In re Monique H.

Filed 6/4/08 In re Monique H. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Caryl Lee, Judge. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

Michael H. challenges the juvenile courts decision to terminate his parental rights over his eight-year-old daughter Monique. He contends the court should have invoked the so-called benefit exception to termination, and there is insufficient evidence Monique is adoptable. We reject these contentions and affirm the judgment.

FACTS

Moniques mother is Sarah H., who, like Michael, has a history of drug abuse and criminal activity.[1] Sarah and Michael split up in 2003, when Monique was four years old. Sarah then married another drug user and obtained full custody of Monique. Michael visited Monique from time to time, but his frequent incarcerations hampered his ability to spend time with his daughter. Throughout this early period of Moniques life, she lived with her maternal grandmother, Serena. Serena ably tended to Moniques daily needs, and Monique was very comfortable in her care.

In December 2005, Moniques half brother David was born with a positive drug screen, and Sarah admitted she was using heroin. David was detained and placed at Serenas house, and Sarah was ordered into drug rehabilitation. Michael was on parole and subject to drug testing. The juvenile court granted him monitored visitation with Monique, who was then six years old.

Michael told the social worker he had helped care for Monique until he and Sarah parted ways in 2003. And after that, Monique would sometimes spend the night or weekend with him. Michael also said that he once took Monique to Stockton for a family reunion and that during the summer of 2005, he sometimes took her to the pool and the petting zoo. Although Michael tried to portray himself as a caring parent, Serena reported that he once abducted Monique for two weeks when she was three years old. Serena said that during this time, Michael locked Monique in her room at night and then went out and partied.

Michael had six monitored visits with Monique during the course of this case. During the first visit, on March 2, 2006, he interacted with Monique in a positive, affectionate way, and she was glad to see him. They hugged and talked, and he gave her gifts and money, which made her happy.

Two weeks later, they met at a pizza restaurant. Although Michael was 30 minutes late for the visit, he interacted appropriately with Monique and there were no incidents. Again, he gave her money and gifts, and she enjoyed the attention.

On March 24, 2006, Michael tested positive for methamphetamine. He told the social worker he was tired of the court system and wanted Serena and Sarah to have custody of Monique, with him just visiting. Michael had been staying with his sister, but they were not getting along. In fact, she wanted to evict him because he was selling prescription drugs on the street. She also reported he has a history of mental health problems and a terrible temper. Michaels parole officer reported Michael was taking medication for schizophrenia.

On March 30 and April 13, 2006, Michael visited Monique in a park. Although he showed up late on both occasions, they interacted well together on the playground and things were fine. Michael was supposed to bring snacks to the visit, but he bought Monique candy and gave her money instead.

The next visit was on April 27, 2006. Michael and Monique were excited to see each other, and they interacted well for the most part. However, toward the end of the visit, they began playing a game of chase, and Monique wanted to put her hand in Michaels pocket. When he wouldnt let her, she withdrew and shut down, and the visit ended on a sad note. Monique refused to attend the next scheduled visit. She said she did not want to see Michael, but she did not say why.

The final visit, on May 11, 2006, was a bit awkward because Michael showed up with Sarah. After being reminded that this was inappropriate, he and Monique played and lunched together while Sarah watched from a bench.

Nine days later, on May 20, 2006, Michael was jailed in Los Angeles on a parole violation, and a short time later, Sarah was jailed in Orange County. At the 12-month review hearing on February 5, 2007, the court terminated their reunification services and set a hearing to decide on a permanent placement plan for Monique.

At that time, Monique was seven years old. She is described in the record as happy, healthy, well liked and generally well behaved. She had a few episodes of acting out and crying that coincided with the start of Michaels visitation, but those episodes decreased with time, and a permanent planning assessment found it likely she will be adopted. She is a good big sister to David, and they are both bonded to Serena, who has remained dedicated to their care and is interested in adopting them.

Although Serena has been a pillar of strength and support for the children, her husband John has some serious health problems and is unable to help with housework or childcare. However, the social worker reported Serena appears to be capable of meeting the childs needs. Monique is an easy child to care for and in conversation she seems of at least average intelligence. She was struggling in school, though, and it was believed she would need some assistance to succeed academically.

