In re Katherine J.

Filed 1/20/22; Modified and Certified for Pub. 2/17/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re KATHERINE J., B313191
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. DK17951)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NICHOLAS J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Linda Sun, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
The question raised by this appeal is whether the juvenile
court properly concluded that Nicholas J. (father) had failed to
prove that a “beneficial parental relationship” under Welfare and
Institutions Code section 366.26, subdivision (c)(1)(B)(i)1 existed
between him and his eight-year-old daughter, Katherine J., when
terminating his parental rights and freeing Katherine for
adoption by her maternal grandparents.
Katherine was in dependency court for five years—more
than half of her young life—while her parents struggled with
significant ongoing issues of domestic violence and substance
abuse. Following multiple failed efforts at reunification, the
juvenile court eventually terminated services and, thereafter,
terminated the parental rights of both parents,2 rejecting father’s
beneficial relationship argument.
In order to avoid termination of parental rights, the
statutory beneficial relationship exception requires a parent to
prove three elements: (1) regular visitation; (2) the existence of a
beneficial parental relationship; and (3) that severing that
relationship would be detrimental to the child. (§ 366.26, subd.
(c)(1)(B)(i).) While recognizing that father had maintained
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
2Mother’s parental rights were also terminated, but she
has not appealed.
2
regular visitation, the juvenile court concluded that these visits
created only an “incidental benefit” to Katherine, that his
ongoing instability had resulted in two separate removals of
Katherine from his care, and that father’s violent and contentious
relationship with his own parents, very recent and in the
presence of Katherine, had caused additional instability and
trauma to her.
The juvenile court’s ruling, which we review for substantial
evidence, is amply supported in the record. Among other things,
father’s substance abuse was rampant by the time of the selection
and implementation hearing. He had previously concealed a
crash caused by driving under the influence (DUI) and then
refused to implement protective measures for Katherine’s benefit.
He refused to move out of his parents’ home, which resulted in a
series of abrupt changes of Katherine’s placement. He physically
assaulted his own mother, in the presence of Katherine, resulting
in multiple facial injuries requiring medical assistance, which he
concealed and downplayed. Juxtaposed against this evidence was
solely father’s testimony about his beneficial relationship with
Katherine. But that, too, was contradicted by Katherine herself
who confided at times she feared father and did not want to
speak to him.
Father claims that part of the juvenile court’s analysis
impermissibly criticized his absence as a “parental role” in
Katherine’s life, phraseology that was shortly after the juvenile
court’s ruling cast into doubt by the Supreme Court in In re
Caden C. (2021) 11 Cal.5th 614, 640 (Caden C.) and subsequent
appellate cases. This argument is unavailing.
Caden C. prohibits juvenile courts from finding against a
beneficial relationship solely because a parent has failed to
3
surmount the issues that initially brought the child into
dependency care—a standard that few parents facing termination
of parental rights could hope to meet. (Caden C., supra, 11
Cal.5th at p. 640.) But that case does not prohibit the juvenile
court from determining, as it did here, that the negative impact of
father’s unresolved issues on Katherine were antithetical to the
kind of beneficial parental relationship required by section
366.26. Caden C. expressly approves this type of reasoning.
(Caden C., supra, at p. 637 [“A parent’s struggles may mean that
interaction between parent and child at least sometimes has a
‘ “negative” effect’ on the child”].) The juvenile court’s conclusion
on this issue is supported by substantial evidence.
Given our ruling on the beneficial relationship issue, we
reject father’s claim that he affirmatively established a beneficial
relationship by a preponderance of the evidence and we decline to
address as unnecessary father’s second argument regarding the
third prong of the beneficial relationship exception.
Accordingly, we affirm the juvenile court’s order
terminating parental rights.
FACTS AND PROCEDURAL BACKGROUND
A. Referral and Voluntary Family Maintenance Case
After 13 years of dating, father and Lisa G. (mother)
learned that they were expecting their first child. Katherine was
born in 2012. Father and mother married in 2015.
By 2016, the family was having serious problems.
According to one of their neighbors, father and mother fought
regularly; during these fights, the neighbor could hear father
“beat the tar out of the mother.”
