In re Dominic L. CA4/1 ( 2013 )

Filed 10/9/13 In re Dominic L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DOMINIC L., a Person Coming
Under the Juvenile Court Law.
D063958
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J517967)
Plaintiff and Respondent,
v.
LESLIE L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Cynthia Bashant,
Judge. Affirmed.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Leslie L. appeals a juvenile court order terminating her parental rights to her minor son,
Dominic L., under Welfare and Institutions Code1 section 366.26. Leslie challenges the
sufficiency of the evidence to support the court's finding the beneficial parent-child
relationship exception to adoption did not apply to preclude terminating parental rights. We
affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2010, three-year-old Dominic became a dependent of the juvenile court
under section 300, subdivisions (b) and (g) and was removed from Leslie's custody based on
findings Leslie used heroin and methamphetamine, had a history of substance abuse and
exposed Dominic to drugs and hypodermic needles in the home. Leslie was incarcerated and
the whereabouts of Dominic's father were unknown. The court placed Dominic in foster care
and ordered reunification services for Leslie.
Leslie had a criminal history involving drugs, burglary and crimes of violence. Her
parental rights to another child had been terminated several years earlier. She completed a
drug treatment program, but relapsed.
After Leslie was released from custody, she enrolled in a 12-month residential drug
treatment program at the San Diego Rescue Mission and had weekly visits with Dominic. She
was committed to her recovery and was strongly motivated to keep Dominic in her life. Leslie
was in therapy, completed a 15-week parenting class and tested negative for drugs. Dominic
had a close relationship with his foster parents. He was in therapy, and said he did not want to
1 Statutory references are to the Welfare and Institutions Code.
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live with Leslie. The therapist interpreted this as showing Dominic's fear and anxiety due to
his experiences when he was in Leslie's care.
Leslie was visiting Dominic three times a week, and one visit a week was unsupervised.
When visitation expanded, Dominic became increasingly angry, sad, confused and stressed.
He was particularly confused about where he would live. Although Dominic loved Leslie and
enjoyed visits with her, he said he wanted to live with his foster parents, and asked if Leslie
could move in with them.
Dominic's foster parents expressed their concern to his court-appointed special advocate
(CASA) that Leslie had promised Dominic they would soon reunify. The visitation monitor
reported Dominic voiced his fear of being removed from his foster home. The CASA observed
that Leslie cared very much for Dominic, but she struggled to parent him at times. According
to Dominic's teacher's aide, Dominic had recently become more aggressive. The CASA said
Dominic's confusion about his living situation was negatively affecting him.
At the 12-month review hearing, the court found Leslie had made substantive progress
with her case plan and ordered six more months of services for her. The court authorized
interactive therapy for Leslie and Dominic and gave the social worker discretion to expand
visits with the concurrence of Dominic's therapist and minor's counsel.
Leslie's visits with Dominic expanded, and he became "torn" between his mother and
his foster parents. He began having difficulty transitioning back to his foster parents after
visits with Leslie. On two occasions, Dominic had a severe negative reaction to leaving Leslie.
He lost his voice from crying and sobbed inconsolably. In February 2012, Dominic began a
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trial placement with Leslie at the San Diego Rescue Mission. At the 18-month hearing, the
court placed Dominic with Leslie and ordered family maintenance services.
Less than two weeks later, Leslie was discharged from the San Diego Rescue Mission
after testing positive for methamphetamine. The San Diego County Health and Human
Services Agency (Agency) was belatedly notified, and the whereabouts of Leslie and Dominic
were unknown for seven months. In November 2012, Leslie was arrested and Dominic was
taken to Polinsky Children's Center. Leslie admitted she had been using methamphetamine,
and she had not enrolled Dominic in school because she wanted to avoid being apprehended.
Agency filed a supplemental petition under section 387, seeking to remove Dominic
from Leslie's custody as a result of her relapse, discharge from drug treatment, arrest, and
failures to participate in services, communicate with Agency and enroll Dominic in school.
Because Leslie had received 18 months of services, Agency recommended the court set a
hearing under section 366.26 to select and implement a permanent plan for Dominic. Dominic
told a therapist he missed Leslie, and also said Leslie's boyfriend, with whom they had been
living, slapped and punched him all the time. Leslie admitted using methamphetamine
intravenously, and could not explain why she relapsed. The court detained Dominic in out-of-
home care.
When Leslie was released from custody, she resumed visits with Dominic. The
maternal grandfather, who had been unaware he had a grandson, expressed an interest in
having Dominic placed with him. Agency submitted an evaluation of his home in Nevada
under the Interstate Compact on the Placement of Children.
