California Court of Appeal Jul 7, 2023 No. E080858Unpublished
Filed 7/7/23 In re Giovanni G. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Giovanni G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E080858
Plaintiff and Respondent, (Super.Ct.Nos. J288561, J288562)
v. OPINION
E.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Jessica L. Morgan, Deputy County Counsel,
for Plaintiff and Respondent.
1
In this dependency proceeding, E.G. (father) appeals from the termination of his
parental rights to his minor sons, Jacob G. and Giovanni G. (collectively, the children).
Father argues that the juvenile court erred by failing to apply the beneficial parental
relationship exception under Welfare and Institutions Code section 366.26, subdivision
(c)(1)(B)(i) (section 366.26(c)(1)(B)(i)) (unlabeled statutory references are to this code).
The family came to the attention of San Bernardino County Children and Family
Services (CFS) in March 2021, when Jacob was nine years old and Giovanni was three
years old. CFS received a referral from paternal grandmother, who was concerned about
the children’s safety because of the drug use of father and G.M. (mother) (collectively,
parents). The children and parents had lived in paternal grandmother’s home but moved
out after paternal grandmother told mother to leave because of mother’s drug use.
While the family was living at paternal grandmother’s house in February 2021,
mother’s boyfriend had fired several gunshots at father outside of the house. Mother was
present when the shooting occurred. Mother had taken one of the children into the house
immediately before the shooting. Law enforcement arrested mother and her boyfriend.
A social worker investigated the referral and found father and the children living
at maternal grandmother’s house. The children were wearing dirty clothing, Giovanni’s
face was dirty, and Jacob had not attended school for several weeks. Father and Jacob
could not explain why Jacob had not been to school. Jacob reported that father
2
disciplined Giovanni by “smack[ing]” Giovanni in the arm or the stomach. Father denied
that mother had been arrested and denied that mother used drugs but admitted that he
used marijuana.
CFS took both children into protective custody pursuant to a warrant. CFS filed a
petition under subdivisions (b)(1) and (g) of section 300, alleging that the children were
at substantial risk of serious physical harm because of parents’ substance abuse and
history of domestic violence and mother’s inability to support the children due to her
incarceration. Mother is not a party to this appeal.
The juvenile court detained the children in the home of Ms. C, a nonrelative
caregiver.1 The court ordered weekly, two-hour supervised visits for father and gave
CFS discretion to liberalize the frequency and duration of the visits.
In the jurisdiction and disposition report, CFS reported that father had not visited
the children. Ms. C was in the process of scheduling the children’s wellness exams.
The court held the jurisdiction and disposition hearing in April 2021. The court
sustained the allegations in the petition, removed the children from parents’ custody,
declared the children dependents of the court, and ordered reunification services for
parents. The court found father to be the children’s presumed parent.
In the six-month status review reported filed in October 2021, CFS reported that at
Giovanni’s initial medical examination in April 2021 he was underweight and diagnosed
1 In its reports, CFS occasionally mistakenly refers to the children’s caregiver as Ms. R rather than Ms. C, but the record confirms that the children were placed in only one home (Ms. C’s) after being removed.
3
with failure to thrive. By June 2021, Giovanni had “gained an appropriate amount of
weight,” and his weight was no longer a medical concern. In addition, Giovanni had
numerous teeth extracted because he had 20 cavities along with “multiple decay and
ab[s]cesses.”
Jacob was attending fourth grade. In April 2021, Jacob was reading at a preschool
level. In October 2021, Jacob’s reading had improved so that he was reading at almost a
first-grade level. He also had “85% accuracy in spelling tests.” Jacob’s teacher reported
that he was “putting a lot of effort into his learning” and was “a role model student,
winning an award in math and another in integrity.”
When initially placed with Ms. C, Giovanni was angry and dependent on Jacob for
meeting his needs. Jacob acted like Giovanni’s “primary caregiver.” Giovanni was
making progress in treatment. Ms. C reported that Giovanni’s “tantrums [were] reduced
to approximately one time daily.”
