In re M.V. ( 2023 )

Filed 1/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.V., a Person Coming B315297
Under the Juvenile Court Law.
________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP07148A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.V.,
Defendant and Appellant.
In re M.V., a Person Coming B317146
Under the Juvenile Court Law.
________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP07148A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.V. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Juvenile Court Referee.
Reversed and remanded.
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant K.V.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant David V.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
K.V. (Mother) and David V. (Father) appeal from the
juvenile court’s order terminating their parental rights to
daughter M.V. They contend the court erred when it declined to
order a supplemental bonding study and did not conduct a proper
analysis of the beneficial parent-child relationship exception set
forth in Welfare and Institutions Code1 section 366.26,
subdivision (c)(1)(B)(i), as required by In re Caden C. (2021)
11 Cal.5th 614 (Caden C.). We reverse the order terminating
parental rights and remand the matter to the juvenile court.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Commencement of Dependency Proceedings
Four-year-old M.V. came to the attention of the Los Angeles
County Department of Children and Family Services (DCFS) in
November 2018 when law enforcement officers conducting a
search at the family’s home discovered thousands of pornographic
images of children 1 to 13 years of age. Both parents admitted
having child pornography on their phones and that some of the
minors depicted could have been younger than 15 years old.
Images of a child’s vagina on Mother’s cell phone were suspected
to be images of M.V.
Mother said she exchanged nude photos of herself, engaged
in sexual conversations for money, and role-played as a child
while performing sexual acts. She admitted posting photographs
of M.V. online for money. She had shared images of M.V. in the
bathtub but denied sharing naked pictures of her. Mother had
agreed to sell a video of M.V., and Father knew this, but she did
not share the video because the purchaser did not pay.
DCFS filed a petition alleging M.V. came within the
jurisdiction of the juvenile court under section 300, subdivisions
(b)(1) (failure to protect) and (d) (sexual abuse). At the detention
hearing on November 7, 2018, M.V. was detained from her
parents and placed with her paternal grandparents.2 The
parents were granted monitored visits a minimum of twice per
week for two hours each visit.
2 Mother, Father, and M.V. lived in the paternal
grandparents’ home, so M.V. remained at home while her parents
moved out.
3
II. Events and Investigation Before the Jurisdictional
Hearing
A. Interviews
Mother reported she was M.V.’s primary caregiver; she and
Father both said she stayed home with M.V. while the other
adults worked. However, M.V.’s paternal grandmother, Mary V.,
saw herself as M.V.’s de facto parent and her primary, if not
exclusive, attachment figure: in her first conversation with
DCFS, Mary V. said of M.V., “[T]echnically she is my baby.”
According to Mary V., she and the paternal grandfather had
taken care of M.V. since she was born. She washed M.V.’s
clothes, cooked for her, took her to the doctor, and enrolled her in
school. She was willing to take custody of M.V., would take time
off work to care for her, and would do anything to protect her.
Mary V. alleged Mother was “incapable of caring for” M.V.,
and there was no attachment or bond between them. Mother was
a lazy parent who could not be trusted to take care of M.V.
because “she feeds the child whatever is easier.” The
grandparents had tolerated Mother’s presence in their home
because she threatened to take M.V. with her if forced to leave.
Mary V. also reported that two years earlier, M.V. bit Mother,
and Mother, upset, bit her back.
Mary V. told DCFS in December 2018 that M.V. was
adapting well under her care. The parents visited three times
per week at a fast food restaurant. Visits were scheduled for two
hours but usually lasted one hour and 40 minutes because M.V.
could not always stay still that long. Mary V. reported visits
went well and the parents engaged with M.V., although
sometimes they used their phones during visits.
4
B. Multidisciplinary Assessment Team
Mother and Mary V. presented diametrically opposed
accounts when interviewed by a Multidisciplinary Assessment
Team (MAT) in late 2018. Mother said that before M.V. was
removed from her custody, M.V. had been happy; she smiled and
played, rarely cried, and had few tantrums. She was active and
energetic, and she had a healthy appetite and sleeping routine.
She calmed easily or could be redirected if upset. But M.V.’s
mood had changed since she was removed from their custody: she
was now angry, irritable, distant, and easily upset. M.V. was not
as happy as she had been when she lived with Mother and
Father. At the end of visits, M.V. begged to go with her parents,
screamed and cried for them, and refused to leave.
Mary V., on the other hand, said M.V. used to be irritable
and upset, crying often and becoming frustrated when told she
could not do something or when she had to go out with her
parents. She preferred spending time at home with Mary V., and
had often cried when her parents wanted to take her to outdoor
activities. But now that Mary V. was caring for her full-time,
M.V. was calmer, more easy to regulate, and in a better mood.
M.V. “always” wanted Mary V.’s attention and her help with
tasks. She followed Mary V. around, and some days, she needed
physical contact with Mary V. all day to feel calm. M.V. was
happy, and she did not become sad or cry when she saw or
thought about her parents, although she sometimes cried at the
end of visits.
Mary V. alleged Mother had physically abused M.V. and
presented two photographs, one showing fingermarks on M.V.’s
face and the other a bite mark on her elbow. Mother admitted
having bitten M.V.
5
The MAT assessor found M.V. energetic and easily
engaged. She made eye contact, easily approached the assessor,
was talkative, and had a good sense of humor. She was able to
initiate social interactions, reacted well to one-on-one
interactions, and was not shy. M.V. enjoyed having the attention
of the assessor and Mary V. She became dysregulated when not
receiving attention. She was clingy with Mary V., climbing on
her, pulling her hands and arms, grabbing and pulling her face
toward her, and raising her voice whenever she did not have
Mary V.’s full attention. M.V. followed Mary V.’s directions but
disengaged whenever Mary V. stopped paying attention to her.
However, she was easily redirected, was responsive to Mary V.’s
attention, and responded to Mary V. with affection and attention
of her own. M.V. and Mary V. had a strong bond.
M.V. needed to learn positive coping skills to regulate her
feelings and “to develop a healthy bond/attachment with her
caregivers, so she won’t feel anxious when she is not close to”
Mary V. The MAT team concluded she would benefit from
mental health services because the sexual exploitation she
endured could impact her future social interactions, self-esteem,
and view of herself; it could create guilty feelings, confusion,
anger, and difficulties regulating her emotions. She would need
help developing skills to cope with the consequences of knowing
her photographs were public and circulating online. As M.V. had
been physically disciplined, she would need support to
understand that physical aggression was not an appropriate way
to express anger or frustration.
6
III. Jurisdictional and Dispositional Hearings
At the jurisdictional hearing on January 16, 2019, the court
sustained, as to both parents, the allegations under section 300,
subdivisions (b) and (d) related to the sexual exploitation of M.V.3
At the court’s direction, prior to the March 2019
dispositional hearing, DCFS asked Mary V. about a possible
disposition of the matter through a legal guardianship pursuant
to section 360, subdivision (a), but Mary V. was not interested in
legal guardianship and wanted to adopt M.V. On March 22,
2019, the court declared M.V. a dependent child, removed her
from her parents, and ordered reunification services. The court
ordered monitored visits twice per week for three hours per visit,
with a third visit if M.V.’s schedule allowed.
