Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. DP015779, Douglas Hatchimonji, Judge. Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant Marcos C.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Elizabeth L.
Nicholas S. Chrisos, County Counsel, Karen L Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
BEDSWORTH, J.
Marcos C. and Elizabeth L. separately appeal from an order that terminated parental rights to their daughter, Janice C., pursuant to Welfare and Institutions Code section 366.26. Each argues the evidence does not support the juvenile court’s finding the benefit exception was inapplicable. We disagree and affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS
Janice C. was detained shortly after she was born in August 2007. The Orange County Social Services Agency (SSA) was acquainted with her family, since it was providing services for her four siblings who had been declared dependent children due to the parents’ substance abuse going back some years. Of a piece, Elizabeth had tested positive for drugs six times during her pregnancy (in February, March, and May 2007), and Marcos had tested positive twice in recent months (April and May, 2007).
SSA filed a petition to declare Janice a dependent child, alleging Elizabeth and Marcos were unable to provide regular care due to their substance abuse and a history of domestic violence in the presence of Janice’s siblings. (§ 300, subd. (b).) A second count alleged Janice was at risk of being abused based on prior sibling abuse. (§ 300, subd. (j).) The juvenile court sustained the petition, declared Janice a dependent child, and removed her from parental custody.
The extent of visitation through the subsequent six-month review in March 2008 is not entirely clear. SSA reported “visitation was at a stand still due to... complaints, and concerns from the foster family” that the parents were “late to their visits and/or ended the visit early.” Yet it reported no concerns after monitoring one December 2007 visit, and both parents’ visitation time was increased during this period.
The situation had changed by the time of the 12-month review in August 2008. SSA reported Elizabeth had progressed to unmonitored visitation in April, but unmonitored visitation was terminated in late May when she tested positive for methamphetamine. After that, her visitation was limited – none in June and “minimal visitation” in July. Marcos had visited in April (four times), May (twice), and July (once), but not at all during March, June, or August.
The lapse back into drug use was not limited to Elizabeth. Marcos failed to drug test 10 times between March and July 2008, and he, too, tested positive for methamphetamine in May 2008. Elizabeth missed four tests in the same period, in addition to the positive methamphetamine test. The juvenile court terminated reunification services and set the matter for a permanency planning hearing.
The permanency planning hearing took place in January and February 2009. The assigned social worker reported “[d]uring this supervision period, the... parents have not made an effort to schedule visitation and have not followed through with visitation that has been scheduled by the undersigned....”
The social worker was asked to describe the relationship between Elizabeth and Janice. She testified “it’s hard to say... because... the child’s mother has not had consistent visitation.... [¶]... [¶]... [T]hey’ve just had... visitation for a couple of hours per week for a period of time, and then there was a lapse of visitation between the parents and the child....” The social worker said Elizabeth was attentive to Janice’s needs, picking her up when crying and playing with her, and might have changed a diaper once. She had no concerns about Elizabeth’s care for Janice when visitation had been unmonitored, and none were reported during monitored visits.
Regarding Marcos, the social worker testified he would play with Janice during visits, assist in feeding her, and change her diaper if asked. The visits were appropriate, Janice seemed to enjoy them, and there were no negative reports about the visits.
Elizabeth testified Janice was happy to see her during visits. When she called the child’s name, Janice would “wiggl[e] around,” “her cheeks would just turn rosy,” and “[s]he would really be happy.” Elizabeth would burp the child, change her diaper, bathe her, and try to interact with her. On her own, she brought clothing for Janice even though not requested by the foster mother, since she wanted to provide for the child’s needs. During unmonitored visits prior to their termination in May 2008, Elizabeth put Janice in a swing, showed her cartoons on the television, and read to her. Elizabeth felt she had acted as a parent by looking after the child’s needs and playing with her, and Janice apparently understood Elizabeth was her mother, calling her “Mom.”
Marcos also testified. He claimed to have missed only a few visits when they interfered with the demands of his job. Marcos explained he brought food and toys, played with the child, talked to her, and complimented her – “I do what I’m supposed to do.... interact with her just like a normal parent does to a child.” Janice would jump around joyfully when Marcos arrived, and run to him with open arms for a hug and to be picked up. He would set boundaries by keeping Janice in his sight, making sure to not let her get too far away. Janice got cranky when it was time for him to leave, and once he thought she tried to call him “Dada.”
