M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK65450)
APPEAL from an order of the Superior Court of Los Angeles County. Anthony Trendacosta, Commissioner. Affirmed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Monique J. (Mother) appeals from a section 366.26 order, terminating her parental rights and identifying adoption as the appropriate permanent plan for her two children. Mother argues that the juvenile court erred in finding that the parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to the relationship between her and her children. We affirm.
Further statutory references are to the Welfare and Institutions Code.
Anthony's Detention and First Series of Dependency Proceedings
Mother and Curtis D. (Father) were dependents of the juvenile court, living in the home of Father's aunt (S. H.), when Mother became pregnant with their first child, Anthony D. Anthony was born in June 2006 when Mother was 18 years old.
Father is not a party to this appeal. Therefore, we discuss Father's involvement in the dependency proceedings only as it relates to Mother's case.
Mother had been diagnosed with bipolar disorder. The Los Angeles Department of Children and Family Services (DCFS) provided Mother with services in an effort to prevent Anthony's removal from her care. These services included "individual counseling, medication monitoring, [and] therapeutic behavioral services." Most of the services were terminated, however, due to Mother's noncompliance.
In September 2006, Mother and Anthony were living with Mother's aunt, Mary K. Ms. K. informed DCFS that Mother's "mental health was on the decline since she refused to take her medication or participate in counseling." (Boldface omitted.) Ms. K. was concerned about Mother's "emotional outbursts and erratic behavior." (Boldface omitted.) During one of her outbursts, Mother destroyed furniture in Ms. K.'s home and nearly tipped over Anthony's crib with Anthony inside of it. Ms. K. requested that DCFS remove Mother from her home.
DCFS placed Mother and Anthony in foster care. The caregiver informed DCFS that Mother would curse at Anthony and the caregiver, and would speak to both of them in an abusive manner. In October 2006, Mother left the caregiver's home with Anthony to spend the night at Ms. K.'s home. Without the caregiver's permission, Mother left Ms. K.'s home and took Anthony to stay with Father at his foster care placement. The caregiver reported Mother's absence to DCFS.
On October 14, 2006, a social worker, accompanied by a deputy sheriff, went to the home where Mother and Anthony were staying. Mother told the social worker that she wanted to live with Father and did not want to return to the caregiver's home. Mother also stated that she was not taking the medication that had been prescribed for her bipolar disorder. During the interview, Mother's "behavior became very loud, erratic and belligerent." (Boldface omitted.) Due to concerns about Anthony's safety, the deputy sheriff told the social worker to "'grab the baby, put the baby in the car and run.'" DCFS detained Anthony and placed him in a foster home. Anthony was four months old.
On October 20, 2006, DCFS filed a petition under section 300, subdivision (b), alleging Mother's history of mental and emotional problems.
In December 2006, DCFS placed Anthony with foster parents Tom and Laura C. Mother and Father were living with Father's aunt, S. H. Mother called Mrs. C. the same day that Anthony was placed in the C.'s home and stated that she wanted to arrange visitation. Apparently Mother had not visited Anthony since he was detained in October 2006.
Four and a half years later, on June 15, 2011, when Mother's parental rights were terminated, Mr. and Mrs. C. were the prospective adoptive parents for Mother and Father's two children.
On December 19, 2006, DCFS filed a first amended petition, adding allegations about Father including his history of marijuana use.
In an interim review report prepared on or about February 15, 2007, DCFS reported that Mother and Father had not been visiting Anthony regularly, although there was a schedule in place that provided for visits twice a week. In mid-February, Mrs. C. notified Mother that Anthony had been hospitalized for a cold, and that Mother could visit Anthony there. Mother did not go to the hospital or follow up with Mrs. C. to see how Anthony was doing.
DCFS also reported that Ms. H., Father's aunt, requested that Mother be removed from her home because Mother was not doing anything to help herself. Ms. H. informed DCFS that she had set up an appointment for Mother with a therapist, but Mother did not go to the appointment. Ms. H. also noted that Mother was not visiting Anthony.
