In re Jacob D.

Filed 7/31/07 In re Jacob D. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, S. Patricia Spear, Judge. Affirmed.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Aileen Wong, Senior Associate County Counsel, for Plaintiff and Respondent.

____________________

INTRODUCTION

Appellant Rosa P. appeals from an order pursuant to Welfare and Institutions Code section 366.26[1]terminating her parental rights over her two minor sons, Jacob D. and Gabriel P. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Jacob was born in 2000 to appellant and Carlos D.[2] On April 7, 2004, a police officer found three-year-old Jacob wandering the streets alone. The police reported to the Department of Children and Family Services (DCFS) that Jacob had been found wandering the streets on five separate occasions. DCFS investigated. Appellant and Jacob were living with Jacobs maternal aunt and grandmother. Appellant explained that Jacob had learned to unlock the door. She had left Jacob with the maternal aunt and grandmother; he had unlocked the door and gone out. The social worker recommended that appellant put a lock where Jacob could not reach it. When the social worker returned on April 8, appellant had installed a latch and chain on the door, out of Jacobs reach.

The social worker returned on April 12 and left forms requesting appellant to call DCFS, providing referrals for random drug testing, and advising appellant to take Jacob for a SCAN (Suspected Child Abuse or Neglect) exam. When appellant called DCFS on April 13, she told the social worker that she had used methamphetamine previously and been arrested for grand theft of an automobile two and one-half months earlier. When the social worker inquired further, appellant refused to cooperate. The social worker requested that appellant come to the DCFS office.

Appellant failed to come to the DCFS office. The social worker went to appellants residence several times, but appellant was not there. On April 22, appellant went to the DCFS office. Appellant told the social worker that she began using methamphetamine when she was 17 years old, but she stopped when she was three months pregnant with Jacob. She acknowledged using methamphetamine three months earlier, explaining that she had been depressed, but she denied any current drug use.

The social worker advised appellant that Jacob was being detained. The social worker further advised appellant to drug test on demand and provided appellant with bus tokens to go to the drug testing site. Appellant got upset and threw the bus tokens back. The social worker again advised her to drug test, as well as to enroll in therapy and parenting classes and to have a live-scan criminal background check. DCFS took Jacob into protective custody.

On April 27, DCFS filed a petition under section 300, subdivision (b), alleging Jacob was at risk of serious physical harm due to his parents failure to protect him. Specifically, Jacob was found wandering the streets on numerous occasions, appellant had a history of illicit drug use and Jacob had been exposed to her drug use, and Jacobs father was unwilling or unable to provide him with care and supervision. At a detention hearing on the same date, the juvenile court found a prima facie case for detention. The following day, the court ordered Jacob released to his maternal aunt and grandmother provided appellant moved out of the home and the maternal aunt and grandmothers criminal background checks were clear. The court also ordered monitored visitation and reunification services for appellant.

At the May 19 jurisdictional hearing, the juvenile court sustained the allegations of the petition and declared Jacob a dependent child of the court. It ordered appellant to participate in individual counseling, parenting education, drug counseling and random drug testing.

Appellant relocated to Utah on September 13, 2004, seeking employment. DCFS had recommended against the relocation, advising appellant that it could affect her reunification. DCFS sent referrals to appellant in Utah. Appellant reported that she was taking parenting education and drug testing.

At the November 17 six-month hearing, the juvenile court found appellant in partial compliance with her case plan. It extended reunification services for another six months.

Appellant returned to California in January 2005. By May, she had missed 12 random drug tests. Although she provided DCFS with a certificate of completion of a parenting course in May, she had not enrolled or participated in individual or drug counseling. She claimed she was willing to participate in a drug treatment program and was not abusing drugs. She also stated that she was pregnant.

