Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge, Super. Ct. No. DP011781.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Respondent Frank N.
No appearance for the Minor.
OPINION
BEDSWORTH, ACTING P. J.
R.G. challenges the juvenile court’s decision to terminate her parental rights over her two-year-old son Michael. Even though she failed to overcome her drug addiction after 18 months of reunification services, R. contends there are exceptional circumstances favoring the retention of her parental rights. Particularly, she invokes the so-called “relative caretaker” and “benefit” exceptions to termination. However, we find substantial evidence to support the trial court’s determination that these exceptions are inapt. Accordingly, we affirm the judgment.
FACTS
R. is a long-time drug addict. Because she used methamphetamine throughout her pregnancy with Michael, he was born in critical condition. After a few weeks in intensive care, his condition stabilized, and in July 2005 he was placed with his maternal grandmother Della. R. turned herself in and was jailed on a parole violation. Michael’s father, Frank N., was arrested on a parole violation and sent to prison, where he remains to this day.
Frank does not directly challenge the court’s decision to terminate his parental rights over Michael. Instead he has filed a respondent’s brief joining the arguments set forth by R. He contends if she “prevails on her arguments, then it necessarily follows that the order terminating [his] parental rights must also be reversed and [his] parental rights also be reinstated.” However, because R.’s arguments are unmeritorious, his derivative claim fails as well.
In late 2005, R. was released from custody and moved in with her grandmother Annie. Annie babysat Michael when Della worked, and she also cared for Michael’s seven-year-old half brother Andrew. This setup was beneficial in that it allowed R. and Andrew to visit Michael fairly often. Another positive development was that R. got a job and began drug treatment. However, by mid-2006, her drug problem resurfaced and she was arrested for possessing narcotics paraphernalia. She still visited Michael during this time, but he was becoming increasingly bonded to Della. His health continued to improve and he was considered a good candidate for adoption.
Although Andrew was named in the dependency petition, he remained in the custody of his father under a family maintenance plan.
R. was eventually dropped from her drug treatment program for poor testing and bad attendance. At the 18-month review hearing in December 2006, the court terminated her reunification services and set a hearing to decide on a permanent placement plan for Michael. In the weeks leading up to the hearing, Michael began speech therapy, but there were no big concerns about his general mental, behavioral or emotional development — he was still considered to be highly adoptable. Della told the social worker she was interested in adopting Michael and would do anything to keep him in the family. However, she also indicated that adoption would not be easy for her because she is single, works full-time, and has a teenage son. R. continued to visit Michael about once a week, which he enjoyed. But in April 2007, she was arrested for a parole violation, for which she was expected to receive a two-year prison sentence.
The nature of the parole violation is not reflected in the record.
The placement hearing took place in July 2007. R. testified she visited Michael as much as she could when she wasn’t incarcerated. Recalling the visits, she said that Michael would run up to her when she arrived and that she would feed, bathe, clothe and comfort him. They played and watched television together, and when she left, she often put him to sleep. R. testified she loved Michael, but she did not want him to visit her in custody because she felt it was too awkward.
Della testified R. usually visited Michael about once a week when she was not in custody. She said R. was very caring and loving during the visits, and he was always excited to see her. In fact, he clung to her when she was there, and if she left when he was still awake, he would cry. She admitted, however, he did not show any signs that he missed R. the day after such visits. And although he called her “mommy,” that’s also what he called Della and Annie.
Regarding the issue of adoption, Della testified social services has “already made numerous calls to make sure that I am going to adopt [Michael]. And they have kept calling me to pressure me to do a mountain of paperwork . . . .” Della also said social services told her there was a relatively short time frame for adoption because of Michael’s young age, and if she didn’t adopt him, another family would. Della said that because of this, she has felt pressure to adopt Michael.
Della testified she would prefer not to adopt Michael because it would “change the family dynamics” by making her Michael’s mother and her son Michael’s brother. She felt it would be easier to be Michael’s grandmother than his mother. She also worried that adopting Michael would undermine R.’s incentive to rehabilitate and that it would be embarrassing to tell people she had to adopt her daughter’s child. Despite these reservations, Della testified that “[i]f worse comes to worse, I’ll be there for . . . them no matter what,” meaning she would adopt Michael to keep him in the family.
Social worker Gina Diep testified she could not recall if she told Della that if she didn’t adopt Michael, another family would. However, Diep acknowledged Della was hesitant about the prospect of adoption and had been slow in terms of providing the requisite paperwork. Diep said R. acted appropriately and affectionately during her many visits with Michael, and he was attached to her. However, he was also very attached to Della, and it was Diep’s opinion that it would be detrimental to remove him from her care. Diep believed the best option would be to terminate R.’s parental rights, which would pave the way for Della to adopt Michael.
Invoking the “benefit” and “relative caretaker” exceptions to termination, R.’s attorney argued Michael should remain in Della’s care under a long-term guardianship. Counsel claimed Michael would benefit from a continuing relationship with R., and there were exceptional circumstances justifying Della’s desire not to adopt him. Respondent conceded R. visited Michael regularly, but it took the position that his best interests would be served by terminating her parental rights, and Michael’s attorney agreed. So did the court. It found the benefit exception inapplicable due to the lack of attachment between R. and Michael, and it found the relative caretaker exception inapplicable for lack of exceptional circumstances. Assessing Della’s reasons for opposing adoption, the court said they come up “almost 100 percent of the time” when a grandparent is contemplating adoption, and merely because Della had a preference against adoption did not mean she was unwilling to adopt. The court therefore terminated R.’s parental rights, freeing Michael for adoption.
