From Casetext: Smarter Legal Research

In re D.L.

California Court of Appeals, Second District, Fifth Division
Apr 20, 2009
No. B212500 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK63457, Anthony Trendacosta, Commissioner (pursuant to Cal. Const., art. I, § 21).

Amy Z. Tobin, under appointment by the Court of Appeal, for Objector and Appellant I.L.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Objector and Appellant J.C.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

J.C. (mother), mother of nearly three-year-old D.L. and his sister, 18-month-old F.L, appeals from the juvenile court’s orders denying her Welfare and Institutions Code section 388 petition and the termination of her parental rights under section 366.26. I.L. (father), father of D.L. and F.L., joins mother’s arguments. We affirm.

All statutory citations are to the Welfare and Institutions Code unless otherwise noted.

BACKGROUND

On May 24, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300 alleging, among other things, that mother had a five year history of drug use including heroin and methadone that rendered her incapable of caring for newborn D.L, who had tested positive for methadone at the time of his birth. The petition also alleged that father had failed to take action to protect D.L. when he knew of mother’s illicit drug use.

The Department’s May 24, 2006, Detention Report states that mother admitted that she was using heroin during her pregnancy and that she was aware that drugs were harmful to her baby. Mother stopped using heroin during the last few months of her pregnancy and entered a methadone program at the beginning of March 2006. After his birth, D.L. suffered from withdrawal symptoms and was placed in the neonatal intensive care unit. The juvenile court detained D.L. and ordered family reunification services for mother and father. The juvenile court also ordered monitored visits for mother and unmonitored visits for father.

The Department’s June 28, 2006, Jurisdiction/Disposition Report states that father admitted that he used heroin for about 10 years, but claimed to be “clean,” having last used drugs in 2002. The report also details father’s criminal history. J.W., maternal grandmother, reportedly was willing and able to care for D.L. as long as necessary and would adopt D.L. if his parents failed to reunify with him. Mother stated that she visited D.L. in the hospital daily.

At the jurisdiction/disposition hearing, mother waived her trial rights, the section 300 petition was amended to strike the allegations against father, and the juvenile court sustained the amended petition. The juvenile court placed D.L. in the custody of the Department to be later placed with his maternal grandmother. The juvenile court ordered family reunification services for mother and father, including monitored visits for mother and unmonitored visits for father.

In its January 9, 2007, Status Review Report, the Department reported that D.L. was placed with his maternal grandmother on July 16, 2006. From July 6, 2006, to November 10, 2006, mother was an inpatient at the Tarzana Treatment Center. During that time, mother saw D.L. once a week for three hours. Mother variously reported that, after she was released from the treatment center, she had four to five weekly visits with D.L. for approximately four hours, she saw D.L. every day, and she saw D.L. for three-hour visits three days a week. All of the weekly drug tests mother took at the treatment center and after her release had been negative. Mother reported that she attended Narcotics Anonymous, Cocaine Anonymous, or Alcoholic Anonymous meetings three times a week.

In its January 23, 2007, Interim Review Report, the Department noted that mother appeared to be doing well in her treatment, but recommended that the juvenile court order mother to participate in a program with relapse prevention. On February 21, 2007, the juvenile court ordered that mother could have half day visits outside of J.W.’s home.

On June 6, 2007, mother had an unmonitored visit with D.L. in J.W.’s home. J.W. was not home. During the visit, mother used heroin. J.W.’s 11-year-old daughter, mother’s sister, was in the home and called J.W. concerning mother’s behavior. J.W. returned home to find that mother had locked herself in the bathroom with D.L. Mother was “high on heroin” and stated that she planned to kill herself. Drug paraphernalia and broken glass were scattered throughout the house. Mother threatened to hurt others in the home with a hammer. J.W. called the police and mother was arrested. D.L. was not removed from J.W.’s custody because mother was permitted unmonitored visits in J.W.’s home, and J.W. responded appropriately to mother’s actions by calling the police. According to the Department’s June 27, 2007, Detention Report, the Department learned after mother’s arrest that mother, while “under the influence,” had been in two accidents while driving with D.L. in the car. The insurance company deemed the car “totaled.” A subsequent report states that mother engendered D.L.’s life by driving J.W.’s car while under the influence of heroin and getting into an accident. The report states that D.L. had to be seen at the emergency room for possible injury.

