In re B.D.

Filed 7/27/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re B.D., et al., Persons Coming
Under the Juvenile Court Law.
D078014
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ4324A, B)
Plaintiff and Respondent,
v.
C.D. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Reversed and remanded.
Jill Suzanne Smith, under appointment by the Court of Appeal, for
Defendant and Appellant, C.D.
Roni Keller, under appointment by the Court of Appeal, for Defendant
and Appellant, R.Q.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
C.D. (Father) and R.Q. (Mother) appeal from the juvenile court’s orders
terminating parental rights to their son, B.D. (born 2012) and daughter L.D.
(born 2015, together the children). (Welf. & Inst. Code, § 366.26.) 1 The
parents contend the juvenile court erred in finding that the beneficial
parental relationship exception to adoption did not apply because the
evidence demonstrated that terminating parental rights would be
detrimental to the children’s well-being. They assert that a legal
guardianship was the only appropriate permanent plan for the children. (§
366.26, subd. (c)(1)(B)(i).)
On May 6, 2021, we filed an opinion affirming the orders. Before this
opinion became final, Mother filed a petition for rehearing arguing that the
recent Supreme Court decision in In re Caden C. (2021) 11 Cal.5th 614(Caden C.) indicates that the juvenile court erred in terminating parental
rights. We granted rehearing and gave all parties the opportunity to file
supplemental briefing on the petition for rehearing and the impact of Caden
C. on this appeal. We vacate our initial opinion. Having considered the
supplemental briefs filed by the parties we reverse the orders terminating
parental rights.
When concluding that the parents did not meet their burden of showing
that they had a substantial, positive, emotional attachment with their
children, the juvenile court and social worker considered the parents’
substance abuse without addressing whether this continued substance abuse
had any negative effect on the parent-child relationship. We are also
uncertain whether the juvenile court considered other factors proscribed by
the Supreme Court in determining the beneficial nature of the parent-child
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
relationship. We therefore must reverse the orders terminating parental
rights and remand for the juvenile court to reexamine the record based on a
proper application of the governing law.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (Agency)
became involved with this family in August 2018 after sheriff’s deputies
responded to a domestic violence incident where Mother pepper sprayed
Father and then Father chased Mother down the street. The following
month, the Agency received another report that Mother barricaded herself in
a bathroom during an argument and that Father broke the door down. B.D.
observed the parents hitting and yelling at each other and stated that Mother
was “very hurt” and that he and his sister were scared. The children also
observed a 2017 incident where Mother sustained bruising around her neck,
scratches, and lost her voice for two weeks after Father strangled her.
When the Agency investigated, the parents appeared to be on some
type of stimulant. The Agency found marijuana and drug paraphernalia in
the parents’ bedroom and within the children’s reach. The Agency also found
two bags of empty cans or bottles of alcohol in the bedroom. The parents
reported methamphetamine use and Father expressed concern that Mother
had an alcohol problem.
In August and September 2018, the Agency requested that Mother
drug test seven times, but she only tested twice. She tested positive for
methamphetamine, alcohol, and tetrahydrocannabinol (THC) for the first
test, and positive for alcohol and THC for the second test. The Agency
requested six drug tests for Father over a three month period. He tested
twice with both tests positive for THC.
3
In late October 2018, the Agency filed petitions on behalf of the
children under section 300, subdivision (b)(1) alleging that a substantial risk
existed that the children would suffer serious physical harm or illness based
on the parents’ physically violent relationship and use of dangerous drugs. 2
The protective custody warrant affidavits indicated that the children “have
expressed feeling scared and crying while witnessing the domestic
altercations which is putting them at a high risk of suffering emotionally
with depression or anxiety in their future. The children have been observed
to show that they are being neglected with their lack of cleanliness, rotting
teeth, unchanged diaper at the age of 3.5, and expressing hunger.”
At the detention hearing, the juvenile court made a prima facie finding
on both petitions. The juvenile court detained the children and ordered
supervised visitation for the parents. At the contested adjudication and
disposition hearing in January 2019, the juvenile court sustained the
petitions, declared the children dependents, placed them with the paternal
grandmother D.B. (the caretaker), and ordered reunification services.
