In re Lev J. CA2/2

Filed 1/5/23 In re Lev J. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re LEV J. et al., Persons B317753
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. DK05808A, C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
L.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
******
L.W. (mother) appeals the juvenile court’s order
terminating her parental rights over two of her sons—Lev J. and
Led J. Because we conclude that the trial court did not commit
any procedural errors and did not abuse its discretion in finding
the beneficial parent-child relationship exception inapplicable, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother and Antoine J. (father) have two sons—Lev J. (born
July 2013) and Led J. (born April 2015).1
In June 2014, mother consumed so much alcohol that she
became unconscious while caring for Lev.
In the spring and summer of 2015, while Led was a
newborn, mother repeatedly tested positive for alcohol.
Both boys suffer from fetal alcohol syndrome and resulting
developmental delays due to mother’s ingestion of alcohol while
1 Mother has a third son, Leo, with Leland S. However, Leo
is not involved in this appeal, so we do not mention him further.
2
pregnant. Lev also has an enlarged heart and mild mental
retardation. Led suffers from asthma and has a failure to thrive.
In late August 2015, mother and father got into a physical
altercation in which father dragged mother down a flight of stairs
by her ankles and repeatedly pushed mother against a table.
II. Procedural History
A. Initial assertion of dependency jurisdiction and
first period of reunification services
In September 2015, the juvenile court exerted dependency
jurisdiction over Lev on the ground that mother’s consumption of
alcohol in June 2014 placed him “in a detrimental and
endangering situation” that posed a substantial risk of serious
physical harm, thereby warranting jurisdiction under Welfare
and Institutions Code section 300, subdivision (b).2
In October 2015, the Los Angeles Department of Children
and Family Services (the Department) filed a petition asking the
juvenile court to assert dependency jurisdiction over infant Led,
and concurrently filed a petition under section 342 asking the
court to exert dependency jurisdiction over Lev on additional
grounds. Both petitions rested on the same allegation—namely,
that mother and father’s August 2015 incident, along with prior
incidents, reflected a history of domestic violence that placed Led
and Lev at substantial risk of serious physical harm, thereby
warranting jurisdiction under subdivision (b) of section 300. The
Department also alleged mother’s alcohol abuse as a second basis
for dependency jurisdiction over Lev pursuant to subdivision (j) of
section 300. The juvenile court sustained both petitions in May
2017, ordered the kids removed from mother’s custody, ordered
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
mother to complete a case plan of services (including anger
management and domestic violence classes), and ordered the
Department to provide mother with reunification services
necessary to complete her case plan. The court’s orders called for
mother’s visits with the boys to be monitored.
Mother did not complete her case plan. However, mother’s
visits with the boys were generally positive and the boys
developed a “strong bond” with mother.
B. Termination of reunification services
In March 2018, the juvenile court terminated reunification
services because mother had yet to complete any portion of her
case plan, and set the matter for a permanency planning hearing.
During this time, mother was continuing to have monitored
visits with the boys. The visits appeared to be positive, although
mother would act in a volatile and aggressive manner toward the
boys’ caregivers.
On December 27, 2018, the boys moved in with the
caregiver who still has custody of them now.
In April 2019, mother filed two petitions under section 388
highlighting that mother had completed several additional
aspects of her case plan, and seeking (1) placement of the boys in
her custody, or, alternatively, (2) reinstatement of reunification
services.
In August 2019, the juvenile court denied mother’s request
to return the boys to her custody but granted mother’s request for
further reunification services. The court also issued a new case
plan for mother requiring her to complete additional classes.
C. Second period of reunification services
Mother’s visitation during this second reunification started
as monitored, but was liberalized to unmonitored visits. Those
4
visits were generally good. However, mother conducted some of
those unmonitored visits at the maternal aunt’s residence, where
the maternal aunt’s son (the boys’ cousin) had previously sexually
molested them. After these unmonitored visits, Led began
“act[ing] up” at home and “displaying sexualized behavior.” As a
result, mother’s visits were returned to monitored visits at
locations other than the maternal aunt’s home.
In December 2020, mother tested positive for alcohol.
At a hearing on December 7, 2020, the juvenile court
terminated reunification services for a second time and again set
the matter for a permanency planning hearing.
Mother continued to allow the boys to visit maternal aunt’s
home where they had previously been sexually molested by their
cousin in violation of the court’s visitation order.
