In re G.U.A.

Filed 10/24/06 In re G.U.A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Valerie Lynn Skeba, Juvenile Court Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.

* * * * * *

Jodi H. (Mother) appeals from an order of the juvenile court under Welfare and Institutions Code section 366.26,^[1] terminating her parental rights over minors, G.U.A. and M.J.A., and ordering a plan of adoption. The court found that the loving bond between Mother and her two sons, a history of regular visitations and a relationship between the minors and three older siblings were outweighed by the stability offered by the prospective adoptive family such that the beneficial relationship and interference with sibling relationship exceptions set forth in section 366.26, subdivisions (c)(1)(A) and (c)(1)(E) were not applicable. We conclude that the juvenile court’s findings are overwhelmingly supported by substantial evidence and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

First Detention of G.U.A. and Older Siblings (July 2001-September 2002)

Mother has five children, two of whom are the subject of this appeal. All of the children have been the subject of dependency proceedings. The first of these was initiated on July 25, 2001 on behalf of E.O.A., E.G.A., A.P.A. and G.U.A. (M.J.A. was not born yet) after the Los Angeles County Department of Children and Family Services (DCFS) found the children and their parents living in a travel trailer in uninhabitable conditions. The trailer was filled with the smell of urine and feces and the refrigerator contained rotting food. The trailer had no running water and only a portable-type toilet that was full and unflushed. The sink did not work and the DCFS found dirty pots and pans in dirty water in the bathtub along with a bicycle and one of its wheels. The mattresses and pillows were filthy and without sheets or pillowcases. The children were dirty and without underwear. The children then aged 8, 7, 7 and 2 suffered from rotten teeth, were frequently absent from school and reported that their parents used “dope” and that Father spanked the oldest boy and slapped Mother. Both parents had previously been in drug diversion programs. Finding the case was one of “severe, severe, neglect,” the court sustained an amended petition alleging inappropriate physical discipline, domestic violence, an unsanitary and unsafe family home and failure to provide dental care. The court ordered Mother to undertake parenting and individual counseling, including domestic violence counseling for nonoffenders and ordered Father to participate in a 52-week domestic violence program, parenting and counseling. The parents were granted unmonitored day visits.

On March 12, 2002 the DCFS filed an ex parte request to restrict visitation pending an investigation of allegations that Father was arrested on drug charges and that both parents used drugs and had roommates with extensive criminal records. At the hearing the DCFS reported that the children had been infested with lice on two occasions after visiting the family home and that the home and yard were generally in a deplorable and unsafe condition. Finding that “[n]othing has changed. Nothing has changed at all. . . .” the court sustained the petition on April 3, 2002 and restricted the parents to monitored visits.

Between April and September 2002, the parents progressed in their parenting classes and counseling and cleaned up their house and yard. The children did well in foster care. In July, Mother gave birth to M.J.A., who was healthy at birth and allowed to remain with the parents. On September 9, 2002, the court determined that the parents were in compliance with the case plan and the four older children, including G.U.A., were returned to the home.

Family Maintenance (September 2002-July 2003)

All five children remained in their parents’ custody from September 9, 2002 through August 5, 2003. In a series of reports during that period, the DCFS reported that the parents made significant progress and were generally in compliance with the case plan, although the DCFS periodically found the home and backyard to be a mess. Also in November 2002 Father was arrested and jailed for driving without a license, and the parents allowed relatives with substance abuse problems to care for the children. The children had excessive absences from school. In May 2003 the family had to move out of their home and into a motel until they found new housing. The DCFS nevertheless stated that the family was cohesive and loving and making progress. The children, including G.U.A., repeatedly stated that they were happy and wanted to stay with their parents.

Although the family preservation in-home counselors gave the parents very favorable reports in early 2003, on July 30, 2003, family preservation reported they found one-year-old M.J.A. in the care of the maternal grandfather, who had a history of substance abuse, was drinking and was not supervising the child. When the DCFS social worker went to the home the next day to investigate, she discovered that the family had been evicted and their whereabouts were unknown. The DCFS reported that the family left the home in a state of filth and left behind a rifle, BB gun and drug paraphernalia.

Detention of All Five Children (August 2003-October 2003)

The court issued protective custody warrants for the minors and arrest warrants for the parents. On August 8, 2003, the DCFS located the children in a motel and detained them. The motel room and the children’s clothes were dirty. M.J.A.’s diaper had not been changed for some time. The children were placed together in a foster home. Two days later, the parents were arrested for possession of a controlled substance. The four older children stated that they wanted to return to their parents’ home.

