In re A.L.

Filed 1/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re A.L., a Person Coming Under the H048761
Juvenile Court Law. (Santa Clara County
Super. Ct. No. 118JD025484)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
E.C.,
Defendant and Appellant.
On November 21, 2018, the Santa Clara County Department of Family and
Children’s Services (Department) filed a petition under Welfare and Institutions Code
section 3001 relative to a girl, A.L. (the minor), who was then three years old. A.C.
(mother) and E.C. (father) are the minor’s parents. The minor was living with father, and
she was placed into protective custody after father left the minor with a daycare provider
for several days without making arrangements for the minor’s care. Father was in
custody, and the Department at the time could not locate mother. On March 12, 2019, the
1
Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
juvenile court declared the minor a dependent child, removed her from father’s care, and
ordered that father receive family reunification services.
Father received services for 16 months. On July 23, 2020, the juvenile court
terminated father’s services and scheduled a selection and implementation hearing
pursuant to section 366.26 (366.26 hearing). Father thereafter filed a petition under
section 388 (388 petition) seeking the return of the minor to his care. On
January 13, 2021, after a combined hearing on father’s 388 petition and selection and
implementation, the court denied the petition, found the minor adoptable, and terminated
father’s parental rights.
Father filed an appeal from the order denying the 388 petition and the order
terminating parental rights after the 366.26 hearing. With respect to the 366.26 order, he
argues that the juvenile court abused its discretion in denying his claim of the beneficial
parental relationship exception to adoption (hereafter, the parental-benefit exception). He
asserts that the court did not apply the correct legal standard by basing its determination
that the exception did not apply on the finding that father did not occupy a strong parental
role in the minor’s life. Father argues that, as clarified by the California Supreme Court
in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), a case filed after the 366.26 hearing
below, a parent seeking to apply the parental-benefit exception need not show that he or
she occupies a parental role in the child’s life.
Finding no error, we will affirm the juvenile court’s order denying father’s
388 petition and the order after the 366.26 hearing.
2
I. FACTS AND PROCEDURAL HISTORY2
A. Initial Proceedings (November 2018)
On November 21, 2018, the Department filed a petition under section 300,
subdivisions (b) (1), (g), and (j) relative to the minor. The Department alleged that on
November 9, 2018, the minor was placed into protective custody because father had left
the minor with a daycare provider, M.C., without providing for the minor’s care. Father
was in custody at Elmwood Correctional Facility (Elmwood). Despite the Department’s
diligent efforts, the whereabouts of mother remained unknown.
The Department alleged that mother had an extensive and active substance abuse
problem that impaired her ability to care for her children. She also had a history of
domestic violence. Mother had two children in addition to the minor who were not in her
care because of her inability to meet their basic needs. In August 2017, the juvenile court
had declared her child, G.C.—then three months old—a dependent child. Mother’s
reunification services were terminated in March 2018 and her parental rights as to G.C.
were terminated in July 2018.
The court ordered the minor detained on November 26, 2018.
In a second amended petition filed in March 2019, the Department alleged that
father had an extensive and active substance abuse issue that impaired his ability to care
for the minor, and that he had been using methamphetamine and alcohol over the
previous five years. Father had tested positive for methamphetamines on
February 1, 2019. The Department alleged that father “ha[d] a history of perpetrating
2 There was a prior related appeal filed by mother with this court in which we
affirmed the juvenile court’s order after jurisdiction/disposition hearing. (See In re A.L.
(Nov. 26, 2019, H046887) [nonpub. opn.] (In re A.L. I).) This court deemed father’s
motion herein “to correct the record” a request for judicial notice and granted judicial
notice of the record filed in In re A.L. I. (See Evid. Code, §§ 452, subd. (d), 459,
subd. (a).) The procedural history and factual background recited here up through the
jurisdictional/dispositional hearing are taken from our opinion in In re A.L. I.
3
severe physical domestic violence on the mother in the presence of the [minor, and he]
was arrested and charged with perpetrating domestic violence on the mother” on four
occasions between December 2015 and July 2016. Father was placed on probation but
did not comply with drug treatment or domestic violence counseling.
B. Jurisdiction/Disposition Hearing (March 2019)
1. Department’s Reports
The Department reported that upon her detention on November 19, 2018, the
minor was placed in an emergency foster home. On November 30, she was placed with
M.C., the minor’s daycare provider.
The minor’s detention arose after it was reported on November 5 that father had
dropped off the minor at M.C.’s home on November 1 and had not returned to pick her
up for the next five days and had not contacted M.C. The Department made various
efforts to locate father. It was not until November 20 that it located father, determining
that he was incarcerated in Elmwood.
During an interview at the Elmwood facility on November 20, father explained to
the social worker that he had been the sole provider for the minor her entire life, and that
mother had left the minor in the sole care of father around the fall of 2017. Father told
the social worker that he had no drug or alcohol issues. He said he was not in contact
with mother and did not know where she lived. He stated that he had first used marijuana
when he was 10 years old, but, as an adult, did not like to use it. He denied having a
current alcohol problem. Father stated further that he had used cocaine from 2010 to
2013 at a frequency of four to five times per month. He began using methamphetamine
in 2014, when his use was twice per day, until 2016. He stated he had ceased using it in
September 2016 when he began receiving informal supervision services.
The daycare provider, M.C., advised that she had taken care of the minor for
two years. Approximately three months before the minor was detained, father told M.C.
that he needed to turn himself in to the authorities; he asked her if she would be the
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minor’s caregiver and she agreed. M.C. reported that in the month before he was
arrested, father “appeared more unaware of his environment, reported he could not
remember previous statements told to him, had poor hygiene, his eyes appeared red, and
[he] did not turn in the child’s physical and dental results to the school.”
Father’s cousin told the Department on December 11 that father had been
struggling with alcohol abuse for three years. Father lived in his car with the minor and
drank alcohol daily in public in her presence. The cousin understood that father had
never received substance abuse treatment. The cousin also understood that father and
mother had originally met at a tire shop where father worked, and they had used
methamphetamine and drunk alcohol together. The cousin believed that mother and
father exposed the minor to their substance abuse throughout the time that parents lived
together.
Father was convicted in February 2016 of battery upon a spouse or cohabitant
(Pen. Code, §§ 242, 243, subd. (e)) and possession of a deadly weapon with intent to
commit assault (id., § 17500), for which he received three-years’ probation. Father’s
probation officer reported that father had violated the terms of his probation on three
occasions, and that he would be unsuccessfully released from probation in January 2019.
The probation officer advised that father had failed to comply with the terms of his
probation of drug testing and domestic violence counseling.
On January 7, 2019, father advised the Department that he expected to be released
from Elmwood on January 17. He told the social worker he would contact her upon his
release to schedule a meeting and supervised visits. Father was in fact released on
January 17, but he waited 11 days to contact the Department.
