Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP017700, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
ARONSON, J.
C.J. (mother) appeals from an Orange County Juvenile Court order terminating parental rights to her now 5-year-old daughter, P.J. (See Welf. & Inst. Code, § 366.26; all further undesignated statutory references are to this Code.) Mother contends the juvenile court erred by not applying the benefit exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. As we explain, mother’s contention lacks merit, and we therefore affirm the juvenile court’s order.
I
FACTUAL AND PROCEDURAL BACKGROUND
We restate the factual and procedural background from our prior opinion (C.J. v. Superior Court; Orange County Social Services Agency (May 28, 2010, G043393) [nonpub. opn.]), which denied mother’s petition for extraordinary relief from the order scheduling a section 366.26 selection and implementation hearing for P.J. We also present a factual summary of events occurring after that order.
“On October 16, 2008, Fullerton police officers arrived at an apartment complex after receiving a property manager’s complaint that a ‘tenant, ’ Mr. D., had moved several women and children into apartment C-3 months earlier and then had disappeared. The women had been verbally harassing neighbors and begging for money. When asked about Mr. D., the women always claimed he was either on a business trip or on vacation. The landlord had initiated eviction proceedings because no one had paid rent since the women had moved into the apartment.
“The manager identified R., seated on stairs in front of building ‘C, ’ as one of the women in C-3. R. informed officers Mr. D. lived in the apartment, but was out of state on vacation, and that petitioner, her daughter, was inside the unit.
“The officer encountered mother in the hallway outside apartment C-3. She claimed Mr. D. was on a business trip. Through an open front door, the officer spotted a small boy, seven-year-old D.M., in the living room area. Mother denied anyone else was inside the apartment. She allowed the officers inside to discuss further the reason for the police inquiry.
“The one bedroom apartment was essentially barren; the only furniture was a dirty couch and a 12-inch television on the floor. The bedroom was empty except for three blankets on the floor. A foul odor permeated the air. Old food, urine stains, and garbage covered the filthy carpeting. The kitchen contained no refrigerator or fresh food, nor pots, pans, or eating utensils. A rotting tray of greasy meat sat atop the stove. Waste clogged a kitchen sink filled with stagnant water. Flies and gnats buzzed throughout the apartment. An open bottle of bleach sat perched on a kitchen counter, and several bottles of caustic cleaning chemicals were stored under the sink. Sharp knives, a razor, and other dangerous items were within reach of any children in the apartment. The officer observed open bags of bug-infested garbage piled up on an outside patio, near power tools equipped with sharp attachments.
“A cupboard contained some bread, canned ravioli, peanut butter and snack food.”
“Mother again denied anyone else was in the apartment. But one of the officers heard a sound coming from a hallway closet. He opened the door and found two young girls, three-year-old P.J., and four-year[-]old B.M., and a small dog sitting on a dirty blanket. According to a police report, the children ‘were in an overall unke[m]pt and very dirty condition. Their clothing was filthy, as was their skin and hair. Their teeth were unclean, and [D.M.] had numerous rotten teeth, several of which were blackened and rotted away to his blackened gums. All of the children produced an unpleasant odor, and had clearly been deprived of grooming and/or hygienic attention.’ The dog urinated on the carpet twice in the officer’s presence and the children played with the animal in the dampened area with no intervention from the adults. The children also played with the tools on the patio.
“Mother had no identification. She claimed she was born in Chicago and grew up in Southern California. She moved back to Chicago with her parents, but returned to California with her mother two months earlier. She and her family were gypsies and had lived all over the country. Unemployed, she and her mother relied on family for food money and denied begging or disturbing the neighbors. P.J. was her daughter and D.M. was her sister P.M.’s son, although she had ‘pretty much’ raised him and she had not seen P.M. in several weeks. D.M. had never been to school. The other young girl, B.M., was her cousin S.M.’s daughter. S.M. and her boyfriend had dropped B.M. off several hours earlier. She did not know when S.M. would return and had no way to contact her. Mother acknowledged living conditions in the apartment were bad for the children and stated she was doing the best she could under the circumstances.
