In re Ava B.
Filed 6/25/12 In re Ava B. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In
re AVA B.,
a
Person Coming Under the Juvenile Court Law.
B237272
(Los Angeles County
Super. Ct. No. CK65236)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DAWN
B.,
Defendant and Appellant.
APPEAL from an order of the Superior
Court for Los
Angeles County, Amy M. Pellman, Judge.
Affirmed.
Judy Weissberg-Ortiz, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy
County Counsel, for Plaintiff and Respondent.
Dawn B. (mother) appeals from a
juvenile court order terminating her parental
rights to her daughter, Ava B., under Welfare and Institutions Code
section 366.26.
title="">[2] She contends there was insufficient evidence
to support the juvenile court’s finding that the parent-child relationship
exception set forth in section 366.26, subdivision (c)(1)(B)(i) (hereafter,
subdivision (c)(1)(B)(i)) did not apply, and therefore the court erred in
terminating her parental rights. We
affirm the juvenile court’s order.
BACKGROUND
Ava was born in a motel room in May
2007 and was transported with mother to a hospital, where both tested positive
for cocaine. Ava was detained by the
Family Services (the Department) and placed with foster parents, Mr. and
Mrs. L. A petition was filed under
section 300, alleging two counts against mother relating to the risk of harm to
Ava based upon mother’s drug use, and two counts against Ava’s presumed father,
Andrew D. (father).
title="">[3] (Because father is not a party to this
appeal, our discussion of the facts will be limited to those facts relevant to
mother’s appeal.) At the detention
hearing held a few days after Ava’s birth, the juvenile court found a prima
facie case against mother (who was present at the hearing), and ordered family
reunification services, including drug
rehabilitation, random drug testing, individual counseling, and parenting
classes, and monitored visits three times per week. A little more than two weeks later, mother
and father checked out of the motel in which they were living, leaving no
forwarding address, and the Department was unable to locate them.
The juvenile court sustained both
counts as to mother at the jurisdiction hearing on July 10, 2007, and continued
the disposition hearing. At the
disposition hearing on August 28, 2007, the court declined to order family
reunification services for mother because her whereabouts were currently
unknown, but stated that she would be entitled to those services if she
contacted the Department within the first six months.
From the time Ava was detained in May
2007 until December 2007, mother had very little contact with the
Department. On three occasions, she had arranged
to visit with Ava, but she failed to show up for those visits.
place until December 2007, when Ava was nearly seven months old. She did not see her again for four months.
In March 2008, mother started an
intensive six-month substance abuse recovery program, after she was arrested on
a drug-related charge in February 2008 (she had also been arrested on a
drug-related charge in Aug. 2007).
Around that time, mother began to visit with Ava more regularly (one
hour per week at first, then the visits were increased to three hours), with
the visits monitored by the foster mother.
In September 2008, the juvenile court increased her visitation to twice
per week, for five to six hours per week.
Mother asked that her visits be unmonitored, but counsel for Ava asked
that mother be ordered to submit to weekly drug tests before she was allowed
unmonitored visitation. The court
ordered weekly drug testing and set a hearing in a month to address the
visitation issue. At that October 2008
hearing, the court granted unmonitored visits under certain conditions,
including that the visits be in a public setting.
By the time of the section 366.22
18-month review hearing in February 2009, mother had had a total of six unmonitored
visits with Ava since she was born, and had had no overnight visits. The juvenile court noted that normally at the
18-month hearing, the court is supposed to either return the child to the
parent or terminate reunification services if the child cannot be safely
returned to the parent. The court
observed that although mother was doing well, she was not ready to have Ava
returned to her care because she had not yet had any unmonitored overnight
visits. The court concluded, however,
that it could not in good conscience terminate services because mother was so
close to being able to have overnight visits.
The court explained that mother had received no services during the
first six months on the ground that her whereabouts were unknown, even though
she had had some contact with the Department during that time. As a result, mother had been given only 12
months of services. It noted that if it
had found at the six-month review hearing that mother had not been given
reasonable services up to that point (which the court observed it could have
found), she would be automatically entitled to an additional six months of
services at this time. Therefore, the
court invoked its power to continue the section 366.22 hearing for 90 days due
to exceptional circumstances to allow mother time to begin having overnight
visits.
