Filed 11/28/05 In re C.B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re C.B., a Person Coming Under the Juvenile Court Law.	2d Juv. No. B183915 (Super. Ct. No. JV41618) (San Luis Obispo County)
SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. FRANCES M., Defendant and Appellant.

Frances M. (mother) appeals the juvenile court order terminating parental rights to her daughter, C.B., and establishing adoption as her permanent plan (Welf. & Inst. Code^[1], § 366.26). Mother contends the finding of adoptability is not supported by substantial evidence, and that the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)), precluded the termination of her parental rights. We affirm.

FACTS AND PROCEDURAL HISTORY

C.B. was born in December 1996. She was first taken into custody on September 16, 2003, and placed with her maternal grandparents. On September 18, 2003, the San Luis Obispo County Department of Social Services (DSS) filed a dependency petition pursuant to section 300, subdivisions (b) and (c), on the allegations that mother was using drugs, had physically abused C.B., and "has dangerous relationships with men which places the minor's physical well-being at risk." The petition also alleged that mother had allowed C.B.'s father to have unsupervised visitation with the minor, notwithstanding the fact that he was subject to a restraining order prohibiting him from having any contact with her due to his physical abuse of mother.^[2]

At the initial detention hearing on September 19, 2003, a preliminary case plan was presented in which mother was expected to begin substance abuse treatment and enroll in parenting classes. At the contested detention hearing on September 24, 2003, DSS reported that mother had been assaulted by her boyfriend on September 15, and had been arrested the following day for possessing and being under the influence of marijuana and methamphetamine. At the conclusion of the hearing, the court granted DSS's request to return the minor to her mother after she submitted two successive clean drug tests. An uncontested jurisdictional and dispositional hearing was set for October 21, 2003.

On October 20, 2003, DSS filed an amended section 300 petition, alleging that mother had been arrested on October 2 for possession of marijuana for sale. DSS also reported that mother had tested positive for marijuana at her first drug test. The social worker recommended an out-of-home placement for C.B. until mother could establish a drug-free lifestyle and provide a stable home environment. At the contested jurisdictional hearing on October 23, C.B. was ordered removed from her parents' custody and mother and father were granted reunification services.

On April 8, 2004, DSS reported that mother was serving a two-month sentence in the county jail for possession of marijuana. Father was reportedly living in his automobile. DSS also reported that mother had tested positive for marijuana six times during the reunification period, then stopped testing. The social worker recommended that C.B. remain in her placement with her grandparents. It was also noted that mother was scheduled to be released from custody prior to the six-month review hearing on April 27, 2004, and that she had been told to contact drug and alcohol services and county mental health immediately upon her release.

Mother appeared at the contested hearing on June 29, 2004. It was noted that mother had been allowed increasing visits with C.B., including overnight visits, since she had been released from custody. The 12-month status review hearing was set for October 26, 2004.

At a specially set hearing on August 18, 2004, DSS requested a restraining order against father. C.B. had recently been moved to the home of her maternal uncle and aunt, Frank and Charlotte M., and father had been jeopardizing that placement by harassing the new caretakers. The hearing on the restraining order was continued to allow father to be served.

On September 9, 2004, DSS filed a section 388 modification petition. DSS reported that Frank and Charlotte had terminated C.B.'s placement with them "due to the child's behavior and health problems of one of the caregivers." C.B. was placed in a foster home. The matter was set for hearing on October 6, 2004. On October 5, DSS mailed notice to mother indicating that it would recommend termination of services at the 12-month reunification hearing on October 26, 2004.

At the October 6 hearing on the section 388 petition, it was reported that mother was again incarcerated. The matter was continued to October 7. The court denied mother's request for jail visitation, relying on the objection of C.B.'s attorney. The court also ruled that any contact be monitored or approved by C.B.'s therapist.

At the 12-month status review hearing on October 26, 2004, DSS reported that mother had continued to test positive for drugs and had been arrested on three different occasions in the preceding three months. It was also reported that mother had expressed confusion regarding C.B.'s removal because she did not believe that her conduct placed her daughter at risk, and that she had continued contact with her abusive ex-boyfriend after being ordered to stay away from him. DSS also reported that C.B. was doing well in her foster care placement and was in therapy to address her behavioral issues. C.B. stated that she did not want to live with her mother due to her drug use and abusive relationship. C.B. also complained that mother did not pay much attention to her during their visits.

