Opinion
B314308
06-13-2022
In re Z.S., Person Coming Under the Juvenile Court Law. v. K.R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. DK22210, Craig S. Barnes, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
The juvenile court terminated the parental rights of K.R. (mother) with respect to her daughter, Z.S., under Welfare and Institutions Code section 366.26. On appeal, mother challenges the juvenile court's orders: (1) denying her petition filed under section 388 to modify the order terminating her reunification services; and (2) terminating her parental rights based on the court's finding that the beneficial parent-child relationship to adoption did not apply. Finding no error, we affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Z.S. was born in March 2017. Two days later, the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Z.S. was at risk of neglect. Among other things, the reporting party stated: (1) mother reported she was held captive and subjected to human trafficking from June to November 2016, when she was "forced to" use heroin, methamphetamine, and marijuana; (2) she stated she started smoking marijuana when she was 12 years old, and began smoking methamphetamine when she was 16 years old; (3) she tested positive for amphetamines and opiates twice in 2016, while she was pregnant; and (4) she tested positive for methadone six days before giving birth to Z.S.
At the time Z.S. was born, mother was in a relationship with A.S., who is listed as Z.S.'s father on her birth certificate. Mother and A.S. have both reported A.S. is not Z.S.'s biological father. Nevertheless, on September 27, 2018, the juvenile court found A.S. to be the presumed father of Z.S. A.S. is not a party to this appeal.
In June 2017, the juvenile court sustained a petition filed by the Department on behalf of Z.S. under section 300, subdivision (b). In so doing, it found Z.S. was at substantial risk of serious physical harm due to mother's "history of illicit drug use" and "current abuse[ ] of heroin, marijuana, methamphetamine[, ] and amphetamines[.]"
The juvenile court removed Z.S. from mother, found Z.S. was appropriately placed with T.J., a maternal relative, and allowed mother to reside with Z.S. at her placement home. Mother's court-ordered case plan required her to: (1) participate in weekly and random or on demand drug and alcohol testing; (2) attend individual counseling; (3) participate in mental health counseling, including a psychiatric evaluation; and (4) take all prescribed psychotropic medications. The court further ordered that if mother had any unexcused missed tests, or if any of her tests were "dirty[, ]" then she would be required to participate in a full drug rehabilitation program with random testing.
During the ensuing review period, mother resided with Z.S. at T.J.'s residence. Between July 14 and October 24, 2017, she tested positive for opiates eight times. On October 25, 2017, she enrolled in an outpatient drug treatment program at a Tarzana Treatment Center.
In November 2017, the Department received hospital records reflecting that, "on more than one occasion in" October 2017, mother went to the hospital and exhibited drug-seeking behavior, in that she "ask[ed] for certain pain medications that were not related to her stated condition[.]" For example, on October 13, 2017, mother was admitted to the hospital after reportedly experiencing seizures. There, she "ask[ed] for IV Dilaudid" even though she "did not appear to be in severe pain[, ]" and tests performed by medical personnel did not reveal evidence of seizures, or indicate she sustained any injuries justifying her complaints of pain. Further, during that hospitalization, mother reported "[s]he has [a] history of narcotic dependence[, ]" and that "she has an addiction to pain medications." In an interview with the Department, mother said she told hospital staff that "her 'body was codependent on the pain medication' because she has 'taken it for many years.'"
On January 5, 2018, T.J. asked mother to move out of her home after mother received threatening text messages. Mother complied with the request.
At the six-month status review hearing held in February 2018, the juvenile court found continued jurisdiction was necessary, and that Z.S.'s current placement was still necessary and appropriate because returning her to mother would create a substantial risk of detriment. Among other things, it also found: (1) mother was partially compliant with her case plan; (2) there was a substantial probability Z.S. could be returned to mother within 18 months of the date of her initial removal; and (3) mother had consistently and regularly visited Z.S. and maintained contact with her. Accordingly, the court continued mother's reunification services.
After moving out of T.J.'s home, mother tried to transfer her services to another Tarzana Treatment Center closer to her new residence. The Department confirmed her case had been transferred, and she reported she attended an intake appointment at the new facility in February 2018. Subsequently, however, she stated the facility never responded to her calls regarding when services would begin, and the Department was unable to obtain more information.
