In re C.C. CA4/1 ( 2021 )

Filed 7/27/21 In re C.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.C., a Person Coming Under
the Juvenile Court Law.
D078604
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY, (Super. Ct. No. J519821)
Plaintiff and Respondent,
v.
C.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant
and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff
and Respondent.
C.P. (Mother) appeals from the juvenile court’s order terminating
parental rights to her daughter C.C. (born 2018). (Welf. & Inst. Code,
§ 366.26.)1 Mother contends the juvenile court erred in finding that the
beneficial parent-child relationship exception to adoption did not apply
because she maintained consistent visitation, and had a positive relationship
with C.C. that benefited C.C. (§ 366.26, subd. (c)(1)(B)(i).) Mother contends
that the juvenile court should have ordered a legal guardianship as C.C.’s
permanent plan because this would provide C.C. with a stable home and
allow her to maintain her relationship with Mother. After the completion of
briefing in this appeal, the Supreme Court issued its decision in In re Caden
C. (2021) 11 Cal.5th 614 (Caden C.) which clarified the standards applicable
to the parent-child relationship exception. We invited the parties to file
supplemental letter briefs addressing the effect, if any, of Caden C. to the
issues on appeal. Having considered the supplemental briefs filed by the
parties, we affirm the order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
Petition and Reunification Period
Mother has a history of methamphetamine use but claimed that she
“quit cold turkey” in 2017. Mother gave birth to C.C. in July 2018. Although
C.C. was full-term, the hospital placed a nasogastric tube due to poor feeding
and decreased activity level. At the time of birth, C.C. and Mother tested
positive for methamphetamine and amphetamine, which indicated drug use
by Mother within the last one to five days. Medical staff opined that in utero
drug exposure caused C.C.’s poor feeding and inactivity. Mother denied drug
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
use during her pregnancy and explained that Sudafed medication or a friend
placing a pill into her breakfast may have caused the positive test result.
C.C. remained hospitalized for seven days. Two days after C.C.’s birth,
Mother left the hospital against medical advice. Mother missed feedings and
trainings on how to care for C.C. The San Diego County Health and Human
Services Agency (Agency) offered Mother a voluntary case provided C.C.
remained outside Mother’s home while Mother received treatment. Although
Mother initially agreed, she later changed her mind and indicated her desire
to go to court.
On August 8, 2018, the Agency filed a petition under section
300, subdivision (b)(1) alleging that C.C. and Mother tested positive for
amphetamine and methamphetamine at the time of C.C.’s birth and that
Mother denied a substance abuse problem.2 At the detention hearing, the
court made a prima facie finding on the petition, ordered C.C. detained in
out-of-home care, and limited Mother to supervised visits. By the time of the
contested jurisdiction and disposition hearing in October 2018, Mother had
all negative drug tests since C.C.’s removal, attended services, and the
Agency had liberalized Mother’s visits to unsupervised. At the hearing, the
juvenile court found the petition true, removed custody from Mother, and
ordered reunification services for her. In the meantime, C.C.’s maternal aunt
asked to be assessed for placement.
In October 2018, at the Agency’s request, licensed clinical psychologist
Dr. Joseph McCullaugh evaluated Mother because the social worker
described Mother as exhibiting an “increased frequency and severity of
2 The two alleged fathers are not parties to this appeal. Genetic testing
excluded one individual and the other individual denied paternity.
3
mental health symptoms” and Mother had never received a psychological
assessment. Dr. McCullaugh found that Mother “demonstrate[d] the
intellectual capabilities to communicate, comprehend without conflict, and
reason appropriately with an appreciable degree of accuracy” and that she
did not have “disorganized, irrational, peculiar, or otherwise impaired
processing styles that would hinder her from benefitting from services within
the legal timelines of her case.”
In November 2018, Mother tested positive for methamphetamine but
denied methamphetamine use, claiming that the drug got into her system
after exchanging bodily fluids during sex. On February 26, 2019, Mother
completed her drug treatment program and reported her commitment to
refrain from drug use. As of March 18, 2019, Mother worked two jobs as a
dental office treatment coordinator and a food delivery driver. Mother
reported that her work schedule allowed her to have overnight visits with
C.C. on the weekends and unsupervised visits during the week. In late
March 2019, Mother completed an outpatient recovery program. Mother’s
substance abuse counselor reported that Mother had been forthcoming with
her drug problem, developed insight regarding her drug use, and was not in
denial at this time.
