In re L.R.
Filed 9/19/11 In re L.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
| In re L.R., a Person Coming Under the Juvenile Court Law. | B231466 (Los Angeles County Super. Ct. No. CK42172) |
| LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CINDY Q., Defendant and Appellant. | |
APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth Kim, Juvenile Court Referee. Affirmed.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Appellant Cindy Q. (Mother) is the mother of L.R. (born July 2008). L.R.’s father, Henry R. (Father), is deceased. Mother has six other children (Trina R., Nikko P., Samantha A., Amanda A., Gilbert A., and Michael C.), none of whom is the subject of this appeal. Mother appeals the order terminating her parental rights as to L.R. pursuant to Welfare and Institutions Code section 366.26.[1] We affirm the judgment (order of the juvenile court).
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2008, Mother was detained in Los Angeles and it was discovered that she had two outstanding arrest warrants. She admitted she was on probation. While being processed at the jail, she was found to be concealing methamphetamine and charged with possessing a controlled substance in a jail facility and possession of methamphetamine. A Department of Children and Family Services (Department) social worker visited Mother’s residence at the maternal grandmother’s home and discovered L.R., then one month old, being cared for by Mother’s 19-year-old daughter, Trina. L.R. was taken into the Department’s custody and placed in foster care.[2]
On September 24, 2008, the Department filed a petition pursuant to section 300, subdivision (b), alleging that Mother had a history of using illicit drugs and a prior conviction for use of a controlled substance, thus endangering L.R.’s physical and emotional health and safety and placing her at risk of physical and emotional harm and damage.
The initial social worker’s report revealed that Father was a known gang member who possibly had been murdered. Mother lived with extended family members, including a cousin who admitted he was on probation and in a drug program and was reportedly in a gang. Mother’s ex-boyfriend told the social worker that many of Mother’s family members were in the same gang as Father and that other gang members lived in the area near her home. There was conflicting information as to whether Mother was a gang member. Two of Mother’s children stated that they knew Mother had a narcotics problem. Mother had a criminal history beginning in 1997, with arrests for narcotics possession, carrying a concealed weapon, and driving with a suspended license.
On September 30, 2008, L.R. was placed with foster parents, Mr. and Mrs. R. She has remained there during the pendency of this case.
On October 15, 2008, Mother waived her right to trial and submitted the matter on the Department’s reports. The juvenile court sustained the petition as amended under section 300, subdivision (b). Mother was ordered to attend drug rehabilitation, parent education, and individual counseling. Mother was granted monitored visits with L.R.
While incarcerated, Mother completed 27 hours of drug education, 39 hours of parenting classes, and attended other educational classes. When Mother was released from jail on December 8, 2008, she was transported to a residential drug program.
The social worker’s April 2009 report stated that L.R. was happy and adjusting well in the foster home of Mr. and Mrs. R. She was developmentally on target. Mother consistently submitted negative drug tests and began unmonitored visits with L.R. on March 28, 2009, with an overnight stay on weekends.
A report filed by the family services agency on April 15, 2009, stated that L.R. had severe diaper rash after each overnight visit and had begun to have screaming fits in the middle of the night. The report also stated that despite the pediatrician’s admonitions, Mother would feed L.R. solid food.
On May 15, 2009, Mother tested positive for methamphetamine. When asked about the test, Mother denied using the drug and claimed it must have been a mistake. On May 26, 2009, Mother tested positive for morphine and said she had taken a friend’s medication because she was stressed out. On June 25, 2009, Mother submitted a diluted urine sample. She denied using any drugs and claimed she had consumed an excessive amount of water prior to testing. Her unmonitored visitation was suspended on June 5, 2009.
In July 2009, L.R.’s foster mother told the social worker that there were problems with transporting L.R. for visits since Mother did not have a valid driver’s license. The maternal grandmother, an alleged drug user, was reportedly driving L.R. Mother’s visitation had been inconsistent and L.R. was returning from weekend visits extremely tired and not acting like herself. L.R. also was repeatedly getting sick. The foster mother believed this was due to the daycare facilities at Mother’s residential drug program.
From August 10 through August 14, 2009, Mother failed to attend her treatment programs and did not provide the counselor with specifics about her whereabouts. Mother later returned to treatment and said she had relapsed. She missed a visit with L.R. in September 2009 and became angry and confrontational with the social worker when asked about the missed visits and her absence from the treatment program. The residential rehabilitation program terminated Mother. Mother enrolled in another program, but on October 7, 2009, was discharged from that program because she tested positive for methamphetamine.
At the 12-month review hearing on October 28, 2009, the Department reported that Mother had enrolled in another drug treatment program (the Uhuru program) and that the Department was willing to provide Mother with further reunification services. The court questioned the Department’s recommendation in light of Mother’s failed tests. It continued the hearing until December 9, 2009, and admonished Mother that if she dropped out of her current program or failed a drug test it would terminate reunification services.
In December 2009, the family services agency reported that L.R. was upset and crying on the days of her visits. When returning back from a daylong visit, her diaper was saturated and leaking, although a bag of diapers had been sent with her.
At the continued hearing on December 9, 2009, Mother was still enrolled in the Uhuru program and was reportedly cooperative and motivated. The court ordered additional reunification services and set an 18-month review hearing for March 22, 2010.
At a January 2010 visit, L.R. was again upset during the transportation to the visit and crying, “No Bye Bye,” and kicking and hitting herself. She cried, “Andrew” (Mrs. R.’s child) and “Mommy.” When picked up from the visit, she cried, “no, no, mommy, Cindy [Mother’s name].” She then calmed down and waved goodbye to Mother.