The social worker submitted drug test referrals for Mother in February,
March, April and May 2019, but she failed to show to every appointment.
During a July 26, 2019 office visit, Mother claimed “her clean date was
‘sometime in [2018].’ ” Mother expressed confidence that she would test
“clean” that day but did not respond when asked why she had not drug tested
2 Mother has been involved with the Agency since 2004 regarding
allegations of domestic violence, neglect, and alcohol abuse. She has three
older children who are not parties to this appeal with another man. The
father of these children stated that he has full custody and that Mother
“hardly [saw]” these children. Mother received voluntary services in 2004
and again in 2010, but she failed to engage in the recommended services.
4
in the last six months. Although Mother appeared for an intake appointment
for substance abuse treatment, she never returned to the program.
Father admitted that he started using marijuana at age 13, currently
used marijuana once or twice a day, and “occasionally” drank alcohol. He
denied current methamphetamine use but admitted “having a problem” with
the drug in the past. Mother stated, however, that Father used
methamphetamine and took “baking soda to pass his tests.” The social
worker submitted drug test referrals for Father in February, March, April
and May 2019, but he failed to show to every appointment. When the social
worker informed Father that he only needed to drug test twice to satisfy his
case plan objective, Father denied receiving the social worker’s calls and text
messages regarding testing.
On August 20, 2019, the social worker left Father a voice message
advising him that he needed to submit to a random drug test, but Father did
not appear for this drug test, which the Agency considered to be a positive
test. Two days later, the social worker advised the parents that they needed
to drug test that day, which they agreed to do. However, one hour later, the
social worker received a voicemail from Mother stating that she and Father
would not drug test because it conflicted with their services.
On August 28, 2019, the juvenile court terminated reunification
services and set a section 366.26 hearing, which it later rescheduled three
times. At the contested section 366.26 hearing in September 2020, the
juvenile court found that the parents consistently visited the children but
determined that they did not fulfill a parental role. The court terminated the
parents’ parental rights, selected adoption as the children’s permanent plan,
and designated their current caregiver as the prospective adoptive parent.
The parents timely appealed.
5
DISCUSSION
A. General Legal Principles
“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 S.B. (2008) 164 Cal.App.4th
289, 296-297 (S.B.).) “Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination of parental
rights would be detrimental to the child under one of the exceptions listed in
section 366.26, subdivision (c)(1).” (S.B., supra, at p. 297.)
One of the exceptions to the preference for adoption is the beneficial
parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) For this
exception to apply, the parent must show by a preponderance of the evidence:
(1) regular visitation and contact with the child; (2) the child has a
substantial, positive, emotional attachment to the parent; and (3)
terminating that attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home. (Caden
C., supra, 11 Cal.5th at p. 636.) The existence of the parent-child
relationship exception is determined by taking into consideration many
variables which affect a parent-child bond including, “[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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn
H.).) “ ‘The relationship that gives rise to this exception to the statutory
preference for adoption “characteristically aris[es] from day-to-day
interaction, companionship and shared experiences. Day-to-day contact is
not necessarily required, although it is typical in a parent-child relationship.”
6
’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165 (G.B.).) 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. (Caden C., supra, 11 Cal.5th at p. 634.) The statutory
reasons for departing from “ ‘the norm’ ” of adoption apply only in “
‘exceptional circumstances.’ ” (Id. at p. 631.)
We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parental relationship, for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) As a reviewing court we do “
‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts’ ” and will uphold the juvenile court’s determinations
even where substantial evidence to the contrary also exists. (Id. at p. 640.)
“[T]he ultimate decision—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with his parent—is
discretionary and properly reviewed for abuse of discretion.” (Ibid.) “Because
terminating parental rights eliminates any legal basis for the parent or child
to maintain the relationship, courts must assume that terminating parental
rights terminates the relationship. [Citations.] What courts need to
determine, therefore, is how the child would be 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.” (Id. at p. 633.) If
severing the natural parent-child relationship exception would deprive a
“child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the
natural parent’s rights are not terminated.” (Autumn H., supra, 27
Cal.App.4th at p. 575.)
