Opinion
B194543
4-25-2007
In re JACQUELINE P., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GUADALUPE A., Defendant and Appellant.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Guadalupe A. appeals from an order terminating her parental rights, challenging the sufficiency of the evidence and contending the dependency court should have found that her children would benefit from the continuation of their relationship. (Welf. & Inst. Code, § 366.26, subds. (c)(1)(A), (h).) We disagree and affirm the order.
All section references are to the Welfare and Institutions Code.
FACTS
Guadalupe has three children — Jacqueline P., now 14 years old (her father is Jose P.), Juaquin A., now 10 years old (his father is Mariano A.), and Julian A., now 8 years old (his father is Filemon R.). None of the fathers are parties to this appeal.
The children were detained in June 2004 based on a report that Jacqueline had been physically injured by Guadalupes boyfriend, Arturo M. Arturo was arrested on an outstanding warrant for child endangerment, the children were placed with their maternal great-aunt, Rosa C., and a petition was filed. (§ 300, subds. (a)-(c), (i), (j).) Reunification services were ordered and monitored visits were authorized. Guadalupe enrolled in a parenting program but did not comply with the courts orders for counseling or drug testing and did not visit the children. In May 2005, the children were taken from Rosas home and placed with Rosas daughter and son-in-law, Reyna and Jorge S.
In September 2005, the Department of Children and Family Services reported that, during the preceding five months, Guadalupe had six monitored visits with the children. At a hearing held that month, the court continued reunification services and authorized unmonitored visits on condition that Guadalupe participate in conjoint counseling with the children. By December, Guadalupe had stopped visiting the children, had still not completed her drug rehabilitation program, and had attended only two counseling sessions with Jacqueline. Although Guadalupe told the social worker she wanted the children returned to her custody, she did not have suitable housing (she was living with relatives). Reyna and Jorge wanted to adopt the children. Reunification services were terminated in February 2006.
The Department reported in May that Guadalupe had visited the children 13 times during the preceding five months. For their part, the children wanted to be adopted by Reyna and Jorge, and the Department reported that there was a strong relationship between the children and Reyna and Jorge. In August, Guadalupe filed a section 388 petition asking for custody of the children or, in the alternative, expanded visitation rights. She claimed she was in full compliance with her case plan and that she had a "very close and loving relationship" with the children. The court summarily denied Guadalupes request for custody but set a hearing to consider her request for a more liberal visitation schedule.
In September, the Department reported that Guadalupe had visited the children every Saturday for two hours in the park, and that Arturo was present during one of the visits (which made Jacqueline uncomfortable and resulted in her request to have Reyna present for future visits). According to Jacqueline, Guadalupe would talk to her "for only a few seconds," then would simply sit and watch them. Guadalupe was unemployed and living in a garage. On September 26, the court (after hearing Guadalupes testimony) again denied her request for custody, noting that she did not even have a place where the children could visit overnight (and also noting that she had not fully complied with her drug rehabilitation program). The court denied her request for unmonitored visits.
A contested permanent plan hearing was held in October, at which time the parties stipulated that the children all wanted to be adopted by Reyna and Jorge, and that Guadalupe had been consistently visiting the children for the previous few months. At the conclusion of the hearing, the court found that, to the extent Guadalupe visited the children, she had "not acted in a parental role in the childrens [lives and that,] to the extent . . . she [had] acted in a parental role, it [did] not outweigh the benefit[s] of permanence and adoption." The court found the children were likely to be adopted and terminated Guadalupes parental rights.
Although Guadalupes notice of appeal is from both the September 26 and October 17, 2006 orders, her brief challenges only the October 17 order terminating her parental rights. For this reason, we deem her appeal from the September 26, 2006 order abandoned.
DISCUSSION
Guadalupe contends there was insufficient evidence to support the dependency courts rejection of the beneficial relationship exception. We disagree.
A.
Because the children were likely to be adopted, the presumptively correct permanent plan was adoption (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419-1420; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343), and the only applicable exception required a finding by the court that the termination of Guadalupes parental rights would be detrimental to the children because there existed a "strong and beneficial parent-child relationship." (§ 366.26, subd. (c)(1)(A); In re Jasmine D., supra, 78 Cal.App.4th at pp. 1343, 1348-1349.)
Contrary to Guadalupes assertion, there is no evidence (let alone substantial evidence) of the required relationship. Virtually all of Guadalupes visits with the children were monitored, and the children requested monitors even when they were not required by the court. None of the children spent the night with Guadalupe, and she had no home to offer to them. More to the point, there is nothing in the record to suggest that Guadalupes relationship with the children was that of parent to child; to the contrary, she barely spoke to them. For these reasons, we agree with the trial court that the exception does not apply. (In re Derek W. (1999) 73 Cal.App.4th 823, 827 [the exception is met only when the relationship promotes the well being of the children to such a degree as to outweigh the well being they would gain in a permanent home with adoptive parents]; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)
B.
We summarily reject Guadalupes contention that the dependency court failed to consider the childrens views. First, the issue was waived by her failure to raise it below. (§ 366.26, subd. (h)(1); In re S.B. (2004) 32 Cal.4th 1287, 1293.) Second, the court did consider the childrens views — the parties stipulated that, if called as witnesses, the children would testify that they wanted to be adopted.
DISPOSITION
The order is affirmed.
We concur:
MALLANO, Acting P.J.
ROTHSCHILD, J.