Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. J39593, J39602
Premo, J.
I. Introduction
Megan A. (mother) appeals from an order of the juvenile court terminating her parental rights and ordering two of her children placed for adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Mother argues that the evidence is insufficient to support the juvenile court’s conclusion that the children’s beneficial relationship with her did not outweigh the benefits of adoption. (Id., subd. (c)(1)(B)(i) (formerly subd. (c)(1)(A).) We affirm the order.
Further unspecified statutory references are to the Welfare and Institutions Code.
II. Facts
A. Circumstances Leading to Removal
Siblings Analisa, Noel, and Jaime were taken into protective custody on December 16, 2004. Analisa was five years old, Noel was four, and Jaime was 16 months. (Due to Jaime’s death, this appeal concerns only Analisa and Noel.) Mother and the children had been living with the maternal grandmother, the step-grandfather, mother’s teenage brother, and other family members in grandmother’s home. Mother called 911 on December 13, 2004, reporting her suspicion that Analisa had been sexually abused by the step-grandfather and the maternal uncle and that the two may have drugged the child. Mother related that Analisa sleeps with the maternal grandmother. When the step-grandfather comes home, he gets into the bed and molests Analisa.
Analisa told the investigators that her uncle and step-grandfather had touched and kissed her “down there” and had penetrated her vaginally and anally with their fingers and their “front parts.” She said that her step-grandfather took off his clothes and her clothes and that she was afraid of her uncle because he got into the bathtub with her.
A psychological assessment performed in January 2005 revealed that mother was the product of an abusive and neglectful upbringing. Both her father and mother had been physically and emotionally abusive. Her mother, the maternal grandmother, had an extensive criminal history, including numerous arrests and convictions for driving under the influence, cruelty to a child, and immoral acts in front of a child. Mother had been involved in numerous abusive relationships with men and admitted to having used alcohol, amphetamine, crystal methamphetamine, and marijuana.
Mother bounced back and forth between her mother’s home in California and her father’s home in Oregon. She went to Oregon in 1998 when she was pregnant with Analisa, returned to grandmother’s home within a month, then traveled back and forth between Oregon and Washington and California over the next several years. Mother participated in a teen program in Oregon from 1998 through 2003. Her counselor recalled that mother had repeatedly returned to California during that time, seemingly drawn back to her mother.
Analisa was born in 1999. Her alleged father died that same year. Noel was born in 2000. His alleged father’s whereabouts were never ascertained. Jaime was born in 2003. His father was in custody in Oregon at the time these proceedings were commenced and mother was in a relationship with a different man--a registered sex offender.
While in Washington in early 2004, mother reported that Analisa had possibly been sexually abused by an unrelated man. In early December 2004, when mother and the children were back living with the maternal grandmother, the Monterey County Department of Social & Employment Services (Department) received a referral indicating that Analisa had missed 21 days of school mostly due to head lice. School staff called the home and spoke to the grandmother, who was incoherent.
The children were taken into protective custody following mother’s call to 911 on December 13, 2004, reporting her suspicion that Analisa had been molested by the two men living in her home.
B. 2005
The Department filed a petition under section 300 and the children were placed together in a foster home. The children entered foster care with poor personal hygiene and grooming skills, an inability to bathe themselves, limited ability to use utensils at meals, and sleep problems. Both Analisa and Noel demonstrated behaviors consistent with indiscriminate attachment, such as moving easily from one caretaker to another with no apparent distress. Both had developmental and academic delays. Analisa had nightmares, frequently yelling out in her sleep, “don’t touch me, don’t touch me.” Neither child could discuss family life experiences. Noel, who had described instances while living with mother when there was nothing to eat, was unable to regulate his food intake. The Department’s family assessment stated that Analisa’s affect and behavior suggested that the child was “struggling with numerous issues of trauma and neglect.” Noel’s presentation suggested that he was anxious, fearful, and angry about his “chaotic, neglectful, and unpredictable life experiences.”
The juvenile court sustained the Department’s petitions under section 300 and ordered reunification services for mother. Mother was allowed weekly, supervised visits with the children. Visitation was suspended in April 2005 when mother failed to comply with the requirement that she be tested for drugs. Mother was granted a visit in June 2005 but the urine sample she submitted for testing at that time was believed to have been obtained from someone else. Mother was not participating in the reunification services. She told the social worker in August that she was going to Oregon and had no further contact with the Department until October 31, 2005. At the six month review hearing, the juvenile court terminated services and set the matter for a selection and implementation hearing (a section 366.26 hearing).
