1

Filed 3/22/22 In re A.K. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR

In re A.K., a Person Coming 

Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

N.M.,

Defendant and 

Appellant.

 A162558

 (Alameda County

Super. Ct. No. JD-027697-

02)

N.M. (mother) appeals from a juvenile court order 

terminating her parental rights as to her son, A.K. (the minor), at 

a hearing under Welfare and Institutions Code section 366.26.1 

After the juvenile court entered its order, the California Supreme 

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

(Caden C.), in which it clarified the relevant considerations for 

the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) 

1 Subsequent undesignated statutory citations are to the 

Welfare and Institutions Code.
2

to the presumption favoring termination of parental rights of an 

adoptable child and placement of a child for adoption. Mother 

now argues the juvenile court’s finding that the beneficial 

relationship exception did not apply is inconsistent with Caden C. 

Mother further challenges the juvenile court’s denial of her 

request for bonding studies of the minor’s relationship with her 

and his siblings, which Caden C. encouraged juvenile courts to 

allow; its decision to exclude testimony by two of the minor’s 

siblings that she wanted to offer to prove the sibling relationship 

exception (§ 366.26, subd. (c)(1)(B)(v)); the sufficiency of the 

evidence supporting its ruling that the minor was adoptable; and, 

assuming it applied the correct legal standards, its conclusion 

under those standards that mother had not shown the beneficial 

relationship or sibling relationship exceptions. 

We agree with mother that the juvenile court relied on 

certain factors that Caden C. made clear are not relevant to the 

application of the beneficial relationship exception. We will 

therefore reverse the juvenile court’s order and remand for a new 

section 366.26 hearing consistent with Caden C. This disposition 

makes it unnecessary to address mother’s other arguments. 

However, because continued protracted legal proceedings in this 

dependency case are contrary to the minor’s interest in 

permanency, we make several observations related to some of 

those arguments for the guidance of the parties on remand.

BACKGROUND

The minor was born premature in September 2016 with a 

positive toxicology screen for opiates and prenatal exposure to 
3

methadone, and he required morphine to treat his withdrawal 

symptoms. He was hospitalized for the first seven months of his 

life. In January 2017, while the minor was still hospitalized, the 

Alameda County Social Services Agency (Agency) filed a 

dependency petition due to concerns about mother’s 10-year 

addiction to opiates and the inability of mother and her husband, 

the minor’s father, to understand the minor’s serious medical 

condition. When he was released from the hospital in April 2017, 

the minor was placed in foster care. In late June 2017, the minor 

was returned to the home, with the Agency providing family 

maintenance services and father supervising mother. The 

juvenile court dismissed the dependency case in December 2017. 

The minor was detained in late March 2018, and the 

Agency filed a second dependency petition alleging that the minor 

was a medically fragile child who had been diagnosed with “ ‘oral 

[a]version, motor delay, global hypertonia, reflux, and [was] GTube dependent.’ ” (In re [A.]K. (Aug. 18, 2020, A159443) 

[nonpub. opn.] (A.K.).) The minor was “placed in foster care after 

mother admitted she was overwhelmed and needed help because 

father had recently abandoned her and the children. In May 

2018, mother reported that father had left the country with one of 

their five children, leaving her and the other children homeless 

and with no means of support.” (Ibid.) In September 2018, the 

juvenile court sustained the jurisdictional allegation that mother 

was unable to meet the minor’s basic needs. In November 2018, 

the minor’s placement was changed to a “ ‘Non Related Extended 
4

Family Member,’ ” a couple who had a good relationship with the 

minor’s maternal grandparents. (Ibid.)

“In March 2019, the Agency recommended that the court 

terminate mother’s reunification services at the six-month status 

review. Mother had not been consistent about attending [the 

minor]’s medical appointments, was not compliant in therapy, 

and appeared to have untreated mental health issues. She did 

not understand why [the minor] was removed from her care 

despite the social worker’s efforts to explain the Agency’s 

concerns. And her lack of comprehension about [the minor]’s 

medical needs impacted her ability to demonstrate that she could 

care for him.

“A contested review hearing was scheduled for June 2019. 

Meanwhile, the Agency reported ongoing concerns about mother 

and her inability to care for [the minor]. She did not regularly 

attend [the minor]’s medical appointments and was often 

disruptive when she did attend. [The minor]’s gastroenterologist 

opposed reunification because [the minor] experienced distress 

when mother was present. Mother’s supervised visits were not 

consistently positive; she did not follow the Agency rules, brought 

inappropriate food, and was not careful with [the minor].” (A.K., 

supra, A159443.) 

At the contested review hearing, the agency presented 

testimony that “mother never demonstrated an ability to use the 

G-tube to feed [the minor]; mother consistently maintained that 

[the minor] could eat food, ignoring that his oral aversion made 

him throw up food that he ate; and mother did not pay attention 
5

to doctors who attempted to explain [the minor]’s medical 

condition.” (A.K., supra, A159443.) The minor had lost weight 

and been hospitalized several times when he lived with mother, 

and after the minor was removed, mother fed the minor 

inappropriate foods at supervised visits, which made him sick. 

(Ibid.)

In September 2019, after the conclusion of the contested 

review hearing, “the juvenile court found, among other things, 

that mother was provided with reasonable reunification services, 

[the minor] could not be returned safely to mother’s care, and 

there was no substantial probability that [the minor] could or 

would be returned to mother and safely maintained in her home 

prior to the date of an 18-month review. The matter was 

continued for a section 366.26 hearing, to consider terminating 

parental rights and select a permanent plan for [the minor].

“Mother filed a petition for extraordinary review 

challenging the September 2019 order setting this case for a 

section 366.26 hearing. Her writ counsel presented extensive 

argument in support of two basic claims. First, [the minor] 

should have been returned to mother’s custody at the review 

hearing. Alternatively, mother was entitled to additional 

reunification services. [¶] On December 5, 2019, this court denied 

mother’s petition on the merits, affirming the juvenile court’s 

three material findings.” (A.K., supra, A159443.)

Mother filed a section 388 petition asking the juvenile court 

to set aside the order setting a section 366.26 hearing and instead 

order that the minor be returned to her. (A.K., supra, A159443.) 
6

The juvenile court denied the petition and this court affirmed in 

August 2020. (Ibid.)