At the six-month review hearing in April 2019, the court ordered
overnight visits. According to C.C.’s foster mother, Mother had been
consistently visiting four times a week, C.C. was always happy to see Mother
and seemed very comfortable with her. Although the maternal aunt had
received approval for relative placement, the placement did not occur because
Mother had been approved for overnight visits. At a Child and Family Team
meeting held in May 2019, all team members reported that Mother had made
progress. Mother’s drug counselor stated that Mother “had made ‘incredible
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progress[,]’ met all her goals, and was in compliance with [her] treatment
program.”
On June 1, 2019, Mother started a 60-day trial visit with C.C.
However, on June 27, 2019, Mother tested positive for methamphetamine. In
July, Mother missed a drug test, had a diluted drug test, and twice tested
positive for methamphetamine. Mother denied using methamphetamine and
claimed that her use of an inhaler explained the positive test results. The
juvenile court suspended the 60-day trial visit and Mother’s visitation
reverted to supervised.
On July 30, 2019, the Agency placed C.C. in the confidential resource
family home of Mr. and Mrs. C. (the C’s). Two weeks after the placement, the
social worker informed the C’s of a possible relative placement with C.C.’s
maternal relatives in Idaho. The C’s indicated that if C.C. could not reunify
with her biological family for any reason that they were committed to
providing C.C. permanency through adoption.
In August 2019, Mother tested negative for any substances in three
random drug tests. During this time period, Mother consistently visited C.C.
twice a week, she brought snacks and toys for C.C. and the visits were
appropriate. In September 2019, Mother had a diluted drug test and missed
two drug tests. Mother’s substance abuse counselor also reported that
Mother’s demeanor did “ ‘not seem right’ ” and that Mother “ ‘ramble[d] on
and on’ ” about how the system had wronged her.
On October 28, 2019, Mother tested positive for methamphetamine. At
the November 20, 2019, contested 12-month review hearing, the court
terminated Mother’s reunification services, kept supervised visitation for
Mother, and scheduled a selection and implementation hearing under section
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366.26. That same day, Mother filed several forms in pro per claiming that
C.C. had a twin that Mother had not been allowed to see.
Post-Reunification Period
In January 2020, the juvenile court granted the social worker’s request
for an expedited Interstate Compact on the Placement of Children (ICPC)
evaluation of the maternal aunt’s home in Idaho. The maternal aunt and her
family started video calls with C.C. in January 2020, and in late February
2020 and early March 2020 the maternal aunt had five in-person visits with
C.C. that lasted two to three hours each. In the meantime, on February 5,
2020, the juvenile court granted the C’s de facto parent status. Mother also
continued her twice-weekly supervised visitation. In March 2020, Mother
switched from in-person visits to twice-weekly virtual visits due to COVID-19
restrictions. In late April 2020, Mother moved to Idaho. The maternal
relatives did not allow Mother to live with them but arranged housing for her
through a friend.
In June 2020, Mother told the social worker that C.C. was a “ ‘triplet,’ ”
and that she delivered two other babies at the time of C.C.’s birth who were
taken from her and placed in an “ ‘undocumented shelter.’ ” In August 2020,
the C’s filed a section 388 petition seeking to modify the court’s prior general
placement order granting the Agency discretion to place C.C. with the
maternal aunt without a court hearing. Following a contested hearing, the
court denied the petition and authorized the Agency to move C.C. to the
maternal aunt’s home.3
3 The C’s appealed from the denial of their section 388 petition to change
or modify C.C.’s general placement order. Another panel of this court
affirmed the order denying the petition. (In re C.C. (May 26, 2021, D078291)
[nonpub. opn.].)
6
In September 2020, the Agency learned that Mother was asked to leave
the home where she had been residing. Mother then moved to Washington.
