In re Raven P.

Filed 9/27/07 In re Raven P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Michael P.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant Veronica P.

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

Jennifer Mack, under appointment by the Court of Appeal, for the Minor.

* * *

Michael P. (father) and Veronica P. (mother) appeal from the order of the juvenile court terminating their parental rights to their daughter, Raven P., who is now six years old. (See Welf. & Inst. Code,  366.26; all further statutory references are to this code.) Father and mother each contend the court erred by declining to apply the statutory exception to termination where a strong parent-child bond exists. ( 366.26, subdivision (c)(1)(A).) Because substantial evidence supports the juvenile courts conclusion mother failed to establish the threshold requirement of consistent visitation (ibid.) and that neither parents bond with Raven was so strong that severing it would outweigh the benefits of adoption, we affirm the juvenile courts order.

I

FACTUAL AND PROCEDURAL BACKGROUND

We last reviewed this matter in October 2006, when we denied fathers writ petition challenging the juvenile courts order setting a section 366.26 hearing (.26 hearing) to select and implement a permanent plan for Raven. (See Michael P. v. Superior Court (Oct. 12, 2006, G037304) [nonpub. opn.] (Michael P.).) For ease of reference, we reproduce the following background facts from that opinion: Raven was three years old in September 2004, when she was taken into protective custody on allegations of general neglect and caretaker absence. Police, responding to a neighbors call that a child had been crying for several hours, discovered Raven on a high countertop in her mothers apartment, sitting in a puddle of her own urine. Officers found Ravens mother Veronica P., lying unconscious in the apartment, apparently having ingested a large amount of Oxycontin, a prescription pain medication. Veronica, who has a history of drug abuse, admitted to using methamphetamine.

Father, Veronicas ex-husband, is a 35-year-old registered sex offender supervised by the Orange County Probation Department. Fathers sex offender status arose from a molestation incident occurring in February 2001, involving 13-year-old Heather U. Veronicas sister and Heather K., Heather U.s 14 or 15-year-old friend. The incident occurred after Veronica went to bed, and father engaged the girls in a game of Truth or Dare. Father admitted the incident involved oral copulation of the older girl, digital penetration of both girls, and masturbation. As a result of the incident, father was arrested and pleaded guilty to five felony counts: Lewd act upon a child under 14 (Pen. Code, 288, subd. (a)); lewd act upon a child 14 or 15 by person 10 years older (Pen. Code, 288, subd. (c)); act of sexual penetration upon child under 16 (Pen. Code,  289, subd. (i)); act of sexual penetration upon child under 14 by person 10 years older (Pen. Code, 289, subd. (j); and oral copulation of child under 16 by person over 21 (Pen. Code, 288a, subd. (b)(2)). The superior court placed father on formal probation on condition he serve one year in jail and obey other terms imposed by the court. On his superior court guilty plea form, father admitted that between February 1, 2001 to February 28, 2001, he molested Heather U. on two separate occasions, and molested Heather K. on three separate occasions. Although fathers probation conditions prohibited him from residing with a child under age 18, the conditions expressly excepted Raven. After fathers conviction, Veronica filed for divorce. In May 2003, father began a sex offender relapse prevention program through weekly group therapy with Eduardo Rendon, a licensed clinical social worker.

Shortly after Raven was taken into custody, Orange County Social Services Agency (SSA) prepared a detention report. The report cited a previous child abuse report stating that father admitted sleeping with Raven during her overnight visits with him, despite orders from his probation officer prohibiting this conduct. In January 2005, the court sustained an amended petition under section 300, subdivision (b), failure to protect. In April 2005, the court vested custody of Raven with SSA, and ordered SSA to provide both parents with family reunification services, including sexual abuse counseling and parenting classes for father, and allowing father weekly monitored visits. Fathers live-in girlfriend, Sheree Estrella, was to act as monitor.

