Opinion
A167243
12-05-2023
In re A.G., a Person Coming Under the Juvenile Court Law. v. T.S. and M.G., Defendants and Appellants. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J1900702)
Richman, Acting P.J.
These years-long dependency proceedings are before us for a second time. T.S. (Mother) and M.G. (Father) appeal from an order terminating their parental rights over their seven-year-old daughter, A.G. Mother argues that the juvenile court erred in denying her motion for a bonding study and in declining to apply the beneficial relationship exception under Welfare and Institutions Code, section 366.26, subdivision (c)(1)(B)(i). Father joins in Mother's arguments and asserts that if we reverse the order terminating Mother's parental rights, we must also reverse the order terminating his parental rights. (See Cal. Rules of Court, rule 5.725(a)(1), (f).) We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Summary of Prior Proceedings
A detailed history of these extended dependency proceedings can be found in our prior opinion in this matter. (See M.G. and T.S. v. Superior Court (June 7, 2022, A164320) [nonpub. opn.].) To summarize, in August 2019, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under section 300, subdivision (b), alleging Father and Mother failed to protect A.G., born in May 2015. The juvenile court sustained the allegations that the parents failed to protect A.G. by engaging in domestic violence in her presence and abusing drugs. Subsequently, it adjudged A.G. a dependent and ordered that A.G. remain in Mother's home.
In late February 2020, A.G., then over four and one-half years old, was placed in an emergency foster home after Mother tested positive for methamphetamine and amphetamine and threatened to harm herself and others. The Bureau then filed a supplemental petition under section 387 seeking A.G.'s removal from Mother's custody, which petition the court sustained.
In October 2020, the Bureau filed a subsequent petition under section 342 (subsequent petition) that included new allegations that Father sexually and physically abused A.G. and that Mother failed to protect A.G. from the physical (count b-1) and sexual (count d-2) abuse. The court dismissed the allegation in count d-2, but sustained the other allegations. In January 2022, the court held a disposition hearing on the subsequent petition, terminated reunification services for both parents, and set a section 366.26 hearing for April 28, 2022.
Both parents filed petitions for extraordinary writ seeking review of the order setting the section 366.26 hearing. In our opinion filed on June 7, 2022, we denied Father's petition on the merits. We granted in part Mother's petition and issued a writ directing the juvenile court to strike count b-1 alleged in the subsequent petition, but denied Mother's petition in all other respects. (M.G. and T.S. v. Superior Court, supra, A164320.)
Subsequently, in accordance with our opinion, the juvenile court struck count b-1 in the subsequent petition and set a section 366.26 hearing for September 21, 28, 29, and 30, 2022.
Mother's Motion for a Bonding Study
Meanwhile, at a hearing on June 16, 2022, Mother requested a bonding study and on July 6, filed a formal motion in support of the request. Apparently, the Bureau filed an opposition, but that opposition is not included in the record on appeal.
On August 4, the court heard argument on Mother's motion and ruled as follows:
"I'll note that I'm guided by the legal standard and direction in the case In Re Caden C. [(2021) 11 Cal.5th 614 (Caden C.)] that trial courts should seriously consider, where requested and appropriate, allowing for a bonding study. The Court is also guided by the Appellate Court's decisions that address the factual records where such bonding studies should be ordered. And as noted in the opposition brief, many of those cases involve records that are less robust than the record that the court has before it in this case.
"The question in this case is really, on balance, taking into account the time associated with ordering a bonding study, the concerns for [A.G.'s] wellbeing to subject her to such a bonding study, to include record evidence that she struggles in therapy sessions, she's been disregulated [sic] because of her trauma history following visits and discussions of the issues that have arisen in this case. The question is whether the qualitative information the Court is going to glean from a bonding study is such that it would outweigh . . . what is almost certain disregulation [sic] for [A.G.] in this case to be subjected to that evaluation, albeit, even if it's a couple of hours.
"In conducting that balancing that the Court needs to do, I give particular weight to the fact that the case has been going on for three years and almost every report which I've gone back to familiarize myself with when I took over this case from Department 2 outlines the visits both good and bad things that happened during the visits between [A.G.] and her mother. As the opposition brief notes, there is 12 pages of descriptions attributed to those visits in the .26 report alone.
"So this is a record which I think is unusually robust with the evidence that the Court needs to consider. And I say evidence being the interactions that I need to considering [sic] on whether or not there's been an establishment of what we anticipate to be a request for the Court to find that the parental bonding exception applies in this case. I think I have that information. And I think to the extent that there is any additional information or facts that the parties would like to adduce a .26 hearing, the parties are going to be free to call [A.G.'s] mother, therapists, social workers, caregivers, and any other witnesses who may be able to provide relevant information on that qualitative component of that relationship. I don't think that the additional information of having an expert report is going to be of sufficient benefit to me when I can weigh the evidence myself. And I don't think it outweighs what I think is almost certain discomfort, disregulation [sic], and trauma to [A.G.] to have her further subjected to anymore evaluations in this case.
"So against that backdrop, the Court will deny the request for the bonding study."
The Section 366.26 Hearings
As noted, Father joins in Mother's argument that the court erred in finding the beneficial parental exception to termination of parental rights did not apply to her relationship with A.G. Because Father does not separately argue that the exception applied to his relationship with A.G., we focus on the facts relevant to Mother's relationship. Likewise, in our legal discussion post, we address only the applicability of the exception to Mother.
The Bureau's Report
In anticipation of the section 366.26 hearing then set for April 28, 2022, the Bureau prepared a report that stated the following. In February 2022, A.G. was placed with a new foster parent, Ang. Her prior foster parents, with whom she had been living between February 2020 and February 2022, withdrew their request for adoption or guardianship after being harassed by Father. Ang wished to adopt A.G. Mother's cousin (Rebecca B.) and her husband, who did not have a relationship with A.G. at the time, also came forward and expressed a desire to adopt A.G.