The Department concluded that the minor could not be safely placed with father
because (1) he had been released from custody on January 17 and did not contact the
Department until 11 days later; (2) his whereabouts remained unknown; (3) his instability
did not allow for him to safely care for the minor; (4) he had untreated substance abuse
5
issues and a domestic violence issue, and he had not been forthcoming with the
Department about them; and (5) he lacked insight into the issues that resulted in the
minor’s being detained.
2. Jurisdiction and Disposition Hearing
The juvenile court conducted a combined jurisdiction and disposition hearing on
March 12, 2019. The court found the allegations of the second amended petition true,
and it adjudicated the minor a dependent child of the court. It found by clear and
convincing evidence that the minor’s welfare required that the minor be removed from
the physical custody of father, and that placement with mother (the previously non-
custodial parent) would be detrimental to the child’s safety. It ordered reunification
services for father, and it ordered services for mother bypassed (§ 361.5(b)(10), and (11).
Mother appealed the jurisdiction and disposition order. We affirmed the order on
November 26, 2019 in In re A.L. I filed.
C. Change in Placement (May 2019)
The Department filed a supplemental petition under section 387, seeking a change
of custody of the minor from M.C. to a new foster care provider, based upon M.C.’s
having left the country in April 2019 without an appropriate caregiver for A.L. and
because of two child welfare referrals involving suspected physical abuse of the child.
On May 21, the minor was placed by the Department in a Resource Family Approved
(RFA) home in Santa Clara County. The juvenile court sustained the allegations of the
petition on May 29, 2019.
D. Six-Month Review Hearing (September 2019)
In September 2019, the Department reported that father consistently attended
supervised visits with the minor two hours per visit, twice per week. Father was
appropriate during the visits, and he arrived with food and toys for the child. The minor
had expressed that she loved father and that she enjoyed their visits.
6
Father was employed fulltime, and “continue[d] to be homeless” sleeping in his
recreational vehicle. The Department stated that father “continue[d] to show minimal
participation in his Court-ordered case plan services as he only recently [had become]
engaged in al his services.” The social worker, however, stated that she had no doubt that
father loved the minor and was attempting to reunify with her. Father had been
participating in drug testing since February 2019; he had tested positive for
methamphetamines/amphetamines on three occasions (June 14, June 25, August 2).
The Department reported further that the minor had made a good adjustment with
her new caregivers, and she appeared to be comfortable and happy in the new home. The
caregivers had indicated they were willing to adopt the minor.
On September 3, 2019, the court ordered that father continue to receive
reunification services. Three weeks later, the juvenile court made a finding that E.C. was
the biological father of the minor.3
E. Twelve-Month Review Hearing (January 2020)
The Department reported in January 2020 that the minor continued to reside and
do well in the care of the RFA home in which she had been placed on May 21, 2019. The
minor had her own bedroom, and she was very close to the caregiver’s goddaughter, who
visited frequently. The minor had advised the social worker that “she [felt] ‘happy’
living there.”
Father, who had been renting a bedroom, had moved into his own studio
apartment in November 2019. He continued to participate in twice-weekly supervised
visits with the minor that had gone well. The Department was projecting that “stepped
down” unsupervised visitation would commence in mid-February 2020.
3 On July 21, 2020, the court declared E.C. the presumed father pursuant to
section 7611, subdivision (d).
7
The Department stated Father’s participation in services had improved since the
prior reporting period. Father had relapsed in October 2019—testing positive on
October 10 for methamphetamines/amphetamines—and he admitted in a December Child
Family Team meeting that his participation in Narcotics Anonymous (NA)/Alcoholics
Anonymous (AA) meetings had been irregular, but he intended to increase that
participation. The Department advised that father’s “progress in alleviating his substance
use [had] been slow.”
On January 17, 2020, the juvenile court ordered that father continue to receive
reunification services. The court also made a finding that E.C. was the minor’s natural
father and granted his de facto parent motion.
F. Eighteen-Month Review Hearing (July 2020)
The Department reported that the minor “continue[d] to thrive under the[] care” of
the concurrent foster family where she had been placed in May 2019. She was closely
bonded with the foster family. The minor had told social worker Diana Barrientos that
she loved her caregivers, and she didn’t want to be moved. The minor called them
“ ‘mommy,’ ‘mom,’ ‘dad,’ and ‘daddy.’ ” In February, the foster family had undertaken
the custody of a safely-surrendered newborn baby; the minor was enjoying her new role
as a big sister and was “closely attached” to her.
Father was residing with his adult nephew. He returned to work in May 2020 after
a two-month hiatus because of shelter-in-place orders necessitated by the COVID-19
pandemic.
Since the last reporting period—due to father’s having relapsed, thus resulting in a
continued safety risk to the child—the stepped-down visitation that had been previously
projected was not implemented. Supervised weekday visits were moved to four-hour
Saturday sessions because long schooldays left the minor too tired and irritable for
evening visits. Father’s last in-person visit was on March 14. Thereafter, due to the
COVID-19 pandemic, he participated in 15-minute supervised Zoom telephone calls with
8
the minor three times per week. He attended all such visits and was appropriate during
the calls.
The Department advised that since the last reporting period, father had
“disengaged from participating in his Court-ordered case plan services” and had
“continued to struggle with his substance use of methamphetamines and amphetamines.”
Father had 22 missed drug test calls and three drug tests, which he made up within a
week of their scheduled dates. On February 3, February 20, and March 5, 2020, he had
tested positive for methamphetamines/amphetamines, and he had abnormal (dilute) drug
test results on March 9. Regular drug testing was suspended from mid-March until late
June because of COVID-19 shelter-in-place orders. In July, father continued to miss
drug calls and scheduled drug tests. On various occasions, father “continued to deny” his
relapses and claimed there had been something wrong with the drug test samples. During
the reporting period, father had not “reconnect[ed] with Court-ordered case services that
include[d] updating his SUTS assessment, attending regular AA/NA meetings weekly,
participat[ing] in outpatient services and continu[ing] attending individual therapy.” The
Department recommended that the court terminate father’s services and schedule a
366.26 hearing.
The juvenile court conducted a contested 18-month review hearing on
July 22 and 23, 2020. After hearing evidence and argument, the court adopted the
recommendations of the Department, terminated father’s services, and scheduled a
366.26 hearing for November 6, 2020.
G. Request to Change Order
On November 10, 2020, father filed a 388 petition, which was later amended.
Father requested that the court change its July 23, 2020 order terminating services and
setting a 366.26 hearing. He requested that the minor be returned to his custody under a
family maintenance plan. Father alleged that he and the minor were very bonded to each
other; father had been clean and sober since March 6, 2020; he had been regularly
9
attending 12-Step meetings; he had completed a 52-week certified batterer’s program; he
had rented a room from his nephew that was a suitable home for the minor; he was fully
employed; he had regularly visited the minor; and after one such visit, the caregiver had
sent an e-mail transcribing a message from the minor to father stating “ ‘[a]fter my visit
today, I felt sad because I’m afraid I wouldn’t be able to see you. I wish I could see you
every day. . . .’ ”
The Department submitted a report in which it opposed father’s 388 petition.