On February 18, 2020, the juvenile court held the first day 

of the section 366.26 hearing. The juvenile court denied mother’s 

January 21, 2020, request for bonding studies of the relationship 

between the minor, mother, and the minor’s siblings. The 

juvenile court allowed mother to call the minor’s oldest sibling to 

offer testimony related to the sibling relationship exception but 

denied her request to call the minor’s other two siblings to testify 

on the same topic. Mother filed a notice of appeal of those 

rulings, but this court dismissed the appeal because the juvenile 

court’s orders were not appealable. (In re [A.]K. (Dec. 16, 2020,

A159758) [nonpub. opn.].)

The juvenile court held the section 366.26 hearing over the 

course of the next 14 months, with significant delays caused by 

the COVID-19 pandemic. It heard testimony from the minor’s 

oldest sibling, two social workers, and mother. 

In April 2021, the juvenile court found the Agency had 

provided mother reasonable services, found by clear and 

convincing evidence that the minor was adoptable, terminated 

mother’s and father’s parental rights, and set a permanent plan 

of adoption for the minor. The court found mother had not 

proven the beneficial relationship or sibling relationship 

exceptions to adoption. The court began by making credibility 

determinations against mother and the oldest sibling. As to the 

beneficial relationship exception, the court found that mother 

had, overall, regularly and consistently visited the minor but that 
7

she had not demonstrated a parental bond that was so beneficial 

that it outweighed the benefits of adoption. The court also found 

the sibling relationship exception inapplicable, because the minor 

had only lived with his siblings for a short period when he was an 

infant, they had not consistently visited the minor, and the minor 

did not have a strong connection to them. 

DISCUSSION

I. Beneficial relationship exception

A. Legal principles and standard of review

“At the section 366.26 hearing, the question before the 

court is decidedly not whether the parent may resume custody of 

the child. [Citations.] In fact, it is not permissible to order 

reunification at the section 366.26 hearing. 

[Citations.] . . . [¶] Instead, the goal at the section 366.26 hearing 

is ‘specifically . . . to select and implement a permanent plan for 

the child.’ ” (Caden C., supra, 11 Cal.5th at p. 630.) If 

reunification services have been terminated and the juvenile 

court finds by clear and convincing evidence that the child is 

adoptable, “then the court shall terminate parental rights to 

allow for adoption.” (Ibid.) “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.” 

(Id. at pp. 630–631.) “[W]hen a parent establishes that one of the 

exceptions applies, adoption or termination is not ‘in the best 

interest of the child.’ ” (Id. at p. 631.) One of these exceptions 

“applies where ‘[t]he court finds a compelling reason for 
8

determining that termination would be detrimental to the child 

due to one or more of the following circumstances: [¶] (i) The 

parents have maintained regular visitation and contact with the 

child and the child would benefit from continuing the 

relationship.’ (§ 366.26, subd. (c)(1)(B)(i).)” (Caden C., at p. 631.)

A “parent asserting the parental benefit exception must 

show, by a preponderance of the evidence, three things. The 

parent must show regular visitation and contact with the child, 

taking into account the extent of visitation permitted. Moreover, 

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. And the parent must show that 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 Supreme Court’s decision in Caden C. clarified how 

juvenile courts should evaluate each of these three elements. The 

first element is straightforward, requiring a court to consider 

“whether ‘parents visit consistently,’ taking into account ‘the 

extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th 

at p. 632.) On the second element, whether the child has a 

substantial positive attachment to the parent, a court considers

“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.’ ” (Ibid.) It also considers “how children 
9

feel about, interact with, look to, or talk about their parents,” 

which “properly focuses the inquiry on the child, even as courts 

must remain mindful that rarely do ‘[p]arent-child relationships’ 

conform to an entirely consistent pattern.” (Ibid.)

On the third element, “[w]hen it weighs whether 

termination would be detrimental, the court is not comparing the 

parent’s attributes as custodial caregiver relative to those of any 

potential adoptive parent(s). Nothing that happens at the section 

366.26 hearing allows the child to return to live with the parent. 

[Citation.] Accordingly, courts should not look to whether the 

parent can provide a home for the child; the question is just 

whether losing the relationship with the parent would harm the 

child to an extent not outweighed, on balance, by the security of a 

new, adoptive home. [Citation.] Even where it may never make 

sense to permit the child to live with the parent, termination may 

be 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.)

The Supreme Court further clarified that “[a] parent’s 

continued struggles with the issues leading to dependency are not 

a categorical bar to applying the exception.” (Caden C., supra, 

11 Cal.5th at p. 637.) However, such issues are often relevant. 

(Ibid.) “A parent’s struggles may mean that interaction between 

parent and child at least sometimes has a ‘ “negative” effect’ on 

the child,” which would impact whether the parent’s relationship 

with the child is beneficial and positive. (Ibid.) A parent’s 

struggles with “issues such as those leading to dependency may 
10

also be relevant to the detriment from terminating parental 

rights.” (Ibid.) Nonetheless, such issues “are relevant only 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.) Thus, in Caden C., the 

Supreme Court found the Court of Appeal erred in holding that a 

mother’s failure to achieve sobriety and address her mental 

health issues meant the beneficial relationship exception did not 

apply, because the Court of Appeal did not conclude that such 

issues affected whether the mother’s relationship with the child 

was beneficial or whether its loss would be detrimental. (Id. at 

pp. 641–642.)

We review a juvenile court’s determination on the first and 

second elements, consistent visitation and existence of a 

beneficial relationship, for substantial evidence. (Caden C., 

supra, 11 Cal.5th at pp. 639–640.) We likewise review for 

substantial evidence the factual determinations underlying the 

juvenile court’s balancing of the detriment from the loss of the 

relationship against the benefits of placement in an adoptive 

home, but we review for abuse of discretion the ultimate decision 

of “whether termination of parental rights would be detrimental 

to the child due to the child’s relationship with his parent.” 

(Id. at p. 640.) These standards are identical for practical 

purposes, however, since the hybrid standard of review “simply 

embodies the principle that ‘[t]he statutory scheme does not 

authorize a reviewing court to substitute its own judgment as to 

what is in the child’s best interests for the trial court’s 
11

determination in that regard, reached pursuant to the statutory 

scheme’s comprehensive and controlling provisions.’ ” (Id. at 

p. 641.)

