Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK62248 Steven Berman, Referee (pursuant to Cal. Const., art. VI, § 21).
Marissa Coffey, under appointment by the Court of Appeal, for Objector and Appellant, Kazue C.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Senior Deputy County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Kazue C. (mother), mother of three-year-old Giannina P. and 14-year-old Jeremy N. (children), appeals from the juvenile court’s order denying her petition under Welfare and Institutions Code section 388 as to both children and the juvenile court’s order terminating her parental rights only as to Giannina under section 366.26. We affirm.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
The notice of appeal does not refer to Jeremy. Thus we do not consider any appeal as to him. (See post, Discussion I. A.)
BACKGROUND
On January 31, 2006, the Department of Children and Family Services (Department) filed a petition under section 300 alleging that Giannina and Jeremy came within the jurisdiction of the juvenile court. The petition alleges that mother and Giancarlo P., Giannina’s father, failed to comply with a voluntary family maintenance contract they signed on or about October 7, 2005, pursuant to which they agreed to participate in random drug testing, a rehabilitation program, and a 12-step program. Mother was alleged to be a frequent user of illicit drugs and alcohol rendering her incapable of providing regular care for the children, and to have had positive toxicology screens for cocaine, opiates, codeine, morphine, and alcohol in January 2006. Giancarlo P. was alleged to have a history of illicit drug use and a drug-related criminal conviction.
Giancarlo P. is not a party to this appeal.
Giannina and Jeremy were detained. Giannina, who had a cancerous tumor removed from her stomach when she was several months old, ultimately was placed with her paternal great aunt, Karen N., a registered nurse. Karen N.’s husband, Dr. Charles N., is a medical doctor. Jeremy ultimately was placed with his paternal grandmother, Silvia N.
On March 8, 2006, the juvenile court sustained the petition as amended. The juvenile court ordered family reunification services for mother. The juvenile court ordered mother to attend a drug rehabilitation program with weekly random drug testing, parent education, and individual counseling. Mother was granted monitored visitation.
Mother failed successfully to avail herself of family reunification services. At the status review hearing on April 20, 2007, the juvenile court stated, “there has been evidence all along from September that mother was shooting up; that she had tracks on her arms in September. In October, she was wearing long sleeves to meetings with the family. In January, she tested dirty as to cocaine. We’ve got a history here. This is not a simple relapse. This is a history of using.” The juvenile court found that mother’s “constant use of drugs in the last six months clearly negates the clear work mother has done,” terminated family reunification services, and set a hearing under section 366.26. At the continued section 366.26 hearing on October 11, 2007, the juvenile court granted guardianship of Jeremy to Sylvia N. The juvenile court continued the section 366.26 hearing with respect to Giannina to November 13, 2007.
On October 25, 2007, mother filed a section 388 petition seeking to change the juvenile court’s April 20, 2007, order terminating family reunification services and setting the section 366.26 hearing. Mother requested the juvenile court to reinstate reunification services for herself; order conjoint counseling with Jeremy; release Jeremy and Giannina to her custody under a home of parent (mother) order or, alternatively, grant unmonitored visits with the children, including overnight weekend visits.
At the conclusion of a contested, combined section 388 and section 366.26 hearing on December 6, 2007, the juvenile court denied mother’s section 388 petition, holding that mother had failed to show changed circumstances or that granting the petition would be in Giannina’s best interest. On the latter point, the juvenile court observed, “There’s no evidence whatsoever that the child is bonded to [mother]. That the child needs her. That the child would be harmed by not seeing her. I’ve evidence that the child, you know, looks forward to the visits. But again this is a two-year-old who has got a playmate.”
The juvenile court did not rule on mother’s section 388 petition as to Jeremy, apparently because mother’s attorney conceded the point in oral argument on the petition. In response to Jeremy’s attorney argument that it was apparent that the section 388 petition had nothing to do with Jeremy, mother’s attorney stated, “Your honor, for the record, we conceded on the 388. Mother is not taking a position to overturn the guardianship at this point.”
The juvenile court also terminated mother’s parental rights to Giannina pursuant to section 366.26. In terminating mother’s parental rights, the juvenile court rejected mother’s asserted application of the parental visitation exception in section 366.26, subdivision (c)(1)(A) (section 366.26(c)(1)(A)). The juvenile court stated, “I’ve had no evidence whatsoever that mother stood in a parental role, that mother was anything more than a playmate to the 2-year-old, that the 2-year-old shows any effect whatsoever from separation from the mother, or there would be any detriment whatsoever if the parental rights were to be severed.” The juvenile court designated Karen and Charles N. as Giannina’s prospective adoptive parents.
