In re Aliyah C.

Filed 2/22/08 In re Aliyah C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Zeke Zeidler, Judge. Affirmed.

Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James A. Owens, Assistant County Counsel, and Tracey M. Blount, Deputy County Counsel, for Plaintiff and Respondent.

Joanna C. (mother) appeals from a judgment of the juvenile court terminating her parental rights over seven-year-old Aliyah C. and five-year-old C. A. pursuant to Welfare & Institutions Code section 366.26.^[1] Mothers sole contention on appeal is that the evidence did not support the juvenile courts finding that the exception to termination of parental rights found in former section 366.26, subdivision (c)(1)(A)^[2]did not apply. We affirm the judgment of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

1. Initial Detention

On November 19, 2004, the Los Angeles Department of Children and Family Services (DCFS) filed a petition regarding then four-year-old Aliyah C. and then two and a half year old C. A., the daughters of Joanna C. and Jorge A., Jr. (father). The petition, filed under subdivisions (a) and (b) of section 300, alleged that the parents had violent altercations in the childrens presence. In September 2004 father threatened to kill mother. Mother suffered from depression, paranoid ideation, and auditory hallucinations and had been hospitalized on prior occasions for her condition. In August 2004, the police searched the home and found big bags of marijuana, methamphetamine, Vicodin, and Xanax in the home and the bags were within access of the children. The Narcotics Division of the Sheriffs Department arrested paternal grandfather and paternal uncle for possession, sales, and distribution of narcotics. Also, there were boxes of ammunition and live bullets within their access. The children were exposed to drug sales and unrelated adults who used drugs.

The court held a detention hearing on November 19, 2004. A report filed on that date indicated that DCFS had tried to work with mother to find a safe place for her and the children, but that for a variety of reasons the effort had been unsuccessful. The juvenile court detained the children.

On November 24, 2004, the court received a report from DCFS recommending that the children be placed with their paternal grandmother, Rose (grandmother). The court placed the children in the care of grandmother, where they have remained since. The court ordered that when father was released from custody he was not to reside in grandmothers home without permission from the social worker. In addition, it ordered the parents visits to be monitored.

2. Pretrial Resolution Conference/Mediation

On December 27, 2004, the parties met in an attempt to resolve the jurisdictional issues. DCFS recommended family reunification services for the parents. In a jurisdiction/disposition report filed the same date DCFS stated that the children were living with grandmother. A social worker had interviewed father, who stated that during his relationship with mother he knew there was something not quite right with her. He stated that she was crazy and he could not deal with her mood swings and anger. He never saw mother hit the children, and although she did scream and yell at them he thought she was a good mother to them.

In an interview with DCFS, mother admitted that she did hear voices and could not make sense of why she heard voices. She told the social worker that people were after her and she had called the police, but that the police were not doing anything about it. She also confirmed that she had been hospitalized on October 14, 2004. She stated that she was mad that day and broke windows in her fathers home. Her father called the police and she was forced to go to the hospital. She was released on October 19, 2004. She was prescribed medication for depression and insomnia. She was involuntarily hospitalized again from December 13 through December 16, 2004, following another incident during which she became angry at the people living upstairs from her father because they were making a lot of noise. Her father again called police because she was out of control and she was hospitalized against her will. She was to attend a follow up appointment on December 21, 2004, but did not show up. In addition, she had been prescribed Risperdal for depression but said she was no longer taking it because she did not like the way it made her feel.

Maternal grandmother was also interviewed. She stated that mother needed help, that mother was desperate and hopeless at times, and was suffering from some kind of mental problem because she did things like breaking windows, throwing things and talking nonsense.

Paternal aunt, who was living in the same home with paternal grandmother and the girls, said mother would call the home at all hours of the night and make inappropriate comments to the girls that would make them cry.

On January 6, 2005, a first amended petition was filed. The petition alleged that mother had mental health problems and had on occasion failed to take her antidepressant medication. It also stated that the home was unsafe. In addition, the petition stated that the children were exposed to domestic violence between mother and father and that mother had a history of drug abuse, including a positive test for amphetamine on or about December 14, 2004. Also, father had a history of criminal arrests and convictions. On February 7, 2005, DCFS filed an addendum report, which stated that mother had tested positive for methamphetamine on January 28, 2005. It also explained that during her hospital visit in December 2004, she had been diagnosed with schizophrenia. Mother and father had been visiting the children on a biweekly basis.