A. Additional background

The juvenile court began its ruling by finding that mother 

and the minor’s oldest sibling were not credible witnesses, while 

the social workers were credible. As to mother, the court 

explained that it believed mother loved the minor very much and 

would say and do anything to avoid a ruling against her. The 

court further found mother embellished a bit to try to illustrate a 

parental bond with the minor, and the court suspected that 

mother at one point was looking at some written material to 

answer questions. The court described how, after mother at one 

point emailed a picture of the minor’s erect penis to the former 

foster mother, she explained that she thought it was funny, but 

at the hearing she said she took the picture because she wanted 

to consult a doctor about the minor’s precocious growth of public 

hair. Mother’s inconsistent explanations caused the juvenile 

court to question mother’s recollection of events. 

The juvenile court concluded the evidence was 

“overwhelming” that mother had not demonstrated a sufficient 

parental bond. The court acknowledged that mother had, overall, 

regularly visited the minor, although it observed that mother’s 

visitation had been “quite inconsistent” until 2020, when visits 

were conducted by video for a time. The court then summarized 

the history of the two dependency petitions, which resulted in the 

minor living with mother and siblings for approximately one of 
12

his four and a half years of life. The court found this weighed 

heavily in favor of terminating mother’s parental rights. 

The court then found the evidence of mother’s visits with 

the minor failed to show any connection between mother and the 

minor. The court noted that mother asked the minor at countless 

visits who his mother and siblings were and told the minor she 

was his mother, and the court construed this as demonstrating 

that mother herself knew and felt the lack of connection. The 

court also noted that the minor was not interested in this kind of 

discussion and seemed confused or indifferent at times. The

court said that when mother asked the minor to kiss “mommy 

jon,” which is a term in mother’s native language, Dari, that 

means “dear mother” or “mom[,] my love,” the minor would kiss 

the caregiver. 

The court found that an incident in which the minor fell in 

a lake during one visit encapsulated mother’s relationship with 

the minor. The court recounted how after the minor fell in and 

mother pulled him out of the lake, the social worker had to calm 

mother down. The court highlighted the fact that mother was 

shouting in front of the minor that he could have died. The court 

said the incident showed that mother did not have a parental 

bond and needed support from the social worker. The court 

concluded that mother’s shouting in a frightened manner did not 

show a parental bond because mother should have been focused 

on calming the minor to avoid triggering him or making him 

more upset. The court further observed that after the incident, 

the minor did not seek comfort from mother. Instead, the minor 
13

appeared to hold in his feelings until he rejoined the caregiver, at 

which point he leaped into her arms and began sobbing. The 

juvenile court concluded from this that the minor did not look to 

mother for care, comfort, and nurturing. 

The juvenile court then turned to other incidents dating 

back to the beginning of the dependency in 2018 in which mother 

acted erratically, failed to properly supervise or feed the minor, 

and left visitation centers, which suggested to the court that 

mother was using substances during visitation time. The court 

found that leaving the minor to go use drugs was the antithesis of 

a parental bond. The court mentioned that there were several 

visits where mother was not interested in interacting with the 

minor and instead seemed more interested in chatting with the

interpreter. The juvenile court also mentioned an incident in 

February 2019 in which mother disciplined the minor for biting 

her but the social worker believed mother was reinforcing 

negative behavior towards the minor. Additionally, the court 

determined that mother was unable to meet the minor’s physical 

needs, based on the fact that she had been excluded from 

attending the minor’s medical appointments earlier in the case 

for being disruptive, she was unable or unwilling to learn how to 

care for the minor’s medical conditions, and mother fed the minor 

so much, including candy, that he vomited. 

After concluding mother could not meet the minor’s 

physical needs, the court found the same regarding the minor’s 

emotional needs. The court then said it did not see evidence that 

a parental bond and relationship was so beneficial that it 
14

outweighed adoption. As support for this conclusion, the juvenile 

court recited the caregiver’s descriptions of visits in which the 

minor seemed indifferent to mother and hung up the phone when 

mother asked him for hugs and kisses. The court also cited an 

incident from January 2021 in which mother said to the minor, 

“Why don’t you come visit us? You don’t love us. I’m your 

mommy, she is not your mommy.” The court found these types of 

statements would be psychologically burdensome for the minor. 

The court further recounted “some insensitive and troubling 

words” mother spoke to the minor, when mother told the minor, 

“If my cat doesn’t listen to me I’m going to beat it up,” implying 

that if the minor did not listen to her then mother might beat 

him. The court was not sure what to make of such statements, 

except that perhaps mother was frustrated and felt the minor 

slipping away from her. The court rejected as baseless mother’s 

argument that the caregiver’s description of the visits was biased, 

finding instead that mother’s more favorable descriptions of the 

visits reflected an attempt to convince the court that the visits 

were different than they were. 

Finally, the court agreed with the minor’s counsel that 

mother could be a lot of fun for the minor over short periods of 

time but found that was not sufficient to meet the standard of a 

parental bond that would require the court not to terminate 

mother’s parental rights. 

B. Analysis

The juvenile court ruled before Caden C. was decided, but 

its ruling maps fairly well onto Caden C.’s three elements, with 
15

the court finding mother visited consistently, did not have any 

connection with the minor, and mother’s relationship with the 

minor was not so beneficial that it outweighed the benefits of 

adoption. However, several of the factors that the juvenile court 

recited as support for the latter two of these findings are 

improper under Caden C.

First, the juvenile court’s consideration of the lake incident 

is appropriate under Caden C. to some extent, since the incident 

reflected how the minor interacted with and looked to mother. 

(Caden C., supra, 11 Cal.5th at p. 632.) The minor’s refusal to 

seek or accept comfort from mother during that incident is 

revealing of the nature of their relationship. However, the 

juvenile court’s statement that mother was not exhibiting 

“parental” behavior during the lake incident gives us pause. 

After Caden C., it is no longer helpful to evaluate at a section 

366.26 hearing whether a parent’s relationship with a minor is 

“parental.” In re J.D. (2021) 70 Cal.App.5th 833, 864 pointed out 

that Caden C. did not use the word “parental” to describe the 

nature of the necessary relationship. (See Caden C., supra, 

11 Cal.5th at p. 625, fn. 2 [noting that it would use the phrases 

“ ‘parental-benefit exception,’ ‘beneficial parental relationship 

exception,’ and ‘beneficial relationship exception’ . . . merely for 

ease of reference” and not to “reflect any substantive 

determination about the requirements to prove the exception”].) 

