In re Charlene

Filed 3/15/06 In re Charlene V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Deneane H. appeals the judgment terminating her parental rights over Charlene V, born in April 2001. (Welf. & Inst. Code, § 366.26.)[1] She contends the court denied her due process and a fundamentally fair hearing when it denied her request for a bonding study. This ruling, she contends, prevented her from developing the evidence needed to meet her burden to prove that Charlene would benefit from continuing their parent-child relationship. (§ 366.26, subd. (c)(1)(A).) We affirm.

Facts

We described in detail the facts of this dependency proceeding in two prior unpublished opinions, In re Charlene V. (Sept. 15, 2004) B171939 and In re Charlene V. (May 19, 2005) B181103. Briefly stated, nearly five-year old Charlene has spent her entire life involved with the juvenile dependency system, and almost half of it living with her current foster (and prospective adoptive) family. Initially, Charlene was adjudicated a dependent child because when she was born, her mother, appellant, was incarcerated for alcohol related offenses. Charlene remained the subject of a dependency proceeding because appellant has not been able to maintain sobriety for more than a few months at a time, despite attending two residential alcoholism treatment programs, residing in sober living houses, participating in outpatient treatment programs, attending Alcoholics Anonymous meetings and individual therapy sessions, and being subjected to frequent tests for alcohol use. Appellant has demonstrated a tendency to isolate herself and Charlene when she is drinking. She has also manipulated the testing system and denied her relapses, even when she has shown the physical symptoms of intoxication, has tested positive for alcohol use or has refused to test.

Appellant had custody of Charlene and received family maintenance services between October 2002 and July 2003. During that time, appellant tested positive for alcohol use about four times. She also failed on occasion to submit to tests and she failed to attend daily AA meetings. Concern over appellant's increasing alcohol use prompted respondent to file a section 387 supplemental petition requesting that Charlene be taken into custody. The juvenile court ordered Charlene detained in foster care, terminated family maintenance services and ordered six months family reunification services. In September 2004, we affirmed that order in an unpublished opinion, No. B171939.

With Charlene in foster care, appellant spent the next year participating in residential and outpatient treatment programs. She nevertheless continued to relapse periodically. Despite these set backs, respondent recommended that appellant be provided with additional reunification services so that she could demonstrate her ability to maintain sobriety outside of a treatment program. Her frequent visits with Charlene continued. By the fall of 2004, appellant was permitted to have unsupervised daytime visits, and eventually to have overnight visits with Charlene.

The unsupervised visits came to an end on the afternoon of November 30, 2004, when Charlene's social worker arrived at appellant's house unannounced, during one of their overnight visits. Appellant refused to open the door to the social worker until sheriff's deputies arrived about 30 minutes later. When they entered the house, they found three-year old Charlene alone in a hallway. Appellant came out of the bathroom looking disheveled. She appeared to the sheriff's deputies to be intoxicated but denied drinking and refused any kind of alcohol test. The social worker terminated the visit and returned Charlene to her foster home.

Following that visit, respondent recommended that reunification services be terminated and that a hearing be scheduled pursuant to section 366.26 to implement a permanent plan of adoption for Charlene. The juvenile court terminated services and scheduled the permanency planning hearing. In May 2005, we affirmed in an unpublished opinion, No. B181103.

Appellant filed a section 388 modification petition seeking to have Charlene returned to her custody. She cited six-months' sobriety as the changed circumstance supporting the modification and contended that returning Charlene to her custody would be in Charlene's best interest because, when sober, she is a capable and loving parent. The trial court consolidated the hearing on appellant's modification petition with the permanency planning hearing.

At that hearing in mid-July 2005, Charlene's social worker recommended Charlene not be returned to appellant's custody because appellant was unable to maintain her sobriety for any extended period. The social worker opined that appellant manipulated the alcohol testing regimen by controlling both the timing of the tests and the type of test she took. For example, appellant would consent to breath tests before a visit with Charlene, but refused to take urine tests. When, after several months of refusing, she was forced to provide a urine sample, appellant adulterated it with water from the toilet bowl. The useable sample she eventually provided tested positive for alcohol use. Appellant had never acknowledged to the social worker that continuing to use alcohol creates a risk of harm for Charlene. This circumstance indicates, according to the social worker, that appellant has little incentive to remain sober if she regains custody of Charlene. Another aspect of appellant's life that places Charlene at risk is appellant's romantic attachment to a registered sex offender.

The social worker predicted that, if Charlene was returned to appellant's custody, she would eventually have to be removed again because appellant would not maintain her sobriety or be able to care for Charlene over the long term. Charlene is happy with her foster family, where she has lived since September 2003. It would not be in her best interest to remove her from the foster family. She refers to her foster parents as "mommy" and "daddy," and looks to them for her parental needs. Charlene appears to view appellant as an aunt or special friend who takes her on enjoyable outings and gives her lots of attention. She would be sad and confused if the visits with appellant ended, but her long term need for stability and permanency outweighs her need for contact with appellant. Charlene experiences anxiety and is fearful of being left alone and of new environments. A permanent home would help settle those fears and be in her best interest.

In her testimony, appellant admitted for the first time that she drank alcohol during the visit with Charlene on November 30. She described her efforts to maintain sobriety which include individual therapy, AA meetings and meetings with her AA sponsor. These efforts "started helping [appellant] understand what some of [her] core issues were." She realized "how much alcohol impacted [her] life and [she had] worked really hard this last year." Appellant's latest relapse occurred about 25 days before the section 366.26 hearing, on June 20, 2005. She testified that she had not spent the night with her former boyfriend, the registered sex offender, since November 2004. She had, however, visited his house to use his computer.

