In re R.H. CA2/3

Filed 2/28/22 In re R.H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re R.H., et al., Persons Coming B311824
Under the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No.
17CCJP00006ABC)
Plaintiff and Respondent,
v.
L.G., et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Linda Sun, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant L.G.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant E.H.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and David Michael Miller, Deputy
County Counsel for Plaintiff and Respondent.
_________________________
L.G. (mother) and E.H. (father) appeal from orders
terminating their parental rights to their children under Welfare
and Institutions Code section 366.26.1 They contend that the
juvenile court erred in finding that mother had not established
that the beneficial parental relationship exception to adoption
applied.2 We disagree and affirm the orders.
BACKGROUND
I. Detention and petitions
The family consists of mother, father, and their three
children, R.H. (born July 2012), Ev.H. (born January 2015), and
Ernesto (born January 2016).
In 2017, the family came to the attention of the Los Angeles
Department of Children and Family Services (DCFS) when
mother gave birth to a premature child who died shortly
thereafter. Mother tested positive for methamphetamine.
Father, who had separated from mother, called her a “ ‘ghost,’ ”
appearing and disappearing at whim from their lives. He said
she did not want to be a mother and had left the two oldest
children with him.
1All further undesignated statutory references are to the Welfare
and Institutions Code.
2Father joins mother’s argument but states only that if the order
terminating her parental rights is reversed, the order
terminating his parental rights also must be reversed. (See, e.g.,
In re Mary G. (2007) 151 Cal.App.4th 184, 208 [court may not
terminate rights of only one parent].) We therefore focus on
mother.
2
In September 2017, DCFS filed a petition under section 300
alleging that parents’ use of illicit substances rendered them
unable to care for the children, placed the children at risk of
serious physical harm, and constituted a failure to protect (§ 300,
subd. (b)). The juvenile court detained the children, released
them to father, and ordered visits with mother at least twice a
week for two hours each visit.
However, by the time of the October 2017 adjudication
hearing, mother had visited the children just once. At the
hearing, the juvenile court dismissed the allegations against
father, sustained the allegations against mother, declared the
children dependents of the court, removed them from mother and
placed with them father under DCFS supervision, and ordered
family maintenance and reunification services.
Thereafter, mother called the children at Christmas but
otherwise had no contact with them from October 2017 through
March 2018.
Then, in April 2018, DCFS filed a section 342 petition as to
father based on allegations that he abused marijuana and that
his mental and emotional problems rendered him incapable of
caring for the children. The juvenile court sustained the petition
and removed the children from father. The children were placed
with a foster family and have remained with them throughout
these proceedings.
Mother had been in contact with DCFS since at least the
end of May 2018. She wanted to reunify with the children and
was trying to comply with her case plan by agreeing to drug test,
completing parenting classes, attending domestic violence classes
and counseling, and entering an inpatient drug treatment center.
Mother had at least 10 visits with the children from the end of
3
May to July 27, 2018. The children’s caregivers reported that the
children sought mother’s attention during the visits and were
happy during them. Mother played with the children and was
affectionate. She also called four to five times a week to check on
the children.
In August 2018, the juvenile court ordered continued family
maintenance services.
II. November 2018: the six-month review hearing
According to a report prepared for the six-month review
hearing, the children had adjusted to their new home and were
doing well. Mother’s visits also were going well. R.H. looked
forward to visits with her parents, whom she said she loved. She
also said she wanted to go home. Mother remained enrolled in
various programs but had been discharged from her residential
treatment facility because she helped another client fake a
negative drug test. Her random drug tests had been negative
since July 2018. Mother had completed a parenting class that
she said gave her skills to meet the children’s needs.
The juvenile court found that parents had made partial
progress in their case plans and ordered continued family
reunification services.
III. May 2019: the 12-month review hearing
DCFS reported for the 12-month review hearing that the
children remained stable in their placement, where their needs
were being met, and they were strongly bonded to their
caregivers, who wanted to adopt them. R.H. had a positive bond
with her foster mother. Ev.H. had a strong bond with foster
father, and a pillow made from one of his shirts helped her sleep.
