In re Marina C.

Filed 11/28/05 In re Marina C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re MARINA C., a Person Coming Under the Juvenile Court Law.	B183484 (Los Angeles County Super. Ct. No. CK32206)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.C. et al., Defendants and Appellants.

APPEAL from the orders of the Juvenile Court of Los Angeles County. Emily A. Stevens, Judge. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant T.C.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Jesus A.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Jerry M. Custis, Senior Deputy County Counsel, for Plaintiff and Respondent.

__________________

Jesus A. (Father) appeals from the orders of the juvenile court denying his petition pursuant to Welfare and Institutions Code section 388[1] and terminating parental rights to his daughter J.A. T.C. (Mother) appeals from the orders of the juvenile court denying Father’s section 388 petition, in which she joined, and terminating parental rights to her children Marina C., Cristian C., Karen C., and J.A.[2] Each appellant contends that there was no substantial evidence to support the juvenile court’s ruling that the contact and benefit exception to adoption, set forth in section 366.26, subdivision (c)(1)(A), was inapplicable. We affirm.

FACTS

On January 2, 1998, the Los Angeles County Department of Children and Family Services (Department) filed a dependency petition on behalf of Marina, then age 7, Cristian, then age 2, and Karen, then age 1, after Mother was arrested for child endangerment because she left the children home alone without supervision. The children appeared dirty and hungry, and Marina told police that Mother frequently had left her home alone to care for the younger children. Mother did not submit evidence opposing the petition, and the petition was sustained under section 300, subdivision (b). The children were declared dependents of the court and reunification services were ordered. The children were placed with maternal relatives and Mother was granted monitored visitation.

The report for the six-month review in September 1998 stated that Mother completed a required parenting class. Mother reported that she had a boyfriend, Jesus A. (Father). The court ordered that Father not participate in visits with the children until he was investigated.

J.A. was born to Mother and Father in February 1999 and lived with Mother. Father was in Mexico but helped Mother financially. It was reported that Mother completed domestic violence counseling and continued to attend parenting classes. At the 12-month review hearing in March 1999, the court continued reunification services and gave the Department discretion to permit Mother to have weekend and overnight visits with the three older children and to begin a 60-day visit with them. The three older children, who had been living with maternal relatives, were placed with Mother for the 60-day visit in May 1999.

The June 1999 report indicated that Mother was complying with the case plan and that she stated she would never leave the children alone again. The three older children were returned to Mother’s custody, under the Department’s supervision, at the 18-month review hearing in June 1999.

The report filed for December 1999 indicated that the children were well cared for but that, at the time of a social worker visit in November 1999, it was discovered that Mother had again left Marina alone. At the hearing, the court stated that while Mother was complying with the case plan, she still did not understand “appropriate supervision and the needs of her very young children.” Family maintenance and preservation services were continued.

In May 2000, new petitions were filed on behalf of all four children and the children were detained after social workers found that Mother had again left Marina home alone. The social worker reported that Mother denied any wrongdoing, and stated that Mother continued to demonstrate that she did not recognize the seriousness of leaving children home alone without supervision. Neither Mother nor Father submitted evidence opposing the petitions, which were sustained under section 300, subdivisions (b) and (j) as to J.A. and under section 387 as to the other three children. The court commented that, even with prior parenting classes and training, Mother still did not understand what was appropriate and that she was placing her children at risk. The children were placed together in a foster home. Reunification services were ordered. The court ordered monitored visits for Mother and reasonable visits for Father, and gave the Department the discretion to place J.A. with him.

A July 2000 report indicated that Father planned to move in with Mother and hoped that J.A. would be returned to them, and that he preferred that the child remain in foster care until then. The court ordered Father into individual counseling and parenting education.

The report for the January 2001 hearing indicated that Mother attended all scheduled visits and interacted appropriately with the children, who enjoyed visiting with her. Father had missed some visits. The court permitted both parents to have unmonitored day visits and gave Department the discretion to begin weekend and overnight visits, and found that both parents were in compliance with the case plan.

In July 2001, at the 12-month review hearing, the children were returned to Mother and Father. The court ordered family preservation and family maintenance services and continued the matter. The report indicated that Father had completed parenting education and both parents had completed individual and family counseling. The therapist observed, however, that Marina, then 11 years old, “carrie[d] a mother role.” The report indicated that the children had enjoyed the unmonitored visits with Mother and could hardly wait for the next weekend’s visit.

