Filed 1/8/16 In re A.B. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
                                             2
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.

                                             4
       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

                                               5
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


                                                 6
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.)




                                               7
          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

                                                 8
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.)

                                               9
       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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