Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 53002328 & 53002329
BLEASE , J.
Mother, Laura C., appeals from the order terminating her parental rights for her daughter, K.C. Her sole contention on appeal is that the trial court erred in selecting adoption as the permanent plan for K.C. because the parental bond exception applied. We shall affirm.
The father was a party below but did not appeal the adverse determination.
K.C.’s younger brother, G.B., was also declared a dependent in these proceedings and mother’s parental rights as to him were also terminated. Mother, however, does not contest the order selecting adoption as the permanent plan for G.B.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 24, 2006, mother was arrested pursuant to two felony warrants on charges of burglary and transportation and sale of controlled substances. Seven-year-old K.C. and her one-year-old brother, G.B., were placed in protective custody. The home was very messy and a used hypodermic needle was found in a purse on the couch, easily accessible to the children.
Because this appeal relates only to K.C., not G.B., the facts relevant to K.C. are related here.
A Welfare & Institutions Code section 300 petition was filed on November 28, 2006. The petition alleged mother had a history of substance abuse, had been arrested on two felony warrants and was unable to provide care for the children, the home was unsanitary and unsafe, and mother’s parental rights had been terminated as to two of K.C.’s half siblings.
Further undesignated statutory references are to the Welfare and Institutions Code.
Mother had a long history of substance abuse and violent relationships. She also had a total of 11 referrals to Child Protective Services. Mother had previously received services in Santa Clara and Sacramento as to two other children, K.C.’s half siblings, due to substance abuse issues. Her parental rights were terminated and those two children were adopted.
Mother was enrolled in a Proposition 36 program, but was not doing well. G.B.’s father was also incarcerated.
The children were ordered detained. The parents waived visits while they were in custody, but reasonable supervised phone contact was permitted.
K.C. was temporarily placed with her maternal grandmother and G.B. was placed with his paternal aunt and uncle. It was planned that K.C. would be moved to live with her half siblings in the home of their prospective adoptive family at the beginning of the year. K.C. was interviewed on December 18, 2006. She described smoking devices consistent with a marijuana bong or pipe, and could distinguish between the smell of cigarette smoke and marijuana smoke. She reported she tried to care for G.B. and worried about her mother. She claimed mother “is not safe when I’m not with her. When I’m not with her, she gets in trouble and stuff.”
Mother reported she began using cocaine and methamphetamine “in her 20’s” and last used in 1998. She admitted, however, that she had “relapsed ‘for a minute’” on methamphetamine just prior to beginning her Proposition 36 program. Otherwise, she reported she had been clean and sober since about 2001. Mother had been in three prior treatment programs over the years.
Mother had two older children who were adopted by the prospective adoptive family. Because she “wasn’t doing well,” mother voluntarily placed K.C. with that family for 14 months, from approximately March 2004 to May 2005. K.C. also lived with her grandmother in 2006 because of mother’s illness and at other times when “mom was in trouble.”
Following a contested jurisdictional/dispositional hearing, the children were judged dependents and continued in their placements. The parents were granted reunification services.
By the time of the six-month review hearing on July 25, 2007, mother had been out of custody for approximately three months. She had found a job and had met with her social worker regarding her reunification plan. Mother had participated in substance abuse prevention services in jail, and claimed to be drug testing as per her plan. She was attending AA once a week. Mother had been referred to a variety of other services, but had not yet participated in them. She reported that she had cleared her work schedule to allow her to participate in services.
The parents were visiting the children weekly. The visits were positive and the children looked forward to seeing their parents.
K.C. was doing well in her maternal grandmother’s home, but she lived in a senior community which did not allow children. Thus, alternate arrangements had to be made for K.C. The plan was to have K.C. move to the prospective adoptive family home with her half siblings in Santa Clara. Because of her earlier time living there, K.C. was well bonded to her older half siblings and to the prospective adoptive family.
On August 28, 2007, the social worker reported that because the prospective adoptive family lived out of the county and could not facilitate visitation, they decided they could not provide foster care for K.C. while she was still in reunification. However, they viewed K.C. as a family member and if reunification were to fail, they were available to provide a home for K.C. K.C. was placed in a foster home in Lincoln on September 30, 2007. G.B. had been moved to his paternal grandmother’s home one month earlier.
By this time, mother had been terminated from her dual diagnosis group for lack of attendance. She had been referred for services and had failed to contact the service provider for individual counseling, parenting classes or the dual diagnosis group. Mother had also not provided any drug tests since her release from custody in April.
On December 3, 2007, the social worker filed a section 388 petition for modification. The petition alleged that mother had not participated in family reunification services, had admitted she had relapsed with methamphetamine use, had submitted a positive drug test, had not shown up for scheduled counseling appointments and missed two scheduled visits with her children. The department was recommending reunification services be terminated.
On December 28, 2007, the social worker filed the 12-month status review report. Mother had reported suicidal ideation in October 2007 and admitted a suicide attempt in late November 2007. She agreed to a safety plan, but did not follow through on that plan, because she was arrested on burglary charges. On December 14, 2007, she was sentenced to four years and four months in prison.
