In re Christopher A. CA2/7 ( 2022 )

Filed 12/23/22 In re Christopher A. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CHRISTOPHER A. et al., B319994
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 18CCJP01243)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SELENE M. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant Selene M.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Christopher A.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Selene M. (Mother) appeals from the juvenile court’s order
terminating her parental rights over six-year-old Ivan W. and
eight-year-old Christopher A., Jr., under Welfare and Institutions
Code section 366.26.1 Christopher A., Sr. (Father), appeals from
the court’s order terminating his parental rights over
Christopher.2
Mother and Father contend the juvenile court abused its
discretion in finding the beneficial parental relationship
exception to termination of parental rights did not apply. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition and Detention
In February 2018 the Los Angeles County Department of
Children and Family Services (the Department) was notified
Mother’s 15-year-old son R.M. made threats against other high
1 Further statutory references are to the Welfare and
Institutions Code.
2 Ivan’s father is not a party to the appeal.
2
school students to execute a mass school shooting. Following an
investigation of the family’s home, the Department filed a
dependency petition on behalf of then-three-year-old Christopher,
then-22-month-old Ivan (Christopher’s half-brother), and their
half-siblings R.M. and Selena M.3 The petition alleged Mother’s
home was filthy, unsanitary, and hazardous, and Father knew of
the condition of Mother’s home and failed to protect Christopher.4
The petition also alleged Mother had mental health issues
including posttraumatic stress disorder and major depression,
which rendered Mother incapable of providing regular care for
the children and placed them at risk of serious physical harm.5
At the February 27, 2018 detention hearing, the juvenile court
detained Ivan from Mother and Christopher from Mother and
Father.
On March 15, 2018 the Department filed a first amended
petition that also alleged Father had a history of substance abuse
and abused alcohol, and he had mental and emotional problems,
including posttraumatic stress disorder. The amended petition
alleged further Mother and Ivan’s father, Ivan W., Sr., had a
3 Mother’s appeal concerns only Ivan and Christopher, and
Father’s appeal concerns only Christopher.
4 The social worker observed in Mother’s home human and
animal feces, trash, moldy food, piles of clothes, dirty diapers,
broken glass and objects on the floors, and standing water, food,
and mold in the kitchen sink.
5 The petition further alleged Mother emotionally abused
R.M. by blaming him for the condition of the home, failed to
ensure R.M. received treatment for his mental health condition,
and failed to address R.M.’s mass shooting ideation.
3
history of domestic violence and engaged in violent altercations in
Ivan’s presence.
B. The Jurisdiction and Disposition Hearing
At the March 23, 2018 combined jurisdiction and
disposition hearing, the juvenile court sustained the allegations
in the first amended petition concerning Mother’s unsanitary
home, mental health issues, failure to ensure mental health
treatment for R.M., and domestic violence with Ivan W., Sr., and
Father’s substance abuse and failure to protect Christopher from
Mother’s unsanitary home.
The court declared the children dependents of the court and
removed Christopher and Ivan from Mother’s physical custody
and Christopher from Father’s physical custody. The court
granted Mother and Father family reunification services. The
court ordered unmonitored visitation for Mother in a neutral
setting and unmonitored visits for Father “once and [for] as long
as he is testing clean.” (Boldface omitted.) The court’s order
allowed Mother and Father two to three visits per week for two to
three hours per visit.
C. The Review Period (March 2018 to October 2019)
In August 2018 the court ordered Father’s visits to be
monitored after Father missed several scheduled drug tests. As
of the September 21, 2018 status report, Christopher and Ivan
had been placed together in a foster home and were doing well.
Ivan was previously diagnosed with gross developmental delay
and was not meeting his developmental milestones. With the
help of his caregivers, Ivan had become more verbal and started
4
to walk independently, although he remained developmentally
delayed by about a year.
Mother did not visit Christopher or Ivan in June 2018
because she went to visit family in Florida. Mother stated she
“‘needed a break”’ and was “taking care of herself.” In
January 2019 the social worker reported Mother had one
unmonitored visit with Christopher and Ivan in November 2018
and three visits in December. Mother did not visit Christopher or
Ivan in January 2019. Mother stated she “‘was taking a month
off from visiting because she need[ed] a break.’” Mother reported
she went to Colorado for a ski trip in January 2019, visited family
out of state, and had taken up surfing because she enjoyed
having time to care for herself, although she missed the children.
Mother visited Christopher and Ivan once in February 2019. At
that time, Mother was pregnant with her ninth child.
