In re Justice W.

Filed 8/27/07 In re Justice W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

The mother of Justice W. (Mother), appeals from a final judgment terminating her parental rights and setting adoption as the permanent plan for Justice under Welfare and Institutions Code section  366.26.[1] Mother contends that the juvenile court abused its discretion by failing to find that Justice comes within the beneficial parent-child relationship exception to adoption. We find no abuse of discretion, and affirm the judgment.

I. BACKGROUND

A. Original Section 300 Petition

Justice was born in December 2002, to Mother and K.W. (Father). Justice tested positive for methamphetamines at birth. Mother had also tested positive during pregnancy and admitted to using methamphetamine until a few days before Justices birth.

On January 31, 2003, the Contra Costa County Children and Family Services Bureau (Bureau) received a referral alleging that on December 22, 2002, police went to the parents apartment on a domestic violence call and found Father holding the baby as Mother was attacking him. At that time, the parents had both signed a voluntary family maintenance plan, which included domestic violence counseling for Father and outpatient substance abuse treatment and drug testing for Mother.

In March 2003, Father was arrested following another domestic violence incident involving Mother. Mother had previously failed her voluntary family maintenance plan by testing positive for methamphetamines on February 20, 2003. The Bureau filed its original petition pursuant to section 300 in this case on March 6, 2003, alleging that Mothers history of using methamphetamine, Fathers history of manufacturing methamphetamine, and Mother and Fathers history of domestic violence made them unable to properly protect or provide adequate care for the child. On March 7, 2003, the court ordered Justice detained from both parents.

Mother pled no contest to allegations that she had a history of substance abuse, had used methamphetamine during her pregnancy, including the day before Justices birth, and had a history of domestic violence with Justices father. Father pled no contest to allegations that he had a history of domestic violence and substance abuse that impaired his ability to care for Justice. The parties stipulated to the courts jurisdiction, and the Bureau dismissed the remaining counts in the original petition.

The bureaus disposition report, submitted at the end of March 2003, noted that Justice had been placed with his paternal grandparents. It recommended that both parents receive family reunification services. According to the report, Mother had two negative drug tests in March following Justices removal. She missed another test date in March, and the results of a make-up test were still pending. She adamantly denied current drug use and refused to enter residential treatment. Father was incarcerated and reported that he was receiving services for substance abuse, domestic violence, and parenting. According to the report, Mother has not consistently visited her child although the grandparents had welcomed her to visit Justice as often as she liked. At Mothers request, it was agreed at the March 14 jurisdictional hearing that she would have visits from 1:00 p.m. to 5:00 p.m. on Saturdays. She did not show up for a visit the following Saturday so the paternal grandfather contacted Mother and told her he would bring Justice over to her apartment to see her. He waited 45 minutes outside of her apartment. When she finally opened the door, she stated she had been sleeping. According to the grandfather, Mother had a neighbor come over and the neighbor rather than Mother spent the majority of the visit time holding and talking to Justice.

Following the contested disposition hearing, the court ordered family reunification services and ordered supervised visits of a minimum of one hour, once per week, for both parents.

B. Mothers First Modification Petition

On July 15, 2003, Mother filed a modification petition pursuant to section 388 asking for extended overnight visits with Justice in the residential rehabilitation program she was attending. Mother alleged as changed circumstances that she had been in the program since May 15, had tested clean, participated in domestic violence and substance abuse counseling and parenting classes, and had maintained frequent visitation with Justice.

On August 6, 2003, the Bureau placed Justice with Mother for an extended overnight visit, which lasted until the September 9 status review hearing, at which the court granted Mothers modification petition and ordered Justice returned to Mothers care with the provision of family maintenance services. The Bureau reported that, according to Mothers substance abuse counselor, she had participated actively in her recovery program and had consistently tested negative for drugs. Mother was scheduled to complete the residential treatment in mid-August. A psychiatric evaluation assessed Mother to be in early recovery from methamphetamines and recommended continued counseling for her recovery. After leaving the residential program, Mother and Justice lived half-time with Justices maternal grandmother and half-time with the paternal grandparents.

C. First Supplemental Petition

On December 22, 2003, the Bureau filed a supplemental petition seeking to have Mother move out of the paternal grandparents home and leave Justice in his grandparents care. The petition alleged that Mother had failed her family maintenance plan by: (1) failing to enroll in an outpatient drug treatment program; (2) failing to participate in individual counseling; (3) missing all random drug tests in November and not testing in December 2003; and (4) not showing up for on-demand testing on three consecutive dates in December. The court sustained the petition, ordered Mother not to reside in the same home with Justice, and granted the grandparents request for de facto parent status.

