In re Tristen P.

Filed 1/18/07  In re Tristen P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee.  Affirmed.

            In this case Cassandra P. alleges the juvenile court erred in finding the beneficial relationship exception to adoption of her son Tristen P. did not exist and a plan other than adoption would have been in Tristen's best interest.  We affirm.

BACKGROUND

            Tristen was born in March 2004 to Cassandra P. and Anthony R.  On May 2, 2005, law enforcement officers responded to an emergency call to the family home.  Cassandra admitted to the officers she had been engaged in a physical fight with her maternal aunt and that while she was fighting she was holding Tristen.  Tristen was taken into protective custody and transported to Polinski Children's Center.  He was reported as having no shirt or shoes on, a runny nose and unkempt hair.  At the time he was taken into protective custody, Tristen had multiple injuries, including facial scratching, bruising on his leg and two bite marks.

            Cassandra admitted holding Tristen during the physical fight with her maternal aunt.  She admitted biting Tristen but stated she bit him for fun.  She also admitted to a history of methamphetamine use that began when she was 19 years old.

            The social worker assigned to the case discovered Cassandra had three prior referrals for child neglect.  One of the referrals, from May 2004, alleged methamphetamine use by Cassandra.  That referral was substantiated and reflected Cassandra participated in voluntary services and no petition was filed.

            On May 3, 2005, the social worker assigned to the case interviewed Ida L., Tristen's maternal grandmother, who was present during the May 2, 2005, fight between Cassandra and the maternal aunt.  According to Ida, Cassandra and Tristen moved into her home on April 30, 2005.  On May 2, 2005, Cassandra became upset because Ida would not baby sit for Tristen.  She started yelling and screaming and punching the wall while holding Tristen.  Cassandra's anger grew and she began hitting Ida.  At that time the maternal aunt intervened and Cassandra hit her in the face.  The maternal aunt called the police and completed a citizen's arrest form placing Cassandra under arrest for battery.  The maternal aunt reported Cassandra had previously used Tristen as a shield when she fought.  Ida reported she believed that during the fight Cassandra was " coming down" from the use of methamphetamine.

            Cassandra told the social worker she had been using methamphetamine since the age of 19.  She stated that at the time of the fight she was six months pregnant with her second child.  The father of the child was also a user of methamphetamine and was on parole.

            The San Diego County Health & Human Services Agency (Agency) filed a petition on May 5, 2005, on behalf of Tristen.  The petition alleged Tristen was at substantial risk of suffering serious physical harm inflicted non-accidentally by Cassandra.  It alleged Cassandra bit Tristen and subjected him to violence.  The petition also alleged that due to her excessive use of methamphetamine Cassandra was unable to care for Tristen.

            On June 27, 2006, the court sustained the petition, declared Tristen a dependent of the court and placed him in licensed foster care.  Cassandra was ordered to participate in the Substance Abuse Recovery Management System (SARMS).  Supervised visitation between Cassandra and Tristen was ordered.

            The Agency filed a report dated December 14, 2005, for the six-month review.  The report noted Cassandra's second child, born in August 2005, was declared a dependent of the juvenile court.  Cassandra had been arrested twice in November 2005, once for vehicle theft and once for contempt of court for violation of the SARMS plan.  Cassandra had maintained regular visitation with Tristen but she had not participated in the requirements of her case plan.  An addendum report dated February 1, 2006, indicated Cassandra was visiting both Tristen and her newborn daughter Mikala, who were placed together, for two hours each week but the caregiver asked for the removal of the children because the caregiver was feeling overwhelmed.

            A contested six-month review hearing was held on February 1, 2006.  At that time the court found by clear and convincing evidence that a return of Tristen to Cassandra would be detrimental to the child and that services provided to Cassandra had been reasonable.  It also found Cassandra had failed to make substantive progress in services and there was no substantial probability Tristen would be returned to Cassandra in the following six months.  A hearing was set under Welfare and Institutions Code section 366.26 to select and implement a permanent plan for Tristen.  Cassandra filed a notice of intent to challenge the orders but this court dismissed the case following an indication from Cassandra's attorney that there were no viable issues for review.

            The social worker's assessment report dated May 31, 2006, indicated Cassandra pled guilty in January 2006 to vehicle theft and was released April 15, at which time she entered a residential drug treatment center.  Tristen was placed with local prospective adoptive parents who were relatives.  The prospective parents were interested in adopting Mikala as well.

