Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEJ300179. Jamileh Schwartzbart, Commissioner.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Harris, A.P.J., Levy, J., and Gomes, J.
Nancy Y. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two young daughters, A.H. and C.H. She contends the court should have applied the parent/child relationship exception to termination (§ 366.26, subd. (c)(1)(A)) based on evidence of the children’s visits with her. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In early November 2006, two-and-a-half-year-old A.H. and one-and-a-half-year-old C.H. lived as part of a blended family with their mother (appellant), her boyfriend, their infant daughter, and the boyfriend’s two sons. On November 11th, one of the boyfriend’s sons, four-year-old J., was diagnosed with non-accidental trauma while in appellant’s care. His injuries included third degree burns to both of his feet. In addition, appellant failed to seek immediate medical treatment for J. As a consequence, respondent Fresno County Department of Children and Family Services (department) detained the children that same day and initiated the underlying dependency proceedings. The following month, the Fresno County Superior Court exercised its dependency jurisdiction over each of appellant’s daughters, having found they were at substantial risk of suffering serious physical harm inflicted non-accidentally by appellant.
In January 2007, appellant was arrested on felony charges arising out of the harm J. had suffered. Due to her incarcerated status, she initially declined to have visits with her daughters. A month later, she requested and the court granted her reasonable supervised visitation.
Later still in March 2007, the Fresno County Superior Court adjudged each of appellant’s daughters dependent children, removed them from her custody, and denied her reunification services based on the severe physical harm she inflicted on J. (§ 361.5, subd. (b)(6)) and the detriment services would cause the children due to appellant’s incarcerated status (§ 361.5, subd. (e)(1)). In the case of A.H. and C.H. (the girls), the court also set a hearing pursuant to section 366.26 to select and implement a permanent plan for them. Finally at the March dispositional hearing, the court authorized the girls’ paternal aunt to supervise visits at the jail with appellant. The department placed the girls in their paternal aunt’s home in February 2007.
The court had denied their alleged father services (§ 361.5, subd. (a)) while it had granted reunification services for appellant’s boyfriend, the father of their infant sister.
The court eventually conducted a contested section 366.26 hearing in October 2007. In the interim, appellant was sentenced to serve a seven-year prison term and transported to state prison. In addition, the department prepared both a “366.26 WIC Report” and an “Addendum Report” in which it recommended the court find the children adoptable and terminate parental rights. The department had identified the paternal aunt as the girls’ prospective adoptive mother. The girls called her “‘mommy’” and appeared attached to her.
Appellant has appealed her June 2007 conviction and sentence to this court. (F053111, People v. Y[.])
Prior to appellant’s June 2007 transfer to state prison, the paternal aunt supervised weekly visits between appellant and the girls at the local jail. The record contains no information about those visits except for three visits, which department staff also supervised, between late March and mid April 2007. After her prison transfer, appellant had one visit with the children in late July 2007 when she was apparently in local custody having been transported for the original section 366.26 hearing. That visit was also documented by the department. During the course of those visits, the department observed A.H., who by then was three years old, to be outgoing, talkative, and friendly towards everyone. She showed interest in appellant by talking to, playing peek-a-boo with, and asking questions of her. By comparison, the younger child, C.H., did not show much interest in appellant. While excited during initial visits, C.H. later became reserved, passive, and attached to her paternal aunt. C.H. also whined and wished to leave the jail visitation room. At appellant’s request, narratives of the four department-supervised visits were admitted into evidence. They reveal that the visits were limited to 30 minutes and occurred in a jail visitation room where appellant and the girls were separated by a glass wall and communicated in some instances by phone.
According to the first narrative, the girls were excited to see appellant on their March 28th visit and took turns talking to her on a jail phone. Appellant paid attention to her daughters by making good eye contact and using a respectful tone. The visit ended uneventful for the girls.
The second narrative described an April 7th visit occurring in a room with a two-way speaker system so that all could communicate without any problem. Both girls were happy to see appellant. A.H. asked when appellant would be coming home. Appellant replied she was sick and would have to stay until she was better. A.H. repeated the same question later during the visit. The girls described an out-of-town trip to appellant and also played peek-a-boo games with appellant. Within 20 minutes time, C.H. was tired and made her way onto her aunt’s lap. Meanwhile, A.H. kept talking to appellant about the trip. As the visit came to an end, both girls began drumming on a metal stool and dancing. They “were beaming happiness” as they performed. Once the girls were done and the social worker said it was time to say good-bye, they waved to appellant as they first walked and then ran out of the area.
The third narrative described, in very brief terms, the family’s April 15th visit. A.H. was “very excited” to see appellant and talked to her for “15 minutes straight.” C.H. was described as merely “sitting in front of the window.”