“S.M. and M. arrived at the apartment during the investigation. M. said he was S.M.’s cousin. He was on parole with outstanding warrants. For over an hour, the pair denied B.M. was S.M.’s daughter. Advised a DNA test would be conducted, S.M. finally admitted she was B.M.’s mother. Based on the unsafe and unsanitary conditions in the apartment and the neglect of the children, the officers arrested the adults for child endangerment and delaying their investigation, and took the children into protective custody. P.J. was diagnosed with strabismus (cross-eye) and severe dental carries, which ultimately required dental surgery.
“Mother stated she did not use drugs or alcohol. She left school at an early age and was illiterate. She had never worked and the maternal grandfather supported her. Asked by a social worker what she needed to change to reunify with P.J., she replied ‘There’s nothing for me to change honey.’
“Orange County Social Services Agency (SSA) filed a petition alleging P.J. had suffered, or was at risk of suffering serious physical harm or illness resulting from her parents’ failure or inability to ‘adequately supervise or protect the child..., or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment....’ (§ 300, subd. (b).) Specifically, the petition alleged mother lived an unstable, transient lifestyle, her home was unsafe and unsanitary, she did not provide P.J. with adequate dental care, and failed to ensure proper hygiene.
“Mother initially refused to provide information concerning the identity and whereabouts of P.J.’s father. She claimed he left when she was pregnant with P.J. She later identified M.M. as the father. M.M. appeared in court November 18, 2008. The court appointed counsel and authorized funds for paternity testing, which confirmed he was P.J.’s biological father. The court found he was P.J.’s presumed father at the combined jurisdictional/dispositional hearing in January 2009. He discontinued contact with P.J. and SSA after a few visits and did not participate in the proceedings below.”
“SSA placed P.J. and D.M. with A.M., B.M.’s grandmother and caregiver. The court ordered monitored visitation consistent with any criminal court orders. In mid November, mother telephoned the social worker to advise she had been released from jail, but did not yet have an address or telephone number.
“In January 2009, mother pleaded no contest to the allegations of SSA’s amended petition, and the juvenile court found P.J. to be a dependent child. The court ordered SSA to provide reunification services, approving SSA’s case and visitation plan. The plan directed mother to maintain a legal source of income, demonstrate a knowledge of age-appropriate behavior for her child, and to keep the social worker apprised of information concerning her address, telephone number, income, household composition, arrests, and any difficulties in completing the case plan. It also directed her to maintain stable, suitable housing approved by SSA, to participate in counseling, and complete an appropriate parenting class.
“In her report for the six-month review hearing, the social worker wrote that mother stated she was self-employed as a house cleaner with inconsistent hours. The maternal grandfather sent her $500-$600 a month. Mother claimed she had been living with friends but refused to provide a home address. She was on informal probation for her criminal case and was required to complete a 52-hour child abuse program. Mother supplied documents reflecting she had begun counseling, but the social worker could not confirm mother’s enrollment, attendance, or progress. Mother did not wish to continue with the particular counseling agency and the social worker referred her to another agency, which placed her on a waiting list. Mother supplied a certificate of completion for a parenting class, but did not have contact information to allow the social worker to verify her participation.
“Mother was authorized to have six hours per week of monitored visitation, but she averaged between two and six hours weekly. The caregiver reported mother acted appropriately and P.J. missed her. The social worker identified mother’s illiteracy and ongoing residential instability as a concern, but reported mother appeared motivated to secure an apartment, made a conscientious effort to keep her appointments, and loved her daughter.
“Mother stipulated at the six-month review in June 2009 that returning P.J. would create a substantial risk of detriment to the child and reasonable services had been provided. (§ 366.21, subd. (e).) The court set a 12-month review for November 2009.
“In late May, A.M. stated she could no longer care for P.J. because of conflicts with mother. SSA placed P.J. in a new foster home in late June. Because of mother’s inconsistent visitation, the social worker directed mother to confirm visits in advance. Out of 26 visiting opportunities between July 2 and September 1, mother attended only four visits (15 percent). She confirmed a planned visit but did not show three times, failed to confirm 16 scheduled visits, and cancelled three times. During a visit on September 1, mother sat on a couch and began falling asleep. At times she failed to demonstrate parenting skills. During the other visits, she arrived on time, brought gifts, and interacted positively with P.J. P.J. was excited to see her mom, wanted to be with her and was very disappointed when she failed to appear.
