In re Darlene O..
Filed 2/25/13
In re Darlene O.. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re DARLENE O., a Person
Coming Under the Juvenile Court Law.
B241664
(Los Angeles
County
Super. Ct.
No. CK82365)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KELSEY R.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
Jacqueline Lewis, Juvenile Court Referee. Affirmed.
Cristina
Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Stephen D.
Watson, Associate County Counsel, for Plaintiff and Respondent.
_______________
Kelsey R. (mother) appeals the
rights to her three-year-old daughter, Darlene O. Mother maintains that the juvenile court
erred in concluding that she had failed to establish that the so-called
"beneficial-relationship" exception to termination of parental rights
applied to the circumstances of this dependency
proceeding. Finding no error, we
affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Darlene was born in September 2009 to 16-year-old mother,
a dependent of the juvenile court; Darlene resided with mother in the latter's
foster care placement. In the early
months of Darlene's life, mother attended school during the day and picked
Darlene up from daycare after school. On
three separate occasions, mother failed to pick Darlene up from daycare, and
returned late to her foster home. The
fourth time mother failed to pick Darlene up, she did not return to the foster
home. Her foster mother filed a missing
person report, and on May 20, 2010, the Department
of Children and Family Services (DCFS) filed a petition on Darlene's
behalf, alleging neglect and failure to provide under Welfare and Institutions
Code
At the detention hearing, the juvenile court found a
prima facie case that Darlene was described by section 300. The court removed Darlene from mother's
custody and ordered her detained. Mother
was granted reunification services and monitored visitation a minimum of three
times a week. The court also ordered a
psychotropic medication evaluation, drug testing, individual counseling and
parenting classes.
Aside from mother's negative drug tests, she did not seem
to benefit greatly from reunification services.
Her foster mother described her overall behavior as childish; she did
poorly in school, flaunted her curfew and went missing from her placement. Her visits with Darlene were sporadic, and
she lacked appropriate parenting skills.
For instance, when Darlene cried, mother got frustrated and would simply
walk away from the child.
At the adjudication
hearing, mother pled no contest to the petition. The court declared Darlene a dependent and
ordered her placed in foster care.
Mother signed a disposition plan that including parenting classes,
individual counseling, and a psychiatric evaluation, as well as monitored
visitation. The court admonished mother
that she had a short period of time within which to reunify with her young
daughter, and set the six-month review hearing for February 25, 2011.
In an October
19, 2010 interim report, the social worker noted that mother had
reunified and was living with her own mother.
However, she was not obeying her mother's rules, was arriving home late
at night, and had frequent angry outbursts.
The interim report also stated that mother was appropriate during visits
with Darlene, but continued to do poorly in school.
The Status Review Report for the February 25, 2011 six-month review hearing
reported mother's partial compliance with the case plan. Mother did not attend parenting classes, did
not provide a progress report from her psychiatrist, and continued to miss
visits with Darlene. Mother reportedly
seldom hugged or kissed Darlene during visits, and hardly interacted with the
child. Darlene did not appear to be
bonded with mother, and did not seek mother's attention. Neither did mother call Darlene's foster
mother to learn how she was doing, nor call to schedule visits, or accompany
her own mother in picking up or dropping off Darlene. However, mother had not run away from home in
the previous two months, had attended school regularly and was taking her
medication. Consequently, the court
ordered reunification services to continue, and informed mother that the
services would be terminated if Darlene could not be returned to her care at
the twelve-month review hearing.
In a Status Review
Report dated July 21, 2011,
DCFS reported that mother continued to reside with her mother, but that their
relations were strained. Mother refused
to take her medication at times, left home without notifying anyone of her
whereabouts, and missed visits with Darlene.
Mother had violent episodes with her own mother in front of younger
siblings, frightening them. She
continued to not take responsibility for Darlene's transportation, allowing her
mother to pick up and drop off Darlene without accompanying her. She sometimes missed visits with Darlene in
order to spend time with her friends.
On August 2, 2011, mother moved out of the maternal
grandmother's home and into youth transitional housing. Mother's therapist reported that mother was
struggling with life skills, such as going shopping for food and cooking for
herself.
At the contested twelve-month review hearing held on
September 27, 2011, the juvenile court remarked, "For the court to
continue reunification the court has to find that there is a substantial probability
of return. The court has to find that
the mother has consistently and regularly contacted and visited with the
child. I can't. That the mother has made significant progress
in resolving the problems that led to the removal of the child. I can't.
