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In re A.D.

California Court of Appeals, Fourth District, Second Division
Jun 7, 2012
No. E054239 (Cal. Ct. App. Jun. 7, 2012)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIJ119995, Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

HOLLENHORST, Acting P. J.

M.M. (Mother) appeals from the order terminating her parental rights to her daughter, A.D. She contends the juvenile court abused its discretion by rejecting the beneficial parent-child relationship exception to adoption (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). We reject Mother’s contention and affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

I. PROCEDURAL BACKGROUND AND FACTS

In May 2010, Mother gave birth to A.D. and both tested positive for marijuana and methamphetamine. Mother signed a safety plan and was referred to Family Preservation Court. She completed her intake with Family Preservation Court and was observed to be attentive to her daughter’s physical and emotional needs. However, Mother began missing appointments and drug tests. Additionally, she tested positive for methamphetamines and admitted to drug use. Mother was terminated from the program on June 25, 2010, and on June 29, the Riverside County Department of Public Social Services (the Department) filed a dependency petition alleging the child, A.D., came within section 300, subdivision (b). Specifically, it was alleged that Mother had a “chronic unresolved history of abusing methamphetamine and marijuana, ” and she failed to benefit from the “pre[-]placement preventative services....” A detention hearing was held on June 30, 2010, wherein the court detained A.D. and ordered services and supervised visitation for Mother.

Initially, the father was thought to be K.D.; however, after a DNA test was taken, it was determined that K.D. is not A.D.’s father.

In the jurisdictional/dispositional report filed on July 19, 2010, the Department recommended that Mother be offered family reunification services and that the child be declared a dependent of the court. A contested jurisdiction hearing was held on August 30, 2010. The court found the allegations in the petition true, adjudged A.D. to be a dependent of the court, removed physical custody of her from Mother, and ordered reunification services and supervised visitation of two times per week.

According to the status review report filed on February 14, 2011, the Department recommended termination of reunification services and the setting of a section 366.26 hearing. According to the report, Mother had completed a 45-day residential drug treatment program in the fall of 2010. While enrolled in the program, she completed individual therapy, group therapy, a self-esteem class, a relapse prevention class, anger management, 12-step meetings, parent education, a domestic violence class, and a trauma class, and she spent time supervising the daycare. Upon completion of the residential drug program, Mother delayed enrolling in an outpatient program and failed to move into a sober living home. In November and December 2010, she tested positive for methamphetamines. Mother self-reported using methamphetamine, stating “‘it’s hard to stop’” and that she was ‘“scared of reality.’” As of February 2011, Mother was in noncompliance with her court-ordered services, had failed to maintain sobriety, and had not benefitted from her treatment programs. Her visitation with the child was described as “sporadic and inconsistent.” During a few visits, Mother was under the influence, and it was noted that A.D. would “scream and cry... until she adust[ed] to her mother....” The Department recommended that visitation be reduced to once a month.

In an addendum report filed on March 16, 2011, the Department noted that Mother continues “struggling in maintaining sobriety, and she is not able to adequately parent her daughter.” Opining it was not likely that Mother would benefit from an additional six months of services, the Department requested that a “[section] 366.26 Selection and Implementation Hearing be calendared in 120 days to terminate both parent’s parental rights.” On March 21, at the contested review hearing, the court terminated Mother’s reunification services, reduced visitation to one time per month, and set a section 366.26 hearing.

On July 1, 2011, the status review report prepared for the section 366.26 hearing was filed. The Department reported that on June 16, 2011, A.D. was placed in a pre-adoptive home and she was developmentally on target. Mother continued to struggle “with her unresolved substance abuse issues.” It was also reported that Mother has other children and she is not actively involved in their upbringing.

