Filed 7/27/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re B.D., et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.D. et al.,

Defendants and Appellants.

 D078014

 (Super. Ct. No. EJ4324A, B)

APPEALS from orders of the Superior Court of San Diego County, 

Marian F. Gaston, Judge. Reversed and remanded.

Jill Suzanne Smith, under appointment by the Court of Appeal, for

Defendant and Appellant, C.D.

Roni Keller, under appointment by the Court of Appeal, for Defendant

and Appellant, R.Q.

Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,

and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.
2

C.D. (Father) and R.Q. (Mother) appeal from the juvenile court’s orders 

terminating parental rights to their son, B.D. (born 2012) and daughter L.D.

(born 2015, together the children). (Welf. & Inst. Code, § 366.26.)1 The

parents contend the juvenile court erred in finding that the beneficial 

parental relationship exception to adoption did not apply because the 

evidence demonstrated that terminating parental rights would be 

detrimental to the children’s well-being. They assert that a legal 

guardianship was the only appropriate permanent plan for the children. (§ 

366.26, subd. (c)(1)(B)(i).)

On May 6, 2021, we filed an opinion affirming the orders. Before this 

opinion became final, Mother filed a petition for rehearing arguing that the 

recent Supreme Court decision in In re Caden C. (2021) 11 Cal.5th 614

(Caden C.) indicates that the juvenile court erred in terminating parental 

rights. We granted rehearing and gave all parties the opportunity to file 

supplemental briefing on the petition for rehearing and the impact of Caden 

C. on this appeal. We vacate our initial opinion. Having considered the 

supplemental briefs filed by the parties we reverse the orders terminating 

parental rights. 

When concluding that the parents did not meet their burden of showing 

that they had a substantial, positive, emotional attachment with their 

children, the juvenile court and social worker considered the parents’ 

substance abuse without addressing whether this continued substance abuse 

had any negative effect on the parent-child relationship. We are also 

uncertain whether the juvenile court considered other factors proscribed by 

the Supreme Court in determining the beneficial nature of the parent-child 

1 Undesignated statutory references are to the Welfare and Institutions 

Code. 
3

relationship. We therefore must reverse the orders terminating parental 

rights and remand for the juvenile court to reexamine the record based on a 

proper application of the governing law.

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego County Health and Human Services Agency (Agency)

became involved with this family in August 2018 after sheriff’s deputies 

responded to a domestic violence incident where Mother pepper sprayed 

Father and then Father chased Mother down the street. The following 

month, the Agency received another report that Mother barricaded herself in 

a bathroom during an argument and that Father broke the door down. B.D. 

observed the parents hitting and yelling at each other and stated that Mother 

was “very hurt” and that he and his sister were scared. The children also 

observed a 2017 incident where Mother sustained bruising around her neck, 

scratches, and lost her voice for two weeks after Father strangled her. 

When the Agency investigated, the parents appeared to be on some 

type of stimulant. The Agency found marijuana and drug paraphernalia in 

the parents’ bedroom and within the children’s reach. The Agency also found 

two bags of empty cans or bottles of alcohol in the bedroom. The parents 

reported methamphetamine use and Father expressed concern that Mother 

had an alcohol problem. 

In August and September 2018, the Agency requested that Mother 

drug test seven times, but she only tested twice. She tested positive for 

methamphetamine, alcohol, and tetrahydrocannabinol (THC) for the first 

test, and positive for alcohol and THC for the second test. The Agency 

requested six drug tests for Father over a three month period. He tested 

twice with both tests positive for THC.
4

In late October 2018, the Agency filed petitions on behalf of the 

children under section 300, subdivision (b)(1) alleging that a substantial risk 

existed that the children would suffer serious physical harm or illness based 

on the parents’ physically violent relationship and use of dangerous drugs.2

The protective custody warrant affidavits indicated that the children “have 

expressed feeling scared and crying while witnessing the domestic

altercations which is putting them at a high risk of suffering emotionally 

with depression or anxiety in their future. The children have been observed 

to show that they are being neglected with their lack of cleanliness, rotting 

teeth, unchanged diaper at the age of 3.5, and expressing hunger.” 