And that the mother has demonstrated the capacity and ability to
complete the objectives of the treatment plan and to provide for the child's
safety, protection, physical and emotional health and special needs. I can't make any of those findings today." The court then terminated mother's
reunification services and set a section 366.26 hearing for January 24,
2012. The court identified adoption as
the goal for Darlene's permanent placement, and ordered DCFS to prepare an
adoptive home study.
As of January 24, 2012, the time of the originally
scheduled section 366.26 hearing, Darlene had been living in the home of
Leticia O. and Luis C., her prospective adoptive parents, for 20 months, and an
adoption home study had been completed and approved. Leticia O. and Luis C. appeared capable of
meeting all of Darlene's needs, were providing appropriate care, supervision,
stability and safety, and were committed to adopting Darlene.
Mother requested a contested section 366.26 hearing, to
establish that mother "has maintained contact with her child, and it would
be detrimental to terminate parental rights." The court set the contested hearing for April
13, 2012.
On that date, DCFS reported that, of a total of 27
possible visits between January 24, 2012 and April 13, 2012, mother
visited Darlene a total of three times.
DCFS concluded that because mother failed to maintain regular contact
with Darlene, no parent-child bond had developed, nor did Darlene exhibit any
other form of attachment to mother.
Mother's attorney acknowledged that mother had not
maintained consistent visitation throughout the dependency, but maintained that
mother had "made a lot of progress in her own life" and had worked
"to better[] her own life and get[] her own life stabilized. She's worked hard and has a lot to be proud
of."
Both DCFS and Darlene's counsel recommended that mother's
parental rights be terminated.
The juvenile court found by clear and convincing evidence
that Darlene was adoptable, stating, "Not only is she universally
adoptable, but she's residing in a home that wishes to adopt her and has an
approved home study." The court
found no exception to the termination of parental rights, stating, ". . .
there has not been regular and consistent contact. [B]ased on the fact that there hasn't been
any regular and consistent contact, there's no real relationship between
[mother] and her daughter. [¶] And, therefore, the Court cannot find that there
is such a relationship with the mother [] that outweighs the benefit to Darlene
having a stable and permanent home."
The court terminated mother's parental rights to Darlene, an order
mother challenges on appeal.
DISCUSSION
On appeal, mother maintains that
the trial court erred in finding that the beneficial- relationship exception to
termination of parental rights did not apply in this case.
"[w]hen the court has not returned an adoptable child to
the parent's custody and has terminated reunification services, adoption
becomes the presumptive permanent
plan . . . ." (In
re Jasmine D. (2000) 78 Cal.App.4th
1339, 1350.) To avoid termination of parental rights the
parent must prove one of the exceptions provided by section 366.26, subdivision
(c)(1)(A) and (B)(i)-(vi). Mother relies
on the beneficial-relationship exception to argue that the juvenile court erred
in terminating her parental rights. That
exception provides that the parental rights of an adoptable child will not be
terminated if the parents establish 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." (§ 366.26, subd.
(c)(1)(B)(i).) 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. (1994) 27 Cal.App.4th 567, 575.)
Mother's
attorney presented no evidence and made no argument to show that mother had
either maintained regular visitation and contact with her daughter, or that
severing the relationship would be detrimental to the child. To the contrary, the evidence before the
court established that mother's visitation and contact with Darlene throughout
the dependency was irregular, and indeed minimal by the time of the section
366.26 hearing. Moreover, the
interactions between mother and Darlene during the visits did not demonstrate a
parent-child bond: Mother seldom hugged
or kissed Darlene during visits, interacted very little with her, and provided
scant attention. Darlene did not appear
to be bonded with mother and did not seek mother's attention. In short, because mother did not occupy a
parental role in Darlene's life, mother failed to prove that Darlene
"would be greatly harmed" by severing the relationship. (In re
Autumn H., supra, 27 Cal.App.4th
at p. 575.)
On appeal,
mother also argues that "it is [] vital to Darlene that [mother] remain in
her life in order to 'break the chain'" of abandonment "which plagued
[mother] and would no doubt be passed on to Darlene should she never the
opportunity to see her mother again," and that open adoption, long-term
foster care or guardianship would be more beneficial to Darlene than simply
terminating mother's parental rights. In
support of this contention, mother cites several web-based articles, which may
or may not support her contention. In
any event, this argument is properly addressed not to the courts but to the
Legislature; in the absence of an applicable exception, the juvenile court was
mandated by section 366.26, subdivision (c)(1) to "terminate parental
rights and order the child placed for adoption."
DISPOSITION
The
judgment is affirmed.
ARMSTRONG, Acting P. J.
We concur:
MOSK,
J.
KRIEGLER,
J.
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