Filed 1/11/21 In re A.Q. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 r e A.Q.

, a Person Coming Under the Juvenile

Court Law.

STANISLAUS COUNTY COMMUNITY

SERVICES AGENCY,

Plaintiff and Respondent,

v.

S TEPHANIE Q.,

Defendant and Appellant. F081434

(Super. Ct. No. 517944)



### OPINION

THE COURT *

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q.

Ameral, Judge.

Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Boze, C ounty Counsel, and Maria Elena Ratliff, Deputy County

Counsel, for Plaintiff and Respondent.

- ooOoo

-

* Before Poochigian, Acting P.J., Franson, J. and Snauffer, J.2

.

Stephanie Q. (mother) appeals from an order following a Welfare and Institutions

Code section 366.26 1 hearing at which the juvenile court terminated her parental rights to

her daughter A. Q. Mother contends the juvenile court failed to apply the beneficial

parent child relationship exception to defeat termination of parental rights. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In May of 2017, mother brought then 19

- month

- old A. to the hospital with

shoulder pain. It was discovered that she had a fractured right hum eru s. A. also had

bruising that appeared to be from a separate incident, including a large bruise on her

forehead, and what appeared to be finger marks on her upper right arm. Mother ’ s

explanation as to the injuries was inconsistent. Mother reported that she has two older

children who were taken by Child Protective Services (CPS) but now living with their

fathers.

According to mother, her male roommate had been caring for A., but they were no

longer dating and he “never takes care of A[.]” Mother then stated that the roommate

was taking care of A., but she did not think he would do anything to her. The roommate

was living with mother until June 6, 2017, when he was to turn himself into jail on a

weapons charge. Mother acknowledged signin g a safety plan with the Stanislaus County

Community Services Agency (agency) in February of 2017, agreeing that this roommate

was not to live with her or be allowed to care for her children.

When mother spoke to an agency social worker, she spoke slowly and did not

make eye contact. She reported being diagnosed with bipolar d isorder and prescribed

Seroquel and Zyprexa in the past but did not take the medications currently.

Mother had six prior CPS referrals, including three prior referrals in 2017.

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

otherwise stated.3

.

A. was placed in protective custody and the agency filed a section 300 petition

alleging A. was at risk of harm. The petition alleged that the whereabouts of one alleged

father, Gregory B., was unknown. A second possible father, Russell R., was a legal

father, having been adjudged A. ’ s father by a default judgment. 2

Detention

At the detention hearing May 24, 2017, a guardian ad litem was appointed for

mother. The juvenile court ordered that, if recommended, mother could be referred for a

psychological evaluation prior to the next hearing. Both mother and Gregory B. asserted

Indian ancestry. The jurisdiction/disposition hearing was set for July 11, 2017, to allow

for Indian Child Welfare Act (ICWA) noticing.

Jurisdiction/Disposition

The report prepared in anticipation of jurisdiction and disposition recommended

that mother be offered services, but that both possible fathers be denied services pursuant

to section 361.5, subdivision (a).

In her social history interview, mother described her childhood as “fucked up.”

She reported being continuously raped by her maternal grandfather between the ages of

three and 15 and was also raped by a maternal uncle and one of her mo ther ’ s boyfriends.

She began cutting herself around age 12. She reported being diagnosed with depression,

anxiety, and anger management issues, but claimed the anger calmed after she had

children. Her three children all have different fathers and she has never been married.

Mother described herself as “marked” with posttraumatic stress disorder ( PTSD ) and was

prescribed Seroquel for sleep and Prozac for anxiety.

The agency staff noticed during visitation that mother needed improvement in

both parenting skills and interaction with A. Mother did not appear emotionally attached

2 Neither father is a party to this appeal.4

.

to A. After 50 minutes of the first scheduled two

- hour visit, mother ended the visit,

stating “I ’ m done, I have something to do.”

Jurisdiction/disposition was continued to September 7, 2017, for a contested

hearing and to perfect ICWA notice.