At the detention hearing, the juvenile court made a prima facie finding 

on both petitions. The juvenile court detained the children and ordered 

supervised visitation for the parents. At the contested adjudication and 

disposition hearing in January 2019, the juvenile court sustained the 

petitions, declared the children dependents, placed them with the paternal 

grandmother D.B. (the caretaker), and ordered reunification services.

The social worker submitted drug test referrals for Mother in February, 

March, April and May 2019, but she failed to show to every appointment. 

During a July 26, 2019 office visit, Mother claimed “her clean date was 

‘sometime in [2018].’ ” Mother expressed confidence that she would test 

“clean” that day but did not respond when asked why she had not drug tested 

2 Mother has been involved with the Agency since 2004 regarding 

allegations of domestic violence, neglect, and alcohol abuse. She has three 

older children who are not parties to this appeal with another man. The 

father of these children stated that he has full custody and that Mother 

“hardly [saw]” these children. Mother received voluntary services in 2004 

and again in 2010, but she failed to engage in the recommended services.
5

in the last six months. Although Mother appeared for an intake appointment 

for substance abuse treatment, she never returned to the program. 

Father admitted that he started using marijuana at age 13, currently 

used marijuana once or twice a day, and “occasionally” drank alcohol. He 

denied current methamphetamine use but admitted “having a problem” with 

the drug in the past. Mother stated, however, that Father used 

methamphetamine and took “baking soda to pass his tests.” The social 

worker submitted drug test referrals for Father in February, March, April 

and May 2019, but he failed to show to every appointment. When the social 

worker informed Father that he only needed to drug test twice to satisfy his 

case plan objective, Father denied receiving the social worker’s calls and text 

messages regarding testing. 

On August 20, 2019, the social worker left Father a voice message 

advising him that he needed to submit to a random drug test, but Father did 

not appear for this drug test, which the Agency considered to be a positive 

test. Two days later, the social worker advised the parents that they needed 

to drug test that day, which they agreed to do. However, one hour later, the 

social worker received a voicemail from Mother stating that she and Father 

would not drug test because it conflicted with their services. 

On August 28, 2019, the juvenile court terminated reunification 

services and set a section 366.26 hearing, which it later rescheduled three 

times. At the contested section 366.26 hearing in September 2020, the 

juvenile court found that the parents consistently visited the children but 

determined that they did not fulfill a parental role. The court terminated the

parents’ parental rights, selected adoption as the children’s permanent plan,

and designated their current caregiver as the prospective adoptive parent. 

The parents timely appealed. 
6

DISCUSSION

A. General Legal Principles

“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 S.B. (2008) 164 Cal.App.4th 

289, 296-297 (S.B.).) “Once the court determines the child is likely to be 

adopted, the burden shifts to the parent to show that termination of parental 

rights would be detrimental to the child under one of the exceptions listed in 

section 366.26, subdivision (c)(1).” (S.B., supra, at p. 297.)

One of the exceptions to the preference for adoption is the beneficial 

parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) For this 

exception to apply, the parent must show by a preponderance of the evidence: 

(1) regular visitation and contact with the child; (2) the child has a 

substantial, positive, emotional attachment to the parent; and (3) 

terminating that attachment 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.) 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 Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn 

H.).) “ ‘The relationship that gives rise to this exception to the statutory 

preference for adoption “characteristically aris[es] from day-to-day 

interaction, companionship and shared experiences. Day-to-day contact is 

not necessarily required, although it is typical in a parent-child relationship.” 
7

’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165 (G.B.).) When the benefits 

of a stable, adoptive, permanent home outweigh the harm the child would 

experience from the loss of a continued parent-child relationship, the court 

should order adoption. (Caden C., supra, 11 Cal.5th at p. 634.) The statutory 

reasons for departing from “ ‘the norm’ ” of adoption apply only in “ 

‘exceptional circumstances.’ ” (Id. at p. 631.)