In a report prepared for the April 2004 disposition hearing, the Bureau stated that Mother has made great strides and continues to make attempts to do what is required of her, but was having a difficult time completing all of the services on her Case Plan. The report noted that she was engaged in individual therapy and had resumed drug testing, but had missed additional tests in March 2004. Her one completed test had yielded negative results. The Bureau stated that Justice could not remain safely in Mothers home because: (1) she had not maintained consistent stable housing; (2) her recent drug recovery can not be confirmed due to inconsistent participation in random substance abuse testing; and (3) the Bureau continued to be concern[ed] regarding domestic violence between the parents and their lack of understanding about the cycle of abuse. The report noted that the paternal grandparents have provided a safe consistent environment for Justice and have been very generous in supervising visitation between the parents and providing the parents with emotional and financial support.

The juvenile court ordered reunification services for Mother and 16-month-old Justice. Visits were ordered to take place at least three times per month.

An August 31, 2004 status review report stated that Mother had not become fully engaged with the services made available to her until May 2004, but that her counselor reported her to be an exemplary client who was fully utilizing the support of the program. Her random drug tests were negative. According to the report, Mothers visits with Justice had gone well, and Justice always appeared happy to see his mother and comfortable with her. Mother reported to the caseworker that she was focused on moving forward and reuniting with her son. At that time, the Bureau was recommending that Justice be returned to Mothers care with a family maintenance plan. However, Justices de facto parents (the paternal grandparents) disagreed with the social workers recommendation to reunify Justice due to Mothers pattern of doing well for only short periods of time. A contested hearing was scheduled for September 14, 2004. That hearing was postponed when the paternal grandparents filed a peremptory challenge to the assigned judge.

When the case was heard on October 27, 2004, the court ordered extended overnight visits with Mother, with a further review to take place a month later. In November, Mother was accepted into the Shared Family Care Program (mentor family housing) and was living with another single mother and her son. Mother had in the meantime been terminated from outpatient drug treatment due to an incident in which she refused on one occasion to follow a staff directive to actively participate in group therapy. However, she immediately found another outpatient program to attend, and was testing clean and reporting to 12-step meetings daily. On December 20, the court ordered that Justice have a 30-day overnight with his Mother while Mothers new living arrangements were investigated.

In January 2005, Mother and Justice moved into a two-bedroom apartment with Justices maternal grandmother. The social worker visited the home and found it to be spacious and appropriate for Justice. By memo dated January 14, 2005, the Bureau reported positively on Mothers progress in drug treatment and therapy, and again recommended that Justice be returned to her under a court-ordered family maintenance plan. This was ordered by the court on January 18.

In June 2005, Justices maternal grandmother moved out of California leaving Mother scrambling to find alternative housing for Justice and herself. Mother had graduated from the Welfare to Work training program and found employment with a security company in San Bruno. Although she had become more sporadic in her ability to attend random drug testing appointments, her social worker and therapist were not concerned about a drug relapse. However, as of the end of June 2005, the social worker reported that she had no address or working telephone number for Mother. Justice was having visits with his paternal grandparents at that time, and they were reporting that all appeared to be well to them. For the next status review hearing, then scheduled for July 2005, the Bureau recommended continued family maintenance.

D. Second Supplemental Petition

The July status review hearing was continued to October 18, 2005. By late September 2005, the Bureau had come to question Mothers continued sobriety. She had tested only once in May and June, and twice in July and August. She failed to appear for on-demand testing on two dates in September. Justices paternal grandparents had in the meantime found a text message on the cellular telephone they had loaned to Mother inviting her to smoke following one of her drug tests. During an unannounced visit in August, the caseworker discovered that Mother was pregnant and very ill. Mother had left Justice with his de facto parents because she was too ill to care for him. Despite being told that she needed to have Justice in her care during the week and that the de facto parents should have weekend visits, Justice continued to spend a majority of his time in the care of the de facto parents. There were reports that Justice was refusing to go to his mother and that he did not like to return home after spending time at the de facto parents home. Mother was receiving financial support from the de facto parents and from Justices father. There had been incidents in which the police had been called to Mothers home when Father was visiting Mothers home, and refused to leave. Justice was not present during these incidents. During this period, Mother did not maintain regular contact with her social worker and did not tell the social worker that she was no longer working or that she was allowing Father to spend time in her home. The Bureau filed a second supplemental petition under section 387, on September 22, 2005, alleging that Mother had failed her family maintenance plan, and seeking Justices return to the de facto parents care.

On September 23, 2005 Justice was again detained from Mother and placed in the care of his paternal grandparents. At the jurisdictional hearing, the allegations of the section 387 petition that Mother failed to comply with the random drug testing element of the family maintenance plan were sustained. The court ordered visits between Justice and Mother to be supervised and to take place at least twice per month for one hour. The grandparents filed a modification petition under section 388, in October 2005, requesting termination of family maintenance services and the setting of a permanent plan selection hearing. The petition alleged: Mothers life is in chaos. She is unable to provide for the safety and protection of the child. Petitioners have been the primary caregivers for the majority of the childs life. The child would benefit from stability. The petition was set for hearing on December 7, 2005, the same day then scheduled for the disposition hearing on the section 387 petition.

