Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEJ300172, Jane A. Cardoza, Judge.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Hill, J.
Carrie M. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two young daughters. She contends the court erred by not finding it would be detrimental to the children to terminate parental rights. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In November 2006, doctors diagnosed appellant’s two-month-old daughter M.S. (M.) as having suffered non-accidental trauma. The infant’s father caused her injuries, including leg, skull, and rib fractures in various stages of healing. Appellant reasonably should have known the father was physically abusing M. Nevertheless, appellant left M. in the father’s care on a daily basis. She also delayed in seeking treatment for M. In addition, appellant’s neglect placed her older, 23-month-old daughter F.M. (F.) at a substantial risk of serious harm. Consequently, respondent Fresno County Department of Children and Family Services (department) detained the children and initiated the underlying proceedings.
At the outset, appellant participated in services offered by the department and visited regularly with the children. Appellant also claimed she severed her relationship with M.’s father. There was other evidence, however, that she continued to live with him and did not believe he had injured M. Further, appellant did not accept any responsibility for M.’s injuries.
The Fresno County Superior Court exercised its dependency jurisdiction over the children in February 2007. It found true allegations under section 300, subdivisions (a) (serious physical harm inflicted non-accidentally), (b) (neglect), and (e) (severe physical abuse of a child under five).
In mid-March 2007, police arrested appellant and M.’s father on charges of drug transportation and sales of methamphetamine. Appellant had assisted M.’s father in selling methamphetamine to an undercover officer. In addition, a search of appellant’s apartment, which the father referred to as theirs, revealed drug paraphernalia.
In advance of the dispositional hearing, the department reported the children appeared to have a bond with and positive attachment to appellant, as they laughed and smiled during visits, F. ran to appellant and kissed her and appellant could soothe M. when she cried. However, there was also evidence that F. had symptoms of an avoidant/anxious attachment pattern. She would approach her care provider and avoid appellant. According to a therapist who evaluated F., the two-year-old child exhibited excessive anxiety and appeared to use food to soothe herself. She also had a flat affect toward appellant at times. On the other hand, F. could maintain eye contact with appellant and could respond to appellant’s attempts to nurture her.
The court conducted its dispositional hearing in May 2007. At that time, the court adjudged the children dependents and removed them from appellant’s custody. It also denied appellant reunification services based on the severity of the physical abuse her younger daughter suffered (§ 361.5, subd. (b)(5) & (6)). The court in turn set a September 2007 hearing to select and implement a permanent plan for the children (§ 366.26).
In the interim, the court denied visits between the children and M.’s paternal grandmother until therapeutically advised. The court made its order at the department’s request and based upon a July 2, 2007 report from the children’s therapist. The therapist explained she had been treating the children since late February 2007 when both children showed severe features of disrupted attachment. Since their May 2007 placement in the current care providers’ home, the children’s symptoms had significantly decreased “due to the predictable and consistent care giving.” Due to their mental fragility, the therapist opined “extended contact with any relatives besides biological mother is therapeutically unadvisable and could be a detriment to [the children’]s current prognosis.”
The therapist did not note when the change in placement occurred. However, the record discloses the department placed the children with a foster family interested in adoption in May 2007 shortly after the dispositional hearing.
In addition, department social workers prepared a “366.26 WIC REPORT” in which they recommended the court find the children adoptable and terminate parental rights. The girls were generally adoptable given their young ages, good physical and emotional health, developmental status, and ability to form positive attachments. Furthermore, their foster parents were committed to adopting them.
The social workers also reported on appellant’s supervised visits with the children. Before appellant’s incarceration and the setting of the section 366.26 hearing, those visits occurred once a week for two hours at the “Bonding Home.” According to the Bonding Home narratives, when F. arrived, she ran to appellant. During the visits, appellant held the girls, changed their diapers, fed them, talked to them, and expressed her love for them, both verbally and by hugging and kissing them. F. also hugged and kissed appellant. The child also frequently laughed and smiled. M. appeared to enjoy the visits as she smiled and made cooing noises.
Since the setting order, appellant and the children had weekly visits, 10 to 20 minutes in length at the Fresno County Jail. The children’s therapist supervised some of those visits. Others were supervised by one of the social workers authoring the report.
