Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK42436, Donna Levin, Juvenile Court Referee.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
After conducting a hearing pursuant to Welfare and Institutions Code section 366.26, the juvenile court terminated the parental rights of L.I. (mother) to A.M. (minor). On appeal, mother contends that the juvenile court should have applied the beneficial relationship exception.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find no error and affirm.
FACTS
On October 17, 2007, when the minor was seven months old, she was detained due to mother’s use of methamphetamines and inability to provide the minor with regular care. At the time of the detention, mother was incarcerated. Mother had an 18-year history of drug abuse. She also had a history of domestic violence with the minor’s father (father) and a history of being involuntarily hospitalized due to psychiatric problems.
The minor was declared a dependent and placed with her maternal aunt and uncle. In its November 27, 2007 report, the Department of Children and Family Services (Department) indicated that the minor was adjusting well to her placement. It also indicated that mother had visited only three or four times.
On January 3, 2008, the juvenile court ordered monitored visits three times a week for three hours. In a report dated February 12, 2008, the Department stated: “As of this writing, visitation has been inconsistent. Visits are brief and are frequently cancelled or rescheduled.” About a month later, the Department reported that the visitation schedule had been changed several times at mother’s request and that her visits were inconsistent “and often low in quality. Mother disputes these claims.” A social worker observed that mother tried to put the minor to sleep as soon as possible after a visit started so that their visits could consist of them sleeping together. Mother often made phone calls and copied documents during visits, and she always left the visits early.
In mid-March 2008, the minor appeared to be happy and healthy in the care of maternal aunt and uncle. She also appeared to be comfortable in mother’s presence. Mother often made maternal aunt and uncle wait for mother to show up to visits. At a meeting to discuss mother’s visitation, it appeared to the social worker that mother was actively using drugs. The parties agreed to a monitored visitation every Monday, Tuesday and Thursday from 9:00 a.m. to 12:00 noon. But by the end of March, maternal aunt reported that mother’s behavior became erratic after she received a copy of a report given to the juvenile court. Mother became hostile toward maternal aunt and said things like, “I would kill for my kids.” Mother also became paranoid, believing that she was being followed and her phones were being tapped. It was further reported that mother believed she was going to take the minor and her sibling to Italy in two weeks. Mother obtained their birth certificates, filed applications for them to become Italian citizens and tried to get them passports. Her physical health and emotional stability appeared to be deteriorating.
Mother is purportedly a dual citizen of Italy and the United States.
Visits were shortened to two hours and were scheduled to take place on Tuesdays and Thursdays at the Department’s offices.
Mother visited with the minor on April 3, 2008. Initially, the visit went well. Mother interacted with the minor and tried to keep her busy. The minor responded to mother. After about 20 minutes, mother asked the monitor why the visits had to be monitored. Mother spoke to several social workers. Instead of listening, she became confrontational. The visit was terminated.
Mother was arrested in June 2008 for driving on a suspended license and reported that she spent 10 days in jail. She was arrested on June 19, 2008, on a felony charge and released on June 20, 2008.
For the six-month review hearing, the Department reported that the minor continued to thrive in her placement. Mother had become homeless and had abandoned her drug treatment and parent education programs and was not involved in any court-ordered services. Because maternal aunt and uncle wanted to adopt the minor, a home study had been ordered. In a supplemental report, the Department indicated that mother was visiting the minor three times a week for two-hour visits. During those visits they played together at a park. No negative incidents were reported. Subsequently, mother was arrested on July 17, 2008, for fraud and was incarcerated with no bail.
On August 22, 2008, the juvenile court held the six-month review hearing. It terminated mother’s reunification services.
In the report for the section 366.26 hearing, the Department wrote that “[the minor] appears to have completely adjusted to her placement home as evidence[d] by her apparent attachment to [maternal aunt and uncle]. [The minor] is very affectionate toward [maternal aunt and uncle] and willingly goes to them in time of stress. [The minor] appears to view [maternal aunt and uncle] as her parents and is treated in the family as a birth child.” In a subsequent report, the Department indicated that the minor appeared to view maternal aunt and uncle as her primary parental providers.
