In re J.C.

Filed 10/4/06 In re J.C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from order of Superior Court of Los Angeles County, D. Zeke Zeidler, Commissioner. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel for Plaintiff and Respondent.

INTRODUCTION

Leticia J. appeals from the order of the juvenile court that terminated her parental rights to five-year-old J. C. and four-year-old G.C., Jr. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2004, when J. was three and G. was two years old, the Department of Children and Family Services (the Department) was notified that the two children were being neglected by their father[1] and paternal grandmother who was their caretaker. Father was abusing drugs in the presence of the children. Leticia had executed a document in 2003 giving the paternal grandmother custody of the children. Nonetheless, the paternal grandmother explained to the social worker that she was unable to care for the children over the long-term because “[Leticia] has threatened her and her family by breaking windows, cursing at her and has had a physical altercation with not only a neighbor but with other family members after [the paternal grandmother] refused to let [Leticia] pick up the children . . . .” The paternal grandmother revealed her fear of Leticia and inability to protect the children from their parents’ violence. J. reported having witnessed Leticia’s violent behavior toward his paternal relatives “in the past.”

The social worker went to the maternal grandmother’s house. During the visit, Leticia became belligerent. Leticia harshly and repeatedly attacked a paternal aunt with closed fists, pulled the aunt’s hair, and used profanity. Later, Leticia attacked the paternal grandmother’s car with a shoe and a log in an attempt to break the window. All of this occurred in the presence of the social worker and the children. The social worker called the police and detained the children.

The Department filed a petition alleging that Leticia’s substance abuse and history of violence in the presence of the children placed the boys at risk of harm. (Welf. & Inst. Code, § 300, subd. (b).)[2] The Department placed the children with a paternal aunt.

In May 2004, Leticia pled no contest to the amended petition. The juvenile court declared the children dependents and removed them from their parents’ custody. The court ordered reunification services for Leticia and awarded her monitored visits with the children for four hours per week. Leticia regularly visited the children twice a week.

In September 2004, less than four months after the children were adjudicated dependents of the court, Leticia was arrested. At the six-month review hearing (§ 366.21, subd. (e)), the court continued reunification services for her.

Leticia was released from jail in February 2005 and went to live with the maternal grandparents. She had the boys for monitored overnight visits at the grandparents’ house. The visits were liberalized at the end of April 2005.

However, Leticia was arrested again the following month, in May 2005, on robbery charges. Her arrest came just weeks before the scheduled 12-month hearing (§ 366.21, subd. (f)).

The Department’s original recommendation for the May 2005, 12-month hearing had been to release the children to Leticia in the maternal grandparents’ home, with in-home supportive services. However, in view of Leticia’s second arrest, the Department withdrew its recommendation to place the boys with her, and recommended termination of reunification services.

At the 12-month review hearing (§ 366.21, subd. (f)) held in June 2005, the juvenile court found that the children could not be safely returned to Leticia’s physical custody and there was no substantial probability that the children would be returned to Leticia within six months. The juvenile court terminated reunification services and set the section 366.26 hearing. The court also ordered twice monthly visits for Leticia and the boys while she was incarcerated within a reasonable distance and weekly monitored visits upon her release.[3]

Meanwhile, in the Department’s view, the children were adoptable as they were attached to and bonded with their caregiver and maternal grandparents. They had been living with the caregiver since their detention and with their maternal grandparents before the detention. These adults loved the children and wanted to adopt them.