At the six-month review, SSA reported father was making progress with his service plan. Initially dropped from his parenting classes for missing three times, father gained reinstatement and had been attending classes. He began sex offender therapy with John Adsit of the University of California, Irvine, Medical Center Focus program. Father also attended parenting classes and had consistently visited with Raven twice weekly. [Mother] had made no progress on her plan, had not appeared for drug testing, and her whereabouts were unknown to SSA. (Michael P., supra, G037304, at pp. 2-4.)

In June 2005, SSA placed Raven with her maternal great aunt and uncle in Temecula. Father visited Raven regularly. Their interaction was appropriate, enjoyable for both, and gradually increased to eight hours weekly, but remained monitored. Raven consistently reported she did not want to live with father, if given the chance, preferring maternal relatives instead.

For her part, mother had been arrested in December 2004 for breaking and entering into an apartment from which she had been evicted. She was arrested again in January 2005 for burglary and possession of drug paraphernalia, and she remained in jail until March 2005. Mother occasionally telephoned Raven from jail and visited with her inconsistently upon release, missing most of June, all of July, and most of August. She telephoned Raven periodically during this interval. In August 2005, mother appeared during one of fathers scheduled visits at a coffee shop; Raven cried upon seeing her, mother hugged her, and left. Father denied knowing whether mother abused drugs, but acknowledged she consumed large quantities of prescription drugs for medical issues.

Mother returned to jail in October 2005 on drug charges, and remained incarcerated until March 2006. She did not request visitation at the jail with Raven until December 2005, after which Raven visited her there twice per week until mothers release. Raven enjoyed the visits and told mother she loved her. Mother tested positive for methamphetamine in April. She visited Raven in April and May, but in June entered a 90-day residential drug treatment program that limited contact to telephone calls and two visits.

Meanwhile, Raven thrived in the home of her maternal great aunt and uncle, who found her a joy. She excelled in school and, at age five, was already reading. Unfortunately, due to family politics involving unspecified squabbles with other maternal relatives concerning Ravens care, the pair asked that SSA move her to a new placement at the end of the school year.

In July 2006, the juvenile court placed Raven with her paternal aunt and uncle in Turlock. The couple had two children of their own and soon expressed interest in adopting their niece. Father visited Raven in Turlock in July and again in November, with an intervening visit in Orange County in August. After a dispute with his sister about scheduling a Christmas visit with Raven in Turlock, father became upset and refused to visit her over the holidays. According to father, he remained in frequent contact with Raven by telephone, but he did not visit more often because he did not expect her to return to his care and therefore he did not want to interfere with her bonding with her new family.

As for mother, within a week of completing her residential drug treatment program on August 30, she tested positive for methadone, first on September 5 and again in October. After learning of the positive tests, mother obtained a prescription for methadone, claiming back pain. Mother made a scheduled visit with Raven in Turlock in early September, and the monitor reported no concerns. The next two weekends, however, mother demanded access to Raven though no visit was scheduled. On the second occasion, the caretaker fielding mothers call reported she sounded stoned. In October, mother admitted to her probation officer she stole a prescription medication, Ativan, from her grandmothers medicine cabinet and ingested it to relax. That same month, mother and her mother persuaded the social worker to arrange a monitored call with Ravens caretaker to discuss visits, but the two became nasty and so hostile that the caretaker could not get a word in.

Mother visited Raven twice in October and once in November. During the latter visit, Raven brought up the fear she had lived with since the day she had been detained, confiding, You were sleeping and you did not wake up. You woke up and then went back to sleep. Mother apologized and assured Raven it will never happen again. Later that month, on November 16th, mother was arrested and incarcerated for repeated probation violations, including missed and failed drug tests, methamphetamine and Ativan use, missed appointments with her probation officer, and prohibited association with her drug cohort. Mother telephoned Raven on Christmas Day and, when Raven asked where she was, she admitted she was in jail again. Mother remained incarcerated until mid-January 2007.

