In re O.P. CA4/3 ( 2022 )

Filed 10/28/22 In re O.P. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re O.P., A Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G061357
Plaintiff and Respondent,
(Super. Ct. No. 20DP0850)
v.
OPINION
B.P.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Daphne
Grace Sykes, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
* * *
B.P. (Mother) appeals from an order terminating her parental rights over
her now two-year-old daughter, O.P. (Minor), at a hearing pursuant to Welfare and
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Institutions Code section 366.26 (.26 hearing). She contends the Orange County
juvenile court (the court) should have applied the parental-benefit exception to
termination of parental rights under section 366.26, subd. (c)(1)(B)(i). We disagree.
Mother failed to establish the parental-benefit exception applies to this case. We
accordingly affirm the order.
FACTS
Detention
In July 2020, Minor was taken into protective custody when she was only a
few weeks old. According to the Orange County Social Services Agency’s (SSA)
detention report, Mother was arrested for assault with a deadly weapon and child
endangerment. At the time, Mother and K.A. (Father) were not getting along so Father
slept in his vehicle in the parking lot of their apartment building. On the evening of
Mother’s arrest, Mother had confronted Father who was in his vehicle and an argument
ensued. Father drove away, and Mother pursued him in her vehicle. Mother then crashed
into Father’s vehicle at least three times. Father managed to escape and called law
enforcement. It was unknown if Minor was in Mother’s vehicle at the time of the
incident.
Mother thereafter returned to her residence and pushed a couch up against
the door to prevent police officers from entering. Once the police officers managed to
open the door, Mother was uncooperative and denied everything. The officers asked
Mother to put Minor down, but she refused and “tightened her grip . . . .” A struggle
ensued, and the officers ultimately arrested Mother while securing Minor.
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All further statutory references are to the Welfare and Institutions Code.
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Before transporting Minor to Orangewood Children and Family Center, a
social worker noticed Minor’s diaper needed to be changed. The social worker reported
“the child’s vagina was caked with feces and . . . there was so much and it was so packed,
that [the social worker] stopped so not to hurt the baby.” The social worker also noticed
Minor had a severe diaper rash and her skin appeared to have raw irritated lesions.
Because Minor seemed to be in pain, the social worker stopped cleaning the area so
Minor could be treated by medical staff.
On the same day, a social worker interviewed Father who reported he was
not comfortable caring for Minor and believed Minor should be taken into protective
custody. Among other things, Father indicated Mother had been abusive towards him,
threatened to kill herself, and was placed on a section 5150 psychiatric hold for suicidal
ideation while eight months pregnant. He also revealed there were empty alcohol cans
hidden throughout the apartment and noted Mother drank alcohol while pregnant.
According to Mother, Father had lied about the incident. She denied
crashing into his vehicle and further denied any domestic violence, substance abuse, or
mental health issues.
The social worker next interviewed the father of Minor’s two half-siblings.
The father confirmed he took care of the half-siblings and indicated he had a history of
domestic violence with Mother who was the aggressor. He also was not surprised by
Mother’s arrest because he said she did not know how to control her temper.
Soon after, SSA filed a petition pursuant to section 300, subdivisions (b)(1)
and (g). The petition detailed Mother’s anger management problem, mental health
issues, substance abuse, and history of domestic violence. After a detention hearing, the
court detained Minor pending jurisdictional proceedings and authorized supervised
visitation for Mother and Father. Minor was placed in the care of the maternal great-
grandparents.
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Jurisdiction/Disposition
Prior to the jurisdiction/disposition hearing, SSA recommended the court
sustain the petition, declare Minor to be a dependent of the court, and provide
reunification services to Mother. SSA’s report indicated Minor had been placed in the
care of her maternal great-grandparents. The report further noted Mother said she was
willing to participate in all services offered and wanted to reunify with Minor as soon as
possible.
At the jurisdictional hearing in October 2020, Mother waived her right to a
trial and pleaded no contest to the petition as amended by interlineation. The court found
the allegations in the amended petition true, bringing Minor within the provisions of
section 300, subdivisions (b)(1) and (g). In November 2020, the court declared Minor a
dependent, removed her from her parents’ custody, and ordered reunification services.
With respect to visitation, the court authorized Mother to spend the night at the
caretakers’ home while visiting Minor.
First Reunification Period: November 2020 to May 2021
Mother’s case plan required her to participate in a domestic violence
program, general counseling, a parent education program, drug testing, and a substance
abuse program. The social worker described Mother’s progress on her case plan during
this period as minimal.