IV. March to September 2019
In January 2019, M.V.’s pediatrician observed that M.V.
displayed abnormal behavior and delays in meeting her
developmental milestones. M.V. had challenges with regulating
her emotional responses and a short attention span. She began
therapy in February 2019, attending weekly sessions individually
and with the paternal grandparents to manage prior traumatic
experiences.
M.V. attended a Head Start program until August 2019;
she “initially had challenges adjusting to the school setting as she
would cry at the beginning of the day and not comply with nap
3 The court dismissed two additional section 300, subdivision
(b) counts relating to Mother’s substance abuse and mental and
emotional problems.
7
times.” Reports indicated M.V. had injured herself at school on
multiple occasions.
In September 2019, DCFS reported M.V. had close
relationships with both her parents and her grandparents. M.V.
said she missed living with her parents. Both parents said M.V.
asked them at visits to move back home, and Mother said M.V.
cried at the end of visits. A social worker who monitored two
visits reported the parents interacted appropriately with M.V. by
playing games with her and feeding her. They appropriately
redirected M.V. when she did not follow instructions. Mary V.
had told DCFS the parents ended visits early, so DCFS asked
them why; they explained M.V. had so much energy that it was
difficult to contain her in a restaurant for two full hours. Mother
occasionally brought toys to the visits but withheld them until
M.V. behaved; Mary V. believed this made it more difficult for
M.V. to focus on the visit because she was preoccupied with
obtaining the toy.
Mother believed Father’s family treated her unfairly. She
had a contentious relationship with the paternal grandfather and
several times asked DCFS to remove M.V. from the paternal
grandparents’ home. In June 2019 Mother said she did not care
if M.V. was placed in foster care as long as she was away from
the paternal grandparents.
A concurrent planning assessment identified adoption by
the paternal grandparents as the permanent plan if reunification
failed. At the September 2019 section 366.21, subdivision (e)
review hearing, the court ordered continued reunification services
and three 3-hour visits per week.
8
V. October 2019 to January 2020
In November 2019, then five-year-old M.V. completed
individual therapy, having met the goals of decreasing tantrums
and addressing her prior trauma. Mary V. reported M.V.’s
behavior had changed, and she had new skills to help M.V.
regulate her emotions.
The parents consistently visited M.V. three times per week.
Mary V. reported visits were positive, M.V. required redirection
during visits, and occasionally she cried and had difficulty
leaving visits.
A DCFS social worker observed a November 2019 family
visit at a fast food restaurant. M.V. was hyperactive, running
from door to door and standing on the bench to the table. The
parents and paternal grandparents instructed M.V. to stop and
blocked the doors to prevent her from leaving the restaurant.
M.V. cried when told no, and she refused to eat her food. Mother
told M.V. that if she did not eat, she would not receive the
surprise Mother had brought for her. M.V. began to cry. Mary V.
told Mother that M.V. was likely not hungry; Mother then
stopped prodding M.V. to eat and began to play with her. M.V.
continually reached for Mother’s bag in search of the surprise
Mother had brought. Mother verbally redirected her firmly each
time, and M.V. whined.
Mother gave M.V. the toy she had brought and helped her
play with it. Soon M.V. said she wanted to order an ice cream
dessert, stood up from the table, and ran for the kiosk. Mother
yelled that she could not have the dessert and to return to the
table. Father retrieved M.V., who whined. Mother brought M.V.
to Mary V. and asked for her assistance. Mary V. and M.V.
9
stepped outside for several minutes; when they returned, M.V.
was calm and holding onto Mary V.
On January 17, 2020, the court ordered continued
reunification services.
VI. February 2020 to November 2020
On February 10, 2020, the social worker visited M.V. and
found her to be “a bit hyper.” Mary V. said M.V. was usually
calmer but acted up to get attention when visitors were present.
Mary V. reported no behavioral problems and said M.V. behaved
well at home and at preschool.
Mother and Father visited M.V. consistently prior to the
pandemic. In early 2020 they began visiting separately. Mother
claimed the separate visits caused M.V. “challenges” and said
visits were difficult because M.V. was unhappy about Father’s
absence, but M.V. privately told the social worker she liked
visiting with her parents and that she preferred they visit
separately because “sometimes they fight over me.”
Father visited M.V. for four hours each weekend day.
During visits they read and played hide and seek. Father said
M.V.’s behavior could be challenging when she did not get her
way, but he redirected her and talked with her about what was
right.
In February 2020, M.V. told DCFS, “I want to live with
Mommy and Daddy.” She said she did not really like living with
her grandparents. When asked why, she said, “I miss my
family.” The social worker asked who her family was, and M.V.
said her family was Mother, Father, the paternal uncle, and his
10
girlfriend.4 In March 2020, M.V. again told DCFS she liked
visiting her parents.
When lockdown began, the parents visited M.V.
telephonically. Mary V. said in April 2020 that M.V. was fine
and had neither requested in-person visits nor expressed
concerns about not having in-person visits. However, M.V. was
sad once when Father did not answer the phone. Mary V. had
noticed M.V. becoming sad over things like losing a card game,
and she did not want to be separated from Mary V. even for the
short time it took her to get the laundry.
Mother proposed “car to car” visits as a safe way to resume
in-person visits, and these visits began in April 2020. Mother
reported in late April that visits were going well but M.V. had
cried during a visit because she wanted to go home with Mother.
In May 2020 Mother told DCFS that visits were difficult because
M.V. wanted Mother to come live with her.
Father disliked the idea of car visits and chose telephonic
visits, but he did not maintain regular phone contact with M.V.
In May 2020, M.V. told the social worker she saw her parents but
she did not see her dad much; sometimes she spoke with him on
the phone. M.V. said, “I miss [D]addy, I haven’t seen him or
spoke to him a lot.” She shook her head yes when asked if she
liked living with her grandparents.
During the social worker’s May 2020 visit, M.V. “began
crying and held on to [Mary V.] when she felt that [Mary V.]
spoke to [the social worker] too long without her.” The social
worker observed, “[M.V.] is hyperactive, and required
4 The uncle and his girlfriend lived with the paternal
grandparents.
11
redirections from [Mary V.] and [the social worker] not to run
to[o] far out of their sight, she pushes her boundaries when told
not to do something.” When the social worker visited the
following month, M.V. cried hysterically because the social
worker entered the house when she wanted the visit to be
outside. M.V. went to Mary V. for comfort and was able to calm
down, return to her seat, and continue eating food and playing on
a tablet. Speaking privately with the social worker, M.V. said
she liked living with her grandparents but missed her mom. She
said, “I miss my mom living here, but I know she made bad
choices when I was little, but I still miss her.” M.V. said she
missed Father.
In-person visits resumed by June 2020, although Mother
was temporarily limited to video visits after being exposed to
COVID-19. Mother told DCFS M.V. cried about not seeing
Mother during their video chats.
The paternal grandfather told DCFS Mother’s in-person
visits never lasted the full allotted time; Mother often ended
visits early because she needed to work, she was tired, or M.V.
was misbehaving. Mother said she shortened her visits because
they started at 6:00 p.m. and she did not want to keep M.V. out
late, but she also cut short weekend visits despite their earlier
start times.
DCFS asked Mary V. in May 2020 whether she believed
unmonitored visits would be appropriate. Mary V. opposed
unmonitored visitation, expressing concern that M.V. required a
lot of attention for her safety but the parents were often
distracted by their phones and/or gaming consoles during visits.
Additionally, Mother’s practice of bribing M.V. with gifts led to
12
M.V. becoming impatient and expecting gifts, which often
resulted in tantrums.
