Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J209952. Kyle S. Brodie, Judge.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
King, J.
Appellant Amanda R. (mother) is the mother of H.G. (born in April 2004). Mother appeals from the juvenile court’s ruling terminating her parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Mother argues that substantial evidence does not support the juvenile court’s finding under section 366.26, subdivision (c)(1)(B)(i), that the “beneficial parental relationship” exception does not apply here. For the reasons described below, we affirm the juvenile court’s ruling.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Minor came to the attention of the Department of Children’s Services (DCS) on August 18, 2006, when police arrested mother for theft, child endangerment, and resisting arrest. Mother had flagged down a man driving a truck and requested a ride for herself and minor. Minor rode in the truck without a car seat. Mother requested the driver to stop so they could get something to drink. When the driver returned to his truck from getting a drink, he found his paycheck missing and called the police. The responding officer indicated that minor was dressed in very dirty clothing and a dirty diaper. The officer contacted DCS.
Maternal relatives indicated that since minor’s birth, “mother would ‘drop off [minor] with [the maternal aunt] and pick her up for a few hours or days but has never truly provided for her.’” Mother had been arrested and incarcerated many times, and during those periods of confinement minor stayed with the maternal aunt. Mother’s criminal history included arrests for false identification, false impersonation, possession of and being under the influence of controlled substances, and vehicle theft. Mother had a prior arrest as recently as August 7, 2006. Maternal relatives indicated “that prior to DCS involvement, it was the maternal aunt who was the primary caretaker for the child—not the mother.” Mother lived on the streets. There had also been apparent instances of domestic violence between the father and mother.
DCS filed a section 300 petition alleging minor was at risk due to mother’s substance abuse, unstable lifestyle, and instances of domestic violence. At the detention hearing, the juvenile court found probable cause for the detention of minor and temporarily placed her in the custody of DCS. The September 7, 2006, jurisdictional/dispositional report indicated that minor was making positive strides in her placement. Mother had enrolled in a drug program but had yet to attend any meetings. Mother visited with minor weekly and minor appeared to enjoy the visits. Mother failed to show up for subsequently scheduled mediation and settlement conference hearings. It was later discovered that mother had been arrested and was in jail. An addendum report issued on November 3, 2008, indicated that mother had been in and out of jail for various offenses since the last hearing, the last known arrest occurring on October 16, 2006. Mother had made weekly calls to minor, although she had apparently had no visits with her. Minor reportedly referred to all adult females as “[m]om.”
At the jurisdictional/dispositional hearing on December 4, 2006, the juvenile court found the allegations in the petition true, adjudged minor a ward of the court, and ordered mother to participate in reunification services. A status review report issued on March 26, 2007, indicated that minor had been placed with her paternal aunt and uncle. Mother was not working and had not enrolled in any of her court-ordered services; in fact, when asked if she had enrolled in such services, mother replied, “[n]o and why should I? They’re not gonna give me my daughter back anyway.” Mother failed to appear for drug testing. “[M]other’s visits have been extremely sporadic as she will attend some visits but then not show up to visits for weeks at a time.” “[W]hen the mother does attend a visit, she is appropriate for the most part but the child does not appear to recognize that [mother] is her mother as [minor] does not become particularly excited to see [mother], nor does she cry when [mother] leaves at the end of the visit. [The paternal uncle] reports that [minor] does call [mother] ‘mommy.’ However, it should be noted that the undersigned has observed [minor] referring to all women as ‘mommy,’ including the undersigned.” The report also indicated that minor did not appear to have developed a strong attachment to mother, but had developed a strong bond with the paternal aunt and uncle. Maternal relatives reported that mother was still homeless. The current caretakers reported that, if allowed to adopt minor, they would continue to permit supervised visitation by mother and the maternal relatives. The report recommended termination of reunification services.
