In re I.R. CA2/5

Filed 3/17/23 In re I.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re I.R., a Person Coming B321398
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 18CCJP00937C)
Plaintiff and Respondent,
v.
C.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gabriela H. Shapiro, Judge Pro Tempore.
Affirmed.
Pamela Deavours, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, and Kim
Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
——————————
Father appeals from the order terminating his parental
rights under Welfare and Institutions Code section 366.261 as to
I.R. (minor). Father contends the court erred when it denied
application of the parental relationship exception to termination
of parental rights under section 366.26, subdivision (c)(1)(B)(i).
He further contends the court erroneously failed to ensure
compliance with the inquiry and notice requirements of the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901et seq.) and related California statutes (Welf. & Inst. Code, § 224
et seq.).
We find no abuse of discretion in the court’s decision to find
inapplicable the parental relationship exception to termination of
parental rights. Because we affirm the termination of parental
rights and father only seeks relief for ICWA noncompliance if we
agree with his argument about application of the parental
relationship exception, we do not reach father’s argument
concerning compliance with ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND
Background Preceding Father’s Prior Appeal
We set forth in full the factual and procedural history from
our prior opinion, in which we resolved father’s earlier appeal,
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
filed in December 2021, to challenge an order denying his section
388 petition. (In re I.R. (Dec. 29, 2022, B317369) [nonpub. opn.].)
Family background and history
Mother met father when she was 14 years old, and he was
in his 20’s.2 Mother has been addicted to drugs since the age of
16. Mother and father had a lengthy history of domestic violence.
Both parents have multiple other children, but we only review
the child welfare history of three children relevant to the current
case: minor (born March 2019); brother (born July 2005); sister
(born September 2009); and half-brother on father’s side. In
2008, half-brother was declared a dependent based on his
mother’s drug use. The juvenile court granted father sole custody
of half-brother and terminated jurisdiction in October 2008. A
separate case involving brother and sister began in 2010, based
on sustained allegations of domestic violence and physical abuse
of brother. The case ultimately ended in 2015, with the court
granting maternal grandparents legal guardianship of the two
children.
During most of her pregnancy with minor, mother was
living in motels to avoid coming into contact with father, who had
constantly threatened to kill her family in the past. Mother
believed that father had vandalized maternal grandparents’
property, including slashing the tires of maternal grandfather’s
truck and throwing paint on it. Mother tested positive for
2 Mother is not a party to this appeal. Her involvement in
the dependency case was minimal, and we discuss her role only
as relevant to father’s appeal.
3
methamphetamine after giving birth to minor at a gestational
age of 32 weeks in March 2019. At the hospital, mother
acknowledged her drug use and understood why the Los Angeles
County Department of Children and Family Services
(Department) was involved.
Father had been visiting minor at the hospital, but
nevertheless wanted to confirm paternity. He acknowledged
using methamphetamine in the past, but claimed he stopped
using drugs in early 2000. Father’s lengthy criminal history
included a 2007 conviction for threatening a crime with intent to
terrorize and a 2010 conviction for child cruelty with a two-year
prison sentence. More recently, father entered a guilty plea for
possession of brass knuckles and was anticipating turning
himself in to serve an eight-month jail sentence on April 12,
2019. Minor’s maternal aunt and uncle (caregivers) reported that
mother wanted them to care for minor.
Father’s mixed participation in reunification services in current
case
Once minor was discharged from the hospital in April 2019,
she was detained from parental custody and placed with
caregivers. In June 2019, the court sustained jurisdictional
allegations under section 300, subdivisions (b) and (j), based on
the parents’ history of domestic violence and the prior
dependency case involving sister and brother. Father was
permitted monitored visits three times per week, and the court
ordered him to complete a 52-week domestic violence program
and parenting education program, and to participate in
individual counseling. Minor remained placed with caregivers.
4
The Department’s six-month review report noted several
concerning details about father’s visits with minor. The
caregivers were initially monitoring father’s visits with minor,
but they reported that very little engagement and bonding took
place, and father would curse and say bad things about mother
and maternal family members while holding minor. The
caregivers stopped monitoring father’s visits in May 2019,
because they no longer felt comfortable or safe doing so. Paternal
grandmother monitored father’s visits starting in late May 2019,
and she reported no concerns.
