Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct.. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. Nos. J195418 & J195419
Michelle L. Jarvis, under appointment by the Court of Appeal, and Richard Pfeiffer, for Defendant and Appellant.
Ruth E. Stringer, Acting County Counsel, Danielle E. Wuchenich and Adam Ebright, Deputy County Counsels, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Minors.
RAMIREZ, P. J.
T.S. (mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26 as to her daughters C.S. (born 1995) and K.S. (born 1998). Mother argues the termination order should be reversed because she has a continuing and beneficial bond with the children and an exception to the termination of parental rights applies as set forth in section 366.26, subdivision (c)(1)(B)(i).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Although the instant juvenile dependency proceedings were initiated with a section 300 petition in June 2004, the record indicates there were at least 15 prior referrals to child protective services about the children’s care. The initial contact was in 1995 when the oldest child C.S. tested positive for drugs at birth. Referrals continued despite family maintenance services, counseling, and parenting classes.
On May 13, 2004, the Department of Children’s Services (DCS) received a referral alleging the children were going to school extremely dirty and appeared emotionally disturbed. C.S. had warts on her nose and both hands, and K.S. had blisters on her feet. Both children had a noticeable body odor, and their clothing was torn and stained. On June 2, 2004, a social worker visited and found both children home alone. A petition was then filed on June 4, 2004, which further alleged mother’s home had no utilities, was filthy and unfit, and mother was unable to provide adequate care for the children because of drug and alcohol addiction. On July 27, 2004, the court found the allegations in the petition to be true, ordered removal from mother’s custody, declared the children dependents, and authorized weekly supervised visits with mother. Although initially placed with relatives, the children were moved to confidential foster care on August 16, 2004, because the relatives indicated they did not have the resources to care for the children.
According to mother, the children have different fathers. Both fathers were regularly notified about the proceedings and were offered services and visitation. However, neither participated in the children’s lives or in a case plan to any significant degree and they are not involved in the present appeal.
In the six-month review report dated January 25, 2005, the social worker stated mother visited with the children but did not complete her service plan, made repeated excuses for not being able to attend treatment programs, maintained an unsanitary home, and denied substance abuse despite testing positive for methamphetamines throughout the reporting period. In an addendum report filed February 28, 2005, the social worker reported that mother completed parenting classes and had participated in counseling but had not completed her therapy. Although she was referred to an outpatient substance abuse program, mother did not attend and gave many excuses for not doing so. She attended only one meeting in a 12-step narcotics anonymous program. In addition, she lied to the social worker about her living and employment circumstances, was associating with known drug addicts, had been terminated from her job, and was being evicted from her apartment for not paying rent. The social worker concluded there was only a “slight probability” the children could be returned to mother within the statutory time period.
At the six-month review hearing on March 2, 2005, the court found mother failed to complete the court-ordered treatment plan and made only minimal progress in alleviating or mitigating the causes necessitating the placement of the children outside the home. The court ordered mother to participate in six more months of reunification services and to submit to frequent and random drug testing. The juvenile court warned mother there was no chance the children would be returned to her custody if she did not immediately engage in services to address her addiction to methamphetamine.
In the 12-month review report dated September 2, 2005, the social worker concluded it was extremely unlikely mother would “complete and benefit from her case plan in the next six (6) months.” According to the social worker, mother continued to deny drug use despite positive tests and had been terminated from a drug treatment program for noncompliance. The social worker recommended termination of reunification services. At the 12-month permanency hearing on October 25, 2005, the court terminated reunification services and set a hearing pursuant to section 366.26 to determine a permanent plan for the children. Visitation with mother was continued without modification.
As of October 28, 2005, the children were placed out of state with an adult sister. At the section 366.26 hearing, the court found long-term foster care to be an appropriate permanent plan with continued placement in the home of the children’s adult sister. However, on June 27, 2006, the social worker received a call from the children’s adult sister, who asked for the children to be returned to California because they were too much for her to handle. DCS filed a supplemental petition under section 387. The court continued the dependency, removed the children from the sister’s custody, and returned them to confidential foster care in California. The court also continued supervised visitation with mother once per week but without services, because the time for reunification had passed.
In a status report dated April 2, 2007, the social worker recommended adoption as the permanent plan. Mother was not putting forth any effort to reunify and was providing only “minimal nurturing” during weekly visits. Both children had reportedly agreed to consider adoption if they could continue to have contact with mother and other relatives. The social worker’s report included an adoption assessment stating the children were “very adoptable.” On May 16, 2007, the court approved a recommendation by DCS to list the children in a state-sponsored program to find a suitable adoptive family.
On March 27, 2008, the children met with a prospective adoptive family and began visits at their home. Both were involved in selecting this family and after spending time with them indicated they wanted to be placed in this home when the school year was over. However, they said they wanted an open adoption, so they could continue to have contact with mother and maternal relatives. The court authorized weekend visits with the prospective adoptive family. In a report dated May 16, 2008, the social worker reported both children were bonding well with the prospective adoptive family and were looking forward to moving there.
On June 13, 2008, the court set a section 366.26 hearing to consider termination of parental rights. However, supervised visits with mother were continued but limited to once per month. In a report dated October 14, 2008, the social worker stated the children appeared very happy and were doing well in the home of their prospective adoptive family. The social worker recommended continuing mother’s visitation but also recommended termination of parental rights and a permanent plan of adoption. The children were told about the upcoming section 366.26 hearing, and the social worker made sure they understood the purpose of the hearing. The social worker told the children supervised visitation with mother could continue after the adoption but probably not as frequently, and “they appeared okay with this arrangement.”
