Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J0702212, J0702213
Jones, P.J.
K. J. (mother) appeals contending the trial court erred when it terminated her parental rights as to her daughters E. and N. We conclude the trial court did not abuse its discretion and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We take much of the background that follows from our prior unpublished opinion in this case denying mother’s petition for a writ under California Rules of Court, rule 8.452.
On August 6, 2007, mother gave birth to E. and N. Less than four months later on December 3, 2007, mother called a doctor complaining that E. was crying and wasn’t moving her right arm. The doctor encouraged mother to bring E. in right away. Mother brought E. in two days later. Medical personnel took x-rays, but mother took E. and left before she could hear the results. It turned out that E.’s clavicle was fractured. The doctors called mother and asked her to bring both girls in for an examination.
Mother brought E. and N. in on December 7, 2007. N. had a subconjunctival hemorrhage on her left eye, a fractured tibia, and a fractured skull.
Dr. James Crawford, a board certified physician who specializes in recognizing child abuse, believed E.’s injury was “‘of serious concern’” because it was an impact break. He opined that “‘[E.] would not have just cried... she would have screamed.’” Dr. Crawford believed N.’s leg injury was equally troubling. The specific injury she suffered was “really scary, as someone would have to pull her really hard by the foot” to cause that type of injury.
Child protection authorities spoke with mother about the injuries E. and N. had suffered. She insisted she did not harm her children or do anything accidently that would have caused their injuries. Mother speculated that E.’s injuries may have occurred when her sister R. was caring for her. When the authorities insisted that they needed an explanation for the serious injuries the children had experienced, mother said casually, “‘I don’t know if we’ll ever know.’”
Child protection authorities spoke with mother’s sister R. She said she had cared for E. and N. recently, but that nothing happened. She speculated the children may have been injured when mother picked them up.
Based on these facts, on December 11, 2007, petitions were filed alleging E. and N. were dependent children within the meaning of Welfare and Institutions Code section 300. At a detention hearing conducted the next day, the court found the children were at substantial risk for physical injury and ordered them removed from mother’s custody. Subsequently, mother submitted to the petitions and the court found the allegations to be true.
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
The report prepared for the dispositional hearing uncovered some disturbing information. Mother admitted she had anger and temper problems, a characteristic that was underscored by recent incidents in her life. In July 2005, mother and another woman were involved in a shoplifting incident. When a sales associate followed mother and the woman out of the store to question them, mother kicked him in the leg, struck him in the head repeatedly, and hit him with her purse. Then in May 2007, while mother was pregnant with E. and N., mother was arrested for hitting the children’s father.
In light of these incidents, and in light of the still unexplained cause of the injuries to E. and N., the dispositional report recommended that mother not be provided reunification services and that her parental rights be terminated. The trial court rejected that recommendation. It declined to terminate mother’s parental rights and ordered that mother be provided reunification services. The court also ruled that mother could have unsupervised visits with E. and N.
After several continuances, a review hearing was set for February 19, 2009. The report prepared for that hearing showed mixed results. On one hand, mother had been provided and had successfully participated in a wide range of services including individual counseling, family counseling, parenting education and anger management classes, and parental coaching and assessment. According to the report, all the service providers provided favorable reports about mother’s participation.
On the other hand, the report still expressed considerable unease with the fact that the cause of E.’s and N.’s injuries still remained unexplained.
The report also indicated mother’s anger issues were still not resolved. On three separate occasions, mother had serious disputes with the relative who was caring for E. and N. According to the report, the relative, (a great aunt) said “mother had repeatedly gotten into heated arguments with her about the children, such that the mother threatened the relative caregiver on two of these occasions, and threatened and became physically aggressive on another occasion.... [T]he argument in which the mother [became] physically aggressive occurred in the relative caregiver’s bathroom after the relative caregiver had asked the mother not to be so rough with the children.” The serious problems with the mother were the principal reason the relative declined to continue as the caretaker for the children. The report opined that the “credible reports of mother’s actual behavior in the community may be more significant and accurate indicators of the mother’s present and future functioning than professional reports describing the mother in situations in which she is aware of being under scrutiny for a service provider’s evaluation.”
Furthermore and disturbingly, the report indicated mother recently had been arrested three times on prostitution related offenses.
In light of the latter information, the report again recommended that the court terminate reunification services and set the matter for a hearing to determine whether mother’s parental rights should be terminated. Again, the court rejected that recommendation. It ordered that mother continue to receive reunification services and set the matter for yet another review hearing.
An 18-month review hearing began on July 6, 2009. The report prepared for that hearing again showed mixed results. Mother continued to participate in parenting classes and counseling with good results. She was described as showing a “high degree of motivation to reunify with her children and to comply with the reunification service plan.” However, the report indicated there were still serious concerns. Although mother’s prostitution arrests had been disclosed in the prior report, mother’s social worker had not previously been able to discuss those arrests with mother. When the social worker did discuss the arrests with mother, the social worker learned some disturbing information. According to the report mother “talked about having first engaged in prostitution while in high school in San Francisco. She stated it ‘was normal in my high school’ and she stated she ‘tried it with friends a few times.’ She acknowledged... engaging in prostitution in Oakland in February 2006, precipitating her arrest by Oakland [P]olice on 02/03/2006 for soliciting for prostitution on International Avenue. She stated she resumed prostituting in Richmond a few months ago, at about the time of the six-month (family reunification) review hearing. She stated she ‘knew what she was getting into’ from her previous experience. The mother stated that in recent months, from about the time of the six-month review hearing, she had engaged in soliciting for prostitution on the streets of Richmond about three nights a week. She stated she worked by herself, without a pimp or partner, and always went to motel rooms rather than her own residence, and used safe sex measures.”
