In re G.R.

Filed 12/10/08 In re G.R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendants and Appellants.

Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, L.G., appeals from the juvenile courts order terminating her parental rights to G.R. pursuant to section 366.26.^[1] Appellant contends the court erred in failing to apply the parent/child relationship exception rather than accepting adoption as the final plan for G.R. We will affirm the juvenile courts judgment.

FACTS AND PROCEEDINGS

Dependency and Denial of Reunification Services

On April 23, 2007, the juvenile court conducted a jurisdiction hearing on allegations that appellant and G.R. tested positive for the presence of methamphetamine when G.R. was born in March 2007. Appellant and G.R.s father submitted the matter and waived their rights to a contested hearing.^[2] The juvenile court found G.R. to be a dependent of the court based on the allegations in the departments petition.

According to the social workers report prepared for the disposition hearing, G.R. was placed in licensed foster care. On May 21, 2007, appellant tested positive for marijuana and methamphetamine. G.R. was developing well in her foster home with the foster parents indicating an interest in adoption. Although the department originally arranged for the parents to visit G.R. twice a week, the parents requested that visitation be changed to one day a week for two hours. Appellant interacted appropriately with G.R.

Both parents were referred for parenting classes, mental health assessments, substance abuse evaluations and drug treatment, random narcotics treatment, and visitation with the minor. The department recommended reunification services for the parents.

At the disposition hearing on June 18, 2007, the juvenile court found that the Indian Child Welfare Act was not applicable. The parents submitted the matter on the social workers recommendation. The court continued reunification services for both parents, found G.R. to be a dependent, and found the department was making reasonable efforts to return the child to a safe home.

The social workers report prepared in October 2007 noted that the parents did not start court-ordered services until four months after G.R. was removed from their custody. Although the parents participated in substance abuse treatment, they were discharged because of noncompliance. Neither parent provided consistent drug tests. Appellant was enrolled in a recovery program from July 17, 2007, until August 6, 2007, but missed 5 of 11 group sessions and was not compliant with drug testing.

Appellant attended a meeting on October 9, 2007 where she was offered inpatient services to assist her in court-ordered services. Appellant was unwilling to participate in an in-patient substance abuse program although she was referred to a program. Appellant was visiting G.R. only sporadically. Appellant cancelled a meeting with a therapist stating that she was visiting her daughter. Appellant failed to attend the visit. Appellant elected not to attend a parenting class.

Appellant told the social worker that she had no problems with drugs and did not see the need for treatment. An assessment evaluator, however, determined that appellant had a problem with amphetamines and recommended that appellant participate in an intensive substance abuse treatment program. Appellant was in a 90-day treatment program but was terminated after 30 days for not following the rules of the program. Appellant was willing to participate in a treatment program in Huron. Appellants participation in an anger management program was also scarce.

The social worker found that both parents demonstrated a pattern of behavior indicating that they were unwilling or unable to participate in services. They were not cooperative with the social worker despite efforts to provide specific services to meet their needs. The social worker recommended termination of reunification services for both parents.

At the review hearing on December 3, 2007, appellant testified that she had been participating in random drug testing and receiving outpatient treatment in Huron since September 2007. In October, appellant began attending an anger management class. Appellant was waiting until the outcome of the hearing to see if she would be able to begin a parenting class. The program offers part-day classes twice a week. Appellant said that the outpatient treatment program helps her to sort out her feelings and a place to go instead of taking drugs.

Although appellant missed some early counseling sessions, appellant regularly attended counseling since September 2007 except for three sessions. Appellant explained that she wanted her daughter to come home with her so appellant could provide the care necessary for her daughter to be happy and healthy. Appellant believed longer visits would be beneficial to her daughter.

Appellant conceded that since she entered the outpatient treatment program in October 2007, she tested positive for drugs.^[3] Appellant admitted using drugs in early November 2007 and had no excuse for doing so. Between August 1, 2007, and November 30, 2007, appellant had 11 visits with G.R. Appellant missed four visits in August, three visits in October and two visits in November. Appellant would play with G.R., change her, and G.R. would sleep in appellants arm. Appellant was always appropriate in her conduct with G.R. and G.R. was calm with appellant. The juvenile court found the parents made minimal progress toward their case plan and that the department complied with the plan. The court found there was clear and convincing evidence that the parents failed to participate in services offered to them. The court terminated reunification services to both parents and scheduled the matter for a section 366.26 hearing.