The social worker reported in August 2019 that Mother had
started to visit Christopher and Ivan every Sunday. Mother saw
Christopher and Ivan on September 4 after she gave birth to
Gabriela S,6 but Mother stated she could not visit the children
again until November because she was unable to drive following
her Cesarean section. At an October 7 home visit, the social
worker “observed Mother’s history of unresolved hoarding
continues as the residence appears cluttered.”
At the October 31, 2019 18-month review hearing (§ 366.22,
subd. (a)), the juvenile court found Mother and Father were not
in substantial compliance with their case plans and terminated
their reunification services. The court set a selection and
6 The juvenile court detained Gabriela from Mother on
October 21, 2019.
5
implementation hearing (§ 366.26),7 which was later continued to
April 12, 2022.
Mother timely appealed from the order terminating her
family reunification services as to Ivan, and we affirmed. (In re
Ivan W. (Dec. 24, 2020, B302034) [nonpub. opn.].)
D. The Status Review and Section 366.26 Reports
In February 2020 the Department reported Mother had
been visiting Ivan regularly every Sunday for two hours, but she
had been inconsistently visiting Christopher. Father had regular
visits with Christopher once each week, during which his contact
with Christopher was “appropriate but minimal.” The monitor
reported Father excused himself for five to 20 minutes at a time,
requested visits end early, attempted to discuss the case with the
monitor, and made disparaging comments about the social
worker.
From March to June 2020 Mother did not visit the children
due to unspecified health issues and the COVID-19 pandemic.
Mother did not feel comfortable using public transportation to
visit for fear of infecting the children. Christopher and Ivan
appeared to be closely bonded with their caregivers and with each
other.
As of October 2020 Father was having 90-minute visits
twice a month with Christopher. The Department reported the
visits “go well and without incident.” Father generally brought
7 The juvenile court set a selection and implementation
hearing as to Christopher at the October 31, 2019 18-month
review hearing, and as to Ivan on December 19, 2019 after the
court terminated Ivan W., Sr.’s, family reunification services.
6
expensive gifts to the visits, and Christopher became upset if
Father failed to bring a present. Father also engaged in weekly
video chats with Christopher, although Christopher was easily
distracted due to his young age. Christopher stated Father told
him he would be going home to live with Father, along with Ivan
and Gabriella.
In March 2021 the Department reported Christopher was
“always excited” to visit with Father. Father provided
Christopher with attention and “sweet treats.” However, Father
did not admonish Christopher after the social worker informed
Father that Christopher was becoming more aggressive and had
bitten Ivan. Father completed Christopher’s homework for him,
then told Christopher “begrudgingly that their time together is
for fun.” Father did not want to punish Christopher for his
misbehavior and refusal to complete his homework.
As of August 2021 Father was having three-hour visits
with Christopher once per week.8 Father brought food or snacks
to each visit and typically greeted Christopher with a hug.
Christopher “usually appear[ed] to be happy” to see Father and
was excited to see what Father brought for him. On
Christopher’s birthday, Father brought him a cake and some
money. During visits Father watched Christopher ride his
scooter or play on the playground at the park. Father sometimes
brought games the two played together. During one visit while
Father was helping Christopher with his homework, Father’s
8 Between March and June 2021, Father was visiting
Christopher twice a week for three hours each visit. However,
Father reduced the visits to once a week starting in June because
of the long drive from his home and increase in gas prices.
7
eyes teared up and his voice cracked as he told Christopher “he
wanted him to do well in school and that [Father] did not have a
father.” Christopher asked Father if he was crying and then gave
him a hug. Father continued to have one three-hour visit each
week through the end of the year, which went well.
On August 19, 2021 Mother was granted one overnight
weekly visit with the children. She had overnight visits with the
children from Saturday to Sunday once or twice a month. The
children were happy to see her. Mother also had video chats with
the children once or twice per week. Mother had only four
overnight visits with the children between August 19 and
October 9, 2021. On the October 9 visit, Ivan told the caregivers
he did not want to visit Mother. From October 25 until the end of
November, Mother had only one visit after cancelling due to
sickness, needing to study for an exam, or lacking money for gas.
As of December 2021 Mother’s visits continued to be
sporadic, with Mother visiting the children once or twice per
month. The social worker observed safety concerns in Mother’s
home, including that the living room was filled with cages for
Mother’s more than 15 guinea pigs, which were breeding in
captivity. The Department reported Christopher and Ivan’s
caregivers were providing a safe and stable home environment
with the basic necessities of life. Christopher expressed he would
like to live with his siblings either with Mother or with his
caregivers. Ivan was unable to make a statement. The children
appeared happy with their caregivers.