Mother filed a notice of intent to file a writ petition under California Rules of Court, former rule 38.1 (now rule 8.452). Ultimately, no petition was filed. We have taken judicial notice of the record prepared in that matter. (Megan A. v. Super. Ct. (Monterey Co. D.S.S.) H029151, closed Sept. 6, 2005.)
On August 9, 2005, Analisa was moved from the foster home on account of her unmanageable behavior. She was placed with the family now identified as the prospective adoptive parents. Jaime and Noel continued to reside in the other foster home until November 27, 2005, when Jaime died. (His death was ultimately ruled an accident.) The next day, Noel was placed in the foster home with Analisa. By the end of 2005, mother had had no visits with Analisa and Noel for more than six months.
In December 2005, mother gave birth to her fourth child, Jesse. Both mother and baby tested positive for amphetamines.
C. 2006 (January–June)
At the section 366.26 hearing on January 13, 2006, the juvenile court adopted the Department’s recommendation, identifying adoption as the permanent placement goal. The court set a further hearing to give the Department time to identify an adoptive home. (§ 366.26, subd. (c)(3).) The children were doing well in the foster home but the foster parents had not yet committed to adopting them. Behavioral and emotional problems were diminishing and both children were making good progress in school.
Visitation with mother was resumed in January 2006. Mother had had one supervised visit on January 11, which went well but, after the visit, Analisa began wetting her pants, her nightmares returned, and she became defiant. Noel became more defiant and impulsive and began exposing his penis to others. A second visit in March was terminated when the children encountered the maternal grandmother in the hall outside the visiting room. A man, believed to be the step-grandfather, was also in the vicinity calling to them. One of the guidelines for visitation was that mother was not to disclose any information about the visits to other family members. The children’s therapist noted her belief that the children’s deteriorating behavior was a result of the resumed visitation, which had retriggered traumatic memories. A third visit took place in May to assess the basis for the behavioral problems. That visit seemed to go well.
D. 2006 (July–December)
After returning from a vacation with the children in July 2006, the foster parents changed their minds about adoption. They realized that they had bonded as a family. In addition, the maternal grandmother had died in early June. The foster parents had characterized the grandmother’s involvement as “caustic” and her demise removed the only disincentive they had to adopting the children. The foster parents were committed to an open adoption, recognizing that the children would benefit from continued contact with their birth mother. Mother was initially agreeable to the adoption plan.
By August 2006, visits were increased from monthly to weekly and were permitted to take place outside of a structured environment, in public parks or elsewhere. The weekly visits increased the children’s behavior problems so that visits were reduced to every other week with telephone contact allowed in between visits. Behavior improved when the number of visits was reduced.
In its report for the November section 366.26 hearing, the Department recommended adoption and termination of parental rights. Sometime around the end of 2006 mother changed her mind about the adoption and decided to contest the Department’s recommendation.
E. 2007
During a visit with the children at a park on January 13, 2007, mother telephoned her sister to deliver a skateboard for Noel. The sister arrived with the maternal uncle. The foster father quickly got the children into the car and terminated the visit. In their private therapy sessions, both children reported that their uncle’s presence had scared them. Mother minimized the issue and refused to take responsibility for it even though she knew that the uncle had been traveling with her sister when she asked the sister to come by the park that day. As a result of the incident all later visits took place at the Kinship Center. Mother was late for Noel’s birthday visit in February 2007. She did not appear at all for the February 26, 2007 visit.
On March 4, 2007, mother telephoned the children and spoke with them about the court proceedings, something she had been counseled not to do. Her boyfriend told the children that mother was trying to get them back.
F. The Contested Section 366.26 Hearing
The section 366.26 hearing was held over two days in March and April 2007. The evidence from both sides confirmed that visits between mother and the children were generally positive. The children always seemed happy to see her and greeted her with hugs and kisses. Mother was affectionate with the children, encouraging them and praising them appropriately. There was no dispute that the children were thriving in the care of the prospective adoptive parents, that they were bonded to them, and that both children felt safe in their care. Likewise, it was undisputed that the prospective adoptive parents encouraged the children’s contact with mother and supported continuing visits so long as they believed it was in the children’s best interests. The parties stipulated that the children were adoptable.
