In re S.B.

Filed 1/13/10 In re S.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant S.G, mother of minor S.B., appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code,  366.26, 395; further undesignated references are to this code.) It appears, from the two-page opening brief on appeal, that appellant makes the following contentions: (1) the dispositional order was not supported by the evidence; (2) the juvenile court erred in finding there was insufficient evidence of a compelling reason for determining termination of parental rights would be detrimental to the minor due to the beneficial parental relationship between appellant and the minor pursuant to section 366.26, subdivision (c)(1)(B)(i); and (3) the termination of appellants parental rights was the result of ineffective counsel. We affirm the juvenile courts orders.

FACTUAL AND PROCEDURAL BACKGROUND

On July 5, 2007, sheriffs deputies went to the home of appellant and So.B., the minors father, and executed a felony search warrant for fathers noncompliance with conditions of his probation. As a result, both parents were arrested for various felonies and transported to county jail, and the 11-month-old minor was placed into protective custody.

A prior dependency proceeding regarding the minors half sibling resulted in termination of appellants parental rights as to that child, who was placed with the maternal grandmother under a permanent plan of adoption.

The Sacramento County Department of Health and Human Services (the Department) filed a petition alleging neglect, abuse of the minors half sibling and termination of parental rights as to the half sibling.

At the initial hearing on July 10, 2007, the court ordered twice-weekly supervised visitation upon the incarcerated parents release, to be arranged by the social worker. The court ordered further that reunification services be provided to both parents.

On November 23, 2007, the minor was temporarily placed with his paternal aunt.

On December 17, 2007, the juvenile court sustained the petition, adjudged the minor a dependent child of the court, denied services to appellant ( 361.5, subds. (b)(10) and (11)), and continued out-of-home placement. The court ordered regular visitation.

The permanency report dated March 7, 2008, stated the minor was adjusting well to his placement. According to the paternal aunt, appellant had supervised visits with the minor several times a week during the month of December 2007, and at least once per week in January 2008.

The permanency review report in August 2008, stated the minor was well adjusted to the home of his paternal aunt and appeared to be very happy and playful. Appellant was authorized for twice-weekly visits; however, the paternal aunt reported concerns that appellant was verbally aggressive towards her. In April 2008, the paternal aunt requested that future visits occur at a neutral location and be supervised by a neutral party. Since that time, appellants visits, although appropriate, became inconsistent. She frequently no-shows and the family service worker reports difficulty in getting in touch with [her].

At the permanency review hearing on August 22, 2008, the court terminated fathers reunification services and set the matter for a contested selection and implementation hearing.

The selection and implementation report dated December 19, 2008, stated the then two-year-old minor was in good health and developmentally on target. Appellant had not contacted the social worker to request visitation since September 12, 2008. However, according to the paternal aunt, appellant and the father visited the minor at least once a month at the aunts home. Both parents interacted and played with the minor, who referred to them as Daddy and Mama.

The first addendum to the selection and implementation report noted that appellant approached the social worker on December 19, 2008, and requested the social workers telephone number but never contacted the social worker. Attempts to reach appellant at the telephone number she provided to the Department were unsuccessful. According to the paternal aunt, the parents had only visited the minor about three times since September 12, 2008. During the visits, which lasted approximately two hours, appellant and the father watched cartoons with the minor, played, hugged, kissed and cuddled with him, and changed his diapers at one time or another. Neither parent fed the minor, as he is old enough to feed himself, nor did they bathe him or prepare his meals. The minor recognized both of his parents and referred to them as Daddy and Mama. During the last visit in November 2008, the parents brought their laundry to be done during the visit. When the paternal aunt asked if they were done doing laundry, appellant become defensive and disrespectful towards her. The paternal aunt asked appellant and the father to leave and said she no longer wanted appellant to visit with the minor in her home. She reported to the Department that she no longer wished to supervise visits between appellant and the minor.

Appellant and the maternal grandmother both testified at the contested section 366.26 hearing on January 20, 2009. The maternal grandmother testified that, over the course of a four-month period prior to the hearing, appellant visited the minor at the grandmothers home every other weekend when the grandmother had the minor. None of those visits were approved by the Department. According to the grandmother, appellant played with and read to the minor during the visits, and fed and bathed him, and changed his diapers. The grandmother stated the minor was happy to see appellant when she arrived, and cried when she left.