Starting on January 4, 2022, Mother began having weekly
overnight visits. However, the Department discovered during an
unannounced visit on January 29 that Mother was not home and
had left the children in the apparent care of adult sibling R.M.,
8
who would not answer the door. On March 12 Ivan refused to go
from the caregivers’ car to Mother’s car for an overnight visit,
stating, “‘I don’t want to go.’” Mother told Ivan “she would ‘get in
trouble with the court’” if Ivan did not go with her, and
eventually Ivan agreed to go. On March 19 Ivan again refused to
go for an overnight visit with Mother. Christopher initially
stated he did not want to go to the visit if Ivan would not be
there. Ultimately, Christopher went to the visit with Mother,
and Ivan stayed with his caretakers. When Mother returned
with Christopher the next day, Mother kissed Ivan, who
responded, “‘[N]o, I’m not going’” (apparently thinking Mother
was picking him up), and he began to scream.
According to the April 6, 2022 last minute information for
the court, during the social worker’s unannounced visits to
Mother’s home, Mother “reports extreme fatigue, feeling
overwhelmed by caring for the children for one day, [and]
difficulty concentrating, is slow to respond to the children’s
requests for food, and directs [R.M.] to assist with caretaking.”
Further, Mother told the social worker “the court is ‘making her
do visits.’”
The report also stated that Father had consistent three-
hour visits with Christopher once per week, during which Father
“generally walk[ed] around the playground with [Christopher]
and provide[d] snacks.” Father continued to discuss the case
with Christopher and cried when telling Christopher he was “‘sad
[Christopher’s] not home.’” On one occasion, the social worker
overheard Christopher tell Father, “‘when you cry I sometimes
get embarrassed. I don’t know why but I get embarrassed.’”
When the Department cancelled visits, Father briefly spoke to
Christopher by telephone or video chat, during which
9
“Christopher consistently [was] focused on asking [Father] what
[he was] bringing to the next visit for him.” The Department
reported Father “has never engaged [Christopher] in any
meaningful conversation about his well-being, interpersonal
relationships, school progress or acting out behaviors in the
home.” Christopher had begun misbehaving with his caregivers.
When asked to do his homework, Christopher refused and made
aggressive statements to his caregivers, such as “‘Fuck you
Bitch.’” Christopher also randomly made statements such as “‘the
house is on fire.’” The social worker stated Father “has never
engaged the resource parents in any effort to cooperatively
parent the child and resolve his behaviors of concern.”
E. The Selection and Implementation Hearing
On April 12, 2022 the juvenile court held the selection and
implementation hearing.9 The court heard testimony from
Father and admitted into evidence the Department’s reports
since October 2021 and two bonding studies: one conducted by
Dr. Chuck Leeb regarding the children’s attachment to Mother,10
and another conducted by Dr. Nancy Kaser-Boyd regarding
Christopher’s attachment to Father.
9 The juvenile court also heard and denied Mother’s and
Father’s section 388 petitions. The section 388 petitions are not
at issue in this appeal.
10 The juvenile court granted Father’s motion in limine to
exclude Dr. Leeb’s opinions as to the bond between Father and
Christopher.
10
1. Dr. Leeb’s report
Dr. Leeb, a clinical and forensic psychologist, observed
visits between Mother and the children on June 14 and July 27,
2021. Christopher hugged Mother, sought out Mother’s attention
and company, chose to stand or sit next to Mother, and was
tearful when Mother left. Ivan sought out Mother’s attention and
chose to stand or sit next to Mother. In an August 9, 2021 report,
Dr. Leeb concluded Mother had a “good” bond with both children,
but placement of the children with Mother would not be in their
best interest because of Mother’s mental health issues and poor
insight. Dr. Leeb opined further the bond between Christopher
and Ivan was “very strong” and recommended “in the strongest
terms that these children be kept together” because “there is a
very high probability of severe emotional repercussion for both
children” if Christopher and Ivan are separated.
2. Dr. Kaser-Boyd’s report
Dr. Kaser-Boyd, a clinical and forensic psychologist,
conducted a study of the bond between Father and Christopher.
Dr. Kaser-Boyd reviewed the Department’s January 12, 2021 and
January 4, 2022 reports, conducted a forensic psychological
interview of Father, and observed visits between Father and
Christopher on three occasions. During the first visit on
December 22, 2021, which took place in Dr. Kaser-Boyd’s office,
Father brought presents and games for Christopher. Dr. Kaser-
Boyd observed, “Christopher is very comfortable with his father.