During the reporting period, Ms. C supervised father’s weekly visits with the
children. CFS had increased the visits to twice weekly, two-hour supervised visits. The
children enjoyed spending time with father, who brought supplies and activities to visits
to engage with the children. Ms. C reported that father had “no boundaries with the
children.”
At the six-month status review hearing in October 2021, the court ordered
continued reunification services for father.
4
CFS filed the 12-month status review report in March 2022. The children
remained placed with Ms. C. CFS recommended terminating father’s reunification
services. Father had completed services but lacked insight into understanding domestic
violence and how it had traumatized the children. Father’s substance abuse issues
remained unresolved. CFS suspected that father continued to have a relationship with
mother.
During the reporting period, father visited the children once weekly for six hours.
Ms. C supervised the visits and reported that father’s “behaviors” were improving but
that he still needed “boundaries and structure.” Giovanni hit father, and father did not
redirect Giovanni. Father struggled to follow “a structured schedule.” He did not
understand that dinnertime was “not time to play.” When Jacob needed help with
homework, father did not help and instead played with Giovanni, which caused Jacob to
be frustrated. Jacob was not allowed to play until he finished his homework.
Ms. C reported that Giovanni had temper tantrums when visiting with father but
no longer had temper tantrums at home. At home, Giovanni used “his words to express
what he [was] feeling” when he felt frustrated.
The social worker explained to father the concerns that Ms. C had about father’s
visits. Father denied not helping Jacob with homework and explained that Giovanni
would get upset if father did not play with Giovanni.
In an addendum report filed in April 2022, CFS reported that father continued “to
be a ‘buddy’ to” the children during visits and “struggle[d] with the role of a parent.”
5
Giovanni continued to have temper tantrums during father’s visits and ran into a parking
lot during one visit.
The court held the contested 12-month status review hearing the following month.
CFS, the children’s counsel, and father’s counsel agreed that father should receive
continued reunification services, which the court ordered.
In September 2022, CFS filed the 18-month status review report and an addendum
report. CFS recommended terminating father’s reunification services and setting a
selection and implementation hearing under section 366.26. CFS reported that father
continued to lack insight into why the children had been removed and how domestic
violence between him and mother had affected the children.
During the reporting period, CFS had liberalized father’s visits so that he visited
with the children three times per week for two hours. During one visit in June 2022,
father told the children that they would be living together in a house he was going to rent.
Ms. C redirected father. After the visit, Giovanni had a “‘meltdown’” and said “he was
tired of living in [Ms. C’s] home and was going home with” father. Ms. C reported that
Jacob had also had “several ‘meltdowns’” related to father’s promises to the children that
he was getting housing for them all to live in and that he would take them to Disneyland
after they reunified.
Ms. C initially reported to CFS that father had made “small improvements” and
appeared to be “making more of an effort to parent the children.” In July 2022, Ms. C
reported that she was frustrated with father’s visits. According to Ms. C, father continued
6
to “‘mess around in the visits.’” Ms. C described father “as a child trying to be an adult”
and as being “not consistent in his parenting.” For example, at a doctor’s appointment
for Giovanni, father “showed no interest in speaking with the doctor.” Father played with
the children in the lobby while Ms. C spoke with the doctor. Father similarly played in
the lobby at Jacob’s psychiatrist appointment. Ms. C believed that father appeared to be
“trying to do the right thing, but then returns to being one of the ‘kids.’” Giovanni had
“temper tantrums” while visiting with father but otherwise had none.
Ms. C described one visit that had occurred at a McDonald’s restaurant a couple of
weeks earlier. The children were being loud and appeared to be “annoying people,” but
father did not redirect them. Father accompanied the children to the restroom but did not
return in a timely manner, which concerned Ms. C. A male employee opened the
restroom door for Ms. C after she heard yelling and screaming. Giovanni was “on the
floor, surrounded by poop and [father] was trying to clean it up.” Giovanni had “pooped
outside the toilet and was playing in it,” and Jacob had “joined in.”
