In re T.L.

Filed 8/22/08 In re T.L. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________________

Y.L. appeals from orders terminating her parental rights to her children T.L., P.L. and D.L. As to T.L. and P.L., she argues substantial evidence does not support the juvenile courts findings that the exceptions to adoption provided in Welfare and Institutions Code[1] section 366.26, former subdivisions (c)(1)(A) and (c)(1)(D) are inapplicable.[2] As to D.L., she argues substantial evidence does not support the orders sustaining the petition and denying reunification services. We conclude substantial evidence supports each of the challenged orders, and affirm.

FACTUAL AND PROCEDURAL SUMMARY

T.L. and his sister P.L. came to the attention of the Los Angeles County Department of Children and Family Services (the Department) in December 2005 when, at T.L.s birth, both he and mother tested positive for cocaine. Mother agreed to a six-month voluntary family reunification program in which T.L. and P.L. would be placed in the home of their maternal grandparents while mother attended drug counseling and parenting classes and submitted to random drug testing. Two of her subsequent tests were negative for all drugs, one was positive for cocaine, another was positive for alcohol and she failed to appear at five tests.

In March 2006, the Department filed a petition to adjudge P.L. and T.L. dependents of the juvenile court under section 300, subdivisions (b) and (j).[3] The petition alleged that mother had a history of substance abuse and that her eldest child, N.R., had received permanency planning services due to mothers substance abuse.[4] The first amended petition alleged that Terrell J., the alleged father, had a history of substance abuse and convictions for theft. The court found a prima facie case to detain P.L. and T.L. and ordered that they be detained with their maternal grandparents.

A pretrial resolution conference was held in May 2006. The court ordered the continued detention of the children with the maternal grandparents, ordered the Department to provide a report indicating whether the grandparents were willing to adopt and ordered that the children were not to be placed in a home that was not a prospective adoptive placement.

At the jurisdictional hearing in July 2006, the court found that T.L. and P.L. were persons described by section 300, subdivisions (b) and (j). The court sustained the petition, denied mother reunification services pursuant to section 361.5, subdivision (b)(10) and (13), and set the matter for a selection and implementation hearing pursuant to section 366.26. That hearing was continued twice, in November 2006 and May 2007, because the adoptive home study had not been completed.

Mother gave birth to D.L. in April 2007. In June 2007, the Department removed him from her custody and placed him in the custody of his paternal aunt. Shortly thereafter, the Department filed a petition to adjudge D.L. a dependent of the court pursuant to section 300, subdivision (b). The court found a prima facie case of dependency and ordered D.L.s continued detention with his aunt.

The contested selection and implementation hearing as to T.L. and P.L. was held in August 2007. After the court reviewed the court file and received testimony from mother and the maternal grandmother, it terminated parental rights and transferred custody to the Department for purposes of adoptive placement.

Immediately thereafter, the jurisdictional hearing as to D.L. was held. The court admitted the most recent jurisdictional report and other documentary evidence, received testimony from mother and took judicial notice of the sustained petitions, minute orders and disposition case plans regarding N.R., T.L. and P.L. The court found that D.L. was a person described by section 300, subdivision (b), and sustained the petition.

The contested disposition hearing as to D.L was held on the following day. The court found that mother had not made a reasonable effort to resolve the issues that caused D.L.s siblings to be detained and denied mother reunification services pursuant to section 361.5, subdivision (b)(10) and (11). This appeal followed.

DISCUSSION

I

Mother argues the juvenile court erred in terminating her parental rights as to T.L. and P.L. because it failed to apply the exception to adoption in section 366.26, former subdivision (c)(1)(A). Adoption is the permanent plan preferred by the Legislature. [Citation.] At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. [Citation.] . . . . The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. [Citations.] (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.) The reviewing court must affirm a trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.] (In re B.D. (2008) 159 Cal.App.4th 1218, 1235; but see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [concluding abuse of discretion standard is more appropriate, but difference between two standards is not significant]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [following Jasmine D.].) We determine whether there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing all legitimate inferences to uphold the lower courts ruling. [Citation.] (In re Xavier G., supra, 157 Cal.App.4th at p. 213.)

Section 366.26, former subdivision (c)(1) provides in relevant part: If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless 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: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

[T]he phrase benefit from continuing the relationship [refers] to a parent-child relationship that 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. (In re Mary G. (2007) 151 Cal.App.4th 184, 207.) A parent must show more than frequent and loving contact or pleasant visits. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from the day-to-day interaction, companionship and shared experiences. [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] (Ibid., fn. omitted.)

