In re A.A.
Filed 7/5/12 In re A.A.
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
M.L.,
Defendant
and Appellant.
E055419
(Super.Ct.No.
J230682)
OPINION
APPEAL from the Superior Court of
Bernardino County.
Wilfred J. Schneider, Jr., Judge.
Affirmed.
Liana Serobian, under appointment by
the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and
Stacy A. Moore, Deputy County Counsel, for Plaintiff and Respondent.
M.L. (mother) is the mother of A.A.,
born in November 2005. Mother argues the
juvenile court erred when it terminated her parental rights and freed A.A. for
adoption by her foster parents at a hearing held on January 5, 2012, pursuant to Welfare and Institutions Code section 366.26.
the juvenile court should have declined to terminate her parental rights under
the parental benefit exception to the preference for adoption, found at section
366.26, subdivision (c)(1)(B)(i). As
discussed below, we conclude that, even if mother did not waive this argument
by failing to raise it below, it has no merit.
Thus, we affirm the juvenile court’s orders terminating mother’s
parental rights and freeing A.A. for adoption.
A.A. was previously removed from her
mother’s care in San Diego County in June 2007, when A.A. was 19 months old. The cause was mother’s chronic alcoholism and
her third hospitalization for alcohol
intoxication and detox in six months.
After the case was transferred to San Bernardino County, A.A.
was returned to mother on family maintenance in December 2008. The dependency case was dismissed in July
2009.
On December 30, 2009, police responded to a call to mother’s home involving domestic
violence. Mother was in the front yard
with both arms or hands around 4-year-old A.A.’s neck. Mother was agitated and appeared to be
intoxicated. When police asked mother to
let go of A.A., she tightened her grip on A.A.’s neck and lifted her off the
ground in an attempt to carry her into the house. A.A. appeared to the officers to be
choking. When the officers were able to
disengage mother from A.A., they took mother to the squad car, where she
immediately passed out drunk. Mother was
arrested for cruelty to a child. (Pen.
Code, § 273a.)
On January 4, 2010, the Department of Children
and Family Services (CFS) filed a section 300 petition alleging that mother
had failed to protect (sub. (b)) A.A. by engaging in domestic violence with her
boyfriend, abusing alcohol, and having a history of neglecting and abusing
A.A., and had made no provision for support for A.A. (subd. (g)) when
mother was arrested for child cruelty.
At the
She submitted on the issue of detention.
The juvenile court allowed mother to have weekly supervised visits with
A.A. once she was released from custody.
The jurisdiction and disposition
hearing was eventually held on May 17, 2010.
Mother submitted a waiver of her rights.
The juvenile court found true the allegations regarding mother and
ordered CFS to provide her with reunification services. Mother was to have supervised visits with
A.A. twice each week.
At the six-month review hearing held
on November 17, 2010, the juvenile court found that mother had made substantial
progress in her case plan and that there was a substantial probability that
A.A. could be returned to mother by the next review hearing on May 17,
2011. The court ordered mother’s visits
increased to a minimum of twice a week for three hours each, unsupervised, to
include all-day weekend visits and overnight visits. The court authorized CFS to return A.A. to
mother on family maintenance by information packet.
On April 21, 2011, the juvenile
court held a special hearing because mother had suffered a relapse in her
alcohol addiction in January and February.
The court reduced mother’s visits to once weekly for two hours,
supervised, but authorized CFS to increase visits and return A.A. to mother on
family maintenance by approval packet.
At the contested 12-month review
hearing held on June 24, 2011, the juvenile court terminated mother’s family
reunification services and ordered mother’s visits reduced to twice a month
once A.A. could be placed in a concurrent planning home.
366.26 hearing for October 24, 2011.
The contested Section 366.26 hearing
was held on January 5, 2012; the court also heard mother’s section 388 petition
to modify the court orders of June 24, 2011.
Mother testified, as did her sister-in-law and the social worker. At the conclusion of the hearing, the
juvenile court denied the section 388 petition, found A.A. to be adoptable,
terminated mother’s parental rights, and ordered adoption as A.A.’s permanent
plan. This appeal followed.
Mother argues the juvenile court
erred when it failed to apply the parental relationship benefit exception to
the termination of her parental rights.
