Opinion
B323626
08-22-2023
In re ISABELLA G. et al., Persons Coming Under the Juvenile Court Law. v. MONICA R. et al., Defendants and Appellants LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Monica R. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant Antonio G. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 18CCJP05813A-C Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Monica R.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant Antonio G.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Monica R. (mother) and Antonio G. (father) (collectively parents) separately appeal from the juvenile court's termination of their parental rights to Isabella G. (Isabella, born Feb. 2015), Jacob G. (Jacob, born Oct. 2016), and Jayden G. (Jayden, born July 2018) (collectively the children). Both parents contend that the court incorrectly applied the parental-benefit exception to adoption (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i)).Finding no error, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Referral, Removal, and Jurisdiction
In September 2018, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that Jayden had been taken to the emergency room with a fractured femur. His physicians concluded that the fracture "appear[ed] to be a non-accidental trauma," and parents offered multiple contradictory explanations as to how the injury could have occurred accidentally. Subsequent exams found that Jayden also had an unexplained rib fracture.
On September 10, 2018, DCFS obtained an emergency removal order and placed Jacob and Isabella with a foster caregiver, Sylvia O.; Jayden joined them two days later, upon his release from the hospital. Parents received monitored visitation and began visiting the children for two hours each week.
That same week, DCFS filed a petition seeking jurisdiction over all three children under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (j) (abuse of sibling). Each of the petition's three counts alleged that Jayden's injuries "would not ordinarily occur except as the result of deliberate, unreasonable, and neglectful acts by" parents, and that such acts placed all three children "at risk of serious physical harm, damage and danger."
In April 2019, the juvenile court sustained the section 300 petition and provided parents with family reunification services, including monitored weekly visitation. The children remained placed with Sylvia O.
II. Review Hearings
A. Six-Month Review Hearing
Parents regularly visited the children at the offices of DCFS and affiliate organizations with DCFS supplied monitors. Each parent visited separately with the children once per week for three hours. DCFS reported that mother behaved appropriately with the children, bringing them food, working with them on craft projects, reading them books, and redirecting them when they fought with each other.
DCFS did not report separate details about father's visits.
In October 2019, the juvenile court found that parents had substantially progressed in their case plans and extended family reunification services for one year.
B. 12-Month Review Hearing
Parents continued to attend weekly monitored visits until December 2019, when DCFS authorized joint, unmonitored visitation in public places.
In February 2020, Sylvia O. saw three red marks on the left side of Jayden's ribcage when he returned from a parental visit. When questioned, parents denied knowledge of the marks. After a child abuse/neglect referral was generated regarding the incident, father said that they were probably caused by swings at the park while mother insisted that the marks had come from her lipstick. A medical examination confirmed that the marks were abrasions.
In March 2020, DCFS reported that mother had been seen hitting Jayden and Isabella in the back with her phone during an unmonitored visit. Subsequently, DCFS reinstated monitored visitation. Parents were frustrated with this setback, and monitors had to repeatedly ask mother not to make negative comments or talk about the case in front of the children.
Throughout this time, social workers noted that parents' attitudes towards Jayden varied between indifferent and antagonistic. Upon hearing remarks that Jayden had marks on his ribcage, parents said that this was why they didn't like to have Jayden come to visits. Parents told a social worker that they were not feeling connected to Jayden and that they blamed him for causing his siblings' removal from their home. After one visit in February 2020, while telling the children goodbye, mother said "'I love you, but not you Jayden. I don't care for you. This is your fault. It's your fault I lost my kids.'"
After DCFS's initial report, the 12-month review hearing was continued several times due to the COVID-19 pandemic. In additional reports, DCFS reported that parents continued to visit weekly, barring some interruptions caused by COVID restrictions, and that they usually interacted appropriately with the children. However, parents refused additional opportunities to visit the children. DCFS ultimately recommended terminating family reunification services.
At the 12-month review hearing, the juvenile court found that while mother had substantially complied with parts of her case plan, father's compliance was "minimal." Over DCFS's objection, the court extended reunification services for another six months.
