In re D.P.

Filed 7/17/07 In re D.P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

D. Zeke Zeidler, Judge. Affirmed.

Maureen L. Keaney for Appellant Minor, D.P.; Aida Aslanian, for Appellant Father, Eddie H.; and Harry Zimmerman, for Appellant LaTanya P., under appointment by the Court of Appeal.

Raymond G. Fortner, Jr., County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

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LaTanya P. (mother) and Eddie H. (father) appeal the trial court's denial of mother's Welfare and Institutions Code^[1] section 388 petition and the termination of parental rights to their daughter D.P. D.P. also appealed the latter ruling. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When D.P. was born in August 2004 both she and mother tested positive for cocaine, and mother tested positive for opiates. Mother had a long history of substance abuse, and her older children, Daniesha (born in 1986), L. (born in 1977), and Darius (born in 1999), had been the subjects of dependency court jurisdiction in the past.

The Department of Children and Family Services (the Department) filed a section 300 petition on August 11, 2004. D.P. was detained with mother's cousin, Deborah R. ("Deborah"), while Darius was placed in the home of his maternal aunt, Sylvia H. Both mother and father reported that, after several years of sobriety, they had each relapsed into drug use in 2002. In November 2004, both parents submitted to the amended section 300 petition allegations that they had a history of domestic violence, mother had a 30-year history of poly-substance abuse, and father had a long-standing history of cocaine and alcohol abuse. The juvenile court sustained an additional allegation that they had failed to comply with prior court orders to complete drug rehabilitation programs and random drug and alcohol testing, and mother failed to reunify with D.P.'s siblings.

At the December 2004 disposition hearing, the court ordered that both parents were to receive reunification services, and were permitted twice-weekly monitored visits with D.P.

At the time of the April 2005 six-month review hearing, parents were in compliance with their court-ordered programs, including domestic violence education and counseling, parenting education, and drug testing. They had been visiting D.P. regularly, and the children's social worker (CSW) reported that the minor appeared attached to mother although not to father, an observation confirmed by Deborah. The court ordered that services continue to be provided, and allowed parents unmonitored visits.

The Department filed a section 388 petition shortly thereafter, requesting that the parents' visits be restricted. At the June 27, 2005 hearing on that petition, the Department reported that mother's drug program planned to discharge her due to positive drug tests and poor attendance. It was also reported that, while mother visited with Darius approximately 15 times a month, she visited with D.P. only three times. Similarly, it was reported that father visited with Darius about 10 times per month, but had not visited D.P. since the middle of May. The court denied the Department's section 388 petition with respect to mother, and ordered that father's visits be monitored. The twelve-month review hearing was set for September 2, 2005.

In May 2005, Darius's caretaker indicated that she was willing to provide long-term care for Darius, but would not adopt him, and that she was not interested in caring for D.P. Deborah stated that she was willing to adopt both D.P. and Darius, if necessary, but knew that Darius and his caretaker wanted to live together. In June 2005, the adoptions CSW recommended that a home study be completed on Deborah to adopt both children.

In the report prepared for the twelve-month review hearing, it was reported that father visited D.P. once in June and attended her birthday party in August. Mother visited three times in May, once in June and twice in July. Father missed a July 27 drug test, and tested positive for cocaine on August 12, 2005.

At a Family Group Decision Meeting held on August 12, 2005, the Department informed parents that it would recommend that the juvenile court terminate family reunification services for father, that Darius be returned to mother, and that six additional months of reunification services with D.P. be provided to mother. At that meeting, mother was very agitated, anxious, and shaking, raising suspicions that she was using drugs or likely to do so. Consequently, the CSW asked and mother agreed to submit to an on-demand drug test five days hence. Mother did not drug test, stating that she forgot.

The twelve-month review was heard on September 27, 2005. The CSW reported that mother tested positive for cocaine on September 12. The juvenile court restricted mother's visits to monitored, terminated reunification services, and referred the matter for a section 366.26 hearing for February 9, 2006.

The CSW's report for that hearing stated that the parents continued to miss drug tests and tested positive. Deborah indicated that the parents had not had much contact with D.P., but saw Darius often as his caretaker's daughter lived next door to the parents. The family believed that the parents were bonded with Darius but not with D.P. D.P. was, however, very attached to Deborah.

