In re Markey M.

Filed 8/19/08 In re Markey M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Minors.

Appellant Dallas P. (mother) is the mother of Markey^[1]and Michael (the children). Mothers parental rights as to the children were terminated. On appeal, she claims that the beneficial relationship exception applied (former 366.26, subd. (c)(1)(A)^[2]). We affirm.^[3]

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 1999, the Riverside County Department of Public Social Services (the department) filed a section 300 petition on behalf of the children. Markey was two years old at the time, and Michael was 16 months old. The petition alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition included the allegations that the childrens father (father)^[4]was arrested for operating a methamphetamine lab out of the family residence; both parents had an unresolved history of abusing controlled substances; father had perpetrated acts of domestic violence against mother; father had a history of drug-related convictions for manufacturing methamphetamines; and both parents were incarcerated.

Detention

At the detention hearing on March 3, 1999, the court placed the children in the temporary custody of the department and detained them in foster care.

On May 17, 1999, the children were placed in the home of their paternal grandmother.

Jurisdiction/disposition

The court held a contested jurisdiction hearing on June 1, 1999. The court found that the children came within section 300, subdivisions (b) and (g), and adjudged them dependents of the court. The court ordered mother to participate in reunification services. The court also ordered visitation to be as directed by the department, upon mothers release from custody.

Six-month Status Review

The social worker filed a six-month status review report on November 17, 1999, recommending that mothers reunification services be terminated. The social worker reported that mother lived a transient lifestyle and had no means of support. However, mother had visited with the children once a month for the past four months. Mother always hugged and kissed the children at the start of the visits, and she acted appropriately with them, with the exception of occasional inappropriate comments.

The social worker also reported that the paternal grandmother was meeting the childrens needs and that the children appeared to be comfortable with her.

At a contested six-month review hearing on February 8, 2000, the court ordered reunification services to continue for another six months.

12-Month Status Review

The social worker filed a 12-month status review report dated September 20, 2000, and recommended that the court terminate mothers services and set a section 366.26 hearing. The social worker reported that mother had consistently visited with the children but noted that at the August 25, 2000, visit, the children ran to greet mother but refused to give her a kiss. Furthermore, Michael became aggressive and began to pull mothers hair and clothes.

At a contested review hearing, the court terminated services and set a section 366.26 hearing.

Section 366.26 Report and Hearing

The social worker filed a section 366.26 report on January 3, 2001, and recommended that the paternal grandmother be appointed legal guardian of the children. The social worker reported that mother had consistently visited the children. She currently saw the children every other week. Prior to that, she saw them once a month. Due to the increase in visitation, the social worker believed the children had formed a bond with mother, as evidenced by how they greeted her at visits and interacted with her. The social worker stated that the children had come to identify mother as their mother. Thus, the social worker opined that severing their relationship would not be in the childrens best interests.

Furthermore, the social worker reported that the children had been in the paternal grandmothers care for over one year, and they had bonded with her. However, she and the paternal grandfather decided they were more comfortable with the level of responsibility appointed to a legal guardian rather than adoption.

The section 366.26 hearing was held on March 26, 2001. The court found that termination of parental rights would be detrimental to the children, in that mother had maintained regulation visitation with them and they would benefit from continuing the relationship with her. The court further noted that the children were living with a relative who was unable or unwilling to adopt them, but she was willing and able to provide them with a stable and permanent home. In addition, the children would be difficult to place for adoption since they were a sibling set that should stay together. The court thus appointed the paternal grandmother legal guardian of the children. Visitation was ordered to be in accordance with a visitation agreement arranged in mediation.

Postpermanency Review Hearings

The social worker filed a status review report on September 4, 2001, recommending that the children remain in legal guardianship. The social worker noted that the children often seemed sad. Markey did not throw tantrums when visits with mother were over, but she often said she missed mother. Mother had visits with the children at McDonalds every other Saturday. However, mother missed several visits in the past month because she was moving and had scheduling problems. On July 14, 2001, mother did not show up for the visit because she did not have a ride, and the children were upset. The social worker noted that mother and the paternal grandmother had a strained relationship, which made visitation difficult.

