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In re J.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 20, 2012
B233284 (Cal. Ct. App. Jan. 20, 2012)

Opinion

         NOT TO BE PUBLISHED

         APPEAL from an order of the Superior Court of Los Angeles County, No. CK81813 Rudolph Diaz, Judge

          Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

          Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey M. Blount, Deputy County Counsel, for Plaintiff and Respondent.


          KITCHING, J.

         INTRODUCTION

         S.L. (Mother) appeals from a juvenile court order terminating parental rights to her daughter J.L. Mother claims that her parental rights should not have been terminated because of the “beneficial relationship” exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). Mother, however, did not show that she had maintained regular visitation and contact with J., or that J. would benefit from continuing the relationship. Substantial evidence supported the juvenile court’s finding that Mother had not provided evidence to satisfy the beneficial relationship exception to termination of parental rights. We affirm the order.

Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.

         FACTUAL AND PROCEDURAL HISTORY

         Detention and Section 300 Petition: On April 7, 2010, 20-month-old J.L. was detained after she was brought to a Department of Children and Family Services (DCFS) office by Linda H., who reported that Mother had left J. with Linda H.’s father 16 months earlier. Linda H. had cared for J. for the past 16 months. Mother had been incarcerated since September 2009. Linda H. surrendered J. because she could not longer care for her due to financial difficulties. When Mother was interviewed, she denied knowing Linda H. or giving J. to Linda H. to care for, and said that until she was incarcerated three weeks earlier, she and her boyfriend had been raising J. J.’s alleged father, Johnny R., was incarcerated for drug possession.

         On April 12, 2010, the DCFS filed a section 300 petition alleging that J. was a person described by section 300, subdivision (b) [child suffered or risked suffering serious physical harm or illness as a result of parent’s failure or inability to supervise or protect child] in that Mother made an inappropriate plan for J.’s care resulting in her being placed with an unrelated caretaker, Linda H., who had a history of mental and emotional problems, manic depression, and psychiatric hospitalizations. The petition also alleged that J. was a person described by subdivision (g) [child left without provision for support, or child’s parent was incarcerated and could not arrange for care of the child; or adult custodian with whom the child resides is unwilling to provide care for the child] in that Mother was incarcerated and made an inappropriate plan for J.’s care resulting in her being placed with an unrelated caretaker, Linda H., and Father failed to support the child and was unwilling or unable to support for the child.

         On April 12, 2010, the juvenile court found that a prima facie case was established for detaining J. as a person described by section 300, subdivisions (b) and (g), and ordered her detained.

         Adjudication and Disposition: As of May 4, 2010, Mother remained incarcerated. She denied knowing Linda H. and said she left J. three weeks earlier with Darnell B., a friend she had known for six months. Alleged father Johnny R. was incarcerated. Barbara B. (girlfriend of Mother’s brother) stated that Mother cared for J. from July 2008 to June 2009, and when Mother was incarcerated she left J. with Barbara B. with a notarized letter allowing her to care for J. Mother violated her probation in November 2009 and was “on the run” until her arrest on March 21, 2010.

         Mother had never been employed and admitted having a criminal history. Mother reported a domestic violence history with her boyfriend Alfred Y. from 2008 to the present, that she was physically and emotionally abused, and that she was the perpetrator in some incidents. Mother also admitted her history of drug abuse, use of crack cocaine for a few months at age 19, and use of marijuana on and off since age 16, with her last use on March 21, 2010, before she was arrested.

         J., at age 22 months, had experienced four different primary caregivers since birth. J. was assessed as lacking a secure attachment with a primary caregiver, as evidenced by her difficulty in differentiating her current primary caregiver from other adults. As of May 25, 2010, Mother had no contact, visitation, or phone calls with J. since detention on April 7, 2010.

         On September 28, 2010, Mother and J. completed a successful visit at the Century Regional Detention Facility.

         On September 29, 2010, the juvenile court found that J. was a person described by section 300, subdivisions (b) and (g).

