Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J38530
Dondero, J.
This appeal has been taken by Stacey W. and Paul M., the parents of the minor Logan, from a judgment pursuant to Welfare and Institutions Code section 366.26 that terminated their parental rights and ordered adoption as the permanent plan. They claim that the juvenile court erred by failing to find that the beneficial parent-child relationship exception to adoption preference (§ 366.26, subd. (c)(1)(B)(i)) is applicable. We conclude that the court did not abuse its discretion by terminating parental rights and ordering adoption as a permanent plan for the minor, and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Some of our recitation of the background facts of the case will be taken from our prior unpublished opinion (May 25, 2010, A128033, A128034), in which we denied the parents’ challenge to the trial court’s order that removed the minor from their custody, terminated their reunification services, and set the matter for a hearing to select a permanent plan (§ 366.26).
The present dependency proceeding commenced on May 2, 2008, within weeks of the minor’s birth, with a petition filed by the Solano County Department of Child Welfare Services (the Department), that alleged the parents’ failure to protect the child pursuant to section 300, subdivision (b). On May 20, 2008, the trial court sustained amended allegations that Stacey had a lengthy history of domestic violence and substance abuse that continued during her pregnancy with the minor, prior referrals for mental health issues, and multiple dependency proceedings that resulted in the loss of custody of her five older children, along with current incidents in which she exhibited irrational and agitated behavior. The court also found that Stacey engaged in a recent episode of domestic violence with Paul, the father of the minor, by throwing pliers at him. Paul had yet to be assessed for his ability to care for the minor, who suffered from health concerns as a result of premature birth. Jurisdiction over the minor by the court was ordered, although the parents continued to visit Logan while he remained in the hospital.
Dispositional orders in the case were issued by the court on July 29, 2008. Paul was established as the biological, presumed and legal father of the minor. Logan was found to be a dependent of the court and ordered to remain in foster care. The Department was directed to continue the minor in out-of-home placement, and to provide the parents with reunification services and supervised visitation. The court further directed the parents to participate in services and comply with their case plans. Stacey’s case plan called for her to complete a mental health assessment and follow any recommendations, complete a domestic violence program and parenting class, submit to random drug testing, submit to a substance abuse evaluation and follow any recommendations. Paul’s case plan directed him to complete a domestic violence counseling program for victims, complete a parenting class, and submit to a mental health assessment and follow any recommendations. Both Stacey and Paul were directed to retain and maintain safe, suitable housing.
Prior to the six-month review hearing, in an interim review report the Department recommended a return of the minor to the supervised custody of the parents under a plan of family maintenance services for a period not to exceed six months. The report noted that both Stacey and Paul were in compliance with most aspects of their case plans and maintained supervised visitation with Logan three times per week. The visits were described in the report as appropriate and affectionate. The visitation was modified to unsupervised in July of 2008, but reverted to supervised a month later following the social worker’s observation of an argument between the parents during a visit and a report of violence directed by the mother toward the father. By September of 2008, the parents maintained weekly, separate unsupervised visits with the minor.
According to a status review report filed by the Department on November 5, 2008, the parents resided together in an apartment in Vallejo, which was appropriately furnished and equipped for the safety of the minor. Logan continued to reside in foster care, but the parents jointly engaged in unsupervised visitation with him three times per week. The Department determined that the parents were in compliance with reunification services, and recommended a return of the minor to the parents upon the completion of “four to five successful and appropriate overnight visits by the November 18, 2008, court date, ” with continuation of family maintenance services for six months thereafter. At the conclusion of the six-month hearing on November 18, 2008, the juvenile court adopted the Department’s recommendations and returned Logan to the custody of the parents.
By early January of 2009, however, the parents separated after a “fight, ” and Stacey left their shared motel room with the minor. Stacey subsequently moved with Logan to a transitional housing facility in Vacaville. The parents agreed to share custody of the minor, and avoid contact with each other during their separate visits. They briefly reconciled and shared the motel room with the minor again in late January, but after further arguments Stacey returned to her transitional housing. The parents agreed to share custody of Logan, with exchanges of the minor between them supervised by the Department.
In early February, Stacey was discharged from her transitional housing due to volatile, uncooperative behavior, failure to submit to drug testing, improper administration of the minor’s medications, and failure to adequately care for him. Custody of Logan was temporarily given to Paul, with supervised visits to Stacey. Stacey refused to follow the agreements and safety plan implemented to protect the minor. She continued to engage in verbally abusive, loud and profane behavior directed at Paul.
