Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. 09CEJ300052-2 Jane Cardoza, Judge.
Donna Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Jessica A. (mother) appeals from a juvenile court order terminating parental rights (Welf. & Inst. Code, § 366.26) to her three sons (the children).1 Mother contends the court erred by: denying her request to set aside an earlier order denying her reunification services (§ 388); finding the children were likely to be adopted; and rejecting her argument that termination would be detrimental to the children based on their relationship with her. On review, we disagree and affirm.
PROCEDURAL AND FACTUAL HISTORY
In early 2009, the children and their older sister lived in the home of their maternal grandmother. Mother did not live with them, but rather left the maternal grandmother and another relative to care for the children. In February 2009, police arrested the maternal grandmother for being under the influence of methamphetamine and possessing drug paraphernalia, which was accessible to the children. Her home was also unsafe and unsanitary.
The older sister is not a part of this appeal.
Respondent Fresno County Department of Social Services (department) consequently detained the children and initiated dependency proceedings on their behalf. As the department alleged and the juvenile court later found, mother was unable to safely parent the children due to her own drug abuse (methamphetamine and marijuana), and she made an inappropriate plan for their care by leaving them with the maternal grandmother.
Mother had used methamphetamine for the past six years and marijuana for an even longer period. She never maintained her sobriety for any significant length of time. In 2005, a court ordered mother to complete a one-year inpatient treatment program as a condition of probation. It took her 18 months to complete the program. On the day of her release, she relapsed. She subsequently violated probation twice by testing positive for drugs. She also tested positive for methamphetamine and marijuana over three days in late February 2009 after the children’s detention.
The court initially directed the department to offer mother a parenting course, a substance abuse evaluation and recommended treatment, a mental health evaluation and recommended treatment, and random drug testing. By the end of May 2009, mother completed a three-month residential drug treatment program. However, she did not immediately enter a three-month aftercare program, as she had been directed. She also missed three random drug tests after her release, despite knowing the missed tests would count as presumptively positive results.
July 2009 Dispositional Hearing
At a July 2009 dispositional hearing, mother did not dispute there was a factual basis for denying her reunification services, namely, her extensive, abusive and chronic use of methamphetamine, and resistance to court-ordered drug treatment (§ 361.5, subd. (b)(13)). She nevertheless claimed that reunification services would serve the children’s best interests.
According to the department, reunification services would not serve the children’s best interests because their bond with mother was more akin to a friendship than a mother/child relationship. In addition, the children considered their home to be with their maternal grandmother, and the children were not upset at having to separate from mother at the end of visits. Although there were appropriate visits between mother and the children, mother interacted with them as if she were an adult sibling. She attempted to correct the children, but they were nonresponsive and she did not follow through. In addition, the children consistently stated they wanted to go home with their maternal grandmother.
Mother testified she recently began aftercare. She also stated she was participating in a parenting course and only had two to three weeks of classes left to complete. During visitation, she applied parenting skills she learned so far. As a result, she believed the children were more responsive to her. She also testified she had lived with the children in the maternal grandmother’s home. Although mother admitted leaving the children “now and then, ” she claimed she always came back. In addition, she did not understand how the children could view her as an older sister rather than their mother.
At the hearing’s conclusion, the juvenile court denied mother reunification services and limited her visitation with the children to twice a month. In so doing, the court cited mother’s completion of two residential treatment programs, continued use of drugs, failure to promptly enroll in aftercare, and missing three drug tests. The court also found “even though the children have a relationship with mother, [it] is more of a friendship relationship.” The juvenile court concluded the evidence presented did not support a finding that it would be in the best interests of the children to grant mother reunification services.
The juvenile court in turn set a section 366.26 hearing to select and implement a permanent plan for the children. Mother unsuccessfully challenged, by way of a petition for extraordinary writ, the setting order and more specifically the juvenile court’s order denying her services. (F058182; J.A. v. Superior Court.)
