In re J.D.
After the appellant‘s opening brief was filed, the California Supreme Court decided In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which clarified how that exception must be applied. As we will explain, we cannot determine on this record that the juvenile court‘s ruling complied with the principles announced in the Supreme Court‘s decision. Although we
BACKGROUND
A. The Initiation of This Case
On July 7, 2018, shortly before turning three years old, J.D. was removed from his mother‘s custody following two violent altercations in his presence, one of which seriously injured his six-month-old half-sister, R.G. The first was an argument between mother and R.G.‘s father that took place when the two encountered each other on a train platform; their argument escalated into a physical struggle while mother was holding her baby girl (each accusing the other of being the aggressor), and it culminated with J.D. either falling or getting pushed to the ground near the edge of the train platform as a train approached. Mother reached down to grab him just as the train whizzed by. The second incident occurred a few days later. That time, after another child hit J.D., mother had a physical fight with the child‘s father (J.D.‘s uncle), again while holding her baby daughter (and again, the two adults accused each other of being the aggressor), and mother accidentally dropped her daughter. The baby was transported to the hospital and later diagnosed with a skull fracture of undetermined cause (according to the attending physician, it was possibly pre-existing). This second fight precipitated a 911 call to police by mother which, in turn, resulted in her own arrest for an injury to the uncle‘s arm, a referral to child welfare authorities,
J.D. and his baby sister were ordered detained and placed in foster care, with mother granted supervised visitation.3 The court also issued a temporary restraining order protecting mother and the two children from J.D.‘s uncle.4 Mother already had secured a restraining order against R.G.‘s father.
Thereafter, the juvenile court sustained amended allegations (in September 2018) that mother failed to protect J.D. based on the two fighting incidents (
Shortly thereafter, about three months into the case, in October 2018, the two children were removed from their initial foster home and placed with
Mother, herself a product of California‘s foster care system, had been cared for by C.J. for part of her childhood. According to agency records, mother had been detained at birth and soon thereafter abandoned by her own mother. Mother did not want to talk about the details but reported she had been in foster care all her life. She lived with C.J. from the time she was one year old until early in her adolescence, when she was sent to live in a series of foster homes and group homes after acting out and displaying sexual behaviors. She first got pregnant at age 15.6 J.D. was born on her 19th birthday. Later, she tried without success to get her foster care extended from age 18 to age 21. By the time this case began, mother was almost 22 years old and homeless, couch surfing among the homes of acquaintances and relatives in San Francisco and Vallejo. Her relationships with the fathers of her two children and some of the fathers’ relatives (with whom she sometimes lived) were turbulent, chaotic and sometimes physically violent.7 She had been arrested for carrying a deadly weapon (brass knuckles, although no charges were pursued), which she said she carried for protection because she felt unsafe in the homes of her former boyfriends’ relatives where she had been living.
Mother received close to two years of reunification services , a period marked by periodic conflict with the children‘s caregivers and recurring angry episodes.
Initially, there was conflict between mother and C.J., culminating with C.J. refusing after several weeks to allow mother to have in-home visits with the children.8 But matters were resolved, and C.J. continued to supervise mother‘s weekly visits in her home.
About eight months later, there were additional problems. On June 6, 2019, mother encountered R.G.‘s father in public after he had picked up R.G. for a visit. An argument ensued and escalated, and he hit mother. Police were called, and a bystander said mother had antagonized R.G.‘s father by trying to block his way and take R.G. from him. Two days later, mother got into an argument with C.J., claiming she‘d been approved for an overnight visit; when C.J. refused to allow her to take the children on the unauthorized visit, mother threatened her in front of the children and became so belligerent that C.J. called police to de-escalate the situation and get mother to leave. The next day, mother posted derogatory and threatening messages about C.J. on social media.
Despite these incidents, mother made significant progress toward reunification during the first two review periods (after 6 months and 12
One weekend in early September 2019, however, about a week before the scheduled 12-month review hearing, mother harassed and threatened R.G.‘s father in a fit of anger, prompting him to get a restraining order. The court continued the 12-month status review hearing by two weeks and suspended her overnight visits in the meantime.
The next day, mother enrolled herself in an anger management support group. At a family team meeting a week later, she acknowledged that she had an anger management problem and that her behavior was wrong, was very apologetic, agreed to participate in additional domestic violence support services as well as the anger management group and expressed remorse for her actions. By this point, mother‘s relationship with C.J. was cordial again.
At the continued 12-month hearing held on September 26, 2019, the court ordered mother to participate in the additional anger management/domestic violence services, gave the agency discretion to resume mother‘s overnight visitation, and ordered additional reunification services.
C. The Final Review Period (October 2019 to August 2020)
After the September 2019 incident that derailed what had appeared to be a slow march toward reunification, mother continued to struggle with erratic and angry behavior for another six months, until around March 2020.
