In re Brianna M.

Filed 7/19/07 In re Brianna M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County,

Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio

Torre, Deputy County Counsels, for Plaintiff and Respondent.

No appearance for Minor.

Ana M. (Mother) appeals from an order terminating her parental rights and freeing for adoption her now eight-year-old daughter Brianna M.^[1] Mother contends Brianna is not adoptable and the juvenile court should have applied the benefit exception (Welf. & Inst. Code,  366.26, subd. (c)(1)(A))^[2] to select a permanent plan other than adoption. Finding substantial evidence supports the order, we affirm.

facts

In June 2005, then six-year-old Brianna, was taken into protective custody due to Mothers unresolved drug problems. At the June birth of Briannas sibling, Mary Jane, Mother tested positive for methamphetamine and marijuana. Mother began using methamphetamines at age 15, and was on informal probation for possession of methamphetamine. As a condition of her informal probation, Mother was required to attend outpatient drug treatment services. Although she had registered for a program, she had missed three weeks. Mother did not believe she had a drug problem despite having just given birth to an infant who tested positive for methamphetamine and marijuana.

On September 8, 2005, Brianna was declared a dependent child and a

six-month review hearing was set for March 21, 2006. At the time of the six-month review hearing, the recommendation was to terminate reunification services due to Mothers significant lack of effort and progress towards participating in reunification services. Mothers reunification services were terminated at that time and a permanency planning hearing pursuant to section 366.26 was scheduled. Mother filed an extraordinary writ challenging the termination of her reunification services. This court denied the writ in an unpublished opinion (Ana M. v. Superior Court (June 22, 2006, G036893) [nonpub. opn.])). We need not repeat the facts described in detail in our prior opinion and will limit our recitation of facts to what has transpired since the issuance of our prior opinion and any other facts deemed relevant for the resolution of this case.

Mother was Briannas primary caretaker for the first six and one-half years of the childs life. Prior to Brianna being removed from her custody, Mother and daughter maintained a happy mother-daughter relationship. The two played together at the playground. Mother took her daughter to school and helped her with homework. She fed and bathed her daughter and made sure she was looking nice. Mother and daughter watched Disney movies together. Mother comforted Brianna when she cried or when she was hurt, and hugged and kissed Brianna to soothe her. When Brianna was three years old, Mother recounted the familys Christmas celebration included a tree, presents, and all the usual trappings of Christmas. Mother also related a number of other

mother-daughter activities that occurred prior to Brianna being removed from her custody. All of the activities demonstrated Mother and daughter enjoyed spending time together.

After Brianna was made a dependent child, Mother initially visited regularly, but after Brianna was placed with Tony, Briannas step-father, Mothers visitation ceased. Mother explained she was unable to make contact with the social worker and Tony would not agree to let her see her daughter. Monitored visitation resumed after a couple of months in October 2005, when Brianna was placed with Estela, the paternal aunt of Briannas sibling. Mother continued visiting with Brianna for a few months, but Mother stopped visiting Brianna about two months before she was incarcerated in February 2006. Mother explained she did not visit during this time because she was running amok [sic]. She admitted that during this time, she was running out in the streets[ ] and was in pretty bad condition when she turned herself in at the jail. During her incarceration, mother visited once with Brianna, but described the visit as awkward.

After being released from custody, Mother resumed monitored visits with Brianna. About two weeks after being released from custody, Mother entered a residential treatment program. She remained at the residential treatment program for approximately three months. While she was at the program, Brianna and her siblings were brought to the facility for weekly monitored visits with Mother. Brianna appeared to be happy and glad to see her mother, referred to her as Mommy, and generally enjoyed the visits very much. During these visits, Mother was attentive to the children and made an effort to divide her attention amongst the children. Mother continued with outpatient drug treatment and was on her fourth step in a 12-step program at the time of the section 366.26 hearing. Mothers recent efforts represented the most progress she had experienced in dealing with her addiction issues. At the time her reunification services were terminated, Mother had failed to enroll or participate in any drug treatment or counseling programs. She had failed to drug test, and had a felony warrant out for her arrest on drug-related charges.

