In re Erica T.

In re Erica T.

Filed 9/16/08 In re Erica T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re ERICA T. et al., Persons Coming Under the Juvenile Court Law.	B206451 (Los Angeles County Super. Ct. No. CK65831)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALBERT T., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

_

Albert T. (father) appeals from the judgment terminating parental rights to Erica T. and Breanna T. under Welfare and Institutions Code section 366.26.^[1] Fathers only argument on appeal is that there is no substantial evidence to support the dependency courts finding that the exception to termination of parental rights pursuant to section 366.26, subdivision (c)(1)(B)(i), does not apply. We reject the contention and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

Erica was born in 2005 and Breanna was born in 2006 to father and Joanne B. (mother).^[2] Both children were born prematurely due to mothers medical conditions of toxemia and hypertension. Father and mother regularly abused methamphetamines. The children were detained on November 17, 2006, and were placed in the home of the maternal grandparents on November 22, 2007, because mother tested positive for crystal methamphetamine.^[3] The home was uninhabitable and in a total state of disarray. It was filthy, unsanitary, foul-smelling, and littered with trash, junk, and piles of soiled clothing. There were items of rotten or spilled food in the kitchen and no beds anywhere in the house. Drug paraphernalia was found in the parents bedding on the floor, which was within reach of the children. Father acknowledged the home did not meet acceptable standards but maintained there was nothing he could do to change the situation. Father and mother admitted being regular users of methamphetamines and having used methamphetamines on November 15, 2006. On November 22, 2006, the dependency court found father was the childrens presumed father and ordered the Department of Children and Family Services to provide the parents with reunification services.

Between November 17, 2006, and January 9, 2007, father had five monitored visits in the home of maternal grandparents for up to six hours each.

On January 12, 2007, the children were declared dependents of the court under section 300, subdivision (b), based on sustained allegations that there was a substantial risk the children will suffer serious harm or illness as a result of the parents failure to adequately protect them and inability to provide regular care due to substance abuse, in that the parents had a history of substance abuse and were current methamphetamine abusers. Custody was taken from the parents and given to the Department for suitable placement in the maternal grandparents home. The Department was ordered to provide reunification services. Father was ordered to participate in individual counseling, parenting, drug counseling, and random drug testing. Father was granted monitored visits twice per week, the maternal grandmother was permitted to provide more frequent visitation, including allowing father to help feed, bathe, clean, and play with the children, and the Department was granted discretion to liberalize the visits. The matter was continued to July 13, 2007, for a six-month review hearing pursuant to section 366.21, subdivision (e).

Erica participated in the Early Start Infant Stimulation Program through the Regional Center^[4]to encourage speech. The Regional Center provided courtesy supervision for Breanna.

The parents made no progress on their rehabilitation plans. Father admitted to continuing to use methamphetamines. Between December 18, 2006 and June 6, 2007, father had only two negative drug tests; the rest were positive for drugs or no-shows. Mothers drug-testing results were similar. Father enrolled in a counseling program, but failed to attend. He stated he would not make any effort to comply with the court-ordered programs until mother had complied, because mother would be the childrens caregiver. He did not want to be in counseling, parenting, or a substance abuse group. He wanted an adrenaline rush. He feared that the children would become subjects of medical experiments if he gave a general medical consent. For the most part, the parents made no effort to go to the maternal grandparents home for visits; the maternal grandparents brought the children to the parents home to visit. The parents had weekly visits during part of February and March 2007. They had one visit in April 2007 and one in May 2007. Father did not call the children for weeks at a time, and he did not ask the maternal grandparents how the children were doing.

On July 13, 2007, the date set for the six-month review hearing, the Department recommended that reunification services be terminated and the matter set for a permanent plan hearing pursuant to section 366.26. Although the parents had failed miserably to comply with the reunification plan, they requested a contested hearing on the Departments recommendation, and the dependency court continued the matter to August 17, 2007.

On July 16, 2007, father began participating in an outpatient drug rehabilitation program, but stopped after ten days when he was asked to drug test. The maternal grandparents brought the children to the parents home on weekends for visits. Although fine during the visits, the children were cranky afterward and cried all the way home.

The maternal grandparents wanted to adopt the children. The children were found to be adoptable. On July 23, 2007, the maternal grandparents completed adoption home study was approved by the Department. The children had a positive attachment to the maternal grandparents, who were meeting all the childrens needs.

At the six-month review hearing on August 17, 2007, the dependency court found the parents were not in compliance with the case plan and there was no substantial probability the children would be returned to the parents custody within six months. Reunification services were terminated, and the matter was continued for a section 366.26 permanent plan hearing on December 14, 2007. The permanent plan hearing was subsequently continued to February 6, 2008.

From September 2007 to February 2008, the parents had monitored visits at a rate of once a week to once a month, with the maternal grandparents usually bringing the children to the parents home for the visits. The children were happy to see the parents and called them mom and dad. The parents played with, fed, and watched television with the children. The maternal grandparents planned to continue to allow the parents to have visitation after the adoption. Father did not want the children to be adopted, but he did not want to raise them on his own. He did not think the classes he was ordered to take were helpful and made no efforts to participate in treatment. He did not participate in drug testing after testing positive for methamphetamines on June 22, 2007.

