Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Nos. DP014065, DP017900, Maria D. Hernandez, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
MOORE, J.
Andrea J. (the mother) appeals the termination of her parental rights as to her sons, Anthony and I.C. She contends the court erred by finding that the benefit exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply. Because the trial court’s ruling was supported by substantial evidence, we affirm the judgment.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
We summarize the facts with our focus on the issues most pertinent to the appeal. In September 2006, Anthony, who was 10 months old at the time, and L.J., who was six and a half, were taken into protective custody after their mother was hospitalized for a psychiatric assessment pursuant to section 5150. The father, who was Anthony’s biological father and L.J.’s stepfather, was arrested at the same time for a parole violation. L.J. told the police there was domestic violence in the home. A few days later, the juvenile court ordered the children detained and ordered monitored visitation for the parents.
L.J. is not a subject of this appeal.
Shortly thereafter, Anthony was placed with his great-aunt, D.E. while L.J. was placed with her biological father. The mother had been given a mental health diagnosis, but had not been taking her medication prior to detention. She was enrolled in counseling and other services. After several visits, her therapist reported that the mother was emotionally unstable and needed long-term therapy and in-home assistance if the children were returned. In November, the Orange County Social Services Agency (SSA) reported that Anthony was visiting with the mother twice a week for two hours per visit.
At the jurisdiction and disposition hearing in January 2007, the mother and the father both pled no contest to the allegations of the amended petition. The court determined that Anthony came within its jurisdiction under section 300, subdivision (b) (failure to protect), declared him a dependent, and ordered services for both parents. In August, at the six-month review, continued services were ordered.
The mother’s relationship with the father remained somewhat unclear. In November, the court authorized the mother to have a 60-day trial visit with Anthony, but the father was not permitted to have unauthorized contact. In January 2008, SSA reported that the mother had allowed unauthorized contact between the father and the children in November, but the father was arrested shortly thereafter and sent back to prison. The mother denied that she had allowed unauthorized contact. By March, the father had been released and SSA continued to be concerned about the issue of unauthorized contact, but also believed the mother was committed to regaining custody. In April, the court granted the mother custody of Anthony under family maintenance supervision.
Unfortunately, in September, SSA filed a supplemental petition alleging that the mother had violated court orders by allowing the father unauthorized contact with Anthony, placing him at risk because of the father’s unresolved substance abuse problem. The mother had moved back into the father’s home. The court detained Anthony, who was again placed with D.E. SSA reported that the father continued to use drugs and had tested positive for methamphetamine. SSA was concerned about the mother’s judgment, noting that while she had completed parts of her case plan, she nonetheless continued to ignore court orders regarding unauthorized contact between the father and Anthony. D.E. reported that visits with the mother were “working out really well.” Anthony, who was nearly three years old, was doing well in D.E.’s care, and she was committed to adopting him if it became necessary. Because of the length of services, which had been ongoing for almost two years by that point, SSA recommended the court set a section 366.26 hearing.
By October, the mother had separated from the father and moved in with D.E. She had completed her case plan and was working full time. But in late October, SSA received a report from the father’s therapist that the parents were moving.
In December, the father was arrested once again. D.E. advised SSA that the mother was once again pregnant by the father, and I.C. a boy, was born shortly thereafter. SSA filed a petition to detain I.C. under section 300, subdivisions (b) and (j), based on the mother’s mental health issues, the history of domestic violence with the father, the father’s criminal history and unresolved substance abuse problems, and the mother’s failure to protect Anthony from the father. The court ordered I.C. detained and directed monitored visitation with both parents.
In January 2009, SSA reported that I.C. was placed with his great-aunt, Teresa. The parents had reunited, but the father was not in drug testing or treatment. The parents were advised that they would need to end their relationship unless the father was willing to comply with the case plan.
With respect to the mother, SSA noted that she had completed numerous services, but appeared “to have unresolved issues in her relationship with the child’s father... which cloud her judgment as a parent, to the point that she is not able to protect her children. The mother has been unable to demonstrate the ability to comply with court orders and directives from social services. Social workers involved in the case had ongoing concerns about information that the child’s mother was continually violating court orders as to [the father’s] visitation. The mother was warned repeatedly about allowing unauthorized contact.... Unfortunately, despite the mother’s hard work on her case plan, she chose to continue a relationship with [the father] over her children, illustrating some deeply entrenched dependency issues. The prior services have been ineffectual in resolving the[se] issues....”
In early February, the mother began counseling once again, but told the therapist that the father was “the only one that understands her.” The therapist thought the mother was “a little bit more motivated now.” The mother visited I.C. regularly, three times a week. She visited Anthony every other night for two hours. During the visits, she played with and bathed him, talked about their day, and watched television with him. Anthony reacted well to the visits. The siblings were in the same daycare and saw each other daily.
