In re M.A.

Filed 10/15/07 In re M.A. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

K.A. (Mother) appeals from an order that terminated her parental rights and established a permanent plan of adoption for her daughter M. (Welf. & Inst. Code,  366.26.)^[1] She contends the court erred because of the parent-child relationship she had with M. ( 366.26, subd. (c)(1)(A).) We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY
In November 2005, M. was taken to the Humboldt County Department of Health and Human Services (Department) by her grandmother. M. was then

two-and-a-half years old. The grandmother explained that M.s mother, Mother, had left M. in her care on November 17, 2005, and had not returned. The grandmother, who had been living in an old mobile home without heat or running water, was unable to care for the child. According to the grandmother, Mother was using methamphetamine and usually had M. with her when doing drugs.

M. was placed in protective custody and taken to an emergency shelter foster home.

A. Dependency Petition

On November 23, 2005, the Department filed a petition pursuant to section 300, subdivisions (b) [failure to protect], (g) [no provision for support], and (j) [sibling abuse]. As noted in the detention report, Mother had three prior referrals to the Department that year regarding M., and Mothers daughter Jordan had been declared a dependent of the juvenile court in September 2005. As a result of the petition, M. was detained by the juvenile court.

On January 23, 2006, the Department filed an amended petition, again pursuant to section 300, subdivisions (b), (g), and (j). As to section 300, subdivision (b), it was alleged that there was a substantial risk that M. would suffer serious physical harm or illness as a result of Mothers inability to supervise, protect, and provide for her, because: Mother left M. with her grandmother in a trailer that was unsuitable for a child and placed M. at risk of substantial harm; Mother had a history of substance abuse that posed a risk of harm to M.; and M.s biological father had not made himself available to supervise, protect, or provide for her.

In regard to section 300, subdivision (g), the amended petition asserted that M. had been left without any provision for support, in that Mother left M. with her grandmother and did not return, the father had not provided support, and his whereabouts was unknown. In support of the section 300, subdivision (j) allegation, it was alleged that M.s half-sister, Jordan, was removed from Mothers custody due to Mothers substance abuse and inability to care for Jordan, and Mother was not participating in reunification services.

B. Jurisdictional Hearing

Mother did not attend the jurisdictional hearing on February 9, 2006. Because the amended petition had been derived from the prior agreement of the parties, however, Mothers counsel agreed that the juvenile court could make jurisdictional findings based on the Departments reports, while reserving Mothers right to assert objections, if any, later. The court found that the allegations of the amended petition were consistent with the agreement of the parties and sustained the amended petition.

C. Disposition Hearing

The Departments disposition report, filed on March 29, 2006, advised that visitation had been scheduled for Mother and M. for three times a week. However, Mother missed nearly one third of her visits and sometimes arrived late or left early. When she did appear for a visit, Mother was very engaged with her children and her interactions were positive. The foster mother reported that M. missed her mother and sister, was excited before the visits, and was a little sad after the visits.

The Department also reported that Mother had not availed herself of the services offered to her. She failed to obtain an assessment at the Healthy Moms recovery program, claiming she knows people who have not been successful with their program, they demand too much of you, and they were rude when she filled out her paperwork.

The disposition hearing was held on March 29, 2006. Mother appeared in the courtroom initially but left before the hearing started. Her attorney submitted the matter on the Departments recommendations, which the court adopted, including that reunification services would be provided to Mother.

D. Six-Month Status Review

The Departments six-month status report, dated July 2006 and filed in September 2006, advised that M. had moved into a foster home with her half-sister Jordan in May 2006. The two girls shared a darling room. The foster family was meeting M.s needs and was designated as her concurrent placement.

The report noted that Mother consistently missed at least one visit a week, which was a great heart-break for her daughter. When confronted in this regard, Mother was unable to see M.s (and Jordans) point of view or suspend her own needs for that of her children. She arrived at the visits with food, craft ideas, and lotions for M.s skin, and she could be very positive and interactive when she appear[ed] clean and sober. On other occasions, however, Mother would become frustrated, raise her voice, respond with a quick temper, or terminate the visit early. M. sometimes cried after the visits, saying she missed her mother.

Because M. looked forward to the visits and was so disappointed when they did not take place as scheduled, the social worker recommended that visitation be reduced to one visit per week, so Mother could make the visit and not disappoint M. with a cancellation.

The Department further reported that Mother turned in her completed application to the Healthy Moms recovery program on June 23, 2006, and attended her first early recovery group on June 27. By July 12, 2006, however, she had missed two group meetings. Because she was not attending the meetings, she was not being tested for drugs.

The social worker observed that Mothers attendance at just one recovery group meeting in an eight-month period was too little too late. Mother was only beginning to acknowledge her substance abuse problem, had not addressed her mental issues or parenting problems, and had not obtained suitable housing in a drug-free environment. The social worker opined that it was not safe to return M. to Mother, and the prognosis for such a return was very poor even with six more months of services. The Department therefore recommended that services be terminated and that a permanent planning hearing be set.