Permanency Planning Delay
Although the juvenile court originally set its permanency planning hearing for November 2009, it continued the case numerous times until September 2010. During the ten-month delay, the following transpired:
First, the department did not issue its original section 366.26 report until December 2009. In it, the department recommended long-term foster care as a permanent plan for the children’s older sister, due to problems she was experiencing. It also identified adoption as the permanent plan goal for the children, but requested a six-month continuance in order to find an adoptive family for the children. This led to a substitution of counsel for some of the children and a continuance until late January 2010.
At the January 2010 hearing, the court granted the department’s continuance request as to the children’s permanency planning. According to the department’s reports, the foster parents were unwilling to provide a permanent plan for the children and preferred to remain foster parents. The department next focused on finding a permanent placement for the children with one of their relatives. However, nothing apparently came of the department’s effort. As of December 2009, the department had not identified an adoptive or guardianship family for the children. That same month, the department also reassigned the children’s case to another social worker. According to the previous social worker, the children might prove to be challenging to match as they were a sibling group and were spread out in age. The two older boys were experiencing some difficulty in school and the youngest child might have some developmental delays. At that time, the care providers noted some problems with the youngest child’s speech development and a referral was under consideration.
The department requested in its report court authorization to list the children, with their photographs, in an approved adoption exchange. However, once the court granted the department’s six-month continuance request, the department’s representative did not pursue its request for authorization to publish.
When the court recalled the case in July 2010, the department requested a further continuance. According to an July addendum report, the department had begun to receive and review adoptive home studies of people interested in adoption.
At the July 2010 hearing, the juvenile court expressed its frustration with the delay in permanency planning for the children. The court understood that the department’s preference was to first identify an adoptive family. However, the court did not believe the law required that. The court granted a continuance subject to the department providing a final permanency planning report.
In the interim, the court conducted an August 2010 status review hearing for the children’s older sister, who by then was placed in long-term foster care. Among the court’s findings was that the extent of mother’s “progress toward alleviating or mitigating the causes necessitating placement has been none.” Mother did not challenge this or any other of the court’s findings or orders.
In its final permanency planning report, the department maintained that the children were generally adoptable in that they were developmentally on target and there were currently no major behavior issues. The two younger boys had struggled with minor behavioral issues, in terms of defiance and following rules. However, they had been improving. The eldest child was doing well and got along well with everyone.
The department’s complete assessment of each child is detailed in section II of our Discussion.
As for its efforts to find an adoptive family, the department added the following: The children attended an adoption picnic in August 2010 to meet potential adoptive families, some of whom showed interest in the children. The department might take the children to a similar event in September in order to maximize its options before matching the children with a family. It was looking for a home that could accommodate all three children.
The department also reported on mother’s supervised visits with the children. The visits occurred for one hour every two weeks. Mother visited on a consistent basis and the children appeared to enjoy the visits. They enjoyed playing card games and sharing snacks, which mother brought. She was able to provide some structure during the visits and, yet, the children often became distracted. She had difficulty engaging and redirecting the children. They often appeared overly preoccupied playing with mother’s cell phone and i-pod and asking her for expensive gifts. At times, they appeared more preoccupied with obtaining gifts from mother than spending time with her. In addition, mother did not ask the children about school in terms of providing them with direction and guidance in their studies and interests. At the end of the visits, the children did not have a difficult time separating from her.
Although the children had a parent/child relationship with mother, it resembled more of a relationship with an aunt, who was able to give gifts and attention on an occasional basis. The children did not look to mother to meet their daily physical, emotional, educational, and social needs. Instead, they turned to their current care providers to meet those needs.
Mother’s Section 388 Petition
On September 14, 2010, the day of the eventual section 366.26 hearing, mother’s trial counsel filed a section 388 petition requesting reunification services for her. According to the petition, mother allegedly had improved herself, attended AA/NA meetings, enrolled at adult school, and remained clean and sober. In addition, ordering reunification services allegedly would be better for the children because: they had no prospective adoptive parents; they were bonded siblings who should not be separated; if rights were terminated and they were not adopted, the children would become legal orphans; and if the children were adopted, they would emotionally suffer.