Although Mother appeared to be making some progress with her drug problem, Mother still had other issues she needed to deal with. Mother did not have a valid drivers license, yet the monitor reported observing Mother driving to some of the visits. Also, during the entire period of dependency Mother had only once brought a diaper bag and some food for the children to eat during a visit. Mother advised the social worker she was cleaning houses and receiving $300 a week in earnings, but was unable to provide any documentation to verify her employment. As to her therapy sessions, Mother indicated she felt her drug counseling sessions should count as therapy[] even though her drug counselors were very clear they were not providing therapy. Mother was also unable to provide the social worker with any Narcotics Anonymous cards, saying she had given them to her attorney and had not retained a copy. Brianna remained in her placement with Estela, but expressed much confusion about her dependency. Brianna continued to hold out some hope she would be able to return to her mother. Her stated desire was to return to live with her maternal grandmother and her mother. She indicated the reason she sought this living arrangement was because she miss[ed] her dogs. When Brianna realized this would not be possible, she expressed a desire to stay with Estela.

Briannas therapist, Isuzu Hopper, reported Brianna had been diagnosed with Adjustment Disorder with Mixed Disturbance with Anxiety and Depressed State and was in therapy. The symptoms Brianna was exhibiting were not unusual among children who had experienced loss and disruption as Brianna had. Brianna was reported to be in total denial about any negative aspects related to her mother and did not look to her as a parent figure. The therapist indicated, attachment [between mother and daughter] is there, but it is disturbed[,] and went on to say that once a parent had disturbed the attachment, there was little likelihood the bonding could be repaired. It was the therapists belief Brianna could not afford another disruption in her life. If exposure to unstable bonding figures continued, the risk was high for the disturbance to become permanent. The therapist indicated Briannas attachment problems could be repaired if she was adopted by the caretaker, [Estela,] who is providing a stable, loving, and nurturing home[.]

At the section 366.26 hearing, the court concluded Brianna was adoptable. The court then proceeded to evaluate Mothers contention the court should find an exception under section 366.26, subdivision (c)(1)(A). The court methodically examined all the relevant criteria, determined the benefit exception did not apply, and terminated Mothers parental rights.

Discussion

Adoptability

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [Brianna] was likely to be adopted within a reasonable time. [Citations.] (In re Erick P. (2002)

104 Cal.App.4th 395, 400.) It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.] (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) While the standard for the juvenile court is clear and convincing evidence, our inquiry on appeal is only whether substantial evidence supports the finding. (Id. at pp. 623-624; see generally Crail v. Blakely (1973) 8 Cal.3d 744, 750.)

Mother asserts the courts finding of adoptability is not supported by substantial evidence. As evidence Brianna is not adoptable, Mother cites to the fact Brianna is an older child, age seven, and was diagnosed in 2006 with disturbances and anxiety. Mother contends the Orange County Social Services Agency (SSA) did not meet its burden of establishing adoption would likely occur within a reasonable amount of time. She cites language in SSAs report, in the event the caretaker would not adopt the child, [Brianna], the child has many characteristics that would appeal to adoptive families. As to Briannas sibling, SSA reported that in the event Mary Jane was not adopted by her caretaker, the childs characteristics are such that she would be adoptable by others. Mother seizes upon the difference in verbiage to support her conclusion SSA had not met its burden with respect to Brianna. She maintains there was only an indication Brianna had appealing characteristics and there was no showing of clear and convincing evidence Brianna would be adoptable should the caretaker decide not to adopt her. Brianna appears to have formed an attachment to her caretaker, and her caretaker has expressed a desire to adopt Brianna and her sibling, Mary Jane. Should Brianna not be adopted by [Estela] there is no reason to conclude her age or attachment issues would prevent her adoption by another family. The childs therapist believes her attachment problems can be repaired if she is adopted by her current caretaker, who is providing a stable, loving, and nurturing home environment. Brianna has no known developmental delays. She is a bright, active child, who has made friends at her school and has excellent grooming and hygiene. Substantial evidence supports the juvenile courts finding of adoptability.

Benefit Exception

Mother contends the trial court erred by refusing to apply the benefit exception of section 366.26, subdivision (c)(1)(A), and erroneously terminated her parental rights. Our standard of review is established. We consider the evidence in the light most favorable to the judgment and uphold it unless no rational factfinder could reach the same conclusion. [Citations.] (See In re Heather B. (1992)

9 Cal.App.4th 535, 562-563.) We resolve all conflicts and indulge all inferences in favor of the respondents. If any substantial evidence supports the trial courts decision, we affirm. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

At the permanency hearing, the court must choose the legislatively preferred plan of adoption unless the court finds a compelling reason for determining that termination [of the parents rights] would be detrimental to the child . . . . ( 366.26, subd. (c)(1), italics added; see In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) The parents must establish they have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) The exception applies only 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, italics added.) The parent-child relationship must promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home . . . . (Ibid.)

