Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK62756, Elizabeth Kim, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant, Bessie B.; Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant, Jesus K.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), the parents of the subject dependent minor child have appealed to challenge an order that terminated their parental rights. The parents contend the dependency court erred when it ruled they had not carried their burden of establishing that the parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) applies in this case. Our review of the record convinces us that the trial court did not abuse its discretion when making its finding on the matter. We will therefore affirm the challenged order.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. Detention of the Minor Child
The child in this case is Isaac K. (Isaac). He was born in January 2006. His parents are Jesus K. (Father) and Bessie B. (Mother).
When Isaac was just two months old, the Los Angeles County Department of Children and Family Services (the Department) received a report about him from the Child Protection Hotline. On March 16, 2006, he was taken into protective custody and the Department placed him with his maternal grandmother (MGM). He has remained in her care ever since. Mother was 17 years old at the time the Department intervened, and Father was 22 years old.
The report to the hotline alleged that Isaac was being emotionally and physically abused by Father, and generally neglected by Father and Mother. The hotline report further alleged that both parents use illegal drugs; Father assaulted Mother while she was pregnant and after she gave birth; the police have been called for their domestic violence several times and Father has been arrested for it; Mother leaves home for days at a time and leaves Isaac in Father’s care; the minor sustained a burn to the lower portion of his left leg while he was in Father’s care and Father did not admit to having caused the injury; the MGM was caring for the minor for several days and during that time, the child did not have a bowel movement or urinate for two days, was crying a lot, and did not want to eat; neither parent works; and Mother was currently on probation and has spent time in Juvenile Hall.
The Department interviewed Father. He told the social worker Mother lives across the street from him at the MGM’s home. He admitted he had used crystal meth but said he only used it for a couple of months and had not used it for the prior four months. He admitted there was domestic violence with Mother but stated it was she who injured him, and he admitted he had served time in jail for battery several years before the day of the interview. He stated he did not know how Isaac’s leg was burned and stated he had not even seen it. Father was living with his parents, sister and uncle. According to Father, Mother had also been living in the home with him since she became pregnant, and remained there until February 2006, at which time she left Isaac with him. Thus, it appears that Isaac lived with Mother and Father the first month of his life, with Father the second month of his life, and neither parent had care of him after that.
The social worker was not able to interview Mother prior to the detention hearing in juvenile court. The MGM stated Mother had not been home for five days and was out on the streets. Mother had been arrested three times for possession of marijuana. (A later Department report shows Mother also has two probation re-arrests.) The MGM did know how Isaac had sustained the burn to his leg or when it occurred. It appeared as a two-inch, thin, healing burn mark.
Mother and Father appeared at the March 21, 2006 detention hearing. Mother indicated she had begun living with her aunt in Wilmington. The court ordered the minor detained in the MGM’s home, with the parents to have visits with the minor there, as often as the MGM would permit, so long as the MGM or another approved person was there to monitor the visits. Father was ordered to test for substance use. The Department was ordered to address, in a pre-release investigation report, whether Mother should be permitted to live in the maternal grandparents’ home contingent on her testing negative.
In its pre-release report, the Department indicated Father has several arrests for battery, including battery on school property and battery on an emergency person, and an arrest for giving a false identification to a peace officer. The social worker monitored a visit between Father and the minor at Father’s home after the social worker walked the minor from the MGM’s home across the street to Father’s home. The minor was fussy during the trip but became calm when he was placed in Father’s arms. Father and the paternal relatives were appropriate with the child. Father fed him a bottle, was loving and caring, and the minor fell asleep his arms.
On that same day, the social worker, Father and the MGM worked out a daily visitation schedule for Father at the MGM’s home. Two days later Father reported that the MGM had not returned his calls to have visits, but the MGM told the social worker Father had never called her and she stated Father has a history of lying. The social worker called the MGM’s home that day and set up a visit for that afternoon. Father was appropriate at the visit, holding the child in his arms, but he left after 15 minutes. Father left a message for the social worker saying the visit was short because he had to pick up a certificate showing he had taken anger management classes but would return that evening to visit the child. Thereafter Father reported that on a subsequent day he could not visit the child because the MGM was not at home and Mother told him the minor was with an aunt. The MGM denied those representations and asserted Father was causing trouble to facilitate having the minor returned to his care.
