Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J07-01406, J07-01407.
Bruiniers, J.
The two dependent children whose cases we review in this appeal were removed from their parents’ custody following reports of physical and verbal abuse. Appellant parents did not contest the jurisdictional allegations of the dependency petitions. Efforts to provide reunification services proved unsuccessful, and the court found that return of the children to the parents would create a substantial risk of detriment to the children’s safety, protection, and physical and emotional well-being. Reunification services were terminated and a hearing set to consider termination of parental rights and permanency placement for the children (Welf. & Inst. Code, § 366.26). Having failed to seek writ review, the parents do not (and cannot) contest that order here. At the permanency hearing, the juvenile court found the children adoptable and determined that the benefits of maintaining the children’s relationship with the parents did not outweigh the benefits they would experience from a permanent adoption. Therefore, the court terminated the parents’ parental rights. Parents contend that there was not clear and convincing evidence that it was likely the children would be adopted, and that they satisfied their burden of establishing a compelling reason not to place the children for adoption. The trial court disagreed. So do we.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. Background
On July 23, 2007, juvenile dependency petitions were filed by Children and Family Services for Contra Costa County (Agency) alleging that Delilah B. (born October 1999; case number J07-01406) and Paul B., Jr. (born February 2002; case number J07-01407) were dependent children under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petitions alleged the parents, Michelle B. (Mother) and Paul B. (Father) had a history of engaging in domestic violence in the children’s presence, that Father physically and verbally abused the children, that Mother failed to protect the children, and that Father had a history of alcohol abuse.
Jurisdiction
The jurisdictional report stated that the parents had a history of domestic violence. As early as 2001, Mother reported verbal abuse by Father that made her afraid. In 2002, she told her therapist Father was threatening to kill her and an investigation ensued. M. (Mother’s older daughter by a different father) confirmed the report, but she and Mother later retracted their statements and the case was closed. In February 2004, Mother and Father appeared to have a physical altercation at a pediatrician’s office. During a February 2005 custody evaluation regarding M., Mother acknowledged that Father was “crazy, constantly paranoid that she was having an affair, ” that he continually threatened to kill her, that he had “kicked in every door in the house because he can’t stand it when [Mother] is behind a closed door, ” and that he owned guns and ammunition. During the remainder of 2005, the family had multiple law enforcement contacts related to domestic violence. During a 2006 child protective services investigation, the children said Father sometimes locked Mother and the children out of the house and that the parents hit each other with their hands when they got mad. During the July 2007 child protective services investigation that led to the dependency petitions, Mother said Father stalked her, acted paranoid, frequently threatened to rape her, and was emotionally and psychologically abusive.
M. was born in September 1990.
In January 2005, Mother told police Father was threatening her via cellphone while following her in his truck. She said she was on her way to get a restraining order because he had verbally assaulted and threatened to kill her as he had done for years. In February 2005, Mother called 911 and said she had locked herself in the bathroom because Father had called her bitch and whore, kicked a door in, and told her she could not leave because she was blocked in by his car. Mother had let Father back in the house despite the restraining order. The investigating officer said both parents appeared to have been drinking and that Father seemed intoxicated. In May 2005, Father locked Mother out of the house after a fight and she tried to break the door down with a weed eater. The children were present during the incident. In November 2005, Mother told police Father had threatened to “smash [her] face in” and kill her.
Both parents had a history of substance abuse. Father had been drinking before the February 2005 incident (see fn. 3) and in July 2005 he was arrested for driving under the influence of alcohol. In 2006, the parents admitted to a therapist they used methamphetamine about once every two weeks, but then denied the use. The therapist, however, believed they were still using. During the 2006 child protective services investigation, Paul said Father drank alcohol all day and M. said the parents got drunk about once a month. In July 2007, M. said Father also would lock himself in the bedroom for hours and come out “wired.”
During this investigation, Mother denied that Father had a drinking problem, but said he might need medication for his paranoia and mood swings. Father said he had been in a head-on collision about eight years previously and he forgot things and then got upset about not being able to remember.