However, Ev.H. had some regression by acting out, which
4
occurred after visits with parents. All three children were in
therapy, which was helping to reduce anxiety.
Mother continued to address her substance abuse issues.
She also had completed another parenting class. She consistently
visited. R.H. said she liked visiting her parents, and Ernesto said
he was happy to see his “ ‘daddy and mommy.’ ” However, the
caregivers reported that the children got out of control during
visits, but their behavior changed when they got into the car.
The caregivers also said that the children “are always waiting to
see their parents.”
The juvenile court found that parents were in partial
compliance with their case plans, ordered continued reunification
services, and liberalized visitation to unmonitored visits two
hours a week plus an additional monitored visit.
IV. October 2019: the 18-month review hearing
At the 18-month review hearing, the juvenile court found
that parents were still only in partial compliance with their case
plans.3 As to mother, the juvenile court noted that she had one
positive drug test in June 2019 and two in August 2019, she was
on only the first step of her 12-step program, she was still in
individual counseling, and she had been discharged from her
sober living arrangement for several months while incarcerated
in June and July 2019. And while the quality of her visits with
the children was “fine,” their quantity was inconsistent. The
juvenile court therefore terminated reunification services as to
3The minute order states that mother’s compliance with her case
plan was “minimal.”
5
both parents and denied their request for a bonding study and set
a termination hearing pursuant to section 366.26.4
V. November 2019 to April 2021 and section 366.26
permanency planning hearing
The section 366.26 hearing was delayed until April 2021,
due primarily to the COVID-19 pandemic. In the meantime, the
juvenile court changed parents’ visits from unmonitored to
monitored in March 2020 based on a domestic violence incident in
which father hit mother. Although mother obtained a restraining
order, she let father have access to the children during a visit
with them. Also, the caregivers attributed negative changes to
R.H.’s behavior to unmonitored visits with parents. R.H. also
said that one of her parents told her not to say anything about
what happened during visits.
According to reports prepared for the section 366.26
hearing, the children remained bonded to their prospective
adoptive family, and the children were bonded to each other.
R.H. said she wanted to remain with the caregivers, and Ev.H.
and Ernesto called them mommy and daddy. The children made
other ambiguous statements; for example, R.H. said both that she
wanted to “ ‘go live with my parents’ ” and “I like to be here with
[foster mother].” Ev.H. said she liked being with her foster
mother because “ ‘she is the Best Mom just as my real Mom,’ ”
Ernesto said, “ ‘I like to be here with [foster mother] because I
love her.’ ” He also said he also wanted to “ ‘live in the visit
because my mom is there.’ ”
4DCFS and the children’s counsel agreed that reunification
services should be terminated.
6
Parents had consistent virtual and telephonic visits with
the children, which the caregivers said were going well. Mother
was able to redirect the children and maintain quality visits.
Sometimes, the children did not want to speak to mother when
she called, so R.H. would talk to her because she felt bad that the
others would not. When in-person visits resumed in March 2021,
the children appeared to be happy, and mother played games
with them. The children said that mother told them she loved
them. Ernesto said he felt good during a March 2021 visit with
his parents, Ev.H. said she was happy to see her mom, and R.H.
said she felt good and happy after the visit and wanted to go back
with my “family.”
At the hearing, parents argued that the beneficial parental
relationship exception to adoption applied (§ 366.26,
subd. (c)(1)(B)(i).)5 In opposition to that argument, the children’s
counsel described the parent-child visits as friendly in nature but
otherwise “not parental at all,” and parents were uninvolved with
any medical or educational issues. Counsel therefore aligned
with DCFS that the beneficial parental relationship exception did
not apply.
The juvenile court agreed, stating that while a loving
interaction between a parent and child “will always confer some
incidental benefit, [ ] that interaction and the frequent
relationship is not enough to overcome the need for stability. The
parent must also occupy a parental role and not just a friendly
visit, and that parental role is absent in this case.” The juvenile
5Before the hearing, mother and father had filed multiple section
388 petitions arguing that their circumstances had changed such
that reunification services should be reinstated, but the juvenile
court denied the petitions.