Between February 5 and April 13, 2018, mother had four positive drug tests: (1) on February 5, she tested positive for cannabinoids and opiates; (2) on March 12, she tested positive for cannabinoids and cocaine; (3) on April 11, she tested positive for cocaine and amphetamines when she went to the hospital for injuries reportedly sustained during a seizure; and (4) on April 13, she tested positive for cannabinoids and opiates. Regarding her hospitalization on April 11, the Department suspected mother was again exhibiting drug-seeking behavior because she had gone to different hospitals on multiple occasions seeking pain medication for injuries allegedly sustained during a seizure. On at least two of those occasions, she provided the same explanation for her injuries, claiming they were due to "'falling down a flight of stairs while having a seizure[.]'"
On April 18, 2018, mother was admitted to a residential drug treatment program at a Tarzana Treatment Center and reported she planned to complete a 60-day treatment program. Six days later, mother told the Department social worker she had "'always taken pain pills[ ]'" and "'finally admitt[ed] that [she] ha[d] a . . . [drug] problem[.]'"
Between May 18 and May 21, 2018, T.J. received threatening messages at work and noticed A.S. was following her. Concerned for Z.S.'s safety, the Department placed Z.S. in foster care with Ms. Z. on May 21, 2018. That same day, mother was discharged from her residential drug treatment program due to behavioral issues.
On June 21, 2018, mother began another residential drug treatment program at a different Tarzana Treatment Center. While in the program, she tested positive for opiates and methadone on July 8, 2018. She reported she tested positive because she had gone to the hospital after "'having a seizure' in which she ended up hitting her head and chest[, ]" and "was given morphine for the pain[.]" Tests performed by hospital staff, however, did not reveal evidence of trauma.
At the 12-month status review hearing held on July 24, 2018, the juvenile court found continued jurisdiction was still necessary, that returning Z.S. to mother's care would present a substantial risk of detriment, and that mother was partially compliant with her case plan. Accordingly, it continued mother's reunification services.
Mother completed her 60-day residential treatment program on August 21, 2018 and was granted a 30-day extension of services. The next day, however, mother's case worker informed the Department that her extension was withdrawn due to behavioral issues. Her case worker also told the Department "mother may have been 'med seeking' during her stay at the residential program[ ]" because "on at least 4 occasions [(i.e., on June 29, July 3, July 6, and August 12, 2018)], . . . mother was seen at different medical facilities . . . after allegedly experiencing pain from falling while having seizures." The case worker further noted that, regarding the August 12 hospitalization, mother was given morphine after reportedly having a stroke and experiencing a lot of pain. However, the "hospital staff stated that there was 'nothing wrong with her[.]'"
Mother was hospitalized on September 7, 2018, after reportedly having a stroke. While in the hospital, she tested positive for benzodiazepines and cocaine. The attending nurse told the Department that although mother was given morphine upon admission, "all the tests done on . . . mother 'came back negative' which indicated that . . . mother was 'fine[.]'" The nurse also related that the physical therapists and occupational therapists who worked with mother in the hospital "'[were] convinced that she [was] mimicking symptoms[.]"
Mother was discharged from the hospital on September 13, 2018. Thirteen days later, she tested positive for opiates.
On October 9, 2018, mother enrolled in an intensive five-month outpatient treatment program at Twin Town Treatment Centers. Between October 31 and November 19, 2018, while she was enrolled in the program, mother tested positive for opiates four times.
On December 4, 2018, mother informed the Department she was two months pregnant.
The 18-month status review hearing took place on December 10, 2018. There, the juvenile court found continued jurisdiction was necessary, that returning Z.S. to mother would place her at substantial risk of detriment, and that mother had made minimal progress in addressing the concerns giving rise to jurisdiction. In support, the court noted that, among other things, mother had a history of substance abuse and continued to engage in "drug-seeking behavior[.]" Therefore, it terminated mother's reunification services and set a hearing under section 366.26.
On May 21, 2019, Z.S. was placed with Mr. and Mrs. S., where she has remained since.
Mother completed the outpatient treatment program at Twin Town Treatment Centers in June 2019. Six days later, she gave birth to Z.S.'s half-sister, Z.C. At the time of Z.C.'s birth, mother tested positive for opiates and benzodiazepines, and Z.C. tested positive for opiates. As a result of these positive toxicology screens, a separate dependency case was initiated on behalf of Z.C.