Based on the court’s June 2005 visitation order, the maternal grandmother transported the boys to visit Leticia in jail twice a month. Apparently, in mid-August 2005, the frequency of visits diminished. The Department explained that the caregiver had never complied with the visitation orders, and had delegated the responsibility of visits to the maternal grandparents. When the maternal grandmother went to Mexico in August 2005, the caregiver did not assume the grandmother’s visitation duties. When Leticia specifically requested a visit on J.’s birthday, the caregiver refused. Leticia wrote to ask the social worker to transport the children. In response, the social worker persuaded the caregiver to comply with the visitation orders. In late August 2005, the caregiver informed the social worker that she took J. to visit Leticia but was told that Leticia refused the visit “ ‘because she was sleeping.’ “ Leticia denied refusing to visit, stating she was asleep when called, and by the time she was ready, the guard told her “ ‘You’re late. No more visits. They were already sent home.’ “

At the section 366.26 hearing, Leticia objected to the recommendation of termination of parental rights. The juvenile court requested an offer of proof. Directed to explain Leticia’s visitation record in the six months proceeding the section 366.26 hearing, Leticia’s counsel explained that from May through September, Leticia saw her children “every single weekend” for 30 minutes, and that between September and February, she saw the children “every other week” for seven hours. Explaining that it needed to hear evidence of the nature of the contact during the visits, the court set the section 366.26 hearing for a contest.

Leticia called the maternal aunt at the section 366.26 hearing in February 2006. The aunt testified that from May until September 2005, the children visited Leticia at the county jail. But once Leticia was moved to prison in September 2005, no visits were allowed until December 2005, when the prison approved the family for visits. From December 2005 until the February 2006, the boys were brought to prison three times. The aunt testified that when the children first saw Leticia in prison, they would run up to her and hug her. The visits to prison occurred in a park and lasted six or seven hours, during which time, Leticia would play in the playground with the children and take them to vending machines. The boys did not want to leave at the end of the visits. J. would cry. G. would hug Leticia and tell her he loved her.

When the Department’s attorney began its cross-examination, the court interrupted the testimony. It explained that Leticia’s offer of proof did not match the testimony and Leticia had not shown that she had regular and consistent visitation and contact with the children where she had had only three contacts with the children in the previous six months. The court found the children to be adoptable and terminated parental rights. Leticia’s timely appeal followed.

CONTENTIONS

Leticia contends that the juvenile court erred in terminating her parental rights.

DISCUSSION

1. Even assuming Leticia’s visits were sufficiently frequent, she failed to demonstrate the second prong of the parental-relationship exception to adoption.

Leticia first attacks the termination order on the ground that the prison’s delay in approving visitation limited the number of times she could see her children in the six months leading up to the section 366.26 hearing. The prison’s conduct, Leticia argues, violated her right to due process because it undermined her ability to present evidence of regular visitation, one of the prongs of the parental-relationship exception to adoption. (§ 366.26, subd. (c)(1)(A).)

“If there is clear and convincing evidence that the child will be adopted, and there has been a previous determination that reunification services should be ended, termination of parental rights at the section 366.26 hearing is relatively automatic. [Citation.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Only when the court finds that termination of parental rights would be detrimental to the child under one of the five delineated exceptions (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574), is adoption not selected as the permanent plan. Leticia has raised no challenge to the finding the boys will be adopted. Thus, termination of Leticia’s parental rights was relatively automatic unless one of the five exceptions applied. (In re Zacharia D., supra, at p. 447.)

Leticia relies on the parental-relationship exception found in section 366.26, subdivision (c)(1)(A). That exception applies when the court finds that (1) “[t]he parents or guardians have maintained regular visitation and contact with the child and [(2) the child] would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A); italics added.) The parent bears the burden to show that this exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)

Leticia’s argument about the prison’s delay in approving her family for visits in the four months between September and December 2005, after reunification was terminated, ignores the whole visitation history. That history shows first that Leticia arranged for the paternal grandmother to have custody of her children in 2003. Also, Leticia was in and out of jail during the dependency. When not in jail, she saw the boys twice a week for four months, and then regularly, but for only three months before she was arrested again. There is no evidence, none, of her visits during her first incarceration, which lasted five months. During her second arrest, she saw the children merely twice a month until December 2005, after which she saw them a total of three times. In short, regardless of whether Leticia was prevented by the prison from seeing her children for three months in the fall of 2005, her visits with the boys over the course of the entire 22-month dependency was not frequent and supports the court’s conclusion she did not meet the first prong of the exception to adoption found in section 366.26, subdivision (c)(1)(A).

