Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Kern County No. JD110518, H.A. Staley, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Petitioner and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Kane, J.
This appeal arises from a contested Welfare and Institutions Code section 366.26 hearing at which the juvenile court terminated appellant mother’s parental rights and selected a permanent plan of adoption for her daughter J. We will affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In April 2006, the department of human services (department) removed then three-year-old J. from appellant’s custody after appellant was arrested for being under the influence of methamphetamine. The juvenile court ordered J. detained, exercised its dependency jurisdiction and, in July 2006, ordered appellant 12 months of reunification services consisting of parenting training, substance abuse treatment, child neglect counseling, random drug testing and supervised weekly one-hour visitation. In May 2006, the department placed J. in a foster home where she would remain throughout these proceedings.
During the first six months of services, appellant made no progress. She enrolled in but was discharged from her counseling and treatment programs and only submitted to eight drug screens, three of which yielded the presence of drugs. In addition, appellant missed six visits with J. and the visits she attended were reportedly of “moderate quality.”
In mid-January 2007, appellant contacted her case worker to inform her she had moved. Appellant was thereafter out of contact with the department and failed to visit J. from January through April 2007. In late April 2007, appellant telephoned her case worker who initiated new referrals for services. Appellant resumed drug testing and tested negative in late April through early June 2007. She also resumed visitation in early May 2007. The quality of the visits was described as “good” and appellant was observed to be very loving toward J.
In its 12-month status review report, the department recommended the juvenile court terminate appellant’s reunification services given her minimal effort to reunify. In addition, the department reported that J. was very attached to her foster mother, who wanted to adopt her. At a contested 12-month review hearing in August 2007, the juvenile court terminated appellant’s reunification services and set a section 366.26 hearing for December 2007 to consider a permanent plan of adoption.
Over the ensuing months, appellant’s efforts to reunify intensified. She completed parenting instruction and child neglect counseling. She continued to participate in substance abuse treatment but her participation was reportedly “minimal” and her drug testing record was spotty. When she tested, the results were negative. However, she often failed to drug test and, from mid-November 2007 to early January 2008, she did not show up for drug testing.
During this same time frame, appellant’s visitation was increased to two hours weekly and the adoption social worker observed a strong mother/child bond as appellant and J. affectionately interacted and expressed their love for one another. Nevertheless, the adoption social worker did not believe it would be detrimental to J. to terminate appellant’s parental rights since J. did not look to appellant to meet her daily care and emotional needs. Rather, on several occasions, J. was heard calling her foster mother “mom.”
In December 2007, appellant filed a petition for modification pursuant to section 388 (388 petition) asking the juvenile court to either return J. to her custody under family maintenance services or reinstate reunification services. The juvenile court set a hearing on the section 388 petition for January 2008 and continued the section 366.26 hearing to be conducted on the same date as a combined hearing.
In the meantime, the case worker spoke to then five-year-old J. about living with appellant. J. stated that she liked visiting with appellant because it was “fun.” She stated she would like to live with appellant because appellant still had “a lot of her things that she [needed] to get.” However, when asked if she would like to live with appellant “from now on,” she looked confused and said “no.” The case worker was unable to determine from their conversation whether J. wanted to live with appellant or her foster mother.
In January 2008, appellant tested positive for methamphetamine. Despite that, she continued in drug treatment and, according to her drug counselor, was “doing well” and was expected to complete treatment in April 2008.
The combined hearing was continued and conducted in February 2008. Appellant testified she relapsed at the end of December 2007 and used drugs until mid-January 2008. Prior to that, she had been drug-free since the previous May. She dealt with her relapse by attending more support meetings and expressed confidence that she would not relapse again. She had been clean and sober for 46 days and believed she learned a lot from her programs, specifically how to seek support from others.
Appellant also testified her relationship with J. had gotten stronger since her recovery. She also believed adoption would be very damaging to J. in the long run adding, “She loves me.”
Following testimony, appellant’s attorney argued for a permanent plan of legal guardianship rather than adoption given the strength of the bond between appellant and J. and the resulting damage permanent separation would create. Minor’s counsel told the court J. was a “five-year-old who loves two women.” She explained J. was happy with appellant when she was with her and said she did not want to live anywhere else. However, she clung to her foster mother and stated she was happy with her and did not want to live anywhere else. Minor’s counsel also stated J.’s foster mother supported continuing contact between appellant and J. and would agree to legal guardianship.
At the conclusion of argument, the court denied the section 388 petition. The court also found J. was adoptable, concluded the benefit of contact between appellant and J. was outweighed by the permanency of adoption and terminated appellant’s parental rights.
DISCUSSION
Appellant argues the strength of her bond with J. precluded the juvenile court from terminating her parental rights and selecting adoption as a permanent plan. She points to evidence she and J. were already bonded when J. was removed from her physical custody and she maintained that bond through regular visitation.
“After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child. A child has a fundamental interest in belonging to a family unit, which includes a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.] At the selection and implementation stage, the court has three alternatives: adoption, guardianship or long-term foster care. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
When there is clear and convincing evidence of adoptability, a point which is uncontested here, the juvenile court must terminate parental rights unless the court finds a compelling reason that termination of parental rights would be detrimental to the child under one of the exceptions contained in section 366.26, subdivision (c)(1)(B). The exception at issue in this case, subdivision (c)(1)(B)(i) of section 366.26, applies in circumstances where the parent maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. This exception is often referred to as the “beneficial relationship” exception.
The burden of showing the beneficial relationship exception applies rests with the parent. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997.) Since contact between parent and child generally confers some benefit on a child, the parent must demonstrate more than frequent and loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) The parent must demonstrate he or she and the child share a strong positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Such an attachment evolves from day-to-day interaction, companionship and shared experiences and the adult’s attention to the child’s need for physical care, nourishment, comfort and affection. (Ibid.)
In determining whether the beneficial relationship exception applies, the juvenile court “balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child.” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.) When a juvenile court decides that termination of parental rights would not be detrimental and terminates parental rights, the appellate issue is not, as appellant argues, whether substantial evidence supports the juvenile court’s decision but whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Here it is undisputed that appellant and J. care for each other and share a loving relationship and bond. However, there is no evidence of a strong emotional attachment. Contrary to appellant’s assertion, she did not regularly visit J. until May 2007, a full year after J. was initially removed from her custody. Prior to that, appellant visited sporadically and, at one point, did not visit J. for four straight months. Meanwhile, J. was bonding to her foster mother who she would come to refer to as “mom.” Not surprisingly, whatever emotional attachment J. had with appellant before J. was removed was compromised by appellant’s failure to regularly and consistently visit her.
Further, there was no evidence that J.’s attachment to appellant was of sufficient strength that to sever it would cause J. great emotional harm. Appellant herself conceded that any detrimental effect would occur in the long run, the implication being even she did not believe J. would suffer immediate harm if her relationship with J. were severed. In addition, the adoption social worker did not believe terminating appellant’s parental rights would have any detrimental impact on J.
Finally, the benefit J. would derive from a permanent home with a foster mother whom she loved and regarded as her parent far outweighed life with appellant who, though also loving, had yet to stabilize her own life. In light of the foregoing, we find no abuse of discretion and affirm the court’s order terminating appellant’s parental rights.
DISPOSITION
The judgment is affirmed.