Filed 12/18/17 In re R.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re R.D., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.B.,

Defendant and Appellant.


E068355

(Super.Ct.No. J263590)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
On May 16, 2017, the juvenile court terminated defendant and appellant, S.B.’s (Mother), parental rights as to R.D. (Minor), born in March 2015. On appeal, Mother contends the court abused its discretion by terminating her parental rights without the benefit of a more recent report from plaintiff and respondent, San Bernardino County Children and Family Services (CFS), which Mother suggests would have contained more information on visitation, than the Welfare and Institutions Code section 366.26 report filed on December 9, 2016. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
CFS personnel received a referral on December 14, 2015, alleging the Minor’s father, R.D. (Father), was on drugs and physically and verbally abusive to Mother. The referral additionally alleged Father was mentally unstable and “‘dragging the children through the streets’” and getting kicked out of hotel rooms. On December 18, 2015, CFS personnel received a subsequent referral reporting the family was homeless and that Father was on drugs, was violent, and had a history of committing domestic violence in front of the children. That same day, the social worker attempted to contact Mother and Father (collectively, Parents) at their reported address. There was no answer so she sent a certified letter to Parents at the address asking them to report for an appointment at CFS’s offices on January 4, 2016.
On December 21, 2015, CFS personnel received a third referral alleging Parents had sold their food stamps in order to “‘have fun’” instead of providing for the children. Father had been arrested for domestic violence in the past and threatened Mother that he would run off with Minor.
CFS personnel received a fourth referral on December 23, 2015, reporting that Parents had gotten into an altercation in a hotel where they were staying and that S.D.1 had acted as if she were going to stab Father in defense of Mother. The referral stated that law enforcement was called and officers took Mother to a homeless shelter with S.D.1 and S.D.2, leaving Minor with Father. On December 29, 2015, CFS personnel received a fifth referral stating that Mother had contacted S.D.1 and S.D.2’s father to ask if they could stay with him; they had been kicked out of the homeless shelter for causing “‘a ruck[us].’” Parents failed to show for the appointment scheduled for January 4, 2016.
On January 5, 2016, Father’s paternal great-aunt and great-uncle (PGAU) contacted the social worker to report that all three children had been left with them on December 28, 2015. The social worker spoke with S.D.1 and S.D.2 on January 5, 2016. S.D.2 reported that Mother and Father would get into fights every day and it scared her. Father would break things, the electricity and water sometimes got shut off, and sometimes there was no food.
S.D.1 said he did not like living with Parents because sometimes there was no food, the electricity would sometimes get shut off, and sometimes, as punishment, he was forced to sit in a dark room for long periods of time. S.D.1 reported that Father had anger issues; he had once thrown a basketball at Mother’s face causing a scratch to her eye; Father put holes in the wall with a crowbar; and Father scared him.
On January 6, 2016, the social worker spoke to Parents. Mother denied not having food in the house, but said that sometimes, at the end of the month, money would be tight and she would get food from their church. Mother admitted some domestic violence issues between she and Father. She denied any substance abuse issues saying she had last smoked marijuana around Halloween. Mother said Father had smoked marijuana a couple of weeks earlier. Mother reported that she was four months pregnant.
Father denied any current issue of domestic violence, but admitted a past history of domestic violence. Father denied that there were times there was no food in the house, though he asserted that Mother took care of those things and he really wasn’t sure. Father denied any substance abuse issues, but reported taking psychotropic prescription medications. He stated that he and Mother planned to move out of the state. Also on January 6, 2016, the social worker spoke with S.D., the father of S.D.1 and S.D.2., who wanted them placed with him.
The social worker filed a section 300 juvenile dependency petition as to Minor, alleging that Parents had engaged in domestic violence in the presence of Minor (b-1 & b-2), that Parents had substance abuse issues (b-3 & b-4), and that Parents had failed to provide a home or support to Minor (b-5 & b-6). Parents did not appear at the detention hearing on January 8, 2016. The juvenile court detained Minor and his half siblings.
In the jurisdictional/dispositional report filed on January 26, 2016, the social worker recommended that the cases as to S.D.1 and S.D.2 be dismissed and that the children be placed with their father. As to Minor, the social worker recommended the court remove him from Parents, find the allegations true, and offer Parents reunification services.
Parents were apparently homeless; the social worker had been unable to meet with them. Father had called the social worker from several phone numbers but would not provide an address for her to contact Parents.
The social worker spoke with S.D.1 and S.D.2 again on January 19, 2016. They reported that Father had thrown a chair at the wall and punched holes in the walls with his fists. He called them names like “‘stupid, dumb, and idiot.’” Father had pulled S.D.2 by the hair and grabbed them both by the neck.