An addendum report stated that mother was making “good progress” in services

but continued to appear to be emotionally disconnected to A. and did not provide

enrichment for the child during visits or comfort her at the end. The foster parent

indicated that A. was “very fussy” before visits with mother.

Mother completed a psychological evaluation in which psychologist Cheryl

Carmichael es tablished mother ’ s IQ at 76, noting her low scores on information and

vocabulary. Her ability to make reasoned decision s about facts and consequences of

social situations was impaired. While mother was able to react appropriately to an

occurrence, she could not figure out how to prevent a situation by seeing the big picture.

For instance, mother knew A. ’ s injury was caused by leaving A. with her roommate, but

she could not foresee that his behavior made him an inappropriate caretaker. The

psychologist opined that mother had the ability to learn but was limited due to her

concrete thinking; learning was possible due to her positive attitude. The psychologist

recommended a parent mentor to work one on one with mother.

On September 7, 2017, the juvenile court found the petition true, removed A. from

mother ’ s custody and granted mother reunification services. Services were denied both

alleged fathers. A six

- month review was set for February 20, 2018.

Six

- Month Review

The report prepared for the six

- month review recommended services for mother be

continued. A. had to be moved to a new home in January of 2018, due to aggressive

behavior toward herself and others. Mother visited consistently, except for five missed

visits due to illness.5

.

At the six

- month review hearing February 20, 2018, services were continued, and

a 12

- month review set for July 11, 2018.

12

- Month Review

Prior to the 12

- month review hearing, the caregiver filed a d e f acto p arent r equest.

The report prepared for the 12

- month review hearing recommended that

reunification services for mother continue to the 18

- month review hearing. During the

reunification period, mother was unemployed and homeless and “couch surfing.” While

moth er was working with the parent mentor, she was getting into conflicts and

altercations with people in the community and declined assistance with finding housing.

One report indicated that mother had been involved in an altercation with four females,

one of whom ended up hospitalized. Although police were involved, mother was not

charged.

Because A. showed issues with aggression and self

- harm, she was evaluated and

started with a treatment plan at Leaps and Bounds. Mother had begun cancelling visits

on the day of the visit, causing A. to become upset and pull out her own hair. Mother

wanted A. in counseling so she would understand that missed visits were not her fault,

but mother failed to understand this expectation was not age appropriate for a two

- year

old.

Visitation reports showed that, in addition to missing visits, mother continued to

have limited interaction with A. When the parent mentor was in the room with mother

during visits, mother was more engaged and spoke in less of a monotone cadence.

At the hearing on July 11, 2018, d e f acto p arent status was granted to the

caregiver. The remainder of the hearing was trailed to July 17, 2018, and mother

assigned a new attorney.

On July 17, 2018, the agency indicated it was changing its recommendation to

termination of services, and the matter set for a contested hearing August 21, 2018.6

.

The addendum report filed for the contested hearing stated that mother was still

homeless and making little progress in finding housing, having allowed her s ection 8

voucher to expire. Mother did not attend visits on June 28, July 19, and August 2, 2018.

A. did not want to attend the visit on July 26, 2018, and threw a tantrum in the car,

scratching her face and punching her legs.

A letter attached to the report from the de facto parent stated that A. ’ s social skills

had improved, she was bonded with her foster siblings, and was very helpful at home.

While her self

- harming behavior had decreased, A. still pulled her hair, scratched or bit

herself, and banged her head or squeezed herself causing bruises when nervous or

anxious. The de facto family was working with her to have her use words to express her

feelings. The de facto parent wrote that, whil e A. “loves her mom,

... the visits are

anxiety

- provoking. When we tell A[.] that we are going to visit, she begins making

excuses to try and stay home. A[.] leaves every visit with a far more aggressive attitude

and pulls her hair again over the next several days before she returns to her usual self.”