At the April 4, 2006 pre-release investigation hearing, the court ordered Isaac would remain in the care of the MGM, the Department would have discretion to release him to Father, Father was to continuing testing for substance abuse, and the Department was to set up visits for him three times a week, three hours each visit. The court indicated the visits could be at a Department office if Father would arrange for an approved monitor.
2. Pretrial Resolution Conference
The social worker interviewed Mother and Father separately in early April 2007. They gave wildly different versions concerning the allegation that Father physically abused Mother. Mother described substantial physical abuse of her by Father. Mother also stated that Father’s brother’s female companion told her Father tried to hit her once and Father used to hit his prior girlfriend. Father denied ever hitting Mother. He stated that rather, they would have verbal arguments, both before and after Isaac was born, about Mother wanting to be away from home with friends. Both parents stated they had lived together for 10 months.
The female companion of the maternal uncle (they live in the MGM’s home) stated she has seen Father grab Mother by the neck. She also saw him hit Mother on her arm and leg, and Mother hit Father back. Father has also called Mother a bitch and a whore. The MGM stated Father has assaulted Mother on several occasions. The PGM stated Father showed her bite marks made by Mother biting Father but she never saw Father hit Mother. She stated the parents argue a lot. The PGM reported Father drank a glass of bleach when his former girlfriend left him and he was hospitalized for a week. Father confirmed this. Mother stated she observed Father attempt suicide by hanging himself because she had told him she was going to leave him and return to live with the MGM.
Mother stated she used crystal meth on a regular basis from the age 14 or 15 until she stopped using it when she was about to turn 17, and she smoked marijuana from the age of 11 or 12 until March 2006. She stated she used drugs until she was 3 months pregnant because she did not know she was pregnant. Father stated Mother used crystal meth four or five times “in the year that I knew her,” and the last time Mother used it was when Isaac was two or three weeks old. He stated Mother smoked marijuana every day, including after the minor was born. He stated he began using crystal meth when he was 20 years old and progressed to using it every day but stopped using it in November 2005. However, Father tested positive for amphetamines and methamphetamines on March 29, 2006. He tested negative for drugs on April 6, 2006.
The social worker opined that both Mother and Father appear to love Isaac very much and are appropriate and caring when they visit with him. Mother stated she wanted the minor returned to her care and would agree to reside with the MGM and engage in drug testing. The MGM agreed with that plan. Mother agreed to come to a Department office on April 11, 2006 to obtain a picture identification so that Mother could engage in drug testing, but Mother did not keep the appointment. Father stated he would be willing to share custody with Mother. A new visitation schedule was arranged for Father—one weekday visit and weekend visits.
Based on what was revealed during the social worker’s investigation, the Department opined that although Mother and Father appear to desire to care for Isaac, it does not appear they are able to do that due to their unresolved drug and domestic violence problems. The Department recommended that both parents participate in drug programs and testing as well as parenting programs, Mother participate in counseling for victims of domestic violence, and Father participate in anger management counseling and counseling for perpetrators of domestic violence. It was also recommended that Isaac remain placed with the MGM, Mother be permitted to live with the MGM and have monitored visits with the minor, and Father have monitored visits.
At the pretrial resolution conference on April 17, 2006, Father’s attorney indicated Father had not had any visits with Isaac. Investigation revealed that when the social worker received the court’s April 4, 2006 order for thrice weekly visits for Father, she arranged for a visit on Father’s birthday, April 6, 2006, at his request, but Father did not show up for the visit. Father told the court he forgot about the visit. The social worker indicated she and the Department investigator met with the maternal aunt who lives with the MGM and the aunt indicated that pretty much any day would be appropriate for Father to visit with Isaac. The social worker called Father and set up visits for Monday, Tuesday and Wednesday from 12:30 to 3:30 and the social worker let the aunt know about that arrangement. Father then left messages for the social worker saying he had forgotten when his visits were. The social worker and Father set up another visitation schedule, in writing, at the hearing that very morning, Father was given a copy of the schedule, and he signed a copy of it. The court asked Father why he couldn’t remember the other schedule and he stated he “didn’t know earlier morning or afternoon.” The social worker indicated Father’s visits were again to be on Monday, Tuesday and Wednesday, but the time had changed to 3:30 to 6:30, and Father indicated he would start the visits the following day, April 19, 2006. The court directed that the MGM be asked to make accurate records of when Father visits the minor.
