Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Nos. DP015840 & DP017776, Gary G. Bishoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant I.H.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant M.G.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
RYLAARSDAM, ACTING P. J.
Mother I.E. and father M.G. appeal from the juvenile court’s order terminating their parental rights to their now 7-year-old son E.G. and 1-year-old daughter A.G. (Welf. & Inst. Code, § 366.26; all statutory references are to this code.) They contend the court erred in finding the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. Mother further argues the court had insufficient information to determine the boy’s wishes about being adopted. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
In a prior opinion, we affirmed a dispositional order, which, among other things, denied reunification services to parents and set a permanency planning hearing. (In re E.G. (Oct. 28, 2009, G041670, consol. with G042018) [nonpub. opn.].) We incorporate by reference the facts from our prior opinion without repeating them here and add information relevant to the issues on appeal.
After the boy was detained in September 2007, parents had “appropriate” and “positive” visits with him once a week as authorized. At first the boy “suffer[ed] emotionally as demonstrated by his constant crying and shaking.” Nevertheless he was “a happy and outgoing child” who although “[a]t times... bec[a]me tearful when thinking of his family[, ]... rarely [was a]ffected for long and typically resume[d] his playful behavior without incident. [His] emotional reactions tend[ed] to be most evident around the times of his visitation with his parents and during the visitation.” He would be talkative with the monitor before visits but cried and became “distraught and deeply sad” upon seeing his parents. He often told them he loved and missed them and wanted to return home. SSA referred him to individual counseling due to concerns about his emotional well-being.
During the next several months, the boy bonded with his foster mother, one time proudly showing his parents his drawing of himself with her and another time calling mother by foster mother’s name. He was talkative and excited to see his foster mother when the visits concluded. By December, the boy had become “very bonded” with his foster mother. He liked living with her and preferred to live with her over his parents if given the choice.
The boy continued through the summer to enjoy visits and telephone calls with parents, telling them he loved and missed them. In October, SSA took custody of his sister after she was born and both children were placed together in a new foster home.
Parents visited both children together but while the boy appeared to enjoy the visits and was affectionate, at some point he “appear[ed] to be pulling away” from his parents. He “resisted coming to the phone, ” “indicated that he wanted few calls[, ] and told his mother that he did not want to talk to his father.” “H[i]s answers to [parents’] questions were one word or not at all. He did not ask any questions of them and only reluctantly answered theirs.” On one occasion, the boy “appeared to be a bit distant... [, ] pull[ing] away when [mother] attempted to kiss him” and pushing her away when she tried to give him a hug.
At the same time, the boy had adjusted well to his new foster home, asking “if he could live there forever” and if the foster mother “would be his new mommy.” According to his therapist, he “appear[ed] to be bonded to his new foster mother and she appears attentive to him.”
In its dispositional ruling in December 2008, the court ordered the children removed from parents’ care and denied reunification services. It authorized weekly visits with the boy and monthly visits with the girl pending the permanency planning hearing.
SSA recommended terminating parental rights and freeing the children for adoption. The girl was “an adorable infant” and the boy was handsome, friendly, polite, and loving. Neither had any apparent medical or developmental problems and both were “good candidates for adoption.” Their current caretakers wanted to adopt them. The boy loved them and referred to them “as [m]om and [d]ad” and “[w]hen asked... [how] he felt about being adopted by [them], [he] stated, ‘I want to stay in this home for ever and ever.’” He was also performing well in grade school and “show[ed] good developmental progress” in therapy.
At visits parents brought food, clothes, games, and toys and played with the children. They sometimes helped the boy with his homework and other times he played his portable video game during the entire visit. The boy showed them affection and said he loved them during visits and telephone calls. During one visit, he referred to his foster mother as “my mom, ” which mother said was incorrect and that he should call his foster mother by her name. He also made a comment about “my brother, ” in reference to his foster brother.
When the visits ended, the boy “was happy to see his” foster mother, yelling “mom” as he ran to her and jumped into her car. He “transition[ed] easily back into the environment of the foster home, ” did not talk about his parents, and exhibited no “incidents of anger, sadness, or isolation....”
In May 2009, his therapist “observed that lately [the boy] tend[ed] to be angry following a visit with his family.” The next month the boy was tense in session and did not want to talk about his visit.
The therapist observed the boy had “a very strong bond with” his foster mother “and she is very supportive of him.” Moreover, he had attained the goals of his therapy. He “appeared secure with [his] foster family [and was] able to talk of his past, ... and his new bond and love for his foster family.” He was able to express his feelings about his parents and his placement as well as his sadness over the “‘dead baby.’” He looked to his foster family “for emotional support and security as needed[ and t]hey are supportive of him and welcome him as a full fledged family member.”