The matter went to mediation on February 7, 2005. On the same day, pursuant to agreement by the parties, the court exercised jurisdiction over the girls. Mother agreed to complete a mental health evaluation; to remain current with psychiatric care and medications; to complete a parenting class; and to participate in individual counseling and a substance abuse rehabilitation program with counseling and random drug testing.

Father agreed to complete a substance abuse rehabilitation program with counseling and random drug testing; to complete a parenting class; and to participate in individual counseling to address case issues including domestic violence and the effect of the parents relationship on the children. He also agreed to comply with probation terms.

3. Interim Report

A progress hearing was held on May 3, 2005. In a report filed on the same date, DCFS reported that on or around January 12, 2005, mother had been diagnosed with a mood disorder and was prescribed Abilify (30-day supply). Mother did not return to the doctor for over three months, and indicated that she did not want to continue taking medication and was refusing psychiatric services. Mother said she did not feel that she needed to continue taking the medication because she felt fine. Mother had not been participating in random drug testing consistently, and claimed that she did not remember that she had to test periodically. In addition, the report noted that mother had not been visiting the children regularly, stating that she had been busy with her work and her classes. The social worker reminded her that it was important that she visit regularly and informed her that a concurrent plan of adoption was being initiated in case she should fail to reunify with her children.

4. Six-month Review

On July 19, 2005, a hearing was held pursuant to section 366.21, subdivision (e). In a status review report filed on the same date, the DCFS social worker reported that mother had completed a parenting class, was participating in domestic violence sessions and submitting to random drug tests. However, mother failed to follow up on her mental health diagnosis and psychiatric care recommendations. Mother also failed to attend individual counseling. Thus, the court found that mother was in partial compliance with her case plan. Mother was visiting the children once per week with no problems noted. While father was in compliance with probation, he was not in compliance with the juvenile courts orders.

DCFS recommended that reunification services continue for both parents.

5. One-year Review

On December 29, 2005, DCFS filed its 12-month review report. It stated that while father had completed an outpatient program, he had not complied with other components of his case plan. Mother completed a parenting class and was in an outpatient program. Mother submitted to random toxicology screens with no failed tests however she did not appear for testing on November 7, 2005, or November 21, 2005. Mother was visiting the children two times per week with no problems noted. She had started receiving mental health services but no progress report was available. The children remained in good health in grandmothers home. Grandmother remained committed to adopting the girls and providing them with a permanent home.

At the review hearing, the court ordered services to be continued. It further ordered that mother have unmonitored visits beginning February 1, 2006, on the condition that she test clean from that day forward.

6. Eighteen-month Review

The court held a hearing pursuant to section 366.22 on May 19, 2006, after mother received family reunification services for about one and a half years. According to a report filed by DCFS on the same date, mother had no stable home. Apparently mother had been staying with maternal grandmother temporarily and her alternate plan was to stay with paternal grandfather, with whom she was living when DCFS became involved because of the drug possession and arrests in the home. The social worker had reminded mother that she placed her children at risk when she lived with paternal grandfather, who was arrested for drug sales and possession. Mother maintained that living with paternal grandfather would reduce her stress because he would be sharing rent with her.

Mother was still receiving mental health services. However, her case manager said she appeared overwhelmed and was not receptive to referrals for shelters.

Mother had unmonitored visits with the children beginning on March 11, 2006. However, on two instances the children reported that father was also present. This violated the courts order that the parents not visit together due to the domestic violence allegations. In addition, near the end of April grandmother refused to allow mother to take the children for a visit because mother appeared strange. Mother appeared very different which made grandmother suspect that mother was using drugs. Grandmother said that mother was unwilling to enter the home, and that mother appeared anxious, reactive, and impatient with the children. Grandmother had noted a change in mother over the time that mothers visits were unmonitored. The court therefore ordered that mothers visits become monitored again.

Although mother had not been hospitalized during that review period, on May 1, 2006, mother had stated that she would benefit from additional time to address issues related to housing, income, employment, and her overwhelming thoughts, feelings, and anxiety. The report concluded that the parents were still unable to provide adequate and consistent care and supervision to the children, and recommended termination of family reunification services. Mother requested a contested hearing on termination of her family reunification services.

7. Contested Hearing Pursuant to Section 366.22

On July 5, 2006, the court held a contested hearing on the issue of terminating mothers family reunification services. Mother testified that she was in counseling weekly and had finished her domestic violence classes. Although she had been on a medication, Abilify, she had not had it for a month because of a problem with her medical insurance. She had finished a drug program and was in a sober living home that tested her weekly for drugs. She also finished a parenting class and planned to return to individual counseling. She had a job at a linen store. She testified that she had permitted the father to see the children while they were with her on one occasion. She did not know that she was not supposed to do that.

