In re
Filed 9/3/13 In re Lincoln M. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re LINCOLN M., a Person
Coming Under the Juvenile Court Law.
B247636
(Los Angeles County
Super. Ct. No. CK49156)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JENNIFER M.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court of
County.
Elizabeth Kim, Juvenile Court Referee. Affirmed.
Patti L.
Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for
Plaintiff and Respondent.
___________________________________________________
Jennifer M. (Mother) has a long history of
permanently placed with other families.
Last year, Mother’s son Lincoln M. was born with methamphetamine in his
bloodstream. Mother asks us to ignore
her history and focus on the possibility of a brighter future. Like the juvenile court, we see evidence of
changing circumstances, not changed circumstances. Mother’s recently renewed effort to attain
sobriety does not outweigh Lincoln’s need for permanency. We affirm the orders denying Mother’s
petition for a modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26.)
FACTS
In 2002,
the Department of Children and Family
Services (DCFS) petitioned on behalf of Mother’s daughters Valerie and
C. The juvenile court found that Mother
physically abused Valerie by striking her with a belt; Mother failed to protect
the children by leaving them with their physically abusive grandmother; Mother
made inappropriate plans for the children’s care and supervision by leaving
them with their abusive grandmother or a family friend, and allowing strangers
to walk them home from school; Mother has a history of substance abuse that
includes heroin, alcohol, methamphetamine (meth), and marijuana, and currently
abuses drugs, rendering her incapable of providing regular child care; Mother
created a detrimental and endangering home environment for the children by
abusing drugs in their presence and having drugs and paraphernalia within
access of the children; Mother endangered the children by driving them while
under the influence of drugs; and Mother left the children without making plans
for their return home or providing them with the necessities of life. The court terminated reunification services
in July 2003. C. was adopted in 2005,
and Valerie was permanently placed with nonrelated legal guardians.
In May
2012, DCFS was alerted that Mother’s newborn child Lincoln tested positive for
meth, as did Mother. When interviewed at
the hospital, Mother claimed seven years of sobriety until she started “hanging
out with the wrong crowd†in 2010, causing her to relapse. She admitted using meth two weeks before
giving birth. Lincoln’s father Ramon M.
(Father) stated that he has a 14-year-old daughter from a prior relationship,
but in 2004 he was convicted and served prison time for molesting her. Mother separated from Father in January 2012,
“after he kicked the other woman they were having a threesome with out of the
home.†Father understood that DCFS would
not release Lincoln into his custody because of his child abuse
conviction. Mother and Father began
dating in 2005 and were married in 2010.
Though
Father denied awareness that Mother was currently abusing drugs, his sister, a
nurse, warned him early in his relationship that Mother had the signs of a drug
user. Mother acted irrationally and left
the home for days at a time. The
paternal aunt described Mother as “a manipulator that lies and twists words to
make herself out as the victim.†The
paternal grandfather stated that Mother admitted to him three months earlier
that she had used drugs, but stopped. He
congratulated her for stopping and told her to be careful because she was
pregnant.
Mr. and
Mrs. M., the legal guardians of Mother’s child Valerie, expressed willingness
to have Lincoln placed in their home and adopt him if Mother fails to reunify. They have been caring for Valerie for three
years and would welcome her sibling.
Mrs. M. stated that Mother frequently lies: she has known Mother since high school, which
is how she ended up as Valerie’s guardian.
Mother provided documentation that she was undergoing cancer
treatment. Mother favored placing
Lincoln with the M. family.
Based on
Mother’s drug history, her failure to reunify with two older children,
Lincoln’s positive screen for meth, and Father’s child molestation conviction,
DCFS detained Lincoln in hospital care.
DCFS assessed the risk of future abuse and neglect as “very high.†DCFS recommended that Mother complete an
in-patient drug program with random testing, individual counseling, and
parenting, with monitored visitation for both parents.
On June 4,
2012, DCFS filed a petition on behalf of Lincoln. It alleges that Lincoln was born with a
positive toxicology screen for meth, and Mother tested positive as well. Mother has a long history of substance abuse
that renders her incapable of providing regular care, and her daughters
received permanent placement services due to Mother’s substance abuse. The petition also alleges that Father
sexually abused Lincoln’s sibling and is a registered sex offender with a
conviction for lewd or lascivious acts with a child under the age of 14. Mother’s drug abuse and Father’s sexual abuse
place Lincoln at risk of harm. The
juvenile court found a prima facie case for detaining Lincoln from both
parents.
