In re N.M.

Filed 8/31/09 In re N.M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from an order of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21).

Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

A.M. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26 ) to her four children.^[1] Appellants appointed appellate counsel submitted a letter dated July 14, 2009, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). We extended time for appellant to personally file a letter brief which she later did. In her letter, she contends she did everything that was required of her under the court-ordered plan for reunification and deserves a second chance to be a parent to her children. Having reviewed the appellate record as summarized below, we conclude appellants argument does not establish that the juvenile court committed any error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.

PROCEDURAL AND FACTUAL HISTORY

The Fresno County Superior Court exercised its dependency jurisdiction over appellants children in 2006 because the parents: exposed the children to an unsafe environment of ongoing domestic violence; and had substance abuse problems. The serious nature of the parents problems also led the court to remove the children from parental custody and order reunification services for the parents. After 18 months of reunification efforts, appellant completed most but not all of the court-ordered plan.

In particular, among the many services the court ordered appellant to complete was a domestic violence evaluation and any recommended treatment. Appellant did complete the required domestic violence evaluation in the fall of 2006 which led to a recommendation that she participate in a Victims Group program. Although she started the Victims Group program in January 2007, she did not attend the programs classes. She restarted the Victims Group program in the late summer of 2007. Appellant insisted she had been attending classes but was unable to provide any proof of her attendance. She later claimed she completed a different 52-week batterers program and submitted a document to that effect. However, she in fact never enrolled in this other program and the document she submitted was false.

Consequently after 18 months of reasonable reunification efforts, the court found appellant made minimal to moderate progress in alleviating and mitigating the causes of the childrens removal and terminated services for mother. The court in turn set a hearing to select and implement a permanent plan for the children ( 366.26) and advised appellant if she wished to challenge the courts decision she needed to file a notice of intent to file a writ petition within seven days time. She did not pursue writ review of the courts decision.

On or about the same day the court terminated services and set the hearing to select a permanent plan, appellant enrolled in the Victims Group program for a third time. She later submitted a certificate of completion dated June 17, 2008, noting she had completed 15 sessions in the program.

Soon thereafter, respondent Fresno County Department of Children and Family Services reported appellant was in a current relationship with a man who had lost his parental rights under circumstances strikingly similar to appellants, that is, drug abuse and domestic violence. Also, a bonding study conducted as to appellant and her children revealed there was no parent-child relationship between them. The children did not interact with appellant as though she was their parent. Instead, appellant was more like a friend, occasional babysitter or extended family member to her children. The children did not have a substantial positive emotional attachment to appellant and to continue the relationship they did have with appellant would not promote the childrens well being so as to outweigh the benefit to be gained through a permanent home, such as an adoptive home. The children also were thriving in their current out of home placement.

At a hearing in May 2009, the court found by clear and convincing evidence that the children likely would be adopted if rights were terminated. In turn, the court terminated parental rights.

DISCUSSION

As previously mentioned, appellant claims she did everything that was required of her under the court-ordered plan for reunification and deserves a second chance to be a parent to her children. The fact that appellant eventually completed all the court-ordered services did not legally entitle her to regain custody of the children or prevent their being freed for adoption. Her argument fails to grasp the law which required the outcome in this case.

Once reunification services are ordered terminated, a parents interest in the care, custody and companionship of the child is no longer paramount. The focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect childrens compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) In fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) If, as in this case, the children are likely to be adopted, adoption is the norm. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

A parent, like appellant, may claim circumstances have changed since the court terminated reunification services and set the permanency planning hearing so that the court should issue a new order. ( 388, subd. (a); In re Stephanie M., supra, 7 Cal.4th at p. 317.) Here, the changed circumstance was the fact that appellant eventually participated and completed the Victims Group program. However, the law also required appellant to show that a different court order, namely returning the children to her care, was in the childrens best interests ( 388, subd. (a)) and would serve their need for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) However, appellant made no such showing. In fact, the evidence before the court -- particularly the bonding study -- clearly supported a determination that it was in the childrens best interests to be freed for adoption.

We conclude appellant raises no arguable issue regarding the courts decision.

DISPOSITION

The order terminating parental rights is affirmed.

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* Before Vartabedian, A.P.J., Wiseman, J., and Kane, J.

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