In re Clare M. CA1/2

Filed 3/3/23 In re Clare M. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Clare M. et al., Persons
Coming Under the Juvenile Court
Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES,
A165575
Plaintiff and Respondent,
v. (Marin County
Super. Ct. Nos. JV27036A,
C.E.,
JV27086A)
Defendant and Appellant.
After finding that appellant C.E. (mother) had failed to demonstrate
the applicability of the beneficial parental relationship exception under
Welfare and Institutions Code1 section 366.26, subdivision (c)(1)(B)(i) with
respect to her children Clare M. and E.E., the juvenile court terminated her
parental rights. Mother argues that the juvenile court erred in failing to find
the exception applicable under In re Caden C. (2021) 11 Cal.5th 614 (Caden
C.), that the court erred in denying her motion for a bonding study, and that
reversal is required by the failure of the Marin County Health and Human
Services Department (department) to provide her appellate counsel with
1 Further statutory references are to the Welfare and Institutions Code.
1
certain of the department’s delivered service logs with respect to the children.
We affirm.
BACKGROUND
On December 3, 2020, the department filed a juvenile dependency
petition pursuant to section 300, subdivision (b)(1) with respect to then three-
year-old C.M. and six-year old Clare M., alleging that the children were at
substantial risk of serious physical harm or illness due to mother’s alcohol
abuse and failure to protect them from violent and aggressive behavior.2
According to the petition, on December 1, 2020, law enforcement had
conducted a welfare check at a boat where mother was living with the
children, finding her “highly intoxicated from alcohol” and noting that she
was “aggressive, uncooperative, refused to provide identifying information for
her children, and was unable and unwilling to make provisions for her
children’s’ care.”
A detention hearing took place over Zoom on December 15, at which
hearing the juvenile court continued the children’s detention and set a
contested jurisdiction hearing for January 5, 2021.
At the jurisdiction hearing on January 5, the juvenile court sustained
the allegations of the petition and set a disposition hearing for January 19.
On January 21, the department filed disposition reports recommending
that the court declare the children dependents of the court, order
reunification services for mother, and order that the parties adopt the
department’s proposed case plan. The report identified the main problem
2 The petition itself does not appear to be part of the record on appeal.
On our own motion, in order to provide the factual and procedural
background, we take judicial notice of the record in a related appeal,
A162576, which contains the petition. (See Evid. Code, §§ 459, subd. (a); 452,
subd. (d).)
2
requiring intervention as mother’s “chronic alcohol use,” and noted that
mother’s refusal to communicate with the social worker regarding her case
made further assessment difficult. However, the report also noted that
mother’s “bizarre statements to the Undersigned and other Department
social workers about taking legal action in federal court and refusing to
accept the validity of the Marin County Juvenile Court’s proceedings also
suggests [mother] may have an underlying mental health condition.” The
department’s case plan included that mother complete a psychological
evaluation and a substance abuse program.
Contested disposition hearings took place on February 11. The juvenile
court found, by clear and convincing evidence, that placement of the children
with mother would be detrimental to their safety, protection, physical, or
emotional well-being due to mother’s “long-standing, very significant alcohol
problem” and “issues with some substandard living conditions, lack of
supervision, lack of medical care and lack of addressing educational needs.”
The juvenile court ordered supervised visitation with Clare M. for one hour
per week, and visitation with C.M. for one per hour per week, plus one 30-
minute video call per week. A six-month status review hearing was set for
August 10.3
In March, mother gave birth to E.E. in a hotel room. On March 30, the
juvenile court issued a protective custody warrant for E.E. due to mother’s
substance abuse and unaddressed mental health issues.
3
On April 9, 2021, mother, C.M.’s father, and Clare M.’s father filed a
joint notice of appeal of the “Child Welfare Services Case Plan” dated
February 2, 2021. On December 30, 2021, we affirmed. (In re Clare M. (Dec.
30, 2021, A162576) [nonpub. opn.].)
3
A detention hearing for the newborn E.E. took place on April 13.
According to the detention report, mother’s whereabouts were unknown, and
she had refused to produce E.E. in response to the protective custody
warrant. The juvenile court ordered that E.E., once located, be detained from
mother’s care, and issued a warrant for mother’s arrest under section 339.
The juvenile court set a combined jurisdiction and disposition hearing for
May 18.
Mother was arrested in Alturas, California on April 13 and E.E. was
taken into protective custody. At a contested hearing on July 1, the juvenile
court sustained the allegations of the petition and ordered that E.E. remain
in out-of-home care. A six-month status review hearing for E.E. was set for
December 17.
On or around October 5, the juvenile court terminated mother’s
reunification services with respect to Clare M. and set a section 366.26
hearing for February 1, 2022.4
On November 19, in advance of the six-month status review hearing set
for December 17 in E.E.’s case, the department filed a status report
recommending that mother’s reunification services with respect to E.E. be
terminated and requesting that the juvenile set a section 366.26 hearing to
determine a permanent plan for E.E. The report indicated that mother
“continues to state that she does not need inpatient substance abuse
treatment and feels that her alcohol use is no longer a problem.” Although
mother “seems to agree with the psychological evaluation that she has
extensive trauma that requires treatment” and “has named multiple
4According to the department’s brief, mother’s reunification services
were also terminated as to C.M., whose dependency was later dismissed after
he reunified with his father. C.M. is not at issue in this appeal.