We review the juvenile court’s findings as to whether the parent has 

maintained regular visitation and contact with the child, as well as the 

existence of a beneficial parental relationship, for substantial evidence. 

(Caden C., supra, 11 Cal.5th at pp. 639-640.) As a reviewing court we do “ 

‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve 

evidentiary conflicts’ ” and will uphold the juvenile court’s determinations 

even where substantial evidence to the contrary also exists. (Id. at p. 640.) 

“[T]he 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.” (Ibid.) “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.” (Id. at p. 633.) 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.” (Autumn H., supra, 27 

Cal.App.4th at p. 575.)
8

“[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, the 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.)

B. The Juvenile Court’s Ruling

The juvenile court found that the parents “easily met” their burden of 

showing consistent visitation with the children. After acknowledging the 

need for a “robust individualized inquiry” the juvenile court stated that “the 

relationship at issue must be parental, no matter how loving and frequent 
9

the contact, and notwithstanding the existence of an emotional bond with the 

child. The parents must show that they occupy a parental role in the child’s 

life. Such a relationship typically arises from day-to-day interactions, 

companionship, and shared experiences. Day-to-day contact is not required; 

however, for the beneficial relationship exception to apply, the court must 

find that regular visits and contact have continued or developed as significant 

positive emotional attachment from child to parent.” The juvenile court 

determined that the parents “failed to demonstrate the existence of this type 

of parental relationship with the children.” In making this finding, the 

juvenile court noted that the paternal grandmother met the children’s daily 

needs and that the children turn to the paternal grandmother to protect and 

care for them. 

The court found the parents’ substance abuse, and the impact this had 

on their ability to safely parent their children, to be their “core issue.” The 

court stated that despite the parents’ progress with online services and their 

loving visits with the children, that the parents’ remained untreated for 

substance abuse. The court explained: 

“Until these parents address this major underlying cause of 

all . . . the instability and disruption and chaos in their 

lives, substance abuse, they will never be able to safely and 

reliable parent. They had two years to address these issues 

in this case and unfortunately have chosen not to.”

Even assuming the parents met their burden of showing a parental 

relationship, the juvenile court found that they did not meet their burden of 

proving that severance of that relationship would be detrimental to such a 

degree that termination of parental rights and a permanent plan of adoption 

would be detrimental to the children. The court first noted that the caretaker 

has consistently said that she supports the parents having a relationship 
10

with the children as long as the relationship was “healthy” and that the 

caretaker has facilitated and encouraged visits between the parents and the 

children. Nevertheless, the court considered the possibility that termination 

of parental rights could sever the children’s relationship with their parents, 

but found this would not be detrimental to the children such that the 

detriment outweighed the benefits of adoption. 

C. Analysis

It is undisputed that substantial evidence exists showing that the 

children were adoptable and that the parents consistently visited the 

children. For the second element of the test, the juvenile court is required to 

examine the record to ascertain whether the parent has proven by a 

preponderance of the evidence 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.)

The juvenile court correctly acknowledged that daily contact between 

parent and child is not required (G.B., supra, 227 Cal.App.4th at p. 1165), 

and that the issue before it was whether the parents met their burden of 

showing that the visits and contact that occurred between them and the 

children continued or developed a significant positive emotional attachment 

between parent and child. (Caden C., supra, 11 Cal.5th at p. 632.) The 

juvenile court then found that “the parents have failed to demonstrate the 

existence of this type of parental relationship with the children.” By this 

statement, the juvenile court necessarily concluded that the parents did not 

meet their burden of showing by a preponderance of the evidence that they 

had a significant positive emotional attachment with the children. In 

determining whether the parents met their burden of proof on the second 
11

element, the juvenile court did not have the benefit of the guidance provided 

in Caden C., supra, 11 Cal.5th 614 and erred is several respects.

First, the record suggests that in finding the parents did not meet their 

burden of proof the juvenile court relied heavily, if not exclusively, on the fact 

that the parents had not completed their reunification plans and were unable 

to care for the children based on their long term and continued substance 

abuse. The juvenile court, however, did not examine how the parents’ 

continued substance abuse impacted the nature of the parent-child 

relationship. (Caden C., supra, 11 Cal.5th at p. 638.) 

