In re A.R. CA1/1

Filed 8/20/21 In re A.R. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re A.R., a Person Coming Under
the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
A158143
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. JD-028398-02)
M.B.,
Defendant and Appellant.

M.B. (Mother) appeals from the juvenile court’s termination of her
parental rights to her daughter, A.R. She asserts the court erred in
concluding the beneficial relationship exception to termination of parental
rights did not apply because it did not conduct the Welfare and Institutions
Code section 366.261 hearing in conformance with the principles articulated
in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).2 We reverse and remand.

All further undesignated statutory references are to the Welfare and
1

Institutions Code.
In her initial opening brief, Mother maintained the juvenile court
2

erred in denying her section 388 petition after excluding her supporting
evidence, as well as erred in not applying the beneficial parental relationship

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 BACKGROUND
This appeal is before us on remand from the Supreme Court following
its reversal of our dismissal of the appeal on the ground it was not timely
filed. (In re A.R. (2021) 11 Cal.5th 234, 257-258.) The high court held that
when parents’ “court-appointed attorneys have failed to timely file a notice of
appeal of an order terminating parental rights, parents whose rights have
been terminated may seek relief based on the denial of the statutory right to
the assistance of competent counsel. [Citations.] To succeed in such a claim,
parents must show that they would have filed a timely appeal absent
attorney error and that they diligently sought relief from default within a
reasonable timeframe, considering the child’s ‘ “unusually strong” ’ interest in
finality.” (Ibid.) Following remand, we issued an order reinstating the
appeal.
We set forth some of the background of the case as stated in the
Supreme Court’s opinion and set forth specific facts relating to the issue on
appeal in our discussion of the issue.3
“M.B. gave birth to A.R. in 2016. At the time, M.B. herself was still a
minor. Less than a year later, the Alameda County Social Services Agency
(Agency) filed a petition under . . . section 300 to have A.R. declared a
dependent of the court. The operative petition alleged that M.B. had mental
health concerns, such as depression, that impeded her ability to care for her

exception. Following issuance of Caden C., Mother made a motion to strike
her argument regarding the beneficial relationship exception and to file a
supplemental brief addressing the issue, which we granted. In her reply brief,
Mother withdrew her claim regarding the section 388 evidentiary ruling.
3 We take judicial notice of the opinion in In re A.R., as well as this
court’s records in mother’s petition for writ of habeas corpus in case number
A159518. (Evid. Code, §§ 452, 459.)

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child. The juvenile court sustained the petition. Although the court
attempted to place A.R. with M.B., M.B. later raised concerns about her
ability to care for A.R. while she finished high school. The court ordered A.R.
placed in a foster home while M.B. participated in family reunification
services.
“Several months later, the court entered an order terminating
reunification services. The court noted that it was encouraged by the
mother’s recent progress, however, and expressed openness to M.B. bringing
a future petition under . . . section 388 . . . to modify the order. M.B.’s court-
appointed attorney prepared a record documenting M.B.’s progress as a
parent and her bond with A.R. The court later found M.B. had made a prima
facie case that circumstances had changed so as to warrant modification and
accordingly granted her an evidentiary hearing.
“Two years after A.R. was first declared a dependent, the juvenile court
scheduled a hearing to determine whether to grant M.B.’s section 388
modification petition or, in the alternative, whether to terminate M.B.’s
parental rights. (See . . . § 366.26. . . .) Although M.B. had planned to testify
in support of her section 388 petition, on the day of the hearing she had a
health emergency that landed her in the emergency room and was unable to
attend. Because her original court-appointed attorney was in the process of
quitting her job at the time, a new attorney participated in the hearing on
M.B.’s behalf.
“At the hearing, the court rejected M.B.’s section 388 modification
petition, having excluded M.B.’s supporting evidence on technical grounds.
The court then turned to the question of whether to permanently sever M.B.’s
parental rights. M.B.’s attorney urged the court instead to apply the
beneficial parental relationship exception to the termination of parental

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rights. (§ 366.26, subd. (c)(1)(B)(i).) The court rejected that argument and
entered an order terminating M.B.’s parental rights.” (In re A.R., supra,
11 Cal.5th at pp. 243–244.)