4
therapists,” she “either will not sign releases and/or is not following up with
them.” The social worker “remain[ed] extremely concerned about [mother]’s
mental health, substance abuse, and ability to trust and follow the
recommendations of professionals.”
At the six-month status review hearing on December 17, mother
requested a contested hearing, which was set for January 13, 2022.
At the contested hearing on January 13, the juvenile court terminated
mother’s reunification services with respect to E.E. and set a section 366.26
hearing for May 10, 2022. Meanwhile, the section 366.26 hearing as to Clare
M. was continued several times.
Mother’s Motion for a Bonding Study
At a hearing on March 22, mother’s counsel indicated that she would be
filing a motion for a bonding study. The court set a briefing schedule and a
hearing on the motion for April 19.
On April 19, the juvenile court heard argument on mother’s motion for
a bonding study, and at the conclusion of that hearing, ruled as follows:
“THE COURT: So the matter, as you know, comes before the Court on
a request for the bonding study. As noted by minor’s counsel, I do
understand that request in the post-[Caden C.] world, and I understand why
Ms. Bazar [mother’s counsel] has made it now, which is really her first
opportunity to do so.
“However, I do note that mother declined representation by court-
appointed attorneys, retained her own attorney, and that was a decision that
was made.
“So the gist—let me start here: There is no requirement in statutory or
case law that a court must secure a bonding study as a condition precedent to
a termination order.
5
“The authority for ordering the study would come by way of Evidence
Code Section 730, which provides, in relevant part: ‘Where it appears to the
Court that expert evidence is, or may be, required, the Court may appoint one
or more experts to investigate, to render a report as may be ordered by the
Court, and to testify as to an expert at trial of the action relative to the fact or
matter as to which the expert evidence is, or may be, triggered.’
“I am aware that the recent case of [Caden C.] recognizes, and here’s
the quote, ‘Often expert psychologists who have observed the child and
parent and,’ quote, ‘can synthesize others’ observations will be an important
source of information.’
“I emphasize the two words, ‘Often,’ and, ‘Can.’ There’s no mandate.
So my inquiry here is whether the findings of the bonding study are
necessary and important.
“First, I want to address the issue of timing. Although, the
preservation of a minor’s family is one of the goals of the dependency laws, it
is of critical importance only at the point in the proceedings when the court
removes a dependent child from parental custody.
“Family preservation ceases to be an overriding concern if a dependent
child can’t be safely returned to parental custody and the Court terminates
reunification services.
“Then the focus shifts from the parents’ interest in reunification to the
child’s interest in permanency and stability.
“So by the time of the permanency planning hearing, a parent’s right to
develop further evidence regarding the bonding with the child is approaching
the vanishing point. That’s [In re] Richard C. (1998) [68] Cal.App.4[t]h 1191,
and [In re] Lorenzo C. [(1997)] 54 Cal.App.4[t]h [1330].
6
“The issue of parental bond is, therefore, important, but is not a
primary issue under the circumstances. It is unlikely that a bonding study
would have been—excuse me—the purpose of ordering a bonding study is to
have an expert determine and then testify to the attachment, if any, between
the parent and the child.
“And the mother will have an opportunity to present that evidence
during the hearing. But this court will not delay the proceedings any further
nor submit the minor to a study.
“A bonding study after termination of reunification services frequently
requires delays in permanency planning.
“Similar requests to acquire additional evidence in support of parents’
claim could be asserted in nearly every dependency proceeding where the
parent is maintaining some contact with the child.
“The legislature did not contemplate such last-minute efforts to put off
permanent placement. While it is not beyond the juvenile court’s discretion
to appoint a bonding study under compelling circumstances, the denial of a
request for such a study is fully consistent with the scheme of the dependency
statutes and due process, again, citing Richard C.
“I believe that Clare deserves to have the matter resolved and to obtain
stability one way or the [other], and whatever that stability looks like.
“Further, I don’t believe it is likely that a bonding study would be
useful to the juvenile court in this particular case.
“There have been extensive social studies. There have been numerous
contested hearings. In this case, I have presided over the case from the
beginning so I have a very in-depth knowledge of the case.
“And, here, an expert’s snapshot of interactions between mother and
Clare, I don’t believe would be that helpful.
7
“I have had an opportunity to observe and read and involve myself in
this case over the last 17 months, and I believe that I have the necessary
information to proceed without the need for a bonding study.
“So, Ms. Bazar, the request for the bonding study is denied.”
The Section 366.26 Hearings
Section 366.26 hearings with respect to Clare and E.E. were ultimately
held together on May 11, 2022.
By way of brief background leading to them, on January 28, 2022, the
department filed a section 366.26 report in Clare’s case in anticipation of the
section 366.26 hearing then set for February 1, 2022. The report
recommended that the court terminate mother’s parental rights and order
adoption as the permanent plan. The report summarized the frequency of
mother’s visitation with Clare and E.E. as follows:
“At the Detention Hearing on December 15, 2020, the Court ordered
visits as once a week for an hour, supervised. However, because Clare’s
brother had a second 30-minute virtual visit per week, this was extended to
include Clare. . . . ”
The report indicated that mother had attended nine visits between
December 17 and February 15, with six virtual and one by telephone. She
had missed three visits. The report continued:
“[Mother] attended nine out of 12 possible visits during this reporting
period, which is approximately 75%. It should be noted that [mother] left the
state for a gem show and that she missed one potential in person visit on
January 29, 2021, but did attend the visit virtually. During the first visit on
December 17, 2020, [mother] let the children know she loved them and
missed them. She made age appropriate conversation and when Clare told
her mother she wanted to come home, [mother] did a good job of reassuring
8
her that she is okay and being well cared for. The second visit, on January 6,
2021, was very similar in that the children and [mother] expressed that they
loved each other, shared hugs, and engaged in positive, age-appropriate
conversation.