For the benefit exception to apply, a mother must show she is more than just a loving friend to her daughter. Parents have the burden of proving they have continued or developed a significant, positive, emotional attachment with their child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court must be convinced the strength and quality of the natural parent/child relationship in a tenuous placement [outweighs] the security and the sense of belonging [to] a new family would confer. (Ibid.) As explained in In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 (Beatrice M.), the childs relationship with the parent must transcend the kind of relationship the child would enjoy with another relative or family friend.

Mother submits this case is somewhat unusual insofar as there is not a record of regular visitation orinconsistent visitation[.] We disagree. In the six-month period immediately preceding the section 366.26 hearing, Mother has improved with respect to her visitation, but we cannot turn a blind eye to Mothers significant lapses in the past. We also must point out that visitation has not been without problems. Mother was remiss in advising the monitors as to changes in visitation times, arrived late for visits, and attempted during visits to engage in conversation involving prohibited subjects.

Mother focuses on the positive relationship she shared with Brianna when she was a young child. We agree that prior to being declared a dependent child, Brianna appears to have enjoyed a positive relationship, but we cannot overlook the fact this relationship deteriorated over time as Mothers drug use increased and she became more involved in criminal behavior. We acknowledge Mother has made a sincere effort to improve her relationship with Brianna. Brianna now looks forward to visits with her mother, enjoys visits when they occur, and is interested in reunification with her mother. There is no question Mother loves Brianna and Brianna, in turn, loves her mother, but our primary concern must be Briannas best interests.

Mother points out Briannas therapist stated, Brianna was attached to Mother; however, the attachment was disturbed. But, Mother is parsing words. The therapist also said, The serious question I have to raise is whether her mother is stable and equipped to meet the psychological needs of Brian[n]a, who has already experienced a great deal of loss in her life.

As to a bond between Mother and Brianna, Mother argues despite a lack of day-to-day contact, Brianna knows who [her] Mother is and would benefit from continuing the relationship. Mother argued in the trial court that despite an adoption, Brianna will not magically, forget who her mother is[.] There is no dispute Brianna knows who her mother is, but she also knows it is not her mother who tends to her needs. Brianna was asked by her therapist if there was anyone who she could go to if she had a problem, such as if she were feeling sick, needed something, had a school or friend problem, of if she just needed to talk. As to each, Brianna indicated she would go to Tia Estela, her caretaker. The fact a child knows who her mother is does little to prove the existence of a significant, positive, emotional attachment from child to parent. We conclude the relationship Brianna enjoys with her mother, improved as it may be, does not transcend the kind of relationship Brianna enjoys with her caretaker, Estela.

Mother cites to her current sobriety and progress with her 12-step program as confirmation she is at last dealing with her drug problems. We commend Mother for her accomplishments, but must also consider the fact Mother has engaged in illicit drug use since the age of 15. Given such a history, the sustainability of Mothers sobriety must be considered tenuous at this point in time.

Mother deserves credit for the significant positive changes she has made in her life since her release from custody. She may, in fact, be on the road to becoming a more responsible person and a better parent. Yet, her lack of employment and independent living arrangements remain matters of concern. Based on Mothers history, there is no reason to rule out a relapse and a return to her old habits. Mother fails to appreciate the damage her drug usage has caused in the past. Briannas caretakers want to adopt her and provide the normalcy and stability that has been lacking in Briannas life due to her Mothers inability to be a responsible parent. The strength and quality of the parent/child bond has to be weighed against foreseeable benefits the child will gain from being in a permanent home with adoptive parents. (See Beatrice M., supra,

29 Cal.App.4th at p. 1418.) Despite Mothers optimism, we conclude there is a great risk of detrimental disruption if parental rights are not terminated. The foreseeable benefits Brianna will gain if adopted are substantial. Accordingly, we conclude the juvenile court did not err in determining the benefit exception did not apply.

DISPOSITION

The order is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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^[1] The minors name is spelled Brianna in Mothers pleadings, but at different places in the record, it appears as Briana. We adopt Brianna as the correct spelling in this opinion.

^[2] All further statutory references are to the Welfare and Institutions Code.