In re Jeremiah C.

Filed 4/27/07 In re Jeremiah C. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Veronica B. contends the juvenile court erred in entering an order that terminated appellants parental rights as to her young son Jeremiah C. (Welf. & Inst. Code,  366.26.)[1] Appellant contends that problems in arranging her visitation with Jeremiah prevented her from visiting regularly or establishing a parental bond with him, and led to the termination of her parental rights. We find no error, and affirm.

I. FACTS AMD PROCEDURAL HISTORY

This appeal arises from dependency proceedings relating to Jeremiah C., who was born to appellant Veronica B. on December 6, 2003. Five days after Jeremiahs birth, on December 11, 2003, the respondent San Francisco Department of Human Services (Department) filed a petition alleging that Jeremiah was a dependent child within the meaning of section 300, because at the time of his birth Jeremiah had a positive toxicology screen for cocaine as a result of appellants drug abuse while pregnant, and there was also reason to believe that appellant could not properly care for Jeremiah due to her drug problems and the fact that her older children had been removed from her care and were made dependents of the court, with appellant having been unable to safely reunify with them.

On December 12, 2003, the court held a detention hearing, and ordered that Jeremiah should be detained in foster care. A jurisdictional hearing was set for December 29, 2003, and was subsequently rescheduled for January 23, 2004. On January 16, 2004, counsel was appointed for appellant, and the matter was set for a settlement conference as to her, on February 18, 2004.

On January 22, 2004, the Department filed a jurisdictional report with the court. This report noted that appellant had a long-standing problem relating to illegal drug abuse, dating back to at least 1995, as well as problems with alcohol abuse, and numerous prior attempts at treatment and relapses. Appellant was placed in a residential drug treatment program at Jelani House, and visited her other children on an occasional or sporadic basis. The father of Jeremiah, Ralph C., was incarcerated and unable to care for Jeremiah.

The report noted that Jeremiah was in a medically fragile condition, partly due to having been born with cocaine in his system, and partly due to asthma and sickle cell disease, which adversely affected his immune system and made him more prone to infections. Although appellant desired to have Jeremiah live with her in her residential drug treatment facility, Jeremiahs pediatrician and another physician consulted by the Department both felt that this was not a good idea, in view of Jeremiahs medically fragile status, and the likelihood that he would be exposed to an increased risk of bacterial and viral infections in a communal living environment such as the residential drug treatment facility. Therefore, the Department opposed placing Jeremiah in the drug treatment facility with appellant.

Further, the Department suggested that in view of appellants prior inability to reunify with her other children, and Jeremiahs medically fragile nature, the preferred plan for Jeremiah would be adoption. Therefore, the Department suggested that reunification services should not be provided to appellant, although she should be allowed reasonable visitation consistent with Jeremiahs medical needs. On January 23, 2004, the day after the jurisdictional report was filed, the court ordered that appellants visitation with Jeremiah should be stayed until February 15, 2004.

The matter came before the court for a jurisdictional hearing on March 24, 2004. The court found jurisdiction, based upon appellants substance abuse problem, toxicology screens that had been positive for cocaine abuse at the time of Jeremiahs birth, and the fact that appellants older children were dependents of the court, and appellant failed to properly carry out the requirements of her reunification plans. The matter was set for a contested disposition hearing on May 3, 2004.

At the disposition hearing, the court found that Jeremiah was a dependent of the court, and ordered the Department to place him with his paternal grandmother, if his medically fragile condition would permit this. (It subsequently became clear that such a placement with the paternal grandmother would not be possible, due to her own medical problems.) The court ordered that no reunification services should be provided to appellant, in light of the prior ineffectiveness of such measures when attempted with respect to appellants older children.

On September 21, 2004, Jeremiahs foster parents, who had been caring for him during his recent hospitalization and other times, Mr. and Mrs. M., filed an application with the court seeking de facto parent status. Subsequently, on October 21, 2004, this application was granted.

