Filed 5/24/22 In re K.E. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

S.E. (mother) appeals from an order terminating her parental rights to her child, K.E. (minor). Mother asserts the court erred by declining to find the beneficial parent-child exception applicable. Mother further asserts the court denied her due process by refusing to grant a short continuance of the Welfare and Institutions Code[1] section 366.26 hearing (.26 hearing). We disagree and affirm the order.

I.
BACKGROUND

The Department of Children and Family Services (Department) filed a first amended petition under section 300, subdivisions (a) and (b)(1), alleging in relevant part mother exposed minor to domestic violence between mother and the presumed father, abused drugs and alcohol in her presence, and failed to provide proper care and supervision due to mother’s failure to take prescribed psychotropic medication.

In the jurisdiction and disposition report, the social worker noted minor “does not appear to have a strong attachment with any particular caregiver” and “goes too easily to strangers without looking around for the approval of a trusted parent. She was not distressed when she was detained from her mother, suggesting they lack a strong bond.” In the supplemental report before the jurisdiction hearing, the social worker noted minor’s willingness to go with strangers “was a ‘red flag.’ ” The social worker again emphasized “ ‘the bonding [mother] had with [minor] seemed poor,’ based on her experience seeing hundreds of mothers coming to deliver babies with older siblings in tow.”

Minor was removed from mother’s custody and placed in the home of her maternal grandfather and maternal stepgrandmother (hereafter grandfather and stepgrandmother; collectively grandparents). The court ordered reunification services for mother, which included drug and alcohol program rehab, weekly drug testing, parenting classes, psychological and psychiatric assessments, and mental health and individual counseling.

The six-month status report noted minor had adjusted “really well” to living with her grandparents and emphasized her attachment to them “is strong.” The report stated minor has a “caring demeanor,” loves seeing and playing with her family, and “is usually responsive and kind” when receiving attention from strangers. Minor looked to stepgrandmother or other known adults for comfort, and had begun calling stepgrandmother, “Mom.” The report also noted mother had FaceTime visits with minor, and minor “seems to enjoy seeing her mom and likes to show her mom what she is doing and what toys she’s playing with.” While the report described these visits as “regular,” stepgrandmother stated such calls were “random” and usually lasted less than 10 minutes. Stepgrandmother further explained, “Sometimes weeks go by without contact, and sometimes mother calls twice in a week.” She attempted to arrange an in-person visit between mother and minor, which required a “ ‘lot of texting back and forth’ to get [mother] to commit.” Stepgrandmother noted the visit only lasted 20 minutes and occurred in grandfather’s truck because mother’s motel room felt unsafe. Stepgrandmother reported mother declined to have a longer visit with minor the following day.

In advance of the 12-month review hearing, the Department filed another status report. The Department noted mother “has been inconsistent with her scheduled supervised visitation, missing nine of the 22 supervised visits scheduled with [minor]” and only being on time for two visits. Despite the “inconsistent” visits, the Department noted minor “appears to enjoy her closely supervised visit time with the mother and engages well.” However, the Department recommended the court terminate services because mother had “essentially not engaged in services or made any of the necessary behavioral changes that would make her a safe and appropriate parent.” Specifically, it stated mother had failed to complete intake for her parenting classes or substance use disorder treatment (SUDT), or pursue the required psychological counseling.

In an addendum to the 12-month report, the Department further noted mother missed 11 of 12 scheduled Zoom visits with minor over a three-week period. During this period, mother also missed multiple meetings with the social worker, all scheduled SUDT sessions, and all random drug tests. Mother was also offered “Dial-a-Ride” passes, but she did not pick them up or arrange to receive them.

Following the 12-month review hearing, the court terminated reunification services for Mother, but ordered supervised visitation between minor and Mother for a minimum of one hour per month. The court subsequently set a .26 hearing.

In advance of the .26 hearing, the Department filed a report recommending the grandparents be approved as the adoptive parents of minor. The report noted minor calls her grandparents “ ‘Mom’ ” and “ ‘Dad,’ ” and has a strong bond with them. The adoption assessment mirrored these comments, noting minor has “substantial emotional ties” to her grandparents and looks to them “for comfort and to get her needs met and freely expresses affection with them.”

The Department’s report also stated: “The mother has maintained fairly regular visitation and contact with the child and the child would benefit from continuing the relationship, however, there may be a potential Post-Adoption Contract Agreement for continuing contact with the mother if the agreement is found to be in the best interest of the child at the time the petition is granted.” Recognizing the potential conflict between this statement and the recommendation for adoption and termination of parental rights, counsel for the Department clarified its position at the .26 hearing, stating: “[The Department] intended that to be only with respect to whether or not the prospective adoptive parents were interested in any post-adoption visitation contract. [¶] . . . [¶] But I’d go even further to say that the facts in the case and in the record make it very clear that the first prong of the beneficial parental relationship would be that the parent has regularly and consistently visited. [¶] And I know that the facts would not support the Court making that finding.”

