Filed 8/24/18 In re Gavin G. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

J.Y. (Mother) appeals from a juvenile court order denying her visitation with her minor son, Gavin G. (Gavin). Mother contends there was no evidence or findings that her visits were detrimental to Gavin supporting such an order. We conclude the court’s denial of visitation was harmless beyond a reasonable doubt. When the court made the order, reunification efforts had been terminated after approximately 18 months of services. Mother had made no progress towards addressing her addiction, and a Welfare & Institutions Code section 366.26[1] hearing had been set. These factors, among others, indicate there was no likelihood that Mother’s loss of visitation affected the subsequent termination of her parental rights. Accordingly, we affirm.

BACKGROUND

On August 18, 2015, within a week of Gavin’s birth, the San Francisco County Human Services Agency (Agency) filed a dependency petition under section 300 alleging Gavin was at risk of suffering serious physical harm. The petition alleged Mother had a lengthy, untreated substance abuse problem and that other than a couple of weeks on methadone treatment, she had used daily throughout her pregnancy including the day before Gavin was born. It also alleged both Mother and Gavin tested positive for methamphetamine and opiates. On August 19, 2015, the juvenile court detained Gavin and placed him in foster care. Mother was granted supervised visits.

On September 29, 2015, the court sustained two section 300, subdivision (b) allegations in the petition. It declared Gavin a dependent of the court and kept him in foster care. The court ordered reunification services for Mother, including a residential drug treatment program. Mother was allowed supervised visits, and the Agency was given discretion to allow unsupervised and overnight visits.

Over the next few months, Mother made “tremendous and positive improvement in her addiction recovery.” On December 10, 2015, the Agency filed a section 388 petition, seeking to modify the court’s prior foster-care placement order to allow Mother a 30-day trial visit with Gavin in her residential treatment program. The petition noted that Mother’s twice weekly supervised visits “continue being a success,” and Mother demonstrated her ability to properly care for Gavin. All parties agreed to the extended trial visit, and the court granted the modification. On December 14, 2015, Gavin was reunified with Mother for the month-long trial.

On December 28, 2015, the Agency filed another section 388 petition, seeking Gavin’s placement with Mother. The petition stated, “[M]other has made very good progress in addressing the reasons for the child’s removal. [¶] [M]other and child have shown a strong connection during visits . . . and it appears in the best interest of the child to be in his mother’s care.” The Agency’s status review and section 388 petition report added that Mother “has made tremendous and positive improvement in her addiction recovery” and she was sober. Mother’s providers reported she was “learning and doing great with the services in place.” Gavin was adjusting to Mother’s care, and she was providing positive bonding and care for Gavin’s development. While the Agency recommended that dependency and reunification services continue, it also recommended Gavin reside with Mother under supervision. The Agency asserted that allowing Mother to care for Gavin continuously while receiving services would be beneficial for him. On January 14, 2016, the court granted the petition and ordered Gavin’s return to Mother beyond the extended trial visit.

Over the next year, Mother continued to improve while in her residential treatment program. She remained sober. The six-month status report from June 2016 stated her parenting skills developed and Gavin was well-adjusted to Mother’s care. The Agency deemed Gavin’s placement with Mother “the most appropriate placement for him” given his continued positive adjustment to her. It further noted, “[Mother] continues to show that she is learning to be a good mother and provide a safe place to her son.” In the December 2016 12-month report, the Agency reported Gavin was “well b[o]nded to [Mother] and has a positive relationship.” Mother had also begun reintegrating into the community, which included maintaining a cell phone and job training. In both reports, the Agency found it to be in Gavin’s best interest that he continue to live with Mother and that Mother continue to receive services. After both the six-month and twelve-month review hearings, the court allowed Gavin to remain with Mother and ordered ongoing services to Mother. By the end of January 2017, Mother seemed on track to complete her residential treatment program.

But on March 27, 2017, the Agency filed a section 387 petition alleging Mother had relapsed into drug use and was no longer capable of caring for Gavin, then 19 months old. Mother admitted to using methamphetamine. She told a case worker that she could no longer care for Gavin and wanted him returned to his prior placement for an “ ‘open adoption.’ ” Mother also told a social worker that “she would continue having a relationship with her son through visits.” The Agency found returning Gavin to Mother “would be detrimental to the safety, protection or emotional or physical well being of the child” based on Mother’s relapses. The Agency recommended the court terminate reunification services to Mother and proceed to select a permanent plan. With respect to visits, the report stated, “Visits are pending/ To be Arranged.”

On March 28, 2017, the court detained Gavin and returned him to foster care. The order did not address visitation.

