Filed 4/19/22 In re H.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.

Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for Defendant and Appellant.

Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

B.B. (mother) appeals from an order of the juvenile court terminating her parental rights to her daughter, H.M. (the child), and freeing the child for adoption. Mother argues the juvenile court erred by not finding applicable the parental benefit exception to termination of parental rights (Welf. & Inst. Code,[1] § 366.26, subd. (c)(1)(B)(i)), and by not adopting a less drastic permanent plan for the child, such as legal guardianship. We find no error and affirm.

I.

FACTS AND PROCEDURAL HISTORY

A. Detention.

Mother came to the attention of the child welfare agency for Inyo County because, after giving birth, both mother and the child tested positive for methamphetamines and benzodiazepine. Mother explained the presence of methamphetamines from her taking diet pills. Although she gave no explanation for the benzodiazepine, mother speculated it had come from medication administered to her at the hospital. The child’s father (who is not a party to this appeal) attributed the positive results to the fact he and mother had tried a new way of smoking “‘wax.’”

In a detention report, the social worker stated the reporting party had said mother had received “‘no significant prenatal care,’” and both parents had “‘insecure housing and resources,’” which limited their ability to care for the child. When interviewed, mother told the social worker she lived “‘off the grid’” in San Bernardino County. The report indicated that mother had at least three referrals to child welfare agencies in San Bernardino and Riverside counties; mother had multiple criminal charges for possession of controlled substances and for being under the influence of drugs; and, after their removal for abuse or neglect, mother’s parental rights to two other children (the child’s half siblings) had been terminated, and the children had been adopted by their maternal grandmother. But, when interviewed, mother first told the social worker the other children resided with their grandmother “‘for the moment,’” then claimed she merely “‘gave’” the children to her mother for adoption because at the time she was homeless.

Mother told the social worker she had been prescribed psychotropic medication to treat posttraumatic stress disorder, anxiety, and anger issues, but she stopped taking the medication three days before going into labor. She was unable to provide the social worker with her list of medications or the contact information for the mental health professional who was treating her. Mother also used marijuana to manage her mental health issues. After her interview with the social worker, mother tried to leave the hospital against the advice of her doctors. The social worker took the child into protective custody, and she remained there until she was discharged and placed with a foster family.

In a petition filed with the juvenile court of Inyo County, it was alleged the child was a dependent within the meaning of section 300, subdivisions (b) (failure to protect) and (j) (abuse of a sibling). Specifically, the petition alleged mother had an extensive history of abusing substances, she had ongoing addiction and untreated mental health issues, an extensive criminal history and history of domestic violence, and prior child welfare cases that resulted in the termination of her parental rights to her two other children.

Mother and father visited the child by video conference on August 14, 2020. The visit “was good” and “[t]he parents seemed interested in the child and expressed affection through words of love.” But, after 20 minutes, they cut the visit short saying they had to attend to a pet that was in labor. Three days later, mother appeared telephonically at the detention hearing. The juvenile court detained the child in protective custody and ordered that mother receive supervised visits for two hours once a month.

B. Jurisdiction and Transfer from Inyo County to San Bernardino County.

In a report for the jurisdiction hearing filed September 3, 2020, the Inyo County child welfare agency recommended the juvenile court sustain the petition and transfer the proceeding to San Bernardino for disposition because the parents resided there. The social worker reported that mother had participated in drug and alcohol testing on August 21, 2020, and she tested positive for amphetamine and methamphetamine. Mother said she had stopped smoking marijuana “in preparation for the test,” and the last time she had used amphetamine or methamphetamine was seven days earlier (the day of her first video visit with the child).

The same day as the drug test, mother had her first in-person, supervised visit with the child. She appeared for the visit on time, was compliant with the visitation guidelines previously explained to her by the social worker, and she arrived bearing clothing and diapers for the child. Mother seemed attentive to the child’s needs, was happy to see the child, and was affectionate toward the child. The social worker characterized the quality of the visit as “good.” Because mother expressed a willingness and the ability to attend further visits, the social worker scheduled two additional visits to take place six and seven days later. Mother cancelled the visits, however, citing damage to her and father’s vehicle and father having to go to court on another matter. Mother declined the social worker’s offer to reschedule the visits, saying she was unable to commit to dates because she was uncertain how long it would take to have the vehicle repaired.