There were two attachments to the section 388 petition. One was a September 9, 2010, letter purportedly from a teacher of an adult basic education course. The letter stated mother had been attending the course since September 1, 2010, made good progress, and had a good attitude. The second attachment appeared to document mother’s attendance at 11 AA and NA meetings in the month of August 2010.
Permanency Planning Hearing
The court agreed to hear mother’s section 388 petition with the permanency planning hearing. It took the following evidence from mother and the current case manager for the children’s dependency, in addition to admitting the department’s permanency planning reports.
Mother
According to mother, she had completed aftercare and parenting. She also attended AA/NA meetings, every night or every other night. She had been unable to complete a mental health evaluation because her “services got terminated.” She later testified she had “done some” mental health services, but did not complete therapy because of the denial of services. After the order denying her services, she started looking for work and applied for school, which she was currently attending to earn her GED.
Asked to describe her most recent visit with the children, mother stated it started with a hug. On that occasion, they celebrated one son’s birthday with a cake, a card, and “stuff like that, ” which mother apparently brought. At the end of the visit, the children were “kind of sad, ” but they gave her hugs and kisses. In general, this was how the children behaved at the end of visits. They would “basically say they want[ed] to come home and stuff.”
Mother testified she had remained sober since February 14 or 15, 2009. That was also the last time the children were in her care. She cited learning about herself and a lot about responsibilities in the drug program. She currently felt a person’s responsibilities to themselves and their children were important.
Compared to the past, mother believed she had improved in terms of her parenting through the parenting course she took. She learned to pay more attention to the children, understand their needs, and discipline them. Previously when the children did something bad, she “just probably shined it on.” As of trial, she would explain to them what they could and could not do.
She also believed she and the children shared a better relationship than they previously had. In her view, she had a very close relationship with the children. She also described herself as more of a guide and leader than a friend to the children.
According to mother, if the children were adopted, they would be “really hurt and crushed.” She knew there would be “a lot of anger... inside them.” It would also “crush them if they got torn apart.”
Mother’s counsel later moved to admit the attachments to mother’s section 388 petition. Hearing no objection, the juvenile court granted counsel’s motion.
Case Manager
Melissa Trevino had been the family’s case manager since December 2009. In that role, she had supervised approximately four visits between mother and the children. She also reviewed the notes of others who supervised visits. She did not agree with mother’s counsel that the visits were of “very good quality” or that visits appeared to be going well.
Trevino testified the department had identified, within the last month and a half, several families interested in adopting the children. It also matched the children with two different families and completed a presentation with one of those two families. The department had not as yet settled on an adoptive family for the children. One of her priorities was to find an adoptive home willing for the children to maintain a relationship with their older sister. Her goal was to also find a home suitable to meet all three boys’ needs.
In addition, the department was aware mother completed services previously offered to her. Specifically, she had completed the inpatient and aftercare components of drug treatment, the parenting course, a mental health assessment, and some of the recommended therapy.
On cross-examination, Trevino testified she had seen children as old as the two older children here, who were eight and ten years of age, successfully adopted. Arturo, the eldest of the three boys, was a very easy going and gentle boy with some learning challenges. Isaiah, the middle child, had some learning difficulties and some behavioral issues in terms of getting upset and breaking things. However, he seemed to have improved behaviorally and experienced less frequent episodes.
Trevino did not feel these issues would prevent the department from finding a family to adopt the children. She planned on doing another presentation, this time live, with one of the families interested in adopting the children. The family had not yet met the children. Trevino acknowledged it was difficult finding the right match for the children because they did have a lot of needs and they needed an experienced family to provide a secure and stable home. She nevertheless believed the department would find that home within the next month or two.
