In re L.H.
Filed 1/9/13 In
re L.H. CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 SEVEN
In re L.H., a
Person Coming Under the Juvenile Court Law.
B240465
(Los Angeles County)
Super. Ct. No. CK56902)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DOMONIQUE B.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court of
County. Stephen Marpet,
Juvenile Court Referee. Affirmed.
Kimberly A.
Knill, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Tracey
M. Blount, Deputy County Counsel for Plaintiff and Respondent.
_______________________
Domonique B.’s parental
rights with respect to her daughter L.H. were terminated pursuant to section
366.26 of the Welfare and Institutions Code.
the parent-child relationship exception to the statutory preference for
adoption. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
L.H. was born in 2009 while
Domonique B. was on parole and living in a drug treatment center. Domonique B. had a history of substance
abuse, syphilis, depression, bipolar disorder, and a life-threatening
illness. She had also failed to reunify
with a previous child. Although
Domonique B. had tested positive for cocaine earlier in the pregnancy, she had
three negative tests after entering her treatment program and L.H. tested
negative for cocaine at birth.
The
(DCFS) detained L.H. the week she was born.
In March 2010 the juvenile court found that L.H. was a dependent child
pursuant to section 300, subdivisions (b) and (g). Over DCFS’s objection, the court ordered that
Domonique B. receive family reunification services.
As of May 2010, Domonique B.
had been attending individual counseling,
substance abuse counseling, and parenting education, but she had missed
some group and individual sessions. She
had discussed attending Alcoholics Anonymous meetings but appeared not to have
obtained a sponsor. Domonique B. reported
attending Narcotics Anonymous and having a sponsor, but she could not provide
the address for the locations of the meetings she claimed to have
attended. All her weekly drug tests had
been negative. At the time of DCFS’s
report, Domonique B. had not visited with L.H. for four days. The baby’s caregiver, Deborah D., expected
that Domonique B. was spending time with girlfriends, attending parties, or
spending time with her boyfriend; and she reported that Domonique B. was very
immature. Although she had obtained a
low income apartment and had a job, DCFS believed Dominique B. was behind on
rent and did not have any money.
Domonique B. was in partial compliance with her court ordered programs
based on her clean tests, inconsistent attendance at program sessions, unstable
housing, and financial difficulties.
In June 2010, Domonique B.
stopped attending her court-ordered programs.
The provider attempted to contact her but she either did not return
calls or did not appear at arranged times.
The DCFS social worker had attempted to reach her several times;
Domonique B. left one return phone message but never called again. Domonique B. visited the baby several times
per week. Deborah D. described her as a
loving mother who visited regularly and for most of the day but was “a bit
scattered†due to a lack of stable housing.
Domonique B. had continued drug testing and her test results were
negative. DCFS advised the court,
“[M]other does not appear to be in full compliance with court orders. Mother is no[] longer attending her program
consistently . . . , she does not appear to be in
counseling, she does not appear to be attending A[lcoholics Anonymous] or
N[arcotics Anonymous] and she does not appear to be in drug counseling.†She was in contact with DCFS and affirmed her
willingness to comply with court orders, but DCFS found that she “has not made
the commitment to completing court orders in a timely manner.†At the August 2010 review hearing the court
found that Domonique B. “seem[ed] to be complying with the case plan†and
continued family reunification services.
In late 2010, according to
Deborah D., Domonique B. said that she no longer wanted to participate in
testing or programs and that she approved of Deborah D. adopting L.H. DCFS met with Domonique B. to inquire about
this statement. As DCFS described it,
“Mother did not deny the statement.
Mother asked if she will still receive a bus pass if she allows [Deborah
D.] to adopt minor.†Upon being advised
that the bus passes would be discontinued in that event, “Mother was quiet for
a while and then replied that she was still looking for a program and will
continue with services.â€
Domonique B. enrolled in
further services. As of February 2011,
she was participating in mental health counseling and parenting, anger
management, and domestic violence classes.
She was reported to be doing very well.
The 12-month permanency
hearing was set for February 17,
2011. L.H., now 18 months
old, remained with Deborah D. and the two were completely bonded. She was healthy and well, although her
language development appeared slow.
Domonique B. continued to visit L.H. approximately twice per week. Deborah D. reported that during visits
Domonique B. “spends her time talking about her life and lifestyle and spends
some time interacting with minor but it is usually brief.†Deborah D. was willing to adopt L.H. if
Domonique B. failed to reunify with her.
DCFS characterized Domonique B. as having been “discouraged and
without direction†in the past but that she now “appear[ed] to be motivated to
continue services and possibly complete her current program and be able to
eventually reunite with minor.†DCFS
recommended that reunification services continue in light of mother’s consistent
attendance and participation in her new program but also that it proceed with a
concurrent plan of adoption for L.H.
In April 2011, the court
held a permanency review hearing. DCFS
reported to the court prior to the hearing that Domonique B. had not undergone
drug testing in several months. When
asked why she had failed to test, Domonique B. “began to cry saying she
recently broke up with her boyfriend who left her for another woman.†She denied using drugs. Although she continued to do well in the
services she was receiving, the program in which she was participating was not
one that would permit her to complete a course and gain a certificate. DCFS had referred Domonique B. multiple times
to appropriate programs, and the service provider was also prepared to assist
in the search for a program. In light of
Domonique B.’s failure to comply with the court orders and her failure to
undergo drug testing since December 2010, DCFS recommended the termination of
reunification services. The court
terminated reunification services.
