Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK65149, Robert Stevenson, Juvenile Court Referee.
Jennifer Mack, 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.
EPSTEIN, P. J.
Mother I.L. appeals from an order terminating parental rights as to her son, D.E. She argues the juvenile court erred in failing to apply the beneficial relationship exception to termination of parental rights codified in Welfare & Institutions Code section 366.26, subdivision (c)(1)(B)(i). We find no error and affirm the court’s order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
D.E. (born in September 2006) and his sisters, G.E. (born in January 1993) and N.E. (born in December 1994), came to the attention of the Department of Children and Family Services (DCFS) when a urine sample taken from mother the day she gave birth to D.E. tested positive for methamphetamine, amphetamine, and cocaine. A urine sample taken from D.E. two days after his birth tested positive for cocaine metabolites. When interviewed by DCFS, mother denied using any form of controlled substance and stated that she did not know why the toxicology screening yielded positive results. The children were detained, and the girls were placed with a maternal aunt, C.L., while D.E. was placed in foster care.
G.E. and N.E. are not subjects of this appeal. Mother’s eldest child, A.E., lived with other relatives at the time the family came to the attention of DCFS. He was considered not to be at risk and was not detained.
At the time of D.E.’s birth, mother’s husband, the presumed father of the children, apparently was out of the country. He was present soon after, but the children were detained from him as well because family members indicated he had a history of alcohol abuse that inhibited his ability to care for the children.
Because father is not a party to this appeal, we discuss his involvement in the proceedings only as necessary for context.
On October 23, 2006, D.E., G.E., and N.E. were declared dependents of the court pursuant to section 300. The court sustained allegations that mother had a positive toxicology screen for cocaine, methamphetamine, and amphetamine at the time of D.E.’s birth; that D.E. tested positive for cocaine metabolites two days after birth, which would not have occurred but for the acts of mother; and that father had a history of alcohol abuse which remained unresolved. Family reunification services were ordered. Mother was to enroll in parenting classes and participate in drug counseling and weekly drug testing. The children were to remain in their placements, with both parents allowed monitored visitation. The court also advised mother and father that they had six months to reunify with the children, since one of the children was under three years old.
Shortly before the six-month review, mother and father took the girls from school. When maternal aunt C.L. contacted mother in search of the children, mother stated she and father had taken the children because “‘no one is going to take them away.’” On April 12, 2007, the court issued protective custody warrants for G.E. and N.E. and arrest warrants for mother and father. DCFS had been in the process of moving D.E.’s placement from foster care to the care of a maternal great aunt, but halted the transition out of concern that the parents would have access to D.E. D.E. eventually was placed with the great aunt, H.R., and great uncle, A.R.
Mother and father did not appear for the April 2007 six-month review hearing. Counsel for the children reported the whereabouts of the girls remained unknown. The hearing was put over to ensure DCFS had exercised due diligence to provide the parents with proper notice, and was ultimately held on July 31, 2007. At that time, the parents were believed to be residing in Mexico with the two girls, and D.E. remained in a placement with his great aunt and great uncle. Counsel for mother and father appeared at the hearing, but reported they had not been in contact with their clients. The court found mother and father had abducted two of the children, failed to keep in contact with DCFS, and failed to comply with the case plan. Family reunification services were terminated as to all three children. Because of the age of the girls and their unknown whereabouts, the court ordered long-term foster care as their permanent plan. A section 366.26 hearing was scheduled for D.E.
In February 2008, mother called maternal aunt C.L. to arrange for the girls to be turned over in Tijuana, Mexico. Mother also informed C.L. that she hoped to return to the United States in order to continue the process of getting her children back. An uncle picked up G.E. and N.E. in Tijuana and returned them to their placement with C.L. By February 27, 2008, mother had returned and was granted monitored visitation within the DCFS office.