K.C. was doing well in her foster home. She had “reduced dramatic behaviors” and was playing well with the other children in the home. Her grades were “decent,” except in math. She had struggled earlier with some of her school work, but had improved. Her overall physical health was good.
Mother had supervised visits with the children. The visits were positive and mother was generally appropriate. Mother had missed several visits, but K.C. and G.B. were able to visit with each other at those times. K.C. also had regular visits with her maternal grandmother and lengthy visits over holiday breaks and summer with the prospective adoptive family. K.C. was very bonded to the prospective family and to her siblings who were already adopted by them. The family were willing to adopt K.C. and G.B.
The section 388 hearing and the 12-month review hearing were scheduled to be heard together. Social services was also given permission to move K.C. out of county to place her with the prospective adoptive family.
On February 27, 2008, the court granted the section 388 petition and terminated reunification services. The children were continued in their placements, with G.B. in his paternal grandmother’s home and K.C. at the prospective adoptive family. The court found mother and father had not maintained regular visits with the children. The court also found it was likely that both children would be adopted. The matter was set for a section 366.26 hearing.
K.C. was doing quite well since moving in with the adoptive family. Her behavior had “settled down significantly.” She did miss her half brother G.B. very much and wished they could live together. The distance between their placements made visitation difficult. K.C. worried about G.B. and wanted to be reunited with him. The prospective adoptive family reported K.C. did not have any significant emotional problems. It was noted she would probably need therapy to assist her with “grief and loss related to her birth mother as well as the transition of her impending adoption” and that she would “definitely need therapeutic support if she is not reunited with [G.B.].” Mother visited the children two to three times per month between April and December of 2007. She was, however, frequently late to the visits and cancelled a number of visits. She was also frequently unable to attend visits because of her “repeated incarceration.” “Of the possible sixty nine visits, the mother only attended sixteen visits.... [S]he did not even begin visiting the minors until nearly five months after they were detained. Between the lapse in visitation at the beginning of the case and the lapse of visitation at the end due to her incarceration, the mother has not visited the minors for eleven of the total nineteen months of family reunification services....” Mother had telephone contact with K.C. approximately twice a month. Mother was appropriate, but the calls were short.
The social worker acknowledged there was a bond between K.C. and mother, and that K.C. wanted to return to live with her mother. However, she opined that K.C.’s desire was based more on an idealized vision of the way things could be than the circumstances which actually existed. She also noted that K.C. wanted to be adopted by the prospective adoptive family. She was happy living there and excited about being adopted by them. Future visits between K.C. and her mother would be available through a post-adoption mediation agreement. K.C. seemed most concerned about her brother G.B. also being adopted with her. The bond between the two children was very strong and well documented throughout the case. Although she missed G.B., K.C. was “flourishing” living with the prospective adoptive family and was very bonded with them.
The prospective adoptive family had maintained “consistent, positive contact” with Laura C. and her family after adopting K.C.’s half siblings. It was noted the families “have regular contact and are in essence extended family.”
Dr. Nelson conducted a psychological evaluation of K.C. on August 7, 2008. Dr. Nelson noted K.C. reported she was doing well in school. She “really misses” her mother and would be sad if she could not have another chance to live with her. K.C. also reported that her mother would leave her with other people so she could go to a casino, and she had to take care of her brother G.B. The prospective adoptive mother reported K.C. spoke with her mother two to three times a month, and the calls were often emotionally upsetting to K.C., sometimes resulting in her having an “emotional meltdown.” Dr. Nelson concluded that K.C. very much liked her prospective adoptive family and felt she was fitting in with them well. He also noted it was “obvious that [K.C.] maintains a strong emotional bond with her mother, which could potentially impact her adjustment to the adoption. Otherwise, [K.C.] seems to feel secure in her current placement.”
Mother testified at the section 366.26 hearing. Although she was currently incarcerated, she expected to be moved shortly to a 15-month program called El Dorado House which specialized in reunification programs for mothers upon their release from prison.
Mother testified since she had been moved to the Placer County Jail, she had talked to K.C. every day from August 22 to August 27 and approximately once a week during September. From December through March she had not been able to use the phone, and from March through August, she spoke to K.C. at least once a week. She also wrote letters once a week.
Mother believed she and K.C. had a “loving mother-daughter relationship” that was very deep. She reported that K.C. had repeatedly told mother she wanted them back together as a family. She presented pictures and letters K.C. had sent to her, where K.C. depicted them as a family and told mother how much she loved her. Mother claimed K.C. would benefit from continuing their relationship because she would be “extremely happy” and because she would be with her mother. She thought K.C. would be very angry and sad if the relationship was taken away, and that K.C. had threatened to run away if that happened.
Mother acknowledged she had previously been in a number of substance abuse treatment programs. She also acknowledged that the prospective adoptive family had maintained contact between her and her older adopted children.