In an addendum report, the social worker advised that the Healthy Moms program had discharged Mother on July 31, 2006. In the nine months since M. was removed (and over 12 months since Jordan was removed), Mother had attended only two group sessions at Healthy Moms.

CASAs (court appointed special advocates) report for the six-month review hearing noted that, according to M.s former and current foster mothers, M. act[ed] out for a short time after visits with Mother. Because Mothers visits were sporadic and upsetting to M., CASA recommended a higher level of supervision.

The six-month review hearing took place on September 14, 2006. The court received the Departments and CASAs reports. Mother did not produce any evidence. The court adopted the Departments recommended findings, including that Mother had not complied with her case plan or made progress toward alleviating or mitigating the causes that had brought M. into the system. The court terminated reunification services for Mother and set a permanency planning hearing under section 366.26.

E. Permanency Planning Report

The Departments permanency planning report, dated November 2006 and filed on January 8, 2007, indicated that M. and Jordan were placed in a home with caregivers who were actively seeking to adopt them. M. and Jordan were doing well in the home, and the Department recommended that a permanent plan of adoption be established and that parental rights be terminated.

Attached to the Departments report was an adoption assessment, which found M. to be adoptable. The assessment included consideration of section 366.26, subdivision (c)(1)(A), pertaining to the biological parent-child relationship, and found that termination of parental rights would not be detrimental to M. and that M.s long-term emotional best interests would be best served by legal permanence through adoption. As noted in the assessment report, M. had been in the same placement since May 19, 2006, the prospective adoptive parents had known M. all of her life and had known Jordan and the maternal birth family for over six years, and the prospective adoptive parents were very committed to M. and Jordan and wanted to adopt them. After observation in the home, the adoptions caseworker concluded that M. was developing a close bond with her foster parents, to whom she referred as Peeps and Mama Barb. M. appeared very at home in her placement, sought her foster parents for guidance and reassurance, and appeared to have a psychological attachment to them.

F. Mothers Section 388 Petition

On December 28, 2006, Mother filed a petition under section 388 to modify the courts order of September 14, 2006, which had terminated family reunification services and continued placement in foster care. Mother requested that she be granted additional reunification services, and that M. be placed with her, because Mother had obtained housing at the Multiple Assistance Center (MAC). Mother contended that this change would be in M.s best interests because she would be with her biological mother. The court set the section 388 petition to be heard at the same time as the section 366.26 hearing.

G. Hearing on Section 366.26 Permanency Planning and Section 388 Petition

The section 366.26 permanency planning hearing and Mothers section 388 petition were heard on January 8, 2007. The court received the Departments 366.26 report (November 2006) and the CASA report into evidence. The Department submitted its case on its report; M.s attorney agreed with the Departments recommendations and opposed Mothers section 388 petition.

Mother testified that she had been in MAC housing since December 13, 2006. She had started attending the Healthy Moms program and NA or AA meetings and was testing clean. She had visited M. once a week for two hours. She had also participated in life skill meetings, but not in parenting classes. On cross-examination, Mother admitted that she had not brought with her any documentation confirming her enrollment in the Healthy Moms program. She presented no further evidence. The court took the matter under submission and continued the hearing.

On January 24, 2007, the juvenile court denied Mothers section 388 petition, selected a permanent plan of adoption, and terminated Mothers parental rights. The court accepted the Departments recommended findings and found by clear and convincing evidence that M. would likely be adopted.

This appeal followed.

II. DISCUSSION

At a permanency planning hearing under section 366.26, the juvenile court must make one of four possible alternative placement plans for a minor, if it determines the minor is adoptable. ( 366.26, subd. (b)(1)-(4).) Of the four alternatives, adoption is the permanent plan favored by the Legislature. ( 366.26, subd. (b); In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.) Thus, where (as here) the child is adoptable, the court must implement a plan of adoption and terminate parental rights unless one of five specified exceptions applies. ( 366.26, subd. (c)(1)(A)-(E).)

In this appeal, Mother contends only that the exception found in section 366.26, subdivision (c)(1)(A), applies.^[2] That subdivision provides: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To prevail under this exception, it is not enough for the birth parent to show that merely some benefit would derive from continuing the biological parent-child relationship. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348-1349 (Jasmine D.); In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.). Rather, the relationship between the child and the biological parent must be so strong that the child would suffer detriment from its termination. As the court stated in Autumn H.: In the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] relationship exception 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 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. (Id. at p. 575, italics added.) The parent bears the burden of proving that this exception applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Autumn H., supra, at p. 574.)

