In re Caden C.

Filed 4/9/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re CADEN C., A Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
A153925, A154042
Plaintiff and Appellant,
v. (San Francisco County
CHRISTINE C. et al., Super. Ct. No. JD15-3034)
Defendants and Respondents;
CADEN C., a Minor,
Appellant.
We are familiar with this dependency proceeding, having previously reviewed and
upheld several prior court orders in the matter, including the juvenile court’s decision to
set a permanency planning hearing pursuant to section 366.26 of the Welfare and
Institutions Code1 for then seven-year-old Caden C. (C.C. v. Superior Court (Aug. 28,
2017, A151400 [nonpub. opn.].) At the permanency planning hearing in early 2018, the
juvenile court determined that Christine C. (mother) had established a beneficial
relationship with Caden under section 366.26, subdivision (c)(1)(B)(i), sufficient to
justify a permanent plan of long-term foster care rather than the statutorily preferred plan
of adoption. Both Caden and the San Francisco Human Services Agency (Agency)
appeal the court’s application of the beneficial relationship exception and decision to
forgo termination of parental rights. Having consolidated and considered the two
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
appeals, we conclude the juvenile court’s reliance on the beneficial relationship exception
in this case was an abuse of discretion under the applicable legal standard. We therefore
reverse.
I. BACKGROUND
A. Mother’s Prior Child Welfare History
Mother’s involvement with the child welfare system began in 1986 when her first
child, M.C., was detained at birth after both mother and child tested positive for
marijuana and cocaine. In August 1989, M.C. was again detained, this time with his
younger brother B.P.C. (born in 1987). The same pattern continued for 30 years: each of
mother’s six children would be removed from her care—sometimes several times—and
declared a juvenile court dependent based on recurring concerns about mother’s chronic
substance abuse, inability to care for her children, and domestic violence in the
household. Mother would often enter residential drug treatment and stabilize
temporarily, only to relapse again.
During this timeframe, sole custody of mother’s third child, T.A. (born in 1995),
was granted to the noncustodial, nonoffending parent. Mother’s fourth child, B.C. (born
in 2000), was removed and placed in the home of her paternal grandmother, who adopted
her. Mother’s fifth child, N.C.-G. (born in 2002) was removed as a toddler from
mother’s care and placed in legal guardianship with her paternal grandmother. Mother
was convicted of felony drug offenses in 1991 and 2004. After conviction for a third
felony drug offense in September 2006, mother was sentenced to three years in prison. It
was into this significant history of dysfunction that Caden, the minor involved in these
proceedings, was born in 2009.
B. Caden’s Initial Removal from Mother
Prior to his initial detention in September 2013, Marin County Health and Human
Services (Marin CPS) was well aware of Caden’s situation, having received 11 referrals
expressing concern for the minor’s well-being in mother’s custody. When Caden was a
toddler, Marin CPS received reports that mother was actively smoking
methamphetamine, including in a closed room with the minor present. Mother was seen
2
getting angry and “taking it out” on the minor by pushing and throwing him in his crib.
As a result of these referrals, mother signed a contract with Marin CPS, agreeing to
obtain a sponsor, attend a baseline number of 12-step (AA/NA) meetings, and participate
in random drug testing. Mother was offered voluntary services but declined them. The
contract did not take. In May 2012, mother reportedly stated she had been smoking
methamphetamine on a daily basis for two years. A drug task force searched mother’s
home in Fall 2012, with Caden present, and found a methamphetamine pipe in mother’s
purse. Other referrals in 2012 expressed concern about mother’s drug use in Caden’s
presence and plan to sleep outdoors with Caden. Although Marin CPS offered funding
for several nights’ shelter and arranged for mother to enter a treatment program, mother
declined these resources.
Caden was taken into protective custody on September 11, 2013—at the age of
four years three months. Mother and Caden were ineligible for transitional housing due
to mother’s lack of employment and positive drug test for PCP in February. Mother’s
“behavior and language was increasing in frequency and intensity”—she was observed
screaming at Caden and was reported to have stated: “ ‘I want to get rid of Caden so I
can get high on Oxycodon.’ ” Caden was not bathing and did not appear to be eating
regularly. He was not enrolled in Head Start and only sporadically attended his speech
therapy.
Mother defended her drug use, commenting that she does better on
methamphetamine than without it. Mother admitted she was an addict but asserted she
nevertheless took good care of her son. She stated she did not need a treatment program
and did not understand why Caden had been removed from her. Although diagnosed
with posttraumatic stress disorder (PTSD) and depression, mother was not taking
medication or following through with mental health referrals. Caden was present when
mother expressed extreme frustration, feelings of hopelessness, and suicidal thoughts.
According to the social worker, mother was “relying on Caden for emotional support
rather than focusing on his needs.” In September 2013, Marin CPS filed a dependency
petition with respect to Caden, stating the minor was at risk of harm due to mother’s
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entrenched substance abuse, mental health issues, and prior child welfare history with her
other children.2
Agency reports revealed the traumatic impact of mother’s lifestyle on Caden.
M.G. reported mother would scream at Caden and get physical with him. He stated that,
although Caden loved mother, he seemed “ ‘very confused’ ” by all of the instability he
witnessed. Father described the circumstances underlying his domestic violence
conviction as follows: “ ‘[Mother] was smoking meth, and dealing drugs, and put her
hands on Caden too many times, so I put my hands on her once.’ ” Mother’s case
manager at a shelter program where she and Caden had recently stayed related that
mother would yell at the minor and placed “ ‘a lot of her problems onto him.’ ”
Prior to his removal, mother and Caden had sporadically attended parent-child
therapy but were dropped after repeatedly failing to appear when scheduled. Caden was
diagnosed with disruptive behavior disorder and PTSD, with symptoms of aggression,
impairment of social relationships, tantrums, regressions, and emotional dysregulation.
In the social worker’s view, mother’s untreated drug addiction and mental health issues
exposed Caden “to chronic trauma, instability, and dangerous situations including
domestic violence, his parents’ alcohol and poly-substance abuse, and most recently,
homelessness” after mother failed to take advantage of numerous community-based
services. In November 2013, both mother and father submitted on an amended petition,
and the juvenile court found that Caden was a child described by subdivision (b) of
section 300.
At the dispositional hearing on January 14, 2014, the juvenile court declared
Caden to be a juvenile court dependent, formally removed him from mother’s custody,
2
The jurisdictional report also raised concerns about domestic violence. Caden
reported viewing a domestic violence incident involving his mother and her ex-husband
M.G. In addition, Caden’s biological father, Brian C. (father), was arrested for domestic
violence in September 2011 while living with mother and Caden. Father was
incarcerated for part of the minor’s dependency proceedings, and his whereabouts were
unknown after his release. He resurfaced prior to the permanency planning hearing and
has filed a respondent’s brief in this matter, supporting mother’s position.
4
and ordered visitation and reunification services for mother. Mother had reentered drug
treatment in December 2013 and engaged with the program in earnest. In March 2014,
mother filed a modification request pursuant to section 388, seeking C.C’s return to her
care while she remained in treatment. The social worker opposed the modification,
noting that mother’s recent period of sobriety was commendable but relatively short “in
the context of her extremely lengthy substance abuse history.” Specifically, mother had
previously completed three detoxification programs and six stints in residential treatment,
but continued to relapse on methamphetamine. The juvenile court denied mother’s
modification petition in April as premature.