In June 2020, Mary V. told DCFS her “biggest worry is that
Mother will not allow the family to see [M.V.] again if she
reunifies with her.”
DCFS observed in June 2020 that both parents appeared to
have a close bond with M.V. Mother visited consistently,
participated in M.V.’ s medical appointments when she could, and
“constantly focused on [M.V.’s] wellbeing,” inquiring about her
during and after visits. The social worker had not observed
Mother being distracted by her phone or gaming console during
visits with M.V. as Mary V. had reported; however, Mother was
frequently distracted by her electronic devices when she met with
the social worker. DCFS reported that Mary V. felt Father was
not always attentive to M.V.’s needs during visits and instead
relied on Mother or Mary V. to take care of M.V. The parents’
distraction was of concern because M.V. required constant
supervision for her safety.
As of the summer of 2020, M.V. reportedly continued to
manage her mental health and emotional stress well. She
occasionally had tantrums and demanded a lot of attention, but
the grandparents were able to manage her behaviors and refused
additional mental health or support services.
On July 30, 2020, the social worker spoke with M.V. and
Mary V. When the social worker mentioned that M.V. would
soon have a visit with Mother, M.V. began to cry. She said she
was not having a visit with Mother and she wanted her visit with
Mother. Mary V. explained the visit had been changed to a video
visit. Mary V. reported the parents continued to visit M.V. and
that Mother’s visits tended to last one to two hours. Mary V. said
13
Mother recently had expressed concern that M.V. wanted to know
why Mother had bitten her and asked why she had done that
“because [it meant] she can’t live with her anymore.”
As of August 2020, DCFS reported M.V. was “observed to
have a close bond with her paternal family and has expressed
that she loves and misses her parents on occasion.” M.V. often
cried when she did not get her way, but she was able to calm
herself with adult assistance.
In September 2020, Mary V. wrote to the court urging it to
allow the paternal grandparents to adopt M.V. as they had
sought to do since the proceedings began. Mary V. stated she did
not excuse Father for what happened and hoped he would
continue to seek help, then described Mother as having the traits
“of a narcissistic sociopath.” “Not even a mother on drugs” would
behave as Mother had, she wrote. Mother “knowingly and
willingly put [M.V.] at risk, danger and easily betrayed and gave
away this child’s innocence.” Mary V. had no doubt Mother
would have put M.V. at greater risk had she not been caught.
Mother lied and deceived others, and Mary V. feared she would
again jeopardize M.V.’s well-being for her own gratification:
“Simply put, I don’t trust her.”
The paternal uncle wrote to the court that removing M.V.
from her grandparents “would be absurd and [would] damage
[her] currently and down the line.” He stated M.V. had always
had an extremely close bond with her grandparents, particularly
Mary V. She learned to crawl following Mary V. around the
house. Her first steps were to Mary V. M.V. started calling
Mary V. “Mommy-Nana” at a very young age and saw her not
only as a grandmother but also as a maternal figure. M.V. could
14
not tolerate being apart from Mary V. and became “very
emotionally upset” if Mary V. went to the store without her.
On November 9, 2020, after a contested 18-month review
hearing, the court terminated reunification services and set the
section 366.26 permanency planning hearing (.26 hearing) for
March 10, 2021.
VII. Crespo Appointment and Report
When the court terminated reunification services, it
remarked, “[T]he child certainly misses her father. Those are her
words.” At the parents’ request, the court ordered a bonding
study. The court appointed Alfredo Crespo, Ph.D., to examine
Mother, Father, and M.V. (then six years old), and to report on
the “[r]elationship between Mother and Father and child[]
concerning their bond and the potential emotional effects on the
child if the relationship were permanently severed.”
Crespo filed his report on January 21, 2021. The parents’
attorneys advised the court on March 10, 2021, that Crespo’s
evaluation and report were inadequate and asked for a
supplemental report that addressed the impact on M.V. if the
parental relationship were severed. The court refused, saying the
parties could argue the adequacy of the report at the hearing.
The court continued the .26 hearing until June 2021 due to
outstanding issues relating to the Indian Child Welfare Act
of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
VIII. February to October 2021
M.V. had a close relationship with her grandparents and
“appear[ed] happy, healthy, and thriving in the current home.
[M.V.] appear[ed] to have adjusted well to the home and it is
evident that she is bonded to her caregivers.”
15
The parents continued to visit M.V. consistently. Mother
was scheduled to visit seven hours per week in a public setting
but sometimes requested telephone or video visits because of
weather, darkness, or park closures. Visits sometimes ended
early, but Mother engaged well with M.V. and no concerns had
been reported. Father continued to visit M.V. at the
grandparents’ home three times per week, for three hours at a
time, and his visits sometimes extended past the three-hour
mark. DCFS said it was reported that Father stayed for the
entire visit, but occasionally needed to be encouraged to engage
in quality activities with M.V. rather than just allow her to play
with his phone.
The paternal grandparents continued to express a desire to
adopt M.V. and said they were open to continued contact with
M.V.’s birth family as long as it was in her best interest.
However, they disapproved of Mother’s practice of giving M.V.
gifts conditioned upon good behavior, believing M.V. had come to
expect gifts at visits and was distracted by the prospect of the
surprise. If M.V. searched for the promised item, Mother became
upset and withheld the gift, disappointing and upsetting M.V.
They also reported Mother counterproductively threatened to
spank M.V. when she misbehaved. The paternal grandparents
said that although they intended to “foster the relationship” M.V.
had with her parents, “they may consider reducing the frequency
of the mother’s visitations if she continues to not recognize the
effect her actions are having on the quality of visitations and
[M.V.’s] emotional well-being.”
In April 2021, DCFS reported M.V. missed her parents and
occasionally asked why they could not live with her. In May, the
paternal grandparents wrote to the court asking again to adopt
16
her. They said the parents’ attorneys wanted to “win” for their
clients, but they were “not looking to win . . . we want to save
[M.V.].”
In October 2021, M.V., now seven years old, told the social
worker she liked seeing Father. When asked about the activities
she and Father did, M.V. said they played an online game
together and talked about cats and a movie. Father said they
played video games and swam; M.V. also played with her
hoverboard and put makeup on Father. According to the
paternal grandparents, however, Father fell asleep during nearly
every visit; they showed DCFS photographs of him sleeping on a
couch next to M.V. They said when Father was awake, visits
often consisted of him giving M.V. his phone and sitting with her.
Mary V. said Father participated in activities with M.V., but
M.V. often had to “beg” first. In fact, Mary V. said, M.V. would
come to Mary V. to have her tell Father that M.V. wanted to go
outside or engage in a particular activity.
Mary V. reported that during Mother’s visits, M.V. played
video games and a phone, ate fast food, and roller skated.
Mary V. said Mother canceled an average of two visits per month;
she had canceled several visits in August but canceled less
frequently thereafter. Mary V. said M.V. had expressed she was
accustomed to Mother sometimes canceling visits.
IX. Termination of Parental Rights
The .26 hearing took place on November 23, 2021. Father,
Mother, and Mary V. testified, and stipulated testimony was
received from M.V.
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A. Father’s Testimony
Father testified about his visits and his relationship with
M.V. He visited her at his parents’ home three times per week
for three hours per visit. On Friday evenings he brought dinner,
and they watched television while they ate. After dinner, they
played video games or did puzzles. At the end of the visits, M.V.
changed into her pajamas and he gave her a ride on his back to
the grandparents’ room.