The social worker reported that mother had “expressed some awareness around the areas of concern” for the child’s welfare, and she had “expressed motivation to improve her life and address her substance use challenges in order to provide for the minor.” In addition, the social worker was encouraged by mother’s apparent affection for the child and caregiving abilities demonstrated during the few visits that had taken place so far. However, the social worker remained very concerned about the significant challenges mother would have to overcome before she could regain the care and custody of the child, including her still untreated substance abuse and mental health issues.

At the jurisdiction hearing, the social worker informed the Inyo County juvenile court that, of nine scheduled visits “over this period,” mother had one in-person visit (the Aug. 21 visit described in the report) and three video visits, but she had missed five scheduled video visits. The social worker said mother’s interaction with the child had been appropriate. In addition, the social worker informed the court that mother had been referred to services and she had completed “intakes” for substance abuse and mental health services, but mother had not yet provided proof of participating in those services and had not yet signed a release of information for the child welfare agency. The court sustained the petition, found the child to be a dependent, ordered that the child be detained from mother, and transferred the proceeding to San Bernardino County for disposition. The court ordered that, if she was in Inyo County, mother was to receive two-hour supervised visits twice a week for a total of four hours. Mother was to receive telephone or video visits twice a week if she was out of the county.

C. Disposition.

The juvenile court of San Bernardino County accepted the transfer of the proceedings on October 22, 2020. In a disposition report filed November 16, 2020, the San Bernardino County Department of Children and Family Services (CFS) recommended the juvenile court bypass reunification services to mother and set a hearing under section 366.26 for selection of a permanent plan for the child because mother had received reunification services for her other children, those services and her parental rights had been terminated, and mother was resistant to treatment for her extensive and chronic substance abuse. A social worker with CFS had tried unsuccessfully to speak with mother by video chat or telephone. The child had been placed in the care of her maternal grandmother on October 27, 2020. The maternal grandmother told the social worker that mother had “been an addict for over twenty (20) years,” and she (the maternal grandmother) felt she had “‘lost’ her daughter a long time ago.” The social worker expressed the concern that “mother will continue to abuse substances and will not safely and adequately care for the child.” Therefore, the social worker opined it would be detrimental to return the child to mother.

Neither parent appeared at the scheduled disposition hearing on November 19, 2020, so the juvenile court continued the hearing. In an information update, the social worker reported that, because father had shown interest in trying to regain custody of the child, CFS now concluded it was in the best interest of the child that the father be offered reunification services. CFS continued to recommend that mother receive no services.

Again, neither parent appeared for the continued disposition hearing on December 2, 2020. The juvenile court declared the child to be a dependent and removed her from the care and custody of the parents. The court declared father to be the presumed father and directed CFS to offer him reunification services for six months. The court found by clear and convincing evidence that reunification services need not be provided to mother. (§ 361.5, subd. (b)(10), (b)(11), (b)(13).) Finally, the court ordered that mother receive two-hour supervised visits with the child once a month and permitted CFS to liberalize the visits.

D. Termination of Parental Rights.

In a report for the six-month status review hearing, CFS recommended the juvenile court terminate reunification services to father and set a hearing pursuant to section 366.26 for the termination of his and mother’s parental rights and the selection of a permanent plan of adoption for the child. Father had not completed his court-ordered reunification services and mother had not voluntarily participated in any services. Both parents reported they were working full time, but “[c]ollateral[] contacts” had told the social worker that the parents “present[ed] as though they [were] still using drugs.” During the reporting period, mother missed half (3 out of 6) of her monthly visits with the child. She did, however, inform the social worker when she was unable to attend and, during the visits, mother was engaged with the child and brought provisions and toys.

The social worker reported that the child was healthy and meeting her developmental targets. She was still placed in the home of her maternal grandmother with her half siblings. The social worker reported the maternal grandmother was “socially active,” “fit and caring,” and “willing and able to adopt the baby . . . and provide a lifetime of stability and permanence.” The child was reported to have a “strong attachment” to the maternal grandmother.

The juvenile court found father “ha[d] not completed any portion of the case plan,” terminated his reunification services, and set a hearing under section 366.26. The court ordered CFS to continue providing mother with two-hour supervised visits once a month.

