Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J515744A-B Laura J. Birkmeyer, Judge.
NARES, Acting P. J.
Mercedes F. appeals juvenile court orders terminating her parental rights to her children, W.V. and Daniel V. She contends the court erred because the beneficial parent-child relationship exception to termination of parental rights of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), applied in this case; the children would suffer detriment if they had no contact with her; and it was uncertain whether they would be adopted. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
W.V. and Daniel (together, the children) first came to the attention of the San Diego County Health and Human Services Agency (the Agency) in July 2004 because of domestic violence between Mercedes and the children's father, Alejandro V. W.V. was seven years old and Daniel was six at the time. Mercedes minimized the violence and allowed Alejandro to return to the family home. In March 2005 the Agency petitioned under section 300, subdivision (b), on the children's behalf on the basis of the domestic violence. The juvenile court assumed jurisdiction, ordered services and ordered the children placed with Mercedes. In October it granted Mercedes sole physical custody, ordered supervised visits for Alejandro and terminated jurisdiction.
In February 2008 Mercedes was arrested after police found a half pound of methamphetamine in her car and more methamphetamine in the family home. The Agency petitioned under section 300, subdivisions (b) and (g), on behalf of now 10-year-old W.V. and nine-year-old Daniel, alleging Mercedes had been arrested for transporting a controlled substance, the children reported she sold drugs out of their home and there was no one to care for them. Mercedes and Alejandro were both incarcerated. The court sustained the petitions, ordered reunification services and ordered the children placed in foster care.
The children were placed with a relative, R.F. They adjusted well to her care, but said they missed their parents. Mercedes was released from jail in September 2008. She was deported to Mexico and began participating in reunification services in Morelos, where she was living. Because of the distance from Morelos to San Diego, she was unable to have visits with the children during this time. Alejandro remained incarcerated. At the six-month and 12-month review hearings, the court continued the children as dependents and continued services.
Mercedes moved to Tijuana in March 2009 and began participating in services there. She and the children had visits twice each month at the Mexican Consulate. W.V. and Daniel enjoyed the visits, but wanted to stay with R.F., not live with Mercedes.
In October 2009 the social worker reported R.F. had been hospitalized with mental health problems, including paranoia. W.V. and Daniel remained in her care for a short time with support services, but on October 29 the Agency petitioned under section 387 alleging R.F. was no longer able to care for them. They were placed in foster care.
The social worker assessed the children as generally adoptable despite their older ages and the fact they had speech delays. They were healthy, likeable and well behaved. During visits with Mercedes, they did not initiate physical affection and they did not appear upset when visits ended. Relatives in Mexico and nonrelated extended family members, who all had been approved to adopt, were interested in adopting them. W.V. and Daniel began visiting the home of the nonrelated extended family members and said they wanted to be adopted by this family.
At the section 366.26 hearing on April 28, 2010, the court considered the documentary evidence and arguments by counsel. It found W.V. and Daniel were adoptable children and none of the exceptions to termination of parental rights and adoption applied. It terminated parental rights and referred the matter for adoption.
DISCUSSION
Mercedes contends the court erred by terminating parental rights because she had a beneficial parent-child relationship with the children; they would suffer detriment if they did not have contact with her; and it was uncertain whether they would be adopted.
Applicable Legal Principles:
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because a specified statutory exception exists. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."
In reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence most favorably to the trial court's order, 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.)
Application:
Mercedes maintained regular visitation and contact with the children, but she did not show the detriment to them of severing the parent-child relationships would outweigh the benefits they would gain from adoption into a permanent home. At the time of the hearing, the children had been out of Mercedes's care for more than two years. She did not fulfill a consistent parental role, they did not look to her to fulfill their daily needs, and they did not want to be returned to her care. They enjoyed visits with Mercedes, but they did not initiate shows of affection and they separated easily from her when visits ended. At the time of the hearing, they were in the process of transitioning to their adoptive home and both boys had expressed they wanted to be adopted by this family even if adoption might mean they would not see Mercedes any more. The court stated, "The children do not want to live with [Mercedes] and have a real apprehension that she has not changed and she cannot provide for them."
Mercedes misplaces reliance on In re Amber M. (2002) 103 Cal.App.4th 681 and In re S.B. (2008) 164 Cal.App.4th 289. In In re Amber M., supra, at pp. 689-690, this court stated the common theme in the case from the bonding study psychologist, the therapists and the Court Appointed Special Advocate was that the beneficial parent-child relationship outweighed the benefits to the child of adoption. Here, there was not evidence that W.V. and Daniel shared a strong emotional attachment with Mercedes. They had pleasant visits with her, but they did not want to live with her. The evidence showed that adoption would provide to the children the stability and security they needed and outweighed any benefits they would gain from continuing their parent-child relationships with Mercedes. In re S.B., supra, 164 Cal.App.4th 289, also does not support her position. In In re S.B., this court reversed the trial court's finding that the beneficial parent-child relationship exception did not apply after concluding the child would be greatly harmed by loss of the significant positive relationship she shared with her father. The father had complied with every aspect of his case plan, frequently visited his daughter and was devoted to her. She loved him and wanted to live with him. (Id. at pp. 294-295.) Mercedes did not make such a showing. Further, while factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case, the court's findings are fully supported.
DISPOSITION
The orders are affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.