In re Y.F.

Filed 7/23/07 In re Y.F. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Irwin Garfinkel, Juvenile Court Referee. Affirmed.

Linda M. Nakamura, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Appellant Sandra M. (mother) is the mother of nine children who have been in the dependency system. She appeals from the order of the juvenile court that terminated her parental rights over three of her children, Yanira F., Anthony F., and Bryan S. Mother contends the juvenile court erred in failing to apply the exception to adoption found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A).[1] We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Mothers children have been the subject of four prior opinions, In re Johnny M. (1991) 229 Cal.App.3d 181, In re Y.F. (B175128), In re Byron S. (B186314), and In re Yanira F. (B191178).[2]

1. The prior history.[3]

Mothers first child was born in 1986. He was declared a dependent due to physical abuse by mother and eventually freed for adoption. Mothers next five children were born between 1988 and 1995. They were declared dependent for a variety of reasons. One child was ultimately adopted and the other four children were placed with their fathers.

Yanira F. was born in 2000 and Anthony F. was born in 2002. They were declared dependent due to a number of reasons, including that mother physically abused Yanira F., negligently stored boric acid within access of the children, failed to obtain timely necessary medical treatment for Yanira F., and failed to comply with prior dependency court orders in her earlier dependency cases.

On May 7, 2004, the dependency court denied mother reunification services with respect to Yanira F. and Anthony F. Mother filed writ proceedings. On July 29, 2004, in In re Y.F. we held that the juvenile court did not err in denying reunification services and setting a section 366.26 hearing because the physical abuse that began in 1989 with Johnny M., continued until 2004, when the juvenile court . . . sustained the physical abuse allegations against mother concerning Y.F. (In re Y.F., supra, [at p. 8].) Further, [w]ith respect to the best interests of the children, mother presented little to no evidence to outweigh the history of physical abuse and mothers failure to reunify with six children. (Ibid.)

Bryan S. was born in March 2005 and detained approximately one week later. He was placed in the same foster home as Yanira F. and Anthony F. Mother was granted monitored visitation with Bryan S. and directed to participate in counseling.

Mother enrolled in a number of programs and continually and regularly visited Bryan S., Yanira F., and Anthony F.

On June 13, 2005, the juvenile court declared Bryan S. dependent. Mother was ordered to commence parenting education and anger management counseling. After mother brought an unidentified man to a visit, all further visits with the children were monitored. On September 26, 2005, the juvenile court denied reunification services and set the case for a section 366.26 hearing. However, the court allowed mother to continue visiting her three children.

In our opinion filed January 25, 2006, In re Byron S., we upheld the juvenile courts order finding Bryan S. dependent. We also upheld the denial of reunification services. We denied mothers petition for extraordinary writ, concluding there was substantial evidence to support the trial courts finding that mother had failed to make reasonable efforts to treat the problems that led to the removal of [Bryan] S.s siblings. (In re Byron S., supra, [at p. 16].)

Mother continued to attend programs. On November 4, 2005, the juvenile court found that it would be detrimental to return Yanira F. and Anthony F. to mother and concluded the permanent plan of adoption continued to be appropriate. Mother was to continue to have monitored visits with the children.

By February 2006, the three children had been placed in a pre-adoptive home. The children and adoptive parents had developed a bond and the children were thriving.

On March 27, 2006, the children were declared a sibling group.

On May 1, 2006, mother filed a section 388 petition asking the juvenile court to modify the following orders relating to the mothers three youngest children: (1) the May 7, 2004 order denying reunification services with respect to Yanira F. and Anthony F., and (2) the September 26, 2005 order denying reunification services with regard to Bryan S. Mother requested that the three children be placed with her, or alternatively, that she receive reunification services and liberal visitation, including unmonitored overnight visits. The juvenile court found that although mother had engaged in a lot of rehabilitative efforts, the section 388 petition had failed to show that the requested relief was in the childrens best interests. On May 16, 2006, the juvenile court denied mothers section 388 petition without holding a hearing.

In In re Yanira, filed on March 15, 2007,we affirmed the order denying mothers section 388 petition. We held that the juvenile court had not abused its discretion in summarily denying mothers section 388 petition without holding a hearing. We held mother had not shown she could provide a stable home for Yanira F., Anthony F., and Bryan S., take care of them, provide continuity in their lives, or keep them safe. (In re Yanira F., supra, [at p. 14].) Mother had no job, means of support, or external sources to assist her. We held mother had not demonstrated it was in the best interests of the children to change the prior orders. We declined, as mother had requested, to order the commencement of reunification services and liberalized visitation. We found mother had not made a prima facie showing that it was likely the children would be reunified with her.