At the .26 hearing, counsel for mother requested a continuance because mother had sent a text stating she was in the emergency room and unable to testify. Counsel for the Department and minor opposed the request, arguing mother was unreliable and there was no evidence she was in the emergency room or could not telephone the court.

The court denied the request. Counsel for mother then proceeded to argue in favor of a legal guardianship in lieu of adoption based on the beneficial parental relationship. Counsel asserted minor spent the first year and a half of her life with mother, mother’s visitation with minor had been “more consistent” over the past year, and that visitation was affectionate, positive, and loving. Counsel argued a bond existed and it would be detrimental to minor’s emotional well-being to terminate that relationship.

The court subsequently terminated mother’s parental rights and ordered adoption as the permanent plan for minor. Mother timely appealed.

II.

DISCUSSION

On appeal, mother raises two arguments. First, mother asserts her due process rights were violated when the court refused to continue the .26 hearing. Second, she asserts the trial court erred in refusing to apply the beneficial parent-child exception. We address each argument in turn.

A. Due Process

As an initial matter, mother argues the juvenile court’s failure to approve her request for a continuance violated due process because it deprived her of the opportunity to offer evidence refuting allegedly inaccurate or incomplete facts contained in the Department’s report.

Section 352, subdivision (a) provides: “(1) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that a continuance shall not be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] (2) Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . .” “The juvenile court has broad discretion in determining whether to grant a continuance. [Citations.] As a reviewing court, we can reverse an order denying a continuance ‘only upon a showing of an abuse of discretion.’ ” (In re V.V. (2010) 188 Cal.App.4th 392, 399.)

Mother first argues the court abused its discretion because it had previously granted continuances to the Department. However, the appropriateness of those continuances is not before this court. Rather, the question is solely whether good cause existed for this continuance. As discussed below, the trial court did not abuse its discretion in declining to grant a continuance.

Next, mother contends the court asked for an offer of proof only after it denied the continuance, which was capricious and an abuse of discretion. However, the record reflects otherwise. In addressing the requested continuance, counsel for the Department argued, “I don’t know that there [are] any . . . statements about anything the mother could offer today that would be relevant that’s not already in the reports.” When the court asked mother’s counsel—following that statement—if she had “[a]nything else” to add, counsel simply stated that mother was going to testify. Mother’s counsel did not respond to the Department’s counsel’s argument or identify any relevant testimony mother would offer that was not in the reports or attached visitation logs. Only then did the court deny the continuance, noting, “I don’t know what the mother could testify to today that would change the proposed findings and orders.” The court then asked the parties to present any argument and evidence, including mother’s counsel. And, during that argument, mother’s counsel represented she was arguing “based on the information that I have received from the mother,” which merely recounted excerpts from the reports and visitation logs. Counsel thus had an opportunity both before and after the court denied the continuance to argue the visitation logs were misleading or identify relevant testimony that mother would have provided. In neither instance did counsel identify any information that was not already available in the reports and visitation logs.[2]

Finally, mother asserts the trial court’s refusal to believe mother’s text—without additional proof—was arbitrary and capricious. But the court did not deny the continuance merely because it disbelieved mother. Rather it noted mother had always appeared telephonically at past hearings and implicitly questioned why mother could not have called into the hearing from the emergency room. And, more importantly, the court noted it was disinclined to continue the hearing even if it had corroboration of mother’s excuse.

Mother correctly argues she has a due process right at the .26 hearing to appear and present evidence. (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) But she fails to identify how that right was violated. Unlike the cases upon which she relies, mother received proper notice of the hearing and the Department’s recommendation, and had the opportunity to appear.[3] She has failed to identify any authority in which the denial of a continuance under similar circumstances violated due process.

However, even if we assume the court erred in denying mother’s motion to continue the .26 hearing, we conclude that any error was harmless beyond a reasonable doubt. (In re Dolly D. (1995) 41 Cal.App.4th 440, 446; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121–1123.) As discussed below, mother does not identify any evidence that would support application of the beneficial parent-child exception in this instance.

B. Beneficial Parent-child Exception

Mother argues the trial court’s rejection of the beneficial parent-child exception was not supported by substantial evidence. We disagree.

“ ‘At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.’ [Citation.] ‘Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” ’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) The Supreme Court has explained there are “three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)

In reviewing the trial court’s ruling, we apply a hybrid standard of review. (Caden C., supra, 11 Cal.5th at p. 640.) The first two elements—regular visitation and a beneficial relationship—involve determinations that are essentially factual and are reviewed for substantial evidence. (Ibid.) The third element—detriment to the minor resulting from termination—involves “a delicate balancing” and “is discretionary and properly reviewed for abuse of discretion.” (Ibid.)

