In re
Michael A.
Filed 1/8/13 In re Michael A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re MICHAEL A., A Person Coming
Under the Juvenile Court Law.
B241623
LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
L.V.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK79654)
APPEAL from an order of the Superior Court of
County, Sherri Sobel, Juvenile Court Referee.
Merrill Lee Toole, under appointment
by the Court of Appeal, for Defendant and Appellant, L.V.
Office of the County Counsel, John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________
Appellant mother seeks to reverse
the trial court’s order terminating her parental rights with respect to her
son. She contends that the trial court’s
finding that the “beneficial parent-child relationship†exception did not apply
was not supported by the evidence. Thus,
she argues, the order based on such finding was erroneous. We disagree and hold that the mother failed
to produce evidence sufficient to show that the child would benefit from
continuing a relationship with her or that termination of her parental rights
would be detrimental to her son.
L.V. (mother) is the mother of
Michael A. (Michael)
name="_ftnref3" title="">[2]
who was born in October of 2007. During
the pendency of the proceedings involving Michael, mother gave birth to Jayden
S. (Jayden)
title="">[3]
in September of 2010.
The
(DCFS) received a referral in October of 2009 alleging that Michael was being
neglected and that mother was homeless and abusing methamphetamine. The caller informed DCFS that mother had left
Michael with his maternal grandmother for the past nine months (since January
of 2009) with no provision for his care.
Upon investigating, DCFS found maternal grandmother’s home was infested
with cockroaches, overcrowded due to maternal grandmother’s three adult sons
(Eddy, A., and Carlos) living with her, and packed full of objects that made
walking through the place difficult. The
maternal grandmother stated that mother occasionally visited Michael but that
she was essentially homeless and spent her time with gang members and drug
abusers. Maternal grandmother reported
that mother had gotten into a physical altercation with mother’s brother Eddy
that same day. Maternal grandmother also
stated that mother used any money she (mother) received from welfare to support
her (mother’s) methamphetamine addiction.
Maternal grandmother’s sons (mother’s brothers) confirmed this. DCFS observations of Michael included that he
was two years old but not yet potty trained.
DCFS interviewed mother and found
that she had a history of being a domestic violence victim and of marijuana and
methamphetamine abuse. Mother admitted
to socializing with gang members and did not necessarily believe this was
a bad thing. Mother also had a
criminal history including battery, taking a vehicle without the owner’s
consent, and burglary.
The petition was filed on November 4, 2009, when Michael was only two years old. It alleged, as amended, that Michael was at
risk of suffering serious physical harm or illness based on mother’s substance
abuse, her leaving him without a plan for his ongoing care, her violent
altercation with Eddy, and Mario’s failure to provide the necessities of life. The trial court found a prima facie case for
detention was made and ordered Michael detained. It also ordered monitored visits for
mother. On November 17, 2009, Michael’s foster mother reported that mother did not attend her
scheduled monitored visit. Mother
confirmed the visit by phone but then failed to show up or to call and cancel.
On December 4, 2009, the trial court sustained the petition finding that Michael was
subject to the court’s jurisdiction under section 300, subdivision (b). The court again ordered monitored visits for
mother at least twice per week among other things. Michael’s foster mother informed DCFS in
February of 2010 that maternal grandmother was the only family member who
consistently visited Michael and that mother’s visits were sporadic. The foster mother also reported that mother
was angry and jealous towards maternal grandmother when Michael sought
attention from her rather than from mother.
Mother was also sporadic in her attendance at meetings with the DCFS
social worker. Mother was arrested on April 17, 2010, convicted of a felony drug charge and incarcerated. After her release, mother had a monitored
visit with Michael on May 21, 2010. Although she hugged and kissed him, mother
focused on requesting that DCFS return Michael to his former foster
mother. During this visit, mother
informed DCFS that she was pregnant with Jayden.
At the six-month review hearing on June 18, 2010, mother testified that she visited Michael every Friday. DCFS sought a termination of her
reunification services based on her failure to fully comply with the case
plan. The trial court found mother to be
in partial compliance, however, and ordered six additional months of
reunification services. Michael was
placed with his prospective adoptive parents on June 25, 2010. When Jayden was born
a few months later, he was also placed in the same home. Another petition was filed on his
behalf. Jayden is not the subject of
this appeal as mother’s parental rights with respect to him had not yet been
terminated when this appeal was filed.