The report discussed A.G.'s developmental status, noting that she was very shy around adults whom she did not know well or did not spend time with. She also had a history of being averse to males. A.G. tended to use "baby talk," particularly when under stress.
The report also summarized A.G.'s mental and emotional status. Between June 2020 and December 2021, A.G. worked with her former therapist to address her PTSD diagnosis and her extreme emotional dysregulation, temper tantrums, and inability to communicate in an age-appropriate manner. A.G. did not respond well to video therapy sessions. In June 2021, A.G. began having in-person sessions together with her former foster mother. The therapy sessions utilized a "play therapy model." During those sessions, A.G. "played out themes in therapy that involved a child being hurt/injured repeatedly and being unable to count on adults to help her." In a session in September 2021, A.G. enacted a situation that involved her two adult half-brothers (Mother's sons) not being nice to her, her feeling unprotected by Mother, and Father going to jail. A.G. expressed that she was angry by hitting play furniture with a toy bat, with permission from the therapist and her former foster parent. She continued to forcefully hit the toy furniture with the bat until it was completely destroyed. A.G.'s behavior difficulties peaked around May 2021, after her last overnight visit with Mother and birthday party (which the report later described in more detail in its visitation summary).
A.G. did not have significant behavioral issues while in the home of her current caregiver, Ang. Her relationship with Ang developed "surprisingly well," considering she generally did not trust many adults. After several visits with Ang and prior to being informed of a planned placement change, A.G. told her previous foster parent that she wanted to move to Ang's home and that she wanted Ang to be her" 'mom.'" A.G. asked Ang if she could call her" 'mom,'" which is how she refers to her now.
The report then recounted the history of contacts between A.G. and her parents, as well as other relatives, as follows:
A.G. resided with both parents until May 2018, when Father had moved out of the house. The following year, A.G. spent time with both of her parents in their respective homes, but lived primarily with Mother and her older half-brothers. In July 2019, she was prohibited from residing with Father and continued to reside with Mother.
In late February 2020, when she was over four and one-half years old, A.G. was removed from Mother's care and placed in an emergency foster home (with her former foster parents). During visits in March, A.G. seemed "very happy" to be with Mother. Due to the pandemic, visits were ordered to be held virtually.
In April, A.G. seemed to enjoy video visits with Mother, but when Mother tried to get her to engage with her older brother, she did not want to. On other visits, A.G. ended them after less than 10 minutes.
In June, the paternal grandmother and her husband had a video visit with A.G., who did not want to greet them, cried, said she did not want to talk and was scared, and after seven minutes said she was "done." The Bureau then arranged for telephone visits with the paternal grandmother and aunt (the latter of whom would eventually seek A.G.'s placement in her home), but A.G. usually ignored them or said she was done and left the telephone.
In August, following allegations that Father physically and sexually abused A.G., the court ordered no contact between them.
Between June and October, Mother resumed in-person visits with A.G. Sometimes A.G. needed to be cajoled into going to her visits. Mother was physically and verbally affectionate with A.G. They would engage in various activities and games and the visits ended calmly. During a visit on September 4, A.G. said," 'I want my mommy.'" When Mother replied," 'I'm right here,'" A.G. responded that she was referring to her foster parent. Occasionally, A.G. was rude or bossy toward Mother during visits.
In October, A.G. had an in-person visit with the paternal grandmother and her spouse. She was resistant to participating in majority of the visits by whining, keeping her head down, clinging to the social worker and foster parent, ignoring the relatives, or saying she did not want to visit. The paternal aunt was granted virtual visits, but A.G. also did not want to participate in them.
In December, Mother was granted overnight visits. A.G.'s therapist stated the goal of the visits was for A.G. to" 're-establish her bond and trust,'" with Mother, after the social worker expressed concern that A.G. did not seem to trust Mother. A.G. often stated she was going to miss the foster parent or cried on the way to school when she was going to be picked up by Mother at the end of the day for an overnight visit. At the end of some of the visits, A.G. refused to hug Mother goodbye and wanted to go back to the foster home. Sometimes A.G. expressed sadness at the end of visits, but those feelings were usually short lived.
On January 23, 2021, Mother had a male friend at her home when the foster parent dropped off A.G. for a visit. A.G. said" 'no!'" when Mother asked A.G. if she remembered the friend, before hiding her face in the foster parent's leg. She stated she did not want the foster parent to leave and was distressed until the male friend left the home.
On January 25, A.G. was" 'whiny and clingy'" when she returned from an overnight visit with Mother. A.G. usually took about two days to return to her" 'normal self.'" A social worker later asked A.G. about her visits with Mother, and A.G. agreed she liked the visits.
The foster parent reported there were multiple occasions when Mother called her to consult with her when A.G. had temper tantrums and other behaviors that were difficult to control during the visits. The foster parent stated she observed during pick-ups and drop-offs that A.G. was often bossy, defiant, and ignored directives from Mother. A.G. would return to the foster home" 'a little off,'" in that she was less compliant and more likely to have temper tantrums in an effort to get her way.
In May 2021, A.G. spent one week with Mother. She had a birthday party at Mother's home that the foster mother attended. A.G. was seen sitting unsupervised with her paternal grandmother and aunt, whom Mother was advised not to leave A.G. alone with. The foster mother saw A.G. had her head down and looked distressed. When she saw her foster mother, A.G. hugged her and said," 'I missed you.'" When the foster mother left the party, A.G. cried. After that party, A.G.'s behavior changed. She began going into the foster mother's room at night and could not fall asleep or sleep alone. She wet her pants at school the day after the party. She also cut her hair, destroyed her clothes, and had temper tantrums.
A.G. told her teacher and the social worker that Father attended her birthday party and was told not to tell her foster mother or the social worker about her contact with him. It was unclear if Mother allowed the unauthorized contact with Father. Mother's unsupervised visits and contact with the paternal grandmother and aunt were ceased.
