Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. CK58073, Robert L. Stevenson, Juvenile Court Referee, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Senior Associate County Counsel, for Plaintiff and Respondent.
SUZUKAWA, J.
Kimberly F. (Mother) and Tony L. (Father) are the parents of L. N. (born in July 2002). Mother appeals from the orders entered at the conclusion of a Welfare and Institutions Code section 366.26 hearing which resulted in the termination of her parental rights. She contends that the juvenile court erred when it failed to apply the section 366.26, subdivision (c)(1)(B)(i) contact and benefit exception. We affirm the orders of the juvenile court.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When L. N. was born, Mother and Father moved into the home of his paternal grandmother, Mary L. When L. N. was four months old, Mother and Father moved out, leaving L. N. with Mary L. On February 17, 2005, when L. N. was two years old, the Department of Children and Family Services (Department) filed a petition pursuant to section 300, subdivisions (a), (b), and (g). The petition alleged that Mother and Father had exposed L. N. to domestic violence, Mother had used illicit drugs, Mother’s location was unknown, and Mother and Father had abandoned L. N. and left him in the care of Mary L.
A social worker’s report dated May 12, 2005, stated that Father was homeless and Mother was enrolled in an in-patient program at the Salvation Army. The report also revealed that Father had a violent criminal history, which included convictions for inflicting corporal injury on a spouse or cohabitant, willful cruelty to a child, and several drug-related offenses.
At the July 5, 2005 dispositional hearing, Mother waived her right to a hearing, and the court sustained allegations relating to Mother’s drug usage and L. N.’s exposure to domestic violence. Mother was ordered to complete domestic counseling and a parent education program. She was also required to attend a drug rehabilitation program and undergo random drug testing.
At the six-month review hearing on December 7, 2005, the Department reported that Mother had completed parenting classes, domestic violence treatment, substance abuse treatment, and random drug testing. She also had regular monitored visits with L. N.
At the April 17, 2006 12-month review hearing, the Department reported that both parents continued regular weekly visitation. Mother and Father had a domestic violence incident which resulted in Father’s arrest, but they continued to cohabit after Mother spent three weeks in a shelter. A contested hearing was set with regard to that incident, and the court ordered that reunification services be continued.
At the 18-month review hearing in September 2006, the Department reported that both parents had weekly visits. However, during the period that reunification services were provided, there were no overnight visits because Mother and Father would argue in front of L. N. and upset him. Mother consistently failed to provide drug tests and had mood swings that suggested substance abuse. She had several incidents where she exhibited “explosive behavior” when dealing with the social workers, such that the Department believed a psychological examination should be conducted if reunification services were continued by the court. Mother admitted her living situation was not stable, and the Department reported “the family continues to have unresolved conflict.” The court terminated reunification services for the parents and set the matter for a section 366.26 hearing.
According to the social workers’ reports prepared for the section 366.26 hearing, Mary L. “has done an excellent job in caring for [L. N.]” and “serves as a good role model.” L. N. appeared very well adjusted, was developmentally “on target,” and was attending preschool. She “has proven that she can meet . . . the child’s needs as she has provided for him since he was four months old.” Mary L.’s home was approved as an appropriate adoptive home for L. N. The Department recommended that parental rights be terminated and that Mary L. be named the adoptive parent.
On the other hand, the reports stated that the parents continued “to have domestic abuse problems and were requested to move from [their home].” The Department noted that the “[p]arents are confrontational with each other and others connected with this case.” “Mother has not tested [for drugs] on a consistent basis and has not followed court orders to test consecutively for four straight tests” during the period from February 2006 to July 2006.
At the January 30, 2008 hearing, both Mother and Father testified. Mother testified that she lived around the corner from Mary L. and L. N. and she had visited him at least three times a week for the past three years. She helped him with his homework, played with him, talked to him, and helped him ride his bike for about three hours. She said he calls her three or four times a day and she did not have a problem with disciplining him. She knew his teacher and room number at school. She sometimes prepared food for him but did not have the opportunity to put him to bed because her visits were during the day.
Father testified that he lived with Mother and had taken L. N. to school with Mary L. four times a week for the last six months. They played together and L. N. enjoyed the visits.
The parents contended that they had maintained regular visitation and the positive bond between L. N. and them was sufficient for the court to apply the exception set forth in section 366.26, subdivision (c)(1)(B)(i) and to not terminate their parental rights. While the Department’s attorney was arguing that the parents had failed to demonstrate it would be detrimental to terminate parental rights, Mother became angry and began cursing. The court asked that she be removed. The Department asked the court to terminate parental rights and allow L. N. to be adopted by Mary L.