DCFS
submitted a jurisdiction/disposition report.
Discussing Mother’s prior history, DCFS noted that it received a
referral that Mother left Valerie and C. for a month in day care and never
returned to pick them up. Mother had
gone to participate in a drug program to overcome use of marijuana and
“speed.†Mother’s skin had needle marks
and “lumps as a result of shooting meth.â€
In an
interview, Mother admitted using meth two days before Lincoln was born,
claiming that “prior to her relapse two days before delivery she had been clean
since August 2005.†Mother ascribed her
relapse to marital discord with Father.
Mother denied ever using heroin or alcohol, only marijuana and
meth. Mother completed a drug treatment
program in prison in 2005, but lost custody of her daughters due to her drug
history. Mother used marijuana during
her cancer treatment, but stopped when she found out she was pregnant. Her cancer is now in remission.
Mother
indicated that she first used drugs at age 13.
Initially, her usage was a few times weekly, but later escalated to
daily use. Mother considers herself to
be an addict, and is committed to completing a residential treatment
program. She plans to attend 12-step
meetings to maintain sobriety when the drug program ends. Mother asserted that her main goal is to
regain custody of Lincoln and remain sober, saying “I’m a different
person. I’m done doing [drugs]. I’m done going to jail.†Mother’s parents were heroin addicts. She was raised by her maternal aunt and
grandmother.
Mother
knows that Father is a registered sex offender but is unconcerned about
it. After noting that Father
participated in two years of counseling, she added, “‘I think the whole thing
got blown out of proportion. . . . From
what his friends and family say [Father] was holding his daughter and she had a
dress on and he had his hands under her dress on her bottom. That was it.
He thinks it was inappropriate, but from what it sounds like it
wasn’t.’†Mother is aware that Father
admitted to police that he molested his daughter, but she does not believe that
a molestation occurred.
For his
part, Father learned of Mother’s drug use while at the hospital visiting
Lincoln. When a nurse informed him that
Mother and Lincoln tested positive for meth, Mother told Father that “‘the
hospital made a mistake and that she did not use drugs.’†He could not believe that Mother used drugs
while pregnant, but added that he did not understand how he could have molested
his own daughter, either. He knew Mother
had a history of substance abuse but she told him she had kicked the habit and
was clean for six years. During their
marriage, Mother would frequently leave and not return for long periods. He “just thought she was hanging out with her
friends†during her weeks- or months-long absences. In January 2012, Mother left to go to church
and never returned. She asked to come
home shortly before Lincoln’s birth in May 2012, but Father said no. During one of Mother’s disappearances in
2011, she told him she had to be “clean†before she returned home. Father does not understand drug behavior or
why Mother cannot just stop using drugs.
Father
conceded that he molested his daughter by putting his hands beneath her
underwear, but denied digital penetration.
He completed twice the amount of required counseling to help himself
understand his actions, which he found disturbing. At the time, Father was having an internal
struggle regarding his sexual orientation and had difficulties in his
relationship with the child’s mother. He
believes that the molestation was a way to get back at his wife, rather than
sexual gratification. Father was
sexually molested by a man in his neighborhood when he was a child. Father was honest and forthcoming about his
conduct.
Mother
visited Lincoln once a week for an hour, since June 6, 2012. Lincoln was brought by a monitor to see
Mother at her treatment facility. Father
also visited Lincoln once a week for an hour.
Assessing the family’s situation, the social worker expressed disbelief
that Mother was clean for seven years before using meth while pregnant with
Lincoln. Father indicated that Mother
disappeared in 2011, and told him she did not want to return home until she was
clean; further, a mandated reporting party contacted DCFS in January 2011 to
say that Mother was arrested when she was pulled over and found to have drugs
in her possession. Mother continues to
struggle with drug abuse and is presently in a residential program. DCFS asked that neither parent receive
reunification services because Mother failed to reunify with two older children
and Father is a registered sex offender.