On Saturdays, they played games and went over any
schoolwork M.V. had. Father read to her. Sometimes they went
out to dinner with the paternal grandparents. Saturday visits
“conclude[d] with the wolf man story, . . . a story I just kind of
spitball together of . . . her and I going on adventures together.”
When saying goodbye, Father said, “I give her a hug and we do
our handshake. We have three different handshakes that we do
together. I give her a hug and she gives me a kiss on the cheek
and I let her know that I’ll see her . . . the next day. And she’ll
give me a kiss on the cheek and she’ll say, I love you, Daddy. I’ll
see you tomorrow.”
Father and M.V. talked and played games on Sundays.
M.V. practiced math and reading with educational games on
Father’s phone. M.V. typically sat with Father unless she
wanted to show something to Mary V. At the end of the visits,
M.V. rode on his back to go lie down.
Father admitted dozing off during one visit. He was “very,
very patient” with M.V. and did not raise his voice with her. He
could tell when M.V. was testing her boundaries and limits and
remained calm when she acted out: “I try to sit there and just
talk to her and reason with her. I let her know, you know, her
actions do have consequences. And I try to let her know, hey,
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there’s a reason your daddy is telling you don’t do this, it’s
because I don’t want you to get hurt along the way or, you know,
just any action that may be detrimental.” Father praised M.V.
when she listened, did a good job, or was excited about reading,
puzzles, or building with blocks. He said, “I always make sure
that I praise her and give her a high-five. Try to be as positive as
possible with her.”
When M.V. knew Father had a day off work for a holiday or
other reason, “she always says, hey, Dad, you need to be here
tomorrow because I know you’re not working.” Father spent
holidays with M.V. at the paternal grandparents’ home, although
he had not spent the previous Christmas with them because they
had COVID-19. Instead, M.V. left cookies outside, and he
dressed up as Santa Claus and appeared in the front yard.
During the week, Father talked to M.V. on the phone on
Tuesdays and Thursdays while she visited with Mother, although
the calls were short so as not to impact M.V.’s time with Mother.
He had not been to M.V.’s school. Father did not give his parents
money for M.V.’s care, but he bought items she needed. He had
spent approximately $200 on clothes and shoes for M.V. at the
start of the school year.
Father described his relationship with the paternal
grandparents as “probably strained.”
B. Mother’s Testimony
Mother visited M.V. on Tuesday nights, Thursday nights,
and Sunday mornings. Visits were scheduled for three hours, but
Mother tended to end the evening visits after about an hour and
a half because it was late.
Visits took place in Mother’s car because Mary V. would not
allow Mother in her home and refused to permit visits at the
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office of Mother’s transitional housing. Mother brought meals to
visits. She and M.V. played video games or with kinetic sand.
Mother asked M.V. about school, her day, and her visits with
Father. When they discussed school, M.V. would tell Mother
either that school was good or that they had done nothing that
day.
The visits went well, but they were limited because it was
difficult to do much in a car. It would be better if visits were in a
setting where Mother could cook for M.V., sit at a table and eat,
or watch television with her.
M.V. referred to Mother as “Mom” 90 percent of the time,
but sometimes she called Mary V. “Mommy.” Mother had not
attended M.V.’s doctor’s appointments or individualized
education plan (IEP) meetings because Mary V. would not tell
her when they were.
C. Mary V.’s Testimony
Mary V. testified Father’s visits with M.V. were good and
M.V. was happy to see him. Usually they watched television or
played video games, or M.V. played with Father’s phone.
Occasionally Father took her outside but they were usually in the
house. Father nodded off and dozed throughout most visits,
typically for a few minutes at a time. At the end of Father’s
visits, M.V. was, for the most part, “okay. She tells him good-bye
without an issue. A few occasions she will get . . . a little upset”
because Father was leaving.
Now and then Father purchased food for M.V., but
generally Mary V. and paternal grandfather provided the meals.
On Fridays Father called before coming over to ask if he should
bring food for M.V. or if Mary V. had already taken care of the
20
meal. On Saturdays and Sundays, the paternal grandparents
usually made or bought dinner.
Father spent holidays with M.V. He inquired about M.V.’s
IEP meetings but never attended one, nor had he attended any of
her medical appointments. Father had not planned M.V.’s
birthday celebrations on his own initiative since she was removed
from his care, and he had not provided anything for her besides a
few outfits now and then and the occasional toy or ice cream.
Mary V. described the paternal grandparents’ relationship
with Father as “a little bit strained.” The relationship had
changed because of the “whole situation that we’re in. Probably
the lack of communication and the lies throughout.”
D. M.V.’s Stipulated Testimony
The parties stipulated that if called as a witness, M.V.
would testify that she wanted to live together in one house with
both her parents and her paternal grandparents; if she had to
choose between them, she would choose to live with her
grandparents until they died, and then with her parents; if she
fell down and was hurt and only Mary V. and Mother were in the
room, she would go to Mary V. for help; if she fell down and was
hurt and only the paternal grandfather and Father were in the
room, she would seek help from her grandfather; she did not like
Mother sometimes because she remembered Mother smacks her;
and she would be sad if she never got to visit with Mother and
Father.
E. Argument and Submission
In argument, Mother contended that the beneficial
parental relationship exception applied: she had visited M.V.
consistently, they had “a clear relationship,” M.V. wanted to live
21
with her parents and grandparents, and she would be sad if she
did not see her parents again. Mother argued the paternal
grandparents were biased and seeking to adopt M.V. Mother
requested a legal guardianship rather than adoption.
Father argued he had established the elements of the
beneficial parental relationship exception. He visited regularly
and consistently. M.V. was seven years old and she had
expressed the desire to see her parents and to spend time with
them. M.V. loved her parents, wanted to live with them, and
would be sad if her visits with her parents ended. Father
contended a legal guardianship would allow the maintenance of
“[the] family ties that this child very much wants to continue to
have.”
Father argued Crespo’s assessment “was not conducted in a
way to provide meaningful feedback on the parent/child bond to
this court” and was “very limited.” Crespo did not meet any of
the family in person, only observed a few minutes of visits by
videoconference, and spoke with M.V. with Mary V. either
present or within earshot.
Father contended that while Crespo advocated for an open
adoption, apparently anticipating postadoption contact between
the parents and M.V., that was not an option for the court to
consider: when determining whether to sever parental rights, the
court was required to proceed on the premise that if M.V. were
adopted she would not see her parents again. Father argued
Crespo’s claim that open adoption would prevent M.V. from being
vulnerable to some undescribed negative consequences to which
adopted children are vulnerable indicated that Crespo believed
that if M.V. were to lose all contact with her parents she could be
vulnerable to these negative consequences. Even though Crespo
22
viewed the parents negatively, he understood that M.V.’s
relationship with her parents, whom she loved and wanted to live
with, was important.
Counsel for M.V. and DCFS argued parental rights should
be terminated. M.V.’s attorney argued there was no indication
the paternal grandparents would preclude parental visits,
stating, “I think that their love [for] their granddaughter is so
great, that they would not simply cut off the Father’s visits or the
Mother’s visits.”