However, in November 2001, the four children were again detained and a petition was filed under section 387 after Mother left an iron on when she left the room and the iron fell on Karen, then age 5, who was doing homework on the floor. Karen suffered second degree burns on her face. When she began screaming, Mother did not respond and finally told her to be quiet and go to bed. She was not taken for medical treatment until two days after the incident. A babysitter took her to a follow-up medical appointment. The social worker reported that Mother had a long history of neglectful acts against her children and was delegating parental responsibilities to 11-year-old Marina. Marina and Cristian were dirty and had head lice and mosquito bites.

In December 2001, after Father submitted the matter and Mother proceeded with a trial, the court sustained the petition. The court commented that “we keep coming back for failure to supervise and neglect. These children remain at risk.” The court terminated the order placing the children with Mother and Father and placed the children with their maternal aunt and uncle, Rosa and Esteban J. Family reunification and preservation services were ordered. Mother was permitted monitored visits and Father was permitted reasonable visits.

The report for June 2002 revealed that the children were thriving at the home of their aunt and uncle. Marina, then almost 12, stated that she wanted to remain with them, Cristian, then age 7, said his aunt took good care of him, Karen, then almost 6, said she liked living with her aunt and uncle, and J.A., then age 3, called Rosa and Esteban her “mami and papi.”

The report indicated that Mother said she would complete her treatment plan by the end of June. Father expressed reluctance to comply with the court’s orders and said he would probably not be complying with his case plan because he had to go to Mexico to tend to his ill mother. The family was not accepted for family preservation services, in part because the family had not made any progress despite having previously received various services. Mother had monitored visits with the children an average of three times a week, missing a total of four visits, but Father’s visits were brief and sporadic, and the three older children had little or no interaction with him. The three younger children enjoyed Mother’s visits, but Marina said she was not sure if she liked Mother’s visits, and she generally watched television while Mother was present. Rosa reported that twice she heard Mother tell the children to act as if they enjoyed her visits and as if they wanted to return to her care.

The social worker concluded that Mother had taken steps toward completing her treatment plan but had not completed counseling or parenting, and Father had failed to comply with court orders and demonstrated a lack of insight into the situation. The social worker stated that Mother had a history of completing treatment plans without improving her ability to safely care for the children.

At the 18-month review hearing in June 2002, Mother had not completed her program. The Department recommended that reunification services be terminated. The matter was continued.

When the matter resumed in July 2002, the court terminated reunification services for both parents and set a section 366.26 hearing. The court found that Mother had just recently completed the programs in her case plan, after the 18-month date had passed, and that Father had made efforts to be involved in programs. However, Mother had not completed the program in enough time to be able to progress to unmonitored visits or to have the children returned to her on a limited basis to permit an evaluation of her ability to care for them. The court stated that although Mother and Father were very committed and loving, they could not safely raise the children, and that return of the children would create a substantial risk of detriment.

After the July 2002 hearing at which the court terminated reunification services, Mother told Marina that she had done “bad” in court and was going to cause Mother to lose her children, and that Marina was no longer her daughter. Mother told Marina that she would only fight to regain custody of the other children. Marina decided that she no longer wanted any visits or contact with Mother, and that she wished to be adopted by Rosa and Esteban. Mother and Marina no longer interacted during visits. Subsequently, during a September 2002 visit at a fast-food restaurant, mother confronted Marina about not speaking to her during visits, and Mother accused Rosa of wanting to keep Mother’s children. Mother began screaming at Marina that she should have left Marina in Mexico and that Marina was going to be deported. Mother threatened to kill Rosa and demanded that Rosa give up the children, except for Marina. Karen was afraid when Mother threatened to kill Rosa, and Cristian did not want to visit Mother any more. A few days later, Rosa reported that Mother told other people that she was going to kill Rosa.

In October, upon receipt of the report detailing the above incidents, the court ordered that the parents’ visits were to be limited to monitored visits at the Department offices.

Father, who was living with Mother, filed a section 388 petition in October 2002, seeking custody of J.A. or the reinstatement of reunification services. He asserted that he had had monitored visits with J.A. and had complied with his case plan, including participating in a parenting program and in counseling. The social worker reported that Father’s counseling was not directed to the issues that brought the case before the court but was basically Bible study. The court concluded that “nothing has changed,” in that “the parents have not demonstrated that they are able to incorporate anything that they have learned. The visits remain monitored.” The court denied Father’s section 388 petition, finding that “it would be detrimental in the extreme to remove this child from the only real home she’s known, from her siblings, and place her with parents that have not demonstrated the ability to take care of her or protect her.”

