Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JD083362.
JONES, P.J.
Stacy B. (mother) appeals from the juvenile court’s termination of her parental rights as to Ethan B. following a Welfare and Institutions Code section 366.26 hearing (.26 hearing). She contends the court erred by declining to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). She also claims there was insufficient evidence to support the court’s conclusion that Ethan was likely to be adopted (§ 366.21, subd. (i)). We affirm.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This case has an extensive history. We provide a brief procedural history and recite only those facts relevant to mother’s appeal of the court’s termination of her parental rights.
Ethan was born in December 2008. He tested positive for cocaine at birth; mother tested positive for cocaine, methadone, and benzodiazepine. The San Francisco Human Services Agency (the Agency) filed a section 300 petition in December 2008 alleging mother failed to protect Ethan (§ 300, subd. (b)). The court detained Ethan and later declared him a dependent of the court.
The Agency returned Ethan to mother’s care for two short periods in November 2009 and in March 2010. Both times, however, the Agency filed section 387 petitions removing Ethan from mother’s custody because of mother’s continuing substance abuse problems. Following a contested section 387 hearing in June 2010, the court sustained the Agency’s supplemental 387 petition, terminated reunification services, and set a.26 hearing. We denied mother’s writ petition challenging the termination of reunification services. (Stacy B. v. Superior Court (Sept. 8, 2010, A128976) [nonpub. opn.].)
The Agency filed its section.26 hearing report in September 2010. The report stated mother had supervised visits with Ethan once a week for two hours and that she missed two visits in June and one in July 2010. During visits, mother ignored staff members’ instructions, used inappropriate language, and needed to be reminded to check Ethan’s diaper. The.26 report attached an April 2010 letter from an employee of Bayview TLC Family Resource Center, where mother’s supervised visits took place. The employee opined that mother’s two supervised visits were “not successful for the family, especially Ethan. [Mother] appears to struggle during her family visits, which is possibly related to [her] substance abuse issues. During... visits, [mother] appears to have the ‘jitters’ and cannot keep still long enough to focus on Ethan, appears ill, and/or appears overwhelmed by her son[.]” The employee recommended supervised visits and a “structured substance abuse support group” for mother.
In its.26 report, the Agency recommended terminating parental rights and ordering Ethan placed for adoption. The Agency explained, “Ethan is residing in a stable and caring adoptive home. The prospective adoptive parent is working with service providers to address his developmental issues and mental health concerns. Based on Ethan’s age and need for permanency, adoption is the best plan.” The report noted that Ethan had been living in his prospective adoptive home since June 2010. Ethan’s prospective adoptive mother, who was concerned that Ethan was developmentally delayed, “took off the summer to focus on the transition and care of Ethan in her home. She has a commitment to family and was matched to Ethan for her strength and commitment to raising a special needs child.... The prospective adoptive parent is currently working with various service providers to address [Ethan’s] developmental delays and impulsivity. The prospective adoptive parent is aware of his needs and has the ability to meet his needs.”
Ethan’s social worker, Rachel Krasno, testified for the Agency at the.26 hearing in October 2010. Krasno recommended adoption as the permanent plan for Ethan because he had been in his prospective adoptive home for more than six months and because “mother failed reunification services.” Krasno explained that it was important for Ethan to “have a stable and healthy environment to grow up in” and that Ethan needed “permanency and consistency” because of his special needs. Ethan had been “able to settle down with the current caregiver, ” who Krasno described as “very loving and caring” toward Ethan. Krasno further explained that Ethan’s prospective adoptive mother was aware of Ethan’s special needs, was able to meet them, and wanted to adopt him. Krasno testified adoption would be “very beneficial” for Ethan.
In its.26 hearing report, the Agency stated that Ethan met his prospective adoptive mother in April 2010 but he was not placed in her home until June 2010. At the time of the.26 hearing in October 2010, Ethan would have been living with his prospective adoptive mother for four months, not six months.
Krasno testified that mother has supervised visits once a week with Ethan, and that he “knows who his mother is.” During visits, mother “had difficulty setting boundaries, ” gave Ethan candy and ice cream during morning visits, and chased him around the playground, causing Ethan to fall. She was also defiant when the individual supervising the visits gave mother suggestions regarding her behavior. According to Krasno, mother does not have a “parent/child relationship” with Ethan because she has “very limited contact” with him. Krasno explained that mother is “not there to put him to bed at night, or she’s not there to snuggle with him when he’s not feeling well.”
Mother testified that she visited Ethan once a week for two hours at the Bayview Family Resource Center. Visits were going well, according to mother: when Ethan sees her, he runs to her and knows her as “Mommy.” Ethan hugs and kisses mother during visits and they play and “have a good time.” Mother brings Ethan a present — a balloon or a ball — at each visit. Mother explained that she brought Ethan a single gummy worm “very many months ago” and denied giving Ethan ice cream.
Mother testified that she loves Ethan “more than anything in this world” and that Ethan was taken away from her “for no reason.” She explained that she had obtained a job and stable housing, and testified that she was not using drugs. She urged the court, “Please don’t take my child away from me.” On cross-examination, she admitted taking Valium some time in 2010. She also testified she had stopped taking methodone, which had been prescribed, in August 2010.
After hearing argument from counsel, the court terminated mother’s parental rights. The court determined the beneficial relationship exception to termination of parental rights did not apply because mother had not proven “that there is a benefit to Ethan for continuing the relationship[.]” The court indicated it was adopting the recommendations in the Agency’s.26 report. Additionally, the court expressed concern that mother had “nodded off” during recent court appearances and “may be taking [m]ethodone again....”