In October 2019, she posted more threatening comments about C.J. on social media and, at some point, threatened to report C.J. to the agency. A couple of weeks after the social media posts, J.D. returned from a visit with mother with an accidental cut on his cheek, and he told C.J. that mother had told him to blame it on mother‘s sister, who helped C.J. care for the children, and to say she had socked him in the face. The sister reported that mother had asked her to transport marijuana to mother in R.G.‘s diaper bag (mother denied this). On November 7, 2019, the agency received a hotline tip that C.J. was neglecting and physically abusing J.D. The agency investigated the report, C.J. told the agency mother had coached J.D. to say he had been hit, and the agency deemed the results of its investigation to be “inconclusive.”
Over a period of several weeks around late November 2019, mother posted videos on social media of herself with the children that caused the agency concern. In one, she made a snide comment to R.G. about R.G.‘s father (telling the child, “I know, baby,” when the child told her the child hadn‘t enjoyed a visit with him). She posted another video of J.D. pretending to shoot a toy water gun, that included text referring to “dropping n. . . s all 2020 and the rest of 2019“; she can be heard in the background laughing, saying something about shooting. The agency later described the video as
In early December 2019, citing these videos and threats made to C.J., the agency asked the juvenile court to require that mother‘s visitation be supervised on an emergency basis, pending a hearing on an as-yet-unfiled JV-180 petition to make the modification permanent. The court (on December 9) denied the agency‘s request, but prohibited any more informal meetings between mother and the “caretakers for mother‘s visitation with the [children],” ordered mother to refrain from posting about the children on social media, and ordered her to refrain from engaging in “any kind” of harassment of C.J.9 The same day, the agency showed mother‘s therapist several of her social media posts and the therapist said they were disturbing, and quite different than what mother had led her to believe. On December 16, C.J. obtained a stay-away order protecting her from mother.
By the time the agency filed its status report for the upcoming 18-month review hearing on December 26, 2019, mother was subject to restraining orders protecting R.G.‘s father and C.J. C.J. felt threatened by mother and expressed worry about her “explosive temper” and its impact on the children. The agency, C.J. and J.D.‘s attorney all were worried mother used very poor judgment and was using the children to get back at people with whom she was angry. And the agency concluded that mother “can parent on occasion but . . . her level of maturity and rage interferes with her being able to put the needs of the children first and to consistently ensure her
Thereafter, the 18-month review hearing, originally scheduled to take place in January 2020, was twice continued (once, due to the appointment of new counsel for mother, and then due to the COVID pandemic) for a total of about seven months, until August 28, 2020. In the meanwhile, mother continued to display erratic and troubling behavior.
In early 2020, a staff member at J.D.‘s daycare overheard J.D. blurt out a derogatory comment about his caregiver (“Mommy said [C.J.] is a fat bitch“). Then on March 3, the agency received a second anonymous hotline tip accusing C.J. of neglect and physical abuse, days after mother had posted threats on social media that C.J. was going to get in trouble and lose custody of “her” children.10 This was the last time the record reflects that mother posted anything objectionable or inappropriate on social media for the duration of the case. An agency staff member met with C.J. to investigate the complaint, and within days (on March 6) the referral was closed as unfounded.
The investigator‘s interview with C.J. in early March 2020 revealed some new information. According to C.J., J.D. had said a few times at school and at home, “[C.J.] is a bitch,” and that “my mommy says that.” C.J. also reported that J.D. was hitting another child in his daycare program but his behavior was improving with support and adult intervention.
On March 24, 2020, mother‘s in-person visits were suspended pursuant to emergency orders issued in response to the global COVID pandemic. The
On June 23, 2020, mother‘s therapist reported to the agency, among other developments, that mother had been diagnosed with Post Traumatic Stress Disorder and had made significant progress on decreasing her anger and controlling her impulses through individual therapy and targeted anger management classes. Her therapist discussed the gravity of mother‘s past trauma and the importance of mother trying to process it and work through her past experiences, in order to become a better parent, decrease her anger and repair family relationships. She reported that mother “continues to grow in her ability to make [sic] her children‘s perspective into account which is an important skill in positive parenting.”
The therapist‘s letter also noted that mother and her children “had a strong affectionate relationship,” and that the lack of in-person visitation had been hard on mother, “and I am sure that it has been [hard] on her children as well.” Her therapist also said that in their sessions they “continue to discuss parenting in the context of child development as [well] as other topics (discipline, etc.) [that] are hard to do when she isn‘t seeing her children. For example, we discuss attention span and interactions that might work well over Zoom.”