The November 2002 section 366.26 report indicated that Rosa and Esteban, with whom the children were living, wanted to adopt the children. In the report, the Department social worker stated, “The mother has received five years of family maintenance, family preservation, and family reunification services. The mother has attended parenting classes and counseling through the life of this case. The mother has a long history of completing treatment plans and failing to follow through with the implemented changes to ensure the safety of the children. Father Jesus A[.] has also failed to comply with court orders and has continuously demonstrated a lack of insight.” On the other hand, the social worker reported that Rosa and Esteban were providing a nurturing and loving environment and that the children were thriving in their home. The Department recommended continuing the matter for 120 days for completion of the home study.

However, by April 2003, Rosa and Esteban had changed their minds about adopting the children or becoming their legal guardians because of Mother’s threats against them, including her statement that someday they would know how it feels to lose a child. They agreed to keep the children in their home until the children could be adopted. Mother continued regular visits. On one occasion Father dropped Mother off for a visit but he did not go in. On one occasion both parents canceled their visit. The parents often arrived late for visits, and the children, including J.A., sometimes appeared “indifferent” to Father’s presence. Marina refused to visit with Mother or Father. The Department requested a continuance to locate new adoptive parents, and the court continued the section 366.26 hearing.

The report for the June 2003 section 366.26 hearing indicated that parents continued their monitored visits. The social worker observed that Mother appeared to be very affectionate with the children, Father appeared interested in pleasing the children, attempting to play with them, and the children appeared to obey the parents. The report indicated that at times, J.A. initiated kissing Father when he arrived and left. However, Marina continued to refuse to speak with or interact with Mother. Because no relatives were willing and able to adopt the children, the Department recommended long-term foster care in the home of Rosa and Esteban. At the June 2003 hearing, the court so ordered. The court continued Father’s weekly monitored visits with J.A. and Mother’s weekly monitored visits with the three younger children. The court limited Marina’s visits with Mother to once a month with her siblings in a public setting.

In July 2003, Concepcion and Eliceo C., Cristian’s and Karen’s paternal aunt and uncle,[3] asked to have visits with the children and stated that they were interested in adopting the four children. The children said that they wanted to be adopted by Concepcion and Eliceo. In August 2003, the court permitted Concepcion and Eliceo to monitor the children’s visits with Mother and Father. In October 2003, the court permitted Concepcion and Eliceo to have unmonitored visits, continuing the order for monitored visits for Mother and Father.

The children were placed in Concepcion and Eliceo’s home in December 2003. The children bonded with Concepcion and Eliceo, who ensured that the children’s physical, medical, emotional and developmental needs were being met. Concepcion and Eliceo stated that they wanted to adopt the children. After the children were placed with Concepcion and Eliceo, the social worker observed that during visits with Mother and Father, J.A. was always distracted. Marina would occasionally speak with Father, who initiated conversations with her, but Mother would not even look at Marina.

In April 2004, the court awarded Concepcion and Eliceo the right to make educational decisions for the three older children, and the same order was made as to J.A. when she entered school in July 2004. The Department recommended setting a section 366.26 hearing and selecting adoption as the plan for the children. A section 366.26 hearing was set.

The report for the July 2004 section 366.26 hearing stated that Mother and Father continued to arrive late for their visits and sometimes cancelled their visits, but the visits that occurred went well. The children’s social worker recommended reducing the parents’ visits and requiring the parents to call to confirm them. The Department requested a continuance of 120 days for completion of the home study. The section 366.26 hearing was thereafter continued several times.

Reports in February and March 2005 indicated that the children were thriving in the home of Concepcion and Eliceo and that they wanted to be adopted. The parents continued to express the wish that they be permitted to reunify with the children. The children’s social worker observed that Cristian and Karen had a positive, loving relationship with Mother. Mother indicated that Father had not been visiting the children because he was in Mexico to assist his ill mother. The report in April 2005 stated that both parents were visiting the children weekly and that Father always brought pizza for them.

In May 2005, just prior to the scheduled section 366.26 hearing, Father filed a second section 388 petition, seeking custody of the children or unmonitored visits with the four children for him and Mother and alleging that the children had a bond with both parents and that they wanted to return home.

