In re Lauren K.

Filed 10/15/07 In re Lauren K. CA4/3

Received for posting 10/19/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeals from an order of the Superior Court of Orange County, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Tanya K.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant James R.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurello Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Tanya K. (the mother) and James R. (James or the stepbrother) appeal from an order terminating the mothers parental rights as to Lauren. James argues his petition

under Welfare and Institutions Code section 388^[1]asking for further visitation was improperly denied. The mother claims that Orange County Social Services Agency (SSA) never made appropriate inquiries into the Indian heritage of the childs biological father and that the court erred by finding the benefit and sibling exceptions of section 366.26, subdivisions (c)(1)(A) and (c)(1)(E) did not apply. We find that none of these contentions has merit and affirm the order.

I

FACTS

Facts from the Prior Writ Proceeding

We restate, in relevant part, the facts from our prior unpublished opinion in this case. (Tanya K. v. Superior Court (Aug. 15, 2002, G037006) [nonpub. opn.].)

The child, Lauren, was born in October, 2001. She was born in Ontario, Canada, where the mother lived with the maternal grandmother.[^[2]] In March 2002, the child was removed from her mothers care and became a ward of the court due to the mothers alcohol abuse. The mother regained custody in May 2003. In July, the Ontario court ordered the mother to allow the Canadian Social Service Agency, the Childrens Aid Society of Windsor, Ontario (CAS) access to her home and the child. The mother and the child came to the United States in August for what their counsel called a vacation,[^[3]] and settled here on a permanent basis in November 2003. The mother married Matthew R. (the stepfather) and she and the child moved in with Matthew R. and his teenage son.

In Canada, CAS was apparently unaware of the mothers change of residence, leading to the belief that the mother was avoiding contact with the agency. In December 2003, the court granted CASs motion to remove the child from the mothers home and ordered the police to locate the child. Almost a year later, in November 2004, CAS filed a petition under the Hague Convention to return the child to Canada.[^[4]]

Beginning in February 2004, SSA had numerous contacts with the family. Two of the earlier allegations of general neglect were determined to be unfounded. In March, the mother and child were living in a shelter due to domestic violence against the mother by the stepfather, but they apparently reconciled. Later reports raised concerns about the mothers alcohol use. A September 8, 2004 report involved an emergency room visit where the mother demanded pain medication after vomiting blood. Her breath

smelled of alcohol, and there were concerns that she was using large amounts of pain medication with alcohol on a daily basis. Later that month, SSA took an informational report from the maternal grandmother in Canada, who reported that she had spoken to the mother on the phone, and the mother was so intoxicated she could not talk.

In July 2004, the mother sent a letter to the Ministry of the Attorney General in Ontario, Canada. Among other things, this letter accused CAS of colluding with the maternal grandmother to sell the child for $50,000; claimed CAS tried to prevent the childs baptism because she would be more valuable to them to be sold without a religious affiliation and accused the maternal grandmother of lifelong emotional, sexual and verbal abuse, claimed she was a gambling addict and suffered from Munchausen by proxy.

On December 25, 2004, the child was taken into protective custody by Orange County Sheriffs deputies during a welfare check. The child was found in her crib, asking if she could get out now, and the mother was intoxicated and belligerent. The deputies reported that the mother yelled, Take her! Just take her!  . . . I dont want her anymore! Then I can get drunk whenever I want to! The mother was arrested and charged with obstructing a police officer and battery.

SSA filed a petition pursuant to section 300 on December 28, 2004, alleging failure to protect ( 300, subd. (b)) and no provision for support ( 300, subd. (g)). After a hearing on December 29, the child was detained. Based on statements by the stepfather, the court noted that the ICWA might apply.

SSA followed up on the ICWA claim by attempting to obtain relevant information from the mother. She initially claimed Native American heritage through a guide for the Lewis and Clark expedition. She then claimed her ancestors were members of the Techumse tribe and then through the Ottawa Chippewa Tribe of Michigan, although no such tribe was listed on the Federal Register. After further questioning by

the ICWA social worker, the mother claimed that her great-great-grandparents were on the Durant Roll of the Ottawa and Chippewa of Michigan. All of this information was sent to over 20 Chippewa, Ottawa and other nearby tribes along with the notices required by the ICWA. Notice was also sent to the Bureau of Indian Affairs (BIA).