The social worker opined there would be no detriment to the children if parental rights were terminated. “[The boy] has a loving and trusting relationship with the prospective adoptive parents” and although he “clearly love[d] his parents and enjoy[ed] seeing them, ... he demonstrate[d] no signs of emotional distress upon being separated from them and [was] excited to see his foster mother upon the end of his visits....”
At the section 366.26 hearing, neither parent appeared in court. The court accepted the social workers’ reports into evidence and all counsel submitted on them, waiving cross-examination of the social worker.
Following argument from counsel the court found the children adoptable, that termination of parental rights would not be detrimental to the children but rather would be in their best interests and that the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. The children were “highly adoptable” and had been living for a “very extended period of time” with a family dedicated to adopting them. Although the boy enjoyed his weekly visits, it was parents’ burden to show the termination of their parental rights would be detrimental to the children and there was insufficient evidence to suggest that eliminating those visits “would be detrimental to the extent that it would outweigh the benefit that he would gain by having a permanent and stable home for adoption.” The boy “separate[d] easily from the biological parents, ” “call[ed]... the foster parents mom and dad, ” and “when given the opportunity to express his views on this, indicate[d] that he wants to live there forever.” Moreover, there was nothing in the therapist’s reports “to suggest that... terminat[ion of] contact between the [boy] and the parents would be at all detrimental to the [boy].”
DISCUSSION
1. Failure to Ascertain the Boy’s Wishes
Mother, joined by father, contends the court failed to comply with section 366.26, subdivision (h)(1), which requires the court to “consider the wishes of the child and... act in the best interests of the child.” Although the issue was not raised in the trial court, they assert it was preserved for appeal because mother’s attorney noted “a lot of information [about the boy’s feelings is] lacking in the report....” We shall consider the claim on the merits. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
“[E]vidence [of a child’s wishes] need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing. [Citation.]” (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) “What the court must strive to do is ‘to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements.... [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.’ [Citation.]” (Ibid.) “In the absence of evidence to the contrary, we presume the court performed its statutory obligation [citation] on behalf of the child” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1594).
In Amanda D., the court found “there was a reasonable basis for inferring the minor[’s] wishes. David talked about ‘my home, my room, my dog, ’ in referring to his life with the foster parents. He thrived there and expressly stated how much he liked living with Jill and Mike. And there was evidence he was essentially apathetic about visiting Lawrence, indicating the relationship was not of great significance to him.... There was sufficient evidence for the court to assess the minor[’s] wishes and [his] best interests.” (In re Amanda D., supra, 55 Cal.App.4th at pp. 820-821.)
Similarly here, the boy talked about his mom and his brother, in reference to his foster mother and brother. He called his foster parents mom and dad and said he loved them. He had a strong bond with his foster family and thrived in their care, performing well in school and achieving his therapeutic goals. Upon being asked how he felt about being adopted by his foster parents, he stated, “I want to stay in this home for ever and ever.” Although the boy loved his parents, he separated from them at the end of visits without signs of distress and “was happy to see his” foster mother, running to her and jumping into her car, yelling “mom” as he did so. Sufficient evidence existed from which the court could evaluate the boy’s wishes and determine his best interests.
Parents assert “[t]here is no evidence... the concept of adoption was explained to [the boy] or that he understood what being adopted meant.” The record shows the concept was explained but that the boy “did not seem to understand [it], ” inferably due to his young age. Nevertheless, from his statement he wanted to live with his caretakers “for ever and ever, ” we can deduce the boy understood part of it meant was that he would be living with them permanently. As to how he felt about the termination of parental rights, i.e., the ending of the parent-child relationship, it was unnecessary to ask him. (In re Amanda D., supra, 55 Cal.App.4th at p. 820.)
As Leo M. held: “[I]n honoring [the children’s] human dignity... we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect.... [W]e conclude that in considering the child’s expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.” (In re Leo M., supra, 19 Cal.App.4th at p. 1593.) Telling the boy “that being adopted would mean he would never see [them] again, ” as parents claim should have been done, would have placed too great a burden on him.
Parents also maintain the boy “was not asked about his feelings toward his prospective adoptive parents” or “mother and father.” (Underscoring omitted.) Such feelings were reasonably inferable from the above facts.
The record contained sufficient evidence for the court to reasonably determine the boy’s wishes. Accordingly, there was no abuse of discretion.
