Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego CountySuper. Ct. No. NJ12806B, Harry M. Elias, Judge. Affirmed.
McCONNELL, P. J.
Irma S. (Irma), the mother of G.S., appeals the judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Irma contends the juvenile court erred by finding G.S. was likely to be adopted and by not applying the parent-child beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).
All statutory references are to the Welfare and Institutions Code.
FACTS
On January 18, 2004, G.S. and her 10-year-old half-brother, Isaac C., fled from Irma's house because Irma and her adult sons were fighting and drinking. The children went to an aunt's home and were terrified of returning home. Isaac told a social worker that Irma drank daily and hit them. G.S. said that when her mother was drunk, she threw shoes at her. Irma had prior contacts with the Agency, including one in December 2003, when she was arrested and placed on a section 5150 hold. At that time, Irma agreed to allow the children to live temporarily with her sister and to remain sober. In January 2004, the Agency filed a petition on behalf of G.S. under section 300, subdivisions (a) and (b) alleging Irma drank to excess, engaged in domestic violence in the family home and physically abused G.S. by throwing shoes at her.
The court sustained the petition, removed G.S. from Irma's custody, and ordered reunification services for Irma, including that she enroll in and make substantial progress in the Substance Abuse Recovery Management System (SARMS) program. Initially, Irma made little progress; she continued to abuse alcohol, was homeless, left a parenting class, and failed to begin individual therapy or a domestic violence group.
By the time of the 18-month review hearing in August 2005, the court found Irma had made substantial progress in alleviating the circumstances that had led to the dependency. She had remained sober since October 2004, was attending individual therapy and a domestic violence group. She had begun unsupervised visits with G.S. who had been placed in a maternal aunt's home. The social worker believed it was highly likely G.S. would be able to return to her mother's home in a few months. The court continued G.S. as a dependent after finding a section 366.26 hearing was not in G.S.'s best interest because adoption was inappropriate and there was no one willing to accept legal guardianship. The court authorized overnight visits and a 60-day trial visit.
The 60-day visit did not go well. In March 2006, G.S.'s therapist contacted the social worker because she was concerned G.S. was engaging in self-destructive behavior. G.S. had plucked her eyebrows out from the end to the center. When asked about it, G.S. said she did not think it made her look pretty and could not explain why she had done it. G.S. told both her therapist and the social worker that during the visit Irma had hit her on two separate occasions on the arm, one time leaving a mark and hurting her so badly that she put water on it to make it feel better. G.S. also told the social worker that Irma became angry at her every week and yelled at her. She was afraid of her mother.
The social worker talked with Irma who said she became angry because G.S. did not listen to her or do what she was told. She denied hitting G.S., but became silent when the social worker asked her if G.S. was lying. Irma also stated that she did not believe what had happened in the home was so serious that it justified taking G.S. away. After this incident, and during her phone calls with G.S., Irma asked her why she had lied and noted she had told her not to say anything. The social worker reported to the court concerns that despite two years of reunification services and abundant opportunities to learn new ways of coping with stress and discipline, Irma had not demonstrated an ability to implement what she had learned and did not have insight into how she was emotionally impacting G.S. The social worker also noted that Irma had failed repeatedly to show up for services provided by In Home Parenting.
After the visit with Irma, G.S. was moved to the home where her brother, Isaac, lived. His caregiver was proceeding to adopt him and had expressed an interest in keeping G.S. on a long-term basis, either through guardianship or adoption. G.S. thrived in this caregiver's home.
Irma had liberal phone contact with G.S. and visited her once every four to six weeks for about two hours. The caregiver supervised the visits. G.S. stated the visits were fine, felt comfortable but she did not want to live with her mother. The caregiver stated that sometimes Irma and G.S. talked, sometimes watched television and sometimes Irma interacted with the caregiver's grandmother.
In April 2007, the social worker recommended a section 366.26 hearing be held terminating parental rights with a permanent plan of adoption for G.S. because the caregiver wanted to adopt her. The social worker reported G.S. was bonded to the caregiver and other extended family members, and even if the caregiver did not adopt G.S. there were seven other families who would be interested in adopting someone with her characteristics.
In June 2007, the social worker observed several visits between G.S. and Irma. During the first visit, G.S. greeted Irma with hugs and kisses. They played board games and colored. There was very little interaction except when directions were read. There was a similar pattern during the second visit. The social worker observed another visit in July 2007. During that visit, Irma and G.S. watched a movie. The social worker did not believe Irma had a parental relationship with G.S., that role was fulfilled by her caregiver. The social worker did not believe the type of relationship G.S. had with her mother outweighed G.S.'s need for the stability and security that adoption would provide and recommended termination of parental rights and adoption.
In late June 2007, G.S. told the social worker she loved her mother, but did not want to live with her because she was afraid Irma would return to drinking and hitting her. She felt safe in her current placement. At that time, when she was told that adoption would mean terminating her mother's parental rights, G.S. stated she would like to maintain contact with her and therefore thought she would prefer guardianship. Later, however, when it was explained that if she were adopted Irma would not be able to go to court and seek custody, G.S. stated she wanted to be adopted.
Irma opposed termination of her parental rights and adoption, contending adoption would be detrimental because a beneficial parent-child relationship existed between her and G.S. At the hearing, she testified she did not want parental rights terminated "[b]ecause she's my daughter" and "I will always be her mother . . . until the day I die."
The court stated there was "a child relationship" between G.S. and her mother that was "[c]learly beneficial" to Irma and partially beneficial to G.S. However, this "beneficial child-parent relationship" did not outweigh the benefit to G.S. of adoption. The court terminated Irma's parental rights and ordered a permanent plan of adoption.
DISCUSSION
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the section 366.26 hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1).) The parent bears the burden of establishing by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (Ibid.; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Among the statutory exceptions is the beneficial parent-child relationship exception. (§ 366. 26, subd. (c)(1)(A).)
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship exception, formerly section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i). The sibling relationship exception, formerly section 366.26, subdivision (c)(1)(E) is now section 366.26, subdivision (c)(1)(B)(v). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
The beneficial parent-child relationship exception applies when termination of parental rights 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)(A).) We have interpreted the phrase "'benefit from continuing the relationship'" to refer to a "parent[-]child" relationship that "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 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Thus, "if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a substantial, positive emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We will uphold the trial court's determination if it is supported by substantial evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) We do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) We draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Irma did not meet her burden of showing her relationship with G.S. was sufficiently beneficial to outweigh the benefits of adoption. Irma maintained regular contact with G.S., but her visits with G.S. occurred only once every four to six weeks. G.S. stated that she loved her mother and enjoyed the visits, but she also made it very clear that she did not want to live with Irma, that is, she did not want to be in a situation where Irma occupied the parental role. G.S. did not feel safe with her mother and was afraid of her. This fear was justified. Even after years of reunification services and sobriety, Irma was unable to implement the parenting skills she had been taught and instead resorted to yelling and hitting her daughter. Her conduct caused G.S. to engage in self-destructive behavior, a clear sign that the relationship was not beneficial for G.S. (See In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. 4.) There was substantial evidence supporting the trial court's conclusion that the relationship with Irma was only partially beneficial to G.S. and did not outweigh the benefits of a permanent plan of adoption.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., O'ROURKE, J.