In June, the Bureau supervised Mother's visits. Before the visits, A.G. would say,"' I don't want to see my mom . . . because she scares me.'" She was nonetheless encouraged to go. A.G. would not always run up to Mother and hug her. Nor did she always hug her goodbye. During a visit on June 15, A.G. told mother," 'Mom, I miss you.'" She then fell off a playground structure and did not want Mother to comfort her. A.G. showed no reluctance to end the visits and typically ran up to the foster mother to hug her at the end of the visits.
During a visit in July, A.G. ran into Mother's arms, said she missed her, and played with her. Also in July, Mother accompanied the foster family and A.G. on a trip to Disneyland.
In August and September, A.G. and Mother had therapy sessions together. A.G. was tense, bossy, controlling, and had a hard time engaging with Mother and the therapist.
Between August 2021 and January 2022, Mother had two-hour supervised visits. On August 5, 2021, A.G. became very irritable towards Mother during a visit, told her to play in a different area, and ignored Mother. Subsequent visits were better. A.G. often ran to Mother at the beginning of the visit and sometimes exchanged verbal and physical affection.
In September, A.G. cried before a visit with Mother because she did not want the foster parent to leave. At a visit in October, she was feeling sick and laid her head on Mother's lap. During visits in November, she was irritable and bossy towards Mother and exhibited whining and pouting. During a visit in December, A.G. and Mother engaged in make-believe play and worked on a gingerbread house.
The foster mother reported that on three occasions, she saw Mother whisper something to A.G. On January 29, 2022, the foster mother personally heard mother whisper to A.G. to" 'tell [the former social worker] that you want to come back home.'" This appeared to bother A.G. on each occasion.
In February 2022, A.G. was placed in Ang's home. Two weeks after, A.G. told Ang, "I want to see my mom." During a visit on February 28, A.G. was hesitant about attending the visit, but upon arrival smiled and ran up to Mother to greet her. The two played during the visit. After the visit, A.G. did not express being sad or missing Mother, but her behavior was somewhat dysregulated the next day.
On March 21, A.G. squealed and jumped into Mother's lap to hug her, before playing together. As Ang and Mother met each other and began to chat, A.G. moved physically back and forth between them, at one point holding Ang's hand. In the visit room, A.G. used baby talk most of the time. Mother brought toys and dolls for A.G., and the two played together. When Mother asked her teacher's name, A.G. said," 'Ms. (insert foster parent's nickname).'" A.G. then said," 'My mommy is (insert foster parent's nickname).'" The two shifted to other activities. The mother said, "I love you." When A.G. did not respond, Mother asked, "Did you know that?" A.G. remained quiet. Towards the end of the visit, A.G. "ran excitedly and hugged [Ang]." Ang reported that A.G. did not express sadness after the visit. This was in contrast to when A.G. was tearful when saying goodbye to her previous foster mother after a visit just a few days before.
One week later, when Ang was ill, she had to physically distance herself from A.G. so she would not get sick. A.G. became upset that she could not cuddle her. She began to cry, and said she missed the previous foster parent and Mother. Later she yelled" 'I want to go back to (previous foster parent's name)!'" Ang reported this was the only time A.G. had mentioned missing Mother, and that A.G. had spoken frequently about loving and missing the previous foster parent.
Following its discussion of the parents' visitation history, the Bureau concluded the report with its assessment of the case. It opined that A.G. is an adoptable child, with two sets of families who were willing to adopt her. The Bureau then explained: "There is an existing parent/child relationship with the parents but it does not outweigh the benefits of legal permanency for the child.... The mother and the child have visited consistently throughout the dependency. The mother is loving and kind towards the child during the visits, and presents during supervised visits as a playmate more than an authority figure. The child has presented as bossy, controlling, and tense during her visits with mother. During the last two years that she resided with her previous foster parent, (almost one third of her life), the child appears to have been primarily reliant on her previous foster parent for security and emotional support, while her relationship with the mother has appeared more ambivalent. [The Bureau] asserts that legal permanency is needed for this young child, and outweighs the benefits of visitation with either parent." The Bureau thus recommended that the court terminate parental rights and order adoption as the permanent plan.
The Contested Hearings
The juvenile court held the section 366.26 hearings over the course of seven days, starting on September 28, 2022 and concluding on January 18, 2023. Both parents asserted the beneficial relationship exception to termination of parental rights. The parties stipulated that Mother had regularly visited A.G. for purposes of the exception.
While the section 366.26 hearings were ongoing, the court received two separate petitions-one from the maternal cousin and her husband, and the other from the paternal aunt-seeking under section 388 to change the current placement order and direct placement into their respective homes. After the parties presented closing arguments at the section 366.26 hearings, but before the court announced its ruling, the court held a multi-day evidentiary hearing on the section 388 petitions. On January 18, 2023, the final day of the section 366.26 hearings, the court denied both section 388 petitions.
Mother also asserted the "sibling relationship" exception (§ 366.26, subd. (c)(1)(B)(v)), which the court ultimately found inapplicable. Mother does not challenge that finding on appeal.
The Bureau submitted on the section 366.26 report and all other prior reports and memoranda before the court, and did not present any evidence at the hearings. For her part, Mother called several witnesses, including her own mother (Barbara M.), her cousin (Rebecca B.) who was seeking placement, the social worker (Anne Dimas), A.G.'s current caregiver (Ang), and Mother herself. The court heard testimony from Mother's witnesses over five of the seven days of the section 366.26 hearings.
Barbara M. testified that she last saw A.G. at her birthday party in May 2021. According to Barbara, "It was fine. There was no problems whatsoever. She played and interacted." Barbara did not notice any change in A.G.'s demeanor that day. A.G. did not seem fearful of Mother and sought out affection from her. When asked how A.G. would seek affection from Mother, Barbara testified, A.G. "would just . . . come in the house and just . . . talk to her and say 'mommy,' you know, just normal stuff that kids do."
