In re D.T. CA2/8

Filed 6/30/22 In re D.T. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.T., a Person Coming B313183
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP07474A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai, for Plaintiff and
Respondent.
____________________
A mother appeals the juvenile court’s order terminating her
parental rights as to her daughter D.T. We affirm.
Undesignated statutory references are to the Welfare and
Institutions Code.
I
In September 2018, the mother and her boyfriend brought
the boyfriend’s 19-month-old daughter to the ER with first degree
burns on her legs and buttocks. The daughter had been in the
mother’s care. The doctors who examined the child believed the
injuries were inconsistent with the mother’s story or with an
accident. It looked as though the child had been dipped in hot
water.
The mother, boyfriend, and Department agreed to a safety
plan. After the mother and boyfriend failed to comply with the
plan, the Department detained D.T., the mother’s then three-
year-old daughter, from the mother. The Department filed a
petition alleging D.T. was at risk in the mother’s care based on
several injuries the boyfriend’s daughter suffered while in the
mother’s care.
In November 2019, the juvenile court ordered D.T. detained
from her mother. The mother had monitored visits with D.T.
that went well. D.T. seemed comfortable with her mother,
appeared sad or teary at the end of the visits, and told her
mother she wanted to go with her.
In interviews, D.T. told the social worker her mother had
put the boyfriend’s daughter in hot water because she was not
listening and took D.T.’s toys. D.T. made similar statements to a
foster parent. D.T. said her mother would “smack” her with a
shoe when she was bad.
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In May 2019, the Department placed D.T. with foster
mother T.A. after D.T.’s needs overwhelmed the original foster
parent. In June 2019, the juvenile court sustained the petition,
asserted jurisdiction, and continued D.T.’s placement with foster
mother T.A. The mother’s case plan required her to participate
in parenting classes, anger management classes, and individual
counseling. The court ordered monitored visits two to three times
a week.
D.T. did well in her new foster home. Her tantrums and
episodes of bedwetting decreased. She remained fearful of taking
a bath and the water being too hot. At the foster mother’s
request, D.T. began individual therapy, and her behavior
improved even more. Her tantrums decreased from 14 a week to
one to two.
The foster mother monitored D.T.’s visits with the mother
and reported the mother generally acted appropriately and
lovingly. However, the mother did not know how to deal with
D.T.’s tantrums and would sometimes make them worse. D.T.’s
behavior during visits with her mother got worse the longer she
had been separated from her mother. The foster mother reported
the mother did not know how to discipline D.T. and would often
make her cry. D.T. would make untrue statements to get a
reaction or approval from her mother. The mother discovered
D.T. had lice during a visit and became so upset she made D.T.
cry, despite the foster mother’s attempts to defuse the situation.
On three separate occasions, the mother hit D.T. during
monitored visits. While they were at a store, D.T. hid on a shelf,
and her mother “hit her on the butt, not hard.” D.T. then put a
blanket in her mouth, and her mother moved to hit it out of her
mouth. D.T. moved, and the mother hit D.T. in the eye. A few
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months later, while they were at a restaurant, the mother took
D.T. alone to the restroom without permission from the foster
mother. When the foster mother found them coming back, D.T.
was crying. She later told the foster mother and a social worker
that her mother had hit her cheek. At the end of another visit,
the mother was putting D.T. in her car seat and D.T. hit her
mother, who hit her back. When the foster mother said, “You hit
her again,” the mother replied, “Well she hit me.”
In interviews with social workers, the mother denied
hitting D.T. at the restaurant, claimed the incident at the store
was an accident, and that in the third incident she had simply
put her hand to her eye and had not touched D.T. After the
restaurant incident, the Department took over monitoring visits.