On September 4, 2020, mother filed a section 388 petition seeking to modify the order terminating her reunification services. She requested that Z.S. be returned to her care. Alternatively, she asked for overnight and/or unmonitored visits, as well as reunification services.
The hearing on mother's section 388 petition was held over four days and concluded on June 14, 2021. The juvenile court denied the petition, finding mother established "changing" rather than "changed" circumstances. It also found that the requested order was not in Z.S.'s best interests.
Immediately thereafter, the juvenile court held the section 366.26 hearing for Z.S. At that point, mother's counsel argued mother's parental rights should not be terminated because the beneficial parent-child relationship exception to adoption applied. The court rejected his argument, finding: (1) "mother has not maintained regular visitation with the child"; (2) mother "has not established a sufficient bond with the child"; and (3) "any benefit accruing from [Z.S.'s relationship with mother] is outweighed by the physical and emotional benefit [Z.S.] will receive through permanence and stability of adoption." Thus, having found Z.S. was adoptable, and that no exceptions to adoption applied, the juvenile court terminated mother's parental rights.
DISCUSSION
I. Denial of Section 388 Petition
A. Legal Principles and Standard of Review
"Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) "The [parent] has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child. [Citations.]" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "In considering whether the [parent] has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. [Citation.]" (Id. at p. 616.)
With respect to the first prong of test set forth above, "the [parent] must show changed, not changing, circumstances. [Citation.] The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' [Citation.]" (In re Mickel O., supra, 197 Cal.App.4th at p. 615.)
When evaluating the second prong, the court may consider factors such as "the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstances, the ease by which the change could be achieved, and the reason the change was not made sooner. [Citations.]" (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) Moreover, where, as here, "reunification services have been terminated, the parents' interest in the care, custody and companionship of the child are no longer of overriding concern. [Citation.] The focus then shifts to the child's need for permanency and stability, and there is a rebuttable presumption that continued foster care is in the child's best interests. [Citations.]" (Id. at p. 448.) And, "[w]hen, as here, the permanent plan is adoption, that presumption is even more difficult to overcome. [Citation.]" (Id. at pp. 448-449.)
"We review the juvenile court's denial of a section 388 petition for an abuse of discretion. [Citation.]" (In re Mickel O., supra, 197 Cal.App.4th at p. 616.) "'["]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citation.]' [Citation.]" (Ibid.)
B. Analysis
1. Changed Circumstances
With respect to the first prong, mother argues "[t]he evidence showed a substantial change [in] circumstances" compared to December 2018, when her reunification services were terminated. In support, she emphasizes that, per her declaration attached to her section 388 petition and its accompanying exhibits: (1) she completed an outpatient drug treatment program with Twin Town Treatment Centers in June 2019; (2) she completed a residential drug treatment program with Behavior Health Services Inc., Patterns in November 2019, where she completed courses in parenting, anger management, and domestic violence; (3) she has been participating in counseling since May 11, 2020 and was last seen on July 22, 2020; and (4) as of July 2020, she was drug testing.
We disagree with mother's argument. This case arose primarily due to concerns about mother's long-standing and unresolved substance abuse issues. As discussed below, the record reflects these issues persisted throughout her participation in and completion of numerous drug treatment programs while the case has been open. Consequently, while we commend mother's efforts toward sobriety, we cannot conclude the juvenile court abused its discretion by finding she only showed "changing" rather than "changed" circumstances.
The record reflects mother has a long history of substance abuse. While in the hospital for Z.S.'s birth, she informed hospital staff that she began smoking marijuana and methamphetamine when she was 12 years old and 16 years old, respectively. Based on hospital records and her own statements to the Department, mother has been taking pain medication for many years, and has admitted to being addicted to narcotics on more than one occasion.
Between 2017 and 2019, mother participated in several drug treatment programs. First, she participated in, but did not complete, an outpatient treatment program at a Tarzana Treatment Center between October 2017 and January 2018. In April 2018, she enrolled in a residential treatment program at a Tarzana Treatment Center, but was discharged due to behavioral issues. She enrolled in another residential treatment program at a different Tarzana Treatment Center in June 2018, which she completed in August 2018. Then, in October 2018, mother enrolled in an outpatient treatment program at Twin Town Treatment Centers, which she completed in June 2019, after her reunification services were terminated.
