In re Nathen R. CA2/2

Filed 8/15/23 In re Nathen R. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re NATHEN R. et al., Persons B325066
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No.
20CCJP04635A-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.R. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County. Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant M.R.
Donna Balderston Kaiser, under appointment by the Court
of Appeal, for Defendant and Appellant A.B.
David Michael Miller, Deputy County Counsel; Tarkian &
Associates and Arezoo Pichvai for Plaintiff and Respondent.
_________________________
M.R. (mother) and A.B. (father) appeal from the juvenile
court’s orders terminating their parental rights over Nathen R.
(Nathen, born June 2012), Darlene B. (Darlene, born Dec. 2017)
and Leilanee B. (Leilanee, born Oct. 2019).1 (Welf. & Inst. Code,
§ 366.26.)2 Both parents argue that the juvenile court erred
when it found that the beneficial parental exception to the
termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not
apply. In addition, father contends that the trial court erred in
denying his request for a bonding study.
We affirm.
1 Father is Darlene and Leilanee’s father; Nathen’s father,
K.R., is deceased. Thus, while mother is challenging the
termination of her parental rights as to all three children,
father’s appeal only concerns Darlene and Leilanee.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
FACTUAL3 AND PROCEDURAL BACKGROUND
Referral and investigation
On July 19, 2020, the Los Angeles County Department of
Children and Family Services (DCFS) received a referral alleging
general neglect of the three children by mother and father.
According to the referral, on July 18, 2020, mother, father, and
the children attended a family gathering at the maternal
grandparents’ home. Father became intoxicated and attempted
to drive the car. Mother pulled father out of the driver’s seat, and
he punched mother’s face twice. The children were present
during the incident. Mother’s family called the police, and father
was arrested for domestic battery. Mother refused to file for a
restraining order.
Initial interview with mother
On July 28, 2020, the investigating social worker visited
the family home. Mother stated that the children were not
present during the incident and did not see what occurred. She
reported that father had been intoxicated to the point where he
did not recognize her. When father hit her, she screamed, and
her family came out of the house and called the police. Mother
denied that the children were exposed to any form of domestic
violence. She admitted to using marijuana.
Interview with Nathen and paternal relatives
On July 30, 2020, the social worker interviewed Nathen,
his paternal grandmother, and his paternal uncle, Byron R.
(Byron). Byron reported that from the time Nathen’s father
passed away, Nathen stayed with him and the paternal
3 Because mother and father’s appeals focus on the parental-
benefit exception to the termination of parental rights, we largely
limit our summary of the facts to those that pertain to that issue.
3
grandmother, who lived at the same residence, every weekend,
and since the inception of the COVID-19 pandemic, Nathen lived
with them.
Section 300 petition and detention (Sept. 3 & 8, 2020)
On September 3, 2020, DCFS filed a petition pursuant to
section 300, subdivisions (a) and (b), on behalf of the three
children. The petition alleged that mother and father had a
history of domestic violence and substance abuse, and that both
parents were current users of drugs or alcohol.
The juvenile court detained the children4 and granted the
parents monitored visits.
Jurisdiction/disposition report (Jan. 11, 2021)
On December 28, 2020, Nathen reported that he liked
living with his paternal relatives and had called Byron “‘daddy’”
since he was a baby. Nathen missed mother, but “‘when it was
just her and my sisters. With nobody else. Just me and her and
my sisters. I really miss them.’”
Nathen was scheduled to have visits with mother three
days a week. Byron reported that mother was inconsistent in
visiting the child and only participated in the visits “‘less than
50% of the time.’” The previous week, mother did not attend any
of the visits, and the week before that, she only attended one
visit.
Guadalupe reported that mother and father each had three
visits a week and did not visit the girls together. She did not
have any concerns regarding their interactions with the children
and stated, “‘The little girls really do like them.’” Mother and
4 Nathen was placed with Byron. Darlene and Leilanee were
placed with Guadalupe R. (Guadalupe), mother’s cousin.
4
father’s visits were not consistent. They did not visit the children
during that week and had visited only one time the week before.
Adjudication hearing (Jan. 11, 2021)
On January 11, 2021, the juvenile court sustained the
section 300 petition and declared the children dependents of the
court. It granted mother and father family reunification services
and monitored visits six hours a week.
Status review report (July 12, 2021)
DCFS reported that the children had adjusted well to the
homes of their caregivers.
Byron and Guadalupe reported that mother and father
were inconsistent in visiting the children. Sometimes the parents
did not call or visit; other times, the visits were short and the
parents were not engaged (although father was more engaged
with the children than mother).
Six-month review hearing (Aug. 10, 2021)
The juvenile court found that the parents had partially
complied with the case plan, and ordered family reunification
services to continue.
Status review report (Nov. 8, 2021)
Byron reported that mother continued to cancel one or two
visits a week. When she did visit Nathen, she attended the visit
for a little over an hour. Nathen became emotionally affected
when mother failed to show up for the scheduled visits. Byron
reported that two weeks prior, mother canceled a visit with
Nathen because her sister bought her a ticket to go to an
amusement park. Byron opined that mother did not make the
visits with Nathen a priority.
Guadalupe reported that mother was visiting Darlene and
Leilanee more often, although her visits continued to be short in
5
duration. Father also had been more consistent with his visits
and continued to engage well with the girls. In October 2021,
mother and father paid for Leilanee’s birthday celebration at
Chuck E. Cheese restaurant.