In its report for the section 366.26 hearing filed September 23, 2021, CFS recommended the juvenile court terminate mother’s parental rights and select adoption as the permanent plan for the child. Mother missed five more monthly visits, though she did provide the social worker with reasons for the cancellations. When she did visit during the reporting period (the report does not specify how many times), mother was engaged with the child and brought provisions and toys.

The social worker reported the child was healthy and developmentally on track. The child was very social and happy, and greeted people with a “huge smile.” The child was “clearly attached” to her prospective adoptive parents and enjoyed playing with her half siblings. She referred to her maternal grandmother as “‘Mama’” and to the grandmother’s spouse as “something that is close to ‘Tia’” (aunt), “which is how her brothers refer to her.” The social worker opined the child was adoptable.

At the section 366.26 hearing conducted September 30, 2021, mother’s appointed counsel requested a continuance so mother could retain counsel and file a petition under section 388. The juvenile court indicated mother had been notified about the hearing four months earlier and had time to retain counsel, “complete any services,” and file a petition before the hearing. In addition, the court noted the social worker’s report showed mother had “inconsistent visits” with the child. Therefore, the court found a continuance would not be in the best interest of the child and denied mother’s request.

Mother testified the child had never lived with her, but she (mother) had visited with the child since birth. She visited the child on a regular schedule of once a month at CFS’s offices. Mother had not visited the child at the maternal grandmother’s house. When asked about the five missed visits noted in the social worker’s report, mother said she could not recall missing five visits. She testified she had “missed two for sure”—once when she was in the hospital and once when she broke her ankle. Mother testified she had visited the child for the whole two hours allotted to her. The child would be excited to see mother at the start of visits, smiling and reaching for mother. During the visits, mother and the child looked at coloring books and played together, and mother sang nursery rhymes and read to the child. When asked if the child was sad at the end of visits, mother testified, “It doesn’t look like she’s too sad, but I’m sad.” Mother testified she and the child were bonded. Finally, mother acknowledged she had “made a mistake and people are not perfect,” but she testified she had “been working really hard to correct that,” and said, “my daughter needs me and I need her, just as my boys need me too.” Mother’s counsel objected to the termination of mother’s parental rights and argued the testimony had demonstrated the child was bonded with mother, and it would be in the child’s best interest that the juvenile court select a lesser permanent plan of guardianship.

Counsel for the child agreed with CFS’s recommendation that mother’s parental rights be terminated and the child be freed for adoption. Although counsel for the child noted mother was “visiting fairly regularly” and was “an appropriate visitor,” she had missed five visits. Moreover, counsel for the child noted the child had never lived with mother and was bonded with her maternal grandmother and prospective adoptive family. Therefore, counsel for the child argued “without a doubt” it would be in the child’s best interest that mother’s parental rights be terminated, and the child be allowed to be adopted and remain “in this loving, stable home and be with her older brothers.”

Addressing the parental benefit exception to termination of parental rights, counsel for CFS argued mother did not satisfy “the first prong of regular and consistent visitation.” In addition, counsel for CFS argued the social worker’s reports and mother’s testimony demonstrated “her relationship with the child does not rise to the level of a substantial, positive, emotional attachment.” For instance, mother’s own testimony was that “the child doesn’t seem sad when the visits end.” Finally, counsel for CFS argued it was clear that termination of mother’s parental rights would be in the child’s best interest. “There’s no evidence that it would be detrimental to the child to sever the parent-child relationship as the child is in a concurrent planning home with the siblings and a relative and this is a safe and stable placement for the child.”

The juvenile court found the child was likely to be adopted, and the child was both generally and specifically adoptable. The court found the parental benefit exception to termination of parental rights did not apply. First, the court found mother had not had consistent visits with the child. Second, while “the visits were positive,” the court found “the child does not have a substantial emotional attachment to the mother.” Although it was clear to the court that mother loved the child and had an attachment to her, “I have to look at it from the perspective of the child.” Last, the court found that terminating mother’s parental rights would not be detrimental to the child when balanced against the benefits the child would obtain from a new adoptive home. “I don’t believe that there’s really any detriment to the child other than, perhaps, minimal, given that the child was removed at birth; Mom did not receive services, has only had monthly supervised visits, and those are inconsistent. The child is in a concurrent planning home with her grandmother and spouse and is placed with her siblings.” Therefore, the juvenile court terminated mother’s parental rights and freed the child for adoption.

Mother timely appealed.

II.