The section 366.26 hearing for D.E. was held on June 9, 2008. Mother was present. D.E.’s great aunt and great uncle testified at the hearing. Each stated that they would prefer mother be permitted to continue her efforts to reunite with D.E., but that they loved D.E. as their own child and would be willing to adopt him. The adoption home study for D.E.’s great aunt and great uncle had been completed and approved, and DCFS recommended termination of parental rights. D.E.’s counsel joined in the recommendation of DCFS.
The court found by clear and convincing evidence that D.E. is adoptable and that it would be detrimental to return him to his parents. The court also found the beneficial relationship exception did not apply. Mother’s and father’s parental rights as to D.E. were terminated. D.E.’s custody was transferred to DCFS for adoptive planning and placement. Mother filed this timely appeal.
The juvenile court refers to the exception as appearing in section 366.26, subdivision (c)(1)(A), however the relevant provision was relettered as section 366.26, subdivision (c)(1)(B)(i), effective January 1, 2008. (See Stats. 2007, ch. 583, § 28.5.)
DISCUSSION
Mother contends the court erred in finding the beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i), did not apply. We disagree.
“The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) “By the time of a section 366.26 hearing, the parent’s interest in reunification is no longer an issue and the child’s interest in a stable and permanent placement is paramount. [Citations.] ‘In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.’” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Adoption is the Legislature’s first choice for permanent placement because it gives the child the best chance at a full emotional commitment from a responsible caretaker. (Ibid.)
In accordance with the preference for adoption, section 366.26, subdivision (c)(1) states that if the juvenile court finds the child adoptable, it shall terminate parental rights, unless certain exceptions apply. Mother relies on the exception for circumstances in which “[t]he 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).)
A reviewing court will affirm the juvenile court’s determination that the beneficial relationship exception does not apply if the ruling is supported by substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235; but see In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [concluding abuse of discretion standard is more appropriate, but practical difference between two standards is not significant].) “We determine whether there is substantial evidence to support the court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling.” (In re B.D., supra, 159 Cal.App.4th at p. 1235.)
“The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) The phrase “benefit from continuing the relationship” has been interpreted as referring 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 Mary G. (2007) 151 Cal.App.4th 184, 207.) “[T]he parent must show more than ‘frequent and loving contact’ [citation], and be more to the child than a mere ‘friendly visitor or friendly nonparent relative.’” (In re Helen W., supra, 150 Cal.App.4th at p. 81.)
D.E. has never lived with mother. He lived in foster care for the first several months of his life, then was placed with his great aunt and great uncle, with whom he has lived ever since. Mother visited D.E. regularly from the time he was born until the time she disappeared with his sisters, but she had no contact with him from April 2007 to February 2008. After mother’s return in February 2008, her visits lasted only one hour each week. Mother asserts that father took her to Mexico against her will and forced her to stay there with threats of violence. But since the beneficial relationship inquiry focuses on the quality of the existing relationship between parent and child, the fact that mother’s extended separation from the child may have been involuntary is not relevant. The focus in this inquiry is on the interests of the child, not the interests of the parent. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
In any event, the evidence of D.E.’s relationship with his mother before and after her time in Mexico is not such that the exception would have applied but for the period of absence. Mother has not provided any evidence to demonstrate that she is more than a “friendly visitor” to D.E. No bonding study appears in the record. No evidence of D.E.’s attachment to mother appears in the record. The reports regarding the quality of interaction between mother and D.E. merely say that their visits have gone “well and without incident.” This is hardly the showing necessary for a parent to meet the high standard for the beneficial relationship exception to apply. By way of contrast, D.E.’s potential adoptive parents have cared for him on a day-to-day basis since he was about six months old. D.E. refers to them as “mama” and “papa.” The juvenile court did not err in concluding the exception did not apply.
Mother further argues that guardianship would have been a preferable plan, because it would allow D.E. to enjoy the benefits of relationships with his mother and his great aunt and great uncle. “The Legislature has decreed, however, that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, ‘Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Accordingly, once the juvenile court correctly determined that the beneficial relationship exception did not apply, it was required to terminate parental rights in order to free the child for adoption.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: WILLHITE, J., MANELLA, J.