Filed 12/13/13 In re Jonathan L. CA5



                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re JONATHAN L. et al., Persons
Coming Under the Juvenile Court Law.


TULARE COUNTY HEALTH AND                                                              F067253
HUMAN SERVICES AGENCY,
         Plaintiff and Respondent,                            (Super. Ct. Nos. JJV066111A, JJV066111B
                                                                           & JJV066111C)
                   v.
HEATHER L. et al.,
                                                                                  OPINION
         Defendants and Appellants.

                                                   THE COURT*
         APPEAL from orders of the Superior Court of Tulare County. Jennifer Conn
Shirk, Judge.
         Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant Heather L.
         Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant Neil S.
         Kathleen Bales-Lange, County Counsel, and John A. Rozum and Carol Helding,
Deputy County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J., and Peña, J.
       Heather L. appeals from an order terminating her parental rights under Welfare
and Institutions Code section 366.261 as to her seven-year-old son, Jonathan, two-year-
old son, Braden, and one-year-old daughter, Nicole. Heather contends the juvenile court
erred in declining to apply the exceptions to adoption contained in section 366.26,
subdivision (c)(1)(B)(i) and (v), hereafter referred to as the “beneficial relationship” and
“sibling relationship” exceptions respectively. Neil S. joins in Heather’s argument as to
his children, Braden and Nicole. We affirm.
                    PROCEDURAL AND FACTUAL SUMMARY
       These dependency proceedings originated in Los Angeles County in July 2011
after Heather was pulled over by a California Highway Patrol officer for driving
erratically on the freeway with then five-month-old Braden in the car. Heather’s pupils
were constricted and she had track marks on her arm. She also had a syringe cap and a
baggy with drug residue in the car. Heather failed the field sobriety test and the officer
arrested her for driving and being under the influence of methamphetamine and child
endangerment. The Los Angeles County Department of Children and Family Services
(department) took Braden and then four-year-old Jonathan into protective custody and
placed them with their maternal grandparents, Mr. and Mrs. G., in Visalia.
       This was not the first time the department intervened to protect Jonathan. In
November 2006, newborn Jonathan tested positive for marijuana and benzodiazepine.
Heather was actively using drugs, including cocaine, and had a felony conviction for
possession of a controlled substance. In January 2007, the department removed Jonathan
from Heather’s custody and placed him with his maternal aunt and uncle. The Los
Angeles County Juvenile Court provided Heather and Todd, Jonathan’s father,


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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reunification services that included drug treatment. However, Heather did not comply
and she visited Jonathan sporadically. The juvenile court terminated Heather and Todd’s
reunification services and set a section 366.26 hearing. Prior to the hearing, Heather
successfully petitioned for reinstatement of reunification services. (§ 388.) In November
2009, the juvenile court terminated its dependency jurisdiction.
       In September 2011, the Los Angeles County Juvenile Court exercised its
dependency jurisdiction over Jonathan and Braden and ordered Heather and Neil to
attend parenting classes, participate in individual counseling and submit to random drug
testing. The court also ordered Heather to participate in drug counseling.2 However,
Heather and Neil did not comply. From July to November 2011, they failed to show for a
majority of their drug tests and Heather tested positive multiple times for hydrocodone
which she said she took for migraines. She produced a prescription for hydrocodone
filled in early September 2011, but it was only for 20 tablets and was not refillable.
During this time frame, Heather and Neil did not consistently visit the children even
though Mrs. G., Heather’s mother, was willing to meet them halfway. In late November
2011, Heather and Neil moved to Visalia to be closer to the children.
       In March 2012, the juvenile court conducted the six-month review hearing, found
Heather and Neil to be in partial compliance and continued reunification services to the
12-month review hearing. The court also ordered the case transferred to Tulare County.
By that time, Neil was employed full time and Heather was several months pregnant with
Nicole. Heather had completed six weeks of intensive drug treatment and was in
aftercare. She and Neil visited the children twice a week and were drug testing.




