In re A.S. CA1/4 ( 2022 )

Filed 8/2/22 In re A.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.S. et al., Persons Coming
Under the Juvenile Court Law.
MARIN COUNTY HEALTH AND A162645, A162944
HUMAN SERVICES,
(Marin County Super. Ct.
Plaintiff and Respondent, Nos. JV26490, JV26491,
v. JV26959)
D.A. et al.,
Defendants and Appellants.
D.A. (Father) and Marie S. (Mother) appeal from juvenile court orders
terminating their parental rights to their three children—A.S. and D.S. (twin
boys born in 2017) and M.S. (a girl born in 2018) (the Minors). Father
contends the court’s decision not to apply the parental-benefit exception to
termination set forth in Welfare and Institutions Code1 section 366.26,
subdivision (c)(1)(B)(i) was based on reasoning that is inconsistent with our
1 Undesignated statutory references are to the Welfare and Institutions
Code.
1
Supreme Court’s decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.),
which was issued after the juvenile court entered its order in this case.
Mother argues that, if this court reverses the termination of Father’s
parental rights, we must also reverse the termination of her parental rights.
(See Cal. Rules of Court, rule 5.725(a)(1) [prohibiting termination of parental
rights of only one parent except in limited circumstances]; In re DeJohn B.
(2000) 84 Cal.App.4th 100, 110.) We find no reversible error and therefore
will affirm.
I. BACKGROUND
The Minors were removed from parental custody in April 2020 after the
Marin County Department of Health and Human Services (the Department)
filed petitions under section 300 alleging domestic violence between the
parents, failure to provide for the basic needs of the children (including food,
clothing, shelter, and medical treatment), and substance abuse by the
parents. The two older children—the twin boys, A.S. and D.S.—were the
subjects of a previous dependency proceeding from June 2017 to May 2018
(prior to their younger sister’s birth) arising from allegations of parental
substance abuse and failure to provide for the children’s needs. In that
earlier case, the parents reunified with the boys after receiving family
reunification and family maintenance services.
After being removed from parental custody in the second dependency
proceeding in early 2020, the Minors were placed in the same resource home
where the boys had been placed for seven months during the first
dependency. An amended dependency petition filed in May 2020 alleged:
“[Mother and Father] maintain a chaotic household evidenced by police
contacts and allegations of physical conflict between the parents. Both
parents have histories of substance abuse which require assessment and
treatment. The conflict and substance abuse in the home significantly
2
impede the parents’ ability to meet the basic and special needs of [the
Minors]. [The Minors] have physical health and developmental concerns that
have been inadequately addressed and require routine professional
intervention. The parents have a history of CPS involvement with their
family that has not been effective in preventing the current removal. All of
the above issues create a substantial risk of serious physical or emotional
harm to the minors.” On May 26, 2020, the court sustained the amended
petition, declared the Minors to be dependents, ordered out-of-home
placement, and directed that Mother and Father receive reunification
services.
In a report for the November 2020 six-month review hearing, the
Department recommended termination of reunification services to Mother
and Father. The Department stated Mother and Father continued to have an
“extremely turbulent relationship with each other.” The parents were
engaged in a repeating cycle involving incidents of domestic violence, the
issuance of restraining orders, pledging to stay away from each other and
work independently on their issues, but then reuniting within days and
beginning a new cycle. While recognizing the parents loved their children,
the Department stated the parents appeared to be unable to prioritize the
children’s needs over their own. Father had maintained his sobriety during
the period of review, but his focus was attempting to maintain the volatile
relationship with Mother, which distracted him from caring for his children.
The children had special developmental and health needs that required
consistent management and attention. A.S. was diagnosed with
Neurofibromatosis Type 1 (NF1), a genetic disorder causing the growth of
tumors and other potential health complications, requiring close
management including regular medical appointments. He also had
developmental delays in such areas as motor skills, speech, and cognitive
3
development, which also necessitated frequent sessions with care providers.