Since mother contested the adoption, the court sent mother and DPS to mediation to determine an appropriate visitation schedule under an open adoption. The mediator’s report stated mother agreed to supervised visits of four hours every other month with e-mail and telephone contact of 15 minutes with each child every other week. The report also stated the children could have monthly telephone contact with their sister and other extended family members.
On December 9, 2008, the court held a contested section 366.26 hearing and heard testimony by the social worker. In addition, the court spoke privately with both children in chambers and confirmed they were strongly in favor of being adopted by their current caregivers even though they understood visitation with mother could change after the adoption was finalized. Mother did not testify at the hearing. The court terminated parental rights and found by clear and convincing evidence that the children would be adopted.
DISCUSSION
Mother believes the beneficial relationship applies because she regularly and consistently visited the children throughout the dependency period and has a beneficial relationship with them. Mother’s argument relies heavily on evidence indicating the children repeatedly and consistently sought assurance of an open adoption, so they could continue visitation with her. According to mother, it would be detrimental to terminate her rights because there is no way to guarantee continued visitation if the children are adopted. Because of the relationship she has with the children, mother argues the juvenile court should have chosen a permanent plan of guardianship or long-term foster care in order to ensure future visitation. DCS does not contest that mother has regularly and consistently visited the children and has a beneficial bond with them. However, DCS argues the balance of factors and the evidence weigh heavily in favor of adoption as the permanent plan.
In pertinent part, the beneficial relationship exception set forth at section 366.26, subdivision (c)(1)(B)(i), provides as follows: “[T]he court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
“ ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53.) “The parent has the burden to show that the statutory exception applies.” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To meet this burden, it is not enough for the parent to show he or she occupies “a pleasant place” in the child’s life (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324) or to show “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The exception does not apply “when a parent has frequent contact with but does not stand in a parental role to the child.” (Id. at p. 1420.)
For the exception to apply, the parent must show “the relationship 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. 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.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (Id. at pp. 575-576.)
In our view, the record does not contain any evidence demonstrating the children would be “greatly harmed” by the termination of mother’s parental rights. At the time of the section 366.26 hearing on December 9, 2008, C.S. was 13 years old and K.S. was 10 years old; they had been in the foster care system for about five years beginning in June 2004, had been moved several times, and had many disappointments over the long course of the dependency. Despite regular and consistent visitation, the social worker testified mother did not fulfill the role of a parent as the children did not look to her as someone who was there to nurture and care for them. The children did not trust mother and had no confidence in mother’s ability to remain drug free and fulfill the parental role. At the section 366.26 hearing, the social worker testified it would be detrimental at this time for the children to have no contact with mother because they love her, are concerned about her welfare, look forward to the visits, and would become emotionally upset if visitation did not occur when expected. However, he firmly believed the prospective adoptive parents were committed to continuing visitation with mother after the adoption. He explained they had always facilitated visitation and had adopted other children and kept contact with other birth families.
The most relevant and telling evidence on this issue derives from the trial court’s private conversations with the children during the section 366.26 hearing. In these conversations, both children told the court they were very happy in their prospective adoptive home. The court went through the visitation agreement and made sure they understood visitation could change after the adoption is concluded. Both children stated they understood this and wished to go forward with the adoption. The court indicated C.S. was “very straightforward and without any question wants to be adopted.” The court also said K.S. “particularly, mentioned that she just never wants to go back living with her mother again to go through the trauma and the process that she went before.... But she recognizes, and both kids do, of course, who their mother is. And they want the visits but, also, want to be adopted.” The children’s words were compelling. The court later added that before talking with the children it was of the opinion this “was one of the cases where there is a colorable argument for guardianship.” However, the court said, “after hearing the girls and hearing the social worker’s testimony, I’m persuaded that a lesser permanent plan than adoption is not in their best interest at all. [¶] The girls are really adamant that they want to be adopted. They know that if they are adopted that it would be permanent and final. They also know that there’s no guarantee that visitation that has been agreed on post this hearing would necessarily continue after adoption. [¶]... [¶] And they want the adoption even with that understanding. [¶] So I firmly believe that the evidence is overwhelming that termination of parental rights is appropriate and the children should be freed for adoption.”
There is also strong evidence in the record that the benefits of adoption for these particular children would outweigh any detriment from the termination of mother’s parental rights. The social worker testified the children “would have a stable life.” He described their life with the prospective adoptive family as “the most stable[,] enriching, nurturing experience that they have had.... It’s been stronger than any other foster home that they have been in....” In his opinion, the children were maturing and doing better than they had ever done in the past. He said, “And I believe it’s, at least in part, if not a lot has to do with the home that they’re in. It’s just a very, very stable, loving, and nurturing home that the girls can blossom.” When asked “why” the benefits of adoption would outweigh any detriment resulting from the termination of parental rights, the social worker said he thought the children really needed the stability. “They have been in the system for a long, long time, for longer than many children have been. They need to know that they are in the place that they’re staying. And that they don’t have to have any fear that they may not stay.” He also explained that guardianship or long-term foster care would simply not give the children the same level of permanency and commitment as adoption.
Based on the foregoing, we conclude mother did not meet her burden of demonstrating that the parental benefit exception applies. In our view, the juvenile court appropriately decided to terminate mother’s parental rights and free the children for adoption. The court’s determination is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.