Opinion
B314997
06-27-2022
In re M.W., a Person Coming Under the Juvenile Court Law. v. M.Q., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 18CCJP08248B Debra R. Archuleta, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J. [*]
M.Q. (mother) appeals from the juvenile court's order terminating her parental rights to her daughter, M.W., who was removed from mother's custody several months after she was born. Mother argues that the court erred when it found the beneficial parent-child relationship exception did not apply, and the court weighed legally improper factors in concluding otherwise. Mother further suggests that the court abused its discretion by terminating parental rights without first reviewing the Welfare and Institutions Code section 366.26 report, and reading the report later in the hearing did not cure the error because the report inadequately described the parent-child relationship. We disagree and affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
M.W. was born in November 2006. Both before and after M.W.'s birth, however, mother's mental and emotional problems led to significant contact with the Department of Children and Family Services (DCFS), including a March 2007 section 300 petition that resulted in M.W.'s placement in father's custody.
Over the next decade, father and his companion, J.S., raised M.W., without reunifying her with mother. Although the record is unclear, father also apparently had custody of M.W.'s older siblings, consisting of a brother and adult sister. Father died in 2015, prompting the probate court to appoint J.S. as legal guardian of M.W. and brother that same year. In January 2018, the juvenile court reported that J.S. had allowed M.W. to spend time with mother despite knowing mother's mental instability. Mother was being treated for bipolar disorder and auditory hallucinations. She attended a probate meeting in a bathrobe and a tiara. J.S. had informed a probate investigator that she no longer wished to care for M.W. and that M.W. was safe with mother.
According to M.W., mother angered easily and talked to herself to calm down. Brother, then almost 18 years old, reported mother's bad mood swings and doubted her stability, and doubted that living with mother was a good idea for M.W. or himself.
In January 2019, DCFS filed a second section 300 petition, as later amended and sustained, alleging that J.S. had failed to provide for M.W., made an inappropriate plan for M.W.'s ongoing supervision because she left M.W. with mother despite mother's instability, and that mother's conduct placed M.W. at serious risk of physical and emotional harm. At the detention hearing, the juvenile court found that the petition alleged a prima facie case under section 300, subdivision (b)(1), and ordered M.W. detained from J.S.'s custody, while granting mother monitored visitation.
In February, J.S. stated that M.W. was happiest around mother and that while mother had prior caretaking issues, M.W. was an exception. M.W.'s sister concurred that M.W. was not at risk with mother, mother's mental health had improved, and M.W. wanted to be with mother. When DCFS interviewed mother, she was distracted and often had to be redirected to the allegations in the petition. According to mother, she could not care for or afford to care for M.W.
Mother lived in Los Angeles, and M.W. was placed in a foster home located in San Bernardino County. Because mother was unable to travel there without financial support, she lacked consistent visitation but maintained phone contact. M.W. wished to stay in her foster home, but ultimately wanted to return to mother. During the time that M.W. spent with mother, she felt safe and that her needs were met.
However, M.W. had quickly become attached to her foster family. DCFS agreed that the foster mother provided M.W. with needed support.
The foster mother supported efforts to reunify M.W. with mother, but expressed concern about mother's ability to fully care for M.W.'s emotional needs. Mother's mental health symptoms limited her relationship with M.W, as M.W. appeared put off by her mother and disengaged during monitored visits. At one visit to a restaurant, mother found the venue too loud and overstimulating, and became angry and stormed out, irritating M.W. Mother later told DCFS that any visit exceeding two hours was too overwhelming. While mother had requested that M.W. be moved closer to her, DCFS could not ignore M.W.'s request to continue residing with her foster parent, where she was stimulated and supported.
When mother arrived to a February 2019 monitored visit at a restaurant, M.W. demonstrated no enthusiasm to see her, immediately putting her hoodie over her head. They minimally interacted. Mother intermittently spoke to M.W. in Spanish, and M.W. responded in English only. At one point, mother spent 15 minutes grooming herself with lipstick and a hairbrush, and then she left to go to the restroom for another 15 minutes. The rest of the visit was spent in silence, except for a request from M.W. that her mother buy her a smart phone. At the end of the visit, M.W. was eager to leave, saying "bye" and walking away without a hug. On the car ride home, M.W. said that she did not want to move and did not mind if the distance interrupted visits with mother. Mother later told DCFS that her mental health issues, which were attributable to her traumatic childhood and which she was treating, did not inhibit her abilities to provide for M.W. and that she could not visit because of M.W.'s distanced placement.
