Opinion
H049021
09-21-2021
In re E.L., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.L. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 17JU00028
Bamattre Manoukian, J.
In 2017, E.L. (minor) came within the juvenile court's jurisdiction shortly after he was born. I.L. (mother) used controlled substances during her pregnancy with minor, and C.L. (father) was unable to demonstrate that he was able or willing to protect minor. In 2019, after approximately two years of family maintenance services, the juvenile court removed minor from his parents' physical custody and ordered family reunification services. In November 2020, the juvenile court terminated family reunification services to both parents and set the matter for a selection and implementation hearing under Welfare and Institutions Code section 366.26. Following a contested hearing in April 2021, the juvenile court terminated the parents' parental rights to minor, who was then four years old, and selected adoption as the permanent plan.
Unspecified statutory references are to the Welfare and Institutions Code.
On appeal, both parents argue that the juvenile court abused its discretion by determining that they failed to establish the beneficial parent child relationship exception to adoption (see § 366.26, subd. (c)(1)(B)(i), hereafter parental benefit exception). Father also argues that remand is required because the juvenile court erred in analyzing the parental benefit exception in light of the California Supreme Court's recent decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which extensively discussed the parental benefit exception. Mother joins in father's arguments. As we explain, we reverse the order terminating parental rights as to mother and father so that the juvenile court may conduct a new section 366.26 hearing and reconsider the matter in accordance with Caden C.
I. Background
A. Events Leading to Removal of Minor from the Parents' Physical Custody
On February 7, 2017, the Santa Cruz County Human Services Department (Department) filed a petition under section 300, subdivision (b)(1) alleging that minor, who was one month old at the time, came within the juvenile court's jurisdiction. The petition alleged that mother abused controlled substances including heroin and marijuana, and she had used drugs when she was pregnant with minor. The petition further alleged that mother suffered from untreated mental health issues and that she had been inattentive with minor, once leaving him unattended in a rocking chair and once leaving him alone in the bath. Finally, the petition alleged that father was unable or unwilling to supervise and protect minor from mother. Father had a history of substance abuse, and he knew that mother was using heroin and marijuana when she was pregnant with minor.
On June 14, 2017, the juvenile court found the allegations of the section 300 petition to be true, declared minor a dependent of the juvenile court, and ordered family maintenance services. Minor remained in his parents' care.
The juvenile court subsequently ordered continued family maintenance services at the six month review hearing, the 12 month review hearing, and the 18 month review hearing. Both parents made some progress on their case plans during the family maintenance period, though both parents also went through some challenges. Mother participated in outpatient treatment programs, but she often missed drug tests and frequently had positive drug tests. Father went through various periods of arrest and incarceration. Father was arrested in a March 2018 criminal case and was sentenced in July 2018 to 36 months of formal supervised probation. Father was later arrested for several substance abuse offenses in October 2018 and was released from custody in January 2019. The Department reported that the parents frequently argued in front of minor and were unaware that their arguments affected their son.
On September 18, 2019, after more than two years of family maintenance services, the Department filed a section 387 petition recommending that the juvenile court detain minor and place him in shelter or foster care. The section 387 petition alleged that the parents had engaged in a verbal altercation in front of minor, which ended with minor being left alone outside his parents' house in his stroller for approximately 15 minutes. The petition also alleged that mother had assaulted others and had been the victim of assaults when minor was present. Mother had also repeatedly left minor under the care and supervision of a man who heavily smoked marijuana and was wheelchair bound. Mother was not engaging in individual therapy or drug testing, and she had been evicted from her home. Likewise, father was not engaging in individual therapy and had also been evicted. Father was using methamphetamine and “possibly OxyContin.” Both parents were not maintaining consistent contact with the Department.
This was the Department's second section 387 petition in this case. In May 2018, the Department filed a section 387 petition seeking to remove minor from his parents' physical custody, which it voluntarily withdrew after mother agreed to enter a treatment program.