2. Benefit Exception
Parents argue the court erred in terminating their parental rights and determining the benefit exception of section 366.26, subdivision (c)(1)(B)(i) did not apply. We are not persuaded.
Once the court determines under section 366.26 a child is likely to be adopted, it “shall terminate parental rights” (§ 366.26, subd. (c)(1)) and order the child placed for adoption unless it “finds a compelling reason for determining that termination would be detrimental to the child” because of one of the statutory exceptions (§ 366.26, subd. (c)(1)(B)). One exception is where a “parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Parents bear the burden of proving both these factors. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
“[C]ourt[s] ha[ve] interpreted the phrase ‘benefit from continuing the relationship’ to refer to a ‘parent-child’ relationship that ‘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 re Mary G. (2007) 151 Cal.App.4th 184, 207.) Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, “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. (1994) 27 Cal.App.4th 567, 575.)
The exception does not require “proof that the child has a ‘primary attachment’ to a parent or that the noncustodial parent has maintained day-to-day contact with the child. [Citations.]” (In re S.B. (2008) 164 Cal.App.4th 289, 300.) Nevertheless, “[a] parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child....’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (In re Mary G., supra, 151 Cal.App.4th at p. 207, fn. omitted.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
“We must affirm a trial court’s rejection of [this] exception[] if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) “We... review[] the evidence most favorably to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) Because the parents had the burden of proof, we must affirm unless there was “indisputable evidence [in their favor]-evidence no reasonable trier of fact could have rejected....” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Here, substantial evidence supports the decision to terminate parental rights. Parents established the existence of regular contact, visitation, and bonding with the boy, but they have not shown this bond outweighs the benefits of adoption. Although the record reflects the boy enjoyed visits with his parents, he apparently transitioned easily back into his foster placement, where he did not talk about his parents and was doing very well. He was strongly bonded to his caregivers, called them mom and dad, looked to them “for emotional support and security, ” and stated he wanted to live with them “‘for ever and ever.’” He also had a significant bond with the prospective adoptive parent’s son, whom he referred to as “his brother.”
Additionally, the boy was seven-years old at the time of the section 366.26 hearing, and had been in foster care for over two years. Those facts and his need for a permanent, stable home support the juvenile court’s finding that the beneficial parent-child relationship exception to adoption did not apply. To the extent the boy derived some benefit from the relationship with his parents, the quality and strength of that relationship did not outweigh the benefits of adoption. The beneficial relationship exception must be considered in light of the Legislature’s preference for adoption when reunification efforts have failed. The exception does not allow parents who have “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. (2000) 78 Cal.App.4th 1339, 1348.)
Mother, joined by father, asserts the court applied the wrong legal test because In re S.B. held that the benefit exception does not require parents “to show that the child had a ‘primary attachment’ or that the relationship be ‘parental.’” (In re S.B., supra, 164 Cal.App.4th at p. 299.) But In re S.B. never said the relationship between parent and child need not be “parental.” To the contrary, it concluded it was unreasonable “to require the parent of a child removed from parental custody to prove the child has a ‘primary attachment’ to the parent, or show the parent and the child have maintained day-to-day contact.” (Id. at p. 299; see also p. 300 [the father’s “maintain[ance of] a parental relationship with [the child], ” among other things, supported finding benefit exception applied].)
Regardless, in making its findings the court in this case did not rely on the absence of primary attachment or day-to-day contact with parents. Rather, it expressly stated the test it was applying was whether eliminating visits with parents “would be detrimental to the extent that it would outweigh the benefit that he would gain by having a permanent and stable home for adoption.” This is the correct test under the case law and parents do not contend otherwise.
Moreover, In re S.B. does not “stand for the proposition that a termination order is subject to reversal whenever there is ‘some measure of benefit’ in continued contact between parent and child.” (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) It recognized the exception requires evidence that the child would be “‘greatly harmed’” by severance of the natural parent/child relationship. (In re S.B., supra, 164 Cal.App.4th at p. 297.) The father had been the child’s primary caregiver for three years and a bonding study indicated that “because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at p. 296.) The social worker admitted that “there would be some detriment to [the child if] parental rights [were] terminated” (id. at p. 295) and the juvenile court found the father and the child had “an emotionally significant relationship” (id. at p. 296). No analogous evidence exists in this case.
The evidence introduced by SSA at the hearing supports the juvenile court’s rejection of the parent-child benefit exception. The mere fact other evidence exists that may have supported a contrary result does not suffice to nullify the court’s findings. Given our conclusion, we need not address mother’s contention that reversal of the order terminating parental rights as to the boy mandates the same result with regard to the girl.
DISPOSITION
The orders are affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.