Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV15871
Dondero, J.
We conclude in this appeal that the juvenile court did not err by ordering adoption as the permanent plan for the minor daughter of the mother. We therefore affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The present proceeding commenced in December of 2008, when the minor, Karina, who was then two years old, was taken into protective custody following the mother’s detention in her vehicle and subsequent arrest for possession of a controlled substance, driving on a suspended license, and possible child endangerment charges for transporting the minor without proper safety restraints. A search of the vehicle when the mother was detained resulted in discovery of methamphetamine and a sharp, exposed razor blade on a seat next to the minor. The mother was then on parole for prior theft and false impersonation convictions. After her arrest she was incarcerated in Napa County jail.
She had been released from state prison in September of 2007.
Twelve days earlier, the mother had given birth to Karina’s half sister Mia. The Department received reports that the mother tested positive for amphetamines during her pregnancy with Mia, and committed additional violations of her parole for possession of methamphetamine.
A dependency petition was filed pursuant to Welfare and Institutions Code section 300, subdivisions (b), (g), and (j) on January 5, 2009. By the date of a detention hearing three days later, the mother had been released from custody. The Department recommended return of Karina to the mother for appropriate family maintenance services, and dismissed the petition.
All further statutory references are to the Welfare and Institutions Code. The Department attempted to locate and notify the minor’s father of the dependency action, but determined that he had been deported in April of 2008. Efforts to locate him were ultimately successfully, but he never appeared in this action. His parental rights were terminated and he has not filed an appeal.
By January 14, 2009, the Department learned from a probation officer that the mother tested positive for methamphetamine, and fled when she was “given information that she would be incarcerated.” A warrant for her arrest was issued. When the Department learned that Karina had been taken to the home of the mother’s friend, a protective custody warrant for the minor was requested. The minor was located at the mother’s friend’s home on January 16, 2009. She was taken into protective custody and detained by the Department. The mother’s whereabouts continued to be unknown until January 27, 2009, when she was remanded to the custody of the Napa County Department of Corrections.
An amended petition was filed by the Department. Following a detention hearing, in accordance with the recommendation of the Department the juvenile court sustained the petition, detained the minor and ordered that the mother receive reunification services.
At subsequent jurisdictional and dispositional hearings, the department submitted reports that revealed the mother’s intermittent and continued incarceration, numerous prior arrests, convictions, probation and parole violations, her protracted history of substance abuse, and complete failure to undertake any efforts to alleviate the causes that necessitated detention and placement. During the mother’s incarceration she and Karina were not engaged in visitation.
In fact, Karina was born while the mother was incarcerated, and the minor was raised exclusively by her maternal grandmother “for the first three months of her life” until the mother was released from custody and transferred to a residential treatment facility.
At the conclusion of the dispositional hearing on February 24, 2009, the court adopted the social worker’s recommendations and ordered removal of the minor from the mother’s custody, and placement of her in foster care under the supervision of the Department. The mother was ordered to comply with reunification services, which included meetings with the social worker, completion of parenting classes, continued participation in counseling and therapy as directed by the social worker, participation in psychiatric care and the Substance Abuse Management Recovery System (SARMS), and random drug testing. A special advocate was appointed for Karina. Supervised visitation between the mother and Karina at least twice per week was ordered.
After the mother was released from custody, she stayed briefly with Miguel G., the father of Karina’s half sister Mia, at his home in Napa, California, then enrolled in the Walden House residential drug and alcohol treatment program in May of 2009. The Department filed a petition pursuant to section 388 for modification of the visitation order to grant twice weekly unsupervised visitation. The petition noted that the mother had remained clean and sober, participated in a residential drug and alcohol treatment program, complied with the conditions of her parole, and consistently engaged in appropriate supervised visitation with the minor. The petition was granted, and thereafter while the mother resided in the Harbor House clean and sober transitional housing facility, she and Karina engaged in unsupervised visitation which was expanded to include weekend visits. The status review report noted that the minor sometimes became sad and tearful following visits, which indicated her connection with her mother.
On July 21, 2009, the mother voluntarily terminated her enrollment in the Harbor House program due to her failure to comply with curfew guidelines and “things going on over there.” She again began residing with Miguel G. at his home in Napa, California that had a “long history of law enforcement contacts.” Miguel G. was participating in a drug and alcohol treatment program, and purportedly making “good progress” with his recovery. Miguel G.’s brother, Jesus, who had an extensive criminal record of assaults, drug offenses, and domestic violence, also reportedly lived in the residence, but according to the mother he “moved out of the home” and only visited sporadically. Karina continued to reside in her licensed foster home. She attended preschool, and appeared “to be thriving and doing well in her placement.”
On November 25, 2009, the Department filed a section 388 petition to modify the nature of visitation from unsupervised to supervised. The petition asserted that Jesus G. was again residing in the house occupied by the mother and Karina. The Department also received information that Karina was “screaming” and “having night terrors” related to “fighting” between the mother and Miguel G. A drug test the day before the petition was filed indicated the mother tested positive for “amphetamines and methamphetamines.” The same day, the mother also left the G. residence with Karina without advising the social worker. The juvenile court granted the modification petition following a hearing on December 8, 2009, and ordered supervised visitation.