According to the Detention Report, shortly after mother’s arrest, J.W. confirmed to a social worker her willingness to adopt D.L. if mother was unable to reunify with him. Over the following weeks, however, J.W. called the social worker frequently and stated that she did not think that she could keep D.L. because she was “overwhelmed with what happened and her 11-year-old daughter was traumatized by the circumstances.” The social worker made “numerous attempts... to find ways” to help J.W., including providing childcare, and explained to J.W. that if D.L. was removed from her home, he likely would be adopted outside of the family. Nevertheless, J.W. “insisted” that D.L. be removed.

On June 23, 2007, D.L. was removed from J.W.’s home and placed with “fost-adopt” parents. J.W. stated, “I cannot do this and I know it’s the best thing for him.” J.W. stated that placement in a fost-adopt home would give D.L. a better life. The Detention Report states that mother was then six months pregnant and that D.L.’s fost-adopt parents were willing to have the baby placed in their home when born.

The Department’s July 18, 2007, Status Review Report states that mother admitted a prior conviction for petty theft for which she served eight months in state prison. Mother was released on parole in March 2005 and had one year of parole remaining. Mother was detained at the West Valley Detention Center on a parole violation based on her arrest for possession of heroin and child endangerment. Father reportedly was incarcerated in state prison.

Mother had a lengthy criminal history.

The Status Review Report states that mother received inpatient drug counseling at the Tarzana Treatment Center from July 7, 2006, to November 10, 2006. Mother participated in drug rehabilitation treatment at Behavioral Health Services, Inc. from March 1, 2007, until May 21, 2007, when she was discharged for not returning for treatment. While at the Tarzana Treatment Center, mother had a weekly three-hour monitored visit with D.L. According to mother, after her discharge from treatment, she had four to five weekly visits with D.L. for in excess of four hours. Mother later stated that she saw D.L. every day. Father was reported to be serving a four year prison term.

The Status Review Report states that J.W. had contacted the Department and stated that she wanted D.L. back. J.W. stated that she realized how much she loved and missed D.L and that she made a huge mistake in having him removed from her home. The Department stated that J.W. clearly loves D.L., but noted that J.W. had been uncooperative with the Department in such matters as scheduling doctor’s appointments and visits while D.L. was placed with her and expressed doubt about J.W.’s commitment to cooperating with the Department and following through with D.L.’s adoption. The report states that D.L. appeared to be doing very well and had adjusted well in his current fost-adopt home.

The Department’s August 29, 2007, Interim Review Report states that D.L. was “thriving” in his new placement. D.L. appeared well-nurtured and had a very happy disposition. D.L.’s caregivers were reported to have provided D.L. with a safe, nurturing, and stable home and to have appropriately met his physical, medical, educational, and emotional needs. D.L.’s caregivers affirmed that they would like to proceed with adopting D.L. and his unborn sibling. J.W. was reported to feel guilty for having given up D.L. J.W. stated that she had made financial changes in her life that would better enable her to care for D.L.

While in prison, mother gave birth to F.L. F.L. was born healthy with a negative toxicology screening. On September 18, 2007, the Department filed a section 300 petition alleging that mother had a six year history of substance abuse including heroin and methadone that rendered her incapable of providing F.L. with regular care and supervision. The petition alleged that F.L.’s sibling, D.L., had received reunification services due to mother’s substance abuse. The petition also alleged that F.L.’s father, I.L, was incarcerated and had failed to provide F.L. with the necessities of life including food, clothing, shelter, and medical care. The Department detained F.L. in foster care with D.L.

On February 28, 2008, the juvenile court terminated reunification services as to D.L., sustained an amended petition as to F.L., and denied mother and father reunification services as to F.L. The juvenile court set both matters for a section 366.26 hearing on June 26, 2008.

The Department’s June 26, 2008, section 366.26 report states that mother last visited D.L. and F.L. on December 21, 2007. Father had not visited the children. An adoption assessment had been completed for D.L. and F.L. who were determined to be adoptable. D.L. and F.L. remained in the home of their foster parents, where they were doing well. The juvenile court continued the section 366.26 hearing.