2      The juvenile court ordered reunification services for Todd but he did not appear in
the proceedings.


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       In April 2012, the Tulare County Juvenile Court (the juvenile court) accepted the
case and, on the recommendation of the Tulare County Health and Human Services
Agency (agency), ordered Heather and Neil to complete parenting classes and submit to
random drug testing. The court also ordered Heather to complete substance abuse
treatment and Neil to complete an alcohol and drug assessment and follow any
recommended treatment. The court granted the agency discretion to advance Heather and
Neil to unsupervised visitation and set the 12-month review hearing for August 2012.3
       During the first two weeks of May 2012, Heather, then approximately 26 weeks
gestation, was evaluated in the emergency room three times for nausea, vomiting,
abdominal pain and severe anxiety. The examining physician suspected that Heather was
seeking drugs but could not determine whether she had a mental illness she was self-
medicating or whether her symptoms were drug induced. The physician diagnosed her
with bipolar disorder with mania and substance abuse in remission and referred her for a
psychiatric evaluation. In mid-July 2012, Heather reported that she had taken 15 days
worth of her prescribed Ativan in two days and had used other medications to alleviate
her nausea and vomiting.
       In July 2012, Heather was admitted for psychiatric treatment. Upon her discharge,
she was transferred to Mothering Heights, a perinatal inpatient drug treatment program.
That same month, Mr. and Mrs. G. requested permanent placement of Jonathan and
Braden. In separate letters, they stated they no longer believed Heather and Neil could
safely parent the children.
       In mid-August 2012, Heather gave birth to Nicole while residing at Mothering
Heights. The agency did not detain Nicole but filed a dependency petition on her behalf,


3      Todd chose not to participate in reunification services and supported Jonathan’s
adoption by relatives.


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alleging Heather abused prescription medication during her pregnancy, including taking
15 days of Ativan in two days. It also alleged Heather’s substance abuse and mental
illness placed Nicole at a substantial risk of harm. Heather was allowed to return to
Mothering Heights with Nicole.
       In August 2012, the agency filed its report recommending the juvenile court
terminate Heather and Neil’s reunification services for noncompliance. The agency cited
Heather’s abuse of her prescription medication, Neil’s positive drug test result for
methamphetamine in June 2012, and their failure to attend multiple scheduled visits with
the children.
       In August 2012, the juvenile court agreed that Nicole could remain with Heather
in Mothering Heights as long as Heather did not take her from the facility except for
medical appointments and under supervision. The court set a September 2012
jurisdictional hearing as to Nicole and a continued 12-month review hearing the same
month for Jonathan and Braden. The hearings were continued to October 2012 and set
for the same day.
       In October 2012, the juvenile court convened a combined contested jurisdictional
and 12-month review hearing. Heather testified during the jurisdictional phase and
admitted exceeding her dose of Ativan but denied taking 15 days worth of Ativan in two
days. She said she was prescribed one Ativan every eight hours for severe anxiety but
took two every eight hours. She testified she suffered from anxiety and depression while
pregnant with Nicole, but denied being mentally ill and said she was no longer taking
psychotropic medication.
       Following Heather’s testimony and argument, the juvenile court amended and
sustained the petition. The court also informed the parties it intended to detain Nicole but
allow her to remain in Heather’s custody while Heather was in Mothering Heights. The
court continued the dispositional hearing and the 12-month review hearing for two days.

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       Heather testified at the continued hearing. She said she was participating in
substance abuse and parenting classes, individual and group therapy and weekly
Narcotics/Alcoholics Anonymous meetings at Mothering Heights. She expected to
complete the Mothering Heights program in January 2013, after which she intended to
live in a sober living environment with Nicole.
       At the conclusion of the hearing, the juvenile court terminated Heather’s
reunification services as to Jonathan and Braden and Neil’s services as to Braden. The
juvenile court also ordered Nicole removed from Heather and Neil’s custody and denied
them reunification services under section 361.5, subdivision (b)(10) and (13). The
juvenile court also ordered visitation for Heather and Neil as to all three children three
times a week for two hours and set a section 366.26 hearing for January 2013. Heather
and Neil did not challenge the juvenile court’s setting order by writ petition. (Cal. Rules
of Court, rules 8.450, 8.452.)
       Following the hearing, the agency placed Nicole with prospective adoptive parents
who were friends of Mr. and Mrs. G.
       In its report for the section 366.26 hearing, the agency proposed adoption as the
permanent plan for all three children. The agency reported Mr. and Mrs. G. and Nicole’s
adoptive parents were strongly committed to adoption, had a good relationship and
planned to maintain the sibling relationships.
       In January 2013, prior to the section 366.26 hearing, Heather filed a section 388
petition asking the juvenile court to provide her reunification services for all three
children. She asserted her circumstances changed subsequent to the court’s prior orders
denying and terminating her services in that she completed the Mothering Heights
treatment program and a parenting program, completed a mental health assessment and
was deemed not to need mental health treatment, maintained sobriety since July 2012 and
continued to drug test with negative results, and regularly visited the children. She also