J.D. further found the word “vague and unhelpful in this context” 

and noted that more than one person can occupy an important 

emotional role like that necessary to support the beneficial 
16

relationship exception. (J.D., at pp. 864–865.) However, J.D., at 

pages 864–865, agreed with an earlier decision, In re B.D. (2021) 

66 Cal.App.5th 1218, 1230, that to support the beneficial 

relationship exception, a parent must show his or her 

relationship is more than that of a “ ‘mere friend or playmate.’ ” 

Similarly, In re L.A.-O. (2021) 73 Cal.App.5th 197, 211 said the 

“X factor” that takes a relationship from being merely a friendly 

visitor, which is not sufficient for the exception, to a more 

significant one that can support the exception is “mysterious.” 

But the court still found the phrase “parental role” ambiguous 

and thought it better not to use the words at all, in part because 

Caden C. did not. (Ibid.; but see In re A.L. (2022) 73 Cal.App.5th 

1131, 1157.)

Even assuming the descriptor “parental” retains some 

value, the juvenile court’s analysis of whether mother was acting 

in a parental role during the lake incident does not show whether 

it was “mindful that rarely do ‘[p]arent-child relationships’ 

conform to an entirely consistent pattern.” (Caden C., supra, 

11 Cal.5th at p. 632.) It is not necessarily significant that mother 

was upset and needed support from the social worker. Many 

parents would reasonably become emotional in such a moment 

and be unable to calm down instantly. Besides, Caden C.

repeatedly emphasized that a juvenile court’s evaluation of the 

beneficial relationship exception must be focused on the child. 

(Id. at p. 632.) Thus, if mother’s emotional response were 

excessive and destabilizing for the minor, that would be relevant 

to deciding whether the minor’s relationship with mother was, 
17

overall, beneficial. But the court did not make such a finding and 

the evidence does not support it, since the record shows the minor 

became upset only after mother tried to take off his clothes, not 

merely from seeing or hearing mother’s emotional reaction. Nor 

was it necessarily inappropriate for mother to acknowledge to the 

minor that he had been in significant danger, as he assuredly 

was when he fell into water over his head. Minimizing the 

gravity of the incident to soothe the minor, as the social worker 

did, is one choice in such an instance, but not the only one. (Cf. 

In re J.D., supra, 70 Cal.App.5th at p. 869 [parent could 

legitimately choose to discuss financial pressures with a young 

child for variety of reasons, such as “minimizing 

shame, . . . fostering resilience, promoting financial 

responsibility, or simply exposing a child to the vicissitudes of 

life”].) Despite the juvenile court’s disclaimer at the outset that it 

was not evaluating mother as a parent, its discussion of the lake 

incident appears to have done just that. 

Second, the court’s reliance on much of the evidence of 

mother’s behavior and inability to meet the minor’s physical 

needs during visits earlier in the case is also contrary to Caden C. 

Caden C. held that a “parent’s continued struggles with the 

issues leading to dependency are not a categorical bar to applying 

the exception,” and such issues “are relevant only 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?” (Caden C., supra, 11 Cal.5th at pp. 637–

638.) Mother’s inability to care for the minor’s medical 
18

conditions, which stemmed from her substance abuse, was the 

reason for the dependency. This inability was not a reason in 

itself to find mother had not established a beneficial relationship 

with the minor. The minor certainly does need an adult who can 

care for him and meet his medical needs, as the juvenile court 

stated at one point. But the fact that mother cannot provide that 

care is not dispositive or relevant in itself. Because the court was 

holding a section 366.26 hearing, there was no possibility that 

the minor would be returned to mother’s care or custody. (Caden 

C., supra, 11 Cal.5th at p. 630 [“it is not permissible to order 

reunification at the section 366.26 hearing”].) The juvenile 

court’s implicit comparison between mother’s and the caregiver’s 

ability to meet the minor’s medical needs was not a proper part of 

the evaluation of the evidence for the beneficial relationship 

exception. (Id. at p. 634 [“When it weighs whether termination 

would be detrimental, the court is not comparing the parent’s 

attributes as custodial caregiver relative to those of any potential 

adoptive parent(s). . . . [T]he section 366.26 hearing is decidedly 

not a contest of who would be the better custodial caregiver”].) 

Mother’s prior conduct during the dependency case only 

mattered to the extent that it bore on whether severing the 

minor’s relationship with mother would deprive him of a 

beneficial relationship. Mother’s lack of interaction with the 

minor at visits or the instances where she left visitation centers 

during visits were assuredly relevant to this question. Mother’s 

inattention to the minor could well have contributed to the minor 
19

not forming a strong bond with her, as the juvenile court 

surmised. 

The agency takes this further and argues that mother’s 

inability to meet the minor’s medical needs had a negative effect 

on the quality of the minor’s visits and interactions with mother. 

Mother’s failure to properly feed the minor caused him 

discomfort, since he vomited after mother and the siblings fed 

him at some visits. But this fact was not in itself relevant at this 

stage of the proceedings. To reiterate, the proper consideration

at the hearing was the minor’s relationship with mother, and the 

juvenile court did not connect mother’s problems feeding and 

caring for the minor to how the minor viewed mother, such as 

feelings of fear, resentment, or distrust. Also, as mother points 

out, many of the incidents the juvenile court highlighted relating 

to medical appointments, feeding, and vomiting dated to years 

earlier in the case, when the minor was an infant or young 

toddler. There were no reports of this type of behavior during 

mother’s recent visits from March 2020 onwards, likely because 

mother’s visits were either video visits due to the pandemic or 

were held in a park during which mother did not feed the minor. 

Thus, there is no indication that mother’s handling of the minor’s 

medical issues had a lasting impact on their relationship. (In re 

J.D., supra, 70 Cal.App.5th at p. 863 [reversing order 

terminating parental rights in part because of lack of evidence 

that parent’s misbehavior more than approximately one year 

before the hearing had a lasting impact on child].)
20

By the end of the section 366.26 hearing in April 2021, the 

minor’s medical conditions had largely resolved to the point that 

his feeding tube had been removed. The minor still needed a 

routine feeding regimen to avoid losing weight and had some 

other remaining issues, but maintaining a relationship and 

visitation with mother could not jeopardize his health in the 

future. No matter how the section 366.26 hearing turned out, 

mother would not be responsible for the minor’s physical health 

and well-being. (In re D.M. (2021) 71 Cal.App.5th 261, 270

[juvenile court’s equation of “parental role” with understanding 

children’s medical needs and attending their medical 

appointments did not support termination of parental rights 

absent evidence regarding attachment between parent and 

children].)