In late July 2020, mother filed a JV-180 petition asking that the pandemic-related suspension of her in-person visits be lifted so she could visit her children in person. She alleged the agency had refused to allow her to resume in-person visitation after re-opening operations following shelter-in-place orders, telling her only that in-person visitation would confuse the children. Mother based her request on an emergency rule of court promulgated by the Judicial Council that required the agency to balance
In a subsequent addendum report (filed August 25, 2020), the agency provided additional details about its refusal to allow mother in-person visitation. The agency acknowledged it was allowing in-person visitation in other cases “depending on the level of risk and safety to the parties involved.” But it had met with C.J., to discuss the subject three times in the past three months—in person—and she was adamantly opposed to letting mother have any in-person contact because of potential health risks to her and the members of her household. The social worker also doubted that mother had been sheltering in place since the start of the pandemic, despite mother‘s claim she had been doing so, because mother was not home one day in June when the social worker had tried to schedule a home visit with her.
On August 20, 2020, mother‘s therapist, who had been working with mother for two years, reported that mother was continuing to work with her anger management specialist and that, through therapy and targeted anger classes, she had learned techniques to keep her anger under control which
On August 24, 2020, four days before the continued 18-month review hearing, the social worker and J.D.‘s counsel met with J.D. in C.J.‘s home. C.J. reported that when J.D. gets in trouble, he says “my mommy says I don‘t have to listen.” J.D.‘s attorney asked J.D. where he wanted to live, and he responded, “I want to be [C.J.‘s] son.” J.D.‘s attorney also asked him what type of things mother tells him to say, and he responded, “bad words” and “not to listen to people.”13 He also was asked if he remembered the video mother made in which he held a toy gun and whether he thought it was a good or bad idea, and he responded with “bad idea.”
In its August 25, 2020 addendum report prepared for the 18-month review hearing, which was the first case status review update in eight
The agency concluded that “[a]lthough the mother has completed many of her services over the past almost 2 years, her behaviors above and over the last 18 months suggest that she is not benefiting from them. Of the most concern is that she continues to use [J.D.] as a pawn to get back at her former foster mother/[J.D.]‘s caregiver without regard to how it will impact [J.D.].” The social worker acknowledged “that the mother cares about both her children” but, despite nearly two years of services, had not been able to parent them appropriately on an ongoing and consistent basis, lacked insight, and was unable to prioritize her children‘s needs. The social worker acknowledged that mother‘s therapist had “very good feedback and things to say about [mother‘s] progress and behavior,” but noted that mother‘s behavior “over the last two years has been very concerning.” He wrote that “she has not shown a change in her behavior since the beginning of this dependency.” The report noted C.J.‘s continued interest in providing J.D. a
The juvenile court adopted the agency‘s recommendation at the 18-month review hearing held on August 28, 2020, and set the matter for a permanent planning hearing (
C. The Termination of Mother‘s Parental Rights
The contested
In its report for the hearing (prepared on November 19, 2019) (see
The report also depicted something of a thawing between mother and C.J., although not a total repair. It said their relationship had been very good until the dependency case began, had deteriorated “for several months” during the case, but now was cordial. It also said that C.J. “knows that [mother] is [J.D.‘s] mother and wants him to have a decent relationship with her.” But it reported that C.J. “still” did not want any direct contact between
The agency had far less to say in its report about mother than about C.J. It reported that mother‘s virtual visits had been continuing but said nothing about their content or quality. And on the subject of the relationship between mother and son it said only the following: “[J.D.] has a good relationship with his mother. [J.D.] and [mother] have been having virtual visits since March of 2020. However, because [mother‘s] family reunification services were terminated back in August of 2020, the Agency will be recommending ongoing virtual visits, every other week, for 30 minutes. [C.J.] has agreed to supervise the virtual visits.”
The
The social worker confirmed it was still true, as was reported in the
He was also cross-examined about various references to guardianship in the
The social worker confirmed that mother had been having regular visits with J.D. since the termination of her reunification services, supervised by the agency. He also testified that J.D.‘s half-sister, R.G., who had been living with her father for more than a year, saw her brother during those visits, which were taking place about once or twice a week.
Mother‘s counsel introduced a log of visitation notes from the period beginning in September 2020 after mother‘s reunification services ended. That document, 21 pages in length, contains detailed, single-spaced digests of about 20 visits that took place in the roughly four-month period ending December 29, 2020. The social worker testified he had read “some” but not all of the log and had not reviewed it “extensively.” But he had relied on it and considered what took place during the visits in recommending adoption for J.D. We discuss the visitation log in greater detail, infra.
Mother‘s counsel cross-examined the social worker about mother‘s visitation briefly, over frequent objections. He admitted that during one visit (on September 22, in which J.D. was noted to be crying), J.D. was upset about not being able to come home to see his mother. He admitted that in two other visits (on October 1 and December 15), J.D. was asking to go to mother‘s house, in one of which he asked her about it three times, in three
He testified J.D. refers to C.J. as “grandma,” not “mother” and that J.D. refers to mother as his “mom.”