Sharon Clark, Ph.D., had conducted a bonding study at mother’s request. She had interviewed mother and the children and observed two one-hour visits in March 2007. Clark testified to her belief that, if mother’s contact with the children was terminated, the children “would suffer a substantial or severe detriment to their psychological well being.” That opinion was based upon evidence of behavior problems that Clark believed were “a result of feeling abandoned by mother because they weren’t able to by [sic] physical with her for a period of time and then had inconsistent visits for three months. They weren’t sure when they would see her. That, I think raised anxiety and made them act out.” Clark also opined that the deaths of Jaime and the grandmother, Analisa’s experiences of sexual abuse, and the switching of homes over the preceding two years made the children especially fragile.
Clark’s written bonding study stated: “There is clear and convincing evidence in this evaluation that it would be detrimental to the children to have this bond between the children and there [sic] mother broken. Both Analisa and Noel showed increasing behavioral difficulties after being separated from their mother for six months. The children continue to express concerns about being adopted and concerns about ‘parents’ talking about where she [sic] would live. Analisa has also expressed sadness and feelings of guilt regarding being separated from her mother, . . . worrying about why she cannot live with her mother. [¶] Analisa and Noel are likely to have behavior problems resurface if they are denied contact with their mother. Their ability to trust and become attached to other grown-ups in their lives would be greatly damaged, given that there have been promises to make sure [mother] is always a part of their lives.” The report concluded, “It is quite evident that the children have a significant attachment to their mother and they benefit from predictable and continuing contact with her.”
Suzanne Garliepp, a social worker at the Kinship Center, had supervised a number of visits between mother and the children and had been meeting with the children two or three times a month even when visits were not occurring. In her written report Garliepp stated that the “children’s emotional health was connected to their having a connection to their mother.” At the hearing she agreed that the children were bonded with mother but she could not say, unequivocally, that terminating the children’s contact with mother would be detrimental. “It would depend on what’s going on in their lives.” She noted that, during breaks in visitation in the past, the children did not seem to suffer. Their behavior problems seemed to get worse after visits had taken place and they seemed unconcerned when visits did not occur. They did not ask for longer visits and have never asked to visit their mother. Analisa had mentioned a desire to live with mother. Noel usually agreed but then conceded that he wanted to stay in the home with the foster parents where he felt safe.
Garliepp further opined that the children’s bond with mother was not a parental bond. In her written report, Garliepp stated, “The children are happy to see their mother and she them. However, during their visits their mother is more a playmate as she does not set limits or corrects [sic] when the children need direction. It is the foster parents that keep the children in check and do not let the activities get out of hand.”
Garliepp’s report noted that the children had become confused about the adoption. Prior to November, mother had told the children they were going to be adopted by the prospective adoptive parents. Now she was working to prevent the adoption. “While the children have expressed a desire to live with their mother, they do express fear that she cannot make good decision[s] about their safety and feel safest living with their foster parents.” Garliepp testified that it was common for dependent children to express a desire to live with their birth parent. When Garliepp spoke with the children in the prospective adoptive home, both children told her that they would prefer to live “here” where they felt safe.
Elma Mansia, a Department social worker, opined, “The children definitely have a connection with their mother. They have a bond, but based on my observations, the children are attached to the foster parents. They rely on the foster parents to keep them safe, to protect them, to provide for their needs. I think the connection between the mom and the children is not that significant that [it] supercedes [sic] the need for permanency stability and safety for the children.” Mansia acknowledged that if the visits with mother were eliminated the children would “miss the contact with her and the time they spend in visits, but it is my belief that it would not be detrimental in the long run and they would overcome sadness.”