The social worker asked father about the McDonald’s incident. Father said “that
he was working with Giovanni to wipe himself,” but Giovanni had “defecated outside the
toilet” and stepped “in the poop.” Father had to clean the toilet, the floor, Giovanni, and
Giovanni’s shoes. Father explained that “Jacob laughs when there is farting or poop
involved.”
After speaking with father about the incident, the social worker observed a visit
between father and the children at a restaurant. Father bought pizza for the children and
7
played games with them. The children were well-behaved. Father took the children to
the restroom without incident.
At the 18-month status review hearing in September 2022, the juvenile court
terminated father’s reunification services and set a selection and implementation hearing
under section 366.26.
In preparation for the section 366.26 hearing, the social worker reported that the
children appeared “adjusted and comfortable in” Ms. C’s home, where they had lived
since March 2021. Ms. C described her relationship with the children as “‘very good’”
and loving. Ms. C shared “a strong connection” with the children, and they gave her “‘a
lot of love.’” Mr. C described his relationship with the children as “‘good’” and stable.
Mr. C said that the children “identify with him, and they share common interests.” Mr.
and Ms. C wanted to adopt the children.
Asked how he felt about being adopted, Jacob said that he felt “‘happy’ about
being able to stay with the prospective adoptive parents.” Jacob was 11 years old. The
social worker believed that Jacob understood what it meant to be adopted in that he
understood that Mr. and Ms. C would “be his ‘forever’ home and family.” Jacob viewed
Mr. and Ms. C as family. Jacob was in sixth grade and reading at a fourth grade level.
Jacob’s goal was to read at a seventh grade level by the end of the school year.
Giovanni was five years old and did not “understand the concept of adoption.”
Giovanni “was ‘afraid’ about being adopted because he did not want to go to a ‘new
home.’” When the social worker explained to Giovanni that he would remain with Mr.
8
and Ms. C and that they would “be his forever home and family, Giovanni appeared to be
relieved.” Giovanni did not understand that he would not be able to reunify with father.
Both Jacob and Giovanni described Mr. and Ms. C to their “peers or others” as
their “mom and dad” and described Mr. and Ms. C’s children to others as their siblings.
The children appeared “adjusted and comfortable” in Mr. and Ms. C’s home. Mr. and
Ms. C “reported improvements in the children’s initial behaviors.” Jacob no longer acted
as Giovanni’s parent.
CFS recommended terminating father’s parental rights and freeing the children for
adoption. The social worker opined that terminating “[p]arental rights would not be
detrimental to [the] children.”
The court held the contested section 366.26 hearing in March 2023. The court
admitted into evidence and considered CFS’s reports and a bonding study report prepared
by Dr. Robert E. Brodie II, Ph.D., a clinical psychologist. Father and Dr. Brodie testified.
The parties stipulated that Dr. Brodie was an expert, and the court accepted the
stipulation.
Dr. Brodie testified about the bonding study that he conducted of father and the
children in February 2023. Dr. Brodie interviewed Jacob, Giovanni, Ms. C, and father
separately and observed a 45-minute visit with father and the children at a fast food
restaurant. When the children arrived at the restaurant, father and Jacob were excited to
see one another. Giovanni was sleeping in Ms. C’s arms. During the study, father
bought the children food, helped Giovanni prepare his food, and encouraged Giovanni to
9
finish his meal. Father brought a card game and helped the children make a craft. Father
was patient with the children. The children smiled throughout the visit “and appeared
very comfortable with their father.” Dr. Brodie testified that father occupied a “parental
role” during the visit.
Dr. Brodie said that Jacob understood what adoption means but that it was difficult
to assess Jacob’s wishes because Jacob appeared to answer questions “in a manner that
[Jacob] believe[d] would please the questioner.” Jacob initially told Dr. Brodie that he
wanted “‘to go back with [his] dad.’” But Jacob then amended his answer to say that “he
was not sure,” even though he loved father, because Ms. C “takes good care of him.”
