In re Jonathan O.

Filed 6/21/07 In re Jonathan O. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Jan Levine, Judge. Affirmed.

Jill Regal, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, County Counsel, Kim Nemoy, Deputy County Counsel and Patrick D. Goodman, Supervising Attorney for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Marisela S. came to the attention of the Department of Children and Family Services (DCFS) in March 2005, when both she and her newborn daughter, Marissa O., tested positive for amphetamine. Marissa and appellants two other children, Julissa R. and Jonathan O., were detained.^[1] The petition charged that appellant failed to protect the children within the meaning of Welfare and Institutions Code section 300, subdivision (b) -- failure to provide regular care due to substance abuse.^[2]

At the time of the detention, appellant and the children were residing with the maternal grandparents, Maria and Albert S. The grandparents reported that they had been caring for the children since they were born, including taking them to school and to the doctor. Albert said he was aware appellant was using drugs and tried to persuade her to attend Narcotics Anonymous. When appellant was using drugs, she would act different, arguing and sleeping a lot and have an attitude about taking care of the children. Appellant admitted she had a drug abuse problem. She said she had tried to abstain from taking drugs when she found out she was pregnant at 16 weeks, but started using again towards the end of the pregnancy and used drugs almost everyday the . . .  week just before [Marissa] was born. The children were placed with Maria on the condition that appellant not reside in the home.

The jurisdictional/dispositional hearing was held May 17, 2005. Appellant did not contest jurisdiction.^[3] Family reunification services were ordered. Appellant was instructed to attend individual counseling, drug counseling, and parenting classes, and to undergo random drug testing. She was permitted monitored visitation. There was to be no visitation when appellant was under the influence of drugs. Appellant was warned if she did not show progress, reunification services could be terminated after six months.

Between the detention and the six-month review hearing, the following transpired: Appellant enrolled in a drug treatment program on April 12, 2005. Before the end of May, she had relapsed twice and dropped out. In June, she enrolled in a new program, but showed up for only two classes. The counselor reported that appellant was having a really hard time quitting. When referred to the psychological section in order to detoxify, appellant stopped attending and was discharged. In July, appellant promised the caseworker she would enroll in a specific treatment program, but the caseworker could find no evidence she had ever applied to the program specified or to any other program.^[4] In October, appellant admitted to the caseworker she was not enrolled in either drug treatment or parenting classes. She said that because the children were safe with Maria, she had just given up with complying with Court orders. She had not appeared at the toxicology lab for any of the required drug screenings. On the positive side, appellant was visiting the children daily and assisting Maria by helping with household chores and bathing and dressing the children. On occasion, she accompanied them to the park or to swimming lessons. The caseworker recommended that appellants reunification services be terminated as, except for visitation, she had not complied with any of the Court orders to date.

At the six-month review hearing on November 15, 2005, the court ordered appellants reunification services terminated. The court encouraged appellant to undertake further efforts toward becoming drug free and said that although reunification services were being terminated, that doesnt mean that you cant get your children back. The court did not schedule a permanent plan hearing at that time. Instead, a 12-month review hearing was scheduled due to the ongoing efforts of Julissas father to gain custody of his daughter.

In the April 2006 Status Review Report, the caseworker reported that appellant was pregnant. She continued to visit the children daily, but there were no reports of progress in dealing with her substance abuse or otherwise complying with court orders. Within the prior six-month period, the caseworker had become concerned about Marias adopting the children due to her age and recommended finding an alternate prospective adoptive parent who would take the children if Maria died or became incapacitated. This caused a delay in proceedings while a second (and later, a third) prospective adoptive parent submitted the necessary forms and underwent a home-study.^[5] At the 12-month review hearing on April 17, 2006, the court scheduled a contested section 366.26 permanent plan hearing for August, which was continued to October and then to December.

In the November 2006 Status Review Report, the caseworker reported that appellant had started outpatient drug treatment in June 2006 and enrolled as an inpatient in August 2006. She gave birth to another daughter in July 2006, and was permitted to retain custody contingent on remaining drug free and staying in the inpatient treatment program. She tested free from drugs on several occasions. However, she relapsed in August and again in October. As a result, the baby was detained by DCFS.^[6] Appellant continued to reside at the inpatient facility as of the date of the report. In the December 2006 Supplemental Report, the caseworker informed the court that there were two satisfactory prospective adoptive parents for the children, viz., Maria and a second adult who had agreed to care for the children should Maria become unable to do so.