By the six-month review in July 2014, however, the social worker commended
mother for her sustained progress in treatment. Mother had demonstrated a willingness to
change her behavior and a desire to live a life free from alcohol and other drugs. She was
actively working to contain her anger in stressful situations. She acknowledged that
Caden’s emotional and physical well-being had been placed at significant risk by her
drug addiction and untreated mental health issues. Although Caden reported he missed
his mother and wanted to return home, he had been doing well since moving in February
to the foster home of C.H. (Ms. H.). Caden’s therapist indicated he had “made
remarkable progress since stabilizing in the second foster home placement,” and the
social worker acknowledged Ms. H.’s “dedication to stabilizing Caden’s mental,
physical, and emotional health.” Ms. H. proactively sought out developmental and
educational services for Caden and facilitated visitation not only with mother, but also
with Caden’s stepfather.
Given mother’s progress, Caden was returned to her in July 2014 in her residential
program and family maintenance services were ordered. The next six-month review was
also positive. Mother had remained sober and was actively exploring housing options.
Caden had stabilized emotionally but was developmentally delayed and performing
below grade level. The case was transferred to San Francisco County and a six-month
review held in July 2015, at which family maintenance services were again continued.
5
Mother had by then completed 14 months of residential treatment and obtained
permanent supportive housing.
C. Caden’s Second Removal from Mother
Unfortunately, as the Agency’s next family maintenance review report reflected,
mother suffered a setback. (See C.C. v. Superior Court, supra, A151400.) After briefly
engaging in NA meetings, mother stopped attending. She tested positive for
methamphetamine in June 2015, returned a dilute test in each of July, October, and
November 2015, and missed 13 tests. Mother struggled to control her emotions and
reportedly threatened to physically harm Caden’s teacher. For his part, Caden was
experiencing outbursts in his classroom, throwing objects, threatening others, and
threatening self-harm. At the review hearing in January 2016, the juvenile court ordered
mother to engage in intensive outpatient treatment and continued family maintenance
services.
Caden was detained a second time on June 9, 2016, because “mother did not
engage in the substance abuse treatment and mental health services ordered by the court
in January, had disclosed she relapsed using methamphetamine and tested positive for
methamphetamine six times in March through May of 2016, and had missed 18 tests,
which were counted as positives.” (C.C. v. Superior Court, supra, A151400.) Further,
“[t]he social worker described Caden’s relationship with mother as ‘toxic.’ Mother had
made statements to him ‘about his removal due to his behaviors or her substance abuse.’
. . . [M]other ‘has created an unhealthy relationship with the child. The child is unable to
separate from [her] due to a high level of concern about her well-being. . . . The Agency
has addressed the mother about placing her responsibility on the child, but she continues
to have poor boundaries and communication with the child. The child is exposed to
conversations that cause fear and create behaviors that jeopardize his safety, emotional
well-being, and education.’ ” (C.C. v. Superior Court, supra, A151400.) Indeed, after a
“moment of stability” in the 2014-2015 school year, Caden now appeared “exhausted,
worried, and anxious” in school. He stated he wanted to kill himself because he had been
6
removed from his mother and “his mother was his spirit.” Caden was placed back in the
care of Ms. H. and was reported to be adjusting well.
In June 2016, the Agency filed a supplemental petition indicating that the previous
disposition had been ineffective in the protection of the minor due to mother’s continuing
substance abuse and mental health concerns. Because mother had already received
family reunification and family maintenance services for over 28 months, the Agency
recommended that services be terminated and that a hearing be set pursuant to section
366.26 to select a permanent out-of-home placement for Caden. Mother, who had
returned to residential treatment on June 30, 2016, disputed the Agency’s
recommendation and a contested hearing was set for September.
While this hearing was pending, Caden was moved to another foster placement
after Ms. H. gave a seven-day notice seeking his removal. According to the social
worker, the minor’s placement with Ms. H. “was disrupted because . . . the mother’s poor
boundaries and impulsive behaviors were emotional[ly] exhausting for the caregiver.”
Shortly after Caden’s placement in a new foster home, the parties stipulated to a
settlement of their disputes. Mother agreed to submit on the reports previously filed in
connection with the supplemental petition and the Agency supported the minor’s
placement in long-term foster care for a six-month period designed to give mother time to
file a modification petition pursuant to section 388. The parties further agreed mother’s
twice-weekly supervised visitation would continue but mother would not contact Caden
or the caregiver by phone or text unless authorized by the social worker. Based on this
stipulation—which the juvenile court signed as an order—the court, in August 2016,
found the allegations in the supplemental petition true, terminated reunification services,
formally removed Caden from mother for a second time, and placed the minor in long-
term foster care. Mother was ordered to file any modification petition by January 2017.
D. Mother’s Modification Petition Is Denied
In January 2017, mother filed the contemplated modification petition, seeking
either return of Caden or the reinstitution of reunification services. In an attached
declaration, she detailed her current efforts at treatment, including completion of a 60-day
7
residential program, AA/NA meetings, participation in Family Treatment Court,
outpatient treatment, and medication management. The Agency filed reports in January
indicating that mother’s twice weekly visits were regularly attended and were generally
positive.
Neither maternal nor paternal family was interested in placement due to their
strained relationship with mother and father. While the current foster family had
expressed an interest in providing Caden with permanency, issues had “arisen about the
child’s relationship with the caregiver being sabotaged by the mother.” Caden was
moved to a third foster home in mid-February 2017. “He had transitioned well and
appeared to like his new caregivers, reportedly asking his foster mother to adopt him if he
did not return home to his mother. For her part, foster mother indicated she was
interested in adopting the minor.” (C.C. v. Superior Court, supra, A151400.)
Mother continued to struggle with her sobriety. She had tested positive for
methamphetamine on September 2, 2016, only three days after successfully graduating
from her latest residential program. Even as her modification request was pending, “[t]he
social worker reported that mother’s attendance at her substance abuse outpatient
program had been spotty in March. She had tested positive for methamphetamine on
February 24 (she denied usage), missed six drug tests between January 20 and March 13,
and tested negative for drugs eight times between January 10 and March 9, 2017.” (C.C.
v. Superior Court, supra, A151400.)
The juvenile court denied mother’s modification petition on April 4, 2017. On
May 5, 2017, the court also denied mother’s request to have another contest at the
upcoming six-month review hearing on the issue of the minor’s return and/or further
attempts at reunification. The court continued the hearing to May 24, 2017, for a contest
on any remaining issues.3 In advance of this contested May hearing, the Agency filed a
3
Mother appealed the juvenile court’s April 2017 denial of her modification
petition (San Francisco Human Services Agency v. C.C. (A151020), dism. Aug. 30,
2017) and the court’s May 2017 decision to limit the contested issues at the minor’s
six-month permanency review (San Francisco Human Services Agency v. C.C.
8
report recommending that the juvenile court set a hearing pursuant to section 366.26,
modifying Caden’s permanent plan from long-term foster care to guardianship or
adoption.
Mother’s situation, unfortunately, continued to decline. She had last attended her
outpatient program in March 2017 and had been discharged from Family Treatment
Court due to her disengagement from treatment. Mother’s visitation was also causing
disruption and anxiety for Caden. She needed frequent redirection to stay focused on
Caden and not discuss her own situation or other inappropriate topics. She struggled with
not telling Caden that he would return home, becoming hostile and aggressive when
instructed to support his stabilization in foster placement. The social worker
recommended that visitation be reduced in order to support the prospective adoptive
placement with the current caregiver.
Caden’s foster placement was again derailed in May 2017 when his foster parents
asked that he be removed. As with several previous placements, the foster parents
“expressed a concern about the involvement of the mother and on-going visitation contact
with Caden as being the primary reasons for the child not being able to connect and settle
into a permanent home.” Mother had indicated at visits that she would find the
confidential placement and would “exhaust the court process” to prevent finalization of
any adoption. Under the circumstances, Ms. H. agreed to take Caden back for the
summer.
