Filed 8/12/22 In re Christopher M. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CHRISTOPHER M., a B313002
Person Coming Under the
Juvenile Court Law. (Los Angeles County
________________________________ Super. Ct. No. DK23650)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephanie M. Davis, Juvenile Court Referee.
Affirmed.
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant Christopher M.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Christopher M. appeals from the juvenile court’s order
under Welfare and Institutions Code section 366.26 terminating
his parental rights to his son, C.M., who is now five years old.1
He argues the juvenile court erred in ruling the parental-benefit
exception under section 366.26, subdivision (c)(1)(B)(i), did not
apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Detains C.M., Sustains a Petition,
and Removes C.M. from His Parents
Michele W., who is not a party to this appeal, gave birth to
C.M. in April 2017. When the hospital was ready to discharge
C.M. from the neonatal intensive care unit, a hospital social
worker told the Los Angeles County Department of Children and
Family Services that the hospital was concerned about C.M.’s
safety because he was medically fragile and Michele did not
appear healthy enough to care for him. In addition, Michele and
Christopher appeared to be under the influence of a substance.
1 Statutory references are to the Welfare and Institutions
Code.
2
The next day Michele was admitted to the hospital and tested
positive for methamphetamine.
The family agreed that the hospital would release C.M. to a
maternal aunt and that Michele and Christopher would take
drug tests. On April 19, 2017 Christopher tested positive for
methamphetamine and amphetamine. On May 10, 2017 the
juvenile court issued a removal warrant, and the Department
placed C.M. in a foster home.
The Department filed a petition under section 300,
subdivision (b)(1), alleging in counts b-1 and b-2 that Michele’s
and Christopher’s substance abuse placed C.M. at risk of serious
physical harm.2 At the May 17, 2017 detention hearing the
juvenile court found Christopher was C.M.’s presumed father and
detained C.M. from Michele and Christopher. The court ordered
that Michele and Christopher could have two-hour monitored
visits at least three times a week.
At the July 26, 2017 combined jurisdiction and disposition
hearing the court sustained the counts against Michele and
Christopher and declared C.M. a dependent child of the court
under section 300. The court removed C.M. from Michele and
Christopher and ordered the Department to provide reunification
services.
2 The petition also included counts alleging that Christopher
failed to ensure C.M.’s older half-sibling regularly participated in
mental health counseling and failed to obtain psychotropic
medication for the half-sibling, that Christopher’s mental and
emotional problems rendered him incapable of providing regular
care and supervision for C.M., and that Christopher medically
neglected C.M.’s half-sibling. The juvenile court dismissed these
counts at the jurisdiction hearing.
3
B. Michele and Christopher Fail To Reunify with C.M.,
and the Court Terminates Their Parental Rights
At a May 23, 2018 review hearing the foster mother and
social worker reported that monitored visits between July 2017
and January 2018 went well and that Michele and Christopher
acted appropriately, but that during a visit in February 2018
Christopher was under the influence of drugs and was unable to
spend time with C.M. Christopher tested positive for
methamphetamine five times between August and November
2017 and twice in January 2018, and he missed two drug tests in
February 2018. In a last minute information report, the
Department stated that Michele continued to visit C.M. weekly,
but that Christopher was not visiting or making himself available
to the Department. The court terminated Christopher’s
reunification services but continued them for Michele. The court
subsequently placed C.M. with his maternal aunt, terminated
Michele’s reunification services, and set the matter for a selection
and implementation hearing under section 366.26.3
At the selection and implementation hearing under section
366.26 on May 17 and 18, 2021, counsel for Christopher argued
terminating Christopher’s parental rights would be detrimental
to C.M. because it would deprive him of “the positive emotional
attachment he has” with his father. The court found that,
although there had been “regular and consistent visitation,” the
visits did not create “a parental relationship between the minor
3 Christopher filed petitions under section 388 in June 2019
and September 2019. The court denied both petitions without a
hearing. Michele filed a petition under section 388 in July 2019,
which the court denied after an evidentiary hearing in August
2019.
4
and the parents” sufficient to establish “the exceptional
circumstances where a parental bond can be claimed.” The court
stated that the visits amounted to “play dates” where “no
significant parenting” occurred and that Christopher, unlike
Michele, was generally “a passive participant.” The court also
stated that C.M. was four years old (at the time) and had never
lived with his parents, that Michele and Christopher had “never
graduated from anything other than monitored contact,” and that
C.M. saw his caregivers as his primary parental support.
