In re D.M.

Filed 11/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.M. et al., Persons Coming B312479
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. DK05123C-E)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICARDO M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Juvenile Court Referee. Reversed and
remanded.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
**********
Father Ricardo M. appeals the termination of parental rights
to now 13-year-old D.M., 10-year-old R.M. and six-year-old I.M. He
contends the juvenile court abused its discretion because it applied
the wrong legal standard in finding the beneficial relationship
exception to termination of parental rights did not apply. (Welf. &
Inst. Code, § 366.26, subd. (c)(1)(B)(i).) Father argues the juvenile
court did not have the benefit of new authority, In re Caden C.
(2021) 11 Cal.5th 614 (Caden C.), at the time it made its decision,
and based its ruling on improper factors under Caden C. We agree
and reverse and remand for the juvenile court to conduct a new
section 366.26 hearing.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Los Angeles County
Department of Children and Family Services (Department) in
February 2017, following a domestic violence incident between
mother and father. Mother called the child abuse hotline to report
that father had pushed her. Father admitted to mother he was
using methamphetamines. Mother did not work, and father was
the sole financial provider for the family. They were not married
but had been in a relationship for over 14 years.
When father was interviewed by the Department, he denied
any domestic violence or drug use, and he did not appear to be
under the influence of drugs. The children denied witnessing any
domestic violence, but admitted that mother and father argued.
The family has a history with the Department, with referrals
for physical abuse by mother in 2010, emotional abuse and neglect
by mother and father in 2012, and a prior dependency case in 2014
based on domestic violence and mother’s substance abuse. The
family reunified in 2015, and jurisdiction was terminated in 2016.
In this case, the children were initially detained from father
and allowed to remain with mother with family maintenance
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services. Father was required to move out of the family home. The
court issued a temporary restraining order and ordered father’s
visitation to be monitored.
When D.M. was interviewed in April 2017, she reported that
she does not fear father and “would like to see him.” Father asked
the social worker to help facilitate his visitation with the children.
During his April 2017 interview, he was cogent, engaged, and did
not appear to be under the influence of any substances. Father
denied any domestic violence and reported he had learned a lot
from his past programs. He wanted to reconcile with mother and
return to the family residence.
Father visited with the children on April 23, 2017, and the
visit went well. The children were happy to see father. They
hugged him, and father was appropriate and affectionate. He also
provided them with new clothes and shoes.
Father consistently tested negative for drugs in March, April,
and May. He also enrolled in domestic violence counseling in April
2017.
At the May 2017 jurisdictional hearing, the court sustained
domestic violence allegations and removed the children from father.
Father was ordered to drug test, participate in parenting classes,
individual counseling, and a domestic violence program. His
visitation was to be unmonitored as long as he tested negative for
drugs.
Through July 2017, father continued to test negative, and
mother and the children reported that his unmonitored visits were
going well. He visited with the children on Sundays from 9:00 a.m.
until 1:00 p.m.
On November 9, 2017, the Department filed a subsequent
petition under Welfare and Institutions Code section 342, alleging
that mother left the youngest child, then two-year-old I.M.,
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unattended. He was found wandering in a parking lot, wearing
only a diaper, while mother was sleeping in the family’s apartment.
Mother was arrested for felony child endangerment. The children
were detained and placed with maternal aunt.
Father was not communicating with the Department and had
not provided his address, so at the November 14, 2017 review
hearing, the court required that his visits revert to twice weekly,
monitored.
The Department’s January 31, 2018 report stated father had
not made himself available to visit with the children since
November. He canceled scheduled visits or did not show up.
However, he continued to test negative for drugs.
On March 16, 2018, the Department filed a first amended
Welfare and Institutions Code section 342 petition, which added
allegations that father was residing in the family home in violation
of the court’s orders. The court sustained the section 342 petition,
removed the children from mother, ordered the parents to
participate in reunification services, and ordered that visitation was
to be monitored. The court granted mother a temporary restraining
order against father, which the court made permanent on May 30,
2018.
According to the September 2018 status review report,
mother and father “have yet to demonstrate ability to engage and
learn the day to day medical, educational, behavioral, and
emotional needs of the children” and their visitation had been
“inconsistent.” Father continued to consistently test negative for
drugs. He completed parenting and domestic violence programs.
But he did not respond to numerous messages from the social
worker and would not provide a home address for the Department
to assess.
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According to the Department, father was unable to “structure
his visits so as to ensure a healthy dynamic that promotes bond.”
He had difficulty “control[ling] the children” and the children would
not listen to him. He would bring food and gifts and offered
rewards to try to set boundaries with the children, but had a hard
time engaging all of them to ensure that no one was left out. R.M.
and I.M. were out of control during visits, but D.M. tried to help
father with her younger brothers. Both R.M. and I.M. had
tantrums during visits. Father could not redirect them and did not
know how to control the children when they had tantrums.
However, R.M. and I.M. also displayed these same troubling
behaviors with their caregiver, and their behavior was not specific
to father.
The Department’s January 2019 report confirmed that father
continued to test negative. Father’s visits were inconsistent
because he did not always call to confirm the visits in advance, so
they were canceled. However, the children were affectionate with
father during visits. Father still struggled with structuring the
visits and redirecting the younger children during tantrums.