The court set a contested hearing on father’s 388 petition, as amended. The
contested hearing took place on January 13, 2021.
H. Report for Section 366.26 Hearing
The Department reported that during the reporting period, “[father had] started
calling the drug testing line, Monday through Friday, to conduct random drug testing,
twice a week.” Father had not missed any phone calls or tests, and he had received
normal test results for the five tests reported (from December 21, 2020 to
January 4, 2021). Father continued to participate in regular supervised visits with the
minor, either in-person, or (due to the COVID-19 pandemic) through video calls. During
the visits, the minor tended to be relatively quiet but listened to what father told her.
Since the last reporting period, the Department reported that the minor
“continue[d] to appear more and more attached to her current caregivers.” Social worker
Barrientos observed that during in-person visits and video calls, the minor was strongly
attached to her caregivers, and the child continued to seek the caregivers’ comfort and
affection during times of sadness or distress. The Department advised that the minor’s
needs continued to be met by her caregivers. They took time off from work whenever the
minor was ill, and they transported her to supervised visitation with her parents.
The Department’s assessment was that father had struggled with his
methamphetamine use throughout the dependency proceedings notwithstanding the
16 months of services the Department had provided. Father was making efforts to
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address his issues, but it was too soon to determine the long-term prognosis in light of his
chronic use of methamphetamine for at least seven years. The minor had been out of
father’s care for more than two years, and visits had remained supervised the entire time.
The Department noted it was clear that the minor loved father and looked forward to their
visits, but that the child did not appear negatively impacted on occasions when scheduled
visits did not occur. In light of the close relationship the minor had with her caregivers
and the stability they offered, the Department recommended that the juvenile court
terminate the parental rights of father and mother and select adoption as the permanent
plan.
I. Hearing on 388 Petition/Selection and Implementation (January 2021)
The juvenile court conducted hearings on father’s 388 petition and on selection
and implementation under section 366.26 on January 13, 2021. The court received into
evidence three reports of the Department, i.e., the 366.26 hearing report, its response to
father’s 388 petition, and a January 13, 2021 addendum report.4 The court also received
into evidence certain documents offered by father, including drug testing and substance
abuse program reports and meeting slips. Social worker Barrientos and father testified as
witnesses at the joint hearing. The court, pursuant to the parties’ stipulation, found social
worker Barrientos qualified as an expert in the areas of risk assessment and permanency
planning.
4
A report by the Department in connection with the 366.26 hearing, dated
November 17, 2020 (366.26 report), was not part of the appellate record. We have
obtained a copy of that report from the superior court, and we will take judicial notice of
the 366.26 report. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Because the
information contained in the 366.26 report is consistent with other matters in the record
we have reviewed and considered, the judicially-noticed 366.26 report does not impact
our analysis of the case.
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1. Testimony of Social Worker Diana Barrientos
Social worker Barrientos provided testimony concerning both father’s 388 petition
and selection and implementation. She explained that she had been the assigned social
worker on the case since November 2018.
Barrientos testified that one of the primary safety concerns resulting in the minor
becoming a dependent child was father’s substance abuse. Throughout the dependency,
father had periodically tested positive for methamphetamine and had several dilute tests.
She testified that father, “for the most part,” was not open and honest about his substance
use, and he would usually deny that he had used methamphetamine after positive tests.
As of the 18-month review hearing in July 2020, father had just begun participating in an
outpatient substance abuse treatment program; he had previously completed an outpatient
treatment program, but he had not maintained his sobriety and had been dishonest with
service providers about his substance use during his attendance at that program. Because
by July 2020, father had not demonstrated an ability to maintain long-term sobriety,
Barrientos had recommended termination of services.
Barrientos questioned father’s representation in his amended 388 petition that he
had been sober since March 6, 2020. She testified that father had had a dilute (presumed
positive) test on March 9; he had missed scheduled drug tests on July 6 and 7; he was no
longer subject to testing through the Department after his services were terminated on
July 22; his voluntary testing was not random testing; and he had had another dilute
(presumed positive) test on November 18.5 Social worker Barrientos opined that father
was still in the early stages of recovery.
5Barrientos acknowledged during cross-examination that father had received
negative drug test results in 2020 on June 25 and 29, August 6, 13, 20, and 28,
September 4, 11, and 21, October 7, 16, and 23, and December 8 and 17.
12
Father had been quite consistent with his visitation with the minor throughout the
proceedings. Social worker Barrientos had supervised more than 10 visits. She observed
that the visits were “very fun, friendly,” with lots of activities, and they were enjoyable to
the minor. Barrientos testified that father was very engaged and conversed throughout
the visits, but the minor spoke “barely a handful of words during the supervised visits.”
During the supervised visits, Barrientos did not hear the minor refer to her father “as
‘ dad, father. [’] ” The last visit Barrientos attended was a four-hour supervised visit on
[ ]
December 21, 2020, which was “a very fun, friendly visit” with father and the minor
playing games together. She observed that the minor had no difficulty separating from
father at the end of their visit. And she testified that when father had missed scheduled
video visits, the minor had not been affected and had been easily redirected.
Barrientos opined that the fact that father had consistently tested negative for a
few weeks prior to the combined January 2021 hearing did not change her assessment.
She explained that father had a long history of methamphetamine use, and during his
18 months of services, he continued to use methamphetamine and denied such use.6
Barrientos concluded that it would not be safe to return the minor to father’s care
because of his ongoing substance abuse; the fact that he was still in the early stages of
recovery; his recent dilute test; and a concern that because of his continued use of
methamphetamine, he would neglect the minor’s basic needs and not provide her with
necessary care. She observed that father had never progressed beyond supervised visits;
he had two monitored visits in January 2020, but he had regressed to supervised visits
after another positive drug test.
6Although Barrientos testified that father received 18 months of services, the
record shows that he in fact received 16 months of services (from March 2019 to
July 2020).
13
Social worker Barrientos concluded further that, if the juvenile court were to find
the existence of changed circumstances under father’s 388 petition, it would not be in the
minor’s best interest to return her to father’s care. This opinion was based upon
Barrientos’s concerns about the minor’s safety due to father’s substance abuse history,
and the fact that returning the child to father’s care “would just be a very abrupt, sudden
change with the transition plan [with] an adoptive-ready home that is very committed to
[the minor],” and with the minor and the caregivers being “very attached to one another.”
Barrientos testified that the minor had been with the prospective adoptive family
more than 19 months (since May 21, 2009), they were very attached to each other, and
the family was very committed to the minor. The social worker had observed the minor
refer to her foster parents as “[m]ommy, daddy, mom, dad.” The minor considered
herself the big sister of the other child in the caregivers’ home.
With respect to issues for the 366.26 hearing, social worker Barrientos rendered
the opinion that the minor was adoptable. She based this assessment upon, inter alia, the
minor’s young age, her being a bright and caring young girl, her having no
developmental delays or medical or educational issues, and her being in a foster home
that was very committed to adopting her.