7
“[W]hen the court holds a section 366.26 hearing, it all but presupposes
that the parent has not been successful in maintaining the reunification plan
meant to address the problems leading to dependency.” (Caden C., supra, 11
Cal.5th at p. 637.) Accordingly, “[p]arents need not show that they are
‘actively involved in maintaining their sobriety or complying substantially
with their case plan’ ” and “[a] parent’s continued struggles with the issues
leading to dependency are not a categorical bar to applying the exception.”
(Ibid.) Nonetheless, a parent’s struggle with such issues are relevant “to the
extent they inform the specific questions before the court: would the child
benefit from continuing the relationship and be harmed, on balance, by losing
it?” (Id. at p. 638.)
The readiness of parents to have a child returned to their custody is not
relevant to the application of the parental-benefit exception. (Caden C.,
supra, 11 Cal.5th at p. 638.) Thus, even where parents have not
demonstrated a likelihood that they will ever be able to regain custody, the
court should not terminate parental rights if doing so “would, when weighed
against the offsetting benefits of an adoptive home, be detrimental to the
child.” (Ibid.) In sum, 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.)
B. The Juvenile Court’s Ruling
The juvenile court found that the parents “easily met” their burden of
showing consistent visitation with the children. After acknowledging the
need for a “robust individualized inquiry” the juvenile court stated that “the
relationship at issue must be parental, no matter how loving and frequent
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the contact, and notwithstanding the existence of an emotional bond with the
child. The parents must show that they occupy a parental role in the child’s
life. Such a relationship typically arises from day-to-day interactions,
companionship, and shared experiences. Day-to-day contact is not required;
however, for the beneficial relationship exception to apply, the court must
find that regular visits and contact have continued or developed as significant
positive emotional attachment from child to parent.” The juvenile court
determined that the parents “failed to demonstrate the existence of this type
of parental relationship with the children.” In making this finding, the
juvenile court noted that the paternal grandmother met the children’s daily
needs and that the children turn to the paternal grandmother to protect and
care for them.
The court found the parents’ substance abuse, and the impact this had
on their ability to safely parent their children, to be their “core issue.” The
court stated that despite the parents’ progress with online services and their
loving visits with the children, that the parents’ remained untreated for
substance abuse. The court explained:
“Until these parents address this major underlying cause of
all . . . the instability and disruption and chaos in their
lives, substance abuse, they will never be able to safely and
reliable parent. They had two years to address these issues
in this case and unfortunately have chosen not to.”
Even assuming the parents met their burden of showing a parental
relationship, the juvenile court found that they did not meet their burden of
proving that severance of that relationship would be detrimental to such a
degree that termination of parental rights and a permanent plan of adoption
would be detrimental to the children. The court first noted that the caretaker
has consistently said that she supports the parents having a relationship
9
with the children as long as the relationship was “healthy” and that the
caretaker has facilitated and encouraged visits between the parents and the
children. Nevertheless, the court considered the possibility that termination
of parental rights could sever the children’s relationship with their parents,
but found this would not be detrimental to the children such that the
detriment outweighed the benefits of adoption.
C. Analysis
It is undisputed that substantial evidence exists showing that the
children were adoptable and that the parents consistently visited the
children. For the second element of the test, the juvenile court is required to
examine the record to ascertain whether the parent has proven by a
preponderance of the evidence that “the child has a substantial, positive,
emotional attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship.” (Caden C., supra,
11 Cal.5th at p. 636.)
The juvenile court correctly acknowledged that daily contact between
parent and child is not required (G.B., supra, 227 Cal.App.4th at p. 1165),
and that the issue before it was whether the parents met their burden of
showing that the visits and contact that occurred between them and the
children continued or developed a significant positive emotional attachment
between parent and child. (Caden C., supra, 11 Cal.5th at p. 632.) The
juvenile court then found that “the parents have failed to demonstrate the
existence of this type of parental relationship with the children.” By this
statement, the juvenile court necessarily concluded that the parents did not
meet their burden of showing by a preponderance of the evidence that they
had a significant positive emotional attachment with the children. In
determining whether the parents met their burden of proof on the second
10
element, the juvenile court did not have the benefit of the guidance provided
in Caden C., supra, 11 Cal.5th 614 and erred is several respects.