Leading up to the 12-month review
hearing held on December 1, 2010, DCFS reported
that Michael was bonding with his adoptive family, calling them “mommy†and
“daddy.†The DCFS social worker reported
that mother was appropriate with both children during her visits on November 2
and 4, 2010. The court found that
Michael’s return to mother would still be detrimental at this point but found
that mother had regular and consistent contact with Michael and had made
significant progress. It ordered
additional reunification services for her as a result.
DCFS reported that during the period
that followed, mother continued to visit Michael weekly for five to six
hours. She was employed, sober and
maintained residence at a sober living facility. However, at the section 366.22 hearing
held on June 30,
2011 and continued to July 25, 2011, the trial court determined that, despite mother’s compliance with
her case plan, Michael would not yet be safe in her care full‑time. It then terminated her reunification services
and set a section 366.26 hearing.
Mother filed a section 388 petition
on November
21, 2011 seeking to modify the order
terminating her reunification services.
DCFS reported that Michael was very close with his foster family and that
mother continued her weekly visits with him.
DCFS also reported that mother was doing very well during her visits and
her visits were liberalized from monitored to unmonitored. However, the visits were returned to
monitored when DCFS discovered that mother was allowing contact between Eddy
and Michael despite their history of violent altercations. DCFS also reported that mother had no
childcare plans for Michael in the event she was able to reunify with him. Mother was no longer residing at the sober living
facility and was now living with her brother, Wilfredo, where she slept on his
couch. The court denied mother’s
section 388 petition on January 23, 2012.
Mother has not appealed that order.
The contested section 366.26 hearing
was held on May 14, 2012. Mother
testified that Michael was very affectionate with her and was happy to see her
when she visited. The social worker
testified that mother failed to visit Michael during the first six months of
the case then was arrested in April of 2010.
She also testified that Michael referred to mother as “visiting
mom.†The social worker also testified
that mother failed to understand the reasons Michael came under the
jurisdiction of the court, struggled with accepting responsibility for her
actions, and did not respond appropriately regarding the risk to Michael
resulting from her conduct. She also
stated that mother did not have a childcare plan in place. The social worker also testified that mother
parented Michael, who was nearly five years old, for only his first year of
life. The trial court found Michael to
be adoptable and terminated mother’s parental rights with respect to him. Mother filed a notice of appeal on May 22,
2012.
Mother contends that the trial court
erred by (1) refusing to find that the “beneficial parent-child relationship
exception,†found in section 366.26, subdivision (c)(1)(B)(i),
applies because she maintained regular visitation and contact with Michael and
he would benefit from continuing the relationship; and (2) terminating her
parental rights as a result of its failure to apply such exception.
1.
We review a trial court’s findings
that no exceptional circumstances exist for sufficiency of the evidence. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“When considering a claim of insufficient
evidence on appeal, we do not reweigh the evidence, but rather determine
whether, after resolving all conflicts favorably to the prevailing party, and
according the prevailing party the benefit of all reasonable inferences, there
is substantial evidence to support the judgment.†(Scott
v. Pacific Gas & Electric Co. (1995) 11
Cal.4th 454, 465.) In
reviewing the evidence on appeal, all conflicts must be resolved in favor of
the judgment, and all legitimate and reasonable inferences indulged in to
uphold the judgment, if possible. When
a judgment is attacked as being unsupported, our power begins and ends
with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the judgment. And when two or more inferences can be
reasonably deduced from the facts, we are without power to substitute our deductions
for those of the trial court. (
Court (1995) 9 Cal.4th 559, 571; Crawford
v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)
2. The
Trial Court Did Not Err by Concluding That the Exception in
Section 366.26,
Subdivision (c)(1)(B)(i) Did Not Apply
Mother contends that the trial court
erred by refusing to find that the beneficial parent-child relationship
exception found in section 366.26, subdivision (c)(1)(B)(i) applied. We disagree.
