In re Gavin R. CA5

Filed 11/5/21 In re Gavin R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

In re GAVIN R., a Person Coming Under the
Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY F082895
SERVICES AGENCY,
(Stanislaus Super. Ct.
Plaintiff and Respondent, No. JVDP-19-000123)

v.
OPINION
AMANDA R.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Stanislaus County. Annette Rees,
Judge.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
 Appellant Amanda R. challenges the juvenile court’s determination that the
beneficial parent-child relationship exception to adoption did not apply to the
circumstances of her dependency case. (See Welf. & Inst. Code, § 366.26,
subd. (c)(1)(B)(i).)1 We reject her claim and affirm.
FACTS
Circumstances Surrounding Removal
In February 2019, the Stanislaus County Community Services Agency (Agency)
received a referral alleging Amanda R. (Mother) and her newborn, Gavin R. tested
positive for methamphetamines and opiates at Gavin’s delivery the day prior. Mother
admitted to using methamphetamine daily during her pregnancy with Gavin. However,
toward the end of the pregnancy, Mother claimed she reduced her methamphetamine use
to “a few times a week.” Previously, Mother would take 10 to 12 Vicodin pills per day
but reduced to “a few pills per day” near the end of the pregnancy.
Mother stated she lives with her new boyfriend, Scott A. and his father, Charles.
Scott A. told social workers he uses methamphetamine three to four times per week.
Mother expressed interest in voluntary family maintenance services (see § 16056,
subd. (b)) and signed a family agreement. Under the family agreement, Mother agreed
that neither she nor Scott A. could be with Gavin unsupervised unless approved by a
social worker. Scott A. and his father, Charles, both signed the family agreement.
Charles agreed to contact the social worker if he saw Mother or Scott caring for Gavin
while under the influence.
On March 14, 2019, a social worker conducted an unannounced visit to the
residence of Charles and Scott A., where Mother was staying with Gavin. The home was
dirty with trash, clothes and food “everywhere.” The social worker told Scott that she
had tried to contact Mother several times without success. Scott said Mother was at the

1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.

2.
Department of Motor Vehicles with Gavin. The social worker said the family agreement
was being violated since Charles was supposed to be supervising them.
The next day, a social worker conducted another unannounced visit. The home
was still dirty. According to the social worker, Mother was not participating in services,
nor staying in contact with the social worker, and was in violation of the family
agreement. Mother took a drug test that was positive for benzodiazepines and
oxycodone. Mother said she was taking Vicodin because she delivered via C-section.
Mother’s test also produced faint lines for methamphetamine and amphetamine.
On April 15, 2019, a social worker visited the home and found it to be clean.
Mother and Scott reviewed and signed a family maintenance case plan.
In May 2019, a social worker attempted to contact Mother and Scott on several
occasions. On May 23, 2019, emergency response social workers went to the home.
Charles said Mother and Scott no longer lived with him. Charles referred the social
worker to an apartment complex.
Social workers responded to the apartment complex and contacted Mother and
Scott. Mother said she was using methamphetamine daily and had used the previous
night. Social workers took Gavin into protective custody.
Initiation of Dependency Proceedings
On May 28, 2019, the Agency filed a dependency petition pertaining to Gavin,
who was two months old at the time. The petition alleged Gavin had suffered, or is at
substantial risk of suffering, serious physical harm or illness due to the inability of the
parent to provide regular care for the child due to the parent’s mental illness,
development disability, or substance abuse. 2 (See § 300, subd. (b)(1).)

2As to the alleged father, Jason M., the petition alleged that because his
whereabouts were unknown, he was unwilling or unable to provide for care of Gavin.
(See § 300, subd. (g).)