Additional reports were submitted to the court by the Department for consideration at the 12-month review hearing on February 10, 2010. The reports revealed that the mother not only tested positive for drugs on November12, 2009, but also failed to appear for drug tests on two other occasions in December of 2009. The mother had moved back into the residence with Miguel G. She admitted that, contrary to her previous representations, Jesus G. continued to reside in “the [G.] home” for the “entire time” she and Karina lived there. In December of 2009, the G. residence was identified by local law enforcement agencies as a notorious site for drug sales and gang activity. The mother was named in an anonymous report as one of the persons engaged in drug dealing at the home. She acknowledged that drug sales and domestic violence occurred in the home. The mother was arrested for possession of drug paraphernalia on December 30, 2009, and admitted she had smoked methamphetamine earlier that day. She also failed to attend all of her scheduled psychiatric therapy appointments or participate as directed in the required 12-Step drug treatment program. The mother complained to the social worker that she did not perceive any benefit from the 12-Step program, and did “not want to attend the meetings.”
She submitted at least one false 12-Step “Verification of Attendance” form to the Department.
The reports noted that the mother missed a few scheduled visits, to the dismay of Karina, but generally complied with visitation directives, and was appropriate in her interaction with the minor. Karina reportedly enjoyed the visits with her mother and was sad when they concluded.
The Department recommended termination of reunification services and referral of Karina for a permanent plan of adoption. Karina was “found to be adoptable.” On February 10, 2010, the juvenile court terminated reunification services to the mother and set the case for a section 366.26 hearing.
Before the section 366.26 hearing occurred, the mother sought a modification of the order that terminated reunification services on the stated grounds that she was “clean and sober, ” renounced drugs and alcohol, and moved into the Rainbow House sober living program with her other daughter Mia. The mother represented that she was regularly attending drug counseling meetings and individual therapy sessions. She also asserted that her twice weekly drug tests “have been clean.”
Before a hearing on the mother’s section 388 petition, however, she tested positive for drugs on two occasions in April and May of 2010. She was also observed with bruises on her body, the result of a “new relationship involving domestic violence.” On May 25, 2010, she was arrested for possession of stolen property, theft of an access card, possession of drug paraphernalia, and violation of probation. Her section 388 petition was denied.
The case proceeded to the contested section 366.26 hearing on July 8, 2010. The Department recognized the mother’s affection for Karina and the history of positive, consistent visitation, but articulated that Karina did not “have separation issues after her visits” and had “formed an attachment to her foster family” where she had been placed since May of 2009. The foster family was “committed” to Karina and “expressed a desire to adopt” her. The Department’s social worker, the California Department of Social Services, Karina’s special advocate, and her attorney agreed that the minor’s need for permanence and stability outweighed the benefit of continued contact with her mother, and recommended a plan of adoption.
The mother was still in custody when the hearing was conducted.
At the conclusion of the section 366.36 hearing the juvenile court found that Karina was likely to be adopted and termination of parental rights would not be detrimental to her. The mother’s parental rights were terminated and a permanent plan of adoption was ordered. This appeal followed.
DISCUSSION
The mother claims that the juvenile court erred by failing to find that the “exception to adoptability” specified in section 366.26, subdivision (c)(1)(B)(i), based on her bond with Karina, “outweighed the overstated benefits” of adoption. The mother submits that she demonstrated “a parental role in Karina’s life, resulting in significant, positive, emotional attachment, developed through regular visits and contact, the termination of which will greatly harm Karina.” She argues that the court erroneously focused on her “personal failings during the reunification period, ” and ignored the “harm Karina would experience from the loss” of an emotional relationship with her mother. The mother maintains that she “met both prongs of the subdivision (c)(1)(B)(i) exception to adoptability.” She asks us to “reverse the termination of her parental rights, and... remand with orders to pursue a permanent plan other than adoption.”
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child.’ ” (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) Where, as here, “reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds terminating parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)–(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401 [127 Cal.Rptr.2d 922]; In re Derek W. (1999) 73 Cal.App.4th 823, 826 [86 Cal.Rptr.2d 739].)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
“Once reunification services are ordered terminated, the focus shifts to the needs of dependent children for permanency and stability. [Citation.] A section 366.26 hearing is designed to protect these children’s compelling rights to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child. [Citation.] If, as in this case, the children are likely to be adopted, adoption is the norm. Further, the court must terminate parental rights and order adoption, unless one of the specified circumstances in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. [Citation.] ‘The specified statutory circumstances — actually, exceptions to the general rule that the court must choose adoption where possible — “must be considered in view of the legislative preference for adoption when reunification efforts have failed.” [Citation.] At this stage of the dependency proceedings, “it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.” [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citations], to choose an option other than the norm, which remains adoption.’ [Citation.]” (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) A single statutory exception is implicated in the present case: “where a parent has maintained regular visitation and contact with a child who would benefit from continuing that relationship (§ 366.26, subd. (c)(1)(B)(i)).” (Id. at p. 1324.)
