Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. CK59794, Emily A. Stevens, Judge.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
B.O. (mother) appeals an order terminating her parental rights to B.C. (minor) pursuant to Welfare and Institutions Code section 366.26. Mother contends that there was insufficient evidence to support the juvenile court’s decision not to apply the parental relationship exception.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find no error and affirm.
FACTS
The minor was detained by the Department of Children and Family Services (Department) and placed with her paternal grandmother when she was 10 months old because she was at risk of emotional harm due to domestic violence between mother and her boyfriend, M.S.
The minor was declared a dependent.
On January 30, 2008, a month after the detention, mother reported that she visited the minor almost every day. Paternal grandmother stated that the maternal grandmother or maternal grandfather picked the minor up three times a week and maternal grandmother monitored visits with mother. On February 5, 2008, the Department reported that mother was visiting regularly. But on March 4, 2008, maternal grandfather reported that mother had not visited in a month. After that, the minor was picked up on April 12, 2008, May 1, 2008, May 2, 2008, May 9, 2008, May 16, 2008, June 20, 2008, and June 23, 2008.
The record does not indicate who picked the minor up and whether mother visited with the minor. Presumably it was the maternal grandparents. In her briefs, mother says she did visit. We accept her representation.
On June 2, 2008, mother went with paternal grandmother to obtain a copy of the minor’s birth certificate. According to paternal grandmother, the minor did not want to be held by mother. She preferred being held by paternal grandmother. On June 6, 2008, maternal grandmother watched the minor while paternal grandmother went to a dentist appointment. Mother was at maternal grandmother’s home at the time. On June 13, 2008, mother accompanied paternal grandmother to the minor’s doctor appointment. All during the visit, however, mother was on her cell phone and did not focus on the minor. The minor was baptized on June 28, 2008, and mother was present.
Mother did not appear for the six-month review hearing. The juvenile court terminated reunification services because mother had not made any progress in the case plan and her whereabouts were unknown.
Subsequently, paternal grandmother reported that maternal grandmother picked up the minor on August 9, 2008, August 22, 2008, August 29, 2008, September 3, 2008, October 12, 2008, October 23, 2008, November 12, 2008, November 19, 2008, December 1, 2008, December 13, 2008, and December 30, 2008. Maternal grandfather reported that mother visited the minor on an inconsistent basis but on average once a week when the minor was in the maternal grandparents’ care. Though the Department filed a report for the April 1, 2009 section 366.26 hearing, there was no indication that the maternal grandparents picked up the minor during 2009 or that mother visited minor during that time. The Department recommended that mother’s parental rights be terminated.
Once again, we cannot verify if mother visited on these dates. We presume so. In any event, the exact number of mother’s visits is unclear. In one of its reports, the Department wrote: “Paternal grandmother... reports that [mother] came more days [than were reported] but those were in and out of the home and [paternal grandmother] does not count those days as visits.” In September 2008, maternal grandmother stated “that she does not know of mother’s whereabouts but that [mother] calls and comes often to the visits at least once a week.”
This statement by maternal grandfather was vague. He did not provide the dates the minor was in the maternal grandparents’ care.
Paternal grandmother was vetted as the prospective adoptive parent.
The parties convened on April 1, 2009. Mother’s counsel asked the juvenile court to consider guardianship as the permanent plan instead of adoption. She represented that mother was visiting the minor at least two times a week. In addition, counsel stated: “The [minor] is bonded to [mother], does know that’s her mother, refers to her mother as mother. Apparently also has a relationship with an older sibling that’s five.”
The juvenile court noted that mother “visits periodically. There is nothing in the visitation pattern... that demonstrates a parental relationship with the [minor]. [Mother] visit[s] but [doesn’t] call or inquire about the [minor].” In the juvenile court’s view, there was no exception to the termination of parental rights. Mother’s parental rights were terminated.
This timely appeal followed.
DISCUSSION
The parties urge us to review the juvenile court’s ruling under the substantial evidence test. Indeed, certain courts have applied that test when evaluating whether a parent established an exception to the termination of parental rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) But there is a split of authority. Other courts have concluded that the abuse of discretion test is appropriate. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [noting that the difference between the two tests is insignificant].) Under either standard of review, the juvenile court’s order terminating mother’s parental rights must be affirmed. Though mother bore the burden of establishing that she “maintained regular visitation and contact with the [minor] and the [minor] would benefit from continuing the relationship” (366.26, subd. (c)(1)(B)(i)), she failed to adduce sufficient evidence to invoke the exception (In re T.S. (2009) 175 Cal.App.4th 1031, 1039).
When applying the substantial evidence test, we do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable interferences in support of the juvenile court’s findings, consider the record most favorably to the challenged order, and affirm the order if it is supported by substantial evidence even if other evidence supports a contrary conclusion. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
When applying the abuse of discretion test, we will interfere only if we conclude that no judge could reasonably have made the challenged order. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
It is unclear to what degree mother maintained visitation and contact with the minor in 2008. Based on evidence supplied to the Department by paternal grandmother, it appears that mother visited with or saw the minor 23 times in 2008 and possibly more, and that her visits were sporadic. However, in her appellate briefs, mother suggests that she visited the minor three times a week. Her record citations support her contention only as to January and part of February 2008. Otherwise, her record citations contain vague statements by the maternal grandparents in 2008 about mother visiting the minor once a week. The only thing that is clear is that there is no evidence that mother visited the minor in 2009. Due to the minor’s age, this gap in visitation is enough for us to conclude that the exception did not apply.
The statement by mother’s counsel at the section 366.26 hearing regarding mother’s visitation was not evidence.
But even if mother had proved regular visitation and contact, we conclude that she did not establish benefit to the minor.
A child benefits under the exception when “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.) “The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) The bottom line is that the parent must prove that she occupies a parental role in the child’s life. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
The minor was only two years old at the time of the section 366.26 hearing. Though she spent the first 10 months of her life in mother’s care, it is doubtful the minor has any memory of being in mother’s custody. After she was detained, the minor’s interaction with mother was limited. By June 2008, the minor preferred being held by paternal grandmother rather than mother. Moreover, the evidence before the juvenile court indicated that the minor is bonded to paternal grandmother and she is the minor’s parent figure. The Department’s reports stated: Paternal grandmother does not work and is available to provide care. She “is a very good and respectful mother who is very committed to [the minor] and has the experience of having raised four of her biological children, who are now adults. [Paternal grandmother] reported that it is a joy to be adopting [the minor] and [the minor] appears to have a close bond to her [paternal grandmother].” The minor has known paternal grandmother since birth, appears to be comfortable in the presence of paternal grandmother, and “shows her much affection.” Paternal grandmother “is a caring and loving person” who is very involved in the minor’s life.
The evidence and inferences supported the juvenile court’s implied finding that the minor was emotionally attached and bonded to paternal grandmother. In contrast, there was no evidence that the minor had such a substantial, positive emotional attachment to mother that she would be greatly harmed if mother’s parental rights were terminated. The juvenile court’s order was supported by substantial evidence, and its ruling fell within the bounds of reason.
DISPOSITION
The order is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.