Asked about the final report in which she stated the children seemed to have a parent/child relationship with mother, Trevino explained the children knew who mother was and they referred to her as mom. They also looked forward to visits with mother. However, the parent/child relationship was not to the level of where mother provided structure or met their emotional needs. It appeared to be based on gift giving and resembled more of a friendship. While mother tried hard, she did not provide “that emotional structured kind of parent/child relationship that they need.” It also seemed unusual that at nearly every visit the children asked mother for toys or other items.
Trevino further testified she previously hoped the children’s long-time care providers would be interested in guardianship. Although the couple seemed to indicate an interest, they were not committed. They did not take the children in with the intent of providing such a permanent plan. Trevino did not think this was a result of the children’s behavior.
Court’s Ruling
Following closing arguments, the juvenile court denied mother’s section 388 petition and terminated parental rights. With regard to the section 388 petition, the court found there was no change in circumstances and no evidence that it would be in the children’s best interests to grant a change in orders. It then proceeded to find clear and convincing evidence that it was likely the children would be adopted. It further found that even though mother maintained regular visitation and contact with the children, there was no compelling reason to determine that termination would be detrimental to the children and no showing that the children would benefit from continuing the relationship.
DISCUSSION
I. Section 388 Petition
Mother contends the juvenile court abused its discretion by denying her section 388 petition for reunification services. A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d); Cal. Rules of Court, rule 5.570.) According to mother, she showed her circumstances had substantially changed since the court’s July 2009 order denying her services and that an order for reunification services would be in the children’s best interests.
Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) As discussed below, we conclude the juvenile court did not abuse its discretion by denying mother’s petition. There were neither changed circumstances nor any showing that reunification services for mother at that late juncture would promote the children’s best interests.
No Changed Circumstances
One of mother’s primary changed circumstance claims was that she had been sober for 17 months. However, mother offered no evidence to support her claim, other than her own testimony, which the court was not compelled to accept. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860 [issues of fact and credibility are matters for the trial court].) Mother previously had offered self-serving testimony, which the juvenile court rejected in originally denying mother services, a ruling that this court upheld.
In addition, the record disputed, not if contradicted, her claim of sobriety since February 14 or 15, 2009. She tested positive and at varying levels for methamphetamine on three dates in late February 2009, which was after the children were detained. She missed three drug tests as well in late June - early July 2009, which resulted in three presumptively positive results. She also delayed entering aftercare for more than a month once she completed inpatient drug treatment. Given her previous history of immediate relapse following similar drug treatment, the juvenile court could reasonably infer mother had relapsed again. The fact that she did not petition for services for more than a year also raises questions about her sobriety in the interim that mother did not address.
Mother also relied on her completion of the aftercare component of drug treatment and the parenting course to support her changed circumstances claim. However, there was no objective evidence from either program regarding any progress she made or her prognosis. Indeed, there was no evidence even as to when she completed the aftercare or the parenting course. The timing would have been a legitimate concern for the court’s consideration. Did mother finish on schedule or was her completion delayed and if so, why?
In addition, the evidence of mother attending school and AA/NA meetings did not compel the court to find her circumstances had so changed that reunification services were warranted. While mother may be commended for seeking to improve herself, her attendance was a very recent phenomenon. She only started attending a general education class two weeks before the permanency planning hearing. In August 2010, she attended 11 AA/NA sessions. Also, mother failed to offer any evidence regarding how long she had been attending AA/NA meetings, what step of the program she was working on, and whether she had a sponsor.
Mother further overlooks the court’s August 2010 finding in her daughter’s case that mother made no progress toward alleviating or mitigating the causes necessitating placement. Despite the fact mother did not contest this finding, she argues that one month later the juvenile court should have found otherwise, i.e., that her circumstances had changed. We fail to see the logic in her approach.