During the jail visits, F. appeared happy to see appellant. With appellant’s prompting, F. would attempt to kiss and hug her through the glass. M. smiled at appellant and would touch the glass throughout the visit. Visits typically ended when F. appeared no longer interested in visiting or at the child’s request. F. appeared to have a short attention span; at times after only five minutes, she needed to be redirected to continue visiting with appellant.
As visits came to an end, the girls did not appear upset at leaving appellant. Rather they appeared happy returning to their foster parents. During visits in late August and early September 2007, F. began playing near the door after about 15 minutes and said “mommy” while pointing towards the door. Appellant asked F. if she wanted to leave and the child said yes. Upon leaving, F. ran towards her foster parents and shouted out “mommy” giving the foster mother a hug.
The supervising social worker believed F. and M. shared a friendly visitor relationship with appellant. The social worker added in this regard that M. was two-months old when she was removed from appellant and the infant since looked to someone else to be her primary care provider. Although F. referred to appellant as “mommy,” she also referred to her foster mother as “mommy” and sought her out for ongoing care and support.
The court did not conduct the section 366.26 hearing in September 2007 as originally scheduled, but rather in January 2008. Much of the delay occurred as a result of appellant’s claim that she knew the whereabouts of different men whom she had previously alleged could be F.’s father. She also apparently claimed in an ongoing child support proceeding that yet another man could be F.’s father. DNA testing eventually excluded two of the men. The third man never submitted to court-ordered testing.
Also in the meantime, appellant wrote a letter to the court in which she questioned the care her children received and advocated against terminating her rights. This led the children’s counsel to conduct an independent investigation. The attorney reported back that the children appeared to be “well taken care of.” The court ordered that the parties be provided with a copy of the investigator’s narrative. Although both appellant’s letter and the investigator’s narrative appear in the appellate record, there is no indication that anyone offered or the court ordered either document into evidence.
At the January 2008 hearing, the department and the children’s counsel submitted the matter on the department’s September 2007 report. Appellant took the witness stand on her own behalf. She testified she visited consistently with the children since her jail release in September 2007. When the children arrived, F. usually came running to appellant, giving her a hug and kiss and expressing her love for appellant. Although she and M. did not have as close a bond, M. in the last few months started to run to appellant and appeared excited at the start of their visits. Appellant also described playful visits with the children. Although appellant tried to engage each of the children, there was more interaction between her and F. than with M. In appellant’s opinion, F. had a hard time leaving her at the end of a visit.
She later testified she did not see her daughters from the time she went to jail in March until July or August 2007.
In closing argument, appellant urged the court to find termination would be detrimental to the children based on her consistent and positive visitation and their parent-child relationship. The department argued against her claim of a parent-child relationship, citing how young the children were when they were removed and the fact that appellant had not been responsible for their care since then. Once the parties submitted the matter, the court found it likely the children would be adopted and terminated parental rights.
DISCUSSION
Appellant contends the court erred by declining to find termination would be detrimental to the children’s best interests. She claims she was entitled to such a finding because she maintained regular visitation with them and there was evidence from which the court should have concluded that the children would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i), formerly § 366.26, subd. (c)(1)(A)).
Once reunification services are ordered terminated, adoption is the norm if, as in this case, the children are likely to be adopted. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
We conclude, based on our review of the record, the court did not abuse its discretion. For section 366.26, subdivision (c)(1)(B)(i) to apply, a court must find: (1) a parent maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. At trial, it was undisputed that appellant maintained regular visitation with the children throughout their dependency. However, there was conflicting evidence as to whether they even shared a parent-child relationship, much less whether the children would benefit from continuing their relationship with appellant.
For the first time on appeal, respondent questions whether appellant maintained regular visitation and contact. It focuses on the brevity of appellant’s visits. According to respondent’s calculation during the seven months preceding the section 366.26 hearing, appellant saw the children at most four hours per month. With so little contact, respondent argues appellant did not occupy a parental role with the children. Respondent, however, fails to cite and we are unaware of any case authority so interpreting the “regular visitation and contact” element in section 366.26, subdivision (c)(1)(B)(i) or its predecessor, former section 366.26, subdivision (c)(1)(A). We find respondent’s argument unpersuasive given the statute’s use of the term “regular” visitation and contact. Nothing about this first element suggests the length of visits determines their regularity. In addition, because the length and frequency of parent/child visits is generally under the control of the department, respondent’s approach would take a parent’s ability to satisfy the statutory element out of the parent’s control, something which makes little sense.
