Opinion
C066725Super. Ct. No. JD229499JD229500JD225603
08-18-2011
In re A.J. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. C.W et al., Defendants and Appellants.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellants C.W. (father) and L.J. (mother) appeal from the juvenile court's orders terminating their parental rights and ordering a permanent plan of adoption as to three of their young daughters. (Welf. & Inst. Code, § 366.26.) Both parents contend that the juvenile court erred by terminating their parental rights, claiming the applicability of the beneficial parental relationship exception to adoption. Mother also contends that substantial evidence does not support the court's finding that she had a substance abuse problem she had failed to treat.
Further undesignated statutory references are to the Welfare and Institutions Code.
As we will explain, we are not persuaded. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The 2007 case
On March 14, 2007, Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to A.J. (a female born in December 2006) and her half sibling D.J. (a male born in October 1993). The petitions alleged that mother and father had a history of domestic violence, including incidents on December 28, 2006, and February 19, 2007, which occurred with one or both minors in the home. In the second incident, gunshots were fired into the home. Mother was arrested on March 8, 2007, for felony conspiracy, based on the allegation that she had persuaded her brothers to break into the family home with firearms with the intent to do violence to father in the February incident.
A.J.'s full last name is hyphenated; mother's briefing refers to her as "A.J.," as do we; father's briefing refers to her as "Ar. W."; the People refer to her as "A.W."
Since D.J. is not involved in this appeal, we do not discuss him further.
Mother was reported to have tested positive for amphetamine (later clarified to be methamphetamine, see post at fn. 4) and marijuana in October 2006, during a prenatal visit, and later at the time of A.J.'s birth in December 2006. On December 14, 2006, the parents had agreed to informal supervision, including parenting classes and substance abuse testing. They were compliant for two weeks--until December 28, 2006--when they engaged in domestic violence in the minors' presence and mother sustained injuries.
At the initial hearing on March 15, 2007, the juvenile court ordered the minors detained.
Mother denied using drugs or alcohol since Child Protective Services (CPS) had become involved in the case, although she said that the day before she began informal supervision, she had smoked a "blunt"; she admitted regularly using alcohol, marijuana, and methamphetamine in the past, and told the social worker that her first use of methamphetamine occurred in 2000. Mother's STARS worker reported that mother's intake date was December 28, 2006; she had tested positive for methamphetamine and alcohol on January 19, 2007, and had signed a statement of noncompliance, which included an admission of drug use, but had been compliant with her program from then until her incarceration on March 8, 2007.
At the jurisdiction/disposition hearing on April 11, 2007, the juvenile court dismissed the petitions without prejudice in lieu of additional informal services. A.J. had been detained for about a month.
II
The Current Case
On April 2, 2009, the Department filed section 300 petitions as to A.J. (then 2 years old), C.J. (then a 10-month-old female born in May 2008), and M.J. (then a newborn female born in March 2009). The petitions alleged that mother had a substance abuse problem dating back to at least 2006 from which she had failed or refused to rehabilitate, in that (1) in March 2009, at the time of M.J.'s birth, mother and M.J. tested positive for methamphetamine, and mother tested positive for THC; (2) in December 2006, at the time of A.J.'s birth, mother and A.J. tested positive for amphetamine and mother tested positive for THC; (3) on April 1, 2009, at the UC Davis CAARE Center, C.J. tested positive for methamphetamine. The petition also alleged that the parents had a history of domestic violence, most recently on or about March 15, 2009, in A.J.'s and C.J.'s presence.
The detention report clarified that the positive tests in 2006 were for methamphetamine, not amphetamine.
Mother claimed her test results in December 2006 were false positives caused by using Sudafed before A.J.'s birth. On March 30, 2009, after M.J.'s birth, mother again denied using methamphetamine. "She reported she ha[d] not used methamphetamine since 2006, when she tested positive with her child, [A.J.]." According to mother, all positive test results were due to taking prescribed Sudafed at the hospital.