C. 18-Month Review Hearing and Termination of Family Reunification Services
DCFS reported that parents continued to participate in monitored visitation. But, citing concerns about parents' continuing failure to complete their case plans, including participating in therapeutic services with the children, DCFS recommended terminating family reunification services.
On March 17, 2021, the juvenile court terminated the parents' reunification services and set a permanency planning hearing under section 366.26.
Neither parent appealed the termination of reunification services. Mother filed a Notice of Intent to File a Writ Petition, but we dismissed that filing as a nonoperative writ. (Monica R. v. Superior Court (July 8, 2021, B311224 [nonpub. order].) Mother subsequently filed a section 388 motion with the juvenile court attempting to reinstate reunification services; mother did not appeal from the denial of that motion.
III. Parental Visits Prior to the Section 366.26 Hearing
Parents retained their right to weekly monitored visitation after reunification services were terminated. DCFS informed parents that they would need to provide their own monitor going forward.
Since parents could not secure a monitor, Sylvia O. agreed to act as an interim monitor twice a month. Sylvia O. reported that the visits were largely appropriate, but she was concerned that parents did not pay much attention to Jayden during meetings. Sylvia O. asked to stop monitoring visits on June 28, 2021, citing friction between her and mother, and DCFS continued providing monitors.
Despite these difficulties, visits continued to go well. DCFS monitors reported that parents played with the children and engaged them in educational activities. Mother comforted and cared for the children when they were frustrated or hurt, redirected them when they behaved inappropriately, created games to help the children practice interpersonal skills, and taught them coping skills. Visits briefly stopped for two weeks when Isabella got sick; afterwards, she told the DCFS monitor that she was "upset" to have not seen parents, that she "miss[ed]" them, and that she "fe[lt] good to see them today." Jacob repeated her, saying that he "fe[lt] good to see" parents.
The children did not always respond positively to parental visits. Sylvia O. reported that Isabella told her multiple times that she did not want to visit mother. In May 2021, Isabella did not want to attend a parental visit. In September 2021, a DCFS monitor reported that during a visit, Isabella had started crying and telling her mother that she "like[d] [Sylvia O.] . . . [and] like[d] to stay with her." In March and April 2022, Isabella and Jayden both cried before visits and said that they didn't want to visit parents.
Regardless, a DCFS report summarizing 44 parental visits between August 2021 and June 2022 noted that the "[c]hildren are very bonded with their parents." The report commended parents for "creat[ing] a structure within the visits that fosters connection, is developmentally and age appropriate and provides the children with comfort, security, and affection." Despite the restrictions of monitored visitation, parents nevertheless "use[d] the visits to create family moments and build family traditions," "assert[ed] themselves as 'authoritative figures'" to correct the children when they behaved inappropriately, and "implement[ed] appropriate boundaries." The children considered parents "as the parents and not playmates or friends." Overall, the report concluded that "the parents have been able to develop and maintain a substantial and positive relationship with the children."
IV. Bonding Study and Interviews with the Children
At parents' request, the juvenile court ordered a bonding study between mother and the children. The court also ordered DCFS to "re-interview the children [to] find out what is their relationship with the parents, their visits, their desire for placement . . ."
A. Bonding Study
Dr. Alfredo Crespo performed the requested bonding study in August 2022. The bonding study included interviews with the children and observations of their interactions with parents during a visit.
During her clinical interview, Isabella said that she did not like visiting with parents because "I don't want to . . . I am scared . . . [mother] is always mad if I don't want to do my homework." She said that she did not ever want to live with her parents again "because they are always talking about scary stuff[,]" and said that she always told mother that she "want[s] to stay with [Sylvia O.]." Isabella said that mother "says to that, uhm, 'I am going to kill [Sylvia O.]'-that makes me sad because that makes me feel scared." Throughout, she referred to mother by name, not as her mother.
The younger children were less communicative during their interviews, but Jacob said that "he has no visits with" parents and reported that he "did not want to 'see' . . . parents [on] their expected arrival." Jayden expressed confusion about whether mother and father were his parents.