Guadalupe stated she was afraid to report things to the
social worker because she received backlash from her family.
The maternal grandmother told Guadalupe that her reports to
the social worker were the reason mother was not getting the
children back. Father was also upset with Guadalupe and told
her that she “‘shouldn’t be reporting things to [the social worker]
of what mother does or doesn’t do during visits with the girls
because she is family and you don’t go against family.’”
Last minute information for the court (Jan. 19, 2022)
Guadalupe reported that mother again was inconsistent
with her visits with Darlene and Leilanee. She would have
virtual visits with the girls sporadically for five minutes or less.
Father had visited Darlene and Leilanee eight times a month.
12-month review hearing (§ 366.21, subd. (f); Feb. 1, 2022)
The juvenile court found that mother’s and father’s
participation with the case plan had not been substantial, and
terminated family reunification services.
Section 366.26 report and addendum report (May 31, 2022)
On March 17, 2022, the social worker learned that father
had been under the influence of a substance and got into a car
accident. Mother reported that she was without a car and thus
had to cancel visits with the children. Father participated in
virtual visits during that time.
DCFS reported that Byron and paternal grandmother
wished to provide a permanent home for Nathen through
adoption. The social worker observed Nathen to be comfortable
6
and happy in his caregivers’ home. Nathen reported, “‘Daddy
takes good care of me, and feeds me.’” He added, “‘Mamita does a
very good job taking care of me.’”
Guadalupe was interested in adopting Darlene and
Leilanee because she and her family loved them. The social
worker observed the children to be comfortable in Guadalupe’s
home.
On May 16, 2022, Guadalupe reported that during the last
week, mother only visited Darlene and Leilanee one time, on
May 12, 2022. Father had visited the children twice a week.
Byron reported that during mother’s in-person and
telephone visits, Nathen suffered because mother asked closed-
ended questions and did not keep the conversation going. Byron
stated, “Nathen sometimes becomes upset when mother tells him
[she] has visited his sisters because it is a reminder to him
(Nathen) that she is able to make time and visit them but not
him.”
Status review report (Aug. 8, 2022)
On June 23, 2022, Guadalupe reported that mother had
visited Darlene and Leilanee only once that week. When
Guadalupe told mother that she should visit the girls more often,
mother responded that Guadalupe should stop telling the social
worker that she (mother) was not visiting the children, and
instead, to tell the social worker mother did visit them.
Father visited the children twice that week.
On July 7, 2022, Nathen reported that during a visit with
mother on July 5, 2022, she stated that she had not visited
Darlene and Leilanee for three weeks. Byron reported that
mother continued to ask Nathen a few questions and then began
7
to talk about herself. Mother also did not take initiative during
the visits.
Permanency planning hearing (Aug. 8, 2022)
The juvenile court continued the section 366.26 hearing
and ordered DCFS to file a report addressing the quality and
frequency of mother’s and father’s visits with the children.
Last minute information for the court (Aug. 25, 2022)
As of August 8, 2022, mother had had virtual and telephone
visits with Nathen. She was to resume in-person visits on
August 25, 2022. She expected to visit Nathen three days a week
for three hours each visit. Mother visited Darlene and Leilanee
on August 18 and August 19, 2022, for approximately one hour.
Mother sat with the children during the visit but did not really
engage with them.
Guadalupe reported that father visited Darlene and
Leilanee two times a week for approximately one hour. He
brought the children food and engaged in play with them.
Permanency planning hearing (Aug. 31, 2022)
On August 31, 2022, the juvenile court continued the
section 366.26 hearing and ordered DCFS to prepare a report
addressing mother’s and father’s visits with the children.
Last minute information for the court (Sept. 23, 2022)
On September 15, 2022, Byron reported that mother
missed visits with Nathen on September 13 and September 14,
2022, because she had a toothache. On September 16, 2022,
mother visited Nathen, and the visit went well. During the week
of September 19, 2022, mother visited Nathen three times for
one-and-a-half hours. Mother brought board games to visits and
watched movies with the child.
8
On September 22, 2022, Guadalupe reported that mother
and father were visiting Darlene and Leilanee more often.
Father had visited the children three times a week for one-and-a-
half hours. During the visits, he would engage in play and take
the girls and Guadalupe to a liquor store to purchase snacks for
them. Mother missed visits with the children on September 16
and September 21, 2022, because she was having pain from
kidney stones. Mother did not attend all three visits a week. She
visited Darlene and Leilanee two days a week. During one visit
with the children, mother brought Darlene a bicycle, but did not
bring anything for Leilanee. Mother engaged more with the
children during the recent visits, but still did not assist with
bathing or cooking.
Permanency planning hearing (Oct. 4, 2022)
Byron’s testimony
Nathen had lived with Byron for two years and he wished
to adopt the child. He wanted Nathen to have a relationship with
Darlene and Leilanee.
Mother visited Nathen in his home. Nathen enjoyed the
visits, had a bond with mother, and called her “mommy.” When
asked how often mother visited Nathen in September 2022,
Byron stated, “[T]he visits last about an hour, maybe two hours.
And the month specifically of September, she has been on top of
her visits. So she’s gone all three days. But there is a lot of
inconsistency from visits.” During the visits, mother and Nathen
played board games, watched television, or played outside. She
did not help Nathen with homework and rarely brought him food.