There wasn’t overt affection, but there was a lot of interaction.”
During a January 5, 2022 visit at the park, Christopher seemed
happy. Father brought toys, games, and food for Christopher.
Father and Christopher played together, and Father gave
11
Christopher “rule-based” instruction on the game and directed
Christopher about cleaning up. During the third visit on January
12, 2022, again at Dr. Kaser-Boyd’s office, Father brought toys,
games, and snack food. Dr. Kaser-Boyd interviewed Christopher,
who stated he would like overnight visits with Father but not if it
meant not having overnight visits with Mother and his siblings.
When asked by Dr. Kaser-Boyd whether he wanted to live with
Father, Christopher responded he wanted “‘a couple of overnights
[with Father] before that.’” Christopher stated as to whether he
liked living with his caregivers, “‘It’s OK.’”
Dr. Kaser-Boyd concluded Father “showed good energy to
connect to Christopher” and “Christopher appeared to be happy
to see his father and happy throughout the visits.” Dr. Kaser-
Boyd did not “observe much physical affection” between Father
and Christopher, but “they were clearly engaged with each[ ]
other.” Christopher referred to Father as “‘Dad’” and approached
Father “when he had questions or when he was hungry.”
Dr. Kaser-Boyd opined Christopher “clearly exhibited a
connection” to Father and “it would be a loss to Christopher, Jr.,
to be removed from a legal relationship with his father, i.e., a
clear detriment even though the Department is not convinced
that he is consistently sober.”
3. Father’s testimony
Father testified he had made over 200 visits with
Christopher during the dependency case. Father had not missed
any visits, other than due to the COVID-19 pandemic. Father
usually had a video chat with Christopher on the Monday before
the week’s visit for Christopher to say what kind of snacks to
bring to the visit. Father also brought games, toys, and books to
12
the visits. If Christopher brought homework to the visit, Father
did the homework for him. The caregiver or social worker would
inform Father about Christopher’s medical needs. Father
encouraged Christopher to do well in school and behave and
follow the rules of the caregivers. Father tried to teach
Christopher how to fish, to ride a skateboard, and “to be a good
person and not to fight against bullies.”
Christopher hugged and kissed Father at the start and end
of each visit. Father observed Christopher’s hobbies were
building Lego sets and playing video games. Asked what he had
learned about Christopher during his visits, Father replied,
“Well, that he is a good kid. I mean . . . I have missed four years
of milestones with the child. I mean, there is a distance . . . [of]
approximately 200 miles. Basically, you know, he is a good kid
and he has always been good with me and that is about it.”
4. Closing arguments and the juvenile court’s ruling
The Department recommended termination of Mother’s
parental rights as to Ivan and Christopher and Father’s parental
rights as to Christopher. The Department’s attorney argued
Mother failed to visit the children consistently, noting that
between August 21, 2021 and March 26, 2022 Mother had missed
14 out of 31 visits. Further, the children did not have a
substantial, positive emotional bond with Mother, noting that
“Ivan [was] crying, saying he does not want to go back to the
Mother.”
Christopher’s and Ivan’s attorneys supported the
Department’s recommendation to terminate parental rights.
Christopher’s attorney argued as to Father that he had not
shown more than “distance parenting,” Christopher remained
13
“apprehensive” about overnight visits with Father, and
Christopher’s bond with Father was not “significant enough” to
warrant an exception to adoption.
Mother’s attorney argued the beneficial parental
relationship exception applied and Christopher and Ivan would
benefit from continuing their relationship with Mother. Further,
Dr. Leeb’s report showed the bond between the children and
Mother was good and termination of Mother’s parental rights
would be detrimental to the children.
Father’s attorney argued the beneficial parental
relationship exception applied and Christopher would benefit
from continuing his relationship with Father, relying on
Dr. Kaser-Boyd’s report and Father’s consistent visitation.
The juvenile court found by clear and convincing evidence
Christopher and Ivan were adoptable and no exception to
termination of parental rights applied. The court found Mother
had not consistently visited with the children, noting “long” and
“significant” periods during which Mother’s visitation was not
consistent. The court concluded, “There is some attachment here
between Christopher and Ivan and the Mother, but it is not of the
nature and quality that overrides the benefits of adoption.” The
court found Mother had not “served in a parental role” and failed
to be involved in the children’s medical and educational needs.
The court added, “Yes, the kids seem interested in seeing her, but
their bond with the siblings is much tighter. And every child has
some bond with a parent that shows up at visits. And that is
what we have here. But we don’t really have much more.”
Further, Ivan did not want to go on overnight visits with Mother.