Deborah stated that she wanted to adopt D.P. because she loved her and wanted to give her a permanent home. At a January 24, 2006 Team Decision Meeting with the social workers and caretakers of Darius and D.P., the parties discussed the permanent plans for these minors. D.P.'s permanent plan was to be adopted by Deborah, while Darius's permanent plan was legal guardianship, since Darius's caretaker, Sylvia, did not want to adopt without the child's permission, and six-year-old Darius stated that he would prefer to be with his mother. The social worker recommended that Darius and D.P. be declared a sibling group. The children's and parents' attorneys opposed this recommendation. The contested section 366.26 hearing was continued to April 23, 2006.

In the interim, father was arrested for domestic violence on February 12, 2006.

At the April hearing, Darius's caretaker reiterated that she did not wish to adopt Darius, but that he should not be removed from her home. The juvenile court declared the minors a sibling group, and continued the matter to August 7, to give the Department time to identify a prospective adoptive placement for both children.

Deborah indicated before the August 2006 hearing that the parents had not had much contact with D.P. Conversely, Darius had weekend monitored visits with his parents. Darius told his social worker that he liked his caretaker but did not want to be adopted. He also stated that he liked to play with D.P., but did not want to live with her.

At the August hearing, the juvenile court ordered the Department to complete the adoption home study for D.P. It also appointed Darius's caretaker as his legal guardian.

Mother filed a section 388 petition on October 3, 2006. She requested that the juvenile court reinstate reunification services, order that D.P. be returned to her custody, vacate its order for a section 366.26 hearing, and allow her unmonitored and overnight visits. The court scheduled a hearing on the petition for October 31, 2006, later trailed to November 9.

At that hearing, the court received evidence that mother was participating in an outpatient drug treatment program with an anticipated completion date of February 2007, but the Department had not been able to verify her drug test results because she had not signed a release. Deborah's home study was reported to have been approved. The court also found that mother was not having unmonitored visits, making it inappropriate to return D.P. to her under those circumstances.

Mother testified about her visitation with D.P. as follows: When the minor was first removed in 2004, Deborah transported the child to the visits about once a week. Mother had visited with D.P. once or twice between December 2005 and March 2006, and at least once a month between March and June 2006. Mother explained that the limited number of visits were a restriction of her drug treatment program. Since June 2006, mother was seeing D.P. once a week for eight hour visits. At the visits, mother fed D.P., combed her hair, changed her, played with her and talked to her.

Mother also testified that she learned that she had to stay connected to her program and do the steps and go to the meetings. She believed that things were different this time because she was not quite ready before. To deal with her triggers, she had to call one of her counselors, someone in the program, or go to a meeting. She had a sponsor, but had not spoken with the sponsor for several weeks. She did not know why she had relapsed in October 2005, but knew that she was finished with drugs because she did not have the urge to use. She had not had to call anyone for support.

Father testified that he was willing to move out. He had completed a year-long domestic violence program in 2005, but had been arrested for domestic violence in February 2006.

Deborah testified that mother did not visit much at the beginning of the year; she had three visits between December 2005 and July 2006. She visited on the Fourth of July and began visiting every week in August. Deborah testified to her willingness to adopt D.P.

The Department recommended that the section 388 petition be denied, based on concerns about the possibility of the parents relapsing and their history of domestic violence.

The court explained that it was inappropriate to allow overnight visits or return D.P. to mother's custody when there had been no unmonitored day visits. The court remarked that mother was living with father, and their domestic violence problems persisted. The court noted as well that mother and her children had been involved in the dependency system for 20 years. The court found that D.P.'s best interests would not be promoted by the proposed change of order.

The court proceeded with the section 366.26 hearing. Father testified that since August 2006, he visited with D.P. at least once a week for four to eight hours. Before that, he visited with her about twice a month. His relationship with his daughter was a "work in progress." He played with her, occasionally fed her, and purchased dolls and other things for her. Sometimes she immediately ran up to him at visits, and other times she had to warm up to him. He attempted to call her once a week.

Deborah testified that she made sure that D.P. knew who her father was and that Deborah was "just the caretaker." Sometimes D.P. was receptive to father's visits, while other times she was not. Deborah repeatedly explained to D.P. that Eddie was her father and what that meant. She conceded that father did not live with D.P., change her diapers everyday, bathe or feed her, or provide for her financially. Deborah also testified that, once she arrived at the parents' home, mother did everything for D.P. fed her, changed her diapers, braided her hair. D.P. looked forward to visits with her parents, but had no difficulty leaving the visits.

Deborah further testified that she understood that adoption was permanent. She was told that "Kin-gap adoption" allowed the parents to remain in the child's life, but she also understood that she would be the parent. Mother's attorney asked Deborah whether she had any personal or health limitations which prevented her from caring for D.P. Deborah responded that she had an artificial leg, but that was not a problem.