In other words, according to the report, mother simultaneously admitted and denied using methamphetamine before A.J.'s birth in 2006. She added: "I never touched drugs since then." She apparently was not asked to reconcile her protestations with her January 2007 admission of methamphetamine use.
Mother reported she was not in a relationship with father, from whom she had separated in March 2007. Father confirmed this claim. He also endorsed mother's statement that she did not use methamphetamine and had been given Sudafed at the hospital.
The report does not state whether father claimed this happened in 2006, 2009, or both.
According to Sacramento County law enforcement, on March 15, 2009, father and mother called to report domestic violence. Father left that night with the children.
A sheriff's department report stated that father and mother had said they lived together at the residence. Father punched mother three times in the face and pulled her to the ground; she fell onto a child's swing where three-month-old C.J. was sitting. Father said mother threw a vase at his head. Both parents sustained physical injuries.
The juvenile court held a contested jurisdiction/ disposition hearing on August 24, 2009. The court sustained the petitions' drug use allegations, and dismissed the domestic violence allegations. The court removed the three sisters, and ordered reunification services to the parents.
The reasons for the dismissal do not appear in the record. However, services were ordered to address the parents' history of domestic abuse; it is not clear from the record whether these services were completed.
On February 24, 2010, the Department filed a permanency review report which recommended further services for the parents. However, the report noted concerns, including that although the parents claimed to live separately and not see each other, the social worker had found father's car parked in mother's garage, and he had been seen driving her car. The social worker suspected that father was actually living with mother in her home. The social worker also suspected that mother was pregnant, although mother had denied that she was.
Mother had tested positive for "methamphetamine/ amphetamine" on April 14 and 15, 2009, and had not tested since then, despite having been reminded on April 27 that she was required to test, and having been again referred to Valley Toxicology for testing in July 2009. She failed to report to the STARS program and dependency drug court as ordered in August 2009.
Father had not submitted to drug or alcohol testing, and had failed to complete counseling and parenting programs.
A.J., C.J., and M.J. were adoptable as a sibling set, and the social worker did not know of any issues that might preclude adoption. In an addendum report filed on May 25, 2010, the
Department recommended terminating the parents' services and setting the matter for a section 366.26 hearing.
On March 22, 2010, despite having recently denied to the social worker that she was pregnant and/or seeing father, mother gave birth to father's baby. She agreed to allow hospital staff to drug test the infant, but tampered with the urine collection bag. A sample could not be collected until March 24, 2010; mother and the infant then tested negative for all illegal substances. After leaving the hospital, mother refused to disclose the infant's whereabouts.
Mother tested negative for drugs and alcohol on March 1, 4, 9, 10, 17, and 19, 2010. On March 22, 24, and 30, 2010, she failed to test as directed, which resulted in administrative positives. On March 31, 2010, she tested presumptive positive for methamphetamine. On April 21, 23, and 27, 2010, mother again failed to test as directed. On April 22, 2010, mother again tested positive, but did not request a confirmation test, despite being given 24 hours to pay the $20 fee.
The Department's report indicates a missed test on April 22; however, the attached record shows the positive test, disputed by mother, but failing to request confirmation.
Father continued to refuse to submit to drug and alcohol testing, saying he did not trust the Department because it had tampered with mother's test results. He had also refused to disclose the newborn's whereabouts.
Because the parents had misled the Department concerning the newborn, and because they refused to acknowledge or address their substance abuse and domestic violence issues, the Department recommended terminating their reunification services and setting the matter for a section 366.26 hearing as to A.J., C.J., and M.J.
At a contested permanency review hearing on June 30, 2010, the parents argued against terminating services but presented no evidence. The juvenile court adopted the recommended findings and orders terminating the parents' services and setting a selection and implementation hearing.
The section 366.26 report, filed October 18, 2010, recommended the termination of parental rights and a permanent plan of adoption for the minors.