The court found it “a little troubling” that Crespo did not
perform an in-person assessment; the court was “struggling” with
that. The court said, “We’re [here] about what impact, if any, if
the bond is severed is that going to have on this child. We can’t
ignore that. That’s what this whole proceeding was about,
weighing the impact versus the notion of permanency.” The court
took the matter under submission.
F. Ruling
On December 9, 2021, the court found M.V. adoptable by
clear and convincing evidence. The court said, “[T]here’s really
not a question as to whether or not there’s a bond. There clearly
is a bond with the child and particularly the father, it appears.”
The real question, the court said, was whether M.V. would
benefit from continuing the relationship to such a degree that
terminating parental rights would be detrimental to her. The
court “gave much weight to Dr. Crespo’s analysis” and described
Crespo’s view that “legal guardianship may create a false hope
for the parents to eventually regain custody of the minor and,
hence, introduce uncertainty and/or conflict among the parents
and the paternal relatives[,] thereby creating a risk of more
23
emotional problems in the child that would otherwise be avoided
through adoption.” The court said it “embraces that sentiment.”
The court continued, “[I]t’s a question of what is
paramount, the protection of the child or the—that is the
paramount issue. The evidence is such that in this court’s mind,
it does not rise to the level of the parent—that the child would
suffer detriment if the parent/child relationship was continued
[sic].”
The court was impressed with Mary V.’s testimony and did
not find her to be an “overbearing grandparent who simply
wanted to substitute in as a parent just because of some
emotional need [on] her part.” The court said, “This child needs
permanence. That’s the mandate. I’m going to trust that the
grandparents are acting in the best interest of their child, that
they recognize that adopted children always wonder who their
birth parents are. And we—it’s quite common, [especially] now
with DNA testing, that adopted children will track down their
birth parents and attempt to develop a relationship. [¶] But the
court has to do what’s in the best interest of this small child, not
what’s in the best interest of the parents, and that’s what makes
this call an easy call. [¶] So, therefore, the court finds that it
would be detrimental to the child to be returned to the parents.
The court finds no exceptions to adoption apply.”
The court terminated parental rights. Mother and Father
appeal.
DISCUSSION
I. Bonding Study
Crespo was appointed to evaluate the relationship between
Mother, Father and M.V., and the potential emotional effects on
M.V. if the relationship were permanently severed. The parents
24
contend the court erred when it failed to order a supplemental
bonding study after receiving a nonresponsive evaluation. We
agree.
A. Crespo’s Report
Crespo performed “Psychological Evaluations” on Mother
and Father that consisted of “proctored, remote-site self-
administration of psychological instruments before virtual
interviews were completed before the mother [and] father
underwent direct clinical interviewing on January 8 and
January 11, 2021, respectively.” He had also reviewed
documents pertaining to the dependency proceedings.
1. “Psychological Evaluation” of M.V.
Crespo’s psychological evaluation of M.V. consisted of a
recitation of his interview of Mary V., followed by a description of
two parent visits Crespo had participated in.
a. Interview of Mary V.
Crespo’s interview of Mary V. primarily concerned Mary V.
and the parents; very little of the interview concerned M.V.’s
attachment to her parents or the effect upon her of a loss of her
parental relationships.
Mary V. said she had been M.V.’s primary attachment for
years. She knew M.V. was “mostly attached” to her because even
before the dependency proceedings began, M.V. looked to Mary V.
to get her needs met. Mary V. said “every time” she left the
house, “even if the parents were there . . . [M.V] would be
screaming and pounding the door and didn’t want me to leave.”
This pattern of attachment continued to the present. M.V. had
25
an attachment to her mother and loved her, but when they all
lived together Mother did not give M.V. the attention she desired.
Mary V. said M.V. was “ ‘doing very well’ ” in the
grandparents’ home. Mary V. wanted to adopt M.V. and felt it
would be best for M.V. to remain with her and her husband.
M.V. would have stability and love, and they always met her
needs. Mary V. responded affirmatively when asked if her goal
was to prevent M.V. from returning to her parents.
When Crespo explained the difference between legal
guardianship and open or closed adoption, Mary V. said she and
her husband wanted to adopt M.V. At first she said she probably
preferred a closed adoption, but then said she would choose open
adoption as she would never keep M.V. from her parents. Mary
V. reported the paternal grandfather wanted an open adoption.
According to Mary V., Mother “had a bad soul” and was a
“chronic liar” who “has to embellish every story.” Mary V. did not
trust Mother and did not think M.V. would be safe with her.
Mary V. had not known of Mother’s “on-line prostitution” but
believed Father had. Mary V. believed Mother sold inappropriate
photos of M.V. She had admitted selling nude photos of other
children online and confirmed she had possessed child
pornography. Father was not aware of it until after the fact.
Mary V. did not understand why the parents remained
connected: Father’s hands were not “totally clean,” but Mother
“has some type of hold on him.” Father needed to resolve his
personal issues. Mary V. believed M.V. would be safe with
Father because he paid attention to her, but there was a risk he
would expose her to Mother because he had no boundaries with
Mother.
26
b. Parent Visits
The remainder of the psychological evaluation of M.V. was
a description of Crespo’s involvement during a visit between M.V.
and each parent. Mary V. held her phone during the visits while
Crespo participated by video call.
Crespo saw M.V. and Father eating breakfast. Mary V.
introduced Crespo to M.V. as someone working for the judge.
Crespo asked to speak with M.V. privately, and M.V. was placed
in the dining room. M.V. said she lived with “[M]ommy-nana and
Papa,” who was not her father. Her “real papa” was Father, but
she had to call him “Papa” rather than his first name.
This was apparently Crespo’s entire private interaction
with M.V., because M.V. returned to Mary V. Then, M.V. said
she lived with Mary V. because “ ‘my mommy bit me, and I lived
with my daddy, well not [just] my daddy, but my daddy didn’t
stop my mommy from doing bad things . . . she was biting
me . . . .’ ” M.V. confirmed she wanted to live with her
grandparents and continue visiting her parents. M.V. would not
sit still, and Crespo ended his observation.
The following day, Crespo appeared by video call while
Mary V. monitored M.V.’s outdoor visit with Mother. Mother sat
on a blanket and gave M.V. breakfast. When Crespo greeted
M.V., she climbed behind Mother to hide from the camera.
Crespo suggested M.V. tell Mother about the previous day’s visit.
Mother, noticing M.V. was hiding, rubbed her back and told her it
was okay.
M.V. refused to speak about the visit with Father. She
turned her back to the camera and spoke quietly, telling Mother
she had told Crespo about the bad things Mother was doing. She
would not say anything further. Mother reported to Crespo that
27
M.V. had whispered to her that she had brought up the time
Mother bit her and Father did not do anything about it, “and
that’s why she is not with us.” Crespo, forgetting that M.V. had
told him this the day before, told Mother to tell M.V. he did not
recall this statement.5 M.V. said Crespo did not remember
because she did not want Father to hear it.
Crespo asked Mother to ask M.V. if there was anything she
wanted to discuss while Crespo was on the video call. M.V. asked
Mother if she had done anything else. Mother encouraged M.V.
to speak, and M.V. said, “[Y]ou were on the phone.”6 Mother
“asked [M.V.] to say, ‘what else I did,’ to which [M.V.] shook her
head.”