The Department submitted a memorandum in support of the section 387 petition. The Department opined that minor was in a “vulnerable state.” Minor had never been enrolled in childcare, and, at two and a half years old, he was only stringing two words together.
At a hearing on September 20, 2019, the juvenile court removed minor from his parents' custody and temporarily vested placement and care of the child with the Department. The juvenile court ordered that both parents have three supervised visits with minor per week.
In November 2019, the Department filed an adjudication report on the section 387 petition. Mother had allegedly attempted to run over a parking enforcement officer with her car on August 3, 2019, which resulted in a pending criminal case. Minor was now living in a licensed foster home, and he was enrolled in preschool. Minor had adjusted well to the foster home. Minor had not spoken with father, but he spoke with mother about once a week. Minor had a speech delay that was slowly improving.
On November 14, 2019, the juvenile court found the allegations in the Department's section 387 petition to be true, except for the allegation that the parents were not maintaining consistent contact with the Department. The juvenile court determined that the previous disposition had not been effective in protecting minor and found by clear and convincing evidence that minor's welfare required that he be taken from his parents' physical custody. The juvenile court ordered family reunification services for both parents. The juvenile court also ordered that mother have a minimum of three supervised visits per week. Father, who was incarcerated at the time of the hearing, was ordered to have a minimum of one supervised visit per week should he be transferred to an appropriate facility. Once released from custody, father was ordered to have a minimum of three supervised visits per week.
B. Events Leading to the Section 366 .26 Hearing
1. The Six month Review Hearing (Family Reunification)
In April 2020, the Department prepared a six month review report. According to the report, the Santa Cruz Public Health Officer had issued an order in March 2020 that directed all individuals to shelter in place in response to the COVID 19 pandemic. Subsequently, Santa Cruz County Superior Court issued an order pausing all visits for children in foster care until early April 2020.
The Department reported that minor was doing well with the foster parents. Minor had attended one speech therapy appointment, but the rest of the appointments had been cancelled due to the COVID 19 pandemic. The foster parents, however, reported that since minor had been at home, his speech had quickly developed, and he was now saying many new words.
According to the Department, father had been “in and out of incarceration” but was presently living at a treatment facility and was working on his sobriety. Mother stated that she was living on a farm in Aptos. Mother, however, did not provide the Department with an address or information about who she was living with.
Both parents visited minor numerous times during the reporting period. According to the visitation logs, the parents engaged with minor purposefully during their visits, and minor displayed affection toward his parents, calling mother “Mama” and father “Da Da.” The parents attended the vast majority of the visits, but mother and father both had several no shows and mother had several cancellations.
In May 2020, minor's court appointed special advocate (CASA) filed a report. The CASA had visited minor at his foster family's home and found him to be “happy[, ] relaxed[, ] and very much at home.” Minor's speech had improved significantly after his placement, and he had been potty trained after one week. The CASA described the foster family as “very attuned to [minor's] needs and strengths.”
In June 2020, the Department filed an updated memorandum with the juvenile court. Mother had continued to have in person visits with minor until the visiting center was closed the week of March 17, 2020. Throughout the months of March and April, mother had video calls and phone calls with minor. Mother called consistently several times a week but was inconsistent with video calls. In May and June, mother had two successful video visits. Mother showed up to the visiting center once with a fever and was required to quarantine for 14 days due to the current COVID 19 health and safety guidelines.
On June 15, 2020, the juvenile court held a contested six month review hearing and ordered that both parents continue to receive family reunification services. The juvenile court also ordered that mother and father have a minimum of three supervised visits per week.
2. The 12 Month Review Hearing (Family Reunification)
In October 2020, the Department filed a 12 month family reunification review report. The Department recommended that the juvenile court terminate reunification services to both parents and schedule a section 366.26 selection and implementation hearing to determine minor's permanent plan. According to the report, father had been arrested on September 24, 2020, for drug related offenses but was released because of COVID restrictions in jail. The trial court had issued two bench warrants for mother after she failed to appear in court for her pending criminal offenses.
