In re R.F.

Filed 12/9/08 In re R.F. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Commissioner.

Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

-ooOoo-

V.F. appeals from an order terminating parental rights (Welf. & Inst. Code,  366.26 ) to her child R.F.^[1] Appellants appointed appellate counsel filed a NO ISSUE STATEMENT on October 14, 2008, advising there were no issues that could be raised and therefore no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). We extended time for appellant to personally file a letter brief, which she has since done.

In her letter brief, appellant writes about the father of her child, challenges the accuracy of information contained in early social worker reports, and finally contends the trial court rejected and ignored her testimony in opposition to terminating her parental rights. Having reviewed the appellate record as summarized below, we conclude appellants letter brief does not contain an arguable claim that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994). We will affirm.

PROCEDURAL AND FACTUAL HISTORY

Since before the time of R.F.s birth in November 2006 and throughout these dependency proceedings, appellant has been incarcerated in state prison as a consequence of a drug-related offense. The identity of R.F.s father was unknown.

As a newborn, R.F. was left in the care of her maternal grandmother. Approximately seven months later in June 2007, the grandmother who had a history of substance abuse, was under the influence while driving and had an automobile accident. R.F. was a passenger in the automobile and had not been placed in a car safety seat. As a consequence, respondent Fresno County Department of Children and Family Services (department) detained R.F. and initiated the underlying proceedings. R.F. was placed with her maternal great-grandmother.

Appellant did not want to participate in reunification services and expressed a wish that the maternal great-grandmother adopt R.F. When appellant was transported to Fresno for court hearings, visits did not occur with R.F. because appellant was housed in a safety cell and was unable to visit. Meanwhile, the department recommended that the court deny appellant reunification services ( 361.5, subd. (b)(10) & (11)) based on her previous failure to successfully reunify with another child and her loss of parental rights to that child, and still another child, as well as the fact that services would not be in R.F.s best interests.

In October 2007, the Fresno County Superior Court conducted a combined jurisdictional and dispositional hearing in R.F.s case. Appellant waived her appearance for that hearing. The court in turn exercised its dependency jurisdiction on multiple grounds over R.F., removed the child from parental custody, and denied appellant reunification services, as the department recommended. Having denied appellant reunification services, the court also suspended visitation between appellant and R.F. and set a section 366.26 hearing to select and implement a permanent plan for the child.

Although appellant did receive written notice of her writ remedy to challenge the superior courts orders, she did not pursue timely writ review. At best, many months later she filed a notice of intent to seek writ review. Because her notice of intent was untimely, this court dismissed appellants effort to seek writ review. (Dismissal order filed 6/9/08 in F055370, V.F. v. Superior Court.)

In the meantime, the department prepared a report in which it recommended the court find R.F. adoptable and terminate parental rights. According to the departments report, R.F.s maternal great-grandmother was the childs prospective adoptive parent. Also, R.F. had not had contact with appellant due to her incarceration and the child did not recognize appellant as her primary care provider.

The court repeatedly continued its permanency planning 366.26 hearing, in part due to difficulties the department encountered in publishing notice to R.F.s unknown father as well as uncertainty over whether appellant wished to attend the termination hearing and contest the departments recommendation. Eventually, in August 2008 the court conducted its permanency planning hearing at which appellant testified.

Appellant told the court she could be released from prison later in 2008 or early in 2009. Although she thought she had only a few visits with R.F. since the childs birth, appellant claimed she had been told she had 20 visits with her daughter. Their visits lasted an hour. Appellant testified she held R.F. during visits and that the child laughed and liked to play. Appellant would [a]sk [R.F.] to say mom a lot. In appellants view, R.F. knew appellant was her mother and was attached to her. Appellant loved R.F. a lot and claimed termination would be detrimental to R.F. because the child could not live with appellant. Legal guardianship would give appellant a greater ability to do things with R.F.

Following closing arguments, the court noted it had read and considered the departments report as well as considered appellants testimony and the closing arguments. The court stated that even if it were to find there was regular visitation and contact between appellant and R.F., it did not find R.F. would benefit from continuing the relationship. The court had no doubt appellant loved R.F. and both mother and child enjoyed their time together. However, it had not been sufficiently established that any benefit R.F. would gain from maintaining her legal relationship with appellant outweighed the benefit R.F. would gain from adoption. The court in turn selected adoption as the appropriate permanent plan for R.F. and terminated parental rights.

DISCUSSION

An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 . . . .) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and present argument and authority on each point made (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 . . .; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 . . .). If he does not, he may, in the courts discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) (In re Sade C., supra, 13 Cal.4th at p. 994.)

As previously noted, appellant writes about the father of her child, challenges the accuracy of information contained in early social worker reports, and finally contends the trial court rejected and ignored her testimony in opposition to terminating her parental rights. None of this amounts to an arguable issue that the superior court erred by terminating parental rights.

To the extent appellant now describes R.F.s father without identifying him, she overlooks the evidence before the superior court that she did not know the identity of the childs father. Our review is limited to the appellate record. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) Issues of fact are for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

Appellants criticism of early social worker reports regarding her loss of parental rights to other children and her history of drug abuse also does not entitle her to any relief. The time and place to complain of or otherwise challenge the departments evidence supporting the courts exercise of jurisdiction and decision to deny appellant reunification services was at the combined jurisdictional and dispositional hearing in October 2007. Having failed to do so, appellant has waived or forfeited her objection. (Evid. Code,  353, subd. (a).)

Last, the court did not ignore or otherwise fail to consider appellants testimony at the permanency planning hearing. Indeed, the court expressly stated it had considered the testimony but found appellant did not sufficiently establish, as the law requires of her, that termination would be detrimental to R.F. As the court tried to explain to appellant, the law requires more than a parents love for her child or enjoyable visits between the two of them to forestall adoption as a permanent plan. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Although the law acknowledges that termination of parental rights may be detrimental under specifically designated circumstances (see  366.26, subd. (c)(1)(B)), it is the parents heavy burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Here, appellant failed to establish that R.F. had such a substantial, positive emotional attachment to her such that termination would greatly harm the child. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

The courts focus was properly on R.F.s need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Because she was likely to be adopted, the law required the court to order adoption and its necessary consequence, termination of parental rights, unless there was a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Given the very limited contact between appellant and her daughter and lack of any showing of harm, there was no basis for the court to do anything but terminate parental rights.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Vartabedian, A.P.J., Cornell, J., and Gomes, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.