3.
 At a detention hearing on May 29, 2019, the court ordered Gavin detained. On
June 21, 2019, Gavin was placed with a foster family in the county. The foster family
reported Gavin was “doing well in placement and has been able to adjust appropriately.”
Gavin was “bonding well with the family” and he was “happy in the home.”
July 12, 2019 Report
In a report filed July 12, 2019, a social worker stated that, after the detention
hearing, Mother had demonstrated only “limited” efforts to engage in substance abuse
treatment. After completing an initial assessment, Mother was referred to a sober living
facility but “left treatment less than 24 hours later.” She then missed two appointments
with a substance abuse counselor. Mother had not reentered substance abuse treatment
by the time of the report.
The report also stated that Mother’s “interaction and parenting skills” at weekly
visits were “appropriate.”
August 7, 2019 Hearing
At a hearing on August 7, 2019, Mother’s counsel asked for a one-week
continuance. Counsel represented that “after this hearing today, [Mother is] going to go
to the agency, test for them, and meet with the SUD assessor .…” The court continued
the hearing to August 21, 2019. However, Mother did not go to the Agency and test or
meet with the SUD assessor with that day; nor did Mother appear at the continued
hearing on August 21, 2019.
September 4, 2019 Hearing
At a hearing on September 4, 2019, Mother’s counsel provided an offer of proof:
If Mother were called to testify, “she would absolutely say that she did, in fact, test for
the Agency last week,” and that she made “contact with the social worker, and that
contact was not recorded here in this report.” The court accepted the offer of proof as
evidence.

4.
 The court found the allegations of the petition to be true by a preponderance of the
evidence. The court ordered Gavin removed from Mother’s custody. The court granted
services to Mother.
February 7, 2020 Report
In a report filed February 7, 2020, the Agency recommended terminating Mother’s
reunification services. Mother claimed she completed hair follicle drug tests on
December 30, 2019, and on January 24, 2020. However, the lab reported that Mother
had, in fact, been a “ ‘no show’ ” to both appointments for testing. Mother did attend her
parenting classes and individual counseling sessions.
Mother visited Gavin two hours per week. The visits were described as
“appropriate.” The report noted that Mother would read to Gavin, provide age-
appropriate toys and feed him. Mother wanted to visit Gavin more, but the social worker
was reluctant to consider that because Mother failed to drug test.
Incident Report
In March 2020, the Agency filed an incident report from Nirvana Drug & Alcohol
Treatment Institute. The incident report stated that on March 12, 2020, Mother
completed an intake appointment. When Mother was asked to drug test, “she
immediately stated, ‘I can’t test, I have to go meet with my lawyer!’ ” Mother was
directed to return the next morning to drug test, but she did not do so.
Agency’s Change of Recommendation
At a hearing on May 27, 2020, counsel stated the Agency changed its position and
was now recommending continuing reunification services for Mother until July 23, 2020.
At a hearing a few weeks later, on June 17, counsel clarified that the Agency decided not
to recommend terminating services due to delays arising from COVID-19. The Agency
“remains concerned about the mother’s consistent refusal to test.”

5.
July 6, 2020 Report
In a report filed July 6, 2020, the Agency recommended continuing services for
Mother.
The report noted Mother had failed to drug test on June 22 and 24, 2020. Mother
said she was “unable to attend” the first test, and claimed she wrote down the wrong date
for the second test.
All in person visits were cancelled due to COVID-19, so Mother had been visiting
with Gavin weekly through video conference. Mother was loving and demonstrated age-
appropriate parenting skills during the visits.
On August 5, 2020, the court ordered continued reunification services for Mother.
The Agency filed an updated case plan on August 7, 2020, stating that Mother’s
individual counseling should focus on several issues, including “patterns of dishonesty,
and patterns of unhealthy lifestyle choices including remaining in a relationship with
someone who continues to use substances.”
October 22, 2020 Report
In a report filed on October 22, 2020, the Agency recommended terminating
Mother’s reunification services.
A nurse practitioner from Cognitive Health Solutions stated Mother had not been
seen since July 17, 2020, having cancelled appointments on August 2 and 14, 2020.
Mother’s attendance at individual counseling was spotty, having missed sessions
on July 14 and 21, 2020.
At a visit on August 12, 2020, Mother “appeared hot and sweaty” but her body
temperature was 98.6 degrees. By the end of the visit, Mother was sweating “profusely,”
and the back of her shirt was “all wet.” Several other visits were reported to have gone
well, with Mother engaging Gavin with books and toys.
Mother cancelled a visit on July 22, 2020, because of “court.”