According to the report, father had been asked to leave his sober living environment in early June and had since been struggling with homelessness and his sobriety. Father had been visiting with minor, but he had missed two visits in July, six visits in August, and four visits in September. Father called minor regularly on non visit days. Mother had little contact with the Department over the reporting period, and her current address was unknown. There were reports that mother was in Sacramento and Los Angeles. Mother had difficulty maintaining contact with minor on a consistent basis. Mother's visitation order was for three supervised visits a week; however, mother had only two successful video visits in the months of May and June, and only two video visits in the months of July and August.
Also in October 2020, minor's CASA filed a report with the juvenile court. According to the CASA, minor was doing “extremely well” in his foster placement, and his current foster family was able to meet his needs. Minor was attending school, and he was seeing a mental health therapist.
On November 23, 2020, the juvenile court held a contested 12 month review hearing. During the hearing, the juvenile court terminated reunification services to mother and father and set a selection and implementation hearing under section 366.26. The juvenile court ordered that the parents have a minimum of one supervised visit a month.
On December 21, 2020, father filed a petition for extraordinary writ challenging the juvenile court's decision to set a selection and implementation hearing under section 366.26 in case No. H048630. On February 10, 2021, this court determined that his petition was abandoned because father did not provide any explanation for the basis for his challenge to the juvenile court's order. (C.L. v. Superior Court (Feb. 10, 2021, H048630) [nonpub. opn.].)
C. The Section 366 .26 Hearing Reports
On February 19, 2021, the Department filed a section 366.26 hearing report recommending that the juvenile court terminate the parents' parental rights and select adoption as the permanent plan. The Department opined that since minor became a dependent of the juvenile court, the parents had not been able to meet his daily needs for food, shelter, nurture, stability, or safety, and they were unable to provide him with the medical, emotional, and developmental care that a parent/child relationship should provide. The Department concluded that minor's need for permanency, emotional stability, consistency, security, and sense of belonging with his current caregivers “greatly outweigh[ed]” the benefits of his relationship with his parents.
The Department summarized the parents' visits with minor. Since November 23, 2020, father visited in person with minor five times. Father answered yes to a COVID screening question before one visit, which was subsequently cancelled. Two visits were scheduled as virtual visits due to father's need to self quarantine, but father cancelled one visit and did not confirm before the second visit, which was then cancelled. Otherwise, visits between father and minor were going well, and they enjoyed activities together including playing outdoors and indoors, reading, coloring, doing crafts, and having snacks or lunch. Father was playful and affectionate toward minor, and it was clear that father loved minor and enjoyed spending time with him. The Department reported that mother cancelled a virtual visit in December 2020 and did not confirm another virtual visit in January 2021. Mother and father both consistently made weekly phone calls to minor.
The report stated that minor's foster family had a “clearly established” relationship with minor, and minor was consistently comforted by his foster family's presence and sought them out for love, nurturing, reassurance, and comfort. The foster family was “eager” to make minor a permanent member of the family through adoption. The foster family was aware of minor's special needs and had demonstrated an ability to address his medical and developmental issues.
The Department concluded that the relationship between father and minor was “at best, a visiting relationship, filled with talking, playing, reading books, coloring and doing crafts.” The Department opined that mother had not consistently visited with minor since August 2020. Thus, the Department assessed that “[i]t would not be detrimental to [minor's] welfare to terminate parental rights, freeing him for adoption.”
In February 2021, minor's CASA filed a report recommending that the juvenile court select a permanent plan of adoption. Minor's CASA stated that minor needed a stable environment where all of his needs could be met.
D. Father' s Section 388 Petition
On March 29, 2021, father filed a section 388 petition asking that the juvenile court set aside its order setting a selection and implementation hearing under section 366.26. Father alternatively requested that the juvenile court order continued reunification services. According to father's petition, father had continued to participate in services after the juvenile court terminated reunification services. Father attached several supporting documents to his petition, including letters from his probation officer, his treatment supervisors, and his employer. Father's probation officer wrote a letter that stated that he saw a “genuine shift” in father's thinking and was hopeful that father would “continue this pattern.” The supervisor for the “County Substance Use Disorder Services” wrote a letter that stated that father was working hard and “doing everything he possibly can, all without services.”
