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In re Jaime R.

Court of Appeal of California
Jul 30, 2008
B206256 (Cal. Ct. App. Jul. 30, 2008)

Opinion

B206256

7-30-2008

In re JAIME R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHRISTINE S., Defendant and Appellant.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. OCrowley, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.

Not to be Published


Christine S. (mother) appeals from the juvenile courts termination of her parental rights to sons Jaime R. (age two) and Anthony R. (age one), pursuant to Welfare and Institutions Code section 366.26. Mother contends there was insufficient evidence to support the courts finding that the "beneficial relationship" exception to termination under section 366.26, subdivision (c)(1)(B)(i) did not apply. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2006, when Jaime was 10 months old, respondent Los Angeles County Department of Children and Family Services (department) filed a petition on his behalf under section 300, alleging that he was at risk of harm due to (1) mothers three-year history of substance abuse, (2) her sexual relationship with Jaimes father (father), who was 14 years old when mother, at 24 years old, became pregnant with Jaime, (3) fathers substance abuse, and (4) a dangerous home environment which included drug paraphernalia and needles within access of the minor. At that time, mother had two other children who had been previously removed from her custody. Jaime was detained from mother and placed into foster care. At the jurisdiction/disposition hearing on November 30, 2006, mother was ordered to participate in a drug rehabilitation program with random drug testing, parent education and individual counseling, and the department was ordered to provide her with family reunification services and monitored visits.

On May 18, 2007, the department filed a section 300 petition on behalf of newborn Anthony, alleging that he was at risk of harm due to mothers and fathers ongoing substance abuse and mothers repeated sexual relations with father, who was then 16 years old. Anthony was detained from mother and placed in foster care.

In the six-month status review report in Jaimes case, the department reported that mother had consistently maintained weekly one-hour visits with Jaime that were described by the social worker as appropriate and loving. Jaime was in his second foster placement and appeared happy, secure and attached to his foster mother. Mother was not in compliance with her reunification plan; she had failed to complete her parenting class or individual counseling, had not enrolled in a drug treatment program and had taken only one drug test, missing 11 other drug tests. The social worker recommended termination of reunification services. The matter was eventually continued to August 2007.

In the meantime, the department reported that on July 10, 2007 mother had entered a residential drug treatment facility, where she had weekly visits with the boys, and that she had completed a parent education class. The department had located a family that was interested in adopting both boys.

At the combined hearing for both boys, which commenced on August 20, 2007, mother testified that it was her understanding that Jaime had been taken from her because his grandmother used drugs and his uncle was found "shooting up" in the bathroom. Mother testified that she had missed her drug tests because she was too depressed after Jaimes removal to leave the house, except to visit him. She also stated that she felt ready to have Jaime returned to her. Following mothers testimony and the arguments of counsel, the court terminated mothers reunification services with respect to Jaime and denied such services with respect to Anthony, in light of mothers failure to reunify with Jaime. The court set the section 366.26 selection and implementation hearing for December 2007, which was eventually continued to February 2008.

The departments section 366.26 report stated that the boys had adjusted well in their new placement with their prospective adoptive parents, who were committed to adopting them, and with whom the boys had established a bond. Mother consistently visited the boys weekly, though she interacted mostly with Jaime and did not appear to have a bond with Anthony. The children seemed to have a "flat affect" during the visits, and Jaime ran to his prospective adoptive father after the visits, happy to see him. The department recommended termination of parental rights.

In February 2008, mother filed a section 388 petition seeking reinstatement of reunification services and placement of the children with her. She attached certificates of completion for anger management, parenting and domestic violence classes. She alleged that she was participating in drug education classes, relapse prevention, individual and group counseling, 12-step meetings and vocational assistance, and that her children were bonded with her. The court summarily denied the petition, finding that mother had not demonstrated that the requested change would be in the boys best interest.

The department submitted a final review report for the 366.26 hearing stating that for six months the boys had been with their prospective adoptive parents, with whom they had developed a strong and significant attachment, that the boys were found to be adoptable and that the prospective adoptive parents had an approved home study. Mother continued to have consistent and appropriate weekly visits with the boys.

Mother testified at the section 366.26 hearing. She stated that the visits with the boys had gone well and that Jaime called her "Mom" or "Mommy." She would play with the boys during the visits, coloring with Jaime and crawling around with Anthony, and she brought bubbles, snacks and juice for the boys. She acknowledged that the visits had not been increased in length and were still monitored. During closing argument, both the department and the boys attorney requested termination of mothers parental rights. The court found by clear and convincing evidence that the boys were likely to be adopted and terminated mothers parental rights, finding no exception applicable. This appeal followed.

DISCUSSION

Mother contends the juvenile court erred in failing to apply the "beneficial relationship" exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)). We disagree.

