Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles Count No. CK61244y, Richard D. Hughes, Juvenile Court Referee.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
DOI TODD, J.
Christina H. (mother) appeals the order of the juvenile court terminating her parental rights to six-year-old Elizabeth H. and three-year-old James H. under Welfare and Institutions Code section 366.26. Mother contends that there is no substantial evidence to support the court’s finding that the “benefit-contact� exception to termination under section 326.26, subdivision (c)(1)(B)(i) does not apply. We disagree and affirm.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case were largely set forth in our recent unpublished opinion filed December 18, 2007 (case No. B197129), and will not be repeated here. That appeal involved mother’s challenge to the juvenile court’s denial of her section 388 petition for further reunification services. The denial of that petition was made at a hearing on February 13, 2007. The juvenile court subsequently conducted the contested section 366.26 permanent placement hearing, which commenced on July 17, 2007 and concluded on August 8, 2007.
During the section 366.26 hearing, the case social worker testified that she had observed a single one-hour visit between mother and Elizabeth in January 2007, in which Elizabeth was happy to see mother, smiled the whole time and appeared to enjoy the visit. During the social worker’s monthly visits with Elizabeth in the home of her prospective adoptive parents who live in Northern California, the social worker observed Elizabeth to be happy. Elizabeth also expressed a desire to continue to visit mother. The social worker believed there was a bond between mother and Elizabeth and that Elizabeth would benefit from having continuing contact with mother. The social worker did not observe any visits between mother and James, who was placed locally with his paternal grandmother. James and Elizabeth have different fathers.
Elizabeth’s prospective adoptive parent, who is her paternal aunt, testified that Elizabeth had been placed with her family for more than a year since April 2006. During that time, mother had traveled north to visit Elizabeth five times. Elizabeth called mother “Mom” and knew that she was her mother. Elizabeth had never expressed a desire to live with mother or to leave her placement. Mother had not attended parent-teacher conferences or any of Elizabeth’s medical appointments. Elizabeth’s caretaker believed it was important for Elizabeth to continue having contact with mother and her family and intended to continue the visits.
The adoptions social worker testified that Elizabeth’s prospective adoptive parents had integrated Elizabeth into their family and had created a sense of belonging for her. James had been with his paternal grandmother since October 2005 and knew “who his mother is.” Both children were thriving in their current placements.
Mother’s sister, who traveled with her to visit Elizabeth and who monitored the weekend visits, testified that mother acted “very motherly” toward Elizabeth, feeding her, bathing her and keeping her active. Mother and Elizabeth were very affectionate with each other. Elizabeth would run to mother and jump into her arms at the beginning of each visit and was sad and quiet at the end of the visits, sometimes crying. There were some times when Elizabeth was away camping and not available to visit mother.
Finally, mother testified that she had been in a drug rehabilitation program from May to November 2006, which prevented her from visiting Elizabeth. Since May 2006, mother called Elizabeth every day or two. Mother admitted that she did not know the name of Elizabeth’s favorite book, the name of her teacher or the name of her best friend. Mother had to incur the expense of a hotel for the weekend visits and had to have a monitor make the journey with her. Mother visited James once a week on Sundays for about eight hours and the visits were also monitored. Mother would feed and change James, read to him and play with him. Mother admitted that she was allowed to visit James as often as she wanted, but she had not visited him more frequently than once a week because she worked full time, went to school and required a monitor, who was not always available.
Mother got along with both of the minors’ caregivers, whom she acknowledged were taking good care of the minors. But mother was not confident that the caretakers would continue her visits because sometimes the children would be upset at the end of the visits and because Elizabeth’s caretakers had decided to adopt Elizabeth after previously telling mother they would return Elizabeth after mother completed her drug program. Mother stated that she was not asking the court to remove the children from their placements, but to allow her to reunify with them.
After hearing the arguments of counsel, the court concluded by clear and convincing evidence that the minors were adoptable and terminated parental rights, finding no exceptions to be applicable. This appeal followed.
DISCUSSION
Mother contends the juvenile court erred in failing to apply the “benefit-contact” exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)). We disagree.
Section 366.26Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, “the court shall terminate parental rights and order the child placed for adoption.” A finding that the court has continued to remove the child from the custody of the parent and has terminated reunification services “shall constitute a sufficient basis for termination of parental rights” unless the court finds a compelling reason for determining that termination would be detrimental to the child because “[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).)
It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(B)(i). (Cal. Rules of Court, rule 5.725(e)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826–827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1344.) This is not an easy burden to meet. “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, at p. 1350.)