DISCUSSION
The Parental Benefit Exception
The purpose of a section 366.26 hearing is to select a permanent plan
for the child after reunification services have terminated. (In re Marilyn H.
(1993) 5 Cal.4th 295, 304; § 366.26, subd. (b)(1).) “ ‘At a permanency plan
hearing, the court may order one of three alternatives: adoption,
guardianship or long-term foster care. [Citation.] If the dependent child is
adoptable, there is a strong preference for adoption over the alternative
permanency plans.’ ” (In re B.D. (2021) ___Cal.App.5th ___, 2021 WL
3161564, *3.)
“Even when a court proceeds to select a permanent placement for a
child who cannot be returned to a parent’s care, the parent may avoid
termination of parental rights in certain circumstances defined by statute.
One of these is the parental-benefit exception. What it requires a parent to
establish, by a preponderance of the evidence, is that the parent has
regularly visited with the child, that the child would benefit from continuing
the relationship, and that terminating the relationship would be detrimental
to the child. (See . . . § 366.26, subd. (c)(1)(B)(i); Evid. Code, § 115.)” (Caden
C., supra, 11 Cal.5th at pp. 629-630.)
“The existence of the parent-child relationship exception is determined
by taking into consideration many variables which affect a parent-child bond
including, ‘[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.’ ” (In re B.D., supra, 2021
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WL 3161564 at *3, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“ ‘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.’ [Citation.] If
severing the natural parent-child relationship exception would deprive a
‘child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the
natural parent’s rights are not terminated.’ ” (In re B.D., at *3.)
The Caden C. Analysis
Mother maintains the trial court erred in concluding the parental-
benefit exception to termination of parental rights did not apply. She asserts
the juvenile court failed to make specific findings or to “engage in the
required ‘subtle case-specific inquiry’ ” mandated by Caden C.
In Caden C., the minor had been declared a dependent child due to
Mother’s substance abuse and mental health issues. (Caden C., supra,
11 Cal.5th at p. 626.) At the section 366.26 hearing, Caden’s mother asserted
the parental-benefit exception applied. (Caden C., at p. 627.) The trial court
heard testimony “from numerous witnesses for both Mother and the Agency,”
including Mother’s expert who had conducted a bonding study and an expert
from the Agency. (Ibid.) Both experts testified to the strong bond between
Caden and his mother. (Id. at pp. 627-628.) The Agency’s expert opined
“ ‘the narrowness of the bond poses a risk to [Caden’s] ability to devote his
attention, energy, investment to developmentally appropriate tasks now of
learning [and] socialization.’ ” (Id. at p. 627.) Mother’s expert testified that
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Mother’s interactions with Caden were “generally positive,” and that “Caden
had an intense bond with Mother of the kind that might tend to impede
Caden in forming relationships with others but did not seem to have done so
in his case.” (Id. at p. 628.) He believed “given the intense bond, losing
contact with Mother would compound Caden’s other traumas leading to
significant emotional fluctuation, confusion, and acting out in the near term
and in adolescence.” (Ibid.) The trial court ruled Mother had established the
parental-benefit exception, precluding termination of parental rights. (Ibid.)
The Court of Appeal reversed, taking “particular issue with the trial
court’s suggestion that Mother had ‘ “substantially complied with her case
plan” and “continues her efforts to maintain her sobriety and address her
mental health issues.” ’ ” (Caden C., supra, 11 Cal.5th at p. 629.) The
Supreme Court “granted review to clarify the applicability of the parental-
benefit exception—in particular, whether a parent must show progress in
addressing issues such as drug abuse that led to the child’s dependency in
order to establish the exception—and to resolve the standard of review for
decisions regarding the parental-benefit exception.” (Ibid.)
The Supreme Court first explained the purpose and scope of a section
366.26 hearing. “If the court cannot safely return a dependent child to a
parent’s custody within statutory time limits, the court must set a hearing
under section 366.26. [Citation.] [¶] At the section 366.26 hearing, the
question before the court is decidedly not whether the parent may resume
custody of the child. . . . Indeed, when the court orders the section 366.26
hearing, reunification services have been terminated, and the assumption is
that the problems that led to the court taking jurisdiction have not been
resolved.” (Caden C., supra, 11 Cal.5th at p. 630.)