The author of the fourth and final narrative described her observation of the children both before they arrived in the visiting area as well as once appellant appeared for the late July 2007 visit. Before the visit commenced, the aunt was “really happy with the girls.” A.H. was talkative and interactive towards everyone while C.H. appeared “really shy at first.” Once the visit commenced, the girls were excited to see appellant. Appellant and A.H. chatted while C.H. appeared more interested in playing in a corner with the aunt. Appellant again told A.H. that she (appellant) was sick and would be gone for a long time. A.H. said she missed appellant. Appellant blew kisses to the girls, causing them to respond with smiles and by blowing kisses to her. The girls had fun until they began to fight. C.H. apparently instigated the fight as “[b]oth ‘moms’ were telling [her] to stop.” C.H. also tried to open the door and leave while appellant spoke to her. As the time for visiting concluded and appellant said her good-byes, they did not want to leave. Their aunt took the girls by the hand to leave and the girls looked back towards appellant.
By the eventual October 1st section 366.26 hearing, the department and the children’s counsel submitted the matter on the department’s reports while appellant contested the department’s adoption recommendation. She also took the witness stand on her own behalf.
Appellant testified first regarding a visit she had the night before with the girls. It was their first visit in about two months and lasted 30 minutes. According to appellant, the girls still recognized her as well as missed and loved her. During the visit, the girls were happy. They reported they had two mommies and were proud of it.
Appellant further testified that she disagreed with the department’s recommendation because no mother and daughter should be permanently separated. Although she believed she had a relationship with the girls because they were her daughters, she acknowledged termination would not harm the girls. It would affect them because, in appellant’s view, there should be no permanent mother/daughter separation but they were with family.
Following closing arguments, the court found the girls were likely to be adopted and terminated parental rights. The court also expressly rejected appellant’s claim of a beneficial parent/child relationship. It explained while there may have been frequent contact as allowed and that contact might be positive and loving, appellant failed to satisfy her burden of establishing that the girls’ relationship with her was such that continuing it would outweigh the benefit the girls would achieve through adoption.
DISCUSSION
Appellant contends the court erred when it declined to find termination would be detrimental to the girls’ best interests. Appellant claims she proved she maintained regular visitation with the girls and they would benefit from continuing the relationship to such a degree as to outweigh the well-being they would gain through adoption (§ 366.26, subd. (c)(1)(A)).
Since the time of the superior court’s decision in this case, the Legislature has amended section 366.26, subdivision (c) effective January 1, 2008. We have followed the version of the statute in effect at the time of the court’s ruling.
At the permanency planning stage, the juvenile court focuses on dependent children’s needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351), not whether there was substantial evidence to support the court’s decision, as appellant would prefer. On review of the record, we find no abuse of discretion.
We assume, for the sake of argument, appellant maintained regular visitation with the girls. Nonetheless, those visits, as previously noted, were very restricted in terms of time, place, contact, and supervision.
While respondent argues at length that there were but five visits, the four documented narratives and the visit appellant testified about, respondent ignores its own “WIC 366.26 Report” which disclosed weekly visits supervised by the paternal aunt up between March and June 2007.
Although appellant claims the narratives of those visits prove the girls shared a parent/child relationship with her, the court was not compelled to so find. At most in this regard, the visitation narratives and appellant’s testimony about her latest visit merely established that the girls recognized her as their mother and for the most part were responsive to her.
In addition, appellant failed to establish their relationship was so strong that the girls would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Indeed, appellant testified termination would not harm the girls. In any event, the loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) At best, what the visits showed in this respect was that A.H. in particular enjoyed her visits with appellant and had a fun time. However, as the department also reported, A.H. was outgoing, talkative, and friendly towards everyone.
Nonetheless, appellant contends that factors, used to assess whether a parent/child relationship is important and beneficial to the child, weigh in her favor. Citing In re Angel B. (2002) 97 Cal.App.4th 454, 466, she argues the girls’ ages, the portion of her life spent in her custody, the positive effect of their interaction, and their particular needs establish that the court abused its discretion. We disagree.
One, both girls were less than four years old at the time of the 2007 termination hearing. Given their young ages, they faced a majority of their childhood in potentially unstable and less than permanent placement, absent adoption. Certainly this factor weighed in favor of adoption, rather than a continued relationship with appellant. Likewise, the portion of their lives spent in appellant’s custody was relatively minor compared to the more than a decade they would spend in foster care or legal guardianship. Moreover, whatever positive effect their visits had, the girls’ future contact would necessarily be limited to periodic prison visits for at least the next few years. Also, at some point, they would likely realize appellant was not sick as she had told them but rather imprisoned. Finally, while appellant argues the girls needed her, the court did not have to so find on the record before it.
“[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: ‘balance[] 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, no such evidence was introduced to compel the court to find detriment. Accordingly, the court did not abuse its discretion by rejecting appellant’s argument.
DISPOSITION
The order terminating parental rights is affirmed.