On January 15th, in anticipation of the .26 hearing, two social workers visited Raven in Turlock. Raven informed the workers she did not want to be adopted and that she wanted to live with her mother or her grandmother. Neither worker had spoken with Raven about adoption or the pending .26 hearing. On January 23d, the caretaker notified the assigned social worker that Raven had again stated she did not want to be adopted and added she even would prefer living with strangers in the Los Angeles area, if necessary, so she could be closer to her mother. The caretaker noted Raven had spoken with mother the day before by telephone.

The .26 hearing took place over several days between January 31 and February 8, 2007. Over the course of the proceedings, the juvenile court became concerned about unauthorized contact with Raven by the parents, maternal grandmother, and maternal great-grandparents. The court therefore prohibited telephonic or other contact. Father and mother both testified, and they elaborated on the close bond they had with Raven.

The court also heard testimony from Dr. Marsha Hewlett, who performed a bonding study on Raven and mother in August 2006. Hewlett found the relationship between Raven and mother to be both positive and negative. On the positive side, they had an emotional bond. Raven saw mother as a parental figure and wanted her attention and approval, and mother responded to those needs. Raven had been in mothers custody for the first three years of her life, a critical period during which the two formed a deep attachment, according to Hewlett.

On the negative side, Hewlett acknowledged Raven would suffer emotional and possibly physical detriment if mother continued her pattern of drug abuse, incarcerations, and enmeshment with the maternal family. A child bonded to a parent would necessarily suffer negative impact if visitation became variable. Raven, in particular, suffered harm and would suffer further harm if mother visited infrequently or not at all.

Hewlett found Raven was very emotionally invested in mother and greatly affected by their interaction. Hewlett noted the example where Raven expressed her fear in the incident resulting in detention, where mother did not wake up. Soon afterward, mother was reincarcerated and did not visit. Hewlett explained that children exhibit magical thinking in which they see themselves as responsible for events around them. Raven felt responsible for mothers incarceration and was emotionally impacted by it in a negative way. Ravens statement she did not want to be adopted and wanted to be returned to mother was an expression of feeling she had to protect mother.

Nevertheless, based on the strength of Ravens bond with mother, Hewlett believed the court should maintain the mother-daughter relationship. Continued regular visitation would benefit Raven. Hewlett assumed adoption would prohibit contact with mother; otherwise, Hewlett would support adoption. Hewlett testified that severing the relationship between mother and Raven would distress the child, impeding her psychological and emotional well-being and development. Hewlett could not say, however, that Raven would suffer great harm because she believed that term was too vague.

The juvenile court concluded there is an unhealthy bond between Raven and her mother, in that Raven wants to protect her mother; Raven wants to take care of her mother. The court observed it could not comprehend how that situation is evidence of a positive attachment. That situation causes pain to this child, not just once, not just twice. But every time mother gets herself in a situation where she cant visit with the child, Raven feels the pain; Raven feels the separation, the anxiety, and the confusion. The court also noted that even when mother was out of custody, there would be periods where she would just drop out of Ravens life and she wouldnt come to visit and didnt call until she went to jail.

In contrast, the court observed that while there were gaps as long as a month once Raven moved to Turlock in which father would not speak with her (though he followed her progress with her caretakers), the court found itself impressed with his selflessness in allowing Raven time to get settled and realize where her home was. But fathers sexual abuse of a minor, a relative entrusted to his care, troubled the court, which concluded: [B]alancing the competing considerations, the court doesnt believe that the relationship Raven has with her father on this record outweighs the benefits from a stable and permanent home provided by adoption. Finding Raven was likely to be adopted and that none of the exceptions to termination applied, the juvenile court terminated mothers and fathers parental rights, and they now appeal.