Mother had her first overnight visit
with Ava in mid-March 2009, and had weekly overnight visits thereafter, in
addition to her regular twice-weekly visits.
At the continued section 366.22 hearing in June 2009, the court ordered
Ava placed with mother, with the conditions that mother continue attending a
12-step program, have a sponsor, continue Mommy & Me classes, and continue
drug testing. Ava was two years old, and
living with mother for the first time.
In July 2009, the children’s social
worker (CSW) assigned to the case received a letter from the attorney for Mr.
and Mrs. L., Ava’s former foster parents (who had been granted de facto parents
status in September 2008), attaching printouts from mother’s Facebook page that
included postings with references to mother’s drinking. The CSW spoke with mother, who admitted that
she occasionally had a drink of wine or beer, and that she believed she was allowed
to do so because her counselor told her that she did not have a problem with
alcohol. Although concerns were raised
at a review hearing in September 2009 regarding mother’s drinking and the fact
that she lost her job because she missed 14 days of work, no changes were made
to Ava’s placement.
Over the next two months, the
Department investigated reports by mother’s roommate, Jesse A., and by Ava’s
attorney, that mother was not properly supervising Ava, was drinking several
times a week, had forged signatures on her Narcotics Anonymous sign-in sheets,
and was allowing father to live with her and Ava. The Department found the allegations to be
unfounded. Nevertheless, the Department
held a team decision meeting with mother, at which mother was told that she
could not allow father to be around Ava, and that Ava could be cared for only
by an approved child care provider.
A week after the team decision
meeting, Mr. and Mrs. L. filed a section 388 petition asking that Ava be
re-detained and placed with them. The
petition was supported by a declaration from mother’s roommate, Jesse A. Mr. A. stated that he was concerned about
mother’s treatment of Ava, particularly her methods of discipline. He also expressed concern that mother did not
exercise appropriate oversight. He noted
that Ava was once found by a neighbor wandering down the street, that he once
came home after midnight to find Ava alone inside the apartment (he said a
friend of mother’s was standing outside the apartment and told him that mother
had asked her to watch over Ava while mother was at a party in another
apartment in the building), and that mother once asked a homeless person to
babysit Ava. Mr. A. also stated that
mother allows father to come to the apartment and that he frequently stays
overnight.
The juvenile court granted a hearing
on the petition. In its written response
to the petition, the Department expressed its disagreement with Mr. and Mrs.
L.’s position that Ava should be re-detained, noting that the allegations had
been investigated by several CSWs, and were determined to be unfounded. At the December 1, 2009 hearing on the
petition, which was held at the same time as the six-month review hearing under
section 364, the court denied the petition and continued the section 364
hearing for contest, to be heard on December 18.
In preparation for the contested
section 364 hearing, the Department interviewed mother’s neighbors, who
reported they heard a lot of screaming and use of profanity coming from
mother’s apartment, and that a man matching father’s description was at the
apartment on a regular basis. The
Department also interviewed two-and-a half-year-old Ava, whose answers
contradicted the allegations that mother had mistreated her, but who answered
“yes†when asked if her daddy was at home with Ava and mommy and if he slept
there. Based upon these interviews, the
Department detained Ava and placed her with Mr. and Mrs. L., her previous
caregivers.
The Department filed a section 387
supplemental petition on December 22, 2009, alleging that mother violated court
orders by allowing father into her home with unlimited access to Ava, and by
failing to participate regularly in Narcotics Anonymous meetings. The juvenile court found a
ordered Ava detained, and ordered six hours of monitored visits per week. Over the next four months, mother had 18
two-hour monitored visits with Ava. Ava,
who was bonded to Mr. and Mrs. L., often would cry when she was dropped off for
her visits and was withdrawn during the first half-hour of the visits; she was
happy to see her foster parents when the visits were over.