At the review hearing on October 11, 2001, the court found that legal guardianship continued to be the appropriate plan.

The social worker filed a status review report on March 28, 2002, recommending that the children remain in legal guardianship. The social worker reported that mother had scheduled visits with the children every other Saturday, but she continued to have trouble attending visits due to transportation problems.

The social worker filed an addendum report on May 29, 2002. She recommended that the legal guardianship continue.

On September 30, 2002, the department filed an ex parte application to request that the dependency be terminated. The court granted the request.

Section 366.26

On September 4, 2007, the social worker filed a JV-180 request to change court order. The social worker stated that the legal guardian was now ready to adopt the children. The social worker requested that a section 366.26 hearing be set so that a permanent plan of adoption could be established. The court granted the request and set a section 366.26 hearing for December 4, 2007.

The social worker filed a section 366.26 report on November 8, 2007, and recommended termination of parental rights and adoption as the permanent plan. The social worker reported the paternal grandmother informed her that mother visited the children at times, but not often. The social worker further reported that the children had been in their placement with the paternal grandmother since May 1999 and were very happy there. They were bonded with the paternal grandmother and considered her to be their mother. The social worker said they were thriving there. The children were nine and 10 years old, appeared to understand what adoption was, and they both wanted to be adopted by the paternal grandmother. They understood that they would continue to have occasional visits with mother. The paternal grandmother wanted to proceed with adoption to give the children more stability and permanence, and she was capable of meeting their physical, developmental, emotional, and educational needs. The paternal grandmother was willing to continue supervised contact between the children and mother, as long as mother acted appropriately during the visits and the visits were in the childrens best interests.

The section 366.26 hearing was held on February 6, 2008, and the childrens trial counsel had stipulated testimony from both children. She said that if Markey were called to testify, she would testify that she did not want to live with mother because the house was dirty. Markey understood what adoption meant, that the paternal grandparents would be like her parents, and that mother would not be able to remove her from their home. Markey said she wanted to be adopted by the paternal grandmother. Although Markey did not want to live with mother, she still wanted to maintain contact with her. Markey indicated there were times when mother would not show up for the visits or would be late. Markey wanted mother to know that she loved her anyway. As to Michael, he would testify that he liked living with the paternal grandparents, that he wanted to stay with them, and that he wanted to be adopted by the paternal grandmother. Michael said he did like mother, but did not want to live with her. He wanted to continue to see her, though. Michael said that it made him sad when mother would be late or not show up for visits, but he still loved her.

Mothers counsel had stipulated testimony from mother. She said that, if called, mother would testify that she had maintained regular visits with the children since they were placed in legal guardianship, and that she had unsupervised visits with them on weekends. She fed them and provided appropriate supervision during the unsupervised visits. Mother would testify that the children knew her as their mother, that she believed she had a good relationship with them, and that they would benefit from continuing contact with her. Mother understood that the children wanted to stay with their grandmother; mother just wanted to be able to continue seeing them and to not be excluded from their lives.

Mothers counsel argued that if the court terminated parental rights, there was no guarantee that contact would continue, since there was no postadoption contract agreement. Mother requested the court to maintain the status quo of legal guardianship. Counsel for the department responded that she had a copy of the postadoption mediation agreement, and it did not say that the caretakers were unwilling to allow visits after the adoption took place. The paternal grandparents just did not want to have an agreement in writing, but rather just an oral agreement. Counsel for the children added that she had talked to the paternal grandmother, who said she did not want a written contract because it would obligate her to bring the children at a certain time every week or every other week. However, the paternal grandmother stated she was not going to try to prevent mother from seeing the children. She just wanted the visitation to be reasonable.

After hearing the evidence, the court found that the children were of sufficient age and education, and had the ability to express their opinions; it noted that they both desired adoption. The court found it likely that the children would be adopted and that adoption was in their best interests. The court then ordered parental rights to be terminated.

ANALYSIS

The Beneficial Parental Relationship Exception Did Not Apply

Mother contends the court erred in not applying the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A). We disagree.

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in former section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in former section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Former  366.26, subd. (c)(1)(A).) The phrase benefit from continuing the relationship refers to a parent/child relationship that promotes 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 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. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parents burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345 (Lorenzo C.).)

