In re Aurora C.

Filed 7/18/07 In re Aurora C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County.

Emily A. Stevens, Judge. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Tracey F. Dodds, Principal Deputy County Counsel; and Patrick D. Goodman, for Plaintiff and Respondent.

_________________________

Janet M. (mother) is the mother of Aurora C. (Aurora), Jose C. (Jose), and Jesus M. (Jesus) (collectively the minors). Mother appeals the juvenile courts order terminating her parental rights to the minors. She claims that the trial court erred when it failed to find that she maintained regular visitation and contact with the minors and that they would benefit from continuing the relationship. In her view, the exception to adoption set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A)[1] was applicable.[2]

We find no error and affirm.

FACTS

Background

In early 2004, officers from the South Gate Police Department found mother passed out in her living room. She had been sniffing hairspray to cope with depression. Aurora, who was five years old, and Jose, who was five months old, were unsupervised. Subsequently, mother was reported by witnesses for hitting Aurora while under the influence of drugs, and for locking Aurora out of their home for four hours. Mother eventually signed a voluntary family maintenance contract to participate in random drug testing and receive substance abuse treatment. But she did not enroll in a treatment program, and she failed to appear for six of her random drug tests. On May 10, 2004, the Department of Children and Family Services (Department) detained Aurora and Jose due to mothers general neglect and placed them with their maternal grandmother (grandmother). Mother maintained almost daily contact with Aurora and Jose and exhibited appropriate behavior.

On June 3, 2004, Aurora and Jose were declared dependents. In the next six months mother visited Aurora and Jose once a week and they enjoyed the visits. However, mother did not comply with the juvenile court orders to participate in parent education, drug rehabilitation, random drug testing and individual counseling.

Jesus was born in December 2004. While at the hospital, mother reported that she was homeless and had no where to go. She stated that she had smoked crystal methamphetamine on a regular basis during her pregnancy but had stopped using just prior to October. Jesus was immediately detained after his birth and placed with grandmother. Subsequently, on January 10, 2005, he was declared a dependent of the juvenile court.

Grandmother did not adequately care for the minors or supervise them. For example, she let them sleep with mother at night and let mother take care of them on weekends. When grandmother traveled to Mexico on April 27, 2005, she left the minors in mothers care. Just the week before, mother had tested positive for amphetamine and methamphetamine. By this time Aurora seemed to have taken on the role of a parent to her younger brothers. She worried about Jesuss feeding time, and she tried to keep Jose from misbehaving. Aurora reported that she was the one who told mother when Jose needed to eat.

The Department detained the minors and placed them with Maria G. (foster mother). Even though grandmother was granted unmonitored visitations, she only saw the minors when she accompanied mother on Sundays for two hour monitored visits at McDonalds.[3] When mother visited, she brought male companions and friends. According to foster mother, mother behaved inappropriately during phone calls with Aurora. For example, mother discussed adult topics, such as informing Aurora that her boyfriend went back to his wife but that mother had a new boyfriend.

Mother was terminated from Southern California Alcohol and Drug Program for continuing to test positive and failing to test. The Department was ordered to help mother enroll in a residential treatment program. However, she tested positive for amphetamines and methamphetamines on July 8, 2005, and she did not show up for her drug test on July 20, 2005.

On August 2, 2005, the juvenile court found that mother was not in compliance with the case plan and terminated family reunification services as to Jesus. During the ensuing four months, mother visited the minors on an inconsistent basis. According to foster mother, mother was always late to her visits or, without notice, failed to show up.

In the meantime, the minors were developing appropriately. Foster mother met the minors individual needs, and they appeared happy and stable. Aurora started calling foster mother mami. Foster mother informed the Department that she was attached to the minors and wanted to adopt them.

The Department recommended adoption.

Aurora and Joses 18-month review

At the section 366.22 hearing to determine whether Aurora and Jose should be returned to mothers custody, mother was called to the stand. She was living at Amigas Sober Living, but had only recently moved in. Before that she lived in Latinas but had to leave because she was pregnant. Her last visit with the minors was two weeks prior, on December 4, 2005. But before that, she indicated that she had not gone. When asked why, she responded: Because I just got into the place where I am now on Sunday. Even though she was ordered to attend a parenting program in 2004, she did not complete it. Nor did she complete individual counseling or drug counseling.

The assigned social worker was also called to the stand. She recommended that the minors not be returned to mother because she has been in and out of programs. And shell remain clean for a while and then shell start testing dirty. Shell get clean again and then start testing dirty again. She has not complied with the court orders. Even though Amigas Sober Living would permit mother to have the minors, the social worker opined that the minors should not live there because, in her view, mother was not capable of caring for them.

After argument from counsel, the juvenile court stated that there is no substantial probability that the [minors] could be returned to the mother within any time in the near future. And we are at the 18-month date. I have no grounds on which to use my discretion to extend beyond the 18-month date. [] The mother hasnt completed a program. She hasnt drug tested on a regular, continued, sustained basis. Shes had several relapses. She hasnt completed the parenting or the individual counseling. [] So, there is a substantial risk of harm if the [minors] were returned. For these reasons . . . I am terminating reunification services.