The social worker‘s testimony revealed he had never asked J.D. how the child felt about being separated from his mother. He admitted that in their last meeting together, he didn‘t ask J.D. how he felt about not living with his mother, nor about why he cried about not being able to go home with his mother during their September 22, 2020 visit. He also admitted he had never asked J.D. if he was unhappy, sad or feeling emotional about not being with his mother.15
On cross-examination by J.D.‘s counsel, the social worker testified that part of the reason for the past “up and down” relationship between mother and C.J. was because of mother‘s past threats and inappropriate behavior toward C.J. He testified that J.D. has expressed that he wants to remain permanently in C.J.‘s home and that C.J. is “the parental figure” in his life. He also testified that the agency had been concerned about mother‘s contact with J.D. throughout the case, and that mother‘s visits had been supervised
Following argument, the juvenile court terminated mother‘s parental rights. The court made few explicit factual findings concerning the parental benefit exception. It acknowledged J.D. has a relationship with mother and that it is a positive one. But it found their relationship did not “amount to [a] parental bond” and that “severing the relationship that does exist would not be so detrimental as to outweigh permanency for [J.D.].” The court designated C.J. the prospective adoptive parent, and this timely appeal followed.
DISCUSSION
I.
General Legal Principles
The sole purpose of the
In Caden C., the Supreme Court for the first time addressed this statutory exception in a wide-ranging opinion that clarified its scope, disapproved a series of decisions that took too restrictive an approach to it (Caden C., supra, 11 Cal.5th at p. 636, fn. 5; id. at p. 637, fn. 6; id. at p. 638, fn. 7), and, among other things, cited favorably an appellate decision applying the exception that had long been relegated to the status of an outlier, confined to its “extraordinary” facts. (See id. at pp. 632, 633, citing In re S.B. (2008) 164 Cal.App.4th 289 (S.B.); see also, e.g., In re Noah G. (2016) 247 Cal.App.4th 1292, 1302-1303 [discussing and distinguishing S.B.], disapproved in Caden C., at pp. 637, fn. 6., 638, fn. 7.)
The Supreme Court clarified, among other points, that the beneficial relationship exception has three elements. (Caden C., supra, 11 Cal.5th at p. 631.) As summarized in Caden C., “the parent asserting the parental benefit 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. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental
Caden C. also held that a parent‘s inability to overcome the issues that led to the dependency is not a categorical bar to applying the exception, because such a principle would be “paradoxical” and “would effectively write the exception out of the statute.” (Caden C., supra, 11 Cal.5th at p. 637.) But neither is it irrelevant. A parent‘s continued struggles with such issues “are relevant only to the extent they inform the specific questions before the court: would the child benefit from continuing the relationship and be harmed, on balance, by losing it?” (Id. at p. 638.) And the court explained that, in any given case, evidence of such matters could cut either way. “A parent‘s struggles may mean that interaction between parent and child at least sometimes has a ’ “negative” effect’ on the child,” while “[c]onversely, a parent who gains greater understanding of herself and her children‘s needs through treatment may be in a better position to ensure that her interactions with the children have a ’ “positive” . . . effect’ on them.” (Id. at pp. 637-638.)
Finally, Caden C. clarified the standard of review we are to apply in reviewing the juvenile court‘s ruling. (Caden C., supra, 11 Cal.5th at pp. 639-641.) The first two elements are reviewed for substantial evidence, because a determination as to whether a parent has consistently visited and maintained contact with the child to the extent permitted by court orders “is essentially a factual determination,” as is the question whether the relationship is such that the child would benefit from continuing it. (Id. at pp. 639-640.)
The question whether termination of parental rights would be detrimental to the child, however, is more nuanced. That issue entails “a
II.
Analysis
Here, the first element, regular visitation and contact, is not in dispute. (See Caden C., supra, 11 Cal.5th at p. 632.) The agency concedes mother satisfied this element. Our focus here is on the second and third elements.
Mother argues that she satisfied both the second and third elements and, at a minimum, that the juvenile court‘s error in finding she did not
The agency asserts that mother proved neither the second or third elements as a matter of law, and therefore that the court‘s decision was well within its discretion.
As we will explain, we do not agree entirely with either party. But we conclude that the juvenile court‘s ruling cannot be affirmed on this record, because we cannot be certain the juvenile court did not consider factors disapproved of in Caden C. Accordingly, a remand is necessary. (See In re B.D. (2021) 66 Cal.App.5th 1218, 1222, 1231 (B.D.) [doing same].)
