In re J.D.

Filed 8/6/09 In re J.D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of the County of Los Angeles, Jan Levine, Judge. Affirmed.

John Cahill, under appointment by the Court of Appeal, for Objector and Appellant E.D.

Office of the County Counsel, James M. Owens, Assistant County Counsel, Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Minor J.D.s mother, E.D. (mother), appeals from the juvenile courts order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] According to mother, there was insufficient evidence to support the juvenile courts finding that the parental visitation exception in section 366.26, subdivision (c)(1)(B)(i) did not apply to the termination of her parental rights.

We hold that the juvenile courts finding that mother had failed to establish the section 366.26, subdivision (c)(1)(B)(i) exception was supported by substantial evidence. We therefore affirm the order terminating her parental rights.

FACTUAL^[2]AND PROCEDURAL BACKGROUND

In a report filed in connection with the August 5, 2008, section 366.26 selection and implementation hearing, DCFS advised that J.D. and his family came to the attention of DCFS in May 2005, when, following J.D.s birth, both J.D. and mother tested positive for methamphetamine. Mother admitted using methamphetamine during her pregnancy with J.D., but claimed she did so only once. Mother also admitted she had a five-year history of drug use, but that she did not use drugs every day.^[3] Mother also gave birth to a child in 2003 and tested positive for methamphetamine on that occasion. That child was given up for adoption.

At the time J.D. was born, both of his parents were residing with J.D.s maternal grandparents. In May 2005, mother and father signed a voluntary family maintenance case plan and agreed to comply with it. On November 10, 2005, however, mother tested positive for methamphetamine and DCFS filed a section 300 petition as to her. The juvenile court sustained the petition, detained J.D. from mother, and released him to father.

On June 9, 2006, a section 342 petition was filed as to father for failing to provide for J.D.s basic needs. The juvenile court detained J.D. from father. Over a year later, on July 27, 2007, father regained custody of J.D., but on January 16, 2008, a second section 342 petition was filed as to father, and on March 24, 2008, the juvenile court terminated family reunification services for both mother and father.

The report for the August 5, 2008, hearing also stated that from the time J.D. was detained from mother in November 2005, J.D. had always been part of his maternal grandparents lives. The maternal grandparents had a close relationship with J.D. since birth because he and his parents lived with the maternal grandparents after J.D. was born. On January 14, 2008, J.D. was formally placed with his maternal grandparents as the prospective adoptive parents, and they primarily raised him from that time. The maternal grandparents, as prospective adoptive parents, demonstrated that they were able to meet J.D.s needs and had consistently done so since J.D. lived in their home. The maternal grandparents indicated that they wanted to adopt J.D. because he was their grandson and they loved him. J.D. appeared comfortable and at ease in the maternal grandparents home and identified it as his home.

As to mothers visitation with J.D. after the termination of her reunification services, DCFS reported on August 5, 2008, that she had monitored visits with J.D. twice a week for two hours which were described as consistent and okay, but lacking quality. The maternal grandmother reported that J.D. would become angry and confused after mother left the visits. Also, mother did not play with J.D. or read to him during the visits, and was not involved in caring for his daily needs, such as changing his clothes, bathing him, or feeding him. Instead, according to the maternal grandparents, mother would for a portion of the visit lie on the couch and talk on her cell phone or play video games on it. During the visits, mother would also allow J.D. to become defiant and would not correct him if he, for example, spilled his milk. Mother did not appear to know how to respond when J.D. would react negatively to her. The maternal grandmother reported that mother loved J.D., but did not put time into building a relationship with him. The report for the August 5, 2008, hearing concluded by recommending that the juvenile court terminate parental rights of mother and father.

In a Last Minute Information for the Court filed just before the January 8, 2009, contested section 366.26 hearing, DCFS reported that the maternal grandmother characterized recent visits between mother and J.D. as very poor. At every visit, mother would spend the first 20 minutes with J.D., but then spend the remainder of the visit talking on her cell phone or going outside to smoke cigarettes. Mother would usually bring J.D. a cookie or piece of candy when she visited, but instead of saying, Its so good to see you to J.D., she would say, See what I brought you. Mother tested positive for methamphetamine and amphetamines on June 17, 2008, but tested negative on July 29 and August 4, 2008. She also failed to appear for drug testing on July 29, August 15, September 9 and 18, October 3 and 22, November 4 and 26, and December 3 and 16, 2008.

The juvenile court continued the January 8, 2009, contested section 366.26 hearing to March 5, 2009, to allow father to retain new counsel. On March 5, 2009, the juvenile court held the contested section 366.26 hearing.^[4] Mother appeared represented by counsel and asserted an exception to the termination of her parental rights under section 366.26, subdivision (c)(1)(B)(i). Mother took the stand and testified as follows.

Over the past year, mother had visited J.D. twice a week. She had not missed any visits during that time or been late for any visits. The visits took place at her parents house and they were monitored. On two occasions, mother took J.D. to Chucky Cheese. Other than those occasions, however, mother was not allowed to visit J.D. outside her parents home.

J.D. called mother mommy, and when she would knock on the door at the beginning of visits, she could hear J.D. screaming, Mommys here. Mommys here. J.D. would give mother a big kiss and hug and tell mother that he missed her and loved her. Mother would tell J.D. that she loved him also. At the end of visits, if J.D. was not crying, he would say, Mommy, I wish you [could] stay. I dont want you to go. J.D. would also ask his maternal grandfather, Papa, can mommy stay?