His twin brother D.S. also had significant developmental delays, including in
speech, motor skills, and sensory processing. Although not diagnosed with
NF1, he had some signs that he could have it and further evaluation was
warranted. Their younger sister M.S., while generally physically healthy,
also had speech and other developmental delays and had signs she could have
NF1. The resource parents had provided a structured and nurturing home
environment in which the children were thriving and making progress with
their developmental challenges, and the resource parents ensured the
children were attending their numerous “developmental, emotional,
educational and physical health appointments.”
Father had attended most of the possible in-person visits during the
review period. One missed visit was caused by Father losing his car keys
after an argument with Mother. The second missed visit occurred because
Mother had a protective order protecting her from Father. Father was
generally appropriate and positive at visits; Father and the children greeted
each other happily, and Father brought appropriate toys, books, and on a few
occasions, a music box for dancing. Father attended approximately 75
percent of the virtual visits he was offered. When he did participate, he was
frequently observed to be late, distracted, and moving around during visits,
although this improved marginally after the social worker consistently
informed Father about these concerns. When he was focused, Father was
pleasant toward the children and interacted appropriately with them.
Father participated in individual therapy and had made limited
progress toward his treatment goals, addressing his past traumas and
triggers for anger. His therapist noted Father’s progress could be impeded by
his arriving late or not being in a quiet location for the virtual appointments.
Father also attended codependency meetings. The meeting secretary
4
reported that Father would share with the group when he attended, but he
often arrived late and left early. Father described to the social worker
several strategies he uses to manage frustration and anger, including
yardwork, exercise, and meditation/praying. Father recognized that his
ongoing conflict with Mother distracted from his ability to care for the
children and made the family home unsafe, but he and Mother continued
their cycle of splitting up and then getting back together a few days later.
On January 5, 2021, after a contested hearing, the court adopted the
Department’s recommendation, terminated reunification services to Mother
and Father, and set a section 366.26 selection and implementation hearing
for May 4, 2021 (which was later deferred to May 26, 2021, for a contested
hearing).2
In a report submitted for the section 366.26 hearing, the Department
recommended termination of Father’s and Mother’s parental rights and
selection of adoption as the permanent plan for the three children. The
report updated the court on the children’s extensive medical and
developmental needs and their significant progress. The report described the
parents’ visits with the children as appropriate and loving, with the parents
playing with and encouraging the children, and the children enjoying the
parents’ demonstration of affection. The report noted, however, that D.S. had
begun having nightmares after visits with the parents and other relatives.
The resource parents were dedicated to the children, were committed to
meeting their needs, and wanted to adopt them.
2 Father filed a notice of intent to file a writ petition challenging the
court’s order setting a section 366.26 hearing. After Father’s counsel filed a
no issues statement, this court denied pro se petitions filed by Father. (D.A.
v. Superior Court (Mar. 16, 2021, A161894).)
5
In an addendum report, the Department stated Father had visited with
the children again, and the visit went well. The children were bonded with
the resource parents, who were committed to meeting their needs. The
Department noted the young children had spent significant portions of their
lives outside the care of Mother and Father. The Department stated that,
although Mother and Father clearly loved the children and enjoyed visiting
them, they could not meet the children’s needs. The relationship between the
parents and children was friendly but not parental in nature and was not
strong enough that the children would experience detriment from
termination of parental rights. The relationship did not promote the
children’s well-being to such a degree that it would outweigh the benefit they
would gain in their adoptive home.
On May 19, 2021, Father filed a section 388 petition asking the court to
reinstate his reunification services, return the children to his care, or select a
plan of guardianship. Father alleged he was no longer in a relationship with
Mother, was a loving and devoted caregiver, and intended to care for his
children, who had medical needs that might prevent them from being
generally adoptable. He had started to attend ManKind, a 52-week program
addressing individual accountability and reeducation. Father had attended
two sessions at ManKind as of the filing date.