7
court therefore found that the children were adoptable, that
parents had not established a bond with the children, and that
any relationship parents had with the children was outweighed
by the physical and emotional benefit the children would get from
the permanency and stability adoption would provide. Finally,
returning the children to mother and father would be
detrimental. The juvenile court terminated parental rights.
DISCUSSION
I. The beneficial parental relationship exception and
standard of review
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court has decided to end reunification services,
adoption is the legislative preference. (§ 366.26, subd. (b)(1).)
When the juvenile court finds by clear and convincing evidence
the child is likely to be adopted, the statute mandates
terminating parental rights unless the parent can demonstrate
an exception applies. (§ 366.26, subd. (c)(1); In re Caden C.
(2021) 11 Cal.5th 614, 625.)
The exception at issue is the beneficial parental
relationship, which asks whether any harm from severing the
parent-child relationship outweighs the benefit of placing the
child in an adoptive home. (In re Caden C., supra, 11 Cal.5th at
p. 632.) The parent bears the burden of establishing by a
preponderance of the evidence (1) regular visitation and contact
with the children, (2) a relationship, the continuance of which
would benefit the children, and (3) terminating parental rights
would be detrimental to the children. (§ 366.26, subd. (c)(1)(B)(i);
In re Caden C., at p. 631.)
8
The first element requires consistent visitation. (In re
Caden C., supra, 11 Cal.5th at p. 632.) The second element
involves numerous factors, such as the child’s age, the portion of
the child’s life spent in the parent’s custody, the positive or
negative effect of interaction between parent and child, the
child’s specific needs, and how the child feels about and interacts
with, looks to, or talks to the parent. (Ibid.; In re Autumn H.
(1994) 27 Cal.App.4th 567, 575–576.) The third element
considers how losing the parental relationship would affect the
child. (In re Caden C., at p. 633.) Would the benefit of a new
adoptive home outweigh the harm to the child from losing a
significant, positive relationship with the parent? (Id. at
pp. 633–634.) The overall inquiry thus is a “subtle enterprise.”
(Id. at p. 634.)6
The juvenile court’s undertaking of this enterprise in In re
Caden C. led it to conclude that the mother had met her burden
of proving the exception’s applicability, but the Court of Appeal
reversed. On review, the Supreme Court clarified that the first
two elements of the exception are reviewed for substantial
evidence. (In re Caden C., supra, 11 Cal.5th at p. 639.) The third
element involves factual determinations reviewed for substantial
evidence, but the ultimate decision, whether terminating
6In re Caden C., supra, 11 Cal.5th at page 637, clarified that a
parent’s struggles with the issues causing the dependency are not
a categorial bar to applying the exception but are relevant to its
application where, for example, such struggles cause interaction
with the child to be negative. Neither the juvenile court below
nor DCFS on appeal relied on mother’s struggles with drug abuse
to justify the orders in this case.
9
parental rights would be detrimental to the child, is reviewed for
abuse of discretion. (Id. at p. 640.)
In contrast to In re Caden C., the juvenile court here found
that mother did not carry her burden of proving the exception. In
such a case, where the trier of fact has “expressly or implicitly
concluded that the party with the burden of proof did not carry
the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on
(1) the evidence supporting the party who had no burden of proof,
and (2) the trier of fact’s unassailable conclusion that the party
with the burden did not prove one or more elements of the case
(Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733,
742 [trier of fact is the exclusive judge of the credibility of the
evidence and can reject evidence as unworthy of credence]; Hicks
v. Reis (1943) 21 Cal.2d 654, 659–660 [trial court is entitled to
reject in toto the testimony of a witness, even if that testimony is
uncontradicted]).” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
overruled on other grounds by Conservatorship of O.B. (2020) 9
Cal.5th 989.) Where, as here, the issue turns on a failure of
proof, we determine whether the evidence compels a finding in
appellant’s favor as a matter of law, asking whether that
evidence was uncontradicted and unimpeached and of such a
character and weight as to leave no room for a judicial
determination it was insufficient to support a finding. (In re I.W.,
at p. 1528.)