At the February 2019 jurisdiction hearing, the juvenile court sustained the petition's allegations and declared M.W. a dependent. The court ordered DCFS to provide mother with referrals. In March, mother enrolled and positively engaged in parenting and psychiatric services. Mother's psychiatrist reported progress, opining that mother could live and care for M.W. independently, though he had not met M.W. or observed mother's interactions with her.
That month, a social worker met with mother, opining that while mother did go off topic, she could usually follow along and organize her thoughts. Despite agreeing to a plan where she would visit M.W. in Hesperia twice per month and DCFS would bring M.W. to her twice per month, mother later told the social worker she did not travel well by train and became too emotional after visits.
The foster mother also reported that, on several phone calls, mother insisted that M.W. tell her attorney and the social worker that she wanted to be with mother rather than in the foster home, which upset M.W. Mother once told M.W. to "shut up" and to "listen," and instructed M.W. to go into the bathroom to talk. M.W. said she could not do so and had to stay by her foster mother on speakerphone. M.W. often rushed mother off the phone and became sad after their calls. Mother and M.W. had difficulty communicating with each other because mother was more comfortable speaking in Spanish, which M.W. did not understand well.
M.W. later told DCFS that mother and sister were upset with her, but for the first time in a while she felt cared for. Though willing to live with mother, she doubted that mother could meet her needs. M.W. was encouraged to be more open and communicative with mother.
In April 2019, mother declined to visit M.W. even if DCFS paid for a train ticket, as visits made her emotionally sick and sad. Though mother's engagement had improved, most visits involved them on their phones in silence, occasionally taking pictures of each other to post on social media. When the social worker tried to discuss M.W.'s requests or needs, mother redirected the conversation. Per the social worker, mother was unable to consider M.W.'s feelings and often disregarded M.W.'s expression of her needs or opinion. Despite the social worker's suggestions for topics of conversation, mother did not always follow up.
That summer, scheduling issues prevented visits for two months. DCFS assessed mother's mental health had not improved sufficiently to care for M.W., and mother's psychiatrist reported mother's mental and physical health impaired her ability to use public transit. Mother did not appear to understand M.W.'s feelings. Mother constantly informed M.W. of her history of sexual exploitation, unaware that doing so was inappropriate and made M.W. uncomfortable. M.W. still expressed her love for mother. Despite mother's excellent attendance and participation in parenting classes, her instructor doubted whether she could mentally grasp new skills, recommending she continue classes and not care for children.
In August 2019, the juvenile court terminated J.S.'s legal guardianship and continued the matter. At the disposition hearing, the court denied mother's custody request but ordered reunification services and monitored visitation three times a week for three hours a visit. M.W.'s attorney said M.W. was bonded with mother and wanted to reunify.
After a January 2020 court-ordered psychological evaluation, the evaluator doubted mother's ability to provide for M.W. emotionally and opined that M.W. should only be returned to mother if M.W. herself was emotionally and mentally stable. M.W. equated feeling comfortable at her foster home with betraying her family. M.W. also displayed behavioral concerns and was referred to services. M.W.'s coach suggested she might be self-sabotaging and testing limits by rule-breaking. Though M.W. was participating in services and making progress, she had increased defiant and disruptive behavior in school and she could not explain her impulsivity. Her foster mother suggested treatment for depression.
In February 2020, M.W.'s therapist wrote that M.W. was actively engaging in therapy to cope with the loss of her father. DCFS observed that, while mother appeared to be able to meet M.W.'s needs during supervised visits, whether mother and M.W. had an emotional bond was unclear. M.W. felt unloved because mother was unable to understand her thoughts and feelings. Still, M.W. appeared at ease around mother during visits, which varied in quality as mother struggled with how to express emotional support.