A group of 11 social workers, foster care mental health clinicians and others—
including Caden’s social worker and the minor’s long-term therapist—convened in May
to review Caden’s visitation, placement status, and permanent plan. The review team
consensus was that, while Caden had “a connection” with his mother, it was “not
(A151263), dism. Aug. 30, 2017). After consolidation of the appeals, mother’s appellate
counsel filed a no-issues brief pursuant to In re Sade C. (1996) 13 Cal. 4th 952, 994 and
In re Phoenix H. (2009) 47 Cal. 4th 835, 844–846, resulting in the dismissal of both
matters. (See C.C. v. Superior Court, supra, A151400.)
9
healthy” and had been “sabotaging to his stability in placement.” The review team
agreed Caden’s visits with mother should be reduced.
At the contested hearing on May 24, 2017, the Agency sought a gradual reduction
in mother’s visitation to once per month. It also sought transfer of mother’s educational
rights to a surrogate so that any future adoptive placement and school for the minor could
remain confidential. Mother objected to the proposed reduction in visitation and stated
“she had always been a good parent and there was no substantiality to any of the reasons
she was losing her child. Mother did not deny she was an addict. She testified: ‘I get the
purpose that I can’t use meth. I don’t get the fact that anyone can show me to be unfit
because I use meth.’ ” (C.C. v. Superior Court, supra, A151400.) The juvenile court
adopted the Agency’s recommendations, reducing mother’s visitation, limiting her
educational rights, and setting a permanency planning hearing for Caden pursuant to
section 366.26.4
E. Permanency Planning Hearing
The permanency planning hearing was held over several dates in January and
February 2018. Agency reports filed in advance of the hearing indicated that Caden was
doing well in his placement and had a supportive relationship with Ms. H. The minor had
also developed solid relationships with Ms. H.’s partner and two children and was not
displaying any mental health, emotional, or behavioral issues. In September 2017,
Ms. H. expressed a desire to provide Caden with a permanent home through adoption.
The social worker noted that Caden was “the most content and comfortable in his
placement, education, and relationships with others than he [had] ever been.”
Mother’s contact with Caden was reduced to once per month as of July 2017. The
social worker evaluated the minor’s adjustment and saw no concerning behaviors either
in placement or school as a result of the decrease in contact. Mother’s limited visitation
with the minor was reported to be generally appropriate. However, at a June visit, mother
4
Mother filed a writ petition in this court, and, on August 28, 2017, we issued an
unpublished opinion upholding the juvenile court’s setting order. (C.C. v. Superior
Court, supra, A151400.)
10
told the visitation supervisor she spent her days in bed drinking “creamsicles”—a mixture
of vodka, orange juice, and cream.
Caden’s half sibling N.C.-G. was living with mother in August 2017, and a child
welfare referral had been received concerning mother’s substance abuse. Mother was
asked to drug test by Marin CPS but refused to do so. By November, the paternal
grandmother had decided to relinquish guardianship of N.C.-G. N.C.-G. reported that
mother was selling psychotropic and ADHD medication to others and she observed
mother smoking methamphetamine in the apartment. In December, Marin CPS reported
that mother sent disturbing and harassing text messages to N.C.-G. in response to
N.C.-G.’s statements about her mother’s relapse. Mother texted that she did not love
N.C.-G. and that Caden hates her. The messages caused N.C.-G. “ ‘massive anxiety,’ ”
posing a risk that she could be psychiatrically detained pursuant to section 5150. As a
result, N.C.-G. did not have contact with mother and the court asked N.C.-G. to block
mother’s access to her social media. According to Caden’s social worker, N.C.-G.’s
situation with mother was a factor supporting the Agency’s recommendation of adoption
for Caden.
In November 2017, the social worker met with Caden at school and told him that
Ms. H. wanted “her home to be his ‘forever home.’ ” Caden asked the worker to define
adoption, and she explained that Ms. H. would become his parent and continue to care for
him as she was doing. The minor stated that would “be good” and that he would stay
with Ms. H. “until he was big, able to get his own job, and buy his own house.” Caden
asked if he would still be able to see his mother and was told that there would be some
visits resembling what he was doing and that the adults would work out a plan that was
best for everyone. According to Ms. H., when Caden discussed adoption with her later
that day he was very excited and happy. The next day when the social worker came by to
discuss permanency, Caden was initially smiling and giggling. However, when asked
how he felt about Ms. H. providing him a forever home, he responded “ ‘sort of and it
will be good.’ ” He then started to cry and stated he wanted to live with mother. When
the social worker explained he could not return to mother because she needed to work on
11
herself, the minor became flustered and tearful. However, after Ms. H. sat on the floor
with Caden with her head to his head, soothing him and validating his feelings of loss,
Caden stopped crying and began talking about the holidays with Ms. H. Although the
Agency recognized that Caden will need ongoing support to address the trauma,
attachment, and separation from mother, it believed his placement with Ms. H. “is able to
provide him that comfort and security that will allow him to process his feelings and
continue to grow healthy developmentally.”
Dr. Alicia Lieberman filed a clinical consultation report dated January 6, 2018,
opining that adoption by Ms. H. “is the placement decision with the best chance of
supporting Caden’s emotional health in the present and his prospects for becoming an
emotionally healthy adult in the future.” Dr. Lieberman had been a clinical consultant for
the Agency since 1985 and was qualified as an expert in parent-child bonding and
attachment, with specific focus on childhood trauma and its impact on children.
Dr. Lieberman was familiar with Caden’s case, having attended numerous administrative
reviews concerning Caden with the social worker, and having joined in the group
recommendation that mother’s visitation with Caden be reduced.
Dr. Lieberman identified Ms. H. as the “only caregiver who has enabled Caden to
feel that he is in the care of a consistent and predictable adult who keeps him safe and
reliably looks out for his physical and emotional needs.” (Underscoring omitted.)
Ms. H. was able to foster a supportive relationship with mother during Caden’s initial
placement with her in 2014 “that helped Caden maintain an emotional bridge between the
two caregivers. When Caden was returned to his mother’s care between July 2014-June
2016, Ms. [H.] maintained contact with the child through telephone and visitations,
including weekend visits to her home.” Dr. Lieberman concluded that Caden relates to
Ms. H. as a “ ‘secure base’ ”—a term used in attachment theory “to describe an adult that
the child perceives as a reliable protector at times of uncertainty and fear.”
(Underscoring omitted.) While Caden showed expected sadness and distress when he
realized he could not return to mother, his responsiveness to Ms. H.’s comfort and
validation of his feelings was a “promising sign,” indicating the minor’s “emotional
12
alignment with the safety represented by staying with Ms. [H.], while also being able to
feel appropriate sadness about not living with his mother.” Dr. Lieberman found it telling
that the school reported no deterioration in Caden’s behavior when mother’s visits were
reduced, indicating that Caden’s “emotional stability is supported by his placement with
Ms. [H.].”
Dr. Lieberman noted that Caden was a developmentally vulnerable child with a
diagnosis of PTSD and exposure to traumatic events from an early age, including having
“a mother with psychiatric problems and engaged in substance abuse; witnessing
domestic violence; homelessness; instability of living arrangements; repeated and
prolonged separation from mother; witnessing repeated episodes of maternal anger and
emotional dysregulation; and lack of consistent access to protective factors such as
reliable surrogate caregivers.” According to Dr. Lieberman, research studies indicate that
“[e]xposure to 4 or more types of these childhood adversities is associated . . . with
exponentially higher risk for psychiatric problems.” The best course of action to alleviate
the long-term effect of these risk factors is “safe and predictable caregiving.” Indeed, in
light of Caden’s learning disabilities, Dr. Lieberman viewed “stability of placement with
a caring and reliable caregiver” as “an imperative.” (Italics added.) Finally, despite
Caden’s love for his mother, Dr. Lieberman opined that any placement other than
adoption would pose “an unacceptable risk” to the minor’s well-being, given mother’s
“continued emotional instability and damaging behaviors,” such as her interference with
the stability of Caden’s placements and her recent inability to provide safe care for N.C.-
G. In contrast, adoption would allow Ms. H. “to use her best judgement [sic] to manage
the relationship between Caden and his mother in ways that would support the child” and
thus represented “the least detrimental course of action” for the minor.
