Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Barnett Williamsen, Commissioner. Super. Ct. No. 509339
Catherine Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Hill, J.
INTRODUCTION
Appellant, H.Z., appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, M.B. Appellant contends the juvenile court erred in failing to find that she came within the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)). We disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Earlier Proceedings
In case No. F054090, appellant sought a writ to vacate the order of the juvenile court issued at a contested 12-month review hearing setting the matter over for a section 366.26 hearing. Appellant contended the juvenile court erred in terminating reunification services and failing to find that she had overcome a drug addiction. We denied appellant’s writ petition. We briefly review facts relevant to this appeal from our earlier opinion.
Appellant, who was then 15 years old, was admitted to the hospital in March 2006 for a suspected appendicitis. Instead, she delivered M. Appellant’s mother, L., refused to allow appellant to return home unless she placed the child up for adoption and L. expressed her hope the child would die. L. reneged on an agreement to permit appellant to return home. Appellant first went to the biological father’s home before going to live in a shelter. Appellant took the child, who was seizing and crying, to an emergency room in mid-July 2006.
M. was treated for methamphetamine toxicity. The toxicity was so high, a consulting physician thought someone intentionally poisoned her by putting methamphetamine in her bottle or directly into her mouth. Appellant denied knowing how M. ingested methamphetamine. Appellant refused a drug test. The alleged father did not believe appellant used drugs, but stated that L. used methamphetamine and cocaine. The agency took M. into protective custody, filing a dependency petition and appointing a guardian ad litem for appellant. In September 2006, the juvenile court exercised dependency jurisdiction, removed M. from appellant’s custody, and ordered appellant to complete a reunification plan.
For the first five months, appellant made good progress in her case plan. Appellant was ambivalent about reunifying with M. and L. Although appellant maintained regular visitation with M., she expressed resignation that she would not reunify with M. even if she completed her case plan. During these times, appellant would appear less involved with M. and act more as a babysitter. M. was in good health and bonding with her foster parents, who were willing to adopt her.
Appellant received another six months of services at the review hearing in early February 2007. Appellant continued to vacillate between wanting to reunify with M. and relinquishing her for adoption. Appellant cancelled a visit in late February and told a social worker that she was interested in signing relinquishment papers. Appellant changed her mind about relinquishing her parental rights in March 2007 and visitation with M. resumed.
Over the next several months, appellant and L. visited M. regularly. L. interacted with M. most frequently. In its 12-month status review report, the agency stated that appellant continued to test negative for drugs and completed the classroom portion of her parenting course. Appellant’s failure to explain how M. ingested methamphetamine and her inadequate interaction with M. during visitation, led to a recommendation that the court terminate reunification services.
At the hearing, appellant testified that she believed M. was poisoned by fumes produced when she smoked methamphetamine the day before she took M. to the hospital. Appellant said she was the only one using methamphetamine in the home and did not believe L. or L.’s boyfriend had given M. methamphetamine. Appellant acknowledged that her explanation was medically impossible. Given the unexplained cause of M.’s poisoning, the court found M. could not be safely returned to appellant’s custody. The court found appellant was provided with reasonable services and there was not a substantial probability M. would be returned to appellant even with more time to reunify. The court terminated reunification services.
Recent Proceedings
On January 25, 2008, the agency filed a report for the section 366.26 hearing. M. resided in the same foster home since September 8, 2006. M. was developing normally for a 22-month old child. The foster parents wished to adopt M. Their combined annual income was sufficient to meet the family’s needs. The couple had been married 19 years and owned a home. The potential adoptive family saw M. as a perfect fit for their family and took pride in M. The family had completed an adoption home study. M. was doing well in her current placement and displayed affection toward her caregivers.
Appellant attended most scheduled visits. Appellant visited M. four times in July 2007, four times in August 2007, four times in September 2007, three times in October 2007, twice in November 2007, and, at the time the report was prepared, once in January 2008. Appellant missed four scheduled appointments between August 2007 and January 2008.
The agency’s social worker noted appellant’s progress toward alleviating or mitigating the causes necessitating placement was minimal. The social worker thought it was likely M. would be adopted and recommended termination of parental rights.
The juvenile court conducted the section 366.26 hearing on April 28, 2008. Appellant testified that she visited M. regularly. Appellant would read M. books, give her snacks, and sit on the floor with her and play with toys. M. called appellant mommy, but according to appellant M. “kind of calls everybody mommy.” When M. sees others in the room during visits, she is not as playful with appellant. M. cries when appellant leaves at the end of a visit.
M. smiled, laughed, and was affectionate with appellant. M. is afraid of people she does not know. Appellant explained that M. changed her life. Appellant learned a lot through parenting classes. The juvenile court found appellant’s progress toward alleviating the reasons for placement had been minimal and that the agency complied with the case plan by making reasonable efforts to return M. The court found by clear and convincing evidence that M. would be adopted and termination of parental rights would not be detrimental to M. The court terminated appellant’s parental rights and established a permanent plan of adoption.
DISCUSSION
Appellant contends the court erred when it declined to find termination would be detrimental to the child’s best interests. She claims she was entitled to such a finding because she maintained regular visitation with her child and she 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 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 M. throughout M.’s dependency, the court could properly conclude they did not share a parent/child relationship. Although caring for an infant and playing with a toddler are acts most parents perform on a frequent and daily basis, doing so once a week for a few hours does not, standing alone, compel a finding that a parent/child relationship exists. M.’s affection for appellant, demonstrated by her use of the word “mommy” for appellant, does not demonstrate a parent/child relationship. Appellant acknowledged that M. used the word “mommy” for other people to whom she felt affectionate. 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 the narratives and ignoring other evidence before the court.
In any event, appellant failed to establish her relationship with M. was so strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) As the trial court correctly observed, the loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. “‘The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) In addition, the factors, cited both by the trial court and appellant in her briefing, militated against finding an important and beneficial relationship. (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant underplays M.’s very young age, the fact M. only lived with appellant the first four months of her life, the mystery surrounding M.’s poisoning, and M.’s needs for stability, continuity and permanence. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and M. 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.