Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK38750, Richard Hughes, Juvenile Court Referee.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, J.
S.W. appeals from an order under Welfare and Institutions Code section 366.26 terminating her parental rights to her son D. She contends that DCFS's failure to facilitate visits, as ordered by the court, violated her right to due process and deprived her of the ability to establish the "benefit" or "visits" exception to termination of parental rights (§ 366.26, subd., (c)(1)(b)(i)), requiring reversal. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Facts
D. was born on October 10, 2005. In March 2006, when D. was five months old, appellant was incarcerated on drug charges. She left D. in the care of his 17 year old sister N., who was herself a dependent child of the court and who had run away from her placement. This situation came to the attention of DCFS in September 2006, when N. took D. to a mall and was arrested for shoplifting. D.'s father was also incarcerated, and police and DCFS were unable to find a relative to care for D. He was detained and a section 300 petition filed.
Notably, one of the sustained allegations in the section 300 petition concerning N. was that appellant would leave N. and her four other children for extended periods of time, and would make N. care for the younger children.
The petition was sustained on December 6, under subdivision (b), with factual allegations that appellant had failed to make an appropriate plan for D.'s care while she was incarcerated and that she had failed to reunify with several older children. No reunification services were ordered for either parent. (§ 362.5, subd. (b)(10).) A section 366.26 hearing was set for April 2007, but did not take place until much later, in February 2008. (The delays were often caused by problems with notice to the father.)
At the detention hearing (September 19, 2006) and at the December 6 hearing, the court ordered monitored visits for appellant.
Appellant had a baby while she was incarcerated and in December 2006, the Department of Corrections placed her in the Family Foundations Program, an alternative sentencing program for mothers and pregnant women. In April 2007, she filed a section 388 petition informing the court about her placement and asking that D. be placed with her in the program. The petition was denied without a hearing. On April 4, DCFS wrote that the parents had made little attempt to contact DCFS to inquire about D., and also wrote that appellant had contacted the social worker, apparently just that one time.
Appellant's only visit with D. during this incarceration was on June 20, 2007, the date of her graduation from Family Foundations. At the section 366.26 hearing, appellant testified that she had had no visits prior to June 20 because the social worker did not want to transport D. She testified that she arranged the June visit with D.'s foster father. DCFS described the circumstances differently, writing that the social worker and the foster father together arranged the visit. DCFS also described the visit: D. did not remember appellant and was not initially comfortable with her, but she showed him family pictures and played with him, and by the end of the visit they had good communication.
At a June 23 hearing, appellant for the first time complained that she had not been getting visits with D. because the social worker was unwilling to transport him. The court once again ordered visits, and also ordered that DCFS facilitate visits.
This case is thus distinct from In re J.N. (2006) 138 Cal.App.4th 450, and In re Joshua M. (1998) 66 Cal.App.4th 458, on which DCFS relies. Those cases hold that a parent denied reunification services is not entitled to visits. Appellant was not entitled to visits, but the court did order visits, and eventually ordered DCFS to facilitate visits, so that DCFS's compliance with the court order is a legitimate issue.
Appellant was paroled in late July. In August, DCFS reported on a conversation with her. She said that she wanted to comply with court orders and wanted to visit her children. She did not have a car, but friends would transport her. She wanted to work with the foster family on monitored visits. DCFS also reported that D.'s foster father gave appellant his cell phone number.
In September, appellant filed another section 388 petition. It too was denied.
Appellant had a visit with D. in September, apparently one she set up with the foster father. The foster father reported that she brought D.'s 13 year old half brother R. with her, that the two children played, and that appellant and D. interacted in a positive manner. There was a similar visit on October 10.
Appellant's testimony was that she also visited in July and August and that she wanted to visit more often, but that the foster father said that the social worker had said that she was only permitted to visit once a month. She also seems to have testified that (either directly through statements to her or indirectly through statements to the foster father) DCFS represented that she was only entitled to one visit a month.