Rebecca B. testified that she is Mother's first cousin and lives in Montana. She first met A.G. in 2017. In December 2021, Rebecca and her husband applied to be caregivers for A.G. In April 2022, they started flying out to visit A.G. During those visits, Rebecca observed Mother and A.G. together. A.G., though very shy and withdrawn, did not appear fearful of Mother and was able to engage with her. Rebecca also observed A.G. say "mommy" and run to Mother sometimes. Other times she would call both Ang and Mother "mommy," or would call Mother by her first name. Rebecca did not remember if A.G. said she loved mother.
Social worker Anne Dimas testified she was assigned as the secondary social worker in this case in 2021, and then as the primary social worker in March 2022. Dimas prepared the section 366.26 hearing report, in which she recounted Mother's visitation history. Dimas personally supervised approximately five visits, starting on March 21, 2022. The visits were "all pretty similar" and did not "gradually become more loving." Dimas also did not recall ever hearing A.G. tell Mother that she loved her.
Dimas never observed A.G. to have difficulty ending visits with Mother. When Ang arrived at the end of visits, A.G. "always seems to have a positive reaction." A.G. "often will go up to [Ang] and hug her or show her something or tell her something about the visit." After the first two visits with Mother that Dimas supervised, A.G. exhibited some behavior issues. However, Dimas acknowledged that because A.G. did "ha[d] long day[s]" and "g[ot] home a little late" on days she has visits, she may have been just tired or emotionally drained.
Dimas testified about two recent visits that occurred on September 26, 2022. One was a visit with her paternal aunt, and the second was with Mother, Rebecca, and Rebecca's husband. With respect to the latter group visit, A.G. said hello to the group and smiled. A.G. became excited and more talkative when she saw a duck in a nearby pond. A.G had to be reminded to hug and say goodbye to Mother, which she then did. Dimas testified, "There wasn't a lot of [affection between Mother and A.G.] during the visit." Dimas added that there was "not a lot of physical affection most of the time during the visits." Although A.G. did not seem fearful of Mother, she was "not her most comfortable that [Dimas] see[s] in other settings." For example, A.G. would remain quiet and engage in "baby talk," a kind of high-pitched voice. In contrast, A.G. would speak in a more age-appropriate voice while in Ang's home.
Dimas testified she had submitted a memorandum on or around September 26, 2022 in addition to the section 366.26 report. In that memorandum, Dimas reported her conversations with A.G.'s therapist, who had tried to bring up the topic of Mother's visits with A.G. A.G. acknowledged that she has had visits with Mother, but did not "really spontaneously say anything else about the visits." The therapist would try to ask her more about the visits, but A.G. would just reply, "I don't know." The therapist asked A.G. whether "I don't know" meant she did not want to talk about it, and A.G. acknowledged that was what she meant.
That memorandum is not included in the record on appeal.
Dimas believed A.G. was thriving in her current placement with Ang, based on the fact that A.G. "is doing well in school. She seems happy and comfortable in her home. The behavioral issues that were described in her present home and by the previous therapist have all improved." A.G. began calling Ang "mom" days after being placed with her.
After Mother rested her case, Father for his part also called social worker Dimas to the stand. On November 16, 2022, the parties presented closing arguments.
The Juvenile Court's Decision
On January 18, 2023, the court announced its decision to terminate parental rights. It was a comprehensive and thoughtful ruling, spanning over ten pages of the section 366.26 hearing transcript.
In analyzing whether to terminate parental rights, the court first found A.G. adoptable. Turning to the beneficial relationship exception, the court recited the legal standards set forth in Caden C. and several Court of Appeal decisions applying Caden C. In view of those authorities, the court provided this extensive analysis on the applicability of the exception:
"[A]s to the first prong in Caden C., as to mother, have stipulated that there was a regular visitation and contact taken into account, the extent permitted by the Court. It's a relatively straightforward analysis, obviously, so mother meets that burden. [¶] . . . [¶]
"The next issue is whether a relationship exists such that a continuation of which would benefit [A.G.], one that's substantial, positive with an emotional attachment. And . . ., I'm not comparing the quality of caregivers; but I think that analyzing the quality of the relationship, we have two case studies here with two differently [sic] caregivers with whom we can analyze [A.G.'s] responses following visits with mother and father. The constant in that analysis is mom and dad. The variable is the different caregivers. And overall, the record is clear that overall, [A.G.] has negative responses more often than she has good responses following visits with mom and especially with dad.
"When I consider the length of time that [A.G.] has spent in the representative parent's custody, which is a factor to consider in this element that's now before the Court, she's been out of her combined parents' care since 2019 for dad and 2020, essentially, for both parents. I know there was a timeframe in there where she was back with her mother, but she has been out of her parents' care for a large part of her life.
"When I analyze the positive or negative effects of the interactions between [A.G.] and her parents, I'm guided by the fact that, as set forth in the .26 report on page 7, [A.G.] has played out themes in therapy indicating she's unable to count on her parents as adults in her life. Those behavioral issues and, again, I'm not comparing the relative caregivers as their quality of caregivers, but those behavioral issues don't manifest themselves in other contexts.
"And I think the Court is allowed to consider [A.G.'s] response to particular stimuli, namely, her parents and her responses after visitations to evaluate the positive or negative effect of the interaction between her and her parents.
"The Court is also directed to address [A.G.'s] particular needs. And as I noted in the [section] 388 hearings today, [A.G.] is unique. She has certain special needs that needs to be met....[I]t's been noted repeatedly in the reports and in the testimony, she has a general distrust of adults, to include her speech delay and the IEP diagnosis and those are set forth on page 6 of the .26 report. Her particular needs, on balance, are being met; and the Court needs to consider that.