DISCUSSION
I. The Juvenile Court Properly Denied Mother’s Section 388 Petition
Mother contends that the juvenile court abused its discretion when it denied her section 388 petition seeking to reinstate family reunification services; order conjoint counseling with Jeremy; release Jeremy and Giannina to mother’s custody under a home of parent order or, alternatively, grant unmonitored visits with the children, including overnight weekend visits. We hold that mother may not appeal the denial of her section 388 petition with respect to Jeremy because her notice of appeal fails to identify any order with respect to Jeremy from which she purportedly appeals. We hold that the juvenile court did not abuse its discretion in denying mother’s section 388 petition with respect to Giannina.
A. Mother May Not Appeal the Denial of Her Section 388 Petition With Respect to Jeremy
The Department contends that mother’s appeal of the juvenile court’s denial of her section 388 petition with respect to Jeremy is defective because her notice of appeal does not state that she appeals from the denial of that petition as to Jeremy and because she withdrew the petition as to Jeremy in the juvenile court. We agree with the Department that mother may not appeal the juvenile court’s denial of the section 388 petition as to Jeremy because her notice of appeal does not state she that she appeals from that order. Because mother’s deficient notice of appeal resolves this issue, we need not reach the Department’s other contention that mother may not appeal the denial of her section 388 petition as to Jeremy because she withdrew that petition in the juvenile court.
“The notice of appeal must be liberally construed.” (Cal. Rules of Court, rule 8.100(a)(2).) However, “[i]t is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal.” (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92.) Thus, “[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.)
Mother filed a form notice of appeal stating that she was appealing from the juvenile court’s order denying her section 388 petition and from the order terminating her parental rights under section 366.26. On the form, mother was asked to fill in the number of children to whom the notice pertained. Mother filled in the number “1.” Mother was then asked to identify the children by providing their names and birth dates. Although the form provides spaces to identify four children, mother provided only Giannina’s name and birth date. Mother did not mention Jeremy or provide any information about him on the notice of appeal. Because mother’s notice of appeal reveals a clear intention to appeal the juvenile court’s denial of mother’s section 388 petition only as to Giannina, mother may not now claim she appealed as to Jeremy. (Glassco v. El Sereno Country Club, Inc., supra, 217 Cal. at p. 92; Unilogic, Inc. v. Burroughs Corp., supra, 10 Cal.App.4th at p. 625; Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at p. 47.)
B. The Juvenile Court Properly Denied Mother’s Section 388 Petition as to Giannina
1. Standard of Review
The juvenile court’s order denying mother’s section 388 petition is reviewed under an abuse of discretion standard. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) “‘The appropriate test for abuse of discretion is whether the trial court 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.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Under an abuse of discretion standard, “‘“a reviewing court will not disturb [the trial court’s] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
2. Application of Relevant Principles
Section 388 is an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) Section 388 provides in relevant part: “Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made. [¶] . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held. . . . ” To obtain a requested modification, the parent must demonstrate both a change of circumstances, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 5.570(d), (f); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petitioning parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570(h); In re Stephanie M., supra, 7 Cal.4th at p. 317.)
a. Mother’s Petition
In her section 388 petition, mother identified the changes in circumstances since the juvenile court’s April 20, 2007, order terminating reunification services that justified granting the section 388 petition as follows: she had completed a drug treatment program at the Clare Foundation in July 2007; she was participating in an after care program at the Clare Foundation that included weekly group therapy, individual therapy, and drug testing; she daily attended Narcotics Anonymous meetings; and she was working with a sponsor and “going the twelve steps” (a drug treatment program). Mother asserted that she had demonstrated sobriety through drug testing through the Clare Foundation, she had fully participated in her previously court ordered case plan, including counseling, drug treatment, and drug testing. Mother voluntarily participated in psychiatric counseling.
Mother’s petition stated that mother met with a counselor weekly, she began seeing a psychiatrist in June 2007, and she was on prescription medication to address her “symptoms” of depression and anxiety. The petition also stated that mother had contacted a representative at the Salvation Army Transitional Village and had submitted an application for a low cost apartment and supportive services. Mother’s admission into the program was contingent on her children being returned to her care.