Despite the fact that mother had eventually completed most of the services to which she had been referred in 2009, there was no evidence, except for her own testimony, of any progress mother had made since July 2009 when the court denied her formal reunification services. Consequently, mother did not satisfy her burden under section 388 of establishing changed circumstances.
No Best Interests Showing
Because the juvenile court properly found no change in circumstance on the evidence before it, we need not address section 388’s second element, that is, whether a different order, in this case one for reunification services, would promote the children’s best interests. Nevertheless, we take this opportunity to briefly address what we consider to be a misguided two-part argument by mother, both in the juvenile court and on appeal, regarding the children’s best interests.
First, she claims the children had a warm and loving bond with her. However, there was conflicting evidence regarding the nature and extent of mother’s relationship with the children such that the court was not compelled to find such a bond as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.)
Second, she contends the children’s adoption prospects were tentative at best, such that reunification services for her were in their best interests. In the process, she loses sight of her evidentiary burden to show modification of the court’s order was in the children’s best interests. (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.)
Mother also obscures the children’s needs at the permanency planning stage. By the time a child’s dependency has reached the permanency planning stage, a parent’s interest in the care, custody, and companionship of the child is no longer paramount. Rather, the focus shifts to the child’s needs for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) In fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. A court hearing a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) In this case, mother made no showing that reunification services for her would promote the children’s needs for permanency and stability.
II Likelihood of Adoption
Mother also contends there was insufficient evidence to support the court’s finding that it was likely the children would be adopted. According to her, the evidence of the children’s adoptability was not clear and convincing, but rather slim at best. She speculates there may never be an adoptive home for them.
Although the juvenile court must make its adoptability finding by clear and convincing evidence (§ 366.26, subd. (c)(1)), the “clear and convincing” standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine. If there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.)
The adoptability question focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The department’s assessment of each child, coupled with the case manager’s testimony, provided substantial evidence to support the juvenile court’s finding.
Arturo
The eldest of the children, 10-year-old Arturo, was in good physical health. He also appeared to meet his physical developmental milestones.
There were concerns about his academic abilities and whether he might suffer from a learning disorder. He qualified for special education services. With the benefit of a special day class starting in December 2009, his overall work habits and social skills had been “overall satisfactory, improving and excellent.” He also liked going to school.
In 2009, Arturo received psychological therapy to address symptoms of sadness, low self-esteem, difficulty concentrating, worry, and anxiety. He responded positively to the therapeutic interventions and met his treatment goals, according to his therapist’s September 2009 discharge summary. There was, however, conflicting evidence on this point. According to the final permanency planning report, the therapist decided to discharge Arturo “due to not benefiting from therapy based on his cognitive delays.” However, there was also evidence the child did well behaviorally and got along well with everyone. He was an easy going child who always had a smile on his face.
Isaiah
The middle child, eight-year-old Isaiah, had no medical problems and appeared to meet his physical developmental milestones, as well. He struggled academically and was not working at grade level. He had difficulty with understanding the subjects and that in turn frustrated him. His school arranged for him to work in small groups and out of class on a one-on-one basis with an instructor. Although he received unsatisfactory grades during the first, second, and third quarters of his last school year, he was making progress since the school made its arrangements.
Isaiah also participated in psychological therapy between March and October 2009. His symptoms had been inattention, distractibility, fidgety, defiance, lying, and blaming others. He too had a positive response to therapeutic interventions and met his treatment goals. He stabilized in the foster home and most other settings. At times, he could easily become aggressive towards his siblings. He was also short-tempered when he was upset and did not get his way on something. In addition, he could be aggressive with his peers and struggled to maintain appropriate relationships with peers at school. Sometimes he did not listen to his care providers and was disrespectful.
Isaiah’s behavior issues, however, were characterized as minor. His behavior was also improving. For the most part, he got along well with others and was an articulate, energetic, and affectionate child.
Noah
The youngest child, four-year-old Noah, was a healthy child who appeared to be meeting his developmental milestones. He was a curious and busy child. He was also affectionate. He imitated his siblings and had to be instructed on appropriate versus inappropriate behavior.