This conflicting evidence was explored at the review hearing. After considering the evidence presented, the court ruled the children would be at substantial risk if they were returned to mother’s custody. Accordingly, the court terminated reunification services and set the matter for a hearing on November 25, 2009, to determine whether mothers parental rights should be terminated.
Mother challenged that decision by filing a petition for a writ under California Rules of Court rule 8.452. This court denied the petition on the merits in a written opinion filed on October 16, 2009.
The case returned to the trial court for a termination hearing. The report prepared prior to that hearing described E. and N. as “truly wonderful and beautiful children” and opined that “many families would feel blessed to welcome them as their own.” The report also stated that although at least one other possible adoptive home had been identified, “the most appropriate permanent placement for the girls is with their current caregivers/de-facto parents. The prospective adoptive family has recently been referred for an adoption homestudy; this will be an addendum homestudy as the family previously adopted through the County several years ago. Given their previous adoption history, their current standing as excellent foster parents, and their outstanding care of the girls, there are no foreseen impediments to the approval of their homestudy.” The report noted that E. and N. did have a positive relationship with their mother. “They smile when they see [her] and they display affection with her during visits.” However, the report also stated that terminating mother’s parental rights would not be detrimental to the children’s well-being: “This is partially evidenced by the fact that since late February 2009, visitation has steadily decreased to one hour, once monthly and became supervised due to safety concerns. This decrease in visitation has not disrupted the mental or emotional well-being of the children in any visible or measurable way. Additionally, there is no indication that either child would directly benefit from a continued... relationship with [mother]. Furthermore, the best interest of the children is served by creating a permanent home with the current caregivers – caregivers who have cared fulltime for these children for a period of 20 months. The relationship and attachment which exists between the children and their current caregivers is one exemplified by security, trust, nurturing, love, and consistency; this is by far their strongest and most secure attachment.”
Mother initially failed to appear at the hearing to determine whether her parental rights should be terminated and the court entered a tentative order terminating her rights. However just as the court was articulating its ruling, mother entered the courtroom. The court then reopened the case and allowed mother to testify. She said that during visits, E. and N. call her “mommy” and they are affectionate with her. Mother acknowledged that during the children’s last visit, they were looking out the window for their prospective adoptive mother whom they also call “mommy.”
The trial court weighing this evidence decided to terminate mother’s parental rights. The court found specifically that “severing the natural parent/child relationship would [not] deprive the children of a substantial positive emotional attachment such that the children would be harmed.”
II. DISCUSSION
Mother contends the trial court erred when it declined to find applicable the exception to termination that is set forth in section 366.26, subdivision (c)(1)(B)(i).
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, the court must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one several exceptions. The “beneficial relationship” exception applies where “[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).)
A parent has the burden of proving that the beneficial relationship exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) To do so, the parent must do more than demonstrate frequent and loving contact with the child, the existence of an emotional bond, or that parent and child find their visits pleasant. (Id. at p. 827.) The parent must show that her relationship with the child “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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There must be a compelling reason for applying the beneficial relationship exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Determining whether the exception applies is a “quintessentially discretionary determination.” (Id. at p. 1351.) Thus, we review the juvenile court’s determination for an abuse of discretion. (Ibid.)
Although appellate courts routinely have applied the substantial evidence standard when reviewing termination orders, Division Three of this court has ruled the appropriate standard is abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We will apply the Jasmine D. standard recognizing, as it did, that the practical differences between the two standards are insignificant in the context of reviewing termination orders. (Ibid.)
Applying that standard, we find no abuse here. There is evidence in the record that mother visited E. and N. throughout the dependency, and that the children enjoyed her visits. Furthermore, there is evidence that some type of bond exists between mother and her children. However, that is not enough. Mother was obligated to show that her relationship with E. and N. promoted their well-being to such an extent as to “outweigh the well-being [the children] would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) This mother did not do so.
Approximately two years after the dependency began, mother was still experiencing significant problems. Mother still had not provided a satisfactory explanation for the serious physical injuries that E. and N. suffered while they were under her care. Mother had problems controlling her temper and a history of abusing others. Mother’s lack of candor concerning her prostitution activities while the dependency was ongoing cast doubt on her truthfulness as a whole. Indeed, the fact that mother continued to prostitute herself on the streets of Richmond until shortly before the termination hearing cast considerable doubt on whether she would be a good influence on her children. The trial court considering these factors reasonably could conclude that exposing E. and N. to a mother who was facing so many significant challenges would be a destabilizing influence on their young lives. We conclude the court did not abuse its discretion when it declined to find applicable the exception to termination set forth in section 366.26, subdivision (c)(1)(B)(i).
Mother contends the trial court erred. Citing evidence that the children lived with her during the critical first four months of their lives, that she was attentive to their needs, that they smiled at her during visits, and that the children sometimes would call her “mommy, ” mother contends she was a positive influence on her children’s lives and that the court erred when it severed that relationship. However, this argument misconstrues the standard of review. The question is whether the trial court abused its discretion when it declined to find the exception to termination to be applicable, and as we have explained, the court did not abuse its discretion. The fact that the record also includes other evidence that might have supported a different conclusion is irrelevant. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
We conclude the court did not err when it terminated mother’s parental rights.
III. DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: Simons, J., Needham, J.