The parents, especially Father, verbally and physically abused the children. During the February 2005 custody evaluation, Mother said Father would get “in Delilah’s face and started yelling his paranoid thoughts at her[] while she was just quietly playing with her toys.” During the 2006 child abuse investigation, Delilah said Mother spanked Paul with a stick and Father spanked him with a hand, causing him to cry and leaving marks. She said Father had twice locked the children out of the house when he was drunk or mad. Paul said Father spanked him with a stick. M. said the children were also spanked with something like a ping-pong paddle Father called the “board of education, ” which he admitted. In July 2007, Paul reported and Mother confirmed that in April 2007, Father had hit Paul several times with a rope. Mother showed the social worker pictures she had on her cellphone of welts on Paul’s shoulder, neck and back. Father admitted the incident, but said he hit Paul with a rope on the buttocks because Paul was swinging around a belt that hit Delilah in the face and he needed to teach Paul a lesson. Delilah and Paul said Father in play would roll them in a rug or towel and tie them with a rope, which they did not like. M. confirmed this and said Father would not let them out when they started screaming. Delilah said Father called her “whore, cunt, little motherfucker” and similar names on a regular basis. Paul was very aggressive toward her and constantly said he hoped she died of cancer, repeating things Father had said. M. said she had heard Father call Delilah and Paul names like whore and cunt. Delilah called Father “creepy” and said she did not want to see him.
Father was also sexually inappropriate with the children. In July 2007, M. reported that Delilah and Paul had access to pornographic movies, and that Father had tried to French kiss her (M.) in about April 2007, when he was very drunk.
Mother tended to minimize Father’s dangerous behavior after crises passed. During the February 2005 child custody evaluation, Mother initially said she planned to leave Father, but later dismissed his behavior as “all talk” and seemed unconcerned about protecting herself or her children. Although she got a restraining order against Father in early 2005, she later said she had been pressured to do so by a custody evaluator for the court and did not really want one. She let Father back into the home. Father told the social worker he always lived in the family home even when a restraining order was in effect. In July 2007, Mother again said she planned to divorce Father. When the social worker told Mother the children would likely be removed, however, Mother said it was probably a good thing because then she and Father could fight it out. She said they had made a pact that if they could not be together they would have to kill one another.
The children were removed from the home July 19, 2007, and ordered detained on July 24, 2007. At an August jurisdiction hearing, the parents “pled no contest” to an amended petition. The amended petition alleged that Father had a history of engaging in domestic arguments that included name calling, had been arrested on or about July 21, 2005, for driving under the influence, and had used inappropriate discipline on Paul. It was further alleged that Mother had placed the children at risk by being a victim of domestic violence in front of the children, allowing Father back in the home despite having a restraining order against him, and allowing Father to use inappropriate physical discipline on the children.
Disposition
In a September 2007 disposition report, the Agency wrote that Mother said Father was a methamphetamine addict, and Father said Mother had a drinking and methamphetamine problem. In an October update, the Agency also reported that Mother stopped drug testing August 3 and her breath smelled of alcohol on October 16. Mother said she planned to divorce Father and have nothing more to do with him. However, Father played the social worker a voice mail message dated August 4 in which the mother screamed, “Call me, why won’t you call me.” Father said he wanted to divorce Mother but was afraid of what she would do in response. They both claimed the other would kill him or her if they divorced.
The children had a difficult relationship with each other. Delilah deliberately antagonized Paul and Paul hit Delilah, calling her evil and a “cunt” and saying he hoped she would die of cancer. He also exhibited sexualized behavior, saying “Come and get some skin” while motioning toward his genitals and telling Delilah, “I’m going to crawl into your crotch and get warm.” Delilah and Mother confirmed that the children had watched pornographic movies with Father. By October, the children were defecating and urinating on themselves. The children initially said they did not want to see Father because he was mean. They later said that they enjoyed visits with him, but one hour was enough because he got mean after that.
At the October 23, 2007 disposition hearing, the court adopted the Agency’s recommendations and found by clear and convincing evidence that the children would face a substantial risk of harm if returned to the home, and ordered reunification services for both parents.