In mid-December 2020, the Agency placed two-year-old C.C. with her
maternal aunt in Idaho. Mother and C.C.’s prior caregivers continued to
have video visits with C.C. two times per week. In the meantime, the court
continued the section 366.26 hearing several times based on the parties’
request and the court’s closure during the COVID-19 global pandemic. In
mid-February 2021, the contested section 366.26 hearing proceeded as a trial
on the documents. At the start of the section 366.26 hearing, the court
dissolved the C’s’ de facto parent status. The court concluded that the
parent-child relationship exception did not apply, terminated parental rights
and selected adoption as C.C.’s permanent plan. Mother timely appealed.
DISCUSSION
A. General Legal Principles
“At a section 366.26 hearing the juvenile court has three options: (1) to
terminate parental rights and order adoption as a long-term plan; (2) to
appoint a legal guardian for the dependent child; or (3) to order the child be
placed in long-term foster care. [Citation.] Adoption is the preferred plan
and, absent an enumerated exception, the juvenile court is required to select
adoption as the permanent plan. [Citation.] The burden falls to the parent to
show that the termination of parental rights would be detrimental to the
child under one of the exceptions.” (In re Fernando M. (2006) 138
Cal.App.4th 529, 534.)
One of the exceptions to the preference for adoption is the beneficial
parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) For this
exception to apply, the parent must show by a preponderance of the evidence:
(1) regular visitation and contact with the child; (2) the child has a
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substantial, positive, emotional attachment to the parent; and
(3) 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 p. 636.) The existence of this relationship is
determined by taking into consideration “[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 . . . .”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) When the
benefits of a stable, adoptive, permanent home outweigh the harm the child
would experience from the loss of a continued parent-child relationship, the
court should order adoption. (Caden C., at p. 634.)
We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parent-child relationship, for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) As a reviewing court, we do
“ ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts’ ” and will uphold the juvenile court’s determinations
even where substantial evidence to the contrary also exists. (Id. at p. 640.)
With regard to the court’s conclusion that a parent did not meet his or
her burden of proof regarding any factual findings, we look to “whether the
evidence compels a finding in favor of the parent on this issue as a matter of
law.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 647 (Breanna S.),
disapproved on other ground by Caden C., supra, 11 Cal.5th at p. 637, fn. 6.)
The question is “whether the . . . evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a finding.’ ” (In re
I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by
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Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) “[T]he ultimate
decision—whether termination of parental rights would be detrimental to the
child due to the child’s relationship with his [or her] parent—is discretionary
and properly reviewed for abuse of discretion.” (Caden C., at p. 640.) A court
abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ ” (Id. at p. 641.)
B. The Juvenile Court’s Ruling
The juvenile court first acknowledged the evidence showing that C.C. is
doing well with her caregivers and that the “overarching trajectory of the
law” was to provide children with permanency and stability. The court then
stated:
“The issues related to the mother are very nuanced.
They are obvious as to the reasons why we got here
initially. But as to the specific requirements in [section]
366.26 the mother has fallen short as it relates to showing
the court that beyond the intention and the heartfelt
intention of being a parent or mother -- although she has
indicated she’s willing to sacrifice and do the things
necessary to be that parent, that hasn’t been borne out by
the evidence over the last year and a half.
“She hasn’t -- she did not complete all the programming
that the court wanted her to complete and ordered her to
complete, whether it was drug counseling or individual
therapy. And despite [the COVID-19 global pandemic] and
other concerns, the court understands it’s hard to maintain
a relationship when a child is not under your care directly
at least.
“But she didn’t take advantage of the opportunities to
visit and coupled with taking care of the assigned
requirements of courses, she did not act as a parent who is
really truly willing to sacrifice everything and anything for
the child.”
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The juvenile court terminated Mother’s parental rights after finding, by
clear and convincing evidence, that C.C. was likely to be adopted if parental
rights were terminated, an exception to adoption did not apply, termination
of parental rights would not be detrimental to C.C., and it was in C.C.’s best
interests to be adopted.
C. Analysis
The juvenile court noted that Mother missed opportunities to visit C.C.
but did not make an express finding that she failed to regularly visit C.C.
