In re Matthew C.

Filed 2/21/08 In re Matthew C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County,

J. Stephen Czuleger, Judge. Affirmed.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.

_________________________

R.C. (mother) appeals an order of the juvenile court terminating her parental rights with respect to Matthew R. Mother claims the juvenile court should have applied the beneficial relationship exception to termination of parental rights. (Welf. & Inst. Code 366.26, subd. (c)(1)(A).)^[1] We affirm the order.

FACTS AND PROCEDURAL BACKGROUND

This family came to the attention of DCFS in July of 2005 when mother and Matthew R. tested positive for marijuana at the time of Matthews birth. After mother was informed of the lab test results, she left the hospital without authorization. The hospital indicated Matthew had a spinal column infection which would require a two-week hospital stay involving IVs, a respirator and antibiotics. The 16-year-old mother denied smoking marijuana and claimed she was exposed to the drug from being around peers who smoked it. Mother told the CSW she was a foster child who recently had been returned to the custody of Matthews maternal grandfather pursuant to a home of parent order. However, after issuance of the order, mother became homeless when maternal grandfather was incarcerated. Mother met Matthews 24-year-old father on the streets. Fathers family has helped mother. Paternal grandmother agreed to let mother and father stay at her home. Paternal grandmother requested custody of Matthew and stated, I would like to take him in. I will do whatever it takes to get him.

On July 26, 2005, DCFS filed a dependency petition with respect to Matthew. The juvenile court ordered Matthew placed with paternal grandmother upon his release from the hospital. The juvenile court granted mother permission to reside in paternal grandmothers home but ordered her to drug test. Mothers visits outside the home were to be monitored.

The jurisdiction report prepared for August 17, 2005, included mothers statement to the CSW that she smoked a blunt about once a month . . . . The last time I smoked marijuana was when Matthew was born. The report indicated mother was a dependent of the delinquency court and her case appears to have been terminated. Mother was residing in paternal grandmothers home and paternal grandmother reported mother assisted in Mathews care.

On August 17, 2005, mother submitted to the jurisdiction of the juvenile court. The juvenile court ordered mother to attend drug rehabilitation, parent education, individual counseling to address adult and parental responsibility and to comply with the terms of her delinquency probation.

A status review report filed on February 15, 2006, indicated mother lived with paternal grandmother until October of 2005, when mother moved to maternal great-grandfathers home. On November 1, 2005, mother and paternal grandmother appeared at the DCFS office. Mother stated she moved from paternal grandmothers home because she and father fought frequently. Paternal grandmother stated she was concerned about mothers bonding with Matthew because mother visited only about twice a month. During a visit in the holiday season, mother and father became engaged in a physical altercation in which mother scratched fathers face several times. When the CSW learned of this altercation, she informed paternal grandmother, mother and father on January 11, 2006, that further visitation between mother and Matthew would be monitored by the CSW at the DCFS office.

Mother continued to drug test with negative results but missed three tests after September of 2005. Mother received referrals from the CSW but did not enroll in any programs until January 18, 2006, when mother enrolled in the New Hope Health Services outpatient substance abuse and parenting program. The program reported mother had attended four group sessions for parenting class and three for substance abuse. The CSW had observed both parents interact with Matthew and had not yet seen mother hold the child.

On February 15, 2006, the juvenile court ordered DCFS to ensure that mother has frequent visits and to investigate other monitors for mothers visits. The juvenile court also ordered mother to address domestic violence in her individual counseling sessions.

A status review report prepared for August 16, 2006, indicated mother continued to attend outpatient substance abuse treatment, anger management and parent education as well as drug testing. Mothers counselor reported mother appeared to be making progress. Paternal grandmother indicated mother visited only once or twice per month. Further, during the visits mother did not interact with Matthew or nurture the child. Mother indicated it was difficult for her to travel from Los Angeles to Pomona for visits. On May 11, 2006, the CSW indicated DCFS would provide mother transportation funds for visitation that would allow maternal great-grandfather to drive mother to weekly visits. However, mother failed to appear at the DCFS office to pick up the transportation funds. The CSW attempted to assess maternal great-grandfather to monitor mothers visits with Matthew. Maternal great-grandfather live scanned but no result could be obtained and he refused to redo the scan, indicating he has performed manual labor all his life and his hands are worn to such an extent that live scanning again would produce the same results.

On August 16, 2007, the juvenile court ordered the CSW to provide mother with transportation funds and to meet with mother once per month. The juvenile court also granted DCFS discretion to start overnight visits for mother.