On August 19, 2008, mother filed a section 388 petition requesting reunification services with D.L. and F.L. and placement of the children with her at the Shields for Families (Shields) drug treatment program. In her request, mother stated that she was no longer incarcerated, that she had been sober for 14 months, and that she had been enrolled in the Shields drug treatment program since July 1. According to mother, Shields allows children to stay with their parents.

Attached to mother’s section 388 petition is an August 13, 2008, letter from Shields that states that mother enrolled in the program on July 1, 2008, and was living on site. The letter also states that mother attended treatment sessions five days a week for eight hours a day, that the program is 12 to 24 months, and that the services provided include alcohol and drug education, relapse prevention, life skills, domestic violence, anger management, relationships, AIDS/HIV education, women’s issues, health education, parenting education, child development, grief and loss, family education, group therapy, individual counseling, and individual therapy. Among other things, the letter states that mother was making satisfactory progress and that all of mother’s weekly, random urinalysis tests had been alcohol and drug free.

The Department’s September 18, 2008, Interim Review Report responded to mother’s section 388 petition. In an interview on September 12, 2008, mother reported that after her release from prison, she enrolled in Shields and that she was doing well in her rehabilitation program. When the social worker asked mother what her plans were if D.L. and F.L. were returned to her, mother responded, “I can have lunch with them and the program will take care of them during the day.” Asked her plans after she left Shields, mother responded, “Oh, they will keep you in this program forever.” Asked what she meant by “forever,” mother responded, “Oh, they will just keep me in this program, I can just stay in the program.’” Asked what measures she was learning to prevent relapse after she left the safety and security of Shields, mother was unable to answer.

The report states that a social worker discussed with mother D.L.’s speech and occupational therapy programs and asked how she would be able to “handle this.” Mother responded that Shields had an early intervention program, but could not give details about the program. Mother stated that the program would take care of her children for her. Mother later admitted that she should know “these things.”

The report notes that mother claimed 14 months of sobriety, but that 12 of those months were during her incarceration. The two most recent months of mother’s sobriety had been in the context of a live-in program where mother had to sign in and out and be accountable for her whereabouts. In the program, mother did not live in the community where she had to face stress, make decisions, and live soberly on a daily basis. Moreover, due to residing in a drug rehabilitation program, mother did not have access to illegal substances. Shields’s senior treatment supervisor stated that she believed mother needed more time in treatment and that if mother’s children were then returned to her, it could be too stressful for mother. The social worker asked mother why the Shields program was different from previous programs that she did not complete. Mother responded that the previous inpatient program she competed was “quick and too hurried.”

The Department’s report states that mother began using drugs at age 15. In March 2006, mother stopped using heroin when she enrolled in the BAART Methadone program. Prior to that program, mother spent five days in detox at the American Recovery Center before leaving with other patients “to go and use.” Mother spent three weeks at another program before her mother picked her up and took her home.

Mother was an inpatient at the Tarzana Treatment Center from July to November 2006. While at the treatment center, all of mother’s drug tests were negative, and mother stated that she was ready to assume custody of D.L. when she completed her program. A letter from the treatment center’s clinical supervisor upon mother’s discharge stated that mother, “with a determined mind,” was able to accomplish her goal of getting her life back on track and regaining the trust and support of her family. The letter stated that mother had been voted “role model” by her peers.

When mother completed the program at the Tarzana Treatment Center, the Department recommended that she enroll in a relapse prevention program, individual counseling to address her “case issues” and long term addiction, and to continue participating in a 12-step program. At the end of January 2007, the social worker received a letter from Behavioral Health Services stating that mother had enrolled in outpatient therapy. The program recommended for mother was a nine-month intensive outpatient treatment program that consisted of attending two group counseling sessions and one individual session weekly. The program had monthly random drug testing. Mother began that program on March 1, 2007, and was discharged on May 21, 2007, for not returning to treatment. During the three months mother was in the program, the sole random drug test she took was negative. Less than three weeks after mother left the program, she relapsed and was arrested for being under the influence of heroin while caring for D.L. in maternal grandmother’s home and while pregnant with F.L. Prior to her arrest, mother regularly complained angrily that the Department had been wrong for taking D.L. from her and minimized her drug addiction.