On April 27, 2017, the court held the section 387 petition hearing, which Mother did not attend. Mother’s counsel could not be there either and had submitted on the Agency’s recommendation to proceed to a section 366.26 hearing. The court found returning Gavin to Mother would create a substantial risk of detriment to his safety, protection and well-being, and there was a substantial danger to his health if he were to be returned. The court vacated the prior order placing Gavin with Mother and returned him to foster care. The court found that reasonable services were provided to Mother. It also found that Mother had made no progress toward alleviating the causes requiring Gavin’s placement in foster care. Family reunification services were terminated, and a section 366.26 selection and implementation hearing was scheduled for August 24, 2017. Again, visitation was not ordered but at the hearing, the court stated, “[A]s to visits, when mom comes forward, I will give discretion for supervised visits for the mom and any of mom’s relatives; discretion when they come forward, once they’re checked out.”

When the parties convened on August 24, 2017 for the scheduled section 366.26 hearing, Mother was present. The court immediately continued the hearing to November 2017. When the court asked counsel if there were other matters to address, Gavin’s attorney made an oral request for an order to end visitation. Counsel explained, “[Mother] is not in reunification, and she has not been since April 27th. [¶] And during that five-month period, between then and now, there have only been around one month of visits which took place I believe in part of late July and part of this month. [¶] And my understanding is she has already had what was explained to her as a final visit on Tuesday the 15th. [¶] And I’m hearing from the foster adopt[ive] parents that [Gavin] is not benefiting from these visits. And in fact that he’s experiencing severe tantrums and behavior problems when he returns to their home. [¶] So, for that reason, and for the reason that we’re not in the reunification anymore, and for the reason of basically during the last five and a half months there[] have only been around 30 days of visits, I’m asking that there be no more visits ordered by the court.”

Agency counsel stated that “the findings from April 27th are silent on visitation” and that a colleague’s “notes indicate that there [were] zero visits.” Mother’s counsel remarked, “[T]he order on the 387 is silent as to visits. [¶] So I contend that the only operative order is the original order, when the case first came in, the original detention orders; that included visits. So it’s my contention that . . . that order is still the operative one, and therefore visits should continue.” The court acknowledged the “difference of opinion about [¶] . . . [¶] what was ordered and when it was ordered.” It then stated, “[A]t this point, I will continue with the no-visit order. But we will advise counsel . . . that if there is a need to revisit that because it appears that that’s not accurate, then that can be made to happen.” On October 18, 2017, Mother noticed her current appeal from the no-visit order.

DISCUSSION

Request for Judicial Notice

The Agency has requested judicial notice of the section 366.26 findings from four hearings between November 2017 and April 2018. The request encompasses the court’s order following the April 18, 2018 section 366.26 hearing (“Section 366.26 Order”). That order terminated Mother’s parental rights. Mother opposes the entire judicial notice request.

“It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.] This rule reflects an ‘essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.).) The Supreme Court further acknowledged that exceptions to this general rule may exist in dependency matters, such as where the postjudgment material undermines the foundational basis of the ruling on review and where all the parties recognize this. (Id. at pp. 413–414, fn. 11.) On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)

In these circumstances, we find it appropriate to take judicial notice of the fact that Mother’s parental rights were terminated on April 18, 2018. (Evid. Code, § 452, subd. (d) [court records]; Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843, fn. 2 [judicially noticing fact that juvenile court terminated parental rights which was affirmed by court of appeal since grant of review]). Judicial notice of this limited fact supports the state’s interest in expediting dependency proceedings and promoting the finality of the juvenile court’s orders and judgment. (Zeth S., supra, 31 Cal.4th at pp. 412–413.) In addition, in another case pending before this Court (A154218), Mother has appealed from the Section 366.26 Order. In that appeal, Mother has lodged a copy of the Section 366.26 Order terminating parental rights to ensure this appeal was preserved.[2] Since Mother has invoked the Section 366.26 Order to preserve this appeal, we will consider it here. Except for that fact, we deny the Agency’s judicial notice requests.

Visitation Order

Mother contends that the court erroneously denied her visitation. She argues the record lacks any admissible evidence to support such an order severing her relationship with Gavin. She asserts that evidence of detriment was necessary for such an order, but such evidence was “non-existent” on this record.

Under section 366.21, subdivision (h), “[i]n any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child.” (§ 366.21, subd. (h).) Section 366.22, subdivision (a)(3) also provides that when a juvenile court terminates reunification services and orders a selection and implementation hearing, the court “shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child.” (§ 366.22, subd. (a)(3).) Thus, a juvenile court is “required to permit continued visitation pending the section 366.26 hearing absent a finding of visitation would be detrimental to the minors.” (In re David D. (1994) 28 Cal.App.4th 941, 954, italics omitted.)

