In re C.S. CA4/3

Filed 8/25/21 In re C.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 THREE
In re C.S., et al, Persons Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G059993
Plaintiff and Respondent,
(Super. Ct. Nos. 18DP1069 &
v. 18DP1070)
GUADALUPE C., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Jeremy
Dolnick, Judge. Affirmed.
Jamie A. Moran, 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.
No appearance for the Minors.
The court terminated Guadalupe C.’s (Mother) parental rights to her two
children C.S. and A.C., following a Welfare and Institutions Code section 366.26
permanency hearing (permanency hearing).1 Mother asserts the court abused its
discretion when it declined to apply the parent-child beneficial relationship exception
(benefit exception) to the termination of parental rights. We affirm the judgment.
FACTS
In early October 2018, the Orange County Social Services Agency (SSA)
took C.S. and A.C. into protective custody after Mother and A.C. tested positive for
methamphetamine after A.C.’s birth. A.C. required treatment in the hospital’s Neonatal
Intensive Care Unit, having symptoms of high temperatures, excessive sleeping, and
episodes of irregular breathing. Because she had difficulty feeding, A.C. needed a
nasogastric tube in her nose for nutrients. Mother self-reported using methamphetamine
during her pregnancy and admitted she did not receive any prenatal care.2
SSA’s original petition alleged, under section 300, subdivision (b)(1), that
the parents had unresolved histories of substance abuse, domestic violence, and criminal
activity that posed a risk of harm to the children. The petition alleged Mother may have
unresolved/untreated mental health issues. The paternal grandmother (Grandmother)
reported Mother hit herself while pregnant with C.S. and once pushed C.S. into the street
so he would be hit by a car. Furthermore, the parents lacked safe and stable housing.
Mother self-reported she had been sleeping in a van parked outside Grandmother’s home.
The petition asserted Father filed a restraining order protecting himself,
Grandmother, and C.S. from Mother, who had previous arrests for violent offenses. In
addition, Grandmother had cared for C.S. since his birth one year ago (October 2017).
1 All further statutory references are to the Welfare and Institutions Code.
2 The children’s father (Father) is not a party to this appeal, and we limit our
recitation of the facts accordingly.
2
Grandmother reported Mother and Father initially lived with C.S. in her home. However,
she evicted Mother in January 2018, after she left C.S. unattended for several hours while
Mother went out looking for drugs. She later evicted Father after he failed to find
employment or provide care for C.S. Grandmother suspected he was using drugs with
Mother.
After SSA detained the children, the court ordered six hours of supervised
visitation each week. For six months, neither Mother nor Father visited their children.
Before the jurisdictional hearing, the social worker reported Mother had a
five-year history using methamphetamine and completed a substance abuse treatment
program when she was 19 years old. Mother claimed she was sober for two years before
using methamphetamine around the time of A.C.’s birth, which she conceded was a
mistake. The social worker reported the children’s half sibling H.C. was declared a
dependent of the court in February 2014 due to general neglect. The court terminated
family reunification services in 2017 and H.C.’s paternal grandparents were now her
legal guardians.
The social worker opined Grandmother was a good caregiver for C.S., but
SSA removed him from her home because a relative residing there had a family
maintenance case plan. Grandmother stated that due to her age it would be in C.S.’s best
interests to be placed with his paternal uncle who resided in Victorville, California. SSA
agreed with this assessment and placed C.S. with his paternal uncle and aunt in
Victorville and sent A.C. to live with non-related extended family members in
Bakersfield, California.
In November 2018, the court proceeded with the dependency case in the
parent’s absence and assumed jurisdiction over the children. A few months later, Mother
did not appear for the disposition hearing and the court denied her reunification services.
The court offered Father reunification services as to C.S. and scheduled a permanency
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hearing for A.C. The court ordered visitation, reducing the hours from six to four hours
per week.
I. A.C.’s Permanency Hearing Report
In early May 2019, the social worker prepared a report for A.C.’s
permanency planning hearing. A.C. (then seven months old) was thriving with her
caregivers. She was making positive developmental strides and had overcome some of
the negative effects of having methamphetamine in her system. A.C. and her caregivers
developed a strong bond, and they wished to adopt her. The social worker noted Mother
did not “make herself available” for the court-ordered visits (six hours per week) and
would not return the social worker’s telephone calls. Although Mother had one visit with
A.C. in mid-April 2019, her whereabouts had been unknown for most of A.C.’s life.