Laura C.’s mother also testified at the hearing. She stated Laura had not been able to follow through with her aspirations to turn her life around, on a long-term basis. She had been successful for about nine months after K.C. was born and “then it fell apart again.” While she wanted to see her daughter raise her children, she also thought Laura needed to focus on herself. She thought a situation where Laura could maintain a relationship with the children, if she stayed clean and sober, but not be raising them, would be best. She also believed K.C. was getting too old to deal with the uncertainty of her living situation and K.C. was very happy living with the prospective adoptive family.
The court found the children adoptable. In examining the parental bond exception under section 366.26, subdivision (c)(1)(B)(i), the court noted it was obvious K.C. and mother loved each other very much. The court found mother had met the first prong of the exception, in that “[t]o the extent possible it appears... that you have maintained regular visits and contact with [K.C.] before and after your incarceration....” However, the court found K.C. needed stability in her life more than anything else. Balancing mother’s long history of substance abuse, all her prior services and treatment programs, and her continuing involvement in the criminal justice system, the court could not find a continuing relationship with mother outweighed the benefit to K.C. of a permanent home. The court also found it would be extremely detrimental to K.C. to place her back in mother’s care and have her detained in the future. Accordingly, the court terminated parental rights and found K.C. and G.B. likely to be adopted.
DISCUSSION
Mother’s sole contention on appeal is that the court erred in finding K.C. would not benefit from continuing her relationship with her mother. We disagree.
In order to select and implement adoption as the permanent plan, the juvenile court “must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.)
Under section 366.26, subdivision (c)(1)(B)(i), if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless the court determines that termination would be detrimental to the minor because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of establishing an exception to termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
“When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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 other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
“To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
We review the juvenile court’s ruling declining to find an exception to termination of parental rights for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “On review of the sufficiency of the evidence, we 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., supra, 27 Cal.App.4th at p. 576.)
Mother had to establish both that she had maintained consistent visitation and that there was a benefit to K.C. of a continued relationship which outweighed K.C.’s need for the permanence and stability of adoption. She did not meet this burden.
The court found mother had met the first prong of the exception in maintaining visitation and contact “to the extent possible....” Also, as the court found, there was evidence of a bond between K.C. and mother. But evidence of a bond between parent and child is not enough to overcome the presumption for adoption. It is not enough to simply demonstrate “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The “[i]nteraction between natural parent and child will always confer some incidental benefit to the child.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “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. [Citations.]” (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) The parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.)
We observe this finding is in direct contradiction to the court’s February 27, 2008, finding that mother had not maintained regular visits with the children.
While the record indicates the visits between mother and K.C. were positive, there is nothing to suggest the relationship is particularly parental. That is, there is nothing which demonstrates the kind of “significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) This, mother did not do.
At the time of the termination hearing, K.C. had been out of mother’s custody and care for almost two years. Also, when K.C. was approximately five and one-half years old, she lived out of mother’s custody and care for 14 months. Then again when K.C. was approximately six years old, she lived for a number of months with her grandmother. All in all, by the time of the termination hearing, K.C. had spent about one-third of her nine-year-old life living in someone else’s care and custody. Having a “pleasant and emotionally significant” relationship is not the same as the consistent daily nurturing that parenting requires. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) During the two years of these proceedings, mother has not parented K.C. nor has she provided K.C. with the daily nurturing of a parent.
Nor was there evidence that terminating the relationship would cause great harm to K.C. Although the court found that mother had maintained consistent visitation and contact, to the extent possible, the fact is that mother’s contact and visitation were severely limited. As the social worker noted, mother did not begin visiting K.C. until nearly five months after she was detained. She only attended 16 of a possible 69 visits with K.C. Mother did not visit with K.C. for 11 of the 19 months reunification services were provided. She had short telephone calls with K.C. twice a month. With this severely limited contact and relationship with mother, K.C. flourished. K.C. was very bonded with the prospective adoptive family and her half siblings. She had lived with them for 14 months before these proceedings. Throughout the proceedings, even before she moved in with them, she had lengthy visits with them. Her behavior improved and settled down upon moving in with the adoptive family. She was doing well in school and had no significant emotional problems. She was happy and well adjusted living with the family.
The kind of severely limited contact between K.C. and mother is not in the nature of a parental relationship. Thus, what the record shows is that mother has not occupied a parental role in relation to K.C. for a number of years. And, the record shows a child who has adjusted well to living without a parental relationship with her mother. While the record shows an “‘affectionate closeness’” with [K.C., that] does not equate to the type of ‘“benefit from a continuing relationship”’ contemplated by the statute. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.) Furthermore, the record establishes that the prospective adoptive family was committed to permitting continuing contact between mother and K.C. and they had demonstrated by their conduct with K.C.’s older half siblings that they would abide by that commitment. Thus, it is likely mother would be able to “maintain the same affectionate closeness should mother continue with her rehabilitation after the child’s adoption.” (Ibid.) On this record, there was not evidence that K.C. would suffer great detriment by terminating parental rights.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: SCOTLAND , P. J., ROBIE , J.