I
R. contends the court erred in finding the relative caretaker exception inapt. However, we find substantial evidence to support the court’s decision in this regard.
“Adoption is the permanent plan preferred by the Legislature. [Citation.] At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception exists.” (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.) The relative caretaker exception applies when the relative “is unable or unwilling to adopt the child because of exceptional circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative . . . would be detrimental to the emotional well-being of the child.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(D).)
As R. points out, the exception was amended effective January 1, 2008 to delete the exceptional circumstances requirement. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) However, there is nothing in the amendment indicating the Legislature intended it to be applied retroactively. Therefore, as R. essentially concedes, the amendment does not apply to this case. (See In re Raymond E. (2002) 97 Cal.App.4th 613.)
In determining whether the trial court erred in finding this exception inapt, we apply the substantial evidence test. (In re Xavier G., supra, 157 Cal.App.4th at p. 213.) Under that test, we must decide “whether there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing all legitimate inferences to uphold the lower court’s ruling. [Citation.]” (Ibid.)
R. argues Della was unwilling to adopt Michael, but that’s not what Della said. While she made it clear she does not want to adopt Michael, she said she would do so — “no matter what” — in order to keep him in the family. In other words, she preferred not to adopt, but was willing to do so. Della’s preference in this regard is insufficient to invoke the relative caretaker exception. (In re Xavier G., supra, 157 Cal.App.4th at p. 214.) Indeed, a caretaker’s preference not to adopt is generally considered irrelevant at the permanent placement stage, where the court’s task is to select a plan that is in the best interests of the child. (Ibid.; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298; In re Jose V. (1996) 50 Cal.App.4th 1792, 1801; but see In re Fernando M. (2006) 138 Cal.App.4th 529 [caretaker’s preference regarding adoption may be relevant to the extent it bears on the child’s best interests].)
R. argues that to the extent Della was “willing” to adopt, such willingness was the product of coercion by social services. R.’s social workers did press Della on the issue of adoption, but that’s because they needed to know whether they could count on her as a prospective adoptive parent. They also had a responsibility to keep Della informed about possible placements for Michael. Telling her he would be adopted by another family if she didn’t adopt him was not so much a threat as an accurate assessment of young Michael’s situation. It does not appear that the social workers’ statements were intended to convey the inappropriate suggestion Michael would be harmed if Della did not adopt him. (Compare In re Fernando M., supra, 138 Cal.App.4th at p. 538.)
Even if we were to assume Della was unwilling to adopt, the relative caretaker exception still would not apply for lack of exceptional circumstances. In arguing otherwise, R. relies on In re Fernando M., supra. However, in that case the court’s finding of exceptional circumstances was based on considerations absent here. For one, Fernando was living with siblings who were not dependents of the juvenile court. Thus, if Fernando were adopted by another family, he “no longer would share daily interactions with his siblings.” (Id. at p. 537.) Secondly, the relative caretaker’s husband was opposed to adoption. That meant a spousal waiver would be required, which “would invade the private realm of [the caretaker’s] marriage.” (Ibid.)
Della is not married, so that is not an issue here. And although she has a son who gets along with young Michael, he is much older than Michael, and he is not Michael’s sibling. Michael does have a sibling in his half brother Andrew. But Andrew is in the custody of his father, not Della. While he often resides with Annie, he and Michael do not have a long history of “shared daily interactions,” like the siblings in Fernando M. The circumstances presented here are simply not the same as in that case.
Della’s feelings about adoption were shaped by more commonplace considerations: She wants to be Michael’s grandma, not his mother; she wants to keep the family dynamics in place; she’s embarrassed about the prospect of having to adopt her daughter’s child; and she doesn’t want to deter R. from cleaning up her act. We’d be surprised to come across a relative caretaker who did not share at least some of these concerns. While entirely understandable, they do not constitute “exceptional” circumstances warranting application of the relative caretaker exception. The court’s finding in this regard is supported by substantial evidence, and therefore we have no occasion to disturb it.
II
R. also contends the so-called “benefit” exception to termination applies. Again, we disagree.
The benefit exception applies if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The relationship must “promote[] 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 Autumn H. (1994) 27 Cal.App.4th 567, 575.) In this regard, it is important to remember, “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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.” (Ibid.) The attachment must be so strong that the child “would be greatly harmed” if it were severed. (Ibid.)
There can be little doubt R. visited Michael regularly when she was not in custody. Indeed, respondent conceded as much in the trial court. Equally apparent is that Michael enjoyed R.’s visits and that he is somewhat bonded to her. However, the bond is not so strong that Michael misses her in his daily life. While he cried when her visits were over, the following day he displayed no signs of grief or discomfort from R.’s absence. That’s probably because Della and Annie have done such a good job caring and providing for him. Since they have looked after Michael since his early postnatal problems, it is little wonder he calls them “mommy.” He calls R. that name too, but the evidence indicates his attachment to her is not so strong as to outweigh the benefit he would receive from being adopted by Della or some other family. Certainly the trial court was justified in coming to that conclusion and R.’s case is not strong enough for us to be able to say he erred.
The trial court’s determination to that effect is supported by substantial evidence. Therefore, the court did not err in terminating R.’s parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.