Mother contacted the social worker on March 13, 2019, to report she had
been sober for 45 days and she completed a parenting program. Mother stated she was in
the process of completing an anger management program through American Recovery
Center in Pomona. The social worker noted Mother did not have any documentation or
negative drug test results to support her claims of sobriety.
The social worker opined, “Overall, it would appear that although [Mother]
is making some undocumented progress, she . . . remains in a residential treatment
program, is not yet working, and has an unresolved anger management history wherein
her criminal history gives light to her personal anger issues. [¶] In light of the
aforementioned, it does not appear [Mother] is truly committed to the child. She has not
remained in the life of the child, nor did she make any attempts to have visits with the
child until March 2019. Even then, she did not follow through in arranging a visit until
April 2019. . . . Meanwhile, [A.C.’s] life has gone on without her mother or father being
involved . . . and she is placed in a family that has been by her side, day in and day out.
They have ensured that she visits with the doctor, have been there when she is sick, and
have embraced her as if she was their own. They have given of themselves for the
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betterment of the child that they have come to love so dearly. [¶] Therefore, the
undersigned respectfully recommends [the court terminate parental rights allowing the
child to be] freed for adoption and to have a stable and loving home.”
The court continued A.C.’s permanency hearing until May. Meanwhile,
Mother filed a section 388 petition to reinstate reunification services with both children.
This prompted the court to continue A.C.’s hearing until the end of June.
II. Six-Month Review Hearing for C.S.
At the end of June 2019, the social worker prepared a six-month review
hearing status report concerning C.S. The social worker noted that during this past period
of supervision, Father failed to make progress on his case service plan and was
incarcerated for a felony. The social worker recommended termination of his services
and that the court schedule a permanency hearing for C.S.
Mother’s first visit with C.S. was in March 2019, and she left the scheduled
visit early. Due to the distance between Mother and C.S., the caregivers arranged for
visits at a halfway point. Mother would also sometimes have unscheduled visits with
C.S. when the caretakers went to visit Grandmother. The social worker concluded
Mother needed to work on mitigating the factors that brought C.S. into the custody of the
court and to visit C.S. regularly. She interacted well with C.S. and performed parental
tasks. The social worker added that C.S. was doing well in the care of his paternal aunt
and uncle. She observed C.S. bonding with his caregivers. They were willing to adopt
him.
The social worker noted Mother had recently also begun visiting A.C.
every other week. Mother had been asking the caregivers for food and ending visits two
hours early because the baby was “fussy.” A.C.’s caregivers noted Mother became
anxious when the baby was fussy or would not feed easily from the bottle. Mother
dropped what appeared to be a vape pipe on the floor during one of the visits.
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The court continued the hearings scheduled for the children’s cases to be
heard the same time as Mother’s section 388 petition. The social workers filed
addendum reports in both cases. One social worker noted that after two shortened visits
in March, Mother did not visit C.S. until the end of May and then once in mid-June. The
social worker expressed concern Mother “was not visiting consistently with the child to
establish and maintain a bond with the child.”
III. July 2019 Hearing–Start of Mother’s Services
At the six-month review hearing, held at the end of July 2019, the court
considered Mother’s section 388 petition. The social workers filed addendum reports
recommending the court grant Mother’s petition because her two most recent visits with
the children had gone well. After considering Mother’s testimony, the court granted
Mother’s request for reunification services and scheduled a 12-month review hearing.
IV. 12-Month Review Hearing
In September 2019, the social worker submitted a report regarding both
children (C.S. was nearly 2 years old, and A.C. was 11 months old). Mother continued to
visit with C.S and A.C., although the social worker voiced concern the contact was not
consistent “which will prevent [Mother] from bonding with the children.” Mother’s
visits with C.S. were more positive than those with A.C. Mother was employed and
working on services, however, she struggled to demonstrate her sobriety. The court
continued the hearing to November 2019.
In an addendum report prepared in November 2019, the social worker
recommended the court terminate reunification services and schedule a permanency
hearing for both children. The caregivers for both children agreed to meet Mother for
visits at halfway points to help Mother. The social worker reported that for the past two
months, Mother “maintained a positive and consistent relationship” with her children.
However, Mother, who was employed part-time at a restaurant, relied on public
transportation to go to work and comply with case plan services. The social worker noted
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Mother’s changing work schedule sometimes interfered with her ability to visit.
Mother’s schedule would change with as little as a day’s notice. Mother told the social
worker this was the reason why she missed several visits with C.S. in October and that
“the fires” stopped her from visiting A.C.