A status review report prepared for January 23, 2007, indicated mother has been more consistent with visitation and has had overnight visits on the weekends in Los Angeles where she lives with maternal great-grandfather. Mothers counselor reported on January 17, 2007, that mother completed the parent education and anger management programs but has continued both programs at the counselors recommendation. Mother randomly drug tested for a year with negative results but tested positive for marijuana on January 9 and 17, 2007. Although DCFS agreed mother had made progress, her recent positive drug tests caused DCFS to recommend that Matthew continued to reside with paternal grandmother. Mother denied smoking marijuana and stated she does not know why the tests were positive.

On February 14, 2007, after a contested hearing, the juvenile court terminated family reunification services and set a hearing under section 366.26 on June 13, 2007. Mother did not seek writ review of this order.

In a social report filed on June 13, 2007, paternal grandmother indicated mother visited Matthew on June 5, 2007, after not visiting the child since January 1, 2007. During this time, mother did not inquire about Matthews progress. Paternal grandmother indicated Matthew has several paternal relatives who maintain frequent contact with the child but no maternal relatives are in contact with the child. The CSW indicated there was a very high likelihood Matthew would be adopted by paternal grandmother and her adult daughter, Stephanie, who are committed to meeting his needs and raising him in a safe, loving environment. Paternal grandmothers home study was approved on June 11, 2007.

On June 13, 2007, the juvenile court directed DCFS to ensure that mother has regular visits and to approve the maternal great-grandfather as a monitor for mothers visits.

A status review report prepared for August 15, 2007, indicated Matthew continued to receive excellent care in the home of paternal grandmother. Mother again tested positive for marijuana in August. Mother admitted she smoked marijuana about three weeks earlier and stated that she intended to reenroll in a drug program. Mother stated, I know I made a mistake because I was upset with the court in June. I know that I want my baby back and I will get back in the program to help me. Paternal grandmother moved in June of 2007 and failed to inform mother of her new address. On June 5, 2007, mother went to visit Matthew and found an empty home. Mother visited Matthew on his birthday in July and telephoned Matthew 10 days later. Mother had monitored visits at paternal grandmothers home in July of 2007, but complained that paternal grandmother monopolized Matthew during the visits.

On August 15, 2007, the juvenile court conducted a hearing under section 366.26 as to mother, reserving the issue as to father to another date. At the hearing, mother testified she moved to paternal grandmothers home when she was five months pregnant and stayed until Matthew was eight months of age. During this time, mother cared for Matthews daily needs. After mother moved from paternal grandmothers residence, mother visited Matthew twice a month because her relationship with Matthews father was strained. At most of these visits, mother would spend the night and care for Matthew. In December of 2006, mother had three overnight visits with Matthew at maternal great-grandfathers home. Mother claimed she visited Matthew approximately 20 times in 2007 and she last saw Matthew on his birthday in July. Mother indicated she had not been able to attend any of Matthewss medical appointments because paternal grandmother never really had a phone that stayed on over 6 months. Also, paternal grandmother began moving her residence and going on vacation without informing mother. Mother admitted she tested positive for marijuana in February and August of 2007 but claimed she smoked marijuana only twice.

Paternal grandmother testified mother visited Matthew three times during 2007. At the first visit, which occurred in June, mother spent the night and left the next evening. The second visit occurred on July 2, 2007. Mother arrived with two young ladies and a young male. When mother and her friends entered the home, there was such a strong smell of marijuana that paternal grandmother stated whoever was responsible for the odor would have to leave because the social worker was going to visit the home that day. The young man left the home and the two young ladies asked paternal grandmother for cologne to cover the odor. When paternal grandmother went into the bedroom to change Matthews diaper, mother followed and said goodbye to Matthew. Mother indicated maternal great-grandfather was going to rent a car so she could go out for her birthday. The visit lasted approximately 20 minutes. The third visit occurred on Matthewss birthday.

With respect to mothers overnight visits, paternal grandmother told mother in December of 2006, that Matthew might be returned to mother at the February 2007 court date. Paternal grandmother suggested mother keep the child for extended visits because Matthew needs to know you better. After the last overnight visit, paternal grandmother did not see mother for six months. Matthew does not recognize mother when she arrives for visits. Paternal grandmother tells Matthew, Go give mommy a kiss and he would say no. But then with some coaching he would go hug her and kiss her.