Mother claims that she regularly and consistently visited C.C. The Agency
does not contest this assertion, stating that it conceded this element during
its closing argument. Review of the record shows that although Mother
occasionally missed visits, she maintained consistent visitation throughout
the proceeding.
Turning to the second element, whether C.C. would benefit from
continuing her relationship with Mother, we focus on the child. (Caden C.,
supra, 11 Cal.5th at p. 632.) We consider several factors in examining
whether a relationship is important and beneficial, including the age of the
child, the amount of time the child spent in the parent’s custody, the
interaction between parent and child, and the child’s needs. (Ibid.) Here,
C.C. enjoyed her visits with Mother and recognized Mother as “ ‘Mommy
[C.]’ ” and the maternal aunt as “ ‘mommy’ ” or “ ‘mommy auntie.’ ” C.C.,
however, was just two years old at the time of the contested section 366.26
hearing and “too young to understand the concept of a biological parent.” (In
re Angel B. (2002) 97 Cal.App.4th 454, 459, 467.)
Citing In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), Mother notes that
children can have more than one set of parental figures and that the
exception does not require a parent to be in a daily parental role. (Id. at
10
pp. 299-300.) The instant case, however, differs factually from S.B. The
father in S.B. acted as his daughter’s primary caregiver for three years before
her removal. (Id. at p. 298.) After her removal, the father in S.B.
immediately acknowledged “his drug use was untenable, started services,
maintained sobriety, sought medical and psychological services, and
maintained consistent and regular visitation” with his child. (Ibid.) The
social worker reported that the father in S.B. “ ‘consistently put[] his
daughter[’]s needs and safety before his own.’ ” (Ibid.) Additionally, a
bonding study supported other evidence in the record regarding the minor’s
“strong attachment” to the father that indicated a potential for harm to the
minor should the minor lose the parent-child relationship. (Id. at pp. 296,
298.)
Here, in contrast, Mother failed to act as a protective parent from the
outset. Although Mother claimed that she stopped using methamphetamine
in 2017, C.C. tested positive for methamphetamine at birth. Mother’s claim
that medication she had taken or some unknown pills that a friend slipped
into her breakfast caused the positive result does not explain C.C.’s poor
feeding and inactivity which hospital medical staff opined were caused by in
utero drug exposure, not drug use on the day of birth. Throughout the
proceeding Mother gave equally implausible explanations for positive
methamphetamine test results, including that the drug got into her system
after exchanging bodily fluids during sex, or that an inhaler she “ ‘found’ ”
and used caused the positive result. Mother never acknowledged that she
had a substance abuse problem, which interfered with her ability to benefit
from drug treatment and placed her at continued risk for relapse.4
4 Mother contends that the juvenile court “appeared overly concerned”
with her lack of progress in fulfilling her obligation to reunify with C.C. and
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During her life, C.C. spent approximately a month in Mother’s custody.
Tellingly, after the Agency removed C.C. due to Mother’s relapse, C.C.’s
caregivers immediately took C.C. to a doctor who diagnosed C.C. with a right
ear bacterial infection, cough, and candida diaper rash. Conditions which
Mother presumably ignored or failed to detect while she cared for C.C. The
Agency determined that Mother had cared for C.C. while under the influence
of methamphetamine and that Mother’s struggle with substance abuse
impacted her ability to parent and provide C.C. with safety and stability. A
“significant attachment from child to parent results from the adult’s
attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, Mother’s unresolved mental health issues and continued struggle with
substance abuse negatively impacted the nature of Mother’s contact with
C.C. during visitation and the formation of a significant attachment with
C.C. (Caden C., supra, 11 Cal.5th at p. 639 [parent’s struggles directly
relevant to the “ ‘ “positive” or “negative” effect of interaction between parent
and child’ ” and “indirectly to the harm of removing such interactions from
the child’s life”].)
It is undisputed that Mother has had positive, age appropriate, and
affectionate interactions with C.C. during visitations. Among other things,
the two played peek-a-boo, sang songs, reviewed number flash cards, and
sang the ABC’s. The social worker, however, also related that at times
Mother “appeared paranoid during visits and has been distracted with other
failure to complete all programs. We disagree. The juvenile court could
properly consider Mother’s failure to fulfill case plan requirements and
“sacrifice everything and anything for the child” as these facts related to
Mother’s continued denial of a substance abuse problem and how this
continued denial impacted the beneficial nature of her relationship with C.C.
