Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. Super. Ct. Nos. 05CEJ300045-2, 05CEJ300045-3 Mary Dolas, Commissioner.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Kane, J. and Franson, J.
A.L. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her 4-year-old son and 18-month-old daughter. Mother contends the court took into consideration an improper factor when it rejected her claim that termination would be detrimental to the children because they shared a beneficial parent/child relationship with her. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
While mother was pregnant with her daughter in 2009, mother had repeated, positive tests for methamphetamine. Mother’s positive drug tests, coupled with the fact that mother previously lost custody of, and eventually parental rights to, another child, led authorities to detain mother’s son and daughter, upon the girl’s birth in June 2009. Respondent Fresno County Department of Social Services (department) placed the children in foster care and initiated the underlying dependency proceedings.
The juvenile court subsequently exercised its dependency jurisdiction over the two children, adjudged them dependents and ordered them removed from parental custody. The court also ordered reunification services for mother despite a contrary recommendation from the department based on her history (§ 361.5, subds. (b)(10), (11) & (13)). Although grounds existed to deny mother services, the court nevertheless found services would be in the children’s best interest. In support of its finding, the court cited a change in mother’s attitude, her commitment to complete treatment, the fact that she visited consistently with the children and behaved appropriately, and the children’s relationship with her, acknowledging that due to the girl’s young age her relationship with mother was not as strong. Mother received twice-weekly, one hour supervised visits with the children.
In November 2009, the court granted the department discretion for liberal visits and/or to place the children with mother at Spirit of Women, her residential drug treatment program. The children later began liberal visits with mother and eventually resided with her on an “Extended Visit” at the program. By March 2010, the department recommended that the court return the children to mother’s custody subject to family maintenance services based on mother’s progress. The court followed the department’s recommendation and returned the children to mother’s custody in mid-April 2010.
Approximately six weeks later, the department redetained the children. Spirit of Women had terminated mother’s housing after she broke house rules. She had been having constant visits with a male, who was a recent parolee. On one occasion, mother and the visitor were engaged in a “domestic violence altercation.” Another time, she took the children to the man’s home and left them unattended. When mother later admitted to using methamphetamines, she was terminated from the Spirit of Women program all together. Mother also declined a referral to a battered women’s shelter when she reported being in another altercation.
In August 2010, the juvenile court granted a supplemental petition (§ 387) filed by the department for a more restrictive placement and formally removed the children from mother’s custody. By this point, mother was “in custody for some serious charges with an unknown release date, and based on [her] own testimony, continue[d] to suffer from a horrible substance abuse addiction.” The court also terminated services for mother and set a section 366.26 hearing to select and implement a permanent plan for the children. The court further limited visitation to twice-monthly supervised visits.
In advance of the permanency planning hearing, a department social worker prepared a “366.26 WIC Report, ” recommending that the court find the children likely to be adopted and order termination of parental rights. The children had resumed living with their former foster parents, whom the department had identified as the children’s prospective adoptive parents. Mother by this point was apparently incarcerated in state prison.
Under the heading “History of Contacts Between Child and Family, ” the report explained that while the case was in the assessment/adoption unit, mother was incarcerated in the county jail and her visits with the children occurred through a glass window. Mother and her son “did a lot of engaging.” For example, she asked the boy to sing along with her, had him repeat the alphabet and numbers, and complimented him. She also told him that she loved and missed him and the child reciprocated. During the visits, he remained calm and pleasant, as well as appeared to be in a good mood as he smiled and laughed with mother.
The daughter was too young to stay focused for a long time. Mother attempted to get her attention by calling her name, tapping on the glass window, and singing to her. For the most part, the daughter looked and walked around. She appeared bored but did not cry. She kept herself busy for the entirety of the visits.
At the permanency planning hearing, the department submitted the matter on its report. Mother took the witness stand to voice her objection to the department’s recommendation. She disagreed with adoption as a permanent plan because “those are my children.”
According to mother, her son lived with her for about three and a half years, while her daughter was only with her for six months. During the time the children lived with her, she was their primary care provider and they were happy with her. They also showed her affection by kissing and hugging her. Her son always told her that he loved her. Her daughter could not talk, except to say “Mommy, ” but would crawl around the house looking for her (mother).
During visits when the children were out of her care, they would greet mother with a smile. Her son would kiss her and her daughter “would be happy.” Mother would play and sing songs with them.
During some visits through the glass, mother’s son “looked real sad.” He seemed upset because he could not touch mother. However, during some visits, he could touch mother and would stay by her side. He also kissed and hugged mother and told her that he loved and missed her. Mother’s daughter would “be happy.”
Asked how it would benefit the children for her to continue her relationship with them, mother replied the children would know that she fought for them and they would be happier. She also believed they would be safer and that every child needed his or her mother.
Mother also testified she was currently in custody with the Department of Corrections [and Rehabilitation] for robbery and had not received a tentative release date. She claimed she received a two year term and had to serve 85 percent of that term.
Mother’s attorney closed by arguing it was her client’s position that there was a very strong bond and relationship between her and the children. Mother asked the court to recollect that it had found it was in the children’s best interest to attempt reunification even though mother met statutory criteria for a denial of services. The attorney claimed that was because of the strength and nature of the relationship. The attorney also cited mother’s testimony and the department’s “.26 report” as proof of a good relationship with good quality visits. In mother’s view, that relationship outweighed the benefits of an adoptive home.