In July 2019, father enrolled in a domestic violence
program with Acacia Counseling, but his participation was
terminated in October 2019 due to poor attendance (father had
missed five of 13 sessions). He enrolled in a parenting program
on August 23, 2019, and had attended five weekly sessions as of
October 24, 2019. He was participating in weekly individual
counseling sessions, making progress on his therapy goals,
focused on addressing domestic violence, anger management, and
coping skills.
In September 2019, the Department substantiated a report
that father had physically abused half-brother. Father, who was
previously living with paternal grandmother and half-brother,
moved out of paternal grandmother’s home and was living with
an acquaintance. Because paternal grandmother had been
present when father abused half-brother, she was no longer an
appropriate monitor for father’s visits with minor. By late
November 2019, the social worker and father identified a new
monitor and a location for future visits.
At the December 2019 six-month review hearing, the court
ordered the Department to continue providing reunification
5
services and to set up a visitation schedule for father. The 12-
month review hearing, originally scheduled for June 2020, was
continued to September 18, 2020 due to the COVID-19 pandemic.
Twelve-month review report and hearing—court grants father an
additional six months of reunification services
The Department’s 12-month review report described minor
as a joyful child who was well bonded to the caregivers. Due to
COVID-19, father’s monitored visits switched over to remote
visits using a phone application. The monitor reported there was
tension between the caregivers and father, but the monitor
reported no concerns about the visits. While it is not clear from
the record when father resumed in-person visits, the Department
liberalized his visits to permit unmonitored visits in person
beginning July 21, 2020, three times a week for three hours per
visit, with the exchange taking place at a police station. No
issues were reported regarding the exchanges, and father
reported he and minor were bonding more and minor was
comfortable with him. Caregivers reported minor often returned
fussy and in a bad mood.
Father had strong participation in his domestic violence
and parenting classes in the first half of 2020, but began to falter
in July and August of the same year. Acacia Counseling, the
same domestic violence program that had previously terminated
father’s participation in October 2019, permitted father to return
and reported he was doing well as of June 2020. However, even
after the program director spoke to father about the importance
of consistent attendance, and changed class dates to
accommodate father’s work schedule, father had five absences,
6
resulting in another termination from the program in August
2020. According to the program director, father verbally abused
female staff members when the female facilitator brought father’s
lack of attendance to his attention. Father accused the program
director of making false claims about his behavior; father also
claimed that the program director refused to give father his
transcripts so he could enroll at another program. The program
director responded that father’s termination letter had the
necessary transcript information. Father was able to enroll in a
different domestic violence program through Baldwin Park
Counseling on August 27, 2020.
Father had attended 15 sessions of parenting classes
through Spiritt Family Centers before the program stopped in-
person sessions in March 2020 due to COVID-19. Thereafter,
father’s participation in video sessions was consistent and he was
an active participant. However, on July 17, 2020, father was
reportedly “concerned about going back to jail for something that
took place in the past and had a nervous breakdown,” becoming
very angry, yelling and swearing. By August 25, 2020, father had
missed approximately four to five weeks of sessions, although he
attended a session on August 21, 2020. The program facilitator
felt that father needed to attend an anger management program,
and did not believe father was ready to have children returned to
his care.
By August 19, 2020, father had completed 56 individual
counseling sessions. A letter describing father’s progress stated
that the therapist was “addressing case-related issues
surrounding anxiety, emotional regulation[,] and anger
management.” Father’s treatment included “identification of
triggers related to anger, best practices for emotional regulation,
7
understanding parental responsibilities related to child safety,
fostering personal insight, developing and maintaining healthy
coping skills, and challenging historic narratives that are
incompatible with [father’s] treatment goals.” The therapist
noted that while father had “demonstrated growth,” his
treatment was “not yet in the end-phase.” Father maintained his
participation in individual counseling, and continued to make
progress in dealing with anxiety, emotional regulation, anger
management, and identifying triggers related to his anger.
The Department’s review report made no mention of a
pending criminal case against father. The Department
recommended continuing reunification services for father, and
setting a date for an 18-month review hearing.
At the 12-month review hearing on September 18, 2020, the
court considered the Department’s reports and arguments from
counsel. After father acknowledged to the court that he
understood he needed to secure housing, and stated he had been
reinstated and had completed 30 weeks of a 52-week domestic
violence program, the court found that father was likely to
reunify within the next six months, and ordered the Department
to continue providing reunification services.
