Filed 1/8/16 In re A.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.B., a Person Coming Under the
Juvenile Court Law.
D068019
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518921)
Plaintiff and Respondent,
v.
KRISTIN K.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sharon L. Kalemkiarian, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, and John E. Philips, Chief Deputy
County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and
Respondent.
I.
INTRODUCTION
Kristin K. (Kristin) appeals a judgment terminating her parental rights to her
minor daughter, A.B. Kristin contends that the juvenile court erred by failing to apply the
beneficial relationship exception to termination of parental rights (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i)).1 We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. A.B.'s initial detention
On February 26, 2014, law enforcement officers contacted Kristin for violating a
restraining order that prohibited her from having contact with her mother. According to
the police report, Kristin appeared to be actively psychotic. She believed that words on
paper were changing, saw sinkholes swallowing things up, and had a doll in her
possession that she believed was a real baby. Law enforcement officers transported
Kristin to County Mental Health for evaluation and treatment. She was committed to
the hospital pursuant to a 72-hour mental health hold.
While hospitalized, Kristin learned that she was in the late stages of pregnancy.
She gave birth to a son, A.B., on March 3, 2014. The following day, Kristin's mental
health hold was extended. Medical records revealed that Kristin's "speech and thought
1 Unless otherwise specified, all subsequent statutory references are to the Welfare
and Institutions Code.
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process was 'loose and disorganized.' " She was diagnosed with " '[s]chizophrenia,
chronic paranoid type, with acute exacerbation, cannabis abuse.' "
On the day of his birth, the San Diego County Health and Human Services
Agency (the Agency) received a child welfare hotline referral concerning A.B.
According to the referral, Kristin was homeless and had no provisions for A.B. Kristin
reportedly stated that she " 'knew the baby was a boy because he was having sex with her
while inside of her.' " She also indicated that " 'the father did not want the boy because
he didn't want anyone inside the mother but him.' "
A County Mental Health case manager informed an Agency social worker that
Kristin was aggressive at times and that she had hit her maternal grandmother. The case
manager also informed the social worker that Kristin was not compliant with her
medication regime, had previously left residential placements, would make bizarre
statements, had a limited support network, and was unable to manage her resources.
On March 6, the Agency filed a petition on behalf of A.B. pursuant to section
300, subdivision (b). In the petition, the Agency alleged that there was substantial risk
that A.B. would suffer serious physical harm or illness due to Kristin's inability to care
for him because of her mental illness. At a detention hearing the following day, the
court made a prima facie finding on the petition and detained A.B. in out-of-home care.
B. Reunification efforts
In April 2014, Kristin began to have visitation with A.B. and also began to
receive reunification services pursuant to a case plan. Throughout the reunification
period, Kristin was unable to make significant progress toward achieving the objectives
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in her case plan. She attended just one therapy session, was unable to participate
effectively in a parenting class, did not participate in her psychological evaluation, made
nonsensical statements to the social worker, and displayed aggressive behavior toward
staff at the care facility at which she was residing. She visited A.B. only sporadically,
and due to the number of missed visits, the visitation center terminated services.
In October 2014, the court appointed a guardian ad litem to act on Kristin's
behalf, in light of Kristin's inability to understand the dependency proceedings. In
November 2014, at the six-month hearing, the trial court terminated services and set the
case for a section 366.26 hearing.
C. The section 366.26 reports
In a March 3, 2015 section 366.26 report, the Agency recommended that Kristin's
parental rights be terminated and that the court establish adoption as A.B.'s permanent
plan. The report stated that Kristin had not visited A.B. regularly and that she did not
occupy a parental role in A.B.'s life.
In the report, the Agency documented Kristin's recent supervised visits with A.B.
During one visit, Kristin referred to A.B. as " 'ugly' " and made inappropriate comments
to a social worker. During a visit on December 23, A.B. spent most of the visit playing
with toys by himself and had no visible reaction when Kristin left. Kristin missed a
December 30 visit. During a January 16, 2015 visit, Kristin held A.B. in an awkward
position that caused both the social worker and the visitation monitor to become
concerned for A.B.'s safety. At the end of the visit, A.B. showed no response to Kristin's
departure.
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On January 23, 2015, Kristin spent a portion of the visit speaking to the social
worker and the visitation monitor. Her statements were difficult to follow. During the
visit, Kristin declined to play with toys with A.B. or to burp him after he ate. Kristin
missed another visit on January 30.
On February 6, Kristin arrived at her visitation session with A.B. with a five-inch
hole in her pants that revealed that she was not wearing underwear. Kristin did not
follow any of the visitation monitor's suggestions to play with toys or look at books with
A.B. Approximately 30 minutes into the visit, A.B. motioned for the monitor to take
him from Kristin. Kristin began to take A.B. to the monitor. The monitor encouraged
Kristin to interact with A.B., and Kristin resumed the visit. Kristin left the visit early.
In addendum reports filed on March 17 and April 15, the Agency noted that
Kristin had not visited A.B. since February 13, despite numerous attempts by the social
worker to facilitate visitation. The reports also detailed instances in which Kristin made
bizarre statements to the Agency social worker or appeared to be confused concerning
visitation arrangements.
D. The section 366.26 hearing
The trial court held a section 366.26 hearing on April 29. The court did not hear
any live testimony, but received in evidence the March 3 section 366.26 report,
addendum reports of March 17 and April 15, a March 17, 2015 report from a court-
appointed special advocate, and the curriculum vitae of an Agency social worker.
