In re Nicole v. CA4/3 ( 2013 )

Filed 12/19/13 In re Nicole V. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re NICOLE V., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G048405
Plaintiff and Respondent,
(Super. Ct. No. DP019575)
v.
OPINION
B.P.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Jacki C.
Brown, Judge. Affirmed.
Michele Anne Cella, under appointment by the Court of Appeal, for
Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen and Julie J.
Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
Nicole is three years old and was removed from her parents’ custody within
days of her birth. She has lived with her foster parents since she was less than a month
old. After 18 months of reunification services proved unsuccessful, the juvenile court
terminated the services and ultimately terminated the parents’ parental rights. Her
mother appeals,1 arguing the court should have found the exception listed in Welfare and
Institutions Code section 366.26, subdivision (c)(1)(B)(i) applies in this case. We affirm.
I
FACTS
In June 2007, B. P. (Mother), who has had an ongoing drug problem since
she was 13 years old, gave birth to Victor. She and Victor each tested positive for the
presence of methamphetamine. Victor, his brothers Antonio and Jonathan, and his sister
Samantha were taken into protective custody and eventually declared dependent children
of the juvenile court. The whereabouts of Samantha’s father and the father of Antonio
and Jonathan were unknown. Victor’s father was incarcerated at the time. Mother
received over two years of reunification services.
In late July 2009, the four children were sent home to Mother for a 60-day
trial visit. That visit was cut short in the middle of August because while they were
solely in Mother’s care, Jonathan and Victor sustained multiple nonaccidental injuries
which need not be detailed here. Additionally, Victor was suffering from recent
malnutrition. Mother failed to successfully reunify with her children.
In March 2010, Nicole was born to Mother and Enrique V. (Father).
Within days of her birth, a petition was filed in the juvenile court pursuant to Welfare and
1 Father did not appeal. Because Father is not a party to this appeal, we do
not focus on his efforts at reunification.
2
Institutions Code2 section 300, alleging a substantial risk of harm to Nicole if she
remained with Mother and Father based on the injuries her siblings sustained while in
Mother’s care. The court temporarily placed Nicole with child welfare services. She
resided at Orangewood Children’s Home until the middle of April. She was then placed
in a foster home.
Mother and Father submitted on the petition and stipulated to a factual basis
for the petition on May 18, 2010. The court declared Nicole a dependent child of the
court and found clear and convincing evidence there was a substantial danger to Nicole’s
physical health, safety, or physical or emotional well-being if custody was vested in
Mother and Father. (§ 361, subd. (c)(1).) Reunification services, including therapy,
parenting classes, drug treatment, random alcohol and drug testing, and visitation were
ordered.
The court eventually conducted an 18-month review on November 14,
2011. The court found clear and convincing evidence that returning Nicole to her parents
would create a substantial risk to her safety, protection, or physical or emotional well-
being, and that Mother’s progress in alleviating the causes that necessitated placement
has been minimal to moderate. As a result, the court terminated reunification services
and ordered a hearing pursuant to section 366.26, subdivision (a) be held within 120
days. (§ 366.22, subd. (a).)
After a number of continuances, the permanency hearing was eventually
held on April 18 and April 30, 2013. Nicole was then three years old. Although
reunification services had been terminated, Mother continued in random drug testing and
counseling, although the initial section 366.26 report—there were 17 addendum reports—
stated Mother had been discharged from counseling services because she had three
2 All undesignated statutory references are to the Welfare and Institutions
Code.
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consecutive no-shows, and a subsequent report stated Mother failed to complete the child
abuse treatment program. Although she generally presented negative drug tests, Mother
missed a number of random tests and tested positive for opiates in January 2012. She
obtained the drug by using a fake name and birth date. That same month she was arrested
for sexual abuse with a minor. She was released from custody and the investigation was
ongoing.
Mother consistently visited Nicole, but she missed a number of the visits
and was routinely 15 to 45 minutes late when she did appear. Mother customarily
brought meals for Nicole and her siblings, but Nicole rarely ate with her siblings and
Mother. Mother did not closely supervise Nicole during the visits. On one occasion she
left Nicole unattended in one room while she charged her cell phone in another room.
