Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. DP015546, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
John L. Dodd & Associates and Gerard D. McCusker, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
E.G. (Mother) appeals from the order terminating parental rights to her daughter, F.F. (Welf. & Inst. Code, § 366.26.) She contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We find no error and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS
Detention, Jurisdiction, Disposition
Then nine-month-old F.F. was taken into protective custody on June 23, 2007. Her parents had a confrontational relationship that involved verbal fights and slapping. Mother had a lengthy history of drug use, including methamphetamine, cocaine, marijuana, and alcohol. She had a drug-related criminal history dating back to 1994, including multiple drug-related arrests, a 2005 felony conviction for drug possession, and she was on probation at the time of F.F.’s detention. Mother claimed she had remained sober for two years, but admitted she relapsed and had begun using drugs again in December 2006. She admitted consuming alcohol regularly while in a drug treatment program.
Because F.F.’s father (Father) does not appeal, we will not discuss facts as they pertain to him in detail.
Mother also had a history of mental health problems including a diagnosis of bipolar disorder, anger problems that caused her to “‘black out,’” and two suicide attempts. She had prior child abuse reports relating to her three older children resulting from domestic violence between her and the father of those children (who was not F.F.’s father). The family court had awarded physical custody of those children to their father, and Mother had regular visitation with them.
F.F.’s detention came as a result of a violent incident between Mother and Father. Both had been consuming alcohol. Mother was driving a car with Father and a friend. F.F. was in a car seat in the back of the car. Mother and Father got in an argument, and Father punched at the car radio hitting Mother’s fingers. Mother stopped the car in a parking lot, and Father and the friend got out. Mother then drove into the street, going south in the northbound lane of traffic. She drove the car back into the parking lot, almost ran over Father, and then repeatedly crashed the car into a block wall, causing the wall to crumble. Father tried to stop Mother, and she slapped him several times. They got into a “‘tug of war’” over F.F. who was still strapped into her car seat. Police came, arrested Mother, cited Father, and took F.F. into protective custody.
The next day, F.F. was placed with her paternal aunt, J.F., where she has remained ever since. At the jurisdictional and dispositional hearing, the juvenile court declared F.F. a dependent child, vested custody with the Orange County Social Services Agency (SSA), and approved a reunification services plan.
Six-Month Review Hearing
At the six-month review hearing in February 2008, SSA reported Mother had been released from jail in November 2007 and was in a sober living home. She was drug testing weekly, attending “Twelve-Step Meetings,” and had enrolled in a perinatal program. Mother had been referred to an anger management program, but she had not yet attended any sessions. She was enrolled in a drug court program.
Mother was generally having weekly visits with F.F., including when Mother was in jail. The visits were monitored by a maternal aunt, M.G. Visits went well, and F.F. enjoyed being with Mother. However, in December 2007 M.G. became very upset with Mother because Mother was missing visits with her other three children choosing instead “to spend [her] time with a male friend.” M.G. was angry that Mother “was not taking advantage of the opportunity to see [her] children.” M.G. decided Mother was no longer welcome in her home and visits with F.F. would need to take place at the home of another of Mother’s sisters, L.B. For several weeks Mother simply did not contact M.G. to arrange visits. Some visits were also missed in January 2008, when Mother was in a “‘lock-down’” period in the sober living home. The juvenile court ordered another six months of services.
12-Month Review Hearing
In its August 6, 2008, report for the 12-month review hearing, SSA recommended termination of services and scheduling a permanency planning hearing. Mother had submitted to regular drug tests that came back negative, and had completed an anger management, parent education, and recovery planning programs. She continued regular visits with F.F.—eight hours each weekend—that went well. But Mother had two significant alcohol-related relapses. In April 2008, she and another resident from the sober living home had consumed alcohol, and left on a public bus. Mother later returned by bus. Mother could not remember much about what happened except that she ended up in the back of a pick-up truck with two men she did not know and was raped by them. A month later, Mother again consumed alcohol and the sober living residence reported the violation to Mother’s probation officer. Mother was incarcerated for seven days. Mother was planning on moving to a new sober living residence.
On September 10, 2008, SSA reported Mother had missed visits with F.F. from July 4 to August 8. M.G., who continued to monitor visits, indicated she was fed up with Mother. M.G. reported Mother missed visits because she preferred to spend the time with her boyfriend. Mother’s other sister, L.B., expressed similar concerns. Nonetheless, Mother’s counselors were generally positive about her progress; one said she had a “‘guarded or fair’” chance at continued sobriety. F.F. was doing very well in her placement with the paternal aunt, J.F., who she called “‘mom.’” J.F. wanted to adopt F.F. if Mother failed to reunify. The juvenile court ordered six more months of services.