On February 24, 2016, mother called the police after father
repeatedly punched her in the back of the head. Father was
4
arrested, and mother was granted a three-year restraining order.
Five days later, a third party called the Los Angeles County
Department of Children and Family Services (the Department)
about the incident. The caller expressed concern about father
and mother’s apparent issues with mental health and alcohol
abuse, describing father as “delirious” on the night of his arrest.
On February 26, 2016, the Department began investigating
these allegations. Mother told a social worker that father had
never physically abused Katherine, but she admitted that the
child had been present during past incidents of domestic violence.
She later said that she “c[ould]n’t even count how many times he
physically assaulted me in front of Kat[herine] and away from
her. He has pushed me while she was in my arms.”
On March 9, 2016, the Department opened a voluntary
family maintenance case with the family to address these issues.
On March 15, 2016, the Department learned that father
had plead no contest to criminal charges of domestic violence.
Father reported that on March 11, he was admitted to a
residential substance abuse program.
B. Removal, Detention, and Initial Jurisdiction Petition
While father attended residential drug treatment, he
visited Katherine several times. Mother initially retained
custody of Katherine, but ongoing concerns about her sobriety led
to Katherine’s removal on June 15, 2016. Katherine was placed
with her maternal grandmother.
On June 20, 2016, the juvenile court detained three-year-
old Katherine from her parents. That same day, the Department
filed a petition alleging jurisdiction over Katherine pursuant to
5
section 300.3 Three of these allegations involved father’s
conduct.4 Count a-1 alleged that mother and father’s history of
domestic violence placed Katherine at risk of physical harm
inflicted nonaccidentally by her parents. Count b-2 repeated the
domestic violence allegations, contending that such violence
posed a substantial risk that Katherine would be harmed as a
result of her parents’ failure to adequately protect her. Finally,
count b-3 alleged that father’s substance abuse issues rendered
him unable to care for Katherine, placing her at risk of serious
physical harm.
Father initially denied that he ever fought with or attacked
mother in Katherine’s presence. He also denied ever using
substances in Katherine’s presence. On July 27, 2016, however,
at the jurisdictional hearing, both parents pled no contest to the
(amended) petition. Accordingly, the juvenile court sustained
counts a-1 and b-3, as well as another count related to mother’s
substance abuse. Father received reunification services and
monitored weekly visitation.
C. Father’s Resumption of Custody
On September 21, 2017, the juvenile court found that
father had made substantial progress and granted him
unmonitored visitation.
3 This paragraph describes the jurisdiction petition as
amended by the juvenile court. These amendments modified the
phrasing and removed some facts from the original petition, but
did not substantially change the character of the Department’s
allegations.
4The remaining two counts concerned mother’s alleged
substance abuse and mental instability.
6
On May 15, 2018, the juvenile court again found that father
had continued making substantial progress towards alleviating
the issues causing Katherine’s removal and detention.
Accordingly, the court placed Katherine in father’s custody on the
conditions that father reside with the paternal grandparents,
continue to participate in services, and submit to drug testing.5
In early 2018, father started to show signs of regression,
falling out of compliance with drug testing. Between March 1
and April 24, father had only one negative drug test.6 Four other
tests came back provisionally negative but were too diluted to
produce definitive results.
On May 4, 2018, one day after his first overnight stay with
Katherine, the Department was notified that he had tested
positive for alcohol on March 22, 2018.
These issues persisted through the year; between June and
October 2018, father had tested positive for marijuana five times
and had failed to report for testing three times.
On June 6, 2018, father was arrested for a DUI. Because
he did not report his arrest to the Department, it did not find out
about the DUI until November 2, 2018. When questioned, father
admitted that he had gotten into an accident and had smoked
marijuana earlier that day, but said that he did not believe he
was under the influence when driving.
5 Mother’s progress had been minimal, and her
reunification services were terminated.
6Father had submitted to a separate drug testing regime
through his sober living program, and reportedly tested negative
throughout this period.