At the conclusion of the hearing, the court ordered DCFS to continue to provide mother with reunification services for three additional months. The court terminated reunification services for father. The court noted that mother had missed some of her random drug tests. However, the court gave the social worker discretion to liberalize mothers visits with the girls on the condition that mother resume taking psychotropic medications and continue taking the medicine, attend individual counseling, and that there be no missed or positive tests. The court reiterated its prior order that father not be present at the visits.

8. Further Hearing Pursuant to Section 366.22

On November 6, 2006, the court held a hearing. In a report filed the same date, DCFS reported that mother had not sufficiently addressed her long-standing mental health issues because she was not following through with services. DCFS was informed that mother may have dropped out of services due to problems with her health insurance. Mother stated that she had been diagnosed with schizophrenia and had been prescribed Abilify but had stopped taking the medication.

During a meeting at the DCFS office, mother demonstrated a tendency to react despite efforts to validate and contain mother. Mother left the meeting prior to addressing all issues and recommendations that the social worker intended to discuss. At a subsequent meeting, mother appeared anxious and impatient. The social worker attempted to assist mother with reinstating her insurance, but was informed that mother must do so herself. The social worker offered mother the use of her telephone so that mother could contact her provider to resume treatment. Mother declined the social workers help.

On August 9, 2006, Jamie Holes, the program director at Mariposa Recovery Center, met with mother. Ms. Holes described mother as unsure of what she needed, confused, not mentally sharp or intact at the time, and Ms. Holes stated that he had trouble interacting with her. Ms. Holes confirmed that mother was receiving mental health services but said mother needed weekly counseling. She stated that mother did not appear to understand her diagnosis. She further stated that mother admitted to hearing voices, talking to herself, and paranoia. She described her efforts to help mother as one sided. She said that mother is not following through with counseling or taking any affirmative action to demonstrate stability.

The social worker met with Aliyah and C. at their schools. Both girls referred to grandmother as Mami and referred to mother as Joanna. The children confirmed that visits with father had occurred when mother was also present, but the social worker could not determine the time frame of these incidents.

The assessment provided by DCFS stated that, while its true that mother remained in a sober living home and maintained part time employment, mother had yet to participate in counseling to address case issues and had only recently resumed mental health services. Mother had not yet demonstrated consistent ability to follow through with referrals. Self reliance and consistent pursuit of mental health services and psychiatric care had been unattainable goals for mother. Of much concern, mother appeared to have difficulty organizing things or herself without supervision and had not demonstrated the ability to follow a course of action to its logical conclusion. Thus, DCFS recommended termination of family services, and adoption.

Mother requested a contest on the issue of terminating her family services, and the hearing was reset.

9. Second Contested Hearing Pursuant to Section 366.22

On December 7, 2006, DCFS filed an information report. The report stated that paternal grandfather had informed DCFS that he rented an apartment in which he and father lived. Mother continued to arrive at their home, unannounced, three to five times per week. Grandfather had asked mother to leave on numerous occasions. Sometimes father allowed mother in the home and other times asked her to leave if they had disagreements. About two and one-half months earlier an argument arose between mother and father at about 1:00 a.m. during which mother hit a large window, broke it, and sustained a cut on her elbow. Paternal grandfather stated that mother was violent, aggressive, reactive, and unpredictable.

The contested hearing was continued to December 15, 2006. Mother testified at the hearing. Contrary to the information the DCFS social worker received, mother stated that she had no relationship with father and had not seen him for about seven months. She also stated that she had not been to the apartment where father lived.

Mother testified that she had participated in a mental health examination with Dr. Bernandez. She was diagnosed with schizophrenia and had been taking Abilify for four months. She missed a couple of urine drug tests because she did not have a phone where the worker could reach her. She was having monitored visits with the girls once a week.

At the conclusion of the hearing, the court found that mother was in compliance with the case plan. However, the court stated that she has not made the progress in understanding the issues and opening up to the level she needs to in counseling and really working to resolve the issues. The court also noted that the incident reported with father and grandfather was of concern. The court thus found by clear and convincing evidence that reasonable services had been made available to the mother to reunify with the children, and terminated services. The court set a hearing under section 366.26 regarding termination of parental rights.

10. Hearing Pursuant to Section 366.26

After a continuance, the contested hearing was set for August 22, 2007. The court admitted into evidence the entire file, including new interim review reports filed August 1, 2007, May 16, 2007, and April 12, 2007. The court stated it would be considering the entire contents of the court file. The court also heard testimony from mother.