18-Month Review Hearing
In its December 16, 2008, report, SSA again recommended services be terminated and a permanency planning hearing be set. Mother was arrested on October 3 for possession of narcotics. The police report indicated she had been involved in a cocaine sale with her boyfriend. Although the charges against Mother were later dismissed, she was dropped from her drug court program and she was now incarcerated on the prior charges. Her release date was March 31, 2009. F.F. continued in her placement with J.F. J.F. was pregnant with her first baby, but she was committed to adopting F.F. Mother had told the social worker she did not oppose J.F. adopting F.F., if Mother was allowed to continue having contact with F.F. The juvenile court terminated services and set a permanency planning hearing.
388 Petition/Permanency Planning Hearing
On April 15, 2009, in its first report for the permanency planning hearing, SSA reported F.F. was happy, healthy, developmentally on target, and continued to do well in her placement with J.F. F.F. had “a healthy attachment to [J.F.]” and called her “‘mama.’” She was adoptable, if not by J.F., then by another adoptive parent. Although J.F. was young, just in her early 20s, and unmarried, she was committed to providing a permanent stable home to F.F. F.F. had lived with J.F. for almost two years, had a “secure attachment” to her, and was “happy, secure, and safe....” Father and his family all supported J.F. adopting F.F.
Mother, who had been incarcerated, continued to have appropriate visits with F.F. twice a month. Mother informed the social worker she still hoped to reunify with F.F. The social worker commented that while Mother clearly loved F.F., “after having made incredible progress on her case plan,” she relapsed and ended up losing all the benefits of her drug court program. F.F. had been in protective custody “for 21 of her 30 months of life” and was in need of stability and security that would come with adoption.
On April 21, Mother filed a section 388 petition requesting modification of the referral order. Mother stated she had been released from jail on April 1 and “fully intend[ed] to comply with all of [her] probation requirements.” She wanted to either have F.F. released to her or to begin overnight visits with F.F. at her sister L.B.’s home. SSA opposed the petition; the social worker surmised that although Mother obviously cared for F.F., she continued to make poor choices and show poor judgment, and had been unable to steer clear of illegal activity that prevented her from parenting her child. The juvenile court granted a hearing on the petition and the parties stipulated the evidence received for the section 388 petition hearing would also be available for the permanency planning hearing.
L.B., who had been monitoring Mother and F.F.’s visits, testified. Although sometimes F.F. did not want to visit with Mother, especially when she had been in jail for a long period, usually F.F. was affectionate with Mother. During overnight visits in L.B.’s home in September 2008, Mother attended to all F.F.’s needs and afterwards F.F. seemed sad when her mother left. F.F. appeared to enjoy visits with Mother when Mother was in jail. L.B. believed Mother had matured, was more able to follow through with visits, and was a loving mother to F.F.
Mother testified she had learned to provide appropriate care for F.F., and how to be a better mother. She had regular visitation with F.F. at which F.F. was always happy. F.F. was comfortable and happy around her. Sometimes F.F. cried when visits ended. Mother was concerned that if F.F. were adopted, Mother’s other children would no longer see F.F. She worried the paternal aunt, J.F., could not care for two children once her new baby was born, and doubted J.F. would love F.F. as much as her own child.
The juvenile court denied Mother’s section 388 petition. It noted that although it could extend services out to 24 months, there was still no reasonable probability F.F. could be returned to Mother by that time which was just two months away.
Mother’s counsel argued against termination of parental rights, asserting the section 366.26, subdivision (c)(1)(B)(i), parental benefit exception applied. Mother had maintained regular and consistent visitation, and F.F. would benefit from continuing that relationship. Father voluntarily relinquished his parental rights and supported F.F.’s continued placement with J.F., with whom she had lived almost her entire life.
The juvenile court terminated parental rights. It found F.F. to be adoptable and found none of the exceptions to adoption as the preferred permanent plan. With regard to the parental benefit exception, the court found the first prong, regular visitation had been met. But Mother had not carried her burden of proving the nature of her relationship with F.F. outweighed F.F.’s interests and the benefits to be gained from permanency.
DISCUSSION
Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. We find no error.
At a permanency hearing, the juvenile court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was consistent and regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.)
To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(B)(i), exception must prove that severing the relationship will cause not merely some harm but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, “the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).)
In Autumn H., supra, 27 Cal.App.4th 567,the court articulated a test for determining whether a child would benefit from continuing a relationship with the natural parent. To succeed under this test, the parent must establish 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.” (Id. at p. 575.) In evaluating this issue, the court must “balance[ ] 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 exception must be examined on a case by case basis, taking into account the many variables which affect a parent/child bond[, including t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs....” (Id. at pp. 575 576.)
