In re Anthony C.

Filed 8/26/08 In re Anthony C. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Valerie Skeba, Juvenile Court Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Angela G.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Associate County Counsel for Los Angeles County Department of Children Services.

______________

Angela G., the mother of five-year-old Anthony C., appeals from the juvenile courts January 15, 2008 order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.[1] Angela G. argues the court erred in failing to apply the parent-child relation exception to termination of parental rights contained in section 366.26, subdivision (c)(1)(B)(i) (former subdivision (c)(1)(A)).[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Initiation of Dependency Proceedings as to Anthony C. and His Younger Siblings

The Los Angeles County Department of Children and Family Services (Department) initiated dependency proceedings under section 300, subdivisions (b) and (j), on behalf of 19-month-old Anthony C. and his newborn twin sisters in January 2005 after the twins tested positive for amphetamine at birth and Angela G. tested positive for methamphetamine and marijuana. The Departments petition alleged, in part, Angela G. had a long history of substance abuse that rendered her incapable of caring for the children. It also alleged the childrens three older siblings were current dependents of the juvenile court, receiving permanent planning services as a result of their parents substance abuse. At the detention hearing on January 10, 2005 the juvenile court detained Anthony C. with his paternal grandparents and ordered family reunification services for Angela G., including monitored visitation.

The Departments initial report for the jurisdiction and disposition hearings stated Angela G. had participated in monitored visitation with Anthony C. and his sisters without incident. In May 2005 the court sustained four counts in the dependency petition, declared Anthony C. a dependent child of the court under section 300, subdivision (b), and ordered reunification services for Anthony C.s father. Anthony C. was placed with his paternal grandparents. At a contested disposition hearing in November 2005 the court denied family reunification services to Angela G. because of her failure to reunify with her older children, her long history of substance abuse and her resistance to, or refusal to comply with, prior court-ordered substance abuse treatment programs. ( 361.5, subd. (b)(10) & (13).) Court-ordered monitored visitation for Angela G. continued throughout this period.

2. The Review Hearings and Reunification Efforts

In its report for the initial section 366.21, subdivision (e), review hearing, held December 27, 2005, the Department included the paternal grandparents comments that Angela G. had visited Anthony C. only twice and had not maintained any telephone contact. At a continued section 366.21, subdivision (e), hearing on February 1, 2006, the court offered Angela G. six months of family reunification services with Anthony C. on condition she drug test with negative results.

In connection with the section 366.21, subdivision (f), review hearing, the Department reported on March 28, 2006 Angela G. had failed to drug test, as required, on four occasions in January, February and March and had tested positive for methamphetamine/amphetamine on March 1, 2006. In addition, Angela G. enrolled in a treatment program, but discontinued it after only a brief time. At the hearing the court found Angela G. not in compliance with her case plan and terminated reunification services; the court continued its prior order for monitored visitation. Family reunification services were continued for Anthony C.s father.

For the section 366.22 permanency review hearing on July 10, 2006, the Department reported Angela G. continued to maintain sporadic contact with Anthony C., visiting with him at his maternal grandmothers home on only three occasions since the March 28, 2006 review hearing. The paternal grandparents advised the social worker Anthony C. did not appear bonded or attached to Angela G., explaining he did not seem to mind if she was present during the visits. They also reported Angela G. did not maintain telephone contact with Anthony C. The court modified its prior placement order, allowing Anthony C. to be in his fathers custody as long as the father continued to reside in the home of Anthony C.s paternal grandparents. Angela G.s visitation remained monitored.

In a report for the January 2007 section 364 review hearing the Department summarized Angela G.s visits and contacts with Anthony C. Angela G. had weekly monitored visits with Anthony C. in a local park in July and August 2006. By September 2006, however, the visits had reverted to their earlier sporadic nature. For example, when the social worker spoke in late November 2006 to the caregiver for Anthony C.s twin sisters, who had been assisting in arranging the visits and served as monitor, she said Angela G. had not seen the children in more than three weeks.

On February 8, 2007 the court ordered Anthony C. removed from his fathers custody and once again detained with the paternal grandparents following the filing of a section 342 subsequent petition alleging the father was abusing drugs. The courts order included reasonable monitored visitation for Angela G. Thereafter, Anthony C.s father advised the court he did not desire reunification with Anthony C., and the Department reported the paternal grandparents wanted to adopt him. At the jurisdiction/disposition hearing for the section 342 petition, the juvenile court sustained the petition, terminated its earlier home-of-parent-father order, removed Anthony C. from the custody of the father and scheduled a section 366.26 selection and implementation hearing for July 17, 2007.