In its reports filed in anticipation of the permanency
planning hearing, the Department asked Lev and Led about their
views on being adopted by their current caregivers. Because of
their developmental disabilities, neither child fully understood
the concept of adoption. However, both Lev and Led indicated
that they were happy living with their current caregivers and
would like to live with them permanently. The Department also
reported that each child had a secure attachment and “strong
bond” with the caregivers, and that the caregivers were attentive,
nurturing, and loving to the boys. The boys thought of their
caregiver’s residence as their “home.”
Mother’s visits with the boys during this period were good.
D. Permanency planning hearing
The juvenile court conducted the permanency planning
hearing on January 5, 2022. Neither mother nor the Department
asked to present any evidence. Mother’s attorney asked “minor’s
5
counsel” to set forth “what the children feel about [the] situation.”
Minor’s counsel responded that Led “want[s] to remain living
with” his current caregiver and that Lev, because he has “more of
a relationship with his mother than Led[],” “would like to remain
with [the] current caregivers” if he cannot “be returned back to
mother’s care.” Mother then asked the court to impose a legal
guardianship rather than terminate her parental rights under
the beneficial parent-child relationship exception because the
“bond between . . . mother and her children” “is worth saving.”
The juvenile court disagreed. The court reaffirmed the
propriety of terminating mother’s reunification services by
finding that “it would be detrimental to the children to be
returned to mother.” The court then found that “no exception to
adoption applies in this case.” Specifically, the court found that
mother failed to prove by a preponderance of the evidence that
the beneficial parent-child relationship exception applied because
that exception required a showing that the parental bond confer
“not just a slight benefit, but a significant benefit including a
parental role,” and mother did not prove that her relationship
with the boys “would benefit the child[ren] greatly.” The court
went on to find that “any benefit to the children from the
relationship with [mother] is outweighed by the physical and
emotional benefit the children will receive through the
permanency and stability of adoption.” The court accordingly
found that “terminating [mother’s] parental rights would [not] be
detrimental to [Lev or Led].”
E. Appeal
Mother filed a notice of intent to file a writ petition, which
we have construed as a notice of appeal.
6
DISCUSSION
Mother argues that the juvenile court erred in finding that
the beneficial parent-child relationship exception did not apply
(and, on that basis, in terminating her parental rights).
Once a juvenile court has terminated reunification services,
the court “shall terminate parental rights” if it finds, “‘by clear
and convincing evidence,’” “‘that it is likely the [child] will be
adopted’” within a reasonable time. (§ 366.26, subds. (a) & (c)(1);
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.)
Thus, a juvenile court must terminate parental rights and order
adoption unless the parent opposing termination proves that one
of six statutory exceptions applies. (§ 366.26, subd. (c)(1) &
(c)(1)(B); In re I.W. (2009) 180 Cal.App.4th 1517, 1527, overruled
in part on other grounds as stated in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010 & fn. 7.)
One of the six exceptions is the beneficial parent-child
relationship exception. Because this exception “applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adopted home,
would be harmful for the child,” a court will find the exception
applicable only if the parent “establish[es]” “(1) regular visitation
and contact, and (2) a relationship, the continuation of which
would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (In re Caden C. (2021)
11 Cal.5th 614, 630, 631, 635 (Caden C.).) In assessing whether a
child would benefit from a continued relationship with the
parent, the parent must show “that the child has a substantial,
positive, emotional attachment with the parent” in light of
several factors, such as “‘[(1)] [t]he age of the child, [(2)] the
7
portion of the child’s life spent in the parent’s custody, [(3)] the
“positive” or “negative” effect of interaction between parent and
child, and [(4)] the child’s particular needs.’” (Id. at pp. 632, 636,
quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Because this exception merely precludes the termination of
parental rights but does not place the child back into the parent’s
custody, whether the parent would be able to care for the child on
her own is not relevant. (In re D.M. (2021) 71 Cal.App.5th 261,
269-270 (D.M.); In re J.D. (2021) 70 Cal.App.5th 833, 864-865
(J.D.); In re B.D. (2021) 66 Cal.App.5th 1218, 1229-1230 (B.D.).)
In assessing whether the termination of parental rights would be
detrimental to the child “when balanced against the
countervailing benefit of a new, adoptive home,” a court is to
examine “how the child would be affected by losing the parental
relationship” entirely. (Caden C., at pp. 633.) This is necessarily
a “subtle, case-specific inquiry.” (Ibid.) We review a juvenile
court’s findings regarding the first two elements (visitation and
relationship) for substantial evidence, and its ruling regarding
the third element (balancing of detriment versus benefit) for an
abuse of discretion. (Id. at pp. 639-641.)
