In re Katherine J.
Katherine was in dependency court for five years—more than half of her young life—while her parents struggled with significant ongoing issues of domestic violence and substance abuse. Following multiple failed efforts at reunification, the juvenile court eventually terminated services and, thereafter, terminated the parental rights of both parents,2 rejecting father‘s beneficial relationship argument.
In order to avoid termination of parental rights, the statutory beneficial relationship exception requires a parent to prove three elements: (1) regular visitation; (2) the existence of a beneficial parental relationship; and (3) that severing that relationship would be detrimental to the child. (
The juvenile court‘s ruling, which we review for substantial evidence, is amply supported in the record. Among other things, father‘s substance abuse was rampant by the time of the selection and implementation hearing. He had previously concealed a crash caused by driving under the influence (DUI) and then refused to implement protective measures for Katherine‘s benefit. He refused to move out of his parents’ home, which resulted in a series of abrupt changes of Katherine‘s placement. He physically assaulted his own mother, in the presence of Katherine, resulting in multiple facial injuries requiring medical assistance, which he concealed and downplayed. Juxtaposed against this evidence was solely father‘s testimony about his beneficial relationship with Katherine. But that, too, was contradicted by Katherine herself who confided at times she feared father and did not want to speak to him.
Father claims that part of the juvenile court‘s analysis impermissibly criticized his absence as a “parental role” in Katherine‘s life, phraseology that was shortly after the juvenile court‘s ruling cast into doubt by the Supreme Court in In re Caden C. (2021) 11 Cal.5th 614, 640 (Caden C.) and subsequent appellate cases. This argument is unavailing.
Caden C. prohibits juvenile courts from finding against a beneficial relationship solely because a parent has failed to
Given our ruling on the beneficial relationship issue, we reject father‘s claim that he affirmatively established a beneficial relationship by a preponderance of the evidence and we decline to address as unnecessary father‘s second argument regarding the third prong of the beneficial relationship exception.
Accordingly, we affirm the juvenile court‘s order terminating parental rights.
FACTS AND PROCEDURAL BACKGROUND
A. Referral and Voluntary Family Maintenance Case
After 13 years of dating, father and Lisa G. (mother) learned that they were expecting their first child. Katherine was born in 2012. Father and mother married in 2015.
By 2016, the family was having serious problems. According to one of their neighbors, father and mother fought regularly; during these fights, the neighbor could hear father “beat the tar out of the mother.”
On February 24, 2016, mother called the police after father repeatedly punched her in the back of the head. Father was
On February 26, 2016, the Department began investigating these allegations. Mother told a social worker that father had never physically abused Katherine, but she admitted that the child had been present during past incidents of domestic violence. She later said that she “c[ould]n‘t even count how many times he physically assaulted me in front of Kat[herine] and away from her. He has pushed me while she was in my arms.”
On March 9, 2016, the Department opened a voluntary family maintenance case with the family to address these issues.
On March 15, 2016, the Department learned that father had plead no contest to criminal charges of domestic violence. Father reported that on March 11, he was admitted to a residential substance abuse program.
B. Removal, Detention, and Initial Jurisdiction Petition
While father attended residential drug treatment, he visited Katherine several times. Mother initially retained custody of Katherine, but ongoing concerns about her sobriety led to Katherine‘s removal on June 15, 2016. Katherine was placed with her maternal grandmother.
On June 20, 2016, the juvenile court detained three-year-old Katherine from her parents. That same day, the Department filed a petition alleging jurisdiction over Katherine pursuant to
Father initially denied that he ever fought with or attacked mother in Katherine‘s presence. He also denied ever using substances in Katherine‘s presence. On July 27, 2016, however, at the jurisdictional hearing, both parents pled no contest to the (amended) petition. Accordingly, the juvenile court sustained counts a-1 and b-3, as well as another count related to mother‘s substance abuse. Father received reunification services and monitored weekly visitation.
C. Father‘s Resumption of Custody
On September 21, 2017, the juvenile court found that father had made substantial progress and granted him unmonitored visitation.
In early 2018, father started to show signs of regression, falling out of compliance with drug testing. Between March 1 and April 24, father had only one negative drug test.6 Four other tests came back provisionally negative but were too diluted to produce definitive results.