The parents' visitation had been reduced to once a month, supervised, for an hour at a time. They visited separately. No problems during or after the visits had been reported.
A.J. (then three years old) and C.J. (then two years old) were still placed in a different foster home from M.J. (then one year old). The minors regularly visited each other and their caretakers were in contact with one another. Both sets of caretakers wanted to adopt their respective girls. The minors were generally adoptable and appeared to be thriving in their current placements. They had developed close emotional connections to their caretakers, with whom they had been placed for well over a year; in M.J.'s case, since she was two days old.
The juvenile court held a contested section 366.26 hearing on November 18, 2010. Both parents testified.
Father testified that he and mother visited the minors separately, as ordered by the Department, once a month for an hour, under supervision; he had not missed any visits in the last six months. The visits went very well. The minors were excited to see him and tell him things; they called him "daddy." He brought them fruit and other healthy snacks. He sat down and played with them, read to them, and talked with them. They would cry when the visits ended. He knew he and the minors were bonded to each other. He opposed the termination of his parental rights.
Mother also testified that she visited the minors regularly once a month, under supervision. Her visits also went well. She believed all the minors were bonded to her. She opposed the termination of her parental rights. She denied any domestic violence or drug problems. She insisted that none of the minors tested positive for methamphetamine at birth and that she had "paperwork" to prove it.
She did not explain this statement further, and no such paperwork was introduced in evidence before the court made its ruling. Later, she filed a notice of appeal in propria persona, to which she attached purported copies of medical records. As these attachments were not properly made a part of the record below or on appeal, we decline to consider them.
The minors submitted on the Department's report and endorsed its recommendations. The parents argued that the beneficial parental relationship exception to adoption applied.
The juvenile court found that the parents' testimony about the history of the case, in particular mother's denial of domestic violence and substance abuse problems, was not credible. The court noted that, although the domestic violence allegations in the section 300 petitions had been dismissed, programs for domestic violence remained in the parents' case plans. Furthermore, though mother denied a drug problem, she had submitted on the substance abuse allegations at the 2009 jurisdiction/disposition hearing and had agreed to go to dependency drug court. Nevertheless, she had failed to treat her substance abuse problem: she had not gone to drug court, gotten a sponsor, attended AA/NA meetings, become clean and sober, or tested regularly. The parents claimed the positive tests were a mistake, but could not prove it. In the court's view, it was "a red herring" to believe that the substance abuse allegations were anything but true, and it was "somewhat mind boggling the parents can claim that there's simply no reason these children were ever removed[.]"
The court also found by clear and convincing evidence that the minors were likely to be adopted within a reasonable amount of time.
Finally, the court found that although the parents had met the first prong of the beneficial parental relationship exception to adoption (regular visitation and contact with the minors), they could not establish the second prong. Even if the court deemed their testimony completely credible (which it did not), it did not establish that they had such a significant, positive relationship with the minors that the minors would be greatly harmed by severing that relationship.
The court then ordered the termination of mother's and father's parental rights and a permanent plan of adoption for the minors.
DISCUSSION
I
Parental Relationship Exception
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for the minors; the permanent plan preferred by the Legislature is adoption. If the minors are adoptable, the court must terminate parental rights absent a showing of detriment to the minors. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1358.)
The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
To prove that the beneficial parental relationship exception applies, the parent must show that he or she "ha[s] 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 not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) But even where such an attachment exists, it does not preclude adoption if the minors look to their prospective adoptive parents to meet their needs. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Both parents cite their own testimony about the success of their visitation and their bonding with the minors, as well as favorable comments by observers of supervised visitation sessions. Father also cites the social worker's comment in the section 366.26 report that there had been no recent problems with visitation and a statement by father's therapist that he had made progress in parenting and had good problem-solving skills.
Most of this evidence, however, goes to the first prong of the beneficial parental relationship exception (regular visitation and contact). As the juvenile court correctly noted, even if that prong were proved, more is required to find the exception.