7
The police report tells a different story. When police
arrived at the scene of the incident, father was about to be
transported to the hospital. He “appear[ed] confused, his speech
was slow and slurred[,] and his eyes were bloodshot.” At the
hospital, father admitted to taking “ ‘a couple hits’ of marijuana
prior to driving,” and failed a field sobriety test. The officer
concluded that father’s intoxication had caused him to “ma[k]e
[an] unsafe turning movement” into a parked car. Father
subsequently refused to sign an affidavit agreeing that he would
not drive with Katherine in the car.
Despite these issues, father and Katherine’s relationship
remained largely positive. The Department reported that, during
monthly in-person visits, social workers observed “well
developed” bonding and “appropriate emotional attachment”
between father and Katherine. A family counselor opined that
father and Katherine “appear to have a close relationship.” At a
review hearing on November 13, 2018, the court maintained
Katherine’s placement, but ordered father not to drive while
intoxicated and not to transport Katherine without a valid
driver’s license.
Notwithstanding, father continued to struggle with his
sobriety, recording five unexcused absences from drug testing
between November 2, 2018 and February 25, 2019.
On March 5, 2019, father tested positive for cocaine.
Father’s next drug test was negative, but diluted. He did not
show up for his next five scheduled tests.
D. Second Removal and Supplemental Jurisdiction
Petition
Given the significant ongoing and unresolved substance
abuse issues and credibility concerns, the Department
8
determined that Katherine could no longer remain in paternal
grandparent’s home unless father moved out. But by March 26,
2019, father had not relocated. Instead, he called the
Department multiple times, requesting permission to continue
living in the home with Katherine. Due to father’s ongoing lack
of cooperation, Katherine was placed with her maternal
grandparents.
On March 28, 2019, the Department filed a supplemental
petition asserting that, due to father’s recurrent substance abuse
in violation of court orders, the court’s prior disposition no longer
effectively protected Katherine.
On May 30, 2019, the juvenile court once again removed
Katherine from father’s custody and ordered continued
reunification services. Thereafter, although father continued to
visit with Katherine, he did not take advantage of these court-
ordered continued services.
On July 30, 3019, the Department lost contact with father.
On August 13, 2019, Katherine’s paternal grandfather
informed a social worker that father “no longer desire[d] to have
reunification services.”
On September 19, 2019, the Department again tried to
contact father. He responded via text, stating that he was “living
in a tent” on his parents’ property and accusing the Department
of “abusing [its] power” by “put[ting] [him] in the street.” The
Department phoned him the next day, but father refused to listen
to other people; instead, he erratically continued to “blam[e] the
system” for his present circumstances. Things continued to
degrade. Father lost his job and stopped submitting to scheduled
drug tests altogether. His visits with Katherine became
“sporadic.”
9
On October 28, 2019, Katherine’s paternal grandparents
informed the Department that they were considering evicting
father from their property. Although father continued to refuse
to meet with social workers, the Department nevertheless
provided paternal grandparents with information about housing
services that could assist father.
E. Father Assaults Paternal Grandmother in Front of
Katherine
On November 7, 2019, Katherine’s maternal grandmother
reported that she had recently been informed about a physical
altercation between father and Katherine’s paternal
grandmother. The maternal grandmother stated that father had
started arguing with his mother while the pair were out shopping
at Walmart with Katherine, and that father had concluded the
argument by assaulting and injuring paternal grandmother.
Maternal grandparents expressed concern that paternal
grandparents had failed to report the incident, indicating a
potential inability to protect Katherine from their son’s violent
excesses.
Paternal grandmother later confirmed maternal
grandmother’s report. The argument began as a disagreement
over Katherine’s level in her gymnastics class. As father became
increasingly upset, paternal grandmother tried to walk away,
holding Katherine’s hand in one hand and shopping bags in the
other. Father walked up from behind her and pushed paternal
grandmother to the ground, causing her to fall face first onto the
pavement. She bled from her nose and face, and sustained a
black eye. Paternal grandmother said that father apologized, but
quickly “disappear[ed] because he knew police were in route.”
10
When police arrived, Katherine told them that she was
scared by father’s behavior and did not want to speak to father.
Her therapist said that although Katherine brought up the
incident during therapy, she had not wanted to talk about it.
Paternal grandmother said that Katherine had a bad dream
about the incident, and maternal grandparents later reported
that Katherine refused to return to the Walmart.