A. A Beneficial Relationship
The second element of the beneficial relationship exception requires courts to “assess whether ‘the child would benefit from continuing the relationship.’ ” (Caden C., supra, 11 Cal.5th at p. 632, quoting
Given the importance of this second stage of analysis, “social worker assessments and evaluations should address whether or not the children have a substantial, positive, emotional attachment to the parents taking into consideration the child‘s age, the portion of the child‘s life spent in parental custody, the positive or negative impact of interaction with the parent, and the child‘s particular needs as required by Caden C.” (B.D., supra, 66 Cal.App.5th at p. 1230, fn. 5.) Indeed, “[t]he need for objective reporting from the social welfare agency is nowhere more important than at the permanency planning hearing under
Here, mother presented evidence to support a finding that J.D. has a “substantial, positive, emotional attachment” to her sufficient to meet the second element. J.D. was almost five and a half years old when the juvenile court terminated mother‘s parental rights and had lived with mother for just
Further, there is abundant evidence that J.D.‘s attachment to mother continued throughout the case, despite the fact that, due to the pandemic, she had no in-person visitation with him for the last 10 months of the case.
First, the agency‘s written reports consistently describe J.D.‘s attitude toward mother in a positive light, even though the reports noted examples of mother‘s inappropriate behavior. For example, in the 12-month review report, the social worker relayed his personal impression, based on first-hand observations, that mother was “always appropriate and affectionate” with her children and the children “appear very happy and comfortable with [her].” The report also included feedback from the therapist, who had begun family therapy with mother and her two children and reported after eight sessions that “[t]he three of them appear to have a positive and affectionate relationship.” The therapist praised some of mother‘s parenting skills, observing she is “very good at balancing her attention and each of their needs” and “has good and appropriate discipline skills, and . . . is good at intuiting why they may be acting a certain way.” The therapist also noted that the sessions were “starting to address all of their feelings around the separation and will continue to work on this as issues come up and the[]
What is more, even C.J., who lived with J.D. for more than two years and observed much of the visitation, acknowledged the positive bond J.D. had with mother, despite her own fraught relationship with mother. By the time of the
And then there are the virtual visitation logs mother introduced into evidence. Many of the entries are intimate, personal and touching. It is hard to do justice to the picture that emerges from them; neither space nor words suffice, much in the way that even the most thorough exposition of a photograph necessarily would fail to capture its detail, nuance and emotional depth. But the logs, which read almost like a verbatim transcript of what transpired, provide an extremely telling glimpse of how J.D. “feel[s] about, interact[s] with, look[s] to, [and] talk[s] about” his mother. (Caden C., supra, 11 Cal.5th at p. 632.)
The logs show, first, that mother consistently and repeatedly acted in parental role toward J.D. during their visits. Indeed, the agency concedes she “offered support and positive encouragement” during their visits and “acted appropriately” in them. But the logs show much more. Mother‘s love and affection for her son are evident in every visit (frequently telling him she loved him, for example, and sometimes even calling him by a nickname).17 She also comforted him.18 She apologized to him for her mistakes and for those of his father, assured him he was loved by his father, and told him his father also was sorry (for making “bad mistakes.“) She frequently encouraged him—to learn as much as he could in school, to be good, and to
The logs also reflect J.D.‘s attachment to mother. To start, they reveal that J.D. refers to mother as his “mommy“—a word the juvenile court observed was “throughout” the exhibit. In addition, J.D. frequently exhibited affection toward mother during visits. He frequently told her that he loved her. One time, he blew her kisses. He told her she was pretty. And that she was his “favorite.” And in several visits, including his last, he told her he missed her.
J.D. also frequently expressed a desire to go to mother‘s house, right up to his last recorded visit with her—including one time in tears (“I wanna come over? Coronavirus is over, I wanna come over“), another time practically begging (“pretty please?“), and another time saying it was at the top of his Christmas list. In many of these instances, he saw his sister visiting with mother and didn‘t understand why he couldn‘t be there too.
J.D. also frequently sought mother‘s attention during visits. For example, he showed off his toys to her, his Christmas tree and his clothes. He launched into song for her and ended one visit by doing dance moves for her. He frequently initiated conversations with her (“guess what coming up, mommy [?], Halloween“), frequently volunteered information about himself (such as telling her he had a good day at daycare) and also had “a lot to share” with her on the subject of video games. One time, he even “walk[ed] around the house with the tablet showing everyone in the house that he‘s talking to his Mom.”
Their visits also reflected many intimate moments and exchanges. During one visit, she told him she had seen an airplane take off for the first time in her life; they had an exchange about massaging each other‘s feet; and he told her he had been having scary dreams, which she told him are called nightmares. In several visits, he told her about his loose baby teeth. Sometimes he wanted her to feed him, one time asking her to make a peanut butter and jelly sandwich for him and her “magic” juice, and another time, while she was cooking, told her to save some food for him. He volunteered to her that he didn‘t know how to ride a bike. In their visits, they made each other laugh. He was happy. He wanted to spend time with her (telling her one time, for example, he wanted to go “now” to visit the Pumpkin Patch with her). He asked about her life. He told her what was in his prayers. And one time, talking to her while riding home in the car, he told her about the moon.
