In re C.R.
Filed 11/4/13 In re C.R. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re C.R., a Person Coming
Under the Juvenile Court Law.
B247834
(Los Angeles
County Super.
Ct.
No. CK88340)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.R., et al.,
Defendants and Appellants.
APPEAL from
the orders of the Superior Court
of
County, D. Zeke Zeidler, Judge. Affirmed.
Joel
Frederick Block, under appointment by the Court of Appeal, for Defendant and
Appellant F.R.
Jacques
Alexander Love, under appointment by the Court of Appeal, for Defendant and
Appellant C.C.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette
Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
C.C. (mother) and F.R. (father)
26, 2013 order terminating their parental rights under Welfare and Institutions
Code section 366.26
name="_ftnref2" title="">[2] and selecting adoption as the permanent plan
for their child, C.R. Father also
appeals the court’s denial of a section 388 petition for
of the permanency hearing. We affirm.
Three-year-old C.R. was detained on June 14, 2011, when Los Angeles
County Sheriff’s deputies found him in a residence with marijuana,
methamphetamine, and drug paraphernalia scattered around the home and easily
accessible to C.R. Deputies also found a
fully charged stun gun and an unloaded BB gun in a closet. C.R. was at home with his maternal
grandmother, and mother was away from home.
The children’s social worker (CSW) who detained C.R. spoke to several
people. She left a card informing mother
that C.R. had been placed in the custody of the Department of Children and
Family Services (Department), whom to call, and that a court hearing would take
place on June 17, 2011.
Mother did not appear at the June 17, 2011 hearing, nor did she
make any contact with the Department. The
dependency court placed C.R. with Lisa A. and Fernando P., nonrelated extended
family members who consider C.R. to be their grandson and made a spare bedroom
immediately available. Before the
dependency proceeding commenced, C.R. lived with Lisa A., independent of his
mother, from the age of four months to almost three years old.
Mother has an extensive criminal
history, with multiple arrests for theft and drug possession, and misdemeanor
and felony convictions for property and drug offenses. Mother was arrested on July 10, 2011.
The Department interviewed her on July 16, 2011, while she was in custody.
Mother identified F.R. as C.R.’s
father. She reported that father has a
drug problem and his drug of choice was methamphetamine. She had not seen father since she was five
months pregnant with C.R. and believed he was in state prison. She did not know father’s birth date. According to mother, father had never met
C.R. and had never provided any financial support.
On July 25, 2011, mother made her
first appearance in dependency court.
The court appointed counsel for mother, ordered the Department to
conduct a search for father, and set a hearing for August 18, 2011.
Mother’s first visit with C.R. took
place on July 16, 2011, more than a month after his initial detention. Lisa A. took C.R. to see mother at the
jail. She reported the visit went well,
and she planned to take C.R. to see mother regularly.
By August 18, 2011, mother had been
released from custody, sentenced to 36 months probation for identity theft and
possession of narcotics, and placed in a work furlough program. The Department located father, who reported
that he was in prison when C.R. was born, but he met C.R. when he was released
and C.R. was about six months old. He
claimed he set mother and C.R. up in a hotel, but that mother repeatedly told
him he was not C.R.’s father and refused to let him visit C.R.
At the August 18, 2011 hearing, the dependency
court appointed counsel for father and ordered DNA testing to establish
paternity. The court also ordered the
Department to provide referrals for drug counseling and weekly random and on-demand
drug testing for mother.
Father failed to obtain paternity
testing and did not appear in court as ordered, despite multiple continuances
and repeated reminders from the Department.
At the adjudication hearing on
October 17, 2011, the dependency court declared C.R. a dependent and ordered
C.R. removed from parental custody and placed with Lisa A. The court found father to be an alleged
father only and denied reunification services for father. It ordered reunification services for mother,
including drug and alcohol counseling with random drug testing, parenting
classes, and individual counseling.
Parents’ visits with C.R. were to be monitored.
Between October 2011 and April 2012,
the Department report reflects that mother was having weekly visits with C.R.
on weekends, monitored by Lisa A. C.R.
liked visiting with his mother at the park; they played on swings, talked, and
ran around just being silly. During an
early visit in August 2011, mother started crying uncontrollably. C.R. became uncomfortable and told Lisa A. to
tell mother to stop.
By January 2012, the drug program
mother was attending sent a termination letter stating mother was not doing
anything to show that she was willing to address and resolve her issues with
addictions. Mother re-enrolled in the
program in February, but her attendance was inconsistent. Between August 19, 2011, and March 14, 2012,
she tested negative for drugs 16 times, but she also had one positive test for
marijuana and failed to show up for drug tests 19 times.
At the six-month review hearing on
April 16, 2012, the dependency court authorized continued reunification services
for mother but authorized the Department to file a petition to terminate
reunification services if the drug program terminated mother again.
