Opinion
E055132
05-17-2012
In re S.M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.M., Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J229755 & CK76658)
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Welfare and Institutions Code.
Father, C.M., appeals from an order terminating his parental rights concerning his daughter, S.M. (§ 395.) Father argues the dependency court erred by not applying the beneficial-relationship exception to the preference for adoption (§ 366.26, subd. (c)(1)B)(i)) and by not approving a legal guardianship as S.M.'s permanent plan instead of adoption. We affirm the order of the dependency court.
Mother, C.S., is not a party to the appeal.
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II
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention Proceedings
The parents have an admitted history of more than 10 years of drug use. Father has a lengthy criminal history.
S.M. was born in February 2006. The Department of Children and Family Services (DCFS) for the County of Los Angeles filed an original dependency petition (§ 300, subd. (b)) in March 2009. The petition alleged parents' failure to protect stemming from alcohol and drug use. S.M. was staying with father in the paternal grandmother's home under filthy, unsanitary, and dangerous conditions. Father was arrested for possession of drug paraphernalia and child endangerment after a parole compliance check discovered glass pipes and spoons coated with methamphetamine; used, dirty, exposed syringes; a baggie containing methamphetamine residue; and a marijuana blunt, all within S.M.'s access. Father blamed the paraphernalia on a female friend who had moved out of his residence. The paternal grandmother denied any women had been living in the house and also denied knowing about father's drug use.
S.M. was temporarily placed in mother's home. Mother said she and father shared custody. Mother lived with her parents and her brother and sister and their children in a clean house with working utilities. Mother admitted to having recently used marijuana and Vicodin.
At the detention hearing, the court found a prima facie case for detention with mother. After mother's drug test was positive for methamphetamine, amphetamine, and marijuana, the court detained S.M. with her maternal grandparents and mother agreed to move out of the family home.
In an amended section 300 petition, DCFS added allegations about father and mother's past and present drug use.
B. Jurisdiction and Disposition
In April 2009, the dependency court sustained the allegations of the petition and ordered parents to receive reunification services and liberal visitation.
In October 2009, DCFS assessed both parents as lacking parenting skills and being negatively affected by drug abuse. In the status review report, DCFS described S.M. as "thriving" in the maternal grandparents' home. S.M. was very attached to her older sister, her maternal aunt, her cousins, and the family pets. S.M. also told the social worker she wanted to visit or live with her father in jail or live with her mother and father when father was released from custody. S.M. had visited father once in jail under supervision. S.M. was very attached to father and also visited with him by telephone. Mother and S.M. had engaged in appropriate visitation. S.M. was attending preschool successfully.
While in jail, father had completed a domestic violence program that included parenting skills. His incarceration limited his ability to participate in reunification services and programs. Mother had enrolled in parenting education courses and a drug treatment program. Mother had mostly negative but some positive drug tests. Mother had moved to San Bernardino County, indicating the need for a transfer in jurisdiction.
At the status hearing, father's counsel represented that father was involved in vocational horticultural training and was scheduled for release. Father objected to the transfer to San Bernardino County. The court ordered reunification services to continue and the case transferred to San Bernardino.
The status review report in December 2009 recommended the court order continued reunification services for the parents. S.M. was living happily with her grandparents and calling her maternal aunt, "Mommy."
Father had been released from jail in October 2009 and moved back in with his mother. He had completed a 12-week addiction recovery program and 81 hours of parenting skills. Since his release on parole, father had a clean drug test and participated in another substance abuse program with a parenting component. Father expressed his willingness to do anything necessary to regain custody of his daughter. The paternal grandmother discussed her efforts to support father's rehabilitation. Father was receiving unemployment benefits and trying to reinstate his driver's license that was suspended for driving under the influence. Mother was living with family members and had obtained employment with the United States Census. Mother was attending substance abuse programs and had clean drug tests. Mother responded negatively to the idea of her parents adopting S.M.
In the status review for April 2010, Children and Family Services (CFS) reported mother was sleeping on the couch at her brother's apartment, which was too small to accommodate S.M. Mother was on a waiting list for section 8 housing. Mother was cleaning houses and applying for work at McDonald's and a thrift store. She was trying to resolve three warrants for failure to appear in traffic court for driving without a license. She wanted to reunify with S.M. but was frustrated by the challenges she faced.
Father was still living with his mother. The house had a bedroom for S.M. Father was receiving unemployment insurance of $375 biweekly. He was in compliance with the conditions of his three-year parole. Father was trying to reinstate his driver's license and to resolve a $1,000 tax lien. Father was enthusiastic about reunification but also frustrated.
S.M. was a happy, well-adjusted child. She spoke of going home with her parents but she was very attached to her aunt and her cousins. CFS discussed a substantial probability of reunification with the parents occurring by October 2010. But CFS also described a plan of adoption by the maternal great-aunt and uncle, a married couple with stable employment and two teenage children.
On July 15, 2010, father had successfully completed his case plan. The court placed S.M. in father's custody. In September 2010, mother was living with father and S.M. and assuming an effective parental role. The parents had negative drug tests and father was still receiving unemployment benefits. Both parents needed to obtain valid driver's licenses and employment. S.M. was enjoying living with her parents and attending church with them. The parents had not enrolled in recommended couples' therapy. The maternal relatives were supportive of the arrangements. CFS voiced some concern about the stability of the parents' domestic arrangements. Nevertheless, the court ordered the parents to continue family maintenance services with custody of S.M.