“[D]ependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation, which discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds of reason. [Citation.]” (In re S.H. (2011) 197 Cal.App.4th 1542, 1557–1558.) We review a juvenile court order terminating visitation for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) A juvenile court’s finding that visitation would be detrimental for the minor is reviewed for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580–581.)

Here, it is not difficult for us to conclude the court erred when it ordered no visits at the August 24, 2017 hearing. The order was ostensibly issued as an extension of a pre-existing order, but Mother’s visitation rights were never previously suspended, so there was no order to continue. In fact, at the prior hearing in April 2017, the court expressed a willingness for supervised visits for Mother upon Mother coming forward to make such a request. No court ever considered or made findings that Mother’s visits were detrimental to Gavin, a necessary condition for suspending visitation pending a section 366.26 hearing. (See § 366.21, subd. (h).)

Nonetheless, in these circumstances, suspending Mother’s visitation was harmless beyond a reasonable doubt and does not require reversal since it was not reasonably likely to impact the termination of Mother’s parental rights. When the court suspended visitation in August 2017, services had been terminated for nearly four months and a section 366.26 hearing was pending. Mother had been provided services for almost the statutory maximum of eighteen months. (§ 361.5, subd. (a)(3); In re N.M. (2003) 108 Cal.App.4th 845, 853, superseded by statute on other grounds as stated in In re T.W. (2013) 214 Cal.App.4th 1154, 1168 [18-month limitation applies to combination of reunification and maintenance services].)

When Mother relapsed in March 2017 and informed a case worker she could not care for Gavin and wanted him adopted by his prior caretakers, the court found Gavin was at a substantial risk of detriment to his safety, protection, and well-being if he were returned to Mother. The court also found Mother had made no progress towards alleviating the substance abuse and addiction that necessitated Gavin’s placement in foster care in spite of the services provided that included residential treatment. Once the court terminated services in April 2017, it was virtually certain her parental rights were going to be later terminated regardless of visits. “ ‘In essence, the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.’ ” (In re Arturo A. (1992) 8 Cal.App.4th 229, 239.) “[T]he termination of reunification services in most instances ensures the subsequent termination of parental rights at the section 366.26 hearing.” (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 580.) Thus, when Mother’s parental rights were terminated in April 2018, the loss of visits did not materially affect the outcome of that proceeding. Thus, even though the no-visit order was error, no purpose would be served in remanding this case to determine whether or not Mother’s visits were detrimental to Gavin.

Mother discounts any possible harmless error because it is based wholly on the postjudgment evidence to which she has objected. But we have taken judicial notice of that postjudgment evidence, namely the fact that her parental rights were terminated, and have properly factored it into the analysis. However, our analysis is not limited to this postjudgment evidence alone. As discussed above, we have considered several other facts, including Mother’s receipt of close to the statutory maximum of services without any progress on addressing her addiction, the court’s order terminating further services and setting a 366.26 hearing for Gavin’s permanent plan, and Mother’s request that Gavin be placed with his former foster caretakers. All of this evidence in the record supports a conclusion Mother suffered no possible prejudice.

Mother also argues the no-visit order violated her due process rights to prevent the termination of her parental rights at a later hearing. She says the order precluded her from being able to establish the parental benefit exception to adoption. She argues, “Perhaps if the court had permitted visitation as was supported by the record, her actions in the subsequent hearing could equally have been much different. [¶] . . . [¶] Had [she] been afforded the ongoing visitation orders she should have continued to have, she would also have been in a better position to maintain her previously acknowledged parental bond.” But the parental benefit exception applies where termination of parental rights would be detrimental to the child because “[t]he 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).)

We are not convinced. Even though Mother ably cared for Gavin while he lived with her from December 2015 through March 2017, the record indicates no reasonable probability Mother would have been able to bring herself within the parental benefit exception by the time of the section 366.26 hearing. To meet her burden of proof, Mother must have shown more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466, italics omitted.) While we do not know all the evidence Mother could have offered on this issue at the section 366.26 hearing had she received visitation, it is not reasonably likely that it would have been sufficient to overcome the findings and evidence in the record. Again, after receiving close to the statutory maximum of court-ordered services, the court found Mother had made no progress towards addressing her substance abuse issues. Mother also told a social worker she could not care for Gavin, indicated her relationship to him would be through visits, and wanted him to be returned to his prior placement for adoption.[3] (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250 [“ ‘[T]he decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.’ ”].) The record demonstrates beyond a reasonable doubt Mother would not have been able to bring herself within the parental benefit exception even if she had visitation.

DISPOSITION

The juvenile court’s August 24, 2017 order denying visitation is affirmed.

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Siggins, P.J.

We concur:

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Pollak, J.

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Jenkins, J.

In re Gavin G., A152739