The section 300 petition as to M.J.A. and a section 342 petition as to the older children, including G.U.A., were tried on October 29, 2003. The court sustained the petitions as to all children. The court terminated family reunification services for the four older children, including G.U.A., and found that long-term foster care was the appropriate permanent plan for them. The court ordered reunification services for M.J.A. and noted that the children were very emotionally bonded to their parents. The parents were granted unmonitored, three-hour visits with all five children and ordered to counseling. The children remained together in foster care.

Third Detention of Older Siblings and Placement of G.U.A. and M.J.A. with Aunt and Uncle (November 2003-February 2006)

From November 2003 through November 2004, the five children remained together in foster care. At the beginning of that period, the parents attended counseling, regularly visited the children and made progress in the upkeep of their home and yard. The children remained bonded to their parents and to each other, although G.U.A. fought with his siblings. The four older children continued to state strongly that they wanted to go home to their parents, while M.J.A. was too young to make a statement. But in March the parents’ counseling was discontinued due to lack of attendance. The counseling was reinstated in April, but again discontinued for nonattendance, noncompliance and disruptive behavior. Due to their “disruptive and aggressive behavior,” the agency refused any further contact with the parents. The DCFS reported that the parents continued “to consistently demonstrate the same dysfunctional coping behavior of blaming others in an angry and confrontational manner, which prevents them from being able to focus on reunification issues.”

On June 3, 2004, the court found that the parents were noncompliant with the case plan with respect to M.J.A. and terminated family reunification services. The court found that long-term foster care remained appropriate for the four older children and that the five children were a sibling group.

In November 2004 the parents petitioned for a section 388 modification, requesting that all five children be returned to them. At the December 1, 2004 hearing, the DCFS reported that after filing their petition the parents moved and their whereabouts were unknown until they were located in a motel at the end of November. They had not visited their children since October 31, 2004 and on November 8, 2004 the counseling agency closed the parents’ case for nonattendance. The three older children had been moved to a new temporary placement on November 23, 2004 due to the foster mother’s report that the children fought constantly and that the fighting was physical and dangerous. All of the children were alarmed by their parents’ failure to visit them, but all of them except M.J.A., who was too young, stated that they wanted to return to their parents. The court found that the parents’ failure to visit and the loss of the home were due to unfortunate financial circumstances but that there had been a substantial change with the parents’ move to a motel where they could accommodate the older children. The court therefore, granted the petitions as to E.O.A., E.G.A. and A.P.A., placing them in their parents’ care. The court found that the conditions justifying jurisdiction under section 300 still existed with respect to G.U.A. and M.J.A. and continued the section 388 petition as to them.

At the January 10, 2005 continued hearing, the DCFS reported that on November 29, 2004, two days prior to the release of the older children to her, Mother was arrested for possession of a controlled substance.^[2] The parents and three older children had moved to yet another motel and the parents were only erratically attending counseling. G.U.A. and M.J.A. were happier and calmer living separate from their older siblings.

On January 27, 2005, the DCFS reported at M.J.A.’s first section 366.26 selection and implementation hearing that Mother had again been arrested on January 15, 2005 for possession of controlled substance paraphernalia,^[3] that the parents had been terminated from counseling again due to nonattendance, that the parents’ living situation was unstable and that they were inconsistent in their visits with G.U.A. and M.J.A. The court identified adoption as the permanent plan for M.J.A. and ordered a section 366.26 report addressing the applicability of the subdivisions (c)(1)(A) and (c)(1)(E) exceptions.

In February G.U.A. and M.J.A. were re-placed together in a new foster home due to inappropriate actions by the former foster mother. In the spring of 2005 a paternal uncle (Uncle) and his wife (Aunt) expressed a desire to adopt G.U.A. and M.J.A. Visitation with Uncle and his family in Palm Springs started in April and the court ordered that the DCFS investigate placement with Uncle. On July 7, 2005, G.U.A. and M.J.A. were placed with Uncle in Palm Springs but the court noted that there may be “a very legitimate (c)(1)(A) and (c)(1)(E) exception that may be met.” In August 2005, the older children were detained for the third time based on a detrimental home environment and lack of proper supervision. On that basis the parents’ visitation rights with respect to G.U.A. and M.J.A. were changed from unmonitored to monitored visits. Uncle was to transport the children from Palm Springs to Los Angeles once a month and the parents were to drive to Palms Springs for the other monthly visit.

