In re D.G.

















Filed 10/22/12 In re D.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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






>

In re D.G., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.G., Defendant and Appellant.	E055852 (Super.Ct.No. RIJ119739) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Jacqueline
Jackson, Judge. Affirmed.

Grace
Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela
J. Walls, County Counsel,
and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

E.G. (Mother) appeals from an order
terminating her parental rights concerning her child, D.G., pursuant to Welfare
and Institutions Code section 366.26.href="#_ftn1" name="_ftnref1" title="">^[1] She contends the trial court erred in denying
her section 388 petition and then failing to apply the beneficial parental
relationship exception to adoption. We
affirm the order.

I. PROCEDURAL BACKGROUND AND FACTS

D.G.
was born prematurely in April 2010. Both
Mother and D.G. tested positive for amphetamines, and the hospital contacted href="http://www.fearnotlaw.com/">Riverside County Department of Public Social
Services (the Department). The child
spent his first few weeks in the neonatal intensive care unit. On May 6, Mother was arrested for
probation violations for drug use, not reporting her address, and associating
with other probationers. D.G. was taken
into protective custody, and the Department filed a href="http://www.mcmillanlaw.com/">juvenile dependency petition pursuant to
section 300, subdivisions (b) (failure to protect) and (g) (no provision for
support), alleging that Mother had an unresolved history of abusing controlled
substances, had used methamphetamine while pregnant with D.G., had not
benefitted from a prior substance abuse treatment program, and had a history of
domestic violence with her current boyfriend.
Following the detention hearing
on May 11 and May 12, the court found that a prima facie showing had
been made for detaining D.G. out of the home, and a jurisdictional hearing was
set. The court authorized supervised
visitation between the child and Mother.

In
the report prepared for the jurisdiction/disposition hearing, it was noted that
Mother had another son who was under the legal guardianship of his paternal
grandmother and living with his father.
She had also given birth to a child in 2007; however, the baby died when
it was 11 hours old. Mother admitted
using methamphetamine at that time. She
began smoking methamphetamine at age 21 and had last used it on May 2 or May 3, 2010. Mother had a criminal history that included
convictions for theft and burglary. She
and the father had a history of domestic violence and physical altercations.href="#_ftn2" name="_ftnref2" title="">^[2] When the social worker visited Mother in
jail, she expressed concern about D.G.’s health and well-being, and she asked
for pictures of him and updates. She did
not want the child transported to jail for visitation.

Mother
was primarily raised by her paternal grandmother because Mother’s mother
suffered from bipolar disorder and abused prescription medication, while her
stepfather used heroin and alcohol.
Mother graduated from high school, attended one semester of college, and
obtained a certificate in sales and merchandising. Her last job was in 2008, working through a
temp agency.

On
June 15, 2010, an amended
petition was filed adding an allegation that Mother was not a member of the
child’s household and had failed to make herself available to provide D.G. with
adequate food, clothing, shelter, medical treatment, and protection. The addendum report filed on June 29
noted that Mother had a no-contact visit with the child on June 15. She was unable to hold and/or touch the child
because she was in custody and would remain incarcerated until November or
December 2010.

At
the July 6, 2010,
jurisdiction/disposition hearing, the court found the allegations in the
amended petition to be true by a preponderance of the evidence. D.G. remained placed outside the home, and
the court ordered reunification services and that prior visitation orders were
to remain in full force and effect. The
court also authorized Mother to reside with the caretakers upon her release
from custody.

The
status review report prepared for the six-month review hearing was filed on December 22, 2010. The social worker recommended six additional
months of services and unsupervised visitation between Mother and D.G. Mother had been released from custody on November 27, 2010. D.G. had been living with his paternal
grandparents since July 22, 2010,
where he was described as “thriving.”
Mother was staying on the grandparent’s property, where she was able to
have daily visits with her child. While
incarcerated, Mother maintained contact with the Department and participated in
all services available. Although she had
made some progress on her plan, the social worker opined that she “would
benefit from six additional months” of services. On February 6,
2011, at the six-month review hearing, the trial court followed the
recommendations of the Department, including authorizing unsupervised
visitation between Mother and the child.