Mother
waived her right to a trial and submitted on the basis of the DCFS reports and
other documents. Father requested a
trial on the petition. Pending trial,
DCFS reported in July 2012 that Mother actively participates in her treatment
program. She tested negative for drugs
on June 13, 2012, when she entered the program.
She also tested negative on July 11, 2012.
DCFS noted that after Mother
completed a substance abuse program
while incarcerated in 2005, she participated in 12-step meetings several times
per week. Mother was granted unmonitored
and overnight visits with Valerie in 2006; however, in February 2008, Mother
was restricted to monitored visits due to her anger management issues, conflict
between her and Valerie, and Valerie’s feelings that she was not safe with
Mother. Four years later, Mother’s
contacts with Valerie continue to be monitored.
On July 24,
2012, the court sustained an allegation that Mother has a 13-year history of
substance abuse and currently abuses meth, rendering her incapable of providing
regular care for Lincoln. Both Mother
and Lincoln tested positive for meth when the child was born. Mother’s two daughters received permanent
placement services due to Mother’s drug abuse, which endangers Lincoln’s health
and safety and places him at risk of harm.
At a
hearing on July 31, 2012, the court found that Lincoln is a two-month-old child
whose parents have a history of child abuse.
Mother physically abused her two daughters and abused drugs; as a
result, Mother did not reunify with her children and one of them was adopted
after Mother’s parental rights were terminated.
Father sexually abused his daughter when she was five years old, for
which he was convicted in 2004. In
violation of the rules regarding registered sex offenders, Father spent time
alone with Mother’s daughter Valerie, resulting in a child abuse referral. The court sustained counts that Father
sexually abused his daughter, is a registered sex offender, and his conduct
places Lincoln at risk of harm. The
court declared Lincoln a dependent of the juvenile court.
Moving to disposition, counsel and
the court noted that Mother relapsed in 2010, after completing a required drug
program in jail, and continued to use drugs until Lincoln was born in
2012. The parents are not requesting
custody or even unmonitored contact with their newborn. At best, giving them reunification services
merely postpones permanency for Lincoln, as the parents have never lived with
the child and have no hope of obtaining custody in the foreseeable future. Over Mother’s and Father’s objections, the
court denied reunification services and set a hearing to select a permanent
plan.
In November 2012, Mother petitioned
for a modification. As a changed
circumstance, she cited completion of a 120-day inpatient drug program, 12
weeks of domestic violence classes, and an anger management course. She has enrolled in an outpatient aftercare
program and has tested negative for drugs.
Mother asked the court to give her custody of Lincoln, or reunification
services and unmonitored visits. She
consistently visits Lincoln and believes she has taken all necessary action to
maintain a healthier lifestyle. It is in
Lincoln’s best interest to be with Mother “as it is always the goal to reunify
families.†The court scheduled a hearing
on Mother’s petition.
In November 2012, DCFS reported
that Lincoln does not demonstrate developmental, behavioral or mental health
problems. Mother and Father behave
appropriately during monitored visits.
DCFS identified Mr. and Mrs. M., the legal guardians of Lincoln’s
17-year-old half sister Valerie, as prospective adoptive parents. The M.’s and Valerie have day visits with
Lincoln. The court continued the
permanent plan hearing to obtain a home study for the prospective adoptive
family.
In January
2013, Lincoln’s caregivers, Mr. and Mrs. W., requested that they become his
adoptive parents if his natural parents fail to reunify with him. Lincoln is attached to the W. family. Lincoln’s pediatrician is very happy with the
child’s development throughout his placement with the W. family, saying that
they “have taken excellent care of him.â€
Lincoln has lived with the W.’s since he was five days old.
DCFS reported that Lincoln “appears
to be happy, secure, bonded, expressive and well adjusted in his present
family.†Mother and Father have joint
monitored two-hour visits weekly.
Lincoln’s half sister Valerie and her legal guardians had four
unmonitored weekend visits with Lincoln; they had not seen Lincoln for the last
six weeks. The current foster home—which
is approved for adoption—continues to be the most suitable for Lincoln. He has received excellent care there for the
full eight months of his life, and is being raised and loved like the W.’s own
child. DCFS noted that Mother is
currently the subject of an arrest
warrant in Orange County on felony charges of second degree burglary and
forgery.