The social worker included information provided by visitation monitors.
During a visit in August 2019, Mother constantly checked the time “as if waiting for the
visit to end” and left one hour early. When A.C. became fussy, Mother gave the child to
the caretaker’s family and appeared to have no patience with A.C. It was reported that
Mother was not trying to interact with A.C. during visits, and she failed to call or text to
check on how her child was doing. The social worker reported there were “concerns
[Mother was] not bonding with [A.C.] and [was] not making an effort to create a bond
with the child.” A different monitor offered a similar opinion following three visits in
September. Mother was described as not being affectionate and wanting A.C. to sleep
the entire time. She cancelled visits stating she was too tired. During one visit in
September, A.C. became sick and her caretakers took her to the emergency room when
the visit was over. Mother did not offer to join them at the hospital. She did not later
inquire if A.C. felt better. In October, A.C.’s caregiver had a one-year-old celebration
and stated she was disappointed Mother did not wish A.C. a happy birthday or ask how
she was doing.
Mother’s visits with C.S. were inconsistent but more positive. The
caregivers reported that although Mother missed many visits, she would FaceTime with
him three times per week for a few minutes.
The social worker stated Mother had “made no efforts to resolve the issues
and concerns sustained in the petition.” She noted Mother “minimally participated” in
her case plan, she “tested positive for all [drug patch] tests, visited sporadically, and
lacked meaningful participation and affection during visits. She opined the prognosis for
reunification was minimal because Mother continued “to show lack of motivation and
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effort” to obtain sobriety and had “failed to prioritize her visitation with the children”
resulting in minimal contact with them.
The court continued the hearing several times. In preparation for a hearing
scheduled for February 2020, the social worker prepared an addendum report. She
observed Mother during some visits with the children. She stated her recommendation to
terminate services remained unchanged. Mother was participating in her case service
plan. She was testing negative and starting therapy. The social worker wrote that in
regard to visitation, she and another social worker observed Mother “to be overwhelmed
with managing the children’s behavior.” She stated the following: “[M]other places
effort in presenting herself to the visits but does not plan accordingly to arrive on time
and be prepared for the visits by having adequate provisions for the children. On the
other hand, [M]other praised the children appropriately and displayed age appropriate
affection with the children during the visits.” The court continued the matter to April
2020.
In her April addendum report, the social worker stated Mother was visiting
C.S. on Wednesdays and A.C. on Saturdays. There were plans to arrange a joint visit
with both children. The social worker attended a supervised visit with A.C. and
expressed concern after seeing Mother was not attentive and she struggled to soothe A.C.
(then 16-months old). The social worker added, Mother was “not patient with [A.C.] and
[did] not take criticism well.”
A.C.’s caretaker noted Mother, “still struggles to have an actual bond” with
A.C. and she was not really interactive with her. The caretaker observed Mother
typically kept A.C. in her stroller during visits and tried to keep her sleeping. The
caretaker added, Mother’s attitude and behavior around the children changed when she
was being monitored by the social worker. She believed Mother was not making enough
effort to change or do better during visits.
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The social worker reported she observed Mother’s visit with both children
at the end of February 2021. She saw Mother attempted to be active with her children,
but in doing so she was not able to provide appropriate safety measures for both. For
example, sometimes when Mother engaged with C.S. she left A.C. unattended in places
the baby could fall. Mother relied on items provided by the caregivers for the children’s
needs. The social worker opined Mother exhibited minimal affection and spoke to the
children “directly without a nurturing tone.”
V. Proceedings During the Covid-19 Pandemic Shut Down
On April 1, 2020, the date set for a combined 12- and 18-month review
hearing, the juvenile court ordered the matter continued due to the Covid-19 pandemic.
In 2020, the court ordered multiple continuances for the same reason on May 7, June 22,
August 10, August 20, and September 10.
SSA continued to file reports during this period, noting the pandemic
interfered with Mother’s ability to see her children. In May 2020, the social worker
wrote Mother reported she was calling A.C. every two days to speak with her using video
calls. Mother mentioned the calls do not last very long (approximately six minutes)
because of A.C.’s age and ability to stay engaged. Mother said she used video calls to
visit with C.S. every Wednesday. She reported these calls were “‘easier’” and lasted
longer (5 to 10 minutes) because her son talks and shared information with her.