The mother participated in and completed parenting
classes. She engaged in individual therapy and began to accept
some responsibility for what happened to the boyfriend’s
daughter, although she continued to say it was accidental. The
mother told the social worker she had met her treatment goals
and therefore no longer needed therapy. The therapist stated the
mother appeared to be making progress but, according to the
agency’s policy, could not comment on reunification. The
counseling agency later said they referred the mother to a new
therapist, but the mother declined further services. The social
worker encouraged the mother to continue therapy and she
eventually did. Her new therapist reported the mother showed
an understanding of appropriate parenting techniques and of
alternative methods to manage frustration, though the therapist
also could not comment on reunification. The mother took 10
months to finish a six-month anger management class. The
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mother had trouble saying what she learned when asked by the
social worker.
The mother and D.T. engaged in Parent-Child Interactive
Therapy. The mother made gradual progress but, despite having
17 sessions, had not moved to stage two when the pandemic
started. Generally families move to stage two after 10 sessions.
During one session, D.T. began to talk about her mother hitting
her, and her mother denied it. The therapist believed the mother
minimized the seriousness of hitting D.T. D.T. was sometimes
disrespectful toward her mother during sessions and showed
negative attention-seeking behaviors.
D.T.’s therapist said D.T. loved her mother but had many
mixed feelings. D.T. at one point told the therapist “mom[’]s
bad.” D.T. also told a social worker she wanted to return to live
with her mother, but only if the judge taught her mother not to
hit D.T. D.T. also told the social worker she wanted to live with
the foster mother and would tell the social worker when she felt
ready to return to her mother. When the mother told D.T. she
might be coming home soon, D.T. began regressing and having
more tantrums.
D.T. continued to bond to the foster mother. D.T. built a
strong relationship with the foster mother, felt safe with her, and
began to share more about her past trauma. The foster mother
said D.T. was very loving and sweet and a joy to have in her
home. The foster mother met D.T.’s medical, dental, emotional,
and educational needs and provided a loving, stable, and
nurturing home. The foster mother’s extended family loved and
adored D.T. The foster mother said she was willing and able to
adopt D.T. if the mother was not able to reunify.
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The social worker reported she had concerns regarding the
mother’s lack of insight and understanding of how her actions
affected D.T. The mother continued to deny wrongdoing in
relation to the boyfriend’s daughter’s injuries.
In August 2020, at the section 366.22 review hearing, the
juvenile court stated “it is clear that mother is not learning how
to control herself with her child, despite all of the services she
has done.” The court recognized, “It is clear that there is a
pattern of hitting and that [D.T.] fears her mother because she
has been hit in the past and fears she will be hit again. I don’t
make the decision simply based on what [D.T.] thinks or fears,
but her fears are confirmed by three incidents during monitored
visits. . . .” The court terminated reunification services for the
mother.
D.T.’s individual therapist reported that D.T. was making
progress. The therapist believed services could be concluded
soon, but she wanted to make sure there were no significant
changes for D.T. first, “because that can bring up some concerns.”
When the social worker told the therapist the foster mother was
willing to adopt D.T., the therapist said “that is a really good
plan” and that she could see “the attachment that [D.T.] has with
[the foster mother].”
The mother continued to have monitored visits with D.T.
D.T. enjoyed the visits, but she told the social worker she wanted
to visit her mother but live with the foster mother. D.T. gave
different reasons why, including that she was scared her mother
would hit her, she did not want to leave the dogs in the foster
home, or she would live with her mother when she was older.
The social worker believed D.T. felt safe and secure with the
foster mother but continued to have fears about returning to her
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mother. D.T. did not have negative reactions and seemed fine at
the end of visits. After D.T. knew the plan was for the foster
mother to adopt her, D.T. appeared to feel safe and no longer
worried about returning to her mother.
The foster mother believed D.T. was having trouble in
school. She contacted the school, had D.T. evaluated for special
education services, and had scheduled a meeting to discuss an
individualized education plan.
The foster mother reported the mother seemed to have
accepted D.T. would be adopted and said she hoped the foster
mother would continue to let her visit D.T. The foster mother
said she would as long as the mother was appropriate.