“However, from this point onward, Clare became less engaged in visits,
and chose to shorten the length of her visits to play. On January 8, 2021, the
visit only last 15 minutes as Clare and her brother [C.M.] asked to end the
visit early so they could play. On January 15, 2021, the children played with
each other while [mother] watched them and engaged with them. On
January 20, 2021, the visit was a phone [visit] due to [mother] having
technical issues. This visit lasted one minute, as Clare got on the phone and
said, ‘I love you’ but expressed that she did not wish to talk. During the visit
on January 22, 2021, Clare lasted ten minutes and the said she preferred to
go play. Again, on February 3, 2021, Clare asked to leave after saying hello.
On February 5, 2021, the visit did last the entire 30 minutes.”
From disposition on February 11 through the six-month review on
October 5, the report indicated that mother had attended 28 visits by date,
10 virtual and one by phone. She had missed 13 visits. The report went on:
“During this reporting period, [mother] attended 28 out of 54 potential
visits (not including the visit the Resource Parent cancelled), which is
approximately 55%. It should be noted that this includes 14 potential visits
that would have been offered in May 2021 and June 2021 had [mother]
continued to visit. However, on April 30, 2021, [mother] was pulled from the
visit calendar as a result of her having missed four consecutive visits. It
should also be noted that on, or about June 30, 2021, in person visits were
increased from one hour to one and a half hours in lieu of a second, 30-minute
virtual visit. [¶] . . . [¶]
9
“Often during virtual visits, Clare would come in and out of the view of
the screen and would often ask to end the visit early, or not participate in the
visit because she preferred to go play or watch a movie. Clare would
frequently tell her mother that she loved her, but she wanted to ‘go play.’
Visits were sometimes decreased from 30 minutes to 15 minutes. On June
30, 2021, [mother] requested to end the visit early when Clare’s baby brother,
[E.E.], was inconsolable. It was also reported by the Resource Parent that
Clare had stated at one point that she did not wish to visit.”
At the six-month review hearing on October 5, 2021, the court ordered
supervised visits twice a month, for a total of two hours per month. For the
period from the six-month review on October 5 through the section 366.26
selection and implementation hearing on February 1, 2022, mother had
attended six visits, and missed two.
On April 14, the department filed a first addendum to the section
366.26 report. The report indicated that “[s]ince the original 366.26 report
was written, [mother] has had the opportunity to participate in four
additional visits. The first visit was scheduled for February 3, 2022.
[Mother] called to confirm her visit in the morning, but later called to cancel,
stating it interfered with her mother’s wake. The Department offered a
courtesy make up visit which was scheduled for February 10, 2022. [Mother]
failed to call in for this visit. [Mother] has never communicated that she had
technical or communication issues with her phone preventing her from
calling in. Recently she, in fact reported, she had not forgotten to call in, but
that she was busy with other calls and lost track of the time—this resulted in
her failing to call and confirm that visit. The next two visits occurred on
February 17, 2022, and March 10, 2022. [Mother] had a fourth visit
scheduled for March 17, 2022.
10
“In summary, [mother] attended eight out of 12 (13 if you count the
makeup visit) potential visits, which is approximately 66% attendance for all
visits during this reporting period.”
The addendum went on:
“As mentioned above, during the first few months of the case, from
detention to disposition, [mother]’s visitation attendance was 75%, or 9 out of
12 possible visits. During the Family Reunification portion of the case,
[mother] attended 28 out of 54 potential visits, or 55%. It should be noted
that some of these missed visits with Clare came during the period [mother]
chose to evade the emergency protective warrant for [E.E.]. In other words,
[mother] made a very clear choice to abandon her visits with Clare with
apparent disregard of the immediate emotional impact this could have on
Clare. This conduct appears to be consistent with prior reports from Clare
that [mother] would leave Clare and her siblings for long periods.
“Even after Clare’s half-sibling [E.E.] came into custody after her
arrest, [mother] made limited efforts to visit all three children despite efforts
by the department. These efforts were detailed in full in the status review
report prepared for August 10, 2021. During this period [mother] sent
numerous emails and text messages to the department regarding her refusal,
at the time, to comply with the department’s Covid-19 guidelines for visits.
For example, in one email on May 18, 2021, [mother] wrote: ‘I’m sorry. I will
not be subjecting myself to the “rules” of your pirate [sic] organization limited
viewing of my children. Please don’t contact me anymore . . . ” . . . .
“From the termination of [mother]’s reunification services through to
the writing of this report, [mother]’s participation in visits has been
approximately 66% (7 out of 12 visits).
11
“Thus, in sum, [mother] has taken advantage of just 44 of the
78 scheduled visits with Clare from the beginning of the case. This
essentially translates to [mother] taking advantage of approximately 56% of
the opportunities provided to her to maintain her connection with Clare.”
