In re Dominic L.
Filed 10/9/13 In re Dominic L. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re DOMINIC L., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
LESLIE L.,
Defendant and Appellant.
D063958
(Super. Ct.
No. J517967)
APPEAL from
an order of the Superior Court
of
County, Cynthia Bashant, Judge. Affirmed.
Katherine
A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Leslie L.
appeals a juvenile court order terminating her
Dominic L., under Welfare and Institutions Code
section 366.26. Leslie challenges the
sufficiency of the evidence to support the court's finding the beneficial
parent-child relationship exception to adoption did not apply to preclude terminating
parental rights. We affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
In December
2010, three-year-old Dominic became a dependent of the juvenile court under
section 300, subdivisions (b) and (g) and was removed from Leslie's custody
based on findings Leslie used heroin and methamphetamine, had a history of
substance abuse and exposed Dominic to drugs and hypodermic needles in the
home. Leslie was incarcerated and the
whereabouts of Dominic's father were unknown.
The court placed Dominic in foster care and ordered reunification
services for Leslie.
Leslie had
a criminal history involving drugs, burglary and crimes of violence. Her parental rights to another child had been
terminated several years earlier. She
completed a drug treatment program, but relapsed.
After
Leslie was released from custody, she enrolled in a 12-month residential drug
treatment program at the San Diego Rescue Mission and had weekly visits with
Dominic. She was committed to her
recovery and was strongly motivated to keep Dominic in her life. Leslie was in therapy, completed a 15-week
parenting class and tested negative for drugs.
Dominic had a close relationship with his foster parents. He was in therapy, and said he did not want
to live with Leslie. The therapist
interpreted this as showing Dominic's fear and anxiety due to his experiences
when he was in Leslie's care.
Leslie was
visiting Dominic three times a week, and one visit a week was
unsupervised. When visitation expanded,
Dominic became increasingly angry, sad, confused and stressed. He was particularly confused about where he
would live. Although Dominic loved
Leslie and enjoyed visits with her, he said he wanted to live with his foster
parents, and asked if Leslie could move in with them.
Dominic's
foster parents expressed their concern to his court-appointed special advocate
(CASA) that Leslie had promised Dominic they would soon reunify. The visitation monitor reported Dominic
voiced his fear of being removed from his foster home. The CASA observed that Leslie cared very much
for Dominic, but she struggled to parent him at times. According to Dominic's teacher's aide,
Dominic had recently become more aggressive.
The CASA said Dominic's confusion about his living situation was
negatively affecting him.
At the
12-month review hearing, the court found Leslie had made substantive progress
with her case plan and ordered six more months of services for her. The court authorized interactive therapy for
Leslie and Dominic and gave the social worker discretion to expand visits with
the concurrence of Dominic's therapist and minor's counsel.
Leslie's
visits with Dominic expanded, and he became "torn" between his mother
and his foster parents. He began having
difficulty transitioning back to his foster parents after visits with
Leslie. On two occasions, Dominic had a
severe negative reaction to leaving Leslie.
He lost his voice from crying and sobbed inconsolably. In February 2012, Dominic began a trial
placement with Leslie at the San Diego Rescue Mission. At the 18-month hearing, the court placed
Dominic with Leslie and ordered family maintenance services.
Less than
two weeks later, Leslie was discharged from the San Diego Rescue Mission after
testing positive for methamphetamine.
The San Diego County Health and Human Services Agency (Agency) was
belatedly notified, and the whereabouts of Leslie and Dominic were unknown for
seven months. In November 2012, Leslie
was arrested and Dominic was taken to Polinsky Children's Center. Leslie admitted she had been using
methamphetamine, and she had not enrolled Dominic in school because she wanted
to avoid being apprehended.
Agency
filed a supplemental petition under
section 387, seeking to remove Dominic from Leslie's custody as a result of her
relapse, discharge from drug treatment, arrest, and failures to participate in
services, communicate with Agency and enroll Dominic in school. Because Leslie had received 18 months of
services, Agency recommended the court set a hearing under section 366.26 to
select and implement a permanent plan for Dominic. Dominic told a therapist he missed Leslie,
and also said Leslie's boyfriend, with whom they had been living, slapped and
punched him all the time. Leslie admitted
using methamphetamine intravenously, and could not explain why she
relapsed. The court detained Dominic in
out-of-home care.
When Leslie
was released from custody, she resumed visits with Dominic. The maternal grandfather, who had been
unaware he had a grandson, expressed an interest in having Dominic placed with
him. Agency submitted an evaluation of
his home in Nevada under the
Interstate Compact on the Placement of Children.