II
DISCUSSION

A. Preliminary Issue

Ravens trial counsel urged the trial court not to terminate mothers parental rights because of the bond she shared with Raven.[1] Ravens appellate counsel has taken the opposite position and, after counsel for mother objected, we ordered appellate counsel to notify us whether she had trial counsels consent to argue the juvenile courts order should be affirmed. (See In re Josiah Z. (2005) 36 Cal.4th 664, 679-681 [trial counsel serves as childs guardian ad litem and must authorize litigation-related decisions].) Ravens appellate counsel has filed a letter informing us she has the requisite consent.

Mother contends appellate counsels letter alone is inadequate and we should instead require a declaration or letter from the minors trial counsel. The Supreme Court, however, imposed no formal manner in which the guardian must give consent, merely requiring him or her to authorize appellate counsels decisions when they are in the childs best interests. (In re Josiah Z., supra, 36 Cal.4th at p. 680.) The California Rules of Court do not require verification and mother does not point to any other source of authority. In short, there is no reason to suppose trial counsel (Tina Stevens of Harold LaFlammes office) has not authorized appellate counsels position, and mothers insistence serves no apparent purpose but to further delay the proceedings, which we decline to do. Delay would not serve Ravens interest in stability and permanency.

Moreover, we note mother has had ample opportunity to solicit support from Ravens trial counsel for reversal, which she has not obtained. In any event, as we discuss below, the evidence amply supports the juvenile courts conclusion no exception to termination of parental rights applied, and no postjudgment evidence has any relevance to the merits of the juvenile courts determination at the time. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We therefore need not await what Ravens trial counsel might say in a declaration sworn or unsworn, in favor of reversal or against it.

Mother makes another argument that has more merit. She contends we should ignore the reasons Ravens trial counsel has changed her position and now authorizes appellate counsel to argue for affirmance, according to appellate counsels letter brief. We agree such postjudgment evidence would likely violate In re Zeth S., which restricted appellate review to the evidence in the record at the time of the juvenile courts ruling. Consequently, we conclude appellate counsel may argue for affirmance, having obtained trial counsels authorization, but only based on the standard of review and the evidence in the record at the time of the trial courts decision, without regard to any potential new evidence.

B. Section 366.26, Subdivision (c)(1)(A), Exception

1. Applicable Law and Standard of Review

Mother and father both contend the trial court erred in terminating their parental rights because the so-called benefit exception in section 366.26, subdivision (c)(1)(A) applied. That exception authorizes the juvenile court to avoid terminating parental rights if it finds a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Once reunification services have been terminated, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The benefit exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (Id. at p. 1348.)

Instead, the exception applies only if 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. (1994) 27 Cal.App.4th 567, 575.) 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 parent's rights are not terminated. (Ibid.) Thus, the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.)

Factors bearing on the parent-child bond include [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . . (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Even if these factors reveal a strong bond, the parent faces a heavy burden to overcome the Legislatures preferred permanent plan of adoption. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813; see 366.26, subd. (b) [identifying adoption as preferred plan]; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [most permanent and secure alternative affords children the best possible opportunity to get on with the task of growing up].) By the .26 hearing, the dependent child is entitled to stability now, not at some hypothetical point in the future. (In re Megan S. (2002) 104 Cal.App.4th 247, 254.) Thus, the statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) We review the juvenile courts conclusion concerning whether the benefit exception applies merely for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

2. Substantial Evidence Support the Juvenile Courts Conclusion the Benefit

Exception Does Not Apply to Mother

Mother concedes her visitation was not as regular as would have been ideal, but argues it was adequate simply because Raven still indicate[d] her wish is to be with mother, even if it means living with strangers . . . . But mother overlooks the standard of review, which focuses on whether substantial evidence supports the juvenile courts conclusion, not whether the evidence may be reconciled with her position. The juvenile court observed mother contacted Raven when it suited her, and declined to visit when it did not. For example, she intermittently telephoned Raven while incarcerated, but regularly missed visits when free to pursue her drug interests. Based on this evidence, the juvenile court could reasonably conclude mother failed to maintain the regular contact necessary to invoke the benefit exception.