A contested review hearing was held over several days in August and September

2018. The juvenile court found that the agency offered mother reasonable services, but

continued services with specific orders that the social worker and parent mentor assist

mother with visits and teach her to use a calendar to track visits and appointments. The

revised case plan required the parent mentor to focus on anger management, parent

modeling during visits, appropriate expectations, and calendar management.

An 18

- month review was scheduled for November 15, 2018.

18

- Month Review

The report prepared for the 18

- month review recommended services for mother be

terminated. Mother ’ s housing was still unstable, and the only plan she had was to move

in with a former boyfriend with whom she had experienced domestic violence. Mother

struggled in services, attending but not putting effort into working with the parent

mentor. She specifically resisted use of a calendar, and showed no ability to plan for7

.

future issues, such as obtaining suitable housing, obtaining a driver ’ s license, and looking

for childcare if A. was returned to her. She was argumentative with the parent mentor

and unwilling to discuss anger management. She spoke inappropriately with A. during

visits.

In her Leaps and Bounds treatment program, A. was being treated for symptoms

of PTSD. She continued to resist visits with mother with screaming and hitti ng behavior.

The de facto parent encouraged A. to visit and provided reassurance to A. that she would

return to the de facto parent after visits. A. requested she be called a different name,

equating her name with being bad.

Mother missed four visits during the reporting period. While some visits went

well, in others mother “appeared flat and lacked effect” or left A. to play on her own.

A contested hearing was set for December 17, 2018. An addendum report

indicated mother was not attending a required support group, she declined referrals and

refused to keep a paper calendar, stating she was keeping her appointments on her phone.

For housing, mother suggested either her old boyfriend, with whom she had a domestic

violence history, or with her own mother, whose boyfriend was a registered sex offender.

The parent mentor reported that mother ’ s interactions with A. during visits showed

“acquisition of both knowledge and skill based parenting techniques and abilities,” but

that mother “can have lapses in both skill sets.”

The matter was again continued, this time to January 24, 2019, and mother

directed to continue with her services.

An addendum report for the continued hearing noted a recent incident in which

mother had an altercation and became so angry that she “blacked out.” She only recalled

a police officer standing in front of her.

The parent mentor began facilitating and supervising community visits, and the

first visit had gone well. The de facto parent submitted a letter and caregiver report

which detailed A. ’ s continued distress with visits, her self

- harm before and after visits.8

.

While A. stated that she had a good time during visits with mother, she also said mother

made her “mad and sad.”

The 18

- month hearing was again continued, first to February 15, 2019, and then to

March 1, 2019.

An addendum report indicated that mother was sentenced to probation and a

criminal protective order protecting A. was implemented as a result of the 2017 injuries

to A.

The hearing eventually beg a n on April 5, 2019 and concluded May 16, 2019. At

that time, the juvenile court terminated reunification services and set the matter for a

section 366.26 hearing on September 12, 2019. Mother was allowed twice monthly visits

and A. was to be made available for a bonding study.

Section 366.26 Hearing

The report prepared for the section 366.26 hearing recommended termination of

parental rights and selection of adoption as the permanent plan. A. had been placed in

her current placement since January 19, 2018, and the de facto family wished to adopt

her.

Visits between mother and A. occurred twice a month. Mother ’ s interactions with

A. were described as either “ok ay ” or non

- existent.

After the agency filed a motion to conduct its own bonding study, the matter was

continued to January 13, 2020.

The agency ’ s addendum report included a bonding study done by psychologist

Anthony Urquiza which indicated an evaluation took place before mother began serving

her jail sentence and was completed after her release. During the one month mother

served in jail, A. did not inquire about or mention mother. During a psychological

interview and testing, mother related her traumatic sexually abused childhood, and tested

as suffering from PTSD, m ajor d epressive d isorder, and s omatization d isorder. Mother

reported having symptoms of depression, anxiety, and anger, and being unable to sleep.9

.

