In re M.G.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Melina S.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Francisco G.
Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
Melina S. (Mother) and Francisco G. (Father) challenge the juvenile court‘s June 3, 2021, order terminating parental rights for their son M.G. (born 2017). They contend the juvenile court did not conduct a correct beneficial parent-child relationship analysis as set out in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and instead considered factors Caden C. deems improper. They urge us to reverse the order terminating parental rights and remand the matter for a new hearing under
FACTUAL AND PROCEDURAL BACKGROUND
Now four-year-old M.G. is fed through a G-tube due to his diagnoses of esophageal reflux, generalized intestinal dysmotility, and laryngomalacia. He is also eligible for Regional Center Services due to developmental disability. Both parents are Regional Center consumers due to their developmental disabilities and former foster children. Because their ability to care for M.G. is impaired, Vilma L., Father‘s longtime childhood In Home Support Specialist from the Regional Center, was initially M.G.‘s primary caregiver.
On December 7, 2017, it was reported to the Los Angeles Department of Children and Family Services (DCFS) that Mother hit Vilma with a closed fist while Vilma was placing the child in his car seat. At the time of the referral, parents were receiving voluntary family maintenance services through DCFS. Vilma
On December 19, 2017, the parents brought M.G. to UCLA Medical Center for a G-tube procedure as he was not thriving. The hospital social worker perceived the parents as children themselves due to their cognitive delays. The parents did not know M.G.‘s feeding schedule and told the treating physician they were aggressive and hit each other. Vilma was no longer willing to care for M.G. and worried about parents’ ability to care for him without help. The physician was concerned that M.G. would fail to thrive under their care. Consequently, on December 26, 2017, when M.G. was ready for discharge from the hospital, a protective custody warrant was secured placing him on a hospital hold. The parents were informed that the child would be temporarily placed in a medical foster home. He was so placed.
On December 29, 2017, DCFS filed a petition under
At the detention hearing on January 2, 2018, the juvenile court detained M.G. and parents were permitted monitored visitation of at least three hours or three times a week.
Mother pleaded no contest to the petition which the court sustained as to both parents under
At the six-month review on September 17, 2018, M.G. was reported to be thriving in foster care. He was eligible for Regional Center services and received occupational therapy and early intervention services. Mother was in compliance with her case plan, which included anger management, domestic violence and parent education classes. Father was dismissed from anger management classes after four absences, but was in a new program. Both parents were renting a bedroom from a third
There was another domestic violence incident in January 2019 when Father jumped on mother and was choking her. The parents had to move out of their residence because of their domestic violence. Father‘s previous life skills coach reported the relationship was toxic. Father had said on numerous occasions, including in his anger management classes, he did not want M.G. back. Both parents required redirection and had to be prompted on how to interact with M.G. during visitation. But their visits were regular and appropriate.
Although discharged from anger intervention services due to aggressive behavior after he had completed 22 of 26 sessions, Father enrolled in a new anger management and domestic violence program and also completed a 12-week parenting class. Mother continued to be in compliance.
At the 12-month review on April 25, 2019, the court considered returning M.G. to his parents. The court heard witness testimony from both parents and Natalia S., Mother‘s Supportive Living Coach employed with the Regional Center. Natalia S. testified Mother played games with M.G., engaged him and taught him how to stack items. Mother did not, however, operate the feeding tube during visits. At the hearing, both parents denied the January 25, 2019, domestic violence incident. The juvenile court found it premature to return M.G. to his parents, expressing concern about their ability to manage the G-tube and their domestic violence. It also found that the January 25, 2019 choking incident did occur. The court found both parents had substantially complied with their programs. DCFS
Father completed anger management, domestic violence, and parenting programs by May 2019. From February through June, 2019, a human services aide had observed 29 weekly visits during which both parents appropriately played with, redirected and soothed M.G, who was responsive to them. Both parents were visiting two hours twice a week without the help of their respective life coaches. They still needed some assistance in how to interact with M.G. and manage the G-tube.
