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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.B., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

KRISTIN K.,

Defendant and Appellant.

 D068019

 (Super. Ct. No. J518921)

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.
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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 courtappointed 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.