Opinion
B233183
10-27-2011
In re TRACY S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent. v. RUTH S., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. CK71329
APPEAL from an order of the Superior Court of Los Angeles County. Stanley Genser, Commissioner. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.
Appellant Ruth S. (mother) appeals from the juvenile court's order terminating her parental rights over her son Tracy (born June 2007). Mother contends the order must be reversed because the parental exception to terminating parental rights set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) applies.
All further statutory references are to the Welfare and Institutions Code.
Substantial evidence supports the juvenile court's determination that the parental exception to terminating parental rights did not apply. We therefore affirm the juvenile court's order.
BACKGROUND
1. Detention and Section 300 Petition
Mother was incarcerated at Valley State Prison for Women when she gave birth to Tracy in June 2007. Tracy was born prematurely and with a myriad of health issues, including chronic lung disease, anemia, gastroesophageal reflux, apnea, patent ductus arteriosus and presumed sepsis. His condition required specialized medical training to feed him, provide him with oxygen, and administer prescribed medications.
In August 2007, Tracy was transferred from a hospital in Franco, California to the Harbor UCLA Medical Center so that he could be closer to his father, Stacy S. (father)and his paternal grandmother, Imogene S. (grandmother) The hospital social worker informed father and grandmother that they needed eight to ten hours of training to learn how to care for Tracy. Grandmother received the training and Tracy was placed with her on September 14, 2007.
Father is not a party to this appeal.
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Mother was released from prison on September 28, 2007, and contacted the Department of Children and Family Services (the Department) to regain custody of Tracy. At a team decision meeting attended by mother, grandmother, and the Department's social worker, the parties agreed that mother would participate in voluntary reunification services, attend parenting classes, and receive training on how to care for Tracy's medical needs before being allowed unmonitored visitation with him.
In November 2007, mother completed the necessary medical training classes, and another team decision meeting was held. The parties agreed that mother could begin unmonitored overnight weekend visits with Tracy at her home in Palmdale in early December, and that the child would be placed with her upon her completion of a parenting program, a home assessment, and several successful visits. The Department also requested that mother participate in random drug testing. Mother responded by stating that she had already drug tested as a condition of her parole on November 6, 2007 and December 5, 2007. The first test was negative, and the result of the second test was pending.
After his first weekend visit with mother, Tracy developed a respiratory infection, prompting a letter from Tracy's attending physician to the Department recommending that Tracy remain in close proximity to the Harbor UCLA Medical Center because of the severity of his medical condition. Tracy's physician further recommended that Tracy remain under the care of the Harbor UCLA Medical Center's high risk infant clinic until the age of three.
On January 8, 2008, mother's parole officer provided the Department with drug test results showing that mother had tested positive for PCP. The Department filed a section 300 petition on Tracy's behalf.
At the detention hearing held on January 17, 2008, the juvenile court ordered Tracy detained and that he remained placed with grandmother. Mother was accorded monitored visits and the matter was set for a February 25, 2008 jurisdictional hearing.
On January 16, 2008, mother telephoned the Department requesting an emergency response social worker to investigate grandmother's home following a verbal altercation with grandmother in Tracy's presence. When the social worker who took mother's call asked mother to explain the nature of the problem, mother refused to do so. After this incident, grandmother reported that mother's weekly monitored visits with Tracy went smoothly.
On February 25, 2008, the juvenile court set the matter for mediation. The parties entered into a mediation agreement, which the juvenile court adopted on March 11, 2008. The juvenile court also sustained an amended petition under section 300, subdivision (b). The court ordered that Tracy remain suitably placed with grandmother and ordered mother to complete a substance abuse program with random weekly testing and a parenting education program. The juvenile court accorded mother monitored visits with Tracy, and gave the Department discretion to liberalize the visits.
2. Review Proceedings
In June 2008, the Department reported that mother had enrolled in a drug treatment program and was participating in substance abuse counseling, parenting education classes, and individual and group therapy. She had tested negative for drugs as required by her parole officer and her day treatment program, but had not tested weekly for the Department as ordered by the juvenile court.
By August 2008, mother had completed her drug treatment program but had failed to appear for several drug tests. She had also tested positive for Hydrocodone. Mother regularly attended monitored visits with Tracy and had attended all of his recent medical appointments. She denied, however, that Tracy had any special needs.
Tracy no longer needed an oxygen tank to breathe but had developed asthma and was taking medication for that condition. He was also developmentally delayed. Tracy's doctor recommended that the child remain placed with grandmother, who was capable of meeting the child's medical needs.