First, the record suggests that in finding the parents did not meet their
burden of proof the juvenile court relied heavily, if not exclusively, on the fact
that the parents had not completed their reunification plans and were unable
to care for the children based on their long term and continued substance
abuse. The juvenile court, however, did not examine how the parents’
continued substance abuse impacted the nature of the parent-child
relationship. (Caden C., supra, 11 Cal.5th at p. 638.)
For example, the juvenile court previously found true the allegation
that the children’s exposure to violent confrontations between the parents
placed them at substantial risk of serious physical harm. We located nothing
in the record addressing whether these past domestic violence incidents were
drug related, or whether the parents continued to struggle with domestic
violence. After carefully reviewing the visitation monitor reports we found no
suggestion that the parents continued to struggle with domestic violence
issues. Rather the record shows that after the trial court terminated the
parents’ reunification services in August 2019 they both successfully
completed domestic violence courses. Accordingly, in addressing the
existence of a beneficial parent-child relationship on remand the juvenile
court must consider whether the parents’ continued struggles with the issues
that resulted in this dependency proceeding (1) impacted the amount of
visitation, (2) the nature of that contact, or (3) negatively affected the parent-
child relationship.
Second, the record does not convince us that the juvenile court
examined the nature of the parent-child relationship before the dependency
proceeding or the visits and contact between the parents and children during
11
the dependency proceeding, to evaluate whether a significant positive
emotional attachment existed between the parents and children. This type of
evaluation is crucial to the third step of the analysis, weighing the harm of
severing the natural parent/child relationship to the benefits of a new
adoptive home. 3 (Caden C., supra, 11 Cal.5th at p. 633.)
In their supplemental brief, the Agency contends that the juvenile
court properly examined whether a “substantial, positive, emotional
attachment” existed between the children and the parents as articulated in
Autumn H. and Caden C. (Caden C., supra, 11 Cal.5th at p. 636; Autumn H.,
supra, 27 Cal.App.4th at p, 539.) The Agency argues that we must affirm the
juvenile court’s substantial evidence determination even if other evidence
supports a contrary conclusion. (In re Stephanie M. (1994) 7 Cal.4th 295,
318.) This argument ignores the juvenile court’s reliance on improper factors.
Additionally, the Agency’s briefing did not summarize the evidence
supporting a conclusion that the children lack a “substantial, positive,
emotional attachment” with their parents. Rather, our review of the record
suggests that the parents presented evidence to support a finding that they
3 In Caden C., supra, 11 Cal.5th 614, the record included a bonding study
from mother’s expert and a report from the Agency’s expert revealing that
mother and child had a positive relationship. (Id. at p. 627.) This evidence
ultimately led the juvenile court to conclude that severing the parent-child
relationship would greatly harm the child. (Id. at p. 628.) Although bonding
studies and expert reports are often very informative (id. at p. 633, fn. 4),
they are not always required because a juvenile court can infer detriment
based on the loss of a “significant, positive relationship” with a parent. (See,
e.g., S.B., supra, 164 Cal.App.4th at p. 301.)
12
had a beneficial relationship with their children, should the juvenile court
credit that evidence. 4
The juvenile court also expressly considered whether the evidence
revealed that the parents occupied a “parental role” in their children’s lives
and whether a “parental relationship” existed. On this point, the social
worker’s report stated that the paternal grandmother met the children’s daily
needs and opined that the parents were “currently not in a position where
they are able to take on the parental role and parent their children on a
fulltime basis” because the parents lacked secure housing, stable employment
and the evidence did not show they have maintained their sobriety. This
conclusion factored into the social worker’s belief that the parent-child
relationship exception did not outweigh the benefits of adoption for the
children.