As noted, the section 366.26 hearings for Clare and E.E. took place on
May 11, 2022. Mother was not present. At the conclusion of the hearing,
with respect to Clare, the juvenile court ruled as follows:
“THE COURT: Okay.
“Back on the record in the matter of Clare [M.]
“I have heard the evidence and the arguments presented at this
Selection & Implementation Hearing.
“The purpose of a Selection & Implementation Hearing is to select the
most appropriate path for this child. The first issue of course is is there clear
and convincing evidence that Clare is likely to be adopted? Yes, there is.
Clare is developmentally and physically healthy. She is described by her
teachers as being a joy, she has friends, so by all indications it shows that she
is generally adoptable.
“She has also been living in a resource home for well over a year, and I
understand that resource parent wishes to provide a permanent home
through adoption for Clare, so she is also specifically adoptable.
“Moving past that, we move to any exceptions to that general rule,
because once that is met the Court shall terminate parental rights unless an
exception is met.
“The exception that has been raised today is the beneficial relationship
exception, and I’m going to walk through that a bit. Much as Ms. Frey
[counsel for the department] outlined for us, it’s been the subject of many
cases over the last period of time, and it is a subtly shifting target. I want to
12
lean on some language from the Caden C. case that the Court must sift
through complicated facts, consider practical realities, and envision a child’s
future under contingent conditions, so I will take on that task to the best of
my abilities.
“In order to establish a beneficial relationship, the burden shifts from
the Department to the parent, and there are three major elements that the
parents must prove.
“The first is that the parents have regular and continuous visitation,
and they continue to develop a significant positive, emotional attachment
from the child to the parent.
“I cannot say that mother has engaged in regular visitation. I know
that the percentage is 56 percent, that is a number. Part of that was because
mother absconded from the area for a significant period of time with another
child. Part of it is that mother, I think to a great extent due to some
oppositional thinking on her part, declined to comply with COVID
requirements which this Court and the Department had imposed for Clare’s
safety, and part of it I think has to do with a confrontational style and not
enjoying, from what I’ve read from the service delivery logs and my interacts
with mother is that she doesn’t want to be told what to do, so be that as it
may I cannot say she has had regular and consistent visitation.
“I do note, and I have had the benefit of the service logs, thank you,
that the visits when they do occur are very nice. Mother can be charming,
generous, playful. I do notice that she does impose on Clare a lot of
responsibility for the care of [C.M.] during those visits. And I think
somebody mentioned the word parentification somewhere along the line, and
certainly there’s some indication of that during the visits, and also I’m going
to talk about that a little bit later.
13
“Father has been more consistent. However, I have to note he’s never
once made the drive down to have an in-person visit, and if he ever wanted
to, that could easily have been arranged if he ever presented himself for an
in-person visit.
“I also note that Clare does have these visits with father, but they’re
often cut short, she does not linger, and she transitions easily, and that’s also
with her visits with mother, not that they are cut short, but that Clare does
not linger, she doesn't seem upset at the end of the visits, et cetera.
“Mother definitely has not met the first criteria, father a little bit more
so.
“Looking at the second criteria where the focus is on the child. I look at
the child’s age. Clare is now seven, and she was removed when she was four,
just about to turn five.
“So what is the percentage of time spent in each parent’s custody,
because that is a factor for the Court to look at. Clare apparently spent the
first years of her life, before December of 2020, mostly in her mother’s care.
“The information and evidence that this court has received that mother
lived in the property up in Hayfork, California, where [Clare’s father] was, for
a period of time.
“I recall asking if they ever lived together, and I think I was told they
never lived together, but rather that mother lived in the same vicinity, so it
doesn’t appear to me that Clare has ever actually lived with [her father]. He
says ‘yes’, mother said ‘no’, so even if he has, it’s never been for a significant
period of time.
“What has been the positive and negative effect of interactions between
the parent and child? Well, certainly the visits with father are friendly, but
there doesn’t appear to be strong, emotional bonding, they often end early,
14
and again, Clare does not seem concerned or upset by the existence or
nonexistence of these visits, I’m not aware that she ever asks for them, and
that’s with respect to father.
“With respect to mother, I’ll talk about that in just a moment.
“The next factor under focus on the child is the child’s particular needs.
“Now, we do know that when Clare came into our care she had not been
in school, she had had very limit[ed] socialization, very limited, if any,
medical care, and there was very[,] very significant neglect, and she had been
exposed to domestic violence and substance abuse. So this was a child that
came into care with pretty high needs. She has since done well, as I
evidenced by the teacher’s comments.
“Does she still have some emotional issues to address? Yes. Her
therapist has diagnosed her with adjustment disorder, unspecified. And of
course she’s going to struggle with, every child struggles to want to be with a
parent no matter what, so I'm not saying that doesn’t exist, I’m just
commenting that injects the position to her needs.
“Now, looking at the third element, which is would termination of the
parental rights be detrimental? In other words, does the detriment outweigh
the benefit in the new adoptive home? In other words, how would the child
be affected by losing the parental relationship? What would life be like for
the child in an adoptive home without the parent in the child's life?
“Clare seems to be doing quite well now in the adoptive home without
very significant interaction with her parents.