“The new counseling agency had not been able to reach mother to begin the intake session. SSA had not received confirmation of mother’s enrollment, attendance and progress in counseling sessions and mother failed to provide contact information concerning her parenting class. Mother apparently moved into an apartment in August, but was unable to furnish a copy of the lease. The apartment manager reported police had been summoned to the residence at least once for a domestic incident. Mother had been late paying the rent, and individuals visiting or residing with her had been disturbing the neighbors.
“SSA assigned a new social worker to the case at the end of September. At an introductory meeting on October 9, the social worker reviewed the case plan with mother, stressing the ‘crucial aspect of visitations.’ The social worker reported mother ‘read the visitation plan with ease.’ Informed she had been seen with a young child, mother explained she had been watching the children of a friend. She denied being pregnant, claiming she had terminated her pregnancy. Upon further inquiry, she claimed she had miscarried. Mother appeared sleepy during a 10 a.m. to 12 noon visit on September 10.
“In early October, the social worker spoke with mother’s new counselor. Mother began attending counseling on August 21. She did not show up for a session on August 28. She had progressed ‘relatively well, ’ appeared ‘socially, pretty confident, ’ had the ‘ability to function on a cognitive level, ’ and seemed ‘focused and on track.’ Mother reported to the counselor she was ‘maintaining ongoing visitations with’ P.J. The social worker advised the counselor mother had in fact not been visiting regularly. The counselor stated he would address mother’s lack of visitation and untruthfulness, but mother did not show up for a session on October 2.
“SSA placed P.J. with new foster parents in mid-October. Mother did not visit P.J. between September 10 and November 10, 2009. She failed to respond to messages left by the social worker and foster parents and missed meetings with the social worker and foster care agency. She left a message with the foster mother on November 15, but did not return the foster mother’s call.
“The social worker learned mother had been arrested for driving under the influence on September 14 after a collision with a parked vehicle in a residential neighborhood. Mother admitted to police officers she had been driving, but she told the social worker a friend had been driving.
“P.J. moved to a new foster home in late November. The social worker met with mother and she agreed to a new visitation schedule. Mother visited with P.J. on one of five opportunities between December 1 and December 11. During a visit on December 3, mother interacted with P.J. for about 20-25 minutes, but soon after had difficulty staying awake. She did not follow suggestions to engage P.J. in conversation, and the pair displayed little physical affection toward one another except at the beginning and end of the visit. P.J. asked the foster mother several times if it was time to go, did not cry or appear anxious about leaving mother.
“On December 11, the social worker received information concerning an incident that occurred during mother’s 52-week child abuse program. Mother came to a group meeting with S.M., who was attending the same program. Mother became angry with S.M. and stated she was going to ‘get’ or kill her. Mother and several men followed S.M. in a car. The argument apparently related to A.M.’s decision in early December to place D.M. in respite care until she found housing. Mother called SSA angrily wanting to know what happened to D.M., stating she was his mother. She later clarified she was ‘like’ his mother because she had raised him since infancy.
“Mother did not visit P.J. between December 3 and February 1, 2010, and failed to show up for an appointment with the social worker on January 21. On February 2, mother called SSA to complain the foster mother had not returned mother’s phone calls, but the foster mother stated she had not received any contact from mother.
“On February 3, the social worker spoke to mother. Mother wanted information concerning her sister’s child, D.M., and stated she had purchased something for him and was really ‘worried about him.’ Mother did not inquire about P.J. She also claimed she had lost P.J.’s foster mother’s phone number.
“Mother continued to miss visits with her daughter. On February 24, mother confirmed a visit for the following day but failed to show up. P.J., who had eagerly anticipated her mother’s visit, was disappointed and hurt. Mother claimed the foster mother called to cancel the visit, but other evidence reflected this was untrue.
“At the 12-month review hearing in early March 2010, the social worker recommended termination of reunification services because of mother’s failure to visit P.J. Since 2009, mother had visited P.J. only 18 out of 196 hours authorized for visitation. Besides not showing up to visit her daughter, mother failed to keep appointments with the social worker. Finally, the social worker testified she believed mother had not benefitted from the parenting class.
“Mother testified she visited P.J. ‘plenty of times.’ She denied missing visits until the latest foster placement, and blamed the current foster mother for not returning her phone calls. She had lived alone in her current one-bedroom apartment for eight months, where P.J. would have her own bed. She continued to clean houses. Her hours varied, and sometimes she would work from 9:00 a.m. to 7:00 p.m., but a friend would babysit P.J. She complained the social worker had referred her to a parenting class for children older than P.J.
