Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0500706
Pollak, J.
L. H., the mother of three-year-old D.M., appeals a juvenile court order terminating her parental rights and placing the child for adoption. The juvenile court’s order is supported by substantial evidence and therefore we shall affirm.
Background
On April 15, 2005, the Contra Costa County Children and Family Services Bureau (the bureau) filed a petition alleging that then three-month-old D.M. came within the provisions of Welfare and Institutions Code section 300, subdivisions (a) and (b). The petition alleged that on April 9, L.H. “screamed at the three-month-old baby very loudly,” that she “struck the child in the face causing two black eyes with bruising under both eyes, and bruising to the left cheek area,” that she “is hospitalized on a [Welfare and Institutions Code section] 5150 hold for mental health concerns and is unable to provide adequate care for the child,” and that she “and alleged father have a history of domestic violence.” D.M. was ordered detained. On June 9, 2005, the petition was sustained and D.M. was adjudged a dependent.
Further statutory references are to the Welfare and Institutions Code.
This allegation was later dismissed.
This allegation also was dismissed.
A report filed in anticipation of the dispositional hearing scheduled for July 7, 2005, recommended providing reunification services and visitation for L.H. The report noted, however, that D.M. was living with his maternal grandmother, and that “mother has stated at least twice that she did not want to participate in services. The mother appeared to be overwhelmed by the services offered to her, and decided to forego reunifying with her child. . . . The mother has also stated she will do anything to have her child return to her. The mother recently started parent education classes and domestic violence group therapy. The mother has not scheduled an appointment for the psychiatric evaluation, nor started drug testing or individual therapy. The mother has not engaged in her services wholly and is encouraged to participate in the services provided to her.”
A status review report prepared for the six-month review hearing on December 5, 2005, stated that D.M was still living with his maternal grandmother and recommended continuing reunification services for L.H. The report also stated that L.H. and D.M. “have one hour supervised visits four times a month. . . . During the visits, the child is happy to see mother . . . and mother interacts with the child appropriately . . . . She plays with and holds the child affectionately, which is reciprocated by the child.” The report also noted that “[a]lthough the mother is complying with her Case Plan, she believes that her child was removed from her care unnecessarily and continues to ask the social worker for proof of the child being physically abused.” The maternal grandmother indicated her willingness to adopt D.M. if reunification efforts were unsuccessful. L.H. denied having further contact with D.M.’s father, who has a long criminal history and had been incarcerated until October 2005, despite indications from father and grandmother that the two were in regular contact.
When father was again incarcerated in January 2006, the bureau recommended terminating reunification services for him, but continuing services for L.H. The court ordered services continued for both parents until the 12-month review hearing. In its status report in advance of that hearing, the bureau again recommended terminating services for father but continuing services for L.H. The report stated that L.H. “continues to work on her Case Plan Goals. She has completed parent education classes. She continues to attend a domestic violence support group. The mother continues to test and has started a substance abuse treatment program with New Connections. She has had difficulty deciding on a permanent living situation, and has resided at the homes of two of her aunts since June, 2005. On May 12, 2006, she moved into Safe Haven, a 12-month transitional housing program in Concord. The program serves mothers and children.” D.M. was still living with his maternal grandmother. “The grandmother continues to appropriately care for [D.M.] and provide him with a stable and loving home. This location continues to be an appropriate placement for” D.M. Although she had enrolled in the New Connections program, L.H. was reportedly “resistant to starting a substance abuse treatment program,” and had been terminated from therapy services by her doctor “due to excessive absences.”
Mother was evicted from Safe Haven on June 12, 2006, and “lived with friends temporarily. She also lived with the child’s father at an apartment in Oakland for three to four weeks in June and July.” As a result of the eviction, on June 19, 2006, the court suspended unsupervised visitation between L.H. and D.M. On July 13, 2006, at the 12-month review hearing, the court ordered L.H. “to have mental health screening A.S.A.P.” The court also ordered that the bureau “has authority for unsupervised visits w/mom w/notice to minor’s counsel.”
In a status report filed for the 18-month review hearing on October 5, 2006, the social worker observed that D.M. “appears to be very bonded with [L.H.] She had an overnight weekend visit with [D.M.] in April, 2006, when she was living at the home of her aunt. She again had overnight weekend visits with [D.M.] in June, 2006, while she was living at Safe Haven transitional housing. Overnight visits were suspended on June 19, 2006, when the Bureau learned that [L.H.] was evicted from Safe Haven and did not have a stable living situation. . . . [¶] [L.H.] believes that she is stable now and capable of having her child returned to her care. She also believes that she has completed all of her case plan goals. When this social worker presented her with evidence from her service providers which shows that she has not been participating in services adequately since approximately June, 2006, she denies this. She is cooperative with services and has been committed to reunifying with her son, however her mental health problems appear to have interfered with her ability to participate in services and maintain stable residence.”