“And one of the things that really caught my attention when I was
looking through the delivery service logs was that there was a relative who
expressed an interest in providing long term care for Clare and [E.E.], and
that relative may have had other issues, but the issue communicated to the
15
Department was that that relative and other members in the family felt that
interference from mother and father would prove to be too destabilizing, too
difficult, shall we say, and they declined to proceed with any placement on
that grounds. I think also there was an issue of perhaps not being ready to
take on that responsibility.
“That was very telling to me, because it relayed that we’ve experienced
the instability of these parents in these proceedings, but it also tells me that
the family, who has known them for many many many years, has also
experienced it to such a degree that they don’t want any part of it.
“So can I say that the preservation of a parental bond, which, as I said,
has its challenges here, outweighs the benefit in the new adoptive home? No,
I cannot say that.
“Clare is happy, healthy, socialized, and doing well. And while she does
have a bond with her mother, I’m not denying that, it is not necessarily a
healthy bond.
“She is anxious. She has stated that her resource parent keeps her
safe. She has relayed that her mother physically abused her. Those are
negative aspects of that relationship.
“So as I look at all of these factors, I consider the arguments made by
the Department, I consider the arguments made by all parties, I am finding
that the parents have not established that beneficial relationship would exist
and that the preservation of that relationship is detrimental as it does not
outweigh the benefits in the new adoptive home, so having said all that I'm
going to make the findings. . . .”
As to the beneficial parental relationship exception with respect to
E.E., the court found:
16
“With respect to the parental bond exception, I understand mother’s
argument, and I believe that she believes that, I really do. However, the
Court has to look at all of the facts.
“Mother’s visits with [E.E.] have not been that consistent. Recently she
made three of six in the last period. I think overall we’re looking at about a
60 to 70 percent overall visits with [E.E.], and I have it sort of broken up into
periods of time, but I cannot say that it has been consistent.
“I did look at the visits with [E.E.], and the kids in the delivered service
logs, and mother would take [E.E.] out of his stroller and hold him and
bounce him, so it’s clear that she has affection for him. I can’t say that he’s
exhibited anything other than a friendly adult who doesn’t cry when she
leaves, he doesn’t call for her. Mother has indicated that he tried to nurse,
but there was no indication of that in the records, so I don’t see a huge bond
from him to her.
“In terms of the percentage of time spent in the parent’s custody, again,
as pointed out, [E.E.] was in mother’s care for maybe a month or two of his
life, but has been out of her care for the rest of his life, so he certainly does
not have a parental relationship with mother at this point.
“Is there any reason that termination of this would be detrimental? I
don’t think so.
“As I indicated, this is a very young child who sees his resource parent
by all accounts as his stable, primary relationship, and I do not think that
there is any detriment to [E.E.] by a termination of the parental relationship
with mother. [¶] . . . [¶]
“I do think that the benefit of being in an adoptive home clearly
outweighs any detriment to this very slight relationship between mother and
[E.E.], so I will adopt the recommendations, incorporate the findings on the
17
JV-320, set this matter for a six-month post-permanency review on November
1st of 2022.”
Mother filed a notice of appeal.
DISCUSSION
Mother has filed a 101-page, 24,534-word opening brief that is not only
overly long, but poorly organized and written, and difficult to follow.
Under one heading, that “Reversal Is Required Pursuant to the Opinion
in In re Caden C.,” mother makes eight arguments, over 59 pages, with these
separate headings: “The Denial of Appellant’s Request For A Bonding Study
Must Be Reversed”; “The Order Denying The Applicability of the Parental
Rights Exception Must Be Reversed”; “Many of the Assertions Made by the
[Deputy County Counsel] In Closing Argument Must Be Rejected Because
They Introduced Improper Factors Which Influenced The Weighing Process
Of The Court”; “The Failure Of The Juvenile Court To Informatively Analyze
The Parent-Child Interactions, As Required By Caden C. And The Opinion In
M.G., Require Reversal Of The Juvenile Court’s Finding Here”; “Reversal Is
Required Because The Juvenile Court Itself Abused Its Discretion When
Applying Improper Criteria Or Having Injected Improper Factors Into the
Weighing Process”; “Reversal Is Required Because The Juvenile Court Had
Failed In Its Duty To Provide Critical Oversight of The Department”; “The
Further Consideration of Improper Factors By the Court When Orally
Providing Its Decision Requires Reversal”; and “The Evidence In The Group
of DSLs Provided For The Period of 10-5-21 Through 4-21-22 Demonstrates
That The Parent-Child Bond Between Clare and Her Mother Supports a
Finding That the Parental-Rights Exception To Termination of Parental
Rights Applies.”
18
Mother’s brief nowhere clearly articulates the standard of our review,
that we review denial of the motion for a bonding study for abuse of
discretion, and the factual finding that mother did not maintain “regular
visitation and contact” for substantial evidence. Indeed, the brief mentions
“substantial evidence” only twice in its 101 pages, and neither mention serves
to explain the standard or apply it to the record before us. Her brief
repeatedly intermingles and confuses discussion of each of the three separate
prongs of the test set forth in Caden C. And the brief concludes with a two-
page argument that reversal is required because of an amendment to the
minutes indicating that certain of the department’s delivered service logs
were entered into evidence at the hearing on May 11, 2022.
Because almost all of mother’s arguments involve the juvenile court’s
application of the beneficial parental relationship exception, we turn first to
the law of that exception.
The Beneficial Parental Relationship Exception and Caden C.