Nathen was disappointed when mother missed visits. When
mother missed visits with Nathen, they spoke telephonically, but
the communication was very short.
9
Guadalupe’s testimony
Guadalupe testified the siblings had regular visits, and if
they could not have a visit, Guadalupe and Byron would schedule
a makeup visit.
Father requests a bonding study
Father’s counsel requested that the juvenile court order a
bonding study for father and the girls, arguing the information as
to the quality of father’s visits in the last minute information for
the court reports had been from Guadalupe and not from the
social worker’s own observations. The juvenile court denied
father’s request, stating: “I’m not going to order a bonding study
at this time, but you certainly can make whatever argument
you’re going to make at the [section 366.26] hearing.”
Continuance of the section 366.26 hearing
The juvenile court ordered DCFS to “[p]rovide a detailed
update as to the status of sibling visits, Mother’s visits, the
quality of Father’s visits and consortium issues.” The hearing
was continued.
Last minute information for the court (Oct. 25, 2022)
On October 14, 2022, Guadalupe and Byron signed a sibling
contact agreement. Guadalupe also signed a contact agreement
for visits between the girls and mother.
On October 18, 2022, Guadalupe informed the social
worker that mother told their family that she was going to lose
her children because of everything Guadalupe reported to DCFS.
Furthermore, during the last visit, father threatened to sue
Guadalupe and DCFS if his parental rights were terminated.
Father told Guadalupe that she should not have said anything
against her family. Guadalupe did not want to give up on the
10
girls because she loved them, but mother and father were being
very difficult with her.
On October 25, 2022, Guadalupe reported that she was
“exhausted from the treatment she continue[d] to receive from
the parents, including extended family members . . . . However,
she remain[ed] committed in moving forward with the plan of
adoption, as she [was] invested in the girls having a stable and
loving home.”
Last minute information report (Oct. 25, 2022)
DCFS detailed mother’s and father’s visits with the
children during October 2022.
Father’s visits with Darlene and Leilanee
On October 5, 2022, father visited Darlene and Leilanee,
and they played outside with their toys. On October 6, 2022,
father visited the girls, brought them cheese pizza, played with
them, and took them to the store for snacks. On October 7, 2022,
father brought the girls food. On October 12, 2022, father visited
Darlene and Leilanee and again brought food for the girls. On
October 13, 2022, father did not show up for the visit or call to
cancel. On October 14, 2022, father did not show up for the visit
with the girls. On October 19, 2022, father participated in a visit
with the children.
Mother’s visits with Nathen
Mother failed to show up for the visit on October 4, 2022,
despite texting Byron to see if the visit was going to take place.
On October 5, 2022, mother contacted Byron and reported that
she had a cough and was congested; she did not attend the visit
that day. On October 6, 2022, mother did not attend the visit
because she continued to be sick. On October 11 and 12, 2022,
mother resumed in-person visits with Nathen, and the visits
11
went well. On October 13, 2022, mother cancelled the visit with
Nathen stating she had to work. On October 18, 2022, mother
attended a visit with Nathen. Mother and Nathen played and
watched television. While they were watching television, mother
asked Nathen to sit closer to her, and when Nathen said, “‘No,’”
mother responded, “‘You’re still my kid! You need to sit next to
me!’” Byron said that mother made Nathen uncomfortable and
did not respect his space. On October 19, 2022, mother cancelled
the visit. On October 20, 2022, mother attended the visit and
played with the child.
Mother’s visits with Darlene and Leilanee
Mother failed to attend the visits on October 5, 6, and 7,
2022, because she was sick. On October 12, 2022, mother did not
attend the visit or call to cancel. On October 13, 2022, mother
attended the visit and played with the children. During a visit on
October 14, 2022, mother brought food for them to eat On
October 19, 2022, mother did not show up to the visit or call to
cancel. On October 20, 2022, mother visited the children, and the
visit went well.
Continued section 366.26 hearing (Oct. 26, 2022)
Guadalupe’s testimony
Guadalupe testified that mother visited Darlene and
Leilanee at her home one or two times a week. Mother was
bonded with the children “80 percent of the time,” and spent the
other 20 percent talking to the family members that were at the
visit. The children called mother, “Mommy,” and they enjoyed
visits with her. Mother played with the children, and in the two
years the children lived with Guadalupe, mother had fed them
three or four times. Mother sometimes changed their diapers or
underwear.
12
She did not know that if she adopted Darlene and Leilanee,
parental rights would be terminated. She stated, “Well, they
kind of explained it to me at the beginning when they barely
started for the adoption, but other than that, that’s been it.”
When asked if she was considering legal guardianship or
adoption, Guadalupe responded, “Whatever is best for the girls.”
When asked what she thought was best for Darlene and Leilanee,
Guadalupe stated, “I would want my cousin to get her kids back,
and I been talking to her about that. So if it—if the court’s gonna
give them back to her or thinking about it, I would be the legal
guardianship.”
Father visited the girls two days a week. Darlene and
Leilanee were excited to see him, they loved him, and they called
him, “Daddy.” Guadalupe testified: “Dad is a little bit more
engaged with the girls. He does play with them more, takes them
food sometimes.” Darlene and Leilanee stated that they missed
their parents, but they did not request to go home with father.
Guadalupe opined that father should have the opportunity to be
reunited with the children. Once Guadalupe adopted Darlene
and Leilanee, she would allow father to continue visiting them.