Meanwhile, further investigation revealed that the mothers drinking problem was longstanding and severe. A police report from Canada stated that the childs previous detention was caused by an obviously intoxicated mother who was unable to care for the child. The maternal grandmother, with whom the mother had a very troubled relationship, also indicated that the mother drank excessively. In response to the mothers 2004 request for a restraining order against him, the stepfather noted that he had long tried to get the mother to seek professional help to overcome her alcoholism.

The mother was interviewed by SSA. She said that on the day the child was detained, she had two glasses of champagne and went to sleep. She reported that the criminal charges filed as a result of that days events had been dropped. With respect to her history, she denied mental illness, other than a brief bout of postpartum depression. The mother stated she had been in treatment for alcoholism since 1995, including residential treatment, however, she denied a current problem, stating she had not had a drink in three years. This was contradicted by statements from the stepfather, who stated that the mother had been using alcohol since at least December 7, 2004.

In January 2005, the mother entered Heritage House, a six-month residential treatment program for mothers and their children. She did not remain with the program because the child was not released by the court. SSA provided referrals for drug and alcohol testing and counseling, parent education, and domestic violence and personal empowerment counseling.

Drug test results from February revealed positive results for marijuana metabolites in addition to substances contained in prescription medications the mother

was taking for a knee injury. She began receiving negative test results several weeks later.

A social worker from the Irvine School District and the maternal grandmother both reported strange phone calls from the mother on February 22, raising concerns that she was intoxicated. There was also an incident after which the police were called, with the mother claiming that the stepfather had raped her. The stepfather was not arrested, but left the house with his son. On March 1, the mother entered a non-medical detox center called Ashland House for 13 days, and as of that time, the stepfather and stepson had returned to the home.

On March 31, the childs caretaker reported that the mother had called her on the telephone, and described the mother as slurring her words, crying, dropping the telephone. She missed a counseling orientation session the next day, and she had missed all lab tests after March 24.

Hearings in the case were continued several times to allow for proper notice under the ICWA. On April 7, the mother submitted on an amended petition, and the court declared the child a dependent. The amended petition dropped the section alleging the mother had no provision for support. ( 300, subd. (g).) The allegations under section 300, subdivision (b), failure to protect, detailed the mothers serious problem with alcohol and her volatile relationship with Matthew R. The case plan detailed reunification services, including domestic violence counseling, parenting education, substance abuse counseling and testing, and participation in a 12-step program. In addition, the court found that the ICWA did not apply, based on the responses received to the many notices served by SSA. None of the noticed tribes intervened in the case. A six-month review was set for August 3, 2005.

The period between the jurisdiction/disposition hearing and the six-month review can only be characterized as deeply troubled. The mother was in a car accident on

April 26, and reported suffering whiplash as a result. She was also hospitalized for pancreatitis and left the hospital against medical advice.

In June, the court granted SSAs request to keep the childs placement information confidential from the mother after the foster mother experienced harassment and false accusations of misconduct. When SSA convened the social services team to discuss the childs placement, the mother appeared to be so intoxicated when contacted by telephone that she could not attend. SSA felt that the mother was attempting to sabotage foster care and that moving the child to a new placement would not resolve the problem.

The mothers progress with her service plan was unsatisfactory. She did not drug test as directed, and some tests came back positive for prescription medications, though no prescriptions were submitted. She was terminated from the parenting class for poor attendance, though after reinstatement, she was eventually able to complete the parenting program.

Her visits with the child were inconsistent, and she missed visits persistently between February and May. While many visits went well, at least two were ended due to the mothers apparent intoxication. The mother did not visit at all between late May and early July. While the mother was hospitalized from June 6 to June 13 with complications from the car accident, visits did not resume until July 12. That visit upset the child, who stated she was worried about the mother, and the child did not eat for the entire day.

The mother began one substance abuse treatment program, then left, claiming that one of the staff members had cursed at her. She began another program, but claimed it was unsatisfactory because it was primarily for drug abuse. She subsequently claimed to be participating in another program, but the staff at that program had never heard of the mother when SSA inquired. She attended some outpatient

treatment, but only attended four meetings before being asked to leave because she was not in good shape.