Moth er reported that she was committed to reunification with A. and said she

enjoyed visits with her, but she expressed frustration that A. calls her by her first name

instead of “mom. ”

Dr. Urquiza spoke to the de facto mother, who reported that, due to A. ’ s self

harming behavior, she had arranged for A. ’ s therapy sessions to occur immediately after

visits. She did not tell A. about visits until shortly before they were to occur, and A. did

not talk about mother between visits and had never mentioned missing her. Another

child in the de facto family ’ s home had recently been reunified with his mother, making

A. more attached to the de facto mother.

Dr. Urquiza described the relationship between A. and mother as a

“positive/weak” relationship because the visits are pleasant, but mother is “distracted,

unavailable or inadequate” due to her own depression and being traumatized, which have

rendered her unable to be emotionally responsive to A. Dr. Urquiza described the

relationship as “playmate

- like” rather than one of a parent/child.

Dr. Urquiza opined that A. would not be “greatly harmed” if the relationship was

terminated, but instead would likely be distressed if the relationship with her de facto

parent and family was terminated.

Dr. Urquiz a testified at the section 366.26 hearing, describing the interaction

between mother and A. as containing no praise from mother to A., which is “really the

foundation to some significant problems in that relationship.” Dr. Urquiza noted that

mother offered A. no praise even when she was being observed and evaluated.

Dr. Urquiza testified that A. ’ s unhealthy behaviors had lessened over the time she

had been in the care of the de facto parent. He o pined that lack of contact with mother

would enable A. to move forward and further develop her relationship with the caregiver

family. Dr. Urquiza ’ s observation of mother and A. ’ s interaction was that they were able

to play for a while and had a “casual friendly” visitor relationship.10

.

The de facto mother testified that A. had been in their home for almost two years.

She had to wait until just before to tell A. about upcoming visits with mother, and A.

never asked to visit. At a recent visit, A. had to be bribed to go back into the visitation

room. After the visit, she was happy to have seen mother, but also happy to go back with

the de facto mother.

Mother ’ s counsel called Dr. Carmichael, who had performed the psychological

evaluation of mother early in the case. Dr. Carmichael testified that A. clearly considers

her de facto siblings to be her siblings, and the bond between mother and A. had

diminished significantly due to the time in foster care and limited exposure to each other.

Dr. Carmichael opined that the parent/child bond still existed. When asked if terminating

mother ’ s parental rights would have a negative impact on A., the psychologist stated that

she saw mother ’ s relationship with A. “as being positively additive to the stable and

warm and rich relationship that she has in the current home she is in.” While Dr.

Carmichael opined that severing all contact was not specifically detrimental, continued

contact “in some limited fashion” would help A. ’ s “struggle with how she got where she

is over time.... It can be beneficial, but not at this point essential, to her well

- being.”

The juvenile court subsequently found A. adoptable and that, while mother had

visited regularly, she did not meet the second prong of the beneficial parent/child

relationship exception. Citing the testimony of both experts, one being mother ’ s own

expert, the juvenile court found that severing contact between mother and A. would not

be detr imental. Mother ’ s parental rights were terminated.

Due to issues related to COVID

- 19 and extension of filing deadlines, the n otice of

a ppeal in this matter was attempted to be filed several times, rejected, and ultimately the

subject of a p etition for w rit of m andate before this court in c ase No. F081348 . On July

16, 2020, in case No. F081348, this court ordered the notice of appeal be filed within 15

days. The notice of appeal was filed on July 17, 2020.11

. DISCUSSION

I. THE BENEFICIAL PARENT/CHILD RELATIONSHIP EXCEPTION TO

TERMINATION OF PARENTAL RIGHTS

Mother ’ s only contention on appeal is that the juvenile court abused its discretion

when it declined to apply the beneficial parent/child relationship exception to termination

of her parental rights. We affirm.