Visitation notes from September to
November 2012 indicate that Mother and Father have enjoyable visits. They feed and burp Lincoln, soothe him with a
pacifier, change his diaper, say caring things and are attentive to his
needs. Lincoln is happy to receive all
the attention from adults. The M. family
continued to be interested in adopting Lincoln, after caring for his half
sister Valerie for four years. Valerie
described the M.’s as “great parents†although she does not feel emotionally
close to them.
DCFS responded to Mother’s petition
for a modification. It offered Mother’s
lengthy rap sheet, which includes a misdemeanor conviction for misappropriating
property (2001); arrests for forgery, driving without a license and burglary
(2003); a felony conviction for passing false checks (2003); a misdemeanor
conviction for being under the influence of a controlled substance (2003); a
felony conviction for an assortment of drug-related crimes, including the sale
of drugs and being a felon in possession of a firearm (2004); a felony
conviction for drug crimes such as possessing a controlled substance for sale
and drug paraphernalia (2010); a misdemeanor conviction for possessing drug
paraphernalia (2011); and felony convictions for being under the influence and
possessing drugs (2011). In addition,
Mother has a 1996 federal conviction for drug smuggling with the intent to
distribute.
DCFS agreed that Mother completed a
residential drug program, enrolled in an outpatient treatment program, and took
domestic violence and anger management classes.
She has submitted to drug testing.
Mother has attended 42 AA/NA meetings since entering the program in October
2012. Mother was having difficulty
finding work, due to her criminal history.
Mother and Father consistently
visit every week and are appropriate during visits, feeding Lincoln, changing
his diaper, cleaning him, and consoling him.
Lincoln laughs and smiles at everyone.
The foster mother could not tell if Lincoln recognizes his parents, in
particular, because he is good-natured and reacts well to everyone. Mother said that she has learned a lot and is
now able to raise a child. With her
older children, “I didn’t really care because I didn’t know how to.†She wants to be a person her children can
respect and a good parent.
DCFS observed that Mother is very
motivated to regain custody of Lincoln and began participating in a drug
treatment program without the juvenile court ordering her to do so, although
one of the conditions of her criminal probation is completion of a six-month
drug program. Her visits are of high
quality. Despite Mother’s efforts, she
has used drugs since age 13, going so far as to smoke and inject meth. She has participated in drug programs before,
only to return to drug use. In 2002,
Mother was discharged from a drug treatment program for threatening another
resident; before her discharge Mother was doing well, with perfect attendance
and negative drug tests. Mother enrolled
in another program from which she was discharged in 2003 for again threatening
another resident. Mother enrolled in a
third program but left after three weeks.
Afterward, she told her a DCFS caseworker, she started using
heroin. Mother completed a drug program
while incarcerated in 2004-2005.
After completing the prison
program, Mother remained sober for five years (perhaps explaining the gap in
her arrest records), then began using meth in 2010. Mother used drugs several times a week
because she did not have the money to use daily. She has mental problems arising from a
traumatic childhood, including being born addicted to heroin, and was abused,
neglected and abandoned by her drug-addicted parents. Mother makes inconsistent statements about
her drug use. Although she now denies
ever using heroin, Mother told an DCFS investigator in 2002 that she smoked
heroin, and told a social worker in 2003 that she had starting using heroin
“again.†Mother’s risk of relapse is
high, given her history and her willingness to use drugs while pregnant. Mother continued to participate in
counseling, parent education, anger management classes, and drug testing.
The court conducted a combined
hearing on February 13, 2013. It first
addressed Mother’s petition for modification.
Mother’s drug and alcohol counselor acknowledged that Mother “made a
huge mistake in her past. I know that
she has a past with drug abuse. However,
I believe that she has changed. And I
believe that she can maintain sobriety†because she has a circle of sober
friends, has a sponsor, and attends group meetings four times a week, sometimes
twice a day. Mother tests weekly and all
the results since October 24 have been negative. Mother will complete the program in April,
but asked for six to nine months more.
The drug counselor believes Mother is motivated to persevere, be a good
mother, and live a drug-free lifestyle.
The counselor is not a licensed therapist. Though Mother did not mention it to her, the
counselor was aware that Mother tested positive for meth when she gave birth to
Lincoln, and has used marijuana, alcohol and heroin during her lifetime.