Noah was on a waiting list for a head start program. In the meantime, he communicated well and easily verbalized his wants and needs. The care providers previously noted some possible problems with his speech development and the department thought he might have some developmental delay. However, the care providers had worked with him in terms of language development by expanding his vocabulary and having him use verbal expressions to communicate his needs and feelings.
Unlike his older brothers, Noah had not been in need of any therapeutic intervention. He demonstrated overall good behaviors. Occasionally, he struggled with appropriate boundaries and was unresponsive to or would not follow instructions. He sometimes pouted and threw himself to the ground. When his tantrums were ignored, he would stop and resume his previous activity. His behavioral problems were also characterized as minor and showing signs of improvement.
Trevino believed the children were generally adoptable in that they were developmentally on target and had no major behavioral issues. Also, all of them appeared happy and healthy. There were also prospective adoptive families who were interested in being matched to adopt the children.
Matching the children with an adoptive family might prove challenging as they were a sibling group and spread out in age. The case manager also acknowledged the older boys’ difficulty in school and the possibility of developmental delay in the youngest child. At trial, she added she had seen children as old as Arturo and Isaiah successfully adopted. It was also her opinion that while it was difficult to find the right match for the children as a group and given their needs, the department would find the right home for the children within the next month or two.
Against all of this evidence, mother argues in large part that after 15 months of searching for an adoptive home, the department had not found one for the children. She surmises it is unlikely the department ever would. There are two problems with her argument. First, it is not necessary that a child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings” for a court to find a child adoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) Second, although 15 months had elapsed since the juvenile court set the section 366.26 hearing, mother’s claim the department had searched for 15 months is inaccurate.
An unfortunate aspect of these proceedings is how little, apparent effort the department made in those 15 months. Early on, it claimed it investigated a relative placement for the children and tried to persuade the children’s foster parents to accept a permanent plan, both without success. Then, in December 2009, the department asked for a six-month extension to find an adoptive family for the children. However, the hearing on the request was postponed a month and there was also a change in social workers.
In addition, once the court granted the continuance, the department made no showing of any effort during the six-month period. It did not even pursue the authorization it wanted to list the children in an approved adoption exchange.
The department’s efforts to locate an adoptive family for the children did not apparently resume until July 2010, approximately one year after the court ordered permanency planning. At that point, the department admittedly had begun to receive and review adoptive home studies of people interested in adoption. The record documents later efforts, namely, the August 2010 adoption picnic and, in August and September, the department’s identification of several families interested in adopting the children followed by its matching the children with two different families. Thus, rather than 15 months of effort to locate an adoptive family, as mother argues, the time involved was far less and much closer to 3 months.
Otherwise, in challenging the adoptability finding, mother relies on a selective reading of the record, draws negative inferences from the evidence, speculates about what might happen, and asks this court to essentially reweigh the evidence. She ignores the scope of this court’s review in the process and to her detriment.
For instance, mother argues as though there was only evidence of two families interested in adoption. In fact, Trevino testified the department had recently identified several families, apparently with adoption homes studies, interested in adopting the children. The department also matched the children with two different families.
Mother goes on to speculate the two families would likely decide against adoption, once they met the children or learned more about them. She points to the evidence that the two older boys, Arturo and Isaiah, had learning difficulties while Isaiah and Noah had behavioral issues.
In the process, mother disregards the evidence that the older boys benefitted from special education, in Arturo’s case, and small group and individualized instruction, in Isaiah’s case. She also ignores the evidence that Isaiah and Noah’s behavioral issues were minor. While she admits they made progress behaviorally speaking, she speculates they would misbehave once they changed placements.
She also overlooks the evidence that the children had been in the same placement for approximately 18 months, suggesting the children were not as problematic as mother would make them out to be. She minimizes as well the case manager’s understanding that the care providers’ lack of interest in providing a permanent plan for the children was not a result of the children’s behavior.