In making her assessment for the 366.26 hearing, social worker Barrientos
considered the nature of the bond that the minor had with father. Barrientos opined that
father (1) was not involved in the minor’s education, (2) did not help the minor with
schoolwork, (3) was not involved in the minor’s medical appointments and he never
asked to be more involved with them, and (4) was not a parent figure in the minor’s life.
Barrientos believed, based upon her conversations with the minor, the child viewed her
caregivers as her mother and father and father to be “a fun, friendly person” to have visits
with. Barrientos opined that, to the extent that the minor derived some benefit from visits
with father, they did not outweigh the benefits the child would receive from adoption and
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“being in a structured, loving home environment [with people] who are committed to
providing permanency to [the minor].”
2. Testimony of Father
Father testified that since the 18-month review hearing in July 2020, he had
attended a substance abuse program at Proyecto Primavera that he had completed in
December 2020. He had been clean and sober since March 2020.7 Father had continued
with drug testing at his own expense after the Department ceased paying for it in
July 2020, and the results of all such tests had been negative. He admitted he had only
tested once in November 2020, and that the test was for alcohol only. Since July 2020,
he had consistently attended 12-Step meetings, initially twice a week and more recently
daily, working in a service capacity for the program. Father had completed a relapse
prevention program. He had also completed a 52-week domestic violence class in
August 2020.
It was father’s understanding that the minor had been removed from his care
because, after he was released from custody, the Department had “accused [him] of
negligence, because [he] left her with the babysitter.” He stated that he had become
depressed after losing custody of the minor and had relapsed. Father denied that his
substance abuse while the minor was under his care caused him to neglect her or that it
had any impact on the child.
Father testified that he had had supervised visits with his daughter for four hours
on Saturdays. The visits went very well; father and the minor both enjoyed them. The
child called him “[d]addy” during the visits. The visits had recently taken place by video
7 Father testified on cross-examination, that the positive drug tests from February
and March 2020 about which the Department confronted him were not the result of his
having actually used methamphetamine; instead, he claimed that at those times, he had
been with people who had been using drugs for which he took responsibility.
15
due to the COVID-19 pandemic. He had difficulty with a few video visits because of
technical reasons.
Father testified that he and the minor were very attached to one another, and that
he had taken care of her since birth. He testified that he did not believe that his substance
abuse had had any impact on the minor during the time he had cared for her. Father
stated he loved the minor very much and the minor loved him. Father had been renting a
room in the two-bedroom apartment of his adult nephew and had done so since
November 2019. Father testified that it was a suitable home in which the minor could
live. He was working full time and his salary was sufficient to support the minor and
him.
Father acknowledged that the minor was closely bonded with the caregivers and
that the child loved them. He testified that he did not believe it would be disruptive to the
minor if she were returned to his care; “[s]he would be happy.” But father later testified
that he felt it would hurt the minor “for a time” if she were separated from people she had
come to rely on and love, but that “it would hurt her more to be separated from her
father.”
3. Juvenile Court’s Ruling
After hearing the evidence and argument of counsel,8 the court denied father’s
388 petition. The court observed that although there was a factual dispute concerning the
length of time father had been free of drug use, “giving [father] the benefit of the
doubt, . . . ten months of sobriety, even in the context of his history of substance abuse, is
a material change [of circumstances].” But the court denied the 388 petition, specifically
concluding that the relief father sought, return of the child to his care with family
maintenance services, was not in the minor’s best interests.
8 Counsel for the minor argued that father’s 388 petition should be denied, and
that the court should find the minor adoptable and terminate mother’s and father’s
parental rights.
16
With respect to the 366.26 hearing, the court adopted the recommendations of the
Department. The court found the minor to be adoptable, terminated the parental rights of
mother and father, and found adoption to be the permanent plan. In so concluding, the
juvenile court found that the parental-benefit exception to adoption did not apply, finding
implicitly that any detriment to the minor from the termination of parental rights did not
outweigh the benefits the minor would receive from a stable adoptive home.
Specifically, the court found that father had “been extremely consistent with his visits,”
was “bonded with . . . his daughter,” had “shown exceptional devotion to [her],” and had
“an attachment to” the minor from which she benefited. And although the juvenile
court—indicating that it was looking at the issue of detriment from “[the minor’s]
perspective”—concluded that severing the minor’s relationship with father would be “a
loss” to her, it also found that the loss was one “[the minor] would be able to adjust to.”
The court noted that the caregivers had “occupied the parental role” for the past one and
one-half years of the minor’s life.
II. DISCUSSION
A. Selection and Implementation Hearings Under Section 366.26
1. Generally
After it has been adjudicated that a child is a dependent of the juvenile court, the
exclusive procedure for establishing the permanent plan for the child is the selection and
implementation hearing as provided under section 366.26. The essential purpose of the
hearing is for the court “to provide stable, permanent homes for these children.” (Id.,
subd. (b).) As the California Supreme Court has recently explained, “[a]t the section
366.26 hearing, the question before the court is decidedly not whether the parent may
resume custody of the child. [Citations.] In fact, it is not permissible to order
reunification at the section 366.26 hearing. [Citations.] Indeed, when the court orders
the section 366.26 hearing, reunification services have been terminated, and the
17
assumption is that the problems that led to the court taking jurisdiction have not been
resolved. [Citation.]” (Caden C., supra, 11 Cal.5th at p. 630.)
There are seven statutory choices for the permanency plan; the preferred choice is
adoption, coupled with an order terminating parental rights. (§ 366.26, subd. (b); see also
In re Celine R. (2003) 31 Cal.4th 45, 53 [“Legislature has thus determined that, where
possible, adoption is the first choice”]; ibid. [where child is adoptable, “adoption is the
norm”].) The court selects this option if it “determines . . . by a clear and convincing
standard, that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).)
Thus, at the 366.26 hearing, “in order to terminate parental rights, the court need
only make two findings: (1) that there is clear and convincing evidence that the minor
will be adopted; and (2) that there has been a previous determination that reunification
services shall be terminated. . . . ‘[T]he critical decision regarding parental rights will be
made at the dispositional or review hearing, that is, that the minor cannot be returned
home and that reunification efforts should not be pursued. In such cases, the decision to
terminate parental rights will be relatively automatic if the minor is going to be adopted.’
[Citation.]” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.)
As noted, if the court makes the two aforesaid determinations, it is required to
terminate parental rights to allow for adoption of the child. (Caden C., supra, 11 Cal.5th
at p. 630.) But a parent may avoid this result if he or she establishes “that the termination
of parental rights “would be detrimental to the child due to one or more of . . . [six
statutory] circumstances.” (§ 366.26, subd. (c)(1)(B).) As discussed below, one such
circumstance—which is at issue here—is the parental-benefit exception.
If the juvenile court makes a finding that one of the statutory circumstances
presents “a compelling reason” for determining that the termination of rights would be a
detriment to the child (§ 366.26, subd. (c)(1)(B)), the court should select a permanent
plan alternative to adoption. (See § 366.26, subd. (c)(1)(B)(i)–(vi), (4)(A).) “In other
words, when a parent establishes that one of the exceptions applies, adoption or
18
termination is not ‘in the best interest of the child.’ [Citations.]” (Caden C., supra, 11
Cal.5th at p. 631.)