As of April 21, 2020, Katherine had enrolled in additional
mental health services to help her overcome her trauma.
When the Department interviewed father about the
incident, he behaved erratically. The interviewer noted that
father could not sustain eye contact, appeared wide-eyed,
stuttered, and seemed to struggle to speak. He admitted to
“slightly pushing” paternal grandmother, but denied that he
pushed her hard enough for her to fall. He felt that paternal
grandmother “must have tripped.” Father also denied fleeing the
scene, and instead claimed to leave after paternal grandmother
told him to. Father claimed that he desperately wanted to
reunify with Katherine, but he declined to submit to an on-
demand drug test when asked.
After Katherine’s maternal grandmother brought this
incident to the Department’s attention, all grandparents
attended a child and family therapy meeting. At the meeting,
paternal grandmother “minimized the incident[,] stating [that]
the child was not hurt and the child only had one bad dream
about the incident.” However, paternal grandmother agreed to
obtain a restraining order against father.
Paternal grandparents also agreed to disconnect a voice-
activated communication device from Katherine’s room in their
home to prevent father from speaking to her without a monitor
11
present. These changes disrupted father’s visitation schedule, as
paternal grandfather was now father’s only available monitor
and meetings could no longer be held in the family home.
F. Termination of Reunification Services
Because father had fallen so far out of compliance with his
case plan, the Department recommended termination of
reunification services and a permanent plan of adoption by
maternal grandparents, with whom Katherine had been placed
for three of the last four years.
On December 23, 2019, the juvenile court adopted the
Department’s recommendation. Thereafter, father resumed
weekly supervised visits with Katherine at the Department’s
offices. Katherine told her maternal grandmother that the visits
were going okay.
By January 2021, Katherine and father were having visits
at public parks, and Katherine told social workers that the visits
were good.
Father objected to Katherine’s potential adoption by
maternal grandparents, telling the Department that he wanted
his parents to adopt her instead. He feared that maternal
grandmother, with whom he did not have a good relationship,
would prevent him from seeing Katherine. He believed that
maternal grandmother was “mentally unstable,” and accused her
of being “negative” towards Katherine. However, he was not able
to articulate any actual safety concerns.
G. Termination of Parental Rights
On May 4, 2021, the juvenile court held a section 366.26
hearing. Father argued that his parental rights should be
protected by the beneficial relationship exception to termination.
He testified about his strong attachment to Katherine, saying
12
that he had never missed a meeting with her and that “seeing
[Katherine] every week” was “the highlight of [his] life.” He went
so far as to say that “there’s never been a time that we’ve had a
bad time or anything like that.” He talked at length about the 10
months when he had lived with Katherine and his parents,
discussing how involved he was in every aspect of her daily life.
He described himself as Katherine’s “primary parent” during that
time.
He also told the court that he was “the only parent in
[Katherine’s] life, so it means a lot to her whenever [they] see
each other.” He described how Katherine “comes running up”
and “jumps in [his] arms” when he arrives for a visit, and “gives
[him] a big hug and says she loves [him] and that she misses
[him] and that she can’t wait to see [him]” when he has to leave.
Father thought that it was “tough” for both him and Katherine
“when [they] don’t see each other for a few days[,] even.” He
opined that terminating his parental rights “would have a
negative effect on [Katherine] and that she would feel like she
was losing something if her father would no longer be in her life.”
Both the Department and Katherine’s counsel argued that
the beneficial relationship exception should not apply because
father failed to prove that he had a strong, beneficial relationship
with Katherine. Specifically, they argued that father had not
played a parental role in Katherine’s life. Father’s counsel
disagreed, arguing that father had occupied a parental role for
Katherine to the maximum extent allowed by the judicial
constraints on their relationship.
Ultimately, the juvenile court held that father “ha[d] not
been able to establish that his regular visits created benefit to the
child,” aside from the “incidental benefit” necessarily conferred by
13
a parent’s interaction with a child. The court discussed how “the
instability that [father] created . . . caused the child to be taken
away from him” twice, resulting in Katherine moving back and
forth between placements for much of her young life. It also
stated that father had “created a violent and contentious
relationship between himself and his own parents” leading to a
restraining order that caused additional instability by disrupting
Katherine’s visitation schedule. The court concluded that father
“has not occupied a significant parental role and that, even if
there is a beneficial relationship, there is no compelling reason to
determine that the termination of parental rights would be
detrimental” such that they outweighed the benefits of
permanency and security that would be gained through adoption.