At the same time, the caregivers were reporting that M.G. was showing a strong attachment to them and did not respond well when they were not present. During the summer of 2019, M.G.‘s foster mother became concerned about his aggression. He would bite himself, hit his head, jump wildly on the bed and rock back and forth. He was referred for an autism evaluation.
Between September and December, 2019, parents received more training on operating the G-tube, but each was still experiencing difficulty with it.
At the next hearings on January 6 and 15, 2020, the juvenile court made several findings. First, it found parents “mostly compliant” with the case plan. “But the really critical issue is can the parent apply what they learned so the child can be returned to a safe home.” The court recounted all efforts extended to train parents on operating the G-tube, characterized those efforts as “reasonable,” and found “there is a very strong indicator that the parents have not, and unfortunately will not be able to master the handling of the G-tube.” The court also noted the parties were at the 24-month mark in reunification services and the court did not have discretion to extend services beyond
Although reunification services were terminated in January 2020, parents continued to visit M.G. consistently at least twice a week, resorting to video chats during the pandemic as his pediatrician allowed no visitors due to M.G.‘s medically fragile condition. Engaging three-year-old M.G. over video was difficult for parents due to his hyperactivity and lack of attention.
One year elapsed from the termination of reunification services. Visitation continued by video. By January 2021, M.G.‘s caregivers wanted to adopt him as he had been in their care since 2018 and they had a strong bond to each other.
By May 20, 2021, the bonding study by psychologist Geraldo D. Canul, Ph.D., was completed over a year after it was ordered and after one year of physical separation due to the pandemic. On May 14, 2021, Dr. Canul interviewed the parents, and on May 17, 2021, he observed the parents and M.G. over video during their weekly video visit. Dr. Canul found the parents and M.G. to be comfortable with one another. The parents were attentive, eager, and encouraging. M.G. appeared distracted and disinterested in interacting with his parents. He needed to be redirected frequently. Dr. Canul concluded there
At the 366.26 permanent placement hearing on June 3, 2021, the juvenile court found the minor adoptable. Both parents asserted the beneficial relationship exception. The court noted that the bonding study “[b]asically indicated that there was not really a bond between the parents and the child.” The juvenile court found: “They do want to continue being in his life, but they have not acted in a parental role” and “[t]hey have not established a bond with the child such that the parental rol[e] can be viewed by this court in a positive ma[nn]er.” The court terminated all parental rights and set the matter for a permanency planning hearing on December 2, 2021.
Both Mother and Father filed timely notices of appeal from the order terminating parental rights.
DISCUSSION
A. Applicable Law
At a
One of the six exceptions is the parental-benefit exception in
Caden C. recently clarified how the trial court must view elements of the beneficial relationship exception. The question presented there was “whether a parent must show progress in addressing issues such as drug abuse that led to the child‘s dependency in order to establish the exception.” (Caden C., supra, 11 Cal.5th at p. 629.) In Caden C., the court of appeal had found no parental-benefit exception because the parent continued to struggle with substance abuse and mental health issues which were the cause of the minor‘s dependency. The court treated the lack of progress in addressing these issues as a categorical bar to establishing the exception. The Caden C. Court found consideration of these issues mistaken and reversed. (Id. at pp. 625–626.)
Caden C. began with a summary of the purpose of a placement hearing under
This is when the parental-benefit exception comes to bear. Three elements must be satisfied to establish the parental-benefit exception: 1) regular visitation and contact, taking into account the extent of visitation permitted; 2) a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship; and 3) a showing that terminating the 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. In that case the court must select a permanent plan other than adoption. (Caden C., supra, 11 Cal.5th at pp. 636–637.) In assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child‘s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. (Id. at p. 632; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The exception preserves a child‘s right to a relationship with the parents even when parent and child cannot safely live together. It also does not allow “a judgment about the parent‘s problems to deprive a child of the chance to continue a substantial, positive relationship with the parent.” (Caden C.,
As to the third element of detriment, the court needs to determine “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.” (Caden C., supra, 11 Cal.5th at p. 633.) “When the relationship with a parent is so important to the child that the security and stability of a new home wouldn‘t outweigh its loss, termination would be ‘detrimental to the child due to’ the child‘s beneficial relationship with a parent.” (Id. at pp. 633–634.)