Jacob could not answer whether he wanted overnight visits with father. Giovanni was
nervous when he spoke with Dr. Brodie and did not provide Dr. Brodie with any
meaningful information about Giovanni’s relationship with father.
In the report, Dr. Brodie opined that both Jacob and Giovanni were “well
connected” and “bonded” with father and shared “a positive and secure attachment” with
him. At the visit observed by Dr. Brodie, the children were excited to see father and
comfortable with him. Giovanni viewed father “as a safety figure” and had “laid
comfortably on” father’s chest. Dr. Brodie concluded the report with his opinion “that
both children have a secure attachment to their father and it will be in the best interest of
the children to continue the reunification process.”
In an addendum report filed the day of the hearing, CFS addressed Dr. Brodie’s
report and continued to recommend terminating father’s parental rights. CFS opined that
10
Dr. Brodie’s opinion was based on one “very brief observation[] in a controlled
environment,” in which father’s ability to parent the children in a difficult situation or
otherwise to meet their needs was not challenged.
Dr. Brodie testified that father “seemed well connected” with the children, so the
children “would benefit from continuing th[eir] relationship with” him. Dr. Brodie also
believed that it would be detrimental to the children to terminate father’s parental rights
because of the “strong connection” the children had with father. On cross-examination,
Dr. Brodie confirmed that “no part of [his] assessment was directed at weighing the
relative benefits of preserving the parent-child relationship versus the benefits that the
children may gain from adoption.”
Father testified that he had attended all of the scheduled visits with the children.
The children were “happy and excited” to see father at the beginning of visits but “get
sad’ when visits end. Both children acted affectionately toward father. Giovanni
“constantly” asked when he would “be able to come home.” During visits, father played
card games with the children and asked them about school, homework, and whether they
were sleeping and eating. Father said that the children referred to him as “Dad” and
“Mom.”
The juvenile court found the children likely to be adopted, and the court
terminated father’s parental rights. Applying the elements of the parental bond exception
as set forth in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), the court found that
father “clearly” satisfied the first element of regular visitation. As to the second element,
11
the court found that the children had “a positive emotional attachment” to father but that
it was “questionable” whether the attachment was substantial. As to the third element,
the court found that father had not carried his burden of showing “a substantial
attachment or that termination of parental rights would be so detrimental that the Court
should implement a less permanent plan.” The court recognized that the children, and
particularly Jacob as the older child, would suffer “some detriment” from the termination
of father’s parental rights, but the court did not believe that the detriment outweighed
“the benefits and stability that the adoptive home provides.” The court indicated that the
children had been out of parents’ custody for two years and “found a home where they
can be together—permanently together in a stable placement.”
Concerning the second and third elements, the court reasoned that Jacob’s
statements at nearly 12 years old “undermine both of those prongs in that he does
understand what adoption means and he has expressed a number of times that he does
wish to be adopted.” As to Giovanni, the court found it “telling” that Giovanni’s anxiety
decreased when he was told that adoption meant that he would stay with Ms. C.
DISCUSSION
Father argues that the juvenile court erred by failing to apply the beneficial
parental relationship exception under section 366.26(c)(1)(B)(i). We are not persuaded.
When the juvenile court finds that a dependent child is likely to be adopted, it
must terminate parental rights and select adoption as the permanent plan unless it finds
that adoption would be detrimental to the child under one of several exceptions.
12
(§ 366.26, subd. (c)(1); Caden C., supra, 11 Cal.5th at pp. 630-631.) The “‘statutory
exceptions merely permit the court, in exceptional circumstances [citation], to choose an
option other than the norm, which remains adoption.’” (Caden C., at p. 631, quoting In
re Celine R. (2003) 31 Cal.4th 45, 53.)