The matter was set for a contested hearing on December 21, 2004. At the conclusion of that hearing, reunification services were terminated and the matter was set for a section 366.26 hearing on April 5, 2005. On January 12, 2005, mother reported that she had been sentenced to state prison for two years.

In its report for an interim hearing on January 19, 2005, DSS recommended termination of visitation. C.B. was again living with Frank and Charlotte, who had expressed their commitment to adopt her. C.B.'s therapist continued to believe that physical contact with mother would be detrimental to C.B.

At the section 366.26 hearing, DSS reported that C.B. was doing well in her placement and in school, and was continuing to address issues in weekly therapy and with her aunt Charlotte. The social worker opined that C.B. was adoptable, and that there was a strong likelihood she would be adopted if parental rights were terminated. Frank and Charlotte were still committed to adopting C.B. and were in the process of an adoptive home study. It was also reported that mother had not visited C.B. since December 2004, and had sent only two letters during that time. The social worker also reported that C.B. called Frank and Charlotte "Pappa" and "Nanna," and that she was benefiting from the consistency and stability of her placement. C.B. also told the social worker that she wanted to remain with Frank and Charlotte.

The court appointed special advocate (CASA) filed a report of March 25, 2005, concurring in the observations and conclusions of DSS, including that parental rights should be terminated and that C.B. was likely to be adopted. Regarding Frank and Charlotte's decision to terminate C.B.'s initial placement with them, CASA noted that "[t]his placement was welcomed by the child but was cut short due to a combination of factors. The first was the interference, intimidation and pressure from [C.B.'s] parents. The second factor was that [C.B.] began displaying inappropriate behavior in visits with the Aunt and Uncle's grandchild. Lastly the aunt was experiencing some health problems. The result of these factors led them to request a different placement. This was a decision that they immediately regretted and they began to discuss how and under what circumstances they could take [C.B.] back and make it successful." CASA also reported that "[C.B.] was thrilled to be placed back with her Aunt and Uncle. Her behavior has been excellent with no major outbursts or problems. She is visibly happier than she has been at any other time since my involvement began almost one year ago. She seems reconciled with the thought that she will not be re-united with her parents. She expresses anger, hurt and disappointment that her parents did not come through for her. She expresses these feelings with words and tears. Given that there are no explosive outbursts she has made tremendous strides. The Aunt and Uncle have a grandchild her age that visits many times during the week so [C.B.] feels less isolated. She enjoys going to church and this is a regular part of the routine in this household. Her Aunt and Uncle seem very sympathetic to her and the three of them appear to love each other very much. They each have expressed these feelings for one another to me verbally and I have observed their affection when I am present. [¶] Not only have the Aunt and Uncle been a constant in her life as part of the extended family but they were her caregivers for the first two years of her life while her mother worked. [C.B.] is comfortable in their home where she has her own bedroom. The home has always been neat and pleasant on every visit without exception. The grandparents live several houses away and [C.B.] sees them frequently. They are strongly supporting a possible adoption."

A contested section 366.26 hearing was held on June 8, 2005. C.B. testified in chambers, outside the presence of mother, pursuant to section 366.26, subdivision (h). She told the judge that she wanted to be adopted by Frank and Charlotte and that she felt ignored by mother. She also made it clear that she did not want mother to have any "say so" regarding her life or upbringing and that she did not want to see either of her parents again until she was an adult.

Gail Gordon, the DSS social worker assigned to the case, also testified on the stipulation that she qualified as a expert on adoption issues. Gordon testified that C.B.'s therapist supported the plan of adoption, and that she believed that the minor was likely to be adopted even if Frank and Charlotte ultimately did not. Gordon also believed that C.B.'s negative behaviors had decreased due to the "stable structured [and] predictable environment" she was provided by Frank and Charlotte.

Mother, who was incarcerated at the time of the hearing, testified on her own behalf. She acknowledged that the terms of reunification had been made clear to her, and that she had been returned to custody because she violated her probation by attempting to contact her abusive ex-boyfriend. She asked the court to allow C.B. to continue living with Frank and Charlotte without terminating her parental rights, with the hope that she could regain custody after she was released from prison in October of 2005.