Christopher was willing to “go along with the visits,” but he had
not developed a deep attachment to Mother through the visits.
14
The court noted that Dr. Leeb found the bond between Mother
and the children was “good,” but the court did not find Dr. Leeb’s
opinions persuasive “in that they are conclusory about the nature
of the bond.” The court reasoned as to the effect of terminating
parental rights, “[t]here is always some detriment. So more than
some detriment is needed.” The court concluded that in light of
the lack of a substantial, positive emotional attachment between
Mother and the children, Mother had not shown terminating her
parental rights would be detrimental to the children when
weighed against the benefits of adoption.
As to Father, the court found his visitation was regular but
Christopher lacked a substantial, positive emotional attachment
to Father. The court reasoned, “Christopher enjoys his time with
his Father and is happy to see him but he doesn’t think he wants
overnights. If he had a strong attachment, that answer would be
. . . different. [Christopher] is clearly more focused on his
relationship with his siblings and his caregiver.” The court
described Father’s relationship with Christopher as “static” in
that Father continued to visit but had not become more involved
with Christopher’s schooling or behavioral issues. Further,
Christopher “did not seem to want to have . . . a deeper
relationship” with Father.
With respect to detriment, the court stated it was “not
particularly persuaded by Dr. Kaser-Boyd’s analysis,” noting the
lack of “detail or analysis” to support her finding termination of
Father’s parental rights would be detrimental to Christopher.
The court reasoned, “Father sees his role as a friendly visitor who
brings gifts, talks to [Christopher] about a few things, and that is
really it.” As such, Christopher “would not have a significant
15
benefit from the ongoing relationship with Father” and would not
experience significant detriment if the relationship terminated.
The court found the beneficial parental relationship
exception did not apply and terminated the parental rights of
Mother, Father, and Ivan W., Sr. The court designated caregiver
Edmee P. as the children’s prospective adoptive parent.
On April 14, 2022 the juvenile court placed the matter back
on calendar to “clarify its ruling under . . . Caden C.” The court
found Mother’s visits with Christopher and Ivan conferred only
an incidental benefit on the children and the children’s bond with
Mother was not significant. The court noted Mother “appeared
overwhelmed, fatigued, and was slow to respond to the children’s
needs” during the social worker’s recent unannounced visits,
which the court reasoned “indicates not a very high quality of
visits.” The court found further, “[I]t appears that Mother . . .
was doing the visits because she thought this was just what the
court wanted. I find that over the years I have had this case I
don’t get a very strong sense of Mother’s desire to see her kids as
much as possible, which indicates a weak bond. There have been
times where she would not visit for a whole month.”
As to Father, the court found “the quality of his interaction
with [Christopher] was not substantial or particularly positive.”
Father “would sometimes cry during his visits,” and Christopher
“told Father not to do that” and “it embarrassed him.” Further,
Christopher “seemed more focused on what Father would bring
him as a gift than actually enjoying [Father’s] company.”
Moreover, “Father doesn’t discuss personal issues with the child
such as school, homework, his behavioral issues at home or other
significant emotional issues.” Father kept Christopher occupied
during visits, but “there wasn’t much affection.” The court again
16
noted that “Christopher, when asked, didn’t show much interest
in having overnights with Father,” and added, “[T]here is no
indication that [Christopher] is affected by the absence of
[Father].” The court concluded Christopher and Father “had only
a surface relationship of playing in [the] park.”
Mother and Father timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“At the section 366.26 hearing, the focus shifts away from
family reunification and toward the selection and implementation
of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th
529, 532; accord, In re Caden C. (2020) 11 Cal.5th 614, 630
(Caden C.).) “‘Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination
of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).’” (In re
B.D. (2021) 66 Cal.App.5th 1218, 1224-1225 (B.D.); accord, In re
Celine R. (2003) 31 Cal.4th 45, 53 [“the court must order adoption
and its necessary consequence, termination of parental rights,
unless one of the specified circumstances provides a compelling
reason for finding that termination of parental rights would be
detrimental to the child”].)
Under section 366.26, subdivision (c)(1)(B)(i), “the parent
may avoid termination of parental rights” if the parent
establishes by a preponderance of the evidence “that the parent
has regularly visited with the child, that the child would benefit
from continuing the relationship, and that terminating the
relationship would be detrimental to the child. [Citations.] The
17
language of this exception, along with its history and place in the
larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
pp. 629-630; accord, B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the
parent “‘visit[s] consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at
p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.)
Whether “‘the child would benefit from continuing the
relationship’” with his or her parent is shaped by 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.’”
