Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUVIJ7757, Christopher J. Sheldon, Judge.
Cristina G. Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Carole N. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Linda Rehm, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P. J.
Appellant D.M. (mother) is the mother of C.P. and J.P. (the children). Mother’s parental rights as to the children were terminated. On appeal, she contends the juvenile court erred in failing to apply the beneficial parental relationship exception. (Welf. & Inst. Code § 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Counsel for the children filed a letter brief on May 18, 2009, asking this court to affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2007, the Riverside County Department of Public Social Services (the department) filed a section 300 petition on behalf of the children. C.P. was eight years old at the time, and J.P. was five. The petition alleged that the children came within the provisions of section 300, subdivision (b) (failure to protect). Specifically, the petition included the following allegations: Mother had a history of drug abuse; in 1999 she and the children’s father (father) were provided with court-ordered services for substantiated allegations of general neglect, substance abuse, and domestic violence, and they failed to benefit from the services as they continued to abuse drugs; father had a history of abusing controlled substances; and the children were at risk of suffering emotional damage due to observing domestic violence between father and his wife (stepmother). The detention report stated that mother and father (the parents) had a prior dependency case in 1999 involving C.P., due to their use of controlled substances and domestic violence. The parents separated in November 2006 and father had custody of the children. The children lived with father and stepmother. Child Protective Services received a referral for general neglect on April 20, 2007. The social worker met with mother and strongly suspected that she was still involved with drug abuse.
Father is not a party to this appeal.
Detention
At the detention hearing on June 13, 2007, the court placed the children in the temporary custody of the department and detained them in foster care.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on June 29, 2007, and recommended that the parents be offered reunification services. The social worker stated that mother agreed to submit to a drug test on May 21, 2007, but failed to follow through. Furthermore, mother had made no attempts to contact the department with regard to the children. The maternal grandmother reported that mother was unemployed and used controlled substances. She also reported that the parents had a history of domestic violence. Father admitted using methamphetamine within the last month and stated that stepmother also used methamphetamine. The social worker attached a case plan requiring mother to complete a domestic violence program, participate in general counseling, participate in a 12-step substance abuse program, submit to substance abuse testing, and participate in an inpatient substance abuse program.
The court held a jurisdiction hearing on July 5, 2007. The court found that the children came within section 300, subdivision (b), and adjudged them dependents of the court. The court ordered mother to participate in reunification services and ordered supervised visitation.
Six-month Status Review
The social worker filed a six-month status review report on December 6, 2007, recommending that mother’s reunification services be continued. Mother had not completed one portion of her case plan and was “in complete denial” of any problems with substance abuse or domestic violence. Moreover, she was unemployed. As to visitation, the social worker reported that mother visited the children two times per month, she was appropriate with them, she often brought arts and crafts projects for them to do, and the children were happy to see her. The social worker reported that the children were placed with their godmother.
A six-month status review hearing was held on January 2, 2008, the court found that mother’s progress toward alleviating the causes necessitating placement had been adequate but incomplete. The court ordered reunification services to continue and that visitation be frequent and liberal.
12-month Status Review
The social worker filed a 12-month status review report on June 3, 2008, recommending that reunification services be terminated. The social worker reported that mother had been arrested on May 1, 2008, and charged with felony possession of a controlled substance, possession of drug paraphernalia, and violation of probation. She pled guilty to the felony charge, and the other two charges were dismissed. She was released from jail on May 7, 2008, and placed on probation for 36 months. The social worker reported that mother had been noncompliant with every component of her case plan. Specifically, mother was discharged from a substance abuse program after four weeks of treatment due to noncompliance, she failed to drug test, she was terminated from a domestic violence program, and she had not received any counseling. As to visitation, mother visited the children only once every two months, on average. As of the time of the report, mother had not visited the children since early March 2008. The social worker reported that C.P. was indifferent about visiting the parents, but J.P. still got excited about seeing father. C.P. was happy living with her godmother and had no desire to live with her parents. J.P. hoped that he could one day live with father. The social worker further reported that mother and father had been unreachable for extended periods of time. Mother did not return a single phone call from the social worker. Moreover, she was being evicted from her residence due to complaints of drug use, property damage, and traffic in and out of the home at all hours.
The 12-month review hearing was held on July 7, 2008, and the court found that mother’s progress in her case plan had been unsatisfactory. The court terminated reunification services, found adoption to be the appropriate permanent plan, and set a section 366.26 hearing.
Section 366.26The social worker filed a section 366.26 and postpermanency review report on September 26, 2008, recommending that parental rights be terminated. There had been no contact between mother and the children since March 8, 2008. C.P. usually expressed disinterest in seeing the parents; however, J.P. still was excited about seeing them, especially father. The children had lived with their godmother since August 13, 2007, had a deep bond with her, and were comfortable living with her. The children were requesting to remain in her care, and she was committed to and capable of providing them with a permanent home. The godmother completed the adoption assessment. The social worker opined that it was in the children’s best interests to be adopted by her.
The social worker filed an addendum report on October 28, 2008, stating that mother had finally enrolled in a drug treatment program. However, C.P. remained adamant that she did not wish to live with mother. Mother had two supervised visits, on September 30 and October 11, 2008, but they were noted to be unremarkable. The social worker still recommended adoption by the godmother.
The court held a section 366.26 hearing on November 4, 2008. The court terminated parental rights and found that adoption would be the permanent plan.
ANALYSIS
The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship” refers to a parent/child relationship that “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 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. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, mother has not met her burden since she failed to show that she maintained regular visitation or that the children would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother merely declares that her relationship with the children comes within the beneficial parental relationship exception because they “had spent a majority of their lives with her and shared positive interactions with her when they were together.” She asserts that her bonding with them during that time “was enough to lay the foundation for a beneficial relationship.” Mother’s argument is weak at best. The evidence showed that she did not maintain regular visits with the children. Although she visited them two times per month during the first six months of the dependency, her visits decreased to once every two months, and then to no visits or contact at all from March 8 to September 30, 2008.
Furthermore, when mother did visit, her interactions with the children did not even begin to demonstrate that her relationship with them promoted their well-being “to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother merely states that she was appropriate with them, there was no evidence that her relationship with them was harmful, the supervised visits were positive and went well, and the children were happy to see her. She has proffered no evidence to support a finding that the children had a “substantial, positive emotional attachment [with her] such that [they] would be greatly harmed” if the relationship was severed. (Ibid.) In fact, the evidence indicates the children were not bonded at all with mother. C.P. did not want to live with mother and was indifferent about visiting her. J.P. only mentioned that he got excited about seeing father and hoped to one day live with him. In contrast, the record shows that the children were bonded with the godmother and were thriving in their prospective adoptive home, where they had lived for over a year. The children were comfortable living with their godmother and requested to remain in her care. The godmother was willing and able to provide a permanent, loving, and stable home for the children.
Mother argues that the termination of parental rights was not appropriate because of issues concerning the prospective adoptive parent, the godmother, such as her age and a “possible genetic predisposition to a shorter than average life expectancy.” However, at a section 366.26 hearing, if the court determines that it is likely that a child will be adopted, “the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) The question of adoptability usually focuses on the child. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) “If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.]” (Ibid.) (Italics added.)
We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not apply here.
DISPOSITION
The order is affirmed.
We concur: MCKINSTER, J., RICHLI, J.