In re Daniel P.

Filed 9/19/07 In re Daniel P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Stanley Genser, Commissioner. Affirmed.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Pauline R. (mother) appeals an order of the juvenile court terminating her parental rights with respect to four-year-old Daniel P. We reject mothers contentions on appeal and affirm the juvenile courts order.

BACKGROUND

In March of 2004, the Department of Children and Family Services (DCFS) detained mothers two youngest children, Christopher then age 8 years and Daniel then age 19 months. DCFS detained the children based on a report of domestic violence at the residence mother shared with Christophers father, Michael R., and Daniels father, Adriano P. Mother was treated at a mental health facility following this incident. After a month in foster care, Christopher and Daniel were placed with Daniels paternal grandmother, Maria P. The dependency petition, as sustained on May 6, 2004, alleged mothers mental and emotional problems.

A social report filed for the six-month review hearing on November 29, 2004, indicated mother was complying with the case plan and was testing negative for drugs. Christophers father, Michael R., was in jail on a grand theft charge. Maria P. offered to have mother and Adriano P. reside with her so they could spend more time with Christopher and Daniel. Mother and Adriano P. declined the offer because Maria P. had strict rules. At the review hearing, the juvenile court granted mother unmonitored day visits and indicated DCFS could liberalize the visits to overnight if mother obtained appropriate housing and was in compliance with the case plan.

A social report prepared for a review hearing on May 19, 2005, indicated mother tested positive for methamphetamine on March 24 and April 4, 2005. Mother had enjoyed a few overnight visits with the children which reportedly had gone well. Mother also had visited the children at Maria P.s home and mother had stayed overnight with Maria P.s permission. However, Maria P. complained mother slept late and did not follow Maria P.s schedule. When Maria P. asked mother to leave, an argument ensued.

On May 19, 2005, Christophers counsel filed a section 388^[1]petition requesting that further visits by mother, Michael R. and Adriano P. be monitored. Attached to the petition was a declaration submitted by Maria P. who reported that mother and Adriano P. disrespected, abused and intimidated her.

On May 19, 2005, the juvenile court ordered mothers visits to be monitored by a DCFS approved monitor in a neutral setting and directed that neither father should be present during mothers visits. On June 13, 2005, the juvenile court indicated it would change mothers visitation to unmonitored upon her submission of six consecutive clean drug tests.

A social report prepared for a September 23, 2005 hearing indicated Maria P. wanted to become the legal guardian of Christopher and Daniel in order to provide a positive and nurturing home for the boys, who were thriving in her care. Maria P. was not interested in pursuing adoption. Mothers visits continued to be monitored as she had not had six consecutive negative tests. Mother was residing in the same home as Michael R. and Andriano P.

On October 27, 2005, the juvenile court terminated family reunification services and set the matter for a permanency planning hearing on February 23, 2006.

A social report prepared for a February 23, 2006 hearing indicated mother tested positive for methamphetamine on January 6, 2006. The report recommended that Maria P. be appointed the legal guardian of Christopher and Daniel. A planning assessment submitted by DCFS indicated Christopher and Daniel both were considered adoptable and that separation of the children would be detrimental to their emotional well-being.

On February 23, 2006, the juvenile court continued the matter to allow DCFS to investigate a petition for modification under section 388 filed by Michael R., which sought to have Christopher and Daniel placed in his custody. Michael R.s petition indicated he had moved to a three-bedroom home in Victorville and he no longer resided with mother and Adriano P., who had been arrested for arson and violation of probation. Michael R. asserted he worked from his home and thus would be able to care for both children on a full time basis. The report noted Christopher wished to be placed with his father, Michael R., and that Christopher wanted Daniel to live with them. DCFS recommended placement of Christopher and Daniel with Michael R. in Victorville and again indicated it would not be in their best interests to separate them.

However, Daniels counsel objected to the change in placement and Michael R. withdrew the petition as to Daniel. On March 24, 2006, the juvenile court granted Michael R.s petition as to Christopher. Daniel remained placed with Maria P., who now wishes to adopt Daniel. The juvenile court directed DCFS to assign an adoption worker to the case and to provide Maria P. a homestudy packet. The juvenile court ordered that Michael R. not act as the monitor for mothers visits and that mother not to reside in Michael R.s home in Victorville. The juvenile court directed Michael R. to facilitate visits between Christopher and Daniel.

A social report filed May 2, 2006, recommended transfer of jurisdiction in Christophers case to San Bernardino County.

Mother filed a petition for modification on June 22, 2006, seeking return of Daniel to her custody. Mother asserted she now lived in a two-bedroom apartment in Long Beach and she was participating in drug testing.

