In re Angel G.
Filed 8/22/12 In re Angel G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 THREE
In re ANGEL G., a Person Coming Under the Juvenile Court
Law.
_____________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
GRACIELA M.,
Defendant
and Appellant.
B238880
(Los
Angeles County
Super. Ct. No.
CK76813)
APPEAL
from orders of the Superior Court of
County,
Sherri Sobel, Referee. Affirmed.
Jesse
McGowan, under
appointment by the Court of Appeal, for
Defendant and Appellant.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Jessica S. Mitchell, Associate County Counsel, for Plaintiff and
Respondent.
INTRODUCTION
Graciela
M. (Mother) appeals from orders denying her Welfare and Institutions Code
section 388
title="">[1]
petition and terminating parental rights
to her child, Angel G. We conclude that
Mother’s section 388 petition did not meet her burden of showing a change of
circumstances or that the proposed modification of the order was in Angel’s
best interests, and therefore denial of the petition was not an abuse of
discretion. We also conclude that Mother
did not establish the beneficial relationship exception to termination of
parental rights in section 366.26, subdivision (c)(1)(B)(i), and affirm the
order terminating parental rights.
FACTUAL AND
PROCEDURAL HISTORY
February 27, 2009, when a referral alleged that her children A. E. (age two),
Alexis D. (age four), and Angel G. (age eight) were victims of general neglect
by Mother, who abused methamphetamine in their presence. A glass pipe was found among Mother’s
personal items. Mother neglected the
children, especially when high on the drug, and provided no supervision. Mother spent social security and AFDC funds
to buy the drug, and there was no food in the home.
On
March 13, 2009, Mother said
that the last time she used drugs was methamphetamine three years earlier, and
she was willing to drug test. Mother did
not appear for a drug test scheduled for March 13, 2009, and did not return a CSW’s call
about the missed test. On March 23, 2009, Mother
drug tested negative.
On
March 13, 2009, Mother
reported that Humberto E., father of her youngest child, A. E., was arrested
for domestic violence that occurred
on December 11, 2008, when
Humberto E. beat Mother while the children were present and then fled as Mother
lay unconscious in front of her children.
Mother had a black eye and contusions to her forehead. Humberto E. was arrested and incarcerated for
four months. Mother said she intended to
have Humberto E. return to the home despite the violent episode.
On
March 18, 2009, maternal
grandmother said Mother had used drugs in the past but she did not suspect that
Mother used drugs at the present time.
Maternal grandmother feared for Mother’s safety if Humberto E. returned
to the home.
At
a team decision meeting on April 2,
2009, Mother minimized the domestic violence incident, denied
there was a fight with Humberto E., and changed her story several times. Angel had reported that Humberto E. punched
Mother three times, causing three bumps on her forehead, and also tried to cut
Mother with a knife. When confronted
with the fact that the children reported witnessing the domestic violence,
Mother said they were lying and repeating what the CSW told them.
On
April 2, 2009, the three
children were detained.
On
April 7, 2009, the DCFS
filed a section 300 petition alleging that Angel, Alexis, and A. were described
by section 300, subdivision (b). Count 1
alleged that Mother and Humberto E. had a history of engaging in violent
altercations in the children’s presence, and on December 11, 2008, Humberto E. struck Mother,
inflicting contusions to her head and swelling and bruising to her eyes,
resulting in his incarceration.
Previously Humberto E. tried to stab Mother in the children’s
presence. Count 2 alleged Mother’s
history of illicit drug use, including methamphetamine, which rendered her
incapable of providing regular care and supervision of the children.