Appellant testified that she visited the minor at the paternal aunts home at least once a week for approximately one hour. During those visits, she fed and played with the minor and watched television with him. She changed his diapers and bathed him. She stopped visiting the minor at the paternal aunts house because the aunt physically attacked her.

The social worker, testifying as a rebuttal witness, stated she never approved appellants visits with the minor at the home of the maternal grandmother, and that appellant never contacted her, other than to request her telephone number on December 19, 2008.

At the conclusion of the hearing, the juvenile court found [t]here is simply no evidence from [appellant] that the relationship between the [minor] and either [appellant] or the father is substantial and such a positive, emotional attachment that the [minor] would be greatly harmed if it is severed. Theres simply no proof that the [minor] would be greatly harmed. The court found appellant did not meet her burden to establish that the exception applies and concluded that [t]he benefit that this [minor] may have in maintaining a relationship with the parents is strongly, in this case, outweighed by the well-being the [minor] would gain in a permanent home with new adoptive parents. Finding the parental relationship exception did not apply, the court terminated the parental rights of appellant and the father.

Appellant filed a timely notice of appeal.

DISCUSSION

I

Without any authority or citation to the record, appellant contends the allegation that she left the minor with no provisions for care is untrue. She claims she was not permitted to call anyone to care for the minor when she and the father were taken into custody, and that she offered to do services to ensure the minor would be returned to her. Appellant also claims she participated in parenting, anger management, and domestic violence classes on her own. To the extent these are claims, they have been forfeited by appellants failure to seek review of the courts dispositional order in a timely fashion. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Daniel K. (1998) 61 Cal.App.4th 661, 667.)

II

Appellant claims she and the minor are extremely bonded and the minor is suffering emotional detriment due to our separation. To the extent appellant is arguing the court should have found an exception to the preference for a permanent plan of adoption, her argument fails.

At a hearing under section 366.26, if the court finds by clear and convincing evidence that a child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption unless [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one of the statutorily enumerated exceptions. ( 366.26, subd. (c)(1)(B).) A parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(d)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

Section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)), provides an exception to adoption when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. But a parent may not claim entitlement to the exception provided by [this subdivision] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child must 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. 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.)

Appellant has failed to meet her burden. The evidence demonstrates the minor, two and a half years old at the time of the hearing, had spent the majority of his life apart from appellant and in the care of the paternal aunt where he was thriving. The aunt reported that appellant visited the minor about three times since September 12, 2008,^[1]and did not feed him, bathe him, or prepare his meals. Appellant did play with the minor, watch television with him and provide some caretaking such that visits were positive experiences for the minor, who referred to appellant as Mama. However, the evidence does not show appellants relationship is anything more than that of a friendly visitor. To overcome the strong policy in favor of terminating parental rights under section 366.26, subdivision (c)(1)(B)(i), the parent must show more than frequent and loving contact [citation], and be more to the child than a mere friendly visitor or friendly nonparent relative. [Citation.] The parent must show the parent-child bond is a substantial, positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. [Citation.] (In re Helen W. (2007) 150 Cal.App.4th 71, 81.) Appellant did not make the required showing.

III

Lastly, without providing authority or record citations, appellant contends her parental rights were terminated because she was not represented correctly. She also claims she communicated concerns to her attorney that were not conveyed to the court. To the extent appellant is asserting a claim of ineffective assistance of counsel, her claim fails because it is based on facts outside the record. (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) Matters affecting the adequacy of counsels representation which are outside the record cannot be reviewed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.)

In any event, as to the adequacy of appellants counsel in the section 366.26 hearing, we observe that [r]eviewing courts will reverse . . . on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) When the record is silent on the reasons that counsel acted as he or she did, the case must be affirmed unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . (People v. Pope, supra, 23 Cal.3d at p. 426.)

Here, the record is silent as to counsels choices. However, our review of the record discloses that counsel objected to portions of reports on behalf of appellant. Counsel elicited testimony from appellant and the minors maternal grandmother at the permanency hearing regarding visitation and the relationship between appellant and the minor. He cross-examined the social worker. Finally, he argued the existence of a bond between appellant and the minor. There is nothing in the record to demonstrate that counsel failed to adequately represent appellant.

DISPOSITION

The orders of the juvenile court are affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

SIMS , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] As noted, there was testimony by the maternal grandmother that appellant visited the minor at the home of the maternal grandmother; however, there was no official confirmation of this testimony, and the Department never approved visitation at the grandmothers house.