On May 4, 2018, one day after his first overnight stay with Katherine, the Department was notified that he had tested positive for alcohol on March 22, 2018.
These issues persisted through the year; between June and October 2018, father had tested positive for marijuana five times and had failed to report for testing three times.
On June 6, 2018, father was arrested for a DUI. Because he did not report his arrest to the Department, it did not find out about the DUI until November 2, 2018. When questioned, father admitted that he had gotten into an accident and had smoked marijuana earlier that day, but said that he did not believe he was under the influence when driving.
Despite these issues, father and Katherine‘s relationship remained largely positive. The Department reported that, during monthly in-person visits, social workers observed “well developed” bonding and “appropriate emotional attachment” between father and Katherine. A family counselor opined that father and Katherine “appear to have a close relationship.” At a review hearing on November 13, 2018, the court maintained Katherine‘s placement, but ordered father not to drive while intoxicated and not to transport Katherine without a valid driver‘s license.
Notwithstanding, father continued to struggle with his sobriety, recording five unexcused absences from drug testing between November 2, 2018 and February 25, 2019.
On March 5, 2019, father tested positive for cocaine. Father‘s next drug test was negative, but diluted. He did not show up for his next five scheduled tests.
D. Second Removal and Supplemental Jurisdiction Petition
Given the significant ongoing and unresolved substance abuse issues and credibility concerns, the Department
On March 28, 2019, the Department filed a supplemental petition asserting that, due to father‘s recurrent substance abuse in violation of court orders, the court‘s prior disposition no longer effectively protected Katherine.
On May 30, 2019, the juvenile court once again removed Katherine from father‘s custody and ordered continued reunification services. Thereafter, although father continued to visit with Katherine, he did not take advantage of these court-ordered continued services.
On July 30, 3019, the Department lost contact with father.
On August 13, 2019, Katherine‘s paternal grandfather informed a social worker that father “no longer desire[d] to have reunification services.”
On September 19, 2019, the Department again tried to contact father. He responded via text, stating that he was “living in a tent” on his parents’ property and accusing the Department of “abusing [its] power” by “put[ting] [him] in the street.” The Department phoned him the next day, but father refused to listen to other people; instead, he erratically continued to “blam[e] the system” for his present circumstances. Things continued to degrade. Father lost his job and stopped submitting to scheduled drug tests altogether. His visits with Katherine became “sporadic.”
E. Father Assaults Paternal Grandmother in Front of Katherine
On November 7, 2019, Katherine‘s maternal grandmother reported that she had recently been informed about a physical altercation between father and Katherine‘s paternal grandmother. The maternal grandmother stated that father had started arguing with his mother while the pair were out shopping at Walmart with Katherine, and that father had concluded the argument by assaulting and injuring paternal grandmother. Maternal grandparents expressed concern that paternal grandparents had failed to report the incident, indicating a potential inability to protect Katherine from their son‘s violent excesses.
Paternal grandmother later confirmed maternal grandmother‘s report. The argument began as a disagreement over Katherine‘s level in her gymnastics class. As father became increasingly upset, paternal grandmother tried to walk away, holding Katherine‘s hand in one hand and shopping bags in the other. Father walked up from behind her and pushed paternal grandmother to the ground, causing her to fall face first onto the pavement. She bled from her nose and face, and sustained a black eye. Paternal grandmother said that father apologized, but quickly “disappear[ed] because he knew police were in route.”
As of April 21, 2020, Katherine had enrolled in additional mental health services to help her overcome her trauma.
When the Department interviewed father about the incident, he behaved erratically. The interviewer noted that father could not sustain eye contact, appeared wide-eyed, stuttered, and seemed to struggle to speak. He admitted to “slightly pushing” paternal grandmother, but denied that he pushed her hard enough for her to fall. He felt that paternal grandmother “must have tripped.” Father also denied fleeing the scene, and instead claimed to leave after paternal grandmother told him to. Father claimed that he desperately wanted to reunify with Katherine, but he declined to submit to an on-demand drug test when asked.
