Mother also raises a half-dozen other arguments in which
she appears to assert that the court erred by not returning the
children to her custody at the section 366.26 hearing. Those
assertions are not germane to this appeal. “Nothing that
happens at the section 366.26 hearing allows the child to return
to live with the parent.” (Caden C., supra, 11 Cal.5th at p. 634.)
Mother also argues the juvenile court should have held the legal
guardians in contempt for obstructing the reunification process.
Mother did not ask the trial court for such an order; on appeal,
she has not developed the point with cogent legal argument or
citation to authority. (See Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52; Cal. Rules of Court, rule 8.204(a)(1)(B).)
As such, we do not address mother’s remaining claims.
13
establish one of the section 366.26 exceptions to adoption. (In re
Celine R., at p. 53; see also § 366.26, subd. (c)(1); Caden C., supra,11 Cal.5th at p. 625.)
Under the parental-benefit exception to adoption, the
parent must “establish, by a preponderance of the evidence,”
“(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 pp. 629, 631.) “What it requires a
parent to establish, by a preponderance of the evidence, is that
the parent has regularly visited with the child, that the child
would benefit from continuing the relationship, and that
terminating the relationship would be detrimental to the child.”
(Ibid.)
The first element is straightforward. For the second
element, “the focus is 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.’ . . . [C]ourts often
consider how children feel about, interact with, look to, or talk
about their parents.” (Caden C., supra, 11 Cal.5th at p. 632.) As
to the last element, “[w]hat courts need to determine … is how
the child would be affected by losing the parental relationship—
in effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Id. at p. 633.)
When assessing whether the parental-benefit exception
applies, “the court balances the strength and quality of the
natural parent/child relationship in a tenuous placement against
the security and the sense of belonging a new family would
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confer. If severing the natural parent/child relationship would
deprive the child of a substantial, positive emotional attachment
such that the child would be greatly harmed, the preference for
adoption is overcome and the natural parent’s rights are not
terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Essentially, “the 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.”
(Caden C., supra, 11 Cal.5th at p. 631.)
We review the juvenile court’s findings on the first two
elements—regular visitation and whether the child would benefit
from continuing the relationship—for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639–640.) For the third
element, we use a hybrid standard: We review factual
determinations for substantial evidence but review the weighing
of relative harms and benefits of terminating parental rights for
abuse of discretion. (Ibid.)
2. The parents have forfeited their due process claim.
Both parents fail to address the second and third prongs of
the parental-benefit exception, implicitly conceding they cannot
demonstrate error. They contend, however, that they cannot
meet this standard because the juvenile court did not afford them
meaningful visitation with their children.5 The Department
asserts, and we agree, that mother and father have forfeited this
5 No party has argued that our previous opinion resolved the
merits of this claim adversely to parents. Thus, we do not
consider whether the prior opinion constitutes law of the case on
that point.
15
issue by failing to raise it below. Accordingly, although we
acknowledge, as did the juvenile court, the parents’ serious
efforts to regain custody of their children, we conclude neither
parent has established that the court erred.
“A reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court. [Citation.] The purpose of this rule is to
encourage parties to bring errors to the attention of the trial
court, so that they may be corrected.” (In re S.B. (2004)
32 Cal.4th 1287, 1293 (S.B.).) Dependency matters are not
exempt from the forfeiture rule. (Ibid.) Here, despite ample
opportunity to do so, mother and father did not object that their
visits with the children were insufficiently meaningful. If they
had argued the point, the juvenile court might have been in a
position to further modify the visitation orders.
On August 13, 2021, in response to objections from mother,
the court ordered the legal guardians to transport the children to
visits and directed the Department to facilitate family counseling
between the parents and legal guardians. At a progress hearing
three weeks later, neither parent objected that those visits had
not been meaningful. Nor did the parents object at any of the
next four hearings. Both parents then failed to object to the
quality of their visits when the court terminated reunification
services. Between termination of reunification services and
termination of parental rights, the parents appeared in court
another seven times. Neither mother nor father objected to the
quality of the visits at any of those hearings.
The juvenile court terminated parental rights on
December 9, 2022. That hearing was the 15th time the parents
had appeared in court since mother’s visitation-related walk-on
16
request more than a year earlier. Yet, again, the parents did not
object that they had not been afforded constitutionally-adequate
visitation with their children.
Father nevertheless asks us to reach the merits of his
claim.6 Although we acknowledge application of the forfeiture
doctrine is not automatic, the Supreme Court instructs us to
exercise our discretion to excuse forfeiture rarely and to do so
only in cases presenting important legal issues. (S.B., supra,
32 Cal.4th at p. 1293.) In dependency cases in particular, our
“discretion must be exercised with special care . . . .” (Ibid.)
Certainly, the right to care for one’s children is one of the most
fundamental constitutional rights. (Troxel v. Granville (2000)
530 U.S. 57, 66.) But precisely because that right is so critical, if
mother and father believed the juvenile court could do more to
ensure the quality of their visits, it was incumbent on them to
ask the court for help, not maintain silence for 16 months. There
is no indication in the record before us that such a request would
have been futile—and father does not claim otherwise. To the
contrary, the court was thoughtful and engaged throughout this
case. As such, any necessary intervention should have been
sought below. We cannot undo the passage of time.
///
///
6 Mother did not file a reply brief and has not addressed the
Department’s argument on this point.
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DISPOSITION
The orders terminating parental rights are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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