On February 27, 2007, Mother and Father waived their rights and submitted on the first amended petition, as further amended by interlineation. The juvenile court sustained the following amended allegation against Mother: "The child Anthony [D.]'s mother, Monique [J.] has emotional problems, which periodically limits the mother's ability to provide the child with appropriate care and supervision. This places the child at risk of harm." The court also sustained an amended allegation regarding Father's history of marijuana use.
The juvenile court declared Anthony to be a dependent of the court and ordered monitored visitation and reunification services for Mother and Father. Mother's services included "parent education for toddlers; individual counseling to address case issues, including anger management; referral to a psychiatrist; and follow-up with any prescribed medications or treatments."
In a status review report prepared on or about June 13, 2007, DCFS reported that Mother was living with her aunt. Mother was unemployed and had dropped out of school after one month due to her inability to pay tuition. Mother was not taking her prescribed medication and was not yet participating in therapy, although she was in the process of being assessed for therapeutic services. Mother had participated in four parenting sessions with a registered nurse since Anthony was detained in October 2006.
DCFS also reported that Mother visited Anthony 13 times between January 9, 2007 and June 7, 2007. Mother and Father cancelled or failed to show for 29 visits between January 2, 2007 and May 17, 2007. Mrs. C., Anthony's foster mother, told DCFS that during visits "mother is affectionate towards Anthony and holds him even when he's asleep. However, mother appears to have difficulty with Anthony when he begins to cry and won't be soothed by a bottle or diaper change." Mr. and Mrs. C. informed DCFS that they were willing to adopt Anthony.
On August 9, 2007, DCFS informed the juvenile court that Mother was three months pregnant with her second child with Father. Mother received a psychiatric assessment and the doctor recommended that she not take medication while pregnant. Mother had been participating in individual counseling for a few weeks and meeting with her parenting instructor consistently. Mother also was consistent about visiting Anthony twice a week. The social worker observed a visit and reported that it was positive. DCFS recommended unmonitored day visits for Mother.
At a hearing on August 9, 2007, the juvenile court found that Mother was in compliance with her case plan and continued her reunifications services. The court granted DCFS discretion to allow Mother to have overnight visits with Anthony and ordered DCFS to provide transportation for the visits. Anthony's foster parents, Mr. and Mrs. C., had moved to Victorville and Mother was living in the Los Angeles area.
The court terminated Father's reunification services.
In an interim review report prepared on or about November 9, 2007, DCFS reported that Mother had had nine unmonitored day visits with Anthony between August 18 and October 27, 2007. Mr. and Mrs. C. told the social worker "that Anthony would sometimes cry when he first sees mother because he wants to stay with them [Mr. and Mrs. C.]" Mother told the social worker that, during visits with Anthony, she used information she learned from her parenting sessions. "For example, mother reported that she would spend the time playing with Anthony and his toys. Mother reported that she learned that it's important to interact with Anthony so that they can bond together. Mother reported that she also is aware of her tone of voice, appropriate baby language and maintaining eye contact with the child." DCFS declined to liberalize Mother's visits to overnights because Mother's attendance at individual counseling had been inconsistent and Mother had allowed Father to be present at one of her visits in violation of a court order.
On February 2, 2008, an adoption home study for Mr. and Mrs. C was approved. They remained committed to adopting Anthony.
On March 12, 2008, DCFS informed the juvenile court that Mother was doing well in parenting her newborn son Dillan D., born in January 2008. Mother was receiving family preservation services for Dillan. DCFS believed it might recommend in the future that Anthony be returned to Mother's care.
In a status review report prepared on or about May 14, 2008, DCFS reported that Mother "finally appears able to appropriately parent her children." DCFS described Mother as a "fairly consistent visitor since Anthony's detention." Mother had her first overnight visit with Anthony on May 10, 2008. DCFS recommended that Anthony be returned to Mother's care, even though Mother's aunt had requested Mother's removal from her home because Mother "continued to be defiant and . . . could not be maintained in the home." Mother's aunt had no concerns about Mother parenting Dillan. DCFS noted that "Anthony shows a strong preference towards his foster parents over other adults . . . ." Mr. and Mrs. C. reported that "Anthony cries excessively and clings to them when dropped off for visits" with Mother. Mother was now living with her sister.