Section 366.26 Hearing

The social workers report for the section 366.26 hearing was prepared in March 2008. The social worker noted G.R. was developing normally for a child her age. Appellant had 18 documented visits with G.R. and all the visits went well. Appellant fed and played with G.R. and changed her diapers. It appeared that G.R. would be adopted if parental rights were terminated. Neither parent had completed their court ordered services. The social worker stated that it would be detrimental to G.R. to be returned to her birth parents and recommended that parental rights be terminated with a permanent plan of adoption.

G.R.s current care providers had an attachment to her and G.R. would benefit from the parent/child relationship that had been established with them. The current care providers had been married for 10 years and had three other adopted children. The prospective adoptive parents had G.R. in their care since March 2007 and developed a bond with her.

In an addendum report prepared in late May 2008, the social worker noted that appellant shows love for G.R. and was able to sooth G.R., who was crying prior to and during one of appellants visits. The social worker concluded, however, that there was little bond between appellant and G.R. because appellant had not cared for G.R. on a daily basis.

Although appellant shows nurturing ability with G.R. by attending to her and cuddling her, G.R. does not frequently draw close to appellant. Appellant does not provide a stimulating and challenging structure to G.R. The care providers not only soothe G.R., they also provide good structure to G.R. and can redirect her when she becomes uncooperative. The bond G.R. has with appellant was little more than that of a visiting relative or babysitter.

The section 366.26 hearing was held on June 4, 2008. Appellants counsel argued that appellant had 18 documented visitations with G.R. and all the visits went well. There had been several more visits since the addendum report. The social workers found, according to counsel, that appellant was an effective parent. Counsel noted appellant had good nurturing skills and there was a bond between appellant and her daughter. Counsel argued that appellant met the exception under section 366.26 and that the court should choose a permanent plan other than adoption.

The juvenile court determined it was likely G.R. would be adopted and adoption was the appropriate permanent plan. The court found insufficient evidence for the exception in section 366.26, subdivision (c)(1)(B)(i) that the parents visited regularly, and the child would benefit from continuing the relationship. The court terminated the parental rights of both parents and ordered G.R. placed for adoption.

PARENT/CHILD RELATIONSHIP

Appellant contends the court erred when it declined to find termination would be detrimental to the childs best interests. She claims she was entitled to such a finding because she maintained regular visitation with her child and G.R. would benefit from continuing the relationship ( 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]). On review of the record, we find no abuse of discretion.

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) Instead, it is the parents burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

While it is undisputed appellant maintained regular visitation with G.R. as permitted by the court, the court could properly conclude that appellant and her young daughter did not share a parent/child relationship. Appellants limited ability to nurture and care for G.R. does not demonstrate a parent/child relationship. G.R. was bonded with her care givers, who were willing to adopt her. According to the social worker, appellant was more like a visiting relative or a babysitter than a parent.

We may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on her insistence on maintaining her parental rights and ignoring other evidence before the court.

In any event, appellant failed to establish her relationship with G.R. was so strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a childs frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Appellants visitation with G.R. was not so frequent as to show a sustained relationship. We therefore reject appellants argument on appeal that she occupied a parental role in G.R.s life.

There are few factors in the record other than appellants ability to nurture that would support a finding by the juvenile court of an important and beneficial relationship. (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant ignores G.R.s very young age, the fact G.R. spent little time with her, and, most importantly, G.R.s need for stability, continuity and permanence. Furthermore, appellant failed to complete any of the court ordered reunification services and lost those services long before the section 366.26 hearing. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and G.R. during their visits.

[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: balance[] 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 parents rights are not terminated. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, appellant failed to introduce any such evidence. Accordingly, we conclude the court did not abuse its discretion by rejecting appellants argument.

DISPOSITION

The juvenile courts order terminating parental rights is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] The father does not appeal from the judgment of the juvenile court.

^[3] A report from Global Drug Testing Services indicates appellant tested positive for amphetamine/methamphetamine on November 5, 2007.