Under the beneficial parental relationship exception, the parent bears the burden of
proving three elements by a preponderance of the evidence: “(1) regular visitation and
contact, and (2) a relationship, the continuation of which would benefit the child such that
(3) the termination of parental rights would be detrimental to the child.” (Caden C.,
supra, 11 Cal.5th at pp. 631, 636, italics omitted; § 366.26(c)(1)(B)(i).)
We review for substantial evidence the juvenile court’s findings on whether the
parent has regularly visited and whether a beneficial parental relationship exists. (Caden
C., supra, 11 Cal.5th at pp. 639-640.) Whether termination of parental rights would be
detrimental to the child because of the beneficial parental relationship is reviewed for
abuse of discretion. (Id. at p. 640.) But we review any factual findings underlying that
decision for substantial evidence. (Ibid.) “A court abuses its discretion only when ‘“‘the
trial court has exceeded the limits of legal discretion by making an arbitrary, capricious,
or patently absurd determination.’”’” (Id. at p. 641.) We have no authority to substitute
our decision for that of the juvenile court “‘“‘[w]hen two or more inferences can
reasonably be deduced from the facts.’”’” (Ibid.)
In determining whether the exception applies, “the court balances the strength and
quality of the natural parent/child relationship in a tenuous placement against the security
13
and the sense of belonging a new family would confer. If severing the natural
parent/child relationship would deprive the 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 Autumn H. (1994) 27
Cal.App.4th 567, 575 (Autumn H.); Caden C., supra, 11 Cal.5th at p. 633.)
When “assessing whether termination would be detrimental, the trial court must
decide whether the harm from severing the child’s relationship with the parent outweighs
the benefit to the child of placement in a new adoptive home.” (Caden C., supra, 11
Cal.5th at p. 632, citing Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must
show that his or her relationship with the child “promotes the well-being of the child to
such a degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.” (Autumn H., at p. 575.) “A showing the child derives some
benefit from the relationship is not a sufficient ground to depart from the statutory
preference for adoption.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 646, disapproved
on other grounds in Caden C., at pp. 637, 638, fns. 6, 7.) The court may consider issues
ranging from “the specific features of the 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.” (Caden C., at p. 640.) The court must also
assess “how a prospective adoptive placement may offset and even counterbalance those
harms,” and in that regard the court may consider “findings ranging from specific
14
benefits related to the child’s specific characteristics up to a higher-level conclusion
about the benefit of adoption all told.” (Ibid.)
The juvenile court found, it is undisputed, and we agree that father maintained
regular visitation and contact with the children. We assume for the sake of argument that
the children would benefit from a continued relationship with father. The remaining
element is whether the children shared such a “substantial, positive attachment” to father
(Caden C., supra, 11 Cal.5th at p. 636) that the harm in severing the parental relationship
would “outweigh[] ‘the security and the sense of belonging a new family could confer’”
(id. at p. 633).
The juvenile court did not abuse its discretion by determining that any benefits
derived from the children’s relationship with father did not outweigh the benefit of
stability through adoption. The record reflects that the children enjoyed visiting with
father and loved him. But “[a] parent must show more than frequent and loving contact
or pleasant visits.” (In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) Although Dr.
Brodie opined that the children have a strong, positive connection with father, there was
no evidence that the relationship was so significant as to outweigh the security and
stability of an adoptive home. (Cf. Caden C., supra, 11 Cal.5th at pp. 633-634 [“When
the relationship with a parent is so important to the child that the security and stability of
a new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child
due to’ the child’s beneficial relationship with a parent”]; id. at p. 635 [when a child has
“‘very strong ties’” with a parent and termination of parental rights “‘is likely to be
15
harmful to the child, courts should retain parental ties if desired by both the parents and
the child’”].) The relationship father enjoyed with the children during their visits is not
sufficient to demonstrate that father and the children shared such a substantial, positive
emotional attachment that terminating father’s parental rights would greatly harm the
children.
Father did not present any evidence that the security and stability of a new home
would be outweighed by the loss of the relationship with father. Dr. Brodie opined that
termination of father’s parental rights would be detrimental to the children. But Dr.