The petition was opposed by the Department on the grounds that Father had not complied with his case plan, in that he had attended only 44 of the 52 sessions of a parenting program ordered in December 2001, he never enrolled in individual counseling ordered in December 2001, and he failed to reunify with J.A. because he did not provide the children’s social worker with a permanent address to permit a home assessment and did not establish his own residence but resided with Mother. The social worker stated that the children had lived with Concepcion and Eliceo since December 2003, had formed a loving and secure attachment with them, and wanted to be adopted. Concepcion and Eliceo were willing to permit the children to maintain contact with the parents if the parents did not endanger or manipulate the children. Cristian’s and Karen’s father, who was located in Mexico, was in favor of the adoption by Concepcion and Eliceo.[4] The Department recommended that the parents not be granted unsupervised weekend visits, because they had been inconsistent with their visits and the social worker was concerned because Mother made inappropriate comments to the children, causing them to become confused and emotional upon their return to Concepcion and Eliceo’s home.

The section 366.26 report stated that the children’s social worker had noticed a positive interaction between Cristian, Karen and J.A. with Mother and Father, although the children did not demonstrate any sadness at the end of the visits. Mother and Father demonstrated “equal attention to the children and engage[d] with the children by playing games, eating pizza together or making small conversation.” However, Marina did not participate in the visits or speak with Mother, explaining to the social worker that while the younger children did not remember the physical abuse inflicted by Mother and the times Mother left them alone, she did.

The section 366.26 hearing was conducted on May 31, 2005, together with Father’s section 388 hearing, in which Mother joined. Father’s counsel made an offer of proof that Cristian, Karen and J.A. wanted to live with Father and did not want to be adopted. The children’s counsel, together with the Department, asked the court to deny the section 388 petition.

The court denied Father’s section 388 petition, commenting that although the younger three children wanted to visit the parents and seemed to like the visits, “[n]either the mother nor the father have [sic] ever demonstrated the ability to parent this child. Whenever the mother has been given the opportunity to parent the children, she has disobeyed court orders regarding leaving them alone. She has neglected them to the point of serious injury that continues to haunt Marina because she is the oldest.” The court stated that although the parents attended various programs, “[t]he question is whether or not they learned anything from the programs or benefitted. [¶] . . . [¶] I believe 3 and a half years working with the family placement and family reunification services [before termination of reunification services] is quite enough for the Department to be able to expect that the parents would have learned.”

Mother and Father asked that the court apply the subdivision (c)(1)(A) exception to section 366.26. Father testified that he visited J.A., then age 6, every week and that she kissed and hugged him and called him “Daddy.” He acknowledged, however, that he had not lived with her for four years and that his visits were always monitored. Mother did not testify.

The court stated that the case had been in the system “far too long. And the children are on a roller coaster. There’s no certainty.” The court observed that the parents did not benefit from the services provided, that the parents’ visits had “never progressed beyond monitored,” and that “they’d have to separate the children because Marina at 14 clearly does not want to [return to the parents’ home].” The court ruled that the parents had not established the section 366.26, subdivision (c)(1)(A) contact and benefit exception and that, even if the exception applied, the evidence would require adoption because continued contact with the parents would not outweigh the children’s “ability to remain together, the 4 of them in a loving home with parents who want to keep the siblings together, who have been able to provide appropriate loving care for them and who want to adopt them.”

The court found by clear and convincing evidence that it was likely the children would be adopted, and it terminated the parental rights of each parent. The court permitted continued visitation at the offices of the social worker between the parents and Cristian, Karen and J.A., discontinuing visits for Marina unless she requested them.

DISCUSSION

Mother and Father each contends that there was no substantial evidence to support the juvenile court’s finding that the contact and benefit exception to adoption set forth in section 366.26, subdivision (c)(1)(A) did not apply in this case. We find no merit in this contention as to either appellant.

When a juvenile court has terminated reunification services and reaches the selection and implementation stage of proceedings (§ 366.26), it must select either adoption, guardianship, or long-term foster care. Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

If the court makes the finding that a child is likely to be adopted, parental rights must be terminated unless one of four enumerated exceptions is found to apply. (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) Under section 366.26, subdivision (c)(1)(A), the exception at issue here, “the court shall terminate parental rights . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] . . . The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

The parent has the burden of proving that this exception applies, and it applies only in “extraordinary” cases. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Adoption remains the norm absent “exceptional circumstances.” (In re Celine R., supra, 31 Cal.4th at p. 53.)

On appeal, we determine whether there is substantial evidence to support the conclusion of the juvenile court. We consider the evidence in the light most favorable to the prevailing party, and we draw all inferences and resolve all conflicts in favor of the ruling of the juvenile court. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) We do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)

As to Marina, Mother’s claim must fail because her contact with Marina essentially ended in late 2002 and it is plain that Marina was obtaining no benefit from a virtually nonexistent relationship. In fact, Mother stated that she did not want to regain custody of Marina, and Marina did not wish even to visit with Mother.