Eighteen-month review report and hearing—reunification services
are terminated after father is incarcerated.
The Department’s 18-month review report included
information that was known, at least to father, at the time of the
12-month review hearing, but that was not included in the
Department’s 12-month review report. Neither father nor the
Department communicated the following information to the court
8
at the 12-month review hearing, which took place on
September 18, 2020. On September 17, 2020, father informed the
social worker he would be turning himself in on September 21,
2020, to serve 220 days in county jail, with a hope that he would
be released early. The jail term stemmed from father violating a
restraining order restricting father from having physical contact
with half-brother. Father had received notice in April 2020 of the
criminal hearing scheduled for July 13, 2020. Father reportedly
went to court with an intent to “fight the case,” but after
consulting with his public defender, he decided to turn himself in
for jail time. Father also reported he had informed the caregivers
that he would not be able to have visits with minor. The social
worker confirmed with the jail that father’s projected release date
was in February 2021. It is unclear whether the Department was
aware of pending criminal charges against father or the details of
an open dependency case involving half-brother at the time the
12-month review report was prepared in September 2020.
Most of the remaining information in the Department’s 18-
month status review report simply repeated the information
given in the Department’s 12-month status review report. The
caregivers expressed interest in providing permanency.
Considering father’s prior problems completing reunification
services, as well as the fact that “he was incarcerated as a result
of violating a restraining order protecting [half-brother], who has
a Dependency case open in part due to father’s physical abuse,”
and father’s anticipated release date of February 2021, the
Department recommended terminating reunification services for
father and setting a hearing under section 366.26.
The court terminated father’s reunification services on
December 15, 2020. There is no indication in the record that
9
father requested or had any visits with minor while he was
incarcerated from September 2020 through February 2021. After
he was released from jail in late February 2021, father had
monitored visits with minor three times per week for three hours
per visit. Although the Department had previously determined
paternal grandmother was no longer an appropriate monitor in
2019, the record does not explain why she resumed monitoring
father’s visits after his release from incarceration.
Father’s section 388 petition
On June 16, 2021, father filed a petition under section 388,
asking the court to vacate its December 2020 order, reinstate
reunification services, and order unmonitored and weekend
overnight visits with minor, along with services such as conjoint
counseling to address any barriers to reunification. Attached to
father’s section 388 petition were letters demonstrating that
father had completed 52 sessions of a domestic violence program
(including 28 sessions credited from his sessions with Acacia
Counseling), 27 sessions of parenting classes, including
19 sessions since January 2021, and 73 sessions of individual
counseling since March 2019. The court scheduled an evidentiary
hearing, and directed the Department to file a response to the
petition.
Subsequent reports and evidentiary hearing
In July 2021, father requested a nine-hour monitored visit
to take place on July 31, 2021, so he could take minor to Knott’s
Berry Farm to celebrate brother’s birthday, together with sister
10
and half-brother. The caregivers agreed to a six-hour visit, but
during the visit, father had difficulty managing his time with
minor and the siblings simultaneously. He called the caregivers
and asked them to pick minor up from Knott’s Berry Farm, and
they did so at 2:15 p.m. On August 6, 2021, the caregivers
reported they had received a phone call from sister, who was
present during the Knott’s Berry Farm trip. Sister informed the
caregivers that after the caregivers had picked minor up at
Knott’s Berry Farm, father started making claims that he was
going to kill the caregivers, and that while father was making the
threats, paternal grandmother was telling him to “be quiet.”
Father had monitored visits with minor three times a week,
monitored by paternal grandmother. Father’s communications
with the social worker in August 2021 evidenced continuing
tensions and distrust between father and maternal family
members. The caregivers reported minor would return after
visits in a fussy or agitated mood, often hitting herself on the
head in anger. Father reported that during visits, he would feed
minor and take her to the park to play. He felt well-bonded to
minor. Paternal grandmother expressed to the social worker that
she had no concerns regarding father’s behavior, and that father
deserved unmonitored visits.