10
II. Visitation
DCFS has conceded that mother satisfied the first element,
regular visitation. We accept that concession and turn to the
remaining elements of the exception.7
III. Parent-child relationship
The second element required mother to establish she had a
relationship with the children, the continuance of which would
benefit the children. (In re Caden C., supra, 11 Cal.5th at p. 632.)
The children must have a substantial, positive, emotional
attachment to her. (Id. at p. 636.) The attachment must be
significant and something more than the incidental benefit that
interaction between a parent and child will always confer. (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.) To make this
showing, mother had to produce evidence about how long she
cared for the children, the children’s needs, the positive or
negative effect of her interaction with the children, and how the
children feel about and interact with her. (In re Caden C., at
p. 632.) As we now explain, mother’s showing on these factors
was inadequate.
When dependency proceedings were instituted in 2017,
R.H. was five years old, Ev.H. was two years old, and Ernesto
was one year old. By the time of the section 366.26 hearing, the
children had lived with their caregivers for three years. Ernesto
had thus spent the majority of his life outside his mother’s
custody. Ev.H. had spent more time—a year more—with her
caregivers than with mother. Only R.H. had lived a greater
7In view of that concession, we have not described the frequency
and duration of mother’s visitations in detail.
11
portion of her life with mother. Even so, there was evidence that
mother was not very present before the children became
dependents of the court, because father described mother as a
“ghost,” disappearing in and out of her children’s lives and
leaving R.H. and Ev.H. with father. Additionally, for the first six
months of the dependency proceeding, mother remained virtually
absent from the children’s lives.
As for the children’s needs, they had all initially required
therapy to help them with anxiety and separation issues. But
those needs had resolved by the time of the section 366.26
hearing. The children had no special needs, and the caregivers
met any needs the children had. Thus, there is no evidence that
the children had some need that only mother could provide.
Next, although interaction between the children and
mother was positive, there was also evidence it was not wholly so.
The caregivers reported that sometimes the children were out of
control during parental visits but would calm down once they got
into the caregivers’ car. And although we understand the
difficulties of telephonic and virtual visitation between a parent
and child, especially younger ones, the two younger children at
times did not want to talk to mother, and the record suggests
that R.H. sometimes talked to mother so that mother would not
feel bad about the other children ignoring her. Thus, to some
slight extent, this shows that the children did not crave or seek
mother’s attention.
Moreover, there is scant evidence about the essential
nature of mother’s interactions with the children and how the
children felt about her. To be sure, their interactions as a
general matter were positive and affectionate, and the children
made loving statements about mother, as she did about them.
12
However, when we say “essential” we are referring to evidence
about whether and in what ways the children looked to mother,
talked to her, and interacted with her. (See, e.g., In re Caden C.,
supra, 11 Cal.5th at p. 632.) Stated otherwise, is there any
evidence that mother and the children interacted in ways beyond
what might occur during a playful visit? The closest example of
evidence that speaks to the point we are making is that a pillow
made from a shirt helped Ev.H. sleep—but that pillow was made
from the foster father’s shirt, not mother’s shirt. This record
contains no similar evidence showing, for example, that any of
the children ever turned to mother to comfort them. Indeed, the
record is bereft of statements from even mother about such
positive, intimate interactions.8
Mother therefore has not shown that a different result is
compelled as a matter of law. Rather, what we can glean about
mother’s relationship with the children from this record is, as the
juvenile court suggested, it was akin to that of a friendly visitor.
Unlike in In re Caden C., supra, 11 Cal.5th at page 627, we do
not have the benefit of a bonding study or expert psychologists’
testimony. While the juvenile court denied mother’s requests for
a bonding study—a request trial courts should “seriously
consider”—that ruling is not before us, and the juvenile court told
8Mother did not testify at the section 366.26 hearing. She did
testify at the 18-month review hearing, but her testimony focused
on her progress in her case plan and that the children could live
at her treatment facility.