Mother had been arrested and charged with inflicting injury on a spouse in June 2007 and battery on a spouse on January 23, 2008. The charges were later dismissed. Father had been arrested on January 23, 2008, and March 2, 2013, for spousal battery; however, no charges were filed. Father had also been arrested for inflicting corporeal injury on a spouse on March 1, 2010; he was convicted for inflicting corporeal injury on a spouse on March 10, 2010, and again in 2013. Father was arrested and charged with misdemeanor cruelty to a child in 2009.
Father tested positive for amphetamines and marijuana on January 6, 2016. Mother tested positive for marijuana on January 7, 2016. Parents had previous CFS referrals in 2008 and 2009, both of which were deemed unfounded. The social worker recommended Parents’ reunification plan include substance abuse treatment, domestic violence counseling, parenting classes, and individual counseling; Father was also to participate in anger management. The social worker scheduled visitation once weekly for two hours; however, Parents did not visit at all.
Mother appeared at the hearing on January 28, 2016; Father failed to appear. The court ordered Mother to drug test that day. Pursuant to Mother’s request, the court set the matter for a contested jurisdictional and dispositional hearing.
In an information for the court filed on February 18, 2016, the social worker reported that S.D.1 and S.D.2 were happy staying with their father and did not wish to return to Mother’s custody. Mother tested positive for marijuana on January 28, 2016. Father did not show for random drug tests on January 28, 29, and February 5, 2016.
Both Parents appeared at the contested dispositional and jurisdictional hearing on February 18, 2016. Mother testified that she and Father were never in any physical altercations; she denied the basketball incident reported by S.D.1. Mother denied that Father put holes in the walls or broke things. She testified she believed Father had been removed from their residence by the police previously, but for a ticket or warrant, not for domestic violence. Mother said her positive drug test surprised her because she had not been using marijuana recently; the last time she used was in July 2015. Mother denied any substance abuse problem. She said she had never seen Father physically abuse or improperly handle the children.
S.D.2 testified that Father called Mother a “bitch” every day when he was mad. He also hit Mother a lot when he was mad. S.D.2 testified she would try to get in front of Father when he hit Mother in an attempt to stop it; she was afraid of Father. Father had thrown things at Mother, such as a water bottle and basketball; Mother had incurred a scratch to her face. S.D.2 had seen Father hit the wall and put a hole in it when he was mad at Mother. Father had pulled S.D.2’s hair before. She had seen him use drugs. S.D.2 did not want to live with Mother because she did not feel comfortable and living with Parents could be “scary.” Nevertheless, S.D.2 wanted to visit with Mother, but not with Father.
The juvenile court found the allegations with respect to S.D.1 and S.D.2 not true and dismissed the case. With respect to Minor, the court found the allegations true, removed Minor, ordered reunification services for Parents, and ordered Parents to drug test that day. On April 15, 2016, Father appealed the juvenile court orders. We dismissed the appeal on July 22, 2016, as abandoned.
In the status review report filed on August 8, 2016, the social worker recommended terminating Parents’ reunification services and setting the section 366.26 hearing. Parents had enrolled in services on February 24, 2016, but were out of compliance with all services, including drug testing, even prior to moving to Connecticut on an unspecified date. Mother had become involved in two domestic violence incidents, one while pregnant and another after giving birth. She then moved into a domestic violence shelter.
Social services in Connecticut had opened a family maintenance plan with Parents on or about July 20, 2016, with respect to the newborn child. Parents had completed a parenting class through that plan. Parents wanted the instant case transferred to Connecticut, but CFS did not recommend the transfer and social services in Connecticut rejected any attempt to transfer the matter.
Prior to moving, Parents had visited with Minor; they were described as attentive, although Father discussed the case with Minor. Father missed a visit with Minor on March 18, 2016; both Parents missed visitation on March 24 and April 11, 2016. The social worker indicated Parents had not visited Minor since “then,” but failed to indicate when “then” was. Mother tested negative for drugs on February 18, 2017. Father failed to show for drug tests scheduled for February 5, 18, 26, March 8 and 30, 2016. Mother failed to show for drug tests scheduled for February 25, March 15, 21, April 4, 29, and May 3, 2016. Father was arrested on March 7, 2016, for spousal battery when Mother alleged Father had pulled her hair during an argument. Mother denied the incident to the social worker. Information provided by social services in Connecticut reflected that Father tested positive for marijuana on August 5, 2016.
