Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Nos. 06CEJ300120-1 & 06CEJ300120-2, Jane A. Cardoza, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendants and Appellants.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
Appellant, K.V., appeals from the juvenile court’s order terminating her parental rights to J.G. and D.G. pursuant to section 366.26 and choosing a permanent plan of adoption. Appellant contends the court erred in failing to apply the parent/child relationship exception rather than accepting adoption as the final plan for the children. We will affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
Dependency and History of Reunification Services
On August 25, 2006, the juvenile court in Kings County conducted a jurisdiction hearing on allegations that the father of J.G. and D.G was sexually molesting the children, was a registered sex offender, and was engaged in acts of domestic violence with appellant in the presence of the children. The petition alleged a risk of physical harm to both children. Appellant and the children’s father submitted the matter on the social worker’s report. The juvenile court found the allegations true and the children to be dependents of the court. Because appellant was living in Fresno County, the juvenile court ordered the matter transferred from Kings County to Fresno County.
The father does not appeal from the judgment of the juvenile court.
The court left in place prior orders from the detention hearing that appellant be permitted supervised visitation and participate in parenting classes, domestic violence classes, and services offered through the Central Valley Regional Center.
A social worker’s report prepared in December 2006 noted that the children were placed with a relative, who indicated a willingness to adopt the children if appellant failed to reunify. Appellant attended supervised visits weekly for two hours. The children became clingy and cried to the care provider after the visits. Appellant sometimes arrived late to the visits. Appellant was attending parenting classes, a domestic violence assessment, and a sexual abuse class for nonoffenders. The father was attending a sexual offender’s class. Appellant completed a psychological examination in November 2006. Appellant completed the parenting and domestic violence course.
The social worker recommended that reunification services be provided for appellant and not for the father.
A psychological evaluation of appellant was made by Dr. Pap, a psychologist. Appellant told the psychologist that she still loved the children’s father. Appellant had seen a counselor in Hanford for anger management. Dr. Pap diagnosed appellant with Dysthymic Disorder, which causes her depression and a markedly deflated sense of self-worth, a Learning Disorder, and use of cannabis. Dr. Pap concluded these problems did not rise to the level of a mental disability.
Dr. Pap recommended counseling for appellant to address her depression, anger management, and low self-esteem. He further recommended a psychiatric evaluation for medication to address her long-standing depression as well as her sleep and appetite disturbance. Dr. Pap recommended appellant attend a class for nonoffending parents of sexually abused children and a substance abuse evaluation with random drug testing.
At the conclusion of the disposition/review hearing on February 13, 2007, the juvenile court ordered further services for appellant, including that she attend a class for nonoffending parents of sexually abused children. Appellant was ordered to submit to random drug testing.
A social worker’s report for a review hearing on May 15, 2007, noted that as of early March 2007, appellant had not completed a mental health assessment. Appellant’s progress in domestic violence services was fair. Appellant maintained weekly visitation with her children, interacting appropriately with them. The department did not believe it would be in the best interests of the children for them to be returned to their mother’s care. At the conclusion of the review hearing, the juvenile court found the department had not provided reasonable services to appellant and ordered the continuation of reunification services.
The department apparently failed to make referrals for appellant to receive a mental health evaluation or for drug education classes.
Between March 20, 2007, and October 4, 2007, appellant appeared for only one drug test on September 4, 2007, which turned out negative. A status review report prepared by the department for a hearing on October 16, 2007, noted appellant still lived with the children’s father and was pregnant, expecting to deliver in November 2007. Appellant completed an addiction survey index in April 2007 and was referred to a substance abuse class. Appellant was a consistent no-show for drug testing. Appellant was referred in March 2007 for a mental health assessment and had that assessment in May 2007. Appellant attended only two more sessions.
Appellant told the social worker that she still wanted to reunify with her children. Appellant, however, had failed to ameliorate the circumstances which brought her children to the court. Appellant did regularly and consistently make contact with her children, but only made minimal progress in complying with her reunification plan. The department recommended termination of appellant’s reunification services. At the conclusion of the hearing, the court ordered a bonding study and terminated reunification services to appellant.
Termination of Parental Rights
The section 366.26 hearing was scheduled for February 5, 2008. At the beginning of the hearing, the court learned that appellant had failed to participate in the bonding study. The hearing was continued on that date and on at least four other occasions.
The social worker’s report prepared for the section 366.26 hearing noted the children were living with their prospective adoptive parents. Appellant missed several appointments for the bonding study. Although appellant visited the children on a regular basis between September and November 2007, the children were often not affectionate with appellant. Often, appellant was more excited about the visits and gave the children hugs and kisses at the end of visits. The children did not like to kiss appellant back. The children were not upset when they left visits with appellant.
Between November 2007 and March 2008, appellant consistently visited the children but the social worker did not observe a strong connection or much interaction between them. Appellant was more attentive to one child than to the other. The children did appear to be upset when they left their visits with appellant. The social worker supervising the visits thought there was not a significant bond between the appellant and her children.