The agency also notes that mother’s behavior led to a 

reduction in her visitation time and caused her visits to remain 

supervised. This is another way of saying mother failed to make 

progress towards reunifying with the minor, which Caden C.

instructs is not relevant on its own at a section 366.26 hearing. 

The fact that mother had not progressed to unsupervised or more 

frequent visits mattered only to the extent that it affected the 

minor’s overall relationship with her. (In re J.D., supra, 

70 Cal.App.5th at p. 864 [agency’s argument that mother’s visits 

were still supervised “erroneously impl[ied] the court could 

consider the mere fact she had been unable to succeed in 

overcoming her parenting struggles as a reason to rule against 

her regardless of whether or how her son was affected by those 
21

shortcomings”].) If the nature or frequency of visitation meant 

that mother had a limited relationship with the minor, the 

juvenile court should have highlighted the evidence of that

limited relationship, rather than focusing on mother’s failings 

that led to the visits proceeding as they did.

Because the juvenile court explicitly relied on factors 

improper under Caden C., remand is necessary. “A discretionary 

order that is based on the application of improper criteria or 

incorrect legal assumptions is not an exercise of informed 

discretion and is subject to reversal even though there may be 

substantial evidence to support that order.” (Mark T. v. Jamie Z.

(2011) 194 Cal.App.4th 1115, 1124–1125.) “If the record 

affirmatively shows the trial court misunderstood the proper 

scope of its discretion, remand to the trial court is required to 

permit that court to exercise informed discretion with awareness 

of the full scope of its discretion and applicable law.” (F.T. v. L.J.

(2011) 194 Cal.App.4th 1, 26.) This principle applies here 

because the juvenile court’s errors fundamentally affected its 

inquiry into whether mother established a beneficial relationship. 

“[W]e cannot determine on this record that the juvenile court’s 

ruling complied with the principles announced in the Supreme 

Court’s decision. Although we recognize it is in [the minor’s] 

interest to expeditiously select his permanent plan, the interests 

at stake when parental rights are terminated are of the utmost 

importance to both parent and child, and proper consideration of 

the factors deemed relevant by our dependency scheme is vital.”

(In re J.D., supra, 70 Cal.App.5th at p. 840.)
22

The Agency resists this conclusion by claiming the juvenile 

court did not rely heavily on mother’s failure to address the 

minor’s medical needs. The Agency portrays the juvenile court’s 

concern on that score as one of many that supported its decision 

and therefore distinguishes this case from In re B.D., supra, 

66 Cal.App.5th at pages 1228–1229. In re B.D. reversed an order 

terminating parental rights where “the juvenile court relied 

heavily, if not exclusively,” on the parents’ failure to complete 

their reunification plans, despite the social services agency’s 

argument that substantial evidence supported the lower court’s 

order. (Ibid.) The juvenile court here did say the evidence was 

“overwhelming” that mother had not demonstrated a sufficient 

parental bond, and it certainly had many reasons why it ruled 

against mother on this issue. However, the lake incident and 

mother’s failures earlier in the dependency comprised nearly half 

of the juvenile court’s discussion of the reasons for its ruling, so 

the improper factors the juvenile court relied on were not a minor 

or insignificant aspect of its decision. 

More importantly, the relevant question is not whether 

substantial evidence in the record supports an order terminating 

mother’s parental rights under a proper application of the 

beneficial relationship exception consistent with Caden C. 

Because the juvenile court’s understanding of what constitutes a 

beneficial relationship and what evidence is relevant to proving 

such a relationship was different from what Caden C. later 

announced, we cannot rely on the juvenile court’s assessment of 

the weight of the evidence to find the juvenile court’s errors to be 
23

harmless. Additionally, Caden C. provided further instruction for 

juvenile courts about the value of bonding studies, which bears 

on mother’s request for bonding studies (discussed further, post). 

Under these circumstances, we deem it prudent to remand for the 

juvenile court to hold a new section 366.26 hearing and exercise 

its informed discretion based on a proper understanding of the 

law. We express no opinion on the appropriate outcome of such a 

hearing, leaving that issue to the juvenile court’s discretion. 

II. Mother’s additional arguments

Besides challenging the juvenile court’s ruling under Caden 

C., mother raises several other arguments for reversal of the 

order terminating her parental rights. She contends (1) the 

juvenile court erred by denying her requests for bonding studies 

of her and her other children’s relationships with the minor; (2) if

the juvenile court properly denied her bonding study request as 

untimely, she received ineffective assistance of counsel; (3) the 

juvenile court erred when it prevented her from calling two of the 

minor’s siblings to testify about their relationships with the 

minor for the sibling relationship exception; (4) the juvenile court 

erred by excluding evidence relating to the minor’s adoptability 

and then finding the minor adoptable; and (5) even if the juvenile 

court applied the correct legal standards, its findings that the 

beneficial relationship and sibling relationship exceptions did not 

apply were error and in violation of mother’s due process rights.

Our conclusion that the juvenile court’s order must be 

reversed and it must hold a new hearing makes it unnecessary to 

address these arguments. However, mother may well renew 
24

some of her previous requests and attempt to introduce similar 

evidence at the new hearing. This dependency case has already 

been pending for a considerable time, and continued protracted 

legal proceedings are contrary to the minor’s interest in 

permanency. Accordingly, we offer some observations about the 

arguments that are likely to remain relevant on remand, to offer 

guidance for the parties and minimize the possibility that further 

proceedings could lead to another appeal.

A. Bonding studies

Evidence Code section 730 empowers a juvenile court to 

appoint a fact-finding expert witness to study the bond between a 

parent and child. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 

1084.) Such a bonding study analyzes the strength and nature of 

the relationship between the parent and child, which can be 

relevant at a hearing under section 366.26 to the question of 

whether the beneficial parent-child relationship exception to 

termination of parental rights in section 366.26, 

subdivision (c)(1)(B)(i) applies. (Cal. Juvenile Dependency 

Practice (Cont.Ed.Bar 2020) § 8.33.) Bonding studies are also 

relevant to the sibling benefit exception, especially when young 

children who are less articulate are involved. (In re Jacob S.