Finally, the court stated Christopher was not familiar with the
extensive services C.M. required and had not attended any of
C.M.’s appointments for one to two years. The court terminated
Michele’s and Christopher’s parental rights and designated
C.M.’s maternal aunt and uncle as the prospective adoptive
parents. Christopher timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
The purpose of a section 366.26 hearing is “‘to select and
implement a permanent plan for the child’” after reunification
services have been terminated. (In re Caden C. (2021) 11 Cal.5th
614, 630 (Caden C.); see In re D.M. (2021) 71 Cal.App.5th 261,
268 (D.M.).) If the court determines “the child is likely to be
adopted,” the court must “terminate parental rights to allow for
adoption.” (Caden C., at p. 630; see § 366.26, subd. (c)(1).) “But if
the parent shows that termination would be detrimental to the
child for at least one specifically enumerated reason, the court
should decline to terminate parental rights and select another
permanent plan.” (Caden C., at pp. 630-631; see § 366.26,
5
subd. (c)(1)(B), (4)(A).) One of those reasons, the parental-benefit
exception, requires the parent to establish by a preponderance of
the evidence (1) “the parent has regularly visited with the child,”
(2) “the child would benefit from continuing the relationship,”
and (3) “terminating the relationship would be detrimental to the
child.” (Caden C., at p. 629; see § 366.26, subd. (c)(1)(B)(i); D.M.,
at p. 268.)
“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; see In re A.L.
(2022) 73 Cal.App.5th 1131, 1151.)
To establish the second element, “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.” (Caden C.,
supra, 11 Cal.5th at p. 636; see In re J.D. (2021) 70 Cal.App.5th
833, 852.) 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., at p. 632; see
J.D., at p. 854.) In assessing the attachment, “courts often
consider how children feel about, interact with, look to, or talk
about their parents.” (Caden C., at p. 632; see J.D., at p. 854.)
“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. [Citations.] Because
terminating parental rights eliminates any legal basis for the
6
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.” (Caden C., supra,
11 Cal.5th at p. 633; see In re A.L., supra, 73 Cal.App.5th at
p. 1151.)
A “substantial evidence standard of review applies to the
first two elements.” (Caden C., supra, 11 Cal.5th at p. 639; see
In re L.A.-O. (2021) 73 Cal.App.5th 197, 206.) Regarding the
third element, 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 . . . is
discretionary and properly reviewed for abuse of discretion.”
(Caden C., at p. 640; see L.A.-O., at p. 206.)
B. The Juvenile Court Did Not Abuse Its Discretion in
Finding the Parental-benefit Exception Did Not Apply
Christopher argues that, although “[f]or the most part” the
juvenile court’s “observations were not incorrect,” the court
“misunderstood and misapplied” the parental-benefit exception
by considering factors the Supreme Court deemed improper in
Caden C., decided nine days after the juvenile court terminated
Christopher’s parental rights. It is true the juvenile court’s
ruling was not entirely consistent with Caden C. For example,
the court’s statements that “there has to be a parental
relationship between the minor and the parents” and that “there
is no significant parenting that goes on during the visitation”
may run counter to the Supreme Court’s admonitions in Caden C.
that “courts must remain mindful that rarely do ‘[p]arent-child
7
relationships’ conform to an entirely consistent pattern” and that
“it is not necessary—even if it were possible—to calibrate a
precise ‘quantitative measurement of the specific amount of
“comfort, nourishment or physical care” [the parent] provided
during [his or] her weekly visits.’” (Caden C., supra, 11 Cal.5th
at p. 632.) Similarly, the court’s comments Christopher was
“unable to describe with any detail [C.M.’s] extensive services”
and “did not attempt to engage in any of those services or
appointments” suggest the court may have improperly compared
Christopher’s attributes as a custodial caregiver to those of the
prospective adoptive parents. (See id. at p. 634 [juvenile court
should not “compar[e] the parent’s attributes as custodial
caregiver relative to those of any potential adoptive parent(s)”];
In re D.M., supra, 71 Cal.App.5th at p. 270 [the Supreme Court in
Caden C. “made clear the beneficial relationship exception is not
focused on a parent’s ability to care for a child or some narrow
view of what a parent-child relationship should look like”]; ibid.