On May 22, 2008, the juvenile court returned Anthony to Mother's care. Dillan and Anthony's Detention and Second Series of Dependency Proceedings
About four months after Anthony was placed in Mother's care, DCFS received another referral about this family. Mother, Anthony and Dillan were living with Father's aunt, Tina F. Ms. F. had only met Mother on one prior occasion at the time DCFS asked her if Mother and the children could stay with her in September 2008.
On October 5, 2008, Mother called law enforcement, claiming that Ms. F. had threatened her with a knife, hit Dillan in the head when she threw a shoe at Mother, and nearly hit Anthony when she threw a glass bottle at Mother. Mother asserted that Ms. F. was under the influence of drugs and/or alcohol. Two sheriff's deputies and a sergeant responded to Ms. F.'s home. According to DCFS, the sheriff's department determined that Mother's allegations were unfounded "as there was no evidence that Ms. F[.] was under the influence, no weapons were found and there were no marks on the children." The deputies indicated that Mother "may have mental health issues."
When the social worker arrived at Ms. F's home on October 5, 2008, Mother was not there. She had left with the children earlier, after she and Ms. F. had a subsequent argument about Mother's payment of household expenses.
Ms. F. told the social worker that it was Mother who threw the glass bottle during the incident and "threatened [Ms. F.] with bodily harm." Ms. F. stated that Mother would have "'temper tantrums' if things did not go her way or if she didn't get what she wanted at the moment." Mother "would yell, make verbal threats and/or become physically aggressive toward the children." On one occasion, Mother told Ms. F. that she had hit Anthony in the face with a shoe. According to Ms. F., Anthony "sustained a black and blue bruised and swollen eye."
After the social worker interviewed Ms. F., the social worker contacted Mother and arranged to meet Mother at the friend's house where Mother had taken the children. Mother maintained that Ms. F. had assaulted her with a knife and nearly hit Anthony when she threw a glass bottle. Mother denied that she had hit Anthony with a shoe.
On October 5, 2008, the same day as the incident, DCFS took Anthony and Dillan into protective custody and placed them in foster care. On October 8, 2008, DCFS filed a subsequent dependency petition under section 342 as to Anthony and an original petition under section 300 as to Dillan, alleging Mother's physical abuse of Anthony, violent altercation with Ms. F., and history of mental and emotional problems. Anthony was two years old and Dillan was eight months old.
At the detention hearing on October 8, 2008, the children's counsel requested that DCFS look into placing the children back with Mr. and Mrs. C. Counsel represented that Mrs. C. wanted the children placed in her home. Mother's counsel objected, asserting that Mrs. C. had "frustrate[ed] visits between [Mother] and Anthony when he was placed with her." Mother requested that DCFS consider placing the children with Father's aunt, S. H., or another relative. The juvenile court granted DCFS discretion to place the children with any appropriate relative.
In the jurisdiction/disposition report prepared on or about November 13, 2008, DCFS reported that it had placed the children with Father's aunt, S. H., who stated that she was willing to provide a permanent home for the children. Father was staying with his cousin and Mother was homeless. Father told the social worker that he and Mother were visiting the children a few days a week. Ms. H. confirmed that this was true. Mother, however, told the social worker "that she had not had any visits with her children and she didn't know why."
At a hearing on November 20, 2008, Mother's counsel informed the juvenile court that Mother had concerns about the children's placement because she did not believe Ms. H. had "the ability to control Anthony's behavioral issues." Mother requested that the children be placed with Mrs. C. Counsel for DCFS agreed with Mother's request, and the court ordered DCFS to assess Mrs. C.'s home for placement. The court also ordered visits for Mother to occur two times per week. At that time, Mother's visitation was monitored.