Six-Month Status Review
In an April 2008 status review report, the Agency wrote that Mother had been participating in individual therapy and taking parenting classes, but had not submitted to drug testing and at times smelled strongly of alcohol. Although she had reported for an initial mental health assessment, she was not taking the medications prescribed for her and she was not attending a domestic violence program. Father had started a domestic violence program and was submitting to drug tests, all of which were negative. He had completed a parenting course, but was having difficulty focusing on himself and his role in family relationships. The instructor recommended individual therapy for Father, but Father had not followed through on numerous referrals. Father had not undergone a required mental health assessment. Father told the social worker that Mother was to blame for the dependency cases and that he was an innocent victim.
The parents’ phone calls to the foster home had been limited because they were disruptive or accusatory. Mother had visited Delilah’s school without permission, asked Delilah not to tell anyone, denied the visit when confronted by the social worker, and later told Delilah to say she had lied about the visit. During a supervised visit, Father gave Delilah a picture of a horse with detailed private parts, and he became defensive when asked about the incident. He gave Delilah a Halloween costume with fishnet stockings and high heel boots, a decision he defended. He denied exposing his children to pornography.
The children were still displaying inappropriate behavior. Delilah continually lied, fought, and compulsively stole. She wet herself and hid her soiled underwear, and her underwear and pajamas had holes in the vaginal area. She slid CDs under the bathroom door to see others naked. Paul was hitting, pinching, name calling, lying, and destroying property. He defecated on himself. He used inappropriate sexual language, often patted or pinched Delilah on her buttocks, and told Delilah she should “lick dad’s privates and lick the dog’s privates.” Both children said they wanted to return to their parents.
At a May 2008 contested status review hearing, Mother acknowledged that she had not taken 52-week domestic violence class recommended by the Agency and explained, “52 weeks is a long time” and she did not want to be in a class “where people are continuously battered, really battered. I was verbally abused.” She had not even begun a codependency program or anger management class. She said the reason she stopped drug testing was because one test result had been misconstrued (she claimed it was positive for prescription drugs but not for illegal drugs) and for a while she had had no phone or transportation money to contact the testing center. She admitted drinking occasionally, but denied getting drunk.
The court found it would not be safe to return the children to the parents’ care but continued services for both parents.
12-Month Status Review
In an August 2008 status review report, the Agency wrote that Mother was participating in individual therapy, complying with her medication regimen, and attending parenting classes. She was attending domestic violence support group in lieu of the recommended 52-week domestic violence program. She began submitting to random drug testing in June, but failed to test on 10 occasions and tested positive four times for amphetamine and methamphetamine and once for those drugs and cocaine. When asked about the results, she denied using drugs. The testing laboratory acknowledged that one of her prescription drugs (Adderol) could produce a positive test for amphetamine, but not for methamphetamine. She agreed to enroll in a residential drug treatment program. Father’s parenting instructor said he still had difficult focusing on himself and his role in relationships. In his domestic violence program as well, he had trouble taking responsibility without blaming Mother. He continued to deny that he ever physically or emotionally abused his children except for the one occasion he hit Paul with a rope.
Delilah told the social worker that her maternal cousin made her have sex with him several times while she visited the maternal grandfather’s home, apparently in 2006. Paul watched one of the incidents. The cousin taught Delilah to touch herself, which she still did. Paul said he had seen the cousin on top of Delilah “humping” a lot. Delilah tried to get the cousin to leave her alone, but he would not stop. Paul also said he had seen Father touch Delilah’s vagina. Delilah denied this, and when confronted with Paul’s statement she hung her head, became teary eyed, and said Paul sometimes lied. In a later interview, she said she would not tell if it happened only once and it might have happened on her parents’ bed at night while she was asleep. The incident was investigated, but no charges were brought. The children said Father watched a lot of pornography and they sometimes watched it too. They said Father would dress in women’s clothes and underwear and Mother would get mad and call him a faggot.