As to Cristian, Karen and J.A., there is no substantial evidence to demonstrate that any of the three children would benefit from continuing the relationship with Mother. “[T]he ‘benefit from continuing the [parent/child] relationship’ exception . . . mean[s] 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 other words, the 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord, In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) We may consider such factors as the child’s age, the portion of the child’s life spent in the parent’s custody, the positive or negative effect of the interaction between the parent and child, and the particular needs of the child. (Autumn H., supra, at p. 576.)

As appellants assert, the Autumn H. standard does not mandate day-to-day contact. “A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) However, in language in large part applicable to Mother’s situation, the court in Casey D. pointed out that a demonstration that the termination of parental rights would be detrimental to the child “will be difficult to make in the situation . . . where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (Ibid.)

Cristian and Karen were first detained in January 1998, when Cristian was 2 and Karen was 1. They were returned to Mother’s custody in June 1999 but were detained again, together with J.A., in May 2000. The children lived with Mother again from July 2001 to November 2001. Mother has not had custody of the three children since then. The children’s parental needs were met first by Rosa and Esteban, and then, when the couple decided they could not adopt the children because of threats from Mother, their parental needs were met by prospective adoptive parents Concepcion and Eliceo. Each of the children stated to their social workers and their attorney that they wished to be adopted by Concepcion and Eliceo.

During the time the children lived with Mother, Mother did not attend to their basic needs, in that she left them alone and neglected them when she was present, and their appearances attested to her lack of care and hygiene. By 2004, Mother’s role in their educational decision-making had been limited. Her visits with them, while enjoyed by the younger children, did not promote their well-being or establish the type of “substantial positive emotional attachment” required for application of the exception. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Even if the benefit of continued contact “must be considered in the context of the very limited visitation mother was permitted to have” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538), it is clear that Mother’s long-term failure to reunify with the three younger children, and her failure to establish a role other than that of a “friendly visitor” under supervised visitation (In re Casey D., supra, 70 Cal.App.4th at p. 51), demonstrate that none of the children would be greatly harmed by the termination of Mother’s parental rights. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1419-1420.)

Moreover, as the court aptly observed, Mother’s opposition to adoption would have required “separat[ing] the children because Marina at 14 clearly does not want to [return to the parents’ home].” (See § 366.26, subd. (c)(1)(E); In re Teneka W. (1995) 37 Cal.App.4th 721, 729.)

The juvenile court’s determination that the exception did not apply as to Mother and that continued contact did not outweigh the benefit the children would gain from being adopted was supported by substantial evidence.

After J.A. was detained in May 2000, at the age of 15 months, Father had the opportunity to have J.A. placed with him. He chose to move in with Mother and wait for the child to be returned to them both. J.A. lived with Father for several months between July and November 2001, when she was two years old. After her detention in November 2001, she never lived with him again. Perhaps due in part to his obligations to his ill mother in Mexico and the demands of his job as a taxi driver, his monitored visits over the ensuing years were sporadic.

The conclusion reached as to Mother with respect to the benefit to the children from continuing the relationship applies as well to Father. Given Father’s long-term failure to reunify with J.A., and his failure to establish a role other than that of a “friendly visitor” under supervised visitation, he failed to establish that J.A. would be greatly harmed by the termination of his parental rights. J.A. called Rosa and Esteban “mami and papi” and then, when the couple decided against adopting the children, J.A. developed a familial bond with Concepcion and Eliceo. J.A. hugged and kissed Father during their visits, and called him “Daddy,” but despite these pleasant contacts, he never stood in a parental role to the young child. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1419-1420; Autumn H., supra, 27 Cal.App.4th at p. 576.)

The juvenile court’s determination that the exception did not apply as to Father and that continued contact did not outweigh the benefit J.A. would gain from being adopted was supported by substantial evidence.

DISPOSITION

As to each appellant, the orders under review, denying the section 388 petition and terminating parental rights, are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, P. J.

BOREN

We concur:

________________________, J.

DOI TODD

________________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] Jesus A. is the father of J.A. Neither the father of Cristian and Karen nor the father of Marina appeared in this case.

In the record before us, Cristian’s name is alternately spelled “Christian.”

[3] Eliceo was actually a cousin of Cristian’ and Karen’s father.

[4] Marina’s father could not be located.