Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J225588 Marsha Slough, Judge.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
V.J. appeals an order terminating her parental rights to her son, E.J. She contends that the juvenile court erred in failing to apply the beneficial parental relationship exception to the statutory preference for adoption. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
E.J. was born in March 2008. His mother, V.J., was 18 years old and lived with her mother, C.J. and her stepfather, O.G.-P. In February 2009, she took E.J. to the emergency room at St. Bernardine’s Medical Center after another doctor told her the baby’s leg might be broken and recommended getting it X-rayed. The emergency room physician determined that E.J. had a spiral fracture of the lower left leg. He reported to the San Bernardino County Department of Children and Family Services (the Department) that the injury appeared to be non-accidental and that it was likely the result of child abuse.
V.J. and her mother denied any knowledge of the injury and had no explanation as to how it might have occurred. (V.J. claimed she had originally taken E.J. to a doctor because she thought he was getting a cold.) E.J. was detained in foster care out of concern for his safety, and a petition pursuant to Welfare and Institutions Code section 300 was filed alleging serious physical harm while in the care and custody of the mother and alleging failure to protect and failure to provide support on the part of the father. A more thorough medical assessment for possible child abuse later revealed that E.J. had old, healing fractures to both of the bones in his right forearm. The arm fractures predated the leg fracture. Neither had been treated. A second amended petition was filed.
The alleged father, A.F., was not informed of his possible paternity until the child was five months old. Thereafter, he moved in with V.J. and assisted in caring for E.J. He moved out after a few months. After participating in some visits after the dependency proceedings began, A.F. expressed discomfort and frustration with the supervised visitation. At the time of the selection and implementation hearing which is the subject of this appeal, A.F. was incarcerated in Los Angeles County. He objected to the termination of his parental rights but has not filed a notice of appeal.
A first amended petition was also filed, but it has no bearing on the issue raised on appeal.
The San Bernardino County Sheriff’s Department contacted V.J. to follow up on the suspected non-accidental injury to E.J.’s leg reported by the emergency room physician. During that interview, V.J. admitted that while attempting to change E.J.’s diaper, she had grabbed him by the ankles and then flipped him over while holding his ankles. She was frustrated because he was uncooperative. She noticed immediately afterward that he was curling up his left foot as he crawled. She did not take him to the doctor until nine days later when she noticed that his left foot was purple and red. She also admitted that in November 2008, she had grabbed the baby by both hands and pulled him up out of his bouncer. She said he cried but stopped after about 10 minutes. She did not seek any treatment for him. V.J. was arrested on suspicion of felony corporal injury to a child. (Pen. Code, § 273d, subd. (a).) Her mother was later arrested and charged with conspiracy to commit a crime. (Pen. Code, § 182, subd. (a)(1).)
Although E.J. was initially placed in a foster home, he was later placed with his maternal grandmother, C.J., on the condition that V.J. not live in the home and that all visitation between V.J. and E.J. take place under the supervision of the Department at its offices. On the day the sheriff’s deputy visited the home to follow up on the child abuse allegation, V.J. was present. It was early in the morning, and she was wearing pajamas. She initially denied living there, but then admitted that she was. E.J. was removed from C.J.’s care and placed in a foster home.
At the jurisdiction hearing, the court found the majority of allegations of the second amended petition true, including the allegation that V.J. inflicted serious injury on E.J. At the disposition hearing, the juvenile court ordered no reunification services for either parent. As to V.J., the denial was based on the finding that she inflicted serious injury on the child and that she was incarcerated and providing services would be detrimental to the child. (Welf. & Inst. Code, § 361.5, subds. (b)(5), (b)(6), (e)(1).) (All further statutory citations refer to the Welfare and Institutions Code.) The Department also recommended against reunification services for V.J. based on the social worker’s belief that V.J. would not benefit from services even if they were offered because of her immaturity and her minimal bond with E.J. The social worker reported that even more than a month after E.J. was detained, V.J. had not “come to grip [sic] with the seriousness of [E.J.]’s injuries” and had not taken full responsibility for his injuries.
An allegation that V.J. was unable to provide for E.J.’s needs because of substance abuse was dismissed by the court.
The court set a selection and implementation hearing pursuant to section 366.26. The Department was authorized to place E.J. with his “maternal step grandfather,” O.G.-P., upon approval by the relative approval unit.