E. The Combined Sections 388 and 366 .26 Hearing
On April 14, 2021, the juvenile court held a combined hearing on father's section 388 petition and the selection and implementation of the permanent plan under section 366.26. During the hearing, visitation logs for September through November 2020 were admitted into evidence. The visitation logs showed that father attended the majority of in person visits with minor, and he missed several visits. Father engaged with minor during visits, showed him affection, and praised him. The parties also stipulated that father made additional in person visits with minor on March 4 and April 5, 2021, and mother made an additional virtual visit on March 1, 2021. Mother was attentive during the virtual visit and played with minor.
The juvenile court considered father's section 388 petition first. Father argued that the section 388 petition “made a good showing that he can have either return of the child or continued reunification services.” The Department opposed the section 388 petition, arguing it showed “changing circumstances” but there was insufficient “concrete evidence” to support father's claim that he had remained sober and engaged in substance abuse treatment. Minor's attorney argued that it seemed that father's situation was “changing, ” and none of father's support letters were able to speak to his parenting style.
After considering the parties' arguments, the juvenile court found that father had merely demonstrated changing circumstances and had not demonstrated that reunification services would be in minor's best interest. Thereafter, the juvenile court denied father's section 388 petition.
The juvenile court then proceeded with the section 366.26 hearing. Mother testified on her own behalf. Mother testified that minor lived with her for the first three years of his life. After the juvenile court ordered family reunification services, mother had physical visits with minor three times a week between September 2019 and May 2020. After April or May 2020, mother started to participate in video and telephone visits. When mother had in person visits with minor, she would play basketball with him, and he would come and give mother hugs and kisses. During video visits, mother played with minor using Play Doh, and they drew pictures and talked about things that he was learning. Mother testified that minor loved her, and she wanted to have the chance to be “a great mother” to him. Mother stated that she was “a little ill prepared” when she first became a mother, but she had started taking steps to “better [her] life.”
The Department argued that it was undisputed that minor was an adoptable child, and his foster family had expressed a commitment to adopting him. Minor was also thriving in his foster family's care.
Minor's attorney agreed with the Department that it was time to terminate parental rights so that minor could be adopted. Minor was a child with special needs with known delays in speech and language, and he was fortunate to have foster parents who loved him and were ready to make a lasting commitment to him. Minor was too young to state his own wishes, but he showed a great deal of affection for his foster parents.
Mother asked the juvenile court to apply the parental benefit exception to adoption. Mother argued that she had been regularly having joint and individual visits with minor, and the visits went well. According to mother, the visitation logs reflected that she was a “very loving, attentive, and appropriate parent.” Furthermore, mother had taken care of minor for the first several years of his life.
Father also asked the juvenile court to apply the parental benefit exception to adoption. Father argued that he had a parental bond with his son, and minor had spent two and a half years living with his parents and the next two years under family reunification.
In rebuttal, the Department argued that mother had not maintained regular visitation with minor. According to the Department, mother had visited once with minor in the last few months. The Department conceded that father had maintained regular visitation with minor, despite the complications of his various periods of incarceration and the COVID 19 pandemic. The Department, however, argued that father had demonstrated only that his relationship with minor was “one of friendly visiting.”
After considering the parties' arguments, the juvenile court determined that minor “is clearly both generally and specifically adoptable.” The juvenile court then determined, “[w]ith regard to regular visitation[, ] [mother] simply has not fulfilled that requirement.” The juvenile court stated, “And even if the Court finds that [mother] availed herself of regular visitation, which is not supported by the record, it would not be in [minor's] best interest, he would not benefit from continuing the relationship given the need for stability and permanency, which is something that [the foster parents have] provided for over a year and a half.”