On May 11, the juvenile court ordered DCFS to assist appellant and Carlos D. to sign papers relinquishing custody of Jacob and consenting to his adoption by the maternal aunt. DCFS sent letters to appellant and Carlos D. requesting that they contact DCFS. As of June 28, neither had done so. On June 28, the court found appellant in partial compliance with her case plan. It found no substantial likelihood that Jacob would be returned to appellant within the next six months and terminated reunification services. The court set a section 366.26 hearing for December 27.

Appellant enrolled in a nine-month inpatient drug treatment program on October 12. She gave birth to Gabriel in November.[3] She entered into a voluntary family maintenance plan as to Gabriel. She and Gabriel visited with Jacob on a regular basis, having quality visits.

On December 27, the juvenile court continued the section 366.26 hearing to February 23, 2006 for completion of a home study. It also granted appellant unmonitored visitation with Jacob provided she continued to progress in her drug treatment program. Appellant filed a section 388 petition seeking reinstatement of reunification services, overnight visits with Jacob and placement of Jacob in her home.

In response to the section 388 petition, DCFS reported on appellants failure to submit to drug testing for over a year and missed drug tests since her return to California. It also reported that appellant had visited Jacob only sporadically since her return to California. Despite her recent visits with Jacob, he identified his maternal aunt as his mother.

On February 23, 2006, DCFS reported that the maternal aunt had been arrested for driving under the influence on November 13, 2004 and July 15, 2005. She was on probation and required to participate in an alcohol diversion program. Appellant, Jacob and Gabriel had been having consistent quality visits.

On March 27, appellant left her inpatient drug treatment program with Gabriel in the middle of the night. She failed to inform DCFS that she was leaving so that it could arrange for her to enter another program and obtain appropriate housing. Appellant met with the social worker on March 29 and explained that she left the program because she was depressed. She was depressed because she did not like some of the program requirements and wanted to leave the program. It had been recommended that she take antidepressant medication, but she did not want to take it. Appellant told the social worker that she was receiving cash aid and food stamps, she would have an apartment in a week, she had plans to attend an outpatient drug treatment program and she was willing to drug test.

Due to appellants failure to notify DCFS she was leaving the inpatient drug treatment program, as well as other concerns, DCFS detained Gabriel on March 29. It attempted to place him with the maternal aunt, but she was concerned about her ability to care for an infant. DCFS therefore placed him in a preadoptive foster home. His foster parents indicated their willingness to maintain Gabriels contact with Jacob.

On April 3, DCFS filed a petition under section 300, subdivisions (b) and (j), alleging that Gabriel was at substantial risk of harm, based on appellants history of drug abuse and the fact that Jacob was a dependent of the court. At the detention hearing, appellants counsel argued that Gabriel did not need to be detained, in that appellant had enrolled in an outpatient drug program, and there was no evidence she currently was using drugs. The juvenile court nonetheless found a prima facie case for detention. It ordered DCFS to verify that appellant had enrolled in a drug treatment program and had an apartment. The court also ordered appellant to make an appointment with DCFS for an interview.

Thereafter, appellant failed to contact DCFS, and DCFS could not contact her, in that she was no longer at her previous address. DCFS reported for Gabriels April 24 jurisdictional hearing that appellant had been called for 11 random drug tests since November 2005; 10 tests had been negative, and one was missed. Appellant did not appear at the hearing, and the juvenile court sustained the allegations of the petition.

Appellant also failed to appear at the May 25, 2006 dispositional hearing for Gabriel. The juvenile court declined her counsels request for a continuance so she could be present. It denied reunification services pursuant to section 361.5, subdivision (b)(10), and set the case for a permanent plan hearing on June 27.

On June 14, DCFS removed Jacob from the maternal aunts home due to her failure to complete an alcohol abuse treatment program and missed random alcohol tests. The maternal aunt offered to move out of the home and allow Jacob to live with his maternal grandmother. DCFS was concerned, however, because the maternal grandmother spoke only Spanish and Jacob spoke English.

Based on the foregoing, DCFS filed a section 387 supplemental petition on June 19. The court held a detention hearing and found a prima facie case for detaining Jacob.