In support of her position, mother asserts that the court previously ordered legal guardianship in 2001 because she had maintained regular visitation with the children and they would benefit from continuing their relationship with her. Mother claims that, years later, her visits remained consistent and her relationship with the children remained strong. The only evidence she points to is her stipulated testimony that she maintained regular visitation and had unsupervised visits on the weekends, at which she met all the childrens needs. In addition, the children knew her as their mother. Mother concludes that the significant, positive, emotional attachment originally found by the court remained.

However, the evidence before the court at the section 366.26 hearing on February 6, 2008, was not the same evidence that was before the court at the March 26, 2001, section 366.26 hearing, when it found the beneficial parental relationship exception applied. The record shows that although mother initially did maintain regular visitation, circumstances changed. According to the status review report dated September 25, 2001, mother had visits with the children at McDonalds every other Saturday. However, she missed several visits because she was moving and had scheduling problems. On July 14, 2001, mother did not show up for the visit because she had no transportation. In the status review report dated April 15, 2002, the social worker reported that mother continued to have transportation problems attending visits. The April 4, 2002, addendum report stated that two scheduled visits were cancelled (for unspecified reasons) and that mother also cancelled some visits. Moreover, according to the section 366.26 report, the paternal grandmother reported that mother visited at times, but not often. In addition, at the section 366.26 hearing, there was stipulated testimony from both children that there were times when mother did not appear for visits. Thus, in contrast to mothers self-serving testimony that she maintained regular visitation, the record showed otherwise.

Furthermore, mothers interactions with the children when she did attend the visits do not even begin to demonstrate that her relationship with them promoted their well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The only evidence mother points to is her own testimony that she had unsupervised visits on the weekends, during which she had met all the childrens needs, and the vague assertion that the children knew her as their mother. However, mother has proffered no evidence to support a finding that the children had a substantial, positive emotional attachment [with her] such that [they] would be greatly harmed if the relationship were severed. (Ibid.) To the contrary, the record shows that the children did not want to live with mother but wanted to be adopted by the paternal grandmother. The children were thriving in their prospective adoptive home, where they had lived for almost nine years. They had a strong emotional attachment with the paternal grandmother and considered her to be their mother. The children were very happy in their placement, and they both expressly stated they wanted to stay there.

Ultimately, mother argues that terminating parental rights would leave her without a remedy if visitation did not take place. We note that even if the children are adopted, it is likely they will still be able to visit with mother. According to the preliminary assessment of the prospective adoptive parent, the paternal grandmother was willing to continue supervised contact between mother and the children, as long as mother acted appropriately during the visits and the visits were in the childrens best interests. Mother contends that the paternal grandmothers oral statement that she would allow visitation to continue does not protect the minors relationship with mother if something were to happen to the paternal grandmother. She asserts that the only way the minors relationship with their mother is protected is with a plan of legal guardianship. She adds that she had a strained relationship with the paternal grandmother which caused visitation to be difficult in the past. Mothers contentions are irrelevant to the courts decision at the section 366.26 hearing. By the time of the section 366.26 hearing, family preservation is not an object of the statutory scheme. Family preservation is of critical importance from the time the minor is removed from parental custody ( 202, subd. (a)) through the reunification period. However, when reunification efforts cease, the scale tips away from the parents interest in maintaining family ties and towards the childs interest in permanence and stability. [Citation.] (Lorenzo C., supra, 54 Cal.App.4th at p. 1344.) Thus, the court was not required to choose a permanent plan that would protect mothers relationship with the children, or guarantee that she would have visitation.

We conclude that the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply here.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

GAUT

J.

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^[1] The childs name, Markey, is also spelled Marky throughout the clerks transcript. We will use the Markey spelling in this opinion.

^[2] The beneficial relationship exception to the termination of parental rights has recently been renumbered to section 366.26, subd. (c)(1)(B)(i), effective January 1, 2008. For purposes of clarity, we will refer to it as former section 366.26, subdivision (c)(1)(A).

^[3] Counsel for minors has filed a brief asking us to affirm the juvenile courts orders.

^[4] Father is not a party to this appeal.