In re Brianna E

Filed 3/28/06 In re Brianna E. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from the judgments of the Superior Court of San Diego County, Gary M. Bubis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Noemi M., the mother of Brianna E. and Christa E., appeals the judgments terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Noemi contends the juvenile court erred by failing to apply the beneficial parent/child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).

FACTUAL AND PROCEDURAL BACKGROUND

In February 2004, Noemi and the girls' father, Steven E.,^[2] signed a voluntary services contract with the San Diego County Health and Human Services Agency (Agency) after Noemi admitted using methamphetamines during the first six months of her pregnancy with Christa.

During the first four months of the voluntary contract, the parents often failed to drug test and when they did drug test, Noemi tested positive for drugs three times and Steven tested positive for drugs four times. On March 21, 2004, Noemi's friends were arrested for drug trafficking and auto theft; the arrest took place in the family home, and the children were present.

On June 24, 2004, Agency filed dependency petitions on behalf of Brianna, then three years old, and Christa, then five months old, alleging their parents excessively used drugs and were unable to provide regular care for them. (§ 300, subd. (b).) The court ordered the children detained in out-of-home care and authorized supervised, liberal visitation for Noemi.

On July 20, 2004, Noemi submitted to the petitions on the basis of the social worker's report. On August 13, the court sustained the petitions and declared Brianna and Christa dependents of the court. The court ordered the parents to enroll in the Substance Abuse Recovery Management Systems (SARMS) program and to comply with their case plans.

Noemi did not show up for her first SARMS court hearing, and the court issued a bench warrant. On October 13, 2004, Noemi was terminated from the SARMS program, and the bench warrant remained outstanding. Noemi had not had any contact with Brianna and Christa since September 17. Before that, Noemi had visited the children once in June, three times in July, twice in August and twice in September.

On April 3, 2005, Noemi was arrested on the outstanding bench warrant. On April 6, the juvenile court found her in contempt of court and sentenced her to three days in custody; she was released for time served.

Agency's adoption assessment report, dated August 10, 2005, found that it was likely Brianna and Christa would be adopted if parental rights were terminated, and it was in the best interests of both girls to be adopted. The girls were healthy without developmental delays and had been in their foster home for 13 months. The foster parents, who had successfully sought de facto parent status, wanted to adopt both girls and their home study had been approved. If the foster parents were unable to adopt, there were 10 other approved families who were interested in adopting a sibling set with Brianna's and Christa's characteristics.

Social worker Lisa Guthrie, who prepared the report, supervised Noemi's visits with the children, starting May 20, 2005. However, Guthrie noted of the seven visits she supervised, Noemi was late to four visits. Noemi never visited the girls by herself; she was accompanied by the maternal grandmother and an older sibling, who was living with the grandmother. If the grandmother cou1d not go to a scheduled visit, Noemi did not attend the visit.

Guthrie also opined that the eight-month period during which Noemi had no contact with Brianna and Christa significantly affected Noemi's relationship with the children. Although Brianna enjoyed the visits when they resumed - as evidenced by her attempts to get Noemi's attention - Brianna cried only at the first visit on May 20, 2005. Guthrie concluded that during Noemi's eight-month absence Brianna's primary attachment had shifted to the foster parents. Christa's attachment to the foster parents was very strong and the young child usually cried when the foster mother left the room at the beginning of a visit. Christa was consoled - sometimes it took 20 minutes to do so - but her focus continued to be on the door, as evidenced by her going to the door and gesturing for someone to open the door. When the visits ended, Christa was extremely happy to see the foster mother again.

Guthrie concluded that Christa would suffer no detriment and Brianna would not suffer a great detriment if Noemi's parental rights were terminated. Although Brianna had a connection with Noemi, the nature of the connection was not significant enough to outweigh the benefits Brianna would receive from a permanent adoptive home.

In an addendum report, Guthrie noted that during the second half of August and all of September 2005, Noemi's attendance at visits became more consistent and she arrived on time more frequently. However, the children's reaction to Noemi during these visits did not change appreciably other than Brianna using baby talk and "fake-crying" sounds to gain Noemi's attention. A few times Brianna cried at the end of the visits, but she stopped immediately after Noemi was out of sight. On one occasion, Brianna's crying continued, but this was because she was upset about not having juice - not because Noemi had left. Guthrie concluded that although Brianna enjoyed seeing Noemi and receiving gifts from her, her primary attachment was with the foster parents.

Brianna's therapist strongly recommended Brianna remain with the foster parents and be adopted by them. The therapist said Brianna often talked about the foster parents, but rarely mentioned Noemi.

At the contested section 366.26 hearing on October 14, 2005, Noemi testified that before each visit, Brianna watched out of the window for her and then would run up to her, hug her and say "Mommy, Mommy." Noemi acknowledged that at the beginning of almost every visit Christa started to cry and shied away from her. Asked if Christa warmed up to her, Noemi answered in the affirmative but added, "not as much as I want her to."

Noemi said she did not contact the children during the eight-month period because she became emotionally distraught in September 2004 as the first anniversary of her brother's death approached. Noemi also said she attempted to resume contact with the children in March 2005 the day before Brianna's birthday, but the social worker refused to allow her to visit because of the lengthy period of no contact.

The court found the children were likely to be adopted if parental rights were terminated and none of the exceptions to adoption listed in section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred the children to Agency for adoptive placement.

