In re Brittney L.

Filed 5/22/08 In re Brittney L. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Steven L. Berman, Juvenile Court Referee. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.

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Lora L. (Mother) appeals from a July 16, 2007 order terminating her parental rights to Brittney L. (born in January 2001) and Catrina L. (born in August 2003). We affirm the order because substantial evidence supports the juvenile courts rejection of the beneficial relationship exception to termination of parental rights. (Welf. & Inst. Code, former  366.26, subd. (c)(1)(A), now subd. (c)(1)(B).)^[1]

BACKGROUND

Catrina was born prematurely in August 2003 with respiratory distress and seizures due to prenatal exposure to methadone. Catrina, Brittney, and their two older half siblings were able to live with Mother and Joe L. (Father) under the parents voluntary agreement with the Los Angeles County Department of Children Family Services (DCFS). In March 2004, Joe L. reported to DCFS that Mother was using heroin again. Catrina, Brittney, and their two half siblings were detained. At the detention hearing, the two half siblings were released to their father, Horace B., and Brittney and Catrina were placed in foster care. Horace B. was later appointed the legal guardian of Brittney and Catrina and is also their prospective adoptive parent.

In May 2004, the juvenile court sustained an amended petition declaring Brittney and Catrina dependents pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), based on Mothers drug use, her history of drug abuse, her failure to complete a substance abuse program, the exposure of the children to the parents violent physical confrontations, Fathers incarceration for a parole violation for spousal battery of Mother, and Fathers conviction for voluntary manslaughter in 1993. After a dispositional hearing, Catrina and Brittney were removed from parental custody and family reunification services were ordered. Mother was afforded monitored visitation and was ordered to attend counseling, parenting, and drug counseling with random testing. According to DCFS, Brittney was strongly attached to Mother and expressed sadness and disappointment when Mother had car trouble and missed her visits. After DCFS determined that Mother was in compliance with all of her programs and testing negative for drugs, DCFS afforded Mother weekend overnight visits with Brittney, Catrina, and her two older children (the half siblings of Brittney and Catrina) beginning in October 2004.

By juvenile court order of November 11, 2004, the two older children were placed home with Mother and Brittney and Catrina were placed with Mother for a months extended visit. Horace B. was afforded weekend overnight visits with the two older children. After Mother reported that Father, whom she was divorcing, was abusive and manipulative, and after the two older children reported that Father was mean and they were afraid of him, the court ordered that Father was to stay 500 yards away from Mother and the children except for his monitored visits. Father dropped out of his anger management classes and stopped visiting the children. In December 2004, the court terminated his reunification services.

In December 2004, Brittney and Catrina were placed in Mothers home under family maintenance services. In July 2005, Horace B. reported that the two older children had been living with him since June after they told him that Mother was using drugs again and that they were living in a motel with Father. At a July 14, 2005 hearing, the court ordered that the four children could remain with Mother as long as she tested once a week and did not take the children to visit Father. In July 2005, Father was involved in a domestic violence incident with Mother and was arrested for assault, but it is unclear whether the criminal charge arose out of the incident with Mother.

Mother was not able to begin weekly drug testing until August 2005, when she and the children were reported to be living with Horace B. In September 2005, Mother was arrested for possession of methamphetamine. The two older children were released to Horace B. and Brittney and Catrina were detained in foster care and then released to Horace B. on an extended visit. In October 2005, the court continued Brittney and Catrinas extended visit with Horace B. Brittney was bonded with her two older half-siblings. After a hearing on October 20, 2005, Britney and Catrina were placed in Horace B.s home on condition that Mother not live there. On October 27, 2005, the court sustained a count in a supplemental petition, removing Brittney and Catrina from Mothers custody based on the findings that Mother possessed methamphetamine within access of the children, used illicit drugs while the children were in her care, and was arrested and incarcerated for possession of a controlled substance. Mother was afforded six months of reunification services and was ordered to have drug treatment in a residential facility upon her release from custody. Mother was released from custody in November 2005.

In April 2006, DCFS reported that Mother had not been in contact with DCFS after her release from custody and was not visiting the children because she was ashamed of herself. Horace B. needed financial assistance to care for Brittney and Catrina.

At the April 13, 2006 hearing, the court asked Mother, How often have you seen your children? Mother responded, Nobody will let me see them because I havent done the programs. Mother testified, however, that she had been telephoning her children. The attorney for DCFS stated that Mother was not entitled to visits until she contacted DCFS; even though DCFS attempted to contact Mother, Mother had not yet contacted DCFS, apparently because she was intimidated by DCFS.

The juvenile court found Mother not in compliance with the case plan and set a section 366.26 hearing for July 26, 2006, which date was later continued several times. In finding that DCFS had provided referrals and had made reasonable efforts to reunify the family, the juvenile court stated, The Court is specifically finding that . . . the mother is not credible. She has not contacted the Department, she has not discussed the reunification issue, and that there may have been [telephone] calls on visitation  it was hit and miss: There was never a time established to meet . . . and that the mother has not been in compliance with the order to cooperate with the Department as well.

In May 2006, the juvenile court terminated its jurisdiction as to the two older children. Pursuant to a family law court custody order, Mother had monitored visitation with her two older children. In July 2006, Horace B. was appointed legal guardian of Brittney and Catrina, whom he wanted to adopt. A home study was initiated. In October 2006, DCFS reported that Mother had no visits or contact with Brittney and Catrina since September 2005.