DISCUSSION
Substantial Evidence Supports the Court’s Conclusion That the Beneficial Relationship Exception Did Not Apply
Mother contends the court erred by terminating her parental rights because the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i) applies. Under section 366.26, subdivision (c)(1), the court must terminate parental rights if it finds the child is likely to be adopted unless the parent establishes, by a preponderance of the evidence, that one of the statutory exceptions applies. (See also Cal. Rules of Court, rule 5.725(d)(2)(C)(i).) To establish the applicability of the beneficial relationship exception, mother must demonstrate she has “maintained regular visitation and contact with [Ethan] and [he] would benefit from continuing the relationship” with her. (§ 366.26, subd. (c)(1)(B)(i).) Because the parties agree mother maintained regular visitation with Ethan, the issue here is whether mother can satisfy the second prong of the beneficial relationship exception: whether Ethan would benefit from continuing the parental relationship with mother. She cannot.
To determine whether the beneficial relationship exception applies, the juvenile 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) The beneficial relationship exception is “difficult to make in the situation, such as the one here, where the parents have [not]... advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).) At least one court has commented that the beneficial relationship exception “may be the most unsuccessfully litigated issue in the history of law. [I]t is almost always a loser.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) We apply the substantial evidence standard of review. (Casey D., supra, 70 Cal.App.4that p. 52.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Appellate courts have applied both the substantial evidence and the abuse of discretion standards to review the applicability of the beneficial relationship exception. (Compare Casey D., supra, 70 Cal.App.4th at p. 52 [substantial evidence standard of review] and Autumn H., supra, 27 Cal.App.4th at p. 576 [same] with In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard] and In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [same].) Although there appears to be little practical difference between the two standards of review in this context, we apply the substantial evidence standard of review because the parties do not argue otherwise.
Notwithstanding this high burden, mother argues there is substantial evidence of a beneficial relationship because she and Ethan love each other, and because they share an “obvious bond.” Here, there was evidence mother played with Ethan during visits and that Ethan was affectionate with her during those visits. But there was also evidence that visits “were not successful” and that mother did not behave appropriately during visits. Furthermore, Ethan’s social worker testified mother did not have a “parent/child relationship” with Ethan because she had “very limited contact” with him — she was “not there to put [Ethan] to bed at night, or... to snuggle with him when he’s not feeling well.”
To establish the beneficial relationship exception, mother was required to show “more than that the relationship [with Ethan] is ‘beneficial.’” (Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) She needed to demonstrate the relationship “‘promote[s] the well-being of [Ethan] to such a degree that it outweighs the well-being [he] would gain in a permanent home with new, adoptive parents.’ [Citation.]” (Ibid., quoting In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy more than a “pleasant place” in the child’s life for the beneficial relationship exception to apply].) Mother failed to do so. There was simply no evidence it would be detrimental to Ethan to sever his relationship with mother. (In re Amber M. (2002) 103 Cal.App.4th 681, 689; see also Casey D., supra, 70 Cal.App.4th at p. 52.) Without more, the Agency’s remark, in December 2009, that mother and Ethan shared a bond is not enough to establish the beneficial relationship exception. Based on our review of the record, we conclude substantial evidence supports the court’s conclusion that the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i) did not apply. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.) [beneficial relationship exception did not apply; loss of mere “loving and frequent” contact with parent was insufficient to show detriment from termination of parental rights].)
Substantial Evidence Supports the Court’s Determination That Ethan Was Likely to Be Adopted
Next, mother contends the order terminating parental rights must be reversed because the court “lacked sufficient evidence of Ethan’s adoptability.” At the.26 hearing, the “‘juvenile court must make one of four possible alternative permanent plans for a minor child.... The permanent plan preferred by the Legislature is adoption.’ [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, quoting Beatrice M., supra, 29 Cal.App.4th at p. 1416, italics omitted.) To select and implement adoption as the permanent plan, the court “must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) The issue of adoptability at the.26 “hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[T]hat a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650.) We review a finding of adoptability for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Mother seems to suggest that Ethan’s special needs — his speech and language delays and his impulsive behavior — preclude a finding that he is adoptable. We disagree. “[W]hen a child is deemed adoptable ‘only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child.’ [Citation.]” (In re Jose C. (2010) 188 Cal.App.4th 147, quoting In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Here, Krasno testified Ethan has some special needs. She also testified, however, that Ethan’s prospective adoptive mother was “very loving and caring” toward Ethan and that she was aware of his special needs, was able to meet them, and wanted to adopt him. In its.26 report, the Agency explained that Ethan’s prospective adoptive mother “took off the summer to focus on the transition and care of Ethan in her home. She has a commitment to family and was matched to Ethan for her strength and commitment to raising a special needs child.... The prospective adoptive parent is currently working with various service providers to address [Ethan’s] developmental delays and impulsivity. The prospective adoptive parent is aware of his needs and has the ability to meet his needs.” Moreover, Krasno testified adoption would be “very beneficial” for Ethan. This evidence belies mother’s claim that there was “scant evidence in the record that the prospective adoptive parent in this case is capable of meeting Ethan’s special needs.”
This case is not, as mother suggests, like In re Carl R. (2005) 128 Cal.App.4th 1051, 1062 (Carl R.). In Carl R., the court considered the “very narrow” issue of “the proper scope of the inquiry by the juvenile court in determining the adoptability of a child who will require intensive care for life[.]” In contrast to the minor in Carl R., Ethan is not “completely developmentally disabled” and will not “require intensive care for life[.]” (Id. at p. 1062.) We conclude substantial evidence supports the court’s adoptability finding.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: Simons, J., Needham, J.