The foster father monitored visits and would have to remind Mother that she was
responsible for controlling the children during visitation. When he did, Mother would
become furious. On one occasion, apparently at the Eckhoff Children and Family
Services office, where the visits were changed to in order to provide a more contained
area, a deputy sheriff felt compelled to tell the children they could not run around the
visitation area. Mother responded, “you can’t do anything.” The foster mother said
Mother refuses to properly care for Nicole during the visits. Additionally it was observed
Mother does not comply with monitored visitation regulations, often times leaving the
area of the monitor.
In those visitations where Mother and Father were each present, Nicole
interacted mostly with Father. In fact, Mother complained that Nicole only wanted to
interact with Father, and not her. If Nicole became sleepy during the visit, she would
seek out the foster parent who was present. One report indicated Nicole runs to her foster
mother to hug her after a visit. As Nicole got older she spent her visitation time playing
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with other children, demonstrating “little to no interest in interacting with her mother.”
The social worker observed that when a visit is over, Nicole immediately adjusts to her
daily routine with her foster parents.
An addendum report stated Nicole was likely to be adopted by her foster
parents who are adopting another of Nicole’s siblings and are legal guardians for her
older siblings. She has a strong relationship with her siblings. Nicole refers to her foster
parents as “mama” and “papa.” Nicole’s foster mother adores Nicole and Nicole tells her
she loves her. The foster parents have demonstrated their ability to ensure Nicole’s
health, safety, and welfare. According to a report submitted to the court, Nicole appears
to be thriving in their home.
At the conclusion of the section 366.26 hearing, the court found it was
likely Nicole would be adopted, ordered parental rights of Father and Mother terminated,
and ordered adoption as the permanent plan. Mother filed a timely notice of appeal.
II
DISCUSSION
Standard of Review
The juvenile court’s order terminating Mother’s parental rights is presumed
to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We review the trial
court’s order terminating parental rights for substantial evidence supporting the court’s
decision, viewing the evidence in the light most favorable to the judgment. (In re Jasmon
O. (1994) 8 Cal.4th 398, 423.) Thus, we do not reweigh the evidence. Rather, we only
“‘“decide if the evidence [in support of the judgment] is reasonable, credible and of solid
value—such that a reasonable trier of fact could find that termination of parental rights is
appropriate based on clear and convincing evidence. [Citation.]”’ [Citations.]” (Ibid.)
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Reunification Services and Their Termination
When a child has been removed from the family home, services are
generally supplied to the child and her parents in an effort to reunify the family (Welf. &
Inst. Code, 361.5, subd. (a)), because the law prefers family relationships be maintained
(In re Nolan W. (2009) 45 Cal.4th 1217, 1228) so long as the welfare of the child can be
safeguarded (In re Marilyn H. (1993) 5 Cal.4th 295, 307). To that end, “the focus of
reunification services is to remedy those problems which led to the removal of the
children . . . .” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.)
The Legislature generally requires reunification services be provided for 12
months when the child was three years of age or older when removed from her parents’
physical custody. (§ 361.5, subd. (a)(1)(A).) However, when the child was under three
years of age when initially removed from her parents’ physical custody, the court is
limited to ordering reunification services “for a period of six months from the
dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than
12 months from the date the child entered foster care as provided in Section 361.49
unless the child is returned to the home of the parent or guardian” (§ 361.5, subd.
(a)(1)(B)). The reason for the shortened period of authorized reunification services is
because the needs of a child of such tender years “justifies a greater emphasis on
establishing permanency and stability earlier in the dependency process . . . .” (M.V. v.
Superior Court (2008) 167 Cal.App.4th 166, 175.)
Until the court terminates reunification services and sets a section 366.26
hearing, a parent’s interest in the companionship of her child and preservation of the
family unit prevails over the child’s interest in a permanent and stable placement.3 But
3 The goal of a section 366.22 hearing is to provide a dependent child of the
juvenile court with a permanent, stable home. (§ 366.26, subd. (b).) The preferred
method of doing so is to terminate the right of the parents and to place the child up for
adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573; § 366.26, subd. (c)(1).)
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once reunification services have been terminated and the court sets a section 366.26
hearing, the court’s focus shifts and the child’s need for permanency and stability prevails
over the parent’s interests. (In re Zacharia D. (1993) 6 Cal.4th 435, 446-447.)