By March 2011, the parents were living apart again while mother and S.M. lived with the maternal grandparents or mother's adult brother and family. Mother was also staying at father's home. Mother was using methamphetamine and trying to falsify the urine test. Father's unemployment benefits were expiring and he still owed criminal restitution of $5,000. S.M. was distracted at school and displaying anxiety and confusion.
C. Section 387 Petition
CFS filed a section 387 supplemental petition on March 21, 2011, seeking placement with the maternal aunt and uncle. CFS had visited father's house on March 16, 2011, and found "deplorable conditions . . . decaying, spoiled food, garbage and debris" and insufficient food for the four children and six adults living in the home. The parents and S.M.'s bedroom was filled with debris. Four of the adults were not known to CFS. S.M. had suffered food poisoning. Father was losing weight and speaking with unnatural rapidity. The parents were in conflict with one another and had dropped counseling. Mother described a chaotic situation. Father was not working. S.M. asked to live with her maternal aunt, rather than mother or father.
The court ordered S.M. detained with the maternal aunt and uncle.
D. Subsequent Jurisdiction and Disposition
On March 24, 2011, the parents admitted to CFS they had relapsed into drug use of methamphetamine and marijuana. They had both faked drug tests and ceased their programs. CFS indicated that the parents acted more like older siblings than parents toward S.M. S.M. missed her parents but was happy in the care of the maternal aunt. The maternal aunt and uncle wanted to adopt S.M. without worrying about interference from the parents.
On May 31, 2011, the court terminated reunification services and determined it was in S.M.'s best interest to set a hearing for termination of parental rights. (§ 366.26.)
E. Selection and Implementation Hearing
In September 2011, CFS recommended parental rights be terminated and adoption selected as a permanent plan. The parents had been participating in programs and visiting with S.M. Mother was pregnant again by father. S.M. loved her parents but was sad about the circumstances and she liked living with the maternal aunt and her half-sister. In a psychological evaluation, S.M. demonstrated uncertainty and ambivalence while expressing a desire to be with the parents. The maternal aunt and uncle were committed to the adoption although they wanted to facilitate ongoing contact with the parents.
Father and mother objected to adoption and proposed a legal guardianship. The dependency court found S.M. was adoptable, that termination of parental rights was not detrimental, and the parent-child bond exception did not apply. The court terminated parental rights on November 7, 2011.
III
BENEFICIAL-RELATIONSHIP EXCEPTION
"Under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be terminated where the juvenile court '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.' The exception does not require proof the child has a 'primary attachment' to a parent or the parent has 'maintained day-to-day contact' with the child. (See In re S.B. (2008) 164 Cal.App.4th 289, 299.)
"The exception's second prong, requiring that 'the child would benefit from continuing the [parent-child] relationship,' means that 'the 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile 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.' (Ibid.) '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.' (Ibid.)
"'The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. 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 are some of the variables which logically affect a parent/child bond.' (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)" (In re C.B. (2010) 190 Cal.App.4th 102, 123-124.)
In this appeal, father contends there was not substantial evidence for the juvenile court's determination that the parent-child relationship exception did not apply. Father argues S.M. will suffer detriment from termination of parental rights because she shares a strong bond with father and her best interests would be served by a legal guardianship.
It is undisputed that father has maintained a lifelong relationship with S.M., even while he was in jail and during the two and one-half years of dependency proceedings. Father made a sustained effort to stop using drugs and be a successful parent to S.M. Unfortunately, even after two years of services, father failed to achieve his goal and relapsed into the same behavior (or worse) that led to the original detention in March 2009. As such, it cannot plausibly be said that father's relationship with S.M. promotes her well-being to a degree that outweighs the well-being she would gain in a permanent home with her maternal aunt and uncle. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A termination order is not subject to reversal whenever there is only "some measure of benefit" in continued contact between parent and child. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
S.M. is now six years old. She has lived with her father for only seven months in the last three years. Although she knows and loves her father and at times has wanted to live with him, their relationship is not a substantial, positive attachment because of father's habitual drug use. A child's wishes are not necessarily determinative of the child's best interest. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) When in his care, father's interaction with S.M. is more negative than positive because he does not provide her with a stable home and he endangers her health and well-being. A parent must occupy a parental role. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) In contrast, the aunt has been acting in a parental role toward S.M. all her young life. S.M. and the aunt and uncle are united in wanting to be together. Adoption by the maternal aunt and uncle will provide S.M. with security and stability.
Father relies on In re Scott B. (2010) 188 Cal.App.4th 452, 471, which involved a child who was nine years old when he was removed from his mother's custody and 11 years old when the court terminated the mother's parental rights. Scott B. had received a diagnosis of autism that was "substantially disabling." (Id. at p. 455.) Scott B. had lived with his mother most of his life and insisted he preferred to live with her. (Id. at p. 471.) The mother had contributed to the stability in Scott B.'s life. All these factors caused legal guardianship to be preferred over adoption. (Id. at p. 472.)
The circumstances of Scott B. involving an older child with special needs and a supportive parent differ significantly from the present case. S.M. is a young child who has lived with the maternal side of her family most of her life. Father is not a supportive parent and does not offer S.M. a substantial positive attachment. S.M. deserves the stability and permanence afforded by adoption.
IV
DISPOSITION
Because substantial evidence supports the trial court's order, it must be affirmed. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P.J.
RICHLI
J.