Delilah said Father would often hit her very hard with his hand or belts and would call her bad names. He was very mean, but could also be gentle as he was now during supervised visits. She did not want unsupervised visits because she would not feel safe, and she did not want to return to Father’s care because he might hurt her again. Paul said he was afraid of Father and did not want to return to his care. He said Father used to beat him with a rope that had metal on it, with belts that had buckles, and with sticks.
The children continued to display inappropriate aggressive, antagonistic and sexualized behavior. Delilah had been diagnosed with conduct disorder, childhood-onset type, and post traumatic stress disorder. Paul had been diagnosed with reactive attachment disorder, and he was at risk for developing full symptomatic oppositional defiant disorder. Paul’s therapist opined that his “behavior has been influenced by past environmental stimulus and is at risk [of] increased deterioration if past familial relationships continue....” The children’s therapist recommended joint therapy to address their abusive treatment of each other, but said they were not ready for family therapy with the parents.
In a November 2008 update, the Agency reported that the parents continued to participate in services, but Father needed improvement in his empathy skills and Mother had twice tested positive for methamphetamine and had missed two tests. The children were doing very well in the foster home. Their visits with the parents went well overall, except that Father acted negatively toward the parent aide.
At the November 2008 status review hearing, the social worker testified that she frequently had to chastise Father for his behavior with the parent aide and with the foster parent. Mother attributed her dirty drug tests to secondhand smoke from people she should not have been associating with, but not direct use of methamphetamine. She acknowledged that at one time she used methamphetamine three or four times a month, and that Father also used methamphetamine while they were married. She had not enrolled in a drug treatment program despite receiving referrals in August. She acknowledged spending time with Father and, when asked if she was planning to reconcile with Father, she said, “We’re taking it one step at a time.” She did not believe the children were afraid of Father nor had any reason to be.
The court found that returning the children to their parents’ care would still put them at substantial risk of harm. It ordered continuance of reunification services for an additional three months, but warned both parents that “if the situation is the same today as... if it is the same in three months, then I will be forced to make a decision to basically put these kids in the system.”
18-Month Status Review
In a January 2009 status review report, the Agency reported that Mother had not submitted to drug testing after October 14, 2008. She had entered a residential treatment program on January 5, 2009, but tested positive for amphetamine and methamphetamine on January 7. The social worker acknowledged that Father had completed much of his case plan, but was concerned that he might be reuniting with Mother despite her substance abuse. Delilah said her parents were living together but it was a secret. The social worker did not believe Father would be able to cope with the children’s behavioral and mental health issues if they were returned to his care.
The children’s aggressive and sexualized behavior continued, and Paul had been diagnosed with oppositional defiant disorder. His behavior worsened after contacts with Father. The children said they wanted to live with Mother, but if they could not they wanted to live with Father, who had been nice to them in visits. Their therapist said their comments sounded coached. The therapist recommended joint therapy for the children; therapy with Father once their own relationship had improved; and therapy with Mother once their own relationship had improved and after she had been clean and sober for 90 days and had completed her case plan.
In a May 2009 update, the Agency reported that Mother had been dismissed from her residential treatment program in March after she returned from a visit with her children smelling of alcohol and she refused to cooperate in taking a drug test. She did not submit to random drug testing after the dismissal. When the social worker asked about her noncompliance, she said she had given up. Mother admitted she and Father had planned to live together if the children were returned to Father’s care, but she later became angry with him when he removed property from their home and told the social worker he was insane. Still later, she said things were okay again between them. She had told the children to ask to be returned to Father because then the whole family would be together. The children’s evaluators said that both Mother and Father had told them in a frightening and threatening tone that they (the parents) would continue to see their children even if the court terminated their parental rights. The evaluators urged that safeguards be implemented to protect the children and any adoptive parent if the children were not returned to the parents.