At the evidentiary hearing on father’s section 388 petition,
the court heard testimony from father’s therapist. The therapist
described the work father had done to identify his triggers and
learn coping mechanisms. The therapist acknowledged father
continued to struggle with triggers and anger issues, and
described father’s feelings relating to the caregivers as
“frustration, not being properly understood, being
misrepresented.” Paternal grandmother testified about father’s
11
visits with minor, and about the family visit to Knott’s Berry
Farm, denying that father threatened to kill the caregivers. She
never had any concerns about father’s behavior towards any of
his children, had never seen him get angry and never heard other
family members describe him as getting angry. She was aware
that a restraining order protected half-brother from father, but
was not sure if father had violated the restraining order. She
believed father had a positive relationship with minor, and he
should have unmonitored visits. Father testified about his
relationship with mother and her family, describing both
relationships as “toxic.” He described his request for a nine-hour
visit with minor, stating the caregivers would only agree to three
or four hours. He denied being upset, saying instead he was
“disappointed.” Responding to the court’s questions, father
described his relationship with caregivers starting out okay, but
deteriorating over time, and that it was currently “real shaky.”
Father did not know why the relationship had deteriorated.
After hearing oral argument from all parties, the court
denied father’s section 388 petition. The court explained that
while father’s testimony was compelling, the court credited the
report that father had threatened the caregivers and found
paternal grandmother was not credible. Father had not shown a
sufficient change in circumstances, based on his lengthy history
of domestic violence, having recently harassed female staff, and
having been arrested for abusing his son.
Current relevant facts
After his section 388 petition was denied by the juvenile
court on December 13, 2021, and while his appeal of that ruling
12
was pending before his court, father continued monitored visits
with minor.
Dr. Inez Gonzalez, a clinical and forensic psychologist, was
appointed by the court to perform a mental health evaluation to
assess the relationship between father and minor concerning the
parent-child bond. In February 2022, Dr. Gonzalez, observed one
of father’s three-to-four hour monitored visits with minor, which
took place at a public park. Dr. Gonzalez also reviewed the case
file, including the Department’s reports. Dr. Gonzalez prepared a
bonding study report, dated March 27, 2022, that summarized
the case history based on the Department’s reports,
Dr. Gonzalez’s interview of the monitor, and Dr. Gonzalez’s
observations of father, minor, and their interactions during the
monitored visit at the public park. The report notes that its
recommendations were based on this “single assessment.”
Dr. Gonzalez concluded that minor had a secure attachment with
father, and research indicated severing that bond at minor’s
stage of development “will likely lead to an increase in
aggression, defiance, distress, anxiety, and/or depressive
symptoms in the future.” Based on her evaluation, Dr. Gonzalez
recommended that father should resume unmonitored visits with
minor, as more quality time appeared to be needed between them
and the likelihood of harm to minor was currently low as father
was making efforts to comply with court ordered programs,
including his individual therapy.
Once the bonding study was filed with the court, the court
continued the permanency planning hearing under section 366.26
and ordered the Department to file a last minute information
report addressing the Department’s position on the bonding
study and minor’s perspective regarding her relationship with
13
her father. In addition to ordering the parties to file exhibit and
witness lists for the section 366.26 hearing, the court’s order
stated, “Father is to have monitored visits 3 times per week, if
possible. [The Department] is to ensure father gets his
visitation.” The court’s subsequent order, entered about a month
later, ordered the Department to “ensure father receives his
minimum visit” in a Department office, “to re-assess the paternal
grandmother as monitor for father’s visit,” and if paternal
grandmother was not approved as a monitor, “to address why not
in the next report.”
According to the Department’s June 9, 2022 status review
report, the Department was only able to provide a monitor (an
HSA or health services aide) for one three-hour visit per week.
Father asserted that the Department was denying him additional
hours of visitation and requested a second monitor to be assigned.
The Department explained to father that its resources were
limited, and there were other families on the waitlist for any
monitor. Father was encouraged to explore whether anyone in
his circle of support was willing to be assessed as a monitor,
including neighbors, friends extended family, colleagues,
teachers, or members of his community or church. A professional
monitor was also an option, and the Department could provide
him a list if he wanted to explore that option. Father responded
that because he had spent $5,000 on an attorney to sue the
maternal side of the family for defamation, he lacked funding to
pay a professional monitor. The Department noted that father
was primarily focused on his own wants, needs, and schedule, as
he asked for the time of visits to be changed from morning to late
afternoon/early evening so it would not impact his work schedule.
He also asked for the visits to be moved closer to him, even
14
though the caregiver was traveling 100 miles round trip to bring
minor to visits, while father lived only 31 to 35 miles away from
the visit location. Father proposed having minor’s half-sibling or
paternal grandmother as monitors, but the Department was not
willing to agree, given father’s history with both relatives.
