Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. J511174D-F, Laura J. Birkmeyer, Judge.
McINTYRE, J.
Janice C. appeals orders terminating her parental rights to her children, Destiny C., Emily C. and Roman C. She contends the juvenile court erred by not applying the beneficial parent-child relationship exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) to termination of parental rights and adoption. (Statutory references are to the Welf. & Inst. Code.) We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 2007, United States Border Patrol officers arrested Janice for transporting illegal immigrants across the border from Mexico. Emily and Roman's paternal uncle informed the San Diego County Health and Human Services Agency (the Agency) that five-year-old Destiny, two-year-old Emily and one-year-old Roman (together the children) had been left at his home. The Agency petitioned on behalf of the children under section 300, subdivisions (b) and (g), alleging Janice brought illegal immigrants into her home, took the children with her when she crossed the border with illegal immigrants, smoked marijuana and kept it within reach of the children, and had been arrested.
Janice had lost custody of four other children through the dependency system, and another child is living with his father. Destiny earlier had been a dependent child. She reunited with Janice in 2005.
Destiny said Janice smoked "weed," got drunk and hit her with a belt. Destiny had been with Janice when she brought illegal immigrants across the border and was afraid when Janice left her alone with them.
The court found the allegations of the petitions true, removed the children from Janice's custody, continued their placement with the paternal aunt and uncle (the aunt and uncle) and ordered Janice to comply with her case plan.
Janice was sentenced to 18 months in custody. She telephoned the children regularly and participated in services while in prison. At the six- and 12-month review hearings, the court continued services.
In April 2008 the social worker reported Janice had been released from prison and was living in a halfway house and visiting the children. However, Destiny sometimes said she did not want to visit because Janice was mean and said things to hurt her feelings. The visitation monitors reported Janice had problems with discipline and showing empathy, and she yelled at staff because they suspected she had used drugs. She was dropped from her work furlough program, and her therapist dropped her from therapy for lack of attendance. Janice's probation officer reported she did not appear for five drug tests between August and November 2008. A test in November was positive for marijuana.
In January 2009 the court found Janice had not made substantive progress toward reunification, terminated services and set a section 366.26 hearing.
The social worker recommended terminating Janice's parental rights. By the time of the social worker's report, the children had lived with the aunt and uncle for more than two years. There had been problems with Janice's visits with the children. The visitation monitors said during visits Janice sometimes showed she could fulfill a parental role, but she did not put the children's needs ahead of her own. She did not appear for some visits and cancelled others. Destiny said she did not want to see Janice and did not like her. The social worker assessed the children as adoptable. The aunt and uncle wanted to adopt them, and other families were interested in adopting children with their characteristics.
At the time of the section 366.26 hearing on July 6, 2009, Janice had been returned to custody for violating probation conditions. She had not contacted the children since her return to prison. The court considered the documentary evidence and counsel's arguments. It found the children were likely to be adopted if parental rights were terminated and that none of the statutory exceptions to adoption was present. It terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
Janice contends the court erred by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption. She argues while she was incarcerated she did all she could to maintain a bond with the children, and once she was released from custody they had regular, loving visits. She claims she and the children have a beneficial parent-child relationship and it would be detrimental to them to sever their bond.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show that termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."
In reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Janice was incarcerated and could not visit the children from the time they were detained in February 2007 until April 2008. After her release from custody, she began having visits with them, but by mid-July 2008, the supervisor at the visitation facility cancelled visitation because Janice yelled at Emily for calling her aunt "mom"; Janice did not stop the children from hitting each other; she spoke Spanish to the children so the monitor could not understand what she was saying; and she continued to tell Destiny she would be returning home soon. The monitor said Janice could not deal with all three children at once. Janice then began having visits at the Agency offices, but she cancelled some visits and did not appear for others. Of the 13 visits scheduled in early 2009, she did not appear for eight and cancelled two. She was taken into custody again in early 2009; by the time of the hearing in July 2009, she had not seen the children since February. Janice did not show she maintained regular visitation and contact.
Janice also did not show that she had met the second prong of the beneficial parent-child relationship exception. The visitation monitors reported that during visits Janice demonstrated a parental role some of the time. However, they also reported she did not show she understood the children's developmental ages and could not put the children's needs ahead of her own. Destiny had refused to go to visits with Janice and said she did not know her because she had been in jail. The social worker concluded the children's relationship with Janice was not parental, but more like a relationship with a distant relative. Janice did not show she had a beneficial parent-child relationship with the children or that the advantages of continuing that relationship would outweigh the benefits of adoption. The court did not err by finding the beneficial parent-child relationship exception did not apply and by terminating Janice's parental rights.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J.NARES, J.