In deciding whether the benefit to the minors of preserving the parental relationship outweighs the detriment of terminating it, the juvenile court must consider factors including "'(1) the age of the child, (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. [(2002)] 97 Cal.App.4th [454,] 467 [].)" (In re Helen W. (2007) 150 Cal.App.4th 71, 81.) Of these factors, only the third counts in the parents' favor--and then only if their uncorroborated claims about the depth of the minors' attachment to them are taken at face value.
Unlike the cases cited by the parents, in this case there were no bonding studies, nor was there evidence other than the parents' testimony regarding any beneficial parental bond with these very young children. Nor did these parents come even close to completing their services -- a further distinguishing factor. (See, e.g., In re S.B. (2008) 164 Cal.App.4th 289, 294-296 [father had made "consistent efforts to alleviate or mitigate the reasons his family was brought to the attention of the court"; bonding study concluded "fairly strong" bond and that there was a "potential for harm" to child should the court terminate parental rights].)
These minors were very young--the oldest only three years old at the time the juvenile court made its orders, the youngest only one. A.J. and C.J. had spent at least half of their very young lives removed from the parents' custody, and M.J. had never lived with either parent. The minors' foster parents, who wished to adopt them and to whom they were emotionally connected, were providing for all their needs. (See In re Zachary G., supra, 77 Cal.App.4th at p. 811.) Given the Legislature's preference for adoption at the selection and implementation stage, the balance clearly weighs against the parents. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Further, the juvenile court had ample grounds for doubting the parents' credibility. Most recently, they had been devious and deceptive about everything connected with their youngest infant (mother's pregnancy, the hospital's attempt to drug test the infant at birth, and the infant's current status and whereabouts). They had tried to conceal from the Department and the court that they were continuing to see each other. Throughout the history of the case, they had denied the issues that caused the minors to be removed from their custody, including both domestic violence and substance abuse, in the face of overwhelming evidence to the contrary.
Thus the parents have failed to show that the juvenile court erred by rejecting their attempt to prove the beneficial parental relationship exception to adoption.
II
Evidence of Substance Abuse
Mother asserts that there was no substantial evidence she ever had a substance abuse problem. She repeats on appeal her contention that her positive test results were either misreported or were false positives produced by Sudafed.
To support this argument, mother cites extra-record information as purported authority, including a treatise and Google Answers. This information was not before the juvenile court, and we decline to consider it now. (See In re K.P. (2009) 175 Cal.App.4th 1, 5.)
Substantial evidence supports the juvenile court's contrary finding. Mother initially agreed to go to dependency drug court, to take part in substance abuse treatment programs, and to drug test regularly. She failed to follow through, even though consistently negative drug tests would have been the best evidence that she was no longer a substance abuser. After denying use at A.J.'s birth in December 2006, she again tested positive for methamphetamine less than a month later, at which time she admitted use. She twice tested positive for amphetamines in April 2009, and presumptive positive for methamphetamine on March 31, 2010, nine days after the birth of the infant whom she prevented the hospital from drug testing at birth. She tested positive for methamphetamine again on April 22, less than a month later, and declined a confirming test. After that, she continued to fail to test as directed.
Mother had previously admitted using methamphetamine from 2000 through 2006, and signed a written admission of use in January 2007.
Mother makes much of the fact that few "test reports" or other drug testing results were attached to the various reports submitted by the Department; as the Department's reports themselves are evidence, this observation does not negatively affect our substantial evidence analysis.
In light of all of this evidence, together with mother's demonstrated lack of credibility on other subjects, the court had no basis to accept mother's claim--uncorroborated by any evidence before the court--that the Department had fabricated the charges of substance abuse.
DISPOSITION
The juvenile court's orders are affirmed.
DUARTE, J.
We concur:
BLEASE, Acting P. J.
NICHOLSON, J.