Mother argued that she has changed
for the better, and it would be in Lincoln’s best interests to reunify because
they have formed a bond during six months of consistent visits. DCFS responded that Mother “has been down
this road before many times,†losing her children in the process, and using
drugs while pregnant. The court observed
that Mother has completed numerous drug treatment programs and is currently in
an outpatient program, essentially testing clean for the duration. The court found that “there are changing
circumstances, and that mother has made progress and has taken steps toward
sobriety. However, the evidence before
the court indicates that the mother has in the past completed an inpatient
program, that she, in fact, was clean for five years and then she relapsed,
including taking drugs during the time that she was pregnant with this child,
who is at issue today.†It would not be
in Lincoln’s best interest to grant the petition because Lincoln has spent his
life in foster care with a family that is offering him a permanent home.
The court heard Father’s testimony
with respect to the permanent placement plan.
He stated that he has visited Lincoln weekly since the petition was
filed, monitored by the foster parents.
Lincoln recognizes and responds to Father, smiling and reaching for
Father. Father feels a bond between
them. Lincoln would benefit from
continuing the relationship because “I’m his father†and he can teach the child
many things, including how to speak Spanish.
The prospective adoptive parents stated that they would allow Father to
visit Lincoln after the adoption.
Mother testified that she has
visited Lincoln once per week since birth.
Initially, the visits were one hour, while she was at the inpatient drug
program; after completing the program, Mother’s visits extended to two
hours. While Lincoln was an infant, she
would feed and sing to him, and change his diaper. She brings age-appropriate toys for him and
encourages him to crawl and move.
Lincoln reacts positively when he sees her, and he would benefit from
continuing the relationship. Their
visits are monitored. The W. family is
open to visits following adoption.
Lincoln’s attorney joined with DCFS
and asked the court to terminate parental rights. The court found that Lincoln is adoptable and
it would be detrimental to return him to his parents. The parents have regularly visited Lincoln
since his detention, availing themselves of monitored visitation. Balancing their continuing relationship
against the security of a permanent adoptive home, the court found that Lincoln
has been in foster care since he was five days old. When Lincoln was initially placed, he was
suffering the effects of meth, and was restless, tortured, and twitching. The foster parents sought hospital
instructions on how to care for an addicted child and help him progress. The twitching and jitteriness stopped at the
age of four months. Neither Mother nor
Father testified that they sought instructions for caring for a meth-addicted
infant. They failed to carry their
burden of proving the parent-child relationship exception to the law favoring
adoption and permanency. The court
terminated parental rights and identified the permanent plan as adoption with
the foster parents. Mother appeals.
1. Denial of Mother’s
Petition for a Modification
When the
court denies or terminates reunification services, this “ordinarily constitutes
a sufficient basis for terminating parental rights.†(In re
K.C. (2011) 52 Cal.4th 231, 236-237.)
A parent may revive the reunification issue only by demonstrating
changed circumstances. (§ 388;
1235; Kimberly H. v. Superior Court (2000)
83 Cal.App.4th 67, 72; In re Casey D. (1999)
70 Cal.App.4th 38, 47.) There must be a
genuine change in circumstances such that the child’s best interests will be
promoted by the proposed change in order.
(In re Anthony W. (2001) 87
Cal.App.4th 246, 250; In re Carl R. (2005)
128 Cal.App.4th 1051, 1071.) To make
this determination, the court may consider the entire factual and procedural
history of the case. (
247, 258; In re Justice P. (2004) 123
Cal.App.4th 181, 189.) The ruling cannot
be reversed unless there is a clear abuse of discretion—an arbitrary,
capricious or patently absurd determination that exceeds the bounds of
reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re A.S. (2009) 180 Cal.App.4th 351, 358.)
a. Changed Circumstances
Mother argues that she established
changed circumstances by completing an inpatient drug treatment program, 12
weeks of domestic violence classes, and an anger
management course. She was
participating in an outpatient aftercare drug program designed for individuals
suffering from concurrent drug/mental illness disorders. Further, she regularly visited
Lincoln. The record supports Mother’s
argument that she participated in rehabilitation programs and classes. But the record does not support a conclusion
that circumstances have changed.