Father did not provide any other potential monitors.
The Department’s report provided a brief description of the
logistics and nature of father’s visits, which took place on
Thursday mornings from 9:00 a.m. to noon. The caregivers
transported minor to an address from which the monitor would
take minor to a park a few blocks away for the visit with father.
Father was always on time and arrived prepared with diapers,
snacks, and toys. The monitor expressed no concerns regarding
minor’s visits with father. The report did not contain any details
about minor’s demeanor during or after visits, nor did it provide
any information about the Department’s position on the bonding
study, or minor’s perspective on her relationship with father.
Describing minor’s bond with her caregivers, the report
noted minor remains in the home of the same caregivers she has
lived with since April 2019, and she is very joyful and well-
bonded to her caregivers, as well as her siblings. Minor was
assessed as “adoption ready,” and the Department recommended
proceeding with a permanent plan of adoption.
Section 366.26 hearing
At the June 9, 2022 permanency planning hearing under
section 366.26, the court admitted into evidence the bonding
study, the Department’s review reports, and a June 6, 2022 letter
from father’s therapist. The therapist’s letter confirmed that
15
father continued attending weekly therapy, and had completed
122 sessions. The court declined to admit two exhibits offered by
father, related to the dismissal of a petition for a civil harassment
restraining order filed by maternal grandfather against father.
The court heard testimony from Dr. Gonzalez, who was
questioned by counsel for the Department, minor’s counsel, and
father’s counsel about the bonding study she had prepared.
Dr. Gonzalez acknowledged she had not observed minor’s
interactions with other adults; she was also aware that minor
had always lived with her current caregivers and never lived
with father. Dr. Gonzalez testified that such information would
have no bearing on her assessment of the relationship between
father and daughter. Dr. Gonzalez testified minor had a secure
bond with father, with each showing affection for the other.
Minor noticed when father stepped away briefly, showed
happiness when he returned, and showed him her pride in her
accomplishments. Dr. Gonzalez acknowledged she did not
observe minor’s demeanor when first seeing father at the
beginning of the visit or her demeanor when leaving the visit.
Dr. Gonzalez opined that if visits were to stop at that time, minor
would have feelings of abandonment; this would cause current
and future harm. Dr. Gonzalez stated she did not ask about
minor’s feelings when her visits stopped while father had been
incarcerated for five months beginning in September 2020.
Dr. Gonzalez explained that, while it would be good to have that
information, the effects of terminating a secure bond would not
necessarily be immediately apparent, instead showing up over
time and impacting how a person develops relationships in the
future. Dr. Gonzalez did not interview minor about how minor
feels about her father, because minor did not feel comfortable
16
speaking with Dr. Gonzales. To the extent minor had a secure
relationship with caregivers, that was a good thing, but it did not
diminish minor’s secure attachment to father. Dr. Gonzalez’s
recommendation for unmonitored visits was based on her review
of the case history and her conversation with the monitor, who
had only monitored five or six visits. Dr. Gonzalez was unaware
that minor’s sibling had reported hearing father make threats
towards maternal family members, and agreed that such
statements would not be appropriate or healthy for a child.
Dr. Gonzalez further testified that she was aware that minor had
been placed with her current caregivers for essentially her entire
life. However, Dr. Gonzalez did not evaluate minor’s relationship
with her current caregivers and had no opinion on whether minor
would be affected by ending the relationship with those
caregivers.
In closing argument, minor’s counsel asked the court to
terminate parental rights, arguing that minor’s bond with father
was distinguishable from the bond at issue in In re Caden C.
(2021) 11 Cal.5th 614 (Caden C.), where the minor in question
had lived with his mother for the first four years of his life and
was interviewed about his relationship with his mother. In the
present case, minor had never lived with father. Minor’s counsel
further argued that Dr. Gonzalez reached her opinion without
talking with minor at all, without inquiring about minor’s
reaction to visits ceasing for five months during father’s
incarceration, and without considering the impact on minor of
terminating the relationship with her consistent, long-term
caregivers. As such, father had not shown that the final factor in
Caden C.—that the detriment caused by terminating the
parental relationship outweighed the benefits of adoption—was
17
met. Father asked the court to order a legal guardianship rather
than terminate father’s parental rights. Relying principally on
the bonding study, father argued he had met all the requirements
of the parental relationship exception and Caden C.
