Filed 4/17/18 In re A.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.F., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.F.,

Defendant and Appellant.


E069221

(Super.Ct.No. J261969)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
Dennis Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
Appellant C.F. (mother) appeals from the juvenile court’s order terminating parental rights as to her daughter, A.F. (the child). She contends that the order should be reversed because: (1) she failed to received notice of an ex parte hearing and the order from that hearing; and (2) the court erred in failing to apply the beneficial parental relationship exception. (Welf. & Inst. Code , § 366.26, subd. (c)(1)(B)(i).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2015, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was less than one month old at the time. The petition alleged that she came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition included the allegations that mother admitted to using marijuana and methamphetamines during her pregnancy; the child was born premature with drugs in her system; mother was unable to provide the level of care needed for the child, who was medically fragile; and mother had not visited the child in the hospital adequately. The petition also alleged that the father’s whereabouts were unknown.
The social worker filed a detention report and stated that the child tested positive for amphetamines and marijuana at birth. She had renal failure and only one viable kidney, which was working at 50 percent. The child was currently on dialysis.
The hospital social worker reported that mother had visited the child in the hospital only two or three times in two weeks. The hospital social worker opined that mother did not comprehend how sick the child was, what she needed, or how to care for her upon discharge.
The court held a detention hearing on September 10, 2015. Mother said she was not sure who the child’s father was, and she had no information except a first name. The court detained the child and ordered visitation to be once a week for two hours.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on September 29, 2015, recommending that the court declare the child a dependent and provide mother with reunification services. The social worker reported that mother was very guarded, defensive, and detached. She did not appear to show any remorse for using drugs or for the impact it may have had on the child. She did not have any insight into the life-threatening conditions the child had. The child’s health problems included clinical sepsis, peritoneal fungal infection, end stage renal failure on dialysis, congenital renal cyst of the right kidney, multiple cardiovascular issues, metabolic acidosis, and anemia.
The social worker reported that mother visited the child weekly, but her grandmother had to rent a car for her to visit, since she lived in Twentynine Palms, and the child was at Loma Linda University Medical Center (Loma Linda). Mother said it was hard to get to Loma Linda, since she did not have a car. The social worker was concerned because mother was offered free housing at the Ronald McDonald House and could have stayed there since she did not work or have other children; however, she declined to do so.
A jurisdiction/disposition hearing was held on October 1, 2015, and mother’s counsel requested mediation. The court then set the matter for mediation and a pretrial settlement conference on October 27, 2015.
On October 27, 2015, mother submitted on the allegations that she was unable to provide the level of care needed for her medically frail child, that she used methamphetamines and marijuana during her pregnancy, and that the child was born premature with amphetamines and marijuana in her system. The parties agreed that mother would be provided with reunification services to include individual counseling, a parenting education program, an outpatient substance abuse program, and random substance abuse testing. Mother agreed to participate in the child’s medical appointments. The parties also agreed that the child would be placed in a medically fragile home, and that mother would have supervised visits once a week.
The court sustained the petition, declared the child a dependent of the court, and ordered reunification services. The court also ordered visitation once a week for two hours, and authorized CFS to liberalize the visits as to frequency and duration. The court stated that any unsupervised, overnight, or weekend visits would be by approval packet.
Six-month Status Review
The social worker filed a six-month status review report on April 22, 2016. She reported that mother completed an inpatient treatment program on February 25, 2016. Mother then started outpatient treatment services. She was randomly drug tested and had negative tests on two days in January 2016 and February 2016. She also got a job as a certified nursing assistant and obtained stable housing with her mother. The social worker further reported that mother had participated in weekly visits and the visits went well. Mother was very attentive and affectionate with the child; however, she still appeared to not fully understand the child’s medical needs, and she required a lot of guidance. Mother was observed playfully throwing the child up in the air, and the care provider had to stop her and explain how that was dangerous for the child, since she was fragile and had a heart condition.
The court held a six-month review hearing on April 27, 2016. The court noted that there was on off-the-record conversation about unsupervised visitation and noted concerns about the child’s fragile medical status. The court stated that it was prepared to order loosely unsupervised visits and progress from there. The court asked to receive an informational packet in 30 days on the status of the unsupervised visits. Mother’s counsel agreed with the court’s suggestion of beginning with loosely unsupervised visits and the 30-day packet. The court found that mother had made substantial progress in her case plan, had demonstrated the ability to complete the plan, and had visited the child consistently. The court continued her reunification services and authorized loosely unsupervised visits that would “start short and progress from there.”
On June 6, 2016, the court issued a minute order regarding a nonappearance review to update the court on visitation. Mother began loosely unsupervised visits on May 9, 2016, for 30 minutes, once a week. The visits reportedly went well.