Under section 366.26, the statutory preference is to terminate parental rights and

order the child placed for adoption. (§ 366.26, subd. (b)(1).) “The Legislature has thus

determined that, where possible, adoption is the first choice. ‘ Adoption is the

Legislature ’ s first choice because it gives the child the best chance at [a full] emotional

commitment from a responsible caretaker. ’ [Citation.] ‘ Guardianship, while a more

stable placement than foster care, is not irrevocable and thus falls short of the secure and

permanent future the Legislature had in mind for the dependent child. ’ [Citation.]” ( In

re Celine R. (2003) 31 Cal. 4th 45, 53.)

At a section 366.26 hearing, when the juvenile court finds by clear and convincing

evidence the child is adoptable, it is generally required to terminate parental rights and

order the child be placed for adoption. (§ 366.26, subd. (b)(1).) There are statutory

exceptions which “ ‘ permit the court

, in exceptional circumstances [citation], to choose

an option other than

... adoption. ’ ” ( In re C.B. (2010) 190 Cal.App. 4th 102, 122.)

“ ‘ [B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the

parent unable to meet the child ’ s needs, it is only in an extraordinary case that

preservation of the parent ’ s rights will prevail over the Legislature ’ s preference for

adoptive placement. ’ ” ( In re K.P. (2012) 203 Cal.App. 4th 614, 621.) The beneficial

parent

- child relationship exception is one of the statutory exceptions

.

Section 366.26, subdivision (c)(1)(B)(i) provides the court shall terminate parental

rights unless “[t]he court finds a compelling reason for determining the termination

would be detrimental to the child” where “[t]he parents have maintained regular visitation12

.

and contact with the child and the child would benefit from continuing the relationship.”

It is the parent ’ s burden to show termination of parental rights would be detrimental to

the child because an exception applies

. ( In re Breanna S. (2017) 8 Cal.App.5 th 636,

646.)

With regard to the factual findings the juvenile court must make (whether the

parent has maintained regular visitation and/or whether the beneficial parent child

relationship exists), if the court does not find the parent met his or her burden of proving

these findings, the question on review is “whether the evidence compels a finding in

favor of the parent on this issue as a matter of law.” ( In re Breanna S., supra, 8

Cal.App.5 th at p. 647.) The specific 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. ’ [Citation.]”

( In re I.W. (2009) 180 Cal.App. 4th 1517, 1528, disapproved on other grounds in

Conservatorship of O.B. (2020) 9 Cal.5 th 989, 1010, fn. 7.) We review a court ’ s

determination that the benefit to the child derived from preserving parental rights is not

sufficiently compelling to outweigh the benefit achieved by the permanency of adoption

for abuse of discretion

. ( In re Breanna S.

, at p. 647.) “ ‘ “The appropriate test for abuse

of discretion is whether the trial court exceeded the bounds of reason.” ’ ” ( In re

Stephanie M. (1994) 7 Cal. 4th 295, 318

– 319.) 3

3 Appellate courts have adopted differing standards of review for the beneficial

parent

- child relationship ex ception: substantial evidence (see, e.g., In re G.B. (2014) 227

Cal.App.4th 1147, 1165); abuse of discretion (see, e.g., In re Aaliyah R. (2006) 136

Cal.App.4th 437, 449); and, more recently, as we have applied here, a “hybrid” standard

( In re Breanna S., supra, 8 Cal.App.5 th at p. 647.) The issue of the proper standard to

apply is currently pending before the California Supreme Court in In re Caden C. (2019)

34 Cal.App.5 th 87, review granted July 24, 2019, S255839.

We note there is not much practical difference between the different standards of

review. Under any of these standards of review, the practical differences between them

are slight because they all give broad d eference to the juvenile court ’ s judgment. (See In

re Jasmine D. (2000) 78 Cal.App. 4th 1339, 1351.) We should interfere only if under all13

.

While the juvenile court found that mother had consistently visited A., we

conclude that the juvenile court did not abuse its discretion by finding any benefit derived

from continuing the relationship did not outweigh the stability and permanence A. would

gain from being adopted and did not constitute a compelling reason not to terminate

parental rights

.

