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In re Lucas A.

California Court of Appeals, Fourth District, Third Division
Dec 3, 2007
No. G038779 (Cal. Ct. App. Dec. 3, 2007)

Opinion


In re LUCAS A. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. LUCAS A. et al., Defendants and Appellants. G038779 California Court of Appeal, Fourth District, Third Division December 3, 2007

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Appeals from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge, Super. Ct. Nos. DP011105 & DP011106

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Lucas A.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant G. C.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

OPINION

FYBEL, J.

Introduction

Lucas A. and Alvaro A. (sometimes referred to collectively as the children) were taken into protective custody when they were under three and two years old, respectively. At the time, their parents G. C. (mother) and Lucas A., Sr. (father), were both incarcerated, and had left the children in the care of an inappropriate caretaker. Ultimately, more than two and a half years later, the juvenile court terminated mother’s and father’s parental rights. Mother and father raise a single issue on appeal – whether the trial court erred by refusing to apply the parent-child relationship exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) (All further statutory references are to the Welfare and Institutions Code.) We conclude the trial court’s finding was supported by substantial evidence, and therefore affirm.

Statement of Facts and Procedural History

In December 2004, a report was made to the Child Abuse Registry regarding two boys, ages three and two, whose parents were in jail on drug charges, and who had been left with an unrelated caretaker who was heavily involved in drugs and associated with gang members. The report continued that the boys were often hungry and unsupervised, and had been physically abused. In response to the report, a social worker with the Orange Country Social Services Agency (SSA) responded to the home with two Santa Ana police officers. A young woman caring for Lucas and Alvaro identified herself as M. M., stated the regular care provider, Cristina, had left the home 30 minutes earlier, and further stated she did not know the names or whereabouts of the children’s parents. Makeshift drug pipes were located within “easy access” of the children in the bedroom M. identified as hers. Lucas told one of the police officers M.’s name was Cristina and she was his mother. After being handcuffed, M. admitted she was really Cristina and said she was Lucas and Alvaro’s mother. Cristina was arrested.

The children were immediately taken into protective custody, and placed in foster care. After the detention hearing, Lucas and Alvaro’s aunt contacted SSA and informed the social worker that mother and father were actually the children’s parents, and that both were currently incarcerated.

On January 18, 2005, the juvenile court declared Lucas and Alvaro to be dependents of the juvenile court under section 300, subdivisions (b) (failure to protect) and (g) (failure to support). The court approved a case plan and visitation plan. The case plan required mother and father to participate in counseling, parenting classes, substance abuse treatment programs, and Narcotics Anonymous, and to submit to random drug testing. The visitation plan authorized monthly visits with Lucas and Alvaro while mother and father were incarcerated, and required mother and father to make at least one call per month to the children, subject to prison rules.

Lucas and Alvaro visited with mother in jail on February 22, 2005. After mother was released from jail on February 26, she was granted two-hour weekly monitored visitation. Those visits were generally positive. Father was incarcerated; because he was transferred to different prisons, it appears Lucas and Alvaro never visited with him.

Mother failed to attend Narcotics Anonymous meetings and had inconsistent drug testing. SSA reported mother was trying to comply with her case plan, but further progress was needed. Nevertheless, reunification services for mother were continued at the six-month review hearing, and mother was permitted to have four hours of weekly monitored visitation with Lucas and Alvaro.

Father advised SSA he would be deported on June 20, 2005, without being released from incarceration; the social worker had no further contact with father. Reunification services for father were terminated at the six-month review hearing.

In November 2005, Lucas and Alvaro were removed from their foster home and placed in respite care due to Lucas’s aggressive behavior. About two weeks later, Lucas and Alvaro were placed with another foster family.

On December 16, 2005, the juvenile court authorized mother to have six hours of unmonitored visitation with Lucas and Alvaro. On that very evening, mother was in a car driven by her boyfriend, along with her seven-year-old daughter (who is not involved in the present dependency case). When the police attempted to pull the car over due to a broken taillight, the boyfriend sped up and became involved in a police pursuit. The police officers saw the boyfriend toss a bag of drugs out of the car window during the pursuit. Mother and her boyfriend were eventually arrested.

Lucas and Alvaro were matched with a prospective adoptive family in July 2006. Lucas and Alvaro had monitored visits with mother in prison on January 13, March 10, August 23, October 1, and December 16, 2006, and January 27, 2007. During visits, mother would run around with the children, play blocks, or watch movies with them. The children would hug mother and smile during the visits, and tell her they “wanted to play with” her. Mother sent letters and drawings to Lucas and Alvaro.

On November 2, 2006, the juvenile court terminated reunification services for mother, and set a permanency hearing pursuant to section 366.26.

In the permanency hearing report, SSA disclosed that Lucas and Alvaro were bonded with their prospective adoptive parents, stated they liked living in their home, and wanted to “‘stay here forever.’” The children were very affectionate toward their prospective adoptive parents.

