In re A.S.

Filed 5/28/10 In re A.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

J.Z., mother of minor A.S., appeals from an order terminating her parental rights, contending the beneficial parental relationship exception to adoption applies. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i).)[1] We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Detention

The 15-month-old minor was placed in protective custody on November 30, 2007, after the police received a report that conditions in mothers apartment endangered the minor. They found illegal drugs and paraphernalia all over the apartment, along with a knife in the bed accessible to the minor, clothes piled up to near the ceiling, and old food particles ground into the carpet. Mother was arrested and charged with willful cruelty to a child, maintaining a place for the sale of drugs, possession of a controlled substance, and possession of a controlled substance for sale.[2]

The Shasta County Department of Social Services (the Department) filed a petition pursuant to section 300, subdivision (b) on December 4, 2007. At the detention hearing held the next day, the juvenile court ordered the minor detained.

Jurisdiction/Disposition

From December 2007 through March 2008, mother repeatedly tested positive for methamphetamine and marijuana. At a mental health assessment in January 2008, she said she had lived in her car for 18 months before moving into an apartment and had used marijuana daily for nine years. The Departments disposition report, filed February 15, 2008, stated that mother, who had been evicted from her apartment, had missed visits with the minor, failed to submit to drug tests, and failed to attend Alcoholics Anonymous or Narcotics Anonymous meetings.

At the jurisdictional/dispositional hearing on April 18, 2008, the juvenile court found that the minor was a person described by section 300, subdivision (b) and ordered out-of-home placement, with reunification services for mother. The court ordered mother to complete a mental health assessment, a drug and alcohol treatment program, and parenting classes; to submit to random drug testing; and to remain free of illegal drugs.

Six-Month Status Review

At the six-month status review hearing on October 27, 2008, the juvenile court ordered further reunification services for mother, finding she had made substantial progress toward alleviating or mitigating the causes necessitating placement.

12-Month Status Review

The Departments 12-month status review report, filed February 27, 2009, recommended terminating mothers services and setting the matter for a section 366.26 hearing. Mother had made minimal progress in her services, twice dropping out of parenting classes and relapsing into drug use. On November 20, 2008, after she was caught trying to falsify a drug test, she admitted the relapse. She felt overwhelmed by the burdens on her and wanted the minor to be adopted by the maternal grandmother, who lived in Oregon.

Mother entered the New Life Recovery Program, a residential drug and alcohol treatment program, on February 10, 2009, more than 12 months after the minor was detained. She had kept up her visitation schedule and improved her parenting skills, but in October 2008 she reverted to canceling visits, allegedly because of illness but more likely because of drug use.

An addendum report filed April 23, 2009, which reiterated the recommendation of the 12-month review report, attached a letter from Lori Reed, director of the New Life Recovery Program, which said mother was still in the first stage of recovery (pretreatment), continu[ing] to make choices based on addictive thinking rather than exercising good judgment. Although her attendance, participation, and desire to change were promising, it was too early to assess her long-term progress. She was not expected to complete the program until February 17, 2010well beyond the 18-month point in this case.

The addendum report also stated that, according to the reports of the agency supervising visitation, mother had shown emotional instability and poor quality parenting skills during visits with the minor. That agencys social worker, Jerry Gilmer, had recently alleged positive changes. In a letter faxed March 6, 2009, he asserted that the bond between mother and the minor had grown steadily over the last year and urged extending mothers services for six months. But in the Departments view, the minor now needed stability and consistency, and extending mothers services would not meet those needs.

A second addendum report, filed May 14, 2009, stated that mothers progress in case plan services was still minimal, since she remained in the earliest stages of drug treatment and recovery. The maternal grandmother had been found unsuitable for placement at this time. But the minors foster parents, with whom he had lived for more than 18 months, wanted to adopt him, and he had developed a strong attachment to them and to siblings in the home. It was in his best interest to maintain him there rather than disrupt his placement.

At the 12-month status review hearing on May 22, 2009, the juvenile court terminated mothers reunification services and set a section 366.26 hearing on September 18, 2009.

Section 366.26 Proceedings

The Departments Report

The Departments section 366.26 report, filed September 2, 2009, recommended the termination of mothers parental rights and the ordering of a permanent plan of adoption.