At
the April 7, 2009, detention hearing,
the juvenile court found that a prima facie case was established to detain
Angel, Alexis, and A. as persons described by section 300, subdivisions (a) and
(b), and ordered them detained and placed in the custody of the DCFS. The juvenile court ordered the DCFS to
provide family reunification services, ordered monitored visits for Mother
twice per week, and ordered Mother to participate in a domestic violence
counseling support group, a parenting class, a drug treatment program with
random testing, and individual counseling.
jurisdiction/disposition report, the DCFS reported that Mother continued to
deny she had a history of drug use or currently used methamphetamine. Mother admitted using methamphetamine on one
occasion, New Year’s Day, of an unknown year.
Victor D. (father of Alexis D.) stated that he and Mother were heavy
methamphetamine users throughout their relationship, and Mother offered him
drugs on February 14, 2009. Mother
tested negative on two on-demand drug tests on March 23 and April 16, 2009, but
missed her drug test on March 13, 2009.
According to the foster parents, in visits Mother was appropriate with
the children but lacked understanding of their developmental stages.
As
of May 28, 2009, Mother said she was enrolled in counseling. Mother failed to drug test on April 28 and
May 12, 2009. On May 26, 2009, mother
tested positive for amphetamines and methamphetamine.
At
the June 2, 2009, adjudication, the juvenile court amended the subdivision (b)
counts of the petition and sustained those counts, found Angel G., Alexis D.,
and A. E. to be persons described by section 300, subdivision (b), and declared
them dependent children of the court. The
juvenile court ordered the DCFS to provide family reunification services, and
ordered Mother to participate in individual counseling, parenting class, drug
counseling, random drug testing, and domestic violence support group
counseling. Mother was to have monitored
visits at least twice per week.
On
September 18, 2009, the three children were detained from their maternal
grandmother’s custody because of her non-compliance with court-ordered
visitation by the fathers of Alexis and A.
As
of October 22, 2009, the children were placed with a foster caregiver. Mother had 8-hour monitored visits on
Saturdays. The foster caregiver reported
that the children enjoyed spending time with Mother.
As of
December 1, 2009, placement of the children in the home of A.’s paternal
grandmother, Maria E., was approved.
Since being placed in foster care, Angel wanted visits with Victor D.
(father of Alexis D.) and had asked the CSW if he could live with Victor D. Although he said Mother was upset with him
when visited Victor D., he said he would rather live with Victor D. than with
Mother. Mother completed parenting
education on June 15, 2009. She was
enrolled at Avalon-Carver Substance Abuse Program, although her counselor had
not responded to two requests for a progress report. Mother was enrolled with Pacific Toxicology
but had not tested consistently with them; between June 24 and October 28,
2009, she tested negative five times but did not appear for tests seven times. Mother said she was enrolled in a domestic violence
program but did not provide a location and phone number of that program. As of November 9, 2009, Mother had attended
18 individual counseling sessions since April 12, 2009, but had failed to
appear seven times and had canceled two sessions. Mother visited the children regularly on
Saturdays for 8 hours, had not missed any visits, and was appropriate with the
children.
On
November 20, 2009, the children were placed in Maria E.’s home.
Six-Month
Review Hearing: In the December 1,
2009, hearing, the DCFS informed the juvenile court that although Mother
promised evidence that she had tested regularly, Mother’s program had not
responded when contacted. The juvenile
court ordered mother to provide five consecutive, random, clean drug tests, and
set a contested hearing for Mother to provide information on her compliance
with court-ordered programs.
On
December 29, 2009, the juvenile court found Mother had not complied with the
case plan sufficiently for the children to be safe in her custody. The juvenile court, however, found that
Mother had regular and consistent contact with the children, made significant
progress in resolving the problems which led to removal, and showed the ability
to complete objectives of the treatment plan and provide for the children’s
safety, protection, and physical and emotional well-being. The juvenile court ordered the DCFS to
provide family reunification services to Mother, and gave the DCFS had
discretion to increase Mother’s monitored visits in time and duration.
lived with Maria E., who was bonded to them and ensured their basic needs were
met. Angel enjoyed being in Maria E.’s
house and reported that he was well cared for.