6.
 Mother was a “no show” for drug tests on July 24, September 9 and 28, and
October 5, and 13, 2020. The social worker sent text messages to Mother on the day of
the test, reminding her of the time and location of tests. The social worker stated a “no
show” test would “count as a positive” test.
November 25, 2020 Report
In a report filed November 25, 2020, the Agency continued to recommend
termination of Mother’s reunification services. Mother failed to show for drug tests on
October 28, November 16 and 23, 2020.
After September 9, 2020, Mother stopped responding to text messages from the
social worker. However, Mother would send “random” e-mails to the social worker
claiming she was unable to contact the social worker, but with no proof of such attempts.
Mother failed to attend a child-family-team meeting on October 21, 2020, even though
the date had been confirmed by Mother.
The visitation center informed the social worker that it could not reschedule visits
between Mother and Gavin because Mother provided a very limited schedule. Mother
would claim she could not do a morning visit because she had an appointment in the
afternoon. Mother also showed “a pattern of late cancellations” of visits.
During a visit on November 23, 2020, Gavin became “fussy” towards the last half
of the visit. The observing social worker noted Gavin “appeared to be uninterested in
being in the visit for the last half of the visit.” When the social worker told Gavin the
visit was over, he stopped fussing.
December 2, 2020 Hearing
At a hearing on December 2, 2020, Mother’s counsel claimed she was willing to
test. The social worker confirmed she could test that Friday, and Mother confirmed she
was available to do so.

7.
December 30, 2020 Report
In a report filed December 30, 2020, the Agency continued its recommendation to
terminate mother’s reunification services. The report explained that Mother did not show
for the test on December 4, 2020. She also did not show for drug tests on December 11,
22, and 28.
18-Month Review Hearing
The 18-month review hearing was held on January 13, 2021.
Mother testified that she had been taking antidepressant medications since “a few
months after this case began.”
Mother explained how COVID-19 affected her visitation with Gavin. Half of her
visits were in person and half were now over Zoom. Mother felt she did not have enough
time to bond with him. She also believed it was difficult for Gavin to adjust to Zoom.
Mother claimed that she did test on the Friday after the last hearing in December,
despite the social worker’s report saying otherwise. Mother said she had “copies” of a
receipt from the testing center, but they were in her car which had broken down about 10
minutes from the courthouse. The court told Mother’s counsel it was willing to give
them 30 minutes to retrieve the documents. The reporter’s transcript notes that two
“discussion[s]” occurred but does not transcribe them. When court resumed, 36 minutes
had passed. 3 Mother’s counsel asked Mother if she had the receipt from the December 4
drug test. Mother responded she did not have the receipt, but only because she grabbed
the wrong folder.
The court found that Mother had chosen not to participate in the drug testing
element of her case plan, despite being given “opportunity after opportunity after

3 The Agency claims in its appellate brief that during the “recess,” the “social
worker drove mother back to her car to get the backpack with the alleged proof of
testing.” However, the cited portion of the reporter’s transcript does not affirmatively
show this occurred. Counsel for the Agency did not ask Mother any questions and did
not put the social worker on the stand.

8.
opportunity.” The court further found that Mother’s progress to alleviating or mitigating
the causes necessitating placement has been “poor.” The court terminated Mother’s
services. 4
Section 366.26 Report and Hearing
On April 7, 2021, the Agency filed its section 366.26 report, which recommended
terminating Mother’s parental rights.
The Agency recommended establishing a permanent plan of adoption by Gavin’s
foster parents. Gavin had been with the foster parents since June 21, 2019. The foster
parents had shown they were able to meet Gavin’s medical, developmental, and
emotional needs. The report noted Gavin “has shown his strong attachment to both
[foster parents] through greetings, affection and seeking attention.” The social worker
observed that the foster parents’ home was “the only stable environment that Gavin has
known, and it would be in the best interest to remain in their care.”
Mother visited with Gavin on February 26, and March 26, 2021. Both visits were
“appropriate.”
At the section 366.26 hearing on June 4, 2021, Mother’s counsel moved to return
Gavin to her care and to terminate the dependency proceedings. Mother’s counsel made
an offer of proof that: Mother completed a parenting class as of January 1, 2020; she was
regularly attending Narcotics Anonymous and Alcoholics Anonymous meetings; and had
participated in several sessions with “Sierra Vista” 5 in 2021. The court denied the
motion.

4A notice of appeal and a notice of intent to file writ petition concerning these
orders were filed in this court on January 20, 2021. Both actions were subsequently
dismissed.
5 Elsewhere in the record, it appears that Sierra Vista Child & Family Services
offers a Family Maintenance and Reunification Program that includes a clinical
assessment, individual counseling and a positive parenting program.