The juvenile court also held: “With regard to [father]. Certainly in this last period of seven months or 11 months, he has made a notable effort to avail himself of regular visitation. And as [the Department] described in [its] review of the visitation logs, they've been very sweet, [father] has been quite engaged with his son, [minor]. [¶] In connection with the 388 hearing, the Court noted that [father] ha[d] done a lot of really good things in the last 11 months, but the Court needs to look at what is in [minor's] best interest at this juncture and what provides him with permanency and stability. [¶] And as everyone has noted, it has been a four year process now. There were the two years of family maintenance, there was a year of family reunification. And [minor's needs]... [minor is] a four year old boy with some special needs so he has even greater need for the kind of stability, permanency, and support. [¶] His parents... undoubtedly love him, but neither of them are able to provide what he needs most, which is the stability and permanency that the preferred Permanent Plan of adoption would provide.”
Subsequently, the juvenile court determined that the parental benefit exception did not apply to either parent and terminated mother's and father's parental rights.
II. Discussion
A. General Legal Principles and Standard of Review
After a child has been adjudicated as a dependent of the juvenile court, if the juvenile court cannot safely return the child to a parent's custody within the statutory time frames, the juvenile court must set a hearing under section 366.26 to select a permanent plan. The purpose of the section 366.26 hearing is for the court “to provide stable, permanent homes for these children.” (Id., subd. (b); In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
There are seven statutory choices for the permanency plan; the preferred choice is adoption, coupled with an order terminating parental rights. (§ 366.26, subd. (b); see also In re Celine R. (2003) 31 Cal.4th 45, 53 [“Legislature has thus determined that, where possible, adoption is the first choice.”] (Celine R.).) The court selects this option if it “determines... by a clear and convincing standard, that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).)
Thus, at the section 366.26 hearing, “in order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.... ‘[T]he critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.' ” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249 250.) However, if the parent shows that termination of parental rights would be detrimental to the child for one of the six specifically enumerated reasons in the statute, the juvenile court should decline to terminate parental rights and select another permanent plan. (§ 366.26, subd. (c)(1)(B)(i) (vi), (4)(A).) An exception to adoption provided by statute will not be found by the juvenile court unless it “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the [six statutory] circumstances.” (§ 366.26, subd. (c)(1)(B).)
The six specified circumstances in section 366.26, subdivision (c)(1)(B) are “actually, exceptions to the general rule that the court must choose adoption where possible.” (Celine R., supra, 31 Cal.4th at p. 53.) They “ ‘must be considered in view of the legislative preference for adoption where reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Ibid.)
On appeal, both parents argue that the juvenile court erred by failing to find the parental benefit exception to adoption. This exception applies where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court in this case held the section 366.26 hearing before the California Supreme Court decided Caden C., supra, 11 Cal.5th 614, which extensively discussed the parental benefit exception. Caden C.described the three elements that the parent must prove to establish the exception as follows: “ ‘(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.' ” (Id. at p. 631.)
“The first element-regular visitation and contact-is straightforward. The question is just whether ‘parents visit consistently,' taking into account ‘the extent permitted by court orders.' ” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).) Again here, 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.' ” (Caden C., supra, 11 Cal.5th at p. 632; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Caden C., supra, at p. 632.)
“Concerning the third element-whether ‘termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also § 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.]... the 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.)
“When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.) “What's more, understanding the harm associated with severing the relationship is a subtle enterprise-sometimes depending on more than just how beneficial the relationship is. In many cases, ‘the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it will be to lose that relationship, which must be weighed against the benefits of a new adoptive home. [Citation.] A child would benefit from continuing a strong, positive, and affirming relationship, and it would be destabilizing to lose that relationship. Sometimes, though, a relationship involves tangled benefits in burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.” (Ibid.)
A parent asserting the parental benefit exception must show, by a preponderance of the evidence, the three elements described above. (Caden C., supra, 11 Cal.5th at p. 636.) When the parent has met that burden, the juvenile court should find that the parental benefit exception applies, and it should select a permanent plan other than adoption. (Ibid.; § 366.26, subd. (c)(4)(A).)