Mother’s petition stated that she had visited with Giannina “as often as possible, typically weekly” until Giannina was placed with Karen N. in July 2007. Since then, mother’s visits had been “restricted to every other weekend.” The petition stated that mother visited Jeremy weekly and had frequent telephone contact with him.
Mother’s petition stated that the changes requested in the section 388 petition would be better for the children because she had a strong relationship with Jeremy who had “indicated” to the social worker on “several occasions” that he wanted to be returned to mother’s care. Mother continued to participate in important events in Jeremy’s life such as his graduation ceremony. Mother had tried to visited Giannina as often as possible, but her efforts were sometimes unavailing because of Giannina’s and mother’s health issues. Mother asserted that she had a thorough understanding of Giannina’s health condition and treatment plan, and had participated in doctor’s appointments when permitted.
According to mother’s petition, Jeremy and Giannina had a loving sibling relationship. Mother asserted that it was in Jeremy’s and Giannina’s best interest to be raised together in the same household where they could bond. Giannina had been placed with her paternal great aunt only for about a month.
b. The Department’s Response to Mother’s Petition
The Department responded to mother’s section 388 petition in a November 13, 2007, Interim Review Report. The report states that mother was assigned a new social worker in March 2007. Mother’s previous social worker gave mother the new social worker’s telephone number and told mother to contact her because mother did not then have a telephone number. Mother failed to contact the social worker until September 2007. Mother claimed to have called the social worker and left her messages dozens of times. The social worker disputed mother’s claim; the social worker’s voicemail message provided her own name, the name and telephone number of the unit clerk, and the supervisor’s name and telephone number.
The report states that mother faxed numerous documents to her new social worker prior to their first meeting including signature cards from 12 step meetings, letters of participation verification from several programs and a brochures for programs mother was interested in attending. The social worker examined the documents and concluded that they appeared to have been forged. The report notes that the signature cards were, for the most part, completed in mother’s own handwriting. Other documents appeared to have been altered with correction fluid. Documents were altered to reflect a more recent 2007 date rather than a 2006 date. A letter purportedly from Bill Beavers of the “Clare foundation, inc.” was not signed and, according to the social worker, the date on the letter was in a different font from the rest of the letter and the date was askew from the balance of the letter. The social worker spoke with Beavers who stated that after completing her drug treatment program in the Spring of 2007, mother had not participated in a formal aftercare program, although she stopped by “every once in a while” to obtain advice or support from her individual therapist. Beavers also stated that mother had not participated in weekly group and individual therapy, drug testing, or 12 step meetings.
In its subsequent ruling terminating mother’s parental rights pursuant to section 366.26, the juvenile court stated that it had given very little or no weight to the Department’s assertion that mother had provided forged documents because the Department had not introduced evidence to support that assertion.
The Department’s report also states that a letter from Casa Milagro, a sober living facility, that was attached to mother’s section 388 petition also appears to have been altered. According to the report, the date on the letter was askew from the rest of the letter and the social worker had found that exact same letter in the case file without a date but with a signature. The social worker contacted the house manager for Casa Milagro to determine when mother resided there and the circumstances under which she left the program. The house manager stated that mother had been “kicked out” of the program. According to the house manager, among other things, mother had violated house rules repeatedly and had been given several chances to comply. Mother rarely participated in required house activities, such as 12 step meetings and house chores. Mother had tested positive for heroin on more than one occasion and had been caught trying to submit someone else’s urine.
The November 13, 2007 report stated that the social worker contacted the Salvation Army concerning mother’s housing. Apart from detailing the requirements mother would have to meet to secure Salvation Army housing, the representative stated that the then current wait list was six to nine months. According to the report, Giannina’s previous caregiver maintained a log of mother’s visits that showed that mother “no showed” or canceled more than she visited with Giannina.
As for mother’s participation in Giannina’s medical care, the social worker noted that because mother retained her parental rights, mother had to authorize certain medical procedures. The report states, “For the week prior to a recent MRI, dozens of phone calls were placed to mother to obtain verbal authorization for the use of anesthesia. The nurse’s office, the paternal grandmother, the paternal aunt and CSW LaMond left daily messages prompting Mother to call the doctor’s office. Mother finally called the doctor’s office, one hour before closing, the day before the procedure. She almost prevented the procedure from taking place due to her late response. It finally took a desperate call to the maternal grandmother, Laura [G.], to get a response from Mother.” The report notes that when Giannina woke up from anesthesia on one occasion, she asked for her “mother.” Mother entered Giannina’s room, but Giannina was seeking comfort from her paternal grandmother, her caretaker at the time.
