Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK40551, Marilyn Mordetzky, Juvenile Court Referee.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Liberty K. (mother) appeals the juvenile court's judgment terminating parental rights to three of her children, A.C., B.K. and A.K. Mother maintains that the trial court erred in failing to apply the beneficial relationship exception to termination of parental rights. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On January 18, 2007, the Department of Children and Family Services (DCFS) was contacted after mother refused to return her seven-year-old daughter, A.S., to her stepmother following an unmonitored visit with the child. The Sheriff's Department responded, and arrested mother for an outstanding warrant. A.S. was released to her stepmother, while two of mother's younger children, A.C. (born September 2002) and A.K. (born August 2006), were released to DCFS. Another child, B.K. (born May 2004), was with his paternal grandparents at the time, where he had been living since his birth.
At the time, A.S. and her older sister lived with their father and stepmother pursuant to a family law order. At some point during the pendency of this matter, A.S. moved in with her mother, where she currently resides.
DCFS filed a petition alleging that A.C., B.K. and A.K. were minors described by Welfare and Institutions Code section 300, subdivisions (b) and (g) due to mother's incarceration and history of substance abuse. An amended petition was sustained as to mother, based on a history of substance abuse and domestic violence. Reunification services and monitored visits were ordered. A.C. and A.K. were placed with a foster mother; B.K. remained with his grandparents.
Further statutory references are to this code.
In October 2008, the juvenile court terminated reunification services. During the period between the sustaining of the petition and the termination of services, mother, at times, had been incarcerated, had been living with a boyfriend, Jonathan D., who had a criminal record and with whom she had another child (Jonathan, born May 2008), and had only sporadically complied with her case plan.
Subsequent to the termination of reunification services, mother had monitored visitation, generally consisting of one three-hour visit each week, except for a short period in the summer of 2009, when mother's visits were not monitored. Also, mother and Jonathan D. had another child (Alana, born in 2009).
A contested section 366.26 hearing commenced on October 19, 2010. Mother presented evidence of her visits with A.C., B.K. and A.K., and argued that the beneficial relationship exception contained in section 366.26, subdivision (c)(1)(B)(i) applied. The court did not agree, and terminated parental rights. Mother timely appeals that order.
STANDARD OF REVIEW
After termination of reunification services, a parent's interest in the care, custody, and companionship of the child is no longer paramount. Rather the focus shifts to the needs of the child for permanency and stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) If the juvenile court determines by clear and convincing evidence that a child is likely to be adopted, the court shall terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b).) "Where, as here, the court finds the minors are adoptable, it is not required to explore guardianship or other less permanent alternatives." (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250; accord In re Jose V. (1996) 50 Cal.App.4th 1792, 1799.) And "[b]ecause a section 366.22 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to adoption in the rare instance where the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.) In order to invoke this exception, the parent must establish that termination of parental rights would be detrimental to the child. (Id. at p.1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) A juvenile court's findings under section 366.22 are reviewed for sufficiency of the evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
DISCUSSION
As explained in In re Autumn H., supra, 27 Cal.App.4th at p. 575, "In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new family would confer.... [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.... The exception applies only where the court finds... a significant, positive, emotional attachment from child to parent."
We assume without deciding that mother maintained "regular visitation and contact" within the meaning of section 366.26, subdivision (c)(1)(B)(i). We conclude, however, that mother failed to present evidence that severing the parental relationship with A.C., B.K. and A.K. would deprive the children of a substantial, positive emotional attachment such that the children would be greatly harmed.
The balancing test set forth in In re Autumn H., supra, 27 Cal.App.4th 567 requires the juvenile court to weigh the strength and quality of the parent-child relationship with the security afforded the child by adoption. (Id. at p. 575.) Here, the evidence before the juvenile court was that neither B.K. nor A.K. had established a parent-child relationship with mother. B.K. had lived with his paternal grandparents for nearly all of his life; his grandmother – who was his prospective adoptive mother – had been his primary caretaker during all those years. A.K. was not yet six months old when she was removed from mother's care and placed in a foster home, in January 2007, and was replaced in the home of her prospective adoptive mother several months later, where she has lived ever since. Thus, at the time of the section 366.26 hearing in October 2010, four-year-old A.K. had lived virtually her entire life in the care of her foster mother. She had no experience of mother providing for her "physical care, nourishment, comfort, affection and stimulation" on a day-to-day basis. (Ibid.)
A.C. was four years old when she was first removed from mother's care. She has lived with her prospective adoptive mother, as well as with her sister A.K., for the past four years. Of the three children involved in this proceeding, A.C. has the strongest bond with her mother. However, the existence of an emotional bond between parent and child is, by itself, insufficient to warrant an exception to adoption. (In re Andrea R. (1999)
Mother's testimony that the visits with the children were "good" was not sufficient to meet her burden. As the juvenile court explained, "We're not looking for good. We're looking for a relationship that by [the court] severing it today would cause these children a severe detriment." The court noted, "To just go to the visits and making sure that the children are eating properly, eating good things and watching a video clearly is not what case law had intended."
Mother relies on In re Scott B. (2010) 188 Cal.App.4th 452 to argue that her parental rights should not be terminated. In that case, the child was nearly nine years old when he was removed from his mother's care, and remained strongly attached to her while placed in foster care. At the time of the section 366.26 hearing, the 11-year-old minor wanted to live with his mother, and threatened to run away. The Court Appointed Special Advocate stated that mother and child were extremely close, and that it would be detrimental to disrupt the relationship. While acknowledging that returning the child to his mother's care "may never be in his best interest, " (id. at p. 471) the appellate court found, given his "strong emotional attachment to Mother, his continued precarious emotional state, and his history of regressing and running away when he is stressed, there is a very good chance that he will have a meltdown if his usual frequent visitation with Mother does not continue." (Id. at p. 472.)
The same cannot be said in this case. Here, A.C. and B.K. repeatedly expressed their desire to remain placed with their prospective adoptive mothers. And unlike the minor in In re Scott B., supra, who had been raised by his mother for his first nine years, A.C., B.K. and A.K. were all young children when they were removed from mother's custody over four and a half years ago.
In sum, the juvenile court's finding that the children would not be greatly harmed by severance of the parent-child relationship is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.