The juvenile court found neither parent had visited consistently. It determined there was an “incidental parental relationship between the parents and the child, but not a significant meaningful relationship sufficient to outweigh the permanence and stability of adoption....” The court ordered parental rights terminated and the child placed for adoption.
I
Marcos argues the court’s rejection of the benefit exception is unsupported by the evidence because he regularly visited Janice and she would benefit from a continued parental relationship with him. We cannot agree.
The benefit exception provides the juvenile court may refrain from terminating parental rights if it finds “[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)(B)(i).) To decide the benefit issue, “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, italics added.) The burden of proof is on the parent. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
An appellant who challenges the sufficiency of the evidence supporting an order must lay out the contrary evidence and show why it is lacking. It is not enough to point to favorable evidence and reargue the case. (In re S.C. (2006) 138 Cal.App.4th 396, 414-415.)
Marcos fails to carry this burden. He offers various excuses for his missed visits – the distance of the foster home, the need to coordinate visits with his other four children in three different homes, the weather, and fires – and contends the visits he did attend show regular visitation. But the juvenile court did not credit the excuses, and we cannot second-guess that call. The undisputed evidence shows Marcos made it to only seven visits between April and August 2007, and during that time period he went three months without any visits at all (March, June, and August). That is ample evidence to support the finding Marcos did not establish regular visitation.
Nor can we say as a matter of law Marcos proved Janice would benefit from continuing the parental relationship. The juvenile court found there was an “incidental” parental relationship but continuing it did not outweigh the benefit to Janice of a stable, permanent home. Marcos does not address this key point, never explaining why that balance was mistaken. Even if Janice had a positive emotional attachment to her father, that is not the end of the inquiry. The law requires the juvenile court to weigh such benefit against the benefit of a permanent home, and here the court struck the balance in favor of adoption. There is no showing the court erred in making that determination or in finding Marcos failed to establish the benefit exception applied to him.
II
Elizabeth makes the same argument: She visited regularly and showed a positive relationship with Janice, so there was no substantial evidence to support the benefit exception finding. Again, we must disagree.
Elizabeth asserts “visitation was as consistent as practicable under the circumstances” her visits were “consistently reported to be positive.” Visits were missed, she says, only because of transportation problems, conflicts with substance abuse and pre-natal programs, and the caretaker’s failure to return calls. Yet Elizabeth admitted “sometimes I did cancel because I couldn’t... get to the visit on time or I wasn’t going to make it, so... I don’t want to put it all... on the foster parents....”
The problem here is that Elizabeth overlooks the evidence that supports the finding of no regular visitation. After her positive drug test in May 2008, Elizabeth all but gave up visiting. The social worker reported there were no June visits and only “minimal” visitation in July. While the evidence is not overwhelming either way, the legal issue is whether substantial evidence supports the finding that was made by the juvenile court, not whether a different one was possible. The record supports the finding Elizabeth did not regularly and consistently visit Janice.
Elizabeth contends Janice would benefit from continuing the parental relationship because she had a positive, beneficial relationship with Janice and nothing was offered to show the child would not be harmed by terminating parental rights. But that does not prove her case.
To prevail on the benefit exception, a parent must show the child would be greatly harmed by terminating the parental relationship. That showing just was not made here. Elizabeth does not point to any outside evidence on the question, such as a bonding study or other expert opinion. Instead, she relies on the evidence the juvenile court recognized showed a parental relationship, albeit an incidental one, in the court’s estimation. So the court was left to consider a parental relationship that was beneficial to some extent, and to weigh that against a permanent home. We recognize a child will always suffer some harm from terminating a parental relationship, but the law requires a much stronger showing to make out the benefit exception. There simply is no evidence of great harm in this case, so the record unquestionably supports the finding Elizabeth failed to prove she came within the benefit exception.
Since the evidence supports the finding neither parent came within the benefit exception to termination of parental rights, the order appealed from must be affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.