Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK63143, Richard D. Hughes, Juvenile Court Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Mother appeals from the juvenile court’s order terminating her parental rights to her two daughters. Because the order was entered after the court found that the girls were adoptable, it was mother’s burden to overcome the presumption favoring adoption as the permanent plan for the children. Mother contends the juvenile court’s finding that she failed to meet her burden was not supported by substantial evidence. After reviewing the entire record, we reject mother’s contention and affirm the judgment.
BACKGROUND
The Department of Children and Family Services (Department or DCFS) first detained the children in April 2006, when law enforcement officers found in mother’s home, on a shelf accessible to the children, a handgun that had been used in a murder. Mother was charged with child endangerment and being an accessory to murder; the charges were later dismissed. Also arrested was mother’s live-in boyfriend, who had a long criminal history and was known to be involved with a street gang. At the time the children were detained, the home was filthy and mold-infested, the children were dirty and there was little food in the home.
The juvenile court released the children to father, who lived in paternal grandmother’s home. The court ordered visits for mother, to be monitored by a DCFS-approved monitor. Mother and father lived separately because in 2005, after her landlord had threatened to evict her due to father’s loud music and many visitors, mother obtained a restraining order against father, claiming that he had hit her.
The court granted the Department’s petition in May 2006, declaring the girls dependent children of the juvenile court, after mother submitted the matter on the DCFS reports. The court ordered reunification services for mother, including continued DCFS-monitored visits and individual counseling, in which mother was to address anger management.
In October 2006, the girls were again detained after the police were called to paternal grandmother’s home due to a physical altercation between father and his sister’s boyfriend, who reported that father and several gang members had beaten him. The Department filed a subsequent petition for juvenile court jurisdiction, later sustained, alleging father’s altercation with his sister’s boyfriend, father’s frequent alcohol abuse and his allowing known gang members to frequent the home, where they consumed alcohol and illicit drugs. The police reported to the Department that officers had been called to father’s home seven times since the children were placed with him, and that father’s garage appeared to be a gang “hang-out.” When officers arrived to arrest father for assaulting his sister’s boyfriend, they observed approximately 10 known members of the “Toonerville” gang fleeing the scene, and found marijuana and drug paraphernalia in the home within access of the children. The Department reported that a warrant had been issued for father’s arrest, and that his whereabouts were unknown. The children were placed with paternal cousin Juan S.
All concerned in the case, including Juan, referred to Juan as an uncle, but Juan testified in 2007 that he is father’s cousin.
In November 2006, the DCFS social worker learned that while the children resided with father, mother had allowed him to monitor her visits, rather than arrange for a DCFS-approved monitor as ordered by the juvenile court, despite the restraining order that prohibited father from having contact with mother. In addition, paternal grandmother reported having seen the children in a car with mother and a friend who was unknown to the Department and who was not an approved monitor. Mother admitted to the social worker that although she had been aware of father’s drinking problem and his arrest for assault in September, she failed to notify the Department, because she did not know that father’s behavior presented a child safety issue. The Department also learned that mother had been arrested for possession of an illegal substance, placed on probation and ordered to complete a drug treatment program with testing. On October 19, 2006, she tested positive for amphetamines and methamphetamines.
In November 2006, the Department reported that mother had attended 13 sessions of a parenting program since July 2006, but her instructor reported that she had made minimal progress. Mother’s therapist reported that mother had started individual counseling in July 2006, but she denied drug use, and failed to tell the therapist the reason for her arrest. The therapist recommended that mother continue with individual counseling, enroll in a 12-step Narcotics Anonymous group with mandatory drug testing, and enroll in an anger management group.
In December 2006, the Department reported that mother had been dismissed from her parenting program due to lack of attendance and payment of fees. Mother had failed to show for two random drug tests in November, and had missed her individual counseling sessions since her arrest in October. She was 30 minutes late for her first monitored visit since the children’s second detention, scheduled for December 1, 2006, and was asked to sign a visitation guideline letter informing her that if she were more than 10 minutes late in the future, the visit would not take place. She signed the letter and was given a copy of it. Mother was 25 minutes late to the second monitored visit. The third visit was cancelled when the children left after waiting 35 minutes. The next day, mother forgot to attend a probation hearing and was arrested. In the meantime, the children were thriving under the care of Juan S, whom they called, “Daddy.” The Department recommended that mother’s reunification services be terminated.