Mothers parents prevented her from disciplining J.D. during the visits because they were so over [her] shoulder. Mother asked her parents to inform her when J.D. had scheduled medical appointments, but they never did. She would only find out about appointments from J.D. after they occurred. On one occasion, J.D. informed mother about a Christmas program at his school and asked her to attend. But when mother asked J.D.s maternal grandmother about the program, the grandmother denied that the school was having one. Despite advising her parents of her desire to participate in J.D.s educational activities, mother was not allowed to participate in them.

J.D. showed his affection for mother during the visits by hugging and kissing her. J.D. liked to sit on mothers lap to watch movies and hug her and kiss her a lot.

Following mothers testimony and closing arguments, the juvenile court ruled that although mother had established that she had consistently visited J.D., she had failed to establish that the benefit to J.D. from a continuing relationship with her in a tenuous placement outweighed the benefits that [J.D.] will have from the permanence of being in a stable, permanent home with his grandparents. The juvenile court therefore terminated parental rights and freed J.D. for adoption.

DISCUSSION

A. Standard of Review

Some courts have held that challenges on appeal to a juvenile courts determination under section 366.26, subdivision (c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A))^[5]are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 & fn. 4.) Under a substantial evidence standard of review the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Other courts have applied an abuse of discretion standard when reviewing a juvenile courts determination under section 366.26, subdivision (c)(1)(B)(i). (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of review, we will not disturb the juvenile courts decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile courts ruling on the section 366.26, subdivision (c)(1)(B)(i) exception is reviewed for substantial evidence or abuse of discretion, because, even under the more rigorous substantial evidence standard, we affirm the juvenile courts determination.

B. Parental Visitation Exception

Once a juvenile court finds that a child is likely to be adopted, after removing the child from parental custody and terminating reunification services, parental rights will be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under certain exceptions set forth in section 366.26, subdivision (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (Id. at p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement].)

The parental visitation exception in section 366.26, subdivision (c)(1)(B)(i) provides that parental rights will not be terminated and a child freed for adoption if the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Italics added.) Application of the parental visitation exception involves a two-pronged analysis. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The first prong requires inquiry into whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second prong requires inquiry into whether there is a sufficiently strong bond between the parent and child such that the child would suffer detriment from its termination. (Ibid.) The parent/child relationship must promote 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 to 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. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

The visitation exception does not apply when a parent fails to occupy a parental role in his or her childs life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the former section 366.26, subdivision (c)(1)(A) exception].) [T]o establish the exception in [former] section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception aris[es] from day-to-day interaction, companionship and shared experiences. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)

C. Substantial Evidence

In this case, the juvenile court found that mother had satisfied the first prong of the section 366.26, subdivision (c)(1)(B)(i) exception by visiting with J.D. regularly. Therefore, the focus of our analysis is on whether mother satisfied the second prong by showing that her relationship with J.D. was such that J.D. would benefit from a continuation of it or suffer detriment if he was deprived of the relationship. The juvenile court determined that mother had failed to make the required showing and, based on our review of the record, substantial evidence supports that finding.

Again, on appellate review, under the substantial evidence standard of review, we determine only whether there is substantial evidence, even if contradicted, that supports the juvenile court findings. There was evidence at the contested section 366.26 hearing showing that although mother regularly visited J.D. twice a week, the quality of their visits was questionable. This evidence included that mother spent more time on her cell phone than she did with J.D; mother did not during her visits attempt to provide basic care for J.D., such as bathing him, dressing him, or feeding him; and mother had no involvement in J.D.s school activities or medical appointments. Although mother claimed her parents prevented her from being more involved in J.D.s life, there was evidence relating to her visits, including that she did not read to J.D. or play actively with him, suggesting a lack of interest on her part in being more involved in J.D.s life. At best, mother showed that she had an affectionate relationship with J.D. that J.D. enjoyed. But that did not establish that mother occupied a parental role in J.D.s life such that J.D. would benefit from a continuation of that relationship or suffer detriment if he was deprived of it.

Moreover, there was solid and credible evidence that J.D.s maternal grandparents had lived with and cared for him for most of his life; he considered their home his home; the maternal grandparents had demonstrated that they were able and willing to meet J.D.s needs and had consistently done so for the entire time J.D. had lived with them; and J.D. was at ease and comfortable with his maternal grandparents, who loved him and wanted to adopt him.

Based on the record, it appears there was substantial evidence to support the juvenile courts finding that mothers relationship with J.D. did not meet the requirements of the second prong of the section 366.26, subdivision (c)(1)(B)(i) analysis, i.e., the benefit to J.D. from that relationship did not outweigh the sense of security and belonging that would be conferred on him by a permanent placement with his maternal grandparents. The juvenile court order terminating mothers parental rights was therefore appropriate because there was no compelling reason to determine that termination would be detrimental to J.D. ( 366.26, subdivision (c)(1), ltalics added [If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption [unless one of the enumerated exceptions applies]].)

DISPOSITION

The order of the juvenile court terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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

^[2] Because mother appeals only from the juvenile courts ruling on the applicability of the section 366.26, subdivision (c)(1)(B)(i) exception, the facts are taken from the evidence introduced at the March 5, 2009, hearing on that issue, including mothers testimony and the five documentary exhibits introduced at the hearing.

^[3] Father admitted having a 10-year history of drug use.

^[4] The minute order for the March 5, 2009, contested section 366.26 hearing reflects that the hearing went forward that day. The reporters transcript of that hearing, however, appears to be mistakenly dated January 8, 2009.

^[5] Section 366.26, subdivision (c)(1)(A) was renumbered as section 366.26, subdivision (c)(1)(B)(i) effective January 1, 2008. (Stats.2006, ch. 838, 52.)