The juvenile court interrupted to ask about the relevance of counsels questions and whether she was implying that the section 366.26, subdivision (c)(1)(D) exception applied. The court indicated that it had not heard from Deborah that she was unable or unwilling to care for D.P., and an artificial leg was not an exceptional circumstance. In response to the court's question whether there was an "exception circumstance physical circumstance" that made her unable to adopt D.P., Deborah replied "no." Counsel suggested that she was referring to the possible pressure the Department applied to encourage Deborah to pursue adoption instead of legal guardianship; the court stated that that was not an exceptional circumstance that made Deborah unable to adopt.

The hearing was continued to November 13. At that time, Deborah testified that mother's visits had only been regular since August 2006, and that the bond between D.P. and her parents consisted of knowing them, going to them, and asking where her mother was.

Mother testified that she acted as a parent to D.P. by speaking with her on the telephone, watching over her, hugging, holding and kissing her. D.P. had been warming up to her more in the past month and had been asking to go to her home. They played and talked. D.P. called her "mom." Mother's continued relationship with D.P. was more important that the permanency of an adoptive home because she could give the child the love and affection of a mother. Mother had never lived with D.P.; D.P. had never expressed a desire to live with mother; their current visits were monitored. Mother told D.P. that she loved her, and D.P. responded that she loved her too.

In closing argument, parents' and D.P.'s attorneys argued that the section 366.26, subdivision (c)(1)(A) visitations exception applied. The trial court disagreed. It found that mother's visits were more consistent than father's, but that visitation had become consistent only since late July or August. In fact, parents had been in and out of D.P.'s life, and there was no reason to believe that the parents' established pattern of instability would not continue in the future. The court was not convinced that the parents had occupied a parental role in D.P.'s life. The court concluded that the evidence presented did not outweigh the benefits of permanent adoption. The court therefore terminated parental rights and ordered the Department and D.P.'s attorney to explore Kinship Adoption. A review hearing was set for February 2007.

Mother and D.P. each filed a notice of appeal challenging the court's denial of mother's section 388 petition and termination of parental rights, while father appealed only the termination of rights. Sadly, Deborah had a heart attack and passed away on January 16, 2007. D.P. is in a temporary placement with Darius's caretaker.

DISCUSSION

1. Denial of section 388 petition

Pursuant to section 388, a parent may petition the juvenile court to change, modify or set aside a previously made order. The burden is on the moving party to establish that, due to a change of circumstances or new evidence, the proposed modification is in the child's best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 302.)

The juvenile court expressly found that there was no change in circumstances which warranted granting the petition. Mother's long-standing drug use, history of domestic violence with father, and inconsistent and limited visits with D.P. continued throughout the dependency proceedings. The record is replete with evidence supporting the finding of no change in circumstances.

Mother cites as evidence in support of her petition the following: ". . . after sporadic attempts in 20 years to come to grips with her addiction[,] she had completed a six-month residential treatment program that began March 1, 2006 and was following it up with an outpatient program, that would be completed in November 2006; both programs required random drug testing of appellant, all of which had been negative; she had completed parenting and counseling [programs]; she continued with a 12-step program; and she worked full time at a church."

After 30 years of alcohol and drug abuse, mother's eight months of sobriety constituted a substantial, positive change in her life. It was not, however, her first attempt at sobriety. Mother had participated in at least three drug treatment programs before D.P. was born, and two others during the pendency of this proceeding, but had relapsed again and again. Moreover, although mother's recent success in a drug treatment program was certainly a change for the better in her life, it did not amount to a change of circumstances within the context of this dependency proceeding sufficient to warrant the proposed modification, that is, return of D.P. to her custody and reinstitution of reunification services. Consequently, substantial evidence supports the juvenile court's finding that mother did not establish a change in circumstances necessary to support a successful section 388 petition.

2. Termination of parental rights

The purpose of the section 366.26 hearing is to enable the juvenile court to select a permanent plan for a dependent child who cannot be returned home because reunification efforts have failed. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The statutory presumption is that adoption is in the child's best interests. ( 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.)

