Opinion
B192161
12-12-2006
In re A. D., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SARAH D., Defendant and Appellant.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant. Amir Pichvai for Plaintiff and Respondent. No appearance for Minor.
Sarah D. (Mother) appeals from an order of the juvenile court under Welfare and Institutions Code section 366.26, terminating her parental rights over minor, A. D., and ordering a plan of adoption. The court found that the parental relationship exception set forth in section 366.26, subdivision (c)(1)(A) was not applicable. We conclude that the juvenile courts findings are supported by substantial evidence and affirm.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Detention (June 14, 2005)
Seven-month-old A. D.s case was referred to the Los Angeles County Department of Children and Family Services (DCFS) on April 1, 2005. A caller to the child abuse hotline reported that Mother and her brother (Uncle) smoked "meth" in front of the child on a daily basis and that Mother was unconscious from drug use and unable to respond on an occasion when A. D. had fallen between the bed and crib and was crying. DCFS interviewed all family members living in the home with the child, including Mother, Uncle and the maternal grandparents, all of whom denied that drugs were used in the home. Mother and Uncle agreed to an on demand drug test, but Mother later reported that the drug center would not test either her or Uncle, and the drug test was rescheduled. Mother claimed at the rescheduled test that she was unable to provide a sample, and Uncle did not show up. Mother eventually submitted to a drug test on June 3, 2005 when a DCFS worker met her at the test site. She tested positive for amphetamines and methamphetamine. While admitting that she took drugs prior to A. D.s birth, Mother denied any current use and claimed that the positive test was mistaken.
In the meantime, Uncle was arrested on May 16, 2005 for possession of controlled substance paraphernalia. When confronted with this information, the maternal grandmother again stated she was not aware of any drug use by her son. She reported that he was no longer living in the house.
Robert G. (Father), who was not married to Mother and lived with his parents, reported that on May 10, 2005, Mother came to his house while "high" to pick up A. D. Although he did not want to release the child to her, a companion of Mothers "snatched" the child away. By the time law enforcement responded, Mother had left with the child. Father stated that he and Mother broke up before she was pregnant, but that they agreed to share custody and financial responsibility for A. D. Father also reported that he and Mother abused methamphetamine together, but that he had voluntarily enrolled in an inpatient drug treatment center and had been without drugs for five months. Father tested positive for methamphetamine and cannabinoids.
DCFS filed a section 300 petition on A. D.s behalf alleging failure to protect. Count 1 alleged that Mother had a history of substance abuse, was a frequent user of illicit drugs that rendered her incapable of providing regular care for A. D. and placed the child in danger. Count 2 made the same allegations with respect to Father. On June 14, 2005, nine-month-old A. D. was detained from the parents custody and placed in foster care. The parents were given monitored visitation rights and ordered to undergo drug testing and rehabilitation. The grandparents were ordered to attend Al-Anon or Co-Dependents Anonymous. DCFS was ordered to provide reunification services and to undertake an extensive assessment of the grandparents for possible placement. The court cautioned the parents that if they did not show substantial progress in the ordered programs within six months, A. D. would be placed in a permanent plan that might include adoption.
Mothers opening brief incorrectly states that the grandparents tested positive for drugs.
Reunification Efforts (June 2005 - January 2006)
DCFS reported for the pretrial resolution conference in July that Mother stated that she did not have a drug problem and admitted to using methamphetamine a month and a half earlier. Mother contended that depression over a bad relationship, a car accident and the burning down of her room by Uncle, who purportedly left a candle burning, led to her drug use. She denied using drugs around her child. Father stated that he had used methamphetamine and marijuana with Mother and Uncle at the maternal grandparents home on numerous occasions when they would remain locked in the garage throughout the night and following day. Father related that he had used drugs since high school until he was hospitalized for drug treatment in 2004. Father claimed that he had been drug free for six months despite the positive drug test in June 2005. The paternal grandmother reported that she knew of Mother and Fathers history of drug abuse and had tried on several occasions to intervene and get help for them. The maternal grandmother again stated that she was unaware of Mothers drug use until the positive drug test in this case.