The Department’s report states that D.L. and F.L. were “strongly bonded” with their caregivers who had provided them with a stable and loving family and had ensured that all of their needs were being met. Mother visited the children weekly after being released from prison and was reported to be appropriate during the visits. The social worker observed a monitored visit on September 12, 2008, and reported that D.L. largely ignored mother during the visit. D.L. did not show mother affection and only engaged with mother occasionally as she read to him. The social worker described the visit as appearing to be more like a visit between strangers. The social worker did not observe any bonding. F.L. was easier for mother to engage with as F.L. was reported to be very friendly and willing to play with anyone who gave her attention. At the end of the visit, neither child asked to continue the visit. When the caregiver arrived, D.L. and F.L. became more animated and D.L. kissed his caregiver.

In an October 23, 2008, letter, mother’s therapist at Shields stated that mother continued to make progress in her treatment plan goals of learning to express her feelings; learning anger-management strategies; maintaining her sobriety by communicating her needs; and exploring past events, behaviors, and decisions to make better present and future choices. The therapist stated that mother’s attendance had been excellent with no unexcused absences, mother was on time for each session, and mother participated fully with the therapist to meet mother’s goals. Further therapy was still needed, however.

During the period from July 1, 2008, to October 27, 2008, mother took 29 drug and alcohol tests at Shields. All tests were negative.

On October 27, 2008, the foster care social worker for D.L. and F.L. observed a one-hour monitored visit between mother and her children at the request of the case social worker and in connection with mother’s request for services and greater visitation. The foster care social worker reported that mother brought the children food, helped feed them, changed their diapers, and played with them. Mother was energetic and talkative throughout the visit. The children made eye contact with mother and responded to her with smiles, laughter, words, and questions. The children did not appear to be reserved or shy around mother, but neither child called out to mother. Mother appropriately corrected D.L.’s behavior as needed.

The foster care social worker further stated that mother gave a great effort in teaching, directing and playing with her children. Mother was reported to be appropriate and affectionate. D.L. and F.L. responded to and liked mother’s attention, but did not seek to be held or comforted by her. The children engaged with mother, and the children neither sought to hang on to her nor were aloof toward her.

The Department submitted a last minute report on November 5, 2008, concerning mother’s visits with D.L. and F.L. The last minute report states that mother had visited with D.L. and F.L. 14 times since her release from prison. The visits reportedly went well. The report states that mother used the visits wisely and made every attempt to keep the children busy and engaged. Mother tried to spend equal time with both children and brought them toys and food. Mother was appropriate throughout the visits; she arrived early for each visit and ended the visits on time. The report states that the children did not appear to show signs of exhilaration or excitement when first seeing mother when the visits commenced and did not cry when the visits ended. The children reportedly reacted as if the visits were routine visits with a woman who was nice to them, brought them food, played with them, and brought them toys.

The report states that although F.L. was enthusiastic and friendly and appeared to enjoy her time with mother as mother played with her, fed her, and read to her, there did not appear to be a bond between them. F.L. was reported to be very engaging with anyone who played with her or gave her attention and did not “behave with mother any differently in quality or tone than when some other visitor engages her.” F.L. interacted with the social worker in the same manner as she did with mother. When F.L. was with her fost-adopt parents, in contrast, “there is a very obvious strong and loving bond that is apparent without question.”

D.L. reportedly was more reserved and cautious around mother during the visits. D.L. ignored mother at times when she attempted to engage him. Although at times D.L. engaged with mother and enjoyed playing with her, he showed a “complete lack of bonding.” When D.L. spoke with mother, he spoke as if he was speaking with a stranger. D.L. reportedly was very engaging and comfortable in the presence of others such as his speech therapist, occupational therapist, and others involved in his development.

The last minute report concludes that “[t]he visits appear to have had little to no effect on the minors in terms of bonding or connecting to mother.... The visits appear to be more perfunctorily performed for them than that the children are excited to be with mother. The [sic] show no joy when mother enters the room for the visit and they do not show any emotion when she leaves. They leave the visit as they enter it; unmoved and unattached. When the visits end, and caregiver picks the children up, they laugh, screech, scream, point, jump, laugh, and show all sorts of emotions that children show to a caregiver who clearly love [sic] them and keeps them safe and is committed and invested in every aspect of their life [sic].”