Parents failed to appear on August 18, 2016, the date originally set for the six-month review hearing. Parents were still in Connecticut and requested to appear at a contested hearing by telephone. The court denied the request. The court noted: “I just have concerns about how [Mother] left the state and tried to get out of whatever she was supposed to do here to get her child back.” The court further observed: “My concern is that—I believe she fled this jurisdiction when she thought the State would take her new baby she was pregnant with and went to Connecticut. . . . [I]t sure looks like she didn’t want to lose a second child to California. So I think she may have willfully left our jurisdiction, so I don’t know if we give her a benefit for trying to play the system . . . .”
Neither parent appeared at the contested six-month review hearing on August 31, 2016. Mother requested an ICPC, interstate compact on the placement of children. Minor’s counsel noted that Connecticut had declined jurisdiction over Minor. The court thereafter terminated Parents’ reunification services and set the section 366.26 hearing. On September 1, 2016, Mother’s counsel filed a notice of intent to file a writ petition. On October 18, 2016, we dismissed the writ for failure to timely file a motion for relief from default for having failed to timely file a writ petition.
On December 1, 2016, the social worker requested an order to permit notification of hearings through Parents’ counsel as the social worker had been unable to locate Parents. The court granted the orders.
In the section 366.26 report filed on December 9, 2016, the social worker recommended that the juvenile court find Minor adoptable and terminate Parents’ parental rights. The social worker noted Minor had been placed in the prospective adoptive parents’ (PAPs) home, the PGAU, on January 5, 2016. Minor had adjusted well to the home; the PAPs expressed a strong desire to provide a permanent and stable home for Minor through adoption. Minor had not had contact with Parents since March 24, 2016. Parents told the social worker they were unable to come to California for visits. On December 21, 2016, the PAPs submitted a letter reflecting that Minor was thriving and doing well in their home. He had bonded with the family and was progressing in every identifiable milestone. The PAPs requested they be considered for adoption of Minor.
On January 26, 2016, Mother’s counsel requested to be relieved due to a breakdown in the attorney-client relationship. The court granted the request on February 3, 2017. After several continuances, the contested section 366.26 hearing was finally held on May 16, 2017. Parents were not present.
Mother’s counsel noted that Mother’s newest child had been returned to her in Connecticut. He also “asked this morning whether there was any kind of—any different recommendation by the social worker. The last report I have asking for termination of parental rights is dated [December 22, 2016], which is about [six] months ago, and I thought there might be some sort of . . . update to kind of see where the Department’s at on this case.” Counsel noted that “the only contact [Mother] has had is phone calls and such to the caregiver, which is a relative. . . . At this point, I would ask—I would be objecting to the report as it is, but I have no affirmative defense, but I’m surprised there is no further update than [six] months ago.”
The court inquired about whether there was a more recent report, noting “we don’t know about [Mother’s] visits on the phone or whatever.” Counsel for CFS responded that they could call the social worker. The court replied: “I don’t know if there is a parent-child bond or not. I have no idea. I don’t have evidence of one in the report.” Over the phone, the social worker apparently indicated she had no information regarding telephone calls between Mother and Minor. Minor’s counsel observed that “the caregivers state Mom calls, but they haven’t seen the child since March of 2016.”
The court observed that Parents “chose to go to Connecticut, in my opinion, to avoid having another removal of a child because they had a history with CFS here . . . .” “In essence, they chose one child over the other when they did that.” “I don’t think there is any reason to delay this or any reason to justify delaying permanence.”
Counsel for CFS argued: “We are asking the Court to terminate parental rights. We believe the child is adoptable. He is healthy in a relative home that wants to provide permanence to the child. I don’t believe that there is any evidence to support any of the exceptions. The parents left this child over a year ago and have not had any face-to-face contact. The child’s very young and is bonded and well cared for with the relative caregivers.”
Mother’s counsel stated: “I would be objecting for the record. I have no affirmative defense because I don’t have a lot of information. I just wondered—I talked to my client this morning. I told her the Court will likely go forward today because we don’t have anything to show that there was a strong bond between the child out here and my client. She understands that basically because she was working on her case plan back there, she couldn’t leave, so she tried to call back and talk to the child. [¶] The child’s only [two years old], so they weren’t mind-blowing conversations, but she said the child knows who she is.” “I don’t have any[more to] say, we have a dearth of information in this case. So based upon the Court’s ruling, I would object for the record. As I said, I have no affirmative defense at this time. I have the mother’s phone. I’ll call her.” The court found Minor adoptable and terminated Parents’ parental rights.
II. DISCUSSION
Mother contends the court prejudicially erred by terminating Mother’s parental rights without a more current report reflecting the nature and amount of contact she had with Minor between the filing of the latest report on December 9, 2016, and the date of the hearing on May 16, 2017, more than five months later. We disagree.