And even assuming mother had satisfied this prong, substantial evidence supports the juvenile courts conclusion the uncertain benefit of continued contact with mother paled next to the stability and permanency of adoption. Mother contends the juvenile court unreasonably relied upon a single unsupported statement of Dr. Hewlett regarding Raven possibly feeling at fault for her mothers troubles, and she argues no evidence suggested Raven [engaged in such] magical thinking . . . .

But whether Raven deemed herself responsible for mothers failings is beside the point: the juvenile court could reasonably conclude mothers demonstrated pattern of relapse and incarceration did not compare favorably with the stability offered by adoptive parents. Indeed, the juvenile court could reasonably determine Raven thrived during mothers numerous absences. Mother excuses her failings on grounds that relapse is part of the recovery process,but by the time reunification services have been terminated, the process is no longer about the parent but rather the childs interest in get[ting] on with the task of growing up now. (In re Beatrice M., supra,29 Cal.App.4th at p. 1419; In re Megan S., supra, 104 Cal.App.4th at p. 254; see In re Marilyn H. (1993) 5 Cal.4th 295, 310 [Childhood does not wait for the parent to become adequate].)

Mother relies on Hewletts expertise in psychology and suggests her opinion was controlling because the subject of bonding is beyond a laymans understanding. But the Legislature has vested the juvenile court in section 366.26, subdivision (c)(1)(A), the responsibility of weighing the benefits of a childs present parental relationships with those promised by adoption. Moreover, expert opinions are only as good as the facts on which they are based (People v. Gardeley (1996) 14 Cal.4th 605, 618), and the juvenile court could reasonably conclude Hewlett failed to explain Ravens unmitigated success during mothers frequent absences. The court could also note and rely on Hewletts refusal to characterize any potential loss as posing great harm to Raven, as required to meet the exception. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In short, substantial evidence supports the juvenile courts conclusion section 366.26, subdivision (c)(1)(A) did not apply.

3. Substantial Evidence Support the Juvenile Courts Conclusion the Benefit

Exception Does Not Apply to Father

Father contends the juvenile court erroneously denied application of the benefit exception based on speculative concerns he might not have internalized the lessons of therapy, there was a chance of recidivism, and Raven might be at risk when she became a teenager. Father correctly notes the juvenile court has the power to structure [his] contact with Raven as it deems appropriate, and to monitor that contact to ensure that there continues to be no risk to Raven. Accordingly, father argues the court should have imposed a guardianship with fitting restrictions, rather than terminating parental rights. But the issue is not whether the juvenile court might have done things differently, but whether substantial evidence supports the determination the juvenile court actually reached.

Father bore the burden of establishing termination of his parental rights would greatly harm Raven (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350), and he presented none. To the contrary, his withdrawal from Ravens life once she moved to Turlock illustrated she did well, even thrived, without him. While father is to be commended for putting her interests ahead of his own by stepping back so she could bond with her new caretakers, her success as he receded from her life is not a reason to derail the very stability he helped her achieve.

In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Amber M. (2002) 103 Cal.App.4th 681 illustrate the compelling evidence necessary to find the continuing benefit exception. In Jerome D., the child seemed lonely, sad, and . . . the odd child out in his placement. (Jerome D., at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother shared a strong and well[-]developed parent-child relationship and a close attachment approaching a primary bond. (Ibid.) The court concluded that keeping parental rights intact would prevent Jeromes position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained Mothers children. (Id. at p. 1208.)

In Amber M., the court reversed where a psychologist, therapists, and the court-appointed special advocate believed a beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption. (In re Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a strong primary bond with their mother, and the younger child was very strongly attached to her. (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.) Father presented nothing remotely resembling the harm that would ensue in Amber M. or Jerome D., and the juvenile court could therefore reasonably conclude he failed to meet his evidentiary burden.

III

DISPOSITION

The order of the juvenile court terminating parental rights is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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[1] Counsel acknowledged the issue was a close call and that this case has been troublesome because of the history of mothers drug abuse and incarcerations.