“ ‘ [B]enefit from continuing the [ parent / child ] relationship

, ’ ” within the meaning

of section 366.26, subdivision (c)(1)(B)(i) has been interpreted 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 re Autumn H.

(1994) 27 Cal.App. 4th 567, 575.) “ ‘ “[F]requent and loving contact” is not sufficient ’ ”

( In re Marcelo B. (2012) 209 Cal.App. 4th 635, 643) as “[i]nteraction between natural

parent and child will always confer some incidental benefit to the child” ( In re Autumn

H.

, supra

, at p. 575). In evaluating the issue of whether the relationship outweighs the

well

- being the child would gain from being adopted, the court must balance “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 .” ( Ibid .)

Factors to consider in deciding if the parent child relationship exception applies

include the age of the child, the portion of the child ’ s life spent in the parent ’ s custody,

the positive and negative effect of interaction between parent and child, and the child ’ s

particular needs. ( In re C.B. , supra, 190 Cal.App. 4th at p. 124.)

the evidence viewed most favorably in support of the juvenile court ’ s action, it finds no

judge could reasonably have made the order. ( Ibid. ) We note we find no error under any

standard of review.14

.

At the time of the section 366.26 hearing, A. was just over four years old and had

been out of mother ’ s custody since she was 19 months old. Mother contends A. was

removed from her custody only because she was “too trusting [in] and leaving A[.] with

an inappropriate caregiver who hurt her,” and that her many visits with A. proved that

there was a strong bond between the two of them and severing that bond would be

detrimental to A. While there were positive aspects to mother ’ s visits with A., there was

also copious evidence of A. ’ s reluctance to visit and be with mother, including self

- harm

and negative behaviors surrounding the visits. At times, A. had to be coaxed into visits

and the de facto parent arranged for therapy appointments to occur closely after visits

ended in order to get A. back on track. In some visits, mother is described as not engaged

and she fail ed to provide A. with positive reinforcement. She was heard making

inappropriate comments to A. Early on, mother appeared overwhelmed and left the first

visit early. A. never requested visits with mother and she never asked about mother

outside of visits. Further, mother ’ s visits never progressed beyond supervised visits.

Most importantly, two bonding studies were done regarding the nature of the

relationship between mother and A. While mother ’ s bonding study, done by Dr.

Carmichael, initially indicated there would be detriment if the relationship was severed

on direct examination, that opinion was tempered in her testimony

. Instead Dr.

Carmichael opined that severing all contact was “not specifically detrimental,” and

although the relationship could be “beneficial” at some point, it w as not now “essential”

for A. ’ s “well

- being.” Dr. Carmichael agreed that giving A. the permanence of a safe,

stable home with the de facto parents was important.

Dr. Urquiza opined that severing the relationship with mother and A. would not be

detrimental and found no benefit to sustaining it at all. Dr. Urquiza opined that mother,

due to her traumatic upbringing, was unable to form a positive strong relationship with

A., and severance from mother would enable A. to move forward and develop her

relationship with the de facto family.15

.

Mother insists that, taking Dr. Carmichael and D r

. Urquiz a ’ s opinions into

consideration, her parental rights need not be terminated. Instead, she argues, that

allowing A. to continue in foster care under guardianship would allow mother to continue

her parental role and, at this point, still provide A. with consistency by remaining in her

de facto parent ’ s home. However, “[g] uardianship

, while a more stable placement than

foster care, is not irrevocable and thus falls short of the secure and permanent future the

Legislature had in mind for the dependent child.” ( In re Lorenzo C. (1997) 54

Cal.App. 4th 1330, 1344.) “Adoption is the Legislature ’ s first choice because it gives the

child the best chance at [a full emotional ] commitment from a responsible caretaker.” ( In

re Jasmine D., supra, 78 Cal.App. 4th at p. 1348.)

We find no basis for reversing the juvenile court ’ s order terminating mother ’ s

parental rights.

DISPOSITION

The juvenile court ’ s order is affirmed.