Mother and Father pleaded no contest to the petition which was sustained as alleged and A. D. was declared a dependent of the court. Before making that ruling the court again informed the parents that they could be ordered into programs to regain custody and that if they did not make substantial progress in those programs in six months, A. D. could go to a permanent plan which could include adoption. The court ordered that A. D. be suitably placed under DCFS supervision. The parents were ordered into drug rehabilitation with weekly random testing, parenting classes and individual counseling. The parents were allowed monitored visits. The court ordered DCFS to show cause as to why it should not be sanctioned for having failed to assess the grandparents for placement. The suitable placement order was later modified for specific placement with the paternal grandparents.
DCFS reported for a December 28, 2005 status review hearing pursuant to section 366.21, subdivision (e) that neither parent was actively participating in their drug rehabilitation programs. Neither parent acknowledged a serious drug problem contending they could quit without intervention or professional assistance. The parents had not maintained a regular visitation schedule with A. D. Neither parent had a stable residence, each living with various friends and relatives. Both parents enrolled in drug testing, parenting and individual counseling, but both were terminated for excessive unexcused absences. Between June 3, 2005 when she tested positive and December 2005, Mother missed every one of eleven scheduled drug tests. Mother claimed she was looking for a job and did not have time to attend classes or drug testing. When asked to submit to an on demand test in September, Mother admitted that the test would be positive. DCFS recommended the termination of reunification services and the matter was continued for a contested hearing.
At the January 20, 2006 section 366.21, subdivision (e) contested hearing, DCFS reported that Mother had been arrested on December 28, 2005 for possession of methamphetamine. Mother acknowledged the arrest but claimed that the police report was incorrect. Mother enrolled in a sober living program on January 15, 2006. She did not maintain consistent visitation with A. D. Mother requested additional time for reunification. Noting that he had warned Mother on two previous occasions that she needed to make substantial progress within six months, the court terminated reunification services, ordered an adoptive home study on the parental grandparents and set a section 366.26 hearing for May 24.
Termination of Parental Rights ( July 3, 2006 )
The paternal grandparents were declared de facto parents on May 24, 2006. On June 2, 2006 Mother was again arrested for possession of methamphetamine and marijuana. On June 28, DCFS reported that Mother had tested positive for methamphetamine and amphetamines and was discharged from her sober living program. Mother claimed she had taken prescription medication that contained codeine. DCFS reported that between January 20, 2006 and June 23, 2006 Mother had visited A. D. 11 times and had called five times. The contested section 366.26 hearing was held on July 3, 2006. Mother testified that she was the primary caretaker for the first nine months of A. D.s life and that she visited two to three times a week for a couple of hours while A. D. was in foster care. From August 2005 when A. D. was placed with her paternal grandparents, Mother testified that she visited approximately every two weeks for a few hours. These were monitored visits during which she would feed A. D., color and draw with her, play outside or with toys and watch movies. Mother stated that she changed her daughters diaper once during the visits. A. D. smiled and held Mother and called her "mommy." She cried when Mother left. Mother testified that she loved her daughter and that she knew A. D. loved her. Mother admitted that she could not give A. D. a loving and nurturing home at that time, but she believed she could do so in the future. Mother stated she believed A. D. would receive good care from her paternal grandparents. The court found that Mother was not in a parental role with A. D. and that to the extent she was any parental role did not outweigh the benefits of adoption by the parental grandparents. Mother appealed.
DISCUSSION
I. Contentions on Appeal and Standard of Review
Mother contends that the trial courts finding that termination of her parental rights would not be detrimental to A. D. under section 366.26, subdivision (c)(1) is not supported by substantial evidence. Specifically, she claims the court erred in not recognizing that the termination is detrimental to A. D. because she has maintained regular contact with her daughter who would benefit from a continuing relationship with her under section 366.26, subdivision (c)(1)(A).