The trial court denied appellant's renewed motion for a bonding study, finding that the social worker's testimony did not lend "any additional weight to the request for a bonding study. I don't see any urgency that has arisen. I don't see anything that the witness said that gives rise to a need for rebuttal."

It also denied appellant's section 388 petition, concluding, "I don't see that the evidence has established any significant changed circumstances. To the contrary, [appellant] continues to have problems with her sobriety. She has had a positive test as recently as June 20." The trial court discounted appellant's documentary evidence of her sobriety. Relying on the social worker's testimony, it instead drew "the reasonable inference that the [appellant] is attempting to manipulate the system and that her problem with alcohol is ongoing. And all other considerations aside, I can't conceive that it could be in the child's best interest to return her to her mother if the circumstances compelling in the first instance seem to be persisting."

With respect to the section 366.26 hearing, the trial court concluded that it was required to terminate appellant's parental rights because she failed to reunify with Charlene after receiving services for the maximum allowable period and because there was clear and convincing evidence that Charlene was likely to be adopted. The court acknowledged that appellant and Charlene have a "good relationship[,]" but found that "it's difficult to conceive of this as a relationship that's parental in nature." The court concluded: "Given the repeated disruptions in the child's life occasioned by her mother's ongoing problems, given the close family relationship which the child has established with her prospective adoptive parents and their children, and with the resulting likelihood of a long-term stability in her life, the fact that the child continues to have a good, close relationship with her mother doesn't constitute a compelling reason to refuse to terminate [appellant's] parental rights."

Discussion

Where the trial court finds that a dependent child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of four specified exceptions. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) Appellant contended in the trial court that the first such exception, known as the "benefit" or "beneficial relationship" exception, applied here because she "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 bears the burden to prove this exception applies. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256; see also In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.) Appellant contends the trial court deprived her of due process and a fundamentally fair hearing when it denied her motion for a bonding study because without the study, she could not develop the evidence necessary to carry her burden to prove that she has a beneficial relationship with Charlene. We review the trial court's decision to deny a bonding study for abuse of discretion and find none. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)

The beneficial relationship referred to in section 366.26, subdivision (c)(1)(A) is one that "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. . . . 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.) In determining whether such a relationship exists, we look to "[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.)

Even where the benefit exception is at issue, there is no requirement that the trial court obtain a bonding study before terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) "[A]lthough the preservation of a minor's family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody (§ 202, subd. (a)). Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 [19 Cal.Rptr.2d 544, 851 P.2d 826].)" (Id., at pp. 1339-1340.)

The trial court here did not abuse its discretion when it declined to obtain a bonding study before deciding how best to meet Charlene's need for permanency and stability. By the time appellant requested the study, Charlene had been living in foster care for almost two years, and had spent nearly half of her life with the family that is willing to adopt her. Meanwhile, appellant has never had unsupervised custody of Charlene and, even after taking advantage of a wide array of services, has been unable to maintain her sobriety for more than a few months at a time. Despite her frequent and loving contact with Charlene, appellant could not play a "parental role" in Charlene's life because she could not maintain her sobriety long enough to establish the consistent, day-to-day caretaking that is the hallmark of a parent-child relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The trial court did not require a bonding study to establish these facts and they are sufficient to support the termination of appellant's parental rights. (In re Jamie R. supra, 90 Cal.App.4th at p. 774.)

As the court explained in In re Casey D. (1999) 70 Cal.App.4th 38, the type of parent-child relationship that satisfies the benefit exception is one that is characterized by "day-to-day interaction, companionship and shared experiences." (Id. at p. 51.) Where a dependency matter has progressed to the permanency planning stage, this showing will be made only in exceptional cases, and almost never by a parent who, like appellant, has not had long-term, unsupervised custody of a very young child. In such cases, the "difficulty is due to the factual circumstances of the parent[] in failing to reunify and establish a parental, rather than a caretaker or friendly visitor relationship with the child." (Id. at p. 51; see also Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256; In re Richard C., supra, 68 Cal.App.4th at pp. 1195-1196.)

Appellant contends she had no way of proving her beneficial relationship with Charlene because the trial court denied her motion for a bonding study[2]. But it was not the trial court's refusal to order an intrusive and potentially harmful psychological evaluation of this five-year old child that prevented appellant from meeting her burden of proof. It was the objective facts of Charlene's life: She spent more than two of her five years in foster care. She has never lived in the unsupervised custody of appellant. Since Charlene's birth, appellant has not maintained sobriety long enough to provide a stable, permanent home for her. Charlene has lived with the same foster family for more than two years and they are willing to adopt her. These are not the circumstances that create a parent-child relationship strong and beneficial enough to avoid the termination of parental rights under section 366.26 subdivision (c)(1)(A). (In re Richard C., supra, 68 Cal.App.4th at p. 1196.) As the court noted in Richard C.: "While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Id., at p. 1197.) There was no abuse of discretion.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Joseph D. Allen, for Appellant.

Stephen D. Shank, County Counsel, County of Santa Barbara and Toni Lorien, Deputy, for Respondent.

Lisa A. Fritz, for Minor.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Lawyers.

[1] All statutory references are to the Welfare & Institutions Code unless otherwise stated.

[2] At oral argument, appellant advanced the new theory that she was denied due process because the trial court prevented her from introducing any expert psychological testimony on the "beneficial relationship" issue. As we read the record, however, the trial court denied appellant's requests to have a bonding study prepared and to have Charlene evaluated by a psychologist appellant retained. Appellant never requested, and the trial court never denied her the opportunity to present expert testimony based, for example, on a psychologist's review of the social worker's reports, the child's existing medical records and other available documents. Consequently, the issue has not been preserved for appellate review. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)