(Caden C., at p. 632; accord, In re Katherine J. (2022)
75 Cal.App.5th 303, 317 (Katherine J.).) “‘If severing the natural
parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that,’ even considering the
benefits of a new adoptive home, termination would ‘harm[]’ the
child, the court should not terminate parental rights.” (Caden C.,
at p. 633; accord, Katherine J., at p. 317.) “While application of
the beneficial parental relationship exception rests on a variety of
factual determinations properly reviewed for substantial
evidence, the ultimate decision that termination would be
harmful is subject to review for abuse of discretion.” (Caden C.,
at p. 630; accord, B.D., supra, 66 Cal.App.5th at p. 1225.)
18
B. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception Did Not
Apply to Mother’s Relationship with Christopher and Ivan
Mother contends the juvenile court abused its discretion in
terminating her parental rights over Christopher and Ivan
because substantial evidence did not support the court’s
determinations that Mother failed to maintain regular visitation
and that there was no substantial, positive emotional attachment
between Mother and the children such that children would
benefit from continuing the relationship. The court did not abuse
its discretion.
Substantial evidence supports the juvenile court’s finding
that Mother failed to show regular visitation to the extent
permitted by court orders. As the juvenile court observed,
Mother’s visitation was inconsistent for long periods throughout
the dependency proceeding. Mother did not visit Christopher or
Ivan in June 2018 because she went to visit family in Florida,
explaining she “‘needed a break’” and was “‘taking care of
herself.’” In 2019 Mother did not visit Christopher or Ivan in
January and visited just once in February, explaining she “‘was
taking a month off from visiting because she need[ed] a break.’”
Instead, Mother went to Colorado for a ski trip, visited family out
of state, and went surfing. And Mother refused to visit the
children from March to June 2020 due to her “health issues” and
concerns about the COVID-19 pandemic. Although the COVID-
19 pandemic may have limited in-person visits, there is no
evidence Mother had even virtual visits with the children during
this extended period.
Mother likewise did not take full advantage of her
visitation in 2021 and early 2022. Although Mother was afforded
19
two to three unmonitored in-person visits each week, during most
of 2021 she visited with the children once every other week, with
one or two video chats during the week. In August 2021 the court
ordered one overnight visit per week, but Mother had only four
visits in the following two-month period. Between October 25
and November 29, Mother had only one overnight visit with the
children, saying the children could not visit because she was
studying, sick, or lacked gas money. As of December 2021,
Mother’s visits remained “sporadic,” with one or two visits per
month. Mother notes she consistently had overnight visits with
the children once a week from December 24, 2021 through
February 26, 2022. But during an overnight visit in January
2022, Mother left the children in the care of adult sibling R.M.
Then in March 2022 (just one month before the selection and
implementation hearing), Mother had only two out of four
overnight visits with Christopher and only one with Ivan.
Mother therefore failed to show she maintained regular
visitation and contact with the children taking into account the
visitation she was allowed under the court’s orders. (See In re Eli
B. (2022) 73 Cal.App.5th 1061, 1070 [substantial evidence
supported juvenile court’s determination the father’s visits with
the child were not consistent where visitation “throughout the
years-long dependency proceeding was sporadic and also entailed
significant gaps, and . . . even when he did visit his children he
was frequently late”]; In re I.R., supra, 226 Cal.App.4th at p. 212
[juvenile court did not abuse its discretion in finding beneficial
parental relationship exception did not apply where it was
undisputed “there were significant lapses” in mother’s visitation];
In re J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular
where the mother missed five visits in the six weeks preceding
20
the selection and implementation hearing and there was a
“troubling manner of [m]other’s cancellations and pattern of
changing her plans last minute”].)
Substantial evidence also supports the juvenile court’s
determination Mother failed to show the children had a
substantial, positive emotional attachment to Mother.
Christopher and Ivan both spent the majority of their lives with
their caregivers, with whom they had been placed since Ivan was
two years old and Christopher was three. Although Christopher
and Ivan enjoyed their visits with Mother, Ivan grew more
distant from Mother over time, eventually refusing to go on
overnight visits and screaming when Mother kissed him in March
2022 because he did not want to go with her to her home.
Christopher continued to have overnight visits with Mother, but
the record does not contain any evidence that after September
2018 he wanted more visits or was sad when the visits ended.