On February 6, 2009, the Department requested a more restrictive placement of Logan in a supplemental petition filed pursuant to section 387. The petition was dismissed without prejudice after a hearing, and the existing joint custody arrangement was continued, but the parents were directed not to have contact with each other.
The social worker thereafter removed case plan requirements calling for couples counseling and completion of a domestic violence program, due to the separation of the parents. The parents were also noncompliant with other requirements of their family maintenance case plans. Stacey failed to follow through with individual counseling arranged by the case worker, and had refused to submit to a hair strand drug test after a positive drug test for opiates in February. Her failure to participate in individual counseling was of particular concern, as she had exhibited agitated, irrational and paranoid behavior throughout the reporting period. Paul was noncompliant in failing to apply for Medi-Cal and failing to submit to a mental health assessment. He briefly moved to a residence in Fairfield, and for at least a few weeks did not have contact with the minor following injuries and hospitalization sustained during an assault.
In late April 2009, the parents reconciled and informed the Department of their request for removal of the no-contact order. They also expressed an interest in participating in couples and individual counseling. Nevertheless, they still failed to comply with the individual mental health assessment and therapy components of the case plans. Stacey was also not in compliance with the substance abuse elements of her plan: she tested positive for opiates and morphine; failed to appear for scheduled drug testing; and failed to submit a hair strand for testing as directed by the Department. At the conclusion of an in-home status review hearing on May 21, 2009, the court followed the Department’s recommendations and removed the no-contact order upon the conditions that the parents participate in couples counseling and otherwise comply with their case plans.
The parents separated again in July of 2009, due to heated verbal altercations, after which Stacey left their shared motel room with Logan. Paul moved to a residence in Fairfield. Stacey and Logan occupied a transitional housing residence in Vallejo, although she did not promptly notify Paul or the social worker of her change of address. Stacey’s unstable and abusive behavior toward Paul continued after the parents’ separation. On one occasion she appeared at Paul’s individual therapy session with Logan and began “yelling and screaming” at him in the waiting room, which seemed to cause the minor agitation. The minor also appeared to be “hungry and tired.” At the request of the Department, on July 28, 2009, the court ordered Stacey to submit to a psychological evaluation.
A supplemental petition (§ 387) filed by the Department on August 26, 2009, alleged that two days before Stacey had been found unconscious on the floor in her home, after ingesting pills containing opiates and barbiturates. The minor was found sitting nearby, with a pill in his mouth that could have caused a serious medical emergency had he swallowed it. The minor was removed from the home of the parents on August 24, 2009. Additional allegations were stated in the petition: observations were made at Stacey’s housing facility that she failed to provide adequately for the minor’s safety and well being; on August 12, Fairfield police responded to a physical altercation between the parents that occurred in the minor’s presence; and that the parents’ failure to successfully resolve the issues that brought them under the juvenile court’s jurisdiction required a change in the previous disposition of in-home supervision. At the conclusion of the jurisdictional hearing on the supplemental petition on December 10, 2009, the court sustained the allegations.
In a dispositional report filed on January 29, 2010, the Department recommended that the court order the minor removed from the parents’ custody and terminate their services, “as both parents have received the statutory maximum of eighteen months of services.” The Department also recommended that the court set a section 366.26 hearing to determine a permanent plan for the minor. The report observed that the minor had been in a foster care residence continuously for five months, and had spent more time in foster care than in the home of the parents.
At the dispositional hearing on the supplemental petition evidence was adduced that the parents repeatedly failed to take advantage of offered services or comply with their case plans during the course of the proceeding. They persistently refused to address the serious domestic violence issue in their relationship that precluded effective individual and couples counseling. Stacey declined to pursue individual therapy and a psychological examination as recommended for her. She refused on several occasions to submit to appropriate testing to objectively determine her use of drugs. On other occasions, she had positive tests for morphine and opiates. Even after a grave overdose incident, she refused drug testing. Stacey also failed to present proof that she was attending meetings to treat her addictions.
Paul delayed completing the mental health assessment that was a prerequisite for his counseling. He was arrested on two instances for domestic violence directed at Stacey. As a result, he received deferred entry of judgment in the criminal cases, with a condition he participate in anger management and domestic violence classes. While he began the classes, he stopped attending prematurely. He only attended two classes on domestic violence within the first six-month review period. He also failed to participate fully in the substance abuse services he was offered. He suffered drug relapses regularly, and declined to respond to requests to appear for random tests.
The parents’ visitation with Logan continued, and they both expressed continuing affection for the minor. From December of 2009 through February of 2010 each parent was offered two separate visits per week for a total of three and one-half hours. The parents regularly attended the visits, and were appropriate and affectionate in their behavior with the minor.