The mothers therapist was very concerned about her. She was terminated from therapy twice for poor attendance. The mothers behavior was completely inconsistent at times she seemed well-put-together, and would be rational and carried herself well. At other times she was disheveled, would speak slowly and have trouble putting thoughts together. The therapist doubted the mother was sober, and felt that treatment was counterproductive if she was still using. The therapist recommended a section 730 evaluation, and felt she might benefit from a dual diagnosis facility as she seemed to have mental health issues in addition to the substance abuse problems. The mothers therapy was abruptly terminated in June by the mother herself, when she felt that the therapist had been rude by not acknowledging her in a coffee shop.

The mothers personal life also remained volatile. The stepfather obtained a restraining order against her in June. The stepson reported the mothers continued drinking and continued police contact. SSA noted that the mother and stepfather had approximately 10 major instances of domestic violence and numerous minor incidents during their relationship.

At the August 3, 2005 hearing, the court ordered Dr. Laura Brodie to conduct an evaluation pursuant to section 730 and continued the hearing. Dr. Jensen felt that the mother was progressing, but Dr. Brodies prognosis was fairly bleak. She felt that therapy would prove difficult for the mother because she was repressive, limited in insight, and rejected the idea of mental illness. She would reject therapy once confronted with her problems.

The six-month review was eventually held on November 2, more than 10 months after the childs initial removal. All parties stipulated that reasonable services

had been provided and to continuing the services until a 12-month review scheduled for January 25, 2006.

Late 2005 seemed to go well for the mother. The mother made significant efforts to comply with her case plan, particularly with Dr. Jensens treatment regime. He reported that the mother seemed fully sober, capable and healthy. In addition, the mother resumed attending therapy sessions.

She also resumed drug testing, although numerous tests from November and December came back positive for marijuana. The mother provided a physicians statement indicating it was recommended for her medical condition. SSA was not able to obtain recommendations or approvals of this from the mothers primary care physician or psychiatrist.

Nonetheless, matters were improving. SSA noted that the mother had put forth a tremendous effort to change her life, and that her overall health, appearance, and willingness to comply with the court had improved. Visits had also improved. Given this progress, SSA initially recommended extending services to the maximum 18-month period. The January 25, 2006 hearing was continued to February 28, because the childs counsel opposed SSAs recommendation for further services.

The mothers recovery, unfortunately, did not last. On February 15, the mother was arrested for charges of domestic violence and resisting arrest. Dr. Jensen called SSA to ensure that the child was not with the mother, indicating that the mother had been drinking and driving under the influence. Upon her release, the mother blamed her behavior on pain medication and stated she did not remember drinking. The situation was further complicated by the mothers lack of a stable home, as she was barred from her residence with Matthew R. as a result of a restraining order.

Dr. Jensen was also discouraged. After seeing the mother on March 1, he indicated that she was unstable and could relapse at any time. He noted she was not

listening to anyone and that he could not predict her stability. Shortly thereafter, the mother replaced Dr. Jensen with another doctor.

The next month was relatively calm, with the mother attending meetings and living in a sober living facility, but in April she was hospitalized and reportedly in serious condition from the effects of alcoholism. A visitation monitor suspected the mother was intoxicated during an early April visit with the child. When SSA subsequently restricted visits, the mother became belligerent, shouted at the social worker, and threatened to sue her.

Two days later, the mother was arrested at Matthew R.s home. She was present there in violation of a restraining order, and charged with a variety of offenses, including burglary. The mother was reportedly drunk at the time of her arrest.

After several continuances, the 12-month review was held on April 19, 2006, some 16 months after the initial detention, with the mother still in custody. The mothers counsel did not object to SSAs reports. Based on counsels offer of proof, the court denied the mothers request to present testimony from her along with her doctor and the stepfather. The court indicated that the mother could not say anything that would persuade it that there was a substantial probability of reunification within two months, the outside time limit for further services.

The court advised the mother to become very realistic and get back on track prior to the permanency planning hearing. The court noted that the evidence was overwhelming and that it had no option other than setting a permanency planning hearing. The court noted theres been no attack as far as the services provided and commended the social worker for performing at a high level. Accordingly, the court terminated reunification services and set a permanency planning hearing for September 13. The mother now seeks relief via extraordinary writ.

We ultimately denied the petition. We concluded the trial court was correct in finding that reasonable services had been provided, compliance with the Indian Child Welfare Act (25 U.S.C. 1901, et seq.) (ICWA), no due process violations, and refusal to extend services.