On March 20,
2012, the court took evidence and heard argument on the termination of parental
rights over L.H. Domonique B. testified
that she had visited her daughter “every day†since she had been placed with
Deborah D. Before Domonique B. started
school, visits would last “pretty much all day.†After she began school, she visited L.H.
between the hours of 5:00 and 9:00.
During visits, they played and watched television. Domonique B. would do L.H.’s hair, feed her,
and bathe her. Just the day before, they
had watched L.H.’s favorite television program, and then L.H. helped Domonique
B. clean up L.H.’s bedroom. Domonique B.
had cooked a meal and L.H. passed out plates.
L.H. helped Domonique B. get her clothes ready for her bath, and then
Domonique B. did L.H.’s hair. Domonique
B. reported that L.H. addressed her as “Mommy.â€
She claimed to be in the process of toilet-training her. The court concluded that L.H. was adoptable
and that termination of parental rights would be not be
detrimental to her under the statutorily-specified exceptions, then terminated
parental rights. Domonique B. appeals.
DISCUSSION
“At a hearing
under section 366.26, the court must select and implement a permanent plan for
a dependent child. When there is no
probability of reunification with a parent, adoption is the preferred permanent
plan. [Citation.] To implement adoption as the permanent plan,
the juvenile court must find, by clear and
convincing evidence, that the minor is likely to be adopted if parental
rights are terminated. (§ 366.26,
subd. (c)(1).) Then, in the absence of
evidence that termination of parental rights would be detrimental to the child
under statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)),
the juvenile court ‘shall terminate parental rights.’ (§ 366.26, subd. (c)(1).)†(In re
K.P. (2012) 203 Cal.App.4th 614, 620.)
Here, the juvenile court found that L.H. was adoptable, and, finding no
reason that the termination of parental rights would be detrimental to her,
terminated parental rights. Domonique B. appeals the termination, asserting that the parent-child
relationship exception to termination of parental rights was applicable
here. We review the determination
whether a beneficial parental relationship exists for substantial evidence and
the conclusion as to whether the existence of that relationship constitutes “a
compelling reason for determining that termination would be detrimental to the
child†(§ 366.26, subd. (c)(1)(B))
under the abuse of discretion standard.
(In re K.P., at
p. 622.)
“Section 366.26 provides an
exception to the general legislative preference for adoption when ‘[t]he court
finds a compelling reason for determining that termination would be detrimental
to the child’ (§ 366.26, subd. (c)(1)(B)) because ‘[t]he 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).)
The ‘benefit’ prong of the exception requires the parent to prove his or
her relationship with the child ‘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.’ [Citations.] No matter how loving and frequent the
contact, and notwithstanding the existence of an ‘emotional bond’ with the
child, ‘the parents must show that they occupy “a parental role†in the child’s
life.’ [Citations.] The relationship that gives rise to this
exception to the statutory preference for adoption ‘characteristically aris[es]
from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’ [Citation.]
Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the
court has repeatedly found the parent unable to meet the child’s needs, it is
only in an extraordinary case that preservation of the parent’s rights will
prevail over the Legislature’s preference for adoptive placement.’ [Citation.]â€
(In re K.P.,
Here, the juvenile court
found that Domonique B. had never occupied the necessary parental role with
respect to L.H.: the evidence was simply
insufficient “under the second prong to enter into a parental role.†We understand the court’s statement as an
implicit finding that some parent-child relationship existed here—that is, that
Domonique B. maintained regular visitation and contact with L.H. This factual conclusion is supported by the
frequent visitation by Domonique B., the evidence that she performed typical
parenting tasks during visits, and the evidence that L.H. knew Domonique B. as
her mother and had positive interactions with her.
We construe the juvenile
court’s comments about the evidence being insufficient to demonstrate a
parental role within the meaning of the second prong of the parental
relationship exception as a conclusion that the bond between L.H. and Domonique
B. was qualitatively insufficient to constitute a compelling reason for
determining that termination of Domonique B.’s parental rights would be
detrimental to L.H. We review this determination
for an abuse of discretion and find none.
L.H. had been
removed from Domonique B.’s custody when she was less than one week old, and
she had never resided with her mother after the first few days of her
life. Domonique B. had never progressed
beyond monitored visitation over the more than two years that the case had been
pending. Domonique B. visited regularly
and helped with the child’s care during visits:
she fed L.H., bathed her, combed her hair, and watched television with
her for play. DCFS had observed some
visits and found that “mother did not spend much time interacting with the
minor,†and that L.H. played on the carpet by herself or was held by Deborah
D. This assessment was consistent with
Deborah D.’s report that Dominique B. tended to use her visitation time to talk
about her life and lifestyle and to visit with L.H. only briefly. The record contained some evidence of an
emotional bond: Deborah D. had reported
to DCFS that Domonique B. and L.H. appeared to be bonded, and Domonique B.
testified that L.H. called her “Mommy.â€
There was, however, little or no evidence of Dominique B. occupying a
parental role with respect to L.H. rather than being a frequent friendly
visitor. While
the visits between L.H. and her mother may have been pleasant for both parties,
there was no evidence that termination of the parent-child relationship would
be detrimental to L.H. or that the relationship conferred benefits to L.H. more
significant than the permanency and stability offered by adoption. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575 [exception applies only if the
severance of the parent-child relationship would “deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmedâ€].) We cannot say that the
juvenile court abused its discretion when it concluded that any detrimental
impact from severance of L.H.’s relationship with her mother was outweighed by
the benefits to her that would come from adoption.
DISPOSITION
The judgment
is affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J.
SEGAL, J.
name="_ftn1" title="">[1]
to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
