In re J.L.

Filed 9/19/07 In re J.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Karen Dodd, under appointment by the Court of Appeal, for Minor.

In this appeal, defendant and appellant Maria L. (mother) challenges the juvenile courts decision to terminate her parental rights to her four children under Welfare and Institutions Code^[1]section 366.26. Specifically, mother argues that the court erred when it found that the parental bond exception ( 366.26, subd. (c)(1)(A)) to the presumption for adoption did not apply. As discussed below, we find that substantial evidence supports the juvenile courts finding, and so affirm the orders terminating parental rights and selecting adoption as the permanent plan.

Statement of Facts and Procedure

The four children who are the subject of these proceedings are J.L., J.L. III, D.L. and A.L. On the date of removal, February 16, 2005, they were, respectively, ages 5, 2, 11 months, and newborn. On the date of the section 366.26 hearing they were, respectively, ages 7, 4, two-and-a-half, and one-and-a-half. The children first came to the attention of respondent Riverside County Department of Public Social Services (DPSS) when mother and the newborn tested positive for methamphetamine during screening at the hospital. The newborn had been born at home in the bathroom toilet the previous day.

The social worker who interviewed mother at the hospital reported that mother initially claimed she had received prenatal care throughout the pregnancy, but after being confronted with inconsistent medical records confirmed she had seen a doctor only once, approximately three weeks previously. Mother minimized her drug use, saying I dont use it all the time, I used one time a week ago maybe on a Monday. Mother stated that the childrens father, to whom she was married, also used drugs, but never used methamphetamine in her presence. Mother seemed generally unconcerned about the effects of her drug use on her newborn and the other children.

The childrens father admitted to using marijuana and to knowing that mother had not sought prenatal care. He confirmed that he and mother were separated and that he was not currently providing financial support or having much contact with the children.

The social worker learned that two of the other children were not current on their immunizations. DPSS removed the children based on the parents drug use, the newborns positive drug test, and the risk of abuse and neglect to the siblings. The older three were placed together in one foster care home, the infant in another.

At the detention hearing held on February 22, 2005, the court formally detained the children, finding prima facie evidence that the parents had failed to protect the children based on their drug use, the newborns positive drug test, and the other childrens lack of proper immunizations. The court ordered reunification services for the parents.

The foster mother told the social worker that the older children were very upset at being separated from their mother, and that she had never seen sadder children then them when they first came into foster care. The children felt better when mother began to telephone them weekly.

At the jurisdiction and disposition hearing on March 15, 2005, the juvenile court found the children to be dependents of the court and offered the parents reunification services.

The infant, A.L. was placed with the paternal grandmother on April 28, 2005; the three older children joined her a week later. The grandmother stated she was willing to adopt the children if the parents failed to reunify. The children visited with their parents at grandmothers home each week. The visits went well the children looked forward to them and the parents acted appropriately. The social worker recommended the weekly telephone calls be increased to daily.

The six-month review hearing was held on September 6, 2005. On the social workers recommendation, the juvenile court granted both parents 90 more days of reunification services to give them a chance to obtain suitable housing. Both parents were participating in reunification services, namely substance abuse treatment. Father had all negative drug tests, with one missed test. Mother had one positive test (she acknowledged the relapse) and one missed test, with the rest being negative. Father had obtained employment as a butcher, but was fired when a felony conviction came to light. Mother was looking for employment. The parents did not have their own housing, and lived in motels and with friends.

The juvenile court held an interim review hearing on December 6, 2005, at which it extended services for another 90 days. Father had obtained another job as a butcher in September, but had two positive drug tests. Mother missed one drug test but was negative on the others. Mother was also employed. The social workers report for that hearing recommended termination of services to both parents based on fathers positive drug screens. DPSS changed this recommendation after meeting with the parents prior to the hearing.

The 12-month review hearing was held on March 2, 2006. The parents had completed all services, remained employed, and had secured a one-bedroom apartment. However, the apartment was not large enough for the children to be returned and father had a positive drug test in January. Visits and telephone calls with the children continued to go well. Although DPSS initially recommended services be terminated, the parties and the court agreed to continue the matter to see if father could catch up with mothers progress in staying off drugs. The agreement was that mother and father would separate for now, and DPSS would assist mother with first and last months rent if she could find suitable housing that she could afford, with financial help from father. The court authorized DPSS to place the children with mother if she could find suitable housing, commenting Lets get this family back together again.

The continued 12-month review hearing was held on April 6, 2006. Mother had been unable to secure housing because she had an eviction on her credit report. The juvenile court terminated reunification services and set a section 366.26 hearing for August 1, 2006. Between March and June of 2006, both parents had three negative drug tests and failed to show for five other drug tests. Father failed to show for a hair follicle test on July 24, 2006. Father had a negative hair follicle test on August 25, 2006, and a negative urine test in August and September 2006. Mother also tested negative in August and September 2006.