The section 366.26 hearing was held on September 19, 2011; Mother was not present. Her counsel noted that Mother had been present in court until noon. Counsel requested a continuance, which was denied. Thus, on behalf of Mother, counsel objected to termination of parental rights on the grounds of section 366.26, subdivision (c)(1)(B)(i), and requested that Mother maintain visitation and be in contact with the child. According to counsel, A.D. would benefit from continuing a relationship with Mother because the Department’s reports noted that Mother had “interacted appropriately with her daughter, and she was attentive to the child’s needs.” Counsel went on to state that “during the visitation... [M]other did provide snacks, toys and clothing, ” and that Mother “had taken photos and [had] been very loving towards her daughter.” Alternatively, counsel requested that the court grant a legal guardianship or send the matter out for mediation. Rejecting Mother’s counsel’s argument, the court found a sufficient basis to terminate parental rights, found that termination would not be detrimental to the child, and that adoption was in the child’s best interests. Mother’s parental rights were terminated, and she appeals.

II. BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297.)

The parental benefit exception is set forth in section 366.26, subdivision (c)(1)(B)(i). (In re S.B., supra, 164 Cal.App.4th at p. 297.) The exception applies when two conditions are satisfied: (1) “the parent has maintained regular visitation and contact with the child, ” and (2) “the child would benefit from continuing the relationship.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see § 366.26, subd. (c)(1)(B)(i).) Regarding the first condition, Mother claims she maintained regular visitation and contact with A.D. However, the record shows otherwise. As previously noted, Mother’s visitation was described as “sporadic and inconsistent.” As the Department points out, “Sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption. [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 554.) Thus, we turn to the second condition.

Mother bears the burden of showing that her relationship with A.D. “‘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 parent’s rights are not terminated.’ [Citation.] [¶] The parent must do more than demonstrate ‘frequent and loving contact, ’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 826, 827.)

“‘The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’ [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)

There must be a “‘compelling reason’” for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; see also § 366.26, subd. (c)(1)(B).) This is a “quintessentially discretionary determination.” (In re Jasmine D., supra, at p. 1351.) Broad deference must be shown to the juvenile’s court’s discretionary determination, and this court will interfere only if, under all the evidence presented, viewed in the light most favorable to the juvenile court’s determination, we conclude no judge could reasonably have made the determination. (Ibid.)

Here, Mother’s argument that she established the applicability of the parental benefit exception to adoption is based essentially on the following: Mother met A.D.’s physical and emotion needs while in Mother’s care; she remained appropriate and provided A.D. with bottles, diapers, formula, blankets, and a car seat when A.D. was taken into custody; Mother brought toys and gifts to visits and would spend whatever time necessary to calm A.D. when she was fussy; their visits were productive and A.D. appeared to be bonding with Mother; Mother expressed love for A.D.; Mother was nurturing toward A.D.; the child responded to Mother’s voice, would smile and was very energetic and playful; A.D. would engage in activities with Mother; Mother would comfort A.D. if she fell; and Mother took photographs and was very loving towards A.D.

In response, the Department points out that Mother failed to introduce any evidence showing that A.D. would be greatly harmed by termination of parental rights. Rather, the evidence before the court shows that A.D. scarcely lived with Mother, i.e., only from birth to six weeks old; Mother’s visits never progressed to unsupervised or overnight; and while A.D. appeared to enjoy visitation with Mother, there is no evidence Mother occupied a parental role in the child’s life. Mother continued to struggle with her addiction to methamphetamine and did not regularly visit A.D. Sometimes she showed up to the visits under the influence, and on one occasion when A.D. had not yet arrived for visitation, Mother stepped out to use the restroom and get lunch, but then never returned. In contrast, the prospective adoptive parents loved A.D. and provided a comfortable and secure home.

Given the above, we cannot conclude the juvenile court erred in finding that Mother failed to show that A.D. would benefit from continuing the relationship.

III. DISPOSITION

The order terminating parental rights is affirmed.

We concur: MCKINSTER J., MILLER J.


Summaries of

In re A.D.

California Court of Appeals, Fourth District, Second Division
Jun 7, 2012
No. E054239 (Cal. Ct. App. Jun. 7, 2012)
Case details for

In re A.D.

Case Details

Full title:In re A.D., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jun 7, 2012

Citations

No. E054239 (Cal. Ct. App. Jun. 7, 2012)