In In re Eli B. (2022) 73 Cal.App.5th 1061 (Eli B.), we summarized the
applicable law:
“The beneficial relationship test is an exception to the presumptive rule
of terminating parental rights after reunification efforts have failed, in order
to free a child for adoption. (In re J.D. (2021) 70 Cal.App.5th 833, 852
(J.D.).) . . . [T]he Supreme Court [in Caden C., supra, 11 Cal.5th 614] has
recently explained its scope and proper application. [Citation.]
“As clarified by the Supreme Court, ‘ “the parent asserting the parental
benefit exception must show, by a preponderance of the evidence, three
things. The parent must show regular visitation and contact with the child,
taking into account the extent of visitation permitted. Moreover, the parent
must show that the child has a substantial, positive, emotional attachment to
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the parent—the kind of attachment implying that the child would benefit
from continuing the relationship. And the parent must show that
terminating that attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home. When
the parent has met that burden, the parental-benefit exception applies such
that it would not be in the best interest of the child to terminate parental
rights, and the court should select a permanent plan other than adoption.” ’
(J.D., supra, 70 Cal.App.5th at p. 852, quoting Caden C., supra, 11 Cal.5th at
pp. 636–637.)
“We review the juvenile court’s ruling on the first two elements for
substantial evidence. (J.D., supra, 70 Cal.App.5th at p. 853.) We review its
ruling on the third element under a hybrid standard, reviewing its factual
determinations concerning the detriment analysis for substantial evidence
but its ultimate weighing of the relative harms and benefits of terminating
parental rights for an abuse of discretion. (Ibid.)” (Eli B., supra,
73 Cal.App.5th at pp. 1067–1068.)
Under the substantial evidence standard, we “ ‘must review the whole
record in the light most favorable to the [order] below to determine whether it
discloses . . . evidence which is reasonable, credible, and of solid value . . . .’ ”
(In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other
grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229–230.)
“[A] reviewing court should ‘not reweigh the evidence, evaluate the credibility
of witnesses, or resolve evidentiary conflicts.’ ” (Caden C., supra, 11 Cal.5th
at p. 640.) “Rather, we draw all reasonable inferences in support of the
findings, view the record most favorably to the juvenile court’s order, and
affirm the order even if other evidence supports a contrary conclusion.” (In re
Megan S. (2002) 104 Cal.App.4th 247, 251; accord, Caden C., at p. 641.)
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A juvenile court is not required to recite specific findings of fact relative
to its conclusions regarding each of the three elements of the beneficial
relationship exception prior to finding the beneficial relationship exception
does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) Although a
juvenile court’s statement of its findings or an explanation of the reasons for
its decision may be helpful in conducting appellate review, it is not a legal
requirement. (Ibid.) Furthermore, “ ‘ “[w]e must indulge in every
presumption to uphold a judgment” ’ ” (id. at p. 1161), including that the
court “considered all the pertinent matters presented to it and ruled in favor
of the prevailing party.” (Lydig Construction, Inc. v. Martinez Steel Corp.
(2015) 234 Cal.App.4th 937, 945.) Although not required, the court here did
make thorough and careful findings of fact relative to its conclusion that the
first element of the beneficial relationship exception did not apply—findings
that are supported by substantial evidence.
The Lack of Regular Visitation and Contact Finding Is
Supported by Substantial Evidence
The first prong of Caden C.’s test, “regular visitation and contact,” has
been described as “straightforward.” (Caden C., at p. 632.) “The question is
just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’ (In re I.R. (2014) 226 Cal.App.4th 201, 212.)”
(Caden C., at p. 632; J.D., supra, 70 Cal.App.5th at p. 852 [“ ‘The parent must
show regular visitation and contact with the child, taking into account the
extent of visitation permitted’ ”].) As noted, this is a factual finding that we
review for substantial evidence. (Caden C., supra, at p. 639 [“A substantial
evidence standard of review applies to the first two elements”]; J.D., supra,
70 Cal.App.5th at p. 853.) And critically, a finding that mother did not
maintain regular visitation and contact with the children means that the
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parental relationship benefit exception does not apply. (See In re I.R., supra,
226 Cal.App.4th at p. 212 [lack of regular visitation “fatally undermine[s] any
attempt to find the beneficial parental relationship exception”]; In re
Katherine J. (2022) 75 Cal.App.5th 303, 322. fn. 10 [“[A] parent must prove
all three components of the beneficial relationship exception. A failure of
proof on any one of them is fatal”].) The juvenile court’s finding on this is
supported by the record.
According to the section 366.26 report and its addendum, mother was
offered 12 visits in the period from December 15, 2020 to February 11, 2021,
then 54 potential visits in the period from February 11, 2021 to October 5,
2021, and then 12 potential visits from October 5, 2021 to the addendum’s
date of April 19, 2022, for a total of 78 potential visits. Mother missed three,
then 26, and then five of those visits, for a total of 34, meaning that mother
attended 44 out of 78 potential visits, or 56%—barely more than half.
Numerous visits were missed because mother did not call to confirm the visit
or simply did not show up. Others were ended early because Clare wanted to
“go play.” In late April 2021, mother missed four consecutive visits, was
pulled from the visit calendar, and did not visit again until the middle of
June—a two-month lapse—evidently because she was evading the protective
warrant issued with respect to E.E.