After Katherine‘s maternal grandmother brought this incident to the Department‘s attention, all grandparents attended a child and family therapy meeting. At the meeting, paternal grandmother “minimized the incident[,] stating [that] the child was not hurt and the child only had one bad dream about the incident.” However, paternal grandmother agreed to obtain a restraining order against father.
Paternal grandparents also agreed to disconnect a voice-activated communication device from Katherine‘s room in their home to prevent father from speaking to her without a monitor
F. Termination of Reunification Services
Because father had fallen so far out of compliance with his case plan, the Department recommended termination of reunification services and a permanent plan of adoption by maternal grandparents, with whom Katherine had been placed for three of the last four years.
On December 23, 2019, the juvenile court adopted the Department‘s recommendation. Thereafter, father resumed weekly supervised visits with Katherine at the Department‘s offices. Katherine told her maternal grandmother that the visits were going okay.
By January 2021, Katherine and father were having visits at public parks, and Katherine told social workers that the visits were good.
Father objected to Katherine‘s potential adoption by maternal grandparents, telling the Department that he wanted his parents to adopt her instead. He feared that maternal grandmother, with whom he did not have a good relationship, would prevent him from seeing Katherine. He believed that maternal grandmother was “mentally unstable,” and accused her of being “negative” towards Katherine. However, he was not able to articulate any actual safety concerns.
G. Termination of Parental Rights
On May 4, 2021, the juvenile court held a
He also told the court that he was “the only parent in [Katherine‘s] life, so it means a lot to her whenever [they] see each other.” He described how Katherine “comes running up” and “jumps in [his] arms” when he arrives for a visit, and “gives [him] a big hug and says she loves [him] and that she misses [him] and that she can‘t wait to see [him]” when he has to leave. Father thought that it was “tough” for both him and Katherine “when [they] don‘t see each other for a few days[,] even.” He opined that terminating his parental rights “would have a negative effect on [Katherine] and that she would feel like she was losing something if her father would no longer be in her life.”
Both the Department and Katherine‘s counsel argued that the beneficial relationship exception should not apply because father failed to prove that he had a strong, beneficial relationship with Katherine. Specifically, they argued that father had not played a parental role in Katherine‘s life. Father‘s counsel disagreed, arguing that father had occupied a parental role for Katherine to the maximum extent allowed by the judicial constraints on their relationship.
Ultimately, the juvenile court held that father “ha[d] not been able to establish that his regular visits created benefit to the child,” aside from the “incidental benefit” necessarily conferred by
Father timely appealed.
DISCUSSION
A. Relevant Law and General Standard of Review
” ‘At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.’ [Citation.]” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224.) In other words, if the trial court finds that the child is adoptable, it must terminate parental rights unless a statutory exception applies. (
One of these exceptions is the beneficial relationship exception, which applies if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation
To successfully invoke this exception, the moving parent must establish, by a preponderance of the evidence, each of the following elements: (1) that the parent has regularly visited with the child; (2) that the child would benefit from continuing the relationship; and (3) that terminating the relationship would be detrimental to the child. (See
Mere weeks after the juvenile court issued its order terminating father‘s parental rights, our Supreme Court published an opinion clarifying how juvenile and appellate courts should interpret and apply the parental benefit exception. (Caden C., supra, 11 Cal.5th at p. 640.) The court discussed each element of the parental benefit exception in detail. Because father‘s arguments heavily rely on Caden C., we will summarize its holdings briefly here.
“The first element [of the exception]—regular visitation and contact—is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.)