Mothers section 388 petition

Mother filed a section 388 petition seeking further reunification services as to each of the minors.

The Department submitted a report in opposition. It stated that there was no change of circumstances because mother did not complete a drug treatment program. Further, it argued that the proposed change was not in the minors best interests because it would delay the selection of a permanent home. Moreover, in the Departments view, it would be detrimental to disrupt the minors bond with foster mother. They had been out of mothers care for 25 months. The minors looked to foster mother for comfort, instruction, permission and guidance, and it was clear that foster mother was their parental figure.

In an addendum report, it was disclosed that mother had been arrested on June 5, 2005, for causing a child to suffer pain or injury in violation of Penal Code section 273a(a), and she had been ordered her to enroll in a 12-month parenting program and complete 80 hours of community service. Further, it was reported that mother sometimes made inappropriate statements to the minors, such as asking them how many grandchildren they were going to give her and telling the youngest child, David [M,] Your private is bigger than your fathers.[4] Mother was a no show for her May 1, 2006 drug test. Her next four tests were clean. Still, she was inconsistent with her treatment. Mother missed an appointment with the assigned social worker at a residential treatment program, saying she got lost. In the social workers view, mother gave too many excuses for missing classes in her program. Subsequently, mother asked for time off the case plan in order to do the community service that she had been ordered to complete in the criminal case. The social worker gave mother 30 days to complete community service, but she never did. On July 13, 2006, the social worker asked mother if she set up an appointment at Martin Luther King (Claude H. Hawkins Mental Health Center) for a court-ordered mental health evaluation. Mother said that she had not because she was busy with community service.

The section 388 petition was denied. The juvenile court stated that mothers petition was not supported by the facts, and it did not appear that she had resolved her noncompliance with the case plan. The juvenile court found that a change was not in the minors best interests.

The section 366.26 hearing

For the section 366.26 hearing, the Department reported that, according to foster mother, mother was not very affectionate with Jose and Jesus and spent the majority of visits with Aurora. Also, mother reportedly stated that she had hated Jesus and was just barely starting to feel something for him. She felt a stronger attachment to Aurora because, unlike with Jose and Jesus, she spent time with Aurora when Aurora was a baby. Mother continued to occasionally miss Sunday visits at McDonalds without calling to cancel.

Mother was called as a witness. She testified that had attended visits with the minors every Friday. The visits lasted two hours, and they were monitored by foster mother. When asked what she did during the visits, mother responded: I talk to the little girl. Mother played a recording of Aurora saying that she loved mother and wanted to live with her. In response to a question about her relationship with Aurora, mother stated: I get along well with her. I need her very much right now. I miss her a lot. Mother added: [Aurora] has told me that she forgives me every harm that I did. And that she wants to be with the family. According to mother, Aurora hugs and kisses her at the beginning of visits and says that she wants to be together. Jose also hugs and kisses mother. Mother was asked if she tells the minors about her family and she replied, Yes. I tell themYes, I tell the little girl a lot about their family, that they love them very much. On cross-examination, mother indicated that she calls the minors Monday, Wednesday, Friday and Sunday. When asked if she is able to talk to the minors, mother stated: The ones that speaks [sic] the most is Aldo, Rita and Jose.[5]

The assigned social worker testified that, generally speaking, mother visited the minors once a week, and also called them. In private conversations, Aurora told the social worker that mother was not doing what was necessary for the minors to be returned home. Still, Aurora told the social worker that she wanted to go home with mother.

On cross-examination, the social worker indicated that Aurora calls foster mother mommy. Aurora changed her mind about where she wanted to be and said she wanted to be adopted by foster mother. The social worker asked Aurora why she changed her mind and Aurora responded that she remembered seeing mother sniffing aerosol and doing other bad things. As reported to the social worker by the foster mother, sometimes Aurora would not go to the phone when mother called because Aurora was busy with work or play.

Mothers parental rights were terminated.

In ruling, the juvenile court noted that Jesus never lived with mother. Continuing on in that vein, it stated: When the case came into the system for Aurora, she was five. And Jose was five months. So, he would have no recollection of ever having lived with [mother]. Only Aurora would have a recollection of living with [mother]. And her recollection is negative, according to what she told the social worker in, I believe it was July. She remembers bad things. After giving mothers case progress and relationship with the minors a critical assessment, the juvenile court summed up thusly: So Im finding that there is no [section 366.26, subdivision (c)(1)(A)] exception for the reasons Ive stated. While [mother] is having regular visitation, it does not amount to the type of visits that would cause me to find [an] . . . exception[,] and even if [it] did, in this case, on balance, [the minors] are better off in a loving, permanent, stable, long range, longterm placement.

