In re Elizabeth P.

Filed 6/25/07 In re Elizabeth P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Karen Dodd, under appointment by the Court of Appeal, for Minor.

I. INTRODUCTION

Gina P., the mother of Elizabeth P., appeals the juvenile courts order terminating parental rights and placing Elizabeth for adoption. Mother claims the juvenile court erroneously determined that the parental benefit exception to the adoption preference did not apply. (Welf. & Inst. Code,  366.26, subd. (c)(1)(A).)^[1] We find no error and affirm the order.

II. FACTS AND PROCEDURAL HISTORY

A. Elizabeths Initial Removal (August 2004)

In August 2004, when Elizabeth was 11 months old, the Department of Public Social Services (DPSS) filed a petition under section 300, subdivision (b), alleging that mother abused methamphetamine and recently had been arrested for possession of and being under the influence of a controlled substance. It was also alleged that a small amount of methamphetamine was found in a dresser drawer within Elizabeths reach.

The petition was filed after mother called 911 on August 17 to report that her brother was physically abusing her. The brother fled through a back bedroom after police responded to the call. A social worker later drove past the home and saw a male in the yard who appeared to be angry and talking to himself. The social worker notified police, who then discovered that both mother and her brother had outstanding arrest warrants.

The police searched the house and found methamphetamine, including two small baggies and drug paraphernalia in mothers dresser drawer, within reach of Elizabeths crib. Mother admitted using methamphetamine and taking Vicodin tablets the night before. She also admitted that the speed found in her room belonged to her, but she claimed she never used drugs in front of Elizabeth.

Mother was arrested and Elizabeth was taken into protective custody. Elizabeth appeared dirty and unkempt but had no visible marks or bruises. Mother asked that Elizabeth be placed with the maternal grandmother, but the social worker refused because the grandmother was in the house at the time mother was arrested and had tried to hide mothers brother from police.

At the jurisdictional/dispositional hearing in September 2004, the court sustained the allegations of the petition as amended,^[2]and found that continued placement of Elizabeth outside the home was necessary. At the detention hearing in August 2004, the court authorized DPSS to place the child with mother upon certain conditions including, without limitation, a suitable home evaluation, random drug tests with three consecutive negative tests, and full participation in her case plan. This authorization order was continued in force and effect.

Prior to the jurisdictional/dispositional hearing, DPSS reported that mother had been receiving individual substance abuse counseling and individual counseling prior to Elizabeths removal, but her attendance was inconsistent. The social worker recommended that reunification services be provided to mother, and that mother participate in an inpatient substance abuse program. The social worker also recommended a psychiatric evaluation for mother to assess her need for psychotropic medication; however, the psychiatric evaluation could not be completed at that time due to mothers drug addiction.

During an interview on September 1, mother told the social worker that she had been prescribed Vicodin and Keflex for pain. Contrary to her prior admission that the speed found in the home belonged to her, she claimed the drugs belonged to a friend who was present in the home.

The maternal grandmother said mother abused controlled substances before her pregnancy with Elizabeth, but stopped when she became aware she was pregnant at approximately three months. Mother had attention deficit hyperactivity disorder (ADHD) and was in need of medication. Mother was a good mother to Elizabeth, but needed to change her friends and surroundings. Mother was once a dependent of the juvenile court.

B. The Six-Month Review Hearing (March 2005)

By the time of the six-month review hearing in March 2005, Elizabeth had been returned to her mothers care under a family maintenance plan. Mother and Elizabeth were living in a one-bedroom apartment in Perris. The paternal grandmother lived in a nearby apartment and managed the complex. Mother had been taking Ritalin for her ADHD. More recently, she had been prescribed Strattera but wanted to resume taking Ritalin.

The social worker reported that mothers participation in her case plan had been minimal and she was close to having Elizabeth removed from her care; however, she had recently begun to take this matter seriously and started addressing the issues of concern. Mother had been provided with services, including counseling and drug program referrals, and she had been participating in in-home parenting classes.

The social worker expressed concern regarding mothers parenting techniques. She believed mother sometimes put Elizabeth in time-out for longer than her age warranted, and that her expectations of Elizabeth were unrealistic. Mother described Elizabeth as having a bad attitude. The social worker was hopeful that mother would learn to care for Elizabeth with the help of her individual hands-on parenting classes.

The court ordered mother to submit to random drug tests once each week at the request of DPSS.

C. Elizabeths Second Removal From Mothers Care (April 2005)

On April 6, 2005, Elizabeth was removed from mothers care because mother failed to drug test and failed to participate in a drug treatment program. On the one occasion she provided a urine sample, she put the cup on the floor and kicked it over, so the sample could not be used. Elizabeth was placed in the care of a maternal great aunt.