Additionally, at the contested hearing when asked to explain why she
believed that the parent-child relationship exception did not apply, the social
worker emphasized the parents’ inability to attend to the children’s day-to-
4 Visitation monitors reported that the children were always happy to
see their parents and greeted their parents with hugs. The paternal
grandmother reported that the children looked forward to seeing their
parents, were happy with their parents and enjoyed spending time with the
parents. Visits between the parents and the children invariably ended with
hugs and kisses. Although the children returned to their caregiver without
any noted concerns, the paternal grandmother informed the social worker
that during initial visits the children expressed sadness at the end of visits
because they did not understand why their parents could not come home and
live with them. The paternal grandmother indicated that with the security of
consistent visitation, the children no longer expressed sadness when visits
ended because the children knew they would see their parents the following
week. The evidence also shows that during supervised visits the parents met
the children’s physical and emotional needs and parented “on the spot” by
directing, praising, or engaging with the children.
13
day needs and that the children looked to their grandmother to meet their
daily needs. Thus, the social worker equated a parental role, as it related to
application of the parent-child relationship exception, with the ability to
parent “on a fulltime basis” and with a parent maintaining sobriety. The
juvenile court ultimately concluded that the parents failed to show the
existence of a parental relationship, emphasizing that the paternal
grandmother provided for the children’s daily needs and the children’s
statements that the parents failed to care for them.
The juvenile court’s references to the paternal grandmother providing
for the children’s daily needs, whether the parents occupied a “parental role”
or whether a “parental relationship” existed are concerning because it is
unclear what weight the juvenile court placed on these conclusions when
balancing the harm of severing the natural parent-child relationship to the
benefits of a new adoptive home in the crucial third step of the analysis.
(Caden C., supra, 11 Cal.5th at p. 633.)
As Caden C., supra, 11 Cal.5th 614 emphasized, when examining
whether the parent-child relationship exception applies it is critical for the
juvenile court at the second step of the analysis to consider the evidence
showing whether the parent’s actions or inactions “continued or developed a
significant, positive, emotional attachment from child to parent.” (Autumn
H., supra, 27 Cal.App.4th at p. 575; In re B.D. (2008) 159 Cal.App.4th 1218,
1234 [“the parent must prove he or she occupies a parental role in the child’s
life resulting in a significant, positive emotional attachment of the child to
the parent”]; In re C.F. (2011) 193 Cal.App.4th 549, 555 [same].) A
“significant attachment from child to parent results from the adult’s
attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation.” (Autumn H., supra, at p. 575.) A positive
14
attachment between parent and child is necessarily one that is not
detrimental to the child but is nurturing and provides the child with a sense
of security and stability. Finally, an emotional attachment is one where the
child views the parent as more than a mere friend or playmate and who’s
interactions with the parent were not ambivalent, detached, or indifferent. 5
In summary, the juvenile court considered improper factors at the
second step of the analysis addressing whether the parents had proven by a
preponderance of the evidence that they had “a substantial, positive,
emotional attachment” with the children. (Caden C., supra, 11 Cal.5th at p.
636.) Accordingly, we need not address whether the juvenile court abused its
discretion in weighing the harm of severing the natural parent-child
relationship to the benefits of a new adoptive home. (Ibid. at p. 633.) Nor do
we address the parents’ contention that the juvenile court erred in selecting
adoption rather than legal guardianship as the permanent plan. Finally, we
express no opinion on whether the parent-child relationship exception
applies.
DISPOSITION
The orders terminating parental rights are reversed. The matter is
remanded for the juvenile court to conduct a new section 366.26 hearing in
conformity with the principles articulated in In re Caden C. (2021) 11 Cal.5th
614, the views expressed in this opinion, and taking into consideration the
5 To assist the trial court at this second stage of the analysis social
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. (Caden C.,
supra, 11 Cal.5th at pp. 632, 636.)
15
family’s current circumstances and any developments in the dependency
proceedings that may have arisen during the pendency of the appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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