DISCUSSION

When the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions.

(§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 630-631.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” ([i]In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, disapproved on another ground by In re Caden C., at p. 636, fn. 5.)

One exception is commonly called the parental benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) The parent carries the burden of establishing the exception by a preponderance of the evidence. (In re Caden C., supra, 11 Cal.5th at p. 636.) To establish that the parental bond exception applies, the parent must show 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. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption.” (In re Caden C., at pp. 636-637.)

Our review of the juvenile court’s ruling on whether the beneficial parental exception applies incorporates both the substantial evidence and the abuse of discretion standards. (In re Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply the substantial evidence standard of review to the first two prongs of the exception and the abuse of discretion standard to the third prong. (Ibid.)

“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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Under the abuse of discretion standard of review, we determine whether the juvenile court’s decision exceeded the bounds of reason and, in so doing, we cannot substitute our view for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Mother argues she “can likely meet”[2] the first prong of the analysis because she “maintained fairly regular, meaningful visitation with her child.” (Italics added.) We are not persuaded. “Assessment of the first component is ‘quantitative and relatively straightforward, asking whether visitation occurred regularly and often.’ [Citation.] It is an evaluation of ‘whether the parent consistently has contact with the child.’ [Citation.] ‘“Sporadic visitation is insufficient.”’” (In re A.G. (2020) 58 Cal.App.5th 973, 994-995.) “Visits and contact ‘continue[] or develop[] a significant, positive, emotional attachment from child to parent.’ [Citation.] Courts should consider in that light whether parents ‘maintained regular visitation and contact with the child’ (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact—here as throughout, the focus is on the best interests of the child.” (In re Caden C., supra, 11 Cal.5th at p. 632.)

The record amply supports the juvenile court’s express finding that mother did not visit with the child regularly or consistently. Prior to the detention hearing, mother had one video visit with the child but cut it short after 20 minutes. After the detention hearing, where mother was ordered to have two-hour visits once a month, mother had one “good” in-person visit but declined the social worker’s offer to reschedule two additional in-person visits because of car troubles. Of a total of nine scheduled visits before the jurisdiction hearing, mother had only one in-person visit, three video visits, and she missed five visits. After the disposition, during which mother was once again ordered to have two-hour visits once a month, mother missed three (a full half) of her six scheduled visits during the period. Finally, in the report for the section 366.26 hearing, the social worker reported mother missed another five scheduled visits. True, the record shows that, when she did visit, the visits went well. But, quantitatively speaking, mother simply did not avail herself of the opportunities to visit with the child frequently enough to establish regular and consistent visitation.

With respect to the second prong of the analysis, mother once more argues “it is likely” she can establish that the strength of her bond with the child outweighs the security and sense of belonging she can obtain with a new adopted family. (Italics added.) Once more, we are not persuaded. “Again here, the focus is the child. And the relationship may be shaped by 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.’ [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citation.] Doing so 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.” (In re Caden C., supra, 11 Cal.5th at p. 632.)

We agree with the juvenile court that, while mother’s visits with the child “were positive,” the record simply does not demonstrate the child would benefit from the continuation of a substantial emotional relationship with the mother. The child was removed from mother’s care and custody the day after she was born, and she was never returned to mother. Mother had sporadic, though positive, visits with the child but they were always supervised and never progressed to unsupervised, overnight or weekend visits. Mother acted appropriately during visits and brought the child provisions and diapers, and she played with and read to the child. But, the record is simply devoid of any evidence that the child had a strong emotional attachment to the mother. The child was happy to see mother at the start of visits. Although mother testified that she was sad at the end of visits, there is no evidence the child was sad or was otherwise in distress at the end of visits. In contrast, the child had a demonstrated emotional connection with her maternal grandmother and her prospective adoptive family, which included her half siblings.

Because the record amply supports the juvenile court’s findings that mother had not established the first two prongs for the parental benefit exception, we need not address the third prong, and we affirm the order terminating mother’s parental rights.

III.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

FIELDS

J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] To repeat, mother had the burden to prove the application of the parental benefit exception by a preponderance of the evidence. (In re Caden C., supra, 11 Cal.5th at p. 636.) In other words, she had to prove it was “‘more likely than not’” that the exception applied. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.) By only arguing she was “likely” to establish the exception, mother perhaps unwittingly has conceded she could not meet her burden of proof.