Mother's substance abuse issues persisted throughout her participation in these programs. As discussed in detail above, she exhibited drug-seeking behavior on several occasions while in residential treatment between June and August 2018 and after completing the program in September 2018. She tested positive for a variety of drugs, such as cocaine, cannabinoids, amphetamine, benzodiazepines, and opiates, numerous times while in and out of treatment, including: (1) four times during the two-month period when she was in between outpatient and residential treatment in 2018; (2) two times in September 2018, after completing her first residential treatment program; and (3) four times while in the Twin Town Treatment Centers outpatient program. Less than a week after she completed the program at Twin Town Treatment Centers, she tested positive for benzodiazepines and opiates when Z.C. was born.
Based on this evidence, the juvenile court could reasonably conclude mother's completion of outpatient treatment in June 2019 and residential treatment in November 2019 did not establish she had resolved her substance abuse issues. Accordingly, the juvenile court did not "exceed[ ] the bounds of reason" (In re Mickel O., supra, 197 Cal.App.4th at p. 616) by finding mother failed to show a change in circumstances "'of such significant nature'" to justify setting aside the prior order terminating her reunification services. (Id. at p. 615.)
2. Child's Best Interest
In addressing the second prong, mother argues "[t]he evidence . . . showed [Z.S.] had a significant, positive, emotional relationship with . . . mother[, ]" and therefore "it was in [Z.S.]'s best interest" to either return Z.S. to her care, grant her unmonitored and/or overnight visits, or grant her additional reunification services. Considering the factors set forth in In re Aaliyah R., supra, 136 Cal.App.4th at pp. 446-447, we conclude the juvenile court did not abuse its discretion by finding the requested order was not in Z.S.'s best interests.
First, as discussed above, mother has not shown she has resolved her long-standing, significant substance abuse issues giving rise to this case. (Section I.B.1, ante.)
Next, Z.S. has not been in mother's care for most of her life. She came to the Department's attention when she was two days old. While she resided with mother for several months in 2017, she has not lived with her since January 2018. Z.S. has been living with Mr. and Mrs. S., her prospective adoptive parents, since May 2019. By the time of the final hearing on mother's section 388 petition, Z.S. was four years old and had been in their care for over two years (i.e., more than half of her life).
Third, the record demonstrates Z.S. views her placement residence as her home, and has a strong bond with Mr. and Mrs. S. and their biological children. She refers to Mrs. S. as "'momma'" and Mr. S. as "'daddy'" or "'dadda[.]'" Z.S. "has expressed that she loves her 'momma and dadda[.]'" On one occasion, when returning from a visit with mother, Z.S. "immediately recognized the street . . . where her placement home is located, pointed to it[, ] and stated 'I want to go home. I want to see Dadda[.]'" Then, "when [Mr. S.] answered the door, [Z.S.] immediately ran to him and hugged him." Mrs. S. reported Z.S. got along well with all of their biological children, and has become especially close to their youngest child, who is around the same age. According to the Department, Z.S. follows Mr. and Mrs. S. and their children around the home, seeks out the children to play with them, and often called for her foster parents and their children during visits with mother. Given her strong attachment to her foster family, and the sense of stability and normalcy they have provided for Z.S., the Department opined that "returning [Z.S.] to . . . mother or offering further reunification services would be both physically and emotionally traumatic for [Z.S.]"
Lastly, the evidence regarding mother's visits with Z.S. demonstrates that at the time of the hearing on her section 388 petition, Z.S.'s bond with mother was not similar in nature or strength to the bond she had with her foster parents. As mother points out, the record does reflect that from January 2018 through mother's pregnancy with Z.C., Z.S. enjoyed her weekly visits with mother, and that the visits were consistent, positive, and of good quality. After Z.C. was born, however, mother's visits with Z.S. decreased in quality when both children were present. Mother mainly focused her attention on Z.C., during which time Z.S. played on her own until Z.C. fell asleep. Moreover, following Z.C.'s birth, mother often ended visits 15 to 20 minutes early.
The record does not indicate Z.S. reacted negatively when mother ended visits early, or when she was preoccupied with Z.C. during visits. Moreover, while Z.S. cried at the end of one visit in 2018, by late 2019, she did not have difficulty separating from mother and did not cry when visits ended.