Mother previously participated in
drug rehabilitation without success. In
2002, she abandoned her daughters at a day care center to participate in a drug
program, then relapsed. She completed a
drug program in 2004-2005, while in prison, then relapsed. She has drug-related convictions in 1996,
2003, 2004, 2010 and 2011.
The most compelling measure of
Mother’s lack of success is the unavoidable fact that Lincoln was born with
meth in his bloodstream. Despite her
awareness of the dangers of drug abuse, Mother used meth during her
pregnancy. She initially told DCFS that
she used meth two weeks before
Lincoln’s birth. Later, she told DCFS
that she used the drug only once since 2005, two days before Lincoln’s birth.
and it remains to be seen whether Lincoln will suffer impairment arising from
his prenatal exposure to Mother’s selfish and heedless drug use. The juvenile court could reasonably find that
Mother’s eight months of sobriety was minimal progress for someone who
describes herself as an addict and has abused drugs since the age of 13,
sometimes on a daily basis.
Apart from exposing Lincoln to a
dangerous drug before he was born, Mother did not state that she is currently
able to provide Lincoln with a stable, safe, permanent home. Without a showing of parental ability to
provide a safe home for the child, an 11th hour attempt to extend the
unavailing. (In re A.S., supra, 180
Cal.App.4th at p. 358.)
Merely participating and completing
drug counseling and testing, and regularly visiting the child, is not prima
facie evidence of changed circumstances.
(In re Anthony W.,
Although Mother stresses that she became involved in drug treatment “on
her own initiative,†there is evidence in the record that Mother is required by
the terms of her criminal probation to complete a six-month drug program. Mother’s initiative looks less voluntary in
view of the criminal court mandate. The
dependency court was not satisfied that the problems leading to the dependency
proceeding have been fully resolved. A
showing of “changing†circumstances was not enough. (In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
b. Best Interests of the Child
In determining a child’s best
interest, the court considers (1) the seriousness of the reason for dependency
jurisdiction; (2) the strength of the bonds between the child, the parent and
the caretakers; and (3) whether the problems leading to dependency may be
easily removed or ameliorated. (
519, 530-532.)
Given Mother’s history in the
dependency courts resulting in the termination of parental rights as to one
child, and her permanent loss of custody of another child, Mother had a long
way to go to prove parental fitness. She
argues that the current focus on her history is “misplaced.†Considering that Mother knowingly exposed
Lincoln to a toxic drug just days before his birth last year—at the risk of
destroying his life and health—Mother’s history of drug use is highly relevant
to any discussion of her parental fitness and the child’s best interests.
In this instance, Mother has not
progressed to unmonitored visitation with Lincoln, let alone demonstrated an
ability to take custody. There is no
evidence that Lincoln showed separation anxiety when visits with Mother were
over, which tends to discount the strength of the maternal bond. By contrast, he is strongly bonded to his
foster parents, where he has spent his entire life. Lincoln was removed from Mother’s custody
because she has long term substance abuse problems, and any periods of sobriety
were achieved only as a result of DCFS or criminal court intervention: “When that support was no longer available,
the mother quickly relapsed.†(
1220, 1228.)
The gravity of the circumstances
that led to this dependency proceeding
cannot be understated. For Mother, what
occurred in the past was a prologue to the present proceedings. After permanently losing custody to two
children due to domestic violence and drug abuse, Mother used drugs while
pregnant with Lincoln.
It is not feasible to ameliorate
the conditions leading to the dependency proceeding. Mother did not even admit that she committed
a grievous wrong by exposing Lincoln to meth. On the eve of the permanent placement hearing,
Lincoln’s interest in permanency and stability outweighs Mother’s interest in
reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Anthony W., supra,
87 Cal.App.4th at pp. 251-252.) The
court properly denied Mother’s petition for a modification.
2. Termination of Parental Rights
At the selection and implementation
hearing, the court must select adoption as the permanent plan and terminate
parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Celine R. (2003)
31 Cal.4th 45, 49; In re Jamie R.
(2001) 90 Cal.App.4th 766, 773.)