At the contested adjudication of the
supplemental petition, held in April 2010, mother testified that she did not
allow father to visit her home when Ava was there, although she admitted that
she saw him a few times when Ava was not there.
glass of wine with meals, but denied ever being drunk when Ava was living with
her. Her former roommate, Mr. A.,
testified that he vacated the apartment on December 3, 2009 because father, who
was at the apartment every day and slept there, threatened him. He also testified that father was frequently
around Ava.
The juvenile court sustained the
supplemental petition. Stating that it
found mother’s testimony was not credible and that Mr. A.’s testimony was
credible, the court found that mother allowed father to have unlimited access
to Ava in violation of the court’s order and failed to provide evidence that
she participated in Narcotics Anonymous meetings. At the disposition hearing held a few days
later, mother’s attorney conceded that mother could not receive further
reunification services because she had run out of time. Instead, counsel asked that Ava be returned
to mother’s home. The court ordered Ava
removed from mother, declined further family reunification services, and set a
section 366.26 hearing.
For various reasons, the 366.26
hearing was continued several times, and did not take place for 18 months. During that time, mother had a total of 30
four-hour monitored visits: three in May
2010, two in June 2010, two in July 2010, one in August 2010, two in September
2010, one in October 2010, two in November 2010, one in December 2010, one in
January 2011, one in February 2011, three in March 2011, three in April 2011,
two in May 2011, none in June 2011, two in July 2011, two in August 2011, and
two in September 2011.
name="_ftnref7" title="">[7] Although those visits generally went well,
the social worker who monitored the visits over the last six months reported
that Ava’s reaction to the visits varied, in that she sometimes ran to mother
and other times cried for Mr. and Mrs. L.
The social worker also reported that mother was frequently on her cell
phone during the visits, observing Ava from a distance as she played with other
children; the social worker timed mother’s interaction with Ava during one
visit, and found she spent just over two hours interacting with her. On two visits, mother asked the social worker
to contact Mr. and Mrs. L. to pick Ava up early because Ava was misbehaving and
throwing tantrums and mother could not get her to calm down. The social worker opined that the visits were
“not conducive to positive interaction between the child and the birth
mother.†The foster family agency also
reported that Ava’s aggressive behavior and tantrums, which had been first
observed when Ava was re-placed with Mr. and Mrs. L., would intensify
immediately before and after her visits with mother.
At the final section 366.26 hearing,
held on October 24, 2011, mother testified that she had moved to Oakland about
eight months before because she had difficulty finding a job or a place to live
in Los Angeles, and she had a support system in Oakland. She explained that she would fly down on
Thursday nights for her Friday visits, but when she could not do so she would
text Mr. L. to arrange a convenient time for her to call to talk to Ava; she
did not talk to Ava at any other time.
She said that Ava always seemed to be happy when she first saw mother at
their visits, and usually ran over to her.
During their visits, mother would ask Ava what she learned in school,
and would quiz her on letters, colors, and numbers. Mother also testified that she spoke to Mr.
and Mrs. L. about how Ava was doing, and asked them about how they handled
disciplining her so she could be consistent.
After the testimony and admission of
the various Department reports into evidence, counsel for Ava asked the
juvenile court to terminate mother’s parental rights, arguing that mother
occupies no parental role in Ava’s life and that their relationship is more
like a babysitter-child relationship.
Mother’s counsel asked the juvenile court to find that the subdivision
(c)(1)(B)(i) exception applied because there was an emotional bond between Ava
and mother, and to order guardianship as the permanent plan. The court found that mother had not
maintained a consistent pattern of visitation and that the visitation had not
created so strong a bond that Ava would suffer detriment from its termination;
in fact, the court noted that Ava would suffer
distress if she were removed from the care of Mr. and Mrs. L. The court found Ava to be adoptable, and
terminated mother’s parental rights.
Mother timely filed a notice of appeal from the court’s order.
DISCUSSION
At a section 366.26 hearing, the
juvenile court must select a permanent plan for the dependent child. (In re
Casey D. (1999) 70 Cal.App.4th 38, 50.)
Adoption is the permanent plan preferred by the Legislature. (In re
Celine R. (2003) 31 Cal.4th 45, 53.)