Beginning in March 2020, mother's weekly monitored visits began taking place via video calls due to the COVID-19 pandemic. Throughout 2020 and 2021, the visits continued to decrease in quality. They generally lasted between 5 and 15 minutes. Although mother was appropriate and affectionate with Z.S. during video calls, Z.S. "show[ed] little interest in engaging with her" and exhibited "minimal engagement[.]" She "often initiat[ed] the calls with her head leaned away from the camera, her hands covering her face[, ] and not wanting to talk." Mother sometimes got Z.S.'s attention by "showing her different toys and/or items" she had bought for her, at which point Z.S. would talk to mother about the items. Ultimately, however, Z.S. would "end[ ] up saying things like 'Can I please go play now?' or 'Can you please hang up now?'" During one visit, Z.S. cried when mother, frustrated by Z.S.'s lack of engagement, "threatened to take all the new toys (that . . . mother showed [Z.S.]) 'back to the store[.]'" Z.S.'s caregiver reported Z.S. "often times . . . doesn't want to talk to . . . mother unless . . . mother shows her toys/items."
In addition to decreasing in quality, mother's visits became increasingly inconsistent throughout 2020 and 2021. In 2020, she did not attend one out of four visits scheduled in August, two out of six visits scheduled in September, three out of nine visits scheduled in October, three out of eight visits scheduled in November, and seven out of nine visits scheduled in December. As of March 5, 2021, mother missed 11 out of 18 visits scheduled that year; she did not attend seven out of eight visits scheduled in January, three out of eight visits scheduled in February, and one out of two visits scheduled in March. The record does not indicate Z.S. reacted negatively when mother missed these visits. Nor does it reflect Z.S. reacted adversely when mother cancelled in-person visits in the past.
In arguing the requested order is in Z.S.'s best interests, mother asks us to focus on the evidence pertaining to her in-person visits, and to essentially disregard the evidence relating to her virtual visits. She suggests that, rather than illustrating the strength of their bond, Z.S.'s minimal engagement during virtual visits solely reflected the challenges of "hav[ing] . . . meaningful visitation with a small child over a telephone screen." Her argument is unavailing because, as noted above, "[w]hen two or more inferences can reasonably be deduced from the facts, [we] ha[ve] no authority to substitute [our] decision for that of the trial court." [Citation.]' [Citation.]" (In re Mickel O., supra, 197 Cal.App.4th at p. 616.)
Accordingly, on the record before us, we conclude the juvenile court could reasonably find mother's bond with Z.S. was not of such a strong, compelling nature to rebut the presumption that it was in Z.S.'s best interests to remain in the care of her foster parents. (See In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.) The court therefore did not "exceed[ ] the bounds of reason" (In re Mickel O., supra, 197 Cal.App.4th at p. 616) by finding that it was not in Z.S.'s best interests to return her to mother, to allow mother to have overnight or unmonitored visits, or to grant mother further reunification services.
3. Conclusion
For the reasons discussed above, the juvenile court did not abuse its discretion by denying mother's section 388 petition.
II. Termination of Parental Rights
A. Legal Principles and Standard of Review
"By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount. [Citations.]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) "At that hearing, the court determines whether to terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan." (Caden C., supra, 11 Cal.5th at p. 625.)
"'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53.) Consequently, if the court finds the child is adoptable, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances [set forth in section 366.26] provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances-actually, exceptions to the general rule that the court must choose adoption where possible-'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (Ibid.)
One of these exceptions is the "beneficial parent-child relationship exception[.]" (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) This exception permits the selection of another permanent plan if "[t]he 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).)
In Caden C., supra, 11 Cal.5th 614, our Supreme Court interpreted section 366.26, subdivision (c)(1)(B)(i) and "discern[ed] three elements the parent must prove to establish the [beneficial parent-child relationship] exception[.]" (Id. at p. 631.) The court explained: "[T]he parent asserting the [beneficial parent-child relationship] exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show 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. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Id. at p. 636.)
"The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 632.)
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 632.) In so doing, "the focus is the child. And the relationship may be shaped by a slew of factors, such as '[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.' [Citation.]" (Ibid.) Thus, when assessing this element, "courts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.]" (Ibid.)
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. [Citations.] 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. [Citations.]" (Caden C., supra, 11 Cal.5th at p. 633.) The evaluation of the third element consists of a "subtle, case-specific inquiry[, ]" which requires the court to consider the following question: "[D]oes the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.]" (Ibid.) We review the juvenile court's findings on the first two elements of the Caden C. test for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) We apply a "hybrid standard" when reviewing a ruling on the third element of the test. (Id. at pp. 640-641.) "[T]he ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his [or her] parent-is discretionary and properly reviewed for abuse of discretion." (Id. at p. 640.) Any factual determinations made in support of that decision, however, are reviewed for substantial evidence. (Ibid.)