The court found by clear and convincing evidence that it was likely that A.B.
would be adopted if parental rights were terminated. The court further found that
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Kristin had not regularly visited A.B., noting that she had not visited him for two and
one-half months prior to the section 366.26 hearing. In addition, the court stated that it
appeared that Kristin was unable to parent A.B., that she made negative comments
about him, and that she did not appear to know how to interact with him. The court
found that the beneficial relationship exception to the termination of parental rights did
not apply. Accordingly, the court terminated Kristin's parental rights and referred A.B.
to the Agency for adoptive placement.
Kristin's guardian ad litem filed a timely notice of appeal from the judgment
terminating her parental rights to A.B.
III.
DISCUSSION
A. The trial court did not err when it found that the beneficial parent-child
relationship exception did not apply in terminating Kristin's parental rights
Kristin claims that the trial court erred in finding that the beneficial parent-child
relationship exception did not apply to preclude the termination of Kristin's parental
rights.
1. Governing law and standard of review
If a dependent child is adoptable, the court must terminate parental rights at the
section 366.26 hearing unless the parent proves the existence of a statutory exception to
adoption. (§ 366.26, subd. (c)(1).) An exception exists if "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "A parent asserting the parental benefit
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exception has the burden of establishing that exception by a preponderance of the
evidence." (In re J.C. (2014) 226 Cal.App.4th 503, 529.)
With respect to the visitation prong, "[r]egular visitation exists where the parents
visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226
Cal.App.4th 201, 212.) The lack of regular visitation "fatally undermine[s] any attempt to
find the beneficial parental relationship exception." (Ibid.)
This court has interpreted "the 'benefit from continuing the [parent/child]
relationship' exception to mean the relationship promotes the well-being of the child to
such a degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents. In other words, the court balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer. If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed, the preference for adoption is overcome and the
natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567,
575.)
We review a trial court's finding as to whether "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship" for substantial evidence (§ 366.26, subd. (c)(1)(B)(i)). (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.)
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2. Application
There is ample evidence to support the trial court's finding that Kristin failed to
maintain "regular visitation" (§ 366.26, subd. (c)(1)(B)(i)) with A.B. Kristin did not visit
A.B. for a period of more than two months prior to the April 29, 2015 section 366.26
hearing. In addition, Kristin missed scheduled visits throughout February and March
2015, failed to return a social worker's telephone messages regarding visitation in March
2015, and told a social worker on March 30 that she was too busy with school to schedule
visits.
Her visitation prior to that time was also sporadic. The six-month status review
report states that Kristin did not attend visits consistently and often asked to end visits
early. A visitation center terminated visitation services for Kristin on July 30, 2014, due
to excessive unexcused absences. In short, there were "significant lapses in visits," (In re
I.R., supra, 226 Cal.App.4th at p. 212), and thus, there is substantial evidence to support
the trial court's finding that Kristin did not maintain "regular visitation and contact"
(§ 366.26, subd. (c)(1)(B)(i)) with A.B. sufficient to support the application of the
beneficial relationship exception.
Even assuming that Kristin had satisfied the regular visitation prong, there is
more than ample evidence to support findings that Kristin's relationship with A.B. was
not parental in nature and that her relationship with A.B. was not so beneficial so as to
outweigh the advantage that A.B. would gain through adoption. In fact, there is
virtually no evidence of a parent-child relationship. With respect to the parental
relationship, the record contains evidence that A.B. reacted to both Kristin and
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strangers in a similar manner. Also, Kristin required "constant supervision and support
from the staff at the visitation center." In addition, the record is replete with evidence
that Kristin's mental illness impaired her ability to parent A.B. During several visits
with A.B., Kristin made bizarre statements to A.B., and on one occasion called him
" 'ugly.' " On at least two occasions, when visits ended and Kristin left, A.B. did not
show any response. Further, A.B. was removed from Kristin two days after he was
born and since August 2014, A.B. had been residing with a family that was committed
to adopting him. In short, the record contains overwhelming evidence that A.B. did not
have a positive, substantial, emotional connection to Kristin as a parent that would
outweigh the benefits A.B. would obtain through adoption.
Accordingly, we conclude that the trial court did not err when it found that the
beneficial parent-child relationship exception does not apply to preclude the termination
of Kristin's parental rights.
B. The appeal is frivolous
"Counsel and their clients have a right to present issues that are arguably correct,
even if it is extremely unlikely that they will win on appeal." (In re Marriage of Flaherty
(1982) 31 Cal.3d 637, 650.) However, an issue raised "despite the fact that no reasonable
attorney could have thought it meritorious ties up judicial resources and diverts attention
from the . . . work at the appellate courts." (Ibid.) In addition to wasting judicial
resources, a "frivolous [appeal] affects the lives of children . . . who are interested in a
prompt resolution of their custody status." (In re Michael G. (2012) 203 Cal.App.4th
580, 595.)
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In this case, for the reasons discussed in part III.A., ante, there was plainly
substantial evidence to support the trial court's findings that Kristin had not proven the
applicability of the beneficial relationship exception. Further, no reasonable attorney
could have thought Kristin's appeal to be meritorious. While we decline to impose
sanctions, we conclude that Kristin's appeal is frivolous. (See In re Marriage of Flaherty,
supra, 31 Cal.3d at p. 650 [appeal should be held to be frivolous "when any reasonable
attorney would agree that the appeal is totally and completely without merit"].)
IV.
DISPOSITION
The judgment terminating Kristin's parental rights is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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