The juvenile court stated it believed paternal grandmothers testimony with respect to the frequency and the quality of mothers visits. The juvenile court found mother exaggerated the frequency of her visits and her involvement with the child during the past year. The juvenile court indicated it was unable to find there had been regular visitation because mother essentially stopped visiting and has visited a total of three times in 2007. The juvenile court further found mother does not have a parental relationship with Matthew. Additionally, on one of the three visits in 2007, mother arrived with friends, one of whom reeked of marijuana and had to be asked to leave. Although mother claimed she has smoked marijuana only twice, she has not been in a program which would have demonstrated her resolve to avoid further relapse. The juvenile court found the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply and adjourned the matter for further proceedings as to father.

On October 1, 2007, the juvenile court terminated parental rights.

DISCUSSION

Mother claims the juvenile court should have applied the beneficial relationship exception to termination of parental rights. ( 366.26, subd. (c)(1)(A).) Mother argues she showed a genuine interest in caring for Matthew and bonding with him after his birth. After mother left paternal grandmothers home due to problems with father, DCFS commenced monitored visitation at the DCFS office. At the six-month review hearing, the juvenile court directed DCFS to arrange more frequent visitation for mother and to find a monitor for her visits. During this time, mother was complying with the case plan but was able to visit only one or two times per month because she had trouble traveling from Los Angeles to Pomona. Mother notes the juvenile court observed at the hearing in August of 2006, that Matthew was sitting comfortably on mothers lap. At that hearing, the juvenile court expressed concern that DCFS was not being sufficiently diligent in assisting mother with visitation and ordered the CSW to meet mother once per month and to provide transportation funds. At another hearing, the juvenile court was upset with DCFSs inability to get maternal great-grandfather approved as a monitor. The juvenile court also directed DCFS to arrange visitation at a location other than paternal grandmothers home. Mother asserts these comments reflect that DCFS neglected mother during a critical period of her case.

Mother contends that, to the extent mother did not visit consistently during 2007, some of the blame must be laid at DCFSs feet. Mother claims DCFS knew mother herself had been a dependent child and should have known she would need additional assistance. Mother asserts there was no excuse for DCFSs failure to approve maternal great-grandfather as a monitor for mothers visits. Had maternal great-grandfather been approved, mother would have been able to visit more frequently during the critical time period before termination of parental rights.

Mother concludes this court should take the above factors into account and reverse the order terminating parental rights. Mother notes the law does not require daily interaction in order for mother to fall within the beneficial relationship exception. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Mother concludes the proper disposition in this case would have been for Matthew to remain in paternal grandmothers care under a guardianship order. Then, as mother matures and becomes free of marijuana, she will be able to regain custody of Matthew.

Initially, we observe that mothers attack on the sufficiency of the family reunification services provided by DCFS is untimely. The juvenile court terminated family reunification services in February of 2007. Mother did not seek writ review of that order. In any event, had mother not forfeited these arguments by failing to raise them upon termination of family reunification services, they properly would be rejected. The evidence showed that paternal grandmother allowed mother to live in her home with Matthew for as long as mother wished. Even after mother moved out, paternal grandmother allowed mother to visit and spend the night in her home. DCFS provided transportation funds but mothers visitation did not increase. Nonetheless, after the 12-month review hearing, the juvenile court permitted mother unmonitored visits. However, in January of 2007, mother tested positive for marijuana and stopped visiting for six months. Approval of maternal great-grandfather as a monitor would not have altered mothers conduct. Thus, mother fails to demonstrate any inadequacy in the family reunification services offered her by DCFS.

With respect to mothers beneficial relationship argument, at a hearing under section 366.26 the juvenile court must order adoption and termination of parental rights unless one of the exceptions enumerated in the statute ( 366.26, subd. (c)(1)) provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Fernando M. (2006) 138 Cal.App.4th 529, 534-535.) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; 366.26, subd. (c)(1).) In reviewing a juvenile courts finding the exceptions in section 366.26, subdivision (c) do not apply, we apply an abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

The beneficial relationship exception of section 366.26, subdivision (c)(1)(A) arises when [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)(A).) The cases addressing the beneficial relationship exception recognize that interaction between parent and child will usually confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) However, to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the childs life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

The juvenile court must balance the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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; In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

Here, substantial evidence supports the juvenile courts findings that mother did not have a parental relationship with Matthew. Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Mother has not acted in a parental role since Matthew was eight months of age. Matthew did not recognize mother when she arrived for visits, mother never attended Matthews medical appointments and mother continued to engage in the activities that resulted in Matthew becoming a dependent in the first place. Thus, the record supports the juvenile courts finding that mothers relationship with Matthew did not outweigh the benefits of adoption.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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