The disposition report recommended that a selection and implementation hearing be set under section 366.26: This family has been involved with the Bureau since December 2002 and the family has not successfully demonstrated an ability to overcome the reasons [for] which Justice was removed from the home. He is deserving of permanency now and it is believed that [the paternal grandparents] providing Justice with a permanent and sober home can achieve his permanency. The social worker expressed disappointment about having to make this recommendation, observing that Mother had shown herself able to be successful, but had not been able to maintain the success beyond a limited amount of time. The report also noted that Mother and Justice had a good bond, that he was always happy to see her, and often cried and demanded to return to his  mama  when the visits were over. The court terminated Mothers family maintenance plan on January 25, 2006, and scheduled a section 366.26 hearing for May 2006.

E. Mothers Second Modification Petition

On May 1, 2006, Mother filed a section 388 modification petition requesting six months of family reunification services. She cited as changed circumstances that she had entered a residential rehabilitation program, and had attended anger management and parenting classes, and Narcotics Anonymous meetings since February 2006. The court scheduled the motion for hearing on the same day as the section 366.26 hearing.

In opposition to Mothers petition, the Bureau reported that Justices brother was detained in late January 2006, when Mother tested positive for methamphetamine after his birth. The Bureau reported that it was unaware of any visits between Justice and Mother between January 26 and May 10, 2006. It recommended that the court deny Mothers modification petition, arguing that she had already received ample services and time to reunify but was unable or unwilling to take full advantage of the opportunity and had managed to make only small steps towards progress.

The court denied the petition after a contested hearing, finding that because Mother had experienced periods of sobriety in the past, her current participation in residential treatment was not a change in circumstances. The court noted that it would be easier for a recovering addict to be clean and sober when living in an inpatient facility than when living on his or her own. The court believed that extending reunification services would simply delay permanency, which Justice needed.

F. Section 366.26 Hearing

In its report for the section 366.26 hearing, the Bureau described Justice as a happy, healthy, well-adjusted toddler who was on target developmentally for his age. The report noted that after Justice was initially removed from Mothers care, he was returned to her on two separate occasions, but spent a great deal of his time with his grandparents. The Bureau found that neither parent had been involved in Justices daily life or in taking care of his daily needs for quite some time. The report stated: It is apparent by the amount of time that has passed and the lack of change in either parents circumstances that Justice[]s well being is best served by adoption. Justice deserves the stability and the permanence that adoption can provide for him. The Bureau found that Mother had relied on others throughout the duration of the case to provide her with a home, financial assistance, and care for Justice. During the one brief period when Mother lived on her own with Justice, he spent the majority of his time in the home of his prospective adoptive parents, his paternal grandparents. Despite receiving extensive services, Mother had been unable to maintain her sobriety and had given birth to a second child while testing positive for methamphetamine. Mother had a pattern of making enough progress to have Justice returned to her care and would then stop participating in services because, as she once told the social worker, she was  tired of having to prove herself.  The Bureau concluded that [i]t is now time for Justices needs to be put ahead of his parents[] needs and what he needs is a permanent, stable home. The Bureau recommended that Mothers and Fathers parental rights be terminated and that a permanent plan of adoption be found appropriate.

At the hearing, Mother testified that she had a very, very, very close relationship with Justice. He was excited to see her at visits and pleaded to go home with her at the end of each visit. Under examination by Mothers counsel, the social worker testified that Mothers visits with Justice went well, that she engaged with him well, and that he seemed to enjoy being with his mother and expressed sorrow when she had to leave. The social worker testified that the grandparents supported continued contact between Justice and Mother so long as Mother remained sober and fostered an environment of mutual respect. The social worker would not say how frequently the grandparents were willing for visitations to occur and admitted that relations between Mother and the grandparents had not always been completely congenial. The social worker testified that at times throughout the dependency when Mother needed it, the paternal grandparents had provided her with financial support, emotional support, and a place to live.

G. Order Terminating Parental Rights

Over Mothers objection that a guardianship with the grandparents was the most appropriate permanent plan, the juvenile court found that Justice was adoptable and that no statutory exception to a permanent plan of adoption applied. The court found specifically that: (1) Mothers contacts with Justice had been irregular, (2) there was no evidence that she had established a bond with Justice that outweighed the permanency of adoption or that Justice looked to Mother for his care, (3) the incidental benefit that Justice would get from his visits with Mother did not rise to the level of a parent-child relationship, and (4) no sibling exception applied. The court ordered that parental rights be terminated.

