Opinion
E055852
10-22-2012
In re D.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.G., Defendant and Appellant.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. RIJ119739)
OPINION
APPEAL from the Superior Court of Riverside County. Jacqueline Jackson, Judge. Affirmed.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
E.G. (Mother) appeals from an order terminating her parental rights concerning her child, D.G., pursuant to Welfare and Institutions Code section 366.26. She contends the trial court erred in denying her section 388 petition and then failing to apply the beneficial parental relationship exception to adoption. We affirm the order.
All further statutory references are to Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
D.G. was born prematurely in April 2010. Both Mother and D.G. tested positive for amphetamines, and the hospital contacted Riverside County Department of Public Social Services (the Department). The child spent his first few weeks in the neonatal intensive care unit. On May 6, Mother was arrested for probation violations for drug use, not reporting her address, and associating with other probationers. D.G. was taken into protective custody, and the Department filed a juvenile dependency petition pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), alleging that Mother had an unresolved history of abusing controlled substances, had used methamphetamine while pregnant with D.G., had not benefitted from a prior substance abuse treatment program, and had a history of domestic violence with her current boyfriend. Following the detention hearing on May 11 and May 12, the court found that a prima facie showing had been made for detaining D.G. out of the home, and a jurisdictional hearing was set. The court authorized supervised visitation between the child and Mother.
In the report prepared for the jurisdiction/disposition hearing, it was noted that Mother had another son who was under the legal guardianship of his paternal grandmother and living with his father. She had also given birth to a child in 2007; however, the baby died when it was 11 hours old. Mother admitted using methamphetamine at that time. She began smoking methamphetamine at age 21 and had last used it on May 2 or May 3, 2010. Mother had a criminal history that included convictions for theft and burglary. She and the father had a history of domestic violence and physical altercations. When the social worker visited Mother in jail, she expressed concern about D.G.'s health and well-being, and she asked for pictures of him and updates. She did not want the child transported to jail for visitation.
Because the child's father is not a party to this appeal, we do not include any discussion of dependency proceedings involving him.
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Mother was primarily raised by her paternal grandmother because Mother's mother suffered from bipolar disorder and abused prescription medication, while her stepfather used heroin and alcohol. Mother graduated from high school, attended one semester of college, and obtained a certificate in sales and merchandising. Her last job was in 2008, working through a temp agency.
On June 15, 2010, an amended petition was filed adding an allegation that Mother was not a member of the child's household and had failed to make herself available to provide D.G. with adequate food, clothing, shelter, medical treatment, and protection. The addendum report filed on June 29 noted that Mother had a no-contact visit with the child on June 15. She was unable to hold and/or touch the child because she was in custody and would remain incarcerated until November or December 2010.
At the July 6, 2010, jurisdiction/disposition hearing, the court found the allegations in the amended petition to be true by a preponderance of the evidence. D.G. remained placed outside the home, and the court ordered reunification services and that prior visitation orders were to remain in full force and effect. The court also authorized Mother to reside with the caretakers upon her release from custody.
The status review report prepared for the six-month review hearing was filed on December 22, 2010. The social worker recommended six additional months of services and unsupervised visitation between Mother and D.G. Mother had been released from custody on November 27, 2010. D.G. had been living with his paternal grandparents since July 22, 2010, where he was described as "thriving." Mother was staying on the grandparent's property, where she was able to have daily visits with her child. While incarcerated, Mother maintained contact with the Department and participated in all services available. Although she had made some progress on her plan, the social worker opined that she "would benefit from six additional months" of services. On February 6, 2011, at the six-month review hearing, the trial court followed the recommendations of the Department, including authorizing unsupervised visitation between Mother and the child.
The 12-month review report was filed on July 26, 2011. The social worker recommended termination of reunification services and that a section 366.26 hearing be set to implement the permanent plan of adoption by the paternal grandparents. Mother was renting a room in an apartment, was unemployed, and was involved with a male friend who she reported "would not pass a criminal background check." Mother's progress on her case plan had deteriorated to the point where she was "no longer participating in any case plan services." She relapsed, using methamphetamine in April 2011, and tested positive several times for both marijuana and methamphetamine. On June 14, Mother was warned that if she left her inpatient program, she would have very little chance of reunifying with her child. Despite this warning, Mother left the program on that same day and moved in with her boyfriend. She explained that she "feels she has too much to do and is simply unable to care for her son at this time and complete the courses." She was agreeable to allowing the paternal grandparents to have temporary guardianship while she would retain visitation rights. She was opposed to D.G. being placed for adoption.
Following Mother's relapse, visitation was changed to supervised visits only, once a week for one hour. Mother "was bonding very little with her child," who was described as being "very bonded" to his paternal grandparents. He would reach for them instead of Mother and was "so bonded with [them] that he often crie[d] when others h[e]ld him . . . ." The grandparents have been referred to begin the adoption process.
In the addendum report prepared for the 12-month review hearing, the social worker reported there was no change in the recommendation. On August 17, 2011, Mother informed the social worker that she did not want her son living with her right now and she needed two or three years and then would "'probably be ready to have him.'" However, on September 13, Mother said, "'I do not want reunification. I do not want adoption and I'll fight that if I have to but I do not want reunification. I don't want my son living where I am living right now and I know he has his bedroom and all his stuff already where he is.'" Mother was noncompliant with her case plan but wanted more visitation.
On September 27, 2011, at the 12-month review hearing, the trial court terminated Mother's reunification services and set a contested section 366.26 hearing.
On December 16, 2011, Mother filed a section 388 petition requesting the court to vacate the section 366.26 hearing, reinstate reunification services, and increase visitation. The court granted a hearing on Mother's petition.
