Opinion
No. B166234.
10-28-2003
In re ALEXANDRIA L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. JEANNETTE B., Defendant and Appellant.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Petitioner and Respondent.
Appellant Jeannette B. is the natural mother of Alexandra L., a dependent of the juvenile court. She appeals from the juvenile courts order terminating her parental rights concerning Alexandra under Welfare and Institutions Code section 366.26. We affirm.
Alexandra is also called "Alexandria" in the record. We adopt the name found on her birth certificate.
All further statutory citations are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Alexandra was born to Jeannette and Baltazar L. in 2001. Prior to Alexandra, Jeannette had given birth to two other children, Amber L. and Mia M., who were subjects of dependency proceedings arising from domestic violence and Jeannettes abuse of drugs. Jeannette had failed to comply with the case plan in these proceedings. As a result, at the time of Alexandras birth, reunification services for Jeannette regarding Amber and Mia had been terminated, Amber had been placed in the custody of Albert L., her father, and Mia was receiving adoption services.
Baltazar is not a party to this appeal.
Alexandra tested positive for methamphetamines when she was born. On January 25, 2001, real party in interest Los Angeles County Department of Children and Family Services (DCFS) filed a petition under section 300, alleging, inter alia, that Alexandra faced a substantial risk of harm due to the presence of drugs in her system at birth, her parents history of drug abuse, and her older siblings status as dependents of the court as a result of prior parental substance abuse. In connection with the petition, DCFS reported that Jeannette had an extensive history of substance abuse, and that Baltazar was then in custody for possession of illegal drugs.
At the detention hearing on January 25, 2001, the juvenile court found a prima facie case for detaining Alexandra. The juvenile court authorized Alexandras placement with Jeannettes mother, Consuelo B., who was Mias caregiver and prospective adoptive parent. DCFS was also given the discretion, if needed, to place Alexandra with Baltazars mother, Corina L., who wished to be Alexandras caregiver. Jeannette was accorded monitored visitation with Alexandra.
On March 5, 2001, the juvenile court held a combined section 366.26 hearing regarding Mia and a review hearing regarding Alexandra. At this hearing, DCFS reported that Jeannette had failed to comply with the case plan concerning Mia, and the juvenile court terminated Jeannettes parental rights regarding Mia. DCFS also submitted a proposed case plan concerning Alexandra that required Jeannette to engage in parenting classes and drug abuse treatment with testing. DCFS nonetheless recommended that Jeannette should be denied reunification services due to her failure to reunify with Amber and Mia, and her unresolved and chronic drug use. (§ 361.5, subds. (b)(10), (b)(13).)
Following amendments to the section 300 petition regarding Alexandra not relevant here, the juvenile court sustained the petition on June 13, 2001. At the dispositional hearing on August 8, 2001, the juvenile court ordered reunification services for Baltazar, but not for Jeannette. DCFS was directed to remove Alexandra from Consuelos care and to place her with Corina. Consuelo was permitted unmonitored visitation, whereas Jeannette was limited to monitored visits.
At the six-month review on September 25, 2001, DCFS reported that Alexandra appeared to be happy in Corinas home. Corina stated that Jeannette did not visit Alexandra regularly, and she sometimes visited only for a few minutes. She also indicated that Consuela took Alexandra for overnight visits on weekends. DCFS also reported that Jeannette had not complied with court-ordered drug testing, although she had been given referrals for such testing.
Following the six-month review, Jeannette informed DCFS that she would try to comply with the proposed case plan, notwithstanding the denial of reunification services. DCFS indicated that Jeannette had enrolled in a parenting course and drug treatment program in October 2001, and she was participating in drug testing. Jeannette had also alleged that Corinas husband, Carlos L., and her son, Melchor L. were users of illegal drugs. Both Carlos and Melchor denied any current drug abuse. At a hearing on October 23, 2001, the juvenile court authorized DCFS to allow Consuelo to monitor Jeannettes visits.