Although he had stated he was bored with visiting Mother, recently Angel
had asked to live with her. Angel did
not explain why he felt this way.
Mother
had completed 25 sessions with her individual therapist at the Coalition of
Mental Health Professionals, with her last session on May 25, 2010. A staff person at the Coalition of Mental
Health professional reported to the CSW that Mother said 25 sessions was
all she needed to complete individual counseling. Since the previous period of supervision,
Mother had attended only five individual counseling sessions.
On
March 12, 2010, Mother’s substance abuse counselor at Avalon Carver Community
Center reported that Mother was discharged from the program due to
non-compliance. On April 13, 2010,
Mother enrolled in an inpatient program with Rena B. Recovery Center. She attended for two weeks, but left early
because being in the inpatient program risked losing her Section 8 housing
benefits.
As
of December 1, 2010, Mother had not complied with the court’s order to provide
five consecutive, random, clean drug tests.
Although Mother said she had proof otherwise, she had not submitted that
proof to the CSW. In this six-month
period, Mother submitted to random drug testing only twice. She said she had done random drug testing in
her programs but produced no documentation or test results.
Mother
had attended no domestic violence support group sessions after December 2009,
and attended only four sessions in the previous 12 months.
Maria
E. allowed Mother to tuck in the children at night and spend time with them in
the home. After Mother showed up
unannounced several times and took some of the children’s clothes and Angel’s
x-box to her house without reason, however, Maria E. said she no longer wanted
Mother to come to her home. Mother’s
erratic behavior also caused concerns.
Maria E. said that she sent the children with new clothes to visit
Mother, who took their clothes and changed them into old dingy clothing. In the previous two months Mother’s visits
stabilized and there were no concerns.
The children sometimes reported that they were bored at Mother’s home
because she did not do anything with them.
Angel reported that he desired to live with Mother.
On
July 15, 2010, the DCFS reported that Mother had enrolled in substance abuse
and domestic violence programs, individual counseling, and parenting with
Esperanza Drug and Alcohol Program.
Mother tested positive for amphetamines on May 26, 2010, and did not
appear for drug tests on June 3 and June 17, 2010. Mother was currently five months pregnant.
For
Mother’s 12-month status review hearing on August 12, 2010, the DCFS reported
that Mother did not appear for three drug tests on July 7, July 19, and August
2, 2010.
After
the August 12, 2010, 12-month status review hearing, the juvenile court found
Mother not in compliance with the case plan, and that Mother had not
consistently and regularly contacted and visited with the children, had not
made significant progress in resolving the problems that led to their removal
from the home, and had not demonstrated the ability to complete her treatment
plan and provide for the children’s safety, protection, physical and emotional
well-being. The juvenile court ordered
family reunification services terminated for Mother and set the matter for a
permanent plan hearing for Angel pursuant to section 366.26.
Terminating Parental Rights to Angel:
On November 1, 2010, the DCFS filed a section 300 petition as to
Mother’s child, Baby Girl M., born October 17, 2010. The petition alleged, inter alia, that Mother
used illicit drugs during her pregnancy and had a positive toxicology screen
for amphetamines and methamphetamines on May 26, 2010. Baby Girl M. was ordered detained on November
1, 2010.
On November
5, 2010, the DCFS reported that Mother had been very inconsistent in visiting
Angel and his siblings Tuesdays and Thursdays for two hours at a CSW’s
office. At times Mother called and said
she was coming but did not arrive for the visit and did not call to
cancel. Because of Mother’s inconsistent
visitation her visits were reduced to once per week for two hours. Mother continued not visiting regularly, and
in the previous six months had decreased the frequency of visits with Angel.
Angel
had been placed with his current caregiver since December 2009. At times he still hoped to be reunited with
Mother, but otherwise said he wanted to live with his maternal uncle, Edgar
M. An adoption home study was not yet
completed for Maria E., who expressed interest in adopting Angel.