On January 5, 2006, the DCFS reported for a section 366.3 postpermanent plan hearing that M.J.A. was doing well in school, was very bonded to Uncle and Aunt and did not seem conflicted about separating from his birth family even though he enjoyed seeing them. G.U.A., who was then six and one-half years old was conflicted about not living with his birth family and inappropriately acted out his emotions. G.U.A. stated that he wanted to live with his parents, but if he could not, then he wanted to be adopted by Uncle. On February 28, 2006 the DCFS reported for a further section 366.26 hearing that both parents were arrested and incarcerated on February 16, 2006 on two felony counts of theft from an elder due to allegedly stealing $10,000 from their elderly landlord and for elder neglect due to allegedly “trashing” their landlord’s home. Upon their release, the parents did not have a permanent place to live. On February 17, 2006, Uncle’s adoptive home study was approved. The DCFS recommended termination of parental rights and the case was set for a contested hearing.

Termination of Parental Rights as to G.U.A. and M.J.A. (April 4, 2006)

The DCFS introduced into evidence the February 28, 2006 section 366.26 WIC report, the February 28, 2006 information for court officer and the completed home study. The court also read the DCFS April 4, 2006 report and heard testimony from Uncle and Mother. The DCFS reported that since their placement with Uncle and Aunt, G.U.A. and M.J.A. “have made excellent progress . . . . [Uncle and Aunt] provide [G.U.A.] and [M.J.A.] with a stable and loving home in which there is necessary structure, rules and supervision. The prospective adoptive parents not only meet the children’s basic necessities, but provide extras such as private school, therapy and numerous cultural and enrichment activities . . . .” The DCFS reported that Uncle and Aunt also showed concern for the welfare of the older siblings.

Uncle’s Testimony

Uncle testified that G.U.A. and M.J.A. had been in his home for ten months, that he and his wife wanted to adopt them, that he had a good relationship with his brother and intended to continue visits between the siblings and between the children and their parents. He also stated that the parental visits were consistent on the days that he drove the children to Los Angeles but that the parents did not consistently go to Palm Springs for their visits. He stated that while G.U.A. wanted to stay with his parents at first, he had not recently made that request. He testified that there was a bond between the children and Mother. He stated that all of the siblings enjoy spending time together but that their relationship was not necessarily close given the long periods between visits.

Mother’s Testimony

Prior to Mother’s testimony the court stated that there was no issue as to the existence of a loving bond between the children and their parents and as to the fact that visitation had been regular and consistent. The court, therefore, directed that the questioning focus on Mother’s behaving in a parental role for the preceding 10 months.

Mother testified that she always brought presents, including clothing, books, school supplies and games, to her visits with G.U.A. and M.J.A. and that her visits lasted three to four hours. She stated that she helped G.U.A. read and write and that she had a close bond with him. She also read to M.J.A., drew pictures with him and worked with him at learning his numbers and colors. The children were happy to see her during the visits, and G.U.A. asked at every visit to go home with her. She testified that given the distance between them it was difficult for her to attend the children’s activities and events or to be involved in their medical issues. She stated that G.U.A. had a close relationship with his older siblings, especially with his oldest brother. She testified that G.U.A. was “okay” with adoption and that adoption would not be detrimental to him, although she believed that he would have emotional problems with it later in life.

In closing arguments, the parents’ lawyers argued that the subdivisions (c)(1)(A) and (c)(1)(E) exceptions applied because the parents had maintained regular visitation and contact, they had a bonded parent-child relationship that would be of continuing benefit to the children and that the court had declared the five children a sibling group. The attorney representing G.U.A. and the three older siblings argued for termination of parental rights, as did M.J.A.’s attorney.

The court stated that the parents’ lifestyle continued to be “chaotic and uncertain” and not conducive to providing G.U.A. and M.J.A. the sense of stability that they required. The court found that G.U.A. and M.J.A. were likely to be adopted, that it would not be detrimental to terminate parental rights and that the section 366.26, subdivisions (c)(1)(A) and (c)(1)(E) exceptions did not apply. The court terminated parental rights and Mother appealed.