The second element, in which the court must determine whether the child would benefit from continuing the relationship with her parent, is more complicated. “[T]he relationship may be shaped by a slew of factors, such as ‘[t]he age of the child, the portion of the child‘s life spent in the parent‘s custody, the “positive” or “negative” effect of interaction between parent and child, and the child‘s particular needs.’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.) “[C]ourts often consider how
The third and final element asks the court to ascertain whether severing parental ties—and thus “terminating [the] parental relationship“—would be detrimental to the child.7 (Caden C., supra, 11 Cal.5th at p. 633.) “What courts need to determine, therefore, is how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child‘s life.” (Ibid.) Because any harm caused by loss of this relationship may be significantly mitigated by the child‘s adoption into a stable, loving home, the court must then perform a delicate balancing act. The “subtle, case-specific inquiry [that] the statute asks courts to perform [is]: does the benefit of
In addition to these substantive clarifications, Caden C. also establishes a hybrid standard of review for the beneficial relationship exception. The first two elements, which require the juvenile court to “make a series of factual determinations” regarding visitation and the parent-child relationship, “are properly reviewed for substantial evidence.” (Caden C., supra, 11 Cal.5th at p. 640.) These determinations should “be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
But “the ultimate decision—whether termination of parental rights would be detrimental to the child due to the child‘s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.) Accordingly, we will not disturb the juvenile court‘s decision unless it “exceed[s] the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Father‘s primary argument relates to the second element of the beneficial relationship exception. He claims that the juvenile court unreasonably discounted the benefits Katherine gained from her relationship with father because he could not occupy a traditional parental role in Katherine‘s life. Father contends that Caden C. definitively rejects this approach to analyzing the beneficial relationship exception. He therefore asks that we remand this case so that the juvenile court may reconsider father‘s evidence under the correct standard.
Courts have long struggled to apply the beneficial relationship exception to the complex sets of facts that inevitably accompany decisions about terminating parental rights. Analyzing the second element of the exception—whether a child would benefit from a continued relationship with her parent—can be particularly challenging. A parent facing termination of parental rights has necessarily failed to reunify with his child, presumably because he has not sufficiently overcome the issues leading to his child‘s dependency. Therefore, as Caden C. holds, it is paradoxical to conclude “that the [beneficial relationship] exception can only apply when the parent has made sufficient progress in addressing the problems that led to dependency.” (Caden C., supra, 11 Cal.5th at p. 637.) Courts must keep in mind that the benefits a child derives from her relationship with such a parent, whose presence in the child‘s life is often limited to supervised visitation, are typically much subtler than the benefits the child could expect from a custodial parent.
One popular way in which courts have tried to discern the presence of “the mysterious X factor” that transforms a person from a mere “friendly visitor” to a parent with ” ‘a substantial, positive, emotional attachment’ ” to his child is by analyzing whether the person occupies a “parental role” in the child‘s life. (In re L.A.-O. (Dec. 27, 2021, E077196) ___ Cal.App.5th ___, ___ [2021 WL 6112442 at p. *7].) However, this analytic tool has the potential to create more problems than it solves.
“[T]he words ‘parental role,’ standing alone, can have several different meanings,” ranging from “the person whom the child regards as his or her parent,” the person who demonstrates the “nurturing, supportive, and guiding” characteristics traditionally associated with “good” parenting, or “giving parental care” through such activities as “changing diapers, providing toys and food, and helping with homework.” (In re L.A.-O, supra, ___ Cal.App.5th at p. ___ [2021 WL 6112442 at p. *7].) While each of
We agree with father that Caden C. requires juvenile courts to do more than summarily state that a parent has not occupied a parental role in his child‘s life. (See In re L.A.-O., supra, ___ Cal.App.5th at p. ___ [2021 WL 6112442 at p. *8] [reversing termination of parental rights when the juvenile court‘s “terse” determination that the parents ” ‘ha[d] not acted in a parental role in a long time’ ” could have been interpreted as an impermissibly narrow evaluation of the parent-child relationship]; In re D.M. (2021) 71 Cal.App.5th 261, 269 [reversing termination of parental rights when the juvenile court‘s analysis amount to a comparison of the ” ‘parent‘s attributes as custodial caregiver relative to those of any potential adoptive parent(s)’ “].) But we do not agree that the juvenile court committed this error here.