Mother
failed to appear for a holiday visit with her four children on December 23,
2010.
On
January 5, 2011, the juvenile court terminated jurisdiction as to Angel’s
sibling A. E.
Mother
did not appear for drug tests scheduled for January 28 and 31, February 1, 3,
9, 17, and 22, and March 3, 2011.
Attempts were made to notify her about on-demand drug testing, but she
did not answer the phone or return phone messages. Mother had not appeared for 25 drug tests
between March 13, 2009 and March 3, 2011.
On
March 5, 2011, Mother was arrested and charged with a felony, and was
incarcerated, with a criminal court hearing scheduled on March 8, 2011.
On
March 15, 2011, Mother tested positive for amphetamines and methamphetamines.
On
March 22, 2011, the juvenile court found Baby Girl M. to be a person described
by section 300, subdivision (b), declared her to be a dependent child of the
court, and ordered no family reunification services for Mother pursuant to
section 361.5, subdivision (b)(10), (11), and (13).
In a section
366.26 report filed on May 5, 2011, the DCFS reported that Angel was developing
age appropriately and did not suffer from any emotional or mental
problems. Mother had monitored visits
with Angel and his siblings, but her visits were inconsistent and their
frequency had decreased. Mother went
long periods without visiting and then appeared without making any
arrangements. The caretaker allowed
Mother to visit Angel, but reported that on Mother’s last visit, she appeared
not to be doing well and to be “coming down,” and fell asleep on a bed with the
children while watching television.
Mother had appeared at the caretaker’s home while under the influence. The caretaker reported that Mother wanted to
bring boyfriends into the home, and reported occasions when Mother and her
boyfriend parked outside of the house and smoked in the car and did not come
into the home.
Since
November 20, 2009, Angel had lived with Maria E. She said she loved Angel, did not want him
placed in another home, wanted to ensure that he maintained a connection with
his siblings, and expressed her desire to adopt Angel. Angel had done well in the care of Maria E.,
who provided all his basic needs.
On
July 5, 2011, Mother’s letter to the juvenile court stated that she was deeply
sorry for not being able to comply with requirements of the DCFS and the
juvenile court. Mother stated that she
suffered from depression, which became worse when her children were removed
from her. She said that she had a
disability that did not let her finish any task she started, and had been in
and out of therapy and medication. She
said she loved her children but felt helpless, hopeless, and overwhelmed. She desired adoption of her children by her
mother, her brother Edgar M., or her cousin.
On
August 2, 2011, the juvenile court ordered termination of Mother’s parental
rights to Baby Girl M.
On
November 10, 2011, Mother filed a section 388 petition seeking a change in the
order placing Angel G. in a legal guardianship and allowing Mother monitored
visits with the children. Mother’s
petition stated that she participated in an intensive 90-day inpatient program,
transitioned to an outpatient program that she was currently attending, and was
now clean and sober, visiting the children regularly, and was prepared to
commit to being a good parent and making sure her children were her
priority. Mother stated that she and her
children were very bonded, that she had maintained regular contact, and that
her children told her they wanted to be back in Mother’s care.
On
November 18, 2011, the juvenile court ordered jurisdiction terminated as to A.
E.
On
December 12, 2011, the DCFS informed the court that the adoption home study for
Maria E. was approved. The juvenile
court granted a hearing on mother’s section 388 petition and granted Mother a
Christmas visit with Angel.
On
January 9, 2012, the juvenile court conducted a hearing on Mother’s section 388
petition and a section 366.26 hearing.
Angel, age 11, testified that he lived with his grandmother, Humberto
E., and his brother A. E. Mother visited
on Saturdays, but sometimes arrived late for visits. Sometimes they went to a movie theater or a park. Angel said his visits with Mother lasted
about two hours, were good, and that he would like to have more visits with
her, two or three times a week for longer than two hours. When asked how he felt about living with
Mother, he answered that he did not know.