At the next hearing, in February, the parents pled no contest to the section 300 and 387 petitions. The court declared the children dependents, denied further services to the father, and extended services to the mother. Combined 6- and 18-month review hearings were set for August.
Prior to the August hearing, SSA reported the father had been incarcerated once again in May. The mother was taking medication and attending counseling, but she continued to defend the father and did not take responsibility for the children’s removal.
The mother’s visits during this period were monitored by the maternal grandmother, with six hours of visits per week. The mother complained her family was not allowing her to see the children, but the grandmother said the mother often requested “last minute” visits. SSA offered alternative arrangements, including SSA visitation monitors, but the mother did not follow through. Between January and May, the mother attended eight of 20 scheduled visits with Anthony.
SSA monitored a visit between the mother and Anthony in July. Anthony told the social worker he wanted to go home to “Mommy.” While the social worker noted the mother was appropriate in prioritizing the child’s needs, she also felt that the mother would at times comply with the child’s demands in a way that was not necessarily in his best interests, and she seemed to be unable to redirect the child. She suggested the mother participate in conjoint therapy with Anthony.
In September, SSA’s report was generally positive as to the mother’s compliance and her ability to provide an appropriate home environment. She had supervised, rather than monitored, visitation with the children for six hours a week and had overnight visits with Anthony as well as an additional weeknight visit.
In October, SSA recommended that reunification services be terminated and that a hearing pursuant to section 366.26 be scheduled. SSA believed the mother’s ability to provide necessary care was “inconsistent” and that she did not appear to consistently practice effective parenting within health and safety contexts. Anthony’s daycare provider reported that the mother had brought him to daycare after he had not been bathed for three days, according to the mother’s own admission. He had an odor that indicated a “profound lack of hygiene.” On another occasion, the mother failed to pick up Anthony from daycare and blamed a friend for failing to pick him up. On yet another occasion, the mother attempted to take both I.C. and Anthony from daycare without SSA approval.
SSA was also concerned about the mother’s MySpace page, which expressed the mother’s continued love for the father, and indicated that she anticipated resuming a relationship with him after his release. The social worker had previously believed the mother would continue to progress, but the mother had since engaged in behavior that caused her to question whether I.C. was safe in her care. Further, despite services since 2006, the mother’s issues with the father appeared to be unresolved. In November, the mother’s visits were reverted to supervised visits only.
By January 2010, the mother’s therapist and SSA reported positive progress. The therapist believed the mother was not corresponding with the father, and that she was ready to care for her sons. At the end of the month, the father was released from prison and began monitored visits. The father’s release caused SSA and the mother’s therapist concern about the mother’s ability to protect the children. A meeting with SSA, the mother and her therapist was held in March to discuss whether a 60-day trial visit between the mother and Anthony was appropriate. The mother was defensive of father, and she was unclear about resuming a relationship with him, which concerned her therapist. The therapist pointed out that despite the mother’s beliefs that he was a “good father, ” he had jeopardized the children’s safety by having guns in the home, abusing drugs and breaking the law. At the meeting’s conclusion, the social worker believed there was strong evidence the mother intended to resume her relationship with the father, and she no longer supported the trial visit. A few weeks later, a second meeting was held, and a 60-day visit was agreed upon, contingent on the mother agreeing not to contact the father. Weekend visitation was increased in preparation for the visit.
SSA learned that during a weekend visit in March, the father had been present in the home. L.J., who was also present for the visit, told her own father that she had been up all night because the mother and the father had been fighting. She heard the mother yelling “Don’t touch me.” Anthony told his daycare provider that the father had been present.
At an April hearing, the court heard testimony from the mother, her therapist, and the social worker. At the hearing’s conclusion, the court terminated services to the mother and scheduled a hearing pursuant to section 366.26.
Prior to the August hearing, SSA recommended the court terminate parental rights as to both Anthony and I.C. As to I.C., he was a happy and healthy 20 month old. Teresa had raised him since birth and was willing to adopt him. Anthony was also described as a developmentally on-target four year old. He had lived with D.E. since he was 10 months old, with the exception of the brief period when he was returned to his mother. D.E. was willing to adopt Anthony. While both caretakers indicated they expected to keep in contact with the mother, they both stated that future contact would be determined by the child’s best interests.
After hearing testimony at the section 366.26 hearing, the court noted that there was no doubt that the parents love the children. The mother, however, had established by her behavior that she would not put the children’s best interests first. The court found the children adoptable and further determined that the parents had not established that an exception to the statute applied. The court found that it was in the children’s best interest to allow them a stable, loving home with their respective adoptive parents, and terminated parental rights.
II
DISCUSSION
The mother argues the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(B)(i), typically known as the benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence test. (In re S.B. (2008) 164 Cal.App.4th 289, 297; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) In applying the substantial evidence test, “[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, held that abuse of discretion was the appropriate standard, but noted, “The practical differences between the two standards of review are not significant.”
