Opinion
NOT TO BE PUBLISHED
APPEAL from a post-judgment order of the Superior Court of Fresno County Super. Ct. No. 97905-3. Jamileh Schwartzbart, Commissioner.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Gomes, J., and Kane, J.
Monique K. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter Andrea. Appellant contends she maintained a parent/child relationship with Andrea such that the court should have found termination was not in Andrea’s best interests. (§ 366.26, subd. (c)(1)(A).) On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Since the time of the superior court’s decision in this case, section 366.26, subdivision (c) has been amended effective January 1, 2008. We have followed the version of the law in effect at the time of the court’s ruling.
PROCEDURAL AND FACTUAL HISTORY
Andrea is appellant’s third child to suffer in-utero drug exposure. As a result, Andrea, like her older siblings, was detained at the hospital upon her birth in August 2006 and became a dependent child of the Fresno County Superior Court. In the case of appellant’s firstborn, the court ordered reunification services but appellant failed to take advantage of them. Consequently, the court terminated her parental rights. In the meantime, she had her second child born drug-exposed. Due to her previous failure to reunify, the court did not grant appellant services for her second child. The court once again terminated appellant’s parental rights.
Thus when Andrea was born, there were multiple statutory grounds for denying her services to reunify with Andrea. (§ 361.5, subd. (b)(10) [her failure to reunify with her first child], (11) [the prior orders terminating her rights] & (13) [appellant’s extensive substance abuse history].) The court at the detention phase ordered respondent Fresno County Department of Children and Family Services (the department) to offer appellant and the child’s father services as mandated by the code. For the first time, appellant was compliant and participated in the offered services.
Once she learned of the department’s recommendation to deny her services, however, appellant did not make reasonable efforts to deal with her addiction. Instead, she questioned why she should stay in her program and dropped out. She eventually took advantage of a third referral for services and entered another substance abuse program. The prognosis for reunification within six months time, at that point, was poor. She did maintain, however, regular weekly and supervised visits with Andrea, visits which the court described in March 2007 as affectionate and comfortable for the baby. It was on this basis that appellant urged reunification services would be in the child’s best interests. The court however disagreed. Despite the pleasant visits, the court found, Andrea looked to her foster parents for her caretaking needs.
Given the multiple grounds for denying appellant reunification services as well as her lack of reasonable effort to deal with her addiction, and her failure to prove services would be in Andrea’s best interests, the court denied reunification services and set a section 366.26 hearing to select and implement a permanent plan for Andrea. The court also mediated the department’s consent to continue paying for any services the parents were participating in, continued the weekly visits, and ordered a bonding study on the request of appellant’s trial counsel.
The court further mentioned the possibility of a section 388 petition to modify its ruling if the parents made progress.
While appellant, along with Andrea’s father, continued their weekly supervised visits, they apparently made insufficient progress in dealing with the issues giving rise to these proceedings. Neither one of them pursued the court’s suggestion and petitioned to vacate the section 366.26 hearing. In addition, the bonding study did not support their eventual claim that they had established such a parent/child relationship with Andrea that it would be detrimental to the child to terminate rights.
In advance of the section 366.26 hearing, the department prepared an adoption assessment for Andrea. In it, the department recommended the court find Andrea was likely to be adopted, select adoption as her permanent plan, and terminate parental rights. Andrea was currently thriving in the care of her foster parents. Their family included each of Andrea’s siblings whom the foster parents previously adopted. The couple was committed to adopting Andrea as well.
The department also reported on the history of the parents’ contacts with Andrea. They had weekly, two-hour supervised visits which were reportedly good. Andrea did not show a change of behavior or stress when visits began or as she was transported to and from visits. The parents typically sat with Andrea on a couch, holding and feeding her as well as changing her diaper as needed. According to the department’s social worker, Andrea spent most of the visits sleeping and did not engage with either parent.
In response, appellant’s counsel submitted for the court’s consideration narratives of the weekly visits and argued those narratives proved a more interactive relationship than the social worker described in her report. Relevant to this appeal, the narratives frequently described appellant feeding, diapering and burping Andrea. They also described appellant holding and rocking Andrea, both before and while the child slept. As Andrea approached her first birthday, she appeared to stay awake longer and engage in play with the parents. Trial counsel consequently requested a contested section 366.26 hearing to challenge the department’s adoption recommendation.
