Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge, No. DP013740
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
RYLAARSDAM, ACTING P. J.
Carol M. appeals from the juvenile court’s order terminating her parental rights to her now 5-year-old daughter, K.H. (Welf. & Inst. Code, § 366.26; all statutory references are to this code.) She contends the court erred in finding the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
In a prior opinion, we denied mother’s writ petition from an order denying reunification services with the child and two siblings (not parties to this appeal) and setting a permanency hearing under section 366.26. (Carol M. v. Superior Court (Dec. 3, 2007, G039107) [nonpub. opn.].) That opinion states the relevant facts up through the time of those proceedings; we will not repeat them here.
After the permanency hearing was set, mother filed a section 388 petition seeking to have the child returned to her care. The court denied the petition.
At the section 366.26 hearing, the court received into evidence four reports prepared by the social worker. The reports stated that at the time of the permanency hearing, the child was 4 years old, had adjusted well to being placed with her prospective adoptive parents, and attended preschool.
Mother consistently visited her every Friday for four hours and had telephone calls with her three times a week. The child appeared to enjoy the visits, during which they sang, played, told stories, watched movies, and read books. But SSA monitors observed the visits ended without incident or signs of distress, and the child went easily to her caretaker. The mother reportedly prolonged goodbyes by asking for extra hugs and kisses, which upset the child.
During one visit, the child would not let mother pick her up and twice asked whether it was time for the visit to be over. The child did not appear worried when mother indicated the time was not yet up. Nor did the child seem upset when the visit ended.
Another time, the child pulled away from mother when mother tried to be affectionate. One week later, the child told mother, “I’m not happy” and “I don’t like you.” The child also pulled away when mother tried to hold her hand, screamed, became defiant around mother, ignored mother when she tried to talk to her, and appeared angry around her. The child told mother, “You’re a bad mommy. You give me junk food.” Mother responded that the maternal grandparents had bought the food and that she would ask her to bring healthier food next time.
At the beginning of one visit, the child went under a table and told mother, “I don’t love you. You are yucky.” On another date, the child told the social worker she did not want to talk to her mother and that “mommy makes me very angry.”
The child increasingly did not want to talk to mother during telephone calls, yelling and saying “no,” or sometimes going under a table or into a closet to hide. When asked if she wanted to remain in the care of her current caretakers, who loved her and wanted to give her a permanent home, she nodded “yes.” When asked if she wanted to live with mother or father, she shook her head “no.”
The social worker believed mother had a more difficult time separating from the child than vice versa and had to warn her against commenting about the child’s caregivers or whispering into the child’s ear during a monitored visit. She also found mother was lenient with the child and failed to discipline her when necessary. Mother was afraid to discipline her because she did not want to upset her.
The hearing took place over several days and included testimony from the child’s grandmother and mother. Grandmother testified the child was affectionate with mother, called her “mom,” told her she loved her, and clung to mother at the end of visits. She believed the monitor was confused about mother being the one who would not let the child go at the end of visits and maintained it was the other way around. She never saw the child refuse affection, tell mother she was bad or that she wanted to leave a visit, or get angry with mother.
Mother testified the child ran to her at the beginning of visits and jumped into her arms and that the only time she refused to greet her was when she wanted to check out what mother had brought. The child told her both that she loved her and that she did not, and gave her frequent kisses and hugs. They played and sometimes ate together.
Mother disagreed with the social worker’s statement that she did not discipline the child. She also said the only time she made negative comments about the caretakers was in response to a negative comment by the child, which was at almost every visit. Mother admitted whispering in the child’s ear despite knowing it was improper, stating it was to reassure her she loved her and that everything would be okay.
During her monitored telephone calls, the child would tell mother she loved and missed her, sometimes say she was not happy where she was, and that she wanted to go with mother. Mother acknowledged the child would refuse to talk to her on the phone.
After the close of testimony, the court determined SSA witnesses were credible but that grandmother and mother were not. It found the child adoptable and terminated parental rights. In doing so, it concluded the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply because mother’s interaction with the child at best rose to the level of a friendly visitor, with some evidence showing the visits were usually not positive. It determined the child was not bonded with mother and that mother had failed to meet her burden of showing such a bond existed.
DISCUSSION
Mother contends the court erred in terminating her parental rights because she satisfied the “benefit exception” of section 366.26, subdivision (c)(1)(B)(i) by showing she “maintained regular visitation” and the child “would benefit from continuing her relationship with her mother.” We disagree.
Once the court determines under section 366.26 a child is likely to be adopted, it “shall terminate parental rights” (§ 366.26, subd. (c)(1)) and order the child placed for adoption unless it “finds a compelling reason for determining that termination would be detrimental to the child” because of one of the statutory exceptions. (§ 366.26, subd. (c)(1)(B).) One exception is where a “parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Mother bears the burden of proving both these factors and must also show “she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Here, there is no dispute that mother maintained regular visitation with the child, although it was still monitored. But mother failed to meet her burden of showing a beneficial relationship.
“A beneficial relationship is one 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 parent.’ [Citation.] The existence of this relationship is determined by ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs . . . . [Citation.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) If supported by substantial evidence, we will not disturb the court’s determination that a beneficial relationship does not exist. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
The court concluded mother’s relationship with the child at best rose to the level of a friendly visitor. The record supports this finding. The social worker’s report and testimony, along with that of the two visitation monitors, showed the child was not sad when visits with mother were over and instead readily went to her caretaker. The child made many spontaneous negative statements about mother during visits. On at least two occasions when mother tried to be affectionate or hold her hand, the child pulled away. There was also evidence the child exhibited negative emotions around mother. At times, the child was so resistant to mother’s telephone calls that she hid under tables or in a closet to avoid talking to her. Mother, for her part, was afraid to discipline the child for fear of upsetting her. Additionally, she defied instructions by monitors not to make negative comments about the child’s caretakers.
Mother maintains the child “had fun” and was happy during her visits, that she disciplined her by putting her in a time out, and that the child gave her frequent hugs and kisses. But as the juvenile court found, this does not show the relationship between them was anything more than that of a friendly visitor. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) Moreover, we must “presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The evidence introduced by SSA at the hearing supports the juvenile court’s rejection of the parent-child benefit exception. The mere fact mother presented other evidence that may have supported a contrary result does not suffice to nullify the court’s findings.
As for mother’s continued work on her parenting and life skills, we commend her efforts in purchasing a mobile home, finding employment, going to therapy, attending college with a goal of obtaining a surgical technician certification, and enrolling in child abuse prevention and parenting classes. But mother does not explain how that evidence shows the child would benefit from a continued relationship with her.
DISPOSITION
The order is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.