C. Analysis
Mother contends the juvenile court erred by declining to apply the beneficial parent-child relationship exception because she satisfied all three elements of the Caden C. test. She also contends the order terminating her parental rights should be reversed because "the juvenile court's ruling did not comply with the principles announced in [the Caden C.] decision." We address her arguments in turn.
1. Consistent Visitation
Mother contends the juvenile court erred by finding she did not have regular visitation and contact with Z.S. because "[f]or almost three years it was reported [she] consistently and regularly had in-person contact with [Z.S.]" In support of her position, she emphasizes the evidence relating to her in-person visits with Z.S. prior to March 2020, and suggests we should disregard or otherwise give less weight to the evidence pertaining to her virtual visits in 2020 and 2021.
Mother's argument fails because it would require us to exceed our authority under the applicable standard of review. "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.' [Citations.]" (Caden C., supra, 11 Cal.5th at p. 640.) Further, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
As discussed in section I.B.2, ante, the evidence shows that although mother was consistent in her weekly visits with Z.S. from January 2018 to March 2020, she missed a substantial number of visits between July 2020 and March 2021. On this record, the juvenile court could reasonably conclude mother did not "visit consistently and to the extent permitted by court orders[.]" (In re I.R. (2014) 226 Cal.App.4th 201, 212.) Accordingly, substantial evidence supports the court's finding that mother did not satisfy the first prong of the Caden C. test.
2. Significant, Positive, Emotional Attachment
Next, mother contends the juvenile court erred by finding she did not satisfy the second prong of the Caden C. test because the record demonstrates Z.S. had a "significant, positive, emotional attachment" to her, and therefore Z.S. would benefit from the relationship's continuance. In support of her position, mother reiterates that we should focus on the evidence concerning her in-person visits with Z.S., and suggests we should disregard or accord less weight to the evidence regarding their virtual visits, in determining the strength and nature of their relationship. Once again, bearing in mind the applicable standard of review, we reject her contention.
As discussed in section I.B.2, ante, the record reflects Z.S. lived with mother for less than a year and has spent nearly her entire life in foster care. While she and mother had regular and loving contact during in-person visits, the quality of their visits began to decrease following the birth of Z.C., and continued to decrease when the visits shifted from in-person to video calls due to COVID-19. Further, mother's visits became increasingly inconsistent from September 2020 through March 2021.
By the time of the section 366.26 hearing, Z.S. showed little interest in engaging with mother during visits and often asked to end them early. Mother did not produce, and we could not locate, any evidence indicating Z.S. missed or wanted to resume in-person visits with her. (Cf. In re J.D. (2021) 70 Cal.App.5th 833, 858 (J.D.) [minor "frequently expressed a desire to go to [his] mother's house" while visits were held virtually].) Further, the record does not reflect Z.S. reacted negatively when mother missed visits, ended visits early, or was preoccupied with Z.C. during visits.
On this record, viewed "in the light most favorable to the juvenile court's findings" (In re Yolanda L., supra, 7 Cal.App.5th at p. 992), we conclude the juvenile court could reasonably find that although Z.S. and mother had "'frequent and loving contact'" during in-person visits (In re Derek W. (1999) 73 Cal.App.4th 823, 827), Z.S. did not have a "substantial, positive, emotional attachment to [mother] . . . implying that [Z.S.] would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) The court's finding on the second prong of the Caden C. test is therefore supported by substantial evidence.
3. Detriment Upon Termination of Relationship vs. Benefits of Adoption
Although not entirely clear, mother appears to rely on the same arguments disputing the juvenile court's finding on the second prong of the Caden C. test to challenge its finding on the third prong. As discussed below, we conclude the court did not abuse its discretion by finding the benefits Z.S. would gain through adoption would outweigh any detriment she would suffer due to termination of her relationship with mother.
Throughout the time Z.S. was placed in their home, Mr. and Mrs. S. have expressed interest in adopting her. While Z.S. has been in their care, they have provided a safe, stable, and nurturing environment, and ensured all of her needs were met. They reported they "have bonded with [Z.S.] and express[ed] loving her as their own child." Likewise, as discussed in section I.B.2, ante, the record reflects Z.S. has developed a strong bond with her foster parents and their biological children.