I. The Standard of Review.
Our review of the juvenile court’s finding is quite constrained and includes elements of both substantial evidence standard of review and abuse of discretion standard standards. “With respect to challenged factual findings, we will affirm ‘if there is any substantial evidence to support the trial court’s findings, ’ i.e., ‘if the evidence is reasonable, credible and of solid value – such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence.’ [Citations.]” (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.) “Although a trial court must make such findings based on clear and convincing evidence [citation], this standard of proof ‘ “is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.” ’ [Citation.] Under the substantial evidence standard of review, ‘ “[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment.” ’ [Citation.]” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010–1011, fn. omitted; see also In re Amy A. (2005) 132 Cal.App.4th 63, 67.)
Also, the decision to terminate parental rights lies in the first instance within the discretion of the trial court, “and will not be disturbed on appeal absent an abuse of that discretion. [Citation.] While the abuse of discretion standard gives the court substantial latitude, ‘[t]he scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” ’ [Citation.] ‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citation.]” (In re Baby Girl M., supra, 135 Cal.App.4th 1528, 1536.) “ ‘ “ ‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” [Citations.]’ [Citation.] The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court.” (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
II. The Beneficial Parental Relationship Exception.
The exception stated in section 366.26, subdivision (c)(1)(B)(i)), is recognized where the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (See also Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 339–340; In re S.B. (2008) 164 Cal.App.4th 289, 297.) “The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80–81; see also In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) The language “ ‘ “benefit from continuing the... relationship” ’ ” has been interpreted “to mean ‘the relationship 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 S.B., supra, at p. 297, quoting from In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
To determine if the beneficial parental relationship exception applies, “ ‘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.’ [Citation.]” (In re S.B., supra, 164 Cal.App.4th 289, 297.) “[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan.” (In re Dakota H., supra, 132 Cal.App.4th 212, 229.) “No one factor controls the court’s analysis. It is a balancing test.” (Id. at p. 231.)
While we have no dispute with the mother’s contention that she maintained both regular visitation and a favorable, loving bond with her daughter, that does not suffice to establish the parental relationship exception under section 366.26, subdivision (c)(1)(B)(i)). “[I]nteraction between parent and child will always confer some incidental benefit to the child. [Citation.] To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent.” (In re Dakota H., supra, 132 Cal.App.4th 212, 229; see also In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
We agree with the juvenile court that the minor’s relationship with her mother was outweighed by the need for the stability, security and benefit provided by her prospective adoptive home. We acknowledge that the mother maintained a loving bond with the minor that seems to have endured and is illustrated by their relationship during visitation. Visits were appropriate, and the mother’s love for Karina was recognized, as was her “skill set to parent” the minor. The juvenile court did not overlook or discount the relationship, as the mother seems to suggest. The court observed that Karina “likes to be with her mother” during visitation and “when they were together, they had a good time.” Instead, the court determined that the mother did not occupy a parental role in the child’s life that resulted in a significant, positive emotional attachment of the child to the parent. We think the court’s finding is supported by substantial evidence. Karina had been separated from her mother for an appreciable part of her life, often when the mother was incarcerated. Visitation was consistent, but, as the juvenile court noted at the section 366.36 hearing, it was not substantial – 20 hours over the last four months. The reports also indicated that Karina “is comfortable leaving after visits are over and there are no separation anxiety issues.” The Department’s social worker and the state adoptions worker indicated that Karina’s relationship with her mother considerably changed over time and was no longer a significant, positive emotional attachment of the child to the parent.
Of even greater significance to us is the persuasiveness of the evidence that any benefit from continuing the relationship would not outweigh the well-being the child would gain in a permanent home with new, adoptive parents. Although the mother continued to visit and maintained a bond with the minor, she did not effectively address the issues related to her chronic drug abuse and failure to maintain a safe, stable home for Karina. Despite the bond between the mother and Karina, the seriousness of the dysfunction that resulted in the current dependency, coupled with the unmitigated history of her criminal behavior, the intermittent incarcerations, and her failure to gain control of her life or resolve her drug abuse, provides ample support for the finding that the minor’s need for permanence and stability outweighed the benefit of continued contact with her mother.
The mother ardently suggests the history of her inappropriate parenting, drug addiction and criminal behavior, along with Karina’s “alleged bond with her foster parents, ” are “entirely irrelevant” to the parental bonding exception and were inappropriately considered by the juvenile court. While those factors may not reflect specifically upon the scope and nature of the bond between parent and child, they are indisputably pertinent to the issue of whether the beneficial parent-child relationship outweighs the well-being the child would gain in a permanent home with new, adoptive parents. The mother’s current lack of fitness to care for the minor as well as her dismal history of parenting militate in favor of a finding that the minor’s best interests are not served by maintaining the parent-child relationship. We find no abuse of discretion in the juvenile court’s determination that adoption is the proper permanent plan for a minor. (In re Dakota H., supra, 132 Cal.App.4th 212, 231.)
Accordingly, the judgment is affirmed.
We concur: Margulies, Acting P. J., Banke, J.