The agency argues that J.D.‘s references to wanting to go to mother‘s house, read in isolation, are susceptible to the inference that he merely “felt
The agency also argues there was competing evidence in the logs, which the juvenile court was entitled to credit, that J.D. “was not enthusiastic about visits.” We do not agree. It cites two instances in which J.D. became distracted by his video game, one in which he asked for a break, and another that ended early so he could play with his cousin after walking away from the video screen for several minutes. As mother argues, however, these few instances merely reflect the challenges of virtual visitation with a five-year-old child who has a limited attention span and likes to play. On another occasion, C.J. told mother he‘d had a bad day at school and had just turned off his computer and told the teacher he didn‘t want to work that day. Judged in light of the entire record of visits, the few isolated instances in which J.D. became distracted do not detract from the countless moments in which he actively engaged with mother during their virtual visits, on matters both trivial and significant, was happy to see her, shared five-year-old intimacies with her, expressed love and affection toward her and a desire to see more of her, at her own home and in person. Indeed, the social worker acknowledged J.D. looked forward to his visits. And before in-person visitation was suspended, C.J. reported he was always happy when he returned from seeing his mother.
In arguing mother did not prove the second element, the agency stresses evidence that J.D. looked to C.J., not mother, for comfort, support, structure and to meet his needs, and it also notes evidence that in an
Furthermore, J.D.‘s statement to his attorney five months before the
Moreover, in evaluating the record, we cannot overlook the fact the agency provided very little information in its reports, including the pivotal
As Caden C. reflects, the existence of a parental bond is contextual. No two families are alike, and no two dependencies are alike. Here, the juvenile court was faced with a (then) five-and-a-half-year-old child who had spent the last two years of his life living apart from his mother with someone who clearly loves him too; and a young mother, herself a former foster youth, who was parentless all her life and had little, if any, positive parental role modeling. She tried very hard and she responded favorably to family intervention even though she was not able, ultimately, to reunite with her son. And despite the fact that mother and J.D. were separated for two years, and for ten months of that time had no in-person physical contact with each other because of an unprecedented global health crisis (a period that to the child would likely have seemed an eternity), their visits were, on the whole, overwhelmingly positive. “We can all appreciate now, in the midst of the COVID-19 [pandemic], that video meetings are not an adequate substitute for meeting in person, even for adults. That‘s even more true for children . . . .” (In re S.S. (2020) 55 Cal.App.5th 355, 377.) Given these circumstances, it is hard to imagine what a positive, emotional attachment by a child to his non-reunifying parent looks like if not this.
Were it not for evidence that mother was sometimes prone to bad-mouthing C.J. and, particularly early on, threatening her and undermining her caregiving efforts, the evidence we have discussed would compel a determination that mother proved the existence of a beneficial relationship as a matter of law. Indeed, decisions cited with approval in Caden C. have relied on evidence similar to that we have described in holding the beneficial relationship exception satisfied, including as a matter of law. (See, e.g., S.B., supra, 164 Cal.App.4th at pp. 298-299 [finding that father lacked a parental relationship held unsupported by evidence where, inter alia, he was child‘s primary caregiver for three years, child continued to display strong attachment to father as evidenced by conduct such as sitting on his lap during visits and “proudly” displaying shoes he bought her, initiating physical contact, whispering and joking with him, saying “I love you” and making other statements indicating she wanted their relationship to continue], cited in Caden C., supra, 11 Cal.5th at pp. 632, 633; see also Amber M., supra, 103 Cal.App.4th at pp. 689-691 [reversing order terminating parental rights], cited in Caden C., at pp. 632, 633; Brandon C., supra, 71 Cal.App.4th at pp. 1535-1538 [affirming application of the exception and upholding order selecting guardianship rather than adoption as child‘s permanent plan], cited in Caden C., at pp. 632, 634, 639-640.) Although there was also a bonding study or other expert opinion in several of these authorities (see S.B., supra, 164 Cal. App. 4th at pp. 295-296 [bonding study]; Amber M., at pp. 689-691 [opinion of CASA and five-year-old child‘s therapist]), such evidence, while “an important source of information” (Caden C., at pp. 632-633), is not required as a matter of law (and the agency acknowledged this at oral argument). The Supreme Court has instructed trial courts to ”seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony.” (Id. at p. 633, fn. 4, italics added.) Here, no such study was requested. However, in addition to the other evidence we have discussed, the record contains C.J.‘s views about mother‘s relationship with J.D. and about the importance of allowing them to have continued contact. Such views by a child‘s long-term caretaker provide objective, third-party evidence of the parental bond and are sufficient to establish the exception in an appropriate case, even in the absence of
Having said of all of this, the analysis here is complicated by evidence of mother‘s struggles with reactivity and managing her anger. (See Caden C., supra, 11 Cal.5th at pp. 637-638.) Throughout the dependency, mother at times engaged in behavior that was decidedly not appropriate, which the juvenile court could infer had a negative impact on J.D. As the agency notes, she attempted to undermine J.D.‘s placement with C.J. in various ways such as instructing him not to listen to C.J. , teaching him to call her names, telling him to lie about getting hit by C.J.‘s sister, threatening C.J. and her family in person and on social media, and making unsupported claims to the agency about C.J.‘s unfitness as a caregiver. Caden C. explicitly recognized that a parent‘s efforts to undermine a child‘s foster placement “could certainly have had a negative effect on [the child].” (Caden C., at p. 637.)