On September 22, 2004, a status review report was filed. This report noted that Jeremiah had been receiving excellent care with the M. family, and had been visiting with appellant. There had been some problems with these visits because appellant did not seem to properly understand Jeremiahs special needs, especially his medical needs, and she arrived for the visits smelling of cigarette smoke, which aggravated Jeremiahs respiratory problems. Appellant also seemed inattentive to Jeremiahs medical needs, and spent time taking pictures instead of listening to information about his needs. As a result of Jeremiahs medical problems and hospitalization, visits with appellant had temporarily ceased. However, visits with the paternal grandmother had been going well.

The M. family, Jeremiahs foster parents, desired to adopt him. The Department therefore requested that the court set the matter for a hearing under the provisions of section 366.26, to terminate appellants parental rights, because he was medically fragile and required specialized care from the M. family.

On November 23, 2004, appellant filed a petition for modification under section 388, seeking to have Jeremiah returned to her care. Subsequently, the court set the matter for mediation on March 14, 2005.

On March 14, 2005, the parties agreed that appellant could have weekly supervised visitation with Jeremiah on every other Friday, at a center for supervised visitation, if his medical condition was such as to allow visitation. An extensive procedure was agreed upon, under which appellant would call on the day before a scheduled visit, in order to confirm that she was available for a visit. The court subsequently ordered that this procedure agreed upon by the parties should be followed, and appellant withdrew her section 388 petition.

On September 2, 2005, appellant filed another motion to modify under section 388, again seeking to have Jeremiah placed in her care.

On December 7, 2005, the Department filed an addendum report, related primarily to the subject of visitation between appellant and Jeremiah. A supervised visit had recently taken place at the ASPIRA receiving center in Antioch, and it did not go well. Appellant had a difficult time empathizing with the child when he started to cry when he was not in a familiar setting. When Jeremiah started crying, appellant did not comfort him, or move towards that goal of making him comfortable but remarked. Theyve got you rotten. According to the social worker, Ms. Sevigne, The visits have been a difficult part of this case. Due to the childs fragile health, the foster mother has been appropriately protective of him. And in the past the mother came to the visits smelling like Lysol and cigarettes, which triggered vomiting for the child after some of the visits were over. He has thrown up in the car. These coughing and choking fits produce muc[]us and trigger his asthma. Even after the last visit the child broke out into [eczema] the day after the visit and screamed when taking a nap and going to sleep in the evenings for that evening and the next day. . . . the visits seem to wear on the child.

The Department report noted that Jeremiah had special medical needs, such as a need for oral surgery, due to poor nutrition and drug use by appellant during pregnancy, and appellant had difficulty giving consent for the needed surgery. According to the social worker, it seemed that if [appellant] had custody of the child the medical and dental care would be neglected and this child would be at further risk of more serious problems associated with Sickle Cell Disease.

The Department report also observed that even though appellant had successfully completed her drug treatment program, it would now be very difficult on Jeremiah to place him in appellants care, because he had bonded to his foster parents, and had special medical and other needs that only they knew how to properly manage. According to the report, it would be a hardship, loss and a detriment to this child to be place[d] back in [appellants] care. He has firm attachments to his fost-adopt parents and other children in the home. Some questions to consider in determining placement for this child is how would his health be [a]ffected and the difficulty he would have in adjusting to his mothers care. It would be a dramatic move[,] and change in environment and caretakers would likely make him suffer from an abandonment depression and no doubt his physical health would suffer, as well.

In addition, the Department report noted that Jeremiah and appellant had no strong attachment or bond, in contrast to the strong bond between Jeremiah and the foster mother. It was noted, in the observation of the birth mother and child when he was tired and took his bottle he did not go to her for her to hold him. The reassurance an adult could provide was not there and if there were an attachment, he would have gone to her or she to him. If the child was placed with the mother, it would come at a high price that the child would pay. In contrast with the birth mother, the child ran to Mr. M[.], when he picked him up after the visit. He is close physically to Mrs. M[.] and she is able to mirror and provide for his emotional needs, as well as medical ones. He was cooperative with [appellant], but did not seem to be affected by her presence one way or the other. Mrs. M[.] seems to be able to be a strong advocate for the child and his medical and social needs and be able to provide a stable, healthy environment where the child will be given a chance to be healthy and have a normal stable childhood.