More important, however, even assuming Leticia met the first prong of the parental-relationship exception to adoption, she has not met the second prong with the result that the prison’s delay in approving visits for three months does not affect the result here. That is, even if Leticia’s offer of proof provided sufficient evidence of “regular visitation and contact” with the children, she offered scant evidence of the quality of her visits such that the boys “would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)

Evidence relevant to the second prong of the exception to adoption that Leticia advocates (§ 366.26, subd. (c)(1)(A)) is a relationship between Leticia and the boys that “promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To determine whether the relationship sufficiently promotes the child’s well-being, courts 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.” (Ibid.) “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.” (Ibid.) The juvenile court balances the quality of the relationship and the detriment involved in terminating it on the one hand against the possible benefit of an adoptive family on the other hand. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)

This parent-child relationship must be more than “frequent and loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or pleasant contact. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Leticia’s burden was to show that she and G. and J. have “[a] strong and beneficial parent-child relationship” that would render termination of parental rights detrimental to the children. (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.) This exception is applied only where, because of regular visits and contact, the parent has been able to occupy a “parental role“ in relationship to the children anytime during their lives. (In re Beatrice M., supra, at p. 1419, italics added.) This relationship arises from the “day-to-day interaction” where the adult tends to the child’s needs for “physical care, nourishment, comfort, affection and stimulation. [Citation.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

We review the juvenile court’s finding for sufficiency of the evidence. (See In re Cliffton B., supra, 81 Cal.App.4th at p. 425.) Although some courts have advocated an abuse of discretion standard (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), practically-speaking, under either standard the result is the same.

Leticia’s contention about the prison’s conduct addresses the frequency of visits. But, the mere fact of visitation alone is not enough; as explained, the evidence must show the kind of regular or “day-to-day interaction,” in which the adult tends to the child’s needs for “physical care, nourishment, comfort, affection and stimulation . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 575) and meets “the child’s need for a parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) With the exception of the maternal aunt’s testimony about Leticia’s interaction with the boys on the three visits to prison after December 2005, Leticia provided the juvenile court with no evidence whatsoever about the quality of the parent-child bond in the whole of J.’s six-year-life, or G.’s four-year-life. While the boys appear to love Leticia and played with her in the prison playground, this indicates merely that their relationship with Leticia was pleasant and they had fun together. Still, the record is utterly devoid of evidence of the kind of regular, daily interaction between Leticia and the children in which she functioned as a parent by tending to the boys’ physical, social, and psychological needs.

Because Leticia failed to prove the second prong of the parental-relationship exception to adoption, what the prison did or did not do to affect the amount of visitation for three of the 22 months this dependency lasted does not change the result here.

2. The juvenile court did not violate Leticia’s rights by cutting off the Department’s cross-examination of Leticia’s witness.

Leticia next contends that the juvenile court denied her right to due process when it cut short the cross-examination of her witness at the section 366.26 hearing. We disagree.

Because the direct testimony that Leticia offered did not demonstrate that the boys would benefit from continuing their relationship with her (§ 366.26, subd. (c)(1)(A); In re Megan S., supra, 104 Cal.App.4th at p. 251), she was not denied due process by the juvenile court’s decision to cut off cross-examination about the frequency of visits. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 [“the court can require an offer of proof to insure that . . . [the parent] had evidence of significant probative value” without violating due process].)

Apart from the fact the court “retains broad discretion over the conduct of trial [and i]n the context of its duty to supervise the questioning of trial witnesses . . . .” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385), the court here did not cut off Leticia’s case; it allowed Leticia’s witness to testify fully, and only interrupted the Department’s cross-examination. Thus, Leticia was not prejudiced. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387; cf. In re Tamika T., supra, 97 Cal.App.4th at p. 1124.) There was no juvenile court error.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] Father is not a party to this proceeding.

[2] All further statutory references are to the Welfare and Institutions Code.

[3] Leticia filed a petition for extraordinary writ review, which this Court denied.