“[A] substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child ‘consistently,' taking into account ‘the extent permitted by the court's orders' [citation] is essentially a factual determination. It's likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it.” (Caden C., supra, 11 Cal.5th at pp. 639 640.) The third element is different. Like the first two elements, the juvenile court must make a series of factual determinations including determinations about the child's relationship with a parent. The juvenile court, however, “must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that's inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child's life would be like in an adoptive home without the parent in his life. [Citation.] The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home. And so, the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion.” (Id. at p. 640.)
B. The Application of the Parental benefit Exception
On appeal, both parents argue that the juvenile court abused its discretion when it determined that the parental benefit exception did not apply. Mother argues that she satisfied all three elements of the parental benefit exception. Like mother, father argues that he satisfied all three elements of the parental benefit exception. Father also argues that the juvenile court's decision, which was made before the California Supreme Court decided Caden C., erroneously focused on father's skills as a custodial caretaker. Father further argues that the juvenile court erred in selecting adoption as the permanent plan. Mother and father join in each other's arguments to the extent their arguments accrue to each other's benefit.
1. The Juvenile Court's Findings
We first discuss the juvenile court's findings on the three elements of the parental benefit exception with respect to both parents.
Here, the record reflects that the juvenile court found that mother had not “fulfilled [the] requirement” of regular visitation, while father had “made a notable effort to avail himself of regular visitation.” Thus, the juvenile court concluded that mother had not met the first element of the parental benefit exception, regular visitation and contact (§ 366.26, subd. (c)(1)(B)(i)), while father had.
On appeal, the Department argues that father did not regularly visit with minor. The Department acknowledges that it conceded the issue below during the section 366.26 hearing. During the section 366.26 hearing, the Department's counsel stated, “With respect to [father], I will concede that he has maintained consistent and regular visitation despite the complications with, you know, various periods of incarceration and, of course, the COVID epidemic. He has made good efforts in visiting regularly with [minor].” The Department argues that its responsibilities on appeal are different; thus, it is not bound by its prior concession. We need not decide this issue. The record reflects that the juvenile court expressly found that father maintained regular visitation-the juvenile court stated that father had “made a notable effort to avail himself of regular visitation.”
The record is somewhat unclear as to the juvenile court's finding on the second element, whether “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court did not make any express findings on the record that a beneficial parental relationship existed between either of the parents and minor.
First, we note that the juvenile court did not need to determine whether mother had a beneficial relationship with minor because it concluded that she did not maintain regular visitation with him. Nonetheless, it appears that the juvenile court impliedly found that mother had a beneficial relationship with minor because it reached the third element of the parental benefit exception-whether “termination would be detrimental to the child due to” the beneficial parental relationship. (§ 366.26, subd. (c)(1)(B); see In re Andrea R. (1999) 75 Cal.App.4th 1093, 1099 [implying juvenile court's findings on the parental benefit exception].) The juvenile court stated: “And even if the Court finds that [mother] availed herself of regular visitation, which is not supported by the record, it would not be in [minor's] best interest, he would not benefit from continuing the relationship given the need for stability and permanency, which is something that [foster mother]... [a]nd [foster father]... provided for over a year and a half.” Thus, the juvenile court determined that terminating mother's parental rights would not be detrimental to minor.
With respect to father, it seems that the juvenile court also impliedly found that father had a beneficial relationship with minor. Addressing father's arguments, the juvenile court stated that it “need[ed] to look at what is in [minor's] best interest at this juncture and what provides him with permanency and stability.” The juvenile court also stated: “[Minor's] parents [mother and father] undoubtedly love him, but neither of them are able to provide what he needs most, which is the stability and permanency that the preferred Permanent Plan of adoption would provide.” The juvenile court did not expressly address whether terminating father's parental relationship would cause minor harm. However, the juvenile court cited to the stability and permanency that a new adoptive home would provide to minor, which is a factor to consider when determining whether terminating parental rights may cause detriment to a child. (See Caden C., supra, 11 Cal.5th at p. 634.)