It must be emphasized, however, that the six specified circumstances in
section 366.26, subdivision (c)(1)(B) are “actually, exceptions to the general rule that the
court must choose adoption where possible.” (In re Celine R., supra, 31 Cal.4th at p. 53,
original italics.) They “ ‘must be considered in view of the legislative preference for
adoption where reunification efforts have failed.’ [Citation.] At this stage of the
dependency proceedings, ‘it becomes inimical to the interests of the minor to heavily
burden efforts to place the child in a permanent alternative home.’ [Citation.] The
statutory exceptions merely permit the court, in exceptional circumstances [citation], to
choose an option other than the norm, which remains adoption.” (Ibid., original italics.)
2. Parental-Benefit Exception to Adoption
The parental-benefit exception was asserted by father below and is the central
issue on appeal. Under this exception, the juvenile court will not terminate parental
rights if it “ ‘finds a compelling reason for determining that termination would be
detrimental to the child . . . [¶] [because 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).)” (Caden C., supra, 11 Cal.5th at p. 631.) The Supreme
Court has construed the statute to provide that there are “three elements the parent must
prove to establish the 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.” (Ibid., original italics; see also In re Autumn H.
(1994) 27 Cal.App.4th 567, 575-576 (Autumn H.) [recognized by Caden C., supra, at
p. 631, as “the seminal decision interpreting the exception”].)
“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.’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.)
19
“ ‘Sporadic visitation is insufficient.’ ” (In re Marcelo B. (2012) 209 Cal.App.4th 635,
643, disapproved on other grounds in Caden C., supra, at p. 637, fn. 6.)
“As to the second element, courts assess whether ‘the child would benefit from
continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) Again here, 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.’ [Citation.] . . . “[C]ourts often consider how children feel about, interact with,
look to, or talk about their parents. [Citations.]” (Caden C., supra, 11 Cal.5th at p. 632.)
In focusing upon the child in assessing benefit, the juvenile court “must remain mindful
that rarely do ‘parent-child relationships’ conform to an entirely consistent pattern.
[Citations.]” (Ibid.)
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also
§ 366.26, subd. (c)(1)(D).) 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. [Citations.] What courts need to determine,
therefore, 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. [Citation.] . . . [T]he effects might include emotional instability and
preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or
depression. Yet . . . a new, stable home may alleviate the emotional instability and
preoccupation leading to such problems, providing a new source of stability that could
make the loss of a parent not, at least on balance, detrimental.” (Caden C., supra, 11
Cal.5th at p. 633.) In making this detriment determination, the juvenile court does “not
look to whether the parent can provide a home for the child,” and “is not comparing the
20
parent’s attributes as custodial caregiver relative to those of any potential adoptive
parent(s).” (Id. at p. 634.)
Therefore, as explained in Caden C., “[i]n each case, . . . the court acts in the
child’s best interest in a specific way: it decides whether the harm of severing the
relationship outweighs ‘the security and the sense of belonging a new family would
confer.’ (Autumn H., supra, 27 Cal.App.4th at p. 575.) ‘If severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
attachment such that,’ even considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental rights. (Ibid.) That
subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of
placement in a new, adoptive home outweigh ‘the harm [the child] would experience
from the loss of [a] significant, positive, emotional relationship with [the parent?]’
[Citation.] When the relationship with a parent is so important to the child that the
security and stability of a new home wouldn’t outweigh its loss, termination would be
‘detrimental to the child due to’ the child’s beneficial relationship with a parent.
(§ 366.26, subd. (c)(1)(B)(i), italics added.)” (Caden C., supra, 11 Cal.5th at pp. 633-
634.)
The Court of Appeal in Caden C. had reversed the juvenile court’s finding of the
existence of the parental-benefit exception, concluding that “because the parent continued
to struggle with substance abuse and mental health issues and because of the risks of
foster care and benefits of the potential adoptive home, no reasonable court could find the
child's relationship with his parent outweighed the benefits of adoption.” (Caden C.,
supra, 11 Cal.5th at pp 625-626.) The Supreme Court held that the appellate court erred
in its emphasis of the mother’s noncompliance with her case plan in denying the parental
relationship exception. (Id. at p. 626.) The high court explained: “A parent’s continued
struggles with the issues leading to dependency are not a categorical bar to applying the
exception. . . . [M]aking a parent’s continued struggles with the issues leading to
21
dependency, standing alone, a bar to the exception would effectively write the exception
out of the statute. . . . [W]hen the court sets a section 366.26 hearing, it terminates
reunification services for the parent. [Citation.] Thus, when the court holds a
section 366.26 hearing, it all but presupposes that the parent has not been successful in
maintaining the reunification plan meant to address the problems leading to dependency.
[Citation.] The parental-benefit exception can therefore only apply when the parent has
presumptively not made sufficient progress in addressing the problems that led to
dependency. . . . Parents need not show that they are ‘actively involved in maintaining
their sobriety or complying substantially with their case plan’ [citation] to establish the
exception.” (Id. at p. 637, original italics, fn. omitted.) The Caden C. court concluded
that “the parent’s struggles with issues such as those that led to dependency are relevant
only to the extent they inform the specific questions before the court: would the child
benefit from continuing the relationship and be harmed, on balance, by losing it? The
parent’s continuing difficulty with mental health or substance abuse may not be used as a
basis for determining the fate of the parental relationship by assigning blame, making
moral judgments about the fitness of the parent, or rewarding or punishing a parent.” (Id.
at p. 638.)
The high court also explained that a parent’s failure to demonstrate the likelihood
of being able to assume a custodial role does not preclude application of the exception. It
held: “[W]hether the parent is or is not ‘ready for the children’s return to her custody’ is
not, by itself, relevant to the application of the parental-benefit exception. [Citation.] If
termination of parental rights would, when weighed against the offsetting benefits of an
adoptive home, be detrimental to the child, the court should not terminate parental rights,
even if the parent has not demonstrated a likelihood that he or she will ever be able to
regain custody. [Citation.]” (Caden C., supra, 11 Cal.5th at p. 638, fn. omitted.)
The burden is on the parent to prove the parental-benefit exception by a
preponderance of the evidence. (Caden C., supra, 11 Cal.5th at p. 636.) Thus, “[t]he
22
parent must show [1] regular visitation and contact with the child, taking into account the
extent of visitation permitted . . . [2] 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 3] that terminating that attachment would be
detrimental to the child even when balanced against the countervailing benefit of a new,
adoptive home.” (Ibid.)
