In re L.V.

Filed 2/20/08 In re L.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

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

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.

A.C., mother, appeals from a juvenile court judgment terminating her parental rights respecting her five-year-old son, L.V.^[1] She contends the lower court erred in finding there was no beneficial parent-child relationship sufficient to overcome a finding that L.V. was adoptable. We affirm.

1. Background

This family has been involved with the juvenile court since 2003. The two children, M.H. and L.V. were removed from mothers custody in 2003 and placed in foster care after mother was arrested for possession of a controlled substance. A petition alleging neglect was sustained, reunification services ordered, and mother successfully regained custody of the children. That case was closed in February 2005. The two children were removed a second time on July 31, 2005, when M.H. was found wandering the streets unsupervised, wearing only her underwear. When a social worker went to mothers residence to investigate, mother became combative, had to be restrained, and was eventually referred to mental health facilities for observation and evaluation. (Welf. & Inst. Code, 5150.^[2]) A new petition was filed alleging neglect ( 300, subd. (b)), no parent willing or able to care for the children ( 300, subd. (g)), and abuse or neglect of a sibling ( 300, subd.(j)^[3]).

The children were detained in foster care pending a jurisdictional hearing on the petition. On September 20, 2005, L.V. was detained with mother. Subsequently, at the jurisdiction hearing, mother submitted on the petition with certain amendments. The court made true findings on the allegations on which mother submitted, alleging neglect and no parent willing or able to care for the children. ( 300, subds. (b), (g).)

At the time of the six-month-status review, the social worker reported that mother had made progress with certain components of her case plan, attended therapy, was employed, was consistent and appropriate during visits with M.H., and was doing well with L.V. in the home. On May 23, 2006, at the six-month-review hearing, the court continued L.V. in mothers custody under a family maintenance plan, and placed M.H. with mother.

However, on August 2, 2006, the Department of Childrens Services (DCS) filed a supplemental petition alleging that the prior disposition had been ineffective in alleviating the causes of the dependency ( 387), and a subsequent petition alleging a new incident of neglect. ( 342.) The new neglect related to an unannounced visit, at which the social worker found the children being supervised by persons suspected of doing drugs in mothers residence while mother was out taking a break from M.H.s behavioral problems. When contacted by the social worker, mothers breath smelled of alcohol. Mother blamed M.H. for the removal of the children. L.V. was placed in a foster home; M.H. was subsequently placed in a group home because her tantrums proved to be more than the foster parents could manage.

On October 12, 2006, the court made a true finding on the allegation that the prior disposition had been ineffective ( 387), and also made a true finding on the neglect allegation of the subsequent petition. ( 342.) The court ruled that the previously ordered reunification plan would remain in effect, directed mother to comply with the plan, and found there was a probability the children could be returned. A new component of conjoint counseling was added to the case plan.

On January 22, 2007, the 18-month-status review report was submitted. The social worker recommended termination of reunification services, and an order setting a hearing to select and implement a permanent plan of adoption for L.V. The report noted that M.H. was in a group home and was receiving medication for her behavior problems. L.V. had been placed in the home of a paternal aunt. Mother was homeless and depressed, staying with a friend in Crestline and working with him chopping wood. A psychological evaluation of mother revealed she had the potential for parenting but her current emotional functioning was impacting that ability. The opinion was that mother may not be able to meet M.H.s needs, but that she was capable of parenting L.V.

However, mother had not attended her anger management sessions regularly and appeared to be under the influence of some substance at the sessions she did attend. She also showed up for visits appearing disheveled, at times with hickeys on her neck. She sometimes cried during visits and talked about giving up. The report also noted that while L.V. appeared to be controlling mother with his behavior at visits, his attachment to her was obvious. He cried at the end of visits and wanted to go with her.

The 18-month hearing was eventually held on February 15, 2007. The court followed the social workers recommendations, found mother had failed to participate regularly in the court-ordered treatment plan, made only minimal progress in her plan, and it was unlikely the children would be returned to her care within six months. Services were therefore terminated and a permanency planning hearing was ordered for L.V. The court found M.H. was not adoptable and ordered long-term foster care under a permanency planning program for her.

The report filed on May 4, 2007, prepared for the selection and implementation hearing expressed the opinion that L.V. was adoptable due to his age and the caretakers willingness to adopt. Nevertheless, the social worker acknowledged he missed his mother and wanted to live with her if he could. The worker observed an attachment to the foster mother was developing and the caretakers other children were happy about L.V. being adopted into the family. The report also noted that L.V. visited with his sister, M.H., but would behave aggressively when he would return home.

M.H. objected to the adoption of her brother prior to the selection and implementation hearing. In response, the social worker filed an addendum to the report on L.V.s adoptability, expressing the view that maintaining the sibling relationship was not in L.V.s interest because M.H. was aggressive toward him and tries to hurt him. The social worker described the sibling bond was not strong enough to prevent him from having the permanency of adoption. Another addendum to the permanency planning hearing report, filed on June 1, 2007, revealed L.V. appeared to be in mental distress at times, speaks of mean things his sister has done to him, and that he behaved aggressively after visits with his sister.