On July 21, 2016, it was reported that mother was struggling with maintaining sobriety. She tested positive for methamphetamines on April 4, 2016, and May 10, 2016. She then failed to appear for random drug testing six times from May 17, 2016, to July 15, 2016. Although visits with the child were reportedly going well, the child was at risk of neglect due to mother being under the influence. CFS recommended that loosely monitored visits be terminated and supervised visits be ordered. The court thus issued an order for supervised visits once a week for two hours, with CFS having the authority to increase visits as to frequency and duration.
Twelve-month Status Review
The social worker filed a 12-month status review report on October 4, 2016, recommending that services be continued. The social worker reported that the child was placed in a special needs care placement on October 28, 2015, and had remained there ever since. The caretaker provided for all her medical needs, and the child was thriving in the placement. As to visitation, the social worker reported that mother participated in supervised weekly visits, which were going well. The social worker recommended the court find that mother’s progress in her case plan had been substantial.
The court held a 12-month review hearing on October 13, 2016, and continued mother’s services.
On December 29, 2016, the court held a nonappearance review on visitation. The minute order reflected that mother’s counsel was notified of the hearing by a “message left” on December 22, 2016. The minute order further reflected that mother was not participating in weekly supervised visits. She showed up 30 minutes late to a scheduled visit on October 5, 2016, cancelled a visit on November 4, 2016, and did not show up on November 17, 2016, or December 13, 2016. Mother failed to appear at random drug testing seven times from September 19, 2016, to December 6, 2016. On December 20, 2016, the caretaker reported that she no longer felt safe supervising visits alone. Mother and the maternal grandmother had been aggressive and disrespectful, demanding visitation. It was recommended that the supervised visits be one time a month for two hours. It was also recommended that the court find that notice had been given as required by law, and that “all prior orders, not in conflict with this order, are in full force and effect,” and that mother arrive one hour prior to the scheduled visits. The court signed the order on January 5, 2017.
Eighteen-month Status Review
The social worker filed an 18-month status review report on February 23, 2017, recommending that services be terminated and a plan of permanent placement be ordered, with the goal of adoption. CFS was concerned that mother’s struggle with sobriety would place the child at risk for neglect of her medical care. Mother entered outpatient treatment, but did not complete it. She left her outpatient treatment in October 2016 and did not return. Mother did not show up for random drug testing on January 19, 2017, and February 2, 2017.
The social worker reported that mother was referred to Parent Child Interactive Training (PCIT) on May 10, 2016. She completed 12 sessions of PCIT and six individual counseling sessions. A therapist recommended that mother and the child be allowed to have more collaborative time, instead of just time at medical appointments, and that mother continue with individual counseling. However, on or about October 19, 2016, mother said she did not want to continue with PCIT, but she would seek individual counseling at an inpatient treatment program.
The social worker further reported that mother did not participate in weekly supervised visitations during this reporting period. On December 27, 2017, she failed to appear at a visit, but she participated in a supervised visit on January 4, 2017. The social worker reported that on January 5, 2017, the court authorized one supervised visit a month for two hours.
Mother was also allowed hospital visits. On January 24, 2017, mother did not show up for her visit. On January 31, 2017, the social worker attempted to notify her about a visit at 3:30 p.m., but her voicemail was full. On February 1, 2017, the social worker informed her about a visit that day, but mother was upset and said she needed more notice. The social worker noted that, due to the child’s fragile medical condition and the visits needing to be supervised, it was not always possible to schedule early. On February 6, 2017, the child was moved to the intensive care unit (ICU). The next day, the social worker supervised a visit and noted that mother appropriately played and cuddled with the child. On February 9, 2017, mother did not show up for the scheduled hospital visit, and did not call the social worker to cancel or reschedule.
The court held an 18-month hearing on March 6, 2017. At the outset of the hearing, the court noted that mother was requesting the court to set the matter for trial. Thus, it set the matter for April 24, 2017. When the court asked if anyone wished to be heard further, mother’s counsel stated the following: “Mom is asking that her visits go back to weekly. Previously, it looks like they were reduced or at a minimum of, at least, twice a month.” County counsel replied that he was not sure why visits were reduced to once a month. The court commented that there were several no shows at visits, which “appear[ed] to be what led to the monthly visits.” Mother’s counsel stated that mother said she did not show up at visits because “they would tell her last minute that the visits were occurring that day.” The court observed that the late notices were based on the child’s medical needs, and that the child was in and out of the hospital and had significant special needs. The court then stated that it was going to leave the visits as indicated. It ordered mother to arrive one hour prior to the visits to ensure that the child was not transported, only to have her not show up. The court said that if mother visited consistently two or three times in a row, it would consider bimonthly visits. It then asked if anyone else wished to be heard. Mother’s counsel did not say anything else.