At the May 2009 status review hearing, the court commented that the children were “very troubled, disturbed, ” which “speaks to... cruel treatment.” Even 22 months into their dependency cases, they were struggling with post traumatic stress syndrome and fear and distrust of their parents, and their behavior deteriorated after every contact with their parents. The court anticipated that if the children were returned to Father’s care they would be in Mother’s care as well. “I am required, under the law, to return the children to you... unless... I find by a preponderance of the evidence that return would create a substantial risk of detriment.... [¶] Folks, we blow right by preponderance. We are in the clear and convincing. It isn’t about classes completed. It’s about fundamental change that has not been evidenced here.” The court terminated reunification services and set a section 366.26 hearing to consider termination of parental rights and permanent placement for both children. Both parents were advised of their right to challenge the court’s order by writ petition. Father filed a notice of intent to file a writ petition, but his appointed counsel informed the court that he found no issues to raise in a writ and the writ proceeding was dismissed. (P.B. v. Superior Court (June 26, 2009, A125114) [nonpub. order].)
Section 366.26 Hearing
In a September 2009 report for the section 366.36 hearing, the Agency wrote that Delilah had made great strides in decreasing her negative “acting out” behaviors at school and at home. She no longer acted out sexually and her lying and stealing had decreased. Her fights with Paul were less physical and less frequent, and they were not saying the hurtful things to each other that they used to say. Paul had also made great strides in decreasing his negative behaviors of lying, stealing and destroying property. He was better able to verbalize his feelings with words and had fewer physical fights with Delilah. His sexualized behavior had almost ceased. Both children had stopped attending therapy, but arrangements were being made for them to start up with a new therapist after a planned relocation by the foster family. The foster parent attributed the dramatic improvement in the children’s behavior to progress in therapy, stability in the home, a switch from unsupervised to supervised phone conversations with the parents, and an end to the practice of telling the children when visits with the parents were approaching.
Both children said they wanted to be adopted by the foster mother, and the foster mother wanted to adopt them both. They had all lived together for two years and the children had had a good relationship with the foster mother’s 12 year-old daughter. The caregiver had a close and supportive family, a good job, and a home big enough for her and the three children. She had no known criminal or child abuse history and her home study was expected to be approved.
Mother followed the children home from a visit and learned the location of the foster home. Father had been inappropriate during visits, discussing the dependency cases even though he was told not to do so. He called the social worker or assistant three to four times a day, contrary to the prearranged system for arranging visits and phone calls. The children did not ask to talk to the parents on the phone and they often did not want to talk to the parents when they called. They did not ask to spend more time with their parents and they did not show distress when visits ended. When the social worker said the children would not visit their parents after adoption, the children said, “Okay.”
At the September 2009 section 366.26 hearing, the social worker testified that Delilah had spontaneously asked if she could stay with the foster mother forever, even before the social worker had broached the subject. Delilah said her parents could not keep Paul and her safe. When the social worker told Paul he was likely to be adopted rather than returned to his parents, Paul became “very excited. He exclaimed with a smile that, yeah, we get to stay here; we don’t have to go back to either one of them.” Paul also said he wanted to stay in the foster home. The social worker said the children were very bonded to each other and should stay together, and that the foster parent had never wavered in her commitment to adopting both children. The children’s psychological evaluators stressed the children’s need for permanence, safety and stability in a structured home environment.
Mother testified that during visits the children said they wanted to spend more time with her and live with her. They clinged to her and had difficulty leaving her when the visits ended. She denied that she ever followed the children, visited Delilah’s school, or knew where the foster parent lived. Father said that during his visits with the children, which had been fantastic, the children asked about going home with him and Paul got upset when the visits ended. He presented the court with photographs taken during the visits and with drawings and cards made by the children as evidence of the bond between him and the children. He was frustrated because he never had the opportunity to engage in family therapy with the children.
The court found by clear and convincing evidence that the children were adoptable. The court also found that the benefit of maintaining the children’s relationship with the parents did not outweigh the benefit of permanence and stability through adoption. The court terminated the parental rights of both parents.