DISCUSSION

I. Contentions on Appeal and Standard of Review

Mother contends that the trial court’s finding that termination of her parental rights would not be detrimental to G.U.A. and M.J.A. under section 366.26, subdivision (c)(1) is not supported by substantial evidence. Specifically, she claims the court erred in not recognizing that the termination is detrimental to G.U.A. and M.J.A. because she has maintained regular contact with the children and they would benefit from a continuing relationship with her under subdivision (c)(1)(A) and because termination would substantially interfere with G.U.A. and M.J.A.’s relationship with their older siblings under subdivision (c)(1)(E).

The Courts of Appeal have applied both the substantial evidence and the abuse of discretion standards to review the applicability of the section 366.26, subdivision (c)(1) exceptions. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Because the parties to this appeal proceed under the substantial evidence standard of review, we do as well. Under that standard, the appellant must demonstrate that there is no substantial evidence to support the challenged findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Autumn H., supra, at p. 576.) When a review of the entire record discloses there is substantial evidence in support of the trial court’s decision, the appellate court has no power to substitute its judgment for that of the trial court. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

II. The Subdivision (c)(1)(A) Exception Does Not Apply

When a parent has failed to unify and a child is likely to be adopted, it is the parent’s burden to show that termination of parental rights would be detrimental to the minor due to the applicability of one of the statutory exceptions set out in section 366.26, subdivision (c)(1)(A). (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) Here, Mother contends, in part, that she established the applicability of subdivision (c)(1)(A), which provides: “The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Because the court found that Mother had maintained regular visitation and contact with her sons, the only issue on appeal is whether the court properly determined that she had not met her burden of proving that G.U.A. and M.J.A. would benefit from a continuing parental relationship with her.

“[T]he ‘benefit from continuing the [parent/child] relationship’ . . . mean[s] the relationship 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. . . . 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court considers a number of variables in balancing the competing interests under this subdivision including the age of the child, the portion of his life spent in the parent’s custody, the effect of the interaction between the parent and the child and the child’s particular needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350 (Jasmine D.).) The parent must demonstrate something more than the “incidental benefit” that will typically be conferred on a child through interaction with a natural parent. (Autumn H., supra, at p. 575.) The mere existence of an emotional bond between the parent and child is not sufficient to overcome the presumption in favor of adoption. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Rather, the parent must prove that the child will be “greatly harmed” by the termination of parental rights. (Autumn H., supra, at p. 575.)

Substantial evidence supports the trial court’s conclusion that Mother failed to meet her burden under subdivision (c)(1)(A). Due to multiple detentions, repeated if not predictable failures to complete court-ordered counseling programs and a history of persistently backsliding into a chaotic lifestyle so unsanitary and unstable as to endanger her children, Mother has not acted in a typical parental role with either G.U.A. or M.J.A. for most of their lives. G.U.A., now seven years old, has been detained from his parents twice and has spent less than half of his life in Mother’s custody and care. M.J.A., now four years old, was detained shortly after his first birthday and has never been reunited with his parents. Both children are young enough to reap substantial benefits from a stable, consistent home life, which it is undisputed Uncle can provide. Indeed, according to Mother’s own testimony both children were doing well in Uncle’s care. Mother also conceded that although G.U.A. may have problems with his adoption when he grows older, it would not be detrimental to him.

Mother argues that her parenting role must be evaluated in the context of the visitation orders imposed on her by the court and in light of the fact that Uncle, with whom the children were placed, lives in Palm Springs making frequent contact with her children difficult. While we generally agree with Mother’s reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 (Brandon C.) for the proposition that a mother’s parenting role must be evaluated in the context of the limitations placed on her visitation rights, we disagree that her case resembles that evaluated in Brandon C. The court in that case found that termination of parental rights would be detrimental and ordered guardianship instead. The finding was upheld on appeal because it was supported by the substantial evidence that the mother had consistently visited her children during the entire three-year pendency of the case, the testimony of the paternal grandmother (the children’s guardian and monitor of mother’s visits) that the termination of parental rights would be detrimental and that the mother had completed a drug rehabilitation program and secured housing and employment that had been stable for many months prior to the hearing. (Id. at p. 1533.) In contrast, at the time of the hearing in this case, Mother had again been arrested, did not have a permanent place to live, had repeatedly failed to complete court-ordered counseling and showed a consistent pattern of reverting to behaviors and a lifestyle that prevented her from properly caring for her children.