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 “[W]hen the court holds a section 366.26 hearing, it all but presupposes
that the parent has not been successful in maintaining the reunification plan
meant to address the problems leading to dependency.” (Caden C., supra,
11 Cal.5th at p. 637.) Accordingly, “[p]arents need not show that they are
‘actively involved in maintaining their sobriety or complying substantially
with their case plan’ ” and “[a] parent’s continued struggles with the issues
leading to dependency are not a categorical bar to applying the exception.”
(Ibid.) Nonetheless, a parent’s struggle with such issues are relevant “to the
extent they inform the specific questions before the court: would the child
benefit from continuing the relationship and be harmed, on balance, by losing
it?’’ (Id. at p. 638.)
The readiness of parents to have a child returned to their custody is not
“relevant to the application of the parental-benefit exception.” (Caden C.,
supra, 11 Cal.5th at p. 638.) Thus, even where parents have not
demonstrated a likelihood that they will ever be able to regain custody, the
court should not terminate parental rights if doing so “would, when weighed
against the offsetting benefits of an adoptive home, be detrimental to the
child.” (Ibid.) In sum, “[t]he exception preserves the child’s right to the
relationship even when the child cannot safely live with that parent. What it
does not allow is a judgment about the parent’s problems to deprive a child of
the chance to continue a substantial, positive relationship with the parent.”
(Id. at p. 643.)
“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. . . . Even where it may never make
sense to permit the child to live with the parent, termination may be
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detrimental. [Citation.] And the section 366.26 hearing is decidedly not a
contest of who would be the better custodial caregiver.” (Caden C., supra,
11 Cal.5th at p. 634.)
“[U]nderstanding 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
would 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 and 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.” (Caden C., supra, 11 Cal.5th at
p. 634.)
The high court next addressed the applicable standard of review. It
concluded, “We agree with the general consensus: 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—whether termination of parental rights would be
detrimental to the child—is somewhat different. As in assessing visitation
and the relationship between parent and child, the court must make a series
of factual determinations. These may range from the specific features of the
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child’s relationship with the parent and the harm that would come from
losing those specific features to a higher-level conclusion of how harmful in
total that loss would be. The court must also determine, for the particular
child, how a prospective adoptive placement may offset and even
counterbalance those harms. In so doing, it may make explicit or implicit
findings ranging from specific benefits related to the child’s specific
characteristics up to a higher-level conclusion about the benefit of adoption
all told. All these factual determinations are properly reviewed for
substantial evidence.” (Caden C., supra, 11 Cal.5th at p. 640.)
The court went on to explain, however, that the juvenile court “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.”
(Caden C., supra, 11 Cal.5th at p. 640.)
The Section 366.26 Hearing
The Section 366.26 hearing in the instant case was initially set for
February 2019. In its addendum report for that hearing, the Agency reported
Mother was in agreement with adoption by the caregiver. The Agency noted
there had been a Child and Family Team meeting, which Mother attended

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without her attorney. At that meeting, Mother agreed with the adoption
recommendation.
At the hearing, however, Mother’s attorney indicated Mother was not
in agreement with the adoption recommendation. Counsel expressed concern
that Mother was “essentially given legal advice” at the Child Family Team
meeting and “told she had no other option than legal adoption.” Counsel
requested a bonding study and a continuance of the hearing. The court
granted the request for a continuance but denied the request for a bonding
study “if it is being requested at Court expense.”4
In the Agency’s report for the continued hearing, it reported “[M]other
is clearly motivated to protect [A.R.]. When the grandmother became violent,
[Mother] quickly contacted the caregivers to get [A.R.] out of the situation.”
As to visitation, the Agency stated “[A.R.] has been out of [Mother’s] care for
a year, and the mother is not in a position to resume custody. [Mother] has
been visiting, but does not always have control over the chaotic environment
where she currently lives, and there have been times when she has had to cut
visits short or cancel.” One instance was because Mother had “voluntarily
been hospitalized” for five days. The Agency reported this showed good
judgment on Mother’s part, because she sought help when she “was
experiencing depression.” The hearing was again continued, ultimately until
June.

4Mother did not contest that ruling. The Supreme Court in Caden C.
explained: “Trial courts should seriously consider, where requested and
appropriate, allowing for a bonding study or other relevant expert testimony.”
(Caden C., supra, 11 Cal.5th at p. 633, fn. 4). “[O]ften expert psychologists[,]
who have observed the child and parent can synthesize others’ observations[,]
will be an important source of information about the psychological
importance of the relationship for the child.” (Id. at pp. 632–633.)