At the
settlement conference, the court sustained the allegations of the supplemental
petition and placed Dominic in foster care.
The court set a selection and implementation hearing under section
366.26.
Dominic was
moved to two different foster homes. He
was having weekly visits and telephone calls with Leslie. He was angry, sad and withdrawn after visits
with her, and he misbehaved. Dominic had
no interest in speaking to the maternal grandfather, who was still being
considered for placement.
In a report
prepared for the selection and
implementation hearing, social worker Lisa Olimpio recommended the court
terminate parental rights and order adoption as Dominic's permanent plan. She assessed Dominic as both generally and
specifically adoptable. Olimpio
supervised four visits between Dominic and Leslie, noting Leslie was loving and
appropriate with him. Dominic had a
positive relationship with Leslie and often sought physical affection from
her. He told Leslie he loved her and
asked if he could go home with her. Although
Dominic was not upset when visits ended, his caregivers reported he was
negative and unruly after visiting Leslie.
Olimpio noted that although Leslie knew Dominic wanted to return to her
care, she was unable to remain sober, achieve stability or attend to Dominic's
educational, medical or dental needs.
Olimpio was concerned about Leslie's prior unsuccessful attempts to
treat her drug addiction, her quick relapse once Dominic was placed with her
and her decision to abscond with him to evade the Agency.
Dominic
appeared to believe he would be returned to Leslie's custody. He remained confused about his living
situation, alternating between not wanting to be separated from his caregivers
and stating the caregivers were not his family and their home was not his
home. He then asked the foster father if
he would be his dad. In Olimpio's
opinion, Dominic was clearly struggling and desperately needed stability, which
could only occur through adoption.
The CASA
also recommended termination of parental rights and adoption for Dominic. During a visit she observed, Dominic and
Leslie were warm and positive, but Dominic separated easily from Leslie at the
end of the visit. During the drive back
to the foster home, Dominic expressed his extreme anger at Leslie, but he could
not articulate a reason.
According
to an addendum report, a psychological evaluation of Dominic showed he was
depressed and anxious about what would happen to him and where he would
live. Dominic said he was angry at
Leslie because she left him, did not care about him and was not very nice. He told the evaluator he wanted to live with
his foster family. In the evaluator's
opinion, Dominic was beginning to see the foster mother as the mother figure in
his life.
Dominic
talked to his therapist about the bad choices Leslie made, and he described how
she became angry and grabbed his arm when he tried to wake her up. Dominic said he would be sad to leave his
foster home to go live with the maternal grandfather. The therapist reiterated Dominic needed
safety, security and predictability about his future.
At the
contested selection and implementation hearing, Leslie testified she was
currently enrolled in an outpatient drug treatment program and her drug tests
had been negative for three months. She
attended Narcotics Anonymous meetings, had a sponsor and avoided friends who
used drugs. Leslie visited Dominic once
a week. He hugged her and called her
"mom." They played and read
books together, and she sometimes helped him with his handwriting. Leslie redirected Dominic's behavior when
necessary. She said Dominic sometimes
had difficulty ending visits, and he seemed confused. He told her he loved her.
According
to Dominic's stipulated testimony, Dominic wanted to live with the foster
parents and he wanted Leslie to move in with them. He did not want to live with the maternal
grandfather. Dominic was scared because
he did not know him.
Olimpio
testified she had observed seven visits between Dominic and Leslie. Dominic was excited and happy to see Leslie
and asked to go home with her. However,
he was not sad or upset at the end of visits.
Olimpio believed Leslie and Dominic had a bond, which was mostly
positive. Dominic knew who his mother
was because he had spent a substantial amount of time in her care, and he would
be sad if he could no longer visit her.
Although he saw Leslie as a parent figure during visits, he saw his
foster mother as his mother on a daily basis.
He did not ask for Leslie between visits. Stability was in Dominic's best interests,
and Leslie could not provide him with that.
Dominic's therapist also recommended permanency and stability for him.
After
considering the evidence and arguments of counsel, the court found Dominic was
likely to be adopted and none of the exceptions to adoption applied. The court terminated parental rights and
referred Dominic for adoptive placement.
DISCUSSION
Leslie
contends the evidence was insufficient to support the court's finding the beneficial parent-child relationship
exception to adoption did not apply to preclude terminating her parental
rights. She asserts she maintained
regular visitation and contact with Dominic, had a loving, nurturing and bonded
relationship with him and occupied a parental role in his life.