Rather than Brandon C. this case more closely resembles Jasmine D., supra, 78 Cal.App.4th 1339. The termination of parental rights was upheld on appeal in that case despite consistent visitation because the mother failed to make any progress toward correcting the problems that originally caused the child’s dependency. The court stated: “The exception provided in section 366.26, subdivision (c)(1)(A) must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the 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. The section 366.26, subdivision (c)(1)(A) exception is not a mechanism for the parent to escape the consequences of having failed to reunify.” (Jasmine D., supra, at p. 1348.) That is the case here. Having failed repeatedly to meet the requirements of reunification despite numerous opportunities to do so over a period of four years and nine months, Mother may not now attempt to use the subdivision (c)(1)(A) exception as a mechanism for correcting that failure.

Given the entire record of this case, we are satisfied that the trial court’s determination in favor of a stable life with an adoptive family over a continued tenuous lifestyle with the biological parents is supported by substantial evidence. In his seven years of life, G.U.A. has had five different primary caregivers: Mother, three foster mothers and Uncle. In his four years, M.J.A. has had four primary caregivers: Mother, two foster mothers and Uncle. The children have lived with and without their older siblings. They have lived on and off in an uninhabitable travel trailer, numerous hotel rooms and a number of different homes with a variety of roommates, many with criminal records. At the time of the final hearing, the parents were again without a place to live, having just been released from custody for two felony arrests.

In contrast, in the 10 months the children were in Uncle’s care, G.U.A. was enrolled in first grade at a private school, was making “excellent academic progress” and was performing at a second grade level. Uncle had already undertaken and was committed to continuing medical care for G.U.A. due to hyperactivity and involuntary movements. G.U.A. was reportedly making progress in overcoming issues of attachment and loss. M.J.A. was also enrolled in a private preschool and was doing very well there. He was in good emotional condition, trusting and able to make attachments.

We find that substantial evidence supports the trial court’s conclusion that termination of Mother’s parental rights is not detrimental to G.U.A. and M.J.A.

III. The Subdivision (c)(1)(E) Exception Does Not Apply

Mother contends she established an exception to termination per subdivision (c)(1)(E) that “[t]here would be substantial interference with a child’s 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 child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(E).) She argues that a close bond exists between G.U.A., M.J.A. and their three older siblings because they lived together in their parents’ home and, initially, in foster care. They also had regular sibling visits after the older children were placed in a different foster home, and G.U.A. expressed that he wanted to live with his parents and siblings and was sad when leaving family visits.

The Supreme Court has made clear that the party opposing adoption carries a heavy burden in proving the application of the sibling relationship exception. “‘It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.)

Substantial evidence supports the conclusion that the termination of Mother’s parental rights would not substantially interfere with G.U.A. and M.J.A.’s relationship with their older siblings. Uncle testified that he had already orchestrated visits and outings between G.U.A. and M.J.A. and their older siblings and that he intended to continue those activities. Mother testified that she believed Uncle intended to continue contact between the siblings. G.U.A. and M.J.A. had already been separated from their older siblings for one and one-half years due to the violent and aggressive behavior the older children exhibited to the younger boys. At the time of the trial, the three older siblings were again in protective custody, having been detained from Mother for the third time and a paternal great-aunt who lived “far away” had indicated a desire to adopt G.U.A. and M.J.A.’s older sister. Thus, it is not at all clear that the termination of parental rights as to G.U.A. and M.J.A. would create any more interference with the sibling relationships than already existed. In fact, this record just as easily supports the opposite conclusion.

Moreover, even if Mother had demonstrated “substantial interference” in the siblings’ relationships, she nevertheless has demonstrated no error with respect to the juvenile court’s conclusion that any sibling bond was outweighed by the benefits of the permanent home offered by Uncle. Although there was evidence that G.U.A. was particularly bonded with his oldest brother, E.O.A., there was also evidence that the older siblings showed such aggression toward G.U.A. and M.J.A. as to warrant separate placement for them. In contrast, Uncle provided a stable and secure environment where, as already demonstrated, both G.U.A. and M.J.A. were thriving.

We are satisfied that the benefits of a permanent home outweighed the sibling bond and that the trial court’s conclusion that the termination of parental rights would thus not be detrimental to G.U.A. and M.J.A. was supported by substantial evidence.

DISPOSITION

The order terminating Mother’s parental rights as to G.U.A. and M.J.A. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ

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

^[2] Mother claimed that this arrest and a following arrest on January 15 were due to mistaken paperwork with respect to an earlier arrest and were not for new offenses. The status of these two arrests was not conclusively established in the record provided.

^[3] See footnote two.