He did not know where Mother lived, and testified that he did not want
to be able to spend the night at her house.
Mother
testified that in July 2011 she enrolled in the Mujer Prosposito drug program
in Tijuana, Mexico, where she stayed in an inpatient program for 90 days. The program had Narcotics Anonymous and
Alcoholic Anonymous meetings, psychiatric counseling, job training, and group
meetings and classes. There was no drug
testing. She completed the program on
October 24, 2011. The next day she
signed up for Shiloh Ministries, an outpatient program where she took drug and
alcohol classes, anger management, victims of domestic violence, and spiritual
classes, and had one-on-one counselors.
There was drug testing at Shiloh, where Mother was still enrolled, with
an expected completion date of January 24, 2012. Mother testified that the last time she used
illegal drugs was five months previously.
On cross-examination, Mother testified that since 2009 she had enrolled
in four programs, but did not complete the first two.
Maria
E. testified that Angel had lived with her for two years. Mother formerly had visits once a week, but
those visits were reduced five months previously and she was now scheduled to
visit twice a month. Maria E. testified
that if she were allowed to adopt Angel, he could continue to have visits with
Mother as long as he wanted to. Although
Mother formerly came to Maria E.’s house to see the children, lately Mother had
not come to Maria E.’s house.
Christina
Herrera, a DCFS social worker, arranged visits for Mother and Angel. Herrera believed that Angel would be at risk
if he were returned home to Mother, because Mother had been sober only for
approximately five months, and had been in her outpatient program for only two
months. Herrera offered Mother visits
with Angel at the DCFS office, but Mother said she could not make visits there.
The
juvenile court denied Mother’s section 388 petition, finding Mother had not
maintained sobriety for even six months and that Mother could not show changed
circumstances. The juvenile court found
that the proposed change of order would not promote the child’s best
interest. The juvenile court also found
no exceptions to the termination of parental rights, ordered parental rights to
Angel G. terminated, and ordered care, custody, and control of Angel G. transferred
to the DCFS for adoption planning and placement.
Mother
filed a timely notice of appeal from the order terminating parental rights.
ISSUES
Mother
claims on appeal that:
1. The juvenile court abused its discretion by
denying Mother’s section 388 petition because Mother addressed her
substance abuse problem and showed that returning Angel home promoted his best
interests; and
2. Mother met her burden of establishing the
beneficial relationship exception by caring for Angel most of his life and
where Angel desired more contact with Mother.
DISCUSSION
1. The
Juvenile Court’s Order Denying Mother’s Section 388 Petition Was Not an
Abuse of Discretion
Mother
claims that the order denying her section 388 petition was an abuse of
discretion, and that the juvenile court erroneously found that Mother failed to
show changed circumstances or that returning Angel to her care would promote
his best interests. We disagree.
A. Standard
of Review
Once the
juvenile court orders termination of reunification services, a rebuttable
presumption arises that continued care is in the child’s best interest. The focus shifts away from the precedence
formerly given to the parent’s interest in reunification and toward the child’s
need for permanency and stability, and the court is not required to consider
the issue of reunification at the section 336.26 hearing. To revive the reunification issue, the parent
bears the burden of rebutting the presumption by proving in a section 388
petition that changed circumstances warrant further consideration of
reunification. (In re Marilyn H.
(1993) 5 Cal.4th 295, 309-310.)
“Under
section 388, a parent may petition the court to change, modify, or set aside a
previous court order. The petitioning
party has the burden of showing, by a preponderance of the evidence, that [1]
there is a change of circumstances or new evidence, and [2] the proposed
modification is in the minor’s best interests.”
(In re S.M. (2004) 118
Cal.App.4th 1108, 1119.) The petition is
addressed to the sound discretion of the juvenile court, whose decision this
court will not disturb absent a clear abuse of discretion, defined as whether
the juvenile court exceeded the bounds of reason. (Ibid.)