In an interim review report prepared on or about December 18, 2008, DCFS reported that the children were receiving appropriate care and supervision in Ms. H.'s home. DCFS recommended that the children remain there rather than move to the home of Mr. and Mrs. C. Mother informed the social worker that it was difficult for her to travel from Los Angeles to Ms. H.'s home in Lancaster to visit the children because "she had limited means of transportation." DCFS obtained a bus pass for Mother.
On January 5, 2009, Mother and Father waived their rights and submitted on the petitions, as amended. The juvenile court sustained the following amended allegation against Mother: "The child Anthony [D.]'s mother, Monique [J.] suffers from emotional problems which periodically limits the mother's ability to provide the child with appropriate care and supervision and has resulted in disputes with the relatives mother has been living with. This places the child at risk of harm." The amended allegation sustained against Mother as to Dillan is substantially the same. The court also sustained an amended allegation regarding Father's history of marijuana use.
The juvenile court declared Dillan to be a dependent of the court and declared that Anthony remained a dependent of the court. The court ordered unmonitored day visitation and reunification services for Mother to include individual counseling to address anger and case issues, and "a psychological evaluation to see if medication is necessary and appropriate." The court also ordered DCFS to assist Mother with housing and career planning. For Father, the court ordered monitored visitation and reunification services.
In an interim review report prepared on or about February 5, 2009, DCFS reported that Mother was living with an aunt and was satisfied with her housing situation. Mother had had one unmonitored visit with the children, although visits were scheduled two times per week. Mother complained that Ms. H. was making it difficult for her to see the children. The social worker assisted Mother in arranging a modified visitation schedule. DCFS listed Mother's inconsistent visitation as an "area of concern."
At a hearing on February 10, 2009, the juvenile court ordered DCFS to provide transportation funds so that Mother could access Metrolink when she travelled to Lancaster for visits. The court also ordered DCFS to assist Mother in arranging a schedule for visits that would occur halfway between Lancaster and Los Angeles.
In a status review report prepared on or about July 1, 2009, DCFS reported that Mother was still inconsistent in her visitation. Ms. H. informed the social worker that Mother periodically called to talk to the children, but only visited on January 9, 2009 and June 12, 2009. Ms. H. travelled to meet Mother for the visit in June. On March 6, 2009, the social worker transported Dillan to Compton for a visit with Mother. Anthony was ill and did not attend that visit. On March 20, 2009, DCFS provided Mother with transportation funds. Mother blamed Ms. H. for her inconsistent visitation, telling the social worker that Ms. H. was too busy to schedule visits.
In a status review report prepared on or about December 18, 2009, DCFS reported that Mother's visitation was "not regular or consistent." Mother was only visiting about twice a month. Mother told DCFS that "distance is the major reason she cannot visit," even though DCFS had provided her with a bus pass and transportation funds. Mother also maintained that she could not visit because Ms. H. was "always busy."
DCFS recommended that the juvenile court terminate Mother's (and Father's) reunification services due to noncompliance with the case plan. Mother had completed a psychological examination, but "still ha[d] not focused on . . . counseling." Mother did not have a way to support herself, but did have housing through the Los Angeles Transitional Housing program.
In an interim review report prepared on or about February 17, 2010, DCFS reported that it had facilitated a new visitation schedule because the previous one was not working for Mother or Ms. H. DCFS concluded that Mother and Ms. H. "were equally at fault for the visits not occurring." Under the new schedule, which was put in place on February 3, 2010, Ms. H.'s daughter would drive the children to meet Mother on Saturday. After the unmonitored day visit, Mother and the children would "go home with the foster mother [Ms. H.] and stay at the foster mother's home until Sunday." Then Mother would return home. Mother participated in one weekend visit under the new schedule and reported that it went well.
Mother informed DCFS that she was renting a room in a sober living facility, although she stated that she did not have any substance abuse issues. Mother reported that the children could live there with her. Mother was not enrolled in therapy because she could not afford to pay for it and needed to find a free program. DCFS recommended that the juvenile court terminate Mother's (and Father's) reunification services.
At a hearing on February 24, 2010, the juvenile court ordered that Mother could have overnight visits with the children once DCFS verified that the sober living facility would allow such visits. Father was not to be present during Mother's visits. Mother confirmed that she and Father no longer had a relationship. The court also ordered DCFS to provide Mother with a Metrolink pass.