In February 2021, Dr. Gerardo Canul prepared a court-
ordered bonding study of the mother and D.T. Canul found the
two were comfortable with each other. Canul concluded, “It is a
moderate likelihood that on-going contact between the minor and
the mother will provide a moderately consistent positive and
nurturing reciprocal relationship.” He noted based on the
mother’s challenges with consistent housing, social and familial
support, and financial support the “long-term parenting
effectiveness of the mother will be poor.” He found the mother’s
awareness of D.T’s psychological, developmental, and emotional
needs was “low-average.” He characterized the quality of the
relationship as “moderately strong.”
In May 2021, the juvenile court held the section 366.26
hearing to select and implement a permanent plan. The
Department and counsel for D.T. requested the court terminate
the mother’s parental rights. The mother’s trial counsel argued
the parental bond exception applied. The juvenile court found
the mother had maintained consistent visits and had a bond with
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D.T. However, the court stated for the exception to apply it had
to find “something more than a loving bond where the parent
comes forth and just visited twice a week and has really played a
parental role in the child’s life, that if terminated, would be so
disruptive and that outweighs the benefit of adoption. . . . And I
don’t have that here. . . . [W]hile the mother’s bond with the
child is strong to a degree, it is not of the quality that justifies
disrupting a plan of adoption.” The juvenile court found by clear
and convincing evidence D.T. was likely to be adopted and
terminated the mother’s parental rights.
The mother appealed.
II
The mother argues the juvenile court erred in finding the
parental bond exception did not apply because the court relied on
the mother’s failure to reunify in violation of the principles
articulated in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.)
and “minimized” the mother’s bond with D.T. Neither argument
has merit.
A
Once the juvenile court terminates reunification services, it
sets a permanency planning hearing. (In re D.M. (2021) 71
Cal.App.5th 261, 268.) At this hearing, the focus is on the best
interests of the child, and the default option is adoption. (Caden
C., supra, 11 Cal.5th at pp. 631, 639–640.) The statute reflects
the Legislature’s clear and strong preference for the stability and
security adoption provides. (In re Autumn H. (1994) 27
Cal.App.4th 567, 573–574.) Only in exceptional circumstances,
laid out in the statute, is it appropriate for the juvenile court to
select a different plan. (Caden C., supra, 11 Cal.5th at p. 631.)
8
The exceptional circumstance the mother claims applies
here is the parental bond exception. (§ 366.26, subd. (c)(1)(B)(i).)
The Legislature recognized that in certain situations, despite the
child being outside the parent’s custody, the parental bond might
remain so strong that the harm to the child from severing it
outweighs the benefits of adoption. (Caden C., supra, 11 Cal.5th
at p. 633.) To avail themselves of this exception, parents must
establish that they visited the child consistently; that they have
established a bond that benefits the child; and that termination
of the bond would harm the child. (Id. at p. 631.)
We review the juvenile court’s findings about the first two
factors for substantial evidence. (Caden C., supra, 11 Cal.5th at
639–640.) The third factor requires the juvenile court to
determine whether any harm the child would suffer from the
severance of the parental bond would outweigh the benefit to the
child of adoption. (Ibid.) The juvenile court must undertake a
careful inquiry to untangle the burdens and benefits of the
proposed action. (Id. at pp. 633–634.) We review this
determination for an abuse of discretion. (Id. at p. 640.)
In sum, our review is deferential rather than independent.
B
The mother first argues the juvenile court erred by
considering her failure to reunify in finding the parental bond
exception did not apply. The mother is correct that juvenile
courts may not consider a parent’s failure to reunify or failure to
make progress on case issues a categorical bar to this exception.
(Caden C., supra, 11 Cal.5th at p. 637.) Juvenile courts may
consider such issues only to the extent they bear on the
evaluation of whether the parent has established a beneficial
9
bond or whether severing the bond will cause detriment to the
child. (Id. at pp. 637–639.)