Following the hearing on the petition, on February 22, 2010, the court terminated reunification services to the parents and scheduled a section 366.26 hearing to select a permanent plan for the minor. The parents were granted visitation with the minor one time per month for two hours each visit. Both parents filed petitions which challenged the adequacy of the services provided to them and the juvenile court’s denial of additional services. This court denied the petitions on the merits in an opinion filed on May 25, 2010.
The report prepared by the Department for the section 366.26 permanency planning hearing in May of 2010 noted that Logan had been residing with his prospective adoptive family for the past nine months. Visitation was described as stressful for him. He exhibited anxiety and distressing behavior following visits with the parents. Both parents continued to be affectionate toward the minor, and he was receptive to them, although on some occasions he did not positively respond to Stacey. He appeared to be more focused on playing than responding to the parents. The Department found no significant bond between Logan and the parents that would inhibit his ability to bond with a stable, consistent caregiver.
Logan was reported to be “thriving” in his current foster placement. The current caregivers demonstrated an ability to care for him and provide for his developmental and emotional needs. They also expressed a “desire and willingness to make a permanent commitment” to the minor. The minor was considered adobtable, and adoption was recommended as the permanent plan.
At the contested section 366.26 hearing testimony was received from social workers and both parents. Social workers Deborah McGee and Claire Kelley, who supervised the parents’ visits with Logan, testified that they engaged the minor during visits and were affectionate with him. The minor appeared to be happy to interact with the parents, but had “a difficult time separating from the foster parent” and “was having a lot of anxiety” both when leaving his foster parents and after the visits. His speech development also regressed. Therefore, the visitation schedule was reduced following the most recent dispositional hearing to once monthly at the suggestion of Logan’s therapist. Thereafter, Logan became “less clingy” and “a lot more stable emotionally.”
McGee further testified that Logan appears “to be much more bonded” to his foster parents than his biological parents. Logan was two years old when the hearing occurred, and had been with his current caregivers for over a year. According to McGee, Logan’s relationship with the foster parents is “more of a parent/child, ” whereas his relationship with the biological parents is “more like a familiar visitor.” Logan’s current caregivers are a licensed foster home and are willing to adopt him. McGee offered the opinion that Logan would “have a more stable and secure environment” in his prospective adoptive home. Logan appeared “very secured and bonded with both those foster parents.” Following a favorable home study, the Department recommended approval of the adoption of Logan by the current foster parents.
Paul testified that he attended nearly all of his scheduled visits with Logan, and repeatedly sought to increase visitation during the course of the proceeding. He expressed a belief that Logan has a “strong bond” with him. The minor smiled during visits and often cried when visitation ended.
Stacey also testified that she consistently visited Logan, and sought more visitation. He was affectionate with her and they shared a “very loving” bond.
At the conclusion of the hearing the juvenile court found that although the parents share a “good and positive” relationship with the Logan, it does not rise “to the level where it outweighs the benefits of having a permanent, stable home for the minor.” The parental rights of Stacey and Paul were terminated, and a permanent plan of adoption was ordered. These appeals followed.
DISCUSSION
Stacey and Paul both challenge the juvenile court finding that “the section 366.26, subdivision (c)(1)(B)(i) exception to adoption” does not apply in the present case. The parents claim that their record of “consistent and frequent contact with Logan throughout the dependency proceeding, ” along with evidence of the “substantial parent-child connection” that would benefit the minor, establishes the exception to adoption specified in section 366.26, subdivision (c)(1)(B)(i). They ask us to reverse the termination of their parental rights, and remand the case with directions to the juvenile court to pursue a “non-adoptive permanent plan” for the minor.
Our review in the present case is dictated by the procedural posture of the dependency proceeding. “ ‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child.’ [Citation.]” (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) Where, as here, “reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds terminating parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)–(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401 [127 Cal.Rptr.2d 922]; In re Derek W. (1999) 73 Cal.App.4th 823, 826 [86 Cal.Rptr.2d 739].)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
“Once reunification services are ordered terminated, the focus shifts to the needs of dependent children for permanency and stability. [Citation.] A section 366.26 hearing is designed to protect these children’s compelling rights to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child. [Citation.] If, as in this case, the children are likely to be adopted, adoption is the norm. Further, the court must terminate parental rights and order adoption, unless one of the specified circumstances in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. [Citation.] ‘The specified statutory circumstances — actually, exceptions to the general rule that the court must choose adoption where possible — “must be considered in view of the legislative preference for adoption when reunification efforts have failed.” [Citation.] At this stage of the dependency proceedings, “it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.” [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.’ [Citation.]” (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) A single statutory exception is implicated in the present case: “where a parent has maintained regular visitation and contact with a child who would benefit from continuing that relationship (§ 366.26, subd. (c)(1)(B)(i)).” (Id. at p. 1324.)