Here, the juvenile court found that D.P. is adoptable and that there did not appear to be any impediments to adoption. Once the Department has shown that it is likely the child will be adopted, the burden shifts to the parent to prove that termination of parental rights would be detrimental to the child because of one of the statutory exceptions contained in section 366.26, subdivision (c)(1). ( 366.26; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

a. Section 366.26, subdivision (c)(1)(A) exception

All three appellants claim on appeal that the juvenile court erred in ruling that the section 366.26, subdivision (c)(1)(A), or visitations, exception to termination of parental rights did not apply. We review the record to determine whether substantial evidence supports the trial court's finding. (In re Megan S. (2002) 104 Cal.App.4th 247, 251; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Pursuant to section 366.26, subdivision (c)(1)(A), the juvenile court is to terminate parental rights unless it finds 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 with the parent. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The exception applies where the "visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at. p. 575.) The level of attachment required to overcome the presumption in favor of adoption is not the "frequent and loving contact" of a pleasant visitor. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Rather, it must be a significant relationship that arises from "day-to-day interaction" in which the adult tends to the child's needs for "physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In short, the parent/child relationship must be sufficiently strong that the child "would be greatly harmed" by its severance. (Ibid.)

Parents did not maintain consistent visits with D.P. over the course of the dependency proceeding. Father had not been visiting regularly between April and June 2005; he visited D.P. once in June and attended her birthday party in August of that year. Mother visited three times in May, once in June and twice in July 2005. Between December 2005 and March 2006, mother visited once or twice, and then at least once a month between March and June 2006. Father testified he visited about twice a month before August 2006. It wasn't until several months just preceding the section 366.26 hearing that parents began to visit D.P. regularly, that is, once a week. Thus, parents do not satisfy the threshold requirement of the visitations exception to the statute.

We note as well that, though granted unmonitored visits in April 2005, both parents soon lost that privilege due to positive drug tests. A parent's failure to progress beyond monitored visitation and to fulfill a "meaningful and significant parental role" justifies an order terminating parental rights. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.)

Moreover, parents proffered no evidence that D.P. would benefit from continuing the relationship. Deborah testified that the bond between parents and child consisted of the latter's knowledge of who her parents were, going to them, and asking where her mother was. Mother's role in D.P.'s life was closer to that of a playmate than a parent. D.P. had been asking to go to mother's home and had been warming up to her only in the month prior to the hearing. D.P. never expressed a desire to live with her mother.

There was even less of an attachment between D.P. and father. In February 2005, Deborah reported that father did not attempt to hold D.P. or otherwise interact with her. When the CSW observed the parents with D.P. in April 2005, she appeared attached to her mother, but not to her father. Father subsequently discontinued visits almost entirely because he did not like to be monitored.

In short, substantial evidence demonstrated that the limited number and quality of the parents' visits with D.P. did not cultivate the type of beneficial relationship that would have established that the visitations exception applied.

b. Section 366.26, subdivision (c)(1)(D) exception

All three appellants also contend that the juvenile court erred by preventing parents from introducing evidence to prove that the section 366.26, subdivision (c)(1)(D), or relative unwilling to adopt, exception applied.

Section 366.26, subdivision (c)(1)(D) provides that the juvenile court shall terminate parental rights unless the court finds that termination would be detrimental to the child because "the child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child."

The parents and child argue on appeal that the juvenile court abused its discretion when it excluded evidence of the caretaker's opinion as to what permanent plan best suited D.P., and consequently prevented appellants from establishing the (c)(1)(D) exception. We find no abuse of discretion.

Appellants rely on In re Fernando M. (2006) 138 Cal.App.4th 529 to argue that the (c)(1)(D) exception applies to the facts of this case. In Fernando, a 17-month old child with many special needs had lived with his maternal grandmother his entire life. The grandmother was also raising two of the minor's siblings, who were not dependents of the juvenile court. Mother, like parents here, did not begin consistent visits with the child until the months just preceding the section 366.26 hearing. The Department recommended adoption as the permanent plan, notwithstanding that grandmother's husband would not adopt, thus requiring a spousal waiver in order for grandmother to proceed with adoption. Mother and grandmother had requested legal guardianship as the long-term plan. Grandmother testified that she did not want to adopt because the child "belongs to my daughter, and I know that one day she will get him back." Grandmother also testified to the minor's very close relationship to his siblings, with whom he regularly played. The juvenile court found that the (c)(1)(D) exception did not apply, explaining: "'this is a grandmother who has already taken care of two of this mother's kids already, and there's just no exceptional circumstances.'" (Id. at pp. 533, 534.) The court terminated mother's parental rights.