At a Zoom video hearing on May 26, 2021, the court heard argument on
Father’s section 388 petition and denied it without an evidentiary hearing.3
The court found that, in light of Father’s significant history of domestic
3 Neither parent was present on Zoom when the hearing began. The
court denied the parents’ attorneys’ request for a continuance, noting the
parents had requested the hearing and were aware of it, and no reason for
their absence had been provided.
6
violence and substance abuse, he had not made a prima facie showing of
changed circumstances.
The court proceeded with the contested section 366.26 hearing. The
Department introduced into evidence its section 366.26 report filed on
April 15, 2021, and the addendum report filed on May 20, 2021. The social
worker who authored the reports also testified. On direct examination by the
Department’s counsel, the social worker testified, consistent with the view
she stated in her reports, that the children were likely to be adopted. The
social worker testified that, despite the children’s challenging medical issues,
they have “lovely” dispositions with no outstanding behavioral issues. The
children follow directives and are very loving, going to the resource parents
for comfort. The social worker testified the resource parents understood the
seriousness of A.S.’s diagnosis and the similar issues for the other children,
and they “wholeheartedly, without hesitation, took the children in during the
second removal episode, and that is really a reflection of their commitment to
them, unconditional love to them.”
On questioning by the Minors’ counsel, the social worker testified she
had not personally observed any visits by the parents because her planned
attempt to do so was unsuccessful due to the parents missing the scheduled
visit times. Based on having read descriptions of prior visits, the social
worker testified the visits were friendly but not parental in nature. The
parents had not progressed in their case plans to receive unsupervised visits
or overnight visits, which would provide a context for parenting in longer
durations, “for 24 hours, seven days a week, or even 24 hours.” The visits
involved the children greeting the parents with “hi mommy” or “hi daddy”
and then quickly disengaging to play on play structures. There were no
emotional disruptions when the visits ended.
7
Father joined the proceeding at about 10:30 a.m., after the court took a
short break following the social worker’s testimony.
A visitation supervisor who had observed visits between Father and the
children in February and April 2021 testified the visits were positive, and
Father was attentive and loving. The children called him “daddy.” The
children did not exhibit anxiety when the visits ended. On one occasion,
Father was sad at the end of the visit, but he appropriately did not display
his emotion to the children.
On direct examination, Father testified about his children’s medical
conditions and needs. He testified he has a parental relationship with his
children. At park visits, the children call him “dad” or “daddy,” and he
supervises and protects them while playing. He tells the children he loves
them. He tries to support the structure the children receive in the resource
home. Father testified he had attended all of the children’s IEP meetings
and learned about his children’s developmental needs. Father then
disconnected from the proceedings; Father’s counsel guessed that Father’s
phone had died.
After closing arguments, the court issued its ruling. The court first
found the children were likely to be adopted based on their ages, dispositions,
characteristics, and the existence of a family (the resource family) who was
dedicated to adopting the children. The court then addressed whether the
parental-benefit exception to termination of parental rights applied. For the
first prong of that exception, the court found Father had established
continuing regular visitation, Mother “less so.”
As we discuss further below, however, the court did not find the
parents’ relationship with the children was sufficiently beneficial that its
severance would harm the children and outweigh the benefits of adoption.
The court noted factors such as the children’s young ages and the amount of
8
time they had lived with the resource parents relative to the amount of time
they had been in parental custody. Although it was clear the parents loved
their children, and they had positive visits at a park, the parents had failed
to show they could meet the children’s needs.
The court also stated there was no evidence the children would be sad if
they were adopted, and the children were not in distress at the end of visits.
The parents had not shown they had a “parental relationship” with the
children rather than friendship. The children were thriving in the home of
the resource parents. The parents had not shown their relationship with the
children would promote their well-being to such a degree as to outweigh the
well-being they would gain in a new home with adoptive parents.
Father, who had rejoined the proceedings, stated his disagreement and
began arguing with the court, but the court soon returned to its ruling. The
court found there was clear and convincing evidence the children would be
adopted. The court terminated Mother’s and Father’s parental rights and
selected adoption as the children’s permanent plan.