A supplemental petition was filed, requesting the removal of Elizabeth from mothers custody and placement with a maternal aunt and uncle. At the detention hearing on the supplemental petition on April 11, the court found there was probable cause to remove Elizabeth from mothers custody. The court ordered supervised and frequent visitation for mother, and authorized DPSS to return Elizabeth to mother provided she was in a residential drug treatment program, was successfully participating in all case plan activities, and abided by all reasonable directives of the social worker.

On April 6, prior to the detention hearing on April 11, mother claimed she accidentally kicked over the urine sample she provided for drug testing, and denied she was using drugs. Then on April 8, she claimed she had enrolled in a drug program, and acknowledged she had to complete a drug program for criminal court, as well as for these dependency proceedings. But on April 11, the date of the detention hearing, mother tested positive for methamphetamine.

On May 17, the jurisdictional/dispositional hearing on the supplemental petition and the six-month review hearing on the same petition were held. Through her counsel, mother requested weekly, random drug testing. She claimed she was not on formal probation and no longer required to drug test through the criminal court. Counsel said mothers boyfriend was not living with her as reported by DPSS, and she was no longer involved with him. Counsel asked that Elizabeth be returned to mothers custody upon the condition she continue in an outpatient program, rather than a residential treatment program.

DPSS acknowledged that mother had recently been complying with her case plan. She was in a program and testing clean. DPSS felt mother was making adequate progress, but her case plan was incomplete. DPSS agreed to allow Elizabeth to be placed with mother upon the condition she successfully participate in her case plan and submit clean random drug tests.

The court sustained the allegations of the supplemental petition. It also found that the prior order authorizing Elizabeth to be placed with mother had not been effective in protecting Elizabeth, and ordered Elizabeth be placed outside the home. It found mothers progress in her case plan to be adequate but incomplete.

The court again authorized placement of Elizabeth with mother upon certain conditions: mother have a suitable home evaluation; randomly drug test with clean tests; successfully participate in her case plan activities; and abide by the reasonable directives of the social worker. The court then proceeded with the six-month review hearing, finding that continued placement outside the home was necessary, and continued mothers reunification services.

D. The 12-Month Review Hearing (November 2005)

At the 12-month review hearing in November 2005, DPSS recommended that the court terminate mothers services and set a section 366.26 hearing to establish a permanent plan of adoption. Mother had moved from her apartment into the maternal grandmothers home. She had failed to show up for a criminal court hearing in August 2005, and a bench warrant had been issued for her arrest. Mother asked the court to continue her services through the 18-month review hearing, but the court denied mothers request and terminated her services, finding she had made unsatisfactory progress in her case plan. The court set a section 366.26 hearing.

In September 2005, DPSS reported that, since at least June 2005, mothers visits with Elizabeth had been very inconsistent and sporadic. Elizabeths caretakers said mother visited only once or twice each month for 30 minutes each visit. Mother last visited Elizabeth on August 28. The social worker reported that mother was argumentative and angry during a visit on June 16. She yelled and used profanity while holding Elizabeth. The visit ended with mother slamming the door as she left. Elizabeths caretaker reported that, while mother can be upset at times, she had been appropriate during visits. The caretaker said mother had not appeared to be high or under the influence of controlled substances during her visits with Elizabeth.

The maternal grandmother visited with Elizabeth at least twice each week for at least eight hours each day. These visits were loving and positive, and Elizabeth appeared to be bonded with her maternal grandmother.

Mother had not enrolled in a substance abuse program as required by her case plan, and her drug testing had been inconsistent. She had several negative tests, several no-shows, and testified positive for methamphetamine on September 1, 2005. Mother said the Ritalin she was taking for her ADHD was responsible for the positive test. On October 12, she enrolled in an inpatient substance abuse program, but left the program on October 14.^[3] On December 27, DPSS reported it was unable to locate mother to serve her with notice of the section 366.26 hearing.

E. The Section 366.26 Hearing

The section 366.26 hearing and 18-month review hearing were held on December 12, 2006. Prior to the hearings, DPSS reported that mother had been visiting Elizabeth every week for an hour at DPSSs offices since May 2006. The visits were positive. Mother and Elizabeth played with toys and enjoyed each others company. Elizabeth cried at the end of the visits.