At the 12-month review hearing on
August 16, 2012, the Department reported continued problems with mother. She had been evicted, she was out of
compliance with her probation, and her probation officer had not seen her since
June 5, 2012. Between March and August
2012, she had been discharged and re-enrolled in a drug treatment program
twice, and the program was preparing to discharge mother once again for noncompliance.
Mother had monitored visits with
C.R. four times a week until mid-July and spoke with C.R. on the phone until
July 23, 2012, when she stopped calling and was not returning calls from Lisa A.
or the CSW. She arranged a visit with
C.R. at a Burger King on August 5, 2012, and the visit went well.
On September 20, 2012, the dependency
court terminated reunification services for mother and scheduled a permanency
hearing for January 17, 2013. Mother
began participating in an in-patient drug program sometime in September 2012. However, between September 5 and October 1,
2012, she tested positive for marijuana four times.
Lisa A. took C.R. to the in-patient
facility every Saturday and Sunday for visits and reported that “[t]he child is
always very happy to see his mom. His
mom is his world. His mom could do no
wrong.†However, she also reports that
C.R. does not become upset or have difficulties when the visits end and it is
time to tell his mother goodbye. He
states that he wants to go home with his mom, but that Lisa A. will always pick
him up afterwards.
Mother left her treatment program
without explanation on November 29, 2012.
Probation had issued a warrant for her arrest for failing to report to
probation. Mother told Lisa A. on
December 2, 2012, that she planned to turn herself into law enforcement, and
she did not want C.R. to visit her in jail and cause him any further
trauma. Mother explained to C.R. that
she would be away for a long time and would not be able to see him. C.R. took the information well. The Department also suspended visitation
because mother had not turned herself over to probation and had not met with
the CSW.
Father was arrested on December 20,
2012, and did not expect to be released from county jail until September 19,
2016.
The dependency court held a
permanency hearing on February 26, 2013.
Father filed a section 388 petition on the same day, asking the court to
grant him presumed father status and continue the permanency hearing. The court summarily denied father’s petition,
noting father did not state new evidence supporting the requested relief,
father had not followed through with multiple opportunities for paternity
testing, father had not met or visited C.R., and father was currently
incarcerated with an anticipated release date of September 19, 2016.
After acknowledging that father was
merely an alleged father and had not been given presumed father status, the
dependency court permitted father to participate in the permanency hearing “out
of an abundance of caution†and asked father’s attorney for an offer of proof
regarding visitation and contact. Father’s
attorney declined to make an offer of proof.
Mother described her relationship
with C.R., testifying that before the Department suspended her visitation in
December, she was visiting C.R. daily after school, and that she saw him every
day since he was taken away from her.
However, she acknowledged that she only saw C.R. on weekends while she
was in an in-patient drug treatment program, and that her last visit with C.R.
had been December 2, 2012. Mother’s
counsel argued that mother’s regular and consistent contact with C.R. supported
the parental relationship exception and asked the dependency court not to
terminate his client’s parental rights.
In denying
the applicability of the parental relationship exception, the dependency court
stated “mother maintained regular and consistent visitation and contact up
until she went into an in-patient program approximately . . . six or seven
months ago. Then she only saw the child
for four hours on Saturday and four hours on Sunday. And almost three months ago stopped having
any face to face visitations; only has been having phone calls to the extent
that is regular and consistent. And to
the extent it does create a parental role and relationship, the court cannot
find that it outweighs the benefits of permanence and adoption, especially
where the mother continues to tell the child that she is doing the classes and
doing what she needs to do, implying for eventual return of the child to her;
continuing to leave him in an unstable situation without any sense of
permanence.†The court terminated
parental rights and ordered the Department to proceed with adoptive placement
for C.R. It also gave Lisa A. discretion
to permit ongoing contact with mother.
DISCUSSION
Substantial Evidence Supports the Finding
That the Parental Relationship Exception to Adoption Does Not Apply
Mother
contends the dependency court erroneously terminated her parental rights based
on insufficient evidence that the benefits of adoption outweighed C.R.’s
continuing relationship with his mother.
She argues that her relationship with C.R. falls within the exception to
termination under section 366.26, subdivision (c)(1)(B)(i). We disagree.
We
apply the substantial evidence standard of review when a party challenges the
court’s determination that the exception under section 366.26, subdivision
(c)(1)(B)(i), does not apply. (In re
L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Autumn H. (1994) 27
Cal.App.4th 567, 576; compare In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [applying both substantial
evidence and abuse of discretion standards of review in a two-step process]; In
re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard
of review].)
title="">[3] If supported by substantial evidence, the
judgment or finding must be upheld, even though substantial evidence may also
exist that would support a contrary result and the dependency court might have
reached a different conclusion had it determined the facts and weighed
credibility differently. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
“We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court. [Citations.]†(In re Matthew S. (1988) 201
Cal.App.3d 315, 321.)
