Filed 4/19/22 In re A.D. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Todd Eilers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Ramona S. (mother) appeals the juvenile court’s order terminating parental rights as to her four minor children (Welf. & Inst. Code,[1] § 366.26). On appeal, mother argues the juvenile court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 2020, police reported to mother’s residence for a domestic violence incident involving mother and her live-in boyfriend, which occurred in the presence of the children. Upon arrival, police observed the living conditions of the home to be concerning, as there was a roach infestation, and the home was otherwise generally dirty. A referral was made to the Fresno County Department of Social Services (department). On June 17, 2020, mother tested positive for amphetamines and cannabinoids.

On June 19, 2020, the department filed a petition on behalf of the children—six-year-old A.D., five-year-old D.D., four-year-old P.D., and three-year-old U.D.—alleging they came within the juvenile court’s jurisdiction under section 300, subdivision (b)(1). It was alleged the children had suffered physical harm or were at risk of suffering harm because of mother’s substance abuse and domestic violence.

On June 22, 2020, the juvenile court ordered the children detained from mother and ordered reasonable supervised visits for a minimum of twice weekly for one hour. The children were placed with their paternal grandmother.

The department supervised two visits in June. During these visits, mother appeared to be happy to see the children and had a playful and positive demeanor. A.D. and D.D were talkative and energetic, while P.D and U.D. were more reserved. Mother canceled two visits in July 2020 due to being unable to be home for video visits.

On July 29, 2020, at the combined jurisdiction/disposition hearing, the juvenile court found the petition true and that the children were described by section 300, subdivision (b). The court adjudged the children dependents, ordered them removed from mother’s custody, and ordered mother to participate in reunification services including parenting education, domestic violence and mental health evaluations and recommended treatment, a substance abuse assessment and recommended treatment, and random drug testing. Mother was ordered to have supervised visitation once per week.

Mother’s visits with the children after the jurisdiction/disposition hearing went well, but in November 2020, mother was dropped from visits by the visitation center for missing more than three consecutive visits. Mother missed visits on September 9, October 19 and 26, and November 9 and 16, 2020. On November 18, 2020, mother received another referral for the visitation center, and was placed on a waitlist. The children’s care provider agreed to supervise visits in the meantime. Following a visit on November 27, 2020, the care provider reported to the social worker she had concerns about the visit, such as mother making promises about the case and mother’s boyfriend attempting to join the visit.

The social worker phoned mother to discuss the care provider’s concerns, and mother denied making promises to the children and stated she no longer wanted the care provider to supervise visits. When asked about mother’s boyfriend being at the visit, mother became upset and hung up. Shortly after the phone call, mother e-mailed the social worker, stating she was “done” with the case and wished to give up her parental rights. Mother asked not to be contacted about the case again and stated that “grandma could keep my kids.”

The visitation center tried to contact mother to schedule visits but was unable to reach her. On December 2, 2020, the social worker e-mailed mother advising her to contact the visitation center to schedule visits, to which mother responded, “give custody to grandma.” On December 8, 2020, mother’s referral to the visitation center was closed due to mother failing to contact them. On December 14, 2020, mother again told the social worker she did not want to participate in services and wished to give up custody of the children. As of January 6, 2021, mother had not visited the children since November 26, 2020.

The six-month review hearing was conducted on January 27, 2021. Mother’s services were continued. Following the hearing, mother began to again have third-party supervised visits supervised by the care provider. The children reported they enjoyed visiting with mother, and the care provider reported mother engaged with the children during visits. The social worker reported mother’s visits during the six-month to 12‑month reporting period were “consistent.”

Mother failed to make adequate progress in her case plan, and in June 2021, mother reported to the social worker she no longer wanted to participate in reunification services. Rather, she wanted to work on her education with hopes of reunifying with the children in the future and was in favor of a permanent plan of legal guardianship with the paternal grandmother. At the 12-month status review hearing, held on July 21, 2021, the court terminated mother’s reunification services, reduced visitation to one supervised visit per month, and set a section 366.26 hearing.

In August 2021, the care provider informed the social worker that mother had ceased reaching out to her to visit with the children. The social worker attempted to contact mother to no avail. In September 2021, the care provider informed the social worker mother still had not reached out to visit the children.

In October 2021, the social worker was able to contact mother and tried to facilitate a visit between mother and the children. Mother indicated she was not aware she had a new social worker and had not heard from the department since November 2020. The social worker provided mother with an address where the visit would take place, and mother claimed she had no transportation. The social worker offered mother a bus pass, and mother responded that the only two buses to Fresno from where she lived in Mendota left at 9:50 a.m. and 1:50 p.m. Mother asked why the social worker needed to supervise a visit, and the social worker informed mother she was trying to assess the parent/child relationship for the adoptions assessment. The social worker attempted two more times to schedule a visit between mother and the children without success. In the section 366.26 report, the social worker reported mother had not visited with nor had any contact with the children since July 2021.

The department’s section 366.26 report recommended adoption as the most appropriate permanent plan for the children and that parental rights be terminated. The children were all still living with their paternal grandmother, who wished to adopt them. The children were doing well. They appeared happy and comfortable and to have a “close parent-child relationship” with the care provider. They stated they liked living with her and did not want to live anywhere else.