The Department’s November 5, 2008, Interim Review Report describes a monitored visit between mother and her children that took place on October 21, 2008. The report states that neither D.L. nor F.L. was “overly excited” to see mother at the outset of the visit. Mother brought D.L. his favorite snack and brought D.L. and F.L. toys. Mother was “very loving” toward the children during the visit, attempted to keep them entertained, and attempted to spend equal time with both children. Although mother referred to herself as “mother” during the visit, neither child referred to her as mother. F.L. interacted appropriately with mother, laughed, played, and seemed to enjoy the visit. When mother sought to play with D.L. with one of the toys she brought him, he refused. D.L. eventually indicated to mother that he wanted her to read to him. D.L. appeared to enjoy the visit, but preferred playing alone to interacting with mother. Neither child was affected by mother’s departure at the end of the visit. When the children’s foster father arrived, the children smiled and laughed. D.L. called his foster father “papa” and told him about the visit.

The Interim Review Report concludes that the visit went well with no problems. Mother was appropriate throughout the visit and the children seemed to enjoy themselves. Neither child seemed to have a strong bond with mother based on their interactions with her during the visit. Based on the monitor’s observation of the visit, the termination of visitation would not have a negative effect on either child.

At the hearing to terminate mother’s parental rights to D.L. and F.L. under section 366.26 and on mother’s section 388 petition, mother testified that that she lived with D.L. for about seven months before this case began. At the time of her testimony, mother was visiting her children once a week for an hour. During those visits, mother tried to do as much as she could. Mother brought the children snacks and foods they particularly enjoyed. Mother and the children read books, sang songs, and danced.

Mother testified that D.L. occasionally called her “mom.” F.L. had called her “mom” on more than one occasion. When mother first arrived for visits, D.L. and F.L. would give her a big smile. The children did not react when the visits ended because mother reassured them that she would see them again in a couple of days.

Mother stated her belief that her relationship with D.L. and F.L. was growing. Even though mother did not get to spend a lot of time with her children, she knew them. Mother knew what her children liked, she knew how they were, and she knew their personalities. Mother had a bond with her children because she was their mother. Mother believed that her children knew her and felt comfortable with her. F.L. would grab mother’s face, stare at her, and always kissed her. Mother could be “firm” with the children but was also was very playful with them.

Mother opposed adoption for her children because she believed that it would be in her children’s best interest to know their mother, the mother who was now sober and getting her life together. Mother believed that there would be something missing for her children if they could not see her—more so for D.L. who had known mother longer than had F.L.

In its written decision on mother’s section 388 petition and termination of parental rights under section 366.26, the juvenile court stated that after her release from prison, mother immediately entered a drug rehabilitation program and began to visit D.L. and F.L. regularly. The juvenile court noted that mother appeared to be more mature and serious than she did at the 12-month review hearing, and appeared to be sincere and committed to turning her life around. The juvenile court framed the issue before it as whether, given mother’s history of numerous failed attempts to complete programs, mother’s relapses, and the children’s best interests, it was too late to delay permanency for the children to see if mother’s latest attempt at sobriety would work.

As to mother’s section 388 petition, the juvenile court noted that mother had been complying with her drug program’s requirements and that visits had gone well. It stated, however, that while it was obvious that “circumstances may be ‘changing’... [they] may not have fully changed.” The juvenile court noted that mother had a history of doing well when under the strict supervision of court-mandated programs, only to relapse later.

The juvenile court stated that it “sense[d] that this time may be different.” In light of mother’s history, however, the juvenile court wondered what would happen once mother was out of formal supervision and exposed to the stressors that caused her multiple past relapses. The juvenile court foresaw a very long period to ensure that mother had rehabilitated before it would even consider returning D.L. and F.L. to mother if it were to extend reunification. Given the ages of the children and their special needs, the juvenile court found that delaying permanency was not in the children’s best interest and denied the section 388 petition.

