In re Angel S.

Filed 7/25/08 In re Angel S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard D. Hughes, Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.

Mother Grace S. appeals from the order under Welfare and Institutions Code section 366.26[1]terminating her parental rights to daughter Angel S. Mother contends that substantial evidence does not support the juvenile courts finding that the exception to termination under section 366.26, subdivision (c)(1)(B)(i), did not apply.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2006, Los Angeles County Sheriffs deputies executed a search warrant at the home of Mothers family, and found methamphetamine and drug sales paraphernalia. Ten-month-old Angel (born in October 2005) was present in the home. A maternal aunt had been caring for Angel there since March 2006. Mother had abandoned Angel in February 2006, leaving her with a sister who, in turn, had asked the maternal aunt to care for Angel. Mothers whereabouts were unknown, as was the identity of Angels father.[3]

Later in August 2006, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition alleging that Mother failed to provide for Angels needs and left Angel in a detrimental home environment. ( 300, subds. (b) & (g).) Angel was detained in the home of a maternal great aunt, Lilly M.

In September 2006, Mother first appeared in the proceedings, and in October 2006 entered a jurisdiction and disposition agreement. Pursuant to the agreement, the court sustained the petition as to an amended allegation that Mother failed to provide Angel with the necessities of life ( 300, subd. (g)). Angel was declared a dependant minor, removed from Mothers custody, and placed with Mothers great aunt Lilly. The court ordered Mother to participate in family reunification services, including completion of parenting education, individual counseling, and visitation with Angel twice a week.

At the six-month review hearing in April 2007, DCFS reported that Mother had completed 16 weeks of parenting classes, but had not enrolled in individual counseling despite claiming to have completed two sessions. Mother had participated in 8 visits with Angel, but her visitation was inconsistent, with several no call/no shows. According to Lilly, with whom Angel was placed, Mothers interaction with Angel was limited, and Mother had not formed a bond with the child. Mother blamed her inconsistent visitation on her job schedule and on the bus schedule.

Mothers counsel informed the court that Mother said that it had been difficult to set up consistent visits because Angel was not always available. Counsel requested, and the court ordered, that DCFS work with Mother to arrange visitation once a week.

At the continued review hearing in May 2007, DCFS reported that Mother was not in compliance with the case plan. She had not attended parenting classes since the last court hearing in April, and was still not attending individual counseling even though she claimed to be. Further, the social worker stated that in an attempt to help Mother arrange visitation, the worker had asked Mother to provide verification of her employment and work schedule so that visits could be arranged. However, Mother failed to provide a schedule or employment verification. DCFS recommended that reunification services be terminated and that a permanent plan of adoption by Lilly be implemented.

The court found that Mother was not in compliance with the case plan, terminated reunification services, and set the case for a 366.26 hearing.

In its section 366.26 report dated September 2007, DCFS reported that Mothers visitation with Angel remained inconsistent. She had no visits in July. She visited on August 3 and 17, but failed to appear for visits on August 10, 24 and 31. Lilly described Mothers visits as poor. Mother had minimal interaction with Angel, and never changed Angels diapers or fed her when it was time to eat. According to Lilly, Mother appeared unable to connect with Angel. She showed no patience, and lacked even minimal parenting skills such as interacting in play and speech. Lilly had developed a strong bond with Angel, and DCFS recommended a plan of adoption by her and her husband. In a status review report in November 2007, DCFS reported that, according to Lilly, Mother visited Angel only once in October.

At a permanency planning review hearing in November 2007, Mothers attorney characterized visitation in Lillys home as hostile, and argued that Lillys description of Mothers visits with Angel was slanted because Lilly had no interest in Mother reunifying with Angel. Mothers attorney asked that the visits be moved to the DCFS office and monitored by DCFS. The court set up a schedule of two-hour visits (subject to modification by the parties), to be monitored by DCFS, and set the case for a contested section 366.26 hearing, with adoption as the permanent plan goal.

The section 366.26 hearing was held in January 2008. At the hearing, the prior DCFS reports were admitted into evidence. Mother called Jesus Cuevas, the DCFS case worker, who testified (based on notes from the file) that Mother visited with Angel on November 30, December 7, 14, and 28, and January 4 and 11. She missed one visit (December 7) because she had the flu. The monitoring social worker reported that the visits went well and Angel was comfortable during the visits.

Mother testified and disputed the DCFS report that her visitation in 2007 at Lillys home had been inconsistent. According to Mother, she visited Angel approximately 12 times (three times a month) at Lillys home in 2007 starting in February. The visits lasted two hours. Mother would color with Angel, play with her toys, and eat lunch. However, Mother couldnt really do much because [Lilly] was always right there. . . . [Mother] always felt like [she] and Angel could never have a close bond together because she would always be right there. So Angel wouldnt know if to look at [Mother] or look at [Lilly]. According to Mother, Angel would run to Mother when she arrived because she was happy. When Mother left, Angel would drop to the ground and hug Mother.