The report states that D.M. “is a healthy baby boy. He is attached to his grandmother and her family. It would be in the child’s best interests if he were to remain in her home on a permanent basis.” The report also notes that L.H. “was scheduled to graduate from the New Beginnings program at New Connections Recovery Services on August 10, 2006. On August 28, 2006, the Bureau received a fax which stated that [L.H.] was being discharged due to poor attendance during the month of August. . . . [L.H.’s] attendance at random drug testing also dropped off beginning in June, 2006. She tested only once that month and missed five tests. During July, [L.H.] tested four times and missed two tests. During the month of August, [L.H.] tested only once, and she missed five tests. [¶] Also of great concern is [L.H.’s] inability to maintain a stable living arrangement. She has been advised several times by her social worker to update her address every time that she moves. However, [L.H.] has moved several times since January, 2006, and did not notify the social worker of where she was living . . . .”
The report concluded that L.H. “has attempted to stabilize her life by returning to live with her aunt on September 1, 2006. During the past six months, she has shown a lack of stability in her life and has been inconsistent in her participation in services and drug testing. She has had two angry outbursts since April. She has been an unreliable reporter at times, and her insight and judgment are poor. It does not appear that [L.H.] will become sufficiently stable in the near future. Her ability to care for her son is impacted by her mood disorder. The Bureau recommends terminating Family Reunification services to [L.H.] . . . and requests a [section] 366.26 hearing in order to determine a permanent plan for the child.”
The October 5, 2006 hearing was continued to February 7, 2007. In an updated status report for the continued hearing, the bureau stated that in the interim L.H. had received a psychological evaluation on the order of the court, and that the social worker had provided L.H. “with referrals to the Family Stress Center for either individual or group counseling to address some of the anger issues mentioned in her psychological assessment.” L.H. had not scheduled an appointment on that referral by January 25, 2007, the date of the report. On January 5, the social worker provided L.H. with “a referral to the Regional Center of the East Bay. . . . On January 23, 2007, this worker received a call from an assessment counselor that informed this social worker that [L.H.] refused services and because this was a voluntary program, the referral was closed.” The bureau maintained its recommendation that reunification services be terminated.
On April 6, 2007, the court terminated reunification services and scheduled a hearing pursuant to section 366.26. L.H. challenged that order by petitioning this court for a writ of mandate, arguing that “she was not referred in a timely manner to an appropriate mental health provider to complete a court-ordered psychological assessment.” This court denied the petition on the merits. (L H. v. Superior Court (June 27, 2007, A117599) [nonpub. opn.].)
In the report prepared for the section 366.26 hearing, the bureau recommended that L.H.’s parental rights be terminated and that the court “find adoption to be the appropriate permanent plan” for D.M. The report stated that at the time of the six-month review, L.H. had visited D.M. four times a month. “The maternal grandmother supervised the visits at the beginning of the review period, however . . . [t]he maternal grandmother requested the visits be moved to Children & Family Services as she had a difficult time supervising the visits with mother, after father was released from jail. It was further reported that [D.M.] is happy to see his mother during the visits, and the mother interacts with him appropriately. She plays with and holds him affectionately, which is reciprocated by [D.M.] [¶] The twelve-month Status Review Report . . . reported that mother and child continued to have one-hour visits at least four times a month. Visits had returned to being supervised by the maternal grandmother, in her home. It was reported that mother was very attentive and caring during the visits. . . . [¶] The eighteen-month Status Review Report . . . reported that [L.H.] had maintained regular contact with [D.M.], and was visiting him almost daily at the home of the maternal grandmother. It was reported that [D.M.] appeared to be very bonded to [L.H.]. She had an overnight weekend visit with [D.M.] in April . . . [and] [s]he again had overnight weekend visits with [D.M] in June 2006, while residing at Safe Haven transitional housing. Mother’s overnight visits were suspended on June 19, 2006, when the Bureau learned that [L.H.] was evicted from Safe Haven and did not have a safe living situation. [¶] Since the setting of the [section] 366.26 hearing, mother’s visitation has been sporadic. . . . [¶] . . . [¶] On May 11, 2007, mother requested a visit with [D.M.] on Mother’s Day. Mother was offered a visit at Social Services the following week, which she declined. Social worker called maternal grandmother, who stated she was willing to supervise a visit on Mother’s Day. . . . The maternal grandmother later reported that mother had called to arrange a visit, however she did not show. [¶] On June 27, 2007, the maternal grandmother reported that mother had visited for the first time in over two months during the week of June 17 through June 23.”