As to the termination of parental rights, the juvenile court found that the Department had established by clear and convincing evidence that D.L. and F.L. were adoptable. The juvenile court ruled that the parental visitation exception to the termination of parental rights under 366.26, subdivision (c)(1)(B)(i) (section 366.26(c)(1)(B)(i)) did not apply. In so ruling, the juvenile court found that although mother had visited her children regularly since her release from prison, she had not progressed beyond monitored visits. The juvenile court did not doubt that the children enjoyed the visits, but noted that the children were thriving in the home of the caretakers, who had done an excellent job of addressing the children’s special needs and with whom the children had a strong bond. The juvenile court stated that D.L. had been detained at birth and that mother had never had custody of him, although she had resided with him for four months before her June 2007 relapse. F.L. had been detained at birth and resided with D.L. and their caretakers since birth.

The juvenile court ruled that neither parent had established the exception under section 366.2(c)(1)(B)(i). It stated, “Balancing the factors set forth in [In re] Autumn H. [(1994) 27 Cal.App.4th 567], this court cannot find that the children’s’ [sic] right to a permanent and stable home with the caretakers with whom they relate to as parents and have lived with is outweighed by the nature of the current relationship, which is, at best, a friendly visitor, as opposed to a parent fulfilling a parental role. Indeed, parent’s visits have never moved past monitored. It is the children’s’ [sic] needs that are paramount, not the parents. Time AND THE LAW mandate that they have permanence as soon as possible.”

DISCUSSION

I. The Juvenile Court Did Not Abuse Its Discretion In Denying Mother’s Section 388 Petition

Mother contends that the juvenile court abused its discretion in denying her section 388 petition. The juvenile court acted within its discretion in denying mother’s section 388 petition.

A. Standard of Review

We review the juvenile court’s denial of mother’s section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decision ‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

B. Application of Relevant Legal Principles

Section 388, subdivision (a), permits anyone having an interest in a dependent child to petition the juvenile court for a hearing to change, modify or set aside a previous order on the ground of changed circumstances or new evidence. If the petition shows changed circumstances or new evidence indicating that the proposed modification “may be” in the child’s best interests, the juvenile court must hold a hearing on the petition. (§ 388, subd. (c); Cal. Rules of Court, rule 5.570(e), (f).)

Section 388, subdivision (a) provides in pertinent part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”

At the hearing, “the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) That burden is heavy for a parent, as mother, seeking to regain custody of a child after the termination of reunification services. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]” (Id. at p. 317.) “It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)

1. Change of circumstances

The juvenile court did not abuse its discretion in concluding that mother failed to demonstrate a change of circumstances that would justify the granting of her section 388 petition. There was evidence that supported the juvenile court’s conclusion. Mother has a long history of drug abuse. At times, mother has participated in drug rehabilitation programs leading to periods of sobriety. Each period of sobriety was followed by a relapse. Mother’s most recently completed rehabilitation program was at the Tarzana Treatment Center, which program she completed on November 10, 2006. About seven months later, on June 6, 2007, mother used heroin during an unmonitored visit with D.L. in J.W.’s home. At the time, mother was pregnant with F.L. Mother locked herself in the bathroom with D.L. and stated that she planned to kill herself. Mother also threatened to hurt others in the home with a hammer. Apparently prior to this incident, mother was involved in two car accidents with D.L. in the car. On both occasions, mother was under the influence of heroin. D.L. had to be seen at the emergency room for possible injury. The car was “totaled.”

At the section 388 hearing, the juvenile court was presented with evidence that mother participated in a variety of programs while in prison and at Shields. Such evidence suggested that mother was serious about maintaining her sobriety. At the time of the section 388 hearing, however, mother had not completed her treatment at Shields and had not spent a day of sobriety outside of a highly controlled setting—first in prison, then at Shields. Presented with these circumstances, the juvenile court did not abuse its discretion in finding that while the circumstances may have been changing, they had not changed.

2. Best interests of the children

Moreover, the juvenile court did not abuse its discretion in finding that it would not be in the children’s best interest to order reunification services or to place the children with mother at Shields. In determining the best interests of a child, a court may consider such factors as: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)

There was evidence supporting the juvenile court’s finding. The problem that brought this matter to the dependency system, mother’s drug problem, is serious. Mother took heroin and methadone while pregnant with D.L. D.L. tested positive for methadone at birth and exhibited withdrawal symptoms. D.L. had to be placed in the neonatal intensive care unit. Despite having completed the rehabilitation program at the Tarzana Treatment Center, and while caring for one-year-old D.L. and while pregnant with F.L., mother used heroin. Previously, she drove with D.L. in the car while under the influence of heroin and twice was involved in accidents. Due to mother’s heroin use, F.L. was born while mother was incarcerated. As of the hearing on the section 388 petition, mother was still enrolled in the rehabilitation program at Shields and thus had not demonstrated that she was successfully rehabilitated.