The Department recommended further reunification services, but mother opposed the recommendation and asked that the matter be set for a contested hearing.
On February 3, 2009, the Department reported that mother had been arrested in August 2008 and subsequently convicted for driving with a suspended license. Mother was sentenced to a 90-day jail term. Shortly after her 90-day jail term ended, mother tested positive for PCP. Thereafter, she refused to submit to random drug testing. Mother was again arrested in November 2008 for burglary and conspiracy to commit burglary.
In April 2009, mother appeared at grandmother's home between 4:00 and 5:00 a.m. demanding a visit with Tracy. When father telephoned grandmother later that morning to inform her that he and his current wife would be coming to visit, mother began screaming and threatened to remove Tracy from the home. Grandmother telephoned the police, who removed mother from the home. After this incident, grandmother requested that future visits between mother and Tracy take place outside of grandmother's home.
Future visits took place at the Department's offices three times a week. In May and June 2009, mother's visits with Tracy became sporadic. She either left the visits early or failed to appear altogether.
On August 5, 2009, mother was arrested for making criminal threats after several physical altercations with her neighbors. She was subsequently convicted and received an eight-month sentence.
Tracy remained placed with grandmother, with whom he shared a strong emotional bond. He continued to suffer from a multitude of health issues and was hospitalized in February, April, and September 2009. The Department recommended appointing grandmother as Tracy's legal guardian and terminating mother's reunification services.
After a contested hearing on October 5, 2009, the juvenile court terminated mother's reunification services and set the matter for a section 366.26 hearing.
3. Section 366.26 Proceedings
In January 2010, the Department reported that Tracy, now two and a half years old, was thriving in grandmother's home and was very attached to her. Grandmother had previously adopted six other children and understood the adoption process. She wished to pursue legal guardianship over Tracy, but was willing to consider adoption if Tracy's parents were unable to assume their parental responsibilities. On January 25, 2010, the juvenile court appointed grandmother as Tracy's legal guardian.
During her incarceration, mother telephoned Tracy at least once a week. Following her release from prison in June 2010, mother visited Tracy weekly and often stayed the entire afternoon. The visits were appropriate, and Tracy appeared to enjoy them.
On October 19, 2010, mother filed a section 388 petition seeking unmonitored visits with Tracy and reinstatement of reunification services. In support of the petition, mother argued that while incarcerated she had attended several programs, including parenting and drug education, drug tested monthly, and attended an aftercare program to maintain her sobriety.
In response to mother's section 388 petition, the Department reported that mother's behavior was becoming more erratic and aggressive. The social worker reported that during a half-hour visit to grandmother's home on November 12, 2010, mother telephoned the home three times demanding to speak to Tracy. Grandmother told the social worker she was concerned that mother was attempting to win Tracy's affection by bringing him expensive age-inappropriate toys. Mother had brought Tracy, among other things, three bicycles, a skateboard, and spring loaded guns.
On November 29, 2010, grandmother advised the social worker that mother's behavior was becoming more aggressive toward her. Mother used foul language, was "nasty" toward her, and often yelled at Tracy because she expected him to behave more maturely.
On December 2, 2010, grandmother informed the social worker that mother had appeared at her home at 3:00 a.m. and began pounding on the door, demanding to see Tracy. Grandmother let mother in and waited with her until Tracy woke up. Mother appeared at grandmother's home again at 3:00 a.m. on December 5, 2010, with a male companion. Grandmother initially refused to admit them into her home, but when mother became hostile and aggressive, pounding on the door and screaming, grandmother allowed them both into the home. Tracy later told grandmother that mother had hit the male companion in the child's presence. Tracy appeared to be very upset by the incident, and grandmother told mother and her companion they would not be allowed in the house if they were going to fight. Mother's companion left after advising grandmother that mother was "crazy on drugs."
On December 7, 2010, father told the Department's social worker that because of mother's recent behavior, he believed mother was again using drugs. The Department recommended that the juvenile court deny mother's section 388 petition. On December 27, 2010, the juvenile court ordered mother to be tested for drugs and continued the hearing on the section 388 petition.
On January 4, 2011, mother telephoned the social worker to discuss court ordered services. The social worker informed mother that visits were scheduled to occur once a week at the Department's offices. Mother stated that she would not attend visits because the Department would not pay for her transportation. Mother also refused to be drug tested.
After mother refused to attend visits with Tracy, she began telephoning him at least 10 times a day. Tracy was visibly annoyed by the frequency of the calls and on one occasion, following a fourth telephone call from mother, told grandmother that he did not want to speak with mother. Tracy was strongly bonded with grandmother, who now wished to adopt him.
