Opinion
NOT TO BE PUBLISHED
APPEAL from an order of Superior Court of Los Angeles County No. CK66403, Marilyn Mackel, Juvenile Court Referee.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Jeanette V., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Gabriel M., Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Jeanette V. (Mother) and Gabriel M. (Father) appeal from the order of the juvenile court terminating their parental rights to Gabriella M. Additionally, Mother appeals from the order terminating her parental rights to Jeffrey H. Mother argues that the parent-child benefit exception in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) applies. Father argues that if Mother prevails, the order terminating his rights must also be reversed. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial facts and the detention.
Mother and Father are Gabriella’s parents. Mother is a parent of Jeffrey.
Gabriella and Jeffrey came to the attention of respondent, the Department of Children and Family Service (the Department), on December 20, 2006, when Mother and Father were arrested on federal charges of operating a human trafficking and prostitution ring in which smuggled Guatemalan girls were forced to work as prostitutes. At the time, Gabriella was approximately six months old and Jeffrey was approximately two and one-half years old. Two unrelated minors were also living in the home. These two girls were forced into prostitution, traumatized by customers, forced to work as sex slaves, threatened with a gun and with claims that their families would be killed, beaten, and not allowed to have outside contact or leave the home. One was raped by Father.
On December 26, 2006, the Department filed a dependency petition pursuant to section 300, alleging that Mother and Father exposed the children to an international criminal syndicate where unrelated, underage females were forced to engage in prostitution in the children’s home. Gabriella and Jeffrey were detained.
Mother is also the parent of another child, who was also detained. That child is not a subject of this appeal.
2. Jurisdiction and disposition.
Because Mother and Father were in federal custody, the social worker could not arrange visitation for about six months.
On February 1, 2007, the dependency court placed the children with Gabriella’s paternal grandmother.
In an April 2007 report, the social worker reported that the children were comfortable in Gabriella’s paternal grandparents’ home and that Mother and Father telephoned about once a week to inquire about the children.
In July 2007, the social worker reported that Mother realized her “children[did] not know her and [were] bonded with the [paternal grandmother].” On July 18, 2007, the Department filed a first amended petition. In an interim report, the Department reported that the paternal grandparents brought the children to visit Mother and Father every other weekend. Mother and Father reported calling the children almost daily.
At the September 27, 2007, adjudication hearing, the juvenile court sustained the following allegations in paragraph b-3 as amended against Mother and Father: the parents created a detrimental and endangering home environment in that they were arrested and incarcerated on criminal charges, and exposed the children to criminal activity in the home involving an international syndicate that forced unrelated 13 to 14 year old females to engage in prostitution in the home; Mother physically assaulted and threatened to kill a minor female prostitute and her family; and Father forcibly raped a female prostitute. The two children were declared dependents of the court and placed with Gabriella’s paternal grandmother. The court ordered no reunification services pursuant to section 361.5, subdivision (e)(1).
3. Permanency planning.
In a January 2008 report, the social worker reported that the two children had developed a strong bond with the paternal grandparents, who were committed to adoption. Between December 2006 and January 2008, the paternal grandparents had taken both children to see Father three times. The children were happy and thriving.
In a May 21, 2008, report, the social worker indicated that Mother had stated she had seen Jeffrey every month, had not seen Gabriella for two months, but had seen Gabriella four times during the year. Mother also stated that the children called her “mommy.” The children considered the paternal grandparents’ home as their only home. Father stated that during the last 12 months there were no visits with the children for the 8 months in which he was in lockdown, but there were 4 visits when he was not in lockdown. He telephoned the children every week. Mother indicated she had not seen Gabriella for two months, and had seen her four times during the year. According to Gabriella’s paternal grandmother, the visits began five or six months after Mother and Father were incarcerated. The grandmother also reported that she and her husband brought the children to visit the parents every week or every two weeks. The paternal grandmother stated that Jeffrey had not forgotten his parents and cried when he left Mother. Jeffrey called Mother and Father “mommy” and “papa,” the same names Jeffrey used when referring to Gabriella’s paternal grandparents. The children hugged and kissed Mother and Father during the visits. Gabriella did not know Mother or Father, but she was learning to know Mother.
In June 2008, the social worker reported that during the visits the children treated Mother and Father affectionately.
The section 366.26 hearing was held on August 28, 2008. Mother, who admitted to being an undocumented alien, testified to the following: After the first six months of incarceration, she visited the children weekly. Except for a five-month period during which she saw the children only twice, she had seen the children weekly since the parents’ incarceration. During these weekly one-hour visits, she played with the children. The children were affectionate and happy to see her and would run to hug her. Jeffrey no longer cried when the visits ended. She frequently communicated with the children by telephone for 15 minutes and wrote them letters. The children called her and the paternal grandmother “mommy.” She did not know if she would be released from prison. If she was released, she would be deported.
Counsel for the children and the Department recommended termination of parental rights.
The dependency court found that the children were adoptable and that the beneficial parent-child relationship exception (§ 366.26, former subd. (c)(1)(B)(i)) to adoption did not apply. The court found that neither Mother nor Father had fulfilled a parental role and the evidence did not support a finding that refraining from terminating parental rights would outweigh the benefits of adoption. The court terminated parental rights.