In a status review report prepared on or about April 12, 2010, DCFS reported that Mother was having "regular," overnight visits with her children at the sober living facility where she lived. Mother would ride the Metrolink train to Lancaster to pick up the children on Saturday. The children and Mother would ride the train back to Mother's residence in North Hollywood and spend the night there. Ms. H. would drive to North Hollywood to pick up the children on Sunday. These weekend visits had occurred three times since March 20, 2010. A social worker observed Mother and the children during one of these visits and saw Mother cooking pancakes for the children.
On May 7, 2010, DCFS removed the children from Ms. H.'s home because of two unspecified safety issues involving Ms. H. and Father. DCFS placed the children in the home of Mr. and Mrs. C., where Anthony had lived from December 12, 2006 until he was returned to Mother's care on May 22, 2008. Mr. and Mrs. C were willing to be a permanent placement for the children.
In an interim review report prepared on or about June 8, 2010, DCFS reported that Mother had moved out of the sober living facility and into the home of a female friend without informing DCFS beforehand. Mother was sharing a two-bedroom apartment with the friend and her two young children. Mother told the social worker that she was looking for a job so she could pay part of the rent. Mother's free individual therapy and anger management ended when she left the sober living facility and she could not afford to pay for therapy.
At a hearing on June 17, 2010, the juvenile court granted DCFS "discretion to liberalize mother's visitation, up to and including returning the children to the mother prior to the next date."
In an interim review report prepared on or about July 21, 2010, DCFS reported that it received a referral on June 20, 2010 stating that Mother and the children were outside on a street corner at midnight because Mother's "roommate threw her, the children and the mother's boyfriend out of the home. The referral also stated that the children were possibly exposed to marijuana usage by the roommate and the mother's boyfriend." The social worker was unable to locate Mother or reach her on her cell phone. DCFS suspended Mother's unmonitored and overnight visits so that it could assess her living situation.
The report does not include any further information about the boyfriend.
DCFS spoke to Mrs. C., who reported that the children returned from a weekend visit with Mother (prior to the June 20, 2010 referral) "with their clothes smelling like urine as if they had slept in their clothes." Mrs. C. also reported that she "provides clothes, diapers, wipes and food when the children go for the weekend visit with their mother because the mother states that doesn't have anything for them to wear or eat."
After being evicted from her friend's apartment, Mother went to stay at the maternal grandmother's house. The social worker informed her that the children could not visit her there because the maternal grandmother had an open case with DCFS. At some point thereafter, Mother moved into a transitional housing shelter. She informed the social worker that she had secured employment at a grocery store. DCFS arranged for Mother to have a monitored visit with the children on July 17, 2010 at a DCFS office. Mother cancelled the visit, citing her work schedule. DCFS recommended that Mother's reunification services be terminated.
In an interim review report prepared on or about September 21, 2010, DCFS reported that Mother was renting a room in a house where three men and one other woman were living. DCFS did not feel comfortable with the children visiting there because people moved in and out of the home and DCFS could not ensure that the residents would submit to a live scan.
On November 1, 2010, DCFS informed the juvenile court that Mother was not visiting the children consistently because of her work schedule. She visited on June 18, September 17 and October 24, 2010. During these visits, Anthony had a difficult time transitioning from Mrs. C. to Mother. Anthony would cry and cling to Mrs. C. Mother would get upset by Anthony's behavior. The social worker told Mother that she needed to have more contact with the children so that Anthony could become more comfortable with her. During the October 24, 2010 visit, Anthony calmed down after Mr. and Mrs. C. left, and appeared happy as he interacted with Mother.
At a contested hearing on November 1, 2010, the juvenile court terminated Mother's reunification services, finding that she had not made substantial progress with her case plan, and set the matter for a section 366.26 permanent plan hearing. The court also terminated Father's reunification services. The court ordered the social worker to have a meeting with Mother and Mr. and Mrs. C. to set up a visitation plan and consider overnight visits for Mother.