13
mother she could obtain one on her own.9 (See, e.g., id. at p. 633,
fn. 4 [trial courts should “seriously consider” allowing bonding
study or relevant expert testimony where appropriate].) At most,
the evidence shows that interaction between mother and the
children conferred “some incidental benefit” but stopped short of
that “significant attachment” resulting from a parent’s attention
to the children’s “needs for physical care, nourishment, comfort,
affection and stimulation.” (In re Autumn H., supra, 27
Cal.App.4th at p. 575.)
Given this, we are unpersuaded by mother’s suggestion
that any misapplication of the law by the juvenile court requires
reversal. The juvenile court did say a “parent must also occupy a
parental role.” As the court in In re Caden C., supra, 11 Cal.5th
at page 634, said in deciding whether terminating parental rights
would be detrimental to a child, it is improper to compare a
“parent’s attributes as custodial caregiver relative to those of any
potential adoptive parent(s).” The section 366.26 hearing is not a
contest about who would be the better custodial caregiver, as
returning the child to live with the parent is not an issue at the
hearing, and as a parent who does not have custody of their child
generally cannot provide for the child’s educational, medical, and
like needs. (In re Caden C., at p. 634.)
Still, the juvenile court made its comment in the context of
noting that a parent’s positive visits with her children “will
always confer some incidental benefit,” but that such incidental
benefit did not outweigh the children’s need for stability. The
9This may be a cost-prohibitive option for many parents, which is
why we second the Supreme Court’s admonition to trial courts to
seriously consider permitting such studies where appropriate.
14
juvenile court then added that the parent must occupy a parental
role and not just have friendly visits. The juvenile court went on
to clearly find that mother had not established a bond with the
children, and that any relationship she had with them was
outweighed by the benefit the children would get from being
adopted. The juvenile court thus did not base its ruling on a
finding that mother failed to occupy a parental role or find that
mother had to attend the children’s medical appointments to
establish such a parental role.
This case is therefore not like In re D.M. (2021) 71
Cal.App.5th 261, cited by mother. In that case, the juvenile court
improperly based its decision terminating parental rights on its
finding that father had not attended the children’s medical and
dental appointments, which a parent would normally do. (Id. at
p. 268.) In contrast, the juvenile court here did not criticize
mother for not attending the children’s medical appointments.
Instead, the juvenile court seemed to be saying that, overall,
mother was more like a friendly visitor than a parent, an
observation which does speak to the absence of a substantial
bond between mother and children.
IV. Detriment
Because mother failed to carry her burden to establish a
benefit to the children from maintaining their relationship with
her, we need not address whether terminating the parental
relationship would outweigh the benefits of adoption, as all three
elements must be established for the exception to apply. But, in
brief, we note that a detriment finding is based on the child’s best
interest, and “the trial court must decide whether the harm from
severing the child’s relationship with the parent outweighs the
15
benefit to the child of placement in a new adoptive home.” (In re
Caden C., supra, 11 Cal.5th at p. 632.)
The juvenile court here did not err in concluding that
terminating mother’s parental rights would not be detrimental to
the children. This case is unlike In re Caden C., supra, 11
Cal.5th at page 628, where an expert suggested that severing
that child’s relationship with his mother would lead to emotional
instability, acting out, difficulties in school, insomnia, anxiety, or
depression. In addition to that testimony, there was evidence
that the child had an “intense bond” with his mother and was
distressed at the idea of not living with her, although he also
reacted positively to living with his caregiver. (Ibid.)
There is no similar evidence that any of the children in this
case would suffer such trauma from severing their relationship
with mother. There is no evidence, for example, that the children
had trouble separating from mother after visits or that they
wanted to see her beyond what the visitation schedule allowed.
Instead, there is overwhelming evidence that the children
were bonded with the caregivers and wanted to stay with them,
even if they also said they loved mother and wanted to be with
her. The caregivers provided a stable and loving home, met all of
the children’s needs, and had a strong bond with the children.
Importantly, the children were also bonded to each other, and the
caregivers had committed to adopting all three children, allowing
them to grow up together. The chance—even a slim one—that a
permanent plan other than adoption could jeopardize the
children growing up together would be part of the detriment to
the children of reversing the juvenile court’s orders.
16
DISPOSITION
The orders terminating mother’s and father’s parental
rights and setting adoption as the permanent plan are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
17