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 In its report for the continued hearing, the Agency indicated the
current visitation schedule for Mother “is two weekend visits per month
(Friday through Sunday) and one additional day per month.” Although
Mother had unsupervised visitation with A.R., the Agency reported “[M]other
continues to cut visits short” for various reasons. The caregiver reported A.R.
was “dysregulated” after the visits. The Agency recommended termination of
parental rights “based on the findings made herein and on previous findings
and orders terminating or denying services to the parents.”
At the continued hearing, Mother’s attorney raised the parental benefit
exception to termination of Mother’s rights. She maintained “it’s an unfair
inference for the Agency to argue that [A.R.], according to the caregiver, is
dysregulated when she returns from visits with [Mother], it’s unfair to infer
that that is because of anything negative happening during the visits. . . .
[Given] the evidence that we have it could also be just as reasonably inferred
that [A.R.] is dysregulated after she returns from visits with [Mother]
because she is bonded to [Mother], that she benefits from spending time with
[Mother] and it is difficult to have to leave [Mother] because she does have
such a strong bond with [Mother].”
The Agency sought admission of five of its prior reports, one prepared
for the continued June section 366.26 hearing, a report and addendum for a
March 20 scheduled hearing, and a section 366.26 report and an addendum
prepared for the February 6 hearing. The court admitted those reports and
declared the matter “submitted on the evidence.”
After hearing argument from counsel for the Agency, Mother, and A.R.,
the court recessed to “review a few reports that were admitted into evidence.”
The court subsequently ruled “the recommendations found at the end of the
[Agency’s] memorandum prepared for today’s date, June 12, are appropriate
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to our circumstances. The Court will not find on our record that the parental
benefit exception applies in this case.” The court further stated that
“[t]oday’s termination of parental rights is based upon the findings made
today and previous findings made denying and/or terminating services to the
parents.”
It is not clear what the “findings made today” consisted of, other than
the juvenile court’s reliance on its prior findings. And those prior findings
were made in connection with terminating services to Mother, which Caden
C. makes clear are based on an entirely different determination than that
which must be made with respect to the parental benefit exception. Indeed,
the findings made in connection with terminating services were based on the
Agency’s recommendations adopted by the Court as its findings, and
included: “Reasonable services have been offered or provided. . . .
[¶] [M]other . . . has not . . . participated regularly and made substantive
progress in court-ordered treatment programs; [¶] . . . [has not] made
substantive progress in complying with the case plan; [or] [¶] alleviated or
mitigated the causes necessitating out-of-home placement.”
But as the court in Caden C. explained, “[p]arents need not show that
they are ‘actively involved in maintaining their sobriety or complying
substantially with their case plan’ [citation] to establish the exception.”
(Caden C., supra, 11 Cal.5th at p. 637.) Thus, the findings on which the court
relied in terminating reunification services were simply not relevant to a
determination of the whether the parental benefit exception applied.
The Agency, apparently recognizing that under Caden C., the juvenile
court’s express findings do not support its ruling, maintains: “Even if the

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court did not specifically note the issues in its decision, the evidence was
clear and thus the findings are implied.”5
Rather than making only implied findings, however, the court here
made express findings: “[t]oday’s termination of parental rights is based
upon the findings made today and previous findings made denying and/or
terminating services to the parents.” The previous findings on which it
expressly relied—those supporting the termination of services to Mother—
could not be the basis for denial of the parental benefit exception at a section
366.26 hearing under Caden C. Thus, the court’s express findings
demonstrate it considered factors which Caden C. has since explained are
inappropriate in determining whether the parental benefit exception applied.
(See Caden C., supra, 11 Cal.5th at pp. 632-633.)
In sum, “the juvenile court did not have the benefit of the guidance
provided in Caden C.,” and as a consequence considered improper factors in
determining whether the parental benefit exception applied. (In re B.D.,
supra, 2021 WL 3161564, * 5.) We therefore remand the matter for the court
to conduct a new section 366.26 hearing in accordance with Caden C. We

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“The doctrine of implied findings requires the appellate court to infer
the trial court made all factual findings necessary to support the judgment.”
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) It
has been applied to an order rejecting the parental benefit exception where
the record overwhelmingly supported that finding. (See In re Andrea R.
(1999) 75 Cal.App.4th 1093, 1109.) In that case, “neither parent had visited
[the minor] regularly during the past six years of her life, neither had
progressed beyond monitored visits, neither played a meaningful and
significant parental role, and the most recent visits and telephone calls with
appellants had left [the minor] confused, upset, and so anxiety-ridden that
she lost control of her bodily functions.” (Ibid.)

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express no opinion on whether the parental benefit relationship exception
applies.
DISPOSITION
The order terminating parental rights is reversed. The matter is
remanded for the juvenile court to conduct a new section 366.26 hearing in
conformance with the principles articulated in Caden C., supra, 11 Cal.5th
614, and taking into consideration the family’s current circumstances and
any developments in the dependency proceedings that may have arisen
during the pendency of the Supreme Court’s review and this appeal.

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P.J.

_________________________
Sanchez, J.

A158143, Alameda County Social Services v. MB

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