On February 28, 2006, the court conducted a contested review hearing. The court denied the second motion by appellant to modify placement under section 388, terminated services for the father, and set the matter for a selection and implementation hearing under the provisions of section 366.26. The order from this hearing also states that the visitation order was modified, as placed on the record but there is no further explanation of this modification in the clerks transcript for that particular hearing. It appears from the reporters transcript of the subsequent section 366.26 hearing that the trial court had ordered that appellant could continue to visit Jeremiah every other Friday, if his health allowed it.

On March 17, 2006, counsel for the minor Jeremiah filed an application for rehearing as to the visitation issue. He argued that the court had erred in maintaining any visitation between appellant and Jeremiah, given the evidence presented about the mothers track record and the current procedural posture of the case. Counsel for Jeremiah argued in support of his petition for rehearing that further visitation was not in Jeremiahs best interests, frequent visitation was not appropriate, and appellant was estopped from contending that she had not previously been allowed visitation because she was guilty of laches by not raising that issue until the hearing on February 28, 2006. The court denied the petition for rehearing.

Prior to the scheduled section 366.26 hearing, the Department filed another report with the court, relevant to the issue of possible termination of appellants parental rights. This report noted that there had been problems in arranging visitation and some miscommunications between appellant and the foster mother, and appellant believed the foster mother had been refusing to take her phone calls. The report stated that Jeremiah had had surgery in the hospital and other medical issues recently, and the foster mother had been busy. The report concluded that the M. family had given Jeremiah good care and wished to adopt him, and the court should terminate appellants parental rights in order to make this possible, because it was in Jeremiahs best interests.

A contested hearing under the terms of section 366.26 was held on October 6, 2006. The Department called one of its social workers who worked most recently on this case, Erin Granados, to testify as an expert in the field of child welfare. Granados testified that appellant visited with Jeremiah only twice in 2006. Appellant had called Granados about twice a month, but sometimes appellant just wanted to obtain a Fast Pass for free transit from Granados. Appellant had called about six times in the past six months to mention problems with scheduling of visits, as well as her desire for a Fast Pass, but when Granados followed up, it appeared most of the visits had not taken place because appellant had not been available. There had also been problems because Jeremiah was hospitalized or otherwise in bad health, in addition to appellants own problems in being unavailable, or not calling to confirm she would be present. In addition, when appellant called Mrs. M., the phone number from which the incoming call was being made would sometimes not be displayed on her phone, and the call would be identified as that of an unidentified caller. Mrs. M. does not take such calls in person, so she would allow her voice mail to take a message, but appellant would sometimes not leave a message.

Granados testified that appellant had only seen Jeremiah about 14 times in his two and one half years, which is not enough to create a bond or attachment sufficient to militate against the termination of appellants parental rights. Granados characterized appellant as being more of a familiar stranger in Jeremiahs life.

The foster mother, Mrs. M. was called by appellant to testify at the hearing. She clarified that appellants regular number is listed on her own phone, so that when appellant called from that phone, Mrs. M. knew it was appellant and could pick it up. However, apparently about half the time appellant had been calling from some other phone, so that her incoming call would not be identified, and Mrs. M. would let her voice mail pick up a message. Occasionally appellant left messages on Mrs. M.s voice mail in this way, but appellant would not leave the new number she was calling from, so Mrs. M. would only be able to leave a message on appellants voice mail at her regular number.

In addition, Jeremiahs health had been bad at times, especially in August, so visits had not always been possible.

Appellant testified that she had originally blocked her number so that Mrs. M. would not know who was calling, and would have to pick up the phone if she was there. Later, she was told to unblock the number, and did so, which made contacting Mrs. M. easier. Appellant had twice gone to ASPIRA for a visit, only to learn that Jeremiah was too unwell to visit. To avoid making a trip for nothing, she would call the foster mother to learn if Jeremiah was healthy enough for a visit, but there had been problems because Jeremiah had been sick a lot. In particular, the foster mother had told appellant that Jeremiah had been very ill in August, so visits were not possible then.

The court found that Jeremiah was likely to be adopted, and appellants parental rights should be terminated. The court also ordered that no further visitation should occur between appellant and Jeremiah, because such visitation was detrimental to the childs physical or emotional well-being and is hereby terminated.