When parents arrived, the children were playful and affectionate towards them. As the visit continued, the children alternatively sought parents' attention and withdrew from them, hiding under desks and becoming restless. When the visit ended, Jayden immediately embraced parents but Isabella and Jacob initially resisted before hugging them.
In summarizing his findings, Dr. Crespo noted that "Jayden and Jacob are too young to understand a choice between their parents and their caregiver," but that "Isabella clearly expressed a desire to remain as placed." He found that "Isabella's expressed position against . . . return [to parents], suggests, as . . . father expressed it, that she and her younger brothers . . . have 'fallen in love' with" Sylvia O., and opined that the children's "best interests are likely . . . best served by an adoption by" Sylvia O. He concluded that "[w]hereas the parents may have maintained a visitation relationship with their children, the [children] are likely, based sheerly on their long placement with their caregiver, more attached to their caregiver than to their birth parents."
B. Interviews with the Children
DCFS interviewed the children multiple times before the section 366.26 hearing. In May 2022, the children told a social worker that they wanted to be adopted by Sylvia O.
The following July, Isabella told social workers that she didn't like visiting her parents because mother "ma[de] [her] do homework." She said that if she no longer had to go to visits she "would be happy" and "wouldn't miss" parents. Jacob said that he "d[id]n't like the visits," that he "would like" if visits stopped, and that he "wouldn't miss my mom or dad." Jayden could not provide a meaningful statement.
In September 2022, the children again told social workers that "they want to remain in the home of [Sylvia O.] and that they wish to be adopted by her." When asked if they missed or worried about mother, they "responded 'no.'" The social worker noted that the children "identify [Sylvia O.] as their mother."
V. Section 366.26 Hearing and Termination of Parental Rights
The matter proceeded to a contested hearing in September 2022. After hearing arguments from parents, DCFS, and the children's counsel, the juvenile court found that the parental-benefit exception to adoption did not apply. The juvenile court determined that, although parents consistently visited the children and "clear[ly] . . . love their children and . . . have a good relationship with their children," the parental relationship was "not so significant that it[s] [termination] would be detrimental . . . compared to the benefit of adoption."
In assessing the strength of parents' bond with the children, the juvenile court relied on the children's statements, both to social workers and during the bonding study, that they wanted to be adopted. The court held that parents "ha[ve] not established a bond with the child[ren]."
The juvenile court also noted that the children had lived with Sylvia O. for most of their lives (in Jayden's case, for his whole life), and that the bonding study showed that the children would suffer a "long term negative impact" if they were removed from her care. The court concluded that "any benefit to the children [from] their relationship with the parents is outweighed by the physical and emotional benefit the children will receive through the permanency of and stability of adoption."
Accordingly, the juvenile court terminated parents' parental rights to the children and designated Sylvia O. as their prospective adoptive parent.
Parents timely appealed.
DISCUSSION
Parents argue that the juvenile court failed to properly apply the parental-benefit exception to adoption, warranting reversal and remand. For the reasons below, we disagree and affirm.
Parents joined in each other's arguments on appeal.
I. Applicable Law
If the juvenile court finds by clear and convincing evidence at the section 366.26 hearing that a child is likely to be adopted, "the court shall terminate parental rights and order the child placed for adoption" unless, as relevant here, it "finds a compelling reason for determining that termination would be detrimental to the child due to one or more" enumerated exceptions. (§ 366.26, subds. (c)(1) &(c)(1)(B); see also In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).) "The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.)
The exception at issue here-the parental-benefit exception-applies if "termination would be detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A parent asserting the parental-benefit exception must show, by a preponderance of the evidence, each of the following three elements. First, the parent must show that he or she had "regular visitation and contact with the child, taking into account the extent of visitation permitted." (Caden C., supra, 11 Cal.5th at p. 636.)
Second, 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." (Caden C., supra, 11 Cal.5th at p. 636.) This element is affected by "'[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.'" (Id. at p. 632.) In conducting this assessment, "courts often consider how children feel about, interact with, look to, or talk about their parents." (Ibid.) Third party witnesses, including psychologists, can provide relevant evidence about the parent/child bond. (Id. at pp. 632-633.)
