In re Mia L.

Filed 10/20/06 In re Mia L. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

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

Judy Weissberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

Jorge S. (father), father of two-year-old Mia L., appeals from an order terminating his parental rights. We affirm.

CONTENTION

Father contends that the trial court erred in terminating his parental rights because he had established the parental relationship exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A).^[1]

FACTS AND PROCEDURAL HISTORY

Mia L. was born in March 2004. Both Mia and Anna L. (mother)^[2] tested positive for cocaine and methamphetamines at Mia’s birth. Mia was premature and had severe symptoms of drug withdrawal, including jitteriness, poor feeding, and respiratory distress. Mother was interviewed by the Department of Children and Family Services (DCFS) through a Spanish translator. Mother had lost five other children to the child welfare system. She admitted to abusing drugs on an ongoing basis and said her drug usage became worse after the death of her husband in June 2003, 10 months before Mia was born. Mother also admitted that she had no prenatal care. She refused to provide the name of Mia’s father.

1. The section 300 petition and removal from parents

On April 1, 2004, DCFS filed a petition on behalf of Mia pursuant to section 300, subdivisions (b) and (i). A detention hearing was held on April 1, 2004, at which mother appeared. Mother indicated to the court that she was the victim of a gang rape and that she believed Mia’s father was one of her rapists. The court ordered DCFS to attempt to locate appellant. The court found that DCFS had made a prima facie case for detaining Mia and gave temporary custody to DCFS.

At the April 1 hearing, the court consolidated Mia’s case with the open case involving mother’s five other children. The court also ordered DCFS to detain Mia in shelter care with discretion to place her with any appropriate relative. The court granted mother monitored visits with DCFS discretion to liberalize.

A jurisdictional/dispositional hearing was held on May 7, 2004. DCFS reported that mother now claimed that she believed appellant, with whom she shared an apartment, was Mia’s father. DCFS obtained a statement from appellant indicating that he was aware that mother was using drugs while she was pregnant with Mia and that he told her to stop but “she did not listen. She did what she pleased. She used crack.” Appellant claimed that he was unaware that mother had other children or that she had been involved with the child welfare system. DCFS also interviewed the maternal grandmother, who acknowledged that mother had a drug problem. Mother admitted to drug abuse, indicating that if she has money, she uses drugs every day.

DCFS further reported that on April 28, 2004, a social worker had visited the apartment where mother said she lived with appellant. The apartment was “dirty and trashed.” Mother appeared to be under the influence of alcohol or drugs, there was loud music playing, and four men were sitting at the kitchen table drinking beer. Mother said appellant was asleep in the bedroom, but she refused to wake him up. On April 30, 2004, the social worker went back to appellant’s home and spoke with appellant. Appellant said he provided mother food and shelter and she had been living in his apartment for about a year. He said he worked full time and would be willing to be responsible for Mia and follow the court’s orders if it was verified that Mia was his child. Otherwise, he was not interested. He had family who could help him take care of Mia while he worked.

At the hearing on May 7, 2004, the court found appellant to be Mia’s presumed father and ordered DCFS to give him referrals for reunification services.

On June 4, 2004, appellant submitted to the section 300 petition on the basis of the social worker’s reports. The court sustained the first amended petition under section 300, subdivisions (b), (i), and (j). The court declared Mia a dependent and denied services to mother under section 361.5, subdivision (b)(13). Appellant received reunification services. He was ordered to attend parent education and individual counseling to address case issues. The court also gave him monitored visits and advised him that he would have only six months to reunify with Mia.

2. Reunification efforts and termination of services

A six-month review hearing was held on December 3, 2004. DCFS reported that Mia had been placed in the home of a paternal uncle, Francisco C., and his wife, Carmen G. Appellant had attended parenting classes and counseling, but continued to live with mother and indicated that if she wanted to continue living with him he might let her stay, despite her continued daily abuse of drugs. He stated that he wanted custody of Mia but he also said he knew Mia was better off with his brother and sister-in-law. He commented that he would prefer for Mia to live with his brother’s family until she was five or six, when she could “do things on her own.”

The social worker had visited appellant’s home on October 26, 2004. She found mother still living there. Appellant indicated that mother had moved out but that if she felt uncomfortable in the middle of the night, she would return to appellant’s apartment. The social worker expressed concern that there still were cockroaches in appellant’s apartment and that appellant was planning to rent out two rooms, which would leave no room for Mia.

However, appellant had visited Mia weekly. If Mia was sleeping when he arrived, appellant would visit with his brother. Carmen tried to arrange a schedule so that appellant could interact more with Mia, but appellant was not able to follow a schedule. Mother had not visited at all.