Regarding the domestic violence program and general counseling, Mother
stopped contacting her therapist in January 2021. In March 2021, she told the social
worker the counseling was not helpful and that she had completed all necessary services.
She also indicated she was “annoyed” by the case because Minor was never in danger.
According to the therapist, Mother “was very resistant to the therapeutic process” and
“sporadic with setting and keeping scheduled appointment times and days.”
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As to the parent education program, Mother completed a program and
provided a certificate of completion to the social worker. With respect to drug testing,
Mother was generally compliant. She tested negative on seven different days from
March 24, 2021 to April 14, 2021. Although she did not appear for required testing on
two occasions, her absences were excused on those days. As of May 2021, Mother had
not been referred to a substance abuse program.
Regarding visitation, Mother was authorized one supervised overnight visit
per week at the caregivers’ home. The great-grandmother initially reported Mother had
visited Minor on two occasions—Thanksgiving in November 2020 and Christmas in
December 2020. She later revealed Mother did not visit Minor on Christmas, but she
dropped off presents for Minor with the great-grandfather. She also disclosed Mother
had asked her to lie to the social worker about another visit that never happened. When
the social worker asked why Mother would have lied about the visits, the great-
grandmother speculated Mother wanted to visit but was busy with work. With respect to
virtual visits, the great-grandmother reported Mother maintained virtual visits almost
every day. She indicated Minor “‘gets so happy” when Mother calls.
When confronted by the social worker, Mother insisted she had visited
Minor and last visited in April 2021. Mother also reported it was difficult to maintain in-
person visits because of her work schedule and because her great-grandparents lived
about three hours away.
Meanwhile, Minor appeared to be happy, healthy, and stable with the great-
grandparents who reported they were willing to adopt Minor. Given Mother’s motivation
to reunify, SSA recommended a second period of reunification services. The court
adopted SSA’s recommendations.
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Second Reunification Period: May 2021 to October 2021
SSA’s report for the 12-month review hearing recommended terminating
Mother’s reunification services and scheduling a .26 hearing. According to the report,
Mother’s progress on her case plan during this period was moderate.
Regarding the anger management program, Mother completed 14 sessions
of individual therapy. The therapist noted Mother was “‘resistant to the therapeutic
process at first’” and sometimes “‘distracted by doing other things.’” But the therapist
noted Mother appeared “‘to be a caring mom, going through a difficult time.’” In July
2021, the social worker advised Mother she needed to continue attending general
counseling.
The social worker later contacted Mother’s new therapist. According to the
therapist, Mother said she already completed therapy and denied all of the allegations of
her case. The therapist also described Mother as guarded. A few weeks later, the
therapist reported Mother was opening up in therapy and taking responsibility for her
actions. Mother also demonstrated insight, did not miss any sessions, and was committed
to be the best mother possible. The therapist further noted Mother was afraid to put
Minor in a daycare facility. Overall, the therapist provided positive feedback about
Mother.
With respect to drug testing, Mother tested negative on 10 different
occasions but failed to attend 11 tests. She provided various reasons for her absences.
Given the missed tests, the requirement to complete a substance abuse treatment program
was triggered.
Regarding visitation, both Mother and the great-grandmother confirmed
Mother had daily virtual contact with Minor. By this time, Mother was authorized two
consecutive overnight visits in the caregiver’s home. Mother accordingly visited Minor
on May 16, 2021 through May 18, 2021 at the great-grandparents’ home. In June 2021,
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Mother again visited Minor at the great-grandparents’ home to celebrate Minor’s
birthday. She also visited Minor once in Orange County. As of July 2021, Mother was
authorized to have Minor in her care for one week per month at her own home. In
August 2021, Mother took care of Minor for one week in her own home. The social
worker met with Mother and Minor during this time and reported Minor appeared happy
and healthy. The social worker also noted Mother was attentive to Minor who “appeared
comfortable in [Mother’s] presence as evidenced by smiling and laughing while engaging
in interactions with [Mother].” Mother did not have any other in-person visits with
Minor after August 2021.
Despite Mother’s general progress, SSA noted Mother’s in-person visits
were “sporadic.” SSA also emphasized Mother was not able to take additional time away
from work to assume primary custody of Minor and did not want to place Minor in
daycare. Mother further declined childcare subsidies offered by SSA and indicated she
wanted to work from home in the future at which time she wanted Minor returned to her
care. The great-grandmother similarly reported Mother had planned for Minor to stay
with the great-grandmother even before SSA’s involvement. According to the great-
grandmother, Mother wanted to take Minor after she had started her own business. Given
Mother’s inability to take custody of Minor and the caregivers’ ability to provide
permanency through adoption, SSA recommended terminating Mother’s reunification
services and scheduling a .26 hearing.
