Filed 9/5/18 In re J.M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputies County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Louisa M. appeals from orders terminating her parental rights to each of her three daughters, P.A., age two, R.A., age three, and J.M., age seven. We affirm those orders because the juvenile court was well within its discretion, particularly in light of Louisa’s poor visitation record, in determining the “benefit exception” of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) does not apply.[1]

II. BACKGROUND

The case began November 16, 2016, when the three children were detained. P.A., then less than a year old, was brought to a hospital by Louisa for “acting differently.” It turned out that P.A. had amphetamine in her system. Louisa offered the explanation that somehow P.A. had come in contact with a towel containing a chemical degreaser used in cleaning. That explanation was rejected by a medical child abuse expert at the hospital. The expert said no cleaning liquid would have caused such a positive test. About the same time Louisa’s mother told a social worker that Louisa had a “history of leaving the children” with her for “‘months, weeks, and days at a time.”

The detention hearing occurred November 22, 2016, within a week of P.A.’s being taken to the hospital. At the detention hearing the court ordered Louisa to have six hours per week of monitored visitation. The same day social workers provided instructions to Louisa to begin drug testing. The court also ordered the social services agency to provide reunification services to Louisa.

On February 21, 2017, the juvenile court made its jurisdictional orders. They were based on subdivisions (b) [failure to protect from conduct of custodian] and (g) [children voluntarily surrendered without provision for support] of section 300.[2]

By the time of the February 2017 jurisdictional hearing, it was clear that Louisa unquestionably had (and, as far as this record shows, continues to have) a significant drug addiction problem. By February 21 – the date of the hearing – Louisa had missed 25 scheduled drug tests.

The six-month review took place October 5, 2017. Louisa had missed all scheduled visits with the social worker since April 11, 2017. More ominously, she had told a social worker about turning herself in to the women’s central jail in Orange County on drug and drug-related charges. Louisa told the social worker she expected to be released in late August.

The record is unclear as to precisely when Louisa was released, though it does appear she had been released by August 2017. In August and September 2017, Louisa missed 14 drug tests. She missed another 7 before the October 6-month review.

At the six-month hearing the trial judge found that Louisa’s “progress” on her reunification plan had been “minimal.” The judge terminated all reunification services. A “.26 hearing” (also called a “permanency planning” hearing) was scheduled for February 5, 2018.

The .26 hearing was heard in stages, and finished on April 13, 2018, after Louisa herself had taken the stand and made an emotional plea for “just one last chance, you know, to make things right.”[3] Her testimony centered on the theme her visits with her children, particularly with J.M. the eldest daughter, had gone well. Poignantly, Louisa recounted how J.M. in particular was very sad to see those visits end.

In subsequent oral argument, however, county counsel emphasized a social worker’s report showing that of 52 scheduled visits, Louisa had missed 13, and had been on time for only 3 of the remaining 39 visits. The report showed that on several occasions she was over 2 hours late. County counsel pointed out that the only reason most of her visits were not canceled is that Louisa’s parents also visited on those occasions and they showed up on time. Minor’s counsel, for her part, noted that Louisa had never progressed beyond the 6 hours of monitored visitation given her at the initial detention hearing.

The court found that Louisa had not carried her burden of showing regular and consistent visits. However, even assuming “arguendo” that Louisa had “satisfied that particular prong” of the benefit exception, the court found the nature of Louisa’s relationship was outweighed by “the benefits to be derived by each of the children in permanency, permanent placement, permanent, stable placement.” From the ensuing order of termination Louisa has brought this appeal.

III. DISCUSSION

As alluded to in oral argument before the trial court, and as is evident in the statutory language itself, the benefit exception consists of two prongs, a threshold prong of “regular visitation and contact” and a second, more general prong involving weighing the benefits from not terminating parental rights against the benefits of stability in doing so.[4] The former is tested for substantial evidence. The latter is the quintessentially discretionary decision. (See In re J.C. (2014) 226 Cal.App.4th 503, 530-531 (J.C.); In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

We are not aware of any published decision of the Court of Appeal directly holding that a parent’s tardiness to visitation by itself defeats the regular visitation and contact prong. However, in In re C.F. (2011) 193 Cal.App.4th 549, 554, nine no-shows over a 12-month period of time was part of a pattern the court held to be “sporadic” and therefore insufficient to satisfy the first prong. Likewise, visitation was “sporadic” in In re Elizabeth M. (1997) 52 Cal.App.4th 318, 321, 324, where, during one two-month period, the mother canceled half her visits, which was among a number of factors weighing against application of the benefit exception. And in J.C., supra, 226 Cal.App.4th 503, there were five missed visits in last six weeks of dependency plus a “troubling . . . pattern of changing” plans at the last minute. Substantial evidence thus supported a determination the mother had failed to carry her burden on prong one. (See id. at. p. 712.)

In the present case, there was substantial evidence in the form of a social worker’s log showing Louisa missed a full quarter of all visits scheduled during the period December 2016 through January 2018. Additionally, Louisa was late more than 90 percent of the time to all the other visits. Louisa was at least an hour late to 15 of the 39 visits she did make, and 6 times she was at least 2 hours late. We think this record significant in light of the fact these were only 6-hour visits, so substantial amounts of visitation time that could never be made up were unquestionably lost to her tardiness.

We may therefore uphold the trial court’s decision solely on the substantial evidence that Louisa’s visitation and contact was not sufficiently “regular.” However, even assuming, as did the trial judge, that she barely scraped by the first prong, there is certainly no doubt the trial court was well within its discretion in concluding the benefit to the three children from a permanent placement outweighed whatever benefit might accrue from maintaining Louisa’s parental rights. The statute requires a “compelling reason” to find “that termination would be detrimental to the child” due to the benefit the child receives from maintaining the parental tie. Sad to say, Louisa did not make that showing here.

To be sure, as county counsel acknowledges, the children were happy to see Louisa when she visited them, and sad – particularly J.M. – to see her go. But against those moments was arrayed substantial evidence the younger children P.A. and R.A. were particularly bonded to their caregivers. They called them mommy and mama and expressed their love toward them. There was also substantial evidence that J.M.’s anxiety stemmed mostly from the uncertainty of where she would end up.

Moreover, the trial court could take into account Louisa’s flawed record of visitation and her utter failure to follow the reunification plan to conclude that even J.M.’s anxiety would be better handled by severing ties with Louisa. Indeed, this is a case where a parent’s failure to progress on her reunification plan – because of failure to drug test – is interconnected with the benefit exception: Louisa never progressed beyond six-hours a week monitored visitation so as to have a chance of assuming the parental relationship with a child that the benefit exception requires. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)

There is a reason the statute requires “regular visitation and contact.” Children, as J.M.’s case here illustrates, need certainty. As another Justice Moore wrote for this court more than two decades ago: “Children should not be required to wait until their parents grow up.” (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632.[5]) When a parent undercuts the need for certainty by missing one-quarter of her visits and shows up late for almost all the others, there is unlikely to be much benefit in maintaining parental rights in the long run – especially if that parent has a chronic drug problem that hampers her ability to obtain more visitation than she begins the reunification period with.

IV. DISPOSITION

The orders appealed from are affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.