At the six-month review hearing held in February 2020, the juvenile court found that mother had not made substantial progress with her case plan and continued her reunification services. M.W. was observed to be comfortable at her weekly visits with mother, but had informed a social worker that she knew mother was permissive because mother wanted to make her happy, which she exploited by repeatedly asking mother to buy her things. Mother was inattentive to M.W.'s emotions, prompting M.W. to wonder if mother loved her. At a meeting including sister, mother questioned why sister was emotional, refusing to acknowledge her feelings. Mother appeared unfocused and distant, searching her purse for makeup and brushing her hair. DCFS questioned whether mother had the ability to provide structure and emotional support for M.W.
At a March 2020 meeting, M.W.'s foster mother stated that M.W.'s behavior frustrated her, demanding more attention than she could afford her own children. In June, a social worker, mother, brother, and sister took a train to visit M.W., and the family greeted M.W. with cheers and hugs. The family reported the visit went well, and the social worker observed M.W. hugging them and shaking hands as they departed.
In July 2020, M.W. was diagnosed with behavior disorders and prescribed medication. DCFS questioned mother's ability to manage M.W.'s challenging behaviors. M.W.'s foster mother was willing to adopt her and keep her connected with her family. M.W. agreed with this plan, if she could not reunify.
At a September 2020 review hearing, the juvenile court set the matter for a contested review hearing. Mother had completed a parenting program and continued to have individual counseling. M.W. appeared to enjoy her visits with mother and sister. During the pandemic, DCFS provided mother a cell phone to allow for video visits and provided roundtrip train fare for mother and sister to visit M.W. twice monthly after mother agreed to train travel. Visits varied in quality, as mother had difficulty redirecting M.W. or setting boundaries.
M.W. was approved to stay overnight with brother and sister. Brother and sister facilitated mother's visits with M.W. during the day, and M.W. reported having a good time. However, if sister was not with brother and M.W. when they visited mother, mother would refuse the visits because mother leaned on sister for assistance, thereby creating stress in organizing visits.
At the contested review hearing in December 2020, the juvenile court found that mother lacked substantial progress with her case plan, terminated reunification services, and scheduled a section 366.26 hearing.
In its April 2021 section 366.26 report, DCFS reported M.W. was thriving with the foster mother and her two children, who M.W. referred to as her "little sisters." M.W. reported feeling comfortable and supported and was looking forward to adoption. The report recited various contacts or attempted contacts between M.W., mother, and her siblings since placement, noting that, though DCFS secured payment for mother and sister's train travel to visit M.W. twice per month, the family had a difficult time navigating the train without assistance.
The report indicated there were three overnight visits to brother's home that occurred between September 2020 and February 2021, but DCFS "was not able to assure more time" due to conflicting schedules, last minute cancelations, or unsafe weather conditions. In DCFS's view, the foster mother and M.W.'s two adult siblings were a strong team, ensuring M.W. a visitation plan that included mother. The siblings supported adoption, reporting they had become close with the foster mother and mutually assisted each other. Mother struggled to understand the plan, but wanted to maintain contact and visits with M.W. DCFS was skeptical that mother could provide the level of parenting and emotional care that M.W. needed.
At the initial April 2021 section 366.26 hearing, the juvenile court found notice to mother proper but continued the hearing to August so DCFS could obtain father's death certificate.
In DCFS's May 2021 report, it was reported that M.W., brother, and sister still supported adoption. M.W. had a strong relationship with brother and sister; she had a great time on their visits, when M.W. could visit with mother in public settings. Mother's reliance on sister to facilitate her relationship with M.W. showed the limits of her self-sufficiency. She did not grasp how the family came to DCFS's attention and the concerns about her mental health.
The juvenile court began the August 2021 366.26 hearing by noting that the section 366.26 report was not digitally uploaded. DCFS asked the court to find M.W. adoptable, that no exceptions to adoption applied, and to terminate parental rights. M.W.'s attorney submitted on DCFS's recommendation. Mother's counsel argued that the parental benefit exception to termination of parental rights applied because mother visited with M.W. monthly.