The report stated that “[t]he likelihood of [D.M.] successfully participating in adoption is excellent. He is a healthy, happy and social toddler. He has been placed in his potential adoptive home [with the grandmother] since June 14, 2005. [D.M.] relies on his potential adoptive mother to meet all of his physical and emotional needs. His potential adoptive parent is committed to providing him with a stable, loving home and has expressed her desire to adopt [D.M.] The potential adoptive parent has completed all aspects of her adoption home study and it is anticipated that it will be approved. [¶] . . . The stability, permanence and safety that adoption would provide for [D.M.] far outweigh any potential parental relationship with his biological parents.” The report concluded that L.H.’s “history of mental illness and substance abuse, as well as incidents which exhibit [her] lack of insight and poor judgment, contributed to her inability to successfully reunify with her son.”
On August 31, 2007, the juvenile court held a hearing pursuant to section 366.26. L.H.’s brother testified that he had visited L.H. and D.M. three times since June. He stated that the visits “went well . . . That’s the only way I can describe it, well.” When asked to describe the interactions between L.H. and D.M. he stated, “they miss each other, honestly. It was like she was all into him. It was all about him, spoiling him, buying him things, you know, that she missed out the time that she wasn’t in his life. She would buy him stuff. And he would interact with her doing little baby things, walk around the store asking for stuff because he’s so used to her buying him things. That’s just the kind of stuff they did. And sometimes I just talk to her about it and told her not to do that so much so he would get used to it. You know what I’m saying? Don’t spoil him.”
A friend of L.H.’s testified that she had been present at visits between L.H. and D.M. “at least three times” since June 2007. She stated that “you can tell they miss each other. . . . [S]o of course it’s going to be like a joy that you see between the two of them.” When asked how D.M. showed that joy, she stated, “He doesn’t want to let her go when it’s time for . . . them to depart from each other. He doesn’t want to let her go. It’s like mommy this, mommy that. He knows that this is his mom, you know. She expresses a lot of love for him. [¶] . . . [¶] She has this thing where she—they lay in the bed, they watch the Tele-Tubbies together and that’s [their] thing. That’s the[ir] thing with my son and her son . . . . [T]hat’s the way they spend the[ir] time together.”
The juvenile court found “by clear and convincing evidence that [D.M.] is an adoptable child. I don’t think that really is in dispute. The only question is whether mother has met her burden of showing there’s an exception under the beneficial relationship test to the adoption. And I find that she has not made that showing. Not only does mother have to show that she visits regularly, which she did except for that two-month period, but that the relationship rises to such a degree that it outweighs the well-being the child would gain in a permanent home with adoptive parents. And that mother has not shown, although the visits with [D.M.] appear to be fun and that [D.M.] appears to enjoy his contact with his mother, which I certainly hope continues into the future, there is no showing that she related to [D.M.] as the parent; that she performed the parental role in his life. Rather the evidence is that the grandmother performs that parental role. So that although there is some incidental benefit to the child, I will find that continuation of parental rights would be detrimental to the child[] and that permanence with the grandmother is the best thing for [D.M.] Because at this point, I’m looking at [D.M.] and his best interests and not what would be best for the mother. I hope that the grandmother continues to allow visitation with mother.” The juvenile court ordered that L.H.’s parental rights be terminated. L.H. timely noticed an appeal.
Discussion
L.H. argues that the juvenile court erred by finding that the “beneficial relationship” exception did not apply and terminating her parental rights.
Subdivision (c)(1) of section 366.26 provides that if the court finds “by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” Subdivision (c)(1)(B)(i) provides an exception where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” We review the juvenile court’s finding that the exception did not apply for substantial evidence. (In re Jesse B. (1992) 8 Cal.App.4th 845, 851.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
At the time of the proceedings in this case, the relevant subdivision was section 366.26, subdivision (c)(1)(A). The section was renumbered in 2007.
In order for this exception to apply, the court must find that the child’s relationship with a parent “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
In In re Beatrice M. (1994) 29 Cal.App.4th 1411, the court rejected the parents’ argument that their frequent visits brought them within the exception. The court held that the evidence was not “sufficient to establish the ‘benefit from a continuing relationship’ contemplated by the statute. No matter how loving and frequent their contact with the girls, appellants had not occupied a parental role in relation to them at any time during their lives. ‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ ” (Id. at pp. 1418-1419, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.)
There was substantial evidence in this case to support the juvenile court’s finding that D.M. would not benefit from continuing the parental relationship with L.H. “to such a degree as to outweigh the well-being the child would gain in a permanent home” with an adoptive parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.) “The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. (§ 300.) Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. (§ 366.25, subd. (a); § 366.26, subd. (b).) That child must be placed for adoption, in guardianship, or in long-term foster care. (§ 366.26, subd. (b).) [¶] Adoption, where possible, is the permanent plan preferred by the Legislature.” (Autumn H., supra, at p. 573) “After the parent has failed to reunify and the court has found the child likely to be adopted, it is the parent’s burden to show exceptional circumstances exist.” (Id. at p. 574.)