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asserted that reunification would serve the children’s best interests as they were bonded
to her as she was to them.
       Neil also filed a section 388 petition in January 2013, claiming he completed
inpatient treatment and one of four required components for a parenting program. In
addition, he stated he was participating in aftercare and testing negative for drugs. Neil
cited his “strong bond” with the children as a reason reunification would serve the
children’s best interests.
       In January 2013, on the date set for the section 366.26 hearing, the juvenile court
continued the hearing until February 2013 and set a hearing on the section 388 petitions
for the same date. Heather testified to her progress as stated in her section 388 petition,
adding that she was participating in an aftercare program she expected to complete in
mid-July 2013. She said she and Neil lived in an apartment and he supported them
financially.
       Neil testified he completed an inpatient drug treatment program and was
participating in aftercare. He expected to complete aftercare in December 2013. He
claimed August 1, 2012, as his sobriety date.
       Following testimony, the juvenile court requested briefing and in April 2013,
issued a written ruling denying Heather and Neil’s section 388 petitions. The court also
terminated Heather, Neil and Todd’s parental rights. In doing so, the juvenile court
found that Heather and Neil visited the children and acknowledged that the children
appeared to benefit from the visits. However, the juvenile court also found that Heather
and Neil had not presented any evidence other than their own beliefs the children would
be harmed if their “minimal [parent-child] relationship” was terminated. Consequently,
the court found there was insufficient evidence to determine that severance of the parent-
child relationship would be detrimental to the children.
       This appeal ensued.

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                                      DISCUSSION
       Heather and Neil (appellants) contend substantial evidence supported a finding
termination of their parental rights would be detrimental to the children under either of
two exceptions to adoption ─ the beneficial relationship and sibling relationship
exceptions found in section 366.26, subdivision (c)(1)(B)(i) and (v) respectively. We
disagree.
       Once a dependency case reaches the permanency planning stage, the statutory
presumption is that termination is in an adoptable child’s best interests and, therefore, not
detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-
1344.) It is the parent’s burden to show that termination would be detrimental under one
of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
       Section 366.26, subdivision (c)(1)(B)(i), the beneficial relationship exception, bars
termination of parental rights if termination would be detrimental to the child because
“[t]he parents have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.”
       In this case, it is undisputed appellants regularly visited the children. The only
question is whether appellants established a factual foundation to support a finding the
beneficial relationship exception applied. In order to do so, they had to show that the
children had such a substantial, positive emotional attachment to them and that severing
the relationship would greatly harm the children. When such an attachment exists, “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.)
       On review, we determine whether the juvenile court abused its discretion in
rejecting a detriment claim and terminating parental rights. (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1351.) To conclude there was an abuse of discretion, the proof
offered must be uncontradicted and unimpeached so that discretion could be exercised in

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only one way, compelling a finding in the appellant’s favor as a matter of law. (Roesch v.
De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
       Appellants argue they shared “a substantial, positive, emotional attachment” with
the children from which the juvenile court should have inferred that severing those
relationships would be detrimental. However, the record does not evidence such an
attachment. According to the record, the children enjoyed visiting appellants and were
affectionate with them. However, the children did not hesitate to separate from
appellants and were happy to see their caretakers. Further, appellants offered no
evidence the children would be harmed if the relationship they had was severed and no
such evidence can be gleaned from the record. We conclude therefore the juvenile court
properly exercised its discretion in determining the beneficial relationship exception did
not apply in this case.
       We also conclude the juvenile court properly determined the sibling relationship
exception did not apply. Section 366.26, subdivision (c)(1)(B)(v), the sibling relationship
exception, bars termination of parental rights if termination would be detrimental to the
child because

       “[t]here would be substantial interference with a child’s sibling
       relationship, taking into consideration the nature and extent of the
       relationship, including but not limited to, whether the child was raised with
       a sibling in the same home, whether the child shared significant common
       experiences or has existing close and strong bonds with a sibling, and
       whether ongoing contact is in the child’s best interest, including the child’s
       long-term emotional interest, as compared to the benefit of legal
       permanence through adoption.”
       In this case, terminating appellants’ parental rights does not interfere with
Jonathan and Braden’s sibling relationship because they will be raised together by Mr.
and Mrs. G. Nor does it interfere with Nicole’s relationship with her brothers because
her adoptive parents intend to raise her with them. Even if that does not occur, adoption


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is still in Nicole’s best interest because she was not raised with her brothers and is too
young to have developed a close and strong bond with them.
       We find no error in the juvenile court’s rejection of the beneficial and sibling
relationship exceptions and its orders terminating appellants’ parental rights.
                                      DISPOSITION
       The juvenile court’s orders terminating appellants’ parental rights are affirmed.




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