In re Adrian S.

Filed 3/16/07 In re Adrian S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D. Zeke Zeidler, Judge. Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.

____________________________________

A mother appeals from an order terminating her parental rights, contending she presented compelling evidence to show that she maintained regular visitation and contact with her child, and that the child would benefit from the continuation of their relationship. We disagree and affirm the order.

FACTS

Kristina S. gave birth to Adrian S. in February 2001. Adrian came to the attention of the Department of Children and Family Services in September 2004 when the police were called about a fight between Kristina and her mother. Adrian was detained and placed with his paternal grandparents (Mr. and Mrs. S.), and later declared a dependent of the juvenile court based on findings that Kristina, who had a history of drug and alcohol abuse and violence, was unable to protect him. (Welf. & Inst. Code, 300, subd. (b).)[1] Adrians alleged father (Mauricio S.) was incarcerated at that time and has since been deported to Mexico (he is not a party to this appeal). Reunification services and drug testing were ordered and monitored visits were authorized.

Kristina did not comply with her case plan (all of her drug tests were no shows) and she did not participate in any of the classes or programs ordered by the court. She visited Adrian only three times between September 2004 and May 2005, and Adrian act[ed] out after each visit. Reunification services were nevertheless continued.

In October, Kristina gave birth to Brandon A. (his father is Julio A., not Mauricio). In November, the Department reported that Kristina had visited Adrian twice during September, and that Adrian had responded well, but Mrs. S. (Adrians grandmother) reported that Adrian was aggressive after his mothers visits. Adrians therapist said the child was suffering from post traumatic stress disorder (with symptoms including verbal and physical aggression, stuttering, and excessive masturbation) and his condition regressed following visits with Kristina. In November, the dependency court authorized weekly monitored visits and thereafter directed that Mrs. S. was not to be present during the visits.

In March 2006, the Department reported that Kristina had visited Adrian about six times since the preceding October, that she had not fully complied with her case plan, that she did not have a close relationship with Adrian, and that she was unable to meet Adrians need for consistency. Adrian wanted to stay with Mr. and Mrs. S. Following a contested hearing held in April, reunification services were terminated but weekly visits were continued. A contested permanent plan hearing was scheduled for August.

In August, the Department reported that Kristina had enrolled in an inpatient substance abuse program the preceding April and had tested clean during that time. She had completed her parenting classes and increased the frequency of her visits with Adrian to three visits in June and six in July. Adrian was anxious before the visits and acted out after his time with Kristina, but he appeared happy during the visits. According to the social worker, Adrian has a strong and healthy attachment to Mr. and Mrs. S. (who want to adopt him).

At the contested permanent plan hearing, Mrs. S. testified that Kristina visited Adrian 15 times between May and August, and that Adrian appeared to enjoy the visits but told Mrs. S. that he did not want to visit his mother. Mr. S. testified that, for the most part, Kristina and Adrian had a loving and normal mother and son relationship.

Kristina acknowledged that she had not had any unmonitored visits with Adrian but explained that she had been visiting him more frequently and he called her mom. She testified that she wanted to continue her relationship with him, and Adrian testified that he like[d] playing with [his] mom. The social worker (who had been assigned to the case in February 2006) testified that Adrian had only once told her he did not want to visit his mother, and that Kristina acted appropriately with Adrian.

The dependency court found it was too little, too late, noting that Adrian had not been in Kristinas care for two years, that her sporadic visits were always monitored, and that although Adrian enjoyed playing with his mother, there was no evidence that Kristina occupied a parental role in Adrians life or was anything more than a playmate. The court found that it would be detrimental to Adrian to return him to Kristina and terminated her parental rights. ( 366.26, subd. (c)(1).) Kristina appeals.

DISCUSSION

Kristina contends she presented substantial evidence to show that she has maintained regular visitation and contact with Adrian, and that Adrian would benefit from the continuation of her relationship with him. ( 366.26, subd. (c)(1)(A).) She concedes that it was her burden to prove that she comes within this exception to the presumption favoring adoption (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373) but claims she met that burden. We disagree.

By the time of the hearing, Adrian had spent almost half of his life with Mr. and Mrs. S., with only sporadic visits from his mother, all of which were monitored. Although the frequency of Kristinas visits increased after reunification services were terminated, she did not timely comply with her case plan and she never progressed to the point where she could have unmonitored visits. As the dependency court observed, Kristina was more of a playmate than a parent, and she never took any steps toward assuming a parental role in her sons life. Meanwhile, Adrian has bonded with Mr. and Mrs. S., who have provided the stability the child needs. They love him and want to adopt him.

For these reasons, we agree with the dependency court that Kristina did not present sufficient evidence to suggest this is an extraordinary case where, due to Kristinas regular contact with Adrian, it would be in the childs best interest to continue the relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 [to come within this exception, there must be evidence that the relationship promotes the well-being of the child to such a degree as to outweigh the benefit to the child of a permanent home with adoptive parents]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348-1350 [a child should not be deprived of adoptive parents when the mother has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent].)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

______________________________________________________________________________

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

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

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