The prospective adoptive father characterized mother’s visits with the children as “playtime from start to finish.” When visits started up again in January 2006, which would have been the first visits the prospective adoptive parents observed, the prospective adoptive father was struck by Analisa’s remarks that her mother was younger than she, that Analisa had to teach mother the rules. Once mother had promised to bring dress-up clothes to a visit. When the time came, mother did not bring the clothes as promised. The prospective adoptive father asked Analisa if she had asked mother why she did not bring the clothes. Analisa said that she had not asked because she did not want to hurt mother’s feelings. On another visit, Analisa injured herself and, uncharacteristically, went to mother for help. Mother’s response was, “Okay.” Analisa then turned to the prospective adoptive mother and she took Analisa to the water faucet to wash the wound. The prospective adoptive father testified, “I think it would be in the kids[’] best interested [sic] to have a continued relationship with their mom. I don’t think that they would be severely damaged if that relationship were cutoff [sic] because their interaction with her was negative.” He agreed, however, that he believed it would be “real bad” for the children if they were never able to see their mother.
G. The Juvenile Court’s Ruling
The juvenile court ruled as follows:
“Under the balancing requirement expressed by several authorities I find that the well-being that Analisa and Noel will gain from having a permanent adoptive home, together with the security and sense of belonging that an adoptive family will confer, outweighs the strength and quality of the relationship between [mother] and her children in this case. Although there is evidence that the relationship takes on a parental relationship with some detriment to occur if parental rights are terminated, the stronger evidence demonstrates to the contrary. In assessing the children’s wishes, they clearly have mixed feelings, hoping that some day they can be returned to their mother, but at the same time preferring to stay where they are and be adopted. Of great significance is the fact that the children do not feel secure about their mother’s ability to protect and provide for them. . . . A strong parental relationship should instill confidence in children that they can be and will be safe, secure and comfortable in the home of the parent. The relationship here between mother and children is missing this key ingredient.”
After summarizing some of the evidence, the juvenile court’s order concluded, “I conclude that the relationship between [mother] and her children is not the type of parent/child relationship in which there has been visitation[s] with the regularity and consistency required to apply the statutory exception to terminating parental rights and ordering adoption as the permanent plan. The strength and quality of the relationship demonstrated by the evidence in this case does not outweigh the well-being Analisa and Noel will gain from having a permanent adoptive home, together with the security and sense of belonging that a new adoptive family will confer. . . . [¶] Nearly two and one half years after their removal, Analisa and Noel deserve the permanency and stability they so dearly want. The fact that an adoptive home will confer this sense of well-being, security and sense of belonging is demonstrated by the children’s verbal and nonverbal expressions of their current feelings about their current prospective adoptive home.”
III. Issue
The only issue on appeal is whether there is substantial evidence to support the juvenile court’s determination that the benefit of a continued relationship with mother did not outweigh the benefit of adoption.
IV. Discussion
A. Legal Framework and Standard of Review
“The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. [Citation.] Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. [Citations.] That child must be placed for adoption, in guardianship, or in long-term foster care. [Citation.] [¶] Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.] ‘Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered.’ (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Adoption, of course, requires terminating the natural parents’ legal rights to the child; guardianship and long-term foster care leave parental rights intact. . . . (Id. at pp. 923-924.)” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).)
In selecting adoption as the permanent plan, the juvenile court proceeds under section 366.26, subdivision (c)(1). Under that subdivision, if the juvenile court finds, by clear and convincing evidence, that it is likely that the child will be adopted, the court must terminate parental rights and order the child placed for adoption unless it finds either that the child is living with a relative under specified circumstances (id. at subd. (c)(1)(A)) or that there is a compelling reason for determining that termination would be detrimental to the child due to one of the circumstances listed in section 366.26, subdivision (c)(1)(B). Mother challenges the termination decision based upon the exception listed in section 366.26, subdivision (c)(1)(B)(i) (the subd. (c)(1)(B)(i) exception, formerly subd. (c)(1)(A)).
The subdivision (c)(1)(B)(i) exception was enacted as section 366.26, subdivision (c)(1)(A). The new numbering is the result of an amendment, effective January 1, 2008, adding a new subdivision (c)(1)(A). The amendment made no substantive change in what is now subdivision (c)(1)(B)(i). Accordingly, case law interpreting the exception when it was known as subdivision (c)(1)(A) is validly applied to subdivision (c)(1)(B)(i). Although the former subdivision was in effect at all pertinent times in this case, we refer to it by its present designation.