         On November 15, 2010, the DCFS filed a section 342 petition alleging that J. was a person described by section 300, subdivision (b) [child suffered or risked suffering serious physical harm or illness as a result of parent’s failure or inability to supervise or protect the child] in that on numerous occasions from 2008 to 2010, Mother and her former companion, Alfred Y., engaged in mutual violent altercations, in which Alfred Y. struck Mother’s head and face and kicked and tripped her; Mother threw boiling water on Alfred Y., causing second and third degree burns; Mother strangled Alfred Y.; and Alfred Y assaulted Mother in J.’s presence and was arrested for corporal injury to a cohabitant. A second count alleged that Mother had a four-year history of illicit drug abuse, including crack cocaine and marijuana, and currently abused marijuana, rendering her incapable of providing regular care for J.

         Mother confirmed that she and ex-boyfriend Alfred Y. had a domestic violence history from 2008 to 2010. As of November 15, 2010, Mother was incarcerated in state prison and alleged father was incarcerated in Los Angeles County Jail. Mother stated that she was sentenced to 48 months in prison and her expected release date was February 13, 2012. J. had a successful visit with mother on November 22, 2010.

         On December 13, 2010, the juvenile court found J. to be a person described by section 342, subdivision (b), declared J. a dependent child of the juvenile court under section 300, subdivisions (b) and (g) and section 342, subdivision (b), and ordered custody taken from the parents and placed in the care of the DCFS. The juvenile court ordered no family reunification services for Mother or for alleged father Johnny R., both of whom were incarcerated. The court set the matter for a hearing on April 11, 2011, to select and implement a permanent plan under section 366.26.

         Section 366.26 Hearing: On April 22, 2011, the DCFS reported that Mother remained incarcerated in Chowchilla State Prison. There had been no visitation between Mother and J., although during the week of April 11, 2011, arrangements had been made for J. to visit with Mother while she was temporarily housed in Los Angeles County jails. In previous visits with Mother, J. had become irritated and agitated as there was nothing to entertain her. The DCFS CSW observed that J. had no attachment or bond to either parent, and did not have a relationship with Mother so she was not focused on visiting.

         J. lived with Mr. and Mrs. W., who were prospective adoptive parents for whom a home study was approved on March 12, 2011. J. was doing well in their home and had established a significant relationship with them. Mr. and Mrs. W. said they felt very close to J., who called them “Mom” and “Dad.” Mr. and Mrs. W. made sure that J. received appropriate care and services, as was evidenced by J.’s weekly participation in counseling.

         On April 22, 2011, the juvenile court stated that paternity test results showed Johnny R. was not biologically related to J. The juvenile court ordered adoption as the permanent plan and set a contested permanent plan hearing for May 9, 2011.

         At the May 9, 2011, contested section 366.26 hearing, the juvenile court heard argument from counsel but no testimony. Counsel for Mother objected to termination of parental rights and argued that the benefit of a continued parental relationship outweighed the benefit of adoption. Mother’s counsel argued that J. was 21 months old when removed from the custody of Mother, who had custody of J. more than half of her life. Mother believed she had a significant bond despite the limitations on visitation caused by her incarceration, and tried to maintain that bond by writing to J. regularly. Mother believed that she remained in a parental role for J., and asked the juvenile court not to terminate her parental rights.

         The juvenile court found that J. was adoptable, that return of J. to her parents would be detrimental to her, and that no exception to adoption applied. Therefore the juvenile court ordered parental rights terminated.

         Mother filed a timely notice of appeal.

         ISSUE

         Mother claims on appeal that because the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied, it was error to terminate parental rights.

         DISCUSSION

         1. The Beneficial Relationship Exception to Termination of Parental Rights

         Pursuant to section 366.26 subdivision (c)(1), if the court determines “that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” This statute further states that “[a] finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered... shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:

         “[¶]... [¶]

         “(B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:

         “(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

         When contesting termination of parental rights based on the section 366.26, subdivision (c)(1)(B)(i) exception, the parent has the burden of showing either that (1) continuing the parent-child relationship will promote the child’s well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents, or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “[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.” (Ibid.) The biological parent must show more than that the child would derive some benefit from continuing a relationship maintained during parent-child visitation. A dependent child of the 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 child’s need for a parent.” (Ibid.)