3. Adjudication and Disposition Hearing
An interim report from the Department shows that in the period between the April 18, 2006 pretrial resolution conference and the adjudication hearing that was scheduled for June 6, 2006, Mother tested negative twice for drugs. The social worker opined that Mother did not appear to take the issue of domestic violence seriously because she and Father had spoken about reuniting “for the sake of their son,” and she had not been attending counseling to address the domestic violence issue. Mother told the social worker she and Father were “trying things out” before they committed to being with each other. Mother continued to live on her own rather than in the MGM’s home. Mother was consistently visiting the minor three to four times a week, and the child’s babysitter reported no concerns with the visit. She appeared to be willing to comply with the order for her to attend her case program classes and counseling, however she appeared to need someone to assist her in attending them. On May 11, 2006, the social worker spoke with a Ms. Coley from El Nido and Coley reported Mother was set to begin parenting classes, and domestic violence and individual counseling, and an intake was scheduled for Mother at El Nido for May 19, 2006. However, Mother did not appear for the intake. When asked why she did not go, Mother first told the social worker she had not one to take her there, but then stated she did not go because she had spent the night with a friend.
Father was a no show for an on-demand drug test on April 21, 2006 and apparently had no other tests scheduled. He told the social worker he did not appear for the test because he lost his ID. He also reported that he and Mother are trying to work on their relationship. His visitation schedule was changed again, this time because he had obtained employment, was working during the day, and did not arrive home until late afternoon. The Department investigator informed the MGM of the new schedule. It called for visits on Saturdays and Sundays, between 4:00 and 7:00. Father signed the new visitation schedule on May 4, 2006. However, by the end of May 2006, he had only visited Isaac once that month, and had not reported that he was not being permitted to visit the child. Finally, on June 2, 2006, he requested visitation. The request was made to the Department, not to the MGM. By June 5, 2006, Father had not given the social worker any documentation showing he was enrolled in any of the programs ordered by the court; nor had he provided documentation that he had completed the anger management classes that he said he had taken.
The petition was adjudicated and a disposition order made on July 12, 2006. The court found the following allegations in the petition to be true. Isaac’s parents have a history of domestic violence towards each other, including each striking the other, and Father was arrested for physically assaulting Mother. This conduct endangers Isaac’s physical and emotional health and safety. Mother has a history of substance abuse which periodically renders her incapable of providing regular care for Isaac, and endangers his physical and emotional health and safety. Father has a history of illegal drug use and is a frequent user of methamphetamine which renders him incapable of providing regular care for the minor, and endangers the child’s physical and emotional health and safety.
Isaac was declared a dependent child of the court and the court made a suitable placement order for the home of the MGM. Mother was permitted to live in the home of the MGM with Isaac so long as her contacts with the minor were monitored. Father’s visits were to remain monitored. The following case plan was ordered for the parents: drug rehabilitation program with random testing; domestic violence counseling; and parenting classes.
4. Six-Month Review Hearing
The Section 366.21, subdivision (e) six-month review hearing was held on January 10, 2007. The Department’s report shows that Isaac was doing well in the care of his MGM. He attended day care when the MGM went to work. The MGM continued to monitor the parents’ visits with the minor.
Mother had moved back to the MGM’s home, and then moved out again after a verbal altercation with her step-father. She was living with a friend, but returned to the MGM’s home frequently to visit the minor. Mother was not in compliance with her case plan. She was not enrolled in a drug treatment program, she was not testing, and although she enrolled in parenting classes and domestic violence therapy in the fall of 2006, she had only attended one session. Her excuse was that she had no one to take her to the facility where the classes are held and she cannot walk long distances; however, she had no documentation from a doctor showing a restriction on walking. She was unemployed and had minimal contact with the social worker.
Father was in partial compliance with his case plan. He was enrolled in a 52-week parenting and anger management program, and his level of participation, prognosis, and overall progress were good. He had tested negative five times and had two no-shows. However, he had not enrolled in a drug treatment program and he told the social worker that with his parenting and anger management programs and his employment, he had no time for drug treatment. He was visiting Isaac on Saturday and Sunday afternoons for three hours and the MGM reported the visits were appropriate. He played with the minor, changed his diapers and prepared him for bed. The MGM reported Isaac appeared to be well bonded with Father. He was also in weekly contact with the social worker.
The MGM and the maternal aunt each indicated a willingness to adopt Isaac if necessary, the case was referred to the Department’s placement and recruitment unit, and the case was assigned an adoption worker.
