In re Damien v. CA5

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Filed 3/24/21 In re Damien V. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 DAMIEN V., a Person Coming Under
    the Juvenile Court Law.

    KERN COUNTY DEPARTMENT OF                                                            F081593
    HUMAN SERVICES,
                                                                           (Super. Ct. No. JD139215-0)
           Plaintiff and Respondent,

                    v.                                                                 OPINION
    DANA R.,

           Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Raymonda B.
Marquez, Judge.
         Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for
Defendant and Appellant.
         Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Peña, J. and De Santos, J.
        In this juvenile dependency case, Dana R. (mother) appeals the juvenile court’s
order terminating her parental rights as to her minor child, Damien V. (Welf. & Inst.
Code,1 § 366.26). Mother contends the order must be reversed because the juvenile court
erred by failing to apply the beneficial parent-child relationship exception to termination
of parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
        Damien was born in February 2019, and he and mother both tested positive for
methamphetamine at the time of his birth. A referral was made to the Kern County
Department of Human Services (department). Mother admitted to the reporting social
worker to using methamphetamine two days prior to Damien’s birth. Mother explained
she had used methamphetamine every day since she was 16 years old but had completed
a substance abuse program and had had a period of two years’ sobriety. Mother had a
lengthy child welfare history, dating back to 2010. Her parental rights had been
terminated as to four other children through dependency proceedings due to issues
regarding substance abuse and domestic violence. Mother also had a felony conviction
for possession of methamphetamine from 2011 and was registered as a narcotics
offender. Mother and father2 lived together. Father denied drug use but said he did
consume alcohol and took medication for depression. On February 6, 2019, the
department filed a petition on behalf of Damien alleging he came within the juvenile
court’s jurisdiction under section 300, subdivision (b)(1) (failure to protect) because of
mother’s failure to protect Damien due to her substance abuse and under subdivision (j)
(abuse of siblings) because of mother’s child welfare history relating to Damien’s
siblings.


1       All further undesignated statutory references are to the Welfare and Institutions
Code.
2       Father is not a party to this appeal.


                                                2.
      On February 6, 2019, the juvenile court found a prima facie showing had been
made that Damien was a child described by section 300, subdivisions (b)(1) and (j) and
ordered him detained from mother. The court ordered mother to have two-hour
supervised visits twice weekly.
      Following the detention hearing, mother expressed a willingness to comply with a
voluntary case plan. Mother began substance abuse counseling but was resistant to
parenting classes because she had already taken them in previous dependency
proceedings. Mother agreed to drug test on March 14, 2019, and tested positive for
amphetamine and methamphetamine and failed to appear for two other tests in March.
      The parents waived their rights to a hearing on the jurisdictional allegations, and
on April 9, 2019, the juvenile court found Damien was a child described by section 300,
subdivisions (b)(1) and (j). Father was elevated to presumed status at this hearing and
was ordered to have two-hour supervised visits with Damien twice per week.
      The department’s disposition report indicated the parents had both been
“moderately cooperative” with the department. Mother “sporadically” attended visits
with Damien. The department began requiring mother to check in with the social worker
before visits due to her missing several visits. Mother tested positive for amphetamine
and methamphetamine in April 2019 and failed to appear at multiple random drug tests in
April and May. The department recommended that father receive family reunification
services. Mother was not recommended to receive services because statutory bypass
provisions applied; the department opined Damien would suffer no detriment should
mother not be offered services because he had not had the opportunity to bond with
mother.
      At the disposition hearing on August 8, 2019, the court ordered removal of
Damien from the parents’ custody. The court ordered services not be provided to mother
pursuant section 361.5, subdivision (b)(10) and (b)(11) and ordered that father receive



                                            3.
services, including substance abuse counseling, parenting, child neglect and participation
in random drug testing.
       The department’s six-month status report indicated that father did not engage in
any services and had ceased cooperating with the department. In January 2020, he was
arrested for a domestic violence incident involving mother. Mother continued to engage
in some voluntary services, but the progress reports the department received from her
substance abuse program indicated her participation was minimal and she was at risk of
being discharged for missing appointments. Throughout the six-month review period,
mother attended three visits with Damien, and father attended two. The parents’ skill
level and interactions with Damien were characterized as “fair.” In October 2020, the
social worker attempted to contact the parents by phone and letter stressing the
importance of visits. In November 2020, visits were placed on hold due to lack of
attendance. Damien was reported as thriving in his placement and meeting
developmental milestones. The department recommended father’s services be terminated
and a section 366.26 hearing be set.
       Neither parent was present at the six-month status review hearing on February 7,
2020. The court followed the department’s recommendation. The court ordered
supervised visits between Damien and the parents to occur once monthly for one hour.
       The department’s section 366.26 report recommended termination of parental
rights and adoption as Damien’s permanent plan. Damien’s caregivers, with whom he
had resided since February 2019, wished to adopt him. It was reported that Damien
sought the caregivers’ comfort when he was tired and looked to them to meet his daily
physical and emotional needs. A “strong relationship” had developed between Damien
and his caregivers.
       Out of a total of 108 possible visits, mother visited Damien 26 times. Father had a
possible 92 visits, and attended 14. It was reported the parents had a “visiting
relationship” with Damien. Damien had never resided with the parents, and neither