A social report prepared for June 22, 2006, indicated Maria P. had no criminal record and her home had been found to comply with AFSA standards. Thus, it was highly likely Maria P. would be able to adopt Daniel if parental rights were terminated. The juvenile court continued the matter for supplemental reports and completion of Maria P.s home study.

On July 19, 2006, DCFS reported that mother was prescribed psychotropic medication (Risperdal and Lexapo) on May 31, 2006, for her schizo-affective disorder. Mother had not received psychiatric counseling over the previous year. The CSW noted Maria P.s homestudy was being delayed by her inability to obtain a spousal consent from her estranged husband who was whereabouts unknown somewhere in Brazil. Maria P. would have to either obtain the spousal consent or a divorce. Maria P. indicated she would continue to try to contact her husband through friends and, if she could not obtain a spousal waiver, she would obtain a divorce. Mother completed a three-month residential drug treatment program, although a nine-month program had been recommended. Additionally, mother was not participating in the outpatient drug program.

On July 19, 2006, the juvenile court continued the matter for supplemental reports and completion of Maria P.s homestudy.

In a social report prepared for a hearing on August 24, 2006, DCFS reported that on July 29, 2006, Michael R. drove Daniel and Maria P. to Victorville for an overnight visit with Christopher in Michael R.s home. Mother also was living in Victorville at the time. The CSW advised Maria P. not to allow further overnight visitation without a court order. Maria P. admitted it had been a mistake and promised not to do it again.

DCFS reported mothers visits with Daniel had been sporadic. Maria P. indicated mother failed to create an appropriate bond during visits and she appeared confused at times. Mother told Maria P. a two-hour visit was too long for her. Mother had ceased drug testing and now planned to move to Maria P.s home with Daniel. With respect to the homestudy, Maria P.s efforts to obtain a spousal waiver remained ongoing and the CSWs interviews and evaluation of Maria P.s home would be completed shortly.

On August 24, 2006, the juvenile court conducted a contested hearing on mothers section 388 petition. Mother testified she completed a 90-day residential program on June 10, 2006, and she now attends NA meetings three times per week. Mother denied she ever said two-hour visits were too long. Rather, mother complained the visits were too short and she requested visits at Maria P.s apartment, rather than a McDonalds. Mother testified she commenced taking Wellbutrin, which was prescribed by her new psychiatrist, and claimed she attended Long Beach Mental Health Center every six months for assistance with her dual diagnosis of schizophrenic disorder and depression. Mother indicated she wanted Daniel placed with her so that Michael R., Daniel, Christopher, mother and mothers 18-year-old son, George, could live together as a family.

On August 28, 2006, mother withdrew her section 388 petition. DCFS thereafter reported that, although Maria P. loves mother, mother could not reside in Maria P.s home for a variety of reasons, including Maria P.s suspicion mother was using drugs.

On September 25, 2006, DCFS reported Maria P.s immigration attorney was going to refer Maria P. to a Portuguese speaking divorce attorney. The matter again was continued for supplemental reports.

In October of 2006, DCFS reported mother had drug tested several times but continued to miss tests. Further, mothers medication had been increased because mother continued to hear voices.

On October 31, 2006, the juvenile court commenced a contested hearing under section 366.26. The juvenile court agreed to consider mothers testimony from the hearing on her section 388 petition. Mothers counsel called Michael R. who testified that between March and October 2006, Michael R. attended as many as 10 of mothers visits with Daniel. Michael R. indicated Daniel loves mother and does not want mother to leave at the end of visits. According to Michael R., Daniel misses mother, Puppers (the dog), Christopher and Michael R., in that order. Michael R. at first stated Christopher visited Daniel twice after Christopher moved to Victorville. However, he later testified there had been seven such visits. After Michael R.s testimony, the contested hearing was continued.

On December 18, 2006, DCFS reported Maria P. had contacted a notary public who was going to help her locate her husband in Brazil. The CSW anticipated Maria P.s homestudy would be approved upon receipt of Maria P.s divorce decree or a spousal consent from her husband. The CSW indicated it would take six months for Maria P. to obtain a divorce decree once Maria P. initiated the process.

The contested hearing under section 366.26 was continued several times and resumed on March 27, 2007. Christopher testified he was 11 years of age and currently lived in Victorville with his father. Christopher indicated he visited Daniel only once in a while because Christopher was busy with school and other activities. Also, it required a two-hour commute to visit Daniel. Christopher did not want Maria P. to adopt Daniel as that would end their sibling relationship and Daniel was the only brother [Christopher would] ever see grow up. Christopher indicated they went to Disneyland on Daniels last birthday. When counsel asked if Daniel confided in him, Christopher responded Daniel cant talk. Hes a baby. So not yet. However, Christopher missed Daniel and thought about him often. Christopher indicated he had visited Daniel about five times in 2007. When asked if he would like to visit Daniel overnight at Maria P.s home, Christopher replied he might visit on a weekend or during vacation if I feel like it, but he could not visit on a school night.