While in jail, Michael called Monique once a week. Monique told the social worker she enjoyed the calls, but Serena reported Monique did not want to talk to Michael and had no desire to see him. On two occasions, Serena did try to take Monique to visit Michael. However, each time Monique complained of illness and backed out. She said she was comfortable being with Serena and John and very amenable to them adopting her. Asked about this prospect, Monique said, Nothing will change. My mom will still be my mom and my grandma [Serena] will still be my grandma. I will just live with my grandma forever.

Late in the case, Monique was referred to a therapist who described her as anxious, irritable and distressed. The therapist reported that Monique often displays difficulty sleeping, frequent crying and often makes psychosomatic complaints to get out of school. The therapist also reported that Monique does not have many memories of Michael and is confused as to what role he is to play in her life. She considers Serenas home to be her home, and she does not want to live with Michael. The therapist said Monique has a very strong attachment to Serena, and it would be detrimental to remove her from Serenas care.

At the permanency hearing on October 29, 2007, the court found it likely Monique would be adopted and terminated Sarahs and Michaels parental rights.

I

Michael contends the court should have preserved his parental rights by invoking the so-called benefit exception to termination. We cannot agree.[2]

The benefit exception applies if the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Welf. & Inst. Code,  366.26, former subd. (c)(1)(A).) The relationship must promote the childs well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) In this regard, it is important to remember, Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Ibid.) The attachment must be so strong that the child would be greatly harmed if it were severed. (Ibid.)

Michael has been in and out of jail ever since Monique was born. He claimed that he helped care for Monique when he and Sarah were together, but both he and Sarah were involved in drugs and crime during this time. Even at this early stage of Moniques life, Serena was Moniques primary caregiver. According to Michael, he did continue to see Monique after he and Sarah separated. But there is no evidence regarding the quality of these visits. Serena did report one disturbing incident, however. She said Michael once abducted Monique for two weeks without telling anyone where she was. During this time he allegedly locked Monique in her room at night so he could go out and party.

Little wonder the child suffers from anxiety. The evidence was mixed as to whether she enjoyed talking to Michael on the phone while he was in jail, but she made it clear she does not want to live with him. She couldnt even bring herself to visit him in jail. The out-of-custody visits went well for the most part. There was hugging, affection and gift giving, but no evidence that Monique missed Michael when she was away from him. In fact, following one visit, she said she did not want to see him. Quite clearly the visits did not have the intended effect of bringing Michael and Monique closer together because her therapist said the child had few memories of Michael and was confused about his role in her life.

In comparison, Monique has a very strong and deeply rooted attachment to Serena. Monique may not fully understand all of the consequences of adoption as evidenced by her statement that nothing would change if Serena adopted her but she is comfortable being in Serenas care. And it is quite evident from the record that she has benefited greatly from the love and support that Serena has given her. Their deep bond has been forged from the kind of day-to-day interaction and companionship that Michael has not been able to experience with Monique.

For all these reasons, we concur with the trial courts implied determination that Michaels attachment to Monique is not so strong as to outweigh the benefit she would receive from being adopted by Serena or some other family. Therefore, the court did not err in failing to invoke the benefit exception.

II

Michael also argues there is insufficient evidence to support the courts finding Monique is adoptable. Again, we disagree.

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.] [Citations.] We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.] (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

Although Monique has struggled in school and developed some anxiety problems, she has been amenable to therapy, and there are no indications her problems are intractable. She is described in the record, for the most part, as a happy and healthy child. In addition, her general adoption prospects were found to be good, and Serena has made it clear that she wants to adopt her. Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.)

Like many other children of neglectful parents, Monique has challenges ahead of her. However, she appears to be fully capable of meeting those challenges, and she has a good support system in Serena to help her do it. Viewing the evidence most favorably in support of the trial courts ruling, we find there is substantial evidence Monique is likely to be adopted within a reasonable time. Therefore, we have no occasion to disturb the courts ruling.

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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[1] Sarah is not a party to this appeal.

[2] Arguably, Michael waived this claim by failing to make it in the trial court. (See In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) However, we need not hang our hat on the waiver doctrine because Michaels claim fails on the merits.