“[P]leasant and cordial... visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) “[F]requent and loving contact” may also be insufficient to establish the type of beneficial relationship “contemplated by the statute.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) “‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child[,]’” but the basis of a beneficial relationship is that the parents have “occupied a parental role[.]” (Id. at pp. 1418 1419.) “‘While friendships are important, a child needs at least one parent. Where a biological parent... is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Whether we apply the abuse of discretion standard or the substantial evidence standard (see Jasmine D., supra, 78 Cal.App.4th at p. 1351 [“practical differences between the two standards of review are not significant”]), the result on appeal is the same. Substantial evidence supports the juvenile court’s conclusion termination of parental rights would not cause F.F. detriment because Mother failed to demonstrate the benefit F.F. would receive from maintaining their relationship outweighs the benefit she will gain in a permanent home with adoptive parents. (See Autumn H., supra, 27 Cal.App.4th at p. 575 [parent bore burden of establishing termination of parental rights would greatly harm child]; accord Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), illustrate the compelling evidence necessary to establish the benefit exception. In Jerome D., the child “seemed lonely, sad, and... ‘the odd child out’” in his placement. (Jerome D., supra, 84 Cal.App.4th at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother “shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The court concluded that keeping parental rights intact would prevent Jerome’s “position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half siblings] continued to enjoy visits and remained [the mother’s] children.” (Id. at p. 1208.)
In Amber M., the court reversed termination of parental rights where a psychologist, therapists, and the court-appointed special advocate uniformly concluded “a beneficial parental relationship... clearly outweigh[ed] the benefit of adoption.” (Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a “strong primary bond” with their mother, and the younger child was “very strongly attached to her.” (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)
Mother did not demonstrate that harm would have ensued from termination of parental rights similar to that demonstrated in Amber M. or Jerome D. At the permanency stage, the bond F.F. shares with Mother and the harm that might arise from terminating Mother’s parental rights must be balanced against what is to be gained in a permanent stable home, and “it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics added.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption.
Here, there is no direct evidence on the issue of whether benefits to F.F. of continuing a relationship with Mother outweigh the benefits of permanence through adoption. Thus, resolution of the issue depends on the inferences the juvenile court could permissibly draw from all the evidence.
Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), is misplaced. She cites the case for the proposition the parental benefit exception may apply, even in the absence of either “day-to-day contact” (id. at p. 299), or a “‘primary attachment’” (ibid.). But S.B. recognized nonetheless the application of the parental benefit exception still requires evidence “‘the child would be greatly harmed’” by severance of the natural parent/child relationship. (Id. at p. 297, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.)
In S.B., the father had been the child’s primary caregiver for three years. (S.B., supra, 164 Cal.App.4th at p. 298.) Following the child’s detention due to the parents’ drug abuse, the father “‘complied with every aspect of his case plan,’ including maintaining his sobriety and consistently visiting [the child].” (Id. at pp. 293-294.) But the father’s emotional and physical health, compromised due to his years of combat service during the Vietnam War, interfered with his ability to reunify, and the father conceded “his current health problems impeded his ability to care for [the child] full time.” (Ibid.) A bonding study indicated that “because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at pp. 295-296.) The social worker admitted there would be “some detriment” to the child if parental rights were terminated. (Id. at p. 295.) The juvenile court found the father and the child had “‘an emotionally significant relationship’....” (Id. at p. 298.) But because the child looked to her grandparents for her daily needs and nurturing, it concluded the parental benefit exception could not be applied. (Id. at pp. 296-297.) In reversing, the appellate court concluded application of the benefit exception did not depend on the child’s primary attachment. Based on the evidence, including that the father “maintained a parental relationship with [the child] through consistent contact and visitation[,]” the father’s “devotion to [the child] was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health[,]” and the evidence the child “loved her father, wanted their relationship to continue and derived some measure of benefit from his visits[,]... the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father]. [Citation.]” (Id. at pp. 300-301.)
Unlike in S.B., here it cannot be said the only reasonable inference that can be drawn from the evidence is that F.F. would be greatly harmed if Mother’s parental rights are terminated. Mother primarily relies on the evidence concerning her consistent weekly visits with F.F. over the course of the dependency. At monitored visits taking place outside of jail, Mother interacted appropriately with F.F., and attended to the child’s needs. F.F. enjoyed the visits and sometimes cried when they ended. Visits in jail went well too, and Mother and F.F. interacted appropriately. Mother also relies upon her compliance with services, noting she had completed most of the required courses, was learning to deal with stress more effectively, and had “learned to ‘follow through’ more, [and] to become more responsible and more mature.”
But Mother’s positive and loving visits with F.F., and the fact they share an affectionate relationship does not compel application of the parental benefit exception, and the juvenile court did not err by concluding she failed to carry her burden. It is uncontroverted F.F. is securely bonded to the paternal aunt, who has provided all the parenting to this young child for the past two years. Mother has not occupied a parental role for most of F.F.’s life. Furthermore, although Mother is to be commended for the progress she made with her service plan, she was not in full compliance. She had two significant relapses that resulted in her incarceration. She then violated the terms of her probation by continuing to associate with drug users, which resulted in her being terminated from her drug court program and incarcerated again. Mother’s relapses and violation of probation prevented her from moving beyond weekly monitored visits with her child. Under the circumstances we cannot say the juvenile court erred in finding Mother had failed to carry her burden to prove the parental benefit exception applied.
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.