In re Alexis M.
Filed 1/23/14 In re Alexis M. CA2/6
NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re In The
Matter of ALEXIS M., a Person Coming Under the Juvenile Court Law.
2d Juv. No. B248966
(Super. Ct. No. J1395693)
(Santa Barbara
County)
SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES,
Petitioner and Respondent,
v.
CHRISTINA D.,
Respondent and Appellant.
Christina D. (mother) appeals from an order terminating
her parental
rights
old, and selecting adoption
as the permanent plan. (Welf. &
Inst. Code, § 366.26.)
name="_ftnref1" title="">[1] Mother argues that her counsel was
ineffective because he failed to present an offer of proof as to the
termination of parental rights. (§
366.26, subd. (c)(1)(B)(i).) We affirm.
"[M]other has a long
history of addiction to pain medications
dating back to
2004 . . . ."
In February 2011 mother "was admitted to the
overdose" of various drugs. She had
been found "passed out on the floor."
Mother's probation officer ordered her to enter a residential drug treatment
program. She entered the program but
failed to complete it.
In November 2011 child was
found wandering in the street outside her home while mother was asleep inside under
the influence of prescription drugs. A
social worker inspected the home, which was in a state of
"disarray." The social worker
concluded that the home "was hazardous for an active three year old."
The juvenile court ordered that child be
detained and removed from mother's home. Mother was granted the right to visit child
three times a week provided that she submitted to random drug testing and did
not test positive. Mother "relapsed
. . . [on] January 4, 2012, and spent close to
thirty days in custody . . . ."
On January 26, 2012, child was declared a dependent of
the juvenile court. Santa Barbara Child
Welfare Services (CWS) was ordered to provide reunification services to mother.
On January 30, 2012, mother entered Project Preemie, a
residential treatment program. She was
discharged from the program in June 2012 because of medical problems related to
"Pseudo Seizures." After her
discharge, she enrolled in an outpatient treatment program. According to a status review report signed on
June 27, 2012, during the review period
mother had "consistently tested clean for all illegal substances." Mother had also "consistently visited
with her daughter twice a week."
In July 2012 mother
relapsed. An addendum report signed on July 17, 2012, notes that "mother has
consistently tested positive for opiates since July
5, 2012, although she denies any abuse."
Mother missed a drug test scheduled for July
15, 2012. She was discharged from the
Family Drug Treatment program for "failure to make progress during the
past six months in addressing her addiction to pain medications."
On July 31, 2012, mother was admitted to the Another
Road Detox treatment program. "She
was discharged on August 2, 2012 and did not return to
treatment until August 14, 2012." On September
3, 2012, she missed a drug test. On
September 27, 2012, the juvenile court granted CWS's request to "change
the case plan visitation section" to provide that, if "mother tests
positive or misses a drug test, visitations will be suspended until the mother
can provide two consecutive clean test[s]."
In a status review report signed
on January 2, 2013, CWS observed that during
the review period mother had missed 25 group meetings, had tested positive for
drugs on four occasions, and had missed four drug tests. She was "unsuccessfully discharged"
from the Recovery Way treatment program. On December
12, 2012, mother's visits with child were suspended because she had tested
positive for morphine. CWS requested
that the juvenile court terminate mother's reunification services and set a selection
and implementation hearing pursuant to section 366.26. The court granted the request.
In the section 366.26
report signed on April 22, 2013, CWS recommended that
mother's parental rights be terminated.
CWS noted that, since November 2011, child has been living with her
maternal grandmother, who is committed to adopting her. Except for a 15-minute visit on Easter
Sunday, mother "has not visited with [child] since December of 2012, due
to not being enrolled in a treatment program, failure to provide a clean drug
test, and her non-compliance with the terms and conditions of her probation,
which has resulted in a warrant for her arrest."
The section 366.26 hearing
was set for May 2, 2013. On that date mother's counsel stated that his
client had asked him to calendar the matter for a contested hearing. But counsel informed the court that
"none of the exceptions that would defeat the preference for adoption
apply, based on my review of the case."
Counsel said that he had "advised the mother that the only option
available to us at this point is to rest."
The court continued the hearing to May 16,
2013, and told mother's counsel that he was "required to file an offer
of proof" by May 9.
At the hearing on May 16, 2013, mother's counsel declared,
"I've reviewed the file and I'm unable to file an offer of proof. We would be resting." The juvenile court terminated mother's
parental rights and selected adoption as the permanent plan.
"If the court finds
[at a section 366.26 hearing] that a child may not be returned to his or her
parent and is likely to be adopted, it must select adoption as the permanent
plan unless it finds that termination of parental rights would be detrimental
to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th
823, 826.) The court may "require
an offer of proof before conducting a contested hearing on one of the statutory
exceptions to termination of parental rights." (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) Mother contends that her counsel was
ineffective for failing to present an offer of proof as to the beneficial
relationship exception, which applies if "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship."