When asked if she felt pressure from mother to pursue
legal guardianship over adoption, Guadalupe stated: “[A] little
bit. But I understand her as a mother that she wants her kids
back, and I—that’s the first thing I did, get her daughters to help
her out. So I’m still here trying to help her.” Guadalupe testified
the children lived with her for two years and did well in her care.
Further, if she did adopt Darlene and Leilanee, Guadalupe would
ensure that mother and father continued to have visits with
them.
13
Father’s testimony
Father testified that he visited Darlene and Leilanee two
times a week for two hours, but he did his best to visit them three
times a week. The girls called him “dad” and were always excited
to see him. They would jump around and say, “Daddy’s home” or
“Daddy’s here.” Father had a bond with Darlene and Leilanee.
During visits, he brought them food, asked them about their
days, and played with them. The girls said they wanted to go
home with him on multiple occasions. Father testified that the
social worker had never observed his visits with the children
because he would visit after hours.
Court order
At the conclusion of the hearing, the juvenile court noted
that it was unclear whether Guadalupe wished to care for the
children under a plan of adoption or legal guardianship. Thus, it
ordered DCFS to reinterview Guadalupe.
The hearing was continued.
Addendum report (Nov. 15, 2022)
On November 3, 2022, Guadalupe reported she was still
being harassed by mother and father to change the permanent
plan from adoption to legal guardianship. Despite pressure from
mother and father, Guadalupe indicated that her preference was
to adopt Darlene and Leilanee, but if she could not adopt them,
she was willing to proceed with legal guardianship.
Continued section 366.26 hearing (Nov. 15, 2022)
DCFS’s and the children’s counsel requested that the
juvenile court terminate parental rights. The children’s attorney
argued that mother’s visits with Nathen were inconsistent.
Further, while Nathen was bonded with mother, “the stability
that Nathen has found with the person that he calls ‘daddy’ is
14
one that warrants the legal recognition of that, and that that
permanency does outweigh the relationship that he does have
with his mother.”
Mother’s visits with Darlene and Leilanee were equally
inconsistent. Counsel stated that the girls had “just become
bonded with [Guadalupe] in a parental sort of way at the
beginning of the case. But they have been there for a great deal
of time.”
Mother’s and father’s attorneys requested that the juvenile
court find the exception to termination of parental rights under
section 366.26, subdivision (c)(1)(B)(i), applied.
Thereafter, the juvenile court issued its ruling. It first
noted, “These cases are extremely difficult, and I do want to
acknowledge that the parents of these children—the mother
. . . and, the father . . . —clearly love these children. However,
the court has to follow the law and . . . go through the various
prongs of [In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).]”
The juvenile court continued, acknowledging that the
children’s relatives had “stepped up to the plate [and] have been
caring for these children for over two years.” Regarding the
parents’ visitation, the juvenile court found that mother’s and
father’s visits with the children continued to be monitored and
while at times, they were consistent, “overall, during the
pendency of this case, they have not.”
The juvenile court then stated that there was a “substantial
positive bond between the children and their parents, but, as
noted—and I’m fully adopting the arguments of [the children’s
trial counsel]—the benefit accruing to the children from their
relationship with the parents is outweighed by the physical and
emotional benefit the children will receive through the
15
permanency and stability of adoption with Nathen with his
caregiver, the paternal uncle, who has stepped in as a father-
figure for him since the passing of his biological father; and, for
the girls, [with] their caregivers is outweighed by the physical
and emotional benefit the children will receive through the
permanency and stability of adoption, and that adoption is in the
best interest of these children.”
The juvenile court found that it was detrimental to the
children to be returned to the parents and no exception to
adoption applied. It then terminated mother’s and father’s
parental rights.
Appeals
Mother and father’s timely appeals ensued.
DISCUSSION
Both mother and father argue that the juvenile court erred
in finding that the parental-benefit exception to adoption did not
apply. As part of his argument, father asserts that the juvenile
court erred in denying his request for a bonding study.
I. Termination of parental rights
A. Relevant law and standards of review
Once the juvenile court terminates family reunification
services, “the focus [of the proceedings] shifts to the needs of the
child[ren] for permanency and stability.” (In re Celine R. (2003)
31 Cal.4th 45, 52.) Under subdivision (c)(1)(B)(i) of section
366.26, if the juvenile court finds the children adoptable, it shall
order a plan of adoption unless there is a compelling reason such
as when the parents show that they “have maintained regular
visitation and contact with the child[ren] and the child[ren]
would benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i).)
16
To establish this exception, the parent must prove the
following three elements: “(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.” (Caden C., supra, 11 Cal.5th at p. 631.)
The burden is on the parents to prove that termination of
parental rights would be detrimental to the children. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, overruled in part
on other grounds in Caden C., supra, 11 Cal.5th at p. 636, fn. 5;
In re Derek W. (1999) 73 Cal.App.4th 823, 826–827; In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1345.)
“[I]n assessing whether termination would be detrimental,
the trial court must decide whether the harm from severing the
child’s relationship with the parent outweighs the benefit to the
child of placement in a new adoptive home. [Citation.] By
making this decision, the trial court determines whether
terminating parental rights serves the child’s best interests.”