When Mother tried to step away to speak with Crespo,
M.V. resisted, became clingy, and cried. Crespo and Mother
spoke briefly about M.V.’s reports. Mother told Crespo that M.V.
was at the moment “drying her eyes because she doesn’t like to be
taken away from me,” and she returned to M.V. M.V. hid behind
Mary V., then walked over to the blanket where Mother had sat
down. This concluded Crespo’s observations.
5 Crespo later acknowledged in his report that he had “a
memory lapse” and that M.V. had in fact told him the day before
that Mother had bitten her, but at the time he questioned both
Mother and Mary V. about what he considered M.V.’s “misreport
of her conversation” with him.
6 Mary V. told Crespo that M.V. had in the past stated that
Mother was “on the phone” because on the day of the raid M.V.
was shown a photograph of a child’s private parts and identified
the photograph as depicting her.
28
2. Psychological Evaluations of the Parents
The majority of Crespo’s report concerned his observations
and psychological evaluations of the parents. He described the
parents’ physical appearances, calling Mother “moderately obese”
and Father “chubby” with crooked teeth. He assessed their
intellectual functioning. He performed psychological testing on
them, directing them to complete a personality inventory, a child
abuse potential inventory, and a life history questionnaire; and
then he reported results from those testing and the disorders or
traits with which those results were related. He took an
extensive personal history from each parent. With respect to
Mother, Crespo reported on abuse Mother suffered as a child, her
relationship with her parents, her education, her weight, her
sexual history, her relationship with and marriage to Father, and
her history of suicidal ideation and attempts. He inquired into
the events that led to the dependency proceedings and from there
further delved into Mother’s sexual preferences, specifically
following up by asking Mother to tell him more about her
preference for a particular sexual practice. There is no indication
that he spoke with Mother about M.V.’s attachment to her or
their relationship.
With respect to Father, Crespo reported on his affect, his
childhood, his family unit, his education, his use of drugs, when
he began to masturbate, the pornography he viewed as a
teenager, when he became sexually active, his relationship with
Mother and how it changed after M.V.’s birth, and who cared for
M.V. before the dependency proceedings began. Crespo inquired
about the events that led to the dependency proceedings, and
then asked Father for information about the parents’ sexual
practices and partners and their open marriage. There is no
29
indication that Crespo questioned Father about the nature or
significance of M.V.’s relationship with either parent. He did,
however, want to know whether Father thought adoption or legal
guardianship would be better.
3. Evaluations, Opinions, and Recommendations
In Crespo’s evaluations, opinions, and recommendations, he
included one sentence concerning M.V.’s attachment to her
parents: he said his observation of the visits “suggested that the
minor has some attachment to her mother, and that at the very
least, feels comfortable in their presence.” “However,” Crespo
then wrote, “the minor’s history as reported by her paternal
grandmother and the father, is such that she was mainly in the
care of paternal relatives and may be most attached to her
grandmother.”
Crespo’s remaining five paragraphs of opinions did not
pertain to the importance to M.V. of her relationships with her
parents or the consequences for her if the relationships were
severed. Instead, he opined that returning M.V. to Mother’s care
“may pose a risk” to her; Father posed less risk to M.V. because
he admitted his difficulty separating from Mother despite his
awareness of her conduct; and Mother’s psychological problems
were so chronic that “it is unlikely that significant changes in her
associated chronic poor judgment” would occur in the near future.
Crespo advocated for adoption by the paternal
grandparents, contending it would be in M.V.’s best interest in
light of the following considerations: Mary V. had been M.V.’s
“primary attachment figure since before the incipience of [the]
instant matter”; Mary V. was protective of M.V.; the “salacious
nature of the allegations that brought the minor to the court
attention”; the fact that M.V.’s attachment to the grandmother
30
had “likely intensified” over the past two years; the parents were
unable to provide for her (neither had an adequate home); and
the parents did not take responsibility for their actions.
Crespo opined adoption would “essentially keep[] [M.V.’s]
relationship to her parents in place” in a safe manner and would
prevent her from losing her parents, because the grandparents
were willing to have an open adoption. In Crespo’s view, a legal
guardianship could raise false hopes of reunification with the
parents that would introduce uncertainty and/or conflict between
the parents and the paternal relatives; this would create “a risk
of more emotional problems in the minor that would otherwise be
avoided through adoption by the grandparents.”
B. Father’s Counsel’s Request for Supplemental Report
On March 10, 2021, the date originally set for the .26
hearing, Father’s counsel advised the court that Crespo’s report
“didn’t do a few things that we had asked of it.” Counsel pointed
out Crespo had said he was going to do the assessment in person,
but he did not. Additionally, Crespo had “observed a few minutes
only of virtually [sic] a visit between the parents and the child.”
Counsel asked for a supplemental report or that Crespo “actually
observe, socially-distance[d], a visit between the parents and the
children [sic].”
Father’s counsel noted Crespo believed an adoption would
be open and the grandparents would not cut off M.V.’s contact
with the parents. This, she argued, “was not requested to be part
of the assessment and it’s not a valid point to consider in the
[Evidence Code section 730 evaluation (730)] or in the .26 hearing
given [that] legally you can’t consider a promise that a caretaker
is making to keep contact.” Counsel concluded, “So I would ask
Dr. Crespo address what we requested, which was what would
31
the impact be on [M.V.] if the parental relationship was
completely severed and that he actually do in-person
observations of visits because based on my review of the 730, a
phone was h[e]ld up for him to watch briefly for a few minutes of
an interaction between the parents and the child, which to me is
not a sufficient bonding study.” Mother joined in Father’s
request.
The court agreed face-to-face observation was ideal, but
said it would not dictate to Crespo how to do his analysis. The
court continued, “Just because we don’t agree with the outcome of
a 730 doesn’t mean that we have—should have her re-evaluated.
Whatever deficiencies that may be in the 730 can be argued. And
so I’m not going to order that we send it back to Dr. Crespo.”
C. Analysis
Bonding studies supply expert opinion about the
psychological importance to the child of the relationship with his
or her parent(s) to assist the court in determining whether “the
child would benefit from continuing the relationship.” (§ 366.26,
subd. (c)(1)(B)(i); see Caden C., supra, 11 Cal.5th at pp. 632–633.)
They are particularly informative in cases like Caden C., in
which the child was eight or nine years old and had a complex
parental relationship with both positive and negative aspects.
(Caden C., at pp. 626–627, 634–635.) While “[t]here is no
requirement in statutory or case law that a court must secure a
bonding study as a condition precedent to” terminating parental
rights (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339
(Lorenzo C.)), the California Supreme Court has instructed
juvenile courts to “seriously consider, where requested and
appropriate, allowing for a bonding study or other relevant expert
testimony.” (Caden C., at p. 633, fn. 4.)
32
As the juvenile court implicitly recognized when it ordered
the study, this is exactly the kind of case in which a bonding
study is valuable. M.V. was seven years old when parental rights
were terminated. Although she had been out of her parents’
custody for several years, both parents remained significantly
involved in her life and she had maintained relationships with
them: M.V. saw each parent three times per week; Mother’s visits
tended to run an hour to hour and a half each, while Father spent
nine or more hours with her every week. There were many
indications in the record that M.V. was bonded with her parents,
loved them, missed them, and wished to maintain her
relationship with them: she repeatedly expressed a desire to live
with them and to continue her relationship with them. M.V. was
upset and sometimes cried when she was unable to visit with
them in person. There was evidence she experienced distress
when separating from her parents and questioned why they could
not live together. M.V. also appeared to have experienced
ongoing emotional difficulties concerning separation, healthy
bonding and attachment, and she had required mental health
services to address her trauma and regulation of her emotional
responses, indicating she may have particular emotional needs
that inform the psychological importance of the parental
relationships to her.