A March 2019 last minute information reported that father
visited the children only once each month in January, February,
and March, even though more visits were available. Father would
play with the children or watch movies during his visits. The social
worker reported that father has “not demonstrated diligence and
genuine effort to learn about the day to day medical, emotional,
developmental, and behavioral needs of [his] children.”
The children had been diagnosed with disorders related to
prenatal alcohol exposure, which caused delays, learning
difficulties, and behavioral and emotional problems. According to
the Department, “the children have a wide range of needs and
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parents have not engaged genuinely to remain informed” about the
children’s needs.
At the May 14, 2019 review hearing, the court terminated the
parents’ reunification services.
The Department’s September 2019 Welfare and Institutions
Code section 366.26 report noted that father was visiting the
children more consistently. He was visiting weekly on Fridays.
Father brought gifts for the children, but still had difficulty
managing all of the children. The Department opined the children
were adoptable, and that maternal aunt was committed to
providing them with permanency, although the Department had
concerns about her ability to care for the children, because she
lacked parenting skills and was not obtaining necessary services for
the children.
The Department’s March 2020 status review report did not
contain an update about father’s visitation and stated further
information about his visitation would be provided by last minute
information. However, no last minute information addressing
father’s visitation was filed by the Department.
The permanency planning hearing was continued due to the
COVID-19 emergency. Father’s visits were temporarily interrupted
by the pandemic, but father visited with the children by video
conferencing. According to the October 2020 review report, “[f]ather
has not demonstrated genuine effort to resume in person visits”
even though the Department tried to schedule in-person visits in
June 2020. Nevertheless, the visitation monitor did not report any
concerns about the quality of father’s visits. A March 9, 2021 in-
person visit with D.M. went well; D.M. “was responsive to her
father.”
A contested Welfare and Institutions Code section 366.26
hearing was held on April 28, 2021. Father testified that he visited
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the children twice a week, and that he usually plays with them,
asks how they are doing in school, and how they feel. He does not
attend doctor’s appointments because he was not told about their
appointments. According to father, the children do not want to
leave at the end of visits, I.M. would cry when visits ended, and all
of the children told father they want to live with him.
Father’s counsel argued that the parental bond exception to
the termination of parental rights applied. The court terminated
father’s parental rights, finding “that there is no (c)(1)(B)(1)
exception. Father’s been having monitored visits fairly consistently
but not terribly consistent. Doesn’t set up a schedule. Doesn’t
know his children’s medical needs. Hasn’t attended any dental or
medical appointments. He never asked anyone to attend. Has not
risen to the level of a parent.”
Father timely appealed.
DISCUSSION
Father argues that we must reverse the order terminating his
parental rights and remand for the juvenile court to consider
application of the beneficial relationship exception to the
termination of parental rights under Caden C., because the juvenile
court focused on improper factors when making its ruling.
The purpose of a Welfare and Institutions Code section 366.26
hearing is to select a permanent plan for the child after
reunification services have terminated. (In re Marilyn H. (1993)
5 Cal.4th 295, 304; see also § 366.26, subd. (b)(1).) “ ‘At a
permanency plan hearing, the court may order one of three
alternatives: adoption, guardianship or long-term foster care.
[Citation.] If the dependent child is adoptable, there is a strong
preference for adoption over the alternative permanency plans.’ ”
(In re B.D. (2021) 66 Cal.App.5th 1218, 1224.)
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“[A] parent may avoid termination of parental rights in
certain circumstances defined by statute. One of these is the
parental-benefit exception. What it requires a parent to establish,
by a preponderance of the evidence, is that the parent has regularly
visited with the child, that the child would benefit from continuing
the relationship, and that terminating the relationship would be
detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 629;
see also Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
The first requirement, regular visitation and contact, is
“straightforward” and “[t]he question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child
would benefit from continuing the relationship.’ ” (Caden C., supra,
11 Cal.5th at p. 632.) “[T]he relationship may be shaped by a slew
of factors, such as ‘[t]he age of the child, the portion of the child’s
life spent in the parent’s custody, the “positive” or “negative” effect
of interaction between parent and child, and the child’s particular
needs.’ ” (Ibid.) Focusing on the child, “courts often consider how
children feel about, interact with, look to, or talk about their
parents.” (Ibid.) Recognizing that “rarely do ‘[p]arent-child
relationships’ conform to an entirely consistent pattern,” the
Supreme Court stated “it is not necessary—even if it were
possible—to calibrate a precise ‘quantitative measurement of the
specific amount of “comfort, nourishment or physical care” [the
parent] provided during [his or] her weekly visits.’ ” (Ibid.)
“Concerning the third element—whether ‘termination would
be detrimental to the child due to’ the relationship—the court must
decide whether it would be harmful to the child to sever the
relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at
p. 633.) “[C]ourts need to determine . . . how the child would be
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affected by losing the parental relationship—in effect, what life
would be like for the child in an adoptive home without the parent
in the child’s life.” (Ibid.) Thus, “ ‘[i]f severing the natural
parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that,’ even considering the
benefits of a new adoptive home, termination would ‘harm[]’ the
child, the court should not terminate parental rights.” (Ibid.)