Accordingly, the court terminated father’s parental rights.
Father timely appealed.
DISCUSSION
A. Relevant Law and General Standard of Review
“ ‘At a permanency plan hearing, the court may order one of
three alternatives: adoption, guardianship or long-term foster
care. [Citation.] If the dependent child is adoptable, there is a
strong preference for adoption over the alternative permanency
plans.’ [Citation.]” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224.)
In other words, if the trial court finds that the child is adoptable,
it must terminate parental rights unless a statutory exception
applies. (§ 366.26, subds. (b)(1) & (c)(1).)
One of these exceptions is the beneficial relationship
exception, which applies if “[t]he court finds a compelling reason
for determining that termination would be detrimental to the
child” because “[t]he parents have maintained regular visitation
14
and contact with the child and the child would benefit from
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
To successfully invoke this exception, the moving parent
must establish, by a preponderance of the evidence, each of the
following elements: (1) that the parent has regularly visited with
the child; (2) that the child would benefit from continuing the
relationship; and (3) that terminating the relationship would be
detrimental to the child. (See § 366.26, subd. (c)(1)(B)(i); Evid.
Code, § 115.)
Mere weeks after the juvenile court issued its order
terminating father’s parental rights, our Supreme Court
published an opinion clarifying how juvenile and appellate courts
should interpret and apply the parental benefit exception.
(Caden C., supra, 11 Cal.5th at p. 640.) The court discussed each
element of the parental benefit exception in detail. Because
father’s arguments heavily rely on Caden C., we will summarize
its holdings briefly here.
“The first element [of the exception]—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.)
The second element, in which the court must determine
whether the child would benefit from continuing the relationship
with her parent, is more complicated. “[T]he 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.]” (Caden C.,
supra, 11 Cal.5th at p. 632.) “[C]ourts often consider how
15
children feel about, interact with, look to, or talk about their
parents.” (Ibid.) Caden C. instructs us that “it is not necessary—
even if it were possible—to calibrate a precise ‘quantitative
measurement of the specific amount of “comfort, nourishment or
physical care” [the parent] provided during [his or] her weekly
visits.’ [Citation.]” (Ibid.) Expert opinions or bonding studies
provided by psychologists who have observed and/or reviewed the
parent-child relationship are often “an important source of
information about the psychological importance of the
relationship for the child.” (Id. at pp. 632-633, fn. omitted.)
Ultimately, the court’s role is to decide whether the child has a
“ ‘significant, positive, emotional relationship with [the parent.]’ ”
(Id. at p. 633)
The third and final element asks the court to ascertain
whether severing parental ties—and thus “terminating [the]
parental relationship”—would be detrimental to the child.7
(Caden C., supra, 11 Cal.5th at p. 633.) “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.” (Ibid.) Because any harm caused by loss of this
relationship may be significantly mitigated by the child’s
adoption into a stable, loving home, the court must then perform
a delicate balancing act. The “subtle, case-specific inquiry [that]
the statute asks courts to perform [is]: does the benefit of
7 The second and third elements of the beneficial
relationship exception significantly overlap. For example,
evidence that terminating the parental relation would cause
harm indicates that the child would lose important relational
benefits if severed from her parent.
16
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?]’ ” (Ibid.) “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.” (Id. at pp. 633-634.)