“Mother’s lawyer argued SSA had not provided reasonable services because it referred mother to a parenting class for children older than P.J., the social worker did not refer mother to other classes or counseling, and failed to offer mother help in overcoming her illiteracy. Counsel also asserted mother may have missed visits because of P.J.’s placement changes and delays in notifying mother. He stated the foster parents, as prospective adoptive parents, ‘may have some motivation to deny mother visits.’ Counsel argued there was a substantial probability of return by the 18-month review date, six weeks away, because mother had stable housing and steady employment.
“The court found reasonable services had been provided or offered and returning P.J. to mother would create a substantial risk of detriment to the child’s physical or emotional well-being. The court cited mother’s dearth of visits over a lengthy period, found her explanation she was not timely informed of placement changes lacked credibility, and stated ‘it’s hard to know what program would help mother when she simply does not visit her child.’ The court also expressed concern over mother’s driving under the influence (DUI) arrest and outburst at the child abuse meeting. The court terminated reunification services and set a [section 366.26] hearing for July 6, 2010.”
At the section 366.26 hearing in August 2010, the social worker testified P.J. was likely to be adopted by her current caretakers, with whom she had resided for eight months. The worker described mother’s sporadic visitation with P.J., noting that until July 2010, mother had failed to visit or contact P.J. since December 3, 2009. The worker also described two-hour visits occurring on July 15 and July 19, 2010. “Generally, it was [] good interaction.... Mother [brought some clothing and toys] and they were able to talk. [¶] The child did a lot of play.... She would give mom imaginary food items, and mom would just take those and respond with ‘yes’ or ‘no’ answers.” At the beginning of the visit, “when the child... saw the mother, she stopped and didn’t move forward.... She stopped and looked around. The she appeared to recognize [mother] and then just hesitated. [¶]... She was... nonchalant, no expression from her face. [Mother] then stepped forward, acknowledged [P.J. and gave her a hug] and [P.J.] smiled.” At the end of the July 15 visit, mother said goodbye, P.J. said “goodbye [C.] She didn’t call her ‘mother.’ She calls her ‘[C.]’ [¶] And [C.] said, ‘I love you.’ [¶] And [P.J.] repeated ‘I love you’ back.” The social worker walked P.J. back outside the building and there were “no major incidents.... She seemed okay. She was fine....” P.J. expressed positive sentiments about her mother on the way home, and looked forward to mother’s next visit.
The July 19 visit was similar. Afterward, P.J. tearfully declared she missed and loved her mother, and also missed her father, an uncle, and a cousin. She announced she would live with her mother after she and her foster family returned from a Hawaiian vacation.
Mother testified she spent every day with P.J. until authorities removed P.J. from her custody in October 2008, when P.J. was three years old. Mother claimed she provided for P.J.’s needs. They lived with the maternal grandparents, and P.J. grew very close to her grandfather, who she called “dad.” P.J. accompanied mother on shopping trips, and for entertainment they went to Disneyland and parks. P.J. liked to play hide-and-seek with cousin D.M. and played peek-a-boo with mother.
Mother helped teach P.J. her ABC’s and to count. Mother testified she did not miss any visits during P.J.’s first foster placement, and telephoned P.J. three times a day. She described the visits as “They were perfect. They were good.” Mother brought clothes, shoes, toys and food P.J. liked. They colored and played with blocks. She bathed P.J., dressed her, fixed her hair, made her eat, and put her to bed for naps. P.J. cried and said she wanted to come home with mother. They hugged, P.J. held her tight, kissed her, and told mother she loved her. Mother felt they shared a mother-child bond.
During the July 15 visit, P.J. initially seemed distant, but P.J. responded when mother called her by her nickname. Mother and daughter hugged and kissed each other, with P.J. declaring, “I love you, mommy.” They sat together, played with the kitchen toys, and mother showed her pictures in a book. Mother gave her snacks and they went to the restroom and she helped her wash her hands; P.J. asked when she could come home because she missed mother and cousin D.M. and said she was going to ask “mommy Carrie, ” the foster mother, if she could leave with mother. P.J. gave her a hug and kiss at end of the visit and said, “‘I’ll see you later.’”