II. Discussion
We have reviewed the entire history of the dependency cases to put the parties’ arguments in context. The only issue before us, however, is whether the trial court erred at the September 2009 hearing by finding the children adoptable and terminating parental rights. The court’s May 2009 decision to terminate reunification services for the parents and set a section 366.26 hearing was not challenged by writ and thus is no longer subject to review. (§ 366.26, subd. (l); In re Charmice G. (1998) 66 Cal.App.4th 659, 666.)
“By the time of a section 366.26 hearing, the parent’s interest in reunification is no longer an issue and the child’s interest in a stable and permanent placement is paramount. ([In re] Marilyn H. [(1993)] 5 Cal.4th [295, ] 309; [citation].) ‘In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.’ (Cynthia D. [v. Superior Court (1993)] 5 Cal.4th [242, ] 256.) The child has a compelling right ‘to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ (Marilyn H., supra, 5 Cal.4th at p. 306.) Adoption is the Legislature’s first choice because it gives the child the best chance at such a commitment from a responsible caretaker. [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
At a section 366.26 hearing, the court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights and order the child placed for adoption unless, as applicable here, it finds a “compelling reason” that termination would be detrimental under one of the exceptions listed in section 366.26 subdivision (c)(1)(B). (§ 366.26, subds. (c)(1), (c)(1)(B).) Under the beneficial parental relationship exception, the court must find a “compelling reason” that termination would be detrimental because “[t]he 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 parents here challenge both the court’s finding that the children were adoptable and its determination that the beneficial parental relationship exception did not apply.
A. Adoptability
As noted, a “juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060; § 366.26, subd. (c)(1).) Clear and convincing evidence is evidence that establishes a high probability and leaves no substantial doubt. (In re Carl R., at pp. 1060–1061.) On the other hand, the required finding is a relatively low threshold: the court need only find the child is likely to be adopted within a reasonable time. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) On appeal, we review the finding for substantial evidence. (In re Carl R., at p. 1061.) We review the record in the light most favorable to the juvenile court’s findings and draw all inferences from the evidence that support the court’s determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
“The adoptability issue at a section 366.26 hearing 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. [Citation.]” (In re A.A. (2008) 167 Cal.App.4th 1292, 1311.) “The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family ‘ “ ‘waiting in the wings.’ ” ’ [Citation.] However, the case law also recognizes that the juvenile court may properly consider a prospective adoptive parent’s willingness to adopt as evidence that the child is likely to be adopted within a reasonable time. [Citation.]” (Id. at p. 1313.) When the likeliness of adoptability is based only on the commitment of a prospective adoptive parent, “the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.) The prospective adoptive parent need not already be approved as an adoptive parent. (In re K.B., supra, 173 Cal.App.4th at pp. 1292–1293.)
The parents argue the children were not generally adoptable because of their ages, their strong sibling bond which required a joint placement, and their serious emotional and behavioral problems. They also argue the court could not rely solely on the prospective adoptive parent’s willingness to adopt the children because it made no inquiry into whether there were legal impediments to her adopting the children and there was insufficient evidence to count on her to follow through on her commitment. We disagree on both counts.
Under closely parallel facts, the court in In re Helen W. upheld an adoptability finding with an analysis we find persuasive. In that case, the court observed “[b]oth children suffer from conditions that require time to determine the full severity of the issues they will face. But [the agency] methodically reported the children’s medical, developmental, emotional, and behavioral conditions throughout the two years of their dependency. The adoption assessment included a synopsis of the children’s conditions. And the foster mother-the prospective adoptive parent-accompanied the children to appointments, advocated for services, and was fully aware of their medical and psychological conditions.” (In re Helen W., supra, 150 Cal.App.4th at p. 79; see also In re K.B., supra, 173 Cal.App.4th at pp. 1292–1293 [prospective adoptive parents’ willingness to adopt despite awareness of children’s serious problems and experience caring for the children supported adoptability finding].) Here too, the emotional and behavioral problems of the children had been thoroughly documented in the Agency’s reports in and in comprehensive psychological evaluations, and were well known to the prospective adoptive parent who had already cared for them for two years. The prospective adoptive parent had been involved in assisting the children in accessing services and had played a central role in creating a stable, predictable and nonabusive home environment that brought about a marked improvement in their behavior.