Based on this evidence, the juvenile court could reasonably find Z.S. would derive substantial benefits from placement in an adoptive home with Mr. and Mrs. S. In the face of this evidence, however, mother has not identified, and we could not locate, any evidence indicating Z.S.'s relationship with her was so compelling and significant that termination of that relationship would result in detriment outweighing those benefits. For example, the record does not contain any evidence demonstrating Z.S. might act out or experience emotional instability, insomnia, anxiety, difficulties in school, or depression, if her relationship with mother is terminated. (Cf. Caden C., supra, 11 Cal.5th at p. 633.) Since 2019, Z.S. has not had difficulty separating from mother at the end of visits. Further, as discussed above, the record does not reflect Z.S. reacted negatively when mother's visits were shifted from in-person to video calls due to COVID-19, when mother cancelled visits, or when she ended visits early.
In sum, on the record in this case, we cannot conclude the juvenile court "exceeded the bounds of reason" (In re Mickel O., supra, 197 Cal.App.4th at p. 616) by finding the benefits of placing Z.S. in an adoptive home outweighed any detriment she would suffer due to the loss of her relationship with mother. (Caden C., supra, 11 Cal.5th at p. 642.) Consequently, the juvenile court did not abuse its discretion by concluding mother failed to satisfy the third prong of the Caden C. test.
4. Mother's Arguments Based on Caselaw
In addition to arguing that she satisfied all three elements of the Caden C. test, mother relies primarily on J.D., supra, 70 Cal.App.5th 833, to contend the order terminating her parental rights must be reversed for two reasons. First, she argues reversal is required because the Department's final status review report only "comment[ed] on the virtual visits[ ]" and "did not address 'how [Z.S.] fe[lt] about, interact[ed] with, look[ed] to, or talk[ed] about [mother.]" Second, she argues reversal is warranted because, in deciding whether the beneficial parent-child relationship exception applied, the juvenile court considered factors that our Supreme Court deemed improper in Caden C., such as whether Z.S. could be returned to mother's care, and Z.S.'s relationship with her caregivers.
In J.D., the juvenile court terminated the mother's parental rights with respect to her five-year-old son after finding the beneficial parent-child relationship exception to adoption did not apply. (J.D., supra, 70 Cal.App.5th at p. 851.) The court rendered its decision before our Supreme Court issued its opinion in Caden C., supra, 11 Cal.5th 614. (See J.D., supra, at p. 840.)
The Court of Appeal reversed the order terminating the mother's parental rights and remanded the case to the juvenile court to conduct a new section 366.26 hearing. (J.D., supra, 70 Cal.App.5th at p. 870.) Its decision rested on two grounds. First, the Court of Appeal noted that although the "mother presented evidence to support a finding that [her son] has a 'substantial, positive, emotional attachment' to her sufficient to meet the second element[ ]" of the Caden C. test (id. at p. 855), the record also reflected that the "mother at times engaged in behavior that was decidedly not appropriate, which the juvenile court could infer had a negative impact on [her son]." (Id. at p. 863.) Since "[t]he record contain[ed] no assessment of the overall impact [the] mother's past behavior had on [her son]," and "neither the parties nor the [juvenile] court had the benefit of Caden C., [the Court of Appeal] deem[ed] it prudent to remand for a new section 366.26 hearing at which such questions may be considered." (Ibid.)
Second, the Court of Appeal determined remand was appropriate because it could not "be certain the juvenile court did not rely on improper factors in assessing" the second element of the Caden C. test. (J.D., supra, 70 Cal.App.5th at p. 863.) The Court of Appeal observed that, at the section 366.26 hearing, the parties "both alluded to factors deemed irrelevant in Caden C.[, ]" such as the mother's inability to overcome the struggles giving rise to dependency, the suitability of her son's current placement, and the fact that her son looked to his caregiver to satisfy his everyday needs. (Id. at pp. 863-864.) Accordingly, the Court of Appeal concluded that, based on the record before it, it could not "be sure whether the juvenile court's determination that [the] mother did not occupy a 'parental role' encompassed factors that Caden C. deems irrelevant. [Citation.]" (Id. at p. 865.)