The juvenile court then indicated that because it could only retrieve six pages of the April section 366.26 report, it would refer to the May report. The court found by clear and convincing evidence that M.W. was adoptable. Because mother and M.W. did not maintain "regular visitation" or a sufficiently established bond, the parental bond exception did not apply. In the court's view, once per month visits were insufficient, and any benefit to M.W. from her relationship with mother was outweighed by the benefits of adoption, which was in M.W.'s best interest. Finding no exception to adoption applied, the court terminated parental rights and designated the foster mother as the prospective adoptive parent.
After the juvenile court sought a hard copy of the section 366.26 report, DCFS's counsel stated that she had emailed the report to the court and counsel. She asked the court to review certain pages and reaffirm its findings.
Upon reviewing the report off the record, the juvenile court stated the first 20 pages were "duplicative." It then augmented the record by noting the foster mother had two younger children, with whom M.W. felt bonded, and that M.W. felt comfortable and supported in the foster home. The court added that DCFS had assisted the family with coordination and transportation of visits, overnight visits had occurred in the home of the adult siblings, and the adult siblings supported M.W.'s adoption. Noting that through adoption, the child would gain a supportive family while maintaining contact with her biological family, the court adhered to its decision to terminate parental rights. The court confirmed that mother's counsel had nothing to add, concluding the proceedings.
Mother timely appealed.
DISCUSSION
I. The beneficial parental relationship exception and standard of review
Section 366.26's express purpose is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the juvenile court has decided to end reunification services, adoption is the legislative preference. (§ 366.26, subd. (b)(1).) When the juvenile court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates terminating parental rights unless the parent can demonstrate an exception applies. (§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).)
The exception at issue is the beneficial parental relationship, which asks whether any harm from severing the parent-child relationship outweighs the benefit of placing the child in an adoptive home. (Caden C., supra, 11 Cal.5th at p. 632.) The parent bears the burden of establishing by a preponderance of the evidence (1) regular visitation and contact with the children, (2) a relationship, the continuance of which would benefit the children, and (3) terminating parental rights would be detrimental to the children. (§ 366.26, subd. (c)(1)(B)(i); Caden C., at p. 631.)
The first element requires consistent visitation. (Caden C., supra, 11 Cal.5th at p. 632.) The second element involves numerous factors, such as the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, the child's specific needs, and how the child feels about and interacts with, looks to, or talks to the parent. (Ibid.; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) The third element considers how losing the parental relationship would affect the child. (Caden C., at p. 633.) Would the benefit of a new adoptive home outweigh the harm to the child from losing a significant, positive relationship with the parent? (Id. at pp. 633-634.) The overall inquiry thus is a "subtle enterprise." (Id. at p. 634.)
In Caden C., supra, 11 Cal.5th at p. 639, the Supreme Court clarified that the first two elements of the exception are reviewed for substantial evidence. The third element involves factual determinations reviewed for substantial evidence, but the ultimate decision, whether terminating parental rights would be detrimental to the child, is reviewed for abuse of discretion. (Id. at p. 640.) A court abuses its discretion when it applies an incorrect legal standard. (In re Shannon M. (2013) 221 Cal.App.4th 282, 289.)
Here, the juvenile court here found that mother did not carry her burden of proving the exception. In such a case, where 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, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Where, as here, the issue turns on a failure of proof, we determine whether the evidence compels a finding in appellant's favor as a matter of law, asking whether that evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a judicial determination it was insufficient to support a finding. (Id. at p. 1528.)
Here, beyond contesting the juvenile court's refusal to apply the exception, mother argues that the court's delayed review of the allegedly incomplete 366.26 report undermined its findings regarding the exception. That ruling is a quintessentially discretionary decision that we review for an abuse of discretion. (See In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
II. Visitation
The first prong of the analysis requires review of whether the parent visits on a consistent basis, as permitted by any court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is on whether the visits foster" 'significant, positive, emotional attachment from child to parent.'" (Ibid.) While daily contact is not required (In re G.B. (2014) 227 Cal.App.4th 1147, 1165), we have previously doubted whether monthly visits satisfy this standard (In re David H. (1995) 33 Cal.App.4th 368, 382, fn. 9).