(Caden C., supra, 11 Cal.5th at p. 632.) “‘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 “‘statutory exceptions merely permit the court, in
exceptional circumstances [citation], to choose an option other
than the norm, which remains adoption.’” (Caden C., at p. 631.)
When reviewing an order terminating parental rights and
rejecting application of the beneficial parental relationship
exception, we apply a hybrid standard of review. On the one
hand, “[a] substantial evidence standard of review applies to the
first two elements [of the exception]. The determination that the
17
parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the
court’s orders’ [citation] is essentially a factual determination.
It’s likewise essentially a factual determination whether the
relationship is such that the child would benefit from continuing
it.” (Caden C., supra, 11 Cal.5th at pp. 639–640.)
On the other hand, the juvenile court’s determination on
the third element is reviewed for an abuse of discretion. As to the
third element, the juvenile court “makes the assessment by
weighing the harm of losing the [parent-child] relationship
against the benefits of placement in a new, adoptive home. And
so, the 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.” (Caden C., supra, 11 Cal.5th at p. 640.)
“In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’ [Citation.] The determinations should ‘be upheld if
. . . supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.’”
(Caden C., supra, 11 Cal.5th at p. 640.) “Review for abuse of
discretion is subtly different, focused not primarily on the
evidence but the application of a legal standard. A court abuses
its discretion only when ‘“‘the trial court has exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’”’ [Citation.] But ‘“‘[w]hen two or more
inferences can reasonably be deduced from the facts, the
18
reviewing court has no authority to substitute its decision for
that of the trial court.’”’” (Caden C., at p. 641.)
“At its core,” this hybrid standard of review “embodies the
principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions.’” (Caden C., supra,
11 Cal.5th at p. 641.
B. Analysis
Applying these legal principles, we conclude that the
juvenile court did not err when it found that the parental-benefit
exception did not apply.
1. Inconsistent visits
With respect to the first prong of the section 366.26,
subdivision (c)(1)(B)(i), test, ample evidence supports the juvenile
court’s finding that mother’s and father’s visits were not
consistent. At the detention hearing on September 8, 2020, the
juvenile court granted mother and father monitored visits nine
hours a week. At the inception of the case, Byron reported that
mother was inconsistent in visiting Nathen and only participated
in half of the visits. Guadalupe also reported that mother and
father were not consistent in visiting the children.
Months later, in June and July 2021, mother and father
continued to visit the children inconsistently. Byron reported
mother would either cancel her visits or attend them
“sporadic[ally].” She sent text messages to him stating she was
not going to attend the visits because she did not feel well, or she
had to attend her classes. Byron opined that mother did not treat
19
her visits with Nathen as a priority because she cancelled a visit
with the child to go to an amusement park with her sister.
Guadalupe also reported that mother and father were
inconsistent in their visits with Darlene and Leilanee. Father
did not visit the girls in May or June 2021. He attended visits on
July 28 and July 30, 2021, but he only stayed for approximately
one hour and 10 minutes.
By October 2021, mother and father were attending visits
with Darlene and Leilanee more frequently. However, by
January 2022, mother’s visits again were inconsistent.
The parents’ inconsistency with visits continued into 2022.
Mother either cancelled or missed visits with all three children in
September and October 2022.
In October 2022, father also missed visits with his
daughters.
At the section 366.26 hearing, Guadalupe testified that
mother visited Darlene and Leilanee one or two times a week,
and father visited the children two days a week. Father testified
he visited Darlene and Leilanee two times a week for two hours
but did his best to visit them three times a week.
Taken together, this evidence shows, as the juvenile court
found, that the parents’ visits were inconsistent. While father’s
visits with Darlene and Leilanee were more consistent than
mother’s, he also missed visits, and when he did attend the visits
with the children, he did not stay for the entire allowed time.
Periods of consistency simply are not enough. (See In re C.F.
(2011) 193 Cal.App.4th 549, 554 [“Sporadic visitation is
insufficient to satisfy the first prong of the parent-child
relationship exception to adoption”]; see also In re J.C. (2014)
226 Cal.App.4th 503, 531 [regular visitation prong not present
20
when there were significant lapses in visitation]; In re I.R. (2014)
226 Cal.App.4th 201, 212 [significant lapses in visitation fatally
undermines any attempt to finding beneficial relationship
exception].)
Urging us to reverse, the parents argue that because the
juvenile court found that there was a bond between the children
and their parents, it could not find the parents’ visits
inconsistent. There are at least two problems with this
argument. First, the parents offer no legal authority in support
of this proposition.5 (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.) Second, based upon the evidence
presented, the juvenile court properly determined that these two
factors were not mutually exclusive.
2. Benefit from continuing the relationship
As to the second requirement of whether the parents and
children had such a relationship that the children would benefit
from continuing it,6 we must focus on the children. (Caden C.,
supra, 11 Cal.5th at p. 632.) “And the relationship may be
5 Father’s reliance upon In re Aurora P. (2015)
241 Cal.App.4th 1142, 1163, is misplaced. In that case, the Court
of Appeal considered “a novel question regarding which party
bore the burden of proof at the section 364 review hearing.” (In
re Aurora P., supra, at p. 1153.) Likewise, mother’s argument
notwithstanding, nothing in Caden C., supra, 11 Cal.5th at page
632 supports the parents’ proposition.
6 In discussing this second prong, our Supreme Court noted
that expert observations, such as through a bonding report, can
be “an important source of information about the psychological
importance of the relationship for the child[ren].” (Caden C.,
supra, 11 Cal.5th at p. 633.)