In connection with the 12-month review set for January 28, 2002, DCFS reported that Jeannette was in counseling. In addition, Jeannette was allowed monitored visits, and she saw Alexandra on Sundays. Consuelo continued to take Alexandra for unmonitored visits on Sundays. DCFS also reported that Baltazar had failed to comply with the case plan, and it recommended that his reunification services should be terminated. Baltazar requested a contested hearing on the matter.
At the contested 12-month review on February 28, 2002, DCFS reported that Jeannette had stated: "`Im doing my programs, Im drug testing and Im trying to do everything right so that I can get my daughters back." The juvenile court found that Baltazar had not complied with the case plan, terminated his reunification services, and set a hearing under section 366.26.
The section 366.26 hearing was continued several times. In a report filed on June 27, 2002, DCFS stated that Jeannette had said: "Im doing well and I will fight to get my daughters back." DCFS also indicated that Corina and Carlos were likely to be Alexandras adoptive parents.
On August 28, 2002, DCFS reported that Consuelo continued to have unmonitored visits with Alexandra on Sundays in Consuelos home. Also present during these visits were Amber, Mia, and Jeannette, who also went on Sunday outings with her daughters. On September 25, 2002, DCFS stated that Consuelo and Corina agreed that these Sunday visits had gone well.
On November 26, 2002, Jeannette filed a petition under section 388, seeking an order placing Alexandra in her custody. In support of the petition, she submitted evidence that she had been visiting Alexandra regularly, completed a parenting course, and participated in a domestic violence program.
In a report filed on December 30, 2002, DCFS recommended that granting Jeannettes section 388 petition would not be in Alexandras best interest. DCFS stated that Alexandra had then been in Corina and Carloss care for 16 months, and that she had bonded well with them. When DCFS asked whether Jeannette phoned to inquire about Alexandras health and well-being, Corina indicated that Consuelo alone made such calls. Corina also stated that during the previous 16 months, Jeannette had made only one 10-minute visit to Alexandra in Corinas home.
Finally, DCFS observed that Jeannettes section 388 petition said nothing about her drug abuse. It pointed to evidence that Jeannette had tested positive for drugs three times between May and August 2002, and that she was thereafter identified as a "No show" for testing.
On February 26, 2003, and March 5, 2003, DCFS reported that Jeannette had completed a parenting course, but had been terminated from her domestic violence program for lack of attendance. Although Jeannette had voluntarily entered drug rehabilitation programs several times, she had never completed a program of random testing.
Regarding Jeannettes visitation, DCFS stated that she had never asked the social worker for visits, and she had briefly visited Alexandra only twice at Corinas home. On Alexandras then recent birthday, Jeannette had neither visited, phoned, or sent Alexandra a gift. Consuelo picked up Alexandra every Sunday so that she could spend time with Amber and Mia. According to DCFS, Jeannette sometimes attended these Sunday visits. Consuela took the children on outings and to meals, and Jeannette went along.
On April 8, 2003, the juvenile court held a combined hearing on the section 388 petition and under section 366.26. At the hearing, DCFS reported that in March 2003, Jeannette had enrolled in a nine-month drug treatment program. The juvenile court heard testimony from Jeannette, and it admitted several DCFS reports, including the reports dated December 30, 2002, February 26, 2003, and March 5, 2003.
Jeannette testified as follows: Jeannette loved Alexandra, who had never resided with her. She visited Alexandra on a daily basis for the first eight months of Alexandras life, when she lived with Consuelo. During this period, she parented Alexandra—she carried, cleaned, and talked to Alexandra—under Consuelos supervision.
After Alexandra was transferred to Corinas care, Jeannette visited Alexandra on Sundays at Consuelos home. These visits began at 10:00 a.m. and ended about 8:00 or 9:00 p.m. Alexandra enjoyed seeing her, Amber, and Mia.
Alexandra called her "Momia" and hugged her, and she called Alexandra, "My little monkey." She played with Alexandra, took care of her, went on outings to Disneyland with her, and assisted Consuelo in potty training.