The Department does not dispute that mother had regular
visitation and contact with Lev and Led during the seven-plus
years that this dependency case has been open. And although
the parties dispute whether mother’s relationship with the boys
has given them a “substantial, positive, emotional attachment” to
mother, we need not resolve that dispute because we conclude
that the juvenile court did not abuse its discretion in finding that
terminating mother’s parental rights (and hence all relationship
with mother) would not be detrimental to the boys after weighing
the degree of the boys’ attachment to mother against the benefit
8
of staying with their caregivers. Although we are assuming
mother’s relationship with the boys is “substantial, positive, [and]
emotional,” not all such relationships meeting this threshold are
equal (for, if they were, there would be no need for the balancing
that occurs in the third step of this exception). Looking to the
factors bearing on the degree of emotional attachment, it is
undisputed that the boys have spent more time apart from
mother than time with her: Mother cared for Lev until he was
two years and three months old, and cared for Led only for the
first six months of his life; Lev is now nine, and Led, seven.
Although the time the boys have spent with mother has had some
positive impact, it has also had some negative impacts on the
boys: Mother knowingly put the boys at risk of sexual
molestation by allowing them to stay at the maternal aunt’s
house, Led thereafter starting displaying sexualized behavior,
and Lev also evinced “a little rage” after some visits with mother.
In their new, adoptive home, the kids have a “strong bond” with
their current caregivers, with whom they have been living for
nearly four years (since December 2018) and whose residence
they already think of as their “home.” Lev indicated a preference
to live with mother over the caregivers, but also indicated he
would be happy remaining with the caregivers if living with
mother was not an option (and, under a legal guardianship, it is
not); Led indicated a preference for living with the caregivers.
The juvenile court was thus faced with assessing whether the
detrimental effect of the boys’ loss of a relationship with mother
outweighed the benefit of being able to be adopted by their
current caregiver. Although different juvenile courts might
reasonably come to different conclusions on the facts of this case,
we cannot say that the juvenile court here abused its discretion
9
in finding that the benefits to Lev and Led of being adopted
outweighed the loss of their relationship with their mother.
Mother wages both procedural and substantive attacks on
the juvenile court’s ruling.
Mother makes what boil down to three procedure-focused
arguments. First, mother argues that the Department did not
comply with its statutory duty, when preparing an assessment
report in anticipation of a permanency planning hearing, to set
forth “a statement from the child concerning placement and the
adoption or legal guardianship” (§ 366.22, subd. (c)(1)(E); see
generally, In re Ashley M. (2003) 114 Cal.App.4th 1, 7-8
[discussing Department’s duty to provide information to the
juvenile court]), and that the juvenile court erred in relying on
the minors’ counsel’s representations about the boys’ feelings
about with whom they would like to live because those
representations are not “evidence.” This argument lacks merit.
The Department’s report indicates that the Department asked
the boys about adoption, that they did not understand the
question, and that the Department then asked them for their
preferences about where they would prefer to live. Mother
asserts that the Department should have done more, and blames
the Department for not explaining why doing more was not
feasible; but mother has it backwards, as it is her burden on
appeal to show error. The court also did not err in accepting the
representations of minors’ counsel about the boys’ preferences
when mother’s counsel opted not to present any evidence and
specifically asked minors’ counsel to relay the boys’ preferences.
(Cf. § 366.26, subd. (h)(2) [children shall be present to testify only
“if the child or the child’s counsel so requests or the court so
orders”].) Furthermore, mother has provided no basis to believe
10
that the boys had an opinion about adoption or that minors’
counsel’s representations of the boys’ preferences were
inaccurate.
Second, mother argues that juvenile court did not make
any specific findings about the visitation and other elements of
the beneficial parent-child relationship exception. This argument
is also meritless. There is no “requirement . . . that [a] juvenile
court, in finding the [beneficial] parent[-child relationship]
exception inapplicable, must recite specific findings relative to its
conclusions regarding any or all of the three elements of the
exception.” (In re A.L. (2022) 73 Cal.App.5th 1131, 1156 (A.L.).)
And because this element is satisfied in mother’s favor, the
absence of a finding on this element is of no consequence.