If the court finds that a child may not be returned to his or her
parents and is likely to be adopted, it must select adoption as the permanent
plan unless it finds a compelling reason for determining that termination of
parental rights would be detrimental to the child under one of the exceptions
set forth in section 366.26, subdivision (c)(1). One such exception is the subdivision
(c)(1)(B)(i) exception, which applies when a parent 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).) A parent wishing to
avoid termination of parental rights bears the burden to show that the
subdivision (c)(1)(B)(i) exception applies.
(In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1345.)
There are two prongs that must be
satisfied for the exception to apply:
(1) the parent must have maintained regular visitation and contact with
the child such that there is a relationship between them that provides some
benefit to the child; and (2) “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.â€
(In re Autumn H. (1994) 27
Cal.App.4th 567, 575.) The juvenile
court in this case found that mother had not established either prong because
the evidence showed she had not maintained a consistent pattern of visitation,
and whatever bond established through the visitations was not sufficiently
strong that Ava would suffer detriment from its termination.
Mother challenges the juvenile court’s
findings as to both prongs on sufficiency of the evidence grounds; the
Department also applies a substantial evidence standard of review to both
findings. While there is no question
that the existence of a beneficial relationship is a factual issue subject to a
substantial evidence standard of review, some appellate courts have concluded
that the second prong includes a quintessentially discretionary decision --
i.e., determining the importance of the parent-child relationship and the
likely impact its termination would have on the child, and weighing that
against the benefit to the child of adoption -- that is reviewed for abuse of
discretion. (See, e.g.,
1308, 1314-1315; In re K.P. (2012)
203 Cal.App.4th 614, 621-622.) We agree
with those courts that both standards of review should be applied.
As to the first prong, the juvenile
court found that mother failed show that she maintained a consistent pattern of
visitation. Substantial evidence
supports the court’s factual finding.
Even putting aside the first eleven months of Ava’s life, when mother
visited her only two times, the evidence before the court showed that mother’s
record of visitation was uneven.
Although mother regularly visited Ava for the year leading up to Ava’s
placement with her when Ava was two years old, the reports submitted by the
Department show that after Ava was re-detained, mother missed more than half of
the weekly visits to which she was entitled over the next 18 months. Based upon the court’s factual finding,
supported by substantial evidence, the court correctly concluded that mother
could not establish the existence of a beneficial relationship, since under the
statutory language, the exception requires a showing of “regular visitation and
contact†between the parent and the child.
(§ 366.26, subd. (c)(1)(B)(i).)
But even if mother’s visitation,
although inconsistent, was sufficient to establish the existence of a
beneficial relationship, the court did not abuse its discretion in finding that
mother did not satisfy the second prong, i.e., that the relationship between
mother and Ava was so strong that terminating it would be detrimental to
Ava. The court had before it reports of
the social worker who monitored mother’s visits that Ava’s reaction to the visits
varied (sometimes she was excited to see mother and other times she cried for
Mr. and Mrs. L.) and that mother spent a good deal of time on her cell phone
during visits. The court also considered
the foster family agency’s reports that Ava acted out before and after her
visits with mother. Finally, there were
numerous reports from the Department stating that Ava was bonded with Mr. and
Mrs. L., who cared for her for all but six months of her life and wanted to adopt
her. Based upon this information, the
court reasonably could conclude that Ava’s need to continue the relationship
with mother did not outweigh her need for a stable and permanent home, which
would come with her adoption by Mr. and Mrs. L., and that termination of
mother’s parental rights would not be detrimental to Ava. Having thus found that the subdivision
(c)(1)(B)(i) exception did not apply, the juvenile court properly terminated
mother’s parental rights.
The
order terminating mother parental rights is affirmed.
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J.
MANELLA, J.
undesignated statutory references are to the Welfare and Institutions Code.
her notice of appeal also indicates that mother appeals from the juvenile
court’s order denying her section 388 petition seeking to change a prior order
terminating her family reunification services, mother does not raise any issue
in her appellant’s opening brief regarding the denial of her petition.