The report prepared for the section 366.26 hearing noted that following Mother's relapse she was incarcerated and not released until October 2011. Upon her release, she entered a 30-day drug program, which she completed on December 8, 2011, and was currently residing in the aftercare program. However, she had not yet addressed the issues of domestic violence and her continued unstable housing. The child was being cared for "in a manner which exceeds the Department's expectations." He was very bonded with the paternal grandparents, who were providing him with learning toys and opportunities. Mother was visiting D.G. every week for two hours; however, D.G. was "often irritated when the mother tries to assume the parental role." The social worker described the interaction between Mother and D.G. as sufficient, but when D.G. wanted his needs met, he sought out the grandparents. If parental rights are terminated, the grandparents would be willing to continue visitation once a month for two hours with supervision.
On January 18, 2012, an addendum report was filed, which included the Adoption Assessment report. A second addendum report was filed on January 31, 2012, in response to the trial court's inquiry as to whether reunification services should be reinstated for Mother. The Department noted that Mother had received 12 months of services; however, she "failed to realize the detriment of substance abuse to herself and her child." Despite two prior enrollments in parenting courses, Mother had only recently completed such course while in the MFI residential inpatient program. Mother did complete a domestic violence program in January 2011. Mother's initial participation in individual counseling was terminated when she was caught falsifying a urine substance abuse test. She is once again receiving individual counseling through the MFI Recovery program. Regarding Mother's substance abuse, she relapsed in spring 2011 and then entered the MFI residential inpatient program in October 2011, which she completed in December. She has not disclosed any drug testing results, and she took the social worker off the release of information at the MFI Recovery program as of January 8, 2012. Mother planned to have D.G. live with her at the sober living home while she attended the MFI day aftercare program and went to school. The social worker described Mother's progress as "recent" and described Mother as "new to recovery and continues to have unstable housing." Mother planned to have the paternal grandparents care for D.G. during the day while she continued to work on her recovery and attend school. D.G. had not lived with Mother since he was born. He had spent 18 of his 21 months living with the paternal grandparents, and they were very bonded. According to the social worker, Mother "has not demonstrated the capacity to safely care for [D.G.], as she has waited to the very point of termination of parental rights to address the issues which brought her before the Court."
On March 6, 2012, the trial court denied Mother's section 388 petition on the grounds there was no change in circumstances. The court then proceeded to the section 366.26 hearing, where it found that adoption was in the child's best interest and none of the statutory exceptions to termination of parental rights applied. The court terminated Mother's parental rights.
II. BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) "Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]" (In re S.B. (2008) 164 Cal.App.4th 289, 297.)
The parental benefit exception is set forth in section 366.26, subdivision (c)(1)(B)(i). (In re S.B., supra, 164 Cal.App.4th at p. 297.) The exception applies when two conditions are satisfied: (1) "the parent has maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see § 366.26, subd. (c)(1)(B)(i).) Regarding the first condition, Mother claims she maintained regular visitation and contact with D.G. The Department concedes that Mother met this prong of the exception. Thus, we turn to the second condition.
Mother bears the burden of showing that her relationship with D.G. "'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. . . . 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 parent's rights are not terminated.' [Citation.] [¶] The parent must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental role' in the child's life. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826, 827.)
"'The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the 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.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.' [Citation.]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)
There must be a "'compelling reason'" for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; see also § 366.26, subd. (c)(1)(B).) This is a "quintessentially discretionary determination." (In re Jasmine D., supra, at p. 1351.) Broad deference must be shown to the juvenile's court's discretionary determination, and this court will interfere only if, under all the evidence presented, viewed in the light most favorable to the juvenile court's determination, we conclude no judge could reasonably have made the determination. (Ibid.)
Here, Mother's argument that she established the applicability of the parental benefit exception to adoption is based essentially on the following: D.G. had "spent nearly his entire life placed with his paternal grandparents, where Mother lived too, until she moved out around [D.G.'s] first birthday"; Mother and child had positive interactions and Mother was always appropriate during visitation, addressing D.G.'s needs; while incarcerated, Mother continued to stay informed about D.G.'s development, asking the Department for pictures and updates; and she, like the paternal grandparents, has been a consistent adult in his life.
In response, the Department points out that Mother failed to introduce any evidence showing that D.G. would benefit from continuing the relationship or that he would be greatly harmed by termination of parental rights. While Mother claims to have lived with D.G. for most of his life, she forgets that she was incarcerated from shortly after his birth until November 27, 2010. She then lived on the grandparents' property until June 13, 2011, when she entered the Gibson House inpatient program for 24 hours, then moving in with her boyfriend. Mother was later incarcerated, and in October 2011 she entered an inpatient drug program. Thus, Mother did not live with D.G. for most of his life. When she did live on the grandparents' property, she rarely visited with her child because she was always gone. She did not wake up until 10:00 a.m. to take care of him, and she did not assist the grandparents in his care.
According to the Department, Mother had a "lax attitude" towards her relationship with D.G., as demonstrated by her relapse in drug use, her failure to remain in an inpatient drug program in June 2011, her decision to live with her male friend who would not pass background checks, her decision to remain unemployed, and her diminishing performance in completing her case plan. It was only on the eve of the section 366.26 hearing that Mother rushed to get her life together; however, even then she recognized that she was unable to care for D.G. full time and thus wanted the court to grant legal guardianship to the paternal grandparents. Mother admitted the lack of a parental relationship when she testified, "I do want to work on . . . him getting closer with me . . . ."
While Mother wanted to put off establishing a parental relationship with D.G. for a few years, D.G. was forming a close bond with the paternal grandparents, who provided a comfortable and secure home where his needs were being met. Although Mother's visits with D.G. went well, they did not show the existence of a substantial positive attachment between the two. Given the record before this court, the juvenile court did not err in finding that Mother failed to show that D.G. would benefit from continuing the relationship.
III. DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.