Father appealed the court’s May 26, 2021 orders denying his
section 388 petition and terminating his parental rights.4 Mother also
appealed the order terminating her parental rights.
4Although Father appealed the order denying his section 388 petition,
he does not present any challenges to that order in his appellate briefs,
focusing solely on the order terminating his parental rights. We will affirm
the order denying the section 388 petition.
Father’s notices of appeal (filed in pro. per.) also purport to challenge
earlier orders entered by the juvenile court, but he acknowledges in his
opening appellate brief (filed by his appellate counsel) that those orders “are
long final and not subject to this appeal from the May 26, 2021 rulings.”
9
II. DISCUSSION
Father claims the juvenile court erred by terminating his parental
rights to the Minors because it relied on improper factors to conclude the
parental-benefit exception did not apply.5
A. Legal Standards
After a juvenile court determines a child is adoptable, it must
“terminate parental rights and order the child placed for adoption” unless a
statutory exception applies. (§ 366.26, subd. (c)(1).) One such exception is
the “parental-benefit exception,” whose scope the Supreme Court recently
clarified in Caden C. This exception applies when there is “a compelling
reason for determining that termination would be detrimental to the child”
because a parent has “maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i).) As explained in Caden C., to establish the
exception, a parent must demonstrate: “(1) regular visitation and contact,
and (2) a relationship, the continuation of which would benefit the child such
that (3) the termination of parental rights would be detrimental to the child.”
(Caden C., supra, 11 Cal.5th at p. 631, italics omitted.) Here, the court found
Father maintained regular visitation, and that element is not at issue.
Father argues, however, that reversal is required because the juvenile
court relied on improper grounds in assessing the second and third elements
of the exception, i.e., the nature of his relationship with the Minors and
whether termination of parental rights would be detrimental to them.
Caden C. explained that to establish the second element, “the parent
must show that the child has a substantial, positive, emotional attachment to
5As noted, Mother joins this claim on the basis that if we reverse the
termination of Father’s parental rights, we must reverse the termination of
her parental rights as well.
10
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.) In
evaluating this element, “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.) The Supreme Court emphasized that “rarely do ‘[p]arent-child
relationships’ conform to an entirely consistent pattern,” and “it is not
necessary—even if it were possible—to calibrate a precise ‘quantitative
measurement of the specific amount of “comfort, nourishment[,] or physical
care” [the parent] provided during . . . visits.’ ” (Ibid.)
As to 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.
(§ 366.26, subd. (c)(1)(B); see § 366.26, subd. (c)(1)(D).) 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. [Citations.] What courts need to determine,
therefore, is how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an adoptive
home without the parent in the child’s life. [Citations.] . . . [T]he effects
might include emotional instability and preoccupation leading to acting out,
difficulties in school, insomnia, anxiety, or depression. Yet . . . a new, stable
home may alleviate the emotional instability and preoccupation leading to
such problems, providing a new source of stability that could make the loss of
a parent not, at least on balance, detrimental.” (Caden C., supra, 11 Cal.5th
at p. 633.)
11
The first two elements of the parental-benefit exception—whether the
parent has maintained regular visitation and “whether the relationship is
such that the child would benefit from continuing it”—involve factual
determinations that we review for substantial evidence. (Caden C., supra,
11 Cal.5th at pp. 639–640.) The third element, “whether termination of
parental rights would be detrimental to the child,” also requires “a series of
factual determinations” that we review for substantial evidence. (Id. at
p. 640.) But “the ultimate decision—whether termination of parental rights
would be detrimental to the child due to the child’s relationship with [the]
parent—is discretionary and properly reviewed for abuse of discretion.”
(Ibid.)
B. Forfeiture
The Department contends briefly that Father forfeited his claim that
the court erred in applying the parental-benefit exception because he did not
expressly urge the juvenile court to apply that exception. We disagree and
will reach the merits. In the juvenile court, Mother’s counsel argued that the
children were not adoptable and that the parental-benefit exception applied.