The court held a contested hearing on April 24, 2017. Mother’s counsel called on mother to testify. She testified that she was living at a shelter for pregnant women in crisis, since she was currently pregnant. As to reunification services, she testified that she completed a parenting class and an inpatient substance abuse program, but did not complete her individual counseling requirement or outpatient treatment program. She said she re-enrolled in another outpatient program, which she believed she would be able to successfully complete. Mother further testified that the last time she came to court, the court granted her visits once a month, but she had only visited twice over the past four months.
On cross-examination, counsel for the child asked mother how often she was visiting the child, prior to the visits being reduced to one time per month. Mother said she did not have consistent visits. The child was in ICU for over one month and, she was only allowed to visit while the foster mother was there. Moreover, mother was living in Twentynine Palms, which made visits difficult. She would receive phone calls the day before visits were available, but she did not have her own transportation.
During closing arguments, mother’s counsel noted that mother could not have the child placed with her in the shelter where she was living, so mother would move in with the maternal grandmother if she got the child back. Mother asked for additional time to complete her services.
The court found that mother had failed to participate regularly and make substantive progress in her case plan. It noted that mother loved the child, but that she had a long-standing addiction and would need substantial engagement in an outpatient program, plus a period of sobriety before the child would be safe in her care, in light of the child’s serious medical needs. The court noted that they were well beyond the 18-month date, that it could not return the child to mother at that time, and there was no good cause to continue. The court followed the social worker’s recommendations and terminated reunification services. It continued visitation at one time a month for one hour, with mother being required to arrive one hour prior to her scheduled visits. The court set a section 366.26 hearing for August 22, 2017. The court also advised mother of her right to file a petition for extraordinary writ.
Section 366.26
The social worker filed a section 366.26 report on August 15, 2017, recommending that parental rights be terminated and the permanent plan for the child be adoption. The social worker reported that the child’s only placement had been with the prospective adoptive mother, since her discharge from Loma Linda on October 28, 2015. The prospective adoptive mother desired to adopt the child, as she had developed a close bond with her. She loved the child and wanted to provide her with a permanent home through adoption.
The social worker reported that mother had a visit at the CFS office on May 24, 2017. The maternal grandmother and maternal great grandmother also attended. The child cried off and on throughout the visit, but grew more comfortable at the end. She gave kisses and played with toys, and mother played with her appropriately. Mother also had a visit on June 29, 2017, and brought her newborn baby. The child cried off and on throughout the visit again. Mother brought toys for her, which she enjoyed. Her next visit was on July 25, 2017. Mother brought her baby again, and the maternal grandmother and maternal great grandmother also attended. The child cried off and on, and mother brought toys and interacted appropriately with her. When the child was not crying, she was playful and sociable.
The court held a section 366.26 hearing on August 22, 2017. The court noted that mother was present earlier that morning, but chose to leave. However, she was represented by counsel. Mother’s counsel asked the court to find that the beneficial parental exception applied, in that visits appeared to have been positive and gone well. The court found it likely that the child would be adopted and did not find any exceptions applicable. The court noted that mother’s visits had been consistent over the last four months, but there had been previous issues, which is why the visits were reduced and had a 24-hour confirmation. The court further noted that mother frequently had multiple visitors with her during the visits, she had very limited time with the child, she never progressed beyond supervised visits, and she no longer stood in a parental role. The court terminated parental rights and ordered adoption as the permanent plan.
ANALYSIS
I. Mother’s Claims Concerning Visitation Fail
Mother asserts that CFS erroneously “interpreted” the January 5, 2017 order from the ex parte hearing to reduce the visits to once a month, and the court did as well. She claims that the January 5, 2017 order did not change the visits; rather, visits remained at once a week. Mother proceeds to complain that she was deprived of due process because she did not receive notice of the ex parte hearing or the resulting order. As a result, she allegedly did not know that CFS and the court subsequently misinterpreted the order to be for monthly visits; therefore, she lacked the knowledge to prepare a writ petition or otherwise complain that her visits were reduced. She further contends that the defects in the proceedings undermined her ability to visit or talk to the child. The record does not support mother’s claims.