Additional Facts

This courts prior opinion was filed on August 15, 2006. While the petition was pending, the mother was arrested once again (the fourth arrest since March 2005). The latest arrest, in June, was for resisting arrest, obstructing or delaying a deputy sheriff, and public intoxication. Her blood-alcohol level on arrest was tested at .30.

SSA reported that the mother had two monitored visits with Lauren between termination of services in April and September report. Lauren responded well to the visits, but remained aloof and rarely talked about the mother by September. The mother did not have visits with Lauren while she was incarcerated.

SSA also determined that Lauren was likely to be adopted. She felt secure in her caregivers home and was doing well both at home and at school. In August, her therapist determined that Lauren was bonded to her caregiver and expressed very little but abandonment about her biological mother.

Lauren did express some regret that she had not seen her stepbrother James for a long period of time. Matthew, the stepfather, had visited Lauren with James, but stopped visiting after his request for de facto parent status was denied in April 2006. He told SSA that he was going to divorce the mother, and did not want James present at visits because it would not be good for either his son or Lauren.

Upon the mothers release from incarceration in November, she contacted the social worker and promptly began berating her over the perceived injustices she had suffered. SSA arranged for monitored visits to resume. The visits proceeded without incident, with the child referring to the mother by her name and the foster mother as Mama.

The permanency planning hearing was continued several times, eventually beginning in January 2007. On that date, both the mother and James filed modification petitions pursuant to section 388. Jamess petition, under subdivision (b), asked the court to vacate the permanency planning hearing and allow him to visit Lauren and to permit consideration of the effect of the sibling relationship on the permanent plan. His supporting declaration stated that he and Lauren had lived together for a little over a year, sharing many enjoyable experiences together, and he had visited Lauren five or six times during the dependency proceedings. The court rejected Jamess petition, stating that it could not recall a situation with less merit. Jamess visitation had never been an issue in the case, and the court saw no reason to suspend the proceedings, given that there was no showing of any meaningful relationship to salvage and no evidence of benefit to the child.

The mothers petition also requested the hearing be delayed to allow her to make up visits that she did not have with the child while she was in custody. She blamed her prior counsel for failing to protect her right to visit Lauren. The court also rejected this petition, finding there was no showing of benefit to Lauren from further delay. The next day, the court began hearing testimony. The mother was not present. The court heard testimony from Lauren, who stated that she wanted to live with her caregiver. She also said she would like to live with James, although she knew that was not possible. She said James was nice, but did not indicate he was important to her. After Laurens testimony, the mothers counsel sought reconsideration of Jamess section 388 petition, which was again denied because of a lack of any showing that granting the petition would be in Laurens best interests.

After further testimony, the court issued its findings. The court found there was no issue as section 366.26, subdivision (c)(1)(A), typically known as the benefit exception. The court noted it had received evidence on the sibling exception ( 366.26, subd. (c)(1)(E)) only out of an abundance of caution. While the minors enjoyed each others company, there had been little recent contact between them and no showing was present that Lauren would suffer as a result. The court found the incidental benefit of their relationship was easily overshadowed by Laurens need for stability and permanency.

The court then ordered the mothers parental rights terminated. The mother and James both appeal.

II

DISCUSSION

Section 388 Petitions

Jamess sole claim of error is that the court summarily denied his section 388 petition. Although James would have us believe otherwise, the appropriate standard of review is abuse of discretion. The juvenile courts determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Moreover, the courts discretion to determine whether a section 388 petition is sufficient to order a hearing comports with due process standards. (In re Heather P. (1989) 209 Cal.App.3d 886, 891-892.) Therefore, we will not disturb the trial courts decision unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

In pertinent part, section 388, subdivision (b) provides: Any person . . . may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is . . . a dependent of the juvenile court, and may request visitation with the dependent child . . . or make any other request for an order which may be shown to be in the best interest of the dependent child. . . . The petition shall be verified and shall set forth . . . [] [w]hy that request or order is in the best interest of the dependent child.

We find no abuse of discretion.^[5] First, it is doubtful that section 388, subdivision (b) even applies here. Petitions under that section are limited to a sibling related by blood, adoption, or affinity through a common legal or biological parent . . . . There is no question that James is not; indeed, it was Matthews failure to obtain de facto parent status that caused the break in their relationship.