Father’s counsel argued next and focused on adoptability, while also
suggesting a guardianship would be a better permanent plan than adoption,
in part because with a guardianship “the kids can stay where they are and
the parents can be involved.” Based on these arguments, the juvenile court
expressly addressed the applicability of the parental-benefit exception as to
both parents. On this record, we decline to hold Father forfeited the ability to
argue on appeal that the parental-benefit exception applies.
12
C. The Juvenile Court Did Not Err or Abuse Its Discretion in
Determining the Parental-benefit Exception Did Not Apply
Father contends that, in determining the parental-benefit exception did
not apply, the court relied on grounds that were disapproved by Caden C. We
find no basis for reversal.
We first note the court correctly outlined the legal standards governing
application of the parental-benefit exception. After finding Father had
regularly visited the children, the court noted it was “the parents’ burden to
prove that there is a beneficial relationship.” The court also explained it
needed to “determine the importance of the relationship in terms of the
detrimental impact that its severance can be expected to have on the child
and weigh against the benefit to the child for adoption.” These statements
accurately capture the three elements of the exception as subsequently
explained by the Supreme Court. (Caden C., supra, 11 Cal.5th at p. 631.)
And in assessing the nature of the parents’ relationship with the children, the
court noted the Minors are “very young” (at the time of the section 366.26
hearing, the twins, A.S. and D.S., were not yet four years old, and their
younger sister, M.S., was not yet three years old); they “have lived with the
resource parents about the same amount of time that they have been under
the biological parents’ care”; and they have significant medical and other
needs. All these factors are relevant to the second element of the exception
under Caden C. (Id. at p. 632.)
Finally, as to whether the children would suffer detriment from
termination of parental rights (the third element of the exception), the court
found there was “no evidence that the children would be sad,” noting in
particular there was no evidence the children were distressed at the end of
13
visits with Mother and Father.6 And, in contrast to the paucity of evidence of
detriment from termination of parental rights, the court noted the evidence of
substantial benefit the children would gain from adoption by their
prospective adoptive parents who have provided a loving home and are
capably meeting the children’s significant medical, developmental, and
emotional needs, allowing them to thrive.
In light of the court’s findings, as well as our obligation to view the
evidence in the light most favorable to the juvenile court’s order (Caden C.,
supra, 11 Cal.5th at p. 640), we conclude Father has not shown the juvenile
court erred in concluding the parental-benefit exception was inapplicable
here. (In re A.L. (2022) 73 Cal.App.5th 1131, 1161 [parent challenging
juvenile court’s decision on parental-benefit exception has burden on appeal
to affirmatively demonstrate error].)
Father does not argue there is insufficient evidence to support the
court’s ruling. Instead, he contends that some statements by the juvenile
court suggest its ruling may have been based in part on considerations that
are inconsistent with Caden C., a circumstance that in Father’s view requires
a remand. We find Father’s arguments unpersuasive and find no ground for
reversal.
As Father notes, the court stated the biological parents had not been
able to meet the children’s daily needs, a failure that led to the termination of
reunification services. The court stated: “There is positive interaction
between the parents and the children at these visits. It’s a park visit for an
6 Contrary to Father’s suggestion, the court’s statements on this point
were not an improper finding of “ ‘fault’ ” on the part of the parents. The
court only suggested that Mother’s testimony (i.e., her apparent assumption
that, because she would feel sad at termination, the children would also feel
sad) reflected an inability to “put the[] children’s needs and feelings first.”
14
hour at a time. That’s not that hard to maintain. That is not sustained
significant parenting which these parents have not been able to sustain, the
children as I indicated have been removed twice, and the children’s needs. So
we do know that these children have needs, they have every day needs such
as stability, predictability, medical care, nourishment, and toilet training,
and those needs were not being met by these parents, and the parents failed
to show that they could meet those needs, that’s why we had a ruling on
January 5th [terminating reunification services].”
As Caden C. noted, when a section 366.26 hearing is held, it is because
the biological parent has not successfully reunified with his children.