In ruling, the court stated, inter alia, “To me, Mom and Dad have established the following, that they haven’t had the child in their care since the child was approximately . . . four months of age. Child has been in the care of his present care provider most of the child’s life, no. 1. No. 2, Father and Mother have had monitored visitation when they had visited during this period of time with the child. They have never really had the opportunity to take the child in and provide as a parent would for this child. They have demonstrated to me that they visited, they played with the child, they rode bicycles with the child, helped with homework — or Mother has helped with homework, helped prepare food every once in a while, played video games. I mean, these are actions more like a relative or, perhaps, a friend to this child. These are not the kinds of activities where a real development of a parental role of a bond is developed between the child and a biological parent[,] parents. Unfortunately, they may be the biological parents, but they haven’t had the ability because of this case and the stature of this case, as far as the child not being in the home for a long period of time, to develop this bond that is necessary. And I think I need to find a compelling reason for determining that termination would be detrimental to the child and the termination of parental rights. And I could use the [section 366.26, subdivision] (c)(1)(B) exception to do that. It is your burden to show, parents, that that exists. I don’t think you have shown that. I think the case law which you have shown is that there has been more of a — I think the child may know you are the biological parents, but the real emotional bond is with [Mary L.] who has taken care of this child most of his life. And, you know, there has been no unmonitored visitation during this entire time in the child’s life. And I think that it’s unfortunate, but, at this point in time, there hasn’t been a bond that is sufficient. There has been some regular visitation but not sufficient whereby the child would benefit to continue that relationship. So I don’t believe it has been shown that it would be detrimental to the child for me to terminate parental rights. . . . I find by clear and convincing evidence that L. N. is adoptable. I further find that it would be detrimental to the child to be returned to the parents.”
Mother appealed, contending that the regular contact and visitation resulted in a strong parental bond and that severing their relationship would deprive L. N. of substantial positive emotional attachment.
DISCUSSION
Pursuant to section 366.26, subdivision (c)(1), once the juvenile court determines a child is adoptable, it shall terminate parental rights and order the child placed for adoption unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child. One such circumstance is set forth in section 366.26, subdivision (c)(1)(B)(i). The court is not required to terminate parental rights if it finds that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
It is the parent’s burden to show that termination would be detrimental. (In re Erik P. (2002) 104 Cal.App.4th 395, 401.) “To meet the burden of proof for the section 366.26, subdivision (c)(1)(A) exception, the parent must show more than frequent and loving contact or pleasant visits. [Citation.] . . . The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.)
The juvenile court must consider many variables, including the child’s age, the length of time the child was in parental custody and in foster care, and the effect of interaction between parent and child and the child’s particular needs. (In re Angel B. (2002) 97 Cal.App.4th 454, 467, In re Zachary G. (1999) 77 Cal.App.4th 799, 810-811.) The court must then balance the strength and quality of the parent-child relationship against the security and sense of belonging that a stable family would confer on a child. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
“If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings.” (In re Megan S. (2002) 104 Cal.App.4th 247, 250.) The appellant has the burden of showing the order is not supported by substantial evidence. (Id. at p. 251.)
There is no question that Mother consistently visited her child during the time he lived with Mary L. However, for the most part the visits were monitored. Moreover, because of Mother’s abusive relationship with Father, overnight visits were not possible. We acknowledge there was frequent telephone contact between Mother and L. N., they often played together, and she helped him with his homework.
The problem is Mother cannot show that her son would benefit from a continuation of their parent-child relationship. Mary L. has provided L. N. with a safe and stable home since he was four months old. He was five years old at the time of the section 366.26 hearing. She took care of his every need. L. N. thrived in her home and was extremely bonded with his grandmother.
In contrast, the evidence established that Mother was having great difficulty managing her own affairs. She was still in an abusive relationship with Father, with whom she insisted on living with despite the negative impact their fighting had on their son. Her failure to consistently drug test and her mood swings suggested that she was possibly using illicit drugs, and she continued to have issues with anger management. Most telling is her admission at the section 366.22 hearing that notwithstanding 18 months of reunification services, she was unable to ask for L. N. to be returned to her home. Mother is simply unable to provide L. N. with a peaceful and nurturing home environment.
Mother argues she submitted sufficient evidence to show that she has a substantial and beneficial relationship with her child which must not be severed. The question, however, is whether there is substantial evidence to support the juvenile court’s contrary view. We conclude that there is. The court accurately characterized the nature of Mother’s relationship with L. N. as one shared by friends or relatives. It correctly found that the parent-child bond was between L. N. and Mary L. when it declined to find that the exception to the rule of adoption applied in this case.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.