When the visits took place in the DCFS office, Angel would run to Mother, hug her, sit on her, and want Mother to look at everything she was looking at. They would color and watch movies. Mother made Angel a bracelet. Angel would throw herself on the floor when Mother left as if she did not want to return to Lilly. Mother believed that she had a bond with Angel, and asked the court not to terminate her parental rights.

Mothers counsel argued that the exception to termination under section 366.26, subdivision (c)(1)(B)(i) applied because, despite the representation by DCFS, Mother had visited with Angel consistently and developed a bond with her. The court ruled: I think the law is pretty clear, and the cases basically say that the court should favor the permanent plan over a relationship that a parent might have if the relationship is mainly being a friend or just visiting and spending time with the child. The court does not believe that under the circumstances the mother enjoys a parental-type relationship. And the mother does not have a bond, and . . . cannot provide the child with a permanent living situation. Therefore, the court has no alternative except at this time to find, by clear and convincing evidence, that parental rights should be terminated. The court also found that Angel was adoptable.

Mother appeals from the order terminating her parental rights.

DISCUSSION

Mother contends that substantial evidence does not support the courts finding that the exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i), did not apply. We disagree.

The exception to termination of parental rights provided by section 366.26, subdivision (c)(1)(B)(i), requires the parent to prove that he or she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent must prove both prongs of this test: consistent visitation and a beneficial relationship with the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.) Further, the beneficial relationship must be sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [loss of mere frequent and loving contact with parent insufficient to show detriment].) The benefit to the child from continuing such a relationship must also be such 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., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the childs need for a parent. ([In re] Jasmine D. [(2000)] 78 Cal.App.4th at p. 1350.) Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. (Autumn H., at p. 573.) (In re Aaliyah, supra, 136 Cal.App.4th at pp. 449-450.)

Because the court expressly ruled on only the beneficial-relationship prong of the exception (finding that an insufficient relationship existed to trigger the exception), Mother contends that the court impliedly found that she had met the first prong of the exception regular visitation and contact. She is mistaken.

We review the determination that the exception does not apply for substantial evidence. (Autumn H., supra, 27 Cal.App.4th at p. 576; but see Jasmine D, supra, 78 Cal.App.4th at p. 1351 [applying abuse of discretion standard].) Under the substantial evidence standard, we view the evidence in the light most favorable to the lower courts ruling, and draw all inferences in favor of the ruling. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Moreover, we imply in support of the ruling all factual findings necessary to the ruling, unless the lower court expressly found to the contrary. (See Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [explaining doctrine of implied findings applicable to appellate review].)

Here, the lower court did not find that Mother had maintained regular visitation and contact with Angel. Therefore, we imply in support of the courts ruling a finding that Mother did not meet this prong of the exception. Substantial evidence supports such a finding. To a certain extent, the evidence on the consistency of Mothers visitation was conflicting. DCFS reported, based largely on statements by Lilly, that Mothers visitation through November 2007 was inconsistent, with many missed or canceled visits. At the section 366.26 hearing, however, Mother testified that her visitation was regular. On appeal, we resolve this conflict in favor of upholding the lower courts ruling. The DCFS reports, supported by Lillys characterization of Mothers visits, constitutes substantial evidence to support a finding that Mother failed to maintain consistent visitation and contact with Angel. Thus, on this ground alone, Mother failed to prove the applicability of the exception.

Further, substantial evidence supports the courts express finding that Mother failed to establish the type of relationship with Angel required to avoid termination of parental rights. DCFS reported, again based largely on statements by Lilly, that Mother failed to bond with Angel. In April 2007, Lilly stated that Mothers interaction with Angel during visits was limited. In September 2007, Lilly told DCFS that during visitation Mother lacked even minimal parenting skills such as interacting in plan and speech. Indeed, Mothers own testimony at the section 366.26 hearing established, at most, a friendly and loving relationship characterized by pleasant interaction, but not one reflecting a parent-child connection. The juvenile court did not err in concluding that Mother failed to prove the applicability of the section 366.26, subdivision (c)(1)(B)(i) exception.

DISPOSITION

The order terminating Mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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[1] All undesignated section references are to the Welfare and Institutions Code.

[2] That exception, formerly found in subdivision (c)(1)(A), provides in relevant part that the court may find a compelling reason for determining that termination would be detrimental to the child if [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).)

[3] Angels father has not yet been identified, and no one claiming to be Angels father made an appearance in this case.