The department reported that both prospective adoptive parents were highly committed and willing to adopt the children. Both prospective adoptive parents had many family members nearby, had known the children since they were born, had the capability to provide for the children’s needs and to protect them, and understood the responsibility of adoption.
The section 366.26 hearing was conducted on May 20, 2008. Appellant testified that she visited with the children every Wednesday for two hours since they were removed from her custody. Appellant still saw herself as the children’s mother. Appellant explained that her bond with the children was strong because it was hard for her to sleep at night thinking that her kids were not with her. Appellant said one child would scream “mommy” every time they saw each other. The children were happy to see appellant at the beginning of a visit. Appellant said that at the beginning of the visit she would give her children kisses and then cry while she walks with them to the car.
Appellant said she played with her children as a group. One child wanted to be picked up and held by appellant most of the time and offered appellants hugs and kisses after she has explored the room. Appellant explained that it would be harmful for the children not to have her in their lives because they would not wake up knowing appellant was there. Appellant said that the children did not say anything about their care providers.
On cross-examination, appellant stated that one child was three months old and the other a year and a half when they were detained. They have been detained for nearly two years. All of appellant’s visits were supervised.
At the conclusion of the hearing, the court found by clear and convincing evidence that it was likely the children would be adopted and that adoption is the appropriate permanent plan for both children. The court ordered the termination of parental rights and left all prior orders not modified in full force and effect.
PARENT/CHILD RELATIONSHIP
Appellant contends the court erred when it declined to find termination would be detrimental to the children’s best interests. She claims she was entitled to such a finding because she maintained regular visitation with her children and they would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]). On review of the record, we find no abuse of discretion.
Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
While it is undisputed appellant maintained regular visitation with her children as permitted by the court, appellant’s visits were always supervised. Appellant failed to complete court ordered reunification services that were terminated long before the section 366.26 hearing. This included classes for drug abuse and understanding sexual offenses. Appellant failed to pursue mental health therapy after only a few visits with a therapist. Appellant continued to live with the children’s father, who had molested them. Appellant’s failure to take a class to understand sexual offenders lies at the heart of her children’s detention. The court could properly conclude that appellant and her young children did not share a parent/child relationship and that continuing that relationship could be detrimental to the children. Also, the children were well bonded with her care givers, who were willing to adopt them.
We may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on her insistence on maintaining her parental rights and ignoring other evidence before the court.
In any event, appellant failed to establish her relationship with her children was so strong that they would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Appellant’s visitation with her children was for only two hours a week. Visits were always supervised. There was conflicting evidence concerning how bonded the children were to appellant and how much they interacted with her. Although appellant testified that the children loved her, kissed and hugged her, and played with her, the social workers saw the children acting indifferently to appellant and not always interacting with her during visits. According to the social workers, the children did not appear upset when they left appellant. We therefore reject appellant’s argument on appeal that she occupied a parental role in the children’s life.
We further reject appellant’s reliance on In re S.B. (2008) 164 Cal.App.4th 289, 298-301 (S.B.). In S.B., the court rejected the argument from the agency that the beneficial relationship exception does not apply unless the child has a primary attachment to the parent. (Id. at p. 299.) S.B. found the juvenile court erred in failing to find the beneficial relationship applicable in that case.
Factually, S.B. bears only superficial similarity to the instant action. The father in S.B. maintained a parental relationship through consistent visitation, devotion to the child, full compliance to the case plan, and continued efforts to regain physical and psychological health. (S.B., supra, 164 Cal.App.4th at p. 300.) The record in S.B. showed that the child loved her father, wanted their relationship to continue, and benefited from his visits. The only inference the S.B. court could draw was that the child would benefit from a continuing relationship with her father. (Id. at pp. 300-301.)
Given the fact that appellant would not leave a relationship with the person who had molested the children, as well as appellant’s failure to comply with all of the requirements of her reunification plan including taking a class to understand sexual offenders, the trial court could draw very different inferences from this record concerning appellant’s assertion of a beneficial relationship. In contrast with the father in S.B., who worked diligently to complete reunification services, appellant completed only some services offered to her and failed to attend or to complete others.
There are few factors in the record other than appellant’s ability to consistently visit her children that would support a finding by the juvenile court of an important and beneficial relationship. (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant ignores the children’s very young age, the fact that she spent only two hours a week with them, and, most importantly, their need for stability, continuity and permanence. Appellant lost reunification services long before the section 366.26 hearing. Unlike the father in S.B., appellant did little to deal with her emotional and/or psychological problems and failed to be regularly tested for drug use. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and her children during their visits.
“[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance[] 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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, appellant failed to introduce any such evidence. Accordingly, we conclude the court did not abuse its discretion by rejecting appellant’s argument.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.