The section 366.26 hearing took place on March 18, 2009. Mother was transported from jail so she could appear. According to mother, she visited the minor every opportunity she was given. She stated: “[The minor] used to run to my arms.” Due to mother’s incarceration, she had not seen the minor in eight months. She claimed that she wrote the minor letters. And mother claimed that she often called. But she admitted she spoke to the minor only once. She testified that she was scheduled to be released from prison in June 2010. Maternal aunt testified that the minor calls her “mommy” and maternal uncle “dad.” She further testified that during the first five months of the minor’s life, she watched the minor while mother and father were working.
After concluding that it would not be detrimental to sever the minor’s bond with mother, the juvenile court terminated mother’s parental rights.
This timely appeal followed.
DISCUSSION
Certain courts apply the substantial evidence test when evaluating whether a parent has established an exception to the termination of parental rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) Other courts apply the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [noting that the difference between the two tests is insignificant].) Under either standard of review, the juvenile court’s order terminating mother’s parental rights must be affirmed. Simply put, mother did not meet the burden of establishing that she “maintained regular visitation and contact with the [minor] and the [minor] would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The first issue is whether mother maintained regular visitation and contact with the minor. Impliedly, the juvenile court found that mother failed to satisfy this prong. This factual finding cannot be second guessed if it is supported by substantial evidence. We must resolve all conflicts in favor of the Department and indulge every reasonable inference in support of the order. (Flippin v. Los Angeles City Bd. of Civil Service Commissioner (2007) 148 Cal.App.4th 272, 279.)
Mother was incarcerated when the minor was detained. Between her first and second incarceration, she had the opportunity to visit the minor sometimes three times a week and sometimes two times a week. Mother testified that she took every opportunity to visit the minor. But the Department’s reports indicate that the visits were sporadic in the first part of 2008. In particular, in January 2008 it was reported that mother’s visits were brief and she frequently canceled or rescheduled. In March 2008, the Department indicated that mother’s visits “have been inconsistent and often low in quality.” Due to mother’s erratic behavior in March 2008, her visits were reduced. Resolving the conflicts in favor of the Department, we conclude that mother’s visitation from November 2007 through March 2008 was inconsistent. By all indications, her visitation was regular from April 2008 through the time she was incarcerated in July 2008 except for the 10 days she spent in jail in June 2008. At most she had about three and a half months of consistent visitation. But ultimately this does not matter. Once mother was incarcerated on fraud charges, her visitation with the minor ceased. Mother had not seen the minor for eight months at the time of the section 366.26 hearing. The evidence clearly established that mother did not maintain regular visitation.
The second issue is whether the minor would benefit from continuing her relationship with mother.
A child benefits from continuing a relationship if “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, the court balances 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.” (Ibid.) Some courts have concluded that the parent must prove that she occupies a parental role in the child’s life. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
The minor was only seven months old when she was removed from mother’s custody. It is unclear from the record when the minor and mother last visited. Presumably the last visit was in July 2008 before mother was incarcerated. At that time the minor was only 16 months old. While mother testified that the minor would run to her during visits, in February 2008 maternal aunt stated that the minor cried when she was with mother because the minor wanted to be with maternal aunt. A social worker observed that mother made phone calls and copied documents during the visits and always left early. Also according to the social worker, mother wanted to put the minor to sleep during the visits. Though there were reports that some of the visits went well, there was no evidence establishing that the minor had a strong bond with mother. For instance, there was no evidence that the minor was upset when she could not see mother, or when visits ended. There was no evidence that the minor ever asked for mother. Significantly, there was no evidence that the minor suffered any trauma being separated from mother for eight months. In contrast, the evidence submitted by the Department established that the minor calls maternal aunt and uncle mommy and dad and is happy and well adjusted in their care.
The evidence and inferences support the juvenile court’s finding that severing the minor’s bond with mother would not cause detriment. In particular, they establish that she is strongly bonded to maternal aunt and uncle and that her bond to mother is nothing comparable. On balance, the minor’s security and sense of belonging in the home of maternal aunt and uncle far outweigh the benefit she would receive if mother remained her parent. We therefore easily conclude that the juvenile court’s order was supported by substantial evidence and that its ruling cannot be construed as an abuse of discretion.
DISPOSITION
The order is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ,, J.