For example, the juvenile court previously found true the allegation 

that the children’s exposure to violent confrontations between the parents 

placed them at substantial risk of serious physical harm. We located nothing 

in the record addressing whether these past domestic violence incidents were 

drug related, or whether the parents continued to struggle with domestic 

violence. After carefully reviewing the visitation monitor reports we found no 

suggestion that the parents continued to struggle with domestic violence 

issues. Rather the record shows that after the trial court terminated the 

parents’ reunification services in August 2019 they both successfully 

completed domestic violence courses. Accordingly, in addressing the 

existence of a beneficial parent-child relationship on remand the juvenile 

court must consider whether the parents’ continued struggles with the issues 

that resulted in this dependency proceeding (1) impacted the amount of 

visitation, (2) the nature of that contact, or (3) negatively affected the parentchild relationship. 

Second, the record does not convince us that the juvenile court 

examined the nature of the parent-child relationship before the dependency 

proceeding or the visits and contact between the parents and children during 
12

the dependency proceeding, to evaluate whether a significant positive 

emotional attachment existed between the parents and children. This type of 

evaluation is crucial to the third step of the analysis, weighing the harm of 

severing the natural parent/child relationship to the benefits of a new 

adoptive home.3 (Caden C., supra, 11 Cal.5th at p. 633.) 

In their supplemental brief, the Agency contends that the juvenile 

court properly examined whether a “substantial, positive, emotional 

attachment” existed between the children and the parents as articulated in 

Autumn H. and Caden C. (Caden C., supra, 11 Cal.5th at p. 636; Autumn H., 

supra, 27 Cal.App.4th at p, 539.) The Agency argues that we must affirm the 

juvenile court’s substantial evidence determination even if other evidence 

supports a contrary conclusion. (In re Stephanie M. (1994) 7 Cal.4th 295, 

318.) This argument ignores the juvenile court’s reliance on improper factors. 

Additionally, the Agency’s briefing did not summarize the evidence 

supporting a conclusion that the children lack a “substantial, positive, 

emotional attachment” with their parents. Rather, our review of the record 

suggests that the parents presented evidence to support a finding that they 

3 In Caden C., supra, 11 Cal.5th 614, the record included a bonding study 

from mother’s expert and a report from the Agency’s expert revealing that 

mother and child had a positive relationship. (Id. at p. 627.) This evidence

ultimately led the juvenile court to conclude that severing the parent-child 

relationship would greatly harm the child. (Id. at p. 628.) Although bonding 

studies and expert reports are often very informative (id. at p. 633, fn. 4), 

they are not always required because a juvenile court can infer detriment 

based on the loss of a “significant, positive relationship” with a parent. (See, 

e.g., S.B., supra, 164 Cal.App.4th at p. 301.)
13

had a beneficial relationship with their children, should the juvenile court 

credit that evidence.4 

The juvenile court also expressly considered whether the evidence 

revealed that the parents occupied a “parental role” in their children’s lives 

and whether a “parental relationship” existed. On this point, the social 

worker’s report stated that the paternal grandmother met the children’s daily 

needs and opined that the parents were “currently not in a position where 

they are able to take on the parental role and parent their children on a 

fulltime basis” because the parents lacked secure housing, stable employment 

and the evidence did not show they have maintained their sobriety. This 

conclusion factored into the social worker’s belief that the parent-child 

relationship exception did not outweigh the benefits of adoption for the 

children. 