In the social worker’s next report, filed at the end of June 2020, Mother
stated she called the children once a week, but the time had not increased because “the
children are distracted easily.” A.C.’s caregiver stated Mother usually asked to see the
child but did not ask any questions about her development, what she does during the day,
or engage with her. The caregiver mentioned Mother never called her to ask about A.C.
on non-visitation days. At the end of May, the caregiver reported A.C. did not recognize
Mother on the phone.
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C.S.’s caregiver told the social worker that Mother tended to call without
scheduling a visit, and if C.S. was asleep or unavailable, Mother would not call back.
The caregiver told Mother that C.S. would be available anytime during the day until 3:00
p.m., when he will be more alert and able to engage in the call. However, Mother
consistently called after 5:00 p.m. The social worker reported Mother was working on
her case plan but had tested positive for cocaine. The social worker stated this relapse
stopped plans, started before the pandemic, to progress Mother towards unsupervised
visits.
In early August 2020, the social worker reported she informed Mother all
plans for in-person visitation were stalled because the counties of Los Angeles and San
Bernardino imposed strict restrictions to stop the spread of COVID-19. Mother
continued to visit the children using video calls. She stated C.S. had begun to hide out of
the camera’s view and would cry, prompting Mother to play a video game on her iPad for
him to see. The social worker recommended she try reading with C.S. instead. Mother’s
calls with A.C. were shorter than those with C.S. Mother typically used her time with
A.C. to watch her play rather than interact with her.
The children’s caregivers reported Mother was missing calls with the
children. A.C.’s caregiver reported Mother missed several weeks, and when she did call,
she made no effort to bond with her child. The caregiver stated that when she saw
Mother at the end of July, she appeared to be very thin and under the influence of
something. When the caregiver asked Mother why she had not called A.C. for a month,
she responded she was busy working.
Similarly, C.S.’s caretaker noticed a decline in the frequency of calls and
Mother’s efforts to engage with her child. The caretaker stated Mother refused to text
beforehand to schedule a call, and she usually called when C.S. was napping. The calls
lasted approximately 10 to 15 minutes and C.S. initially resisted speaking with Mother.
The caregiver noticed C.S. was hiding from the camera. The caregiver stated she tried to
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redirect C.S. to engage with Mother, who would play videos through her tablet to get his
attention. C.S.’s caregiver noted Grandmother believed Mother and Father were back
living together. Father borrowed Grandmother’s truck and disappeared with Mother for
two weeks. Mother vehemently denied these allegations. The social worker concluded
by stating Mother claimed to be progressing with her case plan, but she tested positive
once for methamphetamine.
At the end of August 2020, the social worker stated visitation had
decreased to once or twice a month, and the video calls were short. Mother struggled to
engage with her children and admitted she called less due to feeling badly about the
quality of the visits. The social worker stated she would resume in person visits as soon
some of the pandemic restrictions were lifted.
In September 2020, the social worker noted the quality of Mother’s
visitation efforts had not improved. The caregivers reported Mother struggled to “engage
effectively” with the children. A.C.’s caregiver stated the child (then two years old) had
no interest in Mother during the calls. C.S.’s caregiver stated the child (then three years
old) was not responsive during calls.
The juvenile court conducted the combined 12- and 18-month review
hearing on September 24, 2020. The court determined SSA provided reasonable
reunification services, but the parents made minimal progress at alleviating the causes
necessitating the children’s placement. It terminated reunification services and scheduled
a permanency hearing in January 2021. Pursuant to the parties’ stipulation, the court
ordered SSA to continue providing services to Mother until the permanency hearing date.
It determined Mother could resume in-person visits with the children in public locations,
with all parties wearing masks. Mother was to have one visit every other week with each
child and could also continue with telephone and video calls.
The social worker’s January 2021 report stated Mother had a positive test
result for methamphetamine in mid-December. Mother and Father were involved in a
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domestic violence incident at the end of December. The social worker stated that when
she told Mother her visit on December 16 would be cancelled due to A.C.’s recovery
from a tonsillectomy. Mother responded by stating that because she had “so much going
on” she forgot about it. Mother admitted she had not asked the caregiver about A.C.’s
recovery or scheduled a virtual visit with her child. She indicated she would call soon to
see how A.C. was doing.
Mother resumed her separate in-person visits with each child twice a month
(each visit lasting five hours). The social worker reported Mother visited but still failed
to ask about her children’s well-being.
The social worker recommended termination of parental rights and a
permanent plan of adoption. Each child had lived with their caretakers for over two years
(since November 2018). The children were healthy and developmentally on target. Their
caregivers wanted to adopt them.