Prior to arranging visitation at DPSSs offices, mother had engaged in frequent and liberal contract with Elizabeth at the residence of Elizabeths caretakers, her maternal aunt and uncle. However, interaction between mother and the maternal aunt and uncle deteriorated, and they requested that DPSS handle the visitation.^[4]

At the section 366.26 hearing, mother testified she had maintained contact with Elizabeth since she was detained in August 2004. When Elizabeth sees her, she runs to her and says, mommy, mommy. Mother reads to Elizabeth and plays with her during visits. Mother believes she and Elizabeth share a strong bond. Elizabeth becomes emotional at the end of visits and does not want to leave. She becomes upset and hits the social worker. Mother calms Elizabeth, takes her to the car, and puts her in the car seat.

Mother said she was not currently stable enough to take Elizabeth because she had only been free of drugs for three months. She was currently attending a substance abuse program. She wanted the maternal grandmother to have custody of Elizabeth, rather than see Elizabeth placed for adoption. Mothers counsel argued that the parental benefit exception to the adoption preference applied.

County counsel said mothers testimony was heartfelt and acknowledged that mother was making a very genuine effort to try to change her life. County counsel also acknowledged that mother has had a relationship with her child for a long time now, although it was not a relationship of caretaking.

At the close of the hearing, the juvenile court found that none of the statutory exceptions to the adoption preference applied, and that adoption was in Elizabeths best interest. Accordingly, the court terminated parental rights and ordered Elizabeth placed for adoption. This appeal followed.

III. DISCUSSION

Mother contends the juvenile court erroneously found that the parental benefit or parental bonding exception to the adoption preference did not apply ( 366.26, subd. (c)(1)(A)), and therefore erroneously terminated parental rights and placed Elizabeth for adoption. We find no error.

A. The Applicable Law

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999)70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and 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 the statutory exceptions set forth in section 366.26, subdivision (c)(1). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where the parent has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 826;  366.26, subd. (c)(1)(A).) The parent has the burden of proving that the exception applies. (In re Derek W., supra, at p. 826.) The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. (Id. at p. 827.)

The parent must also show that his or her relationship with the child promotes the well-being of the child to such a degree as to outweighthe well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)

Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

There must be a compelling reason for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a quintessentially discretionary determination. Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . . [Citations.] (Ibid.)

B. Analysis

At the time of the section 366.26 hearing, Elizabeth was only three years old and had spent most of her life out of her mothers custody. She was adoptable and in need of a permanent, stable home. Contrary to mothers assertion at the hearing, mother did not maintain frequent or consistent contact with Elizabeth throughout the time Elizabeth was out of her custody. And despite mothers recent progress in addressing her substance abuse problems, her substance abuse problems were far from permanently resolved. At the hearing, mother admitted she was too unstable to take Elizabeth into her custody because she had only been off drugs for three months.

Although Elizabeth enjoyed her visits with mother and was bonded to her, [t]he parent must do more than demonstrate frequent and loving contract[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] (In re Derek W., supra, 73 Cal.App.4th at p. 827.) The parent must show that he or she occupies a parental role in the childs life and, moreover, that the benefits of continuing that parental relationship with the child outweigh the benefits the child would realize from having of a stable and permanent home provided by adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Mother failed to show she occupied a parental role in Elizabeths life or that the benefits to Elizabeth of continuing a relationship with mother outweighed the benefits of adoption. At the time of the section 366.26 hearing in December 2006, Elizabeth had been in the care of her maternal great aunt and uncle since April 2005, and appeared to be happy, healthy, and well adjusted in her home environment.

Accordingly, the juvenile court did not abuse its discretion in concluding that the parental benefit exception to the adoption preference did not apply, and substantial evidence supports its determination.

IV. DISPOSITION

The order terminating parental rights and placing Elizabeth for adoption is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The only amendments to the petition pertained to allegations against the father, who is not a party to this appeal.

^[3] On July 19, 2005, the maternal grandmother requested that the court grant her de facto parent status. The social worker recommended that the court deny the request. Although the social worker acknowledged that the maternal grandmother had a positive, nurturing and loving relationship with Elizabeth, she did not believe the maternal grandmothers involvement with Elizabeth rose to the level of de facto status. The social worker also said the maternal grandmother had a history with DPSS and did not cooperate with police during the arrest that led to Elizabeths initial detention in August 2004. The court denied the maternal grandmothers request at the 12-month review hearing in November 2005, and also denied the maternal grandmothers request for placement.

^[4] Mother filed a section 388 petition on October 26, 2006. She claimed she had engaged in drug testing and treatment, attended 12-step meetings, and managed her medications on her own. She also claimed she had maintained contact with Elizabeth and had stable housing. She requested that the court reinstate reunification services and authorize overnight and weekend visitation. The court denied the petition without a hearing, on the grounds it did not show a change of circumstances and did not show how reinstating services would serve the best interests of Elizabeth.