In re Tyler R.

Filed 8/10/07 In re Tyler R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from judgments of the Superior Court of Kern County. Robert J. Anspach, Judge.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.

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Amanda R. appeals from orders terminating her paren tal rights (Welf. & Inst. Code,  366.26) to her two sons, Tyler R. and Austin R. Appellant contends that the court should have found that termination would be detrimental to Tyler R. and Austin R. based on their parent/child relationship. On review, we will affirm.

Statement of the Case and Facts

On August 8, 2005, respondent, Kern County Department of Human Services (the Department) filed petitions alleging that two-year-old Tyler R. and eight-month-old Austin R. came within provisions of Welfare and Institutions Code section 300^[1]based on appellants failure to protect the boys and provide them adequate shelter. The boys were taken into protective custody when they were found at their grandmothers home. The home was dirty with cockroaches crawling near the boys, on their toys and on a bottle. The childrens grandmother was present but passed out drunk.

The following day, the Kern County Superior Court ordered the children detained and afforded appellant one-hour weekly visits with her sons. At the hearing, appellant was arrested on outstanding warrants.

Appellant visited Tyler and Austin on August 23, 2005, but missed the August 29 and September 6 visits. Appellant missed the September visit because she was incarcerated for possession of methamphetamine.

At a September 2005 jurisdiction hearing the court exercised its dependency jurisdiction pursuant to section 300, subdivision (b). The following month the court adjudged the children dependents and removed them from appellants custody. It ordered the Department to provide reunification services to appellant for six months consisting of counseling for child neglect, parenting, and substance abuse. The court also ordered visitation twice a week and drug testing. If appellant were incarcerated, visits would occur only once per month.

According to a March 2006 review report, although visitation was regular, appellant failed to meet the other four objectives of her service plan, i.e., enrolling in parenting classes, enrolling in child neglect classes, enrolling in substance abuse classes and submitting to monthly drug tests. Appellant tested positive for methamphetamine once and failed to test on nine occasions (presumed positive). Appellant tested negative on three occasions.

At the six-month review hearing in March 2006, the court terminated reunification services, finding appellant made no progress towards alleviating or mitigating the causes for the childrens out-of-home care. The court set a permanency planning hearing ( 366.26), for July 2006.

In advance of the section 366.26 hearing, social workers with the Department prepared multiple reports for the court, including a permanency planning assessment. Each of the reports recommended the court find Tyler and Austin likely to be adopted and order termination of parental rights.

The originally scheduled permanency planning hearing, set for July 2006, was continued to provide notice to Tylers father, Everett B. At a rescheduling hearing on October 17, 2006, the section 366.26 hearing was again continued after the court learned of the childrens placement in a new prospective adoptive home and requested further report on the visitation and the detriment that may be imposed by termination of parental rights, if any, because of the ongoing relationship since February; also, any additional information that you may provide to the Court with respect to adoptability of these children with the people they are now with and if not, whether they are suitable for adoption. Although set for the end of October, the hearing was again continued because appellant was incarcerated and needed to be transported to court.

The permanency planning hearing was eventually held in December 2006. The court noted that the supplemental record did not clarify the issue of visitation since February 2006 but considered appellants statement that she visited once weekly when not incarcerated. Appellant stated that she was incarcerated from February to June 2006, and again from August to the hearing date, during which time there was no visitation. The court rejected appellants argument that although the children were adoptable they would be greatly harmed by termination of parental rights because Tyler was very attached to her. The court found the children adoptable and ordered termination of appellants parental rights.

Appellant filed a timely notice of appeal on January 31, 2007.

DISCUSSION

Did the Juvenile Court Abuse Its Discretion When It Terminated the Parents Parental Rights?

Appellant contends that the juvenile court abused its discretion when it declined to find termination would be detrimental to the childrens best interests. Appellant specifically argues that although adoption is the preferred option of the Legislature, an exception applies here because termination would be detrimental to the children in light of their regular visitation and contact with appellant and the fact that the children would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

Respondent maintains that the preference of the Legislature is adoption, and if the children are found to be adoptable, as here, the decision to terminate parental rights is relatively automatic unless there are extraordinary circumstances to require preservation of parental rights. Respondent argues the trial court did not abuse its discretion when it terminated parental rights because the extraordinary circumstances required to circumvent the Legislative preference were not present.

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the circumstances. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. On review of the record, we find no abuse of discretion.

The courts focus at the permanency planning phase shifts from family reunification to the childrens needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Thus, once children are found likely to be adopted, the court must terminate parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the children. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The Celine R. court noted that the statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (Ibid.) The Autumn H. court further explains the section 366.26, subdivision (c)(1)(A) exception to mean the [parent-child] relationship promotes 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Here, reunification services for appellant have been terminated, and the focus has shifted to the well-being of the children. The social study reports considered by the court documented that the children were adoptable. Appellant makes the undeveloped argument that the fact the children have been in multiple placements demonstrates that they may not be adoptable. A supplemental report considered by the court indicated that the children were adoptable.

Further, the issue of adoptability focuses on the children: their age, physical and mental health, etc. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Here, the fact that adoptive parents have expressed an interest in adopting indicates that the children are likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (Id. at p. 1650.)

Although it appears appellant did not consistently visit her children, we will assume for the sake of her argument that she maintained visitation. In any event, under section 366.26, subdivision (c)(1)(A), it remained appellants burden to establish that the children would benefit from the relationship in a manner that would outweigh the benefit of a permanent and stable adoptive home. Although there is evidence that appellant was familiar to the children, that they had fun with her, and that they sometimes cried when parting ways, this is not necessarily a demonstration of the significant parent/child attachment that results from an adults attention to a childs needs for physical care, nourishment, comfort, affection, and stimulation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) While the interaction between a natural parent and a child will always confer some incidental benefit to the child, the law requires more. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The evidence in this case did not compel the juvenile court to find that termination would be detrimental to the children. The October 27, 2006, report noted Tyler may experience more of an adjustment [than his brother], if permanently separated from his birth mother, but concluded that considering the unstable environment that caused the childrens out-of-home placement, coupled with the birth mothers history of incarcerations and general neglect, it is the recommendation of the Department that the children be placed in a stable, permanent environment. In addition to considering the level of attachment, the court also considered the young age of the children and their need for permanence.

Because the standard of review is abuse of discretion, when considering the trial courts weighing of whether the childrens relationship with their mother provides enough benefit to the children to outweigh the benefits of a permanent and stable home, the appellate court need only find that the trial courts inference was reasonable. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The reports considered by the court provided, at a minimum, a reasonable basis for determining that a permanent home for the children was more beneficial than maintaining appellants parental rights. Although the children experienced difficulty separating from appellant after visits, such considerations were outweighed by the childrens age, their limited visitation with appellant, and the fact that their current caretakers were meeting daily emotional and physical needs. On this record, we find that the trial court properly exercised its discretion by rejecting appellants detriment claim.

DISPOSITION

The orders terminating parental rights are affirmed.

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^*Before Levy, Acting P.J., Cornell, J. and Dawson, J.

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