At the contested six-month review hearing held on May 17, 2007, mother objected to DCS’s recommendation, but presented no affirmative evidence. The juvenile court terminated reunification services. An adoptability assessment issued October 2, 2007, reported that minor had been placed with the paternal uncle and aunt, the prospective adoptive family, since September 11, 2006, and recommended the court find minor adoptable. It relayed that “[w]hen [minor] first was placed she only grunted and called every woman ‘mommy.’ She is still very delayed in her speech, still saying one to two word sentences, but now the adoptive mother is mommy and she addresses people more by their name. The adoptive father shares that she ‘talk[s] in tongues’ and basically babbles a great deal of the time, with no clear indication of what she is saying. During [a visit with the social worker], [minor] was unable to tell the adoptive mother what her grandmother had given her to eat, nor was she able to name her grandmother. The adoptive mother shared that they have asked the school to evaluate her speech.” “[Minor] appears to have an attachment with the prospective adoptive parents and sought out the adoptive mother for comfort and attention. [Minor] is affectionate with the adoptive parents and is able to give and receive affection. She calls the prospective [a]doptive parents ‘[m]ommy’ and [d]addy.’ [Minor] tells the adoptive parents often, ‘I love you’ and vice versa. The prospective adoptive parents share that [they] will raise [minor] just like their own (biological) child.” The prospective adoptive parents reiterated that they intend to permit visitation with mother so long as it is in minor’s best interests.
A section 366.26 report issued on October 11, 2007, indicated that mother had been incarcerated since February 2007, and had not had any visits with minor since then due to her incarceration. The report recommended termination of parental rights. Mother was apparently released from custody sometime shortly after the report was issued. On October 18, 2007, the juvenile court ordered minor’s participation in the START program because she “appears to be delayed in her speech.” (Capitalization omitted.)
At the section 366.26 hearing, mother testified that she had been incarcerated for 7 of the 15 months since dependency proceedings had commenced. She testified that, at the time of the hearing, she had been free from custody for approximately a month; however, she had missed two of her weekly visits because she was in Sacramento. Nonetheless, mother testified that she called minor almost every day and that she was able to communicate with her. Mother indicated that during her periods of incarceration she was unable to speak to minor on the phone. Mother reported that minor calls her “mom” and hugs her when mother sees her in person. When asked why she did not agree with DCS’s recommendation of terminating her parental rights, mother responded “[b]ecause I’m a single parent. The father is deported, and I’m homeless. I can’t provide a home for her right now, but if temporarily the caretakers could take her temporarily, I accept that. I appreciate what they’re doing, but until I get on my feet, then I would appreciate it, like, I get her back.” The court found that the beneficial parental relationship exception did not apply and terminated mother’s parental rights.
II. DISCUSSION
Once reunification services have been terminated and the minor has been found adoptable, “adoption should be ordered unless exceptional circumstances exist . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Pursuant to section 366.26, subdivision (c)(1)(B)(i), the court may find a compelling reason for determining that termination would be detrimental to the child if the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent has the burden of proving that termination would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) “[I]t 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; see also In re Casey D., supra, at p. 51.) “A finding no exceptional circumstance exists is customarily challenged on the sufficiency of the evidence.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Jerome D., supra, at p. 1207; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) “On review of the sufficiency of the evidence, we 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.” (In re Autumn H., supra, at p. 576.)
The “beneficial parental relationship” exception applies where “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 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., supra, 27 Cal.App.4th at p. 575.) “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]” (Ibid.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (Id. at pp. 575-576.)