Our colleagues in Division Eight of this District's Court of Appeal reversed the order terminating parental rights. In so doing, the appellate court noted that the juvenile court made no finding that the grandmother was willing and able to adopt, nor did it consider "the emotional upheaval [the minor] would suffer as a result of being removed from the home he had lived in almost his entire life, a home the trial court had earlier indicated he would never leave." (In re Fernando M., supra, 138 Cal.App.4th at p. 537.) The appellate court also found three exceptional circumstances to exist, within the meaning of the (c)(1)(D) exception, to wit: (1) adoption would disrupt the minor's relationship with his two siblings, with whom he had lived all his life;^[2] (2) since the grandfather had indicated his unwillingness to adopt, adoption would "invade the private realm of [the grandmother's] marriage;^[3] and (3) as the Department reported, [the minor] "has many special needs and requires stability and consistency in order to progress developmentally; . . . [the grandparents] are able to meet [the minor's] special needs and provide him with a safe and stable home environment." (Id. at p. 533.) The appellate court reasoned that removing the child from the only home he had ever known and searching for another adoptive family would deprive him of the very stability which the Department stated he needed and the grandmother provided.

Appellants find the facts of this case "strikingly similar" to the circumstances in In re Fernando, supra. D.P.'s attorney argues: "Like grandmother in Fernando M., Deborah was 'all for' [mother] getting her act together and reunifying. Like mother in Fernando M., [mother] had achieved several months of sobriety. Unlike mother in Fernando M., who had not yet established a relationship with her child, [mother] and D.P. interacted and Deborah described their relationship as 'good.' . . . [] [D.P.] submits the facts of this case are as readily peculiar as those presented in Fernando M."

The facts which the Fernando M. court found pertinent for purposes of the (c)(1)(D) exception were not those cited above, but the facts that (1) the minor lived with siblings who were not dependents of the juvenile court; (2) although he was bonded to both of his grandparents, one but not the other wished to adopt him; and (3) his special needs made stability and consistency more crucial to his well-being than they are to other children. None of these facts, nor any similar to them, are present in the instant case. Deborah never expressed an interest in legal guardianship or indicated that she was unwilling to pursue adoption. Rather, she consistently stated that she was willing to adopt D.P.; indeed, she called the adoptions CSW to let her know that she had completed all of the required documents for the home study. Deborah did indicate that she was interested in an "open" or "Kin-gap" adoption because she wanted the parents to be part of D.P.'s life. However, she understood that adoption was permanent, and that she would be the parent.

Appellants complain that the juvenile court refused to permit testimony which would establish the applicability of the (c)(1)(D) exception. Specifically, mother's trial attorney asked Deborah whether she had any personal or health limitations which would prevent her from caring for D.P.; Deborah said no. The juvenile court then interrupted to inquire about the relevance of the question and whether she was implying that the (c)(1)(D) exception applied. When counsel said that perhaps it did, the court probed her further by indicating that it had not heard from Deborah that she was unable or unwilling to care for D.P. The court again addressed Deborah directly:

Q. "Is there some exceptional circumstance physical circumstances that makes you unable to adopt her?"

A: "No.

Q: "Next question."

As mother explains in her opening brief, "The relative caretaker's evidence going to inability or unwillingness to adopt was relevant evidence of significant probative value and should have been allowed. It went to an exception to parental rights termination; an exception appellant was required to prove." In order to prove the exception, however, mother had to prove that Deborah was unwilling or unable to adopt D.P. due to the presence of exceptional circumstances. Or, put another way, in the absence of evidence that Deborah was unwilling or unable to adopt D.P., appellants could not establish the applicability of the exception to termination of parental rights. But neither mother's attorney nor father's attorney nor D.P.'s attorney asked Deborah if she was unable or unwilling to adopt D.P., and the juvenile court certainly did not, as appellants imply, prevent Deborah from answering that question.^[4]To the contrary, Deborah affirmed that she was ready, willing and able to adopt the child. Consequently, there is no merit to appellants' claim that the trial court violated appellants' due process rights to present testimony on the applicability of the (c)(1)(D) exception.

DISPOSITION

The orders denying mother's section 388 petition and terminating mother's and father's parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1]Further statutory references are to this code.

^[2] Indeed, the court noted that "Allowing another family to adopt [the minor] would mean that he no longer would share daily interactions with his siblings. Forcing [the grandmother] to adopt [the minor] would mean that he would become his siblings' uncle." (In re Fernando M., supra, 138 Cal.App.4th at p. 537.)

^[3]The appellate court noted that the juvenile court "not only ignored the marital implications but also failed to consider the potential effect of such an adoption on Fernando's relationship with his grandfather." (In re Fernando M., supra, 138 Cal.App.4th at p. 537.)

^[4]D.P.'s attorney states in her opening brief: "Had Deborah testified, she no doubt would have made her unwillingness to adopt known." But Deborah did testify, and she stated that she was willing to adopt D.P.