The record reflects that mother’s counsel received notice of the nonappearance review hearing regarding visitation, which was held on December 29, 2016. The minute order from that hearing reflects that the court found notice had been given as required by law. Moreover, the minute order indicates it was recommended that mother arrive one hour prior to her scheduled visits and the visits be scheduled one time a month, for two hours. The court signed the order. We note that it is somewhat unclear from the minute order itself whether the court actually ordered visits to be reduced to once a month. The part of the minute order recommending that visits be scheduled once a month is under a heading entitled “Current Circumstances.” Then the minute order states “[i]t is recommended that the court make the following findings and orders.” It states that visits shall be supervised, and that “all prior orders, not in conflict with this order, are in full force and effect.” It does not repeat the recommendation that visits be scheduled once a month.
In any event, the record demonstrates that mother knew the court did reduce her visits from once a week to once a month. The court held the 18-month review hearing on March 6, 2017. At that time, mother’s counsel stated that mother “is asking that her visits go back to weekly. Previously, it looks like they were reduced or at a minimum of, at least, twice a month.” (Italics added.) County counsel agreed that the visits had been reduced to once a month, although he was not sure why. The court reviewed the 18-month status report and observed that “[t]here’s a whole number of no-shows reflected on Page 8, which appears to be what led to the monthly visits.” Mother’s counsel then explained why mother had so many no-shows. Mother did not complain that she had no notice of the ex parte hearing or the resulting visitation order that was signed on January 5, 2017. Moreover, mother had the opportunity to ask the court to grant her weekly visits again. The court stated that it would leave the visits at once a month and “indicate that if the mother visits consistently two or three times in a row that the Court would consider bimonthly visits.”
Furthermore, mother’s claim that the alleged defects in the proceedings undermined her ability to visit with the child is meritless. The record showed that visits were scheduled, but she missed several of them for various reasons, including distance and transportation issues. Even with monthly visits, mother did not visit consistently until the very end of the dependency.
In view of the record, we conclude there was no apparent lack of notice or due process. Rather, the record shows mother knew that the court reduced her visits to once a month. Moreover, she had the chance to request the court to increase the frequency to weekly visits. Therefore, mother’s claims regarding visitation fail.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). In finding that the exception did not apply, the court noted that, although mother’s visitation had been consistent over the four months prior, there had previously been problems, which is why visits were reduced. The court further noted that mother had “very limited time with the child and has never progressed beyond supervised visits and no longer stands in a parental role.” We conclude the court properly found the exception did not apply.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when 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).) The phrase “ ‘benefit from continuing the . . . relationship’ ” refers to a parent/child relationship that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
“There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, “[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” (Id. at p. 1314.) “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.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of her position, mother specifically asserts that she participated in supervised visits and medical appointments, and her no shows were due to the social worker’s failure to give her reasonable notice of the visits. Moreover, the child’s serious medical condition was too fragile to allow unsupervised visitation. She further asserts that, with regard to the court’s finding that she did not stand in a parental role, this court should recognize that the child was not a typical two-year old, as he could only verbalize a few words. Nonetheless, mother was very attentive and caring, and she cuddled and played with the child. The child gave her kisses and played with toys, and was sociable. Furthermore, she claims it “was parental of [her] to receive information from [the child’s doctors] on [the child’s] state of health,” she completed g-tube training, and she participated in PCIT.
Mother’s interactions with the child do not demonstrate that her relationship with the child promoted her well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although the record reflects the visits went well, mother has not proffered any evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that the child would be greatly harmed” if the relationship was severed. (Ibid.)
In contrast, the evidence showed that the child had a strong bond with the prospective adoptive mother. By the time of the section 366.26 hearing, the child had lived with her for nearly two years. The prospective adoptive mother worked as a nurse for 33 years, and the child had received consistent, stable care in her home. The prospective adoptive mother wanted to continue to meet all the child’s needs and provide her with a permanent home through adoption.
While we acknowledge that the child’s serious medical conditions played a role in limiting mother’s visits and interactions, we also note that the child’s life-threatening conditions required the utmost amount of stable and reliable care. Mother was neither stable nor reliable. She used methamphetamines and marijuana during her pregnancy, and she continued to struggle with drug use throughout the dependency. Although she completed an inpatient program, she was unable to maintain her sobriety. She tested positive for methamphetamines on April 4, 2016, and May 10, 2016. She failed to appear for random drug testing six times from May 17, 2016, to July 15, 2016. Although visits with the child were reportedly going well, the court was concerned that the child was at risk of neglect due to mother being under the influence. Mother continued to fail to appear at random drug testing, missing testing seven times from September 19, 2016, to December 6, 2016. She also did not show up for random drug testing on January 19, 2017, and February 2, 2017. Moreover, she failed to complete an outpatient substance abuse program, after graduating from her inpatient program.
We conclude that mother failed to meet her burden of showing that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), applied.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
Acting P. J.


We concur:


MILLER
J.


SLOUGH
J.