The report noted that mother had had frequent visitation with the minor. The quality of the visits had ranged from poor to adequate, improving after mother entered residential drug treatment in February 2009. Although the minor had a limited relationship with her because of her regular visits, it was not a secure and dependable relationship, and she had failed to demonstrate the ability to safely and appropriately parent the minor. Thus, the benefit of this relationship did not outweigh the minors need for nurturing, advocacy, security, and stability, which adoption could provide.

The minor was in a prospective permanent placement, where he had been since November 2007, with a family that had previously adopted and had been referred to adoption services in this case. He was happy, thriving, and affectionate to all in the home (including two biological and two adopted children of the foster parents). It was highly likely that the home study update would be approved and that the foster parents, who were meeting all of the minors needs, would adopt him, but he would also be highly adoptable by many other applicants.

Mothers Section 388 Petition and Motion for Bonding Study

On September 15, 2009, mother filed a section 388 request to change court order, seeking a continuance of the section 366.26 hearing, the reinstatement of reunification services for up to six months, and the increase of visitation to include overnight visits. Mother alleged: (1) She had remained in good standing in her residential treatment program since entering it. (2) She had a good relationship with the minor, which would be detrimental to him to sever. (3) It was in the minors best interests to be raised by his mother, who is clean and sober and free from the use and affect [sic] of any mind[-]altering substances.

Mother attached a letter from New Life Recovery Program director Lori Reed dated August 14, 2009, which stated that mother had advanced to stage two of the six-stage recovery program (the stabilization period), in which the client must regain control of thought processes, emotional processes, judgment, and behavior; mother had also been working on recognizing feelings and effective communication. She had worked diligently on recovery issues, followed directions, and unhesitatingly accepted counsel. She attended all required classes and completed all assigned tasks. She engaged appropriately with the minor during weekly unsupervised visits.

Mother also attached the above-mentioned March 6, 2009, letter from Jerry Gilmer, recommending that mother receive further services.

On September 17, 2009, mother filed a motion for a bonding study and for continuance of the section 366.26 hearing. She attached a letter from Gilmer dated September 15, 2009, that described a visit between the minor and the mother in May 2009, attended by Gilmer and the foster mother, during which the minor pointed to mother and said: Youre my mom. Gilmer opined: The ultimate goal of CFS and Dependency Court is to salvage hurting families. By returning [the minor] to [mother] CFS and Dependency Court will have reached its [sic] goal. If [mothers] rights are terminated today, I feel we have all missed our goal.

The Departments Opposition

The Department opposed mothers section 388 request on the grounds that it was untimely and failed to meet her burden of proof.

The Hearing on All Pending Matters

On September 18, 2009, the juvenile court held a hearing on section 366.26 review, mothers section 388 petition, and mothers request for a bonding study.

The court first denied mothers request to continue the section 366.26 hearing and conduct a bonding study, noting: (1) Gilmers latest letter, on which mother relied, was more anecdotal than anything else and very limited. (2) The Departments report indicated the minor was now bonded with his foster family, and a bonding study as to the minors relationship with mother would just complicate matters for the minor. (3) Mothers request was untimely.

The court then heard testimony in support of mothers section 388 petition from Lori Reed and mother herself.

Reed testified: Mother had not been ordered into the program, but had sought it out. A participant might stay anywhere from 13 to 22 months; it had not yet been determined how long mother would stay because that depends on the individual. Her progress had been continual. She was currently in stabilization (i.e., phase two of six, where she had been a month before). The program offered classes in parenting, communication skills, relapse prevention training, and academic skills. A parent could have children placed with her while in residence.

Reed had observed about 10 visits between mother and the minor. They had a loving, playful relationship, in which she guided him, corrected him, and responded to him appropriately. At first she parented out of guilt, but now she had grown into true mother-child parenting. (Reed had never observed the minor with his foster parents.)

Mother testified: She sought out the program, which is a 12-step program, after outpatient treatment failed. It provided a safe environment to work on her problems and taught methods to deal with them. The staff decided when participants graduate; they estimated mother would do so in February 2010, but she thought it could be as late as June.