According to mother, her July 19 visit was similar. P.J. greeted her with a hug and kiss, and said, “I’m going to see you soon, C[.]” She called mother “‘mommy’” several times during the visit, and declared she wanted to go home with her. During the visit, mother gave P.J. clothing, helped put on the new outfit, and placed new hair clips in P.J.’s hair. P.J. sat on mother’s lap, hugged and kissed her, and told mother she still loved her. At the end of the visit, P.J. asked mother if she could go home with her. P.J. gave mother a hug and kiss, said she loved her and would see her later.
Mother testified it was in P.J.’s best interest to maintain their relationship: “I’m her mom, and I really care for her. I really, really love her. I know I made a mistake. I know I got in trouble. They took her away. But it wasn’t my fault. I was at the wrong place at the wrong time. And I believe she’s supposed to be with me because I’m her mom. And I really – I know she loves me, and I know I love her. That’s the only thing I got. I don’t have nothing else but her.” But she admitted her failure to visit had affected her relationship with P.J.
The juvenile court found the parental benefit exception did not apply: “The first prong is there must be regular contact and visitation.... [¶] Mother had long periods of time without any contact or visits and... [t]he court finds that mother’s testimony was not credible in terms of purported attempts to contact the foster parents.... [¶]... [¶] And, therefore, we do not even reach whether or not the second prong applies.”
II
DISCUSSION
The Juvenile Court Did Not Err in Finding the Benefit Exception Inapplicable
Mother argues the juvenile court should have applied the benefit exception to prevent termination of her parental rights. Section 366.26 provides that after reunification efforts have failed and the court finds the child is likely to be adopted, “the court shall terminate parental rights” (§ 366.26, subd. (c)(1)) unless certain exceptions apply. The benefit exception applies where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, (c)(1)(B)(i).) Thus, “a parent may avoid termination of parental rights only if the parent has maintained regular contact and visitation with the child, and the child would benefit from continuing the relationship. [Citation.]... ‘Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.’ [Citation.]” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
Here, mother failed to satisfy the exception’s first prong by maintaining regular visitation and contact with P.J. As noted in our previous opinion, social workers stressed with mother the importance of visiting P.J., but visitation remained sporadic throughout the pendency of the case. Out of the 26 visiting opportunities between July 2 and September 1, 2009, mother saw P.J. on only four occasions. She did not visit P.J. between September 10 and November 10, 2009, and visited her only once between December 1 and December 11. During the visit on December 3, mother had difficulty staying awake, did not follow suggestions to engage P.J. in conversation, and the pair displayed little physical affection toward one another, except at the beginning and end of the visit. P.J. asked the foster mother several times if it was time to go, and did not cry or appear anxious about leaving mother. This pattern continued into 2010, with mother visiting for the first time on July 14. The juvenile court specifically found mother’s visitation failed to satisfy the first prong of the exception. Mother concedes, and the evidence is undisputed, she missed most of her visits and contact with P.J. beginning in July 2009. By mother’s own admission, therefore, mother cannot and did not establish she had maintained regular visitation with her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.)
Mother testified the foster parents did not return telephone calls to schedule visits. ~(241)~ The trial court expressly found mother’s claim lacked credibility. Mother does not persist in her attempt to shift the blame to the foster parents for her failure to visit P.J.
Mother, however, argues the juvenile court erred when it failed to recognize that regular visitation was unnecessary because of P.J.’s strong attachment to mother. Consequently, mother reasons she met the second prong of the benefit exception, which requires the child benefit from continuing the parental relationship. (§ 366.26, subd. (c)(1)(B)(i).) According to mother, this factor outweighs any failure to maintain regular visitation and therefore requires reversal of the order terminating parental rights to P.J. We disagree.
We must reject mother’s argument the benefit exception may apply even when a parent fails to satisfy the visitation prong. “The statute requires a parent to show there has been regular contact and ‘the minor would benefit from continuing the relationship.’” (In re Amanda D. (1997) 55 Cal.App.4th 813, 821 (Amanda D.) Amanda D. is instructive. There, the parent met the first prong of regular visitation, but acknowledged he could not satisfy the second prong because he had not shown he filled a parental role for his children. We rejected his claim the continuing benefit exception applied because he had maintained regular visitation and contact with his children, explaining “[w]e are neither inclined nor authorized to ignore the second prong of the statutory benefit exception. [Citation.]” (Ibid.) The conjunctive phrasing of the statute therefore imposes a mandatory duty on courts not to apply the benefit exception unless a parent has satisfied both prongs.
