In re J.H.

Filed 4/11/07 In re J.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minors.

Objector and appellant L.D. (mother) is the natural parent of J.H. and Gloria H., dependent children of the juvenile court. Mother failed to reunify with the children and her parental rights were terminated. Mother appeals, contending that the court should not have terminated her parental rights, based on the beneficial relationship exception stated in Welfare and Institutions Code^[1]section 366.26, subdivision (c)(1)(A). She further argues that her attorney provided incompetent representation in failing to argue that the beneficial relationship exception applied. We affirm.

FACTS

Mother had a long history of substance abuse. She tested positive for marijuana when J.H. was born in 1997, and tested positive for cocaine when Gloria was born in 1998. The Department of Public Social Services (DPSS) filed a petition under section 300 in 1998. The children were placed with mother under a family maintenance plan, which required that mother participate in drug counseling, drug testing, therapy, and parenting classes. Mother did not progress on her case plan, however, and DPSS took custody of the children in October 1998. DPSS filed a supplemental petition under section 387.

In October 1998, the juvenile court found the allegations of the petition to be true and detained the children. In addition to J.H. and Gloria, mothers other children, M.H., Darrell T., and T.T., were also detained. M.H., Darrell, and T.T. were initially placed briefly with their father, but he returned them to the custody of DPSS. Gloria and J.H. were placed together in the same foster home. While they were in foster care, J.H. and Gloria visited regularly with mother and with their siblings.

Ten months later, in August 1999, the court placed Gloria and J.H. with mother; they resided with mother in her residential drug treatment facility. Mother completed that program and a parenting class, and then moved with J.H. and Gloria to a sober living placement. Mothers housing situation was unsuitable, however, to have all the children placed with her. The other three children remained in foster placement, but continued to visit with mother and their siblings. The juvenile court extended mothers reunification services to allow mother to find suitable housing to have all the children returned to her care.

Mothers situation did not become stable, however. She continued to abuse drugs, she tested positive for marijuana more than once, and she was terminated from several substance abuse programs. At the 18-month review in September 2000, the court continued family maintenance services for Gloria and J.H., but terminated reunification services as to the remaining three children. Those children had remained in foster care, as mother had failed to progress as to them.

In February 2001, J.H. and Gloria were once again taken into protective custody after mother was involved in a physical fight with her girlfriend. J.H. and Gloria were briefly released to their father, but DPSS had to remove them from his custody as well. J.H. and Gloria were placed for a time with their other siblings.

In February 2001, DPSS filed a subsequent petition ( 342) and another supplemental petition ( 387) alleging that mother continued to abuse drugs. A new round of reunification services began, to allow mother a chance to reunify with J.H. and Gloria. Mother visited the children regularly. Mother did not remain in contact with her social worker, however, and she was also arrested again for domestic violence. Mother failed to maintain a stable home, moving frequently. She was also terminated from yet another drug treatment program.

In November 2001, the juvenile court terminated mothers reunification services and set a selection and implementation hearing ( 366.26) for J.H. and Gloria. The court selected long-term foster care as the appropriate plan for them.

In February 2002, all five children were removed from their foster care placement because of allegations of physical abuse. J.H., Gloria and T.T. were placed together initially. In March 2002, the court again ordered long-term foster care as the plan for J.H. and Gloria. Several placement changes occurred over the next number of months. Mother continued to visit with the children, but she missed some visits because of the changes in their placement, and she was also out of the area for a few months.

In May 2003, the social workers status review report indicated that J.H. and Gloria had been evaluated, and found adoptable. A planned permanent living arrangement had been found for the three other siblings. The court set a hearing for September 2003. That hearing was continued to obtain an adoption assessment of the foster parents as prospective adoptive parents. The prospective adoptive parents undertook counseling, parenting classes and anger management training. The hearing was continued to April 2004.

In the meantime, in 2003, mother had moved to a different city. Her visits with the children then became much less frequent. DPSS continued to work to overcome barriers to adoptive placement for J.H. and Gloria

A new selection and implementation hearing came on for hearing in August 2006. In late 2005, mother had given birth to a sixth child, J.A.. Mother and the new baby tested negative for controlled substances, so J.A. remained in mothers care. Nonetheless, mother had continued to have difficulty scheduling visits with J.H. and Gloria The juvenile court found J.H. and Gloria were adoptable, and found that no exceptions would apply to halt the termination of mothers parental rights. The court accordingly terminated mothers parental rights as to J.H. and Gloria

Mother appealed.

DISCUSSION

1.

THE BENEFICIAL RELATIONSHIP EXCEPTION DID NOT APPLY

Mother relies on section 366.26, subdivision (c)(1)(A), which provides that, if the juvenile court finds that a dependent child is adoptable, it shall terminate parental rights, unless the court finds a compelling reason for determining that termination would be detrimental to the child, because (A) The parent[] . . . ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

The beneficial relationship exception requires much more than an incidental benefit to the child. Rather, it contemplates that the parent and the child will have developed such a significant, positive and emotional attachment from the child to the parent, that severance of the relationship would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must stand in a parental role toward the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420)

The burden is on a parent to establish, at the selection and implementation hearing, the applicability of any such exception. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) The juvenile courts findings are affirmed if supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

DPSS argues that mother should be precluded from raising this argument on appeal because she failed to argue below that the beneficial relationship exception applied. We agree. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.)

Mothers claim is unmeritorious in any case. The record indicates that, although mother visited the children through the early stages of the dependency, she did not maintain regular visitation, particularly after she moved to another city in 2003. The children had not been in mothers direct care since 2001. In three years between 2001 and a hearing in July 2004 mother visited the children only three times. She failed to maintain contact with DPSS and was absent for months at a time. Mother rarely requested visits, and only sent cards or letters occasionally. After the visit in July 2004, mother did not again visit the children up to the time of the termination hearing in August 2006. Mother did not carry her burden of showing that she met even the first prong of the beneficial relationship exception, to maintain regular visitation.

There was also no evidence that the children had any significant attachment to mother. Substantial evidence supported the juvenile courts finding that the beneficial relationship exception did not apply.

Mothers reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), is misplaced. There, the court held that the applicability of the beneficial relationship exception should take into account the context of the restrictions or limitations on contact allowed under the service plan. (Id. at pp. 1537-1538.) Brandon C. is distinguishable, however. There, it was undisputed that the parent had maintained consistent and regular visitation to the extent she was permitted throughout the dependency. She had also succeeded in establishing a close bond with the children, as attested by other witnesses. Mother here failed to maintain regular visitation.

Mother failed to raise the beneficial relationship exception below and is precluded from doing so here. The evidence fully supports a determination, in any event, that the beneficial relationship exception did not apply.

2.

NO INEFFECTIVE ASSISTANCE OF COUNSEL

Mother argues that the failure of her trial attorney to raise the beneficial relationship exception rendered counsels representation constitutionally ineffective. To prevail on a claim of ineffective assistance of counsel, mother bears the burden of showing that counsels representation fell below an objective standard of reasonableness under prevailing professional norms. In addition, mother must show prejudice: i.e., a reasonable probability that, but for counsels errors, the result would have been different. (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)

Mothers claim of ineffective assistance of counsel is without merit. While mistakes were made (counsel mistakenly stated he had not met with mother before, whereas he had appeared with her on three earlier occasions; counsel failed to correct another attorneys statement that mother had not visited in five years, when in fact she had visited four times in five years, and it had been two years since her last visit) the fundamental problem remained. Mother had not maintained regular visitation with the children for several years.

DISPOSITION

The order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

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