Mother had been seeing the minor once a week for two hours for over six months at the residence; the minors foster mother brought him. Mother had a good relationship with the foster mother. During visits, the minor greeted mother with a big smile and put his arms out to her; he called her Mama [J.] (He called the foster mother mom.) He accepted and responded to mothers affection. They played with toys and went through the alphabet. If he hurt himself during a visit, he turned to mother for attention. During the last few visits, when she told him it was time to go, he would ask why or say he did not want to go. He let her pick him up, but he did not let others at the residence do so.

Mother believed she and the minor had a parent-child bond that would be detrimental to the minor to lose, and that it would be in his best interest to give her the chance to raise him. She knew that the section 366.26 report said he had a happy routine in the foster home and that he demonstrated love and affection to those there, but she thought she could recreate his routine in her home and make him just as happy. She also thought it would be detrimental to him later if he realized his mother had not fought to get him back. Because of the bond between them, she did not think removing him from his present home would have a serious impact on him.

Mother conceded that she had not cared for the minor on a daily basis since November 30, 2007, and that he looked to the foster mother as his primary caretaker. She also conceded that she had failed to complete a 12-step substance abuse program begun in early 2008.

After hearing argument, the juvenile court denied the section 388 petition, reasoning: (1) Prolonging the process further would be detrimental to the minor because it would postpone permanency and create tension between the minor and the foster family. (2) It was unknown when mother would graduate from the program or when she would be able to cope outside its structured environment. (3) The minor was bonded to mother, but more as a relative he liked visiting than as a parent; he looked to his foster family to meet his needs and provide security. (4) For all these reasons, mothers proposed change in the courts order would not be in the minors best interest.

In the section 366.26 phase of the hearing, mothers counsel and the minors counsel submitted on the record of the section 388 hearing. The Departments counsel argued that mother had failed to meet her burden of establishing the beneficial parental relationship exception to adoption.

The juvenile court found that mother had a relationship with the minor, but not to the extent that he [had] with the foster parents, and that it was in his best interest to achieve permanence with them. Therefore, the court terminated mothers parental rights and ordered adoption as the permanent plan.

DISCUSSION

Mother contends the beneficial parental relationship exception to adoption applies because she visited [the minor] when permitted, assumed a parental role to the extent visitation permitted and shared a significant, positive relationship with her son such that [the minor] would suffer detriment should parental rights be terminated. We are not persuaded.

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

If a parent claims that one of the statutory exceptions to termination of parental rights applies, the parent has the burden of establishing that exception. We uphold a juvenile courts ruling declining to find an exception to termination of parental rights if supported by substantial evidence. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).)

To prove that the beneficial parent-child relationship exception applies, the parent must show that she ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) It is not enough simply to show some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349 (Jasmine D.).) Even frequent and loving contact and a significant emotional attachment between parent and child may be insufficient to defeat adoption if a child looks to a prospective adoptive parent to meet his or her needs. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 (Dakota H.); Zachary G., supra, 77 Cal.App.4th at p. 811.)

Because 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. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (Dakota H., supra, 132 Cal.App.4th at p. 229.)

It is undisputed that mother had recently improved the quality of her visits with the minor enough so that the juvenile court could find a parental relationship existed. But this improvement came very late in the day, after the dependency had already been in place for over a year. Furthermore, mother was still in a drug treatment program with no defined end point, having reached only the second of its six stages, and with no way to know on this record when or whether she would be able to care for herselflet alone a childoutside the program. Meanwhile, the minor, now three years old, had been continuously and happily in the care of his prospective adoptive parents since he was 15 months old, had bonded with them, looked to them to meet his needs, and appeared adoptable by them in the near future. Thus, the court could reasonably find that their parental relationship with the minor outweighs that of mother and that he would not suffer great detriment from the termination of mothers relationship with him. (Dakota H., supra, 132 Cal.App.4th at p. 229; Jasmine D., supra, 78 Cal.App.4th at p. 1350; Zachary G., supra, 77 Cal.App.4th at p. 811.) Substantial evidence supports that finding.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P. J.

HULL, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] Mother pled guilty to possessing a controlled substance and received deferred entry of judgment. The district attorney declined to file on the willful cruelty charge.

D.M., a convicted felon, claimed paternity and was determined to be the biological father. His parental rights were terminated on September 18, 2009. He is not a party to this appeal.