The report disputed mother’s claim that Giannina had lived with Karen and Charles N. for only one month. According to the report, Giannina had lived with the N.’s for five months, and had spent “years worth of weekend overnights” with the N.’s in anticipation that she might live with them in the future. The report states that “Giannina was already so bonded with the N[.’]s that when she was replaced there, she adjusted immediately with no apparent stress.”
Finally, the report states that mother was in poor health. Mother reportedly has hepatitis C. When mother met with the social worker in September 2007, she told the social worker that she was not under a doctor’s care or taking medicine for her condition. If the hepatitis C went untreated, mother could die. As part of the treatment, mother would receive Interferon treatment for about one year. Such treatment is “equivalent” to chemotherapy, causing some patients to be “quite ill and incapacitated,” and would likely render her unable to be a fulltime parent to her children.
c. The Juvenile Court’s Ruling
After a contested hearing, the juvenile court denied mother’s section 388 petition, holding that there were no changed circumstances that would justify granting the petition and that mother’s requested changes in the order denying family reunification services would not be in Giannina’s best interest. It stated that there were only two drug tests in the file, a positive test for cocaine in January and a positive test for heroin in March. The juvenile court discounted the letter purportedly from Beavers of the “Clare foundation, inc.” dated July 17, 2007 that was attached to mother’s section 388 petition and that states that mother had “52 UA Tests all (Negative)” for some period after March 22, 2006, because there were no verified tests in the record. The Department’s response to mother’s section 388 petition states that a social worker contacted Beavers who stated that mother had not participated in drug testing at the Clare Foundation after she completed her drug treatment program in the Spring of 2007.
As for returning Giannina to mother, mother did not have housing, and any housing was speculative. Mother had missed or canceled nearly half of her scheduled visits with Giannina. The juvenile court stated that mother’s relationship with Giannina was as a playmate. Mother played with and read to Giannina. The juvenile court stated that the evidence showed that Giannina looked forward to visits with mother, but that there was no evidence that Giannina was bonded with mother, that she needed mother, or that she would be harmed by not seeing mother.
Based on the record, the juvenile court did not abuse its discretion in holding that mother had failed to show changed circumstances that would have justified granting her section 388 petition or that it would have been in Giannina’s best interest to grant the petition. (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416; In re Stephanie M., supra, 7 Cal.4th at p. 318.) The information supplied by the Department is sufficient to support the juvenile court’s ruling against a challenge that it constitutes an abuse of discretion.
II. The Juvenile Court Properly Terminated Mother’s Parental Rights
Mother contends that the juvenile court erred in failing to find the section 366.26(c)(1)(A) parental visitation exception to the termination of parental rights. We hold there was no error.
A. Standard of Review
Some courts have held that challenges to a juvenile court’s determination under section 366.26(c)(1)(A) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) 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.) 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)(A) exception is reviewed for abuse of discretion or substantial evidence, 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 one of the five 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.)
The parental visitation exception in section 366.26(c)(1)(A) 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.” The 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 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.)
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 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 he or she has maintained regular visitation and contact with the child and a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
In making its determination under section 366.26, the juvenile court considered the evidence and testimony in support of the section 388 petition in addition to the Department’s reports for the section 366.26 hearing. According to the Department’s August 16, 2007, section 366.26 report, Giannina was placed with Karen and Charles N. on July 1, 2007. Cynthia P., Giannina’s paternal grandmother and former caretaker, reported that mother often scheduled visits with Giannina but canceled them for various reasons. The report states, “According to the caretaker, it takes the child a period of time to warm up to her mother. She reports that there does not appear to be any parent-child attachment, but that the child enjoys the visits and having playing. When the mother does interact with the child, the interaction is appropriate, however, during the visits she frequently goes outside to smoke, spends a lot of time in the bathroom, and calls her friends.”
The record is unclear as to whom the designation “caretaker” refers, Cynthia P. or Karen N.
The section 366.26 report states that before Giannina was placed with the N.’s, they visited the child weekly. The N.’s were reported to have developed and to be further developing a loving relationship with Giannina and to be meeting the child’s medical needs. The N.’s were “ready, willing and able to provide the educational, emotional and developmental support” that Giannina might need presently and in the future. The report concludes that “It would be detrimental to the child if removed from this home as he [sic] appears to have strong emotional and psychological ties.” The N.’s expressed a “strong” desire to adopt Giannina.