In October 2021, the court terminated Mother’s reunification services and
set a .26 hearing. The court noted Mother had agreed to a “soft .26,” meaning that
although the court terminated reunification services and set a .26 hearing, SSA was
authorized to continue funding services for Mother. The hope was that Mother would
participate in the services in an attempt to reunify with Minor. Under the “soft .26”
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agreement, Mother was required to complete drug and alcohol testing, a drug and alcohol
outpatient treatment program, an anger management program, and general counseling.
Post-reunification Period: October 2021 to April 2022
In February and April 2022, SSA filed two section 366.26 reports.
According to those reports, Mother’s drug testing services were terminated in November
2021 and she was restricted to supervised visits due to a missed drug test. Mother had
completed general counseling and an anger management program, but she did not
provide any evidence of completing a drug or alcohol outpatient program or drug and
alcohol testing.
With respect to visits, Mother visited Minor from November 4, 2021
through November 12, 2021. She again visited Minor at the caregivers’ home on
November 25, 2021 and on December 25, 2021 through December 26, 2021. Mother
then stopped visiting Minor for a few months. In March 2022, the great-grandmother and
Minor had an overnight visit in Mother’s home. According to the great-grandmother,
Mother maintained virtual contact “‘almost daily.’”
.26 Hearing
Mother failed to appear at the .26 hearing in April 2022, but her counsel
argued the court should apply the “parent/child bond exception” to termination of
parental rights. The court found Minor adoptable and terminated parental rights. The
court did not address the “parent/child bond exception.” Mother filed a timely notice of
appeal.
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DISCUSSION
Mother contends the court should have applied the parental-benefit
exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) She argues the
court omitted any findings regarding the exception and further claims the court’s silence
made the weighing of the evidence “vulnerable to improper factors.”
To the contrary, the court did not have to recite any specific findings
regarding the parental-benefit exception. Mother also failed to meet her burden of
establishing the exception.
The Court Was Not Required to Expressly Address the Parental-benefit Exception
At the outset, Mother suggests the court committed reversible error because
it did not make any express findings as to the parental-benefit exception. We disagree.
Once reunification services have ended, the juvenile court is required to
terminate parental rights unless an exception to adoption applies. (§ 366.26, subd.
(c)(1).) One of those exceptions is the parental-benefit exception. (§ 366.26, subd.
(c)(1)(B)(i).) Under the statutory exception, the court must terminate parental rights
unless it “finds a compelling reason for determining that termination 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.”
(Ibid.)
Here, the court did not expressly mention the parental-benefit exception,
but it was not required to do so. As the court stated in In re A.L. (2022) 73 Cal.App.5th
1131, “we infer from section 366.26, subdivision (c)(1)(D)—under which the juvenile
court is required to ‘state its reasons in writing or on the record’ when it makes a finding
that termination of parental rights would be detrimental to the child—that the court is not
required to make findings when it concludes that parental rights termination would not
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be detrimental.” (Id. at p. 1156.) “[W]e are aware of no requirement . . . that the juvenile
court, in finding the parental-benefit exception inapplicable, must recite specific
findings . . . .” (Ibid.)
We also note our Supreme Court articulated specific guidance regarding the
parental-benefit exception in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). Caden C.
was decided in May 2021, almost a year before the juvenile court’s .26 ruling. “Absent
evidence to the contrary, we presume . . . the trial court knew the law and followed it.”
(People v. Ramirez (2021) 10 Cal.5th 983, 1042.)
The Record Supports the Court’s Implied Finding That the Parental-benefit Exception
Did Not Apply
In Caden C., our Supreme Court identified three elements a parent must
prove to establish the parental-benefit 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.” (Caden C., supra, 11
Cal.5th at p. 631.) The first two elements are reviewed for substantial evidence. (Id. at
pp. 639-640.) The third element is reviewed for abuse of discretion. (Id. at p. 640.) To
the extent Mother challenges the court’s findings regarding her failure of proof, we
determine whether the evidence compels a finding in her favor as a matter of law. (In re
I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
We address each of the three elements in turn below.