A
After
reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child,
including the child's interest in a stable, permanent placement that allows the
caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138
Cal.App.4th 529, 534.) At the selection
and implementation hearing, the court has three options: (1) terminate parental rights and order
adoption as the permanent plan; (2) appoint a legal guardian for the child; or
(3) order the child placed in long-term foster care. (Ibid.)
"Adoption,
where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) If the court finds a child
cannot be returned to his or her parent
and is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds termination of parental rights
would be detrimental to the child under one of the specified statutory
exceptions. (§ 366.26, subd. (c)(1)(A) &
(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i)
provides an exception to the adoption preference if termination of parental
rights 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."
Courts have interpreted the phrase " 'benefit from continuing
the . . . relationship' " to refer to a parent-child relationship 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 other words, 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. If
severing the natural parent[-]child
relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for
adoption is overcome and the natural parent's
rights are not terminated." (In
re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re
Jason J. (2009) 175 Cal.App.4th 922, 936.)
To meet the
burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an
emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th
823, 827.) The parent must show he or she occupies a parental role in the child's
life, resulting in a significant, positive emotional attachment from child to parent. (Ibid.; In re Elizabeth M.
(1997) 52 Cal.App.4th 318, 324.)
We review
an order terminating parental rights for substantial evidence. (In re Autumn H., supra, 27
Cal.App.4th at p. 576.) If, on the
entire record, there is substantial evidence to support the findings of the
juvenile court, we uphold those findings.
We do not consider the credibility of witnesses, attempt to resolve
conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in
support of the findings, view the record favorably to the juvenile court's
order and affirm the order even if there is substantial evidence supporting a
contrary finding. (In re Casey D.
(1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th
596, 610.) The parent has the burden of showing there is no evidence of a
sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th
942, 947.)
B
Here, the
evidence showed Leslie had regular visitation and contact with Dominic. However, Leslie did not meet her burden of
showing there was a beneficial parent-child
relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
Although
Leslie had a positive relationship with Dominic and met his needs during
visits, she was not able to ameliorate the risks that caused Dominic to become
a dependent child. Leslie knew Dominic
wanted to live with her, but she was unwilling or unable to put his needs
before her own. Indeed, two weeks after
having Dominic returned to her custody, Leslie relapsed on methamphetamine and
then absconded with him for seven months.
During this time, Leslie failed to attend to Dominic's educational,
medical or dental needs, and allowed her live-in boyfriend to physically abuse
him. Her unstable lifestyle caused
Dominic to become depressed and anxious about what would happen to him and
where he would live. In this regard,
Leslie did not act in a parental role.
The
evidence showed Dominic was happy and excited to see Leslie and their visits
were positive and appropriate. However,
"[a] biological parent who
has failed to reunify with an adoptable child may not derail an adoption merely
by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th
454, 466.) Moreover, although Dominic
initially had difficulty separating from Leslie after visits, this behavior
eventually abated, and was replaced by Dominic's ongoing confusion and anger
toward her for mistreating and abandoning him.
Dominic said he wanted to continue living with his foster family, and he
viewed them as his parents. The love and
affection Leslie shared with Dominic during visits was not enough to show
Leslie had a " 'significant, positive, emotional
attachment' " to Dominic such that terminating the parent-child relationship would result
in great harm to him. (In re Jason J.,
supra, 175 Cal.App.4th at pp. 936-938; In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
Further,
Leslie did not show that maintaining the parent-child relationship outweighed the benefits of adoption for
Dominic. In the opinions of the social
worker, CASA and therapist, Dominic's need for stability, safety and permanency
clearly outweighed any possible detriment that would be caused by severing the
parental relationship. The court was
required to, and did, weigh the strength and quality of the parent-child relationship, and the
detriment involved in terminating it, against the potential benefit of an
adoptive home for Dominic. We do not
reweigh the evidence or substitute our judgment for that of the juvenile
court. (In re Casey D., supra,
70 Cal.App.4th at pp. 52-53.)
Contrary to
Leslie's position, a permanent plan other than adoption would not serve
Dominic's best interests because adoption is the only option that would provide
him with the stability and permanence he so desperately needs. (In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1419 [Legislature has decreed guardianship is not in best
interests of children who cannot be returned to their parents; only adoption
affords the most permanent and secure alternative]; In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference to preserve family
unit does not override best interests of minors in stability and security of
adoptive home].) Substantial evidence
supports the court's finding the beneficial
parent-child relationship exception did not apply to preclude
terminating parental rights.
DISPOSITION
The order
is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