2. The facts subsequent to the denial of mothers 388 petition.

On May 5, 2006, the juvenile court ordered that mothers visits be monitored by an approved monitor, no person other than the monitor be present, and the Department of Children and Family Services (DCFS or Department) was to ensure that the visits take place.

On May 23, 2006, the juvenile court ordered the parties to meet and confer and agree on a fixed visitation schedule.

In June 2006, Yanira F. and Anthony F. told the social worker that they were afraid of mother. Yanira F. also stated the prospective adoptive mother was her mother and she did not like visiting with mother.

On August 3, 2006, the childrens prospective adoptive parents filed a section 388 petition seeking to stop all contact between mother and the three children. The petition alleged, among other allegations, that mother had initiated a campaign to harass the prospective adoptive parents [by making] numerous calls to the DCFS emergency hotline and the . . . social worker alleging false and absurd claims regarding the care of the children . . . . These false allegations have resulted in five intrusive visits by law enforcement and other state officials. Each time, the children are fearful that they will be removed from the care of their prospective adoptive parents. It was further alleged that mother has told Anthony that she wants to hurt the [adoptive] parents and this makes him ever more fearful at visits. Both [Yanira and Anthony] repeatedly express reluctance to visit and speak with biological mother. These allegations were supported by an August 4, 2006, DCFS report. The Department described six calls made by mother to the child-abuse hotline from March 22, 2006, to June 22, 2006, in which mother reported that the children were being abused by the prospective adoptive parents, neglected, or living in an unclean home. All of the allegations made by mother were investigated and determined to be unfounded.

On August 4, 2006, DCFS reported that the children continued to reside with the prospective adoptive parents. The social worker observed the following: The prospective adoptive parents were taking excellent care of the three children. The children were very comfortable living with the prospective adoptive parents, who they called mommy and daddy. Mother continued to have three-hour weekly visits with the children. During these visits, mother was affectionate with the children, and usually brought gifts and food. The children seemed to enjoy the visits with mother, but knew at the end of the visits they would be returning to the home of their prospective adoptive parents.

On August 4, 2006, the juvenile court issued an order limiting mothers rights to make educational decisions for Yanira F. and Anthony F. The court ordered mother to refrain from contacting the prospective adoptive parents by telephone, and to stay 100 yards from locations where the children were likely to be. Mothers visits were to be monitored at DCFSs office. The section 366.26 hearing was continued and the hearing on the prospective adoptive parents section 388 petition was set.

On September 8, 2006, DCFS reported that mothers visits had been going well, the children seemed pleased to see her, and mother usually brought food. Mother would change Bryan S.s diapers. Occasionally, the social worker intervened between mother and the children to prevent impulsive, emotional outbursts by mother. At the end of the visits, the children were excited to see the prospective adoptive parents, with whom they had bonded. DCFS recommended that mothers parental rights be terminated. The social worker recognized that these are painful times for biological mother but it appears that she has not developed appropriate coping skills to deal with emotional pain nor sought assistance. Additionally, according to the social worker, mother was unable to take responsibility for the initial abuse that happened to the children.

Beginning on September 11, 2006, a hearing was held that combined the section 366.26 hearing with the hearing on the prospective adoptive parents section 388 petition.

The social worker (Hiliana Lopez) testified that mother acted appropriately and affectionately with the children during visits. Mother brought toys and lunch, and played with the children. The children would watch videos, play with toys, jump rope, and dance. Mother changed Bryan S.s diapers and had been present when he first walked. Mother celebrated with the children their birthdays; she brought cakes, and gifts. Some of the food mother served the children caused them to have stomach aches and diarrhea. Mother sometimes seemed overwhelmed by the three children. Yanira F. and Anthony F. both sometimes referred to mother as mommy. Ms. Lopez described the relationship between mother and the children as friends.

Ms. Lopez further testified to the following. Mother had consistently visited the children. DCFS had not considered liberalizing visitation because mothers history and patterns posed a risk to the children. Although mother had seen a number of therapists and had attended some classes, she had not completed all programs. Mother would have to make extreme lifestyle changes to eliminate the risks to the children. Mothers false allegations of abuse and neglect resulted in investigations. During some investigations, the children had to disrobe.

Ms. Lopez additionally testified that the children were happy in the prospective adoptive parents home and called the prospective adoptive parents mommy and daddy. The children were excited about the prospect of living there. They were pleased to return to the home after visiting mother.