Despite some progress made by L.H. and her frequent and appropriate contacts with D.M., the record contains ample evidence that she did not take full advantage of the services that the bureau provided. Over the course of the dependency proceedings, L.H. repeatedly denied that she needed psychiatric services and failed to complete programs designed to provide her with the skills necessary to parent D.M. Moreover, whatever the reason, there was substantial evidence that L.H. had not overcome her impulse control and anger management problems so that returning D.M. to her custody would be detrimental to the child’s safety. The testimony by L.H.’s brother and friend did little more than reiterate that she related to D.M. in an appropriate way during visitation. Nothing in that testimony suggested that L.H. had ever assumed the role of a parent in D.M.’s life so that terminating the relationship would be detrimental to D.M.
L.H. cites In re Amber M. (2002) 103 Cal.App.4th 681, In re Brandon C. (1999) 71 Cal.App.4th 1530, and In re Jerome D. (2000) 84 Cal.App.4th 1200, in each of which the beneficial relationship exception was held to apply. In Amber M., in marked contrast to this case, the mother “had obtained suitable housing, maintained 338 days of sobriety, graduated from domestic violence and drug treatment programs, completed a program for parents of sexually abused children, and participated in therapy” with her children. (In re Amber M., supra, at p. 685, fn. omitted.) Also, there was testimony that the mother shared a “strong bond” and had a “primary maternal relationship” with her children. In that case, there was “no challenge to the fact that [the children] love and miss Mother and have a strong primary bond with her. Even [the youngest], while seemingly too young to have developed much of a relationship with Mother, nevertheless was very strongly attached to her. Mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation. She was devoted to them and did virtually all that was asked of her to regain custody.” (Id. at p. 690.)
In Brandon C. the evidence showed “that mother had visited the children weekly since the September 1997 hearing, that she had completed her drug rehabilitation program, that her random drug tests had been negative, and that her housing and employment had been stable for many months.” (In re Brandon C., supra, 71 Cal.App.4th at p. 1536.) It was “undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case, to the extent permitted by the court's orders. The trial court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children.” (Id. at p. 1537.) The appellate court rejected the department’s argument that the mother had not shown a substantial benefit from a continued relationship because she had not presented evidence that “ ‘during her weekly monitored visits with the children she regularly provided the children with comfort, nourishment or physical care.’ ” (Ibid.)
In Jerome R. the child was nine years old at the time of the termination hearing. He “had lived with Mother for the first six and one-half years of his life and expressed his wish to live with her again. For at least two months, he had been having unsupervised overnight visits in her home. He called her “mom” or “mommy.” There was apparently no woman in his life other than Mother with whom he had a beneficial relationship.” A psychologist testified that the mother and son had a strong parent/child relationship and “observed that Mother tried to meet Jerome’s needs ‘both recreationally and in a nurturing fashion’ and practiced ‘good boundary setting.’ ” (In re Jerome R., supra, 84 Cal.App.4th at p. 1207.) The appellate court held that “there is insufficient evidence to support the determination that Mother did not meet her burden of showing a beneficial relationship.” (Ibid.)
The facts in these cases stand in marked contrast to the present case, where the evidence is that mother had a positive but not necessarily parental relationship with D.M., and she has denied her need for services and failed to successfully complete the services that have been offered. There is no analogous testimony that L.H. has a parental relationship with D.M., only that she interacts with him appropriately during visits.
L.H. argues that the standard described in Autumn H. and Beatrice M. for establishing the beneficial relationship to invoke the exception “unduly punishes parents and creates an impossible burden for parents to overcome.” The father in In re Casey D. (1999) 70 Cal.App.4th 38 made a similar argument, which the court rejected. “[T]he Autumn H. language, while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact. Rather, the decision attempts to describe the nature of the beneficial parent-child exception to the general rule that adoption should be ordered when the child is likely to be adopted. Another way of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption. That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (Id. at p. 51.)
Similarly here, although L.H. was given the opportunity to act in a parental manner, she did not do so. This is not because the standard was unobtainable. The evidence supports the juvenile court’s finding that L.H.’s failure to meet the standard was due in large part to her unwillingness to acknowledge her own shortcomings as a parent and fully engage in the services that were provided her. The testimony that she interacted with D.M. in a loving way, and that D.M. returned her affection do not compel a finding that the benefits of this relationship outweigh the benefits to D.M. of a stable and loving home to be secured by adoption.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J.Siggins, J.