The Courts of Appeal have applied both the substantial evidence and the abuse of discretion standards to review the applicability of the section 366.26, subdivision (c)(1) exceptions. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 .) Because the parties to this appeal proceed under the substantial evidence standard of review, we do as well. Under that standard, the appellant must demonstrate that there is no substantial evidence to support the challenged findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Autumn H., supra, at p. 576.) When a review of the entire record discloses there is substantial evidence in support of the trial courts decision, the appellate court has no power to substitute its judgment for that of the trial court. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
II. The Section 366.26, Subdivision (c)(1)(A) Exception Does Not Apply
When a parent has failed to unify and a child is likely to be adopted, it is the parents burden to show that termination of parental rights would be detrimental to the minor due to the applicability of one of the statutory exceptions set out in section 366.26, subdivision (c)(1). (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) Here, Mother contends that she established the applicability of section 366.26, subdivision (c)(1)(A), which provides: "The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." But to satisfy the exception, the parent must demonstrate something more than the "incidental benefit" that will typically be conferred on a child through interaction with a natural parent. (Autumn H., supra, 136 Cal.App.4th at p. 575.) The mere existence of an emotional bond between the parent and child is not sufficient to overcome the presumption in favor of adoption. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Rather, the parent must prove that the child will be "greatly harmed" by the termination of parental rights. (Autumn H., supra, at p. 575.)
A. Regular Visitation and Contact
The trial court found that Mother did not play a parental role in A. D.s life. With respect to visitation the court found that Mother maintained visits but only "every other week or so." The record supports that finding. Mother argues that her parenting role must be evaluated in the context of the visitation orders imposed on her by the court. In particular, Mother was allowed only monitored visits, and those visits monitored by the parental grandmother were awkward. While we generally agree with Mothers reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 (Brandon C.) for the proposition that a mothers parenting role must be evaluated in the context of the limitations placed on her visitation rights, we disagree that her case resembles that evaluated in Brandon C. The court in that case found that termination of parental rights would be detrimental and ordered guardianship instead. The finding was upheld on appeal because it was supported by the substantial evidence that the mother had consistently visited her children during the entire three-year pendency of the case, that the paternal grandmother (the childrens guardian and monitor of mothers visits) believed that the termination of parental rights would be detrimental and that the mother had completed a drug rehabilitation program and secured housing and employment that had been stable for many months prior to the hearing. (Id. at p. 1533.) In contrast, in the two months preceding the termination order in this case, Mother had been arrested again on drug charges, had tested positive for methamphetamine and amphetamines and had been discharged from her sober living program. Here, Mother repeatedly failed to complete court-ordered drug rehabilitation and testing, could not provide a stable home and showed a consistent pattern of reverting to a lifestyle that prevented her from properly caring for her child.
Rather than Brandon C. this case more closely resembles In re Jasmine D. (2000) 78 Cal.App.4th 1339 (Jasmine D.). The termination of parental rights was upheld on appeal in that case despite consistent visitation because the mother failed to make any progress toward correcting the problems that originally caused the childs dependency. The court stated: "The exception provided in section 366.26, subdivision (c)(1)(A) must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. The section 366.26, subdivision (c)(1)(A) exception is not a mechanism for the parent to escape the consequences of having failed to reunify." (Jasmine D., supra, at p. 1348.)
That is the case here. Having failed to meet the requirements of reunification despite explicit warnings from the court that the case could end in adoption, Mother may not now attempt to use the section 366.26, subdivision (c)(1)(A) exception as a mechanism for correcting that failure.
B. Benefit to the Child
Mother also failed to demonstrate that a continued relationship with her would benefit A. D., as is required for the section 366.26, subdivision (c)(1)(A) exception to apply. "[T]he `benefit from continuing the [parent/child] relationship . . . mean[s] 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. . . . the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court considers a number of variables in balancing the competing interests under this subdivision including the age of the child, the portion of his life spent in the parents custody, the effect of the interaction between the parent and the child and the childs particular needs. (Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.)
Substantial evidence supports the trial courts conclusion that "to the extent that there is a parental role, [it] does not outweigh the benefits that the child will have in a permanent adoptive home." A. D. was nine months old when detained and was nearly two years old when Mothers parental rights were terminated. She had been under the supervision of the court longer than she had been in Mothers custody. Mother had been arrested twice for the possession of illegal drugs and had again tested positive for methamphetamine and amphetamines three months before the termination hearing. She had not participated in drug rehabilitation or testing and admitted that she could not then provide a stable home for A. D.
In contrast, the paternal grandparents were devoted to A. D. and provided a loving, nurturing and stable home. Mother admitted that she believed A. D. would receive good care with her grandparents.
We find that substantial evidence supports the trial courts conclusion that termination of Mothers parental rights is not detrimental to A. D.
DISPOSITION
The order terminating Mothers parental rights to A. D. is affirmed.
We Concur:
BOREN, P. J.
ASHMANN-GERST, J.