In October 2006, Mother gave birth to her fifth child, Jacqueline L., who was detained at birth when she tested positive for opiates and benzodiazepine. After a nurse told Mother that Jacqueline tested positive, Mother left the hospital without being discharged. Mother told DCFS that she did not know the name of Jacquelines father and had provided the hospital a false name for the father. Jacqueline was later declared a dependent of the juvenile court under section 300, subdivision (b) and removed from Mothers custody. Mother was not afforded family reunification services as to Jacqueline. A maternal aunt and uncle in Georgia wanted to care for Jacqueline; these relatives were later identified as her prospective adoptive parents.

According to an April 2007 status review report, neither Father nor Mother had visited Brittney or Catrina since September 2005. In May 2007, Mother began living in a rehabilitation center.

At the section 366.26 hearing on July 16, 2007, Mother testified that she had been sober for about six months and was then living in a rehabilitation center. For the previous two and a half months, she had been visiting the children almost every Sunday for three hours, and before that time she was visiting with my children on my own. Mother claimed that the longest period of time she did not see Brittney and Catrina was for the one and one-half months, or about six weeks, when she was incarcerated. Mother claimed not to have received or read the DCFS April 2007 status review report about her lack of contact with the children and testified that the report was incorrect. According to Mother, Brittney and Catrina called her Mommy and they did not refer to anyone else as their mother.

Mothers attorney argued in favor of the beneficial relationship exception to termination of parental rights; the childrens attorneys argued against the exception. The juvenile court found that the exception did not apply. The court found that Mother has not had consistent visitation. Shes had six visits in the last three months while shes been at Acton [rehabilitation center]. Clearly, theres no parental role. Those visits have been monitored. They dont even come close to Autumn H. standards (In re Autumn H. (1994) 27 Cal.App.4th 567). The court also stated, [A]ssuming that the children were called, and that [Horace B.] was called, and everyone said the mother had a loving, wonderful relationship with the children, theres no way to get this case close to the [section 366.26, subdivision] (c)(1)(A) exception, and while the children might be sad if their parental rights were terminated with Mother, theres no evidence whatsoever of any harm, any detriment, any ill-effect of having parental rights terminated with Mother. The case is made more so by the fact that [Horace B.] evidently is facilitating visits with Mother, and it sounds like Mother would probably still be in the childrens life. Mother filed a notice of appeal from the July 16, 2007 order. She contends the court erred in not finding applicable the exception to termination of parental rights under subdivision (c)(1)(A) of section 366.26.

DISCUSSION

Section 366.26, subdivision (c)(1)(A) affords an exception to termination of parental rights 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)(A).) A beneficial relationship is one that 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., supra, 27 Cal.App.4th at p. 575.) The existence of a beneficial relationship is determined by considering the age of [t]he child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between the parent and the child, and the childs particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) Neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation of some benefit from continued parental contact (In re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to establish this exception. We review the juvenile courts order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

As to the first prong of the exception, regular visitation and contact, substantial evidence supports the juvenile courts finding that Mother failed to visit regularly. The juvenile court impliedly found Mothers testimony in this regard not to be credible. Thus, Mother did not satisfy the first requirement of the beneficial relationship exception.

Assuming for purposes of argument that Mother maintained regular visitation and contact with Brittney and Catrina in the past, substantial evidence supports the courts finding on the second prong  that the childrens well-being would be promoted more by adoption than by the continuation of the parent-child relationship in a tenuous placement. The court reasonably could have inferred that, because of Mothers long history of drug abuse and relatively short period that she had been in her rehabilitation program, Mother had not yet proven that she had developed a stable, sober lifestyle. Accordingly, even with respect to visitation, there was not sufficient evidence that in the future Mothers visitation would continue to be regular and stable. The court reasonably concluded that, given the childrens young ages, the stability and permanence of an adoptive home would promote their well-being more than a continuation of the parent-child relationship in a more tenuous placement.

The cases cited by Mother are not on point and do not persuade us that the juvenile court erred in its ruling on the second prong of the exception. In In re Brandon C. (1999) 71 Cal.App.4th 1530, upon an appeal by DCFS, the Court of Appeal affirmed an order selecting guardianship and determined that substantial evidence supported the juvenile courts finding the existence of the beneficial relationship exception. In In re Casey D. (1999) 70 Cal.App.4th 38, the Court of Appeal affirmed an order terminating parental rights, rejecting the beneficial relationship exception. Mother argues that because there was no guarantee that Horace B. would allow her visits in the future if parental rights were terminated, it was improper for the juvenile court to rely upon this factor. But we do not read the record as indicating the juvenile court relied upon this factor in rejecting the beneficial relationship exception. Rather, the juvenile court recognized that, as a practical matter, Mother would have an opportunity to maintain contact with Brittney and Catrina because Mother had monitored visitation rights with respect to the two older half siblings living with Horace B. under a family law order. We conclude that Mother fails to establish the juvenile court erred in terminating parental rights.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1]Unspecified statutory references are to the Welfare and Institutions Code. Because former section 366.26 governed the juvenile courts decision and governs this appeal, references to section 366.26 shall mean former section 366.26.