I. The Standard of Review.
Our review of the juvenile court’s finding is also quite constrained, and includes elements of both the substantial evidence standard of review and the abuse of discretion standard. “With respect to challenged factual findings, we will affirm ‘if there is any substantial evidence to support the trial court’s findings, ’ i.e., ‘if the evidence is reasonable, credible and of solid value – such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence.’ [Citations.]” (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.) “Although a trial court must make such findings based on clear and convincing evidence [citation], this standard of proof ‘ “is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.” ’ [Citation.] Under the substantial evidence standard of review, ‘ “[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment.” ’ [Citation.]” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010–1011, fn. omitted; see also In re Amy A. (2005) 132 Cal.App.4th 63, 67.)
Also, the decision to terminate parental rights lies in the first instance within the discretion of the trial court, “and will not be disturbed on appeal absent an abuse of that discretion. [Citation.] While the abuse of discretion standard gives the court substantial latitude, ‘[t]he scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” ’ [Citation.] ‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citation.]” (In re Baby Girl M., supra, 135 Cal.App.4th 1528, 1536.) “ ‘ “ ‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” [Citations.]’ [Citation.] The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court.” (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
II. The Beneficial Parental Relationship Exception.
The exception to the adoption preference stated in section 366.26, subdivision (c)(1)(B)(i)), “applies if termination of parental rights would be detrimental to the child because the ‘parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).)” (In re C.F. (2011) 193 Cal.App.4th 549, 553; see also Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 339–340; In re S.B. (2008) 164 Cal.App.4th 289, 297.) “The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80–81; see also In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) The language “ ‘ “benefit from continuing the... relationship” ’ ” has been interpreted “to mean ‘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 re S.B., supra, at p. 297, quoting from In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
To determine if the beneficial parental relationship exception applies, “ ‘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.’ [Citation.]” (In re S.B., supra, 164 Cal.App.4th 289, 297.) “[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan.” (In re Dakota H., supra, 132 Cal.App.4th 212, 229.) “No one factor controls the court’s analysis. It is a balancing test.” (Id. at p. 231.)
The fact of the parents’ regular visitation and development of a favorable, loving bond with the minor, although demonstrated by the evidence and recognized by the juvenile court, does not suffice to establish the parental relationship exception under section 366.26, subdivision (c)(1)(B)(i)). “A parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]” (In re C.F., supra, 193 Cal.App.4th 549, 555, fn. omitted; see also In re Dakota H., supra, 132 Cal.App.4th 212, 229; In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
We agree with the juvenile court’s assessment that the beneficial parent-child relationship exception was not established by the evidence. While the parents engaged in consistent and appropriate visitation that illustrated an emotional connection with him, substantial evidence supports the finding that they did not occupy a parental role in the child’s life that resulted in a significant, positive emotional attachment of the minor to them. A parent does not “establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact.” (In re C.F., supra, 193 Cal.App.4th 549, 559, distinguishing In re S.B., supra, 164 Cal.App.4th 289, 297; see also In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Due to the parents’ dysfunctional, destructive relationship with each other and their failure to either take advantage of the services offered them or to effectively address the issues related to chronic drug abuse, emotional instability, and failure to maintain a safe, stable home for the minor, the frequency of visitation appreciably diminished over time. While Logan was affectionate with the parents, he suffered anxiety related to the visitation, and, according to the social workers, he was much more “secure and bonded” with his foster parents. By the date of the section 366.26 hearing, Logan had been in the custody of his foster parents for more of his life than he resided with the biological parents. He looked to the foster parents for his security and emotional and physical needs. The social workers also indicated that Logan’s relationship with his parents was in the nature of a “familiar visitor” rather than the significant, positive emotional attachment provided to him by the prospective adoptive parents.
Further, the evidence that any benefit from continuing the relationship would not outweigh the well-being the child would gain in a permanent home is persuasive. Although Paul and Stacey continued to visit and maintained a bond with the minor, the seriousness of the dysfunctional elements that resulted in the current dependency and were not ameliorated or even confronted by the parents despite the ample opportunity given them to do so, provides ample support for the finding that the minor’s need for permanence and stability outweighed the benefit of continued contact with his biological parents. We find no abuse of discretion in the juvenile court’s determination that adoption is the proper permanent plan for a minor. (In re Dakota H., supra, 132 Cal.App.4th 212, 231.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.