Viewing the record in the light most favorable to the juvenile court’s
order, we conclude substantial evidence supports its finding that mother did
not engage in “regular visitation and contact” with the children to “ ‘the
extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632;
see Eli B., supra, 73 Cal.App.5th at p. 1070 [substantial evidence supported
finding father did not maintain “regular visitation and contact” where his
visitation with his children “was sporadic and also entailed significant gaps”];
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In re I.R., supra, 226 Cal.App.4th at p. 212 [error to apply beneficial
relationship exception because “[t]he undisputed evidence is that there was
not regular visitation”; although precise number of visits was in conflict,
testimony of both mother and social workers established there were
“significant lapses in visits”].)
To the extent that mother’s brief makes arguments directed at the
“regular visitation and contact” prong of Caden C.’s test, those arguments are
unavailing.
First, mother argues that she proved regular visitation and contact by a
preponderance of the evidence—a standard that means “evidence that has
more convincing force than that opposed to it”—because she attended more
than 50% of the potential visits offered by the department. (See 1 Witkin,
Cal. Evidence (5th ed. 2022) Burden of Proof and Presumptions, § 36, p. 207.)
This argument improperly conflates the two standards. (See People ex rel.
Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567
[“Preponderance of the evidence means ‘ “that the evidence on one side
outweighs, preponderates over, is more than, the evidence on the other side,
not necessarily in number of witnesses or quantity, but in its effect on those to
whom it is addressed” ’ ”].)
Second, mother makes several vague challenges to the calculation that
she attended 56% of the potential visits, stating that “[t]he record in this case
does not explain how it is that the [department’s counsel] came up with the
claim that the percent of attendance at the visits with Clare were only 56% of
the visits offered.” We do not understand this argument. The section 366.26
report clearly lists each of the potential visits for the period from disposition
through the date of addendum by specific date, explains whether those visits
were in person or virtual, and lists the dates of the visits mother did or did
23
not attend. The report also explains how much visitation was permitted by
court order for each of the periods at issue. What more explanation could
there be?
Third, mother focuses on the argument of the department’s counsel,
asserting that she “misstated the first prong” of Caden C.’s test, “failed to
provide to the court any analysis of the factual underpinnings of its
conclusion that 56% was a correct figure,” and going on to disagree with
various aspects of department counsel’s argument and characterization of the
facts. These arguments are not well-taken, but they all fail for the more
fundamental reason that we review the juvenile court’s ruling for error, not
the parties’ trial arguments. (See People v. Mason (1991) 52 Cal.3d 909, 944
[“It is axiomatic that we review the trial court’s rulings”]; Cal-State Business
Products & Services, Inc v. Ricoh (1993) 12 Cal.App.4th 1666, 1676 [“It is
axiomatic we review judicial action”].) The juvenile correctly stated the law
as set forth in Caden C., and made a factual finding that mother had not
satisfied the first prong of that test—a factual finding that is supported by
substantial evidence.
As noted, the balance of mother’s arguments go to the other prongs of
Caden C.’s test: whether “the child would benefit from continuing the
relationship” (§ 366.26, subd. (c)(1)(B)(i)) and whether “termination would be
detrimental to the child due to” the relationship (§ 366.26, subd. (c)(1)(B).
(Caden C., supra, 11 Cal.5th at pp. 632–633.) For example, mother argues
that the juvenile court failed to consider the positive and negative effects of
the interaction between parent and child. Because mother failed to establish
the first prong, these arguments do not provide any basis for reversal. (See
In re I.R., supra, 226 Cal.App.4th at p. 212; In re Katherine J., supra,
75 Cal.App.5th at p. 322, fn. 10.)
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The Juvenile Court Did Not Abuse Its Discretion In Declining
to Order a Bonding Study
Mother argues that the trial court erred in declining to order a bonding
study, a decision we review for abuse of discretion. (See In re Lorenzo C.,
supra, 54 Cal.App.4th at p. 1341 [“The applicable standard of review is
whether, under all the evidence viewed in a light most favorable to the
juvenile court’s action, the juvenile court could have reasonably refrained
from ordering a bonding study”].) As to what such showing of such abuse
requires, it has been described in terms of a decision that “exceeds the bounds
of reason” (People v. Beames (2007) 40 Cal.4th 907, 920), or one that is
arbitrary, capricious, patently absurd, or even whimsical. (See, e.g., People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 [“ ‘ “arbitrary,
capricious, or patently absurd” ’ ”]; People v. Benavides (2005) 35 Cal.4th 69,
88 [ruling “ ‘ “falls ‘outside the bounds of reason’ ” ’ ”]; People v. Linkenauger
(1995) 32 Cal.App.4th 1603, 1614 [“arbitrary, whimsical, or capricious”].) In
its observation on the subject in a leading case, our Supreme Court said that
“A ruling that constitutes an abuse of discretion has been described as one
that is ‘so irrational or arbitrary that no reasonable person could agree with
it.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773.) Or, as that court put it in its most recent definition,
“arbitrary or irrational.” (In re White (2020) 9 Cal.5th 455, 470.)