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At the settlement conference, the court sustained the allegations of the supplemental
petition and placed Dominic in foster care. The court set a selection and implementation
hearing under section 366.26.
Dominic was moved to two different foster homes. He was having weekly visits and
telephone calls with Leslie. He was angry, sad and withdrawn after visits with her, and he
misbehaved. Dominic had no interest in speaking to the maternal grandfather, who was still
being considered for placement.
In a report prepared for the selection and implementation hearing, social worker Lisa
Olimpio recommended the court terminate parental rights and order adoption as Dominic's
permanent plan. She assessed Dominic as both generally and specifically adoptable. Olimpio
supervised four visits between Dominic and Leslie, noting Leslie was loving and appropriate
with him. Dominic had a positive relationship with Leslie and often sought physical affection
from her. He told Leslie he loved her and asked if he could go home with her. Although
Dominic was not upset when visits ended, his caregivers reported he was negative and unruly
after visiting Leslie. Olimpio noted that although Leslie knew Dominic wanted to return to her
care, she was unable to remain sober, achieve stability or attend to Dominic's educational,
medical or dental needs. Olimpio was concerned about Leslie's prior unsuccessful attempts to
treat her drug addiction, her quick relapse once Dominic was placed with her and her decision
to abscond with him to evade the Agency.
Dominic appeared to believe he would be returned to Leslie's custody. He remained
confused about his living situation, alternating between not wanting to be separated from his
caregivers and stating the caregivers were not his family and their home was not his home. He
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then asked the foster father if he would be his dad. In Olimpio's opinion, Dominic was clearly
struggling and desperately needed stability, which could only occur through adoption.
The CASA also recommended termination of parental rights and adoption for Dominic.
During a visit she observed, Dominic and Leslie were warm and positive, but Dominic
separated easily from Leslie at the end of the visit. During the drive back to the foster home,
Dominic expressed his extreme anger at Leslie, but he could not articulate a reason.
According to an addendum report, a psychological evaluation of Dominic showed he
was depressed and anxious about what would happen to him and where he would live.
Dominic said he was angry at Leslie because she left him, did not care about him and was not
very nice. He told the evaluator he wanted to live with his foster family. In the evaluator's
opinion, Dominic was beginning to see the foster mother as the mother figure in his life.
Dominic talked to his therapist about the bad choices Leslie made, and he described
how she became angry and grabbed his arm when he tried to wake her up. Dominic said he
would be sad to leave his foster home to go live with the maternal grandfather. The therapist
reiterated Dominic needed safety, security and predictability about his future.
At the contested selection and implementation hearing, Leslie testified she was currently
enrolled in an outpatient drug treatment program and her drug tests had been negative for three
months. She attended Narcotics Anonymous meetings, had a sponsor and avoided friends who
used drugs. Leslie visited Dominic once a week. He hugged her and called her "mom." They
played and read books together, and she sometimes helped him with his handwriting. Leslie
redirected Dominic's behavior when necessary. She said Dominic sometimes had difficulty
ending visits, and he seemed confused. He told her he loved her.
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According to Dominic's stipulated testimony, Dominic wanted to live with the foster
parents and he wanted Leslie to move in with them. He did not want to live with the maternal
grandfather. Dominic was scared because he did not know him.
Olimpio testified she had observed seven visits between Dominic and Leslie. Dominic
was excited and happy to see Leslie and asked to go home with her. However, he was not sad
or upset at the end of visits. Olimpio believed Leslie and Dominic had a bond, which was
mostly positive. Dominic knew who his mother was because he had spent a substantial amount
of time in her care, and he would be sad if he could no longer visit her. Although he saw
Leslie as a parent figure during visits, he saw his foster mother as his mother on a daily basis.
He did not ask for Leslie between visits. Stability was in Dominic's best interests, and Leslie
could not provide him with that. Dominic's therapist also recommended permanency and
stability for him.
After considering the evidence and arguments of counsel, the court found Dominic was
likely to be adopted and none of the exceptions to adoption applied. The court terminated
parental rights and referred Dominic for adoptive placement.
DISCUSSION
Leslie contends the evidence was insufficient to support the court's finding the
beneficial parent-child relationship exception to adoption did not apply to preclude terminating
her parental rights. She asserts she maintained regular visitation and contact with Dominic,
had a loving, nurturing and bonded relationship with him and occupied a parental role in his
life.