The third element of the exception is the most difficult
question for the juvenile court to resolve. A parent-child
relationship sometimes “involves tangled benefits and burdens” and
“[i]n those cases, the court faces the complex task of disentangling
the consequences of removing those burdens along with the benefits
of the relationship.” (Caden C., supra, 11 Cal.5th at p. 634.)
The Supreme Court in Caden C. also discussed improper
considerations in deciding whether termination of parental rights
would be detrimental to a child. It is improper to compare a
“parent’s attributes as custodial caregiver relative to those of any
potential adoptive parent(s)” when weighing whether termination
would be detrimental to the child. (Caden C., supra, 11 Cal.5th at
p. 634.) The hearing “is decidedly not a contest of who would be the
better custodial caregiver.” (Ibid.)
A parent’s “continued struggles” with the issues that led to
dependency cannot, standing alone, be a bar to the parental-benefit
exception. (Caden C., supra, 11 Cal.5th at p. 637.) “The exception
preserves the child’s right to the relationship even when the child
cannot safely live with that parent. What it does not allow is a
judgment about the parent’s problems to deprive a child of the
chance to continue a substantial, positive relationship with the
parent.” (Id. at p. 643.) However, a parent’s struggles with the
issues that led to the dependency are “relevant to the application of
the [parental-benefit] exception” because it may be probative of
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whether interaction between parent and child has a negative effect
on the child. (Id. at p. 637.)
We apply the substantial evidence standard in reviewing the
court’s findings on the first two elements, whether the parent has
consistently visited and maintained contact with the child, and
whether the relationship is such that the child would benefit from
continuing it. (Caden C., supra, 11 Cal.5th at p. 639.) We review
the court’s findings as to the third element, whether there is
detriment to the child in severing the relationship, for abuse of
discretion. (Id. at p. 640; id. at p. 641 [“where, as with the parental-
benefit exception, ‘the appellate court will be evaluating the factual
basis for an exercise of discretion, there likely will be no practical
difference in application of the two standards’ ” of review].)
Here, the juvenile court found that father visited “fairly
consistently.” This finding is supported by substantial evidence.
While father’s visitation was not perfect, father regularly visited the
children over the course of the years-long dependency.
But we do not find substantial evidence supports the court’s
findings concerning the benefits to the children from continuing the
relationship with father, or the detriment to the children of
terminating the relationship. The court concluded that father did
not “know his children’s medical needs. Hasn’t attended any dental
or medical appointments. He never asked anyone to attend. Has
not risen to the level of a parent.” While focusing on whether father
occupied a “parental role” in the children’s lives, equating that role
with attendance at medical appointments, and understanding their
medical needs, the court said nothing about the attachment
between father and his children. Caden C. made clear the
beneficial relationship exception is not focused on a parent’s ability
to care for a child or some narrow view of what a parent-child
relationship should look like. (Caden C., supra, 11 Cal.5th at
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p. 632.) Instead, the focus is whether there is a substantial,
positive emotional attachment between the parent and child.
The Department’s reports gave the court little evidence about
the quality of the visits between father and the children, or how the
children felt about father. The children were rarely, if ever, asked
how they felt about father or whether they enjoyed visits with him.
“[S]ocial worker assessments and evaluations should address
whether or not the children have a substantial, positive, emotional
attachment to the parents taking into consideration the child’s age,
the portion of the child’s life spent in parental custody, the positive
or negative impact of interaction with the parent, and the child’s
particular needs as required by Caden C.” (In re B.D., supra,
66 Cal.App.5th at p. 1230, fn. 5; see also In re Autumn H. (1994)
27 Cal.App.4th 567, 575–576.) The reports here did not adequately
address these factors.
What the record did include was father’s testimony the
children wanted to be returned to him, and that the youngest child
cried when visits concluded. D.M. had lived with father for nearly
eight years of her young life, R.M. for nearly five years, and I.M. for
nearly two years, in an intact family where father was a
breadwinner and custodial parent.
The court’s express findings that father did not act like a
parent demonstrate it considered factors which Caden C. has
explained are inappropriate in determining whether the parental-
benefit exception applies. (See Caden C., supra, 11 Cal.5th at
pp. 632–633; In re B.D., supra, 6 Cal.App.5th at pp. 1230–1231; see
also In re Charlisse C. (2008) 45 Cal.4th 145, 159 [a “disposition
that rests on an error of law constitutes an abuse of discretion”].)
The Department argues any error was harmless because
father did not satisfy the elements of the exception to the
termination of his parental rights. We are not persuaded. We
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cannot know how the court would have exercised its discretion if it
had the benefit of the Caden C. analysis when making its ruling.
We believe the juvenile court should make this determination in the
first instance. (In re L.S. (2014) 230 Cal.App.4th 1183, 1194.)
DISPOSITION
The orders terminating parental rights are reversed. The
matter is remanded for the juvenile court to conduct a new Welfare
and Institutions Code section 366.26 hearing in conformance with
the principles articulated in Caden C., supra, 11 Cal.5th 614.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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