Mother and Father both appealed from the August 28, 2008 order.
DISCUSSION
Neither Mother nor Father challenges the finding that Jeffrey and Gabriella are adoptable. Also, Mother and Father have not filed writ petitions challenging the order terminating reunification services. Therefore, termination of their parental rights was relatively automatic unless one of the exceptions to adoption applied. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
Mother contends the record lacks substantial evidence to support the dependency court’s conclusion that the beneficial parent-child relationship exception (§ 366.26, former subd. (c)(1)(B)(i)) did not apply. Father’s appeal rests on the success of Mother’s appeal. Father contends that once the order is reversed as to Mother, it also has to be reversed as to him. Because Mother’s contention is not persuasive, we affirm as to both Mother and Father.
The parent-child relationship exception is found in section 366.26, former subdivision (c)(1)(B)(i). This subdivision applies when the court finds “a compelling reason... that termination 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, former subd. (c)(1)(B)(i).) The parent bears the burden to overcome the statutory preference for adoption. To carry this burden, “the parent must prove he or she occupies a parental role in the child’s life resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
In assessing this prong of the test to determine if the exception applies, “the 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. If severing the existing parental 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.’ [Citation.]” (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To show there is a substantial, positive, emotional attachment, there must be more than pleasant, “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
“Interaction between natural parent and child will always confer some incidental benefit to the child. [However, t]he 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.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Casey D. (1999) 70 Cal.App.4th 38, 50.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “It would make no sense to forgo 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.) In short, the juvenile court balances the quality of the relationship and the detriment involved in terminating it against the possible benefit of an adoptive family. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) Hence, “it 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.)
On appeal, “[w]e determine whether there is substantial evidence to support the court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] The reviewing court must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.]” (In re B.D., supra, 159 Cal.App.4th at p. 1235; In re Cliffton B., supra, 81 Cal.App.4th at p. 425.)
Although there is language in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, indicating that that relevant standard of review is abuse of discretion, “[t]he practical differences between the two standards of review are not significant.” (Ibid.)
Mother did not meet her burden to show that the benefit of her relationship with Gabriella and Jeffrey outweighed the benefit the children would gain in a permanent home with an adoptive parent. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109; In re Casey D., supra, 70 Cal.App.4th at p. 51.)
As stated above, Father’s appeal rests upon the success of Mother’s appeal, and thus rests upon whether there was substantial evidence to support the dependency court’s August 28, 2008, order with regard to Mother.
The children lived with their parents for a short time before they were detained. At the time of detention, Gabriella was six months old and Jeffrey was about two and one-half years old. There were 20 months between the December 26, 2006, detention and the August 28, 2008, order, during which the children continually resided with Gabriella’s paternal grandparents. Although Mother telephoned the children during this period of time, Mother did not see the children for the first six months. Mother admitted that when the visits began in approximately July 2007, the children did not know her.
Further, even though Mother and the children reacted affectionately towards one another during the weekly visits, the relationship was more like friends. The visits were short, lasting only one hour. During these short visits, Mother simply played with the children. Mother did not develop or maintain a “parental role” with the children. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) The children did not obtain a significant, positive attachment to Mother. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “One can know a child’s interests, enjoy playtime together, and be a loved relative, but not occupy a parental role in the child’s life.” (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The nature of the relationship that Mother had with Gabriella and Jeffrey was not close enough that severing it would deprive the children of a substantial, positive emotional attachment and harm Mother.
In contrast, the paternal grandparents had done the parenting for 20 months. Since February 2007, the grandparents were the primary caregivers furnishing the children’s daily physical care, nourishment, comfort, affection, and stimulation. There was a strong emotional bond between the grandparents and the children, who were happy and thriving. The two children considered the grandparents’ home as their only home. The fact that the children called Mother “mommy” did not have great significance as the children used the same word of endearment for Gabriella’s paternal grandmother.
Additionally, the children needed a permanent and stable environment, a circumstance that Mother could not provide through her criminal lifestyle. At the time of the section 366.26 hearing, Mother’s criminal trial had not occurred. There was no indication as to when, or if, Mother would be released from jail. Had the dependency court not terminated parental rights on August 28, 2008, the children would have continued to face instability. On the other hand, by terminating rights, the court enabled the children to continue to reside with Gabriella’s paternal grandparents, who had been meeting the children’s needs, providing a stable environment, and who were committed to adoption.
The cases are clear that “ ‘benefit[ting] from continuing the [parent/child] relationship’ [means the sort of relationship between parent and child 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The evidence supported the juvenile court’s conclusion that any benefit from the children’s relationship with Mother was outweighed by Gabriella and Jeffrey’s need for a stable and permanent home that would come with adoption. Thus, substantial evidence supported the juvenile court’s finding that section 366.26, former subdivision (c)(1)(B)(i) did not apply as to Mother.
Because we have concluded that Mother’s contention on appeal is not persuasive, and Father’s appeal rests on the success of Mother’s appeal, we affirm the dependency court’s order as to both Mother and Father.
DISPOSITION
The order is affirmed.
We concur: CROSKEY, Acting P.J., KITCHING, J.