The subsequent petition was sustained December 28, 2006, the same date set for the six months review hearing, which was contested by mother. Mother testified that she continued in individual counseling, in which she addressed anger management and other issues, but admitted that she had not resumed her sessions. Mother claimed that she arranged to start her sessions again in mid-December, but admitted that she cancelled the December appointment. Mother claimed that she had completed a parenting course, but did not receive a certificate due to nonpayment of fees. Mother admitted that she knew that father had attacked his brother with a chair in September, when the children were still living with him, and that she failed to report the incident to the Department. Mother admitted that she had used methamphetamine since she was 13 years old, and had been arrested in October for possession of methamphetamine. She had not yet entered a drug treatment program, but stated that she was willing to enroll in a six-month program. She tested positive in a random test in October, and failed to appear for two tests in November. She had not been tested since then.
See Welfare and Institutions Code section 366.21, subdivision (e). All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
Mother denied that she and father were gang members, but admitted that both of them associated with gang members. She claimed that she had arrived for monitored visits three times since December 1, 2006, admitting to having been late on two occasions -- 30 minutes on one occasion and 35 minutes the day the children left without a visit.
The court found by a preponderance of the evidence that the return of the children to mother’s custody would create a substantial risk of detriment to their physical and emotional well-being. The court found by clear and convincing evidence that mother had not made significant progress in resolving the problems that led to removal, in that she had not demonstrated the ability to complete the objectives of the treatment plan and provide for the children’s safety, protection and physical and emotional well-being. The court found that mother’s recent drug use was an exacerbating factor, further demonstrating her inability to comply with the court-ordered treatment plan. The court found that there existed no substantial probability that the children would be returned to their parents within six months, and terminated family reunification services. The court scheduled a permanency planning hearing for April 2007, pursuant to section 366.26. Although the court ordered mother to return for that hearing without further notice, mother was served with written notice prior to adjournment.
The children’s attorney requested that the court reduce mother’s visits and order her to have no telephone contact with the girls, because mother had confused them by telling them they would be going home soon. The court ordered that telephone calls be monitored, and reduced the visits to bi-monthly. Mother was ordered to apprise the social worker if she was not going to attend scheduled visits.
Juan S. was granted de facto parent status in February 2007. In a report prepared for the April permanency plan hearing, the Department reported that Juan and his fiancée were committed to adopting the girls. Juan had taken courses in the adoption process at a local college. He was employed as an electrician, after having served honorably in the Army. Juan lived in a separate apartment attached to his parents’ home, and his fiancée, a nursing student, lived nearby with her parents. They had known the girls since birth, and enjoyed the support of friends and family, many of whom lived nearby and visited or babysat often. The social worker observed the girls with the prospective adoptive parents, noting a strong attachment, as well as positive and affectionate interaction. Although the girls were just two and four years old, the older child was able to express that she liked where she lived and that she loved her caregivers, calling them “daddy” and “mommy mimmi.” The social worker observed that the younger child appeared to be happy.
The section 366.26 hearing was continued to August 1, 2007. The Department and mother’s attorney reported that mother had visited the girls in a therapeutic setting in July, after three months in an in-patient treatment program, during which she had agreed to have only telephone contact with the children. At the August hearing, the caregivers, who had married by then, applied for a restraining order against mother. In the application, Juan alleged that mother had telephoned him in June, “and stated that she ‘would do whatever it takes to get [her] kids back’ whether it was to hurt or not hurt [Juan], ‘death if it needs be.’” Juan also told the court that the girls acted out in school after visits with mother. The court asked mother whether she was on probation or parole. Mother denied that she was, but informed the court that she had been arrested two months before for petty theft and placed on summary probation. The court then granted a temporary restraining order, ordering mother to stay away from the caregivers, except for visitation. The section 366.26 hearing was continued to August 16, 2007, and mother was ordered to appear on that date.
Mother did not appear at the section 366.26 hearing, and did not contest the allegations of the application for restraining order. The children’s counsel joined with the Department in requesting the termination of mother’s parental rights and the denial of her request for visitation. Mother’s counsel requested the court to find an exception under former section 366.26, subdivision (c)(1)(A).
Section 366.26 was modified in 2007, and the provisions of subdivision (c)(1)(A) are now found in subdivision (c)(1)(B)(i). (See Stats. 2007, ch. 583, § 28.5.) Subdivision (c) provides exceptions to the requirement that, once the court finds by clear and convincing evidence that the child is adoptable, parental rights must be terminated at this stage.
The court extended the restraining order for a three-year period. The court found that the children were adoptable, that termination of parental rights would not be detrimental to either child and that a return to parents’ custody would be detrimental to the children. Based upon its findings, the court terminated both parents’ parental rights and denied mother’s request for visitation. Mother timely filed a notice of appeal from the order.
DISCUSSION
Mother contends the court erred in rejecting the exception to termination of parental rights set forth in section 366.26, subdivision (c), which provides that parental rights should not be terminated if the court finds a “compelling reason for determining that termination would be detrimental to the child due to . . . [the fact that] [¶] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B).)