In support of her position, mother submitted a letter, which Caden apparently
dictated to his therapist in February 2017, asking to be returned to mother. Among other
things, the letter stated: “I would rather torture myself then [sic] not go back to her. I
really would, that’s actually the truth.” Caden’s letter stated regarding mother: “She is
13
perfectly fine. And I love her more than she can think. And she loves me more than I
can think.”
Mother also presented a bonding study prepared by Dr. Hugh Molesworth, whom
the juvenile court later qualified as an expert in child psychology, bonding studies, and
the parent-child attachment. Dr. Molesworth observed mother and Caden together for
five and one-half hours in July and August 2017. He also met with Caden separately for
45 minutes, had two individual meetings with mother to gather history, reviewed relevant
records, and interviewed Caden’s long-term therapist. Dr. Molesworth specified that the
study was limited to a discussion of the relationship bond between mother and Caden.
He did not consider mother’s parenting capacity, mother’s psychological functioning, or
Caden’s relationship with others.
According to Dr. Molesworth, Caden’s therapist opined that Caden was strongly
connected to mother in that “he is sad not [to] see her, he consistently misses her, he is
unchanging in his desire to go back to her, and he longs to be with her.” (Italics omitted.)
When meeting with Caden alone, Dr. Molesworth asked the minor how much he missed
his mom, with 10 being the highest “missing feeling” and one being the lowest. Caden
responded: “ ‘100, no more than 100, a million, no trillions.’ He went on to say—‘is
there a number more than a trillion?’ I said there was and he said—‘that’s how much.’ ”
When asked how much he thinks about his mother, the minor had a similar response.
Caden stated he misses her so much because “she’s my mom.”
Dr. Molesworth concluded Caden’s bond with mother “is substantial, rising to the
level of a maternal attachment.” The positive nature of the bond was evinced through
Caden’s excitement to see mother, their physical affection, Caden’s verbalization of
missing his mother, his declarations of love, his fear of limited contact, his sharing of
“hurts” with mother, and his expression of affection at departures. Dr. Molesworth noted
an “easy, comfortable, and intimate rapport between Caden and his mother” and
characterized their relationship as “clearly positive.” Caden’s comments about missing
mother and his letter to the court showed the depth of his feelings. However,
Dr. Molesworth cautioned that mother was “likely . . . on her best behavior” and not
14
under the influence of drugs during his observations, which would affect her ability to
respond appropriately to Caden. He acknowledged that if mother “was unable to parent
Caden due to her substance abuse or mental health issues on an ongoing everyday chronic
basis, that’s an issue.”
Dr. Molesworth described Caden as a vulnerable child with a diagnosis of PTSD
and a learning disability. He opined that Caden “has an undeniable positive bond with
his mother and that he derives substantial emotional sustenance and benefits from it.” He
observed, however, that while mother “is at the center” of Caden’s emotional life, the
minor also has an “intense pre-occupation” with mother which could indicate a
“narrowness of his bond with her” that could get in the way of his developing
relationships or connecting with others. Dr. Molesworth found it likely that a loss of
contact with mother would be traumatic and have a harmful effect on Caden. There was
a risk such a loss would result in distress that is likely to endure and lead to a “life-long
psychological wound.” Additionally, “[t]here is a risk the loss will accelerate his
emotional issues and further compromise his already impaired learning skills. If he were
to lose his mother his already existing preoccupations and feelings of loss would be
exponentially amplified—making it even harder to think, process, focus, and attend
effectively in school.”
At the permanency planning hearing, the juvenile court heard testimony from the
social worker, mother, both experts, and various character witnesses called by mother.
Mother’s subpoena of the minor to attend was quashed based on the potential for
“substantial trauma” if the minor was forced to testify. On February 8, 2018, the juvenile
court found Caden adoptable. However, it declined to terminate parental rights. The
court continued the matter to determine whether Ms. H. would be willing to act as
Caden’s legal guardian. At the continued hearing, the Agency informed the juvenile
court that Ms. H. was unwilling to accept legal guardianship of Caden due to concerns
her family would not be able to handle mother’s ongoing demands regarding visitation
and phone contact. Ms. H. stressed she felt unable to set firm boundaries with mother
without the proper legal authority. Ms. H. also worried mother would continue to use the
15
court process in ways that would disturb Caden’s emotional stability in his placement,
and expressed some fear for her family’s safety. Consequently, the juvenile court
ordered a permanent plan of long-term foster care for the minor in March 2018. Timely
appeals filed by both the Agency and Caden’s dependency counsel (who has represented
the minor since his initial removal in September 2013) now bring the matter once again
before this court.
II. DISCUSSION
The Agency and Caden join in raising a single contention on appeal. They claim
the juvenile court erred in determining that mother had successfully established the
beneficial relationship exception, thereby avoiding termination of her parental rights and
blocking Caden’s adoption. We agree.
A. Legal Framework
At a permanency planning hearing held in accordance with section 366.26, the
juvenile court is charged with determining the most appropriate permanent plan of
out-of-home care for a dependent child that has been unable to reunify. (In re Casey D.
(1999) 70 Cal. App. 4th 38, 50 (Casey D.).) When reunification efforts with a parent fail,
as they did in this case, the focus shifts from family preservation “to the needs of the
child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal. 4th 295, 309; In re
G.B. (2014) 227 Cal. App. 4th 1147, 1163 (G.B.); In re Jason J. (2009) 175 Cal. App. 4th
922, 935.) Thus, permanency planning hearings, as the name implies, are “designed to
protect children’s ‘compelling rights . . . to have a placement that is stable, permanent,
and that allows the caretaker to make a full emotional commitment to the child.’ ” (In re
Celine R. (2003) 31 Cal. 4th 45, 52–53 (Celine R.).) As the most permanent of the
available options, adoption is the plan preferred by the Legislature. (In re Autumn H.
(1994) 27 Cal. App. 4th 567, 573 (Autumn H.).) Indeed, when a court finds that a child is
likely to be adopted if parental rights are terminated, it must select adoption as the
permanent plan unless it finds a “compelling reason for determining that termination
would be detrimental to the child” due to one or more of the statutory circumstances
16
delineated in section 366.26. (§ 366.26, subd. (c)(1)(B); In re A.A. (2008) 167
Cal. App. 4th 1292, 1320 (A.A.).)
These “specified statutory circumstances—actually, exceptions to the general rule
that the court must choose adoption where possible—‘must be considered in view of the
legislative preference for adoption when 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.” (Celine R., supra, 31 Cal.4th at p. 53.) The statutory exception at issue in
these proceedings—the beneficial relationship exception—applies where termination of
parental rights would be detrimental to the child because the parent has “maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The parent has the burden of proving, by a preponderance of the evidence, that the
beneficial relationship exception applies. (See In re Breanna S. (2017) 8 Cal.App.5th
636, 646 (Breanna S.); In re I.W. (2009) 180 Cal. App. 4th 1517, 1527.) A court’s
determination that “a parent has not satisfied this burden may be based on any or all of
the component determinations—[(1)] whether the parent has maintained regular
visitation, [(2)] whether a beneficial parental relationship exists, and [(3)] whether the
existence of that relationship constitutes ‘a compelling reason for determining that
termination would be detrimental to the child.’ ” (Breanna S., at pp. 646–647; see
§ 366.26, subd. (c)(1)(B)(i); In re K.P. (2012) 203 Cal. App. 4th 614, 622 (K.P.); In re
Bailey J. (2010) 189 Cal. App. 4th 1308, 1314 (Bailey J.).)