Contrary to the mother’s assertion, this juvenile court did
not base its conclusion on the mother’s failure to reunify. The
court discussed and assessed the bond each parent had with D.T.,
concluding that “neither parent has proven the type of parental
bond that outweighs the benefits of adoption here and that is of
such a compelling nature that I should order a legal
guardianship.” The court noted that while D.T.’s bond with the
mother was “strong to a degree,” it was “not of the quality that
justifies disrupting a plan of adoption.” The court also found D.T.
had a strong bond with the foster mother and was thriving in a
safe home. The court noted that the mother had been given the
opportunity to reunify and failed to do so. But context makes
clear the court based its decision on the strength of the mother’s
bond with D.T. and the potential harm of severing it compared to
the benefit to D.T. of the plan of adoption. (See In re Katherine J.
(2022) 75 Cal.App.5th 303, 319–322 [affirming juvenile court’s
termination of parental rights where context made clear it had
not relied on improper factors].) This was appropriate.
C
The mother next argues that the juvenile court improperly
“minimized” her bond with D.T. The mother seems to challenge
both the court’s finding that a beneficial bond did not exist and
that termination would not harm D.T. The mother claims the
juvenile court did not cite or follow Caden C. The court did not
cite this decision, but that is of no moment. The court followed
the decision’s teachings, which is the key thing.
We review the first contention for substantial evidence,
indulging all inferences and resolving all conflicts in favor of the
10
order. Here, although there was evidence of a positive bond
between the mother and D.T., there was also evidence that the
relationship had negative effects on D.T. The record belies the
mother’s assertion that their bond “was unequivocally positive.”
Even during monitored visits, the mother continued to hit D.T.
D.T. feared her mother would hit her again. She asked the judge
to teach her mother not to hit her. D.T.’s individual therapist
stated that D.T. had mixed feelings about her mother and said
she was “bad.” The foster mother noted that D.T. would at times
regress after visits with her mother. D.T. had been out of her
mother’s care for almost half her life. Substantial evidence
supports the juvenile court’s finding the bond was not generally
beneficial to D.T.
We review the second contention for abuse of discretion. In
determining whether severing the parental bond would harm the
child, the juvenile court undertakes a delicate task. (Caden C.,
supra, 11 Cal.5th at p. 634.) The court must weigh the benefits
and disadvantages of the child’s potential life in an adoptive
placement against the benefits and disadvantages of continuing
the parental bond and a less secure placement. (Ibid.) This
evaluation necessarily involves a degree of uncertainty. (Id. at p.
640.) We do not substitute our judgment for that of the juvenile
court. (Id. at p. 641.)
D.T. bonded very well with the foster mother and thrived in
her care. The foster mother provided a stable, safe home for D.T.
and provided for all of her emotional, educational, medical, and
dental needs. D.T.’s behavior improved and she began to speak
about her past trauma. She was close with the foster mother’s
extended family. Ample evidence showed the foster mother
would give D.T. stability and love.
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D.T.’s relationship with her mother was not entirely
beneficial, as noted. The court fairly could conclude D.T.’s bond
with her mother was detrimental, on grounds we already have
reviewed.
The mother points out D.T.’s therapist thought maintaining
the status quo would be best for D.T., which the mother asserts
the juvenile court could best accomplish through a legal
guardianship. But the mother omits the therapist’s belief that
the foster mother’s adoption of D.T. was “a really good plan.”
The mother asserts Canul improperly considered her
ability to provide a permanent home for D.T. But Canul’s report
was an insubstantial factor in the juvenile court’s decision: the
report was only “marginally helpful.”
The juvenile court’s decision certainly was not arbitrary,
capricious, or absurd. (Caden C., supra, 11 Cal.5th at p. 641.)
Rather, the juvenile court’s decision was well within its
discretion.
DISPOSITION
We affirm.
WILEY, J.
We concur:
STRATTON, P. J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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