(Caden C., supra, 11 Cal.5th at p. 637.) Accordingly, the failure to reunify, in
itself, does not preclude applicability of the parental-benefit exception
(although the issues that led to the dependency may still be relevant in
assessing the nature of the relationship and whether the children would be
harmed by termination of parental rights). (Ibid.) But we disagree with
Father’s suggestion that the juvenile court’s discussion of the children’s needs
here runs afoul of Caden C.
As noted above, Caden C. itself emphasized that, in evaluating the
nature of the child’s relationship with the parent, a relevant consideration is
“ ‘the child’s particular needs.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) The
court did not err by considering that factor here. Indeed, as we read the
court’s comments on this point (and its related statements about the care the
children have received from the resource parents), the court was expressing a
conclusion that, in light of these young children’s significant medical needs,
any detriment caused by terminating their friendly relationship with Mother
and Father was outweighed by the substantial benefits of adoption by the
resource parents. That appropriate weighing process remains at the heart of
the parental-benefit analysis under Caden C. (Id. at pp. 633–634.)
15
Similarly, the court’s references to the need for a parent to show he has
“a parent/child relationship” with his children provides no basis for reversal.
The court stated: “[The exception] require[s] a parent to show that they have
a parent/child relationship rather than friendship, and father noted that the
kids were excited to see him and that they called him ‘dad’ or ‘daddy’, that’s
wonderful, but that does not connote a parental relationship. And the
relationship must promote the wellbeing of the child to such a degree as to
outweigh the wellbeing the child would gain in a permanent home with new
adoptive parents. Again, that’s the Autumn H. case. [¶] Here we have these
perspective [sic] adoptive parents providing a home for these children in
which the children have thrived and made developmental leaps, their medical
condition has improved, their speech, their emotional stability, so I do not
find that the parents have met their burden of establishing a parental bond
exception.”
As Father notes, the court in In re L.A.-O. pointed out the ambiguity
that can arise when a juvenile court requires that a parent occupy a “parental
role” in the child’s life as a prerequisite to application of the parental-benefit
exception. (In re L.A.-O. (2021) 73 Cal.App.5th 197, 210 (L.A.-O.).) The
phrase “can mean being the person whom the child regards as his or her
parent (or at least as more his or her parent than any other caregiver),” but
“the parental-benefit exception does not require that the parent be the child’s
primary attachment.” (Ibid.; see In re J.D. (2021) 70 Cal.App.5th 833, 865.)
The phrase “can mean being a good parent—nurturing, supporting, and
guiding,” but under Caden C. a parent need not “have overcome the struggles
that led to the dependency” or “be capable of resuming custody” for the
exception to apply. (L.A.-O., supra, at p. 210.) And finally, although the
phrase “can also mean giving parental care, such as changing diapers,
providing toys and food, and helping with homework,” this interpretation
16
may conflict “with Caden C.’s warning that ‘rarely do “[p]arent-child
relationships” conform to an entirely consistent pattern.’ ” (Ibid.; see J.D., at
p. 865.)
But in our view, any ambiguity arising from some of the terminology
used by the court here provides no basis for reversal. As in L.A.-O., when the
court here stated it was necessary for Mother and Father to have a “parental”
relationship with the Minors and referred to the care being provided by the
foster parents, the court “may have meant that the children had a
substantial, positive, emotional attachment to the prospective adoptive
parents but not to the parents,” an analysis that “would be legally correct.”
(L.A.-O., supra, 73 Cal.5th at p. 211.) And even if the court’s comments could
be construed to mean the parents “were not capable of taking custody, or had
not been good parents, or had not been providing necessary parental care”
(L.A.-O., at p. 212), we do not think the court’s brief discussion of whether
Father had a “parental” relationship with the children provides a basis for
reversal here.