According to Jeannette, she had finished a parenting program, and she was then enrolled in a program involving domestic violence education, individual counseling, drug therapy, and random drug testing. She acknowledged that she had failed to finish similar programs in the past, but she affirmed her intention to complete this program. The drug therapy program involved 12 steps, of which she had reached the second step. She was unable to identify the second step.
Finally, Jeannette stated that she was currently living in a two-bedroom house, and was financially capable of supporting Alexandra. She also indicated that Consuelo was willing to help her care for Alexandra.
Following Jeannettes testimony, the juvenile court denied her section 388 petition, concluding that there was no material change of circumstances. Under section 366.26, it found that Alexandra was adoptable, and it terminated Jeannettes parental rights. This appeal followed.
DISCUSSION
Jeannette contends that the juvenile court erred in determining that her parental rights should be terminated, and that her situation did not fall within the exceptions found in section 366.26, subdivision (c)(1)(A) (subd. (c)(1)(A)), or section 366, subdivision (c)(1)(E) (subd. (c)(1)(E)). We disagree.
A. Subdivision (c)(1)(A)
Under section 366.26, subdivision (c)(1), when, as here, the juvenile court finds by clear and convincing evidence that the minor is likely to be adopted and that reunification services will not be offered, the juvenile court must terminate parental rights unless it finds that an enumerated exception applies. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) It is the parents burden to show that these exceptional circumstances apply. (Ibid.)
Jeanettes principal contention is that she falls within the scope of subdivision (c)(1)(A), which bars termination of parental rights when "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that there is a division of opinion regarding the standard of review applicable to a determination under subdivision (c)(1)(A). Whereas most courts have reviewed this determination for the existence of substantial evidence (e.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537; In re Autumn H. (1994) 27 Cal.App.4th 567, 575), at least one court has concluded that it is properly reviewed for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
It is unnecessary for us to resolve this division of opinion. In adopting the abuse of discretion standard, the court in Jasmine D. acknowledged that "[t]he practical differences between the two standards of review are not significant. `[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . 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. . . ."" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351, quoting In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Subdivision (c)(1)(A) establishes a two-prong test involving assessments of (1) the parents contact and visitation, and (2) the benefit to the child of continuing the existing relationship. As the court explained in In re Autumn H., supra, 27 Cal.App.4th at page 575, the second prong concerns whether "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." In making this determination, the juvenile 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," or alternatively, the juvenile court assesses whether "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . ." (Ibid.)
As the court in Autumn H. explained, the second prong requires a significant relationship that rises above incidental affection and care. It stated: "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Following Autumn H., appellate courts have concluded that even frequent and loving contact between a child and a parent is not sufficient, by itself, to establish the significant parent-child relationship required under subdivision (c)(1)(A). (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) As the court explained in In re Jasmine D., supra, 78 Cal.App.4th at page 1350, "a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one" because "[i]t would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship."
Nonetheless, the requisite relationship does not presuppose daily interaction. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, the court clarified that the Autumn H. standard demands only "a relationship characteristically arising from day-to-day interaction, companionship and shared experiences." (Italics added.) Thus, "[d]ay-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Ibid.)
Thus, in assessing the existence of the requisite relationship, the juvenile court should balance the relevant considerations "on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs. [Citation.]" (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
Here, the juvenile court addressed both prongs of subdivision (c)(1)(A). Regarding the first prong, it stated: "The only visits that [Jeannette] has taken advantage of would be when [Consuelo] took advantage, which are on Sundays. . . . In addition, according to the social worker, [Jeannette] did not contact the child on birthdays and special occasions, and the only evidence we have that the mother has even visited the child is [Jeannettes] own testimony. According to the social worker, [Jeannette] has only visited in [Corinas] home or when [Corina] had custody twice in the last year and a half. So we cant even show that [Jeannette] has had substantial visits."
Furthermore, regarding the second prong, the juvenile court observed that Alexandra had long been in Corinas care. Because Jeannette had decided to see Alexandra only during Consuelos Sunday visits, the juvenile court stated that Jeannette had never been "the actual caretaker" during these visits. It concluded: "[These contacts] would be with a mother who is basically visiting in the home as a visitor. So to say that shes bonded and shes acted like a mother in the parental role, its not possible."