The maternal aunt stated that she did not have a drinking problem, but she was willing to participate in a substance abuse program in order to have Jacob stay with her. The social worker asked her about placing Jacob with his maternal grandfather, but the maternal aunt recommended against it. She later requested that Jacob be placed with his maternal grandfather. When asked, Jacob stated that he did not want to live with his maternal grandfather but wanted to return to his maternal aunt and grandmother. DCFS nonetheless contacted the maternal grandfather, who stated that he was willing to take care of Jacob.

DCFS placed Jacob with a foster mother, Mrs. P., on June 27. She was interested in adopting him. While Jacob was comfortable with Mrs. P. and liked his new home, he stated that he wanted to return to his family.

At a hearing on August 28, the maternal aunt agreed to a suitable placement order, and DCFS dismissed the section 387 petition. Appellant did not appear at the hearing, and the juvenile court dismissed her December 2005 section 388 petition.

Appellant finally contacted DCFS in September, and she appeared at the September 21 section 366.26 hearing. That hearing was continued for a contested hearing.

Thereafter, DCFS reported that Jacob was doing well in his foster placement. He had frequent visits with his maternal grandmother and maternal aunt, and occasional visits with appellant or with his maternal grandfather. Jacob enjoyed his visits with his family. When he visited with the entire family, it appeared that he felt closest to his maternal aunt and grandmother. While Jacob liked his foster home, he wanted to return to his family.

At the contested section 366.26 hearing on January 9, 2007, appellant acknowledged her mistakes. She emphasized the strong bonds Jacob and Gabriel had with their maternal relatives. Her counsel argued that it would be detrimental to Jacob and Gabriel to terminate appellants parental rights, in that it would deprive them of contact with their extended family.

The juvenile court found by clear and convincing evidence that Jacob and Gabriel were adoptable and that it would be detrimental to return them to appellant. It also found no exception to termination of parental rights applied. It noted the attachment between the boys and appellants family, but there isnt a statutory [exception] for that. The Legislature makes it very clear if the child cant be with his parents, then the child should get adopted and have a stable home with someone else. It also ordered DCFS to investigate whether the boys current caretakers were amenable to allowing the boys to have continued contact with their extended family. It then terminated appellants parental rights over Jacob and Gabriel.

DISCUSSION

Appellant contends the trial court erred in terminating her parental rights, in that two exceptions to termination under section 366.26 applied: the beneficial contacts exception (subd. (c)(1)(A)) and the sibling relationship exception (subd. (c)(1)(E)). As we discuss below, neither exception is applicable here.

Beneficial Contacts

On appeal from an order pursuant to section 366.26 terminating parental rights, the question is whether the juvenile court abused its discretion in deciding to terminate parental rights. (In re Jessie G. (1997) 58 Cal.App.4th 1, 9; In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.) The courts decision will be upheld if supported by substantial evidence. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250.)

Once the proceedings reach a selection and implementation hearing, the legislative preference for adoption over legal guardianship or long-term foster care must be heeded unless, under one of the enumerated statutory exceptions, termination of parental rights would be detrimental to the child. ( 366.26, subds. (c)(1), (c)(4).) The first exception arises when the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(A).)

At this point in the proceedings, . . . the goal of the proceedings changes from reunifying the family to locating a permanent home for the child apart from the parent. [Citation.] The permanency planning hearing aims to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker. [Citation.] The abiding principle at the permanency planning hearing is the welfare and best interests of the child. [Citation.] (In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.) As a consequence, regular visitation alone does not meet the requirements of the parental relationship exception to the preference for adoption. What is necessary is a strong and substantial relationship.

The parent seeking to avoid adoption bears the burden of demonstrating that there exists a significant, positive, emotional attachment from child to parent. (In re Jason E., supra, 53 Cal.App.4th at p. 1548.) As noted in In re Beatrice M. (1994) 29 Cal.App.4th 1411, frequent and loving contact is not sufficient to establish the benefit from a continuing relationship . . . . No matter how loving and frequent the[] contact, the person invoking the exception must have occupied a parental role in relation to the child. (At pp. 1418-1419; accord, Jason E., supra, at pp. 1548-1549.)

