Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK55586. S. Patricia Spear, Judge.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. fortner, Jr., County Counsel, and Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
L.B. (mother) appeals from the judgment terminating parental rights to her son R.S. under Welfare and Institutions Code section 366.26. Mother contends there is no substantial evidence to support the trial court’s finding pursuant to section 366.26, subdivision (c)(1)(A) that termination of parental rights would not be detrimental to r. She further contends the judgment should be reversed because the Department of Children and Family Services prevented her from establishing that termination would be detrimental by denying her visitation with r. These contentions lack merit. Accordingly, we affirm the judgment.
All statutory references in the opinion are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
In accordance with the normal rule on appeal, we state the facts in the light most favorable to the judgment.
Mother was 15 years old and a dependent of the court in an out-home placement when she gave birth to R. in November 2003. R. suffered from asthma. Mother and R. lived in St. Anne’s Maternity Home until she went AWOL with R. on May 14, 2004. Mother did not take R.’s asthma medicine and equipment with her. Mother and R. were supported in a motel for a week by her roommate’s earnings from prostitution. The roommate “jumped” mother into the Hoover Crips.
Michael M. was alleged to be the father. He did not appear in the proceedings.
On May 24, 2004, a dependency petition was filed and the dependency court ordered the Department to provide mother with reunification services. R. and mother were detained together in placement. They were separated in August 26, 2004, after mother stole vodka from a liquor store and gave some of it to r. Mother’s foster mother’s younger sister observed this. Mother threatened the girl with physical harm for reporting the incident. A subsequent petition concerning the incident was filed under section 342 on September 15, 2004.
On October 27, 2004, R. was declared a dependent of the court based on sustained allegations that he was at substantial risk of serious physical harm under section 300, subdivision (b), because mother subjected R. to a detrimental environment and an endangering situation when she left St. Anne’s with r. Custody of R. was taken from mother and the Department was ordered to provide family reunification services. Mother was ordered to participate in individual counseling to address all case issues and history and complete a parenting class. Mother was granted monitored visits at least once a week for two hours. Discretion was given to the Department to liberalize mother’s visitation.
The section 342 petition, as amended, was sustained on November 15, 2004, under section 300, subdivision (b), based on sustained allegations that mother held a container containing alcohol up to R.’s mouth to drink and engaged in other inappropriate and negligent supervision of r.
Mother did not succeed in reunifying with R., and reunification services were terminated on August 2, 2005. When given the opportunity to spend time with R., mother had chosen to spend the time with her peers. Mother made no progress in therapy. She refused to discuss the issues that brought R. into the system and failed to implement the therapeutic techniques she learned for improving her behaviors. She had been terminated from numerous foster and group homes due to negative conduct. Her behavior caused the foster home that wanted to adopt R. to terminate his placement with them. A section 366.26 hearing was set for January 31, 2006.
R. needed a placement that would provide him with structure, permanency, and stability so that he would not suffer the same fate in the dependency system as mother. Mother had lived in a total of 20 placements since she was 23 months old. She had a long history of displaying troublesome behavior, which included stealing, physical and verbal aggression, sexually predatory and provocative behavior, sneakiness, manipulation, and destruction of property. R. had already been in eight homes since birth, four with mother and four without mother. He was unhappy and aggressive in his current relative placement. R. had a “penchant for biting, pinching, poking and scratching others. . . . Should he continue in this manner, he will not only suffer ongoing social rejection, he will also struggle with many of the issues that have plagued his mother in her placements. [Mother] has been moved around within her family of origin and outside of it many times. Based upon her own behavioral issues, she has a history of multiple placements with family members, foster homes and group homes. This sort of continued replacement is damaging to the psyche and wellbeing of a child of any age, but it is devastating to a child the age of [R.]. He is in his formative years and needs a placement, which will provide him stability and permanency. [¶] [R.] is in need of a highly structured home setting, in order to diminish and hopefully extinguish these nascent behaviors.”
R. was placed in the E. family’s adoptive home on January 4, 2006.
On January 31, 2006, the section 366.26 hearing was continued to March 8, 2006, for mother’s contest. Mother was granted monitored visits at the foster family agency twice a month not to exceed two hours. Mother was given bus tokens for transportation.
The E. family was committed to adopting R., providing him with the structure he needed and working through his emotional and behavioral problems. R. was happy and well-adjusted there, and the E.’s adored him. The social worker believed R. was “in dire need of the stability and permanence which his current caregivers [were] willing and eager to give him.”
The section 366.26 hearing began on May 11, 2006. The Department’s reports and testimony of the social worker, who monitored seven of mother’s visits, revealed the following. Mother told R. that his foster parents did not love him like she loved him and that she was his only mother. Mother instructed R. to hit anyone who hit him. Mother spent time talking on the telephone during visits. There did not appear to be a solid connection or bond between R. and mother, and R. only referred to mother as mommy when mother told him to call her mommy. He did not display excitement or affection upon seeing mother at the beginning of visits. He did not seem to know who mother was, although he enjoyed the visits. When it was time to go, he willingly departed and did not cry except when mother continued holding onto him. R. greeted the E.’s enthusiastically and affectionately after visits, calling them mommy and daddy. He was “excited to be [back home], happy, [and] ready to start playing.” The hearing was continued to June 2, 2006, for notice to the alleged father.
Mother had weekly visitation with R. from mid-November through December 2005. R. had a very negative reaction after the visit on December 26, 2005. In late December 2005 and January 2006, mother’s termination from two placements, due to her refusal to submit to the foster parents’ supervision, failure to attend school, and theft, put visitation on hold. The agency handling R.’s foster placement tried to arrange visits, but mother balked at taking the bus, even when the agency offered to drive mother one-way two times per month. A visit was cancelled in January 2006 because mother had not arranged transportation back to her foster home. Mother had a visit during the third week of February 2006. Mother lost two placements in March 2006 due to her behavior and attitude. Mother had four visits in April and May 2006.