I. Section 366.26 and Standard of Review.

Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, "the court shall terminate parental rights and order the child placed for adoption." A finding that the court has continued to remove the child from the custody of the parent and has terminated reunification services "shall constitute a sufficient basis for termination of parental rights" unless the court finds a compelling reason for determining that termination would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)

It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(B)(i). (Cal. Rules of Court, rule 5.725(e)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) This is not an easy burden to meet. "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, at p. 1350.)

Reviewing courts have traditionally applied a substantial evidence test to a juvenile courts finding of whether an exception to termination of parental rights under section 366.26 has been established. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Some courts have concluded that abuse of discretion is the appropriate standard of review, but noted that the practical differences between the two standards are not significant. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) "`[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "`if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did.. . ."" (Ibid.)

II. Mother Did Not Establish the Beneficial Relationship Exception Applied.

There is no dispute that mother maintained regular and consistent visits with the boys. Thus, the real question here is whether mother met her burden of proving that the boys would benefit from continuing their relationship with her. (§ 366.26, subd. (c)(1)(B)(i).)

The "benefit from continuing the [parent/child] relationship" exception in section 366.26, subdivision (c)(1)(B)(i) has been defined to mean that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "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 parents rights are not terminated." (Ibid.)

"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted; In re Helen W. (2007) 150 Cal.App.4th 71, 81.)

Applying the first and last of these factors here, we note that Jaime was only ten months old when removed from mothers custody and Anthony was removed at birth. By the time of the section 366.26 hearing, both boys had spent relatively few hours visiting with mother, versus many hours being parented by their prospective adoptive family. They had formed significant bonds with their prospective adoptive family, which was committed to adopting them. Furthermore, mother never progressed to unmonitored visits. A showing that a child would be greatly harmed will be difficult to make when, as here, "the parents have essentially never had custody of the child nor advanced beyond supervised visitation." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) There was no evidence that either minor had any particular needs that could only be met by mother and not by their prospective adoptive family.

Mother asserts that she had positive interaction with the boys during their visits. But, as mother acknowledges, even frequent and loving contact between a parent and child is not sufficient by itself to establish that the exception applies. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) Interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.) At most, mother appeared to occupy the role of a friendly visitor in the boys lives. "[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (Id. at p. 468; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 ["We do agree . . . that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one"].)

Mother asks the question, "why permit visitation with routinely tragic results in cases involving very young children and parents who strive to establish the necessary bond to avoid adoption when reunification itself appears dismal"? The simple answer to this question is that a parent who fails to reunify with a child is allowed to continue visiting the child because of the escape mechanism provided by section 388, which "permits a parent to petition for reconsideration of the reunification issue based on a finding of changed circumstances." (In re Jasmine D., supra, 78 Cal.App.4th at p.1348.) Here, the trial court denied mothers section 388 petition on the ground that mother had not demonstrated that further reunification services would be in the boys best interest. Thus, mothers question overlooks the fact that reunification appeared dismal due to mothers own failure to comply with her case plan. Indeed, mother did not enter a drug rehabilitation program until nine months after Jaimes removal and missed all but one drug test prior to that time. Mothers failure to reunify with Jaime led to the courts denial of reunification services with respect to Anthony. While section 388 provides "a mechanism [by which a] parent [can] escape the consequences of having failed to reunify," the same is not true for section 366.26. (In re Jasmine D., supra, at p. 1348.) "By the time of a section 366.26 hearing, the parents interest in reunification is no longer an issue and the childs interest in a stable and permanent placement is paramount." (Ibid.)

In short, there is no evidence in the record to support that the boys would be greatly harmed if their relationship with mother was severed. To the contrary, if mothers parental rights were not terminated, the boys would be denied a permanent, stable, adoptive family with each other, "something that the Legislature has determined to be detrimental, as shown by its ranking of adoption as more desirable than long-term foster care or legal guardianship, and its streamlining of the dependency system to promote the prompt adoption of infants whose parents have failed to reunify with older siblings." (In re Angel B., supra, 97 Cal.App.4th at p. 468.)

Based on the record here, we conclude that this is not the extraordinary case where the Legislatures preference for adoption should have been overcome by the exception to termination of parental rights provided in section 366.26, subdivision (c)(1)(B)(i).

DISPOSITION

The order terminating mothers parental rights is affirmed.

We concur:

BOREN, P. J.

ASHMANN-GERST, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code unless otherwise noted.


Summaries of

In re Jaime R.

Court of Appeal of California
Jul 30, 2008
B206256 (Cal. Ct. App. Jul. 30, 2008)
Case details for

In re Jaime R.

Case Details

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

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

B206256 (Cal. Ct. App. Jul. 30, 2008)