In re A.D.

 

 

 

 

 

 

 

 

 

 

Filed 8/27/13 
In re A.D. CA5

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 
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In re A.D., a Person Coming Under the Juvenile Court Law.
KINGS COUNTY HUMAN SERVICES AGENCY,             Plaintiff and Respondent,             v. KIMBERLY S.,             Defendant and Appellant.	F066743 (Super. Ct. No. 07JD0070) >  >O P I N I O N

THE COURThref="#_ftn1"
name="_ftnref1" title="">^* 

            APPEAL from
orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County.  Robert S. Burns, Judge.

            Monica
Vogelmann, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Colleen
Carlson, County Counsel, and Carrie Woolley, Deputy County Counsel, for
Plaintiff and Respondent.

-ooOoo-

            Kimberly S.
appeals from an order terminating parental
rights (Welf. & Inst. Code, § 366.26)href="#_ftn2" name="_ftnref2" title="">^[1] to her four-year-old daughter A.D.  Kimberly contends she established termination
would be detrimental to A.D. because of their parent-child relationship
(§ 366.26, subd. (c)(1)(B)(i)).  We
disagree and affirm. 

PROCEDURAL AND FACTUAL SUMMARY

            Kimberly has six children,
ranging in age from 2 to 19 years.  She
also has a long history of methamphetamine use, resulting in the loss of her
children.  Her four oldest children were
placed with their maternal grandmother under a permanent plan of guardianship
in 2009 after Kimberly failed to reunify with them.  In 2010, the juvenile court terminated the
guardianship after the maternal grandmother was convicted on a criminal
charge.  The juvenile court reinstated
dependency of the children and ordered family maintenance for Kimberly.  In the interim, Kimberly gave birth to two
daughters, A.D., the subject of this appeal, and Samantha. 

            These
proceedings were initiated in May 2011 after Kimberly left the children home
alone at approximately 2:30 p.m.  The
oldest child present was Kimberly’s then 13-year-old son, Phillip.  At approximately 7:30 p.m., the children were
discovered at a park.  A passerby caught
then seven-month-old Samantha as she was about to fall from a bench.  When Kimberly was located, she was arrested
for child endangerment, being under the influence of methamphetamine, and
possession of stolen property. 

            The href="http://www.fearnotlaw.com/">Kings County Human Services Agency
(agency) took the children into protective custody.  Then two-year-old A.D. and Samantha were
placed together in a foster home.  The
agency also filed a dependency petition alleging Kimberly’s chronic drug abuse
placed the children at a substantial risk of harm. 

            In July
2011, the juvenile court removed Kimberly’s six children from her custody and
denied her reunification services because of her chronic and extensive drug
abuse.  The court ordered Kimberly’s
three oldest children returned to the custody of their father and transferred
their case to Sonoma County.  The court
ordered reunification services for the biological fathers of A.D. and Samantha
and set a section 366.26 hearing as to Kimberly’s then four-year-old son,
J.S. 

            In its
report for the six-month review hearing as to A.D. and Samantha, the agency
reported Samantha’s father, Gabriel, had made progress, but A.D.’s father had
not.  It also reported Kimberly received
supervised visits once a month for one hour, with the exception of October and
November 2011 when she was incarcerated. 
According to the agency, A.D. responded very positively to Kimberly
during visitation.  Upon seeing Kimberly,
A.D. immediately smiled and hugged and kissed her. 

            In January
2012, the juvenile court terminated Kimberly’s parental rights at a section
366.26 hearing as to J.S.  J.S. was
adopted five months later.  Also in
January 2012, the juvenile court continued reunification services for Gabriel
as to Samantha, but terminated reunification services for A.D.’s father and set
a section 366.26 hearing for May 2012 as to her. 

            Meanwhile,
Kimberly filed a petition under section 388 asking the juvenile court to modify
its prior order denying her reunification services.  She attached documentation to her petition
evidencing her participation in a dual diagnosis program and Alcoholics
Anonymous/Narcotics Anonymous meetings and completion of various independent
study courses.  As part of the dual
diagnosis program, Kimberly participated in anger management and parenting
instruction. 

In its report for the section
366.26 hearing, the agency recommended the juvenile court terminate Kimberly’s
parental rights as to A.D. and order a permanent plan of adoption.  The agency stated A.D. had a positive
relationship with Kimberly but opined the benefit of adoption outweighed any
benefit she would derive from a continuing relationship with her.  The agency further reported A.D. was with a
foster family that did not want to adopt her, but the agency was confident A.D.
could be placed with either an extended family member willing to adopt her or
with an approved non-related adoptive family. 


