Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Nos. J067565, J067566 Tari L. Cody, Judge
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County Counsel, Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.
GILBERT, P.J.
S.M. (Mother) appeals an order of the juvenile court declaring that her children D.M. and S.M. are adoptable, and terminating her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We conclude that Mother did not bear her burden of proving that the beneficial parental relationship exception to adoption applies, and we affirm. (§ 366.26, subd. (c)(1)(B).)
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
In September 2009, Mother gave birth to a daughter. Laboratory tests performed at birth revealed the presence of methamphetamine in Mother and the newborn. The reporting toxicologist described the infant's levels as "loaded" and stated that "[t]here is no logical or legitimate reason for methamphetamine to be in [her] system." Mother admitted to using methamphetamine approximately two months prior to giving birth, but denied more recent use.
On September 28, 2009, the Ventura County Human Services Agency (HSA) filed a dependency petition on behalf of Mother's older children five-year-old D.M. and three-year-old S.M. HSA alleged that Mother suffers from methamphetamine abuse and thereby places her children at substantial risk of serious physical harm. (§ 300, subds. (b), (j).) HSA also alleged that the children's father, Anthony M. (Father), was incarcerated and unable to provide for them. (§ 300, subd. (g).)
Following a hearing, the juvenile court ordered the children to be detained and placed in the custody and care of HSA. HSA then placed the children in foster care with the S. family. The court also ordered HSA to provide family reunification services to Mother and required her to submit to random drug testing and to attend Alcoholics or Narcotics Anonymous meetings three times a week.
Pending the jurisdiction and disposition hearing, HSA filed an amended dependency petition and a second amended dependency petition, alleging that Father had a history of drug abuse and domestic violence. HSA also alleged that in 2006, the juvenile court terminated Father's parental rights to a half-sibling of D.M. and S.M. (§ 300, subds. (b), (g), (j).)
On November 17, 2009, the juvenile court held a jurisdiction and disposition hearing. HSA reported that Mother had tested positive for methamphetamine recently and had twice offered diluted testing samples. Regarding Father, HSA recommended that he not receive family reunification services because he failed to reunify with an older child. (§ 361.5.) HSA also informed the court that the father of the newborn, Michael R., had assumed her care and custody.
Mother and Father attended the jurisdiction and disposition hearing and were represented by counsel. Following advice of and waiver of their rights, they submitted to the juvenile court's jurisdiction. The court then sustained the allegations of the petition, continued D.M. and S.M. in foster care, and ordered HSA to provide family reunification services to Mother only.
Mother's family reunification services plan required her to participate in substance abuse treatment and general counseling, attend and complete a parent education class, participate in a 12-step program, and submit to random drug testing. During the following eight months, Mother participated minimally in reunification services. She attended outpatient drug treatment inconsistently and did not submit to random drug testing.
Following a contested review hearing on July 8, 2010, the juvenile court terminated reunification services to Mother and set the matter for a permanent plan hearing pursuant to section 366.26. In ruling, the court stated, "[Mother has] done virtually nothing since the jurisdiction and disposition hearing.... [¶]... [¶]... We have offered you services and you've refused to participate...."
On December 21, 2010, the juvenile court held a permanent plan hearing. The court received evidence of HSA reports and testimony from Mother.
HSA reported that D.M. and S.M. had resided with the S. family for approximately 13 months, and that Mr. and Mrs. S. intend to adopt the children. HSA reported that Mother was consistent in visiting with the children and that the visits were affectionate and positive. She struggled to control the children, however, whose behavior was described as "unmanageable." HSA also reported that the children referred to Mother by her first name, rarely inquired concerning her, and that neither child asked to return to her care. The report concluded that the children "do not embrace the mother in a parental role."
HSA also presented evidence that Mother was pregnant and D.M. and S.M. appeared resentful and angry in response. D.M. expressed concern that the new baby would "replace him" and S.M. expressed angry and aggressive behavior.
Following argument by the parties, the juvenile court determined by clear and convincing evidence that D.M. and S.M. are adoptable and it terminated parental rights. The court found that the beneficial relationship exception to adoption did not apply, concluding that Mother had a "friendly visitor-type relationship" with the children that does not outweigh the benefits of adoption.
Mother appeals and contends that the juvenile court erred by not applying the beneficial parental relationship exception to adoption. Father is not a party to this appeal.
DISCUSSION
Mother argues that the juvenile court erred by terminating her parental rights because she established the beneficial parental relationship exception to adoption. She points out that she visited her children consistently and acted in a parental role (feeding and playing with them) during the visits. Mother adds that the children were closely bonded with her and that they were concerned that they would be "replaced" by the child of her recent pregnancy. She points to evidence that the visits were playful, active, and loving. In sum, Mother asserts that her relationship with her children promotes their well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [preference for adoption overcome by evidence of child's substantial positive emotional attachment to parent].)
Section 366.26, subdivision (c)(1)(B) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(B)(i) requires a showing of "regular visitation and contact" and "benefit [to the child] from continuing the relationship." "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The parent must establish the existence of a relationship that promotes the child's well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents. (In re Jason J. (2009) 175 Cal.App.4th 922, 936.) Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs after the court has repeatedly found the parent unable to meet the child's needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception requires proof of "a parental relationship, " not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs, among other factors. (In re C.B. (2010) 190 Cal.App.4th 102, 124; In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship may exist where children in mother's care the majority of their lives].)
The juvenile court did not err by finding that Mother did not bear her burden of establishing the beneficial relationship exception to adoption. Although Mother established that she consistently visited her children, she did not show that the relationship outweighed the well-being the children would gain in an adoptive home. D.M. and S.M. are young children who have lived for 13 months with the prospective adoptive family. They refer to the prospective adoptive mother as their mother, and to Mother by her first name. The social worker reported that the children do not inquire of Mother nor have they asked to return to her care. Moreover, Mother made little attempt to rehabilitate her addiction to methamphetamine. Once again pregnant, Mother's recent drug tests reveal that she has continued to use and expose a child in utero to methamphetamine. Although Mother's relationship with her children was loving and friendly, the children would suffer no great detriment if parental rights were terminated. (In re C.B., supra, 190 Cal.App.4th 102, 128 [necessary showing to establish exception].)
The order is affirmed.
We concur: YEGAN, J. COFFEE, J.