In In re Helen W., the court noted several factors that made the children generally adoptable even if the prospective adoptive placement fell through. (In re Helen W., supra, 150 Cal.App.4th at pp. 79–80.) The agency’s “report included details of the children’s appealing characteristics, including their young ages [about two and five years old], affectionate personality traits, positive interactions with others, and attractive physical appearances, that made adoption likely.” (Ibid.; see also In re I.I. (2008) 168 Cal.App.4th 857, 864, 870–871 [describing positive qualities made siblings generally adoptable despite serious behavior problems].) Here, the Agency recommended the court find the children generally adoptable despite their older ages, sibling bond and behavioral problems because they were friendly and likeable. The Agency’s report further noted the children were physically healthy, developmentally on target, academically at or above grade level, and had made great strides in improving their behavior. As in In re Helen W. and In re I.I. we conclude the court did not err in finding the children adoptable in light of these factors.
In In re Helen W., the court held that even if the juvenile court had relied solely on the prospective adoptive parent’s willingness to adopt, its finding was supported by clear and convincing evidence. (In re Helen W., supra, 150 Cal.App.4th at p. 80.) “The adoption assessment report included ample evidence that the foster mother would face no legal impediment to adoption and would excel, as she had for over two years, at meeting the children’s needs throughout their lives. The report detailed the foster mother’s social history and commitment to the permanent plan of adoption. The report also explained she had no criminal record, was financially secure and emotionally mature, and fully understood the responsibilities of adoption.” (Ibid.) Similarly, the Agency here reported that the prospective adoptive mother was a 31-year-old woman with a 12-year-old daughter, a close and supportive extended family, a good job, and a safe and ample home. She had attended training on the adoption of abused children, she understood her legal and financial responsibilities if she adopted, and the social worker was convinced of her commitment to adopt the children. Her fingerprints had been checked and she had no known criminal or child abuse history. Neither parent introduced any evidence of a legal impediment to her adopting the children. Moreover, the prospective adoptive parent had amply demonstrated her ability to meet the children’s needs during the two years she had cared for them.
The trial court’s adoptability finding is supported by clear and convincing evidence.
B. Beneficial Parental Relationship Exception
If the court finds a likelihood of adoption at the section 366.26 hearing, it must terminate parental rights and order the child placed for adoption unless, as applicable here, it finds a “compelling reason” that termination would be detrimental under one of the exceptions listed in section 366.26 subdivision (c)(1)(B). (§ 366.26, subds. (c)(1), (c)(1)(B).) A party arguing that one of those exceptions applies has the burden of producing evidence that establishes the exception. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343 [discussing former § 366.26, subd. (c)(1), predecessor of § 366.26, subd. (c)(1)(B)].) Courts of appeal have split over whether the standard of review of a ruling on this issue is abuse of discretion or substantial evidence, but for all practical purposes these standards are equivalent in this context. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Under the beneficial parental relationship exception, the court must find a “compelling reason” that termination would be detrimental because “[t]he 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 existence of interaction between the natural parent and child will always confer some incidental benefit to the child.” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) The beneficial parental relationship exception requires more-“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.” (Ibid.) The beneficial parental relationship exception “must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
The parents argue the children have a parental relationship with them that outweighs the benefits of adoption because they spent many years under the parents’ care, they wanted to return to the parents’ care at earlier stages of the dependency case, and they enjoyed their visits with the parents. They contend that restrictions on the frequency and length of their visits with the children during the more than two years the dependency cases were pending must be taken into account when assessing the strength of the parent-child bond. They argue their relationship with the children does not have to resemble a daily caretaking relationship to qualify for the beneficial parental relationship exception, and the existence of a parent-child bond between the children and the foster parent does not preclude application of the exception.