"The Court is also directed that it can no longer simply determine whether or not a parent plays a, quote, parental role, end quote, in the child's life which has been the focus of analysis since [In re] Autumn H. [(1994) 27 Cal.App.4th 567 (Autumn H.)]. But now the analysis is more on the kind of bond between a parent and a child and whether that bond is beneficial to the child. And there was much to be made in this case about the relationship between mother and [A.G.] being more akin to a friendship....
"But as I went back and looked at the analysis of how [A.G.] views that relationship, as set forth on page 17 of the .26 report, it's the foster mother who [A.G.] looks to, I believe, what was keeping them all safe. And again, I'm not comparing the parental skill set of a caregiver versus mother. I'm just looking at the kind of bond that exists between mother and child in this case. And the court is guided and acknowledging that the term parental role is not well defined. And furthermore, Autumn H. doesn't define a type of relationship. But it does say that interaction between a parent and a child will always confer some incidental benefit and that frequent loving contact is not enough.... I would say that the relationship, the friendship that was described between . . . mother and child is not enough by itself. [¶] . . . [¶]
"So the Court finds that . . . there doesn't exist such a relationship, the continuation of which, would benefit [A.G.] on this record. I acknowledge there are times when [A.G.] has had good visits. She's acknowledged love for her mother. She misses her mother. And she's liked visits. But there's also evidence of mother coaching, whispering to [A.G.], telling to tell the [prior primary] social worker . . . that she wants certain things including to come home and that's on page 18 of the report.
"The Court finds that even if it were to find that such a relationship existed with respect to mother on the second prong, the next issue is the Court needs to decide such a determination of parental rights would be detrimental to the child. And here, the Court weighs the detriment of severance versus the benefits of adoption. So the Court will reach that prong as well. And, again, the Court is not comparing parental attributes of any potential adoptive parent, whether that be the [maternal cousin and her husband], whether that be Ang.
"The Courts don't look at whether a parent can provide a home for the child. The question is whether losing the relationship with a parent would harm the child to the extent that's not outweighed on balance by the security of a new adoptive home. And in this case, that balance, based upon the record evidence before the Court, counsel is in favor of the security of a new adoptive home.
" . . . the Court is directed to ask how would the child be affected by losing the parental relationship, what would life be like for the child in the adoptive home without the parent in the child's life. And the overall gestalt of the evidence in this case is [A.G.] is emotionally stable. She has less anxiety. She has, as Ms. Dimas testified, who I find to be credible on [sic] this case, [A.G.] has a different demeanor when she's in the foster home. And, again, I'm not comparing the skills of the caregiver and the parent. I'm looking at . . . how the Court should balance the effect of losing a parental relationship in this case with respect to mother.
"[A.G.] is talkative. She speaks spontaneously. She speaks with proper volume and register. She's outgoing. She does age-appropriate behavior. She doesn't engage in baby talk. Whereas those behaviors and the way that [A.G.] is affected following interactions with her mother, it's not the same. And that's not to indicate that [Mother] is a bad person or a bad mother. These are tough calls the Court needs to make on a very tough record.
"But furthering that balance of the benefits of the adoptive home, the Court is further guided by the therapeutic evidence in this case which has been mentioned multiple times by [the Bureau's attorney] and that's that [A.G.] talks about her caregivers in that therapy. When she's asked about the quality of the relationship with her mother, [A.G.] is dismissive. She says things like, I don't know. She doesn't engage. And that's relevant evidence for the Court in weighing what it needs to weigh for the third prong in Caden C.
"Also, when she's asked in a therapeutic setting she volunteers discussions about friends in the neighborhood in which she's living. The Court needs to weigh all this to decide the harm of severing the relationship outweighs the security and sense of belonging that a new family would confer. And all of those environmental facts that exist in her current placement are things the Court needs to consider in how [A.G.] responds to those. [¶] . . . [¶]
"I have [to] weigh the harm of losing a relationship with her parents with the benefit of a new adoptive home. And based upon the evidence before the Court and [A.G.'s] responses, again, at various stages, to various people, and various situations, on what is a really robust record in this case. I find the benefits of the new adoptive home outweigh the detriment of the severance of the bond, particularly with dad. And I acknowledge . . . it's a much closer call with mother; but the weight of the credible evidence still compels that conclusion. [¶] . . . [¶]
"The Court accordingly will order the termination of parental rights for both mother and father .... I will refer [A.G.] to the Contra Costa County Children &Family Services Bureau . . . for adoptive placement by the agency."
Mother and father appealed.
DISCUSSION
The Juvenile Court Did Not Err in Denying Mother's Motion for a Bonding Study
Mother, joined by Father, argues the juvenile court erred in denying her motion for a bonding study. We disagree.
To the extent Father intends to join this claim, the claim is forfeited as to him because he did not join in Mother's motion below or otherwise request a bonding study. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 (Lorenzo C.) ["The father waived the issue for purposes of appeal by not asking the juvenile court to order a bonding study"]; see also People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 [failure to join in codefendant's motion to suppress evidence below forfeited any challenge to the denial of that motion on appeal].) In any event, the claim is equally meritless as to Father.
Mother admits "there is no statutory or case law requiring a court to order the completion of a bonding study before terminating a parent's rights." (Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) However, she contends that due process required the court to order such a study, the denial of which we review de novo. At the same time, though, Mother acknowledges the court's decision is an evidentiary ruling that we review for abuse of discretion. (See Lorenzo C., at pp. 1339-1341; see also id. at p. 1341 ["The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study"].) To that end, Mother contends that even if there was no due process violation, the court abused its discretion in denying her motion for a bonding study. Whether Mother's challenge is based on constitutional error or abuse of discretion, it fails.