Brodie did not analyze whether the possible detriment suffered by the children in
severing their relationship with father would be so great as to outweigh the benefit of
adoption. (Caden C., supra, 11 Cal.5th at p. 632.)
Moreover, father said that the children were sad when visits ended, but there was
no evidence that the children’s sadness at the end of visits otherwise had significant or
lasting effects on their behavior or general well-being. (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”].) While Ms. C reported that both Jacob and Giovanni had meltdowns after
visiting with father, the meltdowns occurred only after father promised the children that
they would be living together soon and would go to Disneyland. There is no evidence
that the meltdowns were anything other than isolated incidents related to father’s
inappropriate promises during visits. The evidence demonstrates that Giovanni stopped
16
having any temper tantrums while at Mr. and Ms. C’s home and only had them when
visiting with father. The evidence otherwise shows that the children were thriving in the
placement with Mr. and Ms. C, with whom they had lived for two years.
Father does not explain how the juvenile court abused its discretion by
determining that the stability and security of adoption outweighed any detriment the
children might experience from severing the relationship with father. Instead, Father
merely points out evidence that would support a contrary conclusion, namely, Dr.
Brodie’s opinion about possible detriment. But that evidence does not show that the
juvenile court abused its discretion “‘“‘by making an arbitrary, capricious, or patently
absurd determination.’”’” (Caden C., supra, 11 Cal.5th at p. 641.) When the evidence
supports two or more reasonable inferences, we do not substitute our judgment for the
judgment of the lower court. (Ibid.)
Father also argues that this case is similar to In re S.B. (2008) 164 Cal.App.4th
289 (S.B.). S.B. concluded that the juvenile court erred by finding that the beneficial
parental relationship exception did not apply, because “the only reasonable inference”
from the record was that the child “would be greatly harmed by the loss of her
significant, positive relationship with” the father. (Id. at p. 301.) The expert who
conducted the bonding study opined that the child would suffer potential harm if the
parental relationship were severed, and the social worker also acknowledged that the
child would experience “some detriment” if the parental relationship were severed.
(Id. at p. 295.) The social worker nevertheless recommended terminating the father’s
17
parental rights “based in part on the [caregiving grandparents’] intent to continue [the
father’s] visits with” the child. (Ibid.) The juvenile court had similarly relied in part on
the grandparents’ promise to allow future visits, which S.B. found to be an improper
consideration. (Id. at p. 300.)
Father’s reliance on S.B. is misplaced. (See C.F., supra, 193 Cal.App.4th at
pp. 558-559 [same appellate court observing that “S.B. is confined to its extraordinary
facts”]; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2021)
§ 2.171[5][i][C], p. 2-694 [S.B. should be viewed as “the result of a very unique factual
situation”].) Unlike in S.B., the social worker here opined that the children would not
suffer any detriment upon termination of parental rights, and the juvenile court did not
rely, even in part, on any promised future visits with father that Mr. and Ms. C might
allow. Moreover, in light of the conflicting evidence concerning the extent of any
detriment that the children might suffer if father’s parental rights were terminated, the
record does not show that “the only reasonable inference” is that the children would be
“greatly harmed” by the loss of the relationship with father. (S.B., supra, 164
Cal.App.4th at p. 301.)
Finally, Father also contends that the juvenile court applied an incorrect standard
by focusing on where the children wanted to live and not whether the parental
relationship outweighed the benefits of adoption. The argument lacks merit. The court
properly considered the children’s feelings about being adopted by Mr. and Ms. C in
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determining whether the stability of adoption would be outweighed by the detriment of
losing the parental relationship. (In re I.E. (2023) 91 Cal.App.5th 683, 692-694.)
For all of these reasons, we conclude that the juvenile court did not abuse its
discretion by concluding that the benefit the children would receive from adoption was
not outweighed by any detriment they might suffer from the termination of father’s
parental rights.
DISPOSITION
The March 7, 2023, orders terminating parental rights as to Jacob and Giovanni