B. Standard of Review
The California Supreme Court in Caden C., supra, 11 Cal.5th 614 clarified the
standard of review applicable for a juvenile court’s finding regarding the parental-benefit
exception. The high court explained that Courts of Appeal had employed three different
standards: substantial evidence, abuse of discretion, and a “ ‘hybrid’ standard . . . [in
which] regular visitation and . . . [existence of] a beneficial relationship [findings are
reviewed] for substantial evidence but whether termination would be detrimental [is
reviewed] for abuse of discretion.” (Id. at p. 639.) The Caden C. court held that the
hybrid standard of review applied. (Id. at p. 640; see also In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314-1315 [enunciating the hybrid standard of review].)
The high court noted that the first two elements—regular visitation and a
beneficial relationship—involved determinations that were essentially factual and thus
should be reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 640.)
The third element—detriment to the minor resulting from termination—the Supreme
Court explained, is different. Like the first two elements, the juvenile court must make a
series of factual determinations including determinations about the child’s relationship
with a parent. (Ibid.) In determining detriment, however, the juvenile “court must also
engage in a delicate balancing of these determinations as part of assessing the likely
course of a future situation that’s inherently uncertain. The decision is not the same as a
determination whether to transfer the child from the custody of one caregiver to another,
but it does require assessing what the child’s life would be like in an adoptive home
23
without the parent in his life. [Citation.] The court makes the assessment by weighing
the harm of losing the relationship against the benefits of placement in a new, adoptive
home. And so, the ultimate decision—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with his parent—is discretionary
and properly reviewed for abuse of discretion.” (Ibid.)
C. No Error in Finding the Parental-Benefit Exception Inapplicable
Father argues on appeal that the juvenile court abused its discretion in connection
with its determination that the parental-benefit exception did not apply.9 He contends
that the court based its conclusion that the exception was inapplicable upon an improper
consideration, i.e., that father did not occupy a parental role in the minor’s life. He
asserts that under Caden C., supra, 11 Cal.5th 614, the juvenile court should not have
considered this “parental role” criterion in determining whether there was a beneficial
relationship between father and child. Father argues further that the court did not
properly weigh the evidence to determine the extent of detriment that would result from
termination of the parental relationship, instead emphasizing father’s not playing a
parental role in the child’s life.
1. Regular Visitation
The parties agree that the juvenile court held that father had satisfied the first
component of the parental-benefit exception, i.e., regular visitation and contact. (Caden
C., supra, 11 Cal.5th at p. 631.) In reaching this conclusion, the court found that father
9 Father’s notice of appeal reflects challenges to both the juvenile court’s denial of
father’s 388 petition and to its section 366.26 order terminating parental rights and
declaring adoption to be the permanent plan for the minor. Father’s position in his
appellate briefs is solely that the court erred in terminating parental rights and declaring
adoption to be the permanent plan. Father has abandoned any claim of error with respect
to the juvenile court’s denial of father’s 388 petition. (Tanner v. Tanner (1997) 57
Cal.App.4th 419, 422, fn. 2 [appellate court may treat as partial abandonment of appeal
where appellant fails to challenge in opening brief an order specified in notice of
appeal].)
24
had “been extremely consistent with his visits.” There was substantial evidence
supporting this express finding. (See id. at p. 640.)
2. Existence of Beneficial Relationship
Father contends on appeal that he satisfied the second component of the parental-
benefit exception, namely, whether “the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) He asserts that “the court declined to find
the relationship beneficial on grounds that father did not occupy a ‘parental role’ in
A.L.’s life.” Father argues that under Caden C., supra, 11 Cal.5th at page 630, the
parent’s failure to occupy a parental role does not preclude a finding that the child would
benefit from continuing the relationship with such parent.
We do not read the record as showing that the juvenile court made a finding that
the minor would not benefit from continuing the relationship with father. To the contrary,
the court found that father “is bonded with . . . his daughter,” he “has shown exceptional
devotion to [her],” and “he does have an attachment to [the minor] and she benefits from
that attachment.” The juvenile court also concluded that severing her relationship with
father would be “a loss” to the minor. We therefore conclude that the juvenile court—
contrary to father’s contention—held that father in fact had satisfied the second
component of the parental-benefit exception.10 There was substantial evidence
supporting this express finding. (Caden C., supra, 11 Cal.5th at p. 640.)
3. Weighing Severance Detriment vs. Benefits of Adoptive Home
Father contends that the juvenile court erred by failing to properly consider the
third prong of the parental-benefit exception—whether “the termination of parental rights
would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631, original
italics.) He asserts that the juvenile court abused its discretion by failing to complete “the
10 The Department has conceded for purposes of this appeal that the second prong
of the exception was satisfied.
25
complex task of reaching a detriment finding [and instead] merely relying on father’s and
the caretakers’ [respective] parental role status[es].” Father contends that, in assessing
detriment, the juvenile court was required—and, implicitly, that the court failed to do so
here—to “determine . . . how the child would be affected by losing the parental
relationship[, i.e.,] what life would be like for the child in an adoptive home without the
parent in the child’s life.” This claim of error fails.
First, father’s argument that the court simply considered the respective parental
roles of the foster parents and father assumes that the juvenile court’s detriment
conclusion was based only upon the matters it stated on the record. We do not read the
record to reflect that the court’s conclusion was so limited. To the contrary, the record
indicates that the court’s statements on the record were not intended to be a
comprehensive recitation of the grounds for its decision. After completion of testimony
and argument at the combined hearing on the 388 petition and selection and
implementation, the juvenile court judge stated, “[W]e’ve already run out of time,” but “I
really would hate to make you come back for a decision.” The judge then stated he
would gather his thoughts “to see if I can give you my decision right now even though
it’s not going to be the most fluid decision.” After a recess was then, the judge returned
to give his ruling.
Further, we are aware of no requirement—and father cites no authority supporting
the proposition—that the juvenile court, in finding the parental-benefit exception
inapplicable, must recite specific findings relative to its conclusions regarding any or all
of the three elements of the exception. To the contrary, we infer from section 366.26,
subdivision (c)(1)(D)—under which the juvenile court is required to “state its reasons in
writing or on the record” when it makes a finding that termination of parental rights
would be detrimental to the child—that the court is not required to make findings when it
concludes that parental rights termination would not be detrimental. (See In re Andrea R.
(1999) 75 Cal.App.4th 1093, 1109 [appellate record supported implied finding by
26
juvenile court that parents had failed to establish parental-benefit exception]; see also
Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945
[appellate court presumes that trial court “considered all the pertinent matters presented
to it”].) Thus, although a statement by the trial court of its findings (or reasons) for its
decision is helpful in conducting appellate review, it was not a legal requirement in this
instance.
Second, contrary to father’s claim on appeal, there is no indication from the record
that the court failed to weigh the potential benefits that adoption would afford the minor
against the potential harm of the loss of the relationship with father. (See People v.
Thomas (2011) 52 Cal.4th 336, 361 [appellate court “presume[s] that the [trial] court
‘knows and applies the correct statutory and case law’ ”].) The record shows that in
announcing its decision, the court noted that, looking at the issue of detriment from “[the
minor’s] perspective,” “not [having father] in her life” because of the termination of the
father-child relationship “would be a loss” but it would be one “[the minor] would be able
to adjust to.” In so reasoning, the court noted that the caregivers had “occupied the
parental role” for the past one and one-half years of the minor’s life.