Here, the juvenile court did not reach the second prong because mother failed to satisfy the first prong requiring regular visitation and contact. But mother would fare no better even if the court considered only the second prong, which requires the child “benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The benefit exception “does not permit a parent who has 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 (Jasmine).) To the contrary, once the mandated period for reunification has passed the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) After reunification efforts end, the Legislature’s preferred permanent plan becomes termination of parental rights and subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody W. (1994) 31 Cal.App.4th 221, 227-231.) “Adoption is the Legislature’s first choice because it gives the child the best chance at... commitment from a responsible caretaker. [Citations.]” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
Thus, the benefit prong of section 366.26, subdivision (c)(1)(B)(i), is satisfied only if “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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.) “In other words, 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.” (Ibid.) Again, “the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B.(2000) 81 Cal.App.4th 415, 424-425 (Cliffton B.).)
The court’s balancing of competing considerations must be performed on a case-by-case basis, taking into account variables such as the child’s age, “‘the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between the parent and child and the child’s individualized needs.’” (Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350; Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) We will not disturb the juvenile court’s balancing of interests unless no substantial evidence supports it (Cliffton B., supra, 81 Cal.App.4th at p. 425), or the court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351; see In re C.B. (2010) 190 Cal.App.4th 102, 123 [“‘the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious’”].)
Mother points out P.J. lived with her until the age of three, and that after the July 2010 visits P.J.’s “comments indicated that she wished not only to remain in Mother’s life, but also to live in her home.” She explains that P.J., “[n]early five years old at the time of the [section 366.26] hearing, had lived full-time with Mother for about two-thirds of her life.... [S]he recognized mother [in the role of biological parent]... and wished to maintain and strengthen their relationship.”
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289. There, the juvenile court found father had maintained, consistent and appropriate visitation with his daughter throughout the dependency proceedings and they shared an emotionally significant relationship. (Id. at p. 298.) The father had been S.B.’s primary caretaker for three years and, when she was removed from his custody, the father complied with every aspect of his case plan. (Ibid.) The record showed that “S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits.” (Id. at pp. 300-301.) An expert who had conducted a bonding study of father and daughter testified that, due to their “fairly strong” bond, “there was a potential for harm to S.B. were she to lose the parent-child relationship.” (Id. at pp. 295-296.) The appellate court concluded that “[b]ased on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [the father]. [Citation.]” (Id. at pp. 300-301; see also In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [termination of parental rights reversed where experts opined children had a primary beneficial relationship with parent that clearly outweighed benefit of adoption]; In re Scott B. (2010) 188 Cal.App.4th 452 [court found compelling reason to reverse order terminating parental rights where, nine-year-old child, had consistent weekly visits with mother and court appointed special advocate that found disrupting the close mother—daughter relationship would prove detrimental to an emotionally vulnerable child who repeatedly insisted on living with his mother].)
Here, as noted, the juvenile court found mother had not maintained regular and consistent visitation with P.J. throughout the dependency proceedings. “[U]nlike In re S.B., there was no testimony from a psychological expert, no less one who had conducted a bonding study, that termination of parental rights would be detrimental to [P.J.]” (In re C.B., supra, 190 Cal.App.4th at p. 125.) As stated in In re Jason J. (2009) 175 Cal.App.4th 922 (Jason J.), the same appellate court that decided In re S.B., “The S.B. opinion must be viewed in light of its particular facts. It does not, of course, 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.” (Jason J., supra, 175 Cal.App.4th at p. 937.)
P.J.’s comments after the July visits reflect she retained affection for mother and other maternal relatives, and she entertained some confusion concerning her custodial status. But P.J. did not ask about mother in the months preceding these visits, and had not displayed emotional distress in mother’s absence. As recounted above, P.J.’s first three years of life with mother involved chaos and neglect. Uncertainty and disappointment reigned over the next two years as mother missed visit after visit. A legal guardianship would perpetuate the uncertainty and leave P.J. without hope of establishing a stable and permanent family structure. To conclude, the evidence reflects at most “some benefit” in maintaining mother’s relationship with P.J. The evidence in this case therefore did not show the mother-daughter relationship outweighed the well-being P.J. would gain in a permanent home with adoptive parents.
III
DISPOSITION
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.