B. Mother’s
Petition Did Not Meet Her Burden of Showing a Change of
Circumstances or That
the Proposed Modification Was in Angel’s Best
Interests
i. Mother
Did Not Show Changed Circumstances
Mother
argues that circumstances had changed in that she had completed two drug
counseling programs and was testing clean.
Mother,
however, failed to appear for random drug testing several times in January and
February 2011. Mother tested positive
for amphetamine and methamphetamine on March 15, 2011. In this period Mother had appeared at the
caretaker’s home while under the influence.
Mother admitted using illegal drugs five months before the January 9,
2012, hearing on her petition. Thus the
evidence supported the juvenile court’s finding that Mother could not show
changed circumstances or even changing circumstances. The fact that five months previously Mother
had continued to use illegal drugs showed that she had not overcome the drug
dependency which led to the juvenile court jurisdiction. To show real reform of drug addiction one
must be “clean” for a much longer period than five months. (In re
Anthony W. (2001) 87 Cal.App.4th 246, 251.)
In July 2011, Mother admitted that she had been unable to comply with
the court-ordered case plan. She had
attended court-ordered individual counseling inconsistently and attended few
domestic violence group counseling sessions.
She failed to reunify with her three other children.
“A petition which alleges merely
changing circumstances and would mean delaying the selection of a permanent
home for a child to see if a parent, who has repeatedly failed to reunify with
the child, might be able to reunify at some future point, does not promote
stability for the child or the child’s best interests.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 47.)
The juvenile court correctly found that Mother had not even alleged
changing circumstances, much less changed circumstances.
ii.
Modification Was in Angel’s Best
Interests
Mother
argues that she shared a close relationship with Angel and that returning Angel
to her care promoted his best interests.
Section 388 requires
not only the parent’s showing of a genuine change of circumstances. It also requires a parent to show that
setting aside the prior order would promote the child’s best interests. (§ 388, subd. (a), (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The child’s best interests involve a
consideration of the following factors:
“(1) the seriousness of the problem which led to the dependency, and the
reason for any continuation
of that problem; (2) the strength of relative bonds between the dependent
children to both parent and
caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (Id.
at p. 532.)
One of the
two main problems that led to the dependency was Mother’s use of the illegal
drugs amphetamine and methamphetamine, a serious problem. As we have stated, Mother had not shown that
the problem had actually been removed or ameliorated. Mother did not show that the second
factor—the strength of relative bonds between Angel and Mother and Angel and
Maria E.—required the granting of the petition.
Mother’s visitation remained monitored throughout the dependency
proceeding. Mother’s visitation had
become inconsistent during the first five months of 2011, when long periods
passed without Mother visiting. From May
to November of 2011, Mother’s frequency of visits with Angel decreased. At the time of the January 9, 2012, hearing,
Angel had not lived with Mother for nearly three years, having been detained
from her custody on April 2, 2009.
While in foster care in 2009, Angel asked to go and live with his
sibling’s father, Victor D., and said he would rather live with Victor D. than
with Mother. Angel lived with Maria E.,
his sibling A.’s paternal grandmother, since November 20, 2009, and thus by
January 9, 2012, had lived with Maria E. for more than two years. In that period Angel said he desired to live
with Mother, but also said he desired to live with his maternal uncle, Edgar
M. At the section 388 hearing when Angel
was asked how he felt about returning to live with Mother, he answered that he
did not know. He did not know where
Mother lived and testified that he did not want to be able to spend the night
at her house. In Maria E.’s home,
Angel’s needs were met, he was with his siblings, he had done well in school,
and he was in a stable environment free of exposure to drugs or domestic
violence. Angel said he felt safe and
well cared for in Maria E.’s home.
Mother did not show that her bond with Angel outweighed his interest in
living in a safe, stable home.
