In re J.D., a Person Coming
A161973
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 9/29/21
CERTIFIED FOR PUBLICATION; (San Francisco County Super. Court No. JD18-3156)
R.T., the young mother of now six-year-old J.D., appeals an order terminating her parental rights, entered after she was unable to overcome parenting struggles that were the byproduct of a damaged childhood
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 recognize it is in J.D.‘s interest to expeditiously select his permanent plan, the interests at stake when parental rights are terminated
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
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 C.J., a relative of mother‘s who is variously identified in the record as her aunt or cousin.
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
B. Mother‘s Progress During the First Two Review Periods (September 2018 to September 2019)
Mother received close to two years of reunification services, a period marked by periodic conflict with the children‘s caregivers and recurring angry episodes.
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 months). She progressed to unsupervised visitation after about five months (in February 2019), and about a year into the case (in August 2019), the court authorized overnight visits. In its 12-month report (prepared on August 12, 2019), the agency
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
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.
At this juncture, the agency was considering guardianship as one possible permanent plan. At six months, it had reported that if the family failed to reunify, the concurrent plan was adoption or legal guardianship, and it did not revise or revisit that recommendation in its 12-month report.
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
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 indicating mother appeared to be encouraging J.D. to hold a toy gun like he was going to shoot someone.
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 children‘s emotional and mental needs for safety are met.” The agency thus recommended terminating mother‘s reunification services.
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.
On March 24, 2020, mother‘s in-person visits were suspended pursuant to emergency orders issued in response to the global COVID pandemic. The agency arranged for her to have virtual visits and telephone calls with her children instead, supervised by agency staff.
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
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 public health concerns against a child‘s best interest in deciding whether to change the manner of her previously authorized visitation during the pandemic and entitling her to a hearing on any such change (see
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 had become “almost second nature,” and she was using them as needed. She also reported that mother was progressing in dealing with her past trauma; she continued to reflect on incidents from her past, was better able to start “letting
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
In its August 25, 2020 addendum report prepared for the 18-month review hearing, which was the first case status review update in eight months, the agency did not discuss the quality of mother‘s visits with her children during the past eight months other than to note “several concerns” about her virtual visits. It cited four comments during that time from the visitation notes, in which mother alluded to the possibility of the children returning home to her and/or to her financial situation.14 Based upon these comments, the agency concluded the following: “the mother has repeatedly been told not to talk to the children about where they might leave [sic] or [when they might be] coming home. She has also been asked not to make them worry about money or paying bills. It was explained to the mother that this could be confusing to them and could cause them distress yet she continues. Additionally, mother‘s statements call into question, whether she has in fact benefited from her therapy and parenting class as it does not appear she knows what an age
The agency reported that mother‘s case manager from her domestic violence/anger management support group confirmed mother had regularly and consistently been attending the group since September 2019 (and had been having weekly or other ad hoc check-ins with the case manager), had been working hard, and had made great progress, and the case manager reported she had “no concerns” about mother‘s participation in the group. The agency also included in its report the two letters from mother‘s therapist discussed above (from June and August 2020), reporting on her progress toward managing her anger and healing from a lifetime of trauma. In addition,
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 permanent home and her excellent care of him, and the agency continued to recommend terminating mother‘s reunification services.
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 (
The contested section 366.26 hearing took place five months later, on January 15, 2021. In the meantime, mother continued to visit regularly with J.D. for 30 minutes every week (and sometimes more frequently) through video calls.
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 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 section 366.26 hearing was conducted by video conference. Only the social worker, who had been assigned to the case for about the past year and a half, testified. His direct examination was brief and touched only on the subject of J.D.‘s adoptability by C.J. Facts pertaining to the beneficial relationship exception were elicited exclusively during cross-examination.
He was also cross-examined about various references to guardianship in the section 366.26 report (including one stating “guardianship is recommended for this hearing“), which he testified were errors, and testified he had discussed both guardianship and adoption with C.J. but did not consider guardianship as a permanent plan, because C.J. “preferred adoption” for reasons she did not explain.