Mother claims the juvenile court's conclusion that her monthly visits were insufficient and failed to account for the limitations of court orders and of DCFS's abilities to facilitate visits despite the distance between mother and M.W. Mother points to no court order, however, constraining her from visiting more than once per month, and elsewhere acknowledges that she could have visited M.W. more. She, in fact, visited with M.W. weekly for limited periods. Mother attempts to shift blame to DCFS for the infrequent visits by invoking its statement that it "was not able to assure more time" for overnight visits. However, it reasonably appears that the family was equally blameworthy when "conflicting schedules" prompted cancellations. And, the record is replete with examples of mother's refusing opportunities to visit with M.W. (despite DCFS's efforts to facilitate travel), including during overnight visits to Los Angeles when mother turned brother and M.W. away because sister was not present.
Even setting the quantity of visitation aside, we are not convinced the visits were of the quality necessary to satisfy this prong. (Caden C., supra, 11 Cal.5th at p. 632.) In this regard, mother's reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 is illustrative. In Brandon C., several witnesses testified to mother's weekly visits over three years, during which several objective indicia of a "close bond" between mother and children were observed. (Id. at p. 1537.) Here, by contrast, mother presented no evidence at the section 366.26 hearing, relying solely on DCFS's documentation of the visits, which typically occurred monthly, and which contained scant indication of "emotional attachment." (Caden C., supra, 11 Cal.5th at p. 632.)
In short, mother has not shown maintenance of regular visitation with M.W. as a matter of law. For that reason alone, the termination of mother's parental rights was not erroneous.
III. Parent-child relationship
In any case, mother did not establish the other elements of the exception. To prove the second element-that M.W. would benefit from continuing their relationship-mother needed to show that M.W. had a "substantial, positive, [and] emotional attachment" to her. (Caden C., supra, 11 Cal.5th at p. 636.) That means mother needed to demonstrate that M.W.'s attachment was "significant" and conferred more than "some incidental benefit" to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To do so, mother needed to present evidence about how long she cared for M.W., the effects of her interactions with M.W., how M.W. reacted to visits with mother, and M.W.'s particular needs. (See, e.g., Caden C., at p. 632.) Weighing these considerations, mother's showing on these factors was inadequate.
M.W. was less than six months old when she was placed in father's custody, and there is no evidence that mother and M.W. had interacted-much less bonded-while in father and J.S's custody until approximately 10 years later when J.S. permitted M.W. to spend time with mother, leading to these proceedings. By the time of the section 366.26 hearing, M.W. had lived with her foster mother for three and a half years. M.W. thus spent nearly all her life outside mother's custody.
The accounts of M.W.'s phone calls and visits with mother corroborated this lack of bonding, reflecting that both mother and M.W. were either disengaged, unable to effectively communicate, and that M.W. was often eager for the interactions to end. Whether as a product of her mental health issues or otherwise, mother was distant, lacked focus, and unable to meet M.W.'s own emotional and mental health needs. The interactions left M.W. sad or frustrated. The more pleasant visits were largely a product of M.W.'s older siblings' presence and their abilities to act as intermediaries.
Although consideration of a parent's struggles with the issues leading to dependency cannot alone bar application of the exception, they are still relevant because they may be probative of whether interaction between parent and child has a negative effect on the child. (Caden C., supra, 11 Cal.5th at p. 637.)
Thus, any attachment was not "significant" enough to meet this prong of the exception. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother's resort to M.W.'s statements- echoed by siblings-that she felt cared for and safe with mother do not alter our conclusion. At least one evaluator concluded that mother's supervision would not have benefitted M.W. given her mental health diagnoses. Given the evidence that interactions with mother had adverse effects on M.W., we decline to engage in mother's speculation that such evaluations "could have" changed after M.W.'s mental health progress. (See In re J.A. (2020) 47 Cal.App.5th 1036, 1046 [speculation cannot support dependency finding].) And, notwithstanding mother's contrary suggestions, DCFS's mere recommendation of visitation cannot alone establish that M.W. had a "substantial, positive, [and] emotional attachment" to her. (Caden C., supra, 11 Cal.5th at p. 636.)