Mother's first argument is meritless because, in J.D., the Court of Appeal did not reverse the order terminating the mother's parental rights based on the inadequacy of the social service agency's reports. Instead, mother misconstrues a portion of the opinion where, in dicta, the Court of Appeal observed that the evidence showing the strong relationship between the mother and her son was found only in "virtual visitation logs" she introduced into evidence at the section 366.26 hearing, as opposed to the agency's reports. (See J.D., supra, 70 Cal.App.5th at pp. 855-860.) In so doing, the Court of Appeal commented: "[I]n evaluating the record, we cannot overlook the fact the agency provided very little information in its prior reports . . . about the quality of [the] mother's relationship with [her son] or even the nature of her interactions with him during visitation. That was not appropriate and did a disservice not just to [the] mother and [her son] but also the juvenile court." (Id. at p. 860.)
Mother's argument also lacks merit because J.D. is distinguishable. In contrast with the agency's reports in J.D., the Department's reports throughout this case contained detailed descriptions of mother's interactions with Z.S. during visits, and the social worker's impressions regarding the quality of their relationship based on those interactions. In other words, unlike the reports in J.D., the Department's reports "provided objective, disinterested information about the quality of [Z.S.'s] attachment to . . . [mother.]" (J.D., supra, 70 Cal.App.5th at p. 861.)
Mother's second argument is without merit because, in contrast with J.D., the record here does not indicate the juvenile court considered any improper factors in finding the beneficial parent-child relationship exception did not apply. At the section 366.26 hearing, the court correctly noted that in determining whether the beneficial parent-child relationship exception applies under Caden C., "the focus [is] principally on the nature and quality of the bond [between the parent and the child] often established through visitation." In addition, the court aptly noted mother's failure to complete her case plan is "not really the issue[, ]" and that "the proper analysis" under Caden C. is "more focus[ ]ed" on "the bond that [the parent and child] have formed[, ]" and "whether the severance of [their] relationship would be detrimental to the child."
After hearing argument, the juvenile court reiterated that mother's non-compliance with her case plan "is not a relevant issue here under" Caden C., and that the focus is on "whether there is a sufficient bond with the minor" such that the "benefits of . . . preserving th[e] [parent-child] relationship . . . would outweigh the benefits of permanence." Immediately thereafter, the court found: (1) "visitation has not been consistent"; (2) based on the evidence regarding their visits, the bond between Z.S. and mother was not "close enough" for purposes of the beneficial parent-child relationship exception; and (3) severance of the parent-child relationship would not "cause harm to the child that . . . would outweigh the benefits of permanence and stability." The juvenile court then noted "the evidence shows that the caregiver[s] ha[ve] established a bond with [Z.S.] and [are] prepared to adopt."
Contrary to mother's argument, the juvenile court's consideration of Z.S.'s relationship with her caregivers was not improper. We acknowledge that a child's relationship to his or her caregiver should not be considered in evaluating the second element of the Caden C. test. (See J.D., supra, 70 Cal.App.5th at p. 864 [noting the minor's attachment to his caregiver was irrelevant to evaluating the nature of his relationship with his mother].) Viewed in context, however, it appears that the juvenile court considered this factor in ascertaining the third element of the Caden C. test, which requires the court to "decide[ ] whether the harm of severing the [parent-child] relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 633.) Z.S.'s relationship with her foster parents and their willingness to provide her permanency were certainly relevant to that inquiry.
Likewise, the record does not-as mother contends- demonstrate the juvenile court "improperly . . . relied on whether it would be detrimental to return [Z.S.] to [m]other" in finding the beneficial parent-child relationship exception does not apply. (Italics omitted.) Mother correctly observes that, at the conclusion of the section 366.26 hearing, the juvenile court found "it would be detrimental to [Z.S.] to be returned to [her] parents." Examined in context, however, it appears the court made this finding after explicitly rendering its findings under the Caden C. test, and that this finding was unrelated to its finding that "no exception to adoption applies in this case." Based on this context, and the court's prior comments concerning the issues at the heart of the Caden C. test discussed above, we conclude that the record does not indicate the juvenile court considered any improper factors in declining to apply the beneficial parent-child exception.
5. Conclusion
The juvenile court did not err by declining to apply the beneficial parent-child relationship exception in this case.
DISPOSITION
The orders denying mother's section 388 petition and terminating mother's parental rights are affirmed.
We concur: MANELLA, P.J., WILLHITE, J.