Nicole was taken into protective custody within days of her birth in March
2010. The court provided Nicole’s parents reunification services for 18 months. The
services were terminated and a section 366.26 hearing calendared only when the court
found clear and convincing evidence to the effect that returning Nicole to her parents
would create a substantial risk to her safety, protection, or physical or emotional well-
being, and that Mother’s efforts to alleviate the causes that necessitated Nicole’s removal
had been minimal to moderate. (In re Marilyn H., supra, 5 Cal.4th at p. 308; §§ 366.21,
subd. (f), 366.22, subd. (a).) The issue of the propriety of those findings is not before us.
(In re Michelle M. (1992) 4 Cal.App.4th 1024, 1030-1031 [issues related to decision to
terminate reunification services must be reviewed by way of writ petition, not subsequent
appeal from termination of parental rights].)
The Trial Court did not err in Terminating Mother’s Parental Rights
What is before us is the propriety of the juvenile court’s decision
terminating Mother’s parental rights. Once the court terminated reunification services
with an eye to adoption, the burden shifted to Mother to demonstrate termination of her
parental rights and Nicole’s adoption would be detrimental to Nicole under one or more
statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26,
subd. (c)(1)(B).) In the present case, Mother contends termination of her rights would be
detrimental to Nicole under section 366.26, subdivision (c)(1)(B)(i).
That subdivision applies when “[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i), italics added.) Mother exercised her
visitation privileges during the 18-month reunification period as well as the 17 plus
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months between the termination of reunification services and the section 366.26 hearing.
Although she missed visits from time to time and was routinely late to the visits she
made, it cannot be said that she did not maintain regular visits with Nicole. But regular
visits are not enough. There is a second component to this exception to the adoption
preference—the child would benefit from continuing the relationship.
“‘To trigger the application of the parental relationship exception, the
parent must show the parent-child relationship is sufficiently strong that the child would
suffer detriment from its termination.’ [Citation.] A beneficial relationship ‘is one 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.” [Citation.] The
existence of this relationship is determined by “[t]he age of the child, the portion of the
child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction
between parent and child, and the child’s particular needs.” [Citation.]’ [Citation.]” (In
re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) For Mother to meet her burden of
proof, she must show more than pleasant visits or that she has loving contact with Nicole
during visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229) “In order to overcome
the statutory preference for adoption, the parent must prove he or she occupies a parental
role in the child’s life, resulting in a significant, positive emotional attachment of the
child to the parent. [Citations.]” (Ibid.) Put another way, “if severing the existing
parental 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 other words,
if an adoptable child will not suffer great detriment by terminating parental rights, the
court must select adoption as the permanency plan. [Citation.]” (Ibid.) This is where
Mother’s challenge fails.
Nicole was three years old at the time Mother’s parental rights were
terminated. She had never lived with Mother, having been placed in protective custody
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while she was still in the hospital shortly after birth. Roughly a month after birth she was
placed with the foster parents. Nicole has lived the rest of her life with her foster parents.
Mother has never filled a parental role in Nicole’s life. Nicole’s foster parents have
fulfilled that role. They continue to raise Nicole and hope to adopt her, keeping her with
her siblings. Mother did not function in a parental role during visits either. She brought
food to the visits so she, Nicole and Nicole’s siblings could have a meal together, but she
routinely failed to change or delayed changing Nicole’s diaper, leading to repeated
instances diaper rash. And Nicole rarely ate with her siblings and Mother.
As Nicole got older and more independent, Mother did not supervise
Nicole’s activities during the visits. For example, Mother left Nicole unattended in one
room while she (Mother) charged her cell phone in another room. Mother would
reportedly become furious when the foster father, who was present to monitor the visits,
informed her that she was responsible for controlling the children during the visits. On
one such occasion when Mother was not controlling the children, a deputy sheriff who
was present told the children they could not run around in the visitation area. Mother
responded, “you can’t do anything.” Toward the end of the years of visits, Nicole spent
her time running around and playing with other children during the visits, demonstrating
“little to no interest in interacting with her mother.” Although Nicole enjoyed the visits,
there is no evidence from which the court was required to conclude Nicole would be
harmed by terminating Mother’s parental rights.
We conclude the trial court did not err in not concluding the exception set
forth in section 366.26, subdivision (c)(1)(B)(i) applied, whether the decision is reviewed
for substantial evidence (see In re Autumn H., supra, 27 Cal.App.4th at pp. 575-577), an
abuse of discretion (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), or aspects
of both (see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) Accordingly, we
affirm the juvenile court’s order terminating Mother’s parental rights.
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III
The order of the juvenile court is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
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