Mother claims instead there was no evidence Trevino directly asked the care providers why they changed their minds. Mother’s claim is disingenuous in that there was no evidence the care providers had changed their minds. At most, Trevino thought they seemed to indicate an interest. However, throughout these proceedings, social workers observed that the care providers saw themselves as foster parents and did not take the children with the intent to provide a permanent home for them.
Mother also discredits Trevino’s opinion testimony on the likelihood of the children’s adoption. In mother’s view, Trevino was inexperienced in adoptions because she testified she had worked in the assessment unit that she was currently in for about nine months. However, Trevino was asked her opinion based on her experience working with the department as a social worker, which according to her testimony, was approximately 13 years.
Mother further emphasizes Trevino’s use of the word “difficult” in her testimony. According to mother, Trevino repeatedly stated on three pages of the reporter’s transcript that it would be difficult to find a match for this group of children, as though it were proof it was unlikely the children would be adopted. In fact, that was not Trevino’s testimony. Also, mother ignores the balance of what Trevino had to say in this regard.
Trevino testified the eldest child did not have behavioral problems, but did have some learning challenges, while the middle child had some learning difficulties and some behavioral issues that, as of trial, were on more of an infrequent basis and were improving. She was then asked if she felt those issues might prevent the department from finding a family to adopt them. She replied as follows:
“No, I don’t. I have a family that’s interested in adoption of the children, and we’re still -- we’ve done a presentation with them by teleconference, and we’re going to be doing another presentation in person with them, and I have another family that we’ve also matched the children with. So, while it is difficult to find the right match for this sibling group of three, because they do have a lot of needs, and they do need an experienced family that can provide a secure and stable home … for them, while it is difficult, I believe that we will find that home within the next month or two.”
When asked to assess the sufficiency of the evidence, our authority begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) Applying these standards to the record before us, we reiterate there was substantial evidence to support the juvenile court’s finding.
III. No Beneficial Parent/Child Relationship
Finally, mother claims there was a beneficial relationship between her and the children that coupled with her regular visitation entitled her to a finding that termination would be detrimental to the children. (§ 366.26, subd. (c)(1)(B)(i).) We disagree once again with mother. The juvenile court did not abuse its discretion by rejecting mother’s claim.
Section 366.26, subdivision (c)(1)(B), acknowledges parental rights termination may be detrimental to a dependent child under specifically designated circumstances. In particular, section 366.26, subdivision (c)(1)(B)(i), permits a finding of a detriment in situations where a parent has maintained regular visitation and contact with his or her child and the child would benefit from a continued relationship with the parent. For the beneficial relationship exception to apply,
“the parent-child relationship [must] 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.)
This statutory exception merely permits a court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The statutory presumption is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1343-1344.) Furthermore, it is an opposing party’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.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For this to occur, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota, supra, 24 Cal.2d at pp. 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Mother relies in large part on her testimony of a warm and close relationship. She adds the department acknowledged the children shared with her a parent/child relationship. In the process, mother ignores the conflicting evidence regarding the nature and extent of their relationship.
The children did recognize her as their parent and they seemed to enjoy their visits with her. However, theirs was more of a friendship relationship with mother than a parent/child relationship, as the juvenile court first found at disposition in July 2009 and as continued to be the case in 2010. Their relationship also appeared to be based, in part, on mother’s gift-giving. She meanwhile did not provide much structure for the children or meet their emotional needs. The children were often distracted during visits. Mother also did not inquire about their schooling or offer them guidance with school or their interests. When their visits ended, the children did not have a difficult time separating from mother.
Under these circumstances, the juvenile court could determine that termination would not deprive any of these children of a substantial, positive emotional attachment such that they would be greatly harmed. The court did not abuse its discretion by rejecting mother’s detriment claim.
DISPOSITION
The order terminating parental rights is affirmed.