In re C.M.

Filed 2/19/10 In re C.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bdno. Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Dawn Messer, Deputy County Counsel, for Plaintiff and Respondent.

Mother, S.M., lost custody of three-year-old son T.M., and two-year-old daughter C.M. when she and a boyfriend were arrested for possessing stolen property and she admitted a long history of drug use. Mother nearly succeeded in reuniting with the children, but her poor judgment resulted in the termination of services when her visits with the children became sporadic, and she failed to follow directions by the Department of Children and Family Services (CFS) to prevent contact with T.C., a violent felon with whom she had become involved, and her children. Mothers parental rights were terminated at a selection and implementation hearing (Welf & Inst. Code,^[1] 366.26), and she appealed.

On appeal, mother contends (1) the adoption assessment and report prepared for the hearing at which her rights were terminated did not contain adequate information about the childrens relationship with her or the history of visits and was insufficient to support the judgment; and (2) the court used the wrong standard to evaluate the existence of a beneficial parent-child relationship. We affirm.

BACKGROUND

Mother had six children in all, but only T.M. and C.M. were in her custody. Two of the older children were in a guardianship with a paternal aunt, one was in a guardianship with a paternal grandmother, and the oldest was in a guardianship with her paternal uncle. On April 14, 2007, minors T.M., then age two, and C.M., then age one, were detained after mother and her boyfriend were found watching a television set stolen from a neighbor in a vacant apartment. A dependency petition was filed by CFS alleging neglect and failure to protect ( 300, subd. (b)) due to mothers long history of substance abuse, and lack of provision for support ( 300, subd. (g)), due to both parents incarceration.

On October 11, 2007, mother and the fathers of both children submitted on the basis of the social workers reports and the court declared the children dependents on the basis of mothers substance abuse ( 300, subd. (b)), and the lack of provision for support by the father. ( 300, subd. (g).) The children were placed in the nonrelative extended family member (NREFM) who was the paternal uncle and guardian of mothers oldest daughter. The parents^[2]were ordered to comply with a reunification plan.

Prior to the six-month status review hearing ( 366.21, subd. (e)), mother had completed a drug treatment program, was participating in drug court, as well as a perinatal transitional housing program, and had enrolled in a domestic violence program. In April, 2008, CFS recommended return of the children to her custody but the social worker indicated she had difficulty assessing mother, having met with her only once, and noted mother was currently pregnant by T.C., a man she met during treatment. A month later, the recommendation changed because of a domestic violence incident occurring on March 20, 2008, in the sober living home where mother had been residing. Although mother stated she had not seen T.C., the father of her unborn child, since the date of the incident, other residents revealed she had not seen him since the date of the last court hearing, on April 10, 2008.

At the status review hearing, the children were continued as dependents, remained placed with the NREFM, and services were continued. The court found the extent of mothers progress was substantial and authorized the social worker to liberalize visitation and return the children to mother on family maintenance when appropriate. By October 20, 2008, the date of the 12-month status review report, the social worker recommended termination of services because mother had not participated in sober living, and had been homeless since August, 2008. CFS noted that mother had previously completed most of the components of her plan, but she had failed to submit to drug testing or attend Narcotics Anonymous meetings. The report also noted mothers visits with the children had become sporadic and she demonstrated poor judgment: she tested positive less than a month before graduating from the perinatal program, and she had to be prompted to complete programs, attend appointments, or apply for assistance.

Nevertheless, after a mediation session, CFS agreed to continue services to mother. On December 17, 2008, at the 12-month review hearing, the court ordered that the family reunification plan remain in effect. In March 2009, CFS reported that mother had completed substance abuse treatment, parenting classes, a domestic violence program, perinatal program, and had graduated from dependency drug court. She appeared more focused on reunification after T.C. was incarcerated and her seventh child was born.

However, while mother had been instructed to obtain restraining orders enjoining T.C. from contact with mother, on March 10, 2009, she sent T.C. to pick up the children for a visit despite the fact CFS opposed contact between T.C., who has several prior convictions for violent felonies, and the children. Mother told family members T.C. would only stay away until the children were returned to her, disregarding CFSs concerns.

As a result of mothers poor judgment, on April 14, 2009, the court terminated reunification services and scheduled a hearing to select and implement a permanent plan. ( 366.26.) Mother filed a notice of intent to file a writ petition following the hearing, but no petition was filed and the matter was dismissed. On August 17, 2009, the court conducted the selection and implementation hearing ( 366.26) and terminated parental rights of mother and both fathers, freeing the children for adoption by the NREFM. On September 15, 2009, mother appealed.

DISCUSSION

On appeal, mother claims the juvenile court abused its discretion by proceeding with the section 366.26 hearing where CFS provided no information regarding the childrens relationship with mother or the history of visits in the assessment report, and the report was inadequate to support a termination of parental rights. Mother also claims the juvenile court used the wrong standard in determining that there was no beneficial parent-child relationship, and that under the correct standard, there was insufficient evidence to support the judgment.