The court continued the hearing to March 2021. The social worker
prepared an addendum report in March, stating Mother missed visits in January because
she tested positive for COVID 19. The social worker offered Mother virtual visits, but
Mother failed to contact the caregivers. Thereafter, Mother missed visits because she
was incarcerated due to an outstanding warrant.
VI. Permanency Hearing
On March 8, 2021, the court held the permanency hearing and considered
Mother’s argument the court should apply the benefit exception. The court determined
the children were adoptable and that no exception to the statutory preference for adoption
applied in this case. The court terminated parental rights and ordered the children placed
for adoption.
DISCUSSION
Mother asserts the juvenile court erred by terminating her parental rights.
She provides the following argument: “Though [M]other was not able to reunify with
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[her children] through her court-ordered services, she maintained regular and consistent
visitation with them — a process hindered by the Covid-19 pandemic — and did what
she could to build her parental relationship with each of them, within the limits of time
placed on her by the juvenile court.” Mother contends the record “amply shows the
challenges” she faced, that she clearly loves her children, and she “sought to maintain her
parental connection with them through visitation.” She explains a “number of
complicating factors inhibited this process,” including the children’s placement in homes
far away from her and she relied on public transportation, the pandemic restrictions, and
her work schedule. She concludes that “[g]iven all the factors involved in this case” the
court erred in refusing to apply the benefit exception. We disagree. There is a large body
of well settled case law holding application of the benefit exception requires more than
evidence a parent faced challenges, hardships, and visitation restrictions. What about
C.S.’s and A.C.’s best interests?
I. Benefit Exception
As recently stated by our Supreme Court in In re Caden C. (2021)
11 Cal.5th 614, 631 (Caden), “In interpreting the exceptions, we are guided by the
relevant statutory provisions, read in context. [Citation.] In particular, we take account
of the connection the statute establishes—when an exception applies—between the ‘best
interest’ of the child and the continuation of parental rights. Parallel to the provision
detailing the exceptions [citation], the statute provides that ‘[i]f the court finds that
adoption of the child or termination of parental rights is not in the best interest of the
child, because one of [those exceptions] . . . applies, the court shall’ follow a process to
select among permanent plans other than adoption. [Citation.] In other words, when a
parent establishes that one of the exceptions applies, adoption or termination is not ‘in the
best interest of the child.’ [Citations.]”
“The exception at issue in this case is limited in scope. It applies where
‘[t]he court finds a compelling reason for determining that termination would be
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detrimental to the child due to one or more of the following circumstances: [¶] (i) The
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.’ [Citation.] From the statute, we readily discern
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
understanding these elements, we are guided by what has become the seminal decision
interpreting the exception, the Fourth District Court of Appeal’s opinion in In re Autumn
H. (1994) 27 Cal.App.4th 567 (Autumn H.). The court there articulated the meaning of
the exception in an opinion that has guided the thousands of Court of Appeal decisions on
the exception since. [Citations.] What the appellate court emphasized in Autumn H. is a
crucial aspect of the trial court’s responsibility in these cases: in assessing whether
termination would be detrimental, the trial 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. [Citation.] By making this decision, the trial court
determines whether terminating parental rights serves the child’s best interests.” (Caden,
supra, 11 Cal.5th at pp. 631-632.)
II. Standard of Review
Appellate courts have offered different opinions about what standard of
review to apply to the three elements of the benefit exception. The Supreme Court
resolved this issue in the Caden case, holding: “We agree with the general consensus: a
substantial evidence standard of review applies to the first two elements. The
determination that the parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is
essentially a factual determination. It’s likewise essentially a factual determination
whether the relationship is such that the child would benefit from continuing it. [¶] The
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third element—whether termination of parental rights would be detrimental to the child—
is somewhat different. As in assessing visitation and the relationship between parent and
child, the court must make a series of factual determinations. These may range from the
specific features of the child’s relationship with the parent and the harm that would come
from losing those specific features to a higher-level conclusion of how harmful in total
that loss would be. The court must also determine, for the particular child, how a
prospective adoptive placement may offset and even counterbalance those harms. In so
doing, it may make explicit or implicit findings ranging from specific benefits related to
the child’s specific characteristics up to a higher-level conclusion about the benefit of
adoption all told. All these factual determinations are properly reviewed for substantial
evidence. [Citation.] [¶] Yet the court must also engage in a delicate balancing of these
determinations as part of assessing the likely course of a future situation that’s inherently
uncertain. The decision . . . does require assessing what the child’s life would be like in
an adoptive home without the parent in his life. [Citation.] The court makes the
assessment by weighing the harm of losing the relationship against the benefits of
placement in a new, adoptive home. And so, the ultimate decision—whether termination
of parental rights would be detrimental to the child due to the child’s relationship with his
parent—is discretionary and properly reviewed for abuse of discretion.” (Caden, supra,