At the December 19, 2006 permanent plan hearing, appellant testified that prior to entering inpatient treatment, she saw the children every day, twelve hours a day. When there were doctor visits, she went with them and Maria to sign any necessary forms. Since beginning inpatient treatment, she was with them for up to eight hours every Saturday and Sunday and called them every day. During her visits, she bathed, dressed, and fed the children, changed their diapers, played with them, and went shopping for Maria. Jonathan was always happy to see her and cried when she left. Marissa always ran to her, gave her a hug and kiss, and said Mommys here. Both children called her Mommy; they called Maria, Mom. The caseworkers reports, entered into evidence, stated that the children had a close relationship and significant bond with Maria who provided all their material needs, and that they went to her for comfort. DCFS and the childrens attorney recommended termination of parental rights and a permanent plan of adoption.

By order dated December 19, 2006, the court terminated parental rights. The court found by clear and convincing evidence that the children were adoptable and that it would be detrimental to return them to their parents. Appellant appealed from the courts order.

DISCUSSION

Appellant contends the court erred in terminating her parental rights. There is no dispute that section 366.26 requires the juvenile court to terminate parental rights and order the child placed for adoption if it finds by clear and convincing evidence at the permanent plan hearing that it is likely the child will be adopted. ( 366.26, subd. (c)(1).) Appellant argues, however, that the court should have applied the exception contained in subdivision (c)(1)(A), which permits the court to order a different permanent plan, such as long-term foster care or guardianship, if it finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

It is clear that the parent contesting termination of parental rights under subdivision (c)(1)(A) bears the burden of proving either (1) continuation of the parent-child relationship will promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents [citation] or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) To overcome the preference for adoption and avoid termination of the natural parents rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (In re Angel B., supra, at p. 466.) A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent. (Ibid.)

The factors courts should take into account in determining whether loss of the parental relationship would cause the child to suffer detriment include the age of the child, the portion of the childs life spent in the parents care and custody, the nature of the interaction between the parent and child when they are together, and the childs particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see, e.g., In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207 [order terminating parental rights reversed where child was nine years old, had lived with his mother for the first six-and-one-half years of his life, expressed his wish to live with her again, and had no one else in his life to occupy the role of mother]; In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [order terminating parental rights reversed where children had been in mothers care for significant portion of their lives and psychologist testified they were primarily bonded to her and severance of the relationship would be detrimental to them].) On appeal, we review the juvenile courts findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H., supra, 132 Cal.App.4th at p. 228; In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) The judgment will be upheld if supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H., supra, at p. 228.)

Appellant established through her testimony the existence of a warm and loving relationship with the children maintained through consistent visitation. However, both are very young and neither spent any significant time in her custody. Marissa was a newborn when she was detained and Jonathan was less than a year old. Although the children may call her mommy and may be happy to see her when she visits, there is no dispute that the children are bonded to Maria and consider her their mom, the person they look to for care and comfort. In addition, the record reflects that even prior to DCFSs intervention, Maria had provided primary care for the children. According to appellants own admission, she suffers from a drug addiction that predated and followed Marissas birth. The problem remained substantially untreated in the year-and-a-half between the detention and the permanent plan hearing. It prevented her from progressing to unmonitored visitation or ever being the childrens primary caregiver, and the children have never relied on her for parental supervision and guidance.

Adoption, where possible, is the permanent plan preferred by the Legislature. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) [I]t is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) As commendable as appellants efforts to maintain a positive relationship with her children may be, there was no indication of such a strong and beneficial parent/child relationship that terminating parental rights would be detrimental to Marissa and Jonathan.^[7] Under the circumstances, appellant failed to establish that the benefits of a continued relationship with her outweighed the benefits of a permanent, loving, and stable home for her children. We agree with the juvenile court that appellant did not meet the heavy burden necessary to overcome the legislative preference for adoption.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] Julissa was seven years old at the time, Jonathan was not quite one. Julissa is currently residing with her biological father and is not the subject of this appeal.

^[2] The petition was later amended to add charges pertaining to Julissas father. As he is not a party to this appeal, those charges are not relevant here.

All statutory references herein are to the Welfare and Institutions Code.

^[3] After appellant claimed the children had a Navajo ancestor, DCFS notified the tribe of the proceedings. The court ultimately found the Indian Child Welfare Act did not apply.

^[4] In September, Maria reported that appellant had checked into an inpatient drug treatment program. The caseworker apparently could not corroborate that report.

^[5] Concerns were also raised regarding Marias parenting skills, which were resolved by her completion of a series of parenting classes.

^[6] A new petition filed on behalf of the baby is apparently still pending.

^[7] There is also no reason to believe that Maria will do anything to hinder appellants continuing relationship with the children or restrict her visitation after the adoption occurs.