D.L. and F.L. are significantly more bonded with their caregivers than they are with mother. D.L. has lived most of his life with the caregivers; F.L. has lived all of her life with the caregivers. D.L. and F.L. were reported to be “strongly bonded” with the caregivers who have provided them with a stable and loving family and have ensured that all of their needs are being met. The children were excited to see their caregivers at the conclusion of visits with mother. Although mother visited D.L. and F.L. often, was appropriate in the visits, and tried to make the visits as meaningful as possible, there was no apparent bond between mother and her children. The children appeared unmoved by mother’s arrival at or departure from visits. The children reacted to mother as they would to a person who treated them nicely.

II. The Juvenile Court Properly Terminated Mother’s Parental Rights Pursuant To Section 366.26

Mother contends that the juvenile court erred in failing to find the parental visitation exception to the termination of parental rights under section 366.26 (c)(1)(B)(i). The juvenile court did not err in terminating mother’s parental rights.

A. Standard of Review

Some courts have held that challenges on appeal to a juvenile court’s determination under section 366.26(c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A)) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 & fn. 4.) Under a substantial evidence standard of review “‘“the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Section 366.26, subdivision (c)(1)(A) was renumbered 366.26(c)(1)(B)(i) effective January 1, 2008. (Stats.2006, ch. 838, § 52.)

Other courts have applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of review, we will not disturb the juvenile court’s decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile court’s ruling on the section 366.26(c)(1)(B)(i) exception is reviewed for substantial evidence or abuse of discretion, because, under either standard we affirm the juvenile court’s decision.

B. The Parental Visitation Exception

Once a juvenile court finds that a child is likely to be adopted after removing the child from parental custody and has terminated reunification services, parental rights may be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under certain exceptions set forth in section 366.26, section (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature's preference for adoptive placement.”].)

The parental visitation exception in section 366.26(c)(1)(B)(i) provides that parental rights will not be terminated and a child freed for adoption if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.) Application of the parental visitation exception consists of a two-prong analysis. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The first is whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second is whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. (Ibid.) The parent/child relationship must promote “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 other words, 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 to a new family would confer. 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

The visitation exception does not apply when a parent fails to occupy a parental role in his or her child’s life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the former section 366.26(c)(1)(A) exception].) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), 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.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)

The juvenile court found that mother visited D.L. and F.L. regularly. Thus, we review the juvenile court’s conclusion that mother failed to satisfy the second prong of the test under section 366.26(c)(1)(B)(i) of demonstrating a sufficiently strong bond between mother and D.L. and F.L. such that the children would suffer detriment from its termination. As set forth in our discussion of mother’s section 388 petition, there is sufficient evidence supporting the juvenile court’s determination that the children are not bonded with mother in any significant way, let alone a strong way. Mother has never had custody of either child. The children are not excited to see mother at the outset of visits or affected by her departure at the ends of visits. Although the children seem to enjoy visits with mother, they do not seek to be held or comforted by her. Mother provided no evidence of a detriment the children would suffer if her parental rights were terminated other than her testimony that she believed that it was in the children’s best interest to know her now that she is sober and getting her life together and that the children would be missing something if they could not see her. Accordingly, the juvenile court did not err in ruling that this is not an “extraordinary case” that presents the sort of “exceptional circumstances” that would justify choosing an option other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

DISPOSITION

The orders are affirmed.

We concur: ARMSTRONG, Acting P. J. KRIEGLER, J.


Summaries of

In re D.L.

California Court of Appeals, Second District, Fifth Division
Apr 20, 2009
No. B212500 (Cal. Ct. App. Apr. 20, 2009)
Case details for

In re D.L.

Case Details

Full title:In re D.L., et al., Persons Coming Under the Juvenile Court Law. LOS…

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

Date published: Apr 20, 2009

Citations

No. B212500 (Cal. Ct. App. Apr. 20, 2009)