Mother timely appealed from the orders denying her modification petition and terminating her parental rights.

II. DISCUSSION

Mother contends that even though reunification services were terminated and Justice was found to be adoptable for purposes of section 366.26, he comes within the exception to termination for cases in which [t]he parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.[2] She asks this court to reverse the order terminating her parental rights and to remand the matter for institution of a legal guardianship in favor of the paternal grandparents.

As an initial matter, the Bureau maintains that Mother forfeited her right to raise this contention on appeal because her counsel never referred to the beneficial parent-child relationship exception in her arguments to the court. We disagree. Mothers counsel put on evidence and argued that Justice had lived with Mother for a good portion of the period during which she was receiving services, had contact with her even when he was with his grandparents, had a strong bond with her, and would benefit from being with a clean and sober mother. Although counsel did not specifically cite section 366.26, subdivision (c)(1)(A) in her closing argument, her comments in support of Mothers modification petition and in opposition to the termination of her parental rights fairly encompass the contention that Mother had maintained regular visitation and contact with Justice, and that he would benefit from continuing a parent-child relationship with her. The Bureau and minors counsel argued specifically to the court that the beneficial parent-child relationship exception did not apply, and the court addressed that exception in explaining its decision. On this record, we decline to deem the issue forfeited.

Before turning to the merits, we must determine the applicable standard of review. Section 366.26, subdivision (c)(1) expresses the Legislatures preference for adoption when reunification efforts have failed. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The parent carries the burden of demonstrating that the termination of parental rights would be detrimental to the minor under one of the statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) Some reviewing courts have evaluated determinations under subdivision (c)(1) using the substantial evidence standard. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 575577.) It has also been held that a finding as to whether there is a  compelling reason  under subdivision (c)(1) not to terminate parental rights is a quintessentially discretionary determination that is subject to review for abuse of that discretion. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We subscribe to the latter view. However, our conclusion under either standard of review would be the same. The abuse of discretion standard is very similar to the substantial evidence standard when, as here, the reviewing court examines a factual determination made by the juvenile court based on its evaluation of conflicting evidence. (Ibid.) Under both standards, we must determine whether there was a factual and rational basis in the record for the court to determine that Mother failed to meet her burden of proving that the exception applied. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 10651067, superseded by statute on another ground as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) In our view, there was such a basis.

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.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) A beneficial relationship is one that 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. . . . 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. (Ibid., italics added.)

Here, the evidence failed to show that Mother had developed such a close emotional attachment with Justice that the benefit to him of maintaining the parental relationship, or the harm from losing it, outweighed the well-being he would gain from having a permanent home with the persons who had been his primary caregivers for the great majority of his lifehis paternal grandparents. It is true that Mother had generally maintained contact with Justice on a regular basis, at least until she relapsed into drug use in the first half of 2006.[3] But the evidence showed that following his removal in March 2003, Justice lived with his mother for only one extended period, the nine months preceding his removal in September 2005. During that period, Mother was unable to provide a stable home for Justice, and he ended up spending the majority of his time in his paternal grandparents home. There was evidence that Justice would express discomfort when he was to be returned to his mothers home after staying with his grandparents. Overall, the extent of Mothers reliance on Justices grandparents for his care throughout his life makes it doubtful that a full-blown parent-child relationship could have developed between them.

There is no question that Mother and Justice love each other, or that when Mother was clean and sober, Justice enjoyed and benefited from his visits with her. But that is a far cry from evidence of an emotional attachment between them that is so significant and positive that Justice would be greatly harmed if Mothers parental rights were severed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Justices adoption does not in fact exclude a close and loving relationship between Justice and Mother, the nature and quality of which will largely depend on her ability to defeat her drug addiction. At the same time, there is uncontested evidence that Justice has bonded with his paternal grandparents and thrived in and benefited immensely from their care. Given the record before the juvenile courtincluding the length of time that has passed since Justice was first removed from Mothers care and the extent of the services and assistance she has received in attempting to reunite with himwe cannot say that the court abused its discretion in finding that the benefit to Justice of maintaining Mothers parental rights did not outweigh the well-being he would gain from being placed in a permanent, adoptive home.

III. DISPOSITION

The judgment is affirmed.

Margulies, J.

We concur:

Stein, P.J.

Swager, J.

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

[2] Section 366.26, subdivision (c)(1) provides in relevant part as follows: If the court determines . . . , by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Italics added.)

[3] It appears from the record that the relapse may have started in the second half of 2005, when Mother began missing drug tests on a regular basis. Mother was also reported to be inconsistent in her visitation in March 2003, when Justice was first removed from her care, and again in April 2004. According to Mother, the missed appointments in 2004 occurred on scheduled court dates.