In addition to these substantive clarifications, Caden C.
also establishes a hybrid standard of review for the beneficial
relationship exception. The first two elements, which require the
juvenile court to “make a series of factual determinations”
regarding visitation and the parent-child relationship, “are
properly reviewed for substantial evidence.” (Caden C., supra, 11
Cal.5th at p. 640.) These determinations should “be upheld if . . .
supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
But “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.” (Caden C., supra, 11
Cal.5th at p. 640.) Accordingly, we will not disturb the juvenile
court’s decision unless it “exceed[s] the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
17
B. The Trial Court’s Determination that Father Failed
to Establish the Beneficial Relationship Exception Is
Supported by Substantial Evidence
Father’s primary argument relates to the second element of
the beneficial relationship exception. He claims that the juvenile
court unreasonably discounted the benefits Katherine gained
from her relationship with father because he could not occupy a
traditional parental role in Katherine’s life. Father contends that
Caden C. definitively rejects this approach to analyzing the
beneficial relationship exception. He therefore asks that we
remand this case so that the juvenile court may reconsider
father’s evidence under the correct standard.
Courts have long struggled to apply the beneficial
relationship exception to the complex sets of facts that inevitably
accompany decisions about terminating parental rights.
Analyzing the second element of the exception—whether a child
would benefit from a continued relationship with her parent—can
be particularly challenging. A parent facing termination of
parental rights has necessarily failed to reunify with his child,
presumably because he has not sufficiently overcome the issues
leading to his child’s dependency. Therefore, as Caden C. holds,
it is paradoxical to conclude “that the [beneficial relationship]
exception can only apply when the parent has made sufficient
progress in addressing the problems that led to dependency.”
(Caden C., supra, 11 Cal.5th at p. 637.) Courts must keep in
mind that the benefits a child derives from her relationship with
such a parent, whose presence in the child’s life is often limited to
supervised visitation, are typically much subtler than the
benefits the child could expect from a custodial parent.
18
Yet the beneficial relationship exception demands
something more than the incidental benefit a child gains from
any amount of positive contact with her natural parent. (In re
Dakota H., supra, 132 Cal.App.4th at p. 229 [a parent must
demonstrate something “more than frequent and loving contact,
an emotional bond with the child, or pleasant visits”]; In re Angel
B. (2002) 97 Cal.App.4th 454, 468 [“for the exception to apply, the
emotional attachment between the child and parent must be that
of parent and child rather than one of being a friendly visitor or
friendly nonparent relative, such as an aunt”].) The exception
requires the existence “ ‘of a substantial, positive emotional
attachment’ ” between parent and child. (Caden C., supra, 11
Cal.5th at p. 632, quoting In re Autumn H. (1994) 27 Cal.App.4th
567, 575.)
One popular way in which courts have tried to discern the
presence of “the mysterious X factor” that transforms a person
from a mere “friendly visitor” to a parent with “ ‘a substantial,
positive, emotional attachment’ ” to his child is by analyzing
whether the person occupies a “parental role” in the child’s life.
(In re L.A.-O. (Dec. 27, 2021, E077196) ___ Cal.App.5th ___, ___
[2021 WL 6112442 at p. *7].) However, this analytic tool has the
potential to create more problems than it solves.
“[T]he words ‘parental role,’ standing alone, can have
several different meanings,” ranging from “the person whom the
child regards as his or her parent,” the person who demonstrates
the “nurturing, supportive, and guiding” characteristics
traditionally associated with “good” parenting, or “giving parental
care” through such activities as “changing diapers, providing toys
and food, and helping with homework.” (In re L.A.-O, supra, ___
Cal.App.5th at p. ___ [2021 WL 6112442 at p. *7].) While each of
19
these definitions may be useful as factors to determine the
strength of a parent’s relationship with their child, none is
dispositive on its own. Therefore, problems arise when juvenile
courts use the phrase “parental role” without explaining which
meaning(s) they impart to it.
We agree with father that Caden C. requires juvenile
courts to do more than summarily state that a parent has not
occupied a parental role in his child’s life. (See In re L.A.-O.,
supra, ___ Cal.App.5th at p. ___ [2021 WL 6112442 at p. *8]
[reversing termination of parental rights when the juvenile
court’s “terse” determination that the parents “ ‘ha[d] not acted in
a parental role in a long time’ ” could have been interpreted as an
impermissibly narrow evaluation of the parent-child
relationship]; In re D.M. (2021) 71 Cal.App.5th 261, 269
[reversing termination of parental rights when the juvenile
court’s analysis amount to a comparison of the “ ‘parent’s
attributes as custodial caregiver relative to those of any potential
adoptive parent(s)’ ”].) But we do not agree that the juvenile
court committed this error here.