[juvenile court erred in focusing on whether the father attended
medical appointments and understood his children’s medical
needs rather than on the attachment between the children and
their father].)4
But any inconsistency between the juvenile court’s
evaluation of Christopher and C.M.’s relationship and the
Supreme Court’s soon-to-be-issued decision in Caden C. was
4 Christopher also asserts that under Caden C. his “failure to
prove or maintain sobriety is not a bar to the beneficial
relationship exception.” Also true. But although counsel for the
Department mentioned Christopher’s substance abuse during the
section 366.26 hearing, the juvenile court did not, and there is no
indication it was a factor in the court’s decision.
8
harmless because Christopher did not present any evidence that
terminating the relationship “would be detrimental to the child
even when balanced against the countervailing benefit of a new,
adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.)
Christopher points to evidence that his visits with C.M. generally
went well, that Christopher acted appropriately, that C.M. was
happy and excited to see Christopher, and that C.M. referred to
Christopher as “daddy.” There was also evidence that
Christopher brought C.M. clothes, food, and diapers; that he
hugged and kissed C.M. and played with him; and that he
encouraged C.M. to say his “ABCs” and learn how to identify
colors and shapes. Christopher argues this evidence showed C.M.
“was positively attached” to him.
Some of the evidence suggested Cristopher was attached to
his son (although there was not much evidence suggesting C.M.
was attached to his father). But there was no evidence that
terminating the relationship, however positive that relationship
might be, would be detrimental to C.M. Although C.M. enjoyed
his parents’ visits, there was no evidence he looked forward to
them or had trouble separating. In fact, the evidence was that
C.M. was more bonded to Michele than to Christopher. During
one visit in September 2019, C.M. “appeared to be excited to see
his mother,” but when Christopher “attempted to greet” his son,
C.M. “did not greet or acknowledge him.” When Christopher
tried to push C.M. on a toy, C.M. “became upset and did not want
father to push him.” In October 2019 the monitor described
C.M.’s interaction with Christopher as “minimal” and
“standoffish.” The monitor observed that C.M. “does not cry or
appear sad when the visit ends.” Even Christopher testified that
the last time C.M. appeared sad toward the end of a visit was
9
before the COVID-19 pandemic began in March 2020. When
virtual visits began in 2020, Christopher usually sat behind
Michele and engaged with C.M. less than she did.
In short, whatever relationship C.M. had with Christopher,
there was no evidence whether severing that relationship would
be harmful to C.M., how C.M. would be affected by losing that
relationship, or what life would be like for C.M. without
Christopher in his life. (Caden C., supra, 11 Cal.5th at p. 633;
see In re A.L., supra, 73 Cal.App.5th at pp. 1158-1159 [though
the child viewed the father as “‘a fun, friendly person’ to have
visits with,” the child “had no difficulty separating from father at
the end of visits” and “was easily redirected when father had
missed scheduled video visits”]; compare In re D.M., supra,
71 Cal.App.5th at p. 271 [children had lived with their father for
two to eight years, wanted to return to him, and cried when visits
with him concluded]; In re J.D., supra, 69 Cal.App.5th at
pp. 857-858 [child frequently expressed a desire to go to his
mother’s house, told her he loved her, and sought her attention
during visits]; In re B.D. (2021) 66 Cal.App.5th 1218, 1229 & fn. 4
[children looked forward to seeing their parents, greeted them
with hugs, and expressed sadness at the end of visits].) Nor does
Christopher argue there was any such evidence. Indeed, the
evidence showed severing the relationship between Christopher
and C.M. would not cause C.M. any detriment at all.
In contrast, the evidence C.M. would benefit from adoption
by his foster parents was significant. C.M. had lived with his
foster parents for nearly three of his four years and, as the
juvenile court found, C.M. saw them as “his primary parental
support, the ones that he goes to for comfort, the ones that he
goes to for his needs and who have been meeting his needs.” The
10
Department reported C.M. displayed “affection towards the
caregivers” and referred to his foster mother as “mommy.” (See
In re A.L., supra, 73 Cal.App.5th at p. 1158 [child “told social
workers that she was very happy living with the caregivers,”
called them “‘mommy,’ ‘mom,’ ‘dad,’ and ‘daddy,’” and said “she
loved them”].) On this record, any error in the juvenile court’s
ruling on what is now the second step of the Caden C. analysis
was harmless.
DISPOSITION
The juvenile court’s order terminating Christopher’s
parental rights is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
11