II. DISCUSSION

At a section 366.26 hearing, once the juvenile court finds the child likely to be adopted, the court must terminate parental rights and order the child placed for adoption, unless the parent shows that termination of parental rights would be detrimental to the child for one of four statutorily recognized reasons. ( 366.26, subd. (c)(1).) Appellant points to the exception set out in subdivision (c)(1)(A): The parent has maintained regular contact with the child and continuing the relationship would be of benefit to the child.

What is required under subdivision (c)(1)(A) of section 366.26 is that the parent-child relationship promotes the well-being of the child to such a degree that it outweighs 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 (Autumn H.); accord, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1420 (Beatrice M.); see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

On appeal, we do not determine the issues de novo. Instead, we review the juvenile courts ultimate determination only for an abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).) We review the lower courts factual findings under the substantial evidence rule, and we must uphold those findings if they are supported by substantial evidence. (Autumn H., supra, 27 Cal.App.4th at pp. 575-577.)

The record in this case establishes that appellant visited Jeremiah only sporadically, and did not even visit him every other week as was contemplated by the agreed-upon and court-ordered visitation schedules. Thus, the record contains substantial evidence to support the juvenile courts finding that the benefit to Jeremiah of continuing interaction with appellant did not outweigh the benefit of a permanent home with their foster parents. In fact, the social service reports to the court indicated that appellants occasional visits were not an important positive factor in Jeremiahs life, and had sometimes even been detrimental to his well-being.

Appellant does not dispute that she did not visit often, but she argues that she did all she could do to visit Jeremiah in compliance with the court ordered reunification plan, and the visitation schedule it contained. She contends the foster mother frustrated appellants rights by refusing to take her phone calls, so appellants rights to visit were improperly prevented.[2]

Appellants argument in this respect is not persuasive. Appellant clearly did not do all she could to visit Jeremiah, and her visits were only occasional or sporadic. Although appellant blames communication problems or the foster mother for some of those problems in scheduling visitation, it appears that the problems resulted at least as much from appellants own failure to make herself available, call to confirm her availability, consistently seek visitation, or try to overcome problems in communication. More fundamentally, at this late stage of the dependency proceedings, the focus has shifted away from possible reunification with appellant, and towards a determination of Jeremiahs own best interests. (See Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1420.) The juvenile courts determination that adoption was in Jeremiahs best interests, and that he had no ongoing strong relationship with appellant, was not an abuse of discretion and is fully supported by substantial evidence. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351; Autumn H., supra, 27 Cal.App.4th at p. 575.)

Appellant relies primarily on two cases for her argument, In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538 (Brandon C.) and In re David D. (1994) 28 Cal.App.4th 941 (David D.). Those cases are not on point here.

The court in Brandon C. addressed a situation in which the mother had consistently and faithfully visited her children, and had a positive ongoing relationship with them. The trial court found that she had a good relationship with them, sufficient to prevent the termination of her parental rights. The social services agency appealed, seeking to terminate the mothers rights. The appellate court rejected the arguments of the social services agency, because the trial courts ruling was supported by substantial evidence of an ongoing parental relationship. (Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538.) In the present case by contrast, appellant did not consistently and faithfully visit Jeremiah, and the trial court found she had no strong ongoing bond or parental relationship with Jeremiah, a finding supported by substantial evidence.

David D., supra, 28 Cal.App.4th at page 941 is also not on point. In that case, there was overwhelming evidence of a strong parental bond between the mother and her children, but the trial court wrongly disregarded that evidence, and allowed the mother only one visit with her children in the months prior to the termination of her parental rights, thereby precluding a finding of regular visitation. In the present case by contrast there is no evidence of a strong parental bond, and the trial court allowed regular visitation, which appellant did not always properly take advantage of over the course of more than two years. Once again, the trial courts finding of no strong parental relationship in this case is supported by substantial evidence. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

III. DISPOSITION

The order terminating parental rights is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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

[2] The Department suggests that appellants arguments in this respect may not be properly asserted now, because she did not raise these issues of problems in visitation in timely fashion in the trial court. However, the record shows appellant did raise or seek to raise this issue of problems with visitation, and we elect to address the issue on the merits.