Third, mother argues that the juvenile court considered
improper factors when it stated that “it would be detrimental to
the children to be returned to mother.” Because a juvenile court
in considering the beneficial parent-child relationship exception
necessarily assumes that the child will remain outside the
parents’ custody (Caden C., supra, 11 Cal.5th at pp. 630-631, 636;
D.M., supra, 71 Cal.App.5th at pp. 269-270), mother reasons, the
court’s comment here about whether it would be detrimental for
the boys to be returned to mother is improper and warrants
reversal and a remand. We disagree. That is because the court
in this case also made the express finding that “terminating
[mother’s] parental rights would [not] be detrimental to [Lev or
Led],” which is the finding section 366.26, subdivision (c)(1)(B),
requires before any exception to the termination of parental
rights may be found. To be sure, the court’s finding that “it
would be detrimental to the children to be returned to mother” is
duplicative of the finding that the court previously made when it
11
terminated mother’s reunification services. (§ 366.22, subd.
(a)(1).) However, in light of the court’s other express findings, the
court’s superfluous finding does not call into question the court’s
analysis of the beneficial parent-child exception or its decision
not to apply it.
Mother makes three substantive objections to the juvenile
court’s ruling. First, she argues that the juvenile court
improperly referred to whether she occupied a parental role, a
consideration that mother suggests is verboten under Caden C.,
supra, 11 Cal.5th 614. We reject this argument. Caden C. held
that whether a parent occupied a “parental role” is not dispositive
of the applicability of the beneficial parent-child relationship, but
is still relevant to the strength of the relationship between the
parent and child. (B.D., supra, 66 Cal.App.5th at pp. 1228-1231;
J.D., supra, 70 Cal.App.5th at pp. 864-865; In re M.G. (2022) 80
Cal.App.5th 836, 848, 851; In re L.A.-O. (2021) 73 Cal.App.5th
197, 210 (L.A.-O); In re Katherine J. (2022) 75 Cal.App.5th 303,
319-320 (Katherine J.); A.L., supra, 73 Cal.App.5th at p. 1157.)
The juvenile court’s assertion in this case that the exception
required a parental bond with “not just a slight benefit, but a
significant benefit including a parental role” did not transgress
Caden C.’s limits because, even though the court’s language could
be read as adopting a “parental role or you lose” rule, the court in
this case went on to balance the weight of the boys’ relationship
with mother, the detriment of losing that relationship on the
boys, and whether that detriment was outweighed by the benefits
of the boys’ adoption by their caregiver. And even if we assume
that the court erred in considering whether mother occupied a
parental role in assessing whether mother had a substantial,
emotional attachment to the boys, we have assumed the existence
12
of such an attachment on appeal and affirmed the juvenile court’s
rejection of the exception on the third, balancing element. Thus,
any error was not prejudicial.
Second, mother argues that the Department did not prove
any connection between mother’s ongoing alcohol issues and her
relationship to the boys. We also reject this argument. To begin,
it is mother who bears the burden of proving the elements of the
beneficial parent-child exception; the Department has no burden
at all. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
Further, Caden C. and its progeny make clear that whether a
parent has addressed the issues giving rise to dependency
jurisdiction is not relevant unto itself, but is relevant to show the
positive or negative effect of the parent’s relationship on the child
and, to a lesser extent, to the balancing of whether termination of
that relationship would be detrimental to the child. (Caden C.,
supra, 11 Cal.5th at p. 639; B.D., supra, 66 Cal.App.5th at p.
1228; J.D., supra, 70 Cal.App.5th at p. 864; L.A.-O, supra, 73
Cal.App.5th at p. 210; Katherine J., supra, 75 Cal.App.5th at p.
318; In re D.M., supra, 71 Cal.App.5th at pp. 269-270.) Here, we
have assumed the relationship element to be met and have
examined the juvenile court’s balancing of detriment and benefit
without reference to that evidence (which would only hurt
mother). Thus, the Department's failure to elicit evidence on a
factor that is both assumed to exist on appeal and on which it had
no burden of proof provides no basis for reversal.
Third, mother argues that there was evidence in the record
of a “strong” bond between mother and the boys because she was
the one constant in their lives throughout the long history of this
case. In so arguing, mother is asking us to reweigh the evidence
13
more favorably to her. This is not allowed. (B.D., supra, 66
Cal.App.5th at p. 1229.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.*
BENKE
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14