Regarding the due process claim, in the context of dependency law, "[d]ue process . . . tends to focus on the right to a hearing, the right to notice and an opportunity to present objections. [Citations.] The parent in a dependency proceeding has a due process right to confront and cross-examine witnesses. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 913 (Cole C.).) Mother presents her arguments under various subheadings in her opening brief, but she essentially repeats the same arguments throughout. That is, she contends the denial of her bonding study motion deprived her of the ability to present evidence on the "truth of [her] bond with [A.G.]," which in turn violated her due process rights to a fair trial, to confront and crossexamine witnesses, and to present an adequate defense.
The denial of a bonding study did not deprive Mother of a fair opportunity to challenge the Bureau's reports or to develop evidence in support of an argument that the beneficial relationship exception to termination of parental rights should be applied in this case. She had the right to complain about any inadequacies in the Bureau's reports at every stage of the proceedings, including at the section 366.26 hearings. At those hearings, Mother had the opportunity to, and did, confront witnesses with respect to any contents of the Bureau's section 366.26 report relevant to the issues before the court. In fact, nearly the entirety of the section 366.26 hearings consisted of Mother's presentation of witnesses as part of her case in chief. Mother was able to elicit testimony from witnesses on her own behalf regarding the nature of her bond with A.G. and other issues pertaining to the beneficial relationship exception. Mother also presented extensive arguments on those issues. We thus conclude Mother's due process rights were not violated by the denial of a bonding study, because she had full and fair opportunities to develop evidence relevant to the beneficial relationship exception.
Mother's reliance on In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.) is misplaced. She argues that "[l]ike in the case of Hunter S...., the court's denial of Mother's access to this discovery [a bonding study expert] was a denial of her due process right to litigate and establish the beneficial parent-child relationship exception." Hunter S. is simply inapposite. It held that the juvenile court improperly delegated its duty to monitor visitation to the child and his therapist, and that it had an opportunity to rectify its errors by granting the parent's section 388 petition and abused its discretion in failing to do so. (See Hunter S. at pp. 1504-1508.) It did not address at all a parent's due process right to present an adequate defense or confront and cross-examine witnesses. Nor was there any issue concerning a bonding study.
Mother also attempts to distinguish this case from Cole C., supra, 174 Cal.App.4th 900, which held among other things that no due process violations occurred in connection with a father's claim that a social worker was biased against him in a jurisdiction hearing. The court there noted that the father addressed the issues of bias in motions he filed; he had the opportunity to examine the child welfare agency's witnesses; he presented extensive arguments on the issue; he cross-examined all the social workers that had a role in the case; and he had the opportunity to challenge the agency's reports. (Id. at p. 915.) Contrary to Mother's assertions, here, as in Cole C., she had the opportunity to confront and call her own witnesses including the social workers and present extensive argument regarding the applicability of the beneficial relationship exception. In short, Mother has not established a violation of due process.
Nor does Mother demonstrate in the alternative that the court abused its discretion in denying her motion for a bonding study. As to what such showing of such abuse requires, it has been described in terms of a decision that "exceeds the bounds of reason" (People v. Beames (2007) 40 Cal.4th 907, 920), or one that is arbitrary, capricious, patently absurd, or even whimsical. (See, e.g., People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390 ["' "arbitrary, capricious, or patently absurd"' "]; People v. Benavides (2005) 35 Cal.4th 69, 88 [ruling"' "falls 'outside the bounds of reason'"' "]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614 ["arbitrary, whimsical, or capricious"].) In its observation on the subject in a leading case, our Supreme Court said that "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.'" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) Or, as that court put it in its most recent definition, "arbitrary or irrational." (In re White (2020) 9 Cal.5th 455, 470.) None of these adjectives even remotely describes the court's decision to deny the motion for a bonding study.
By the time of the section 366.26 hearings, the dependency proceedings had been ongoing for over three years. With years' worth of reports addressing the interactions between Mother and A.G., the court aptly concluded "this is a record which . . . is unusually robust with the evidence that [it] needs to consider" as to whether to terminate parental rights. In other words, a bonding study was unlikely to be useful in this case because, by the time of the section 366.26 hearings," 'the nature and extent of [Mother's] relationship [with A.G.] should [have been] apparent.'" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.)
The court also reasonably declined to permit a bonding study on the ground that subjecting A.G. to a study ran the risk of harming her well-being. The court noted A.G.'s struggles in therapy and her history of trauma, which included experiences of discomfort and dysregulation whenever she had to discuss the issues that have arisen in this case. The record also shows that A.G. generally did not trust adults. Based on this, the court was justifiably concerned that subjecting A.G. to an evaluation by a stranger was "almost certain" to cause her "discomfort, dysregulation, and trauma." And considering that the court already had ample evidence before it regarding Mother's relationship with A.G., it reasonably determined that additional information from a bonding study did not outweigh the risk of causing A.G. further harm.
In sum, the denial of Mother's motion for a bonding study was neither a due process violation nor an abuse of discretion.
The Juvenile Court Did Not Err in Declining to Apply the Beneficial Relationship Exception
Mother argues that the juvenile court erred in declining to apply the beneficial relationship exception to her relationship with A.G. Father also joins in this argument, but does not separately argue the exception applied to his relationship with A.G.
In In re Eli B. (2022) 73 Cal.App.5th 1061 (Eli B.), we summarized the applicable law:
"The beneficial relationship test is an exception to the presumptive rule of terminating parental rights after reunification efforts have failed, in order to free a child for adoption. (In re J.D. (2021) 70 Cal.App.5th 833, 852 (J.D.).) . . [T]he Supreme Court [in Caden C., supra, 11 Cal.5th 614] has recently explained its scope and proper application. [Citation.]
"As clarified by the Supreme Court,' "the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that 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. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption."' (J.D., supra, 70 Cal.App.5th at p. 852, quoting Caden C., supra, 11 Cal.5th at pp. 636-637.)