The juvenile court denied mothers request to call Daniel as a witness, indicating four-year-old Daniel was too young to provide meaningful information about his preferences and there was an issue with respect to his competence to testify.

The juvenile court took the case under submission. On April 13, 2007, the juvenile court terminated mothers parental rights as to Daniel. The juvenile court found the parental relationship exception did not apply because mothers contact with Daniel was infrequent and she did not occupy a parental role in Daniels life. Regarding the sibling relationship exception, the juvenile court found Daniels contact with Christopher had been infrequent and there was substantial evidence the sibling relationship would continue even if parental rights were terminated.

CONTENTIONS

Mother contends the sibling and parental relationship exceptions to termination of parental rights applied in this case, there was insufficient evidence that terminating parental rights achieved long-term security for Daniel, and the evidence did not support the juvenile courts finding Daniel was likely to be adopted.

DISCUSSION

1. The sibling relationship exception does not apply.

a. Mothers arguments.

Mother contends the juvenile court should have applied the sibling relationship exception to protect Daniels long-term relationship with Christopher. Mother asserts Christopher and Daniel have a significant relationship based on the amount of time they lived together, their shared experiences and the deep love Christopher exhibited for Daniel. Mother notes DCFS acknowledged the special relationship between Christopher and Daniel in 2005 when it recommended guardianship of Christopher and Daniel, not adoption, by Maria P. Even when Michael R. requested custody of Christopher in March of 2006, DCFS recommended that Daniel also be placed with Michael R. to maintain the sibling relationship. Further, there was no guarantee sibling contact would continue after termination of parental rights in that Maria P. already had expressed concern with continuing contact. Finally, mother argues that, because Daniel was securely placed in Maria P.s home, legal guardianship would provide Daniel the same stability as adoption and would maintain the sibling relationship. Mother concludes the termination of the sibling relationship deprived Daniel of his sense of family and the juvenile court should have preserved this vital life-long anchor through an intact, legal relationship.

b. Statutory framework.

At a hearing under section 366.26, the court is required to select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. [Citations.] In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. [Citation.] The parent then has the burden to show termination would be detrimental to the minor under one of [six] specified exceptions. ( 366.26, subd. (c)(1)(A)-( [F] ).) In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court shallterminate parental rights . . . . ( 366.26, subd. (c)(1), italics added; [citation]. ) [Citation.] (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

To establish the sibling relationship exception, a parent must show: There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)

The parent bears the burden of proving both the existence of the sibling relationship and that its severance would be detrimental to the child. (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523.) We review the juvenile courts decision under an abuse of discretion standard. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)

c. Resolution.

Here, Christopher and Daniel lived together with Maria P. until April of 2006, when Christopher went to live with Michael R. in Victorville. Thereafter, sibling visitation was infrequent due to the distance between Victorville and Maria P.s home in Anaheim. Thus, regardless of whether Maria P. adopted Daniel or became his legal guardian, the sibling relationship was destined to change after Christopher moved to Victorville. However, there was no indication the relationship between Christopher and Daniel would cease upon termination of mothers parental rights. Maria P. had been supportive of parental and sibling visitation in the past. Although mother refers to Maria P.s resistance to visitation, the only evidence of such resistance was related to the problems caused by the parents. In sum, there was no reason to believe Maria P.s favorable attitude toward sibling visitation would change after she adopted Daniel.

Additionally, there was no evidence that Daniel suffered any substantial ill effect after Christopher moved to Victorville. Although Christopher testified he missed Daniel and wondered what he was doing, Michael R. testified Daniels primary attachment was to mother, then to the family dog, and somewhere below this attachment was Daniels relationship with Christopher. Thus, it makes little sense to require Daniel to pay the price of maintaining the sibling relationship in its weakened state at the expense of foregoing the benefit Daniel would gain through adoption by Maria P. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)

Mother places great weight on DCFSs earlier recommendation that Christopher and Daniel not be separated. However, this recommendation must be understood in its context. At the time of that recommendation, Christopher and Daniel were living together. DCFSs recommendation sought to maintain the sibling unit. However, after the siblings were separated by forces beyond the control of DCFS or the juvenile court, DCFS was required to rethink its recommendation. Given the circumstances presented after Christopher moved to Victorville, it clearly was in Daniels best interest to pursue the permanence of adoption.

Maria P.s previous request for legal guardianship and not adoption does not undermine our confidence in this result. Rather, it was natural for Maria P. to reweigh her options after Christopher was removed from her care. Although the legal vehicle under which Maria P. sought to care for Daniel changed from legal guardianship to adoption, her desire to provide Daniel a safe and permanent home remained constant.