In rejecting father‘s arguments for the beneficial relationship exception, the juvenile court concluded that father “has not occupied a significant parental role.” Critically, it also explained what it meant by this. The court determined that father‘s unresolved issues with substance abuse and violence had consistently destabilized Katherine‘s life for years, fatally compromising father‘s attempts to maintain a strong, positive emotional attachment with her. (Caden C., supra, 11 Cal.5th at p. 638 [“the parent‘s struggles with issues such as those that led to dependency are relevant only to the extent they inform the specific questions before the court,” including the question of
The record amply supports this finding. For example, by the time of the
Father maintained that he never used drugs around Katherine, and admittedly, the record of his pleasant visits with Katherine largely corroborates this claim. However, father ignores one bright red flag amidst all his smooth interactions with Katherine. The record shows that father once became so angry with his mother that he pushed her to the ground, in public, while she was holding Katherine‘s hand. The fall was not trivial; paternal grandmother sustained multiple injuries to her face which needed to be treated by her personal physician. The rapidity with which father escalated from a minor disagreement
Father and his parents initially concealed the altercation from the Department; after maternal grandmother reported it, father and paternal grandmother downplayed the severity of the incident and its effect on Katherine. Again, this apparent lack of concern for Katherine‘s well-being contradicts father‘s claims of a substantial, positive emotional attachment.
The trial court specifically cited this incident of recent violence as evidence that father had “created a violent and contentious relationship between himself and his own parents” causing additional instability for Katherine by disrupting father‘s visitation schedule, to say nothing of the trauma she suffered from witnessing her father injure her grandmother. All in all, these problems not only prevented father from taking Katherine back into his custody, but they also traumatized Katherine, significantly impacting the quality of the relationship with her father.
In opposition to this evidence, and in an effort to demonstrate that his relationship with Katherine had thrived in spite of these issues, father proffered solely his own testimony, consisting largely of his opinions about the daughter-father relationship.8 (Compare with Caden C., supra, 11 Cal.5th at p. 632 [“courts often consider how children feel about, interact with, look to, or talk about their parents“] (italics added).)
Father‘s testimony regarding his relationship with Katherine was contradicted by recent evidence of the times Katherine told others that she was “afraid” of father and that she did not want to speak to him following incidents like the one at Walmart. (Compare with In re B.D., supra, 66 Cal.App.5th at pp. 1228-1229 [reversing termination when the juvenile court had no evidence to support a finding that there was not a substantial, positive emotional attachment to parents, particularly in light of parent‘s testimony which, if credited, indicated a strong attachment].)
Father also adduced no expert testimony or current opinions (for example from social workers or therapists) who might have supported the strength of his relationship with Katherine. (Compare Caden C., supra, 11 Cal.5th at pp. 627-628 [relying on bonding study from mother‘s expert when concluding that severing the parental relationship would be detrimental to the child]; In re S.B., supra, 164 Cal.App.4th at pp. 295-296 [relying in part on a bonding study which indicated a strong bond between father and child].)9
DISPOSITION
The juvenile court‘s order is affirmed.
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to
It is ordered that the opinion filed on January 20, 2022, be modified as follows:
But that, too, was contradicted by Katherine herself who, after witnessing father attack her grandmother, confided that she feared father and did not want to speak to him.
2. On page 23, first sentence of the first full paragraph, beginning with “Father‘s testimony” and ending with “Walmart” is revised to read as follows:
Father‘s testimony regarding his relationship with Katherine was contradicted by recent evidence of Katherine telling others that she was “afraid” of father and that she did not want to speak to him following the Walmart incident.
There is no change in the judgment. Appellant‘s petition for rehearing is denied.
The opinion in the above-entitled matter filed on January 20, 2022, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
CRANDALL, J.* ROTHSCHILD, P. J. CHANEY, J.
* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to
Notes
Given our primary ruling on the second prong, we necessarily reject father‘s argument that the beneficial relationship exception applies as a matter of law. Suffice it to say that, when reviewing factual determinations for substantial evidence, we are not permitted to “resolve evidentiary conflicts” in favor of the movant, even if “substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
Father also argues that the juvenile court erroneously required him to prove that a “compelling reason” other than his relationship with Katherine supported continuation of his paternal rights. However, a parent must prove all three components of the beneficial relationship exception. A failure of proof on any one of them is fatal. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646-647, disapproved on other grounds in Caden C., supra, 11 Cal.5th at pp. 637, fn. 6, 638, fn. 7; compare In re D.M., supra, 71 Cal.App.5th at p. 271 [remand appropriate where primary source of error is in the third element of the analysis, it thus being unclear “how the [juvenile] court would have exercised its discretion” to balance the potential detriment of termination against the potential benefits of adoption without “the benefit of the Caden C. analysis“].) Therefore, in light of our ruling on the second prong, we need not address father‘s