21
shaped by a slew of factors, such as ‘[t]he age of the child[ren],
the portion of the child[ren’s] life spent in the parent’s custody,
the “positive” or “negative” effect of interaction between parent
and child[ren], and the child[ren’s] particular needs.’ [Citation.]”
(Caden C., supra, at p. 632.)
Mother argues that the juvenile court did not engage in a
proper analysis of the second requirement. We disagree.
At the conclusion of the section 366.26 hearing, the juvenile
court acknowledged a “substantial positive bond between the
children and their parents.” However, “the second element [of
the beneficial parental relationship exception] is not, ‘Is there a
bond?’ The question is whether [the children] had a ‘substantial,
positive, emotional attachment to the parent[s]—the kind of
attachment implying that the child[ren] would benefit from
continuing the relationship.’ [Citation.]” (In re M.V. (2023)
87 Cal.App.5th 1155, 1185.) The parents did not make that
showing here.
Nathen was already living out of mother’s home prior to
juvenile court intervention. Furthermore, Darlene was two years
old and Leilanee was 10 months old at the time of their
detention. They lived in Guadalupe’s home for over two years
during which time the parents maintained inconsistent visits.
Therefore, even though the juvenile court found that there was a
bond, the children’s relationship with their parents was not the
substantial, positive, emotional attachment to the parents that
would imply the children would benefit from continuing the
relationship. (In re M.V., supra, 87 Cal.App.5th at p. 1185.)
22
3. Whether termination would be detrimental to the
children
The third requirement of the beneficial parental
relationship exception addresses whether the relationship
between the parents and the children was such that termination
of parental rights would be detrimental to Nathen, Darlene, and
Leilanee. (Caden C., supra, 11 Cal.5th at pp. 633, 640.) Here,
the evidence supports the juvenile court’s determination that
termination of parental rights would not be detrimental to the
children.
In assigning error, mother contends that “the court did not
address whether [Nathen], Darlene, or Leilanee would suffer
detriment by the termination of parental rights.” Father
similarly argues that the juvenile court found the benefits of
adoption outweighed the bond the children had with father
“without analysis . . . of the bond.” These arguments fail. “[W]e
are aware of no requirement . . . that the juvenile court, in
finding the parental-benefit 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.) “To the contrary, we infer from
section 366.26, subdivision (c)(1)(D)—under which the juvenile
court is required to ‘state its reasons in writing or on the record’
when it makes a finding that termination of parental rights
would be detrimental to the child—that the court is not required
to make findings when it concludes that parental rights would
not be detrimental.” (Ibid.)
Mother next argues that Guadalupe “did not even know the
full extent of what adoption meant,” and thus the juvenile court
should have considered legal guardianship. Contrary to mother’s
23
argument, Guadalupe understood the difference between
adoption and legal guardianship, and she consistently
maintained she wished to adopt Darlene and Leilanee. The
adoptions social worker spoke with Guadalupe about concurrent
planning, legal guardianship, and adoption, and Guadalupe
stated that she wished to adopt Darlene and Leilanee because
she and her family loved them. Even though she was harassed
by both parents, Guadalupe did not want to give up on the girls
because she loved them. In fact, “she remain[ed] committed in
moving forward with the plan of adoption, as she [was] invested
in the girls having a stable and loving home.”
Finally, father argues that the juvenile court considered
improper factors when it determined that the benefits of adoption
outweighed the detriment the children would suffer if parental
rights were terminated. Specifically, father states that the
juvenile court erred when it “criticized the parents for being
unfit, for failing to reunify, and for not being in the parental
role.”
The juvenile court did not criticize the parents or state they
did not stand in parental roles. Rather, it was the children’s
counsel who argued that Darlene and Leilanee had become
“bonded with [Guadalupe] in a parental sort of way.” While the
juvenile court adopted the children’s counsel’s argument when it
made its findings, it did not find that the parents did not stand in
a parental role, and their failure to reunify did not influence the
juvenile court’s decision.7 Instead, in accordance with Caden C.,
7 To the extent the juvenile court may have based its
findings on the parents’ failure to reunify with their children
and/or not standing in parental roles, the parents did not suffer
any prejudice. (See In re J.R. (2022) 82 Cal.App.5th 526, 531 [the
24
supra, 11 Cal.5th at page 633, the juvenile court addressed
mother’s and father’s visits; it found that the children’s relatives
had “stepped up to the plate” and cared for the children for over
two years; it acknowledged that the parents shared a “substantial
positive bond” with the children, but found that the benefit of
maintaining their relationship to the parents was outweighed by
the benefit they would receive through adoption; and the juvenile
court found that it was detrimental for the children to be
returned to the parents.
The cases cited by father—In re L.A.-O. (2021)
73 Cal.App.5th 197, 208–212; In re D.M. (2021) 71 Cal.App.5th
261, 270; In re J.D. (2021) 70 Cal.App.5th 833, 865; and In re
B.D. (2021) 66 Cal.App.5th 1218, 1230—do not compel a different
result.
In In re D.M. and In re J.D., unlike in this case, the social
workers’ reports gave the juvenile court little information about
the quality of the children’s visits with the parent and how they
felt about them. (In re D.M., supra, 71 Cal.App.5th at pp. 270–
271; In re J.D., supra, 70 Cal.App.5th at pp. 855, 860.) Also, in In
re D.M., the lower court expressly considered inappropriate
factors when determining whether the exception to termination
of parental rights existed. (In re D.M., supra, at p. 270.)