T.L. was three days old and P.L. was nearly two years old when the children were placed in the home of their grandparents, and they have remained in that home since then. The grandparents cared for T.L. and P.L. on a day-to-day basis, and mother acknowledged that the children were thriving in their care. Three times a week during the year leading up to the hearing, mother had monitored visits with the children, each lasting three to four hours. During those visits, mother helped the grandparents feed, bathe and clothe the children, took the children on outings, and entertained the children with arts and crafts. The children had good relationships with mother and the grandparents. They regarded mother as mom, and they were encouraged to do so by the grandparents. The children formerly had cried when mother left, but they were beginning to cease doing so.

The instant case closely resembles In re Helen W. (2007) 150 Cal.App.4th 71. Inthat case, the mother maintained regular visits with her children, during which she fed and changed them, and they called her mom. One of the two children, a five-year-old, had resided with the foster mother for more than half her life. The other child, a two-and-a-half-year-old, had resided with the foster mother for virtually his entire life. During the two-year period in which the foster mother had care of the children, she provided them with food, shelter and care. Under those circumstances, substantial evidence supported the juvenile courts conclusion that the exception provided by section 366.26, subdivision (c)(1)(A) did not apply. (Id. at p. 81.)

Mother cites this courts decision in In re Brandon C. (1999) 71 Cal.App.4th 1530 to support her argument that section 366.26 former subdivision (c)(1)(A) applies. But the procedural posture in Brandon C. was fundamentally different because the juvenile court found former subdivision (c)(1)(A) applicable. (Brandon C., at p. 1533.) We upheld the order in that case because substantial evidence supported the courts finding. (Id. at p. 1534.) In this case, the presumption of validity applies to the courts finding that former subdivision (c)(1)(A) does not apply. The evidence we have summarized provides substantial support for the courts conclusion that mothers relationship with the children did not serve their well-being more than their adoptive placement with the grandparents.

Mother argues the juvenile court erred in failing to apply the exception to adoption provided in section 366.26, former subdivision (c)(1)(D). That statute provides exception to adoption when [t]he child is living with a relative, foster parent, or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative, foster parent, or Indian custodian would be detrimental to the emotional well-being of the child. ( 366.26, frmr. subd. (c)(1)(D).) But mother failed to raise that issue in the juvenile court and thereby forfeited it. (In re Daisy D. (2006) 144 Cal.App.4th 287, 291-292.) Anticipating forfeiture, she argues the juvenile court foreclosed argument on former subdivision (c)(1)(D) by intimidating the grandmother into testifying that she was willing to adopt.

At the selection and implementation hearing, mother offered to stipulate that if the grandparents were called, they would say their first choice was legal guardianship, but if push came to shove, they would agree to adoption. The following colloquy occurred:

THE COURT: Well, Im going to sustain my own relevance objection, Miss Bernstein [counsel for mother]. If you all stipulate that they would testify to this, its not relevant, what is relevant is theyre willing to adopt. Its not relevant that they would refer to something less than adoption, thats not relevance.

MS. CLARKE [counsel for father]: Well, Your Honor, with all due respect, I think its relevant I am sorry, if their testimony would be that if they if the children were to be removed from their caretaker that they would be willing to adopt, but their preference is to just do a guardianship.

THE COURT: Well, my [section 366.]26 issue is, one, have the parents maintained regular and consistent visitation and contact; two, if so, has it created a parental relationship that outweighs the benefits of adoption for children who three that is two and three, who are adoptable. I have a three year old; a one year old who are adoptable and the grandparents are willing to adopt and we have an approved adoptive study, and if not, then I can find someone else . . . .

Mother contends the last statement by the court implies a threat to remove T.L. and P.L. from the custody of the grandparents if the grandparents were unwilling to adopt. She suggests the grandmother was willing to comply with any plan the court proposed, including adoption, because she was intimidated. But after the court made that statement, the grandmother was asked if she would prefer guardianship over adoption if she were allowed to retain custody of the children regardless of her choice. Even then, she did not say she would select guardianship. We also note that the grandparents expressed interest in adopting the children in May 2006, repeated that interest on subsequent occasions and participated in an adoptive home study. We decline mothers invitation to speculate about the grandmothers motives in testifying as she did.