On February 3, 2011, mother was arrested for making criminal threats against a neighbor and was being held without bail. On February 10, 2011, mother withdrew her section 388 petition and the juvenile court set a section 366.26 hearing for May 10, 2011.
In a section 366.26 report dated May 10, 2011, the Department reported that Tracy, now age three and a half, continued to have serious health issues that required daily monitoring, but was a happy, well adjusted and emotionally healthy child who enjoyed attending preschool. He was thriving under grandmother's care, and grandmother wanted to adopt him. The Department recommended terminating parental rights and adoption by grandmother as the permanent plan.
4. Section 366.26 Hearing
Mother was incarcerated at the time of the section 366.26 hearing. She appeared and testified that she had last seen Tracy on March 24, 2011, and that during the period between August and October 2010, she visited him every other day. During these visits, they would go to a park, to various restaurants for meals together, and to Knott's Berry Farm. She denied showing up at grandmother's home unannounced at 3:00 a.m. demanding visits with Tracy, but said that she had telephoned grandmother in advance of the visit. Mother testified that Tracy knew she was his mother, and that she had been there for him his entire life.
Grandmother testified that she had ensured that Tracy recognized mother as his mother. She said that the child was happy to see mother during visits, but that he did not show signs of missing mother during her absences. Grandmother further testified that she had initially agreed to become Tracy's legal guardian to give his parents the opportunity to reunify with him, but because four years had passed and mother had been incarcerated nearly every year, grandmother now wished to pursue adoption.
Tracy's counsel joined in the Department's request to terminate parental rights. The juvenile court found that the evidence showed that grandmother was the only parental figure Tracy had known, and that the attachment between Tracy and grandmother was much greater than any that existed between Tracy and mother. The court found, by clear and convincing evidence, that Tracy was adoptable, and that the child would not suffer any detriment if parental rights were terminated. The juvenile court accordingly terminated mother and father's parental rights and ordered the Department to proceed with adoption as the permanent plan. This appeal followed.
DISCUSSION
I. Applicable Law and Standard of Review
We review the juvenile court's ruling on whether an exception applies to terminating parental rights pursuant to section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) Under this standard, an appellate court must affirm the juvenile court's order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Autumn H., at p. 576.)
Section 366.26, subdivision (c)(1) provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, "'[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. [Citation.]' [Citation.]" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) "Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]" (Autumn H., supra, 27 Cal.App.4th at p. 573.) Although the statutory preference is in favor of adoption, section 366.26 lists certain exceptions that may preclude termination of parental rights, if the juvenile court finds "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The exception relevant to the instant case provides as follows: "The 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).)
The parent bears the burden of proving that this exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) "[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more than merely some benefit to the child by continuing the parent child/relationship. That relationship must be "a substantial, positive emotional attachment such that the child would be greatly harmed" if the relationship were severed. (Ibid.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)
When determining whether a parent/child relationship confers more than incidental benefit to a child, courts have noted that such a "relationship arises from day-to-day interaction, companionship and shared experiences." (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.), quoting Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent seeking to establish the existence of such a relationship need not, however, prove that "the child has a 'primary attachment' to the parent, or to show the parent and the child have maintained day-to-day contact. If that were that standard, the rule would swallow the exception. [Citation.]" (S.B., supra, at p. 299.)
Factors that the juvenile court should consider when determining the applicability of the exception include "[t]he 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 . . . ." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
II. No Reversible Error
Mother failed to meet her burden of establishing that the parental exception to terminating parental rights applied in this case. She failed to show that she occupied a parental role in Tracy's life. Tracy never lived with her, and she was incarcerated for a substantial part of the child's life. In contrast, Tracy had lived with grandmother since he was three months old. He relied on grandmother not only to care for his many medical needs, but for comfort, emotional support, and stability. During one of Tracy's numerous overnight hospital stays, mother planned to spend the night in his hospital room with him and grandmother left the hospital to return to her home. When Tracy woke in the hospital room with mother, he proceeded to "holler" for grandmother, and mother had to telephone grandmother to return to the hospital. Substantial evidence supports the juvenile court's conclusion that Tracy's bond with grandmother was stronger than his bond with mother and that mother's relationship with Tracy did not rise to the level of "a substantial, positive emotional attachment such that the child would be greatly harmed" if that relationship were severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________ , J.
CHAVEZ
We concur:
_______________ , P. J.
BOREN
_______________ , J.
ASHMANN-GERST