In sum, mother has failed to demonstrate, as a matter of law, that M.W. would sufficiently benefit from continuing their relationship to meet this prong of the exception.
Mother's further complaints about the juvenile court's alleged use of "boilerplate" language or failure to make specific findings are forfeited and meritless. Mother failed to bring any error to the court's attention when it could have been cured, and the court even afforded mother's counsel an opportunity to do so at the hearing's conclusion. (In re E.A. (2012) 209 Cal.App.4th 787, 790-791.) Moreover, a court is not required to explain its reasons in refusing to apply the exception. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.)
IV. Detriment
Mother's failure to carry her burden as to the prior two factors obviates the need to address whether terminating the parental relationship would outweigh the benefits of adoption. But, in brief, we note that a detriment finding is based on the child's best interest, and the juvenile 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." (Caden C., supra, 11 Cal.5th at p. 632.) We do not consider whether the parent can provide a home for the child or compare the parent's attributes as a custodial caregiver to those of the adoptive parent. (Id. at p. 634.)
The juvenile court did not err in concluding that terminating mother's parental rights would not be detrimental to M.W. This case is unlike Caden C., supra, 11 Cal.5th at page 628, where an expert suggested that severing that child's relationship with his mother would lead to emotional instability, acting out, difficulties in school, insomnia, anxiety, or depression. In addition to that testimony, there was evidence that the child had an "intense bond" with his mother and was distressed at the idea of not living with her, although he also reacted positively to living with his caregiver. (Ibid.)
Here, mother put on no evidence, much less evidence that M.W. would suffer such trauma from severing their relationship. There was no evidence, for example, that M.W. had trouble separating from mother after visits or that she wanted to see her beyond what the visitation schedule allowed. The available evidence, if anything, demonstrated to the contrary.
Further, there was overwhelming evidence that M.W. had bonded with the foster mother and wanted to stay with her and her family, even if she also said in some instances that she loved mother and wanted to be with her. The foster mother provided a stable and loving home, met M.W.'s emotional and mental health needs at a time she desperately needed them, and M.W. had a strong bond with the foster mother's children. Thus, the benefits of M.W.'s placement were self-evident, and the chance-even a slim one-that a permanent plan other than adoption could jeopardize M.W.'s progress was hardly trivial.
We reject mother's contention that the juvenile court's consideration of M.W.'s statements that she felt "comfortable" with her foster mother and her new "sisters" and that all parties, except for mother, favored adoption was improper. A court "must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance [any harm the child might suffer from termination of parental rights]." (Caden C., supra, 11 Cal.5th at p. 640.)
Finally, we find no merit to mother's contention that the court improperly considered the expectation of visitation. As a general matter, considering such evidence is impermissible at a section 366.26 hearing. (In re D.P. (2022) 76 Cal.App.5th 153, 169.) However, mother's potential visitation played no role in the juvenile court's initial legal conclusions, at which point the court indisputably applied the correct detriment standard. The subject only arose when the court reaffirmed its findings after reviewing the section 366.26 report, briefly stating that it expected the adult siblings and mother would have contact with M.W. going forward. Thus, the record does not support the conclusion that the court's stray remark actually tainted the court's detriment finding. (See In re A.L., supra, 73 Cal.App.5th at pp. 1160-1161 [error not presumed from equivocal record].)
Therefore, mother has not demonstrated, as a matter of law, that the harm from severing M.W.'s relationship with her outweighed the benefit to M.W. of placement in a new adoptive home, and we cannot say the court abused its discretion by applying an incorrect legal standard.
V. Section 366.26 report
Under section 366.22, subdivision (c)(1), (1)(B), whenever the juvenile court orders a section 366.26 hearing, the court must "direct the agency supervising the child and the county adoption agency . . . to prepare an assessment that shall include: [¶] . . . [¶] (B) A review of the amount of and nature of any contact between the child and his or her parents . . . since the time of placement." Consistent with this mandate, DCFS filed a court-ordered adoption assessment for the originally scheduled April 2021 hearing and for the continued hearing in August 2021.