Additionally, this was not a case where the significance, or
lack of significance, of the child’s relationship with the parents
was clear from the record. Although DCFS regularly reported
M.V.’s statements about her parents and observed that she and
her parents were bonded, there was not a great deal of
independently obtained information in the reports about the
quality of her interactions with them or the importance of these
33
relationships to her. From the start of these extremely troubling,
high-conflict proceedings, the adults in M.V.’s life gave difficult-
to-reconcile accounts of her behavior, attachments, and
relationships that tended to align with their preferences for her
ultimate placement. All these considerations abundantly
justified the court’s initial conclusion that a bonding study was
appropriate in this complex case.
Unfortunately, the evaluator appears to have profoundly
misconceived his role. “The proper factors the study, at a
minimum, should have considered, recognizing that rarely do
parent-child relationships conform to an entirely consistent
pattern, are set out in Caden: 1) the age of the child; 2) the
portion of the child’s life spent in the parent’s custody; 3) the
positive or negative effect of interaction between the parent and
the child; and (4) the child’s particular needs.” (In re M.G. (2022)
80 Cal.App.5th 836, 850 (M.G.).) Crespo did not analyze these
factors, nor did he analyze the nature of M.V.’s attachment to her
parents or the effect that severing it would have on her. He
failed to observe visits between M.V. and her parents, choosing to
use the two visits he briefly witnessed to question M.V. and
others rather than watching M.V.’s interactions with her parents.
M.V. had little to no privacy when questioned by Crespo during
her visits, and he did not speak with her on any other occasion.
Instead of studying M.V.’s relationship with her parents
and the potential consequences to her of its loss, Crespo assessed
the parents in extreme detail in ways that bore no discernable
connection to the psychological importance to M.V. of her
relationship with her parents. He performed psychological
evaluations of the parents, assessed their fitness to resume
34
custody, and rendered opinions on the advisability of certain
permanent placement possibilities.
Crespo’s report reflected this extreme focus on the parents
and the inadequacy of his information gathering on the subjects
the court asked him to evaluate. Crespo barely paid attention to
M.V. in his report. His “psychological evaluation” of her
consisted of a recitation of his interview of Mary V. and a
description of his participation in M.V.’s visits with her parents.
Although M.V. had told him she wanted to continue visiting her
parents, Crespo merely said his observation of the parents’ visits
“suggested that the minor has some attachment to her mother,
and that at the very least, feels comfortable in their presence.”
Instead of analyzing, or even describing, M.V.’s relationships
with her parents and the importance of those relationships to
her, Crespo just reported that from what Mary V. and Father had
told him, it appeared M.V. had been cared for mostly by paternal
relatives and “may be most attached to her grandmother.”
Neither of those pieces of information is relevant to the analysis
the court requested, or to the question ultimately before the
court. (See In re L.A.-O. (2021) 73 Cal.App.5th 197, 209 [day-to-
day contact is typical, but not required, for a significant
emotional attachment to exist]; In re J.D. (2021) 70 Cal.App.5th
833, 859 [parent need not prove a child’s attachment to that
parent is their primary bond; the exception can apply when a
child has bonded to an alternative caretaker].)
Crespo also opined on topics beyond the scope of the
assigned assessment, such as the parents’ inability to provide for
M.V.’s needs; the likelihood they could regain custody; the risks
they could pose to M.V. if she were in their custody; his lack of
optimism that the parents, especially Mother, would improve
35
psychologically in the near future; and the possibility that M.V.
was more attached to paternal grandmother than to Mother. He
offered unsolicited opinions about the best permanent plan for
M.V., opining she could not safely be placed in the parents’
custody (which, per Caden C., supra, 11 Cal.5th at page 630, was
not an available option), and asserting adoption by the paternal
grandparents rather than a legal guardianship with them would
be in her best interest.
Crespo’s preference for adoption over guardianship rested
on the legally untenable and factually questionable idea that
adoption would leave M.V.’s relationship with her parents
unchanged because the grandparents would permit continued
contact with the parents. This is entirely the opposite of the legal
effect of adoption. (Caden C., supra, 11 Cal.5th at p. 633
[“Because terminating parental rights eliminates any legal basis
for the parent or child to maintain the relationship, courts must
assume that terminating parental rights terminates the
relationship”].) Crespo’s belief—that adoption would preserve
M.V.’s status quo more than guardianship would—prompted him
to discount the potential negative impacts of adoption to the point
that he did not even describe them. Instead, he acknowledged
adoption caused long term, and possibly also short term,
“negative consequences,” but he assumed that adoption would
prevent M.V. from losing her parents and thus being vulnerable
to those unidentified negative consequences. As a result of
Crespo’s assumption that M.V.’s relationships with her parents
would be undisturbed by adoption, his report entirely failed to
address the consequences to M.V. if her relationships with her
parents were terminated.
36
In light of Crespo’s observational failures and his
nonresponsive report, both parents asked the court to direct him
to conduct the in-person observations he had been expected to
perform and to submit a new report assessing M.V.’s bond to
them and the anticipated consequences to her if those
relationships were severed. The court declined to do so, stating
any issues could be addressed in argument. This was an abuse of
discretion. (Lorenzo C., supra, 54 Cal.App.4th at p. 1341.) By
ordering the bonding study, the court had indicated its well-
founded conclusion that it would benefit from expert evidence
and additional information in performing the complex, factually
nuanced determination whether M.V.’s relationships with her
parents were so significant that it would be detrimental to her to
sever them. The inadequate report did not supply that
information, and there is no indication in the record on appeal of
any change in circumstances after the bonding study was ordered
that could have obviated the need for an assessment.
Moreover, ordering a supplemental bonding study would
not have delayed the permanency hearing. At the same hearing
where the parents requested a supplemental study, the court
continued the .26 hearing for three months for ICWA compliance.
As Crespo had taken approximately two months to submit his
initial report, there is no reason to believe three months would
not have been sufficient for him or another expert to perform a
proper bonding study. (Cf. In re Richard C. (1998)
68 Cal.App.4th 1191, 1197 [not an abuse of discretion to deny a
belated request for a bonding study that would delay a child’s
permanent placement].) Finally, contrary to the court’s
statement, argument was not an adequate vehicle for addressing
the gross deficiencies in the report. No amount of argument
37
could supply the observations and expert analysis a true bonding
study would have provided. For all these reasons, under the very
specific circumstances of this case, we conclude it was an abuse of
discretion not to order a supplemental bonding study in response
to Crespo’s inadequate, nonresponsive assessment.
II. Termination of Parental Rights
The parents contend the court erred when it relied upon
Crespo’s report to determine that the beneficial parental
relationship exception to the termination of parental rights did
not apply. (§ 366.26, subd. (c)(1)(B)(i).) It appears the court
failed to properly evaluate whether M.V. had a substantial,
positive emotional relationship with her parents and that it
relied on improper considerations when it attempted to
determine whether termination of the parental relationship
would be detrimental to her.