(2002) 104 Cal.App.4th 1011, 1018, disapproved of on other 

grounds by In re S.B. (2009) 46 Cal.4th 529.) “In a case where 

the strength of a bond between very young siblings is difficult to 

determine because of the young age of the children involved, 

court-ordered sibling bond studies may be appropriate. Such 

studies would be helpful—in some cases might even be 
25

indispensable—in determining the applicability of section 366.26, 

subdivision (c)(1)[(B)(v)].”2 (In re Jacob S., at p. 1018.) However, 

“[t]here is no requirement in statutory or case law that a court 

must secure a bonding study as a condition precedent to” 

terminating parental rights. (In re Lorenzo C. (1997) 

54 Cal.App.4th 1330, 1339.) “The applicable standard of review 

is whether, under all the evidence viewed in a light most 

favorable to the juvenile court’s action, the juvenile court could 

have reasonably refrained from ordering a bonding study.” 

(Id. at p. 1341.)

Caden C. emphasized the importance of bonding studies for 

evaluating the beneficial relationship exception. (Caden C., 

supra, 11 Cal.5th at pp. 632–633.) In its discussion of the second 

element, a beneficial relationship, the Supreme Court remarked, 

“As in this case, often expert psychologists who have observed the 

child and parent and can synthesize others’ observations will be 

an important source of information about the psychological 

importance of the relationship for the child.” (Ibid.) In a 

footnote, the Court went even further, noting that both the 

juvenile court and Court of Appeal in that case had found the 

bonding study in that case informative and instructing, “Trial 

courts should seriously consider, where requested and 

2 The sibling relationship exception was formerly codified 

at section 366.26, subdivision (c)(1)(E); in 2007 it was 

renumbered without substantive change to 

subdivision (c)(1)(B)(v). (Stats. 2007, ch. 565, § 4.) For simplicity, 

all quotations in judicial decisions referring to section 366.26,

subdivision (c)(1)(E) have been changed to reflect the current 

numbering.
26

appropriate, allowing for a bonding study or other relevant expert 

testimony.” (Id. at p. 633, fn. 4.)

In this case, the juvenile court set the section 366.26 

hearing for January 3, 2020. In December 2019, the court 

continued the section 366.26 hearing to February 18, 2020. On 

January 21, 2020, mother, who at some point in the prior seven 

weeks came to be represented by a new attorney, filed a motion

for bonding studies and asked to have the motion placed on the 

calendar for January 30, 2020. The juvenile court denied the

request to place the motion on the January 30, 2020, calendar 

and ordered that the motion would be addressed at the existing 

future court date, which was the section 366.26 hearing on 

February 18, 2010. 

At the beginning of the section 366.26 hearing, the court 

heard argument and denied the bonding study motion. The court 

recognized that mother had changed counsel, and the court 

stated the change in counsel was due to a reorganization within 

her counsel’s firm. But the court found that did not mean that 

two weeks before the trial date the court should entertain a 

motion for bonding studies. The court stated that a study would 

delay permanency and stability for the minor and would not do 

anything more than buy time for mother. The court also stated 

that it was a “late-in-the-game type of filing; frankly, because it 

was filed and asked to be set for a hearing, sort of shoehorned in 

by mother’s counsel, strong-armed, if you will, and that’s not how 

we conduct our courtroom.” 
27

Besides finding the motion untimely, the juvenile court 

found a study would not be useful or beneficial for the court’s 

fact-finding, because the judicial officer at the section 366.26 

hearing had overseen one or two prior hearings and was familiar 

with the reports and lengthy record. The court noted that the 

minor was three-and-a-half years old at the time and was not 

particularly articulate. The court stated the minor had serious 

medical issues and found any disturbance to his emotional wellbeing would be detrimental to him. The court appeared to 

recognize that child therapists might be helpful for overcoming 

the latter two issues, but reiterated that the study would not be 

helpful to the court as the trier of fact. The court further found 

that the study would not be beneficial or helpful for its evaluation 

of the sibling relationships on behalf of the minor. 

If mother renews her request for bonding studies on 

remand, the court should give due consideration to such a request 

with Caden C. in mind. We express no opinion on whether 

bonding studies are warranted but offer three observations 

regarding the juvenile court’s reasons for denying mother’s prior 

requests. 

First, nothing in Caden C. purported to restrict the broad 

discretion a juvenile court exercises over whether to order a 

bonding study. Even after Caden C., a court that believes a 

bonding study is unnecessary because the record adequately 

reflects the nature of the relationship between a minor and his or 

her parent may still properly deny a request for a study. (In re 

B.D., supra, 66 Cal.App.5th at p. 1228, fn. 3 [“Although bonding 
28

studies and expert reports are often very informative [citation], 

they are not always required because a juvenile court can infer 

detriment based on the loss of a ‘significant, positive relationship’ 

with a parent”]; In re Richard C. (1998) 68 Cal.App.4th 1191, 

1196 [“ ‘At the time the court makes its determination [regarding 

a bonding study], the parent and child have been in the 

dependency process for 12 months or longer, during which time 

the nature and extent of the particular relationship should be 

apparent’ ”].) However, Caden C.’s admonition that juvenile 

courts should seriously consider allowing such studies does move 

the needle towards favoring such studies. (People v. Baldwin

(2018) 30 Cal.App.5th 648, 657 [“ ‘Supreme Court dicta is not to 

be blithely ignored. Indeed, such dicta is said to be “persuasive” 

[citation] and to “command[ ] serious respect.” ’ [Citation.] ‘As 

one appellate court has advised: “Generally speaking, follow 

dicta from the California Supreme Court” ’ ”].) 

Second, the juvenile court missed the mark in relying on 

the fact that the minor could not articulate himself well. As In re

Jacob S., supra, 104 Cal.App.4th at page 1018, noted in the 

context of the sibling relationship exception, when “the strength 

of a bond between very young siblings is difficult to determine 

because of the young age of the children involved, court-ordered 

sibling bond studies may be appropriate. Such studies would be 

helpful—in some cases might even be indispensable—in 

determining the applicability of section 366.26, subdivision 

(c)(1)[(B)(v)].” The same is true when evaluating a child’s bond 

with a parent. When children are younger and have more 
29

difficulty expressing themselves, like the minor here, there is 

more of a need for expert analysis, not less.