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing by the parent that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) The parent must prove a substantive positive emotional attachment such that the child would be “greatly harmed” if deprived of the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)
This is a high standard to meet on appeal. The beneficial relationship exception to the termination of parental rights “may be the most unsuccessfully litigated issue in the history of law.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits-the parent must show that he or she occupies a parental role in the life of the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
SSA appears to concede that visitation was sufficient. Assuming that is the case, the court must also determine whether a child would benefit from continuing the relationship with the parent, balancing “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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In determining the existence of a beneficial relationship, we look to “[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs....” (Id. at p.576.)
Although the mother argues as if the two children were identically situated, that is not the case. She argues: “They know who their mother is, and look to her to be their mother.” We find no evidence at all to support this assertion as to I.C. Further, even if it is true, it does not establish, and there is no other evidence to establish, either a “parental role” or that he would be “greatly harmed” if parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Derek W., supra, 73 Cal.App.4th at p. 827.) I.C. was under two years of age at the time of the hearing, and he had never lived with his mother. At his age, any benefit from his relationship with the mother is far outweighed by the benefit of a permanent, stable adoptive home. The mother comes nowhere close to establishing otherwise.
As to Anthony, there is more evidence of a beneficial relationship with the mother, but it is still not sufficient to meet her burden. She cites In re Brandon C. (1999) 71 Cal.App.4th 1530. The question in that case was whether the record supported the juvenile court’s decision to order guardianship rather than termination of parental rights and adoption as the permanent plan for two children. (Id. at pp. 1532-1533.) The mother in that case had visited the children consistently for their entire dependency, and she testified that she had a close bond with them, as did the children’s guardian, their grandmother. The children looked forward to their mother’s visits, had a good relationship with her, and seemed to love her. The court concluded that under the circumstances before it, there was evidence of benefit sufficient to support the juvenile court’s decision. (Id. at pp. 1536-1538.) Here, in contrast, the question before us is not whether the evidence could support a finding that the beneficial relationship exception applied, but whether the court could reasonably conclude that it did not apply.
The record fully supports such a conclusion. We consider the Autumn H. factors, beginning with the amount of his life spent in the mother’s custody. Anthony was detained when he was 10 months old, and other than the few months when he was returned to his mother’s care, he has been placed in D.E.’s home. Anthony’s visits with the mother were generally positive, but there is no evidence that the visits met Anthony’s needs for a parent. “[A] child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In addition, the visits sometimes had a negative impact on Anthony, such as the incident where the father spent the night without authorization and apparently engaged in an argument with the mother.
The mother also relies upon In re Scott B. (2010) 188 Cal.App.4th 452, but that case is entirely distinguishable on its facts. The child in Scott B. was nearly nine years old when removed from his mother, and he had consistent weekly visits with her during dependency proceedings. Scott’s court-appointed special advocate stated repeatedly in her reports that Scott and his mother had a very close relationship and it would be detrimental to Scott for the relationship to be disrupted. Scott had insisted repeatedly that he would prefer to live with his mother, and was strongly bonded to her. (Id. at pp. 471-472.) Moreover, he was emotionally unstable and had threatened to run away if he was adopted because he wanted to live with his mother. (Id. at pp. 466, 471.) His “regressive” behavior had stabilized with “wraparound services and the support of Mother.” (Id. at pp. 465, 472.) Given these facts, the appellate court concluded the juvenile court should have applied the beneficial relationship exception to termination of parental rights, concluding that given Scott’s strong emotional attachment to his mother, his precarious emotional state, and his history of regressing and running away when stressed, there was a strong possibility he would have a “meltdown” unless his frequent visitation with his mother continued-something the court could not ensure if the mother’s parental rights were terminated. (Id. at p. 472.)
The facts here are quite different. While Anthony knew who his mother was, called her “mommy” and stated he wanted to live with her, there is a significant difference between a four year old and a nearly nine year old expressing such an opinion. Furthermore, in Scott B., there was a strong showing that the child would be “greatly harmed” if parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The mother here makes no such showing.
The mother also claims the juvenile court erred in its analysis of the case. Citing the recent case In re C.B. (2010) 190 Cal.App.4th 102, 128-129, she argues that using an improper standard is grounds for reversal. First, the mother claims the juvenile court considered the fact that the mother was not the children’s regular caretaker in analyzing whether the benefit exception applied. While the court did make such a statement, it was not discussing the benefit exception at that time, but the children’s need for permanency and stability. After stating that the parents had not carried their burden under the benefit exception, the court stated that the mother could not adequately protect them and provide stability and permanence. Again, nothing indicates the court was considering these facts as part of the benefit exception analysis. Read in context, unlike the situation in In re C.B., we do not find the court applied the wrong standard in its analysis. (To the extent the mother urges us to consider comments made by the social worker rather than the court, we reject such an argument entirely.)
The trial court properly concluded the benefit exception did not apply and therefore did not err in terminating parental rights.
III.
DISPOSITION.
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P.J., ARONSON, J.