In In re J.D., supra, 70 Cal.App.5th at page 864 and In re
B.D., the appellate court could not determine whether the
juvenile court relied upon improper factors 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
mother was not prejudiced when the record would not support a
finding in the mother’s favor “even if her evidence were
credited”].)
25
analysis.” (In re B.D., supra, 66 Cal.App.5th at p. 1230; see also
In re L.A.-O., supra, 73 Cal.App.5th at pp. 211–212 [because the
trial court’s ruling was “terse,” the appellate court could not
determine whether it relied upon inappropriate factors in
terminating parental rights].) Here, as set forth above, we are
able to determine that the juvenile court did not rely upon
improper factors when it rejected the parents’ contention that
this exception to termination of parental rights applied.
In sum, there is no indication in the record that the
juvenile court improperly relied on the parents’ unfitness or
whether they occupied parental roles. Rather, based upon all of
the evidence, including father’s testimony and the DCFS reports,
which contained sufficient information about the quality of the
children’s visits with their parents, the juvenile court assessed
the parents’ visitation with the children, Nathen’s relationship
with mother, Darlene and Leilanee’s relationship with mother
and father, whether continuing the relationship would benefit the
children, and lastly whether the children would be harmed by the
termination of parental rights. There was no error.
II. Father’s request for a bonding study
In support of his contention that the juvenile court erred in
terminating his parental rights, father challenges the juvenile
court’s order denying his request for a bonding study.
A. The DCFS reports properly assessed father’s visits and
relationship with Darlene and Leilanee
Father first argues that DCFS did not file a proper
assessment of his relationship with Darlene and Leilanee and
thus failed to comply with section 366.21, subdivision (i)(1)(B).
26
1. Relevant law
“Once a court sets a hearing pursuant to section 366.26 to
select and implement a permanent plan for a dependent child,
[DCFS] must prepare an assessment . . . , frequently referred to
as an adoption assessment. Such an adoption assessment
provides the information necessary for the juvenile court to
determine whether it is likely the child will be adopted [citation]
and to consequently order termination of parental rights.” (In re
G.M. (2010) 181 Cal.App.4th 552, 559.) As is relevant to this
appeal, the assessment must include “[a] review of the amount of
and nature of any contact between the child and [his or her]
parents . . . since the time of placement.” (§ 361.5, subd. (g)(1)(B);
§ 366.21, subd. (i)(1)(B); § 366.22, subd. (c)(1)(B); § 366.25, subd.
(b)(1)(B).)
“[I]f the assessment is incomplete in some respects, the
court will look to the totality of the evidence; deficiencies will go
to the weight of the evidence and may ultimately prove
insignificant. [Citation.] Substantial compliance with the
assessment provisions has been deemed enough. [Citation.]” (In
re John F. (1994) 27 Cal.App.4th 1365, 1378.)
2. Analysis
DCFS’s reports in this case substantially complied with the
statutory requirements, and any deficiencies in the assessments
does not constitute prejudicial error. On February 1, 2022, the
juvenile court terminated family reunification services and set
the matter for a section 366.26 hearing. Thereafter, on May 16
and June 23, 2022, Guadalupe reported to the social worker that
father visited the children two times a week.
On August 8, 2022, the juvenile court continued the section
366.26 hearing and ordered DCFS to file a report addressing the
27
quality and frequency of the parents’ visits with the children. On
August 25, 2022, the social worker prepared a report advising the
juvenile court that father had visited Darlene and Leilanee two
times a week for approximately one hour. During the visits,
father brought food for the children and engaged in play with
them.
On August 31, 2022, the juvenile court again continued the
section 366.26 hearing and ordered DCFS to prepare another
report addressing the parents’ visits with the children.
In its September 23, 2022, report, DCFS advised the
juvenile court regarding the parents’ visits. Regarding father,
the report indicated that he visited the children three days a
week for one-and-a-half hours. During the visits, he would
engage in play and take the girls and Guadalupe to a liquor store
to purchase snacks.
In an October 25, 2022, report, DCFS listed father’s visits
with the girls for October. On October 5, 2022, father visited
Darlene and Leilanee, and they played outside with their toys.
On October 6, 2022, he visited the girls, brought them cheese
pizza, played with them, and took them for snacks. On
October 7, 2022, father brought food for the girls. On October 12,
2022, he visited Darlene and Leilanee and again brought them
food. On October 13 and 14, 2022, father did not show up for the
visit or call to cancel. On October 19, 2022, father participated in
a visit with the children.
At the hearing on October 26, 2022, Guadalupe and father
testified as to father’s visits and relationship with Darlene and
Leilanee.
Given the totality of the evidence, DCFS’s reports were
adequate and provided the juvenile court with sufficient
28
information regarding the amount and nature of contact between
father and the girls.
B. The juvenile court properly denied father’s request for a
bonding study
Father next argues that a bonding study was essential for
him to prove the parental-benefit exception to termination of
parental rights.
1. Relevant law
At a section 366.26 hearing to select and implement a
permanent plan for a child, “the primary issue often is whether
the parents can establish that the child would benefit from a
continuing relationship with them and that termination of
parental rights would therefore be detrimental to the child.