Department’s counsel joined in the arguments of minor’s counsel.
The juvenile court noted that the order appointing an
expert for the bonding study only asked for an assessment of the
parental bond between father and minor. The order did not seek
an assessment of the bond between minor and her caregivers.
While it was understandable that Dr. Gonzalez did not address
the bond minor had with her caregivers, the law required the
court to engage in such a balancing. The court credited the
argument made by minor’s counsel, and found the facts before it
to be distinguishable from Caden C. The evidence showed that
even if father had positive visits with minor, father still had a
contentious relationship with the caregivers, and had not made
enough progress to take custody of minor, making father’s
proposed order of legal guardianship not viable. The court did
not foresee a possible outcome where father retained parental
rights that would not negatively impact minor, instead
concluding that minor’s relationship with her current caregivers
outweighed any bond or relationship she had with father. It
found the parental relationship exception inapplicable, and found
minor to be adoptable.
18
DISCUSSION
Parental relationship exception
Father argues that in terminating parental rights and
determining that the parental relationship exception did not
apply, the trial court failed to account for the strength of his bond
with minor and improperly considered his failure to address the
factors that led to the dependency proceeding. We find no error
in the court’s decision to find the parental relationship exception
inapplicable.
Relevant law and standard of review
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court has decided to end reunification services,
adoption is the legislative preference. (§ 366.26, subd. (b)(1).)
“ ‘Adoption is the Legislature’s first choice because it gives the
child the best chance at [a full] emotional commitment from a
responsible caretaker.’ ” (In re Celine R. (2003) 31 Cal.4th 45,
53.) Guardianship is a less preferable option, because it “ ‘falls
short of the secure and permanent future the Legislature had in
mind for the dependent child.’ ” (Ibid.)
Once it has been determined that a minor is adoptable, “the
court must order adoption and its necessary consequence,
termination of parental rights,” unless a parent can demonstrate
one of the exceptions set forth in section 366.26 applies. (In re
Celine R., supra, 31 Cal.4th at p. 53; see § 366.26, subd. (c)(1);
Caden C., supra, 11 Cal.5th at p. 625.) The specified
19
circumstances in section 366.26, subdivision (c)(1)(B) are
“actually, exceptions to the general rule that the court must
choose adoption where possible.” (In re Celine R., at p. 53.) They
“ ‘must be considered in view of the legislative preference for
adoption when reunification efforts have failed.’ [Citation.] At
this stage of the dependency proceedings, ‘it becomes inimical to
the interests of the minor to heavily burden efforts to place the
child in a permanent alternative home.’ [Citation.] The
statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm,
which remains adoption.” (Ibid.; see In re A.L. (2022)
73 Cal.App.5th 1131, 1150.)
The exception at issue here is the parental relationship
exception, which permits the selection of another permanent plan
if the “parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent has the
burden of establishing this exception. (In re A.L., supra,
73 Cal.App.5th at p. 1153.) As the Supreme Court explained in
Caden C., supra, 11 Cal.5th at page 636, the exception requires
the parent to establish, by a preponderance of the evidence:
(1) the parent has maintained regular visitation and contact with
the child, “taking into account the extent of visitation permitted”;
(2) the child has a substantial, positive, emotional attachment to
the parent such that the child would benefit from continuing the
relationship; and (3) terminating the relationship “would be
detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” The “language
of this exception, along with its history and place in the larger
dependency scheme, show that the exception applies in situations
20
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 adoptive home, would be harmful
for the child.” (Id. at p. 630.) When the benefits of a stable,
adoptive, permanent home outweigh the harm the child would
experience from the loss of a continued parent-child relationship,
the court should order adoption. (Id. at pp. 633–634.) However,
if “ ‘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.” (Id. at p. 633.) The California
Supreme Court has instructed juvenile courts to “seriously
consider, where requested and appropriate, allowing for a
bonding study or other relevant expert testimony.” (Ibid., fn. 4.)
However, “[t]here is no requirement in statutory or case law that
a court must secure a bonding study as a condition precedent to”
terminating parental rights. (In re Lorenzo C. (1997)
54 Cal.App.4th 1330, 1339.)
We review the juvenile court’s findings as to whether the
parent has maintained regular visitation and contact with the
child and the existence of a parental relationship for substantial
evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) “There
is, however, no single formulation of the substantial evidence test
for all its applications.” (In re R.V. (2015) 61 Cal.4th 181, 200.)