Accordingly, the juvenile court's statements and its subsequent termination of father's parental rights demonstrates that the juvenile court impliedly found that father had a beneficial relationship with minor. The juvenile court also impliedly held that terminating father's rights would not cause detriment to minor.
2. Father's Appeal
a. Visitation and Beneficial Relationship
As we have stated, the juvenile court in this case expressly found that father hadmaintained regular visitation with minor and impliedly found that he had a beneficial relationship with minor.
As we explain in the subsequent section of this opinion, we conclude that remand is appropriate because it is unclear whether the juvenile court appropriately exercised its discretion on the third element of the parental benefit exception in light of Caden C., supra, 11 Cal.5th 614. Because we remand the matter, we do not need to decide whether substantial evidence supports the juvenile court's express and implied findings on the first two elements of the parental benefit exception. (Id. at pp. 639 640 [applying substantial evidence standard of review to first two elements of parental benefit exception to adoption].)
b. Detriment to Minor
The third element of the parental benefit exception is whether a child will suffer detriment from the termination of parental rights. (§ 366.26, subd. (c)(1)(B); Caden C., supra, 11 Cal.5th at p. 631.) Father argues that the juvenile court abused its discretion when it made its detriment finding in light of the California Supreme Court's recent decision in Caden C.
At the section 366.26 hearing, the juvenile court stated that father's visits with minor had been “very sweet” and further stated: “In connection with the 388 hearing, the Court noted that [father] had done a lot of really good things in the last 11 months, but the Court needs to look at what is in [minor's] best interest at this juncture and what provides him with permanency and stability. [¶] And as everyone has noted, it has been a four year process now. There were the two years of family maintenance, there was a year of family reunification. And [minor's needs]... [minor is] a four year old boy with some special needs so he has an even greater need for the kind of stability, permanency, and support. [¶] His parents... undoubtedly love him, but neither of them are able to provide what he needs most, which is the stability and permanency that the preferred Permanent Plan of adoption would provide.”
Based on the juvenile court's statements, it appears that the juvenile court appropriately considered the benefits that a new, adoptive home would provide for minor-stability and permanency. The juvenile court, when assessing whether the harm associated with severing a parental relationship would be detrimental to a child, must weigh the harm “against the benefits of a new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.) Thus, minor's bond with his foster family and the stability that could be provided by adoption were proper factors for the juvenile court to consider.
The juvenile court, however, also stated that both parents were not “able to provide what [minor] needs most, which is the stability and permanency” provided by adoption. The Department argues that the juvenile court's statement reflects a proper consideration of how minor may benefit from maintaining his parental relationships. The juvenile court, however, did not state that the parental relationships were unable to provide minor with stability-the juvenile court stated that the parents were unable to provide stability. This statement suggests that the juvenile court was either considering the parents' ability to be custodial caregivers to minor or the parents' ability to provide minor with a home, considerations that were expressly disapproved in Caden C. As stated in Caden C., “[w]hen it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.) “[T]he section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver.” (Ibid.)
Furthermore, although we previously determined that the juvenile court impliedly found that father had a beneficial relationship with minor, the juvenile court's silence on the existence of a beneficial parental relationship raises concerns about how the juvenile court applied its discretion on the third element. Caden C. clarifies thatthe juvenile court's determination on the third element of the parental benefit exception is a “subtle, case specific inquiry” that requires asking the following question: “does the benefit of placement in a new, adoptive home outweigh ‘the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent]?' ” (Caden C., supra, 11 Cal.5th at p. 633.) “In many cases, ‘the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it would be to lose that relationship.” (Id. at p. 634.) The juvenile court made no findings about the strength and quality of minor's relationship with his mother and father and made no statements that indicated it considered the harm to minor from severing his father's rights. The juvenile court stated only that father's visits with minor had been “very sweet, ” and that both parents “undoubtedly love him.”