But we find nothing in the record indicating that mother‘s behavior had a lasting impact on J.D. But for a vague comment by J.D. to his attorney five months before the
The record contains no assessment of the overall impact mother‘s past behavior had on J.D., which appears to be negligible at best. However, because neither the parties nor the court had the benefit of Caden C., we deem it prudent to remand for a new
That result also is appropriate because we cannot be certain the juvenile court did not rely on improper factors in assessing this element. In closing arguments, which were brief, neither the agency‘s counsel nor counsel for J.D. (who concurred in the agency‘s recommendation) addressed whether J.D. had an emotional attachment to mother, and they both alluded to factors deemed irrelevant in Caden C. The agency argued mother‘s visits were still supervised, erroneously implying the court could consider the mere fact she had been unable to succeed in overcoming her parenting struggles as a reason to rule against her, regardless of whether or how her son was affected by those shortcomings. (See Caden C., supra, 11 Cal.5th at pp. 637-638.) J.D.‘s counsel emphasized the fact that J.D. views C.J.‘s home, not mother‘s, as his home, thus erroneously inviting the court to consider the suitability of his current placement in deciding whether to terminate mother‘s parental
Moreover, as mother pointed out at oral argument, the juvenile court‘s finding on the second element was conclusory and thus problematic—that mother‘s relationship with J.D. did not “amount to a parental bond.” Caden C. did not address whether, to satisfy the second element, the nature
Because it is unclear whether and to what extent the juvenile court considered improper factors at the second step of its analysis, it is unnecessary to address whether there also was an abuse of discretion at the third step. That is, in weighing the harm of severing mother‘s parental relationship with J.D. against the benefits of providing him with a permanent adoptive home. (Caden C., supra, 11 Cal.5th at p. 632; see B.D., supra, 66 Cal.App.5th at pp. 1230-1231.) Nevertheless, we also have a concern as to whether the court considered improper factors in assessing this third element. Thus, for guidance on remand, we would be remiss not to explain it.
Under the third step of the analysis, the juvenile court must undertake a “subtle, case-specific inquiry“: namely, “does the benefit of a 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?]’ ” (Caden C., supra, 11 Cal.5th at p. 633.) Caden C. explained in some depth the subtleties often involved in this “crucial” aspect of the analysis, particularly in a case such as this which involves “tangled benefits and burdens“—that is, a relationship with negative aspects as well as positive ones. (See id. at pp. 631, 634-635.) “To gauge and balance these weights can be a daunting prospect for trial courts.” (Id. at p. 635.) “But it‘s what the statute requires . . . .” (Ibid.) It is the final step in a “carefully calibrated process” intended to “protect[] the parent and child from an overhasty termination of their relationship while ensuring that the child is expeditiously placed in a safe and stable home.” (Id. at p. 625.)
Extended discussion of the third element is unnecessary. The Supreme Court made clear, among other things, that the juvenile court engaged in this
Yet here, as reflected by some of its evidentiary rulings, the juvenile court appears to have assumed the opposite. This was illustrated most pointedly in a colloquy during cross-examination of the social worker:
“[MOTHER‘S COUNSEL]: Mr. Reynoso, you‘re trained to speak to a five-year-old in an age-appropriate manner, correct?
“A. Yes.
“Q. And so . . . were you able to ask [J.D.] in an age appropriate manner for his age how he felt if he was not able to see his mother again?
“THE COURT: I‘ll sustain.
“[MOTHER‘S counsel]: Your Honor, we‘re not sure if visits will continue if . . . adoption is . . . the Court‘s order.
“THE COURT: I‘m going to sustain the objection based on how you asked that question. Sustained.”
The juvenile court‘s assumption that termination of parental rights would not necessarily cut off all contact between mother and J.D. also was reflected, more subtly, when the social worker was cross-examined about C.J.‘s preference for adopting J.D. rather than serving as his legal guardian:
“[MOTHER‘S COUNSEL]: Q. Mr. Reynoso, have you ever talked to [C.J.] about guardianship?