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A
After reunification services are terminated, the focus of a dependency proceeding shifts
from preserving the family to promoting the best interests of the child, including the child's
interest in a stable, permanent placement that allows the caregiver to make a full emotional
commitment to the child. (In re Fernando M. (2006) 138 Cal. App. 4th 529, 534.) At the
selection and implementation hearing, the court has three options: (1) terminate parental rights
and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3)
order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re
Autumn H. (1994) 27 Cal. App. 4th 567, 573.) If the court finds a child cannot be returned to
his or her parent and is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds termination of parental rights would be
detrimental to the child under one of the specified statutory exceptions. (§ 366.26, subd.
(c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal. App. 4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if termination of parental rights 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." Courts have interpreted the phrase " 'benefit from
continuing the . . . relationship' " to refer to a parent-child relationship that "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 other words, the court balances the strength
and quality of the natural parent[-]child relationship in a tenuous placement against the security
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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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord,
In re Jason J. (2009) 175 Cal. App. 4th 922, 936.)
To meet the burden of proof for this statutory exception, the parent must show more
than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re
Derek W. (1999) 73 Cal. App. 4th 823, 827.) The parent must show he or she occupies a
parental role in the child's life, resulting in a significant, positive emotional attachment from
child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal. App. 4th 318, 324.)
We review an order terminating parental rights for substantial evidence. (In re Autumn
H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial evidence to
support the findings of the juvenile court, we uphold those findings. We do not consider the
credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence.
Instead, we draw all reasonable inferences in support of the findings, view the record favorably
to the juvenile court's order and affirm the order even if there is substantial evidence
supporting a contrary finding. (In re Casey D. (1999) 70 Cal. App. 4th 38, 52-53; In re Baby
Boy L. (1994) 24 Cal. App. 4th 596, 610.) The parent has the burden of showing there is no
evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L.
(2002) 101 Cal. App. 4th 942, 947.)
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B
Here, the evidence showed Leslie had regular visitation and contact with Dominic.
However, Leslie did not meet her burden of showing there was a beneficial parent-child
relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
Although Leslie had a positive relationship with Dominic and met his needs during
visits, she was not able to ameliorate the risks that caused Dominic to become a dependent
child. Leslie knew Dominic wanted to live with her, but she was unwilling or unable to put his
needs before her own. Indeed, two weeks after having Dominic returned to her custody, Leslie
relapsed on methamphetamine and then absconded with him for seven months. During this
time, Leslie failed to attend to Dominic's educational, medical or dental needs, and allowed her
live-in boyfriend to physically abuse him. Her unstable lifestyle caused Dominic to become
depressed and anxious about what would happen to him and where he would live. In this
regard, Leslie did not act in a parental role.
The evidence showed Dominic was happy and excited to see Leslie and their visits were
positive and appropriate. However, "[a] biological parent who has failed to reunify with an
adoptable child may not derail an adoption merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation with the parent."
(In re Angel B. (2002) 97 Cal. App. 4th 454, 466.) Moreover, although Dominic initially had
difficulty separating from Leslie after visits, this behavior eventually abated, and was replaced
by Dominic's ongoing confusion and anger toward her for mistreating and abandoning him.
Dominic said he wanted to continue living with his foster family, and he viewed them as his
parents. The love and affection Leslie shared with Dominic during visits was not enough to
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show Leslie had a " 'significant, positive, emotional attachment' " to Dominic such that
terminating the parent-child relationship would result in great harm to him. (In re Jason J.,
supra, 175 Cal.App.4th at pp. 936-938; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Further, Leslie did not show that maintaining the parent-child relationship outweighed
the benefits of adoption for Dominic. In the opinions of the social worker, CASA and
therapist, Dominic's need for stability, safety and permanency clearly outweighed any possible
detriment that would be caused by severing the parental relationship. The court was required
to, and did, weigh the strength and quality of the parent-child relationship, and the detriment
involved in terminating it, against the potential benefit of an adoptive home for Dominic. We
do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re
Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
Contrary to Leslie's position, a permanent plan other than adoption would not serve
Dominic's best interests because adoption is the only option that would provide him with the
stability and permanence he so desperately needs. (In re Beatrice M. (1994) 29 Cal. App. 4th
1411, 1419 [Legislature has decreed guardianship is not in best interests of children who
cannot be returned to their parents; only adoption affords the most permanent and secure
alternative]; In re Ronell A. (1996) 44 Cal. App. 4th 1352, 1368-1369 [parents' preference to
preserve family unit does not override best interests of minors in stability and security of
adoptive home].) Substantial evidence supports the court's finding the beneficial parent-child
relationship exception did not apply to preclude terminating parental rights.
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DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
MCDONALD, J.
AARON, J.
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