Finally, the timing of mother’s request, while not ideal, was 

not so late as to bar it. Mother filed her request on January 21, 

2020, about one month in advance of the section 366.26 hearing 

date, and she tried to have the motion heard several weeks in 

advance of the hearing date. The juvenile court evidently 

believed her attempt to have the motion heard in advance of the 

hearing was contrary to local practice, but that does not change 

the fact that mother’s new counsel filed the motion a month in 

advance to avoid delaying the section 366.26 hearing. The 

juvenile court is correct that mother’s change in counsel did not 

necessarily entitle her to a continuance of the existing section 

366.26 hearing. But it is noteworthy that, assuming the court’s 

explanation at the hearing for the change in counsel is correct, 

mother did not voluntarily change lawyers. Mother’s courtappointed law firm changed the lawyer assigned to her case, 

which was beyond mother’s control. Leaving aside the question 

of whether her prior counsel was ineffective for failing to request 

the study earlier, as mother argues in the alternative, at the very 

least the delay does not appear to have been purely an attempt to 

push off the section 366.26 hearing, as the juvenile court appears 

to have construed it. 

While we are cognizant of the bias of hindsight, we cannot 

help but note that while the section 366.26 hearing began in 

February 2020, the juvenile court did not conclude the hearing 

and issue a ruling until well over a year later, in April 2021. 
30

Given that span of time, it is difficult to accept the juvenile 

court’s reliance on the minor’s interest in quickly achieving 

permanency as a basis for denying the request for a study. A 

great deal of that delay, of course, was due to the onset of the 

COVID-19 pandemic and the changes to court procedures that it 

necessitated, both of which were unforeseeable and unavoidable. 

But much of the delay was also due to the need for multiple days 

of testimony from each of four witnesses; mother’s need for an 

interpreter for her native language of Dari and the court’s

difficulties supplying a suitable interpreter; and, not least, the 

court’s congested docket. These issues contributed to the hearing 

being held on 16 separate days with gaps between hearing days 

of more than a month in some instances. 

Even under a best-case scenario without the pandemic and 

interpreter difficulties, the hearing could have been expected to 

span multiple court days and therefore take several calendar 

weeks, if not longer, to complete. In such circumstances, the 

juvenile court should have considered not just the timeliness of 

the request for bonding studies relative to the beginning of a 

section 366.26 hearing, but also the timeliness relative to the 

conclusion of the hearing and whether bonding studies could have 

taken place concurrently with the first hearing dates such that 

they would not delay the end of the hearing.

If the record of the prior hearing here is any guide, the 

section 366.26 hearing on remand will take several court days. 

Thus, if mother again requests bonding studies and the 

timeliness of the request remains at issue, the juvenile court in 
31

exercising its discretion should determine whether such studies 

can be completed with little or no delay to the minor’s 

permanency beyond what the court’s schedule itself will require.

B. Sibling testimony

The sibling relationship exception to termination of 

parental rights, set forth at section 366.26, 

subdivision (c)(1)(B)(v), is similar to the beneficial relationship 

exception. (In re L. Y.L. (2002) 101 Cal.App.4th 942, 951.) 

“Reflecting the Legislature’s preference for adoption when 

possible, the ‘sibling relationship exception . . . only applies when 

the juvenile court determines that there is a “compelling reason” 

for concluding that the termination of parental rights would be 

“detrimental” to the child due to “substantial interference” with a 

sibling relationship.’ [Citation.] Indeed, even if adoption would 

interfere with a strong sibling relationship, the court must 

nevertheless weigh the benefit to the child of continuing the 

sibling relationship against the benefit the child would receive by 

gaining a permanent home through adoption.” (In re Celine R.

(2003) 31 Cal.4th 45, 61.) “To determine the significance of the 

sibling relationship, the court considers the factors set forth in 

section 366.26, subdivision (c)(1)[(B)(v)].” (In re L. Y.L., at 

p. 952.) Those factors, which are not exclusive (id. at p. 952, 

fn. 6), are “whether the child was raised with a sibling in the 

same home, whether the child shared significant common 

experiences or has existing close and strong bonds with a sibling, 

and whether ongoing contact is in the child’s best interest, 

including the child’s long-term emotional interest, as compared to 
32

the benefit of legal permanence through adoption.” (§ 366.26, 

subd. (c)(1)(B)(v).)

“ ‘While a parent in a juvenile dependency proceeding has a 

due process right to a meaningful hearing with the opportunity to 

present evidence [citation], parents in dependency proceedings 

“are not entitled to full confrontation and cross-examination.”

[Citation.] Due process requires a balance. [Citation.] The 

state’s strong interest in prompt and efficient trials permits the 

nonarbitrary exclusion of evidence [citation], such as when the 

presentation of the evidence will ‘necessitate undue consumption 

of time.’ [Citation.] The due process right to present evidence is 

limited to relevant evidence of significant probative value to the 

issue before the court. [Citations.]’ [Citation.] . . . [I]t does not 

violate due process for a trial court to require an offer of proof 

before conducting a contested hearing on one of the statutory 

exceptions to termination of parental rights.” (In re Tamika T.

(2002) 97 Cal.App.4th 1114, 1122, italics omitted [considering 

beneficial relationship exception]; In re Earl L. (2004) 

121 Cal.App.4th 1050, 1053 [applying Tamika T. to sibling 

relationship exception].)

At the beginning of the section 366.26 hearing, mother

indicated she intended to call three of the minor’s siblings to 

testify about the minor’s relationship with them, for the purposes 

of establishing the sibling relationship exception. When the 

juvenile court asked for an offer of proof regarding the siblings’ 

testimony, mother said she expected them to describe their 

significant common experiences, the closeness of their bonds, 
33

interactions they had with the minor, how he had connected with 

them, and any emotional displays he had made. Mother argued 

all three siblings’ testimony was necessary because the minor 

might have stronger or weaker relationships with each sibling. 

The juvenile court denied mother’s request to examine the 

youngest siblings because it found, based on mother’s offer of 

proof, the younger siblings did not have any information that was 

not duplicative or cumulative regarding the visits with the minor. 

Mother contends the younger siblings’ testimony would not 

be duplicative and the exclusion of their testimony violated her 

due process right to present evidence, because the sibling 

relationship exception applies to each sibling individually. We 

disagree. The sibling relationship exception does apply to each 

sibling separately. (See In re Jacob S., supra, 104 Cal.App.4th at 

pp. 1017–1018 [considering different siblings’ relationships 

separately].) But neither in the lower court nor here has mother

explained what information the two younger siblings had that 

was not within the oldest sibling’s or mother’s knowledge. 

Mother was present for each of the visits, and she does not 

contend the younger siblings visited with the minor separately 

from the oldest sibling. She offers no reason to think the other 

siblings had relationships with the minor that were materially 

different from that of the oldest sibling. Additionally, the young 

age of the two younger siblings (11 and 9 years old when the 

juvenile court ruled), when considered with the minor’s own 

young age and the two years he had been out of the house at the 

time, makes it unlikely they would have observed some revealing 
34

nuance of the minor’s behavior and attitude toward his siblings. 