                                             4.
parent had visited him since October 2019. Of the visits the parents did attend, they were
attentive to Damien; they held him, talked to him, fed him bottles, changed his diaper,
and watched him sleep. A supplemental report indicated mother requested to visit
Damien in June 2020; a visit was scheduled, but due to COVID-19, in-person visits were
not taking place. The social worker attempted to schedule a video visit with mother, but
she did not respond. No visit ended up taking place. The social worker opined Damien
would suffer “minimal detriment” from the termination of parental rights due to his
young age and degree of attachment with the parents.
       At the section 366.26 hearing held on August 3, 2020, both parents’ counsel stated
they were “simply” objecting to the department’s recommendation and did not present
any further evidence or argument. The juvenile court terminated parental rights and
ordered adoption as Damien’s permanent plan.
                                       DISCUSSION
       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 unless a statutory exception applies. (§ 366.26,
subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship
exception, which applies when “[t]he court finds a compelling reason for determining
that termination would be detrimental to the child” where “[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).)
       It is the parent’s burden to show an exception applies. (In re Autumn H. (1994)

27 Cal. App. 4th 567

, 573–574.) As to the first prong of the exception, that the parent
maintain regular visitation and contact, showing “ ‘[s]poradic visitation is insufficient.’ ”
(In re Marcelo B. (2012) 

209 Cal. App. 4th 635

, 643.) As to the second prong, that the
child would benefit from continuing the relationship, the parent must prove “his or her
relationship with the child ‘promotes the well-being of the child to such a degree as to

                                              5.
outweigh the well-being the child would gain in a permanent home with new, adoptive
parents.’ ” (In re K.P. (2012) 

203 Cal. App. 4th 614

, 621.) The parent must show
severing the relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be “greatly harmed.” (In re Marcelo B., at p. 643.)
       Mother contends the juvenile court erred by not finding the beneficial parent-child
relationship exception applied. The department contends mother’s claim is forfeited
because she did not raise it below. We agree with the department.
       The failure to raise the beneficial parent-child relationship exception in the
juvenile court forfeits it as an issue on appeal. (See In re Rachel M. (2003)

113 Cal. App. 4th 1289

, 1295 [relative caregiver exception; “[t]he juvenile court does not
have a sua sponte duty to determine whether an exception to adoption applies”]; see also
In re Daisy D. (2006) 

144 Cal. App. 4th 287

, 292 [same, with regard to the beneficial
sibling relationship exception].)
       Here, at the section 366.26 hearing, mother’s counsel did not argue the beneficial
parent-child relationship exception to termination of parental rights applied. Both
parents’ counsel merely objected to termination of parental rights, without any argument
or evidence. Therefore, mother forfeited her contention.
       Nevertheless, even assuming the issue was not forfeited, we conclude the juvenile
court did not err in rejecting the beneficial parent-child relationship exception. The
exception clearly did not apply on the facts of the present case, and the juvenile court’s
finding would be upheld under any standard of review.
       Mother is unable to carry her burden to prove either prong of the exception. First,
mother did not regularly or consistently visit Damien; mother attended 26 out of a
possible 108 visits, missing approximately 75 percent of scheduled visits. Mother’s last
visit with Damien was in October 2019, which was approximately 10 months before the
section 366.26 hearing. In addition, Damien was removed from mother’s care at five
days old, never resided with her, and had not seen her for a continuous 10 months, a

                                             6.
period of which was almost half of Damien’s entire life at the time of the section 366.26
hearing. It cannot be said, based on this record, that Damien and mother had a parent-
child relationship that would outweigh the benefits Damien would receive from being
adopted or that Damien would be greatly harmed by the severing of the relationship.
      We find no error.
                                     DISPOSITION
      The juvenile court’s order terminating parental rights is affirmed.




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