After carefully reviewing the record as a whole, we determine that the case must be reversed and remanded. The section 366.26 hearing was held before Caden C.was decided, and the juvenile court did not have the benefit of Caden C.'s guidance when it made its determination on the parental benefit exception. The termination of parental rights is a decision that has permanent and lasting impacts on both minor and his parents. “Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship.” (Caden C., supra, 11 Cal.5th at p. 633.) Accordingly, given the seriousness of the juvenile court's decision, we find that remand is appropriate so that the juvenile court may reconsider whether to terminate father's rights applying the principles set forth in Caden C. (See In re B.D. (2021) 66 Cal.App.5th 1218, 1230 1231 [reversing and remanding order terminating parental rights after juvenile court considered factors subsequently deemed improper in Caden C.].)
3. Mother's Appeal
As we previously stated, unlike with father, the juvenile court expressly found that mother had not met the first element of the parental benefit exception because she had not “fulfilled [the] requirement” of regular visitation. Although the juvenile court did not need to reach the second and third elements of the parental benefit exception because of its finding on the first element, the juvenile court impliedly found that mother had a beneficial relationship with minor because it reached the third element, whether termination would be detrimental to minor, and concluded that minor “would not benefit from continuing the relationship [with mother] given the need for stability and permanency.”
Mother argues that the juvenile court's finding that she did not maintain regular visitation and contact with minor was not supported by substantial evidence. Mother also argues that if this court were to reverse the termination of father's parental rights, we must also reverse the termination of her parental rights.
Reinstatement of one parents' parental rights does not require us to automatically reinstate the other parents' parental rights. (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, 949 [“one parent... cannot benefit from an error in terminating the other parent's rights ‘so as to make into error an errorless termination of her parental rights' ”].) Nonetheless, Courts of Appeal have generally held that when the termination of the parental rights of one parent is reversed, the termination of the other parents' rights should also be reversed because doing so would be in the child's best interest. (In re A.L. (2010) 190 Cal.App.4th 75, 80 [reinstatement of mother's parental rights meant that it was in the children's best interest to have father's parental rights reinstated] (A.L.); In re Mary G. (2007) 151 Cal.App.4th 184, 208 [reinstatement of father's parental rights meant reinstatement of mother's parental rights was in the child's best interest]; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110 111 [reinstatement of mother's parental rights meant that there was no legitimate purpose to be served by leaving children without a father].)
California Rules of Court, rule 5.725(f) states that “[t]he purpose of termination of parental rights is to free the child for adoption.” Thus, “[t]he rights of all parents-whether natural, presumed, biological, alleged, or unknown-must be terminated in order to free the child for adoption.” (Ibid.) Since we reverse the order terminating father's parental rights, the purpose of terminating mother's parental rights-to free minor for adoption-is no longer possible. Accordingly, “there is no legitimate purpose to be served by leaving [minor] without a [mother] and without whatever legal benefits may come to [him] from [mother] and from the [maternal] side of [his] biological family.” (A.L., supra, 190 Cal.App.4th at p. 80.) We therefore conclude that it is in minor's best interest that mother's parental rights be reinstated.
Given our reversal, we do not need to address whether substantial evidence supports the juvenile court's determination that mother had not consistently visited with minor. We also do not need to decide whether mother met her burden to demonstrate the second or third elements of the parental benefit exception.
Finally, since we reverse the orders terminating parental rights, we do not need to reach father's argument that the juvenile court erred in selecting adoption as the permanent plan. We also express no opinion on whether the juvenile court on remand should find that the parental benefit exception should apply to either mother or father.
III. Disposition
The orders terminating parental rights are reversed as to mother and father, and the matter is remanded for the juvenile court to conduct a new Welfare and Institutions Code section 366.26 hearing in accordance with the principles described in In re Caden C. (2021) 11 Cal.5th 614 and in this opinion. On remand, the juvenile court must take into consideration the family's current circumstances and any developments in the dependency proceedings that may have arisen during the pendency of the appeal.
WE CONCUR: ELIA, ACTING P.J., DANNER, J.