The first prong of a beneficial relationship analysis “is quantitative and relatively
straightforward, asking whether visitation occurred regularly and often.” (In re Grace P.
(2017) 8 Cal.App.5th 605, 612 (Grace P.).) “It is not an inquiry into the quality of
visitation; this prong simply evaluates whether the parent consistently had contact with
the child.” (Id. at p. 613.) Thus, for purposes of the beneficial relationship exception,
17
“[r]egular visitation exists where the parents visit consistently and to the extent permitted
by court orders.” (In re I.R. (2014) 226 Cal. App. 4th 201, 212 (I.R.).)
In contrast, whether the nature and extent of a particular parent-child relationship
is sufficient to be deemed “beneficial” for purposes of this exception is a more involved
inquiry, made on a case-by-case basis by taking into account the many variables which
affect the parent/child bond. Relevant factors include the 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. (Autumn H., supra,
27 Cal.App.4th at pp. 575–576; see In re Angel B. (2002) 97 Cal. App. 4th 454, 467.)
These factors are not exclusive. (Grace P., supra, 8 Cal.App.5th at p. 613.) Rather,
“[t]he application of the beneficial parent relationship exception requires a robust
individualized inquiry given that ‘[p]arent-child relationships do not necessarily conform
to a particular pattern’ and no single factor . . . is dispositive.” (Ibid.)
Of necessity, however, the relationship at issue must be parental. “No matter how
loving and frequent the contact, and notwithstanding the existence of an ‘emotional bond’
with the child, ‘the parents must show that they occupy “a parental role” in the child’s
life.’ ” (K.P., supra, 203 Cal.App.4th at p. 621; see In re Beatrice M. (1994)
29 Cal. App. 4th 1411, 1418-1419 (Beatrice M.).) Such a relationship “characteristically
aris[es] from day-to-day interaction, companionship and shared experiences.” (Casey D.,
supra, 70 Cal.App.4th at p. 51; see Autumn H., supra, 27 Cal.App.4th at p. 575 [“The
significant attachment from child to parent results from the adult’s attention to the child’s
needs for physical care, nourishment, comfort, affection and stimulation.”].) But
day-to-day contact is not always required. (Casey D., at p. 51.) Rather, for the beneficial
relationship exception to apply, the court must find that “regular visits and contact have
continued or developed a significant, positive, emotional attachment from child to
parent.” (Autumn H., at p. 575.)
Should a parent demonstrate the existence of a parent-child relationship so
significant that its severance would cause the child detriment, the juvenile court must
then determine whether that relationship constitutes a “compelling” reason to forgo
18
termination of parental rights under the balancing test announced by Autumn H. (See
§ 366.26, subd. (c)(1)(B).) Specifically, the parent must establish that “the relationship
promotes the well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra,
27 Cal.App.4th at p. 575.) In evaluating this issue, the court must balance “the strength
and quality of the natural parent/child relationship in a tenuous placement against the
security and the sense of belonging a new family would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for adoption is
overcome and the natural parent’s rights are not terminated.” (Ibid.) When a juvenile
court takes the extraordinary step of concluding that the beneficial relationship exception
applies, it must state the reasons supporting its determination in writing or on the record.
(§ 366.26, subd. (c)(1)(D).)
Finally, under subdivision (h)(1) of section 366.26, the juvenile court must
consider the wishes of the child during permanency planning proceedings. However, as
with the other exceptions described in section 366.26, subdivision (c)(1), the court must
analyze the beneficial relationship exception within the context of the child’s best
interests. (§ 366.26, subd. (h)(1); In re Tabatha G. (1996) 45 Cal. App. 4th 1159, 1165
(Tabatha G.).) Even when a child loves his or her parents and desires continued contact
with them, the court may nonetheless terminate parental rights if doing so is in the child’s
best interests. (§ 366.26, subd. (h)(1); In re L.Y.L. (2002) 101 Cal. App. 4th 942, 955.)
Appellate courts are divided over the appropriate standard of review for an order
concerning the applicability of the beneficial relationship exception to termination of
parental rights. Indeed, in our own First District, we have variously found a juvenile
court’s decision in this regard reviewable for abuse of discretion (In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351 (Jasmine D.)), for substantial evidence (G.B., supra,
227 Cal.App.4th at p. 1166), and, most recently, by a combination of the two. (In re E.T.
(2018) 31 Cal.App.5th 68, 76, petn. for review pending, petn. filed Feb. 19, 2019 (E.T.)
[applying substantial evidence standard to “the factual issue of the existence of a
19
beneficial parental relationship”; applying abuse of discretion standard to whether that
relationship provides “a compelling reason for finding that termination would be
detrimental to the child”].) We join those appellate courts that have taken a hybrid
approach. Underlying factual determinations—such as whether a parent has maintained
regular visitation or whether a beneficial parental relationship exists—are properly
reviewable for substantial evidence. (E.T., at p. 76; Breanna S., supra, 8 Cal.App.5th at
p. 647; K.P., supra, 203 Cal.App.4th at pp. 621–622.) In contrast, a juvenile court’s
determination whether such a relationship provides a compelling justification for
forgoing adoption “is based on the facts but is not primarily a factual issue.” (Bailey J.,
supra, 189 Cal.App.4th at p. 1315.) Rather, it is “a ‘quintessentially’ discretionary
decision, which calls for the juvenile court to determine the importance of the
relationship in terms of the detrimental impact that its severance can be expected to have
on the child and to weigh that against the benefit to the child of adoption.” (Ibid.; see
Jasmine D., at p. 1351.) Intrinsic to a balancing of these interests is the exercise of the
court’s discretion, properly reviewable for abuse. (E.T., at p. 76; Bailey J., at p. 1315.)
Our review under both of these standards is well established. In reviewing for
substantial evidence, “[w]e do not pass on the credibility of witnesses, attempt to resolve
conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable
inferences in support of the findings, view the record in favor of the juvenile court’s order
and affirm the order even if other evidence supports a contrary finding.” (In re T.W.
(2013) 214 Cal. App. 4th 1154, 1161–1162.) In contrast, “ ‘ “The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason. When two
or more inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.” ’ ” (In re Stephanie M.
(1994) 7 Cal. 4th 295, 318–319; see Jasmine D., supra, 78 Cal.App.4th at p. 1351 [an
appellate court may reverse for abuse of discretion where, based on the evidence viewed
most favorably in support of the challenged order, no reasonable judge could have
reached the same result].) Findings of fact underlying the court’s exercise of discretion
must still be supported by substantial evidence. (In re A.R. (2015) 235 Cal. App. 4th 1102,
20
1117.) Whether the juvenile court abused its discretion in a particular instance “is further
informed by the statutory context within which its decision . . . was made.” (In re
Jaden E. (2014) 229 Cal. App. 4th 1277, 1288 (Jaden E.).)
B. Application of Beneficial Relationship Exception in this Case
The juvenile court found Caden adoptable at the conclusion of the permanency
planning hearing, and mother does not challenge this finding on appeal. Under the
statutory framework discussed ante, the juvenile court was thus required to terminate
parental rights and designate adoption as Caden’s permanent plan, absent proof of a
“compelling reason for determining that termination would be detrimental to the child”
due to an articulated statutory circumstance such as the beneficial relationship exception.
(§ 366.26, subd. (c)(1)(B); A.A., supra, 167 Cal.App.4th at p. 1320.)