CFS contends mother waived this argument by failing to raise it at the
section 366.26 hearing. We will err on
the side of finding that mother did raise this issue, if only in passing, when
her counsel told the court that mother disagreed with the CFS recommendation to
terminate parental rights: “Not only is
[A.A.] strongly bonded to her mother, she is also very bonded with her sisters
. . . .†The parties at
the hearing apparently believed mother had raised the exception because both
minor’s counsel and county counsel clearly argued that the exception had not
been established.
Section 366.26, subdivision (c)(1)(B)(i), provides for an exception
to a court’s decision to terminate parental rights. The exception applies when “[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).) The parent bears the burden of proving that
the exception applies. (
1363, 1372-1373; In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1345.) “The
exception applies only where the court finds regular visits and contact have
continued or developed a significant, positive, emotional attachment from child
to parent.†(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) This means that “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.†(Ibid.) The factors to be considered are: “’(1) the age of the child, (2) the portion
of the child’s life spent in the parent’s custody, (3) the positive or
negative effect of interaction between the parent and the child, and
(4) the child’s particular needs.’â€
(In re Jason J. (2009) 175
Cal.App.4th 922, 937-938, quoting In re
Angel B. (2002) 97 Cal.App.4th 454, 467.)
There must be a “compelling reason†for applying the parental
benefit exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) This is a “quintessentially discretionary
determinationâ€; thus, we review the juvenile court’s determination for an abuse
of discretion. (Id. at p. 1351.)
Nevertheless, “ ‘[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 court’s
action, no judge could reasonably have made the order that he did.’ . . .†’ [Citations.]â€
(Ibid.)
It is arguable that mother, for the most part, meets the first
requirement of the exception, which is regular visitation and contact. In the two years between this latest removal
and the section 366.26 hearing in January 2012, mother kept in regular contact
with A.A. and attended all the visits she was allowed, with two
exceptions: (1) mother missed three
weeks of visits in February 2010, while hospitalized for alcohol intoxication
and detox, prior to beginning inpatient
drug and alcohol treatment and regular visits with A.A.; and (2) mother
missed all visits in February 2011, when she relapsed into alcohol abuse,
beginning in mid-January 2011, and was hospitalized for about three weeks in
February and March with liver and kidney failure, just as she was about to have
A.A. returned to her on family maintenance.
progressed to having unmonitored weekend and overnight visits with A.A., at
that time her visits were reduced to monitored visits one to two times a week.
It is, however, not arguable that mother meets the second
requirement of the exception that A.A. have a “significant, positive, emotional
attachment†to mother, such that the benefits to A.A. from continuing the
parent-child bond would outweigh the benefits to A.A. from being adopted. This was A.A.’s second dependency case, and
she had been in her mother’s custody for only her first 19 months of life, plus
approximately six months when she was three and four years old. The other three-and-a-half of her six years
care; mother was someone with whom A.A. had scheduled visits, not someone she
lived with or depended on for care. As
the social worker pointed out in her testimony at the section 366.26 hearing,
A.A. was used to having “two mothers†from having been in foster care for so
long. Although A.A. definitely enjoyed
her visits with mother and derived some benefit from their relationship, she
never asked for more contact with mother as those visits decreased and, as time
passed, did not complain or appear to mind when the visits were over. During a visit with mother in December 2011
that the social worker observed, A.A. demonstrated a previous behavior of
gorging on food while in mother’s presence.
In addition, as CFS points out, the record shows that A.A.’s primary
bond was with her prospective adoptive parents, rather than with mother. The social worker testified that, although
A.A. had fun during her visits with mother, A.A. had formed a strong bond and
primary attachment with her prospective adoptive mother, and had been fully
integrated into the prospective adoptive family. A.A. had gone on vacation with the family,
had actually been in a family wedding, and loved to follow around her
13-year-old foster brother. When asked
if she wanted to stay with her prospective adoptive parents until she was grown
up, A.A. said, “yes,†and when asked why, she answered, “because I like it
here.â€
Based on this substantial evidence, we cannot say that the juvenile
court abused its discretion when it failed to apply the parental benefit
exception to the presumption for adoption.
Disposition
The court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
to the Welfare and Institutions Code unless otherwise indicated.
granted reunification services, but failed to participate in the case plan
after some initial visits with A.A., and is not a party to this appeal.