Mother’s
section 388 petition did not meet her burden of rebutting the presumption that
continued care is in the child’s best interest by showing that changed
circumstances warranted further consideration of reunification. (In re
Marilyn H., supra, 5 Cal.4th at pp. 309-310.) Mother did not show she was able to offer
Angel a stable, safe environment free from the risk of exposure to her drug use
or to domestic violence. (See
1230.) Even if Mother was progressing in
her treatment, she was not yet ready to have Angel returned to her and that
change of custody would not be in Angel’s best interests. (See In
re Amber M. (2002) 103 Cal.App.4th 681, 687.) Denial of Mother’s section 388 petition was
not an abuse of discretion.
2.
Relationship Exception to
Termination of Parental
Rights of Section 366.26, Subdivision (c)(1)(B)(i)
Mother
claims that the juvenile court erroneously rejected Mother’s showing of the
beneficial relationship exception to termination of parental rights because
Mother cared for Angel the majority of his life and Angel desired more contact
with her. We find that substantial
evidence supports the juvenile court’s ruling.
A. Standard
of Review
“
‘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
five specified exceptions.” (In re L.
Y. L. (2002) 101 Cal.App.4th 942, 947.)
The
burden then shifts to the parent to show that termination of parental rights
would be detrimental to the child under an exception in section 366.26,
subdivision (c)(1). Pursuant to section
366.26, subdivision (c)(1)(B)(i), the beneficial relationship exception to the
adoption preference applies if termination of parental rights would be
detrimental to the child because the “ ‘parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.’ ” (
549, 553.)
This court reviews a finding that the
beneficial parent-child relationship exception under section 366.26,
subdivision (c)(1)(B)(i) did not apply according to the substantial evidence
test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228.)
“The
issue of sufficiency of the evidence in dependency cases is governed by the
same rules that apply to other appeals.
If there is substantial evidence to support the findings of the juvenile
court, we uphold those findings.
[Citation.] We do not evaluate
the credibility of witnesses, reweigh the evidence, or resolve evidentiary
conflicts. Rather, we draw all
reasonable inferences in support of the findings, consider the record most
favorably to the juvenile court’s order, and affirm the order if supported by
substantial evidence even if other evidence supports a contrary
conclusion. [Citation.] The appellant has the burden of showing the
finding or order is not supported by substantial evidence.” (In re L. Y. L., supra, 101 Cal.App.4th at p. 947.)
B.
Evidence of Regular Visitation
and Contact With Angel
Although
Mother maintained regular visitation and contact during the first year of
Angel’s dependency, by the August 12, 2012, 12-month status review hearing, the
juvenile court found she had not consistently and regularly contacted and
visited her children. In the next
six-month period, Mother’s visits became inconsistent, and at times she called
and said she was coming but did not arrive for a visit or call to cancel. Mother’s inconsistent visitation resulted in
her visits being reduced to once per week for two hours. By November 5, 2010, Mother continued not
visiting regularly, and the frequency of her visits with Angel decreased. Mother did not appear for a holiday visit
with her children on December 23, 2010.
By May 2011, Mother’s visits with Angel remained inconsistent, and
Mother went long periods without visiting and then appeared without making any
arrangements. There were occasions when
Mother appeared at the caretaker’s home while she was under the influence. Mother did not visit from July through
October 2011, when she was in a drug program in Mexico. At the time of the January 9, 2012, hearing, Angel had not
lived with Mother since being detained from her custody on April 2,
2009. Mother did not meet her burden of
showing regular visitation and contact.
C.
Mother Has Not Shown That Angel
Would Benefit from Continuing the
Parent-Child
Relationship
As
to whether Angel would benefit from continuing his relationship with Mother,
the “benefit of relationship” test has several factors. “A beneficial 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.’ [Citation.]
The existence of this relationship is determined by ‘[t]he age of the
child, the portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and child, and
the child’s particular needs.’ [Citation.]”