In concluding that the beneficial relationship exception applied in this case, the
juvenile court first found regular visitation, stating: “The record shows Mother’s
devotion to Caden and that she has maintained consistent regular visitation and contact
with Caden. The court believes that those visits have continued the significant emotional
attachment that Caden and his Mother created prior to his removals.” On appeal, the
Agency argues mother did not have regular contact with Caden for purposes of
establishing this exception because her visits with Caden had been reduced to only once a
month and, even during those brief visitations, mother struggled to stay focused on the
minor. These arguments appear to address the quality of mother’s contacts with Caden
rather than the consistency of mother’s visitation. Mother need only demonstrate that she
visited with Caden “consistently and to the extent permitted by court orders.” (I.R.,
supra, 226 Cal.App.4th at p. 212.) Substantial evidence supports the juvenile court’s
determination that mother did so. After Caden was detained a second time, mother
visited with Caden to the extent allowed, except for a few missed visits after the denial of
her modification petition in April 2017. Her visitation during the minor’s first removal
was similarly consistent.
In support of the second prong—the existence of a beneficial relationship—the
juvenile court made the following express findings: (1) mother had been Caden’s
21
“primary caregiver” for “approximately six out of his eight and a half years of life”;
(2) mother stood “in a parental role to her son”; (3) Caden “loves his mother, and derives
benefit from his visits with her”; (4) mother has “maintained her deep commitment and
emotional relationship with Caden throughout this process both when he was in and out
of her care”;5 (5) Caden, a “mature 8 year old,” had directly communicated his love for
mother and his desire to return to her to the court, both through his February 2017 letter
and through minor’s counsel; and (6) both Dr. Molesworth’s bonding study and
Dr. Lieberman’s clinical consultation report demonstrate that mother and Caden “have a
consistent and positive relationship.”
Minor’s counsel argues that the juvenile court’s observation that mother had been
Caden’s “primary caregiver” for six out of his eight years of life is not supported by
substantial evidence. We disagree. Caden was in mother’s sole care for the first four
years three months of his life, prior to his initial detention. He was then returned to her
care under a family maintenance plan from July 2014 through June 2016. While it is true
that Caden lived with mother in residential treatment from July 2014 until her discharge
in March 2015, mother was primarily caring for Caden’s day-to-day needs, albeit in a
supervised setting. Even without their time together in residential treatment, mother was
solely responsibility for the minor for approximately five and one-half years. We will not
quibble with how the juvenile court counted months. The point is, mother was Caden’s
primary caretaker for a significant period of the young minor’s life and that conclusion is
amply supported by the record.
Minor’s appellate counsel also takes issue with the juvenile court’s finding that
Caden had “directly communicated” with the court his love for mother and his desire to
return to her via his February 2017 letter. Counsel asserts that the letter was a year old at
the time of the permanency planning hearing, questions were raised about its credibility,
5
The juvenile court’s written order ascribes this maintenance of a deep
commitment and emotional relationship to Ms. H., not mother. Whichever statement the
juvenile court actually intended, we believe both versions to be supported by substantial
evidence.
22
and the letter was created before Caden was placed with Ms. H., when he was in a
placement that was not meeting his needs. We need not address the parties’ competing
views about the letter, however, because Caden has consistently expressed that he loved
his mother and wanted to live with her—from his initial detention in September 2013,
when he cried and stated he wanted to “ ‘go back and live in the car with my mom,’ ” to
November 2017, when he cried and stated he wanted to live with mother after being told
he would be remaining with Ms. H. Substantial evidence supports this fact, and it is
clearly relevant to the depth of Caden’s bond with mother.
Finally, the Agency argues that mother’s ongoing monthly contact with the minor
was insufficient to support a finding of significant parent-child attachment. The
Agency’s argument seems to be that mother’s relationship with Caden was not “parental”
due to the infrequency of the contacts. Setting aside that mother fought against a
reduction in visitation, “[a] strong and beneficial parent-child relationship [may] exist
such that termination of parental rights would be detrimental to the child, particularly in
the case of an older child, despite a lack of day-to-day contact and interaction.” (Casey
D., supra, 70 Cal.App.4th at p. 51.) What matters is that “regular visits and contact have
continued . . . a significant, positive, emotional attachment from child to parent.”
(Autumn H., supra, 27 Cal.App.4th at p. 575.) It is clear on this record that the minor
saw mother as his parent and continued to have a significant emotional attachment to her
from which he derived benefit. Thus, viewing the evidence in the light most favorable to
the court’s order, we conclude this finding is also supported by substantial evidence.
At bottom, it cannot be seriously disputed that Caden had a beneficial relationship
with mother—that is, a significant relationship the termination of which would cause him
detriment. While Dr. Molesworth’s bonding study is the most eloquent expression of this
bond, Dr. Lieberman also acknowledged it, stating that Caden “has a very strong
emotional bond with his mother” and that the bonding study provides “a compelling
description of Caden’s love for his mother.” The record is replete with comments from
various care providers attesting to the significance of the bond between mother and son.
We thus have little difficulty concluding substantial evidence supports the juvenile
23
court’s implicit finding that a beneficial relationship existed here between the minor and
mother. But as Caden’s social worker aptly observed on the eve of the permanency
planning hearing: “Caden’s connection to his mother has never been the cause for his
removal.” In other words, the existence of a strong mother-child bond is far from the end
of our inquiry.
Having found the existence of a beneficial relationship between mother and
Caden, as well as regular visitation, the juvenile court was charged finally with
determining whether that relationship provided “a compelling reason” for concluding that
termination of parental rights should not be pursued, despite Caden’s adoptability. (See
§ 366.26, subd. (c)(1)(B).) In determining that the statutory exception applied, the court
found: “The record does show that while Caden has a strong and developing relationship
with Ms. [H.,] that relationship in and of itself does not negate the harm that Caden
would experience from the loss of his most significant emotional relationship. And that
is with his mother.” Moreover, “[s]evering Caden’s relationship with his Mother would
deprive Caden of a positive emotional attachment and greatly harm Caden. [¶]
Accordingly, the Court finds based upon all the foregoing that Mother has established
that the continuing beneficial relationship exception to the termination of parental rights
applies in this case and that that relationship outweighed any prospective adoption. The
Court finds that in this circumstance, termination of parental rights would be detrimental
to Caden.”
We conclude this is one of the rare and difficult cases in which the juvenile court’s
application of the beneficial relationship exception amounted to an abuse of discretion.
On this record, no reasonable judge could have concluded that a compelling justification
was made to forgo adoption and order a permanent plan of long-term foster care for
Caden. As we explain below, two overarching considerations guide our analysis. First,
the juvenile court’s determination that mother had “substantially complied with her case
plan” and “continues her efforts to maintain her sobriety and address her mental health
issues” is not supported by the record. Second, the court gave short shrift to
uncontroverted evidence that long-term foster care posed substantial risk of further
24
destabilizing a vulnerable child, fostered unhealthy and sometimes “toxic” interactions
between mother and child, and robbed Caden of a stable and permanent home with an
exceptional caregiver.
If anything is clear from this record, it is that Caden has suffered years of trauma
and instability as a direct result of mother’s entrenched and unresolved substance abuse
and mental health issues—the very problems that led to Caden’s removal from her care in
the first place. Mother has repeatedly, over the course of 30 years, been unable to
maintain her sobriety outside of a structured treatment setting. Contrary to the juvenile
court’s finding, the evidence discloses that mother’s chronic substance abuse and failure
to seek treatment continued unabated up to the permanency planning hearing.
Mother’s last case plan in this matter was approved by the court in January 2016
and required, among other things, mother’s engagement in intensive outpatient treatment.