A. Regular Visitation and Contact
As the Caden C. court observed, the “regular visitation and contact”
element is “straightforward.” (Caden C., supra, 11 Cal.5th at p. 632.) “The question is
just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by
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court orders.’” (Ibid.) Courts accordingly should consider whether parents “‘maintained
regular visitation and contact with the child.’” (Ibid.)
Here, the SSA reports suggest Mother’s visits were not consistent. During
the first reunification period, Mother was authorized one supervised overnight visit per
week at the caregivers’ home. It appears Mother visited Minor only once in November
2020, but she never visited Minor overnight. Mother also asked the great-grandmother to
lie to the social worker about another visit that never happened.
During the second reunification period, Mother was authorized two
consecutive overnight visits at the caregivers’ home. She later was authorized to have
Minor in her care for one week per month at her own home. Although Mother visited
Minor at increased intervals from May 2021 to August 2021, she stopped visiting Minor
in August 2021. Despite Mother’s improvement during the second reunification period,
SSA described Mother’s in-person visits as “sporadic.”
In the months before the .26 hearing, Mother initially visited Minor but
again stopped visiting for a few months. She then had an overnight visit with Minor in
March 2022 before the .26 hearing in April 2022.
Given these facts, the evidence does not compel a finding for Mother on the
“regular visitation and contact” element. To the contrary, the evidence suggests Mother
participated in visits interspersed with various absences. Mother claims she was not able
to visit for various reasons, “including global pandemic safety precautions, Mother’s
illness, the long distance between her home and the caretakers’ home, and Mother’s work
schedule.” She argues those absences were offset by the daily virtual visits she
maintained throughout the entire reunification period. But in reviewing factual
determinations for substantial evidence, we cannot “‘reweigh the evidence, evaluate the
credibility of witnesses, or resolve evidentiary conflicts.’” (Caden C., supra, 11 Cal.5th
11at p. 640.) “The determinations should ‘be upheld if . . . supported by substantial
evidence, even though substantial evidence to the contrary also exists . . . .’” (Ibid.)
B. Beneficial Relationship
As to the benefit element, the Caden C. court noted “courts assess whether
‘the child would benefit from continuing the relationship.’” (Caden C., supra, 11 Cal.5th
at p. 632.) “[T]he 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.’” (Ibid.) Courts “consider how children feel about, interact with, look to, or talk
about their parents.” (Ibid.)
In this case, Minor had been out of Mother’s care for most of her life. She
was taken into protective custody when she was only a few weeks old. At the time of the
.26 hearing, Minor was almost 2 years old. SSA’s section 366.26 report also noted
Mother had not maintained a bond with Minor. While Mother cared for Minor during
visits and they had some positive interactions, there was no evidence the interactions
were anything more than friendly. There also was no evidence Minor suffered negative
effects when separated from Mother. A beneficial relationship requires “more than the
incidental benefit a child gains from any amount of positive contact with” the parent. (In
re Katherine J. (2022) 75 Cal.App.5th 303, 318.) “[P]leasant and cordial . . . visits are,
by themselves, insufficient to mandate a permanent plan other than adoption.” (In re
Brian R. (1991) 2 Cal.App.4th 904, 924.) Instead, Mother was required to demonstrate a
“‘substantial, positive emotional attachment.’” (Caden C., supra, 11 Cal.5th at p. 633.)
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Mother complains there is an absence of information in the SSA reports
regarding Minor’s interactions with Mother. But it was Mother’s burden to show the
parental-benefit exception applied, and she failed to attend the .26 hearing or present any
evidence. Overall, there is substantial evidence supporting an implied finding that
Mother did not demonstrate a beneficial relationship.
C. Detriment Resulting from Termination of Relationship
With respect to the third element, a court “must decide whether the harm
from severing the child’s relationship with the parent outweighs the benefit to the child of
placement in a new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 632.) “By
making this decision, the trial court determines whether terminating parental rights serves
the child’s best interests.” (Ibid.)
Because Mother failed to carry her burden to establish a substantial,
positive emotional attachment, it appears there would be minimal harm from severing
Minor’s relationship with Mother. (In re A.L., supra, 73 Cal.App.5th at p. 1158
[considering the strength and quality of the parent’s relationship with the child].)
Mother’s grandparents cared for Minor for most of her life, and Minor was happy,
healthy, and stable with them. Even before SSA’s involvement, Mother conceded she
wanted her grandmother to raise Minor until Mother could establish her own business
and work from home. Considering the record as a whole, the evidence supports a finding
that Minor would be best served by adoption. We cannot find the court abused its
discretion.
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DISPOSITION
The order is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
MARKS, J.*
*Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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