Section 366.26 provides that if a
trial court finds, “by a clear and convincing standard, that it is likely [a
child subject to dependency jurisdiction] will be adopted, the court
order the child placed for adoption.â€
(§ 366.26, subd. (c)(1); italics added.) However, parental rights need not be
terminated if “[t]he court finds a compelling reason for determining that
termination would be detrimental to the child due
to . . . [¶] . . . [the parent’s
having] maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i)) “After [a] parent has failed to reunify [with
his or her child] and the court has found the child likely to be adopted, it is
the parent’s burden to show exceptional circumstances exist. [Citation.]â€
(In re Autumn H.,
The beneficial parent-child
relationship exception requires two things to be shown. As a threshold matter, the parent must show
that he or she maintained regular visitation and contact with the child. At the 12-month review hearing held on
December 1, 2010, the trial court found that mother
had consistently and regularly contacted and visited with Michael. However, the trial court’s
finding that the exception did not apply was not in error as mother failed to
show that she satisfied the second requirement.
To satisfy the second requirement,
“the parent has the burden of showing either that (1) continuation of the
parent-child relationship will 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 [citation] or (2) termination of the parental
relationship would be detrimental to the
child. . . . [Citation.] [¶] To
overcome the preference for adoption and avoid termination of the natural
parent’s rights, the parent must show that severing the natural parent-child
relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed. [Citations.]
A biological parent who has failed to reunify with an adoptable child
may not derail an adoption merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent. [Citation.] A child who has been adjudged a dependent of
the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some degree,
but that does not meet the child’s need for a parent. [Citation.]â€
(In re Angel B. (2002) 97
Cal.App.4th 454, 466.)
“The factors to be considered when
looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of
the child’s life spent in the parent’s custody, (3) the positive or negative
effect of interaction between the parent and the child, and (4) the child’s
particular needs. [Citation.]†(In re
Angel B., supra, 97
Cal.App.4th at p. 467.)
The circumstances in this appeal are
similar to those in In re Angel B.,
which also involved a mother seeking to reverse the termination of her parental
rights under the beneficial parent-child relationship exception.
understands the concept of biological parentage and he referred to mother only
as “visiting mommy.†Mother left Michael
with maternal grandmother after caring for him for only one year and he was
detained by DCFS when he was two. From
that time until now, Michael spent nearly a year in foster care until he was
placed with the family who now wishes to adopt him and who have cared for him
over the last two years. Michael has
spent the longest period of his short life with his adoptive family versus relatively
little time with mother through mostly monitored visitation, which began in May
of 2010 after her release from prison.
Although the record indicates that mother’s visits with Michael were
pleasant and mother fed, hugged and kissed him, there is no indication that
mother was prepared to meet his needs as a parent. The record indicates that she struggled in
understanding the reasons behind the court’s jurisdiction, she had no childcare
plan in place and had yet to obtain stable housing. Although mother may have shown that Michael
derives some benefit from their relationship, she has not shown, that continuation
of this parent-child relationship would promote Michael’s well-being to such a
degree as to outweigh the well-being and stability he needs and would gain in a
permanent home with his adoptive parents.
Additionally, there is no evidence
in the record showing that termination of mother’s parental relationship with
Michael would be detrimental to the child.
Mother argued in her brief that Michael would be harmed if he was
deprived of his “substantial emotional attachment†to mother. However, she provided no evidence supporting
this statement. Based on the foregoing,
the record supports the trial court’s finding that the exception to the termination
of parental rights found in section 366.26, subdivision (c)(1)(B)(i),
did not apply under these circumstances.
3.
Mother’s Parental Rights
As explained above, under section
366.26, a court is required to terminate parental rights if it finds, by
child is likely to be adopted unless an exception applies. Here, such finding was made and the
beneficial parent-child relationship exception did not apply. Therefore, the trial court did not err in
terminating mother’s parental rights with respect to Michael.
order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
We Concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">*
Pursuant to Cal. Const., art. VI,
§ 21
name="_ftn2" title="">
taken from the record which consists of a three-volume Clerk’s Transcript and a
three-volume Reporter’s Transcript.