Mother contends the juvenile court abused its discretion by proceeding with the section 366.26 hearing without reading the adoption assessment, an error which was not cured by its later reading of the report because the report contained inadequate information regarding her relationship with M.W. DCFS argues, among other things, that the totality of its reporting adequately addressed the parent-child relationship and that mother's failure to raise these objections below forfeited any error. DCFS has the better arguments.
At the outset, we acknowledge the lack of uniformity amongst appellate courts regarding the adequacy of reporting at a section 366.26 hearing. Initially, the Fifth Appellate District held that a social services agency is only required to report parent-child contact, and need not provide additional detail regarding bonding or otherwise opine on the applicability of statutory exceptions. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) Subsequently, the Fourth Appellate District opined, in apparent dictum, that social worker assessments should address the child's attachment to the parents, but did not specify that such material be contained in the section 366.26 report. (In re B.D. (2021) 66 Cal.App.5th 1218, 1230, fn. 5.) Then, Division Eight of this court noted in passing that DCFS's reports lacked information about children's visits with and feelings about parent. (In re D.M. (2021) 71 Cal.App.5th 261, 270-271.) Notably, the courts in In re B.D., at pages 1230 to 1231, and In re D.M., at pages 270 to 271, reversed for improper application of Caden C., not the alleged inadequacy of the section 366.26 reports. Finally, after discussing the "tension" in the above cases, the First Appellate District held that, though it was not DCFS's burden to disprove the beneficial relationship exception, DCFS's prior reports already furnished adequate information regarding the parent-child relationship, even if the section 366.26 report did not. (In re J.D. (2021) 70 Cal.App.5th 833, 861.)
Like in In re J.D., supra, 70 Cal.App.5th at page 861, we decline to define the degree that the section 366.26 report must contain facts supporting or disproving a statutory exception because, under these particular facts, the prior detailed reporting regarding mother and M.W.'s relationship discharged any reporting obligation on DCFS's part. However, a more thorough or updated section 366.26 report would not have compelled a finding that mother met the beneficial parent relationship exception to adoption. Mother made no offer of proof at the hearing suggesting otherwise.
We note that the section 366.26 report did summarize the attempted visits and interactions with mother and siblings to some extent.
In any case, mother's failure to object forfeited any error relating to the adoption assessment's adequacy or its late reading. Here, the section 366.26 report was addressed at several junctures during the hearing. Yet, when the court ultimately read the report and augmented the record, and again when the court specifically inquired with mother's counsel as to whether mother had anything to add, mother stood silent, declining to raise any of the issues with the report or the reading thereof. Mother's claims regarding the adequacy of the report and its delayed reading are, accordingly, forfeited. (In re Urayna L., supra, 75 Cal.App.4th at p. 886.)
Mother invokes In re Hunter S. (2006) 142 Cal.App.4th 1497 and In re Gerardo A. (2004) 119 Cal.App.4th 988 to suggest that forfeiture is not applicable where a parent is denied statutory safeguards implicating due process rights "through no fault of her own." Though we have doubts about whether this alleged error implicates due process (see In re B.D. (2019) 35 Cal.App.5th 803, 824 [only wholesale omissions of statutory categories from 366.26 report implicate due process]), mother's argument neglects that she had ample opportunities to be heard, unlike the parent in In re Gerardo A., at page 993, whose appellate argument was not forfeited because he had no practical ability to raise it before the appeal. And, in contrast to the parent in In re Hunter S., at page 1504, mother was at "fault" for not raising alleged infirmities in the report, which were, in any event, addressed by DCFS's other reporting. (See, e.g., In re S.H. (2011) 197 Cal.App.4th 1542, 1556 [harmless-error analysis applies to deprivation of parent's due process right].)
For these reasons, proceeding with the section 366.26 hearing despite an allegedly incomplete report was not an abuse of discretion.
DISPOSITION
The order is affirmed.
We concur: LAVIN, Acting P. J., EGERTON, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.