Mother testified that she was visiting the girls three times per week in the six months prior to the contested hearing, for four to five hours per visit. However, on cross-examination, mother admitted the more frequent visits were actually within the past six weeks, as opposed to six months, because she had just given birth to a baby who had also been placed with grandmother.

Mother further testified that she helped the girls with their baths, homework, and watched television with them. But mother said she never stayed long enough to put the girls to bed. Mother said she had been helping grandmother more lately because grandmother was tired due to taking care of the new baby.

When she arrived for visits, mother stated that the children hugged her and asked her if she could help them with their homework. Mother stated that her children have friends, but she did not know the names of any of their friends. Mother sometimes went shopping along with grandmother and the children. She went to parties with them as well. She did not cook for the children but preferred that grandmother do the cooking. Sometimes mother purchased items for the children like clothes and school supplies.

Mothers counsel argued that mother made a good showing about regular contact, and that mother demonstrated great knowledge of what the girls like and what their favorite things were. He argued that mother had proved regular contact and that there was a close, emotional relationship between children and mother and that continuing the relationship would be in the childrens best interest. However, mothers counsel indicated that in the event that mothers contest failed, mother was not opposed to grandmother adopting the children, as mother felt that grandmother was doing a wonderful job raising the children.

DCFS urged the court to terminate parental rights. It argued that even though mother visited regularly, the exception in section 366.26, subdivision (c)(1) did not apply because there was no showing that the relationship was so beneficial as to outweigh the benefits of adoption. Minors counsel joined in the social workers recommendation that the court terminate parental rights. Fathers counsel also joined in the recommendation that grandmother be permitted to adopt the girls.

The court found that mother did not have great knowledge of the girls daily work, did not know the names of the girls friends, and did not have a parental role or relationship. Mother had begun helping grandmother more lately, and had recently been helping with baths. However, the court noted that mother never cooked a meal for the girls, and that the girls called her by her first name. The court further noted that it was debatable as to how consistent mothers visits were since she claimed she visited three times a week for six months, then admitted it was only for six weeks.

The court found, by clear and convincing evidence, that return to the parents would be detrimental and the children were adoptable. The court terminated parental rights. This timely appeal followed.

DISCUSSION

I. Section 366.26, Subdivision (c)(1)

Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the court has continued to remove the child from the custody of the parent and has terminated reunification services shall constitute a sufficient basis for termination of parental rights. ( 366.36, subd. (c)(1).) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (i) the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B).)

It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1). (Cal. Rules of Court, rule 5.725(e)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339.) Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (Jasmine, D., at p. 1350.)

II. Standard of Review

Although reviewing courts have traditionally applied a substantial evidence test to a juvenile courts finding under section 366.26, subdivision (c)(1) (see In re Autumn H. (1994) 27 Cal.App.4th 567, 576), some courts have determined that abuse of discretion is the appropriate standard of review, but have noted that the practical differences between the two standards are not significant. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Ibid.)

With these principles in mind, we review the evidence supporting the trial courts order.

III. Substantial Evidence Supported the Trial Courts Decision to Terminate Parental Rights

In order to demonstrate that the exception found under section 366.26, subdivision (c)(1) applies, mother was required to show that termination of her parental rights would be detrimental to the children because (a) she maintained regular visitation and contact with the children, and (b) the children would benefit from continuing the relationship.

A. Regular Visitation and Contact

Throughout the pendency of this matter in the juvenile court, mother had weekly or biweekly visits with the girls. While mother was granted unmonitored visitation for a period of time in 2006, the court subsequently ordered monitored visits due to grandmothers reports of a change in mothers demeanor which raised grandmothers suspicion that mother was using drugs. At the time of the contested hearing under section 366.26, mother testified that over the past six weeks she was visiting the girls three times per week. Counsel for DCFS agreed that mother may have met the first prong of regular contact and visitation at least weekly.

However, the trial court expressed concern regarding mothers credibility as to the frequency of her visits. The trial court stated that it is debatable as to how regular and consistent her visits have been since she claimed that its three times a week for the last six months and then later admitted that, no, that is really more for the last six weeks, . . . it was less frequent before that. It started getting to be more frequent as she approached the end of her pregnancy. Indeed, mother admitted that her visits became more frequent primarily because she had a new baby that was also detained with grandmother, and grandmother was tired due to caring for mothers third child.