We have no difficulty upholding the trial court’s decision that Mother and Father failed to meet their burden to show that the beneficial parental relationship exception would apply. Although the children spent several of their early years in the parents’ care, the parent-child relationship that emerged therefrom was fraught with fear and insecurity. The children said they did not want to return to Father’s unsupervised care and even with supervision Delilah did not want to spend more than one hour with him. Although Paul and Delilah later said they did want to return to his care, they appeared to have been coached. At the end of two years of dependency, Delilah said she did not believe Mother could keep Paul and her safe. The children enjoyed their supervised visits with the parents, but they did not show signs of distress when the visits ended, they did not seek additional contact with the parents, and they did not always want to talk to the parents when they called. When the social worker told the children the visits would not continue after adoption, they said, “Okay.” Although the parents testified to the contrary at the hearing, the court was free to discredit their conflicting testimony.
The cases cited by the parents are easily distinguishable. In In re Brandon C., twin boys had been removed from the mother’s care at about four months old and placed with a 69-year-old grandmother with significant health issues. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1532–1533.) Despite the termination of services for the mother, she continued to make progress toward reunification, she visited the boys weekly for three years, and they developed a close bond. (Ibid.) The boys looked forward to the visits and showed distress when they ended. (Id. at p. 1535.) The grandmother, who was the prospective adoptive mother, did not think it would be in the boys’ best interest to terminate their relationship with the mother. (Id. at p. 1533.) The trial court found the beneficial parental relationship applied and the court of appeal affirmed, holding that the decision was supported by substantial evidence. (Ibid.) Here, the relationship between the children and the parents was at best problematic. Although the children enjoyed their visits with the parents, they feared for their safety in the parents’ care. The children showed no distress at the end of visits, and the visits themselves appeared to cause them distress because their behavior deteriorated in anticipation of and following visits. When visits and information about visits was restricted, their behavior greatly improved. No independent observer opined that it was in the children’s best interest to maintain their relationship with the parents.
In In re Amber M., a psychologist who performed a bonding study concluded one of the children had a primary attachment and primary maternal relationship with the mother, although she looked to her then-current caretaker (the prospective adoptive parent) to fulfill her emotional and physical needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) That child’s therapist also opined that it was important that the relationship with the mother continue. (Id. at p. 689.) Another child’s Court Appointed Special Advocate (CASA) opined that his relationship with the mother should not be terminated. (Id. at pp. 689–690.) “There is no challenge to the fact that [these two children] love and miss Mother and have a strong primary bond with her.... Mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation.... 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.) The court of appeal overruled the juvenile court’s determination that the beneficial parental relationship exception did not apply. (Id. at p. 691.) Here, there was no expert or professional opinion that the relationship to the parents should be maintained. Unlike the mother in In re Amber W., the parents here did not always act in an appropriate, mature parental role during visits but sometimes made inappropriate comments, antagonized the visit supervisor, or failed to comply with visit guidelines. Finally, the social worker amply supported her concerns about the parent-child relationship with months of documented observations of the parents’ and children’s behavior.
Finally, in In re S.B., the father had mental and physical health problems that impeded his ability to care for the dependent child fulltime; however, he had parented the child before removal (caused by his drug-related arrest) in a “patient and loving manner, ” he demonstrated empathy with his daughter, and he made consistent efforts to alleviate the problems that led to the dependency. (In re S.B. (2008) 164 Cal.App.4th 289, 293–294, 298.) The child showed a strong attachment to the father and showed distress when visits ended. (Id. at pp. 294, 295.) Despite the child’s likewise strong attachment to the prospective adoptive parent, the court of appeal reversed the trial court’s determination that the beneficial parental relationship did not apply. (Id. at pp. 299–300.) Here again, the children’s relationship with their parents stands in sharp contrast. The Mother and Father had not parented Paul and Delilah in a patient, loving manner before removal, and they had not demonstrated a deep understanding, if at all, of the problems that led to the dependency cases. Although the children enjoyed their visits, they made it clear that they were afraid to return to their parents’ care or even to see them in an unsupervised setting. Tellingly, their behavior and emotional well-being improved dramatically when visits and information about visits with the parents were curtailed.
III. Disposition
The order terminating the appellants’ parental rights is affirmed.
We concur: Simons, Acting P. J., Needham, J.