Under
section 366.26, subdivision (c)(1)(B)(i), if the dependency court terminates
reunification services and finds the child is adoptable, it must terminate
parental rights unless it “finds a compelling reason for determining that
termination would be detrimental to the child due to [the circumstance that the
parent has] [¶] . . . maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.â€
The
parental relationship exception “does not permit a parent who has failed to
reunify with an adoptable child to derail an adoption merely by showing the
child would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent.â€
(In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) “A parent must show more than frequent and
loving contact or pleasant visits.
[Citation.] ‘Interaction between
natural parent and child will always confer some incidental benefit to the
child. . . .’ [Citation.] The parent must show he or she occupies a
parental role in the child’s life, resulting in a significant, positive,
emotional attachment between child and parent.
[Citations.] Further, to
establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent
must show the child would suffer detriment if his or her relationship with the
parent were terminated.
[Citation.]†(
555, fn. omitted.) The type of
parent-child relationship that triggers the exception is a relationship which
“‘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.
. . .’ [Citation.]†(In re Brandon C. (1999) 71
Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, at pp. 1347-1350.)
Substantial
evidence supports the dependency court’s finding that the parental relationship
exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. First, there was substantial evidence that
mother did not meet the first prong of the parental relationship exception—regular
visitation and contact. (
When C.R. was initially found and detained in 2011, mother did not see
him for over a month, and there is no indication she made any effort to contact
the Department to arrange visitation. Mother
had regular monitored visits with C.R. four days a week until July 23, 2012,
and missed two weeks of visits because she lacked transportation. After entering an in-patient program in
September 2012, mother only saw C.R. on weekends. She did not visit C.R. at all between
December 3, 2012, and the February 26, 2013 permanency hearing. The court could reasonably infer from the
foregoing facts that mother no longer maintained regular visitation and contact
sufficient to meet the requirements of the parental relationship
exception.
Substantial
evidence also establishes that mother’s relationship with C.R. did not satisfy
the second prong of the parental relationship exception because it did not promote
his well-being “‘to such a degree as to outweigh the well-being the child would
gain in a permanent home with [a] new, adoptive parent[]. . . .’ [Citation.]â€
(In re Brandon C., supra,
71 Cal.App.4th at p. 1534.) Because of
her ongoing drug problems, mother never achieved unsupervised visits with
C.R. She was discharged from a drug
treatment program three times for noncompliance and tested positive for
marijuana multiple times. C.R. calls
mother “mommy,†and Lisa A. states “his mother is his world,†but he is not
upset when it is time to end a visit with his mother. He also took the information well when his
mother told him she would not see him for a long time. He expresses a desire to see his mother, but
he expects that Lisa A. will always pick him up. By comparison, permitting Lisa A. to adopt
C.R. is far more beneficial to C.R.’s well-being. Lisa A. has cared for him from the age of
four months until he was almost three years old. When C.R. was detained, she opened her home
and expressed a willingness to adopt C.R. if mother’s efforts at reunification
failed. Lisa A. is committed to
providing him with permanency and would do anything for C.R. Lisa A. has indicated she will continue
visits with mother so long as it is in C.R.’s best interest.
The
conclusion reached by the dependency court that no compelling reason existed to
conclude termination of parental rights would be detrimental is amply supported
by substantial evidence and not an abuse of discretion.
Father’s Arguments on Appeal
Lack Merit
Father contends he has standing to
appeal even though he is only an alleged father because he appeared and
asserted a position in the dependency proceeding. (In re
Emily R. (2000) 80 Cal.App.4th 1344, 1356.)
County counsel refutes that contention, arguing that father’s belated
section 388 petition is not enough to confer party status on an individual who
has repeatedly failed to participate in court-ordered paternity testing and
made no efforts to visit the child during the dependency proceedings.
Regardless of whether father’s
actions were enough to give him standing to appeal, we reject his arguments on
appeal as lacking in merit.
There is no valid basis for
reversing the termination of father’s parental rights.
Father’s
only argument for reversing the dependency court’s termination of his parental
rights is if the court reinstates mother’s parental rights, it would be in the
child’s best interest to reinstate father’s parental rights even in the absence
of error as to father. (
100, 110.) Having rejected mother’s argument on
appeal and affirmed the court’s order terminating her parental rights, we also
reject father’s argument and affirm the order terminating his parental
rights.
court’s denial of father’s section 388 petition.
Father also appeals the dependency
court’s order denying his petition under section 388 seeking presumed father
status and reunification services. His
brief offers no argument about the basis for his appeal, and our review of the
record reveals no basis for reversing the court’s denial of the petition. In summarily denying the father’s petition,
the court noted that “father has not met the child, did not follow through with
DNA testing, [and] has been incarcerated since December 20th of 2013 with an anticipated
release date of September 19th of 2016.â€
The orders are affirmed.
KRIEGLER,
J.
We concur:
MOSK,
Acting P. J.
KUMAR, J.
F.R. to be an alleged father on October 17, 2011.
Welfare and Institutions Code unless otherwise stated. The section 366.26 hearing is referred to as
the permanency hearing.