At the hearing, the court increased Father’s visits from three to six hours when the MGM could accommodate the increased hours, and again ordered the parents to comply with their case plans. The matter was continued to July 9, 2007 for a 12-month hearing.
5. Section 366.21, Subdivision (f) Hearings
At the first scheduled section 366.21, subdivision (f) 12-month/permanency hearing, held July 9, 2007, the court was advised of problems with visitation in that Father sometimes did not show up for his visits and other times he only visited for a few minutes. Further, Mother was sometimes at the home of the MGM when Father visited because Mother had begun staying at the MGM’s home again. The court ordered that Father give 48 hours notice for his visits, which were scheduled for Saturdays and Sundays, and if he was more than 30 minutes late for a visit it would be deemed waived. Mother was ordered to not be present for Father’s visits.
The Department’s reports for the two 12-month hearings (July 9 and August 27, 2007) show that between the January 2007 six-month review hearing and the July 9, 12-month review, Mother was a no show 10 times for drug testing and she tested positive for cannabinoids on January 8, 2007. She signed up for a drug treatment program on May 14, 2007 but did not follow through on attendance. She told the social worker it was because her father, with whom she was living, was sick and she had no transportation voucher. Then on June 12, 2007, she enrolled in a drug treatment program and began attending it. The program, Shields for Families Revelation Program, required Mother’s attendance five days a week, three hours each day. A July 3, 2007 letter from her therapist reported Mother’s four drug tests were negative, she was demonstrating “exemplary motivation and an outstanding attendance record,” and she was “participat[ing] in individual and group counseling as a model client.” An August 2, 2007 letter from the program described Mother as having excellent attendance, being very dependable, and receiving several certificates for her group participation. In addition to testing for the drug treatment program, Mother also had two negative tests and one no show through the Department in July and August 2007. Despite the fact that the record does not show that Mother was engaging in domestic violence therapy or parenting classes, the Department’s report for the August 27, 2007 12-month hearing states she was in full compliance with the case plan. At the July 9, 2007 hearing, it was reported by Mother’s attorney that Mother was visiting Isaac daily. However, the Department’s report for that hearing states that the MGM reported that Mother has no set time to visit with Isaac and she “visits whenever she comes to the house.” The attorney stated the report was “completely inaccurate as to her visitation.”
Father was a no show nine times for his drug testing between the six-month review and the July 9, 2007 12-month review, and he had one test with negative results. He enrolled in a Tarzana Treatment Center drug rehabilitation program on May 18, 2007 and had completed five therapy sessions by mid-June 2007, however he was discharged from the program on August 13, 2007 because of lack of attendance. The report for the July 9, 2007 hearing states he continued to engage in his domestic violence and parenting programs, and there is a certificate showing he completed the ten sessions that constitute a parenting class at a Tarzana Treatment Center. The July 9 report states Father told the social worker he missed six visits with Isaac because he was working overtime. His visits with the child were reported to be only about 10 minutes long; in the month of June 2007 he did not visit at all; nor did he visit the minor between the July 9 and August 27, 2007 court hearings. It was reported that on two occasions he appeared to be under the influence of a controlled substance and on one of those visits he was asked to leave the MGM’s home because of his lack of respect. The MGM and the maternal aunt continued to be willing to adopt Isaac.
At the August 27, 2007 12-month/permanency hearing, the court terminated Father’s reunification services because of his inconsistent visitation with Isaac and his lack of significant progress in his case plan.
6. Section 366.22 Hearings
The Department’s report for the section 366.22 18-month permanency review hearing states Isaac was thriving in the care of his MGM and was very bonded with her. Mother was once again residing with the MGM and the minor. September 18 and 19, 2007 reports from Mother’s drug treatment program state she was taking a six-week maternity leave from the rehabilitation program and testing, and was scheduled to return to them on September 26, 2007. However, she was having individual therapy in her home once or twice a week during her maternity leave and was reported to be motivated in her therapy. The maternity leave began when her son, Daniel, was born in August 2007. She was reported to be attending parenting classes in the Shields for Family New Start program, but she had not enrolled in the domestic violence classes that the court ordered for her. She was working part time at a grocery store in her community.