On July 24, 2006, father filed a section 388 petition asking the court to modify its order of April 6, 2006 terminating reunification services and setting a section 366.26 hearing. Father also asked the court to either place the children with him and mother on family maintenance or reinstate reunification services. The hearing on the petition was held on August 1, 2006. Mother orally joined in the petition, which the court denied without prejudice.

The section 366.26 hearing was eventually held on October 23, 2006. Father had filed another section 388 petition in late September, the hearing for which was also held on October 23. The court denied the section 388 petition, found that the children were likely to be adopted, terminated mothers and fathers parental rights, and selected adoption as the permanent plan for the children. This appeal by mother followed.

Discussion

Mother contends the juvenile court abused its discretion when it found at the section 366.26 hearing that the parental bond exception to the presumption for adoption and termination of parental rights does not apply in this case. Specifically, mother argues that the exception applies because the evidence clearly shows that she maintained regular contact with the children and the children were bonded to her to such a degree that the maintenance of their bond out-weighed the benefits of adoption.

1. Introduction and Standard of Review

At a hearing held pursuant to section 366.26 to select and implement a permanent plan for a child whose parent has failed to reunify, the juvenile court must first determine whether the child is likely to be adopted. ( 366.26, subd. (c)(1).) Once the juvenile court has made the finding of adoptability, the court shall terminate parental rights and order the child placed for adoption, unless it also determines that this would be detrimental to the child under one or more of the circumstances set forth in subdivisions (c)(1). ( 366.26, subd. (c)(1).) In cases where the parent has failed to reunify with the child and the juvenile court has found the child to be adoptable, the burden then shifts to the parent to establish that one or more of these exceptional circumstances exists. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) The appellate court must affirm the trial courts conclusion that none of these exceptional circumstances is present if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)^[2]

2. Benefit of Relationship with Mother

The parental bond exception is found in section 366.26, subdivision (c)(1)(A): The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

There is no question whatsoever that mother maintained regular visitation and contact with the children. She visited them weekly and had regular telephone contact with them. However, mother was also required to establish that the children would benefit from continuing the mother-child relationship. The courts have clarified this exception to mean 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. . . . 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. (1994) 27 Cal.App.4th 567, 575.)

Here, there is substantial evidence on the record to support the juvenile courts implied conclusion that the benefit the children receive from their relationship with mother is outweighed by the benefit they would receive by gaining a permanent, stable home with their paternal grandmother and aunt^[3]through adoption. First, at the time of the section 366.26 hearing, the children had been living with their grandmother for seventeen months, which is nearly the infants entire life, more than half of D.L.s life, nearly half of J.L. IIIs life, and a significant portion of J.L.s life. We do recognize that J.L., the oldest, is the most bonded to mother, initially had difficulties in foster care and, as reported in the social workers August 1, 2006 report for the section 366.26 hearing, she may need counseling for loss and separation as a result of mothers parental rights being terminated. However, the paternal grandmother had agreed to continue to allow contact between the parents and the children as long as they are clean, sober and appropriate during the visit. Second, J.L., the oldest, told the adoption social worker in September 2006 that she wanted to live with her grandmother and aunt, and the children were demonstrably bonded with the grandmother and happy about being placed with her. Third, as respondent DPSS points out, there is no evidence that the separation from their parents resulting from the temporary placement with the grandmother has caused any of the children substantial emotional harm. Although J.L. initially had difficulty being separated from her family while in the first foster care placement, she improved markedly when placed with the grandmother. The social workers reports consistently describe J.L. as outgoing, talkative, and social. Fourth, the grandmother and aunt offer the best of both worlds a stable living situation (i.e., housing, consistent medical care, emotional support) along with regular visits with their parents. It appears clear from the record that, despite the emotional attachment the two oldest children have with their mother, she still could not offer them the safety and consistency of stable housing and drug-free caretakers that the grandmother and aunt can.

In addition, mother did not at the section 366.26 hearing offer any argument at all, much less any evidence, to carry her burden to show that the parental bond exception applies. Rather, she merely joined in the fathers argument.

To conclude, substantial evidence supports the juvenile courts conclusion that the parental bond exception to the presumption for adoption applies in this case.

Disposition

The juvenile courts orders terminating mothers parental rights and selecting adoption as the childrens permanent plan are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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

^[2] Mother frames her argument in terms of whether the juvenile court abused its discretion, rather than whether substantial evidence supports the courts conclusions. While the findings regarding the existence of the parental bond exception have also been reviewed for abuse of discretion, the two standards are for our purposes quite similar. Under either standard Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . .  [Citations.] (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

^[3] The paternal aunt lives in the grandmothers household and it was decided that she would participate in the childrens adoption as well.