“‘The 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. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
“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 . . . . [Citation.] An exception to the adoption preference applies if termination of parental rights would be detrimental to the child because the ‘parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ [Citation.] [¶] The issue is subject to a sufficiency of the evidence standard of review. [Citation.] ‘On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 553; accord, In re C.B. (2010) 190 Cal.App.4th 102, 126 [“‘[P]arent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. [Citation.]’”]; accord, In re Noah G. (2016) 247 Cal.App.4th 1292, 1300 [“The mother has the burden of proving her relationship with the children would outweigh the well-being they would gain in a permanent home with an adoptive parent.”].)
In the first instance, we note that Mother could be held to have forfeited any contention that the report was inadequate by failing to make herself available to CFS. A parent’s failure to make court appearances below, failure to keep in contact with her attorney, and failure to provide the trial court with evidence supporting her position forfeits any challenge to the adequacy of an adoption assessment report. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Here, Mother missed numerous court hearings, missed visitation, and failed to provide updated contact information to the social worker so that communication had to be done via counsel. As such, Mother could be held to have forfeited any inadequacy regarding an updated report because Mother failed to make herself available to provide any information which would have been included in such a report. Indeed, the social worker noted over the phone that she had no new information regarding visitation between Mother and Minor.
Here, regardless, substantial evidence supported the court’s determination that Minor was adoptable. Minor was less than 10 months old when Mother left him with the PAPs. Minor continued living with the PAPs for the ensuing 16 months; thus, Minor had lived with the PAPs much longer than he had lived with Mother. According to the social worker, Minor had adjusted well to the home and the PAPs expressed a strong desire to provide a permanent and stable home for Minor through adoption. The PAPs submitted a letter reflecting that Minor was thriving and doing well in their home. He had bonded with the family and was progressing in every identifiable milestone. The PAPs requested they be considered for adoption of Minor. Thus, substantial evidence supported the court’s finding that Minor was adoptable.
Since the court’s adoptability finding was supported by substantial evidence, the burden shifted to Mother to prove an exception to termination of parental rights, presumably here, that the beneficial parental relationship exception applied. “[M]other’s contention that the report was not adequate is just the kind of issue which should be developed by putting on one’s own evidence or cross-examining the person who prepared the report. In other words, once [CFS] puts on some evidence of the contacts, . . . it is up to the parent to produce evidence that, in fact, the minor would benefit from continuing the relationship so much that termination of the parental rights is inappropriate. [Citation.]” (In re Urayna L. (1999) 75 Cal.App.4th 883, 887.) Mother failed to adduce any evidence to support such an exception. Thus, sufficient evidence supported the court’s order terminating her parental rights.
Mother contends the court failed to exercise its discretion by issuing a ruling without a more current report on the contacts between Mother and Minor. Mother cites section 366.21 for the proposition that: “Whenever a court orders that a hearing pursuant to Section 366.26, including, when . . . adoption is recommended . . . it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include: [¶] . . . [¶] . . . A review of the amount of and nature of any contact between the child and his or her parents . . . .” (§ 366.21, subd. (i)(1)(B).) However, here CFS did supply the court with an assessment, which included the amount and nature of contacts between Minor and Mother. Nothing in the statute requires a more recent report than the one provided to the court.
That report reflected that Minor had not had any contact with Mother since March 24, 2016, more than 13 months earlier than the date upon which the section 366.26 hearing was held. Indeed, earlier reports reflected that Mother failed to show for at least two visits even prior to leaving the state. Moreover, Mother left Minor with the PAPs approximately three months prior to leaving the state. Furthermore, as the court duly and repeatedly noted, it was Mother’s decision to leave the state, which made visitation with Minor impossible for her. Mother failed to keep the social worker apprised of her address during much of the period she was in Connecticut; thus, rendering any attempt at facilitating visitation, physical or otherwise, impossible. Mother failed to appear at the section 366.26 hearing at which she could have testified as to any contacts between she and Minor. Mother adduced no evidence that she had any bond with Minor, let alone a bond strong enough that it would overcome the legislative preference for adoption.
Mother likewise could have requested that the social worker and/or the PAPs testify regarding any telephonic contact Mother may have had with Minor. However, she chose not to do so. Regardless, it is unlikely any such evidence of telephonic contact with Minor, who was only between 13 months and 26 months old during the approximately 13 months Mother had been in Connecticut, would have been sufficient for a finding of the establishment of a strong enough bond to overcome the legislative preference for adoption. Even if the court committed any error in failing to require an updated report, the error was harmless. (In re Angela C. (2002) 99 Cal.App.4th 389, 395; accord, In re Desiree M. (2010) 181 Cal.App.4th 329, 335.) The evidence was sufficient to establish that Minor was adoptable and any bond between he and Mother was insufficient to overcome the preference for adoption.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

RAMIREZ
P. J.

CODRINGTON
J.