Mother does not even attempt to show an abuse of discretion. Instead,
she relies on Caden C.’s statement, while explaining the second element of its
test—whether “the child would benefit from continuing the relationship”
(§ 366.26, subd. (c)(1)(B)(i))—that in evaluating that second element, “[t]rial
courts should seriously consider, where requested and appropriate, allowing
for a bonding study or other relevant expert testimony.” (Caden C., supra,25
11 Cal.5th at p. 633, fn. 4.) Mother asserts that the juvenile court failed to
“seriously consider” allowing a bonding study, but instead “relied upon the
fact that there was no ‘legal mandate’ requiring one.” This argument borders
on the frivolous. The juvenile court received briefing on the motion for a
bonding study, held a hearing on mother’s request with argument from the
parties’ counsel, and gave a detailed explanation on the record for its denial
of the motion, including the timing of the request and the juvenile court’s 27-
month experience with the case. Certainly the court gave mother’s request
“serious” consideration. In any event, as discussed, because mother failed to
demonstrate “regular visitation and contact” under the first prong of Caden
C.’s test, any error in failing to allow for a bonding study in evaluating the
second element does not require reversal of the finding that the exception did
not apply.5
5
By letter dated January 30, 2023, mother’s counsel asks to draw our
attention to the recent opinion in In re M.V. (2023) 87 Cal.App.5th 1155.
There, the juvenile court concluded that a bonding study would be helpful
and ordered one prepared. (Id. at pp. 1168, 1179.) The Court of Appeal found
that the study relied on numerous improper factors such that it ultimately
produced a “nonresponsive evaluation,” and that, in part by relying on the
study, the juvenile court considered improper factors in its analysis of the
second and third prongs of Caden C.’s test. (Id. at pp. 1174−1182,
1184−1186.) In re M.V. did not concern or discuss the issue here: whether it
was appropriate to order a bonding study in the first place. And, as noted,
because the juvenile court here found that mother had failed to demonstrate
Caden C.’s first requirement, In re M.V.’s discussion of Caden C.’s second and
third element is not relevant to the issues before us.
26
The Amendment of the Minutes and Admission of the Delivered
Service Logs Do Not Provide Any Basis for Reversal
Mother’s final argument, to the extent we understand it,6 is based on
the amendment of the minutes on October 27, 2022 to reflect the admission
on May 11, 2022 of an “Exhibit 1,” the department’s delivered service logs.
The argument is apparently based on certain comments by department
counsel at the end of the hearing on the bonding study motion, anticipating
the evidence to be presented at the then-upcoming section 366.26 hearing,
including where she indicated that “all of the case notes from the beginning of
the case . . . would, probably, end up being more like 600 pages.” But
contrary to mother’s suggestion that the juvenile court “determined” that it
wanted all 600 pages admitted into evidence, the court clearly told the
parties that “if you two want to agree as to what I’m going to read, that’s
what I’ll read” and “whatever you two want me to read, I will read.” The
parties evidently ultimately agreed to provide the court with only a portion of
the delivered service logs.
Mother’s counsel has also moved to augment the record, “requesting
that the [department] be ordered to provide me with the initial two portions
of the DSLs for the record, those DSLs being for the initial period, 1-1-21
through 6-14-21, and for the interim period, 6-15-21 through 10-4-21, those
being the DSLs which have not yet been provided.”
6The argument states that “[t]he Department has failed [to] ever
inform appellant and/or this Court whether what was actually admitted into
evidence on May 11, 2022 had included all of the almost 600 pages of the
pages which the Juvenile Court had determined it wanted admitted,” and
that therefore “the Department’s insertion must be reversed due to its
improper insertion of a document or portions of a document or documents
which belong in the record of this Court as to this case and must therefore be
Ordered to be provided with it.”
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According to a declaration of department counsel submitted in
opposition to the motion to augment and an attached email addressed to
mother’s trial counsel, the parties’ counsel had agreed to enter the logs “from
the past six months” or “from October” into evidence, a document totaling
“about 100+ pages” that was attached to the email. Mother’s trial counsel
responded to that email, indicating that she approved having that document
forwarded to the court and marked as an exhibit. Although that document
was not initially included in the record on appeal because it was
“inadvertently not marked as admitted by the clerk in the minutes,” the court
clerk subsequently “amended the May 11, 2022 minute order to reflect
admission of the case notes and transmitted the case notes to the Court of
Appeal in the Supplemental Transmittal of the Record on Appeal dated
October 27, 2022.” Indeed, on October 27, 2022, the record was augmented
pursuant to California Rules of Court, rule 8.340, with approximately 115
pages of delivered service logs dating from October 5, 2021 to April 14, 2022
as well as three pages of minute orders from the May 11 hearing.
In short, the record makes clear that the delivered service logs from the
period January 1, 2021 through October 4, 2021 were never entered into
evidence and were not considered by the trial court. For that reason,
mother’s motion to augment the record on appeal is denied. (See California
Rules of Court, rule 8.155(a)(1)(A) [record on appeal may be augmented to
include “[a]ny document filed or lodged in the case in superior court”];
Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [“As a
general rule, documents not before the trial court cannot be included as part
of the record on appeal and thus must be disregarded as beyond the scope of
appellate review”].) In addition, even if the logs were properly part of the
record on appeal and tended to show that there was an “exceedingly strong
28
bond between the parent and the child,” that would be relevant only to Caden
C.’s second and third prong. As discussed, because mother failed to
demonstrate the first prong, “regular visitation and contact,” the juvenile
court’s finding that the beneficial parental relationship exception did not
apply must still be affirmed.
DISPOSITION
The juvenile court’s order is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Markman, J. *
In re Clare M. (A165575)
*Superior Court of Alameda County, Judge Michael Markman, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30