It was terminated as unsuccessful in June 2016—when Caden was removed a second
time—due to mother’s failure to engage in services and active drug use. (C.C. v.
Superior Court, supra, A151400.) Thereafter, although the Agency provided no further
services to mother, she successfully completed a 60-day residential program on August
30, 2016, and engaged in outpatient treatment and a number of other services. Almost
immediately after her discharge from a residential setting, however, mother again tested
positive for methamphetamine. Mother filed a modification petition in January 2017,
detailing her participation in services, including Family Treatment Court, NA/AA
meetings, outpatient treatment, and medication management. However, between January
and April 2017, while her modification petition was pending, mother missed multiple
drug tests and tested positive for methamphetamine. (C.C. v. Superior Court, supra,
A151400.) The last indication in the record that she attended any treatment was in March
2017. She was discharged from Family Treatment Court due to her disengagement from
treatment.
In April 2017, the Agency confirmed that, over the previous eight weeks, mother
“had tested positive for buprenorphine and methamphetamine, had missed numerous drug
tests, had stopped attending drug treatment, and had not provided proof of individual
25
therapy attendance.” (C.C. v. Superior Court, supra, A151400.) In June 2017, mother
self-reported that she was spending her days in bed drinking “creamsicles”—a mixture of
vodka, orange juice, and cream. Her daughter N.C.-G. reported in August 2017 seeing
mother smoking methamphetamine and selling psychotropic and ADHD medication to
others. Mother was asked to take a drug test by Marin CPS to allow further contact with
N.C.-G., but mother refused. (See In re Noah G. (2016) 247 Cal. App. 4th 1292, 1304
(Noah G.) [“common sense suggests a parent who consistently fails to appear for drug
tests does so because of a consciousness of guilt”].) Finally, mother did not produce any
evidence at the January 2018 permanency planning hearing that she was engaged in
treatment of any kind.
There is thus no evidence in the record that mother attempted to maintain her
sobriety or seek treatment to address her addiction and mental health issues in the 10
months prior to the permanency planning hearing and, indeed, the clear implication is
that mother was, again, actively using. Equally concerning, mother’s recent statements
reflected the same lack of awareness about the consequences of her substance abuse that
she had demonstrated at the beginning of this case. At the six-month postpermanency
review in May 2017, she testified: “ ‘I get the purpose that I can’t use meth. I don’t get
the fact that anyone can show me to be unfit because I use meth.’ ” (C.C. v. Superior
Court, supra, A151400.) More recently, she testified repeatedly at the permanency
planning hearing that, while she was an addict, her drug usage did not negatively impact
her ability to parent Caden.
Under similar circumstances, a number of courts have found application of the
beneficial relationship exception inappropriate. (See Noah G., supra, 247 Cal.App.4th at
pp. 1302, 1304 [in considering the beneficial relationship exception, “the juvenile court
could properly focus on the mother’s unresolved substance addiction issues because the
children became dependents of the court due to her drug abuse”; citing mother’s
continuing drug abuse as “evidence continuing the parent-child relationship would not be
beneficial”]; Breanna S., supra, 8 Cal.App.5th at p. 648 [“in balancing the benefit to [the
children] of adoption and the possible detriment from terminating their relationship with
26
their mother, the juvenile court properly expressed concern over the continuing violence
that characterized [the mother’s] relationship with [the father], the very reason that
dependency jurisdiction was exercised in the first place”].) In In re Marcelo B. (2012)
209 Cal. App. 4th 635, the parents—chronic alcoholics—had successfully reunified in a
prior dependency case and then “promptly relapsed.” (Id. at p. 643.) “More ominously,
both denied the extent of their alcohol abuse and its negative impact on their ability to
parent Marcelo.” (Ibid.) In upholding the juvenile court’s refusal to apply the beneficial
relationship exception in that case—despite the fact the parents had “demonstrated that
they have a warm and affectionate relationship with their son”—the appellate court
opined: “We are sorry for the parents who, notwithstanding their alcoholism, love their
son. This is not enough. . . . The Legislature has determined that the protection of the
child is paramount.” (Id. at pp. 644–645.)
Conversely, in cases where application of the beneficial relationship exception has
been found or upheld, the parents were actively involved in maintaining their sobriety or
complying substantially with their case plan. For example, in the seminal case of In re
S.B. (2008) 164 Cal. App. 4th 289, the father admitted to using methamphetamine “ ‘on
and off’ ” for 30 years. (Id. at p. 293.) However, after the child was removed from the
father’s custody, he complied with every aspect of his case plan including maintaining his
sobriety. (Ibid.) The child welfare agency acknowledged “ ‘consistent efforts’ ” on the
father’s part “ ‘to alleviate and or mitigate the reasons his family was brought to the
attention of the court.’ ” (Id. at p. 294.) In concluding the beneficial relationship
exception applied, the appellate court reasoned that father’s full compliance with the case
plan evidenced his constant devotion to the child’s welfare. (Id. at pp. 300–301; see In re
Amber M. (2002) 103 Cal. App. 4th 681, 686–687, 690–691 [concluding the juvenile court
erred in refusing to apply the beneficial relationship exception where mother had been
clean for 372 days, was “progressing in treatment,” was devoted to her children, and “did
virtually all that was asked of her to regain custody”]; In re Brandon C. (1999)
71 Cal. App. 4th 1530, 1535 [upholding beneficial relationship exception where mother
visited weekly, maintained a suitable residence for six months, was employed, and was
27
participating in substance abuse treatment]; E.T., supra, 31 Cal.App.5th at p. 78
[reversing juvenile court’s rejection of beneficial relationship exception where mother
voluntarily reported her drug relapse and sought treatment and support, remained in
treatment and stayed sober for more than nine months, and “did all she was asked to do
and more”].)
In the present case, mother failed to engage in her case plan or seek treatment of
any kind in the 10 months leading up to the permanency hearing, was actively abusing
drugs again, and was in denial about her ability to parent under the influence of
methamphetamine. Mother once understood that Caden’s emotional and physical
well-being had been placed at significant risk by her drug addiction and untreated mental
health issues, and it is disheartening to see those lessons forgotten. No reasonable court
would apply the beneficial relationship exception on this record of mother’s
disengagement from treatment and case plan, inability or unwillingness to remain sober,
and deficient insight regarding her parenting.
Our review of the record also compels the conclusion that long-term foster care
was not in Caden’s best interests. The juvenile court was required to balance “the
strength and quality of the natural parent/child relationship in a tenuous placement
against the security and the sense of belonging a new family would confer.” (Autumn H.,
supra, 27 Cal.App.4th at p. 575, italics added.) The question is not, as the court’s
findings seem to imply, whether mother’s parental bond trumped the bond Caden shared
with his current caregiver. It is instead an inquiry into whether mother’s bond with
Caden was such a positive influence on his young life that an uncertain future is an
acceptable price to pay for maintaining it. (See, e.g., In re Anthony B. (2015) 239
Cal. App. 4th 389, 396 [“The issue here is not whether there was a bond between Father
and [child]. The question is whether that relationship remained so significant and
compelling in [the child’s] life that the benefit of preserving it outweighed the stability
and benefits of adoption.”]; see also Tabatha G., supra, 45 Cal.App.4th at p. 1165 [the
exceptions to adoption set forth in section 366.26, subdivision (c)(1) “are a final check to
28
ensure termination of parental rights is in the best interests of the minor and is the least
detrimental alternative” (italics added).)