Mother has forfeited any challenge to the adequacy of the adoption assessment or the reports submitted at the 366.26 hearing because she did not object at the time of the hearing. A party is precluded from urging on appeal any point not raised in the trial court. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) Although mother attempts to avoid forfeiture by describing the issue in terms of whether the court properly proceeded to make a determination under section 366.26 and evaluate the applicability of the beneficial parent-child exception without information about the visits, she cannot do so. In addition to the lack of objection and the fact any lack of information about visits in the report was cured by the social workers testimony on the subject, the burden was mothers to produce evidence to satisfy the exception. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) Therefore, we do not address the merits of any argument relating to the adequacy of reports received into evidence.

a.      The Court Employed the Correct Legal Standard in Assessing the Existence of a Beneficial Parent-Child Relationship.

Mother argues the court erred in the standard it used to evaluate the applicability of the beneficial parent-child exception to adoptability. ( 366.26, subd.(c)(1)(B)(i).) Mother asserts [t]he court appears to have assumed that a parent who does not have care and custody of her children and who does not address[] all the needs of a child can be nothing more than a visitor in the context of the (c)(1)(B)(i) exception. Mother asserts that the juvenile courts remarks reflect that it erroneously concluded that mothers failure to address all the needs of the children because they remained out of her custody and control inescapably led to the conclusion that she was merely a visitor and biological mother to them. Mothers assumption is not supported by the record.

The court made several findings after reviewing all the reports and hearing the testimony of the social worker and the mother regarding the frequency and quality of the visits, and the nature of the relationship between mother and the children. The statement attributed to the court was but one of several findings it made prior to concluding that termination of parental rights would not be detrimental to the children. The statement referred to by mother was taken out of context and does not show the trial court used the wrong standard in evaluating the nature or quality of the parent-child relationship. In reality, mother is challenging the sufficiency of the evidence to support the courts findings.

b.      There Is Substantial Evidence to Support the Trial Courts Finding that Termination of Parental Rights Would Not Be Detrimental.

In a separate argument, mother argues the record does not support the courts finding that termination of parental rights would not be detrimental, in light of the evidence of a beneficial parent-child relationship.

Section 366.26, subdivision (c)(1), provides that if the court determines, based on the [adoption] assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless one of several statutory exceptions applies. One such exception applies when the court finds a compelling reason for determining that termination would be detrimental to the child because 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)(i).)

In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, the reviewing court held that the exception created by the predecessor to the current section 366.26, subdivision (c)(1)(B)(i) applied only when the relationship with a natural parent 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. Subsequently, the reviewing court in In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, agreed with Autumn H., and added that a parents frequent and loving contact with the child was not enough to sustain a finding that the exception would apply, when the parents had not occupied a parental role in relation to them at any time during their lives.

The parental role language has spawned many decisions from appeals where parents argued that the holdings of Autumn H. and Beatrice M. placed the bar too high. However, decisional law continues to evolve. It is now accepted that a strong and beneficial parent-child relationship might exist despite a lack of day-to-day contact and interaction. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) In fact, several decisions have acknowledged it is unreasonable to require the parent of a child who has been removed from parental custody to prove that the child has a primary attachment to the parent, or to show the parent and the child have maintained day-to-day contact. (In re S.B. (2008) 164 Cal.App.4th 289, 299.) As the court observed in S.B., if that were the standard, the rule would swallow the exception. (Ibid.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (In re S.B., supra, at pp. 298, 300-301.)

The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. (In re Helen W., supra, 150 Cal.App.4th at pp. 80-81.) This requires proof that either (1) continuation of the parent-child relationship will promote the well-being of the children to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents (In re Jamie R. (2001) 90 Cal.App.4th 766, 773), or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 466, citing In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) The parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (In re Angel B., supra, emphasis in original; citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) CFS is not required to produce evidence demonstrating that a minor would not benefit from continued parental contact. (Ibid.)

Here, the social worker had acknowledged the visits went well, but that they were not consistent prior to the 18-month review hearing, and there was no parent-child bond that would qualify as an exception to adoptability. As we have previously noted, various reports described mothers visits with the children as sporadic. However, even if we assume mother met the first prong of the exception by accepting that there was regular contact, the evidence to support the second prong was lacking. While mother offered her own testimony that the children were bonded to her, and her opinion was that termination would be detrimental, her testimony did not demonstrate it was a substantial positive attachment such that the children would be greatly harmed by adoption. Her opinion that termination would be detrimental was based on her view that her children should know who their mother is.

On the other hand, the evidence submitted at the hearing demonstrated the children were strongly bonded to their prospective adoptive parent, apparently asking for him during their visits with mother. The reports admitted into evidence also demonstrated mothers unwillingness to protect the children by permitting T.C. to have contact with them despite his violent tendencies. On this record, there is substantial evidence to support the trial courts finding that termination of parental rights would not be detrimental to the children.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/McKinster

J.

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

^[2] At the jurisdiction hearing, T.C. was declared the presumed father of C.M., and J.G. was declared the alleged father of T.M. Neither father has appealed. Because C.M.s father is eligible for enrollment in the Cherokee Nation of Oklahoma, an enrollment application was submitted on C.M.s behalf. The record reveals the notice requirements of the Indian Child Welfare Act were met and the declaration of a tribal expert was submitted in lieu of testimony in compliance with ICWA procedures. No ICWA issues are raised in this appeal.