“A. I have talked to her about both guardianship and adoption and permanent—I talked to her about a permanent plan in general, yes.
“Q. And so given your assessment, your monthly assessment and [C.J.]‘s expressed intent that [J.D.] remain in . . . his mother‘s life, was guardianship not considered for [C.J.]?
“A. Yes, it was not considered.
“Q. And did she give a reason why it was not considered over adoption?
“A. She preferred adoption.
“Q. Did she state why?
“A. Not specifically. She just stated she was always a hundred percent committed and wanted to move forward, and there was never any hesitation on her part.
“[AGENCY‘S COUNSEL]: Objection.
“THE COURT: That‘s sustained. That‘s not necessarily true, [mother‘s counsel]. So I will sustain that objection.
“[MOTHER‘S COUNSEL]: Q. I‘ll rephrase the question. Did you explain to [C.J.] that it would not be a legal relationship between [J.D.] and his mother after adoption?
“A. Yes.
“Q. And . . . with that explanation, did [C.J.] give you a response?
“A. She—all long she was pretty committed from the very beginning to adopting [J.D.].
“Q. Did you—I mean do you understand the inconsistency with her intention to keep [J.D.] in the life of his mother?
“THE COURT: I‘m sorry. I didn‘t understand one of the words. I couldn‘t hear you, [mother‘s counsel]. Can you rephrase.
“[MOTHER‘S COUNSEL]: Q. Your assessment and [C.J.]‘s expressed intent is inconsistent with that, is it not?
“[MINOR‘S COUNSEL]: I would object to that question.
“THE COURT: I‘m going to sustain. I‘ll sustain that objection.”
The juvenile court‘s assumption, as reflected in these rulings, that post-adoption contact was not necessarily precluded is understandable as a practical matter. But as a legal matter, such considerations must be put aside in assessing whether a child would be harmed by the loss of a significant, positive emotional relationship with a natural parent to such a degree that it is the child‘s best interest to select some permanent plan short
C. Conclusion
For guidance on remand, we offer two additional observations.
First, we are troubled by the agency‘s failure in the later stages of the case to consider guardianship as an alternative to adoption given even C.J.‘s desire that mother remain in J.D.‘s life (an option the agency apparently was open to early on). The social worker simply deferred to C.J.‘s preference for adoption over guardianship, without question. We can infer C.J. harbored some lingering discomfort with mother, but there had been no negative incidents between them for nearly a year (since March 2020) and the
We also note that some of the agency‘s later criticisms of mother stemmed from the fact she sometimes mentioned her financial pressures to J.D. There is no evidence such comments caused J.D. any anxiety or were in any other way detrimental to him, however. And we cannot simply presume that they were. The dependency scheme does not legislate parenting styles, and a parent might well believe that discussing financial hardship openly with children, even from a young age, could be beneficial for any number of reasons (such as minimizing shame, for example, fostering resilience, promoting financial responsibility, or simply exposing a child to the vicissitudes of life). That is true of any parent, whether wealthy, middle-
We thus end where Caden C. began its analysis: with a recognition that consideration of the beneficial relationship exception is a “fraught determination” that requires the juvenile court to “sift through often complicated facts to weigh competing benefits and dangers for the child[,] . . . consider practical realities over which it has limited control and envision a child‘s future under contingent conditions.” (Caden C., supra, 11 Cal.5th at p. 625.) Here, the facts indeed are complicated. This is not an easy case. But lest one former foster youth who grew up to become a troubled (albeit loving) young adult beget another, the juvenile court must carefully examine the relationship between this mother and son consistent with Caden C., to decide whether their relationship is of such a nature that it is in the child‘s best interests for that relationship to endure.
DISPOSITION
The order terminating mother‘s parental rights is reversed and the matter is remanded for the juvenile court to conduct a new
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
Trial Judge: Hon. Susan M. Breall
Counsel:
Rachel Belden and Amy Grigsby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis J. Herrera, City Attorney, Kimiko Burton, Deputy City Attorney; Gordon-Creed, Kelley Holl and Sugerman, Jeremy Sugerman, for Plaintiff and Respondent.
Notes
For example, on one occasion when J.D. told her that “Black Panther” had died (a reference to the recent death of the actor who portrayed the first African-American superhero in a major motion picture), she told him “that Black Panther lives in him and he can be like Black Panther too.” (See Ugwu, “Black Panther” Star Chadwick Boseman Dies of Cancer at 43, N.Y. Times (August 28, 2020), available at <https://www.nytimes.com/2020/08/28/movies/chadwick-boseman-dead.html>.)
Another time, when J.D. was sad about not being able spend time at her house, the log says she “trie[d] to reassure him it will be okay,” and told him “Just remember to be smart and go to school, become a lawyer, so you can help other families.”