Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. JJV063532, Charlotte Wittig, Commissioner.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Detjen, J. and Franson, J.
Sonia S. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her son Luis H. (child). She contends the court erred by not finding termination would be detrimental to the child. In mother’s view, their parent/child relationship so benefited the child as to outweigh the benefit of adoption. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Shortly after his birth in the spring of 2008, the child was diagnosed with cystic fibrosis (CF), a progressive disease that affects both the digestive tract and the lungs. Caring for such a medically-fragile child is a full time, medical management job.
Although mother and the child’s father received instruction through a CF clinic for approximately six months, neither was able to adequately manage the child’s disease and follow the clinic’s and its medical staff’s instructions. Although the parents meant well and loved the child, the parents’ neglect was endangering and shortening his life. As of December 2008, the child had been hospitalized repeatedly, his weight was below the third percentile, and he was diagnosed with failure to thrive. Consequently, respondent Tulare County Health and Human Services Agency (agency) initiated the underlying dependency proceedings.
In January 2009, the juvenile court exercised its dependency jurisdiction over the child under section 300, subdivision (b) (neglect) and ordered him removed from parental custody. It ordered reunification services for the parents consisting of CPR and first aid training, a counseling assessment to determine if there were issues the parents needed to address and training regarding how to care for the child in light of his condition. It also granted liberal unsupervised visits for a minimum of twice a week.
Over the next year, the parents received all of the supportive services that were available without any demonstrable improvement in their ability to care for the child’s health. As a result, in March 2010, the juvenile court terminated reunification services and set the case for a section 366.26 hearing to select and implement a permanent plan for the child. It also reduced the parents’ visits to one time a week and ordered the visits supervised by the agency or its designee.
In a July 2010 “366.26 WIC Report, ” the agency recommended the juvenile court find the child was likely to be adopted and order termination of parental rights. The agency had recently placed the two-year-old child with a foster family committed to adopting him despite his CF and the high level of care he required. The child, described as “always smiling and engaging, ” appeared to be happy and thriving in his new home.
An adoption social worker who prepared the report also summarized the following history of contacts between the child and the parents. The child had regular weekly contact with the parents and was always happy to see them. The parents almost always brought food and drink. Mother spent a lot of time talking with the child and trying to engage him in play. At the end of visits, the child was always ready to return to his care providers. While the child enjoyed his time with the parents, his relationship with them did not appear to be a parent-child relationship. It had “more the appearance of an older sibling to a child relationship.”
A Court Appointed Special Advocate (CASA) also submitted a report in July 2010. On the subject of visitation, the CASA added the following observations of the adoptive parents. The parents showed love and affection for the child and he recognized them. They usually brought food so the child was always eager to see what they brought for him.
At the section 366.26 hearing, the juvenile court took judicial notice of the entire case file at the agency’s request. Mother’s counsel had no evidence to present, “only argument.” He claimed termination would be detrimental to the child because mother regularly visited him on a weekly basis and during those visits provided nourishment, food and beverage for him.
The court found that mother had not met her burden of showing the child had a significant emotional attachment to her and the parent/child relationship promoted the child’s well being to such a degree as to outweigh the well being the child would gain in a permanent adoptive home. Having found the child was likely to be adopted, the court terminated parental rights.
DISCUSSION
Mother contends the court erred when it declined to find there was a beneficial relationship between her and the child that outweighed the benefits of adoption. Because she presented no evidence in the juvenile court to support her claim that termination would be detrimental to the child, mother on appeal relies upon social worker and CASA reports over the course of the child’s dependency. She infers from those reports that she and the child shared a substantial, positive emotional attachment, and he would be harmed if their relationship were extinguished. She also criticizes the adoption social worker’s characterization of their relationship. As discussed below, we disagree. We conclude the juvenile court did not abuse its discretion by rejecting mother’s detriment argument.
Once reunification services are ordered terminated, the focus shifts to the child’s needs 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 in section 366.26 provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) It is an opposing party’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Section 366.26, subdivision (c)(1)(B)(i) permits a finding of detriment in situations where a parent has maintained regular visitation and contact with his or her child and the child would benefit from a continued relationship with the parent. For the beneficial relationship exception to apply,
“the parent-child relationship [must] 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.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000)78 Cal.App.4th 1339, 1351.) For this to occur, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
While it is undisputed that mother maintained regular visitation with the child, there was no evidence that severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. At most, social worker reports described positive and loving visits.
As of mid 2009 when the child was a year old, he exhibited affection towards mother, maintained eye contact with her, watched her as she moved around the room, and responded positively to her physical closeness. As of late 2009, the child still exhibited affection towards mother and responded positively to her physical closeness. He was also described during three visits with mother as happy and playful. In February 2010, the foster mother told the CASA that the child seemed excited and happy when he saw his parents for a visit. The parents played with, talked to and took pictures of the child during the visits. The foster mother believed the parents loved the child very much.
Interaction between natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Consequently, a parent must demonstrate more than pleasant visits or frequent and loving contact for the beneficial relationship exception to apply. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
Mother ignores this requirement and takes a different approach. She infers from the visitation evidence, as well as the fact the child had lived with her during the first seven months of his life and thereafter spent a lot of time with her, that: she and the child shared a special relationship; the child had a primary attachment to her; and therefore termination would be harmful to the child. She also questions the value of the adoption social worker’s opinion that the relationship had more the appearance of an older sibling to a child relationship, than a parent-child relationship.
In so doing, mother would have this court reweigh the evidence and draw different inferences than the juvenile court in support of reversal. As a reviewing court, however, we have no such authority. We must indulge all legitimate inferences to uphold the juvenile court’s decision, if possible, and not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Mother also downplays evidence that the child appeared to be a happy child in general despite his CF. He laughed and played and seemed relaxed and confident in his environment. He also sought out his foster parents for support and attention. Mother further overlooks the lack of any evidence that the child became demonstrably upset when his visits with her concluded or once the court reduced the frequency of their visits.
Under these circumstances, we agree with the juvenile court’s finding that mother failed to meet her burden of proof and conclude the juvenile court did not abuse its discretion by rejecting mother’s detriment claim.
DISPOSITION
The order terminating parental rights is affirmed.