In an interim review report prepared on or about December 22, 2010, DCFS reported that Mother refused to attend a meeting with Mr. and Mrs. C. to discuss a visitation plan. Mother did not have any visits with the children in November. She visited the children on December 4, 11 and 18, 2010. Given Mother's inconsistent visitation and housing situation, DCFS did not believe that Mother was ready for overnight visits.
At a hearing on January 11, 2011, Mother's counsel informed the juvenile court that Mother was no longer working, so it should be easier for her to schedule visits with the children.
In a section 366.26 report prepared on or about February 9, 2011, DCFS reported that Mother visited the children three times in January. A visit scheduled for February 5, 2011 was cancelled because Mother called too late to confirm the visit. Mother was scheduled to have four-hour, unmonitored visits with the children on Saturdays. She also was scheduled to have telephone contact with the children on Tuesdays and Thursdays. Mrs. C. reported that Mother called inconsistently and often was not attentive to the children during the calls. Mother would talk to people around her and pass the phone to others while she was supposed to be talking to the children.
The section 366.26 report also states: "The caregiver [Mrs. C.] reports that the day of the visits Anthony appears uneasy or nervous and often does not want to eat his breakfast. She states that although he does appear to feel more confident about going on the visit than he did in the past, . . . he still wants reassurance that caregivers are going to pick him up. After the visits, Anthony often tells the caregivers that he does not want to stay with his mother."
DCFS recommended that the juvenile court terminate Mother's (and Father's) parental rights. DCFS found it likely that Anthony and Dillan would be adopted. Mr. and Mrs. C. remained committed to adoption and the children were doing well in their care.
At a hearing on February 28, 2011, Mother's counsel informed the juvenile court that Mother's Saturday visits were not always occurring because of the children's sports activities. Counsel requested that the frequency of Mother's visits and telephone contact be increased, and that missed visits be rescheduled. The court ordered DCFS to ensure "that there is a set visitation schedule, . . . and that any missed visits that are not the fault of the parents be made up . . . ."
In an interim review report prepared on or about April 15, 2011, DCFS reported that Mother was complaining that two of her four monthly visits with the children were scheduled to occur in Victorville where the children's foster parents lived. Mother wanted all four of her monthly visits to occur in the Los Angeles area. Mother had no visits in February, one visit in March and one visit during the first two weeks of April 2011.
In a status review report prepared on or about April 26, 2011, DCFS reported that Mother had a visit with Dillan in Victorville on April 23, 2011. Anthony was ill and did not attend the visit. DCFS also reported that the children could not visit Mother at the home where she now lived with two other adults and a house manager, based on the live scan results of the residents there.
On or about May 9, 2011, Mother filed a section 388 petition, requesting that the children be returned to her care and that her reunification services be reinstated. Mother asserted that she had "stable and safe housing" and a "strong support network" with her church and the house manager where she lived. She also stated that she was testing for drugs and alcohol and was attending counseling twice a week. Mother argued that it was in her children's best interests to be returned to her because she had "a very strong relationship" with the children and she was "a safe and stable parent."
In an interim review report prepared on or about June 14, 2011, DCFS reported that Mother had one visit with the children in May 2011, and did not attend a visit scheduled for June 5, 2011. According to DCFS, Mother had missed 13 visits with the children since January 1, 2011.
Regarding Anthony's difficulties with Mother's visitation, DCFS reported: "CSW has observed Anthony at visits with his mother and it was obvious to this writer that because of the inconsistency Anthony has had difficulty transitioning from foster parents to the mother. There were two visits that CSW attended where Anthony did not want to go with his mother. At one visit, Anthony stated that he did not want to go with his mother, he wanted to remain with his foster parents. Mother's response was that he had to go with her no matter what, she was his mother. Even when she tried to take him from the foster mother Anthony put up more resistance and wrapped himself around the foster mother's legs. Mother appeared to [lose] her patience with Anthony's acting out. CSW and foster mother were able to talk to Anthony and with assurance that the foster parents [were] going to come back for him, he went for the visit. This difficulty in transitioning from foster parents to the mother was made more difficult for Anthony because mother did not show up for many of her scheduled visits."