Lastly, the parent must show that "terminating that [parental] attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
II. Standard of Review
The substantial evidence standard of review applies to the first two elements of the parental-benefit exception-namely, whether the parent has maintained regular visitation and contact with the child and whether the relationship is such that the child would benefit from continuing it. (Caden C., supra, 11 Cal.5th at pp. 639-640.) "The substantial evidence standard of review takes on a unique formulation where, as here, 'the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals.' [Citations.] '[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' [Citation.] Specifically, we ask 'whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (In re S.G. (2021) 71 Cal.App.5th 654, 671.)
The third element of the parental-benefit exception- "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.)
III. Analysis
The juvenile court found, and the parties do not dispute, that parents' record of regular visitation satisfied the first element of the parental-benefit exception to adoption. Parents challenge the juvenile court's findings as to the second and third elements.
The juvenile court found that parents failed to carry their burden of showing, by a preponderance of the evidence, that the children were sufficiently bonded to them; in other words, the court concluded that parents failed to show that the children had "a substantial, positive, emotional attachment" to them "implying that [they] would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) Because parents cannot show evidence compelling a contrary finding, we will not disturb the court's conclusion. (See In re S.G., supra, 71 Cal.App.5th at p. 671.)
This conclusion renders it unnecessary to address the third element of the parental-benefit exception. (See In re Jason J. (2009) 175 Cal.App.4th 922, 938.).
Parents emphasize those parts of the record that support their claim of a substantial parent-child bond. They draw our attention to the many DCFS reports describing successful visits, including the report detailing 44 consecutive visits between August 2021 and June 2022 and asserting that the "[c]hildren are very bonded with their parents" and that "the parents have been able to develop and maintain a substantial and positive relationship with the children." Parents point to the children's willing engagement with them during many visits, their affectionate and loving play with the children, and their commitment to providing structured family activities for the children.
The juvenile court, however, was presented with other evidence that conflicted with parents' positive characterization of their relationship with the children. DCFS monitors and Sylvia O. reported that parents had excluded Jayden during some visits, made statements blaming him for parents' separation from the other children, and failed to realize when he became injured during a visit. Mother was seen hitting Jayden and Isabella with her phone during one meeting. During and after visits, Isabella, the most verbally proficient of the three young children, repeatedly said that she wanted to stay with Sylvia O., felt afraid of mother, and didn't want to visit parents. Isabella and Jayden both cried before visits and said that they didn't want to go to parental visits. And, in the months immediately preceding the section 366.26 hearing, the children told social workers that they wanted to be adopted, that they wanted to stop parental visits and wouldn't miss parents, and identified Sylvia O. as their mother.
This body of conflicting evidence distinguishes parents' case from those in which "[t]here is no question that the [children] have a substantial and positive attachment" to their parents. (In re E.T. (2018) 31 Cal.App.5th 68, 77; see also In re D.P. (2022) 76 Cal.App.5th 153, 157 [evidence of a substantial bond when the children lived with parents for most of their lives, mother's uncontested testimony indicated that "the young minors cared about the parents and felt the parent-child relationship was beneficial," and "[a]ll available visitation logs further indicate there were no concerns noted at the visits"]; In re Scott B. (2010) 188 Cal.App.4th 452, 471 [parent "presents a compelling reason" to reverse the juvenile court's conclusion when the child "spent nearly all of his life living with [the parent]," "looked forward to [parental] visits," and "repeated[ly] insiste[d] that his preference would be to live with [parent]"]; In re Amber M. (2002) 103 Cal.App.4th 681, 690 ["There is no challenge to the fact that [the children] love and miss [their] [m]other and have a strong primary bond with her"].)
Parents raise two additional arguments regarding the substantiality of their bond with the children. First, they contend that because some evidence supports their position that the parent-child bond was substantial, reversal is required. This position misunderstands our standard of review, which requires us to affirm the juvenile court's findings unless "'the evidence compels a finding in favor of the appellant as a matter of law.'" (In re S.G., supra, 71 Cal.App.5th at p. 671.)