            In March
2012, the juvenile court conducted a contested hearing on Kimberly’s section
388 petition.  Kevin Andrews, Kimberly’s
case manager with Kings View counseling, testified he knew Kimberly from the
dual diagnosis program.  He testified she
was fully participating in the program and would enter the third of three
phases in seven weeks. 

            Kimberly’s
pastor testified Kimberly participated in a 12-step-like program at the church
and had a sponsor.  Kimberly’s probation
officer testified Kimberly was successfully meeting the terms of her
probation.  He said she was subject to
random drug testing, but he had not asked her to test and had no reason to
believe she was using drugs.  He further
testified she provided him the results of a hair follicle test she took on her
own and the results were negative. 

            Kimberly
testified she was released from custody in early December 2011 and went to
Kings View the following day to participate in their services.  She said she was benefitting from services
because her attitude had changed and she had a support group for the first
time.  She also believed it would be in
the children’s best interest for her to receive services because she is their
mother and they belong with her.  She
explained that she was overwhelmed with caring for six children and made
mistakes but was trying to rectify them. 


            On
cross-examination, Kimberly testified she had not used drugs for nine
months.  She completed a residential drug
treatment program 12 years previously and attempted residential drug treatment
in 2000 but quit halfway through the program. 
She also participated in an outpatient drug treatment program in Sonoma
County. 

            At the
conclusion of the hearing, the juvenile court denied Kimberly’s section 388
petition, finding there was not a change in circumstances because, though she
was participating in services, she had not completed them. 

            The section
366.26 hearing was continued and set as a contested hearing in October
2012.  Meanwhile, Gabriel filed a section
388 petition asking the juvenile court to deem him A.D.’s presumed father.  Kimberly also filed a section 388 petition
renewing her request for reunification services based on her continuing
progress.  Among the documentation she
attached to her petition was a letter from her therapist projecting her
completion of the dual diagnosis program in November 2012.  The juvenile court scheduled the section 388
petitions to be heard on the date set for the contested section 366.26 hearing
(combined hearing). 

            The
juvenile court convened the combined hearing in October 2012.  Kimberly testified she was arrested
approximately two weeks before the hearing for driving under the influence of
alcohol.  She denied having a problem
with alcohol and admitted her lapse in judgment, but said she was serious about
her recovery and explained she “just wanted to feel normal” when her boss and
coworkers invited her out to celebrate her new job. 

Kimberly also testified she
completed the dual diagnosis, anger management and parenting programs and
continued to test negative for drugs. 
She estimated A.D. had been out of her custody for about 18 months but
she visited her once a month for an hour. 
She took A.D. food and presents and they played, talked and took
pictures.  She said A.D. called her
“Mommy.”  

After hearing all the evidence on
Kimberly and Gabriel’s section 388 petitions, the juvenile court denied
both.  The juvenile court continued the
section 366.26 phase of the hearing to the following week.  Kimberly’s attorney asked the juvenile court
to consider Kimberly’s testimony during the section 388 phase of the hearing
for the section 366.26 hearing. 

            At the
continued hearing, the juvenile court awarded Gabriel sole legal and physical
custody of Samantha.  The court continued
the section 366.26 hearing to perfect notice to A.D.’s father. 

In February 2013, the juvenile
court convened the contested section 366.26 hearing.  The juvenile court ruled, by stipulation, the
evidence presented at the section 388 phase of the hearing would also be
considered.  Kimberly’s attorney did not
present any further evidence.  He
objected to adoption and argued Kimberly and A.D. were bonded and breaking that
bond could “conceivably” cause more harm to A.D. 

            At the
conclusion of the hearing, the juvenile court found A.D. was an adoptable
child, terminated Kimberly’s parental rights and selected adoption as a
permanent plan.  This appeal ensued.

DISCUSSION

            Kimberly contends there was insufficient
evidence to support the juvenile court’s failure to find A.D. shared a beneficial
relationship with her so that termination of parental rights would be
detrimental to A.D.  (§ 366.26,
subd. (c)(1)(B)(i).)  According to
Kimberly, the juvenile court should not have terminated her parental rights
because she parented A.D. for the first half of A.D.’s life, was appropriate
during visitation, and maintained regular visitation with her.  We find no error in the juvenile court’s
termination of Kimberly’s parental rights. 