Moreover, even if grandmother had indicated a preference for guardianship at the selection and implementation hearing, as the juvenile court correctly noted, [t]he fact that Grandmother preferred guardianship over adoption is irrelevant. . . .  [F]amily preference is insufficient to trigger application of section 366.26, [former] subdivision (c)(1)(D). (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298; see also In re Jose V. (1996) 50 Cal.App.4th 1792, 1797, 1801.) The caretakers preference for guardianship over adoption is irrelevant at a section 366.26 hearing, where the courts task [is] to select the plan which best serve[s] the childs interests. (In re Jose V., supra, 50 Cal.App.4th at p. 1801.) (In re Xavier G., supra, 157 Cal.App.4th at p. 214; but see In re Fernando M. (2006) 138 Cal.App.4th 529, 536.)

Mother argues the juvenile court rendered the proceedings fundamentally unfair and denied her due process of law by eliminating a reasoned choice by the grandparents for a plan other than adoption. But the selection of a permanent plan is a decision for the court, not the grandparents. As we have discussed, the caretakers preference for guardianship is irrelevant at a section 366.26 hearing. (In re Xavier G., supra, 157 Cal.App.4th at p. 214.)

We now turn to mothers arguments as to D.L.

II

Mother argues substantial evidence does not support the jurisdictional finding that D.L. is a person described by section 300, subdivision (b). A juvenile court may determine a child is subject to the courts jurisdiction if it finds by a preponderance of the evidence that [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . a parents inability to care for the child due to the parents mental illness, developmental disability, or substance abuse. ( 300, subd. (b).) [] The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. [Citation.] (In re David M. (2005) 134 Cal.App.4th 822, 829.) We review the juvenile courts jurisdictional findings for sufficiency of the evidence. (Id. at p. 828.)

The court found true allegations that D.L. was endangered by mothers substance abuse. Mother and T.L. tested positive for cocaine at T.L.s birth, some two and a half years before D.L.s jurisdictional hearing. Mother admitted using cocaine twice per month while she was pregnant with T.L. She tested positive for cocaine at a subsequent drug test and failed to appear at five more tests. During the two-month period before the jurisdictional hearing for D.L., mother failed to appear at three additional drug tests. Mothers admission that she abused cocaine, her positive tests for cocaine and her repeated failures to appear for drug testing are substantial evidence of a serious risk that she would be unable to care for D.L. due to substance abuse.

Mother argues substantial evidence does not support the order denying reunification services as to D.L. Section 361.5, subdivision (b) provides in relevant part:

Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:

[] . . . []

(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, [the] parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.

The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent or guardian unless the court finds by clear and convincing evidence that one of the 15 exceptions set forth in section 361.5, subdivision (b) applies. [Citations.] (In re Albert T. (2006) 144 Cal.App.4th 207, 217.)  Section 361.5, subdivision (b) is a legislative acknowledgment that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Ibid.)

T.L. and P.L. were detained after mother and T.L. tested positive for cocaine at T.L.s birth. The Department was ordered to provide reunification services at their detention hearing in March 2006, and those services were terminated at the jurisdictional hearing in July 2006. Mother testified that she got onto a waiting list for a drug counseling program three or four months after T.L. and P.L. were detained, and she attended one class at that program two weeks before D.L.s jurisdictional hearing in July 2007. While she was on the waiting list for that program, she got onto the waiting list for another drug counseling program, but she did not look into any other programs during the eight-month period she remained on the waiting lists. Mother failed to appear at three drug tests in the two-month period before D.L.s jurisdictional hearing. Substantial evidence supports the courts finding that mother did not make reasonable efforts to treat the substance abuse issues that led to the termination of her reunification services with T.L. and P.L.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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

[2] Former subdivision (c)(1)(A) of section 366.26 was renumbered subdivision (c)(1)(B)(i), and former subdivision (c)(1)(D) was amended and renumbered subdivision (c)(1)(A), effective January 2008. (Sen. Bill No. 703 (2006-2007 Reg. Sess.).) The relevant proceedings took place in 2007, before those amendments became effective. Mother occasionally cites the current version of section 366.26, but absent a clear indication that the Legislature intended the amendment to apply retroactively, we must presume it does not. (Californians for Disability Rights v. Mervyns, LLC (2006) 39 Cal.4th 223, 230-231; In re William K. (2008) 161 Cal.App.4th 1, 12.)

[3] The original petition was dismissed when the first amended petition was filed on May 5, 2006.

[4] The court terminated jurisdiction over N.R. in October 2003. She is not a subject of this appeal.