Mothers assertion guardianship is comparable to adoption based on the facts of this particular case overlooks the reality that, as a matter of law, guardianship is not irrevocable and thus falls short of the secure and permanent placement of adoption which the Legislature has identified as the preferred permanent plan where a dependent child cannot be returned to his or her parents. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419; In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)

In sum, the juvenile court reasonably could determine the benefits of a stable adoptive home outweighed the benefit of a continued relationship with Christopher. Accordingly, substantial evidence supports the juvenile courts finding the sibling relationship exception did not apply. (In re L.Y.L., supra, 101 Cal.App.4th at p. 953.)

2. The parental relationship exception.

a. Mothers arguments.

Mother contends the parental relationship exception to termination of parental rights applied in this case because mother visited regularly and had overnight visitation for a time. Also, Daniel developed a relationship with mother during the first 19 months of his life when Daniel was in mothers care. Mother asserts Daniel had a strong attachment to her as his mom. Mother notes there was no assurance in this case that mother/child contact would continue after termination of parental rights because the relationship between mother and Maria P. was strained.

b. Relevant principles.

The parental relationship exception arises where [t]he parents 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 parent bears the burden of showing not only that the requisite regular visitation and beneficial relationship exist, but also that termination of parental rights would be detrimental to the children. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) [T]he 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. (Id. at p. 1348.) 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. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the childs life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

c. Resolution.

Mother has not shown this to be an extraordinary case. Michael R. testified mother and Daniel had an affectionate relationship and indicated they played during visits. However, there was no evidence that mother acted in a parental role toward Daniel. Absent such evidence, mother remained a friendly visitor. Such a relationship is inadequate to prevent termination of parental rights. (In re Dakota H. (2005) 132 Cal.App.4th 212, 231; In re Angel B. (2002) 97 Cal.App.4th 454, 468.)

Additionally, it does not appear that Maria P. will prevent mothers contact with Daniel after parental rights are terminated. Throughout the case, Maria P. has shown herself to be amenable to visitation by mother. Indeed, at the outset of the case Maria P. offered to allow mother and Adriano P. to reside with her but they declined because Maria P. had too many rules. Further, although mother complained about Maria P., it was mother who created problems for Maria P. by refusing to follow her house rules and abusing drugs.

In sum, no abuse of the juvenile courts discretion appears in its finding the parental relationship exception did not apply. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.)

3. The record discloses thatDaniel was likely to be adopted.

Mother contends there was insufficient evidence to demonstrate Daniel was likely to be adopted within a reasonable time. Mother notes the juvenile court failed to make a specific finding in this regard when it terminated parental rights. Mother concedes the order terminating parental rights may be upheld if the record supports an implicit finding that Daniel is likely to be adopted. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.) However, mother asserts such a finding cannot be made here. Mother argues Maria P. was never formally interviewed with respect to her desire to adopt Daniel, and Maria P. previously expressed only a desire to become legal guardian. Mother claims Christophers change in placement may have instilled fear in Maria P. that Daniel might be taken from her if she did not adopt him. Mother asserts the juvenile court should have explored the reason for Maria P.s change of heart before finding Daniel was likely to be adopted. Mother notes there is no information in the record as to Maria P.s age or whether she had any medical issues that might impede her ability to care for Daniel. Finally, mother argues the homestudy process had stalled and the juvenile court should not have proceeded until Maria P. had obtained a spousal consent or a divorce decree.

Contrary to mothers argument, the record in this case demonstrates abundant support for the juvenile courts implicit finding that Daniel was likely to be adopted within a reasonable time. A prospective adoptive parents willingness to adopt generally indicates a child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

Here, mother concedes Daniel is a healthy four-year-old boy. Mother has not pointed to any factors that might make Daniel difficult to place for adoption. Thus, even if Maria P. has a change of heart or cannot obtain spousal consent or a divorce, substantial evidence supports the juvenile courts finding Daniel was likely to be adopted.

With respect to mothers concerns about Maria P.s age and her health, the social reports before the juvenile court included Maria P.s date of birth and Maria P. submitted medical information in connection with her application to adopt Daniel. Thus, the juvenile court had sufficient evidence before it to permit it to determine Maria P.s age and health were not impediments to her adoption of Daniel.

Regarding Maria P.s change in request from legal guardianship to adoption, it previously has been noted that there is nothing suspect in this development. With respect to mothers assertion the juvenile court did not understand Maria P.s motivation in seeking to adopt Daniel, the social reports consistently reflected Maria P.s desire to provide a nurturing and secure environment for Daniel.

In sum, substantial evidence supports the juvenile courts finding that Daniel was likely to be adopted.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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