Reviewing courts have traditionally applied a substantial evidence test to a juvenile court’s finding of whether an exception to termination of parental rights under section 366.26 has been established. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Some courts have concluded that abuse of discretion is the appropriate standard of review, but noted that the practical differences between the two standards are not significant. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . 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.’ . . . .”’” (Ibid.)
A. Regular Visitation and Contact
Mother concedes that she did not regularly and consistently visit the minors after their removal from her custody. But she argues that she visited the minors to the best of her ability “under extraordinary circumstances” when she was permitted. The minors were removed from mother’s custody in October 2005 and mother’s whereabouts were largely unknown until May 2006 when she entered a residential drug treatment program. Mother did not visit Elizabeth while she was in the program. Mother was released from the program in November 2006, and acknowledges that she did not start regularly visiting Elizabeth, who was placed more than 300 miles away. Mother notes that she had to incur the expense of a hotel and had to secure the accompaniment of a monitor, who was not always available. Additionally, there were times when Elizabeth was not available for visits because she was away camping. Mother visited James on a weekly basis, but did not take advantage of the offer to visit him more frequently. Mother points out that she worked full-time, went to school and had to find monitors for the visits. The juvenile court was sympathetic to the difficulties mother faced in trying to visit the minors, as are we, but we are inclined to find that mother did not meet her initial burden of demonstrating regular visitation and contact with the minors. Even if we were to find otherwise, we would still conclude that mother did not meet her second burden of demonstrating a beneficial relationship with the minors such that they would be greatly harmed by the absence of the relationship.
B. Beneficial Relationship
The “‘benefit from continuing the [parent/child] relationship’” exception to termination in section 366.26 has been defined to mean that “the relationship 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) “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.” (Ibid.)
“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
Applying the first and last of these factors here, we note that James was only ten months old when he was removed from mother’s custody, and by the time of the section 366.26 hearing he had spent the majority of his short life in the care and custody of his paternal grandmother. Clearly, James was too young to have any memory of living with mother. Elizabeth was four years old when removed from mother’s custody and therefore had a more established relationship with mother. But since their removal from mother in October 2005, both minors have spent relatively few hours visiting with mother, versus many hours being parented by their prospective adoptive families. There was no evidence that either minor had any particular needs that could only be met by mother and not by their prospective adoptive families.
The real question here is whether the minors would be greatly harmed by the termination of their relationships with mother. Mother’s interactions with the minors have been positive and there is nothing in the record to indicate that she acted inappropriately during visits. Mother points out that Elizabeth called her “Mom” and that the case social worker believed that Elizabeth had a bond with mother and would benefit from continuing contact with mother. But interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
Though not cited by either party, we find In re Cliffton B. (2000) 81 Cal.App.4th 415 to be instructive. In that case the appellate court found that substantial evidence supported the juvenile court’s decision to terminate the father’s parental rights despite the exception to termination under section 366.26. On one hand, the evidence showed that the father had maintained a “significant relationship” with the child during monitored visitation; the child called him “Daddy” and ran and jumped into his arms when he saw him; the child was removed from his father at the age of 20 months and had lived with his father for a six-month period when he was three and one-half years old; the father had maintained his sobriety for seven months; and a social worker acknowledged that terminating the parental relationship would involve some risk to the child. (In re Cliffton B., supra, at p. 424.) On the other hand, the child had adjusted well to a foster family that was willing to adopt him, and there was a risk that the father, who had a long history of drug abuse, would suffer a relapse. (Id. at p. 425.) Noting that the case before it was “a very close case,” the appellate court stated: “But Autumn H. teaches that the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B, supra, at pp. 424–425.)
Here, both minors were thriving with their foster families who were willing to adopt them. Mother acknowledged that the caretakers were taking good care of the minors, and mother did not ask the juvenile court to remove the minors from their placements and return them to her custody. Instead, mother wanted further reunification services. But “[t]he section 366.26, subdivision (c)(1)(A) exception is not a mechanism for the parent to escape the consequences of having failed to reunify.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “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.” (In re Jasmine D., supra, at p. 1348.) Mother was not offering the minors a stable and permanent home. If mother’s parental rights were not terminated, the minors would be denied the stable and permanent homes they were enjoying with responsible and committed caretakers, “something that the Legislature has determined to be detrimental, as shown by its ranking of adoption as more desirable than long-term foster care or legal guardianship, . . . .” (In re Angel B., supra, 97 Cal.App.4th 454, 468.)
In sum, we find that mother failed to present evidence that the minors’ relationships with her were so significant that the termination of such relationships would be detrimental to the minors. Accordingly, the juvenile court did not err by refusing to find that the exception provided in section 366.26, subdivision (c)(1)(B)(i) was applicable to these facts.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.