The juvenile court found a clear and convincing showing that the children would be adopted and adoption was the appropriate permanent plan. Although there was evidence mother maintained contact and visitation with the children, she had not shown termination of parental rights would be detrimental due to a strong parent/child relationship or that the children would benefit by continuing that relationship. The court also observed mother had not shown she had the ability to meet the children’s current needs or provide for their future stability, structure and permanence. The court in turn terminated parental rights.
DISCUSSION
Mother contends the primary basis upon which the juvenile court found the beneficial parent-child relationship exception to termination did not apply was because she had not shown she had the ability to meet the children’s current needs or provide for their future stability. According to mother, the court abused its discretion because it was improper to consider her inability to immediately assume custody of the children. (In re Amber M. (2002) 103 Cal.App.4th 681, 690.) She further argues the evidence established the children had a true parent/child bond with her and they benefited “more than just a little” from their relationships with her so that the court was compelled to find termination would be detrimental. We disagree with each of mother’s contentions.
Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child’s best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) It is the parent’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
“the parent-child relationship [must] 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [(Autumn H.)].) A juvenile court must therefore: ‘balance... 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.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother’s argument.
There was evidence of consistent, as well as friendly and loving, visits between mother and at least her son. However, because contact between parent and child generally confers some benefit on a child, a parent must demonstrate more than pleasant visits or frequent and loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) Here, mother produced no evidence that severing the parent/child relationship would deprive either child of a substantial, positive emotional attachment such that either of them would be greatly harmed. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
To the extent mother claims the juvenile court relied on an improper factor in rejecting her argument, we are not persuaded. First, the juvenile court’s reasoning is not, however, a matter for this court’s review. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Nat’l Trust & Sav. Asso. (1932) 123 Cal.App. 564, 567.)
In any event, mother misstates the record with her claim that the primary basis for the court’s decision was her failure to show an ability to meet the children’s current needs or provide for their future stability. The juvenile court did mention the lack of proof in this regard. However, it also concluded mother had not shown termination of parental rights would be detrimental due to a strong parent/child relationship or that the children would benefit by continuing that relationship.
Furthermore, we do not interpret the court’s remarks in the same manner that mother does. She assumes the court meant she was unable to currently assume custody, which would be an improper factor to consider under In re Amber M., supra, 103 Cal.App.4th at page 690. However, the court’s statement was that mother had not shown she had the ability to meet the children’s current needs or provide for their future stability, structure and permanence. We infer from this remark that the court was focused, as it should be at this stage of the proceedings, on the children’s needs for permanence and stability (In re Marilyn H. (1993) 5 Cal.4th 295, 309) and concluded mother had not shown she could meet those needs by continuing to visit with them.
To the extent mother also contends the children had a true parent/child bond with her and they benefited “more than just a little” from their relationships with her so that the court was compelled to find termination would be detrimental, we offer these observations. First, in claiming a true parent/child bond mother relies on her interpretation of evidence about her relationship with the children at earlier stages of the proceedings. However, that evidence, albeit in the appellate record, was not part of the evidence the parties submitted to the juvenile court at the permanency planning hearing. At best, mother’s trial counsel asked the court to recollect that in 2009 it had found it was in the children’s best interest to attempt reunification even though mother met statutory criteria for a denial of services. However, had the juvenile court had the benefit of the express finding it made in granting mother reunification services, it would have observed that it never spoke of or found a parent/child bond. Rather, the juvenile court, in 2009, noted mother’s consistent visits, appropriate behavior, and the fact that the children had a relationship with her. Notably, it also cited a change in mother’s attitude and her commitment to complete treatment in finding services were in the children’s best interest.
Second, mother’s claim that the children benefited “more than just a little” from their relationships with her appears based on language from a Fourth Appellate District opinion, In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), which concluded a father had established the existence of a significant, positive, emotional attachment between him and his daughter and the daughter would be greatly harmed by termination. (Id. at p. 298.) In its analysis, the appellate court stated the daughter derived “some measure of benefit” from her visits with her father. (Id. at pp. 300-301.)
As the Fourth Appellate District subsequently observed, this quoted phrase from S.B. has proved to be problematic and should not be used to diminish the otherwise heavy burden a parent must meet under Autumn H. in establishing the parent/child beneficial relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549, 558; In re Jason J. (2009) 175 Cal.App.4th 922, 937.) The S.B. opinion does not support 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 C.F., supra, at p. 558; In re Jason J., supra, at p. 937.) Instead, S.B. is confined to its extraordinary facts: the father maintained regular, consistent and appropriate visitation with the child; he was the child's primary caretaker for three years; when she was removed from his custody he immediately acknowledged his drug use was untenable, started services, maintained his sobriety, sought medical and psychoanalytic services and complied with every aspect of his case plan; and after a year apart, the child continued to display a strong attachment to her father and wanted their relationship to continue. (In re C.F., supra, at p. 558.) The facts in this case bear little, if any resemblance.
Having rejected mother’s specific arguments as meritless and having found no evidence to compel a detriment finding in her favor, we conclude the juvenile court did not abuse its discretion by rejecting mother’s claim and terminating parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
DISPOSITION
The order terminating parental rights is affirmed.