The subdivision (c)(1)(B)(i) exception applies where: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The beneficial relationship between the biological parent and the child must be parental in nature in order to trigger the exception. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “Interaction between [a] natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “[P]leasant and cordial [parent-child] visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R., supra, 2 Cal.App.4th at p. 924.) It is important to recall that at the point in the proceedings at which the juvenile court evaluates the exceptions to termination, the child’s interest in a permanent home is paramount. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Section 366.26, subdivision (c)(1) provides, in pertinent part: “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) 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: [¶] (i) The 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).)
The Legislature emphasized how exceptional the circumstances must be to preclude adoption when it revised section 366.26, subdivision (c) to require a finding that those circumstances provide “ ‘a compelling reason for determining that termination would be detrimental to the child.’ ” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; citing Stats. 1998, ch. 1054, § 36.6.) Thus, “a parent may not claim entitlement to the exception provided by [former section 366.26,] subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra,78 Cal.App.4th at p. 1349.) That is, the parent must show substantial benefit from the relationship and the prospect of great harm from its termination. As in Autumn H., supra, 27 Cal.App.4th at page 575, explained, the juvenile court must decide whether the parental 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 to a new family would confer.” This determination is made on a case-by-case basis, taking into consideration all pertinent factors. (In re Jasmine D., supra,78 Cal.App.4th at p. 1350.)
In reviewing a juvenile court’s ruling on the subdivision (c)(1)(B)(i) exception, we apply the substantial evidence standard of review. (Autumn H., supra,27 Cal.App.4th at p. 576.) We do not reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) As mother observes, some courts apply the abuse of discretion standard. (In re Jasmine D., supra,78 Cal.App.4th at p. 1351.) But the practical differences between the two standards are not significant, particularly in dependency cases where we accord the juvenile court broad deference. (Ibid.) We need not dwell on the question here because we would affirm the juvenile court’s orders under either standard of review.
B. Substantial Evidence Supports the Juvenile Court’s Ruling
Although much of mother’s brief is devoted to a discussion of the evidence favorable to her claim of a beneficial relationship, under the substantial evidence standard of review we look only to whether there was evidence to support the trial court’s conclusion that continuing contact was not a sufficiently compelling reason to prevent the children from being adopted. Mother’s evidence of an existing beneficial relationship and possible harm from its loss is immaterial if there is evidence to support the juvenile court’s conclusion that the permanency of adoption would provide the greater benefit.
Regular visitation is one of the necessary elements for application of the subdivision (c)(1)(B)(i) exception. Mother’s voluntary absence for over six months in 2005 shows that she did not maintain regular visitation for a good part of this more than two-year dependency. Although mother claims that the suspension of services in 2005 was improperly punitive, the record shows that visits did not take place because mother had not been participating in routine drug testing, had showed up to visits looking as if she were abusing drugs, left town, and, upon her return, continued her drug use as evidenced by the positive toxicology screening of mother and her newborn in December 2005. During this time, the children were placed with the prospective adoptive parents where they did well, with no evidence of detriment from mother’s absence.
There is also evidence that, in spite of the later, more regular visits, mother did not play a parental role in the children’s lives. The social workers and the prospective adoptive father described mother as more of a playmate than a parent. She did not provide structure or guidance during the visits and was not the person to whom the children turned for care or protection. To Analisa it seemed that mother was the younger one and that Analisa had to teach her the rules and take care not to hurt her feelings. Both children recognized that mother was unable to keep them safe and both had expressed the desire to stay in the prospective adoptive home where they felt safe. Furthermore, the maternal visits were not unequivocally beneficial in that the children’s behavior suffered when visitation was resumed or increased. Although mother claims that the behavior problems occurred when visitation was suspended, it is clear from our review of the record that problems also arose in early 2006, when visits were recommenced after a hiatus of over six months, and later in 2006, when weekly visits were attempted. Although one could argue, as mother has, that the disruption alone could have caused the behavioral difficulties, the children’s therapist believed the behavior could have been related to a retriggering of memories of the traumatic events the children had experienced while in mother’s care.