(In re Amber M., supra, 103
Cal.App.4th at p. 689. Although the
statute does not define the exact nature of the parent-child relationship which
must exist to apply the statutory exception to terminating parental rights,
“the relationship must be such that the child would suffer detriment from its
termination.” (In re Angel B. (2002) 97
Cal.App.4th 454, 467.)
Angel
was 11 years old as of the January 9, 2012, hearing, but had not lived with
Mother for more than two years and eight months since he was detained on April
2, 2009. Angel had lived in the home of
Maria E. since November 20, 2009, and thus by January 9, 2012, had lived with
Maria E. for more than two years. Angel
was well cared for in Maria E.’s home, his basic needs were met, and he lived
with his siblings. When Angel was asked
how he felt about living with Mother, he answered that he did not know. He did not know where Mother lived and
testified that he did not want to be able to spend the night at her house. There was no particularly “positive” effect
of the interaction between Mother and Angel, and as noted Mother’s visitation
and contact with Angel had become inconsistent and had reduced in frequency in
the previous year. Mother, moreover, had
not overcome her drug addiction despite enrollment in four different programs
in the previous two and a half years.
There was no evidence that Angel would suffer detriment from the
termination of his relationship with Mother, and Mother did not show that
“severing the natural parent-child relationship would deprive [Angel] of a
substantial, positive emotional attachment such that the child would be greatly
harmed.” (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics
omitted.) There was no evidence that
Angel and Mother had a beneficial relationship that promoted Angel’s well-being
to such a degree as to outweigh the well-being he would gain in a permanent
home with new, adoptive parents. (
The evidence showed that in Maria E.’s home, Angel lived with siblings
in a stable environment where he was doing well. Substantial evidence supported the juvenile
court’s finding that Mother had not provided evidence to satisfy the beneficial
relationship exception to termination of parental rights.
Mother
argues that the juvenile court’s statement in the January 9, 2012, hearing
relied on an improper factor in determining that the beneficial relationship
exception did not apply. The juvenile
court stated: “I don’t believe that the
mother will not be able to see this child.
I do believe that the father of . . . his sibling is certainly going to
allow her to see the child. [¶] And I have . . . absolutely no intention of
fashioning visitation orders once I terminate parental rights. That will not happen.”
Mother
cites In re C.B. (2010) 190
Cal.App.4th 102, which found that the juvenile court injected an improper
factor—the prospective adoptive parents’ willingness to allow the children to
have continued contact with the mother—into the weighing process. (Id. at
p. 128.) In re C.B. held: “[I]f a
juvenile court determines that a parent has ‘maintained regular visitation and
contact’ (§ 366.26, subd. (c)(1)(B)(i)), that there is a ‘substantial, positive
emotional attachment’ between child and parent benefitting the child
[citation], and that the benefit from continuing that parent-child relationship
in a tenuous placement ‘promotes the well-being of the child to such a degree
as to outweigh’ the benefit that child would gain from the stability and
permanency of adoption [citation], then the parent-child relationship exception
is established. In those circumstances,
the court cannot nevertheless terminate parental rights based upon an
unenforceable expectation that the prospective adoptive parents will
voluntarily permit future contact between the child and a biological parent,
even if substantial evidence supports that expectation.” (In re
C.B., at p. 128.)
Here
the juvenile court did not determine that Mother had maintained regular
visitation and contact or that the benefit from continuing the parent-child
relationship promoted Angel’s well-being to such a degree as to outweigh the
benefit he would gain from the stability and permanency of adoption. Thus unlike in In re C.B., the parent-child relationship exception was not
established. We do not find that the
juvenile court erroneously injected an improper factor into its weighing
process.
DISPOSITION
The orders
are affirmed.
KITCHING,
J.
We
concur:
KLEIN, P. J.
ALDRICH, J.
name="_ftn1" title="">[1] Unless otherwise specified, statutes in this opinion will
refer to the Welfare and Institutions code.