Significantly, the Caden C. Court noted “the court is not comparing the parent‘s attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the
The Court also noted the exception becomes relevant only when the parent has not made sufficient progress in addressing the problems that led to dependency. That lack of progress, then, cannot categorically be used against the parent to deny the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 637.) In that vein, whether the parent is or is not ready for the
It is unnecessary to show that the parent occupies a parental role in the child‘s life because a child can have a psychologically or emotionally significant relationship with the parents even if they do not occupy a parental role. (Caden C., supra, 11 Cal.5th. at pp. 632–633.) The focus, again, is on the child. That a child may have more than one person who stands in the role of parents does not defeat the exception; a strong relationship with one parental figure does not negate the harm the child would experience if the child were to lose a significant and positive relationship with the parents. (In re S.B., supra, 164 Cal.App.4th at p. 300.)
B. Standard of Review
We review the juvenile court‘s findings using a hybrid approach. (Caden C., supra, 11 Cal.5th at pp. 639–641.) For the first two elements which require factual findings (parental visitation and the child‘s emotional attachment), we use ” ‘the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court‘s order. [Citations.] We must uphold the court‘s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565; In re A.M. (2020) 47 Cal.App.5th 303, 314.) We review the evidence in the light most favorable to the juvenile court‘s findings and draw all reasonable inferences in support of those findings. (In re J.N. (2021) 62 Cal.App.5th 767, 774.)
C. Analysis
We examine the trial court‘s order in light of three elements of the beneficial relationship exception.
1. Element 1: Regular Visitation
As to regular visitation, the trial court found Mother and Father had maintained regular, appropriate, and affectionate visits throughout the proceedings. This finding is unchallenged.
2. Element 2: M.G.‘s Emotional Attachment to His Parents
For this element, the juvenile court relied on the bonding study prepared by Dr. Canul. Dr. Canul interviewed the parents together for 90 minutes and then observed by video a weekly video visit between them and their son. Dr. Canul concluded that Mother “significantly underestimates the deficits and needs the minor has socially, in speech/language, and psychologically.” As to Father, Dr. Canul found Father also “significantly underestimates the minor‘s deficits and needs in the areas [of] social development, language/speech skills, and psychologically.” When Father promptly admonished M.G. several times for not
As to the interactions between parents and M.G., Dr. Canul wrote: “The minor‘s behaviors, developmental levels (psychological, emotional, social) are significantly below his expected age levels. The minor appears to have minimally developed social skills and verbal skills. He was minimally cooperative or responsive to the parents during the observation activities. Both parents were eager to interact with the minor, but the minor reciprocated minimally to the parents prompts during the play session. The minor required ongoing redirection in order to remain minimally interactive during the session.” He found “there is evidence to indicate the presence of a minimally positive emotional interdependence between the minor and the parents that has been developing.” Immediately after this finding, Dr. Canul concludes: “The minor‘s history, developmental-behavioral challenges, and medical diagnoses are significant. The minor needs several medical, developmental - behavioral intervention, and mental health support in order to continue to develop.”
In his final section entitled, “Recommendations,” Dr. Canul stated: “The minor and the parents’ relationship are minimally interactive and minimally reciprocal in a positive manner. The parents have a significant low awareness of the minor‘s overall psychological, developmental, and emotional challenges and need for ongoing interventions. [¶] The nature and quality of their relationship is minimally positive. [¶] In order for the child to more fully develop physically, socially, and psychologically the minor will need to live in a stable and consistent home and with
The juvenile court characterized this evaluation as finding “no bond” between parents and M.G. On that basis, it declined to apply the parental-benefit exception.