Third, contrary to father’s position, in assessing potential detriment, it was proper
for the juvenile court to consider whether, and the extent to which, the caregivers and
father occupied parental roles with the minor. In fact, the Supreme Court acknowledged
that “[i]n many cases, ‘the strength and quality of the natural parent/child relationship’
will substantially determine how detrimental it would be to lose that relationship, which
must be weighed against the benefits of a new adoptive home.” (Caden C., supra, 11
Cal.5th at p. 634.) Thus, the strength and quality of the parent’s relationship with the
child, including whether that parent has a parental role, is a relevant consideration to the
court’s detriment finding. Based upon our review of the record, that weighing duty was
performed by the juvenile court here.
27
Father argues, however, that “in light of Caden C., a parent is no longer required
to show that the parent occupied a ‘parental role’ in the child’s life.” We do not read
Caden C. as containing this conclusion. Indeed, the Supreme Court did not use the term
“parental role” at all, other than to recite that the trial court, in determining whether the
parental-benefit exception applied, had found that the mother “ ‘does stand in a parental
role to her son.’ ” (Caden C., supra, 11 Cal.5th at p. 628.) Further, the holding in Caden
C. had nothing to do with whether the juvenile court or the Court of Appeal had
considered mother or the caregivers to have occupied “parental roles” (regardless of
whether that precise phrase was used) in the child’s life. Rather, the high court reversed
because the appellate court’s reasons for deciding that the juvenile court had erred in
finding the exception applicable—namely, that because the mother had failed to maintain
her sobriety or to address her mental health issues, no reasonable court could have
applied the exception—were improper. (Id. at pp. 641-642.)
To be clear, although the Supreme Court did not state that, to prove the exception,
a parent need not establish that he or she occupies a “parental role” in the child’s life, it
did conclude that “[w]hen it weighs whether termination would be detrimental, the court
is not comparing the parent’s attributes as custodial caregiver relative to those of any
potential adoptive parent(s).” (Caden C., supra, 11 Cal.5th at p. 634; see also ibid.
[“366.26 hearing is decidedly not a contest of who would be the custodial caregiver”].)
And the high court explained that “whether the parent is or is not ‘ready for the children's
return to her custody’ is not, by itself, relevant to the application of the parental-benefit
exception.” (Id. at p. 638.) The record here does not show that the juvenile court based
its decision that the exception did not apply, in whole or in part, upon the finding that
father was not ready to have the minor returned to his custody.11
11We reiterate that the juvenile court addressed at the hearing on
January 13, 2021, both father’s 388 petition and selection and implementation. Social
worker Barrientos expressed concerns about whether the minor could be safely returned
28
Fourth, the weighing function of the juvenile court in addressing the third prong is
founded on the juvenile court asking this question: “[D]oes the benefit of placement in a
new, adoptive home outweigh ‘the harm [the child] would experience from the loss of [a]
significant, positive, emotional relationship with [the parent?]’ [Citation.]” (Caden C.,
supra, 11 Cal.5th at p. 633.) Here, viewing the potential benefit of placement, the minor
had done extremely well in the 19-plus months she had been living with her prospective
adoptive family. The evidence uniformly showed that it was a stable and very loving
home. The minor had made a good adjustment, and at a very early stage, the caregivers
had indicated their willingness to adopt the minor. As time evolved, the minor became
very close to the caregivers’ goddaughter, whom the minor saw frequently. The minor
also blossomed in the role of big sister in February 2020, when the caregivers undertook
the care of a safely-surrendered baby; the minor became closely attached to her. The
minor had told social workers that she was very happy living with the caregivers, whom
she called “ ‘mommy,’ ‘mom,’ ‘dad,’ and ‘daddy,’ ” and she loved them. She had also
expressed to the social worker that she did not want to be moved. Social worker
Barrientos had observed that the minor was very attached to the caregivers, the child
viewed them as her mother and father, and they consistently met all of the child’s
physical and emotional needs. Father himself acknowledged that (1) the minor was
closely bonded with the caregivers, (2) she loved them, and (3) she would be hurt if she
were separated from them.
to father’s care based upon, inter alia, father’s substance abuse history and because he
was still in the early stages of recovery. While this evidence concerning whether father
was ready to safely assume a custodial role may have had limited utility on the issue of
the applicability of the parental-benefit exception, it was of significance to whether father
had established in the 388 petition that father’s assumption of custody was in the minor’s
best interest. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 808 [§ 388 petition
properly denied where no evidence that it was in child’s best interest that he return to
mother’s care, where there had been history of physical abuse by father and exposure to
domestic violence.)
29
Balancing the potential benefit of placement in a new, adoptive home against the
potential harm from the child’s loss of the positive, emotional relationship with father,
includes, as noted, consideration of “ ‘the strength and quality’ ” of the relationship
between the natural parent and child. (Caden C., supra, 11 Cal.5th at p. 634.) Here,
there was evidence, including opinion evidence from social worker Barrientos, that father
(1) had not been involved in the child’s medical decisions or issues, (2) had not been
involved in the minor’s educational decisions or her schoolwork, (3) was not a parent
figure in the minor’s life, and (4) was viewed by the child as being “a fun, friendly
person” to have visits with. Although father’s visits with the minor were consistent and
positive, Barrientos observed that the minor had no difficulty separating from father at
the end of visits, and that the child was not affected and was easily redirected when father
had missed scheduled video visits.
Further, although father testified that his substance abuse while he was the
custodial parent (March 2015 to November 2018) had no negative effect upon the minor,
the juvenile court disbelieved him. The court concluded that father’s testimony regarding
this issue, along with his denial of methamphetamine use despite positive test results in
February and March 2020, was not credible.12 (See In re Ana C. (2012) 204 Cal.App.4th
1317, 1329 [appellate court may not substitute its assessment of the credibility of a
witness in place of the credibility assessment of the trial court’].) This evidence that
father’s prior substance abuse had negatively impacted the minor was germane to the
court’s assessment of “ ‘the strength and quality’ ” of the parent-child relationship.
(Caden C., supra, 11 Cal.5th at p. 634.) “[I]ssues such as those that led to dependency
12 The court stated as follows: “I am still concerned about some of the statements
that [father] made today regarding the notion that his substance abuse did not have any
impact on [the minor] as well as the claim that the positive tests in February and early
March were not the result of actual use of methamphetamines, but being around people
who are using. I don’t really find those explanations to be credible. But there’s no doubt
that [father] has worked really hard.”
30
often prove relevant to the application of the exception. . . . A parent’s struggles may
mean that interaction between parent and child at least sometimes has a ‘ “negative”
effect’ on the child. [Citation.]” (Id. at p. 637.)