A. Applicable Law and Standard of Review
“To guide the court in selecting the most suitable
permanent arrangement” for a dependent child who cannot be
returned to a parent’s care, section 366.26 “lists plans in order of
preference and provides a detailed procedure for choosing among
them.” (Caden C., supra, 11 Cal.5th at p. 630; see § 366.26,
subd. (b).) At the permanency planning hearing, if the court finds
that the child is likely to be adopted and that “there has been a
previous determination that reunification services be terminated,
then the court shall terminate parental rights to allow for
adoption. But if the parent shows that termination would be
detrimental to the child for at least one specifically enumerated
reason, the court should decline to terminate parental rights and
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select another permanent plan.” (Caden C., at pp. 630–631; see
§ 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A).)
One of the exceptions, the beneficial parental relationship
exception, applies when (1) “the parent has regularly visited with
the child”; (2) “the child would benefit from continuing the
relationship”; and (3) “terminating the relationship would be
detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 629;
see § 366.26, subd. (c)(1)(B)(i).) “The first element—regular
visitation and contact—is straightforward. The question is just
whether ‘parents visit consistently,’ taking into account ‘the
extent permitted by court orders.’ ” (Caden C., at p. 632.)
To establish the second element, that the child would
benefit from continuing the parental relationship, the parent
must show 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.” (Caden
C., supra, 11 Cal.5th at p. 636.) The “focus is the child,” and “the
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.’ ” (Id. at
p. 632.)
“Concerning the third element—whether ‘termination
would be detrimental to the child due to’ the relationship—the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption.” (Caden C., supra,
11 Cal.5th at p. 633.) “When it weighs whether termination
would be detrimental, the court is not comparing the parent’s
attributes as custodial caregiver relative to those of any potential
adoptive parent(s). . . . Accordingly, courts should not look to
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whether the parent can provide a home for the child.” (Id. at
p. 634.) “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.)
The parent bears the burden to show the statutory
exception applies. (In re Derek W. (1999) 73 Cal.App.4th
823, 826.) When a parent meets that burden, the beneficial
parental relationship 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.)
We review the court’s findings using a hybrid approach: for
the first two elements, which require factual findings (parental
visitation and the child’s emotional attachment), we apply the
substantial evidence standard of review; and for the court’s
weighing of the relative harms and benefits of terminating
parental rights, we use the abuse of discretion standard. (Caden
C., supra, 11 Cal.5th at pp. 639–640.)
B. The Juvenile Court Failed to Properly Analyze the
Second and Third Elements of the Caden C. Analysis
The first element of the exception, regular visitation, is not
in dispute; by all accounts the parents maintained regular
visitation and contact with M.V.
1. Element Two
On the second element, whether the child would benefit
from continuing the relationship, “it is critical for the juvenile
court at the second step of the analysis to consider the evidence
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showing whether the parent’s actions or inactions ‘continued or
developed a significant, positive, emotional attachment from child
to parent.’ ” (In re B.D. (2021) 66 Cal.App.5th 1218, 1230.) It
does not appear the court properly examined the nature of the
parent-child relationship to evaluate whether M.V. had a
significant, positive, emotional attachment with her parents.
The court’s analysis of this element was cursory. The court
acknowledged M.V. wanted to remain in contact with her
parents, wished to live with both her parents and her
grandparents, and would be sad if she could not see her parents
again. Then, the court began to perform the weighing involved in
the third element before it caught itself and returned to element
two: “In balancing this, the court put significant weight on—and I
must say that—so there’s really not a question as to whether or
not there’s a bond. There clearly is a bond with the child and
particularly the father, it appears.” Then the court moved on to
analyzing the third element.
But the second element is not, “Is there a bond?” The
question is whether M.V. had a “substantial, positive, emotional
attachment to the parent[s]—the kind of attachment implying
that the child would benefit from continuing the relationship.”
(Caden C., supra, 11 Cal.5th at p. 636.) The court does not
appear to have evaluated the quality of the parent-child
relationships or to have considered factors such as M.V.’s age,
how much of her life she spent in her parents’ custody, the
positive or negative effects of interaction with the parents, and
M.V.’s particular needs. (Id. at p. 632.) This was error.
2. Element Three
The court’s lack of analysis of the second element left it
unable to perform the weighing required by the third element,
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whether it would be detrimental to sever M.V.’s relationship with
her parents. By reducing element two to “a bond” rather than
examining the relationship, the court could not properly assess
“whether losing the relationship with the parent would harm the
child to an extent not outweighed, on balance, by the security of a
new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.)
Additionally, the court considered improper factors when it
evaluated the third element. The court stated that it “gave much
weight to Dr. Crespo’s analysis in this case,” and it adopted
Crespo’s analysis that a guardianship would be more disruptive
to M.V. than adoption would be. Specifically, the court
“embrace[d]” Crespo’s “sentiment” that “legal guardianship may
create a false hope for the parents to eventually regain custody of
the minor and, hence, introduce uncertainty and/or conflict
among the parents and the paternal relatives[,] thereby creating
a risk of more emotional problems in the child that would
otherwise be avoided through adoption by the parents [sic].” The
court also “trust[ed] that the grandparents are acting in the best
interest of their child, that they recognize that adopted children
always wonder who their birth parents are. And we—it’s quite
common, [especially] now with DNA testing, that adopted
children will track down their birth parents and attempt to
develop a relationship.”
This analysis was improper. First, it was not a
determination of “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,”
and whether terminating M.V.’s attachment to her parents
would, on balance, be detrimental to her. (Caden C., supra,
11 Cal.5th at pp. 633, 636; see § 366.26, subd. (c)(1)(B)(i).)
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Second, to the extent the court relied on the expectation of
continued contact between M.V. and the parents after adoption,
this was an impermissible consideration. “Because terminating
parental rights eliminates any legal basis for the parent or child
to maintain the relationship, courts must assume that
terminating parental rights terminates the relationship.” (Caden
C., at p. 633; see also In re S.B. (2008) 164 Cal.App.4th 289, 300
[“We do not believe a parent should be deprived of a legal
relationship with his or her child on the basis of an unenforceable
promise of future visitation by the child’s prospective adoptive
parents”].)
Third, the court’s duty was to determine whether there was
a “compelling reason for determining that termination [of
parental rights] would be detrimental” to M.V. (§ 366.26, subd.
(c)(1)(B)), not to compare the pros and cons of adoption and legal
guardianship and then choose between them. Guardianship is
not to be considered as a permanent plan unless and until
adoption, the statutorily preferred option, is not appropriate.
“Adoption is the Legislature’s preferred permanent plan.
[Citation.] ‘ “Only if adoption is not possible, or if there are
countervailing circumstances, or if it is not in the child’s best
interests are other, less permanent plans, such as guardianship
or long-term foster care considered.” ’ ” (In re D.M. (2012)
205 Cal.App.4th 283, 290.) “When a juvenile court bases its
decision to terminate parental rights on improper factors, the []
court abuses its discretion.” (M.G., supra, 80 Cal.App.5th at
p 852.)
By failing to determine whether M.V. had a substantial,
positive attachment to her parents, and by relying on improper
factors in assessing detriment, the court failed to perform the
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appropriate analysis when determining if the beneficial parental
relationship exception applied. Therefore, we reverse the
juvenile court’s order and direct the court to conduct a proper
analysis under the Caden C. framework once it has received a
bonding study.
DISPOSITION
The order terminating parental rights is vacated and the
matter remanded so a bonding study may be prepared and a new
section 366.26 hearing conducted.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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