         This court reviews a juvenile court finding that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply according to the substantial evidence test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228; In re Casey D. (1999) 70 Cal.App.4th 38, 53.)

         2. Mother Did Not Meet Her Burden of Showing Evidence of Regular Visitation and Contact with the Child

         With regard to whether Mother maintained regular visitation and contact with J., as of May 25, 2010, Mother had no contact, visitation, or phone calls with J. since she was detained on April 7, 2010. Mother and J. had successful visits on September 23, 2010, and on November 22, 2010. There was no further visitation between Mother and J. through April 22, 2011. A visit was scheduled for April 27, 2011, at the Century Regional Detention Facility, but it is not known if that visit took place. Thus Mother had two, or possibly three, visits in the 13 months from April 7, 2010, to May 9, 2011. Mother did not meet her burden of showing regular visitation and contact.

         3. Mother Has Not Shown That J. Would Benefit from Continuing the Parent-Child Relationship

         With regard to whether the child would benefit from continuing her relationship with Mother, the “benefit of relationship” test has several factors. “A beneficial 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.’ [Citation.] The existence of this relationship is determined by ‘[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.’ [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) Although the statute does not define the exact nature of the parent-child relationship which must exist to trigger application of the statutory exception to terminating parental rights, “the relationship must be such that the child would suffer detriment from its termination.” (In re Angel B., supra, 97 Cal.App.4th at p. 467.)

         With regard to the first two Amber M. factors, J. was first detained from Mother on April 7, 2010, at the age of 20 months. There was conflicting evidence about when Mother ceased to have custody of J., but there was evidence, which the juvenile court accepted, that Mother had given custody of J. to Linda H. 16 months before detention. Thus J. had not been in Mother’s custody for the previous 13 months, and possibly for the previous two years and five months, of her life of two years and nine months.

         In J.’s visits with Mother on September 23, 2010, and November 22, 2010, it was reported that J. had become irritated and agitated as there was nothing to entertain her. The DCFS CSW observed that J. had no attachment or bond to her parents, and did not have a relationship with Mother so she was not focused on visiting. In a May 2010 Multidisciplinary Assessment Team study of Mother and J., due to her experience with four different primary caregivers since birth, J. was observed not to have formed a secure attachment to a primary caregiver. Indifference to or detachment from a parent are factors indicating the lack of the necessary positive relationship. (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. 4.)

         There was no evidence that J. had particular needs that could be met by Mother but not by her caregivers and prospective adoptive parents, Mr. and Mrs. W. The MAT assessment stated that the placement with Mr. and Mrs. W. met J.’s needs, addressed her recommended goals, and provided for her well-being.

         Thus Mother did not meet her burden of showing either that (1) continuing the parent-child relationship would promote J.’s well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with an adoptive parent, or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Mother did not show that “severing the natural parent-child relationship would deprive [J.] of a substantial, positive emotional attachment such that the child would be greatly harmed.” (Ibid.) There was no evidence that the parent-child relationship was such that J. would suffer detriment from its termination. (Id. at pp. 467, 468.)

         Mother did not establish that a sufficiently significant relationship existed between herself and J. such that termination of parental rights would be detrimental to the child. (In re Angel B., supra, 97 Cal.App.4th at p. 468.) Substantial evidence supported the trial court’s finding that Mother had not provided evidence to satisfy the beneficial relationship exception to termination of parental rights.

         DISPOSITION

         The order is affirmed.

          We concur: CROSKEY, Acting P. J.ALDRICH, J.


Summaries of

In re J.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 20, 2012
B233284 (Cal. Ct. App. Jan. 20, 2012)
Case details for

In re J.L.

Case Details

Full title:In re J.L., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 20, 2012

Citations

B233284 (Cal. Ct. App. Jan. 20, 2012)