Mother was having unmonitored visits with Isaac, and she told the social worker that she was spending quality time with him. However, the MGM reported that Mother did not have much contact with Isaac, did not spend quality time with him, and was not bonded with him. The MGM stated Mother was not engaging in everyday activities with Isaac, such as feeding, bathing and supervising him on a daily basis. The MGM reported that instead, Mother was focusing her attention on her newborn son, Daniel, who was also residing with the MGM, and Mother was bonded with him. There were altercations between Mother and the MGM when the MGM asked Mother to do things for Isaac. Newborn Daniel was reported to be healthy, tested negative for drugs, and the Department’s investigations into the newborn’s potential risk was pending. Mother stated she was willing to let the MGM have legal guardianship over Isaac. Father had not had contact with Isaac, or the Department.
At the September 24, 2007 section 366.22 18-month hearing, the court ordered mediation on October 23, 2007, and stated that if the case did not settle, a section 366.22 contested hearing would be held on October 24, 2007. A supplemental report for the mediation shows a call was made to the hotline regarding Mother and her new son, Daniel, and a team decision meeting was scheduled for October 25, 2007 to determine whether the plan for the new child would be voluntary services or court involvement. Mother had moved out of the MGM’s home by that time and was reported to be transient, moving from place to place with different friends. Mediation did not occur because the mediator was sick. At the October 24, 2007 section 366.22 hearing, the court set a section 366.26 hearing for February 20, 2008 for Isaac, thereby terminating Mother’s reunification services. It ordered permanent placement services, and ordered the Department to initiate an adoptive home study.
A section 300 petition was filed on behalf of baby Daniel on October 30, 2007. He was detained by the court on that day, placed with the MGM, and the court ordered monitored visits with him for Mother and Father. Although she had initially asserted that Father is Daniel’s father, Mother later identified a Miguel P. as the minor’s father. When Miguel P. asserted he is Daniel’s father, the court ordered a HLA test to determine whether he is correct. At the pretrial resolution conference hearing held for Daniel on November 26, 2007, the court found the allegations in the petition to be true, declared Daniel a dependent of the court, removed him from the custody of Father and Mother, ordered no reunification services for Father because he is an alleged father, and none for Mother because she failed to reunify with Isaac. A section 366.26 hearing for him was set for the same day as Isaac’s 366.26 hearing but was later continued as the issue of parenting was pending. Only the order terminating Mother’s and Father’s parental rights to Isaac are at issue in this appeal.
7. Section 366.26 Hearings
a. Initial Hearings
The Department’s report for the February 20, 2008 section 366.26 hearing states the minors were doing well in the care of the MGM, they appeared to be emotionally bonded with her, she indicated she was willing to adopt both of them, and she seemed eager and excited to do so. Mother indicated that if she failed to reunify with the minors she would not contest adoption by the MGM.
The MGM told the social worker Father was having minimal contact with Isaac even though he lives across the street from the MGM. She stated Mother was visiting the minors at the MGM’s home on a frequent, regular basis. However, apparently Mother’s frequent, regular visits with the children had begun after a December 2007 adoptions assessment was made, because when interviewed for that assessment, the MGM told the adoption worker that she and Mother were not getting along and Mother had not visited Daniel since he came to live with the MGM. The social worker recommended that the parents’ parental rights be terminated and the permanent plan for the minors be adoption. The February 20, 2008 section 366.26 hearing was continued for completion of the adoption home study.
b. June 24, 2008 Hearing
An April 22, 2008 report shows that Mother was visiting the minors frequently at the MGM’s home and assisting with bathing and feeding them. The MGM stated a belief that Mother was trying to regain custody of the children. Father was visiting Isaac every other weekend. The MGM stated she had observed a pattern to his visits such that when a court hearing was approaching, Father would make an effort to visit Isaac weekly, and she opined that Father was trying to make an impression on the dependency court. She stated Father is appropriate with Isaac when he visits, except that once in March she terminated a visit because Father had consumed alcohol before the visit. Before he left that day, he gave the MGM and asked her to not tell the social worker about having to terminate his visit. The MGM restated her desire to adopt both of the minors, but stated she would not contest Daniel’s being placed in the care of Miguel P. if he is determined to be the minor’s Father. Her adoption home study was approved on April 2, 2008.
The section 366.26 hearing was held on June 24, 2008. The Department’s update report shows that Mother moved to Las Vegas in May 2008 and maintains “weekly phone and person contact with [the MGM] and both children.” Mother was working in Las Vegas and was giving the MGM between $60 and $100 every other week. The MGM stated that she would contest a reunification between Mother and Isaac because the MGM has cared for him since he was born and he has a stronger, more nurturing bond with her than with Mother.