A contested section 366.26 hearing was conducted on December 1, 2021. Mother testified she had had no communication with the department since July 2021. She tried to get information regarding visitation in July 2021 but stopped because she was not getting a response. She testified she had been visiting with the children almost every other weekend, whenever the care provider would allow. She never had any issues with the care provider not allowing visits except for once. She testified her last visit with the children was the previous Sunday over the phone. When asked if she ever missed a visit, she stated she had missed one because of work but made it up.

Mother testified that at visits the children would “run to [her] with open arms,” “light up like it’s [F]ourth of July,” and ask her when they would be able to go home with her. When she leaves, it’s “like a storm hit and they just cry and scream” because they want to go home with her. At visits, she and the children would do arts and crafts and TikTok videos. She would start visits as a group and then give each child one-on-one time with her. She emphasized the importance of family with them and encouraged them to share their feelings.

Mother testified her three youngest children had lived with her before removal, and A.D. had always lived with the paternal grandmother. She was the only parent in the children’s lives and their primary caregiver, with the exception of A.D. She and the children had a bond “that you would see only in a movie.” Mother stated she was presently employed, had housing appropriate for the children, and had completed all of her services. She testified she had always been the stable person in the children’s lives and if her parental rights were to be terminated, the children’s states of mind would change and they would not be “the happy, sunshine kids” that she raised. She testified the children would no longer be joyful, loving, or warm and welcoming. She further testified it would affect their schoolwork and make them go into a deeper depression “than what they probably already have.”

The social worker testified she had been assigned to the case since August 2021. She had made attempts to set up visitation with mother to no avail. She never observed a visit between mother and the children because mother refused to cooperate, and to the social worker’s knowledge, mother had not visited with the children except for the phone visit to which mother testified. The social worker met with the children monthly and asked them and the care provider if they had visited with mother, and they reported they had not. The social worker testified there was not a significant relationship between mother and the children.

After hearing the evidence, the court found by clear and convincing evidence the children were adoptable. The court further found the beneficial parent-child relationship exception to termination of parental rights did not apply to mother. The court found mother had not shown she had regularly and consistently visited the children. The court stated it found mother was not credible in her testimony regarding visits and it found the social worker was credible in her testimony that mother had not visited since July 2021. The court found that even if it credited mother’s testimony that she had visited regularly since July 2021, the court found that the reports indicated mother’s visitation prior to that was inconsistent, still supporting its finding the beneficial parent-child relationship exception did not apply. The court further stated that even if it had found mother’s visitation was regular and consistent, it did not find, based on the totality of the evidence, that mother had met her burden to show the relationship between mother and the children outweighed the benefits of adoption. The court ordered adoption as the children’s permanent plan and terminated parental rights.

DISCUSSION

At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” where “[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).)

The California Supreme Court has recently clarified in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) that there are three elements a parent has the burden to prove by a preponderance of the evidence to justify the application of the beneficial parent-child relationship exception: (1) “regular visitation and contact with the child, taking into account the extent of visitation permitted”; (2) “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 (3) “that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at pp. 632‒633, 636‒637.)

Here, the court found that mother had not met her burden to show the first element—that she maintained regular visitation and contact with the children. As the Caden C. court has explained, this element “is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ [Citation.] 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.” (Caden C., supra, 11 Cal.5th at p. 632.)

We review this finding for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639‒641.) Under the substantial evidence standard of review, “a reviewing court should ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.’ [Citation.] The determinations should ‘be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’ ” (Id. at p. 640.)

We find the court’s finding that mother did not regularly or consistently visit the children to be amply supported by substantial evidence. The department’s reports indicated mother missed several visits throughout the period between July 2020 and November 2020, which resulted in her being dropped from the visitation center. Mother failed to reengage in visits at the visitation center and did not want the care provider to supervise visits either, and she did not visit the entire month of December, despite being entitled to weekly visits. When the social worker tried to encourage mother to visit in December, mother responded, on more than one occasion, that she wanted to give up her parental rights.

In addition, the section 366.26 report indicated mother had not visited since July 2021, despite being permitted monthly visits and multiple attempts by the social worker to schedule visits so she could observe in order to assess the parent-child relationship. At the section 366.26 hearing in December 2021, the social worker confirmed that no visitation had taken place, except for the one phone call to which mother testified. Though mother testified she had bi-monthly visitation supervised by the care provider during this period, the court was not required to and expressly did not accept this testimony, and we defer to the court’s credibility finding. The finding was reasonable in light of the reports and the social worker’s testimony, which she based on her observations as well as conversations with the children and the care provider, who indicated they had not seen mother.

While the reports indicated mother visited consistently during the period between the six- and 12- month status review hearings (January 2021 through July 2021), this was a short period in context with the entire 18-month-long case and the other inconsistencies in visitation, including substantial periods of time with no contact. Taking into account the extent mother was allowed to visit the children as well as the purpose of visitation to continue or develop a “significant, positive, emotional attachment” (Caden C., supra, 11 Cal.5th at p. 632), we conclude substantial evidence supported the court’s finding mother failed to visit regularly and consistently.

We need not conduct any further analysis. A court may base its decision a parent has not met their burden to show the beneficial parent-child relationship exception applies on any or all elements of the exception. (In re Breanna S. (2017) 8 Cal.App.5th 636, 647.)

DISPOSITION

The juvenile court’s December 1, 2021 order terminating parental rights is affirmed.

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

[1] All further undesignated statutory references are to the Welfare and Institutions Code.