In other words, the parent must show that severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . . [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] (In re Autumn H., supra, 27 Cal.App.4th 567, 575; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Among the factors the court examines in determining whether the exception applies are [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. (Autumn H., supra, at pp. 575-576.)

It is clear from the evidence that while Jacob lived with appellant for the first three years of his life, appellant no longer occupied a parental role in his life. That role was filled by the maternal aunt, whom Jacob viewed as his mother and with whom he wished to live. For this reason, the juvenile court found that subdivision (c)(1)(A) of section 366.26 did not apply to Jacob, and substantial evidence supports that finding.

While Gabriel lived with appellant for the first four months of his life, he was in foster care for the next 10 months. Appellant points to no evidence that Gabriels bond with her was so substantial that it would be in Gabriels best interests not to terminate that relationship and allow Gabriel to be placed in a permanent adoptive home. Again, the juvenile courts finding is supported by substantial evidence.

We acknowledge that the record shows that appellant had quality visits with Jacob and Gabriel, as she points out. But that is not enough to meet appellants burden (In re Zachary G. (1999) 77 Cal.App.4th 799, 809) of establishing the applicability of subdivision (c)(1)(A) of section 366.26 (In re Jason E., supra, 53 Cal.App.4th at pp. 1548-1549; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419). She had to show that Jacob and Gabriel looked to her as their mother, to fulfill their needs (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342; In re Autumn H., supra, 27 Cal.App.4th at p. 575). She did not do so.

Implicitly recognizing this, appellant argues, as she did below, that the childrens best interests would be served by maintaining her parental rights, in that they would benefit by continued contact with their extended biological family and by having the opportunity to develop sibling bonds with one another. As the juvenile court recognized, however, maintaining a childs contact with his extended family is not a basis for declining to terminate parental rights under section 366.26, subdivision (c)(1)(A). (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165.) The subdivision does not apply. The juvenile court therefore did not abuse its discretion in finding the beneficial contacts exception did not preclude termination of appellants parental rights. (In re Jessie G., supra, 58 Cal.App.4th at p. 9; In re Jose V., supra, 50 Cal.App.4th at p. 1801.)

Sibling Relationship

Subdivision (c)(1)(E) of section 366.26 provides an exception to termination of parental rights when [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

While Jacob had been visiting with Gabriel for about a year, the two were not raised together in the same home, and they shared no common life experiences. Appellant did not show that termination of parental rights would cause a substantial interference with a significant sibling relationship, the severance of which would be detrimental to the child[ren]. (In re Daisy D. (2006) 144 Cal.App.4th 287, 293, italics added; In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)

In enacting the sibling relationship exception to termination of parental rights, the Legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil. (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) There was no long-standing relationship between Jacob and Gabriel which served as an anchor, the last link to normalcy, that these children have left. (Ibid.) Any benefit to developing the boys relationship with one another would not outweigh the benefit the boys would receive from adoption and permanent homes. (Id. at pp. 404-405.) Again, the juvenile court did not abuse its discretion in failing to find the exception to termination of parental rights inapplicable. (In re Jessie G., supra, 58 Cal.App.4th at p. 9; In re Jose V., supra, 50 Cal.App.4th at p. 1801.)[4]

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] All future section references are to the Welfare and Institutions Code.

[2] Carlos D. is not a party to this appeal.

[3] Gabriels father was identified as Manuel G., whereabouts unknown.

[4] As the People point out, appellant failed to raise the sibling relationship issue below, waiving it on appeal. (In re Daisy D., supra, 144 Cal.App.4th at p. 292.) In any event, as discussed above, the juvenile court did not err in failing to consider the sibling relationship exception.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to Article VI, section 6 of the California Constitution.