In rejecting father’s arguments for the beneficial
relationship exception, the juvenile court concluded that father
“has not occupied a significant parental role.” Critically, it also
explained what it meant by this. The court determined that
father’s unresolved issues with substance abuse and violence had
consistently destabilized Katherine’s life for years, fatally
compromising father’s attempts to maintain a strong, positive
emotional attachment with her. (Caden C., supra, 11 Cal.5th at
p. 638 [“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,” including the question of
20
whether “the child [would] benefit from continuing the
relationship”].)
The record amply supports this finding. For example, by
the time of the section 366.26 hearing, father had essentially
abandoned any attempt at maintaining sobriety. When he was
arrested for a DUI after crashing into a parked car—an arrest
which he concealed from the Department for months—father
refused to agree that he would not drive with Katherine in the
car. This demonstrates a troubling lack of personal responsibility
as well as a lack of parental concern for Katherine’s safety.
When father later tested positive for cocaine use, he stopped
showing up for drug tests altogether. He then refused to move
out of the family’s home, causing Katherine to be sent back to her
maternal grandmother’s home less than one year after moving in
with father and her paternal grandparents. (Compare In re S.B.
(2008) 164 Cal.App.4th 289, 294-295, 298 [reversing the juvenile
court’s termination of parental rights where the father
acknowledged that his drug use was inexcusable, fully complied
with his case plan, remained drug free, and regularly visited his
daughter].)
Father maintained that he never used drugs around
Katherine, and admittedly, the record of his pleasant visits with
Katherine largely corroborates this claim. However, father
ignores one bright red flag amidst all his smooth interactions
with Katherine. The record shows that father once became so
angry with his mother that he pushed her to the ground, in
public, while she was holding Katherine’s hand. The fall was not
trivial; paternal grandmother sustained multiple injuries to her
face which needed to be treated by her personal physician. The
rapidity with which father escalated from a minor disagreement
21
about Katherine’s progress in gymnastics class to physical
violence belies father’s assertion that “there’s never been a time
that [Katherine and he] [ha]ve had a bad time or anything like
that.” Troublingly, the incident is reminiscent of father’s first
reported incidents of domestic violence, when his substance abuse
led him to lash out and beat his wife, even when she was holding
Katherine.
Father and his parents initially concealed the altercation
from the Department; after maternal grandmother reported it,
father and paternal grandmother downplayed the severity of the
incident and its effect on Katherine. Again, this apparent lack of
concern for Katherine’s well-being contradicts father’s claims of a
substantial, positive emotional attachment.
The trial court specifically cited this incident of recent
violence as evidence that father had “created a violent and
contentious relationship between himself and his own parents”
causing additional instability for Katherine by disrupting father’s
visitation schedule, to say nothing of the trauma she suffered
from witnessing her father injure her grandmother. All in all,
these problems not only prevented father from taking Katherine
back into his custody, but they also traumatized Katherine,
significantly impacting the quality of the relationship with her
father.
In opposition to this evidence, and in an effort to
demonstrate that his relationship with Katherine had thrived in
spite of these issues, father proffered solely his own testimony,
consisting largely of his opinions about the daughter-father
relationship.8 (Compare with Caden C., supra, 11 Cal.5th at
8 We do not miss the irony in father’s protestations about
the juvenile court’s use of the “parental role” analysis, while at
22
p. 632 [“courts often consider how children feel about, interact
with, look to, or talk about their parents”] (italics added).)
Father’s testimony regarding his relationship with
Katherine was contradicted by recent evidence of the times
Katherine told others that she was “afraid” of father and that she
did not want to speak to him following incidents like the one at
Walmart. (Compare with In re B.D., supra, 66 Cal.App.5th at
pp. 1228-1229 [reversing termination when the juvenile court had
no evidence to support a finding that there was not a substantial,
positive emotional attachment to parents, particularly in light of
parent’s testimony which, if credited, indicated a strong
attachment].)