Here, substantial evidence supports the juvenile court’s finding that termination of mother’s parental rights would not be detrimental to minor and that the “beneficial parental relationship exception” was not applicable. Contrary to mother’s contention, she did not maintain regular visitation with minor. The record reflects that minor was detained on August 18, 2006. While mother had weekly visits with minor between then and September 7, 2006, subsequent visits had not occurred because mother was in and out of jail. Rather, mother’s sole contact with minor between September 7, 2006, and October 23, 2006, consisted of phone calls. Mother’s visitation with minor between October 23, 2006, and February 2007, when she began her seven-month jail stint, was described as “extremely sporadic as she will attend some visits but then not show up to visits for weeks at a time.” Mother had no visitation with minor between February 2007, and mid-October 2007. Mother reported that during her various periods of incarceration, she was also unable even to speak with minor on the phone. In the one-month period between mother’s latest release from jail and the section 366.26 hearing, mother missed at least two of her weekly visits with minor because she was in Sacramento. Mother gave no further explanation for the necessity of her being in Sacramento and, hence, missing at least two of her last four visits with minor. While mother testified that she spoke with minor on a daily basis after her last release from custody and could effectively communicate with her, her testimony is belied by the fact that both the prospective adoptive parents and the juvenile court found that minor suffered from some sort of speech disorder, rendering her incapable of effective conversation. Thus, during the 15-month pendency of the dependency proceedings, mother had missed at least eight months, or more than half, of her visitation with minor due to her various incarcerations. Even during the remaining seven-month period, mother’s visitation with minor was “extremely sporadic.” Mother asserts she should not be faulted for not visiting with minor when she was incarcerated. To the extent mother challenges the juvenile court’s failure to offer visitation services while she was incarcerated, mother forfeited the issue by failing to raise it either at the six-month review hearing or on petition for extraordinary writ. (In re Liliana S. (2004) 115 Cal.App.4th 585, 589.) Nonetheless, it was mother who continually failed to notify DCS of her whereabouts. In fact, it appears from the record that DCS was not even aware of mother’s last period of incarceration until the compilation of the section 366.26 report on October 11, 2007.
Finally, to the extent that one could even attempt to characterize mother’s visitation as regular, the record does not support mother’s assertion that she had a beneficial parental relationship with minor which outweighed the benefits of adoption. Here, while mother had legal custody of minor during the nearly two and a half years since minor’s birth, the evidence shows that mother was not minor’s primary caretaker. Maternal relatives reported that mother lived on the streets and that she was frequently incarcerated. The maternal aunt was minor’s primary caretaker; mother would merely pick minor up for a few hours or days at a time, but had never truly provided for her. Thus, even prior to the initiation of dependency proceedings, mother did not have the type of significant bond with minor required by the statutory exception, i.e., she never paid attention to minor’s “needs for physical care, nourishment, comfort, affection and stimulation.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
This did not change with the onset of dependency proceedings. While an early report indicated that minor appeared to enjoy her visits with mother, simply the infrequency of those visits shows that no substantial bond developed. A later report indicated that minor did not have a strong attachment to mother. While mother’s conduct during her visits with minor was deemed appropriate, minor did not appear to recognize mother as her mother. An early report reflects that minor did refer to mother as “mommy”; however, it also indicated that minor referred to all adult females as “mommy,” including the social worker. A later report indicates that minor stopped calling any adult woman, other than the prospective adoptive mother, “mommy.” While mother testified at the section 366.26 hearing that minor still called her “mom,” the juvenile court could well have discounted the credibility of such testimony when weighed against the report. Or the court could simply believe this was a continuation of minor’s habit of calling all women “mommy.” Even when asked why the court should not terminate her parental rights, mother never responded with anything approaching parental concern or love for her child. Rather, she merely replied that the caretakers should continue to provide for minor while mother got back on her feet.
Ultimately, there was simply no evidence that minor had any bond with mother, let alone one sufficiently strong to outweigh the stability and security provided by the prospective adoptive home. Mother had never even proceeded to unsupervised visitation with minor. The prospective adoptive parents indicated that they would continue to permit visitation between mother and minor. Minor had been in the custody of the prospective adoptive parents for over 14 months. She was attached to them, called them “[m]ommy” and “[d]addy,” and told them she loved them. The adoptive parents planned to raise her as their own child. Thus, substantial evidence supported the court’s determination that terminating mother’s parental rights would not be detrimental to minor.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Miller, J.