Where a party fails to meet its burden on an issue in the juvenile
court, “the inquiry on appeal is whether the weight and character
of the evidence . . . was such that the juvenile court could not
reasonably reject it.” (Id. at p. 201.) We review the third step—
whether termination of parental rights would be detrimental to
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the child due to the child’s relationship with his or her parent—
for abuse of discretion. (Caden C., at p. 640.)
Analysis
The parties do not dispute that father met the first
Caden C. factor by maintaining consistent visits with minor.
Solely for the purpose of our discussion here, we will also assume
that the record contains substantial evidence to support a finding
that father met the second Caden C. factor, that minor and father
shared a substantial positive emotional relationship.
The third Caden C. factor is a balancing test, and father
has not shown that the trial court abused its discretion when it
declined to find that “losing the relationship with the parent
would harm the child to an extent not outweighed, on balance, by
the security of a new, adoptive home.” (Caden C., supra,
11 Cal.5th at p. 634.) In announcing its decision, the trial court
expressly noted that the bonding expert was not asked to
consider or balance the benefits of the permanency and stability
minor would receive if she were adopted by the caregivers with
whom she had lived her entire life, against the detriment of
terminating her bond with father.
Father argues that in applying the third Caden C. factor,
the court improperly considered information that was irrelevant
or remote in time, such as father’s threats against the caregivers
and his verbal abuse of staff at the counseling center, or his
ability to fulfill a parental role. In addition, pointing to the
decision to exclude his proffered evidence of maternal family’s
unsuccessful attempt to obtain a restraining order against him,
father argues that the juvenile court erroneously discounted the
option of legal guardianship. He also argues that there was no
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evidence in the record to controvert the bonding expert’s
conclusion that minor would suffer detriment if father’s parental
rights were terminated.
We do not read the record here as suggesting the court’s
statements were “intended to be a comprehensive recitation of
the grounds for its decision.” (In re A.L., supra, 73 Cal.App.5th at
p. 1156.) Rather, the court’s findings followed argument by all
counsel, incorporating the arguments of minor’s counsel, who
asked the court to deny the parental relationship exception and
terminate parental rights. Although father tries to present the
court’s statements as evidence that the judge was engaging in an
unfair comparison between the caregivers and father, or blaming
him for tense relations between father on the one hand, and
caregivers and other maternal family members on the other, we
disagree with father’s interpretation. The court’s comments
reflect that the court was balancing the future likelihood of
detriment caused by severing father’s parental rights against the
potential future benefits of the stability to be gained by adoption.
This is an exercise that the Supreme Court has recognized
requires courts to “engage in a delicate balancing of these
determinations as part of assessing the likely course of a future
situation that’s inherently uncertain.” (Caden C., supra,
11 Cal.5th at p. 640.) To the extent father argues that the court’s
decision to sustain objections to two of his exhibits led the court
to erroneously conclude that he was the only blameworthy party
or the source of ongoing tension between him and the caregivers,
we disagree. Rather, the court recognized that the relationship
between father and the maternal family was a fraught one,
regardless of blame. To the extent father purports to raise
evidentiary error in the exclusion of his exhibits, in light of the
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foregoing, any such error would be harmless. (See In re N.V.
(2010) 189 Cal.App.4th 25, 31.) Even accepting that severing
minor’s relationship with father would cause detriment, as Dr.
Gonzalez opined, father has not shown that the court abused its
discretion in finding that detriment was outweighed by the
benefits of adoption by minor’s caregivers.
ICWA
Father’s opening brief states that he “is not asking for a
limited reversal and remand to address the ICWA.” Instead, if
we agree with his argument that “the court erred when it found
he had not proven the parental benefit exception,” and we
remand with instructions to conduct a new hearing under section
366.26, then he asks “for an order that the ICWA be properly
addressed.” The Department concedes that it did not fulfill its
duty of initial inquiry, but argues that any error is harmless.
Having concluded that the juvenile court did not abuse its
discretion when it found the parental relationship exception
inapplicable, consistent with the limitations on the scope of
father’s appeal, we need not reach the ICWA contention.
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DISPOSITION
The juvenile court’s June 9, 2022, order terminating
parental rights under Welfare and Institutions Code section
366.26 is affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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