Moreover, even assuming section 388, subdivision (b) did apply, and giving Jamess petition the broadest and most favorable reading possible, he does not come close to establishing that delaying permanency would be in Laurens best interests. James and Lauren are not blood siblings. They lived together for just over a year. James visited Lauren five or six times during the past year. He had not seen her since the spring of 2006. Laurens own testimony showed only that she liked James, but not that she had such a bond with him that it would harm her if it were severed. We find no abuse of discretion in the courts conclusion that Laurens need for dependency and stability outweighed any incidental benefit of her relationship with James.

Benefit Exception

The mother argues the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(A), typically known as the benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence rule. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) [W]e 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.] (Ibid.)

Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. ( 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)

One of these is the benefit exception, which requires an affirmative showing that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) The parent must prove a substantive positive emotional attachment such that the child would be greatly harmed if deprived of the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)

The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The quantity of contact must be considered within the context of the visitation the parent is permitted.

(In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)

As we noted in our previous opinion, the mothers visits were inconsistent and sometimes marked by her unstable behavior. But even if we presume the visitation and contact was sufficient, the court must also determine whether a child would benefit from continuing the relationship with the parent, balancing 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 Autumn H., supra, 27 Cal.App.4th at p. 575.)

There was more than substantial evidence from which the court could conclude that any benefit to Lauren would be outweighed by a permanent, stable home. Although visits generally went well, by September, Lauren was a bit aloof. She did not talk about the mother much, and her therapist opined that she expressed little about the mother except abandonment. Lauren had, however, bonded with her caregiver, and stated that she wished to live with her forever. Thus, none of the evidence suggested that Lauren had such a strong emotional connection to the mother that she would suffer in great harm if it was severed. The court, therefore, did not err in concluding that the benefit exception did not apply.

Sibling Relationship Exception

The mother next argues that the court should have applied the sibling relationship exception found in section 366.26, subdivision (c)(1)(E). As with the benefit exception, we review the courts findings for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Under the sibling exception, the court must determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. ( 366.26, subd. (c)(1)(E).) If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. ( 366.26, subd. (c)(1)(E).) (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952.)

Even if we assume that James and Lauren are siblings within the meaning of the exception, the court correctly concluded that the exception did not apply under either or both prongs of the exception. James and Lauren were not raised in the same house they had only lived together for a year. There was no substantial showing of significant common experiences or have existing close and strong bonds. ( 366.26, subd. (c)(1)(E).) To the contrary, the evidence merely supports the contention that Lauren and James are stepsiblings who enjoyed each others company.

Further, there was more than ample evidence that Laurens need for permanence and stability substantially outweighed any benefit of continuing her relationship with James. She was doing well both at home and at school. She had bonded with her caregiver, called her Mama and said that she wanted to live with her. These significant factors clearly outweighed a merely friendly relationship. The court did not err by finding the sibling exception did not apply.

ICWA Compliance

As in the writ proceeding, the mother once again complains about compliance with the ICWAs notice requirements. This time, she argues that SSA never properly inquired into the possible Indian heritage of Sean, the father, an issue she never raised during the entirety of the proceedings below.

We need not belabor this. Even if we assume that the mother is correct and that SSA was required to make reasonable inquiries of the father, SSA had previously made repeated and fruitless attempts to contact Sean. Further, the information that SSA did have about Sean was included in the copious ICWA notices SSA had previously sent.

The court found that SSA had exercised due diligence in locating Sean, and there is nothing in the record to indicate that the mother objected. The mothers assertion that Sean is now back in custody and easily reachable is belied by the fact that the address she points to is the same address that has been listed during the entire pendency of the case. Mail sent to that address was returned to sender in April 2005. Subsequent notices sent to Sean at a different address as late as November 2006 were also returned as unclaimed.

Sean has never appeared or sought involvement in this case. While the duty to inquire about the ICWA is ongoing, it is unreasonable to construe that as meaning that SSA must repeatedly and continually attempt to search for an absent parent. Thus, because any issue of due diligence in locating Sean was waived by the mother, she cannot now claim that ICWA notice was improper.

III

DISPOSITION

The order is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

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^[1]Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[2]The mother and the childs biological father were never married. At the time of detention, the father was incarcerated.

^[3]According to CAS, the mother was not permitted to leave Canada with the child.

^[4]On January 25, 2005, the juvenile court determined that retaining jurisdiction was appropriate.

^[5]Frankly, although James spends much time discussing it, the standard of review is hardly determinative here. Even if we were reviewing this issue de novo, we would agree with the trial court that James had failed to establish a prima facie case.