The court eventually conducted the section 366.26 hearing in September and early October 2007. On appellant’s behalf, her counsel questioned the social worker who prepared the adoption assessment. Counsel’s examination brought out that the social worker personally observed only three visits although she did review the narratives at some point. The social worker also testified she did not provide the visitation narratives to the evaluator who conducted the bonding study. The social worker tried not to bias the evaluator’s opinion by refraining from forwarding such information. However, the social worker did acknowledge providing the evaluator with a copy of the department’s dispositional report to provide a background.
On cross-examination, the social worker testified her observations of Andrea’s lack of interaction with her parents were consistent with the bonding study evaluator’s observations. Andrea looked elsewhere, rather than at her parents. The social worker also testified Andrea never lived with her parents, all of their visits were supervised, and occurred only on a weekly basis for two hours.
Appellant testified to her disagreement with the bonding study evaluator’s opinion that there was no parent/child relationship. Appellant explained Andrea always laughed and never cried during visits. When she would become fussy or want something, “I’ll give it to her and she will stop being fussy.”
Appellant initially planned on subpoenaing the bonding study evaluator. However, on the final hearing date, appellant’s counsel advised the court he decided not to call her as a witness after reviewing the case and discussing it with appellant. With this, the evidentiary phase of the proceedings concluded and the court heard closing arguments.
Upon submission, the court found Andrea was likely to be adopted and terminated parental rights. The court rejected in the process appellant’s argument against termination with these observations. It did appear to the court the parents engaged Andrea during visits and she engaged them to some degree as well. Their visits were also consistent, appropriate, and loving. Further, Andrea was a happy and healthy child who responded positively to each parent. However, the court added the legal standard for establishing an exception to termination required more than a showing of frequent or loving contact or a positive relationship. There must be some amount of detriment or harm that would occur as a result of termination and in this case this was not established. The court noted it was clear from the record Andrea was attached, if not more attached, to her foster parents, went to them easily at the end of visits, and did not suffer detriment once she returned to the foster parents’ care. The court added it also considered factors discussed in In re Zachary G. (1999) 77 Cal.App.4th 799, 811, in evaluating the strength of the parent/child relationship. The first of the two factors, that is the age of the child and the portion of her life spent in the biological parents’ custody, militated against finding the parent/child exception true. While the court noted the third factor, the positive affect of interaction between them, it also took into account the fourth and final factor, the child’s need for stability, continuity, and permanence. Thus, as the court explained, adoption was the appropriate permanent plan for Andrea.
DISCUSSION
Focusing exclusively on the visitation narratives, appellant argues the court erred in terminating her rights because she maintained regular visitation with Andrea who would benefit from continuing their relationship (§ 366.26, subd. (c)(1)(A)). Appellant contends the narratives show she occupied a parental role in Andrea’s life in that she (appellant) attended to Andrea’s basic needs during their visits. She also claims the factors, which the court considered, favored continuation of the parent/child relationship. She further argues those visitation interactions yielded “an astonishing attachment” which demonstrates detriment. Having reviewed the entire record, as summarized above, in addition to the relevant law, we disagree.
At the section 366.26 phase of dependency proceedings, the court focuses on the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) The trial court wisely exercised its discretion on the record before it.
While it is undisputed appellant maintained regular visitation with Andrea throughout her dependency, the court properly could conclude they did not share a parent/child relationship. Although feeding, burping, diapering, holding, and rocking an infant are acts most parents perform on a daily if not more frequent basis, doing so once a week for two hours does not, standing alone, compel a finding that a parent/child relationship must exist. Further, we may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on the narratives and ignoring other evidence before the court.
In any event, appellant failed to establish her relationship with Andrea was so strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) As the trial court correctly observed, the loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) In addition, the factors, cited both by the trial court and appellant in her briefing, militated against finding an important and beneficial relationship. (See In re Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant underplays Andrea’s very young age, the fact she never lived with appellant, and the child’s needs, as the trial court put it, for stability, continuity and permanence. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and Andrea during their visits.
“[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance[] 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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, appellant failed to introduce any such evidence. Indeed, as the trial court observed, Andrea easily separated from her parents at the conclusion of their visits and did not suffer detriment once she returned to the foster parents’ care. Accordingly, we conclude the court did not abuse its discretion by rejecting appellant’s argument.
DISPOSITION
The order terminating parental rights is affirmed.