Additionally, at the contested hearing when asked to explain why she 

believed that the parent-child relationship exception did not apply, the social 

worker emphasized the parents’ inability to attend to the children’s day-to4 Visitation monitors reported that the children were always happy to 

see their parents and greeted their parents with hugs. The paternal 

grandmother reported that the children looked forward to seeing their 

parents, were happy with their parents and enjoyed spending time with the 

parents. Visits between the parents and the children invariably ended with 

hugs and kisses. Although the children returned to their caregiver without 

any noted concerns, the paternal grandmother informed the social worker 

that during initial visits the children expressed sadness at the end of visits 

because they did not understand why their parents could not come home and 

live with them. The paternal grandmother indicated that with the security of 

consistent visitation, the children no longer expressed sadness when visits 

ended because the children knew they would see their parents the following 

week. The evidence also shows that during supervised visits the parents met 

the children’s physical and emotional needs and parented “on the spot” by 

directing, praising, or engaging with the children.
14

day needs and that the children looked to their grandmother to meet their 

daily needs. Thus, the social worker equated a parental role, as it related to 

application of the parent-child relationship exception, with the ability to 

parent “on a fulltime basis” and with a parent maintaining sobriety. The 

juvenile court ultimately concluded that the parents failed to show the 

existence of a parental relationship, emphasizing that the paternal 

grandmother provided for the children’s daily needs and the children’s 

statements that the parents failed to care for them. 

The juvenile court’s references to the paternal grandmother providing 

for the children’s daily needs, whether the parents occupied a “parental role” 

or whether a “parental relationship” existed are concerning because it is 

unclear what weight the juvenile court placed on these conclusions when 

balancing the harm of severing the natural parent-child relationship to the 

benefits of a new adoptive home in the crucial third step of the analysis. 

(Caden C., supra, 11 Cal.5th at p. 633.) 

As Caden C., supra, 11 Cal.5th 614 emphasized, when examining 

whether the parent-child relationship exception applies it is critical for the 

juvenile court at the second step of the analysis to consider the evidence 

showing whether the parent’s actions or inactions “continued or developed a 

significant, positive, emotional attachment from child to parent.” (Autumn 

H., supra, 27 Cal.App.4th at p. 575; In re B.D. (2008) 159 Cal.App.4th 1218, 

1234 [“the parent must prove he or she occupies a parental role in the child’s 

life resulting in a significant, positive emotional attachment of the child to 

the parent”]; In re C.F. (2011) 193 Cal.App.4th 549, 555 [same].) A 

“significant attachment from child to parent results from the adult’s 

attention to the child’s needs for physical care, nourishment, comfort, 

affection and stimulation.” (Autumn H., supra, at p. 575.) A positive 
15

attachment between parent and child is necessarily one that is not 

detrimental to the child but is nurturing and provides the child with a sense 

of security and stability. Finally, an emotional attachment is one where the 

child views the parent as more than a mere friend or playmate and who’s 

interactions with the parent were not ambivalent, detached, or indifferent.5

In summary, the juvenile court considered improper factors at the 

second step of the analysis addressing whether the parents had proven by a 

preponderance of the evidence that they had “a substantial, positive, 

emotional attachment” with the children. (Caden C., supra, 11 Cal.5th at p. 

636.) Accordingly, we need not address whether the juvenile court abused its 

discretion in weighing the harm of severing the natural parent-child 

relationship to the benefits of a new adoptive home. (Ibid. at p. 633.) Nor do 

we address the parents’ contention that the juvenile court erred in selecting 

adoption rather than legal guardianship as the permanent plan. Finally, we 

express no opinion on whether the parent-child relationship exception 

applies. 

DISPOSITION

The orders terminating parental rights are reversed. The matter is 

remanded for the juvenile court to conduct a new section 366.26 hearing in 

conformity with the principles articulated in In re Caden C. (2021) 11 Cal.5th 

614, the views expressed in this opinion, and taking into consideration the 

5 To assist the trial court at this second stage of the analysis social 

worker assessments and evaluations should address whether or not the 

children have a substantial, positive, emotional attachment to the parents 

taking into consideration the child’s age, the portion of the child’s life spent in 

parental custody, the positive or negative impact of interaction with the 

parent, and the child’s particular needs as required by Caden C. (Caden C., 

supra, 11 Cal.5th at pp. 632, 636.) 
16

family’s current circumstances and any developments in the dependency 

proceedings that may have arisen during the pendency of the appeal.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.