Adoption is the plan preferred by the Legislature. (In re Derek W. (1999) 73
Cal.App.4th 823, 826; In re Ronell A. (1995) 44 Cal.App.4th 1352,
1368.)
rights by showing why a statutory exception applies, and that termination would
be detrimental to the child. (In re
Celine R., supra, 31
Cal.4th at p. 53.) In re Derek W.,
Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
Mother argues that her parental
rights should not be terminated because she has “maintained regular visitation
and contact†with Lincoln, and there is a “compelling reason†to believe that
ending the parental relationship would be detrimental to the child. (§ 366.26, subd. (c)(1)(B).) She bears
the burden of proving that Lincoln would be “greatly†harmed by termination of
parental rights, and that she holds a “parental†role with the child. (In re
Brittany C. (1999) 76 Cal.App.4th 847, 853; In re Angel B. (2002) 97 Cal.App.4th 454, 466-468.)
Mother must show both prongs of the
exception: regular visitation and a
benefit to the child if the relationship were continued that outweighs the well-being
the child would gain in a new home with adoptive parents. As to the first prong, Mother’s visits have
been consistent throughout. As to the
second prong, the dependency court determined that Lincoln’s relationship with
Mother is not so significant that he would be greatly harmed if it were
severed. The court’s determination is
supported by substantial evidence. (
567, 576.)
This dependency case began when
Lincoln was born. He was detained at the
hospital because he and Mother tested positive for meth. As a result of Mother’s history of drug abuse
and domestic violence, she was unable to have unmonitored, weekend or extended
visits, let alone custody of Lincoln. A
showing that a child would be greatly harmed by termination of parental rights
is difficult to make when, as here, “the parents have . . . [not] advanced
beyond supervised visitation.†(In re
Casey D., supra, 70
Cal.App.4th at p. 51.) A true parental
relationship would not require a third party to monitor parent-child
visits.
Mother
argues that she has consistently visited Lincoln, and the visits were positive
and appropriate. Even frequent and
loving contact between parent and child is not sufficient to establish the
requisite benefit to the child if Mother does not occupy a parental role and is
unable to take custody. (
Cal.App.4th 721, 728; In re Beatrice M. (1994)
29 Cal.App.4th 1411, 1418-1419; In re Andrea R. (1999) 75 Cal.App.4th
1093, 1108-1109.) While Lincoln is
bonding with his prospective adoptive parents, Mother has not progressed to the
point where she can have unmonitored or overnight visits, even if the visits
are enjoyable. A relationship that is
“pleasant†is not enough to establish a benefit to the child because “it bears
no resemblance to the sort of consistent, daily nurturing that marks a parental
relationship.†(In re Derek W., supra, 73 Cal.App.4th at p.
827.) “Interaction between natural
parent and child will always confer some incidental benefit to the child.†(In re
Autumn H., supra, 27 Cal.App.4th
at p. 575.)
Apart from the incidental benefit of
parent-child interaction, we must consider “the many variables which affect a
parent/child bond. The age of the child,
the portion of the child’s life spent in the parent’s custody, the ‘positive’
or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a
parent/child bond.†(
p. 576.) Lincoln has never lived with
Mother: he went directly from the
hospital to foster care. Lincoln only
knows Mother from weekly visits. Mother
does not occupy a parental role for her child.
Mother does not dispute that Lincoln is thriving
in his placement, despite being exposed in utero to meth and suffering from
drug withdrawal symptoms for the first four months of his life. Mother did not carry her burden of showing
that Lincoln would be greatly harmed by the termination of her parental rights,
or that the benefits of continuing their relationship outweigh the benefits of
a stable, permanent home. The juvenile
court could reasonably find that Mother’s relationship is not sufficiently
beneficial. In a guardianship or
continued foster care, Lincoln would have an unstable placement. Where, as here, a child is likely to be
adopted, the court must choose “the most permanent and secure alternative that
can be afforded.†(In re Beatrice M., supra,
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the
California Constitution.
name="_ftn1" title="">[1] All
statutory references in this opinion are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] In
this proceeding, Mother told the caseworker that she never used heroin; however,
during the 2002 dependency proceeding, she told two DCFS employees that she
used heroin. She also lied to Father
when Lincoln was born, telling him that “the hospital made a mistake and that
she did not use drugs.†Though Mother
initially claimed sobriety for seven years between 2005 and 2012, she has drug
arrests and convictions in 2011. Mother
has little credibility.