Despite the juvenile courts concerns regarding the frequency of mothers visits, the trial courts determination that mother did not meet the requirements of the exception found in section 366.26, subdivision (c)(1) appeared to rest upon its finding that mothers relationship with the girls was not so beneficial as to overcome the benefits of adoption. Therefore, we turn to this element of the exception.

B. Beneficial Relationship

The benefit from continuation of the relationship as set forth in section 366.26, subdivision (c)(1) has been defined to mean the relationship 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The factors to be considered when determining whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)

Applying the first two of these factors, we note that Aliyah was four when she began living with grandmother. She is now seven. Thus, she has spent close to half her life with grandmother. C. was two and a half when she began living with grandmother, and is now five. She has spent half her life with grandmother.^[3]

As to the last factor, neither child has any particular needs that can only be met by mother. In fact, the juvenile court concluded that mother was not meeting the needs of the children. She was not engaged in their lives to the point of knowing their daily work or the names of their friends and neighbors. She never put them to bed or cooked a meal for them. While she occasionally bathed them, she admitted that occurred more recently since grandmother had taken on the additional responsibility of caring for mothers new baby.

Application of the third factor, concerning the effect of interaction with mother upon the children, also supports the juvenile courts decision. While mother points out that the children hugged her when she arrived, did not want her to leave at the end of her visits, and that she participated in the childrens care by bathing them, helping them with homework and going places with them, DCFS takes the position that mother must show more than frequent and loving contact, and must be more than a mere friendly visitor or friendly nonparent relative. (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)

Mother argues that a requirement that she assume a parental role over the children is legally incorrect. She argues that she does not have to prove that she assumed the position of a day-to-day caretaker of the children in order to prove the existence of a beneficial relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51 [day-to-day caretaking is not required for a finding that the beneficial relationship exception exists].) She argues that, because no one asked the girls about their feelings regarding adoption, their actions are the only indication of how they felt. Their actions in hugging her, enjoying their time with her, and not wanting her to leave, mother argues, shows a relationship that should be preserved.

While mother is correct that, under Casey D., day-to-day contact is not a requirement for proving the existence of a beneficial relationship, case law has confirmed that, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. (In re Angel B., supra, 97 Cal.App.4th at p. 468, see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [We do agree . . . that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one].)

The facts of the case support the trial courts conclusion that the childrens relationship with mother did not meet the standards for application of the beneficial relationship exception. The facts showed that the girls referred to mother as Joanna, and referred to grandmother as Mami. In addition, while mother had recently begun bathing the children, she did not perform the duties that a parent would regularly perform for her children, such as preparing meals for them and putting them to bed. She did not know the names of any of the girls friends. In addition, it is important to note that the frequency of mothers contact with the girls had increased recently because grandmother was also caring for mothers new baby. Thus, the fact that mother recently spent more time with the girls was, as the juvenile court stated, to help[] the grandmother, rather than as an indication of a greater parental role. In contrast, grandmother has cared for the girls throughout the entire reunification period and has provided them with a stable, loving home. Indeed, mother testified that she trusts grandmother and felt that grandmother would do a good job raising the girls.

Mother also testified that grandmother would allow her to continue visiting the girls. There is no evidence that the girls would lose their relationship with mother if grandmother is allowed to adopt them. Thus, the evidence was that the adoptive mother would support and encourage continued contact between [the children] and . . . mother. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.) This fact also weighs in favor of allowing the girls the permanency and stability that adoption will provide. (Ibid.)

As stated in In re Autumn H., supra, 27 Cal.App.4th at p. 575, [i]nteraction between natural parent and child will always confer some incidental benefit to the child. However, the trial court did not err in determining that this is not the extraordinary case where the Legislatures preference for adoption should have been overcome by the exception to termination of parental rights provided in section 366.26, subdivision (c)(1).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

_________________________, P. J.

BOREN

_________________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Welfare & Institutions Code.

^[2] As of January 1, 2008, the relevant exception is found in section 366.26, subdivision (c)(1)(B). We will refer to it as the exception found under section 366.26 (c)(1).

^[3] Mother argues that In re Amber M. (2002) 103 Cal.App.4th 681, supports her position that the beneficial relationship exception applies because the children at issue were of a similar age to Aliyah and Claresse and that other circumstances make the two cases similar. We find that, despite the similar ages of the two older children at issue in Amber M., the case is distinguishable because the evidence there showed a common theme running through the evidence from the bonding study psychologist, the therapists, and the [court appointed special advocate] that there was a beneficial parental relationship that clearly outweighs the benefit of adoption. (Id. at pp. 689-690.) No such evidence exists here.