On June 2, 2006, the dependency court found R. was adoptable and that the exception to termination in section 366.26, subdivision (c)(1)(A) did not apply, because any advantage accruing from maintaining the relationship with mother did not outweigh the benefit of being adopted. Previously, R. “was having enormous behavior problems, he was having adjustment problems, he was having all kinds of issues. . . . [H]e has come a long way . . . in this stable home in terms of being a healthy young boy.” As notice to the alleged father had not been given, the dependency court did not terminate parental rights at this hearing, but continued the matter for notice to the alleged father. Mother was granted one monitored visit per month for one hour.
Mother was terminated from three placements during the period from June to December 2006. She participated in only two monthly visits, because she failed to cooperate with scheduling and was out-of-state during one month.
When the section 366.26 hearing resumed on January 24, 2007, the dependency court found notice to the alleged father was proper and terminated parental rights.
This timely appeal followed.
DISCUSSION
Substantial Evidence Supports the Finding That the Exception in Section 366.26, subdivision (c)(1)(A) Does Not Apply
Mother contends the dependency court erred in terminating her parental rights because substantial evidence does not support the finding that the exception to termination in section 366.26, subdivision (c)(1)(A) did not apply. We conclude the finding is supported by substantial evidence.
Because mother’s contention asserts insufficiency of the proof, we apply the substantial evidence rule. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Autumn H. (1994) 27 Cal.App.4th 567, 576; compare In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard of review].) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding on the section 366.26, subdivision (c)(1)(A) exception is challenged is whether substantial evidence supports the finding, not, as mother argues, whether a contrary finding might have been made. “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].”’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
“The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .” [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1).) That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case” warrants a high degree of appellate court deference.’ [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Under section 366.26, subdivision (c)(1)(A), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it “finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [¶] . . . maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden to prove the applicability of the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
“[T]he 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.) The type of parent-child relationship that triggers the exception is a relationship which “‘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. . . .’ [Citation.]” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.)
“‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.’ [Citation.] It is designed to protect children’s ‘compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.] ‘The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) “At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.]” (Id. at p. 49.) “At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53.)
Substantial evidence supports the finding that no exceptional circumstances existed under section 366.26, subdivision (c)(1)(A), that required depriving R. of a permanent, adoptive home. The record establishes that mother’s relationship with R. did not promote R.’s well-being “‘to such a degree as to outweigh the well-being [R.] would gain in a permanent home with new, adoptive parents. . . .’ [Citation.]” (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.) Having failed to make progress in therapy, mother was unable to maintain a stable placement or resolve the aggressive, manipulative, and deceitful behaviors that she had developed as a result of the extreme lack of stability in her life. R., too, had been bounced from placement to placement, eight in his young life, and displayed negative behaviors that would lead to further rejection. It appeared history would repeat itself with this second-generation foster child unless R. was provided with the stability and permanency of an adoptive home that made a full emotional commitment to him. R. had been in the dependency system for two and a half years. The time for reunification was long over. Resolution of R.’s tenuous status was long overdue.
Against R.’s overwhelming need for permanency, we weigh the strength and value of R.’s bond with mother. The visitation monitor’s testimony showed no strong attachment. Mother was not R.’s psychological parent and played no parental role in his life. Moreover, mother did not act in R.’s best interest. She caused the placement in a previous home for adoption to fail. She attempted to undermine his current bonded relationship with the E.’s by telling R. that the E.’s did not love him as much as she loved him and his foster mother was not his mommy. Mother’s argument that the evidence R. and mother had some positive interactions compels a conclusion that termination of parental rights would be detrimental fails to address the issue of R.’s need for permanency and is but a request that we reweigh the evidence. That is not our role. (In re Dakota H, supra, 132 Cal.App.4th at p. 228 [“[w]e do not reweigh the evidence”].) The dependency court’s conclusion that R.’s bond to mother did not outweigh his need to be adopted is amply supported by substantial evidence.
Mother’s Excuses For Failing To Visit and Develop A Bond Are Not Relevant
Mother contends she was unable to prove the two prongs of the exception to termination, regular visitation and a compellingly beneficial relationship with R., because the Department prevented her from visiting regularly. The contention is easily rejected. “‘The exception [to termination in section 366.26, subdivision (c(1)(A)] applies only where the [dependency] court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) As the focus of the proceedings had long since shifted from maintaining biological ties to providing R. with permanence and stability (In re Celine R., supra, 31 Cal.4th at pp. 52-53), excuses for lacking a bond or failing to regularly visit could not establish that the exception to termination applied. (Cf. In re Jeanette V. (1998) 68 Cal.App.4th 811, 817 [the quality of a parent’s visitation during an earlier period is not relevant to prove the exception]; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147-1148 [a parent’s excuses for infrequent visits does not show that returning the child to the parent at a post-permanency planning hearing is in the child’s best interest].) “[T]he time [has] long since passed to focus on petitioner’s interests and excuses.” (Maricela C. v. Superior Court, supra, 66 Cal.App.4th at p. 1148.)
The contention is built, in part, upon the specious premise that the dependency court implicitly found mother did not maintain regular visitation. No such finding is fairly implied from this record.
In any event, substantial evidence supports a finding that mother’s visitation and bonding problems were largely of her own making. We “construe all reasonable inferences in favor of the juvenile court’s findings regarding . . . the reasonableness of the [Department’s] efforts.’ [Citation.]” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) Because she failed to make progress in rehabilitation, mother never progressed beyond a few hours of monitored visits per week. Because of her reluctance to take the bus and her use of visitation time to see friends, mother passed up much of the visitation that was offered her.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.