Mother highlights that Dr. Leeb opined Mother’s bond with
both children was “good.” But as the juvenile court found,
Dr. Leeb did not provide any details about the nature of the bond,
only providing a conclusory opinion. Further, the record supports
the juvenile court’s finding that Mother’s bond was simply the
type of bond children have “with a parent that shows up at
visits.” However, “the beneficial relationship exception demands
something more than the incidental benefit a child gains from
any amount of positive contact with her natural parent.”
(Katherine J., supra, 75 Cal.App.5th at p. 318; accord, B.D.,
supra, 66 Cal.App.5th at p. 1230 [“an emotional attachment is
one where the child views the parent as more than a mere friend
or playmate and who’s interactions with the parent were not
ambivalent, detached, or indifferent”].)
21
Mother contends the juvenile court improperly focused on
whether Mother occupied a parental role in the children’s life.
However, the Supreme Court in Caden C. did not bar juvenile
courts from considering a parent’s “parental role,” but rather,
“prohibits juvenile courts from finding against a beneficial
relationship solely because a parent has failed to surmount the
issues that initially brought the child into dependency care—a
standard that few parents facing termination of parental rights
could hope to meet.” (Katherine J., supra, 75 Cal.App.5th at p.
309; accord, In re L.A.-O. (2021) 73 Cal.App.5th 197, 211-212
[reversing order terminating parental rights and remanding for
new section 366.26 hearing because “trial court’s terse ruling”
that “the parents ‘ha[d] not acted in a parental role in a long
time’” could erroneously mean the parents “were not capable of
taking custody, or had not been good parents, or had not been
providing necessary parental care”].) A finding the parent does
not serve in a “‘parental role’” in the child’s life does not
necessarily mean the juvenile court failed to consider the child’s
substantial, positive emotional attachment to the parent as
required by Caden C., supra, 11 Cal.5th at page 636. (Katherine
J., at pp. 309, 321-322 [affirming order terminating parental
rights where father had not served in parental role in child’s life
and father’s unresolved issues prevented him from maintaining
strong, positive attachment with child, thereby diminishing
benefits to child from relationship].)
Here, in considering the parental beneficial relationship
exception, the juvenile court found Mother had not “served in a
parental role” and failed to be involved in the children’s medical
and educational needs. However, the court added that Mother’s
inability to meet the children’s needs “go[es] to the quality of the
22
relationship.” And the court expressly focused on “the quality
and depth of the relationship” between Mother and the children,
as required by Caden C. The court’s finding that “[t]here is some
attachment here between Christopher and Ivan and the Mother,
but it is not of the nature and quality that overrides the benefits
of adoption” shows the court appropriately considered whether
the children had a substantial, positive emotional attachment to
Mother, not just whether Mother was acting in a parental role.
C. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception Did Not
Apply to Father’s Relationship with Christopher
At the first step of the Caden C. analysis, the juvenile court
found Father had regular visitation with Christopher. We agree
with Father the evidence demonstrates regular visitation, and
the Department does not contend otherwise on appeal. The
record reflects that Father made great efforts to regularly visit
Christopher, traveling approximately 200 miles weekly to see
him and visiting Christopher over 200 times during the case.
With respect to the second step, Father contends
substantial evidence does not support the juvenile court’s finding
there was not a substantial, positive emotional attachment
between Christopher and Father, relying on Dr. Kaser-Boyd’s
bonding study and evidence that Christopher looked forward to
visits with Father and was comfortable in his presence. Father
argues further the court’s finding Christopher did not want
overnight visits with Father is not supported by the evidence,
and the court inappropriately focused on the fact that Father
cried during visits with Christopher. Substantial evidence
supports the juvenile court’s findings.
23
The record shows Christopher enjoyed his visits with
Father in the park, referred to Father as “‘Dad’” during visits,
and felt comfortable asking him questions and asking for food
when he was hungry. Christopher listened to Father and
followed Father’s instructions about cleaning up. Father brought
snacks, games, and toys to engage with Christopher during visits.
Father testified Christopher hugged and kissed him at the
beginning and end of visits. However, Dr. Kaser-Boyd noted
“[t]here wasn’t overt affection” between Christopher and Father
during the visits she observed.
Although the weekly visits were very positive, there is no
evidence Christopher viewed Father as “more than a mere friend
or playmate.” (B.D., supra, 66 Cal.App.5th at p. 1230.) As the
social worker reported in the Department’s April 6, 2022 last
minute information for the court, “the quality of the visits [is]
limited,” and Father “has never engaged [Christopher] in any
meaningful conversation about his well-being, interpersonal
relationships, school progress or acting out behaviors in the
home.” The social worker’s observation finds support elsewhere
in the record. When Christopher asked Father to help him with
his homework, Father completed the homework but “responded
begrudgingly that their time together is for fun.” And Father
refrained from admonishing Christopher when Father learned
Christopher bit Ivan. At the time of the selection and
implementation hearing, Christopher was acting out against his
caregivers and slipping away to a neighbor’s house to avoid doing
his homework. Yet there is no evidence Father engaged with
Christopher about his conduct and the reasons for his
disobedience other than telling Christopher to live by the
24
caregivers’ rules and that Christopher would face consequences
for bad behavior.