"We review the juvenile court's ruling on the first two elements for substantial evidence. (J.D., supra, 70 Cal.App.5th at p. 853.) We review its ruling on the third element under a hybrid standard, reviewing its factual determinations concerning the detriment analysis for substantial evidence but its ultimate weighing of the relative harms and benefits of terminating parental rights for an abuse of discretion. (Ibid.)" (Eli B., supra, 73 Cal.App.5th at pp. 1067-1068.)
Under the substantial evidence standard, we" 'must review the whole record in the light most favorable to the [order] below to determine whether it discloses . . . evidence which is reasonable, credible, and of solid value ....'" (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.) "[A] reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.'" (Caden C., supra, 11 Cal.5th at p. 640.) We uphold the juvenile court's findings if they are" 'supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Ibid.)
And as set forth above, a ruling that constitutes an abuse of discretion has been described in a number of ways, including one that is" 'so irrational or arbitrary that no reasonable person could agree with it.'" (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at p. 773; accord, In re White, supra, 9 Cal.5th at p. 470; People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390; People v. Beames, supra, 40 Cal.4th at p. 920.)
A juvenile court is not required to recite specific findings of fact relative to its conclusions regarding any or all of the elements of the beneficial relationship exception prior to finding the exception does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156 (A.L.).) Here, while not required, the court did make findings of fact relative to its conclusions that the second and third elements of the beneficial relationship exception did not apply- findings that Mother correctly recognizes reflect "the court's thoughtful analysis in this case." Despite this, Mother maintains the court's decision "was still erroneous." We disagree.
Initially, there is no dispute that Mother carried her burden of proving the first element of regular visitation and contact. (See Caden C., supra, 11 Cal.5th at p. 632.) We thus proceed to determine whether substantial evidence supports the court's finding that Mother failed to prove the second element-that A.G. had a significant, positive emotional attachment to her. (Ibid.)
"A positive attachment between parent and child is necessarily one that is not detrimental to the child but is nurturing and provides the child with a sense of security and stability," and "an emotional attachment is one where the child views the parent as more than a mere friend or playmate and [whose] interactions with the parent were not ambivalent, detached, or indifferent." (In re B.D. (2021) 66 Cal.App.5th 1218, 1230, fn. omitted.) In other words, the question is whether the attachment is "significant" such that it conferred more than "some incidental benefit" to the children. (Autumn H., supra, 27 Cal.App.4th at p. 575; see Caden C., supra, 11 Cal.5th at pp. 632633.) As Caden C. states, "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.' [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.]" (Caden C., at p. 632.)
Substantial evidence supports the court's finding that Mother failed to show A.G. had a significant, positive emotional attachment to her. A.G. was removed from Mother when she was four and one-half years old and then spent nearly three years-over one-third of her life-in foster care. Although A.G. enjoyed her visits with Mother, there were numerous occasions on which A.G. did not engage with Mother favorably. For example, as Mother acknowledges, there were times A.G. "was very difficult to handle when she became dysregulated and refused to take directives from her"; cried before visits; and refused to hug Mother goodbye and said she wanted to go back to her foster home.
In addition, as the court found, the record shows that A.G. had "negative responses more often than she ha[d] good responses following visits with [Mother]." A.G.'s former foster mother reported that on several occasions, A.G. would return from her visits with Mother" 'a little off,'" in that she was less compliant and more likely to have temper tantrums. She also was" 'whiny and clingy'" and took about two days to return to her " 'normal self.'" A.G.'s behavioral difficulties peaked around May 2021, after her last overnight visit with Mother. A birthday party for A.G. was held at Mother's house, after which A.G. stated she feared Mother and did not want to visit her. The following day A.G. had wet her pants at school, cut her hair, destroyed her clothes, had difficulty sleeping, and had temper tantrums. Shortly after her party, A.G. "played out themes in therapy indicating she's unable to count on her parents as adults in her life." Specifically, A.G. enacted a situation that involved her "feeling unprotected by the mother." During that session, A.G. expressed that she was angry and began hitting play furniture with a toy bat until it was completely destroyed.
A.G.'s behaviors had gradually improved since May 2021. However, the social worker observed that in visits with Mother shortly before the section 366.26 hearings, A.G., while not fearful of Mother, did not seem to be as comfortable as she was in other settings. A.G. would stay quiet and engage in "baby talk," a kind of high-pitched voice, which was not age appropriate and which she tended to use when under stress. The social worker did not see "a lot of physical affection most of the time during the visits." As Mother herself testified, A.G. had become more "distant" towards her since being removed from her care.
Viewed in the light most favorable to the court's decision, the evidence demonstrates that A.G.'s relationship with Mother did not provide her "with a sense of security and stability." (In re B.D., supra, 66 Cal.App.5th at p. 1230.) At most, the evidence reflected that A.G. viewed Mother as a "friend or playmate." (Ibid.) We therefore conclude the record as a whole supports the court's finding that A.G. did not have a" 'significant, positive, emotional attachment to [Mother].'" (Caden C., supra, 11 Cal.5th at p. 632.)
Mother argues that although the court "did perform a thoughtful analysis in this case of the beneficial parent-child relationship exception to adoption," "it made some errors." And while Mother states at one point in her opening brief that the court "did not consider improper factors when it analyzed the beneficial parent child exception," she nonetheless argues that the court improperly "compared Mother to Father" in evaluating the second element of the exception. Mother seems to suggest that the court failed to analyze A.G.'s relationship with Mother separately from her relationship with Father and therefore failed to evaluate Mother's and A.G.'s "complicated relationship." Because Mother did not raise this argument below, it is forfeited. (See In re J.R. (2022) 82 Cal.App.5th 526, 531, fn. 3.) It is also unavailing. Contrary to Mother's assertion, the section 366.26 hearing transcript discloses that the court analyzed whether each parent, individually, satisfied each of the elements of the beneficial relationship exception. Further, the court's ruling, which extensively analyzes Mother's relationship with A.G., reflects that it fully appreciated the complexity of their relationship.