O.G.-P., to whom we will sometimes refer as E.J.’s grandfather, was married to and lived with V.J.’s mother, C.J., when E.J. was born. He separated from C.J. after E.J.’s injury, apparently because she allowed V.J. to live in the home after E.J. was placed with her. E.J. and his grandfather share a very loving relationship, and O.G.-P. wanted to adopt him.. E.J. was placed with O.G.-P., and the Department recommended that E.J. be freed for adoption by his grandfather.
V.J. remained in custody for several months but was released while her criminal case was pending. After her release, she attended parenting and anger management classes and classes to obtain a medical assistant certificate. She also consistently attended supervised visitation with E.J., as she had before she was arrested. She filed a petition for modification of the order denying her reunification services, contending that her actions since her release constituted changed circumstances. The juvenile court set a hearing on the petition, to be held immediately before the selection and implementation hearing. After argument, the court denied the petition, stating that the petition at most showed changing circumstances which did not warrant a finding that modification of the prior order would be in E.J.’s best interest.
The record does not reveal how the criminal case was resolved, or if it in fact has been resolved.
She remained angry and defiant toward the Department, however, reacting with outrage when a social worker visited her to try to establish a “safety plan” for V.J.’s newborn daughter.
After a contested hearing pursuant to section 366.26, the court terminated parental rights and selected adoption as E.J.’s permanent plan.
V.J. filed a timely notice of appeal.
LEGAL ANALYSIS
THE COURT’S FINDING THAT THE PARENTAL BOND EXCEPTION DOES NOT APPLY IS SUPPORTED BY SUBSTANTIAL EVIDENCE
At the section 366.26 hearing, V.J. argued that her parental rights should not be terminated because she and E.J. shared a parent-child bond which was beneficial to the child. The court found that the bond was not so significant that freeing E.J. for adoption would be detrimental to him. V.J. now contends that this finding is not supported by substantial evidence.
After termination of reunification services, the focus of juvenile dependency proceedings is on the child’s needs, including his or her need for a stable, permanent home. Consequently, the statutory preference for a permanent plan for a dependent child is adoption, and the court must terminate parental rights and refer the child for adoption unless one of the exceptions provided for in section 366.26, subdivision (c) applies. (§ 366.26, subd. (c); In re Celine R. (2003) 31 Cal.4th 45, 53.)
Section 366.26, subdivision (c)(1)(B)(i) provides that even if the court finds that the child is adoptable and that there is a reasonable likelihood that the child will be adopted, the court may nevertheless decline to terminate parental rights if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” In order to prevail in asserting the exception, the parent must demonstrate both that he or she has maintained regular visitation and contact with the child and that a continued parent-child relationship would “promote[] 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.... 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; see In re S.B. (2008) 164 Cal.App.4th 289, 297.)
On appeal, we review the court’s finding that the exception does not apply under a deferential standard which has been articulated as a substantial evidence/abuse of discretion standard: “Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘“if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Here, the record supports the court’s conclusion that although V.J. and E.J. had a bond, it was not of sufficient quality to warrant a finding that continuing the parent-child relationship would promote E.J.’s well-being to such a degree as to outweigh the well-being he would gain through adoption by his grandfather, or that severing the parental relationship with V.J. would deprive him of a substantial, positive emotional attachment and would result in great harm to E.J. (In re Autumn H., supra,27 Cal.App.4th at p. 575; In re S.B., supra, 164 Cal.App.4th at p. 297.) The record is devoid of evidence that E.J. was ever strongly bonded to his mother. At the outset of the dependency, the social worker observed that E.J. was “obviously more attached” to his maternal grandmother and to his grandfather than he was to his mother. During visits early in the dependency, although V.J. was “very affectionate” toward E.J., E.J. would “actually light[] up” at the sight of his grandfather. Although V.J. visited E.J. throughout the dependency, except for the months she was in custody, her interactions with him consisted mostly of feeding him and playing with him; she did not act in any parental capacity and rarely spoke to E.J.
The record is also devoid of any evidence that V.J.’s bond with E.J. strengthened during the dependency. On the contrary, as time went on, E.J. continued to develop his bond with his grandfather. The grandfather attended visitation twice weekly from the beginning of the case until E.J. was placed in his home. By the time of the section 366.26 hearing, E.J. was strongly bonded to his grandfather, considered him his parental figure and looked to him for love, comfort and security. Although he would still go to his mother when she visited, he would push her away if she tried to hug him. And, if his grandfather was in the room, E.J. would not go near his mother but would stay near his grandfather.
In light of this evidence, the court did not abuse its discretion in determining that E.J.’s limited bond with his mother did not warrant application of the parental bond exception.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Miller J.