(§ 336.26, subd. (c)(1)(B)(i).)
"A beneficial relationship 'is one 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." [Citation.]' " (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
A
parent in a dependency proceeding has a statutory right to "competent
counsel." (§ 317.5, subd.
(a).) At the termination of parental
rights stage, a parent may also have a constitutional right to the effective
assistance of counsel. (
a parent must show that counsel's performance was deficient because it
"fell below an objective standard of reasonableness under prevailing
professional norms [citation]." (
94, 102.) The parent must also show that
counsel's deficient performance "made a determinative difference in the
outcome, rendering the proceedings fundamentally unfair in that it is
reasonably probable that but for such [deficiency], a determination more
favorable for [the parent's] interests would have resulted.' [Citations.]
In short, [mother] has the burden of proving both that [her] attorney's representation
was deficient and that this deficiency resulted in prejudice. [Citation.]" (
U.S. 668, 696 [104 S.Ct. 2052, 80 L.Ed.2d 674] ["A court making the
prejudice inquiry must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been different absent the
errors"].)
title="">[2]
We need not determine
whether counsel performed deficiently by not presenting an offer of proof as to
the beneficial relationship exception.
Even if counsel's performance were deficient, it would not have
prejudiced mother because she has failed to show there is a reasonable
probability that, but for counsel's deficiency, the outcome would have been
different. The outcome would have been
different only if mother had succeeded in proving the beneficial relationship exception. (See In
re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 ["The party
claiming an exception to adoption has the burden of proof to establish by a
preponderance of evidence that the exception applies"].)
The evidence does not
establish the exception's first prong: that mother "maintained regular
visitation and contact with the child."
(§ 336.26, subd. (c)(1)(B)(i).)
In December 2012 her visitation rights were suspended because she had
tested positive for morphine. At the
time of the section 366.26 hearing in May 2013, mother had visited child only once
in the previous five months, and that one visit lasted only 15 minutes. We reject mother's contention that the
suspension of her visitation rights was unreasonable. Mother had fair warning that a positive test
would result in a suspension. On September 27, 2012, the juvenile court ordered that, if
"mother tests positive or misses a drug test, visitations will be
suspended until the mother can provide two consecutive clean test[s]." If mother wanted visitation to resume, she
should have provided the required two clean tests.
The evidence also does not
establish the exception's second prong: that "the child would benefit from
continuing the relationship."
(§ 336.26, subd. (c)(1)(B)(i).)
"Satisfying the second prong requires the parent to prove that
'severing the natural parent-child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly
harmed. [Citations.] A biological parent who has failed to reunify
with an adoptable child may not derail an adoption merely by showing the child
would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent.'
[Citation.] Evidence that a
parent has maintained ' "frequent and loving contact" is not
sufficient to establish the existence of a beneficial parental
relationship.' [Citation.]" (In re
Marcelo B., supra, 209
Cal.App.4th at p. 643.) "[A] child
should not be deprived of an adoptive parent when the natural parent has
maintained a relationship that may be beneficial to some degree but does not
meet the child's need for a parent."
(In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350.)
The evidence does not show
" 'a substantial, positive emotional attachment [to mother] such
that the child would be greatly harmed' " if the relationship were
terminated. (In re Marcelo B., supra,
209 Cal.App.4th at p. 643.) The evidence
shows only that mother had a friendly or familiar relationship with child. The maternal grandmother reported that child
"looks forward to visits with the mother." During visits, mother "would play games,
read, and or complete crafts." Until
visits were suspended in December 2012, mother visited child every Saturday. Mother told social workers that child
referred to Saturday as "mommy day." April Jackson, who works for Hope Services,
"reported that [child] occasionally . . . says she misses her mother,
although her main attachment figure is the [maternal] grandmother."
"[A] parental
relationship is necessary for the exception to apply, not merely a
deprived of an adoptive parent when[, as here,] the natural parent has
maintained a relationship that may be beneficial to some degree but does not
meet the child's need for a parent." (In re Jasmine D., supra, 78
Cal.App.4th at p. 1350.) Thus, it is not
reasonably probable that mother would have established the beneficial
relationship exception but for counsel's allegedly unprofessional error in not
presenting an offer of proof. "This
is not the extraordinary case where an adoption should have been foreclosed by
the exception provided in section 366.26, subdivision (c)(1)(A) [now
(c)(1)(B)(i) ]." (
at p. 1352.)
The judgment (order terminating parental
rights and selecting adoption as the permanent plan) is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
David A. Hamilton, under appointment by the
Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara and Bo L. Bae, Deputy,
for Respondent.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] We reject mother's contention that
"the Chapman standard of
harmless beyond a reasonable doubt, should apply in this case." (Chapman
v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)