The parties debate the applicable standard of review. Mother contends that we should apply the substantial evidence test. (See, e.g., In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; Autumn H., supra, 27 Cal.App.4th at p. 576.) The Department urges that we apply the abuse of discretion test. (See, e.g., Jasmine D., supra, 78 Cal.App.4th at p. 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) We need not determine which standard should be applied, because under either standard we would affirm the order.^[3]

A. Regular Visitation

There are two steps in the analysis under section 366.26, subdivision (c)(1)(A). First, the parent must establish that she has maintained regular visitation with the child. Second, the parent must also establish that the benefit to the child of maintaining the parent-child relationship outweighs the benefit of adoption. Mother established neither.

As to regular visitation, the Department points out that Mother consistently missed her visits with M., much to M.s grief.^[4] At the time of the disposition report, visitation was scheduled three times weekly, but Mother missed nearly one-third of her visits and, when she showed up, at times arrived late or left early. The six-month report noted that Mother continued to miss at least one visit a week, which was a heart-break for M. Again, Mother sometimes left the visits early. In addition, Mother was unable to see M.s point of view or place M.s needs first, and the visits had to be decreased to once a week so Mother could make the visits and not disappoint M. Substantial evidence supports the conclusion that Mother did not maintain regular visitation for purposes of section 366.26, subdivision (c)(1)(A).

B. Benefit to the Child

Substantial evidence also supports the conclusion that the benefit to M. in maintaining the biological parent-child relationship did not overcome the benefits of adoption. Factors relevant to this determination include the age of the child, the time the child has spent in the parents custody, and the effect of the interaction between the parent and child. (See Autumn H., supra, 27 Cal.App.4th at p. 576.)

Ample evidence supports a finding that severing the natural parent-child relationship would not deprive M. of a substantial, positive emotional attachment such that the child would be greatly harmed. (In re Angel B. (2002) 97 Cal.App.4th 454, 466, italics added.) M. had been in her foster placement with her prospective adoptive parents since May 2006, the prospective adoptive parents had known her all of her life, they were very committed to M. and to her half-sister Jordan, and they wanted to adopt both of them. As observed in the adoption assessment, M. was developing a close bond with her prospective adoptive parents, appeared very at home in her placement, looked to her prospective adoptive parents for guidance and reassurance, called them Peeps and Mama Barb, and had a psychological attachment to them. By contrast, Mother did little to address the circumstances that led to M.s detention, had not taken any parenting classes, visited M. only two hours a week, never earned unsupervised visitation, and at times became frustrated, raised her voice, responded with a quick temper, or terminated the visits early.

Mother argues that she raised M. until she was two-and-a-half years old, she was very engaged during her visits and the visits were positive, M. missed her and was very excited before the visits and sad when they ended, Mother talked to M. on the telephone once or twice a week, and M. referred to Mother as Momma [K.] However, it is not our role to reweigh the evidence before the juvenile court, but merely to determine whether there was substantial evidence to support its findings. The evidence was sufficient in this regard. Mother has failed to establish that the juvenile court erred.

III. DISPOSITION
The order is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] Mothers attorney did not expressly argue at the section 366.26 hearing that subdivision (c)(1)(A) applied, and the trial court did not expressly rule that it did not apply. We nonetheless consider Mothers arguments.

^[3] Mother waived her challenge to the sufficiency of the evidence by failing to present a fair statement of the facts in her opening brief, in that she omitted relevant and compelling substantial evidence that supports the order. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) For example, Mother asserted in her opening brief that the Department felt [Mother] had a powerful emotional attachment to M. The quoted phrase was plucked from the following negative assessment in the September 2006 status review report: While it is clear that [Mother] has a powerful emotional attachment to M., the bond unfortunately, has not been stronger than [Mothers] need to maintain an entrenched lifestyle. Her attendance at one Early Recovery group during the last eight months, is just too little too late. M. deserves a stable permanent home. The Department therefore recommends that services to [Mother] be terminated and a permanency planning hearing be set within 120 days. In addition, Mother in her opening brief notes that she missed some of her scheduled visits but went to visits prepared with food, craft ideas, and lotions for M.s skin, and M. cried when the visits could not take place. She fails to mention the Departments observations that Mother would sometimes get frustrated, raise her voice, respond with a quick temper or terminate the visit early. She also fails to mention the social workers decision that visitation had to be reduced so there would be less chance that Mother would disappoint M. by missing their visits. As another example, Mother states in her opening briefthat the juvenile court, in terminating Mothers parental rights, commented that its decision was difficult . . . when you have an engaged parent. The entire paragraph of the transcript reads: So the Court is going to find all the recommended findings and orders at this time. It is difficult for the Court to do so when you have an engaged parent. At the same time, though, there are time frames in place for a reason. And that, as I said, what mother has been able to do most recently is not what was anticipated by the Court when the termination of reunification services took place. Notwithstanding Mothers failure to state the facts appropriately, we consider her arguments on the merits.

^[4] In her reply brief, Mother contends that the Department concede[d] in its respondents brief that Mother had regular contact with M. but merely argued that the quality of the visits did not demonstrate a strong parent-child bond. This plainly mischaracterizes the Departments argument.