However, the report also referred to the undeniably strong attachment L.V. has to his mother, and that since mother had stopped visiting, separation was not easy for him. Mother had visited consistently and appropriately until February 20, 2007, when she stopped visiting, explaining that she lacked means to travel from Crestline to San Bernardino after services had been terminated. Up to the point when she stopped visiting, the caretaker had difficulty getting L.V. to leave. For a time he would cry for his mother, but after several missed visits, he did not seem so bothered and he did not request a visit. After the visits stopped, he became more connected with his adoptive family and did not act out as much.

On July 23, 2007, the hearing on the selection and implementation of a permanent plan for L.V. was conducted. After reviewing the reports, and hearing the testimony of the social worker and mother, the court found L.V. was adoptable by clear and convincing evidence, and that any bond with mother was outweighed by his need for permanency. The court terminated mothers parental rights. Mother appealed.

On appeal, mother contends the juvenile court abused its discretion by failing to invoke the beneficial parent-child relationship exception to the termination of parental rights. We construe this to be a challenge to the sufficiency of evidence to support the courts finding that the beneficial parent-child exception to adoptability was not proven. We affirm.

2. Discussion

Mother argues the evidence demonstrated that L.V. was bonded to her to such a degree that the maintenance of the bond outweighed the benefits of adoption, and that the juvenile court erroneously failed to invoke the beneficial parent-child exception to the termination of her parental rights. ( 366.26, subd. (c)(1)(A).) We disagree.

Because the contention challenges an evidentiary finding that there was no exception to a finding of adoptability, we apply the substantial evidence standard of review. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not reevaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

We begin by saying that a juvenile court is not required to invoke an exception to the legislatively preferred permanent plan of adoption, as suggested by mother. Section 366.26 provides that if the court determines by clear and convincing evidence that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. ( 366.26, subd. (c)(1).) To overcome the preference for adoption and to avoid termination of parental rights, it is the parent who has the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

This requires the parent to prove 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, 97 Cal.App.4th at p. 466.) The DCS is not required to prove the exception does not exist (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1333), nor is the court required to invoke it on its own.

In order to establish the exception to adoptability, the parent must demonstrate (1) the parent maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) A parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) The relationship between the parent and the child must be one that promotes his well-being to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1207.) In deciding whether the exception applies, the juvenile court must balance the strength and quality of the natural parent-child relationship against the security and sense of belonging a new family would offer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In the present case, the mother had regular visits until February 2007, when she moved in with a friend in Crestline. She did not visit for the next five months, claiming that lack of transportation prevented her from visiting L.V. in San Bernardino. The court found this was not a satisfactory explanation for the lack of visitation, and we agree. Whether or not she was unable to obtain transportation, her move to Crestline was a volitional choice on mothers part and she did not object in court, or make a request of the court for authorization for funding to cover transportation. Additionally, she did not present evidence showing she was forced to reside a great distance away and did not explain what efforts she had made to visit during the critical last few months. She did not maintain any visitation during the last six months, so she did not establish regular visitation, the first prong of the exception, by a preponderance of evidence.

Nor did she establish the second prong of the exception insofar as there was no evidence presented to show that the parent-child relationship promoted 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 adoptive parents. To the contrary, during the period in which she did not visit, L.V.s attachment to her was weakened substantially, and by the time of the hearing, there was no evidence that severing the relationship would be detrimental to L.V.

While the record shows that prior to February 2007 L.V. was strongly attached to mother, her absence during the last five months preceding the selection and implementation hearing lessened the attachment to such a degree that he no longer seemed upset at not being able to visit with her and became more connected to his adoptive family. Mothers instability, which characterized all aspects of her life, also negated a finding that maintaining the parent-child relationship promoted L.V.s welfare to such a degree as to outweigh the benefits of adoption. Although mother testified to the strength of the bond that existed before she stopped visiting, she did not establish compelling reason for determining that termination would be detrimental to the child ( 366.26, subd. (c)(1)(B)), in light of the evidence of the benefit L.V. would derive from adoption as established by the evidence.

Therefore, there was substantial evidence to support the juvenile courts findings and judgment that L.V. was adoptable.

3. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/Richli

J.

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^[1] Mother has a daughter, M.H., who is a few years older than L.V. M.H. was determined to be unadoptable due to her emotional and behavior problems and a permanent planning program was implemented for her at the 18-month-status review hearing. This appeal only involves L.V.

^[2] All further references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] The specific factual allegation was that the children . . . were previously adjudicated under WIC 300B, however, we treat this language as surplusage since it is not a ground for determining if a child is a person described by section 300.