At the conclusion of the hearing, the juvenile court terminated parental rights, established adoption as C.B.'s permanent plan, and scheduled a section 366.3 hearing for December 7, 2005.

DISCUSSION

I.

Mother first contends that substantial evidence does not support the juvenile court's finding that C.B. is likely to be adopted if parental rights were terminated. In order for the juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely the child will be adopted.

(§ 366.26, subd. (c)(1).) We review the court's order to determine whether the record contains substantial evidence to support that finding. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)

In making the determination whether a child is likely to be adopted, the court focuses on the child--whether her age, physical condition and emotional state make it difficult to find a person willing to adopt. (§ 366.22, subd. (b)(3); In re Josue G., supra, 106 Cal.App.4th at p. 733.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

Although C.B.'s uncle and aunt, Frank and Charlotte, have expressed their commitment to adopting her and a home adoption study has been initiated for that purpose, mother contends that C.B. has behavioral problems that may dissuade them from adopting her. For support, she refers to a CASA report prepared for the 12-month review hearing in October of 2004 indicating that C.B. had engaged in "acting out" behavior since she had been placed in a foster home the prior month. Mother also suggests that C.B.'s problems might lead Frank and Charlotte to change their minds about adopting her, as evidenced by the fact that they terminated C.B.'s initial placement with them.

Mother's argument in this regard fails to account for the substantial emotional improvements C.B. has enjoyed since that time as a result of therapy, a stable and secure placement, and a strong interpersonal relationship with her prospective adoptive parents. Indeed, CASA reported in March of 2005 that C.B. had made "tremendous strides" in her behavioral issues. Moreover, Frank and Charlotte are aware of the emotional turmoil C.B. suffered while she was in her parents' custody, and their love and support has been instrumental in the positive changes that have been observed in C.B. since she has been placed with them. Mother also downplays the fact that the problems that led Frank and Charlotte to terminate the initial placement were largely due to mother's and father's continued involvement in C.B.'s life. Termination of their parental rights eliminates the possibility that such problems will recur in the future.

Because Frank and Charlotte have expressed their commitment to adopting C.B. with full knowledge of and appreciation for the work that must still be done to repair the damage caused by years of neglect, substantial evidence supports the juvenile court's finding of adoptability.

II.

Mother also contends the trial court erred in terminating her parental rights to C.B. because the evidence is insufficient to support a finding that the minor would not benefit from continuing the parent/child relationship. Parental rights regarding an adoptable child will not be terminated where the court finds "a compelling reason" that termination would be "detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent has the burden of proving that this exception to adoption applies. This burden is satisfied only in exceptional cases because, at the time of the section 366.26 hearing, the child has been removed from parental custody and reunification services have been unsuccessful or denied. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) In determining whether the parent has met his or her burden in this regard, "the court balances 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 parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Substantial evidence supports the trial court's finding that C.B. would not benefit from continuing her relationship with mother, as contemplated by section 366.26, subdivision (c)(1)(A). In order to overcome the presumption in favor of adoption, mother had to show not only that she had a continuing relationship with C.B., but also that the relationship promoted her well-being to such an extent that it outweighed the well-being she would gain in a permanent home with her prospective adoptive mother. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother made no such showing. Indeed, mother fails to establish that she maintained regular visitation and contact with C.B., much less that the child would benefit from continuing the relationship. C.B. testified that she not only wanted to be adopted by Frank and Charlotte, but that she did not want to have any contact with mother again until she was an adult. Under the circumstances, it cannot be said that this is one of those exceptional cases where the exception to adoption contemplated by section 366.26, subd. (c)(1)(A) precludes the termination of parental rights.

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

William Kelsay, Judge^*

Superior Court County of San Luis Obispo

______________________________

Lawrence E. Fluharty, under appointment by the Court of Appeal, for Defendant and Appellant.

James B. Lindholm, Jr., County Counsel, Patricia A. Stevens, Deputy County Counsel, for Plaintiff and Respondent.

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

^[2] C.B.'s father is not a party to this appeal. The restraining order against him was modified on September 26, 2003, to allow him to live with mother in order to protect her from an abusive ex-boyfriend.

^*Assigned by the Chairperson of the Judicial Council.