At the hearing, the court took testimony on the issue of a permanent plan for Isaac. Mother was present but did not testify. Father was present and he testified that two-year-old Isaac knows him as his father because when he goes to visit Isaac, the child yells “Daddy, Daddy,” runs to him and gives him a hug, and holds up his arms to be picked up. He testified that since Isaac was removed from his care, he has lived right across the street from the MGM’s house, where Isaac was placed. Asked how often he has visited Isaac, Father stated that up until two months before the hearing, he had not “been there for [Isaac].” He stated he realized he had made a mistake by not being with his son more often and he was now willing to “better [him]self and to be there for [Isaac].” He stated that he visits Isaac on the weekends. In January 2008 he visited the minor two or three times, he did not visit in February 2008, and in March 2008 he “missed once.” In April 2008 he visited Isaac “about four times,” in May 2008 he visited three times, and in June 2008 he saw Isaac “almost every weekend.” He stated the visits had been lasting an hour or two, but in June 2008, the month of the hearing, his visits were lasting four or five hours. On some of the visits, he took Isaac to the zoo, to birthday parties, to Lego Land, and to Chuck E. Cheese.
Asked what he and Isaac do when he visits the child, Father stated he plays ball with Isaac, plays “games,” pushes the minor around in a car, and plays with him in the pool. Asked if he has fed Isaac, he stated he has taken Isaac food and fed it to him. Asked if he has clothed the minor, Father stated he brought him Spider Man clothes. He stated he changes Isaac’s diapers. In June he changed the diapers twice each visit. He mentioned that the MGM fed him soup during those visits. The court stated that it found Father’s truthful, and it found Father and Isaac have a bond.
Both Mother and Father requested that the court not terminate their parental rights. The court made findings that Isaac is adoptable, it would be detrimental to return him to Mother and Father, and none of the legal exceptions to termination of the parents’ rights were applicable to Isaac. Mother’s and Father’s parental rights as to Isaac were terminated, and they filed timely appeals from the order of termination.
ISSUE ON APPEAL
This appeal raises the question whether the trial court abused its discretion when it determined that neither Mother nor Father’s relationship with Isaac is of the type and intensity necessary to find that the section 366.26, subdivision (c)(1)(B)(i) parental relationship exception to termination of parental rights applies to them.
DISCUSSION
1. Adoption Is the Preferred Permanent Plan
When a parent has failed to reunify with his or her child, and the focus of the dependency court turns from reunification to a permanent plan for the minor, adoption is the Legislature’s first choice for a permanent plan because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the child continued to be removed from the custody of the parents and reunification services were terminated “shall constitute a sufficient basis for termination of parental rights” (§ 366.26, subd. (c)), and the court must terminate those rights unless the court finds to be true any of the circumstances set out in section 366.26, subdivision (c)(1)(A) or (c)(1)(B)(i)-(vi).
It is a parent’s burden to prove that one or more of the (c)(1)(A) or (B) exceptions to termination of parental rights apply to his or her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When a parent claims one or more of the exceptions, the claim must be examined in light of the Legislature’s preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
2. Standard Of Review Regarding Statutory Exceptions To Termination Of Parental Rights
In reviewing a trial court’s determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The Jasmine D. court observed that “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’ . . . ” ’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since [subdivision (c)(1)(B) of] the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ [Citation.] That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Ibid.)