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‘legal issues[.]’ ” C.C.’s caregivers also reported that Mother occasionally
would discuss her legal issues and needed to be redirected to engage with
C.C. Additionally, the record does not show that Mother contacted C.C.’s
caregivers outside scheduled visitations to ask, for example, about the results
of C.C.’s medical or dental appointments, C.C.’s likes and dislikes, or how
C.C. did in daycare.
In her unsworn statement made during the contested hearing, Mother
claimed that C.C. constantly asked Mother to hold her, appeared heartbroken
and cried because she could not be with Mother, and related that the
maternal aunt said C.C. always asked about Mother. The social worker and
maternal aunt, however, did not corroborate these claims. Rather, the social
worker noted that C.C. did not ask for Mother in Mother’s absence or show
emotional distress at the end of visitation. We found no evidence in the
record to substantiate Mother’s claim that C.C. talked about Mother or asked
for Mother between visits. (Caden C., supra, 11 Cal.5th at p. 632 [courts
often consider how children feel about, interact with, look to, or talk about
their parents].) Mother’s occasional detachment during visitation and C.C.’s
lack of distress when parting with Mother and while away from Mother
support a conclusion that C.C. did not have an emotional attachment to
Mother.
In summary, substantial evidence supports the family court’s factual
finding that Mother did not prove the existence of a beneficial parent-child
relationship. Stated another way, the evidence does not compel a finding in
favor of Mother as a matter of law that a beneficial parent-child relationship
existed. (Breanna S., supra, 8 Cal.App.5th at p. 647.)
Because substantial evidence supported the juvenile court’s finding
that no beneficial parent-child relationship existed, we need not consider
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whether the juvenile court abused its discretion when it found that no
compelling reason existed for determining that termination of parental rights
would be detrimental to C.C. (Breanna S., supra, 8 Cal.App.5th at pp. 646-
647 [“The court’s decision a parent has not satisfied [the parent-child
relationship exception] burden may be based on any or all of the component
determinations”].) Nonetheless, even assuming C.C. benefitted from her
relationship with Mother, Mother presented no evidence showing that
termination of that relationship would harm C.C., or that the security and
stability of a new home would not outweigh the loss of this relationship.
(Caden C., supra, 11 Cal.5th at p. 633.) Instead, the social worker, who had a
master’s degree in social work and training in assessing a child’s permanent
plan, opined that termination of parental rights would not be detrimental to
C.C. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 [social workers
are frequently recognized as experts in selecting children’s permanent plans];
In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 (Beatrice M.) [court has
discretion to determine whether witness is qualified to testify as expert and
this determination will not be disturbed absent abuse of discretion].)
Mother did not challenge the juvenile court’s finding that C.C. was
specifically adoptable, with prospective adoptive parents who were prepared
to offer her a safe and loving home on a permanent basis. The social worker
noted that C.C. appeared happy and comfortable with the relative caregivers,
that C.C. identified their house as “her ‘forever home,’ ” and referred to the
caregivers as “ ‘mommy,’ ‘daddy,’ and ‘sissy.’ ” It was well within the
boundaries of the juvenile court’s discretion to find that the benefits of
adoption outweighed any detriment from terminating Mother’s relationship
with C.C. We therefore affirm the juvenile court’s order as we find no
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evidence of exceptional circumstances requiring application of the parent-
child relationship exception to the termination of Mother’s parental rights.5
DISPOSITION
The order terminating appellant’s parental rights is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
5 Mother suggests a permanent plan of legal guardianship instead of
adoption would have allowed C.C. to remain in a stable home with her
maternal aunt, while also benefitting from continuing the positive
relationship with Mother. However, because Mother’s relationship with C.C.
did not place her within the parent-child relationship exception, “it
necessarily follows that the juvenile court correctly determined that adoption
was the appropriate permanent plan for” C.C. (Beatrice M., supra, 29
Cal.App.4th at p. 1420.)
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