In March 2010, the social worker reported that Mother was affectionate and positively interacted with L.R. during visits and that there was a bond between them. L.R. still became upset during transitions between her foster home and visits. L.R. called Mrs. R. “Mommy Tracy” and called Mother “Cindy Mommy.”
On March 29, 2010, the court ordered overnight visits. On April 27, 2010, the court ordered additional reunification services and five overnight visits per week.
On May 28, 2010, the Department filed a section 388 petition requesting a return to monitored visits for Mother, based on Mother’s discharge from the Uhuru program. Mother had been caught leaving the building without permission to meet a man whose child she was now carrying. Mother also violated the program’s rule prohibiting cell phone use and endangered other participants by leaving open a back door to the facility.
On June 9, 2010, L.R.’s attorney filed a section 388 petition requesting termination of parental rights, based on Mother’s discharge from the rehabilitation program and the foster parents’ wish to adopt L.R. The court set both section 388 petitions for a hearing.
At the July 14, 2010 hearing, the Department reported that Mother had tested positive for methamphetamines on July 7, 2010. The court continued monitored visits and terminated reunification services. A section 366.26 hearing was set for November 3, 2010.
Mr. and Mrs. R. indicated they were interested in adopting L.R. and their home study was completed and approved. They stated they would allow Mother to maintain a relationship with L.R. as long as she stayed drug free.
Mother refused to drug test on July 21, 2010, and tested positive on August 5, 2010, and September 9, 2010. Mother gave birth to her seventh child, Michael C., in November 2010. On December 17, 2010, Mother was arrested on a prior warrant for narcotics possession.
The family services agency reported that L.R. continued to be upset and aggressive before and after visits. She was observed walking over to an agency worker and hitting or spitting. L.R. demonstrated fear and anxiety upon a visitor entering and was seen hiding behind her foster mother. The agency noted that “[a]fter a period of encouragement and adjustment, [L.R.]’[s] behavior appears to stabilize after she recognizes that she will not be transported away from her home and family.”
On January 10, 2011, Mother filed a section 388 petition requesting reinstatement of reunification services. She alleged that she was actively enrolled in a drug treatment program, had been participating in individual counseling, and had tested negative for drugs from September 14, 2010, through December 15, 2010.
The court commenced the section 366.26 hearing on January 19, 2011. It denied Mother’s section 388 petition, noting that L.R. was thriving in her current home and that although Mother’s circumstances were changing, it did not appear that delaying permanency would be in L.R.’s best interest. The court received the Department’s reports into evidence. It terminated Mother’s parental rights, finding that L.R. was adoptable, that it was not in L.R.’s best interest to return to Mother, and that no exception to adoption applied.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights because she and L.R. share a strong bond, she consistently visited and positively interacted with her child, and she occupies a parental role in L.R.’s life.
Pursuant to section 366.26, subdivision (c)(1), once the juvenile court determines a child is adoptable, the court shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child due to certain circumstances. One such circumstance is where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Mother asserts this exception applies here.
It is the parent’s burden to show that termination would be detrimental. (In re Erik P. (2002) 104 Cal.App.4th 395, 401.) “To meet the burden of proof for the section 366.26, subdivision (c)(1)[(B)(i)] exception, the parent must show more than frequent and loving contact or pleasant visits. [Citation.] . . . 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. [Citations.]” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.)
To justify application of section 366.26, subdivision (c)(1)(B)(i), any relationship between the parent and child must be sufficiently significant that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) The juvenile court must consider many variables, including the child’s age, the length of time the child was in parental custody and in foster care, and the effect of interaction between parent and child and the child’s particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Zachary G. (1999) 77 Cal.App.4th 799, 810-811.) The court must then balance the strength and quality of the parent-child relationship against the security and sense of belonging that a stable family would confer on a child. (In re Zachary G., supra, at p. 811.)
As to whether termination of the relationship would be detrimental to the child, we review the court’s decision for abuse of discretion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
Although Mother established that she and L.R. maintained regular contact and enjoyed their visits, she failed to show that L.R. would benefit from a continuation of the parent-child relationship. Despite three years of Department jurisdiction, Mother had not shown the ability to provide L.R. with a safe and stable home.
Nor do we accept Mother’s claim that she had shown sufficient progress in dealing with her drug problem. She remains in denial about her drug use. She was having difficulty completing her residential drug rehabilitation programs and maintaining sobriety. Mother had problems even though she did not have the added burden of providing for L.R.’s care. Finally, Mother continued to miss drug tests and tested positive for drugs three times in 2009 and three times in 2010. The last dirty test was merely four months before the section 366.26 hearing.
Although we do not doubt Mother loves her child, it is clear that the foster parents occupy the role of parent in L.R.’s life. L.R.’s behavioral problems that arise from the constant shifting between Mother’s drug facility and the foster home demonstrate that the child needs a stable environment. Her anxiety dissipated once she recognized that she was not being taken from her home and its nurturing environment. Balanced against the uncertainty of Mother’s sobriety and her less than favorable living situation, it is clear that adoption by the foster family will confer a much stronger sense of security and belonging to L.R.
We conclude the court did not abuse its discretion by finding that Mother and L.R.’s relationship did not constitute a compelling reason to preclude adoption.
DISPOSITION
The order of the juvenile court terminating Mother’s parental rights as to L.R. M. is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com