3. The Section 366.26 Selection and Implementation Hearing

The section 366.26 hearing, originally scheduled for July 17, 2007, was continued to November 19, 2007 and then again to January 15, 2008. In its report submitted for the July 17, 2007 hearing the Department once again described Angela G.s contact with Anthony C. as sporadic; she had visited with him only three times since the prior court hearing and telephoned him on his birthday. Angela G. interacted appropriately with Anthony C. during the visits, but the child did not have difficulty separating from her at the end of the visits. The Department also reported Anthony C. and his paternal grandparents, who were now identified as the prospective adoptive parents, had a close and stable relationship. In a supplemental report, filed in connection with the November 19, 2007 hearing date, the Department observed the paternal grandparents continued to provid[e] excellent care and supervision for Anthony C.

Angela G. testified at the contested selection and implementation hearing on January 15, 2008, seeking to invoke the parent-child relationship exception to termination of parental rights. She told the court Anthony C. had lived with her for the first two years of his life (actually, slightly more than 19 months), but had not been in her custody for the past three years. Anthony C. lived with his paternal grandparents during that entire three year period. Angela G. acknowledged she had visited with Anthony C. only seven or eight times during those three years, but insisted she had not seen her child more often because the paternal grandmother made it difficult for her to visit. Angela G. testified on direct examination she had telephoned Anthony C. every day while he lived with the paternal grandparents; on cross-examination, however, she conceded for most of the past three years (except for the two months immediately preceding the hearing) she had called Anthony C. only every-other-day or so. Angela G. insisted she had raised her difficulties with the paternal grandmother concerning visitation with the social worker and on several occasions with the juvenile court itself.

Following Angela G.s testimony and argument from all counsel, including Anthony C.s attorney, who joined in the Departments request the juvenile court terminate Angela G.s parental rights, the court found by clear and convincing evidence it was likely Anthony C. would be adopted and further found the parent-child exception to termination did not apply: With respect to the exception, the parental-child contact exception, I tend to agree with [the Departments counsel] that I didnt find the mothers testimony all that believable. It seems unlikely to me that the grandmother would not permit or would interfere with visitation and allow daily phone contact. That doesnt seem to be very believable at all. Even if it were true, [the Departments counsel] is correct when she indicates that the mother needs to show that the relationship is a parental one. And the mother has failed to do that. So I dont believe the first prong of the exception is met. But even if it were, the second prong certainly would not be met. . . . The law is very clear that unless I can find mother has acted in a parental role and that the benefit of continuing the parental-child relationship would outweigh the childs need for stability, I have to terminate parental rights. Im not able to make a finding that the mother asks me to make for the reasons Ive just stated.

The court terminated both Angela G.s and the fathers parental rights and transferred Anthony C.s care, custody and control to the Department for adoptive planning and placement. Thereafter, Angela G. filed a timely notice of appeal.

DISCUSSION

1. The Parent-child Exception to Termination of Parental Rights

Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is to provide stable, permanent homes for dependent children. ( 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. ( 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [if the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a compelling interest in providing stable, permanent homes for children who have been removed from parental custody and the court then must concentrate its efforts . . . on the childs placement and well-being, rather than on a parents challenge to a custody order].) When the court finds by clear and convincing evidence that the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate that one of six enumerated exceptions applies. ( 366.26, subd. (c)(1)(B); see In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)

To satisfy the (c)(1)(B)(i) exception to termination, a parent must prove he or she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [parent has the burden to show that the statutory exception applies].) The benefit prong of the exception requires the parent to prove his or her relationship with the child 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 [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].) No matter how loving and frequent the contact, and notwithstanding the existence of an emotional bond with the child, the parents must show they occupy a parental role in the childs life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; Inre Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this exception to the statutory preference for adoption characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Moreover, [b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

Angela G. does not contest the juvenile courts finding that Anthony C. is likely to be adopted. Rather, she contends she established the applicability of the (c)(1)(B)(i) exception to termination of parental rights: Mother proved that she maintained regular visitation and contact with Anthony and that she developed and maintained a beneficial, bonded, parent-child relationship with Anthony, not only during the two years he lived under Mothers care, but also during the three years Anthony was detained out of Mothers care. However, the record fully supports the juvenile courts findings that Angela G.s visits and contact with Anthony C. were not sufficiently regular to satisfy the visitation prong of the (c)(1)(B)(i) exception and that she failed to occupy the necessary parental role in her childs life.