The
12-month review report was filed on July 26,
2011. The social worker
recommended termination of reunification services and that a section 366.26
hearing be set to implement the permanent plan of adoption by the paternal
grandparents. Mother was renting a room
in an apartment, was unemployed, and was involved with a male friend who she
reported “would not pass a criminal background check.” Mother’s progress on her case plan had
deteriorated to the point where she was “no longer participating in any case
plan services.” She relapsed, using
methamphetamine in April 2011, and tested positive several times for both
marijuana and methamphetamine. On
June 14, Mother was warned that if she left her inpatient program, she
would have very little chance of reunifying with her child. Despite this warning, Mother left the program
on that same day and moved in with her boyfriend. She explained that she “feels she has too
much to do and is simply unable to care for her son at this time and complete
the courses.” She was agreeable to
allowing the paternal grandparents to have temporary guardianship while she
would retain visitation rights. She was
opposed to D.G. being placed for adoption.

Following
Mother’s relapse, visitation was changed to supervised visits only, once a week
for one hour. Mother “was bonding very
little with her child,” who was described as being “very bonded” to his
paternal grandparents. He would reach
for them instead of Mother and was “so bonded with [them] that he often crie[d]
when others h[e]ld him . . . .” The grandparents have been referred to begin
the adoption process.

In
the addendum report prepared for the 12-month review hearing, the social worker
reported there was no change in the recommendation. On August 17, 2011, Mother informed the
social worker that she did not want her son living with her right now and she
needed two or three years and then would “‘probably be ready to have
him.’” However, on September 13,
Mother said, “‘I do not want reunification.
I do not want adoption and I’ll fight that if I have to but I do not
want reunification. I don’t want my son
living where I am living right now and I know he has his bedroom and all his
stuff already where he is.’” Mother was
noncompliant with her case plan but wanted more visitation.

On
September 27, 2011, at the 12-month review hearing, the trial court terminated
Mother’s reunification services and set a contested section 366.26 hearing.

On
December 16, 2011, Mother filed a section 388 petition requesting the court to
vacate the section 366.26 hearing, reinstate reunification services, and
increase visitation. The court granted a
hearing on Mother’s petition.

The
report prepared for the section 366.26 hearing noted that following Mother’s
relapse she was incarcerated and not released until October 2011. Upon her release, she entered a 30-day drug
program, which she completed on December 8, 2011, and was currently
residing in the aftercare program.
However, she had not yet addressed the issues of domestic violence and
her continued unstable housing. The
child was being cared for “in a manner which exceeds the Department’s
expectations.” He was very bonded with
the paternal grandparents, who were providing him with learning toys and
opportunities. Mother was visiting D.G.
every week for two hours; however, D.G. was “often irritated when the mother
tries to assume the parental role.” The
social worker described the interaction between Mother and D.G. as sufficient,
but when D.G. wanted his needs met, he sought out the grandparents. If parental rights are terminated, the
grandparents would be willing to continue visitation once a month for two hours
with supervision.

On
January 18, 2012, an addendum report was filed, which included the Adoption
Assessment report. A second addendum
report was filed on January 31, 2012, in response to the trial court’s
inquiry as to whether reunification services should be reinstated for
Mother. The Department noted that Mother
had received 12 months of services; however, she “failed to realize the
detriment of substance abuse to herself and her child.” Despite two prior enrollments in parenting
courses, Mother had only recently completed such course while in the MFI
residential inpatient program. Mother
did complete a domestic violence program in January 2011. Mother’s initial participation in individual
counseling was terminated when she was caught falsifying a urine substance
abuse test. She is once again receiving
individual counseling through the MFI Recovery program. Regarding Mother’s substance abuse, she
relapsed in spring 2011 and then entered the MFI residential inpatient program
in October 2011, which she completed in December. She has not disclosed any drug testing
results, and she took the social worker off the release of information at the
MFI Recovery program as of January 8, 2012. Mother planned to have D.G. live with her at
the sober living home while she attended the MFI day aftercare program and went
to school. The social worker described
Mother’s progress as “recent” and described Mother as “new to recovery and continues
to have unstable housing.” Mother
planned to have the paternal grandparents care for D.G. during the day while
she continued to work on her recovery and attend school. D.G. had not lived with Mother since he was
born. He had spent 18 of his 21 months
living with the paternal grandparents, and they were very bonded. According to the social worker, Mother “has
not demonstrated the capacity to safely care for [D.G.], as she has waited to
the very point of termination of parental rights to address the issues which
brought her before the Court.”

On
March 6, 2012, the trial court denied Mother’s section 388 petition on the
grounds there was no change in circumstances.
The court then proceeded to the section 366.26 hearing, where it found
that adoption was in the child’s best interest and none of the statutory
exceptions to termination of parental rights applied. The court terminated Mother’s parental
rights.

II. BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION

At
a section 366.26 hearing, the court determines a permanent plan of care for a dependent
child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by
the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “Once the court determines the child is
likely to be adopted, the burden shifts to the parent to show that termination
of parental rights would be detrimental to the child under one of the
exceptions listed in section 366.26, subdivision (c)(1). [Citations.]”
(In re S.B. (2008) 164
Cal.App.4th 289, 297.)