This appeal followed.[6]

STANDARD OF REVIEW

We review the juvenile courts refusal to apply the section 366.26, subdivision (c)(1)(A) exception for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; compare with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion standard but noting that the practical differences between the two standards of review are not significant].) Accordingly, we consider the evidence in the light most favorable to the courts order, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) Where there is substantial evidence to support the order, we must affirm. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

DISCUSSION

Mother contends: (1) The trial court should have applied the contact and benefit exception because she maintained regular contact with the minors through weekly monitored visits, and they were bonded with her. (2) In particular, the exception must be applied to Aurora. We note that mothers arguments do not integrate the standard of review, a point which illustrates that her appeal, though heartfelt, is an emotional rather than legal plea for intervention.

1. The contact and benefit exception.

A finding that the court has removed children from the custody of a parent and has terminated reunification services shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the children because the parent has maintained regular visitation and contact with the children and the children would benefit from continuing the relationship. ( 366.26, subd. (c)(1).)

The exception only applies where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In other words, there must be a showing that the relationship 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. (Ibid.) The juvenile court must balance the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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 parents rights are not terminated. (Ibid.) Incidental benefit to a child is insufficient to trigger the exception. (Ibid.) Indeed, a parent must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parent[] and child find their visits pleasant. [Citation.] Rather, the parent[] must show that [she] occup[ies] a parental role in the childs life. [Citation.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 11081109.)

A significant parent/child attachment results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The exception is examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (Id. at p. 576.)

2. Termination of parental rights was supported by substantial evidence.

Mother attempts to reargue the merits of whether the contact and benefit exception applies. In so doing, she sidesteps her appellate task, which was a weighty one. That task was to demonstrate that the juvenile courts order was not supported by substantial evidence. To accomplish this, she had to impress upon us that the evidence and inferences marshaled against her below were not credible, solid, or logical, and that they lacked ponderable legal significance. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) In any event, as we demonstrate below, the juvenile courts order must be affirmed.

The record contains substantial evidence that mother did not occupy a parental role in the minors lives. According to the Department, foster mother occupied the parental role; i.e., they looked to her for comfort, instruction, permission and guidance. She took care of their day-to-day needs, such as ensuring that their medical, physiological and educational needs were met. The minors developed appropriately, and they were happy and stable. Aurora started calling foster mother mami and mommy. At times Aurora stated that she wanted to live with mother, but then she told the social worker that she wanted to stay with foster mother. As for Jose and Jesus, the appeared to be highly bonded to foster mother.

In contrast, the evidence suggested that the minors were not strongly bonded to mother. For example, she was not very affectionate with Jose and Jesus, preferring to spend the majority of visits with Aurora. Mother stated that at one point she hated Jesus and only recently started to feel something from him. The reasonable inference is that her actions and feelings negatively impacted her bond with Jose and Jesus. Moreover, Jose was too young to remember being in mothers legal custody and care, and Jesus was taken from mother at birth. When they were in grandmothers care but were sometimes watched by mother, Aurora felt the need to take on a parental role by worrying about their meals, telling mother when Jose needed to eat, and trying to make sure that Jose did not misbehave. From these facts it is fairly assumable that mother was not a nurturing, responsible figure in the lives of Jesus and Jose, and that they consequently do not have the type of shared experiences that lead to a parent/child bond. As for Aurora, she remembered that mother did bad things in the past and felt she was not doing what she needed to do for the minors to return home. Also, Aurora did not always come to the phone when mother called, and when they did talk on the phone, mother sometimes discussed inappropriate topics. While Aurora may have enjoyed visits with mother, their relationship was marked by negatives as well as positives that limited the closeness they achieved.

We note that mothers visits with the minors, at times, were sporadic. For example, from August 14, 2005, to October 30, 2005, mother visited them only three times, and each time she arrived late. From December 11, 2005, to May 7, 2006, mother visited the minors 15 times. During that time she missed seven visits. On two occasions she brought friends. By the section 366.26 hearing, mother was a periodic family figure who favored Aurora over Jose and Jesus. And there was no evidence that the minors suffered any sort of separation anxiety during the times they and mother were apart.

The foregoing evidence and inferenceswhich were credible, solid, logical and legally significantsupported the juvenile courts ruling. The minors interest in a loving, stable, and permanent home with foster mother outweighs whatever benefit they might receive if mother stayed in their lives.

DISPOSITION

The juvenile courts order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________________, J.

ASHMANN-GERST

We concur:

____________________, Acting P. J. _____________________, J.

DOI TODD CHAVEZ

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

[2] Mothers notice of appeal refers, in part, to the orders of August 1, 2006. On that date the juvenile court denied a section 388 petition filed by mother to obtain further reunification services. Mothers appellate brief, however, only addresses the termination of her parental rights. We conclude that mother abandoned her appeal of the denial of her section 388 petition.

[3] The day of the week for visitation sometimes changed, i.e., to Friday, etc.

[4] David M. was mothers fourth child. He was detained after he was born. David M. is not a subject of this appeal.

[5] The record does not establish who Aldo and Rita are.

[6] As requested by the Department, we take judicial notice of our prior opinion in Janet M. (Jan. 25, 2007, B194256) [nonpub. opn.].