9.
 With respect to the section 366.26 hearing, the Agency submitted on its report.
Mother testified on her own behalf. Mother described her relationship with Gavin as a
“strong bond.” She testified that after seeing Gavin for the first time in a few months, he
held onto her for “like 18 minutes.”
Mother said she wanted to have more than monthly visits. At the end of one visit,
when it was time to clean up, Gavin threw a “big fit.” Mother told him he needed to have
the toys ready for next time. Gavin replied, “ ‘No, you no see me anymore, no play.’ ”
In argument to the court, counsel for the Agency observed that Mother did not
prove that terminating her rights would be detrimental to Gavin. Counsel acknowledged
that Mother participated in visitation but argued that Gavin was “extremely bonded to his
current caregivers who have been providing a very loving and stable home for him for
almost the entirety of his life, and so, therefore, a significant part of his life was not spent
with either of the parents here.” Gavin’s counsel agreed with these contentions.
Mother’s counsel conceded that Gavin was generally and specifically adoptable
but argued that he would suffer detriment if his bond with Mother was severed.
The court concluded the beneficial parent/child relationship exception does not
apply. The court stated it was “mindful” of the recent Supreme Court decision in In re
Caden C. (2021) 11 Cal.5th 614 (Caden C.), which required three elements to establish
the beneficial parent/child relationship exception. The court concluded Mother had
regularly visited and contacted Gavin but found that the termination of parental rights
would not be detrimental to Gavin. The court noted that Gavin was “very bonded to his
caretakers” and that he had been in their home “for almost his entire life.” Consequently,
the permanency and stability of adoption was “of such benefit that it outweighs” the
potential detriment from the termination of parental rights. The court terminated
Mother’s parental rights.
Mother appeals.

10.
 DISCUSSION
I. Mother has not Established Reversible Error
A. Law
The beneficial parent/child relationship exception to adoption applies where “[t]he
court finds a compelling reason for determining that termination would be detrimental to
the child due to … the … circumstance[] [that] [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).) This provision establishes three elements a
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.” (Caden C., supra,
11 Cal.5th at p. 631.)
“When it weighs whether termination would be detrimental, the court is not
comparing the parent’s attributes as custodial caregiver relative to those of any potential
adoptive parent(s).” (Caden C., supra, 11 Cal.5th at p. 634.)
With respect to the third element, we review the court’s factual determinations for
substantial evidence. We review the court’s weighing of the benefits of adoption against
the harms that may arise from severing the parent/child relationship for abuse of
discretion. (Caden C., supra, 11 Cal.5th at p. 640.)
B. Analysis
Mother contends the trial court erred in finding that the beneficial parent/child
relationship exception to adoption did not apply. She argues that because she had limited
opportunities to visit or “care” for Gavin, it was “inappropriate” for the court to compare
the care Gavin was receiving from his foster parents to his relationship with Mother. The
court’s consideration of these factors was not inappropriate. Indeed, the third element of
the exception calls for courts to consider things like “the child’s relationship with [the]
parent” and “how a prospective adoptive placement may … counterbalance” harms that

11.
might stem from severing the parental relationship. (Caden C., supra, 11 Cal.5th at
p. 640.) Here, the court properly considered the extent of Gavin’s bond to Mother and
weighed it against the benefits of Gavin being adopted by his foster parents.
What would have been inappropriate is if the court had compared the care Gavin
received from his foster parents with the care Mother could have offered. (See Caden C.,
supra, 11 Cal.5th at p. 634.) But that is not what the court did. Instead, the court cited
Gavin’s bond with his foster parents in order to weigh the benefits of adoption against the
potential detriment from terminating parental rights. And the court’s ruling appropriately
focused on any potential bond between Mother and Gavin, and not on how well Mother
could have cared for Gavin herself. (Ibid.)
Indeed, the court found that Gavin and Mother did have a bond. However, the
court ultimately concluded that that bond did not outweigh the benefits of adoption and
that, therefore, terminating parental rights would not be detrimental to Gavin. Mother
offers no reason to question or undermine the court’s reliance on the benefits that would
accrue to Gavin if he were adopted. Mother has not established error.
DISPOSITION
The juvenile court’s orders are affirmed.

POOCHIGIAN, ACTING P. J.
WE CONCUR:

SMITH, J.

SNAUFFER, J.

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