Mother argues that the assumption that the children’s early years were filled with chaos and trauma is inaccurate. She claims that the misperception was derived from the family assessment performed in early 2005, in which the assessing psychologist opined that the children’s affect and behavior reflected the trauma they had experienced in their lives. Mother maintains that the psychologist leapt to that conclusion without any evidence to support it and without considering the recent disruption in the children’s lives. Since, according to mother, the assessment was unsupported by the facts, the subsequent opinions of the children’s therapist and the social workers do not constitute substantial evidence to support the juvenile court’s ruling. But the record confirms that the children had experienced chaos, trauma, and neglect while in mother’s care. Mother moved around between California, Oregon, and Washington. She admitted to using illegal drugs during the time the children were in her care. Analisa was sexually molested. Noel went hungry. All three children were allegedly fathered by different men who must have come in and out of the children’s lives. Indeed, the children had been unable to describe who their family members were. And both Analisa and Noel had academic, social, and developmental delays when they entered foster care. Those problems have nearly vanished now that they are in a stable home environment. This is ample support for the assumption that the children had experienced trauma, chaos, and neglect during the time they lived with mother. Thus, the juvenile court had no reason to reject any evidence that relied upon that understanding.
Mother argues that the juvenile court did not take into consideration the children’s wishes. The argument is belied by the juvenile court’s express finding: “In assessing the children’s wishes, they clearly have mixed feelings, hoping that some day they can be returned to their mother, but at the same time preferring to stay where they are and be adopted.” It is true, as mother maintains, that the issue is not where the children want to live, but whether they want to continue seeing her. But evidence that the children have expressed a desire to live with mother is certainly evidence that they want to continue to see her. The juvenile court unquestionably took the children’s wishes into account.
Mother compares herself to the mother in In re Amber M. (2002) 103 Cal.App.4th 681, which concluded that the juvenile court had erred by declining to apply former section 366.26, subdivision (c)(1)(A). In that case, the children’s therapist, a bonding expert, and the court-appointed special advocate, all opined that it would be detrimental to terminate parental rights. (In re Amber M., supra,103 Cal.App.4th at pp. 685, 690 .) “The social worker, the only dissenting voice among the experts, provided no more than a perfunctory evaluation of Mother’s relationship to the children . . . .” (Id. at p. 690.) Although mother in this case, like the mother in Amber M., had a warm, loving relationship with her children and numerous positive visits, only the bonding expert, who participated in the case for approximately one month, suggested that termination could cause significant detriment. The social workers, who had worked with the children over the course of the dependency, held another view which the juvenile court was entitled to accept.
Mother further asserts that the juvenile court confused her inability to reunify and regain custody of her children with the showing required to demonstrate the beneficial relationship exception. We disagree. The juvenile court acknowledged that there was evidence of a potential for harm if the children’s relationship with mother were terminated but the court decided that the contrary evidence weighed more heavily in the balance. The court found that the bond between mother and her children was not parental in nature because the children had specifically expressed their concern that mother could not keep them safe. While that finding would tend to support a removal order, it is also relevant to the determination to be made here, namely, whether the nature and quality of the maternal/child relationship promotes the children’s well-being to such a degree as to outweigh the well-being the children would gain in a permanent home.
The ultimate choice, as the juvenile court acknowledged, is a difficult one. Legal guardianship, the arrangement mother is seeking, leaves the children in an unstable situation necessitating continued legal oversight and allowing for further judicial proceedings should mother attempt to regain custody of the children in the future. (See, e.g., In re Jacob P. (2007) 157 Cal.App.4th 819, 829.) While legal guardianship would insure that mother would continue to have contact with the children so long as it was in their best interests, the juvenile court had to decide whether the guarantee of that contact outweighed the benefit the children would receive by adoption, which would eliminate any confusion and uncertainty about where the children should live and allow them to go on with their lives, secure in the knowledge that they belonged to a family.
Evidence that the children are secure, happy, and thriving in their prospective adoptive home supports the conclusion that termination of mother’s parental rights would be in their best interests. The social workers’ opinions concerning the degree of detriment the children might suffer if visits with their mother were discontinued, evidence of the children’s deteriorating behavior following the resumption or increase in maternal visits, evidence that the children did not appear upset or concerned when they did not visit with mother, and evidence that mother did not occupy the role of parent, supports the conclusion that termination would not cause the children great harm. This combination of evidence amply supports the juvenile court’s conclusion that, even though adoption could not insure the children’s continuing contact with their birth mother, the benefits of adoption outweighed the benefit of continuing contact with mother in a legal guardianship situation.
V. Disposition
The order of the juvenile court is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.