2. Angela G. Did Not Maintain Sufficient Contact with Anthony C.

Although, as discussed, on-going, day-to-day contact with a child is not essential for a parent to prove she or he has maintained regular visitation (see In re Casey D., supra, 70 Cal.App.4th at p. 51), the evidence before the juvenile court amply supports its finding Angela G. had not maintained regular visitation and contact with Anthony C. (See In re Derek W., supra, 73 Cal.App.4th at p. 826.) Anthony C. resided with Angela G. only during the first 19 months of his life; he lived with his paternal grandparents for the entire three-year period from the date of his initial removal (January 5, 2005) through the contested selection and implementation hearing on January 15, 2008. Yet during that period Angela G. visited with her young child only seven or eight times. In light of the relatively brief period during which Anthony C. actually lived with Angela G., even frequent (every-other-day) telephone contact is simply insufficient to provide the type of interaction, companionship and shared experiences necessary to satisfy this element of the parent-child relationship exception to the termination of parental rights. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575 [[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent].)

3. Angela G. Did Not Occupy a Parental Role in the Life of Anthony C.

Even if we were to assume Angela G.s visits and contacts with Anthony C. were sufficiently regular to satisfy the visitation prong of the (c)(1)(B)(i) exception, the record fails to demonstrate Angela G. occupied a parental role in this childs life. The testimony concerning Angela G.s sporadic visitation with Anthony C. indicated the child did not seem troubled by her absences and had no difficulty detaching from her when she did visit with him. Moreover, there was no suggestion that during these visits ‑‑ or at any other time during the past three years ‑‑ Angela G. tended to Anthony C.s continuing needs for physical care, comfort, affection or stimulation. (In re Autumn H., supra, 27 Cal.App.4th at p. 575 [[t]he significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation].) To be sure, there was also evidence Anthony C. did not display any fear or discomfort toward Angela G. and no other problems occurred during their monitored visits; but this evidence of pleasant interaction (or even loving contact) falls far short of the requirement that she and her child share the significant, positive emotional attachment that characterizes the parent-child relationship. (See In re Jasmine D., supra,78 Cal.App.4th at p. 1350 [[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 childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.]; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

4. The Benefit to Anthony C. of Continuing the Parental Relationship Would Not Outweigh the Benefit of Adoption

The evidence of any real benefit to Anthony C. from the relationship he maintained with Angela G. was, at best, weak. On the other hand, the evidence before the juvenile court demonstrated Anthony C. was thriving in the home of his prospective adoptive parents ‑‑ his paternal grandparents ‑‑ with whom he had lived for more than three years. Balancing those arguably competing factors, substantial evidence supports the juvenile courts conclusion Angela G. had not established the benefit to the children from continuing their relationship with her outweighed the benefits of permanence through adoption. (See In re Jasmine D., supra,78 Cal.App.4th at p. 1350; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, it properly declined to apply the parent-child relationship exception to the termination of parental rights.

5. The Record Does Not Support Angela G.s Contention the Paternal Grandparents Obstructed Her Ability To Visit Anthony C. or To Develop a Meaningful Parent-child Relationship with her Son

As an alternative to her argument she had established the applicability of the (c)(1)(B)(i) parent-child relationship exception to the termination of parental rights, Angela G. asserts the paternal grandparents obstructed her visitation rights ‑‑ and hence frustrated her and Anthony C.s ability to develop a significant emotional attachment to each other ‑‑ and neither the Department nor the juvenile court acted to remedy the problem. Accordingly, Angela G. contends termination of her parental rights violated her constitutionally protected interest in continuing as Anthony C.s parent.

Other than her own testimony, which the juvenile court did not credit, however, Angela G. presented no evidence the paternal grandparents interfered with or failed to facilitate her court-ordered visits with Anthony C. Angela G. points to nothing in either the Departments reports to the court or other records of the courts proceedings that suggests that there were visitation problems or, if there were, that she raised the issue with the Department or the court itself. Thus, the factual predicate for her constitutional argument ‑‑ assuming it otherwise had merit ‑‑ is absent. (See In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [appellate court properly defers to juvenile courts findings on credibility of witnesses].)

DISPOSITION

The order of the juvenile court terminating the parental rights of Angela G. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Statutory references are to the Welfare and Institutions Code.

[2] Effective January 1, 2008 the six statutory exceptions to termination of parental rights formerly located in section 366.26, subdivision (c)(1)(A) through (F), were renumbered, without substantive change, and are now found in section 366.26, subdivision (c)(1)(B)(i) through (vi). Current section 366.26, subdivision (c)(1)(B)(i), which is substantially the same as former section 366.26, subdivision (c)(1)(A), provides the juvenile court may decline to terminate parental rights if it finds a compelling reason for determining that 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. For convenience, this exception to termination of parental rights is referred to as the parent-child relationship exception or the (c)(1)(B)(i) exception.