Mother contends that because the juvenile court made no express findings regarding the asserted exception, it must have made implied findings. She infers an implied finding in her favor on the first prong of the exception, viz., maintenance of regular visitation and contact, and an implied finding against her on the second prong, viz., maintenance of a relationship with mother would be beneficial to the children. (See § 366.26, subd. (c)(1)(B)(i).) Mother then argues that the order must be reversed, because no substantial evidence supported the court’s implied finding that mother had not met her burden to prove that a relationship would be beneficial to the children.
Because the court found the children adoptable, it was mother’s burden to prove that termination of parental rights would be detrimental to the children. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) “‘Adoption, where possible, is the permanent plan preferred by the Legislature.’ [Citation.] If the court finds a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of the specified exceptions. [Citation.] The parent has the burden to show termination would be detrimental to the minor under one of those exceptions. [Citation.]” (In re Valerie A. (2007) 152 Cal.App.4th 987, 997; § 366.26, subd. (c)(1).) Mother did not appear at the hearing and presented no evidence. As the party with the burden of proof, mother was required to go forward by producing evidence on the facts to be proven, and her failure to do so compelled a finding against her. (Evid. Code, § 550.) Thus, we do not agree that the juvenile court made a finding in mother’s favor as to either prong of the exception. The only implied finding inferable from the record is that mother failed altogether to prove the elements of the exception. (See § 366.26, subd. (c)(1)(B)(i).)
To demonstrate that no substantial evidence supported the alleged finding, mother has summarized the facts from reports submitted by the Department prior to the contested section 366.21 hearing of December 28, 2006. Mother cites evidence that she adequately cared for the girls when they were in her custody, and notes the lack of evidence of physical abuse. Mother also points to evidence that she continued in individual counseling, in which she demonstrated a genuine concern about how to properly care for her children.
Mother’s substantial evidence challenge to her fitness as a parent comes too late. In the December 28 hearing, the court found that mother had not complied with the reunification plan, that there would be a substantial risk to the children’s well-being to return custody to mother and that there was no substantial likelihood that the children would be returned to her within six months. To challenge the evidence supporting the court’s findings, mother was required to petition for extraordinary writ to review the December 28 order. (§ 366.26, subd. (l).) Because mother did not do so, she may not do so now. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816; In re Merrick V. (2004) 122 Cal.App.4th 235, 247-248.) The December 28 order resulted in a rebuttable presumption of unfitness. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) Because that presumption went unchallenged, termination of parental rights was “relatively automatic” once the court found the children adoptable. (In re Zacharia D. (1993) 6 Cal.4th 435, 447.)
Mother also contends that she proved the children would benefit from continuing the relationship. (See § 366.26, subd. (c)(1)(B)(i).) To come within the exception, mother was required to show that the “regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent,” such that “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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Because the “[i]nteraction between natural parent and child will always confer some incidental benefit to the child,” mother was required to show that the children’s attachment to her was significant -- the kind that would arise “from day-to-day interaction, companionship and shared experiences,” and result from mother’s “attention to the [girls’] needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]” (Ibid.)
Mother refers to evidence taken from DCFS reports filed prior to the section 366.26 hearing, showing several monitored visits and telephone calls. Mother points to evidence that she had 48 visits with the children, only one of which had a negative effect on them. However, that evidence appeared in a report dated October 27, 2006, a time when mother was visiting the children at father’s residence, in violation of the juvenile court’s order and the restraining order she had obtained in 2005. The juvenile court was entitled to reject any suggestion that visits monitored by an assaultive, alcohol-abusing father who associated with gang members showed a relationship that promoted the children’s well-being.
After the children were detained from father, mother did not start monitored visits until December 2006. She notes that at one such visit, she brought pizza and read letters she had written to the children; at the next visit, she brought birthday cake, and the children behaved toward her in an affectionate manner. “However, to establish the exception . . ., the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The burden is a difficult one, particularly where the children are very young and the parent has not progressed beyond supervised visits, because it requires proof of exceptional circumstances to overcome the presumption in favor of adoption. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Mother’s friendly visits did not carry that burden.
Mother cites her attorney’s argument that she had a substantial bond with both girls. “It is axiomatic that the unsworn statements of counsel are not evidence. [Citations.]” (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.)
We observe that mother does not challenge the evidence supporting the three-year restraining order issued by the court at the time her parental rights were terminated. The court found that the need for a restraining order and evidence of a death threat against the children’s caretaker were not indicative of a satisfactory relationship between mother and her children. Mother did not refute the death-threat allegation, and does not assign the court’s finding as error.
In sum, it was mother’s burden to overcome the presumption favoring adoption, but she failed to present evidence to support the exception which she asserted. After reviewing the entire record, we conclude that substantial evidence supported the juvenile court’s finding that mother failed to meet her burden of proof.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.