At a hearing on June 15, 2011, the juvenile court denied Mother's section 388 petition, finding that Mother had not shown changed circumstances or that it was in the children's best interests to grant the petition.
The juvenile court also held the contested section 366.26 hearing on June 15, 2011. DCFS's reports were received into evidence without objection.
Mother testified at the hearing. She stated that her most recent visit with the children occurred the previous weekend. It was a four-hour, unmonitored visit. During the visit, Mother "got [the children] some breakfast," walked them to the park and spent about three hours there, then made them sandwiches and returned them to their foster parents.
Mother complained that she had problems arranging visitation because the social worker would change the scheduled visit on short notice. When a visit was cancelled, Mother did not receive a make-up visit.
Mother testified that during the "last couple visits" the children had been "happy" to see her and called her "'mommy' as soon as they [saw her]." When they left, the children said, "'Bye, mom.'"
Mother stated that it was "hard" to have phone contact with the children because of her work schedule, but then testified that she spoke to them on Tuesdays and Thursdays. She would talk to Anthony about school and baseball and ask Dillan how he was doing.
Mother testified that she had a "really good" relationship with her children. She felt happy and she felt "like a parent" when she was with them. The visits were positive. When her counsel asked her how she thought the children would react if they could not see her anymore, Mother responded: "I think that my children wouldn't -- they wouldn't really be interested. Like they wouldn't -- because they're still young. So I think that they wouldn't know. But I think they will be a behavior problem because they would want to know where I am."
Mother maintained that she visited the children approximately once a week. She conceded, however, that she did not visit the children June 5, 2011 or any day that week. She also missed her visit the week before that. Mother recalled that she had cancelled at least one visit in May 2011.
Mrs. C. also testified at the hearing. She stated that during the prior three months there were four occasions where she took the children to meet Mother for a scheduled visit, but Mother did not show up for the visit or call the social worker to cancel. Mother attended a visit the weekend before the hearing in the Los Angeles area (Pico Rivera), but missed the visit the weekend before that which was scheduled in Rancho Cucamonga. Mrs. C. brought the children to Rancho Cucamonga, but Mother was not there.
Mrs. C. testified that, prior to visits with Mother, Anthony asked for repeated reassurances that Mrs. C. would pick him up after the visit. Mrs. C. stated that the children never asked for visits with Mother and never cried when it was time to leave Mother.
Mrs. C. reviewed the visitation logs she maintained and testified that Mother had three visits with the children in January, no visits in February, one visit in March and three visits in April 2011. Mrs. C. did not review logs for May and June 2011.
DCFS and the children's counsel argued that the juvenile court should terminate parental rights and select adoption as the permanent plan. Mother's and Father's counsel requested that the court not terminate parental rights and select legal guardianship as the permanent plan.
The juvenile court found by clear and convincing evidence that the children were adoptable. The court found that Mother did not meet her burden of showing that the parent-child relationship exception to termination of parental rights applied. The court terminated parental rights and identified adoption as the permanent plan. The court designated Mr. and Mrs. C. as the prospective adoptive parents.
Mother contends that the juvenile court erred in terminating parental rights. She argues she established that the parent-child relationship exception to termination of parental rights applied.
Mother's notice of appeal states that she is appealing from the order terminating her parental rights and the order denying her section 388 petition. Mother has abandoned her appeal of the order denying her section 388 petition because she did not argue in her appellate briefs that the juvenile court erred in denying her petition.
"At a hearing under section 366.26, the court is required to select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) When the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the court must terminate parental rights unless the parent opposing termination can show that one of the exceptions set forth in section 366.26, subdivision (c)(1) applies. (Ibid.) "Because a parent's claim to such an exception is evaluated in light of the Legislature's preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption." (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
"'The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions.'" (In re C.B. (2010) 190 Cal.App.4th 102, 122.) To satisfy the burden of proving the parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B), a parent must demonstrate that he or she has "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 second prong of this exception requires the parent to demonstrate that his or her relationship with the child "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.)