The parties dispute whether mother has met the first element: regular visitation and contact. The Supreme Court described this factor as “straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) Mother argues she maintained regular visitation because the majority of missed visits were a result of technical issues, mother being ill, and/or the Department terminating the visits if mother failed to appear within 10 minutes rather than waiting 15 minutes. But at this juncture, the question is not why mother may have missed visits. Rather, we are faced with a purely factual inquiry: Have mother and minor maintained regular visitation, “taking into account ‘the extent permitted by court orders’ ”? (Ibid.) The record clearly indicates the answer is no. Mother participated only in a fraction of those visits permitted by the court.[4]

This lack of regular contact undermines the parent-child bond. While “ ‘[d]ay-to-day contact is not necessarily required,’ ” “[t]he relationship that gives rise to this exception to the statutory preference for adoption ‘characteristically aris[es] from day-to-day interaction, companionship and shared experiences.’ ” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) While some missed visits could be overlooked, the number of missed visits, combined with the lack of evidence regarding mother’s attempts to avoid missing visits, undermines this factor. Thus substantial evidence supports a finding that mother did not maintain regular visitation and contact.

Moreover, even assuming mother’s sporadic contact constituted “regular visitation,” mother has not met the third element: demonstrating that the benefit to minor in maintaining the relationship outweighs the benefit of adoption. As explained by the Supreme Court, “courts need to determine . . . how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life. [Citation.] . . . [T]he effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet . . . a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental.” (Caden C., supra, 11 Cal.5th at p. 633.) Accordingly, courts must ask whether “the benefit of placement in a new, adoptive home outweigh[s] ‘the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]’ [Citation.] When the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633–634, italics added by Caden C.)

Mother argues her interactions with minor demonstrate love and affection. And the records reflect that mother’s visits with minor went well, were affectionate, and minor had positive reactions to her during them. However, the affectionate nature of their interactions does not indicate the court abused its discretion in concluding mother’s relationship with minor did not promote her well-being to such an extent that it outweighed the well-being minor would gain from adoption. (See In re K.P., supra, 203 Cal.App.4th at p. 621.) The trial court could properly consider not only the quality of the parent-child bond, but also its strength. Here, the record does not indicate a strong bond between minor and mother. The Department noted minor was not distressed when she was initially detained from mother, minor’s willingness to go with strangers “was a ‘red flag,’ ” and “ ‘the bonding [mother] had with [minor] seemed poor.’ ” Likewise, nothing in the record or visitation logs indicates minor was upset when mother missed visits or struggled in separating from mother after those visits. Weighed against this evidence was the significant potential benefit of placement. The evidence uniformly showed minor had done extremely well with her grandparents, they provided a stable and very loving home, and minor was connected to her siblings and extended family. Minor referred to her grandparents as “Mom” and “Dad,” she had a strong emotional bond with them, and she looked to them “for comfort and to get her needs met.”

Mother relies on In re E.T. (2018) 31 Cal.App.5th 68 to argue she should not be excluded from minor’s life. However, that case is factually distinguishable. There, the children were “ ‘very tied to their mother,’ ” and she would help ease their fear and anxiety as well as provide affection. (Id. at pp. 77, 76.) The agency noted the children would be “sad, withdrawn[,] and might act out” after visits as a result of their separation from their mother. (Id. at p. 76.) No similar level of connection is evidenced in this matter.

“The existence of interaction between natural parent and child will always confer some incidental benefit to the child.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) However, mother has not demonstrated her relationship with minor promotes minor’s well-being to such a degree as to outweigh the stability and benefits gained from adoption. Accordingly, the court did not abuse its discretion in declining to apply the beneficial parent-child exception.

III.

DISPOSITION

The juvenile court’s order terminating parental rights and declaring adoption to be the permanent plan for the minor is affirmed.

Margulies, J.

WE CONCUR:

Humes, P. J.

Banke, J.

A164071

In re K.E.

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

[2] Mother also asserts her proposed testimony “could have corrected the [Department’s] version of the visits” by emphasizing the loving bond between her and minor. But the visitation logs clearly identify the affectionate exchanges between mother and minor.

[3] See In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (mother denied due process because parental rights were terminated without notice of the hearing); Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 558 (failure to provide timely service of status report prior to .26 hearing constituted a denial of due process and required reversal).

[4] While mother’s argument implies she would have attended more visits had she been allowed the full 15-minute grace period rather than having the visits terminate if she failed to connect within 10 minutes, nothing in the record indicates she attempted to connect during those extra five minutes or that she ever complained to the Department about this issue.