The social worker confirmed that mother had been having regular visits with J.D. since the termination of her reunification services, supervised by the
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 different ways. The social worker also admitted that J.D. looks forwards to his visits with mother (“I‘m assuming so“). He also testified that C.J. reported that J.D. would sometimes “act[] up” after his visits with mother which was concerning but he admitted he never tried to find out why.
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
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
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 section 366.26 hearing is to select and implement a permanent plan for the child after reunification efforts have
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
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
rights, and the court should select a permanent plan other than adoption.” (Id. at pp. 636-637.) The court discussed each of the elements in some depth, which we will do as necessary below.
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
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 series of factual determinations” that are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 640.) “These may range from the specific features of the child‘s relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be.” (Ibid.) They may also include a determination as to “how a prospective adoptive placement may offset and even counterbalance those harms,” which in turn may rest on “explicit or implicit findings ranging from specific benefits related to the child‘s specific characteristics up to a higher-level conclusion about the benefit of adoption all told.” (Ibid.) The court‘s weighing of the relative harms and benefits of terminating parental rights (and hence, its ultimate decision), which reflects “a delicate balancing of these [factual] determinations,” is reviewed for abuse of discretion. (Ibid.) The Supreme Court explained, however, that there will likely be very little difference between these standards of review in practical application. (Id. at p. 641.) The reason is because “the hybrid” standard of review it announced, “[a]t its core[,] . . . simply embodies the principle that ‘[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child‘s best interests for the trial court‘s determination in that regard, reached pursuant to the statutory scheme‘s comprehensive and controlling provisions.’ ”
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 prove the existence of a beneficial relationship (the second element) infects with error its weighing of relative harms and benefits (the third element). “Having erroneously concluded that no parental bond existed at all in this case,” she
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
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 over half of his life, until nearly age three. Although the status reports prepared in this case are sparse in information about the quality and strength of J.D.‘s attachment to his mother, there are indications he was clearly bonded to her when removed from her custody. According to the detention report (prepared about one month into the case), mother reported the children had begun to act differently toward her, and that J.D. appeared angry at her, kept crying and blamed her for his not being able to return home. J.D.‘s first foster parent also reported that J.D. would become “a little dysregulated” after his visits but would “calm[] down” after his bath.
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
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
lead a better life than she did and to have hope for the future.19 She taught him how to spell his name over the course of many visits. When he became impatient or distracted, she deferred to his five-year-old attention span and ended calls to enable him to play or eat dinner. And within the constraints of their video interactions, she also set limits for him.20
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 asked mother details about her home, including about “his” room there. And he told her during one visit, “you should moved [sic] in our house mommy[].”
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 left out” because he sometimes saw his sister there and also just wanted to play with toys that he saw in mother‘s home. But that inference cannot be reconciled with J.D.‘s many expressions of affection toward mother during their visits (including telling her to move in with him), as well as the rest of what those visits portray.
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
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 interview with his attorney prior to the 18-month review hearing (which took place in August 2020, about five months before the
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
Were it not for evidence that mother was sometimes prone to bad-mouthing C.J. and, particularly early on, threatening her and undermining
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
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
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
of a parent‘s relationship must be “parental,” a descriptor the Supreme Court did not use and that, standing alone, is vague and unhelpful in this context. Caden C. said only that the child must have 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; see also id. at p. 640 [“whether the relationship is such that the child would benefit from continuing it“]; id. at p. 633 [second element addresses “the psychological importance of the relationship for the child“].) Such a relationship is surely more significant than that of a “mere friend or
B. Balancing the Harm of Severing the Parent/Child Relationship Against the Benefits of Adoption
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.)
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?
“[AGENCY‘S COUNSEL]: You‘re Honor, I‘m going to object as that assumes facts not in evidence. At no point has evidence been given that there will be no contact.
“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.”
“[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.
“Q. So did you explain to her during your monthly meetings that with adoption . . . there would no longer be a relationship for [J.D.] and his mother?
“[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 of adoption. Because the record reflects the court did not put such considerations aside when it ruled on several evidentiary objections, we cannot be certain it properly evaluated the evidence when it came time to render its ultimate decision to terminate mother‘s parental rights.
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
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
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.
In re J.D. (A161973)
Trial Court: San Francisco County Superior Court
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.