At the conclusion of the permanency hearing on May 21, 2007, the juvenile court found Lucas and Alvaro were adoptable, no exception to adoption applied, and it was in their best interests to terminate mother’s and father’s parental rights. As relevant to this appeal, the court made the following findings: “Regarding the possible [section 366.26, subdivision] (c)(1)(A) . . . exception[] that h[as] been raised by counsel, again as to father, it is clear to the court that really these children don’t really know Mr. A[.], senior, as their father. . . . As to Mr. A[.] it appears they really don’t have a relationship with him nor do they have a relationship with the paternal grandparents who in all effects would be virtual strangers with respect to these children. So it would not be in the best interest of the children to place them with the father or the parental grandparents. . . . So given all of the information, the court would find that there is no (c)(1)(A) exception that would apply to the father. [¶] . . . The court does note that the children do have a relationship with the mother and that the mother obviously loves these children very much and it’s unfortunate that she’s spent so much time in the last few years being incarcerated, but again that is something for which she will have to take the blame and accept the responsibility. And even after she is released in late July, it’s still an open question as to what capability she would have to be able to take these children and safely care for them. I know the children did express that they love the mother and they do like to see her on the visits, but she is not someone who has been in a parental role with these children since they were very young, the ages of 3 and 2, and that would have been toward the end of the year 2004. And, again, that’s because mother has spent quite a bit of that time in custody which is unfortunately something that again she has to take responsibility for again. Having seen these children and listened to their responses to questions and judging their credibility, it’s this court’s opinion in terms of a relationship it is really their current caretakers who they view in the role of a parent and that the current caretakers are the ones who meet all their needs. Looking back to the report submitted by the agency dated March 1, 2007, it was the children’s indication that they wanted to stay with the caretakers and felt safe and comfortable with them. [¶] So it’s this court’s determination as to both parents that whatever relationship they have, and it’s not much with father but there is something there with mother, but at least with respect to mother it’s clear to me that if the court balances the quality and the nature of that relationship the children have with the mother versus their need for permanence and stability that the relationship they have with the mother is not of the type and quality that outweighs the children’s need for permanence. So the court finds that the (c)(1)(A) exception does not apply to either parent.”

Both mother and father filed timely notices of appeal to the judgment terminating their parental rights.

Discussion

Mother contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(A) allows the juvenile court to decline to terminate parental rights over an adoptable child if it 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.” Mother had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supported the juvenile court’s determination the parent-child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

The juvenile court did not make any specific findings on the visitation prong. We need not consider whether mother maintained regular visitation and contact with Lucas and Alvaro, given our holding, post, regarding the lack of benefit to the children of continuing their relationship with mother.

Adoption, if possible, is the Legislature’s preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) The parent has the burden to overcome the preference for adoption and to show any statutory exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To show the exception under section 366.26, subdivision (c)(1)(A) applies, the parent must show the child’s relationship with the parent “‘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 Derek W., supra, at pp. 826-827.) “[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] 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.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

The parent must do more than demonstrate frequent and loving contacts with the child, an emotional bond with the child, or that the visits between the parent and the child were friendly and pleasant. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Rather, the parent must show he or she occupies a parental role. (Ibid.) “It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The factors to be considered in determining whether the relationship between the parent and the child is important and beneficial include: (1) the child’s age, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) The juvenile court then balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The juvenile court’s finding in this case that Lucas and Alvaro would not benefit from continuing their relationship with mother is supported by substantial evidence. At the time of the permanency hearing, Lucas was six years old and Alvaro was five years old. The time they had spent in foster care was greater than the time they had been in mother’s care and custody. Throughout the dependency period, mother had not played any type of parental role in Lucas’s and Alvaro’s lives.

After the children were placed in a prospective adoptive home, their visits with mother became problematic; they became upset preparing for the visits, and regressed and became defiant after the visits. Additionally, Lucas’s therapist told the social worker “that he does not believe it is a good idea for the children to continue the visits with the mother in prison.” After visits with mother, Lucas would be very angry.

The therapist also believed the children were confused and anxious due to their many changes in placement, and permanency was necessary for their well-being. “[The therapist] commented to the undersigned that permanency for the children is a priority. The therapist further stated that as far as the children’s needs are concerned, and due to having been moved around three times since they became dependents, the ill effects of them not having a permanent place is pretty severe. [The therapist] further states that his top priority as far as Lucas and Alvaro are concerned is that they have a permanent place now and that there be no more changes. [The therapist] notes that if the children’s mother is going to be in and out of the picture, this is sure going to hurt these children at a young age where they have been waiting for some stability and it has not happened.”

Lucas and Alvaro were affectionate toward their prospective adoptive parents, referred to them as “mom” and “dad,” and were comfortable in their adoptive placement.

Mother failed to show that there was a substantial, positive emotional bond between her and Lucas and Alvaro, that Lucas and Alvaro would be greatly harmed if their relationships with mother were terminated, or that Lucas’s and Alvaro’s relationships with her promote their well-being to such a degree as to outweigh the well-being either child would gain in a permanent home with adoptive parents. To the contrary, the evidence showed that Lucas and Alvaro would benefit far more from a permanent, stable home than from maintaining a relationship with mother.

Father’s only argument on appeal is that if this court reverses the judgment as to mother, it must reverse the judgment as to him as well, because “[t]he court may not terminate the rights of only one parent under section 366.26,” except under circumstances not present here. (Cal. Rules of Court, rule 5.725(a)(2).) Because we are affirming the judgment as to mother, we reject father’s argument.

Disposition

The judgment is affirmed.

WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.


Summaries of

In re Lucas A.

California Court of Appeals, Fourth District, Third Division
Dec 3, 2007
No. G038779 (Cal. Ct. App. Dec. 3, 2007)
Case details for

In re Lucas A.

Case Details

Full title:ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. LUCAS…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Dec 3, 2007

Citations

No. G038779 (Cal. Ct. App. Dec. 3, 2007)