Mother and the oldest sibling could adequately describe the

minor’s activities and emotional reaction to the visits with all of 

the siblings, making the younger siblings’ testimony on such 

points duplicative and cumulative. 

C. Adoptability

Mother argues the juvenile court’s finding by clear and 

convincing evidence that the minor was adoptable is not 

supported by substantial evidence. Mother contends variously 

that the agency’s adoption assessment was inadequate for being 

out of date, not discussing the minor’s relationship with mother 

and his siblings, and not describing the minor’s contacts with his 

extended family; the minor was still medically fragile and 

therefore not generally adoptable; and the court improperly 

excluded evidence regarding a legal impediment to adoption by 

the caregiver. Because the agency will presumably prepare a new 

assessment for the new section 366.26 hearing on remand and 

the minor’s health conditions may have changed by the time of 

such a hearing, we will only address mother’s last contention 

regarding a legal impediment to the caregiver’s ability to adopt 

the minor.

At a section 366.26 hearing, “[t]he juvenile court may 

terminate parental rights only if it determines by clear and 

convincing evidence that it is likely the child will be adopted 

within a reasonable time.” (In re Carl R. (2005) 128 Cal.App.4th 

1051, 1060.) “The adoptability issue at a section 366.26 hearing 

focuses on the dependent child, e.g., whether his or her age, 
35

physical condition, and emotional state make it difficult to find a 

person willing to adopt.” (In re A.A. (2008) 167 Cal.App.4th 1292, 

1311.) “The likelihood of adoptability may be satisfied by a 

showing that a child is generally adoptable, that is, independent 

of whether there is a prospective adoptive family ‘ “ ‘waiting in 

the wings.’ ” ’ [Citation.] However, the case law also recognizes 

that the juvenile court may properly consider a prospective 

adoptive parent’s willingness to adopt as evidence that the child 

is likely to be adopted within a reasonable time.” (Id. at p. 1313, 

italics omitted.) If a juvenile court finds a child is adoptable “only 

because a particular family is willing to adopt,” then the court 

must consider legal impediments to adoption by the particular 

family. (In re G.M. (2010) 181 Cal.App.4th 552, 562.) If a court’s 

adoptability finding is based in part on the willingness or 

commitment of an identified prospective adoptive parent, then 

evidence of legal impediments to adoption by that parent is 

“relevant” to a finding of adoptability, but a court does not have a 

duty to inquire into such impediments. (Id. at pp. 562, 564.)

“On review, we determine whether the record contains 

substantial evidence from which the juvenile court could find 

clear and convincing evidence the child was likely to be adopted 

within a reasonable time.” (In re Michael G. (2012) 

203 Cal.App.4th 580, 589; see Conservatorship of O.B. (2020) 

9 Cal.5th 989, 1011 [“When reviewing a finding that a fact has 

been proved by clear and convincing evidence, the question before 

the appellate court is whether the record as a whole contains 
36

substantial evidence from which a reasonable fact finder could 

have found it highly probable that the fact was true”].)

During the hearing, mother attempted to ask the social 

worker about a potential legal impediment to the caregiver’s 

ability to adopt relating to her marital status. Mother’s 

argument rested on Family Code section 8603, subdivision (a), 

which states, “A married person, not lawfully separated from the 

person’s spouse, shall not adopt a child without the consent of the 

spouse, provided that the spouse is capable of giving that 

consent.” The Agency reported in February 2020 that the minor’s 

caregiver was living with her boyfriend and adolescent children 

and was in the process of divorcing her husband. Mother sought 

to ask the social worker whether the caregiver was still in the 

process of getting a divorce. The juvenile court sustained the 

Agency’s objections to the questions, and it explained that the 

evidence was not relevant because the court was not deciding 

who would ultimately adopt the minor. Mother raised the issue 

again in her closing argument, and the juvenile court again told 

her to move on because the argument was not relevant. 

At the conclusion of the hearing, the juvenile court found by 

clear and convincing evidence that the minor was generally and 

specifically adoptable. The court found the minor was generally 

adoptable because he was in good mental, physical, and 

emotional health. The court recognized that the minor was 

medically fragile but nonetheless found he had no impediments 

to adoption because he had made a lot of improvement. The court 

also found the minor was specifically adoptable based on the 
37

caregiver’s willingness to adopt. The court reaffirmed its earlier 

rulings that the caregiver’s marital status was not relevant or on 

point because the court was not relying solely on a finding of 

specific adoptability based on the caregiver’s willingness to adopt. 

The court then concluded the minor was specifically adoptable

because there was no evidence that the caregiver’s spouse would 

not sign the necessary paperwork. 

On appeal, mother renews her argument about the 

caregiver’s legal impediment to adoption. Mother contends the 

Agency should have confirmed whether the caregiver was 

divorced or legally separated. Mother further contends the 

juvenile court erred by preventing her from asking the social 

worker about this topic. 

We agree with mother that the juvenile court erred. The 

juvenile court’s adoptability determination rested in part on its 

finding that the minor was specifically adoptable by the 

caregiver. Under In re G.M., supra, 181 Cal.App.4th at pages 562

and 564, although the juvenile court did not have a duty to 

inquire in possible legal impediments to the minor’s adoption by 

the caregiver, evidence of such impediments was relevant and the 

juvenile court should have allowed mother to explore the topic. 

Likewise, the Agency’s “preliminary assessment of the eligibility 

and commitment” (§§ 361.5, subd. (g)(1)(D), 366.21, 

subd. (i)(1)(D), 366.22, subd. (c)(1)(D)) of the caregiver as an 

adoptive parent in the section 366.26 report should have 

addressed whether Family Code section 8603 would prevent the 

caregiver from adopting the minor. However, the juvenile court’s 
38

failure to allow mother to present evidence of the caregiver’s 

potential legal impediment to adoption was not necessarily fatal 

to the court’s overall adoptability finding, because the juvenile 

court also found the minor generally adoptable. So long as 

substantial evidence supported that general adoptability finding 

(which we need not decide), the juvenile court’s order would have 

remained valid. (In re G.M., at p. 564.)

DISPOSITION

The juvenile court’s order is reversed. The matter is 

remanded for further proceedings not inconsistent with this 

opinion.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

In re A.K. (A162558)