This is not to say the amount of visitation and contact is irrelevant to a court’s consideration of a parent’s claim under section 366.26, subdivision (c)(1)(B)(i). However, it is a factor to consider in gauging the second element of section 366.26, subdivision (c)(1)(B)(i), that is whether the child would benefit from continuing the relationship. The statutory exception generally in section 366.26, subdivision (c)(1)(B)(i) but particularly the second element:
“requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: ‘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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
According to appellant, a bond existed between her and the children as well as that she provided for their physical and emotional needs during visitation. She relies on: evidence from the earlier, dispositional phase of the case; her interpretation of the court’s July 2007 visitation restriction; information contained in her letter to the court and the investigator’s narrative; and her testimony at the section 366.26 hearing. She also assumes, based on respondent’s closing argument, that the court improperly reasoned the children did not share a beneficial relationship with her because she had not provided for the children’s daily needs. (See In re Casey D. (1999) 70 Cal.App.4th 38, 50-51.) In the process, however, appellant overlooks several important points which fatally undermine her claim of error.
One, the evidence before the court at the section 366.26 hearing was limited to the department’s “366.26 WIC REPORT” and her testimony. Appellant never asked the court at the section 366.26 hearing to consider the earlier dispositional-phase evidence that the children’s pleasant visits suggested a bond with or a positive attachment to appellant. In any event, the same report from the dispositional phase included therapeutic information, as summarized above, which raised questions about that attachment, at least between F. and appellant. It also described at length appellant’s inability to accept any responsibility for the severe harm inflicted on M. and the serious risk of harm to F. In addition, appellant did not introduce and the court did not admit, either her letter or the investigator’s narrative into evidence.
Two, there was conflicting evidence before the court on this issue. According to the department’s September 2007 report, the children shared a friendly visitor relationship with appellant and neither child appeared upset when leaving appellant at the end of their visits. In addition, M. was only two months old when she was removed from appellant and the infant since looked to someone else to be her primary care provider. Further, although F. referred to appellant as “mommy,” she also referred to her foster mother as “mommy” and sought her out for her ongoing care and support.
This leads us to our third point. On appeal, all evidentiary conflicts must be resolved in favor of the respondent. Issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Appellant’s argument appears to be little more than an invitation to reweigh the entire record.
Four, as an appellate court, we must draw all legitimate inferences to uphold the trial court’s decision, if possible. (In re Laura F., supra, 33 Cal.3d at p. 833.) In this respect, appellant draws an unreasonable inference from the court’s July 2007 ruling denying visitation between the children and M.’s paternal grandmother. The children’s therapist opined, due to the children’s mental fragility, extended contact with any relatives besides appellant was therapeutically unadvisable and could be a detriment to the children’s current prognosis. Appellant infers from this that the court recognized the children’s mental health would be jeopardized if contact with her were to cease. We disagree. This is hardly a reasonable inference. In any event, the legitimate inference we draw from the therapist’s opinion relative to appellant was merely that contact between her and the children was not detrimental, whereas visitation with other relatives could be.
Five, appellant’s assumption that the court improperly reasoned the children did not share a beneficial relationship with her because she had not provided for the children’s daily needs is nothing more than pure conjecture. She overlooks her burden to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, the court did not explain its reasoning or endorse respondent’s argument. In any event, the trial court’s reasoning is not, however, a matter for this court’s review. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Nat. Trust & Savings Assn. (1932) 123 Cal.App. 564, 567.)
Nevertheless, even had the court found there was a parent-child relationship, at least as between F. and appellant, appellant failed to establish their relationship was so strong or there was such a substantial, positive emotional attachment that F. would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) We note in this regard that the loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) In addition, the court did not have to ignore the fact appellant’s children were very young and faced the prospect of tenuous placements for the bulk of their childhood if parental rights were preserved. Thus, we conclude the court did not abuse its discretion by rejecting appellant’s argument and terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.