(§ 366.26, subd. (c)(1)(B)(i).” (In re S.R. (2009) 173 Cal.App.4th
864, 869.) “In attempting to establish or eliminate this exception
to the preference for adoption, the parties or the court may
require a bonding study to illuminate the intricacies of the
parent-child bond so that the question of detriment to the child
may be fully explored.” (Ibid.)
“There is no requirement in statutory or case law that a
court must secure a bonding study as a condition precedent to a
termination order.” (In re Lorenzo C., supra, 54 Cal.App.4th at
p. 1339.)
The timing of the request is crucial. “Bonding studies after
the termination of reunification services would frequently require
delays in permanency planning. Similar requests to acquire
additional evidence in support of a parent’s claim under section
366.26, subdivision [(c)(1)(B)(i)] could be asserted in nearly every
dependency proceeding where the parent has maintained some
contact with the child. The Legislature did not contemplate such
29
last-minute efforts to put off permanent placement. [Citation.]
While it is not beyond the juvenile court’s discretion to order a
bonding study late in the process under compelling
circumstances, the denial of a belated request for such a study is
fully consistent with the scheme of the dependency statutes, and
with due process.” (In re Richard C. (1998) 68 Cal.App.4th 1191,
1197, fn. omitted.) “[A]t such a late stage in the proceedings [the
father’s] right to develop further evidence regarding [his] bond
with the child was approaching the vanishing point.” (Id. at
p. 1195.)8
We review a juvenile court’s denial of a request for a
bonding study for abuse of discretion. (In re Lorenzo C., supra,54 Cal.App.4th at p. 1341.)
2. Analysis
Applying these legal principles, we conclude that the
juvenile court did not abuse its discretion when it denied father’s
request for a bonding study. Aside from the fact that father’s
request was made belatedly,9 a bonding study was not required
because the DCFS reports contained sufficient information
8 In his reply brief, father asserts that In re Richard C. was
both wrongly decided and inconsistent with Caden C. We
disagree. As recently noted in In re M.V., supra, 87 Cal.App.5th
at p. 1182, it is “not an abuse of discretion to deny a belated
request for a bonding study that would delay a child’s permanent
placement.” (See also In re M.M. (2022) 81 Cal.App.5th 61, 68–
69, review granted on another issue, Oct. 12, 2022, S276099.)
9 As set forth above, father did not request the bonding study
until October 4, 2022, eight months after the juvenile court
terminated family reunification services and set the matter for a
section 366.26 hearing.
30
regarding father’s visits and relationship with Darlene and
Leilanee. While father argues that “[t]he quality of the visits
between the girls and their father is wholly absent from any
report”, the DCFS reports sufficiently described the interactions
between father, Darlene, and Leilanee and evaluated them
positively. In addition, the juvenile court heard testimony from
Guadalupe and father regarding his visits and relationship with
the children.
Urging us to reverse, father cites Caden C., supra,
11 Cal.5th at pages 632 through 633 for the proposition that
courts should allow “expert testimony in termination of rights
cases based on observation.” However, nothing in Caden C.
purported to restrict the broad discretion a juvenile court
exercises over whether to order a bonding study. Even after
Caden C., a court that believes a bonding study is unnecessary
because the record adequately reflects the nature of the
relationship between a minor and his or her parent may still
properly deny a request for a study. (In re B.D., supra,
66 Cal.App.5th at p. 1228, fn. 3.)
Moreover, as set forth above, because father failed to
demonstrate regular visitation and contact under the first prong
of Caden C.’s test, any error in failing to order a bonding study to
evaluate the second element (whether the child would benefit)
does not require reversal of the finding that the exception did not
apply. (See Caden C., supra, 11 Cal.5th at pp. 632–633.)
Furthermore, also as set forth above, the juvenile court
acknowledged a “substantial positive bond between the children
and their parents.” Because the juvenile court found a bond
between father and the girls, there was clearly sufficient evidence
in the DCFS reports about father’s visits and relationship with
31
Darlene and Leilanee, and a bonding study would not have been
useful to the court. And, because the case had been pending for
over two years, the juvenile court was well-aware of the nature
and extent of father’s relationship with the girls, and thus
properly denied his request for a bonding study.
In re Amber M. (2002) 103 Cal.App.4th 681 does not compel
a different result. In that case, the evidence showed a “common
theme running through the evidence from the bonding study
psychologist, the therapists, and the [court appointed special
advocate]” that there was a “beneficial parental relationship that
clearly outweigh[ed] the benefit of adoption.” (Id. at pp. 689–
690.) The bonding study was important because the social
worker “provided no more than a perfunctory evaluation” of the
mother’s relationship to the children. (Id. at p. 690.) In contrast,
here, the DCFS reports provided detailed information on the
parents’ relationship with their children. In fact, those reports
highlighted the positive aspects of father’s relationship with his
daughters—evidence echoed by father and Guadalupe’s
testimony.
Finally, father’s reliance upon In re Matthew P. (1999)
71 Cal.App.4th 841 is misplaced. In that case, the Court of
Appeal found that de facto and former foster parents (appellants)
were denied due process when the juvenile court admitted social
worker reports without allowing the appellants to cross-examine
the social worker. (Id. at pp. 845, 849.) Here, father was not
denied due process because the juvenile court held a full
evidentiary hearing before terminating parental rights.
32
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
HOFFSTADT
33