Finally, even assuming that there had been adequate contact and Jeannette had assumed a parental role, the juvenile court determined that any detriment from terminating the existing relationship did not outweigh the benefits of adoption. It pointed out that notwithstanding Jeannettes current intentions, she had never resolved her chronic drug use, despite repeated opportunities to do so.
Here, the record supports the juvenile courts determinations that Jeannette had not played the requisite parental role in Alexandras life, and that Alexandras need for stability outweighed the benefits of an ongoing relationship with Jeannette. The evidence raises the reasonable inference that for the 16-month period that Alexandra had been in Corinas custody, Jeannette had limited her role in Alexandras life to a welcome and helpful visitor at Consuelos Sunday family gatherings, when Alexandra was under Consuelos supervision. As the juvenile court indicated, outside these Sunday gatherings, Jeannette showed little or no interest in seeing or contacting Alexandra, declining even to acknowledge Alexandras birthday. Finally, there is ample evidence that adoption offered Alexandra a stable, loving home.
Jeannette disagrees, citing In re Amber M. (2002) 103 Cal.App.4th 681. However, this case is factually distinguishable. In Amber M., three children were removed from the custody of their mother, who was a habitual drug user. (Id. at pp. 684-685.) The mother failed to comply with the case plan, and at the section 366.26 hearing, she contended that she fell within the subdivision (c)(1)(A) exception. (Id. at pp. 685, 689-691.)
During the section 366.26 hearing, which involved numerous sessions over a lengthy period, a psychologist, therapists, and a court-appointed special advocate each testified that the children were strongly bonded to their mother. (In re Amber M., supra, 103 Cal.App.4th at p. 690.) In addition, the evidence showed that the mother had visited as often as allowed, and she acted in a loving, parental way when permitted visitation. (Ibid.) The sole dissenting witness concerning the applicability of the subdivision (c)(1)(A) exception was a social worker, who gave only a perfunctory evaluation of the pertinent parent-child relationships. (Ibid.)
Despite this evidence, the juvenile court concluded that the mother fell outside the subdivision (c)(1)(A) exception. (In re Amber M., supra, 103 Cal.App.4th at p. 691.) The court in Amber M. determined that this was error, but nonetheless remanded the matter for a new hearing because the record indicated that the juvenile court had applied an improper "concept" of the exception, due to the fragmented nature of the hearing. (Ibid.)
Unlike the mother in Amber M., Jeannette declined opportunities to visit Alexandra, and she was indifferent to Alexandra outside the limited contacts that she elected to make. Jeannette thus falls beyond the reach of Amber M.
In sum, the juvenile court properly determined that subdivision (c)(1)(A) is inapplicable to Jeannette.
B. Subdivision (c)(1)(E)
Jeannette also contends that the exception in subdivision (c)(1)(E) is applicable to this case. Under this exception, the juvenile court may bar termination of parental rights when "[t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)
In our view, Jeannette has waived this contention by failure to present it to the juvenile court. As the court explained in In re Erik P. (2002) 104 Cal.App.4th 395, 403, if a parent does not raise the exception at the section 366.26 hearing, "not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial courts determination is supported by substantial evidence."
Here, Jeannettes counsel never mentioned the exception in subdivision (c)(1)(E) during the section 366.26 hearing. Furthermore, the only reference to Alexandras interest in her relationship with her half-siblings occurred after the juvenile court had terminated Jeannettes parental rights. At this point, Jeannettes counsel expressed Jeannettes hope that DCFS would keep Consuelo in mind as a prospective adoptive parent, citing the fact that Mia lived with Consuelo.
Because this remark presupposes that Alexandra would be adopted, it cannot reasonably be interpreted as a challenge to the termination of Jeannettes parental rights, and thus it could not trigger an inquiry into the applicability of subdivision (c)(1)(E). Accordingly, any such contention is waived on appeal.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, J., Acting P.J., HASTINGS, J.