Mia was thriving in Carmen’s care. Carmen took her to visit her half-siblings once a month. Carmen and Francisco were committed to adopting Mia, and Mia appeared to be happy and content.

At the hearing on December 3, 2004, the court admonished appellant that he needed to end his relationship with mother if he expected to have custody of Mia because the court could not give Mia back to mother. At appellant’s request, the court set the section 366.21, subdivision (e) hearing for a contest.

The hearing took place on January 19, 2005. DCFS reported that appellant had completed his parenting program. DCFS further reported that appellant expressed a desire to discontinue therapy. Appellant continued to visit Mia weekly, on his own schedule, sometimes when Mia was asleep. The social worker reported that appellant had rented out the bedrooms of his apartment to two men and slept in the living room. The apartment remained dirty and smelled bad. On December 14, 2004, appellant represented to the social worker that mother had been gone from his apartment for a few days but the social worker found mother’s belongings in appellant’s kitchen cupboards and under the sink. Both appellant’s therapist and Carmen stated that they believed that mother was still a part of appellant’s life.

At the hearing, appellant testified that he had severed contact with mother, who was in custody. He further testified that he was cleaning his apartment and that while two men were renting rooms in his apartment, he could ask them to leave. He stated that he would go back to therapy and that he had learned a lot from parenting classes. He wanted Mia to live with him. The court did not feel that appellant had made enough progress to warrant further reunification services. However, Mia’s attorney asked the court to continue services because appellant wanted to be in Mia’s life and deserved more time. The court ordered additional reunification services, but warned that it would be appellant’s last chance.

A further hearing was held on June 3, 2005. DCFS reported that Carmen had told the social worker that appellant had started showing up for his visits drunk or on drugs. In addition, on May 1, 2005, the social worker had gone to appellant’s home and mother had answered the door. Mother told the social worker that she did not want appellant to have custody of Mia, and that she was better off with Carmen and Francisco. Mother reported to the social worker that appellant had gotten so drunk that he had urinated in his pants and she showed the pants to the social worker. Mother knocked on appellant’s bedroom door and informed him that the social worker was there. The social worker heard appellant tell mother to say nobody was there and close the door. Further, although appellant had been told he could see Mia more often, he only came for a visit once a week and did not stay for the full hour. As a result, Mia was reluctant to go to him.

On July 19, 2005, DCFS reported that appellant continued to visit Mia according to his own schedule without regard to whether or not she would be asleep. He had attended Alcoholics Anonymous (AA) meetings and was sober, but had moved out of his apartment and was renting a room which did not appear to be a permanent residence. On August 4, 2005, DCFS reported that appellant had a new apartment with a roommate and was planning on attending a new parenting class because he had forgotten what he had learned. He continued to attend AA. He visited Mia, but did not interact with her very much. When the social worker tried to set up a visit so that she could observe appellant with Mia, appellant did not show up. At the hearing on August 4, 2005, Mia’s attorney joined County Counsel in asking the court to end the reunification period. After hearing oral argument, the court found appellant was not in compliance with the case plan and terminated reunification services.

3. The section 366.26 hearing

DCFS filed a report on November 22, 2005, indicating that Carmen’s home study had been approved and that Carmen was fully committed to adopting Mia. Mia had developed physically and cognitively according to her age. Mia had regular contact with her grandparents and siblings. Mia was very attached to Carmen and Carmen’s 17-year-old daughter, Becky. Carmen had taken Mia to Mexico to visit relatives and the visit had gone well.

The contested 366.26 hearing was held on March 29, 2006. DCFS reported that Mia continued to develop age appropriately and that Carmen was providing Mia with love and stability. At the hearing, Mia’s attorney informed the court that mother’s new baby, a female half-sibling, had been placed in Carmen’s home with Mia. The parties stipulated that appellant continued to visit Mia, but Carmen reported that appellant only interacted with Mia for about a half hour at each visit and watched television for the remainder of the time.

Appellant testified that he visited Mia at Carmen’s house every day for two-and-a-half to three hours. He played with her in the house and outside. He testified that when he came to the house, Mia would run to him. He testified that he would give her a bottle and soup that Carmen prepared. He stated that Mia kissed him when it was time for him to leave.

Mia’s attorney stated that he did not believe appellant was more than a visitor in Mia’s life. He did not think appellant was accurate about the amount of time he spent with Mia. The attorney saw no evidence that there would be detriment to Mia if appellant’s parental rights were severed.