Barrientos opined that to the extent that the minor derived some benefit from visits
with father, they did not outweigh the benefits the child would receive from adoption and
“being in a structured, loving home environment [with people] who are committed to
providing permanency to [the minor].” The juvenile court was entitled to rely on the
opinions of social worker Barrientos, an expert qualified to testify concerning risk
assessment and permanent placement issues, in performing its balancing functions
relative to the third prong. (See In re Casey D. (1999) 70 Cal.App.4th 38, 53 [“trial court
was entitled to find the social worker credible and to give greater weight to her
assessments and testimony”], disapproved on another ground in Caden C., supra, 11
Cal.5th at p. 636, fn. 5; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-
1421.)
Father also notes—addressing his substance abuse history and his compliance with
his plan requirements during the time he received reunification services—that under
Caden C., supra, 11 Cal.5th at pages 637 to 638, “a parent’s continued struggles with
issues leading to dependency are not a categorical bar to applying the parental-benefit
exception” and “may not be used as a basis for determining the fate of the parental
relationship by assigning blame, making moral judgments about the fitness of the parent,
or rewarding or punishing a parent.” Father provides a lengthy discussion of this issue in
his opening brief. This is an accurate statement of the Supreme Court’s holding. (See
Caden C., supra, at pp. 637-638.) The point is, however, not relevant here; the record
does not show that the juvenile court based its detriment finding upon father’s continued
struggles with substance abuse or assigned blame or made moral judgments because of
any failings by father. (Cf. In re B.D. (2021) 66 Cal.App.5th 1218, 1228 [reversal of
§ 366.26 order based upon juvenile court’s having “relied heavily, if not exclusively, on
31
the fact that the parents had not completed their reunification plans and were unable to
care for the children based on their long term and continued substance abuse”].)13
In re J.D. (2021) 70 Cal.App.5th 833 (J.D.) does not suggest error in the present
case. There, in an appeal—filed before Caden C., supra, 11 Cal.5th 614 was filed (J.D.,
supra, at p. 840)—from an order terminating parental rights, the agency argued that the
mother had failed to satisfy the second and third elements of the parental-benefit
exception. (Id. at p. 854.) The appellate court in J.D. focused on the second element,
i.e., whether the mother established the existence of a beneficial relationship with the
child. In doing so, the court described significant evidence that supported a finding in
favor of the mother on the second element, including the caregivrer’s report that there
was a positive bond between mother and child (id. at p. 856); the mother having showed
love, encouragement, and support toward the child during visits (id. at pp. 856-857); the
visits having “reflected many intimate moments and exchanges” and many occasions in
which the child sought the mother’s attention (id. at 858); and the child having frequently
expressed a desire to go to the mother's house (ibid.). The J.D. court observed that the
juvenile court had “made few explicit factual findings concerning the parental benefit
exception,” noting that two findings were that the minor had “a relationship with mother
and that it [was] a positive one[ b]ut it . . . did not ‘amount to [a] parental bond.’ ” (Id. at
p. 851.) The appellate court concluded that, because “the court appear[ed] to have
applied the wrong legal standard under Caden C. in evaluating the second element” (id. at
13 We note that at the combined hearing, there was extensive testimony concerning
father’s substance abuse history, his relapses during the time he received reunification
services, the length of time before the hearing that he had abstained from use of
substances, and the progress he had made toward recovery. Regardless of their
significance to the court’s determination of whether the parental-benefit exception
applied, these were all issues of high relevance to the court’s decision on the 388 petition.
(See In re Casey D., supra, 70 Cal.App.4th at p. 53 [in denying § 388 petition, court
properly considered parent’s substance abuse history, relapses, and progress toward
recovery], disapproved on another ground in Caden C., supra, 11 Cal.5th at p. 636, fn. 5.)
32
p. 865), it was compelled to reverse and remand the case with instructions to conduct a
new 366.26 hearing applying the principles enunciated in Caden C. (id. at p. 870).
In contrast to J.D., here, we have concluded that the juvenile court found that there
was a beneficial relationship that existed between father and the minor. Therefore,
father’s claim that the court erred in finding the second element had not been established
because of the court’s reliance upon improper factors under Caden C. (i.e., that father had
not assumed a “parental role”) is without merit. Moreover, J.D. is factually
distinguishable and does not suggest in this case that the court below erred.14
As we have noted, the juvenile court was not required to state its findings in
concluding that the parental-benefit exception did not apply. Further, the reasoning
provided by the court at the conclusion of the hearing was not intended to be a recitation
of the exclusive bases for the court’s decision. Moreover, although father urges that the
juvenile court based its decision upon grounds identified in Caden C., supra, 11 Cal.5th
614 to be improper, the record does not support that conclusion. “ ‘We must indulge in
every presumption to uphold a judgment, and it is [appellant’s] burden on appeal to
affirmatively demonstrate error—it will not be presumed. [Citation.]’ [Citation.]”
14 Similarly, In re D.M. (2021) 71 Cal.App.5th 261 (D.M.) does not support
father’s claim of error. In D.M., the appellate court reversed the order terminating
parental rights and remanded the case for a new 366.26 hearing, concluding that the
juvenile court, which did not have the benefit of the Supreme Court’s decision, applied
improper factors under Caden C. in concluding that the beneficial relationship exception
was inapplicable. (Id. at p. 264.) The appellate court concluded, inter alia, that
substantial evidence did not support the juvenile court’s finding that the father had not
established the second element, the existence of a beneficial parental relationship. (Id. at
p. 270.) The J.D. court thus reversed, reasoning that “[t]he court’s express findings that
father did not act like a parent demonstrate it considered factors which Caden C. has
explained are inappropriate in determining whether the parental-benefit exception
applies. [Citation.]” (Id. at p. 271.) D.M.—which is also factually distinguishable—
does not support father’s claim of error here.
33
(People v. Tang (1997) 54 Cal.App.4th 669, 677.) Father has not demonstrated error, and
it will not be presumed here.
It is very apparent to this court that father loves his daughter very much. It is
clear, however, that the juvenile court did not abuse its discretion in concluding that
father had not established the third prong of the parental-benefit exception. The court,
after weighing the benefits to the minor in receiving a permanent adoptive home against
any detriment to the child resulting from the termination of the parental relationship,
properly found that father had not shown that the minor’s relationship to him was “so
important to the child that the security and stability of a new home wouldn’t outweigh its
loss.” (Caden C., supra, 11 Cal.5th at pp. 633-634.)
III. DISPOSITION
The juvenile court’s January 13, 2021 order denying father’s 388 petition and
order after the 366.26 hearing terminating parental rights and declaring adoption to be the
permanent plan for the minor are affirmed.
34
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
LIE, J.
In re A.L.; DFCS v. E.C.
H048761
Trial Court: Santa Clara County
Superior Court Nos.: 118JD025484
Trial Judge: The Honorable Patrick E. Tondreau
The Honorable Frederick S. Chung
Attorney for Defendant and Appellant Jacob I. Olson
E.C.. : under appointment by the Court of
Appeal for Appellant
Attorneys for Plaintiff and Respondent James R. Williams,
Santa Clara County Department of Family County Counsel
and Children Services:
Susan P. Greenberg,
Deputy County Counsel
In re A.L.; DFCS v. E.C.
H048761