Father also adduced no expert testimony or current
opinions (for example from social workers or therapists) who
might have supported the strength of his relationship with
Katherine. (Compare Caden C., supra, 11 Cal.5th at pp. 627-628
[relying on bonding study from mother’s expert when concluding
that severing the parental relationship would be detrimental to
the child]; In re S.B., supra, 164 Cal.App.4th at pp. 295-296
[relying in part on a bonding study which indicated a strong bond
between father and child].)9
the same time dedicating much of his argument to explaining
how he played traditional parenting roles in Katherine’s life. In
some sense father is tacitly acknowledging that whether he
behaved as Katherine’s parent is probative of the strength of
their parent-child relationship.
9 We do not suggest that father was required to submit a
bonding study to prove the beneficial relationship exception.
This is but one example of evidence that could have bolstered
father’s claims of Katherine’s allegedly strong attachment.
23
Although the juvenile court acknowledged that father and
Katherine have maintained a warm and loving relationship,
there is substantial evidence in the record supporting the juvenile
court’s conclusion that father’s failure to resolve the substance
abuse and violence issues that led to and existed throughout
Katherine’s five-year odyssey in dependency court diminished
any benefits she derived from a continuing relationship with him,
aside from the incidental benefit necessarily conferred by a
parent’s fun, playful interactions with his child.10
10 Given our primary ruling on the second prong, we
necessarily reject father’s argument that the beneficial
relationship exception applies as a matter of law. Suffice it to say
that, when reviewing factual determinations for substantial
evidence, we are not permitted to “resolve evidentiary conflicts”
in favor of the movant, even if “substantial evidence to the
contrary also exists and the trial court might have reached a
different result had it believed other evidence.” (In re Dakota H.,
supra, 132 Cal.App.4th at p. 228.)
Father also argues that the juvenile court erroneously
required him to prove that a “compelling reason” other than his
relationship with Katherine supported continuation of his
paternal rights. However, a parent must prove all three
components of the beneficial relationship exception. A failure of
proof on any one of them is fatal. (In re Breanna S. (2017) 8
Cal.App.5th 636, 646-647, disapproved on other grounds in
Caden C., supra, 11 Cal.5th at pp. 637, fn. 6, 638, fn. 7; compare
In re D.M., supra, 71 Cal.App.5th at p. 271 [remand appropriate
where primary source of error is in the third element of the
analysis, it thus being unclear “how the [juvenile] court would
have exercised its discretion” to balance the potential detriment
of termination against the potential benefits of adoption without
“the benefit of the Caden C. analysis”].) Therefore, in light of our
ruling on the second prong, we need not address father’s
24
DISPOSITION
The juvenile court’s order is affirmed.
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
“compelling reason” contention. (In re Daniel G. (2004) 120
Cal.App.4th 824, 833, fn. 4 [when an appeal can be definitively
resolved on one basis, the reviewing court need not reach an
appellant’s alternative contentions].)
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
25
Filed 2/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re KATHERINE J., B313191
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. DK17951)
LOS ANGELES COUNTY ORDER MODIFYING
DEPARTMENT OF CHILDREN OPINION AND DENYING
AND FAMILY SERVICES, REHEARING, CERTIFYING
OPINION FOR PUBLICATION;
Plaintiff and Respondent, NO CHANGE IN JUDGMENT
v.
NICHOLAS J.,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed on January 20, 2022, be
modified as follows:
1. On page 3, last sentence of the first full paragraph,
beginning with “But that” and ending with “speak to him” is
revised to read as follows:
But that, too, was contradicted by Katherine herself who,
after witnessing father attack her grandmother, confided
that she feared father and did not want to speak to him.
2. On page 23, first sentence of the first full paragraph,
beginning with “Father’s testimony” and ending with “Walmart”
is revised to read as follows:
Father’s testimony regarding his relationship with
Katherine was contradicted by recent evidence of Katherine
telling others that she was “afraid” of father and that she
did not want to speak to him following the Walmart
incident.
There is no change in the judgment. Appellant’s petition
for rehearing is denied.
The opinion in the above-entitled matter filed on
January 20, 2022, was not certified for publication in the Official
Reports. For good cause it now appears that the opinion should
be published in the Official Reports and it is so ordered.
____________________________________________________________
CRANDALL, J.* ROTHSCHILD, P. J. CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
2