The court noted that Mia was two years old and had never been in appellant’s care. The court specifically found that severing the bond between appellant and the child would not cause detriment to the child. After determining by clear and convincing evidence that Mia was adoptable, the court found Carmen to be Mia’s prospective adoptive parent and terminated parental rights. This appeal followed.

DISCUSSION

Appellant contends that the trial court committed error in finding that he had not established the exception to termination of parental rights in section 366.26, subdivision (c)(1)(A). Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when “[t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Thus, the exception requires that the parent establish two factors: first, that he has had regular visitation with the child, and second that the child would benefit from continuing the relationship. In this case, the parties stipulated that appellant had visited Mia regularly. Thus, the only issue before the trial court was whether the relationship was sufficiently beneficial to Mia to prevent her adoption.

The parental relationship exception must be considered in light of the legislative preference for adoption when reunification efforts have failed. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) If a child is found to be adoptable, as Mia was, it is the parent’s burden to establish that termination of parental rights would be detrimental to the child. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153.) On the evidence before it, the trial court found that the bond between appellant and Mia was not “that which was contemplated by the case law when they say severing the bond would cause . . . a detriment to the child.” Thus the court granted DCFS’s request to terminate appellant’s parental rights.

I. Standard of review

In reviewing the trial court’s decision, we are bound by the substantial evidence rule. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [standard of review is abuse of discretion].) Our review, therefore, is limited to the question of whether substantial evidence supported the trial court’s decision that appellant did not prove that severing his parental relationship would be detrimental to Mia. (In re Lukas B., supra, 79 Cal.App.4th at p. 1153.) Substantial evidence consists of evidence that is “‘reasonable, credible and of solid value’” which would allow a reasonable trier of fact to reach the conclusion that the juvenile court reached. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the order, we must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

II. Substantial evidence supported the trial court’s decision that the parental relationship exception to termination of parental rights was not established

Citing In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538, appellant argues that his relationship with his daughter must be considered in the context of the visitations and contact that he was permitted to have with her. He points out that Mia was affectionate with him during his visits, running to him right away and calling him “Pa.” He argues that Mia responded to him well during his visits, and kissed him and said goodbye to him when he left. Under In re Angel B. (2002) 97 Cal.App.4th 454, 467, one of the factors to be considered when analyzing whether a relationship is important and beneficial to the child is the positive or negative effect of interaction between the parent and child. Appellant argues that the evidence regarding the positive interaction between appellant and Mia, Mia’s eagerness to be with appellant, and Mia’s responsiveness to appellant’s presence, established that Mia would sufficiently benefit from continuing the relationship such that the exception under section 366.26, subdivision (c)(1)(A) was established.

However, there was other evidence before the trial court which suggested that appellant’s visits did not result in a strong bond between appellant and Mia. According to the DCFS reports, until October 2005, appellant visited Mia only once a week. He did not follow a schedule and showed up when it was convenient for him, even if he knew she would be sleeping. He was told he could visit more often, but continued to come only once a week and did not stay for the whole hour. When the social worker tried to arrange an appointment so that she could observe appellant with Mia, appellant explained his failure to show up by saying he had gotten sleepy. Because appellant made little effort to bond with Mia during the crucial first 18 months of her life, by June 2005, she no longer wanted to be with him. By the time Mia was 18 months old, she had lived with Carmen most of her life. Even during the last few months of the case, when appellant claimed he was visiting Mia more often, the evidence showed that he would often watch television rather than spend time with Mia.

The level of attachment required to overcome the presumption in favor of adoption is not the “frequent and loving contact” of a pleasant visitor with the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) “[F]or the exception to apply, the emotional attachment between the child and parent must that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 468.) The court reasonably concluded on the evidence before it that appellant had not taken a parental role in Mia’s life. While the evidence showed that appellant was a pleasant visitor in Mia’s life, the evidence also showed Mia’s strong attachment to Carmen, who had provided Mia with stability, love and care since the child was first placed with her and had never wavered in her desire to adopt Mia.

We further note that in March 2006, Mia’s attorney informed the court that Carmen had taken on the care of Mia’s new baby half-sister, so Mia now has a sibling in Carmen’s home. In addition, respondent points out that Carmen has always been completely supportive of appellant’s visits, allowing him to spend time in her home whenever he wanted to. Thus, it is likely that she will continue to allow him to visit Mia. This evidence supports the finding that severing parental rights will not be detrimental to Mia. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.)

The evidence described above is sufficient to support the trial court’s decision that appellant failed to establish the parental relationship exception. We therefore affirm the trial court’s decision.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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

^[2] Mother is not a party to this appeal.