Next, Mother argues that the evidence showed she had a "positive and beneficial relationship" with A.G. Mother highlights the evidence favorable to her, such as that A.G. seemed happy to see her, engaged with her, ran up to her and hugged her, was physically and verbally affectionate, and at times expressed sadness when visits were over. In focusing largely on positive interactions, Mother misunderstands the substantial evidence standard of review. In conducting that review, we do not assess whether Mother presented sufficient evidence A.G. had a strong, positive emotional attachment to her, but whether substantial evidence supported the juvenile court's finding A.G. did not. (See Caden C., supra, 11 Cal.5th at p. 640.) And, as discussed, substantial evidence supported that finding. Mother points to evidence that A.G. had positive visits, but she ignores a great deal of other evidence that paints a more complex picture of their relationship and that the juvenile court was entitled to credit.
Mother also implicitly asks us to make credibility determinations, such as when she questions the motives behind caregiver Ang's testimony that A.G. expressed not wanting to participate in visits with Mother. We decline Mother's invitation to do so. As stated previously, on substantial evidence review we do not reweigh the evidence or resolve credibility issues. (See Caden C., supra, 11 Cal.5th at p. 640.)
Likewise unpersuasive is Mother's reliance on A.L., supra, 73 Cal.App.5th 1131. She argues that "in A.L., the court held that the father was bonded with his daughter and showed exceptional devotion to her. He had an attachment to the minor and she benefitted from that attachment. The court also concluded that severing her relationship with the father would be a loss to the minor." (Id. at p. 1155.) Like the father in A.L., Mother says, her "visits were positive and beneficial to [A.G.] The minor was happy, engaged, and comfortable around her mother." A.L. is distinguishable. For one, unlike the Bureau here, the child welfare agency in A.L. conceded on appeal that the second element of the exception was satisfied. (Id. at p. 1155, fn. 10.) Also, the record in that case showed the minor's visits with her father were uniformly positive, she expressed she loved him, and she looked forward to their visits. (See id. at pp. 1141-1142, 1144, 1145-1146, 1148.) Unlike in this case, there was no evidence in A.L. that the child had unfavorable interactions with her father during visits or was negatively affected by their visits.
Accordingly, Mother has failed to demonstrate she carried her burden on the second element of the beneficial relationship exception. That is sufficient alone for us to affirm the court's ruling.
In addition, though, Mother cannot establish the court abused its discretion in finding under the third element that severing A.G.'s relationship with Mother did not outweigh the benefits of a new adoptive home. (Caden C., supra, 11 Cal.5th at pp. 631-632.)
Sufficient evidence supported a finding that adoption would bring significant benefits. A.G. was placed in caregiver Ang's home in February 2022 and has been in her care since. It is undisputed that A.G. was in a stable and very loving home and was thriving there. Also, as the court observed, A.G.'s demeanor and behavior had demonstrably improved. A.G. was observed to be very comfortable while in her foster home-she had less anxiety, was emotionally stable, was talkative and outgoing, and spoke in an age-appropriate manner.
There is little evidence that A.G. would experience significant material or emotional harm from terminating her relationship with Mother. Mother presented evidence that she had positive visits with A.G., but not necessarily evidence that terminating their bond would be more detrimental than adoption. While A.G. at times expressed sadness after visits, those feelings were short lived. (Cf. Caden C., supra, 11 Cal.5th at p. 633 [losing the parental relationship might result in "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression"].) On most occasions, A.G. ended her visits with Mother without incident and easily transitioned back to her caregivers. Indeed, at the end of their most recent visit, A.G. proceeded to leave and had to be reminded to say "goodbye" to and hug Mother. Also telling is evidence that in recent therapy sessions, A.G. spontaneously talked about her friends and activities she does with Ang, but did not bring up Mother. And when asked about her relationship with Mother, A.G. was dismissive. She replied, "I don't know," which she confirmed meant she did not want to talk about it. In light of these circumstances, the court could reasonably find that A.G.'s bond with Mother was not so strong that the interest in keeping it intact outweighed the benefits that A.G. would obtain from adoption. (See Caden C., at p. 634 [" 'the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it would be to lose that relationship"].)
Mother concedes that the court did not consider any improper factors in analyzing the third element of the exception. But she argues that "[t]he evidence does not support [its] conclusion," before citing the evidence that A.G. "enjoyed her time with her mother." Mother essentially reargues the weight of the evidence and asks us to substitute our judgment for that of the juvenile court, which we cannot do. (See Caden C., supra, 11 Cal.5th at pp. 640-641; Eli B., supra, 73 Cal.App.5th at p. 1075.)
Mother also argues that "[t]he court could not possibly weigh the detriment to the minor . . . without the social worker" exploring the issue of how A.G. "would feel losing her mother." Mother claims that A.G. "was not informed that she would never see her mother again because clearly that would have caused her undeniable distress to learn such a thing." This assertion is speculative and not supported by the evidence. Although A.G. was not asked specifically about the possibility of her relationship with Mother being terminated, she was asked about how she felt about their relationship in general. As noted, she was dismissive and did not wish to talk about it. This and other evidence detailed above sufficiently informed the court as to how A.G. felt about her relationship with Mother, which in turn informed its ultimate weighing of the relative harms and benefits of terminating parental rights.
Mother further argues the court's finding on the third element of the exception cannot stand because it did not have the benefit of a bonding study. This is essentially a rehash of her argument that the court erred in denying her motion for a bonding study, an argument we have rejected.
For all of these reasons, we conclude the juvenile court did not err in finding the beneficial relationship exception inapplicable.
DISPOSITION
The order terminating Mother's and Father's parental rights is affirmed.
We concur: Miller, J., Markman, J. [*]
[*]Superior Court of Alameda County, Judge Michael Markman, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.