Appellant testified that she did not ask her social worker for increased visits because she did not know that she could discuss this with the social worker, but thought that she had to go to court to get the schedule changed. She planned to make the request at the next court date, in November.
Appellant went back to prison in October and remained there until January 24. She had no visits during this incarceration and no contact with DCFS, except that in late January the social worker had a voice mail message from a man identifying himself as appellant's boyfriend and asking about D.'s placement.
The record has conflicting accounts of this incarceration. DCFS first reported that appellant was arrested on September 27 on a felony and was released on bail with a court date of October 22. DCFS later reported: appellant stopped at the Ontario Mills Mall on her way home from the October visit. R. was arrested for petty theft. When she went to the police station to get him, she was arrested on a parole violation, being out of Los Angeles County. At the section 366.26 hearing, appellant testified similarly, that she violated parole by leaving Los Angeles County to visit D. She also testified that she did not know that she was not allowed to leave the county.
Appellant later told DCFS that she did not call because she did not have telephone privileges, but that she had twice left messages for her lawyer, and had asked family members to call. They had assured her that many messages had been left for the social worker. As to visits, appellant testified that nobody brought D. for visits and that she did not know how to arrange them.
In December 2007, after several very successful visits with a potential adoptive family, D. was placed in that home.
After her release, appellant contacted the foster family and sought to arrange a visit. The foster family provided a phone number for D.'s new, potential adoptive family. Appellant called, believing that this was another foster family, and seeking to arrange a visit. She also called DCFS. The social worker returned her call in February. Appellant testified that she had no visits between her release at the end of January and the section 366.26 hearing, which began on February 20.
The court found that appellant had not been able to develop a parental relationship with D. and did not have one, and terminated parental rights.
Discussion
To avoid termination of parental rights under the exception appellant cites, a parent must show "that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466-467.) "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. (1994) 27 Cal.App.4th 567, 575.) In other words, the parent must establish "a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) We review the trial court's decision for substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Appellant does not deny that such evidence was lacking, but argues instead that DCFS's failure to facilitate visits -- indeed, its interference with visits -- prevented her from forming a relationship with D. and establishing that the exception applied. We cannot see that appellant's lack of relationship with D. can be laid at DCFS's door.
To begin at the beginning, appellant presented no evidence that she visited with D. in the seven months between her incarceration and his detention. Of course, DCFS had nothing to do with that.
Appellant saw D. only once in the nine months between his detention and the court order that DCFS facilitate visits. She testified that the social worker refused to transport D. for visits, but also testified that she was able to arrange a visit directly with the foster father. There is no apparent reason why that could not have been done sooner. Moreover, there was no indication that during that period appellant sought redress from the court or help from her lawyer, although the fact of the section 388 petition tells us that she was in touch with her lawyer, and was ably represented.
The order that DCFS facilitate visits was made just prior to appellant's release. At that point, DCFS knew that appellant had a phone number for the foster family and was able to arrange visits directly, so that there was no need to "facilitate." As appellant reads the record, DCFS told her that she was limited to one visit a month, thwarting her visits. Even if that was so, we cannot see that DCFS was responsible for the lack of visits. Appellant did not talk to either the social worker or her lawyer about the visits, but chose to wait until the next court date. More importantly, appellant was out of custody for only three months. Even weekly visits during that short period, after such a long period of separation, could not have enabled her to establish the requisite relationship with D.
Nor can we see that DCFS is at any way at fault for not facilitating visits during appellant's 2007-2008 incarceration. Her rather dubious testimony was that she could call family members (and receive information from them) but could not call DCFS, and that she called her lawyer to no avail. At any rate, she did not effectively contact DCFS, leaving it unable to facilitate visits. Finally, any failure to facilitate visits during the short period between appellant's second release from prison and the section 366.26 hearing could have had no effect at all.
Disposition
The order terminating parental rights is affirmed.
We concur: TURNER, P. J., MOSK, J.