            Cassandra maintained visitation with Tristen but his father did not.  In September 2005 Cassandra had contacted the social worker to report she had " messed up big time."   During the September 26, 2005, visitation Cassandra had a black eye and swollen nose and the visit was terminated early when Cassandra nearly fell asleep several times.  At visits in October and November 2005, Cassandra appeared sleepy and under the influence.

            A permanent plan of adoption was recommended for Tristen.  The recommendation was based on Cassandra's four-year use of drugs, a pattern of instability, domestic violence and Cassandra's homelessness.  During the reunification period Cassandra failed to participate in the court-ordered services.  Tristen did not share a parent-child relationship with Cassandra.  Termination of parental rights was recommended.

            In an addendum report prepared in July 2006 the social worker noted that since May 19, 2006, when she was first assigned to the case, Cassandra had discharged herself from two drug treatment programs on three separate occasions.  Cassandra admitted lapsing on methamphetamine.

            Following a contested section 366.26 hearing held July 26, 2006, at which Cassandra was not present but was represented by counsel, the court found by clear and convincing evidence Tristen was likely to be adopted and no statutory exception applied.  Cassandra's parental rights were terminated.  Cassandra filed a timely appeal.

DISCUSSION

I

            Cassandra alleges the juvenile court erred in failing to apply the beneficial relationship exception to adoption.  We disagree.

            After the juvenile court found Tristen was likely to be adopted, the burden shifted to Cassandra to demonstrate that termination of her parental rights would be detrimental to Tristen under any of the five exceptions noted in section 366.26, subdivision (c)(1).  (In re Erik P. (2002) 104 Cal.App.4th 395, 401.)  She argues the beneficial relationship exception applies to her.  (§  366.26, subd. (c)(1)(A).)

            When reviewing whether a juvenile court has erred in declining to apply the beneficial relationship test, we use the substantial evidence test.  (In re L. Y. L. (2002) 101 Cal.App.4th 942, 955.)  We examine the evidence in the light most favorable to the juvenile court order and draw every inference and resolve every conflict in the light most favorable to the prevailing party.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)  The burden placed on a parent challenging a court's refusal to apply the exception must demonstrate there is no evidence of a sufficiently substantial character to support the court's order.  (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)

            There are two requirements of the beneficial relationship exception.  Cassandra meets the first requirement, that she maintained regular visitation with Tristen.  (§  366.26, subd. (c)(1)(A).)  Only during the time she was incarcerated did she fail to attend visitation.  However, there is evidence of a sufficiently substantial character supporting rejection of the second requirement, that termination of the parent-child relationship would be detrimental to Tristen.  (§  366.26, subd. (c)(1)(A).)  Tristen and Cassandra were separated when Tristen was one year old.  He was over two years old at the time of the termination proceedings.  Although Cassandra regularly visited him, she was never able to progress to a point where Tristen could rely upon her as a caregiver in a parenting role.  She failed to participate in the services provided by the Agency and resumed abusing drugs.  While the dependency proceedings were on-going she suffered a conviction and incarceration for vehicle theft.  The risk factors identified, which included the use of drugs, were not overcome.  The evidence supports the juvenile court's conclusion the relationship between Cassandra and Tristen never reached one that promoted Tristen's well-being to the degree it outweighed the well-being Tristen would receive in a permanent adoptive home.  (In re Autumn H. supra, 27 Cal.App.4th at p. 575.)

II

            Cassandra also urges the juvenile court should have considered a plan of guardianship for Tristen.  Cassandra thus argues the best interests of Tristen required such a consideration.  In this regard we note there is no separate " best interest" exception to section 366.26.  (In re Carl R. (2005) 128 Cal.App.4th 1051, 1070.)  Nor is there an exception requiring weighing guardianship over adoption.  Indeed, guardianship is an appropriate alternative where the court concludes one of the five exceptions is found to exist.  (§  366.26, subd. (c)(4)(A).)  Because we have concluded no exception exists, the court was not required to consider guardianship.  (In re Tabitha G. (1996) 45 Cal.App.4th 1159, 1164-1165.)

            Judgment affirmed.

BENKE, Acting P. J.

WE CONCUR:

                                       HALLER, J.

                                   O'ROURKE, J.

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