11 Cal.5th at pp. 639-640.)
III. Visitation & Contact
“The first element—regular visitation and contact—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’ [Citation] but certainly not to punish parents or reward them for good
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behavior in visiting or maintaining contact—here as throughout, the focus is on the best
interests of the child. [Citation.]” (Caden, supra, 11 Cal.5th at p. 632, italics added.)
Here, the juvenile court stated, “although the argument is COVID got in the
way, we have to recognize this case has been around essentially since [A.C.]’s birth . . .
[in October 2018] . . . and [we] had all of 2019, and we had the first few months of 2020
to demonstrate regular and consistent contact. When I go back and I look . . . I just don’t
find that either parent can meet that burden.” We conclude the record contains
substantial evidence to support the court’s conclusion.
Mother started this case lacking a strong emotional connection to either
child. This is evidenced by Mother’s decision to not seek prenatal care for A.C., and
Mother’s eviction from Grandmother’s home leaving baby C.S. behind, soon after his
birth. Grandmother reported she stepped up to become C.S.’s primary caregiver for the
first year of his life because Mother would leave the baby unattended when she went out
looking for drugs.
It is undisputed Mother did not visit her children for the first six months of
this dependency case, a compelling sign of a detachment. In the 11 months before the
pandemic, Mother failed to visit her children for weeks at a time, unexpectedly cancelling
visits or cutting them short. Although Mother engaged in parental duties, such as
changing diapers and feeding her children during visits, the social workers and caregivers
consistently described Mother’s lack of effort and engagement during visits, as well as
Mother’s struggles bonding with A.C. Thus, for more than a year pre-COVID, there was
little evidence suggesting Mother’s visits with her very young children resulted in the
formation of a strong emotional parental attachment. At this point, Mother’s relationship
lacked the depth and quality required for the benefit exception.
We are unpersuaded by Mother’s assertion the COVID-19 pandemic
restrictions prevented her from “maintain[ing] her parental connection.” We
acknowledge video visits are generally a poor substitute for in person visitation.
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However, if Mother had, within the prior year and one-half, managed to cultivate a
stronger emotional bond with her young children, then frequent video calls would have
been helpful in enforcing those established familial ties. For the sake of argument, if we
accepted Mother’s claim, she successfully started cultivating a relationship with her
children, then the record shows she squandered the opportunity to reinforce those new
bonds. She did not take advantage of all the available video calls, which given the unique
circumstances of life during the pandemic, further demonstrates Mother’s lack of
emotional connection to her children. The pandemic restrictions meant Mother’s children
were isolated from the outside world, yet she made little effort to interact or even try to
play with them. Instead, she created further instability and negativity by frequently
missing calls, unpredictably calling when the children were unavailable or asleep, and
giving up by prematurely ending the call when the children were distracted.
Consequently, by the time the pandemic restrictions were about to be lifted, A.C. did not
recognize Mother, and C.S. tried to avoid contact by hiding his face or crying when
Mother called.
When in person visitation resumed in September 2020, Mother tried to be
consistent, but visits were suspended when she tested positive for the virus and was
briefly incarcerated. Faced again with the prospect of virtual visitation, Mother did not
rise to the challenge or make the effort needed to maintain a regular and consistent
presence in her children’s lives.
In light of the above, we conclude substantial evidence supported the trial
court’s determination Mother failed to satisfy the benefit exception’s first prong by
maintaining regular visitation and contact with children. During the case, the social
workers stressed with Mother the importance of visiting and keeping in contact with her
young children. It is telling that in over two years, the social worker never reported the
children asking to see Mother. Due to Mother’s long absences and failure to prioritize
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contact with them, the children never had a chance to develop a strong emotional
attachment to her.
Because Mother failed to meet her burden of proof to show she regularly
visited and contacted her children, we need not address the second prong of the benefit
exception, which requires the court to determine if the children would benefit from
continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i); In re Amanda D. (1997)
55 Cal.App.4th 813, 821 [both prongs must be satisfied for the exception to apply].)
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
MOORE, 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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