The juvenile court’s bare assertion that the “relationship [between Caden and
mother] outweighed any prospective adoption” sheds no light on how the court balanced
these competing detriments. In the absence of any explanation, we look to the evidence
as a whole to ascertain if it supports the juvenile court’s determination. We conclude it
does not. At the time of the permanency planning hearing, legal guardianship was not a
viable option. The only remaining alternative—foster placement—had already proved
itself destabilizing, with Caden removed from four different homes due to mother’s
constant interference and efforts to undermine the foster families. When we previously
affirmed the juvenile court’s order reducing visitation, we concluded that “mother
consistently fueled Caden’s belief that he would soon return home, a belief that was
unrealistic given mother’s inability to cease using methamphetamine, and one that
fostered anxiety in the minor and that undermined placement after placement.” (C.C. v.
Superior Court, supra, A151400.) In addition, the record discloses a recent example of a
failed guardianship, N.C.-G.’s, which the social worker attributed to a long child welfare
history characterized by “poor boundaries [and] a lack of protection for [N.C.-G.]
regarding Mom being able to basically maneuver in and out of her life. . . . Hence, she’s
now a dependent at 16 years old.”
Dr. Lieberman opined that, despite Caden’s love for his mother, any placement
other than adoption would pose “an unacceptable risk” to the minor’s well-being, given
mother’s “continued emotional instability and damaging behavior” (underscoring
omitted), such as her interference with the stability of Caden’s placements and her recent
inability to provide safe care for N.C.-G.6 Dr. Lieberman identified Caden as a
6
The juvenile court appears to have almost entirely ignored Dr. Lieberman’s
opinions, noting that she never interviewed or met Caden in person. While lack of
personal contact would have been a basis to question the validity of a bonding study,
Dr. Lieberman’s report is not a bonding study. Rather—accepting the existence of the
strong mother-child bond as described by Dr. Molesworth—Dr. Lieberman’s report is the
only expert evidence in the record that attempts to balance the detriments involved in this
29
developmentally vulnerable child with a diagnosis of PTSD and exposure to numerous
traumatic events from an early age. Her uncontroverted testimony established that,
because of these factors, Caden is at “exponentially higher risk” for future psychiatric
problems and that the recommended course of action to alleviate the long-term effect of
these risk factors is “safe and predictable caregiving.” Dr. Lieberman added that in light
of the minor’s learning disabilities, “stability of placement with a caring and reliable
caregiver is an imperative in efforts to protect his physical and mental health.” (Italics
added.) Dr. Molesworth agreed that Caden is a vulnerable child who has suffered
significant trauma. Dr. Molesworth’s bonding study focused on the harm that Caden
would experience from losing contact with his mother, but it did not consider the harm
that would befall Caden if mother continued to abuse drugs and was unable to reunify
with him, if Caden cycled through more foster homes, or if mother continued
undermining his foster placements. For an especially vulnerable child such as Caden,
who has suffered significant trauma in his young life, the justification for blocking
adoption must indeed be exceptional. Once it became clear at the February 2018
permanency hearing that Ms. H. would not agree to be Caden’s legal guardian, and
long-term foster care was the only alternative to adoption, this factor took on particular
urgency.
The juvenile court’s order also failed to address the substantial evidence that,
although Caden enjoyed visiting with mother, their interactions were often detrimental to
his well-being. Throughout these proceedings, mother persistently treated Caden as a
peer rather than a child, exposing him to inappropriate and anxiety-provoking
information. She showed an inability to focus on his needs, instead relying on the minor
for her own emotional support. For his part, Caden felt the need to take care of mother
case and opine on the least detrimental alternative for the minor. Dr. Molesworth’s
report, in contrast, examined only the existence of a parental bond, and did not purport to
opine on mother’s parenting abilities, her psychological functioning or sobriety, or
Caden’s stability of placement with his current caregiver. That the juvenile court failed
to appreciate this distinction suggests that it misapprehended the analytical task before it
and assumed that establishment of a beneficial relationship was the end of the story.
30
and ensure her safety. These interactions led to what the social worker described as a
“toxic” relationship, in which the “child is unable to separate from [mother] due to a high
level of concern about her well-being” and he is “exposed to conversations that cause fear
and create behaviors that jeopardize his safety, emotional well-being, and education.”
(C.C. v. Superior Court, supra, A151400.) In recommending reduced visitation,
Dr. Lieberman stated that “the child’s frequent contact with the parent who is unstable
left the child in a state of heightened anxiety as he regularly needed to prepare himself for
the visit.” The 11-member review team concurred, finding that Caden’s frequent
visitation with mother was unhealthy and was sabotaging his stability. Dr. Lieberman
described Caden’s attachment to his mother as involving a damaging mixture of
preoccupation and anger. Even in his own interactions with the minor, Dr. Molesworth
observed the same “intense preoccupation” with mother that could interfere with his
development of relationships with others. In short, there was overwhelming evidence in
this case that, while mother’s bond with Caden was undeniably strong, it was not of a
quality that justifies disrupting a plan of adoption for the minor.
Finally, the evidence is compelling that Ms. H. was uniquely situated to provide
this young, traumatized, and special needs minor with a healing and supportive
permanent home. Ms. H. has shown a remarkable commitment to Caden’s well-being
since he was initially placed in her home over five years ago, regardless of where and
with whom he was placed. Dr. Lieberman characterized Ms. H. as the only caregiver in
Caden’s life who had enabled him “to feel that he is in the care of a consistent and
predictable adult who keeps him safe and reliably looks out for his physical and
emotional needs.” (Underscoring omitted.) This commitment has also allowed Ms. H. to
act as the minor’s secure base—the adult with whom he feels the most safe. She has
demonstrated an ability to support, empathize, and acknowledge the legitimacy of
Caden’s sadness that he is not able to live with the mother he loves, a trait Dr. Lieberman
identified as a protective factor against harm from loss.
Given all of these circumstances, when the strength and quality of mother’s
relationship with Caden in a tenuous placement is properly balanced against the security
31
and sense of belonging adoption by Ms. H. would confer, no reasonable court could have
concluded that a compelling justification had been made for forgoing adoption. We
therefore reverse the juvenile court’s determination in this matter and remand with
instructions to hold a permanency planning hearing pursuant to section 366.26, at which
parental rights should be terminated and a plan of adoption ordered for Caden. We
recognize, however, that the prior hearing in this matter occurred over a year ago and that
childhood does not wait for the completion of our court process. Thus, it is possible that
a significant change of circumstances may have occurred since the initial permanency
planning hearing which points to a permanent plan other than adoption for this minor.
We stress, though, that any deviation from the statutorily preferred plan of adoption must
be in the minor’s best interests. (§ 388; see G.B., supra, 227 Cal.App.4th at p. 1157.)
Finally, we note that mother’s love for Caden is palpable. It is our hope that, moving
forward, this strong and abiding love will allow mother to fully support Caden’s clear
need for a permanent alternative home.
III. DISPOSITION
The judgment is reversed. The juvenile court is instructed to hold a new
permanency planning hearing forthwith, at which parental rights should be terminated
and a permanent plan of adoption ordered, absent a compelling showing by any party
pursuant to section 388 that changed circumstances and Caden’s best interests currently
mandate some lesser level of permanency.
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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Margulies, J.
A153925, A154042 In re Caden C.
33
Trial Court: San Francisco City and County Superior Court
Trial Judge: Hon. Monica Wiley
Counsel:
Dennis J. Herrera, City Attorney, Kimiko Burton, Lead Attorney; Gordon-Creed,
Kelley Holl and Sugerman, Jeremy Sugerman and Katie Curtis for Plaintiff and
Appellant San Francisco Human Services Agency.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Respondent Christine C.
Michelle Danley, under appointment by the Court of Appeal, for Defendant and
Respondent Brian C.
Deborah Dentler, under appointment by the Court of Appeal, for Appellant Minor
Caden C.
A153925, A154042 In re Caden C.
34