Even frequent and loving contact between a child and a parent is not sufficient, by itself, to establish the significant parent-child relationship required under subdivision (c)(1)(B). (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) A "parental relationship is necessary for the exception to apply, not merely a friendly or familiar one" because "[i]t would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
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. 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.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "The factors to be considered include: '(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 the interaction between the parent and the child, and (4) the child's particular needs.' [Citation.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
The parties agree that the substantial evidence standard of review applies here. (See In re C.F. (2011) 193 Cal.App.4th 549, 553, citing In re Autumn H., supra, 27 Cal.App.4th at p. 576 [review of finding that parent-child relationship exception to termination of rights did not apply "is subject to a sufficiency of the evidence standard of review"].) "'On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence 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.]" (Ibid.)
We note that some courts have applied a different standard of review applicable in cases in which a parent fails to meet his or her burden of proof on the parent-child relationship exception to termination of parental rights. In In re I.W. (2009) 180 Cal.App.4th 1517, 1528, the Court of Appeal explained: "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]"
Regardless of which standard of review we apply, the result is the same. Mother did not establish that the parent-child exception to termination of parental rights applied.
The record demonstrates that Mother did not maintain regular visitation and contact with the children. According to Mother's testimony, in the three weeks prior to the section 366.26 hearing, she visited the children once, despite the fact that she was scheduled to have weekly visits. DCFS reported that, other than the visit the weekend before the section 366.36 hearing, Mother had not had a visit since May 8, 2011. DCFS also reported that Mother missed 13 visits between January 1, 2011 and June 14, 2011 (the date DCFS prepared its most recent interim review report). Even when Mother was not employed, she missed visits. Throughout these proceedings, she complained that she did not want to travel to visit her children even though DCFS provided her with a bus pass and transportation funds. Mother does not argue that telephone contact made up for her missed visits, as the record demonstrates that her telephone contact was inconsistent as well.
Mother asks this court to find that she established the regular visitation prong of the exception because, "she never stopped visiting altogether, and visits with her children were on average once or twice a month for several hours." Even if we were to find that Mother's visitation was regular, she has not established the second prong of the exception—that her children would benefit from continuing the relationship with her and foregoing an adoptive home.
Anthony lived with Mother for a little over four months immediately after his birth, and then again for about four and a half months when he was two years old, for a total of less than nine months. Dillan lived with Mother for a little over eight months immediately after his birth. At the time of the section 366.26 hearing, Anthony was five years old and Dillan was three. They had both been out of Mother's care for significantly more time than they were in it.
Although Dillan did not appear to experience discomfort during visits with Mother, Anthony did. According to both the social worker and Mrs. C., Anthony would become upset when forced to separate from Mrs. C. and attend his unmonitored visits with Mother. He asked for repeated assurances that Mrs. C. would return to pick him up and not leave him with Mother. Mother would lose her patience with Anthony and indicate that he had no choice but to go with her because she was his mother.
The evidence does not demonstrate that "'severing the natural parent/child relationship would deprive [either] child of a substantial, positive emotional attachment such that the child would be greatly harmed.'" (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Mother did not establish that she had a parental relationship with the children despite the fact that they called her "mommy" or "mom." At the time of the section 366.26 hearing, Mother was having four-hour, unmonitored visits with the children. Mother's overnight visits had stopped about a year before the section 366.26 hearing due to Mother's unstable housing situation. During these day visits, Mother would take the children to the park and make food for them. Although these visits might have been positive (after Anthony was able to separate from Mrs. C.), there is no evidence that Mother occupied a parental role in her children's lives. The evidence does not support Mother's assertion that she was more than a babysitter or a playmate, as far as the children were concerned.
Mr. and Mrs. C. were committed to adoption and the children were thriving in their care. There are no "exceptional circumstances" here which would warrant a court choosing a permanent plan other than adoption. (In re Scott B., supra, 188 Cal.App.4th at p. 469.) The trial court did not err in finding that the parent-child exception to termination of parental rights did not apply.
The order is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
ROTHSCHILD, Acting P. J.