The Department’s October 11, 2007, Status Review Report states, “Giannina is a sweet and happy little girl. She immediately adjusted to her placement with her aunt and uncle and has settled into her routine. She loves her daycare and has many friends. Giannina lives a worry-free existence full of playing, snacks and naps.” The report further states, “Giannina is a delightful little girl. She has no apparent or reported behavioral or emotional difficulties. She has adjusted beautifully to the move to her paternal Aunt and Uncle’s home. CSW LaMond has observed the bond, evidenced by the affection and rapport they share.” The N.’s were said to be prepared to provide Giannina with the “permanency she deserves” and that the N.’s saw a place for a relationship with Giannina’s parents, brother, and family in that permanent plan.
The Status Review Report notes mother’s “very poor history of visitation.” Cynthia P. was reported to have kept logs of mother’s repeated failures to keep appointments without calling, cancellations, and constant tardiness. Recently, mother was reported to have attended all six visits with Giannina. The visits reportedly went well overall. Mother brought snacks and Giannina enjoyed the visits. The report identifies an “incident of concern.” When the caretaker went to the restroom, mother left Giannina with another unknown mother in the park so mother could “go smoke” a cigarette.
The Status Review Report states that mother was staying with a friend and did not have stable housing. Mother had not secured disability status for her hepatitis C and had not begun treating the disease. Although the report states that Giannina loved mother, the report concludes that “Mother has a great deal to accomplish before she is in a position to parent her children full time.”
The Department’s November 13, 2007, Interim Review Report addresses mother’s visitation with Giannina. The report notes that mother visited Giannina only 24 of 52 opportunities in the prior year. Mother had canceled 11 visits and not shown up for eight visits. When mother failed to show up, she did not call to explain or apologize. Although the caregiver “gladly” would have allowed mother more time, most of mother’s visits lasted one hour. The one hour visits included three to four cigarette breaks and numerous trips to the restroom. Throughout the visits, mother spoke incessantly about how ill she was and the degree to which she was suffering.
The Department generated two Interim Review Reports dated November 13, 2007, apparently causing some confusion concerning the reports’ admission into evidence. The juvenile court admitted the first report, which is stamped “Admitted In Evidence,” as the Department’s exhibit number one for the hearing on mother’s section 388 petition. The juvenile court apparently admitted the second report as the Department’s exhibit number three for the section 366.26 hearing. This second report, apparently through inadvertence, is not stamped “Admitted In Evidence.”
According to the Interim Review Report, when mother interacted with Giannina mother communicated with “baby talk” and her rapport with Giannina was “very infantile.” The report states, “Mother’s parental role is not defined and the visit is more like a ‘play date.’” Mother reportedly actively played with Giannina, but was not attuned to the child’s safety, supervision, or boundaries. Mother was described as pale, gaunt, and covered in “dozens and dozens of large purple sores on her face, hands and arms.” On one occasion, Cynthia P. reportedly had to ask mother not to share an ice cream cone with Giannina because mother had sores on her mouth and nostrils.
The juvenile court terminated mother’s parental rights to Giannina. The juvenile court rejected mother’s asserted application of the parental visitation exception in section 366.26(c)(1)(A). The juvenile court noted that Giannina was in need of permanence because of her medical problems, that mother had not been available for medical authorizations, and that the juvenile court had signed a medical authorization the prior month. The juvenile court stated, “I’ve had no evidence whatsoever that mother stood in the parental role, that mother was anything more than a playmate to the 2-year-old, that the 2-year-old shows any effect whatsoever from separation from the mother, or there would be any detriment whatsoever if the parental rights were to be severed.”
A parent has the burden of proving that exceptional circumstances exist meriting the application of the parental visitation exception to the termination of her parental rights. (In re Celine R., supra, 31 Cal.4th at p. 53.) The visitation exception does not apply when a parent fails to occupy a parental role in her child’s life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51.) The visitation exception also does not apply if “severing the natural parent/child relationship would [not] deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There was substantial evidence supporting the juvenile court’s determination that mother failed to meet her burden of establishing that she occupied a parental role in Giannina’s life or that Giannina would suffer a detriment if mother’s parental rights were terminated.
DISPOSITION
The orders are affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.