On February 6, 2008, a contested section 366.26 hearing was held. Father argued that the exception to termination in section 366.26, subdivision (c)(1)(B)(i), applied and made the following offer of proof. He and mother visited the children during holidays and every weekend from Saturday to Sunday in the maternal grandparents home and talked to the children four times per week on the telephone. The visits were monitored. Father brought clothes and other items for the children. Father played and interacted with the children, bathed them, changed their diapers, prepared their food, and helped feed them. The children called father dada. The children showed they were bonded to the parents and expressed excitement when they saw the parents and disappointment when the parents left.

The dependency court found the exception to termination in section 366.26, subdivision (c)(1)(B)(i), did not apply. [The] parents . . . have been taken over by drugs and have not been able to do anything about it, . . . are probably still taking drugs, have been having nothing but monitored visits[,] and that clearly does not come within the [In re Autumn H. (1994) 27 Cal.App.4th 567] exceptions. [] Clearly, even marginally, they are not visiting on a consistent, ongoing basis, but, even if you assume arguendo that they are, the contact that they have is clearly not within the level that is prescribed under Autumn H., taking care of the kids, going to school, taking care of their schooling, clothing, going to doctors visits. [] These children have spent, I dont believe, any time with - at least the baby hasnt - with the parents, and it is just a very sad state. The dependency court terminated parental rights. This timely appeal followed.

DISCUSSION

Substantial Evidence Supports the Finding That the Exception in Section 366.26, subdivision (c)(1)(B)(i), Does Not Apply

Father contends the dependency court erred in terminating parental rights because substantial evidence does not support the finding that the exception to termination in section 366.26, subdivision (c)(1)(B)(i), did not apply. We conclude the finding is supported by substantial evidence.

Because fathers contention asserts insufficiency of the proof, we apply the substantial evidence rule. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Autumn H., supra, 27 Cal.App.4th at p. 576; compare In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard of review].)^[5] If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding on the section 366.26, subdivision (c)(1)(B)(i), exception is challenged is whether substantial evidence supports the finding, not, as father argues, whether a contrary finding might have been made. We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] [T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]. [Citations.] (In re Matthew S. (1988) 201 Cal.App.3d 315, 321; see also In re Dakota H, supra, 132 Cal.App.4th at p. 228 [[w]e do not reweigh the evidence].)

Under section 366.26, subdivision (c)(1)(B)(i), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [] . . . maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent has the burden to prove the applicability of the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The type of parent-child relationship that triggers the exception is a relationship which 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. . . . [Citation.] (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350.)

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. [Citation.] A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child. [Citation.] It is designed to protect childrens compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.] (Id. at p. 49; see also  366.26, subd. (b)(1) [adoption is the preferred plan].) At this stage of the dependency proceedings, it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home. [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)

Substantial evidence supports the finding that no exceptional circumstances existed under section 366.26, subdivision (c)(1)(B)(i), that required depriving these very young children of a permanent, adoptive home. Regarding the first prong of the exceptionmaintenance of regular contact and visitationErica and Breanna were out of fathers care for 15 months. He did not take advantage of the opportunity the dependency courts dispositional order provided him to visit frequently and play a parental role in the childrens lives. Instead, he visited only sporadically, at intervals ranging from once a month to once a week, and never achieved unmonitored visits.

Regarding the second prongthe child would benefit from continuing the relationshipsubstantial evidence establishes that fathers relationship with the children did not promote the their well-being to such a degree as to outweigh the well-being [the children] would gain in a permanent home with new, adoptive parents. . . . [Citation.] (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.) Father continued using drugs. He was not interested in rehabilitating himself. He did not view his role as parental, but relied on mother, who was not rehabilitated, to have primary responsibility. Thus, he chose drugs over parenting. The children were bonded to the maternal grandparents who were committed to permanently providing for the childrens well-being. The maternal grandparents took care of all the childrens needs, including Ericas special needs. To the extent there would be some benefit to the children from maintaining ties to the parents, the maternal grandparents were committed to allowing visitation and contact after the adoption.

Fathers argument that guardianship was available as a less harsh permanent plan is without merit. Adoption does not give way to a relative guardianship as the legislatively preferred plan unless the relative is unable or unwilling to adopt the child. ( 366.26, subd. (c)(1)(A).) As the maternal grandparents desired to adopt the children, guardianship was not an option.

The conclusion reached by the dependency court that termination of parental rights would not be detrimental is amply supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All statutory references in the opinion are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Mother did not appeal.

^[3] Mother was drug tested while in the hospital following a car accident.

^[4] Regional centers assist persons with developmental disabilities and their families in securing those services and supports which maximize opportunities and choices for living, working, learning, and recreating in the community. ( 4640.7, subd. (a).)

^[5] The practical differences between the two standards of review are not significant. [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a compelling reason for determining that termination would be detrimental to the child. ( 366.26, subd. (c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile courts opportunity to observe the witnesses and generally get the feel of the case warrants a high degree of appellate court deference. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)