“‘Adoption, where possible, is the permanent plan preferred
by the Legislature.’  [Citation.]  If the court finds a minor cannot be returned
to his or her parent and is likely to be adopted if parental rights are
terminated, it must select adoption as the permanent plan unless it finds
termination of parental rights would be detrimental to the minor under one of
[the] specified exceptions.”  (>In re L.Y.L. (2002) 101 Cal.App.4th 942,
947.) 

Section 366.26, subdivision (c)(1)(B)(i), the exception at
issue here, bars termination of
parental rights if termination would be detrimental to the child because “[t]he
parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.”  This exception is often referred to as the
“beneficial relationship” exception. 

The requirement that the child “benefit from continuing the
relationship” has been interpreted to refer to a “parent-child” relationship
that “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.) 

            name="SDU_4">The
parent bears the burden of establishing the existence of the beneficial
relationship exception.  (>In re Thomas R. (2006) 145 Cal.App.4th
726, 731.)  To meet the burden of proof
necessary for the exception to apply, “the parent must show more than frequent
and loving contact or pleasant visits … [since] ‘[i]nteraction between natural
parent and child will always confer some incidental benefit to the
child.…’  [Citation.]  [Instead,] the parent must show he or she
occupies a parental role in the child’s life, resulting in a significant,
positive, emotional attachment from child to parent.”  (In re
L.Y.L., supra, 101 Cal.App.4th at
pp. 953-954.) 

            The beneficial relationship
exception in section 366.26, subdivision (c)(1)(B)(i) involves a two-part test
to determine whether:  (1) the parent
maintained regular visitation and contact with the child; and (2) the child
would benefit from continuing the relationship. 
For the exception to apply, “the parent-child relationship [must]
promote the well-being of the child to such a degree that it outweighs the
well-being the child would gain in a permanent home with new, adoptive
parents.  [In re Autumn H., >supra, 27 Cal.App.4th at p. 575.]  A juvenile court must therefore:  ‘balance ... 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.’ (Id. at p. 575.)”  (>In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) 

            name="SDU_5">When a
court rejects a detriment claim and terminates parental rights, the appellate
issue is whether the juvenile court abused its discretion in doing so.  (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)  To conclude there was an abuse of discretion,
the proof offered must be uncontradicted and unimpeached so that discretion
could be exercised in only one way, compelling a finding in the appellant’s
favor as a matter of law.  (>Roesch v. De Mota (1944) 24 Cal.2d 563,
570-571; In re I.W. (2009) 180 Cal.App.4th
1517, 1528.)  Based on our review of the
record, we conclude the juvenile court properly exercised its discretion in
determining the beneficial relationship exception did not apply in Kimberly’s
case.

            There is no dispute Kimberly
maintained regular contact with A.D. and thus satisfied the first part of the
two-part test.  Kimberly failed to
establish, however, the second part, that A.D. would benefit from continuing
her relationship with Kimberly.  While
Kimberly presented evidence A.D. recognized Kimberly as her mother and they had
pleasant visits during which they enjoyed loving contact, Kimberly did not
establish she fulfilled a parental role. 
Nor did she establish it would be detrimental to A.D. to sever their
relationship. 

            Kimberly argues the parent/child
bond she shared with A.D. during the two years she parented her and A.D.’s
positive reaction to her evidence the kind of relationship envisioned by the
beneficial relationship exception. 
Kimberly likens herself to the mother in In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), who “visited as often as she was allowed and acted in a
loving, parental role with [her daughter] when permitted visitation.”  (Id.
at p. 690.)  The Amber M. court found the beneficial relationship exception applied
and reversed the judgment terminating parental rights.  (Id. at
p. 691.)

Amber M., however, is distinguishable on
a key point.  A psychologist who
conducted a two-hour bonding study testified it would be detrimental to sever
Amber’s relationship with her mother.  (>Amber M., supra, 103 Cal.App.4th at p. 689.) 
Kimberly presented no evidence that severing A.D.’s relationship with
her would be detrimental to A.D.

Under these circumstances, the juvenile court reasonably
could determine termination would not deprive A.D. of a substantial, positive
emotional attachment such that she would be greatly harmed.  Accordingly, the juvenile court did not abuse
its discretion by terminating Kimberly’s parental rights. 

DISPOSITION>

The
juvenile court’s order issued on February 15, 2013, terminating Kimberly’s
parental rights is affirmed.