Viewed in the context of the overall balancing analysis required under
section 366.26, subdivision (c)(1)(B)(i) and Caden C., we do not think the
arguably ambiguous terminology used by the court made a difference to the
outcome here. In light of the children’s young ages and the short amount of
time they had spent in parental custody, as well as the presence of resource
parents who want to adopt them and have proven capable of meeting their
significant needs, it is difficult to imagine that any detriment from
terminating the children’s relationship with Mother and Father (whatever
the nuances in how that relationship is described) could outweigh the
benefits of adoption on this record. (Caden C., supra, 11 Cal.5th at pp. 631,
633.)
17
Father’s remaining arguments are unpersuasive. Father asserts the
court improperly “relied on considerations of future contact” between the
children and the parents in declining to apply the parental-benefit exception.
As noted, Caden C. stated that, in applying the exception, a juvenile court
“must assume that terminating parental rights terminates the relationship.”
(Caden C., supra, 11 Cal.5th at p. 633.) But here, the court’s brief comments
about possible future visitation through the Consortium for Children came
after it had made its ruling that the parental-benefit exception did not apply
and after it had terminated parental rights. Father has not shown error.
Father also suggests the court “relied on inappropriate considerations
in not ordering a plan of legal guardianship” for the children. He cites the
court’s statements at the section 366.26 hearing, in response to a specific
argument made by Father’s counsel, about whether the resource parents
would be able to “lean on” the parents if a guardianship were ordered. But as
the Department notes, the court properly began (and ended) its analysis by
considering the permanent plan of adoption with termination of parental
rights, in accordance with the legislatively mandated preference (§ 366.26,
subd. (b)(1)); because the children were adoptable and no exception to
termination applied, the court properly adopted that plan. The court was not
required to first rule out guardianship, and it did not do so. The court’s brief
response to Father’s counsel’s argument about the potential merits of a
guardianship was not error.
Father next takes issue with certain aspects of the testimony provided
by the Department social worker at the section 366.26 hearing, including the
social worker’s alleged consideration of factors that are inconsistent with
Caden C. Father asserts the court “adopted” these allegedly improper
criteria. We have concluded above that the court’s ruling (and the
explanation it provided) reflect an appropriate exercise of discretion. We will
18
not assume, as Father appears to do, that the court adopted all details of the
social worker’s testimony. In any event, for the reasons explained above in
our discussion of the court’s ruling, the social worker’s testimony about such
matters as whether the parents had met the children’s needs or whether
Father had a parental relationship with the children provides no basis for
reversal on this record.
Finally, Father argues the court erred by allowing the social worker to
testify (during questioning by the Minors’ counsel) about the nature of the
parents’ relationship with the children based in part on her review of reports
of visits she had not personally observed. (As noted, the social worker’s
attempts to observe visits were unsuccessful because the parents missed the
scheduled visit times.) Again, we find no reversible error. On appeal, Father
contends that the testimony at issue was provided over a hearsay objection by
the parents and constituted improper expert testimony, but no objections on
those grounds were asserted at the hearing, so they are forfeited. (Evid.
Code, § 353, subd. (a).) There is also no indication the social worker was
testifying as an expert.
The parents’ attorneys did object to a few of the social worker’s specific
answers on grounds of “lack of foundation and no personal knowledge,” an
objection the court overruled, stating it believed the social worker could
review the records and answer questions. The court also noted the visitation
supervisor, who had observed visits, was present and available for cross-
examination. We agree with the Department that these few challenged
answers do not provide a basis for reversal. In addition to the social worker’s
testimony, the court had before it the Department’s reports and the visitation
supervisor’s testimony, both of which addressed the visits. Father, whose
burden it was to prove the applicability of the parental-benefit exception,
could have offered visitation records or other evidence that he believed might
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be helpful to his position. Finally, the juvenile court understood the social
worker’s testimony was based in part on her review of records, and there is
no indication the court failed to weigh the evidence accordingly.
III. DISPOSITION
The May 26, 2021 order denying Father’s section 388 petition is
affirmed. The May 26, 2021 order terminating Father’s and Mother’s
parental rights is affirmed.
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_________________________
Streeter, J.
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
In re A.S. et al. A162645, A162944
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