3. Parameters Of The Parental Relationship Exception
Mother and Father contend the trial court erred when it did not find a subdivision (c)(1)(B)(i) “parental relationship” exception to termination of their parental rights. That exception has three components. It applies when (1) the trial court “finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child” because (2) “[t]he parents have maintained regular visitation and contact with the child” and (3) “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i), italics added.) Application of the exception is decided on a case-by-case basis, taking into account such factors as the minor’s age, the portion of the minor’s life spent in the parent’s custody, whether interaction between the child and parent is positive or negative, and the child’s particular needs. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) “Parent-child relationships do not necessarily conform to a particular pattern. The juvenile court should be concerned not with finding a certain type of parental relationship but with the interests of the particular child or children before it, and whether there is a compelling reason not to terminate parental rights.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
To establish the applicability of the exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forego adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Thus, for example, in In re Beatrice M. (1994) 29 Cal.App.4th 1411, twin girls were placed with their maternal aunt the day after they were born in May 1990. By the time of the section 366.26 hearing in January 1994, the girls remained in the care of the aunt, and during the interim period, they had thrived and become bonded with her. In the time between January and July 1993, Mother had visited the children frequently, and the visits increased to daily visits in July 1993 after she moved into the same apartment building where the aunt and children lived. Also, she had cared for the children on occasion. The children’s father moved into the mother’s apartment in December 1993 and he was also visiting the minors daily. The children called their mother “mommy” or “mommy Christy,” and they would go their parents’ apartment to visit them. One of the children sometimes asked to stay the night with her parents, and the families often ate together at one apartment or the other. Nevertheless, at the section 366.26 hearing in January 1994, the trial court found that the parental relationship exception to termination of parental rights did not apply and it terminated the parents’ parental rights. The Beatrice M. court affirmed that order. The reviewing court observed that the aunt of the dependent children had been caring for them since they were infants. It was she that “had been the one comforting and nurturing them by providing their day-to-day care.” The parents had not occupied a parental role at any time in the children’s lives, and therefore, even though the children had “a loving and happy relationship with [their] mother and father,” that did not mean “that the juvenile court should have determined the statutory exception to termination of parental rights applied.” (Id. at p. 1419)
The evidence of a child’s relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) Here, the parents were not denied access to Isaac in any meaningful way. They simply chose not to visit him as much as they could have.
In In re Autumn H., supra, 27 Cal.App.4th at p. 575, the court described parental relationships that can prevent termination of parental rights as ones that “promote[] 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 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. [¶] 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.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.”
In In re Casey D. (1999) 70 Cal.App.4th 38, 51, the court explained that its reference in In re Autumn H. to “day-to-day interaction, companionship and shared experiences” between parent and dependent child is not required to be taken literally. The Casey D. court stated: “Another was of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption. That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.”
In In re S. B. (2008) 164 Cal.App.4th 289, 299, 300, the Autumn H. stated that to demonstrate the type of relationship addressed in the parental relationship exception to termination of parental rights, a parent need not show that the minor’s “primary attachment” is to the parent.
4. There Was No Abuse of Discretion When The Trial Court Found That The Parental Relationship Exception Does Not Apply Here
We italicized the last two sentences in our quote from Casey D. because they describe the circumstances of this case. Isaac has essentially been in the care of the MGM all of his life. Despite the very lengthy period of time between his detention and the section 366.26 hearing, Father never advanced beyond monitored visits, and neither parent had lasting periods of frequent visitation.
Father lived across the street from Isaac and could have played a substantial part in helping to raise his child, and thereby achieve a parental role in the minor’s life, but he did take advantage of that opportunity. He was content with visiting the minor on the weekend, often for short periods of time, when he bothered to visit at all. Moreover, there were times when he appeared to be under the influence of some substance when he came to see Isaac, and once even tried to bribe the MGM to not mention that he had been asked by her to leave.
Mother could have spent the entire length of the dependency case in the home of the MGM and thereby been a person who cared for Isaac on a daily basis and assumed a parental role in his life. But she chose not to put aside whatever differences she had with the MGM for the benefit of her child; she chose not to remain in that home so that she could help raise Isaac under the supervision of the MGM. Just as with Father, her pattern of visitation never prospered to the point where it could be said she occupied a parental role in Isaac’s life. Neither parent was with Isaac enough, on a consistent basis, to reach that status. Indeed, eventually Mother chose to leave Isaac behind and move to Nevada.
Thus, it was left to the MGM to assume the parental role in Isaac’s life. She cares for him, nurtures him, meets his daily needs, and he is bonded with her. At best, the parents’ contacts with Isaac were shown to be pleasant and loving. Indeed, the record does not show that Isaac suffered or was distressed by not having frequent contact with his parents, or greatly distressed when his visits with his parents end. Nothing in the Department’s reports describes the type of relationship between Mother and Isaac, or Father and Isaac, that is necessary to meet the parental relationship exception. Nothing in the reports indicates that the relationship between parents and child is such that we can say the trial court abused its discretion when it did not find that terminating their parental rights would greatly harm Isaac because his relationship with them is so substantial and significant. When the parents’ relationship with Isaac is balanced against the prospect of his having a permanent home with the MGM, the trial court did not abuse its discretion when it determined that the stability of the adoptive home prevails.
DISPOSITION
The order from which Mother and Father have appealed is affirmed.
We Concur: KLEIN, P. J. KITCHING, J.