DISCUSSION

Because she had raised Brianna for most of her life and Christa for five months, and had visited the children for most of the dependency, Noemi contends the juvenile court erred by not applying the beneficial parent/child relationship exception to adoption. (§ 366.26, subd. (c)(1)(A).) The contention is without merit.

Our standard of review is the substantial evidence test. (In re Autumn H. (1997) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Preliminarily, we agree with Agency that Noemi has waived or forfeited her right to claim error based on the beneficial parent/child relationship in Christa's dependency case. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Noemi did not raise the beneficial parent/child relationship exception with respect to Christa at the section 366.26 hearing.^[3] "If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence." (In re Erik P., supra, 104 Cal.App.4th at p. 403.) "Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence." (Ibid.)

As we explain below, even if Noemi had not forfeited the right to claim error with respect to the beneficial parent/child exception to adoption, on this record, the exception is inapplicable to both Christa and Brianna.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.

The record contains substantial evidence that neither prong of section 366.26, subdivision (c)(1)(A) was met.

The record shows that in 2004, Noemi visited the children once during June, three times during July, twice in August and twice in September. From September 17, 2004 until May 20, 2005, Noemi was incommunicado and did not see Brianna and Christa. Between May 20 and August 10, 2005, Noemi visited the children seven times; she missed a number of visits and was frequently late. During the second half of August and during September, Noemi attended almost every visit offered to her, and she arrived on time. We conclude that the only period of time during which Noemi regularly and consistently visited the children was after August 10, 2005. During the majority of the dependencies of her daughters, Noemi did not regularly visit them. Further, because of Noemi's eight-month period of no contact, Christa hardly knew her. Viewing the evidence most favorably to the decision rendered below, we find substantial evidence supports Agency's position that Noemi was inconsistent in visiting Brianna and Christa. Whatever explanations Noemi offered for her eight months of virtually no contact, they do not excuse the statutory requirement that she have regular and consistent visitation to establish a beneficial parent-child relationship.

Moreover, even if we were to find Noemi regularly and consistently visited Brianna and Christa, and met the first prong of section 366.26, subdivision (c)(1)(A), there was substantial evidence that Noemi and her daughters did not have a beneficial parent-child relationship as envisioned by the statute.

As to the second prong of the statute, in In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show 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." (Italics added.) The court must balance "the strength and quality of the . . . parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "[t]he 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 . . . ." (Id. at p. 576.) Further, the parent must show the benefit arises from a parental rather than a caretaker or friendly visitor relationship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [frequently visiting mother occupied pleasant place in child's life, but did not have parental role].) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)

The court's balancing test must be performed on a case-by-case basis, taking into account variables such as the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between the parent and child and child's individualized need. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Further, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The children were taken into protective custody when Brianna was three years old and Christa was five months old. Christa, who was 21 months old when the section 366.26 hearing was held, had spent three-quarters of her life with the foster parents. When Noemi resumed visiting the children after the eight-month hiatus, Christa hardly knew who she was and showed little interest in her. There was no showing that the interaction between Christa and Noemi was positive. Although Brianna spent the bulk of her life with her biological parents, there was an abundance of evidence that over the next 15 months Brianna bonded with the foster parents and viewed them as her primary caregivers. The change in Brianna's attachment from Noemi to the foster parents occurred in part because of Noemi's lengthy absence and her inconsistent visitation during much of the dependency. It also resulted from the foster parents stepping up and assuming the role of parents. Although Brianna enjoyed seeing Noemi and receiving gifts from her, Noemi no longer played a parental role in the child's life; Noemi had become a friendly visitor.

For 15 months, Brianna and Christa looked to their foster parents to meet their daily needs. They were the ones who took the children to doctor appointments and activities, fed them, bathed them, clothed them, and tucked them into bed every night. Despite Noemi's professed love for Brianna and Christa, she deserted them for eight months. There was substantial evidence that Noemi did not "occup[y] a parental role in [Brianna's and Christa's] [lives]" - even when she was regularly visiting them. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)

Moreover, Brianna and Christa had been living with the foster parents who wanted to adopt them. Brianna and Christa looked to the foster parents for their basic necessities of life and to give them the love and support young children need. The foster parents provided Brianna and Christa with a safe, stable, and nurturing home. In balancing "the strength and quality of the natural parent/child relationship in a tenuous placement [with Noemi] against the security and sense of belonging a new [adoptive] family would confer," the juvenile court could reasonably conclude termination of Noemi's relationship with Brianna and Christa would not be detrimental to them. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) Brianna and Christa need stability and permanency. Noemi did not meet her burden of showing the benefits of continuing her relationship with the two children outweigh the well-being they would gain in a permanent adoptive home.

In sum, substantial evidence supported the court's finding that the section 366.26, subdivision (c)(1)(A) exception did not apply. Noemi's argument that she had been a loving and good parent before the dependencies or that she was loving, and appropriate during visits is unavailing.

DISPOSITION

The judgments are affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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

^[2] Steven is not a party to this appeal and will be discussed only when relevant to the appeal.

^[3] Noemi argued below that because a beneficial parent/child relationship existed between herself and Brianna the juvenile court should not select adoption as Brianna's permanent plan. Noemi did not argue below that a beneficial parent/child relationship existed between herself and Christa. Rather, Noemi argued against adoption as Christa's permanent plan because Christa and Brianna were closely bonded. Noemi claimed if Christa were adopted it would interfere with the beneficial sibling relationship the sisters enjoyed. (See § 366.26, subd. (c)(1)(E).)