The
parental benefit exception is set forth in section 366.26, subdivision
(c)(1)(B)(i). (In re S.B., supra, 164
Cal.App.4th at p. 297.) The exception
applies when two conditions are satisfied:
(1) “the parent has maintained regular visitation and contact with the
child,” and (2) “the child would benefit from continuing the
relationship.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see
§ 366.26, subd. (c)(1)(B)(i).)
Regarding the first condition, Mother claims she maintained regular
visitation and contact with D.G. The Department
concedes that Mother met this prong of the exception. Thus, we turn to the second condition.

Mother
bears the burden of showing that her relationship with D.G. “‘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. . . . 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.’ [Citation.] [¶]
The parent must do more than demonstrate ‘frequent and loving
contact[,]’ [citation] an emotional bond with the child, or that parent and
child find their visits pleasant.
[Citation.] Instead, the parent
must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]”
(In re Derek W. (1999) 73
Cal.App.4th 823, 826, 827.)

“‘The
balancing of competing considerations must be performed on a case-by-case basis
and take into account many variables, including the age of the child, the
portion of the child’s life spent in the parent’s custody, the “positive” or
“negative” effect of interaction between parent and child, and the child’s particular
needs. [Citation.] When the benefits from a stable and permanent
home provided by adoption outweigh the benefits from a continued parent/child
relationship, the court should order adoption.’
[Citation.]” (>In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1349-1350.)

There
must be a “‘compelling reason’” for applying the parental benefit
exception. (In re Jasmine D., supra,
78 Cal.App.4th at p. 1349; see also § 366.26, subd. (c)(1)(B).) This is a “quintessentially discretionary
determination.” (In re Jasmine D., supra,
at p. 1351.) Broad deference must be
shown to the juvenile’s court’s discretionary determination, and this court
will interfere only if, under all the evidence presented, viewed in the light
most favorable to the juvenile court’s determination, we conclude no judge
could reasonably have made the determination.
(Ibid.)

Here,
Mother’s argument that she established the applicability of the parental
benefit exception to adoption is based essentially on the following: D.G. had “spent nearly his entire life placed
with his paternal grandparents, where Mother lived too, until she moved out
around [D.G.’s] first birthday”; Mother and child had positive interactions and
Mother was always appropriate during visitation, addressing D.G.’s needs; while
incarcerated, Mother continued to stay informed about D.G.’s development,
asking the Department for pictures and updates; and she, like the paternal
grandparents, has been a consistent adult in his life.

In
response, the Department points out that Mother failed to introduce any
evidence showing that D.G. would benefit from continuing the relationship or
that he would be greatly harmed by termination of parental rights. While Mother claims to have lived with D.G.
for most of his life, she forgets that she was incarcerated from shortly after
his birth until November 27, 2010.
She then lived on the grandparents’ property until June 13, 2011,
when she entered the Gibson House inpatient program for 24 hours, then moving
in with her boyfriend. Mother was later
incarcerated, and in October 2011 she entered an inpatient drug program. Thus, Mother did not live with D.G. for most
of his life. When she did live on the
grandparents’ property, she rarely visited with her child because she was
always gone. She did not wake up until
10:00 a.m. to take care of him, and she did not assist the grandparents in his
care.

According
to the Department, Mother had a “lax attitude” towards her relationship with
D.G., as demonstrated by her relapse in drug use, her failure to remain in an
inpatient drug program in June 2011, her decision to live with her male friend
who would not pass background checks, her decision to remain unemployed, and
her diminishing performance in completing her case plan. It was only on the eve of the section 366.26
hearing that Mother rushed to get her life together; however, even then she
recognized that she was unable to care for D.G. full time and thus wanted the
court to grant legal guardianship to the paternal grandparents. Mother admitted the lack of a parental
relationship when she testified, “I do want to work on . . . him
getting closer with me . . . .”

While
Mother wanted to put off establishing a parental relationship with D.G. for a
few years, D.G. was forming a close bond with the paternal grandparents, who
provided a comfortable and secure home where his needs were being met. Although Mother’s visits with D.G. went well,
they did not show the existence of a substantial positive attachment between
the two. Given the record before this
court, the juvenile court did not err in finding that Mother failed to show
that D.G. would benefit from continuing the relationship.



III. DISPOSITION

The order terminating parental
rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS





HOLLENHORST

Acting P. J.

We concur:



KING

J.



MILLER

J.