The contrary cases parents cite are inapposite; in each, the juvenile court made "few explicit factual findings concerning the parental benefit exception" (In re J.D. (2021) 70 Cal.App.5th 833, 851) and the record "gave the court little evidence about the quality of the visits between [the parent] and the children, or how the children felt about [their parent]" (In re D.M. (2021) 71 Cal.App.5th 261, 270). That is not the situation here. The juvenile court expressly assessed the strength of parents' bond with the children, noting that the children had lived with Sylvia O. for most of their young lives and had recently told psychologists and social workers that they wanted to be adopted and wouldn't miss their parents-both relevant considerations under In re Caden C., supra, 11 Cal.5th at page 632. And, as described above, the record is replete with evidence about the quality of the parent-child bond, both favorable and unfavorable to parents, from which the juvenile court could draw its conclusion. Under these circumstances, there is no reason for us to remand for a new section 366.26 hearing.
Second, parents insist that the juvenile court's decision rests solely on Dr. Crespo's bonding study, which they argue is fatally flawed. Parents contend that, by focusing on their fitness as potential custodians and the strength of the children's relationship with Sylvia O., Dr. Crespo prompted the juvenile court to consider impermissible factors. (See In re Caden C., supra, 11 Cal.5th at p. 634 [in analyzing the parental-benefit exception, "the [juvenile] court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)"]; In re J.D., supra, 70 Cal.App.5th at p. 859 [parent need not prove a child's attachment to that parent is their primary bond; the exception can apply when a child has bonded to an alternative caretaker].) Parents argue that this warrants reversal and remand. But the authority they cite for this proposition is unavailing. (In re M.V. (2023) 87 Cal.App.5th 1155, 1180-1182 [juvenile court erred in failing to grant parents' request for a supplemental bonding study to address inadequacies in the initial study, particularly given the dearth of other information about the children's relationship to their parents].)
Moreover, the premise of this argument does not hold water. While the juvenile court referred to the bonding study at the section 366.26 hearing, including Dr. Crespo's opinion that the children would suffer a "long term negative impact" if they were removed from Sylvia O.'s care, the court's decision regarding the substantiality of the parent-child bond appears to have been based on permissible factors such as the amount of time that the children had spent out of parental custody and the children's attitudes towards parents as expressed in their own statements and behavior. The juvenile court concluded that while parents doubtless had a loving relationship with their children, that relationship did not necessarily redound to the children's benefit.
Parents repeatedly urge that the children are too young to understand the consequences of adoption and of severing their relationship with their parents, and argue that the juvenile court should have disregarded the children's statements expressing a preference for adoption. This ignores that courts routinely refer to children's statements about placement preference to make inferences about the children's attitudes toward their parents. (See, e.g., In re Scott B., supra, 188 Cal.App.4th at p. 471 [considering a child's "repeated insistence that his preference would be to live with [his parent]" in evaluating the strength of the parent-child bond].).
Despite parents' arguments to the contrary, this simply is not "the rare case where the juvenile court erred in failing to recognize that [parents'] relationship with [the] children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption." (In re E.T., supra, 31 Cal.App.5th at p. 70; see also In re S.B. (2008) 164 Cal.App.4th 289, 301 [juvenile court erred in finding that the parental-benefit exception did not apply because, based on the record in that case, "the only reasonable inference [wa]s that [the dependent children] would be greatly harmed by the loss of their significant, positive relationship with" their parent].)
Rather, this case presents the common, difficult situation in which the parents' relationship with their children is neither wholly negative nor wholly positive. In such cases, the juvenile court must take on the delicate task of determining whether the parental relationship is so substantial and beneficial to the children that the ordinarily preferred plan of adoption would be detrimental to their well-being.
Here, after considering all the evidence before it, the juvenile court found that the parental relationship did not rise to this extraordinary level. And the record does not reflect that parents' evidence of a beneficial relationship with the children was uncontradicted or unimpeached or of such character and weight that it required a finding in parents' favor. We therefore find no error in the juvenile court's refusal to apply the parental-benefit exception.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: LUI, P. J., CHAVEZ, J.