Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK43522 Anthony Trendactosa, Commissioner.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Mother K.P. appeals from the dependency court order that terminated her parental rights to daughter A.L. We reject mother’s contention that the trial court erred because she maintained a sufficiently beneficial relationship with the daughter, and affirm the order.
As is often the case in these proceedings, the record is long and detailed. We have distilled the facts to those necessary to resolve the one issue raised on appeal.
In August 2007, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition asking the dependency court to take jurisdiction of seven-year-old A.L. and her newborn half-sibling D.R. because their mother, K.P., used methamphetamine during her recent pregnancy. (Welf. & Inst. Code, § 300.) Seven years earlier, mother lost her parental rights to her daughter D.P. because she used methamphetamine during that pregnancy, and failed to reunify with D.P. A.L. had been living with the father of two other half siblings. A.L.’s father could not be located. In September 2007, A.L. was released to the custody of her paternal grandmother. In October 2007, the court declared A.L. a dependent child because of mother’s drug use, failure to reunify with D.P., and failure to provide for A.L.’s basic necessities. The petition was also sustained as to A.L.’s absent father because he was not providing for her needs.
All further section references are to the Welfare and Institutions Code.
Mother had also given birth to other children through different fathers.
In June 2008, the court terminated reunification services for mother because she was not complying with her case plan, which included drug rehabilitation and random drug testing, parent education, and individual counseling. During the previous seven months, it was reported that mother had only brief and infrequent visits with A.L., and failed to show for visits she had promised to make. In a February 2008 report, A.L. told her grandmother that she did not want to see mother because mother was a liar, and A. L. had not asked about her mother since then. A.L. was reportedly doing well in her grandmother’s care. In September 2008, DCFS recommended adoption by the grandmother as the permanent plan for A.L.
A parental rights termination hearing (§ 366.26) took place on June 1, 2009. Mother did not appear, but, based on her lawyer’s offer of proof, DCFS stipulated that mother would have testified that: she visited A.L. weekly; she periodically assists A.L. with homework and with bathing; and A.L. called her “mother.” Based on this, mother’s lawyer argued that her parental rights should not be terminated because mother regularly visited daughter, and they had a beneficial parent-child relationship so strong that it would outweigh the benefits of adoption in a permanent and stable home. (§ 366.26, subd. (c)(1)(B)(i) (the beneficial relationship exception).)
We discuss this section in detail post.
A DCFS report prepared for that hearing told a different story. According to that report, mother visited once or twice a month and sometimes failed to show up for scheduled visits. When mother failed to appear as promised, A.L. got upset. According to the grandmother, A.L. no longer wanted to see her mother. Mother had not contacted DCFS since the last hearing. Mother had been arrested and released for driving with a suspended license in April 2009 and was pregnant again. Mother had not attended or completed any of the court ordered programs and was no longer drug testing. A.L. was thriving in grandmother’s care.
Referring to the DCFS report, the trial court said that whether mother’s once or twice a month visits with A.L. could be considered regular visitation was “I guess, arguable.” The fact that A.L. got upset when mother failed to visit cut both ways, the court said. While it suggested there was some type of bond between them, it did not show the type of relationship that was worth saving. Even if mother’s visits could be considered regular, a finding the court expressly declined to make, the parent-child relationship was “not healthy” and did not satisfy the requirements of the beneficial relationship exception. The court found it likely A.L. would be adopted and therefore terminated mother’s parental rights.
DISCUSSION
If there is clear and convincing evidence that a dependent child is likely to be adopted and a previous determination that reunification services should be terminated, there is a presumption favoring adoption as the permanent plan. (§ 366.26; In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Guardianship or long-term foster care may be selected only if exceptional circumstances exist, as defined in section 366.26, subdivision (c)(1)(B)(i)-(vi). (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
Mother contends the order terminating her parental rights was improper under the beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) The beneficial relationship exception must be considered in light of the Legislature’s preference for adoption when reunification efforts have failed. The exception does not allow a parent who has failed to reunify with an adoptable child to stymie an adoption simply because there is evidence that the child would derive some benefit from continuing a relationship with the parent. The exception “is not a mechanism for the parent to escape the consequences of having failed to reunify.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) In order for the exception to apply, the parent must have visited the child regularly and have maintained such a strong and beneficial parent-child relationship that terminating parental rights would be to the minor's detriment. (Id. at pp. 1348-1349.) Although daily interaction is not necessarily required, the relationship must be that of parent and child. A relationship that is merely friendly or familiar is not enough. (Id. at pp. 1349-1350.) A parent bears the burden of proving that the beneficial relationship exception applies. (Id. at p. 1350.) We will affirm the dependency court’s order finding the exception inapplicable if the order is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577.)
Mother contends: (1) the DCFS stipulation to her offer of proof about the frequency and nature of her visits with A.L. was in fact a stipulation to the truth of that testimony; and (2) those facts compelled the dependency court to apply the beneficial relationship exception. She is wrong.
DCFS stipulated to nothing more than the content of mother’s testimony if she had appeared and testified. The dependency court must have viewed it that way, because when discussing the frequency of mother’s visitation, it referred to the once or twice a month visits described in the DCFS report, not the weekly visits described in mother’s offer of proof. Applying the substantial evidence rule to the appellate record, when A.L. was first detained in August 2007, she told DCFS that she visited mother every other weekend and loved her mother. After that time, however, the evidence showed that mother visited sporadically and often missed scheduled visits, causing A.L. to become upset and declare she did not want to see mother anymore because she was a liar. Even if mother’s offer of proof about the nature and quality of her visits between the time of detention and the parental rights termination hearing is believed, it shows nothing more than her assumption of the occasional parental tasks of helping a child with homework and hygiene. Nothing in the record shows that at the time of the dependency court’s order, mother had maintained the type of consistent, loving parental interaction required by the beneficial relationship exception. In fact, nothing in the record describes mother’s interactions with A.L. at that time at all or shows how A.L. would benefit from continuing their relationship. As a result, we hold there was substantial evidence to support the dependency court’s order.
DISPOSITION
We affirm the dependency court order terminating mother K.P.’s parental rights to minor A.L.
WE CONCUR: FLIER, J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.