Father contends the court’s focus on his failure to address
Christopher’s academic problems and misbehavior constituted
improper consideration of Father’s lack of a parental role. As
Caden C. instructs, the proper inquiry at the selection and
implementation hearing is not whether the parent “would be the
better custodial caregiver.” (In re Caden C., supra, 11 Cal.5th at
p. 634; see In re L.A.-O., supra, 73 Cal.App.5th at p. 210.)
However, the court here appropriately examined the level of
Father’s involvement in Christopher’s life to gauge the depth and
quality of Christopher’s relationship with Father, finding “Father
sees his role as a friendly visitor who brings gifts, talks to
[Christopher] about a few things, and that is really it.”
There is some merit to Father’s assertion the juvenile court
misunderstood the record in finding Christopher did not want
overnight visits with Father. As discussed, Christopher told
Dr. Kaser-Boyd he would like overnight visits with Father, but
only if it would not cause him to miss his overnight visits with
Mother or his siblings. Although the court mischaracterized
Christopher’s position as “he doesn’t think he wants overnights,”
reasoning he would feel differently if he had a strong attachment
to Father, the court’s ultimate conclusion that Christopher was
more focused on his relationship with his siblings than with
Father is supported by Christopher’s statements to Dr. Kaser-
Boyd. Moreover, Father has not shown prejudice in light of the
25
lack of evidence in the record of a substantial emotional
attachment between Christopher and Father.11
Further, the juvenile court did not abuse its discretion in
finding the benefit and security provided by Christopher’s
placement with the caregivers as the prospective adoptive
parents outweighed any harm that would be caused by the loss of
his relationship with Father. (See In re A.L. (2022)
73 Cal.App.5th 1131, 1158-1159 [affirming finding beneficial
parental relationship exception did not apply where father
regularly visited child and developed beneficial bond with her,
but child viewed father as “‘a fun, friendly person’ to have visits
with” and was not affected by missed visits, and father had not
been involved in child’s medical issues or educational decisions
and was not a parent figure in her life].)
At the time of the selection and implementation hearing,
Christopher had been living with his caregivers for four out of his
seven years. As Father testified, he had “missed four years of
milestones with the child.” Further, Christopher had never lived
with Father, only seeing him on weekends prior to the filing of
the dependency case. Although Christopher had a positive
11 Contrary to Father’s argument, the juvenile court did not
err in considering that Father’s crying during visits made
Christopher feel “‘embarrassed’” and uncomfortable. The
assessment of the parent-child bond necessarily includes
consideration of “‘the “positive” or “negative” effect of interaction
between parent and child.’” (B.D., supra, 66 Cal.App.5th at
p. 1225.) Although it is unclear why Christopher was
embarrassed when Father cried out of sadness that Christopher
could not live with him, Christopher’s response generally
suggests he did not share Father’s sadness.
26
relationship with Father, as discussed, Father did not show
Christopher had a substantial emotional attachment with him.
Moreover, the juvenile court was “not particularly persuaded” by
Dr. Kaser-Boyd’s findings given the lack of detail or analysis to
support her conclusion Christopher’s loss of his relationship with
Father would be a “clear detriment” to Christopher. And
Dr. Kaser-Boyd did not evaluate whether the loss of the
relationship would be harmful to Christopher “even when
balanced against the benefits of a new adoptive home.” (Caden
C., supra, 11 Cal.5th at pp. 629-630; accord, B.D., supra,
66 Cal.App.5th at p. 1225.) Nor did Dr. Kaser-Boyd consider
what benefit Christopher would receive from adoption in the
same home as his half-sibling Ivan, which relationship
Christopher unambiguously prioritized. On this record, the
juvenile court did not abuse its discretion in finding Father had
not shown his relationship with Christopher was “so important to
the child that the security and stability of a new home wouldn’t
outweigh its loss.” (Caden C., supra, 11 Cal.5th at pp. 633-634;
accord, In re A.L., supra, 73 Cal.App.5th at p. 1161.)
27
DISPOSITION
The order terminating Mother’s and Fathers’ parental
rights is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
28