The prospective adoptive mother was called as a witness with respect to the section 388 petition to terminate mothers contact with the children. She testified about the false charges made by mother, the six or seven investigations, and the resulting harm to the children. She also testified that the children would get sick from the food mother brought to the visits and the children did not want to talk to, or visit with, mother.

Mother testified that the visitation with the children began when each child was born. Mother additionally testified to the following: Since she had begun to live in Pomona, it took her five buses to get to the visits. She played with the children, fed them, changed their diapers, rocked them to sleep, and read to them. Yanira F. talked to her about school. The children had bonded with her. They hugged her, called her mom, and looked to her for comfort. At the end of the visits, the children appeared to be sad. She believed she could parent the children and she believed Anthony F. and Yanira F. would be affected if they never saw her again. She described the classes she had taken, even though she had not been required to do so.

At the end of the hearing, DCFS and counsel for the children urged the juvenile court to terminate mothers parental rights. DCFSs counsel noted that if all of mothers visits were added together, mother would have spent a total of nine days with Bryan S. and 17 days with Yanira F. and Anthony F. Mother argued that the parent-child relationship ( 366.26, subd. (c)(1)(A)) had been proved because she maintained frequent and consistent visitation with all three children, participated in a number of programs, and thus, it was not appropriate to terminate her parental rights. The juvenile court found that mother had visited regularly, but that mother had not acted in the role of a parent and the parent-child relationship exception was not applicable. The juvenile court terminated mothers parental rights. The juvenile court also granted the section 388 petition and found that continued visitation by mother would not be in the childrens best interests.

Mother appealed from the order terminating her parental rights. We affirm.

DISCUSSION

Mother contends the juvenile court erred in finding the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply. This contention is not persuasive.

The Legislature has declared adoption to be its preferred permanent plan. (In re Megan S. (2002) 104 Cal.App.4th 247, 251; In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Once the juvenile court determines that a child may not be returned to the parent and is likely to be adopted, the juvenile court must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the delineated exceptions. (In re Autumn H., supra, at pp. 573-574;  366.26, subds. (c)(1) & (c)(1)(A)(c)(1)(F).)

Mother relies on the exception to adoption under section 366.26, subdivision (c)(1)(A). This exception applies when the court finds that [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid., italics added.) The parent bears the burden to show that the exception applies. (In re Megan S., supra,104 Cal.App.4th at p. 251.) We review the juvenile courts finding for sufficiency of the evidence. (Ibid.; In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; but see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [advocating abuse-of-discretion standard].)

The juvenile court found that mother had visited regularly. Thus, the issue is whether mother proved the children would benefit sufficiently from continued contact with her to warrant depriving the children of a permanent adoptive home.

One court has declared this prong to encompass situations in which the 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 other words, the court balances 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.)

The relationship necessary for the exception to apply is [a] strong and beneficial parent-child relationship that would render termination of parental rights detrimental to the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)  While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) In short, the juvenile court balances the quality of the relationship and the detriment involved in terminating it, against the possible benefit of an adoptive family. (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) The level of attachment required to overcome the presumption in favor of adoption is not the frequent and loving contact of a visitor, but a significant relationship that arises from day-to-day interaction in which the adult tends to the childs needs by occupying a parental role. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81; In re Beatrice M. (1994)29 Cal.App.4th 1411, 1418; In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

To support her position, mother points to a number of events that occurred after the three children were born. These range from the fact that the social worker testified that during visits the children acted affectionately towards mother, to the fact that mother had continued contact with the children and celebrated birthdays with them. However, the facts outlined by mother ignore other facts supporting the trial courts factual finding that mothers relationship with the three children was not so significant as to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Bryan S. had never lived with mother. Yanira F. and Anthony F. had not lived with mother for almost three years. Mothers visits were always monitored. Mother harassed the prospective adoptive parents by making at least five false reports, resulting in a disruption in the childrens placement. Mother continued to deny any responsibility for the children being detained. There was testimony that the children did not want to talk to, or visit with, mother and mothers interaction with the children was that of friends. The children described that they were happy in the home of the prospective adoptive parents and expressed a desire to live in that home.

These facts support the trial courts finding that the parent-child relationship did not apply. Mother did not carry her burden to demonstrate the type of strong and beneficial parent-child relationship that would render termination of parental rights detrimental to the three children.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] In the prior opinions, Bryan S. was incorrectly referred to as Byron S.

[3]Because this prior history is not disputed, we have borrowed the facts from our recent opinion of In re Yanira F.