Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK 21934. Terry T. Truong, Juvenile Court Referee.
Melissa A Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Denise M. Hippach, Senior Associate County Counsel, for Plaintiff and Respondent.
WOODS, J.
M.E., the mother of minor M.W., appeals from the order terminating her parental rights at a Welfare and Institutions Code section 366.26 hearing. Mother contends the court erred in finding no exception existed to the termination of her parental rights as both the beneficial parent-child and sibling exceptions applied. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Detention
This case came to the attention of the Department of Children and Family Services (the Department) after mother was observed hitting two-year-old M. with a belt in the waiting room of a doctor’s office on October 23, 2006. M. had been behaving like a normal two-year-old, getting out of his seat and running around the office. Mother had no patience with M. and yelled and used physical force to discipline him. When the reporting party intervened, mother became defensive and said, “‘That’s the way I raised my other children. This is his belt any way. I’m tired of all this. I’m tired of being a parent.’”
Following that incident, a social worker (CSW) spoke with mother, who confirmed she had hit M. Mother admitted she had used cocaine in the past, including when she was pregnant with M. Mother’s drug test came back positive for cocaine. Mother did not know the whereabouts of M.’s father.
Mother had a prior child welfare history with the Department in which her two other children were removed from her care due to her drug abuse. Mother’s parental rights were terminated for one child and she lost custody of the other child to that child’s father.
On November 13, the Department filed a section 300 petition on behalf of M. At the detention hearing, the court found a prima facie case and ordered monitored visits for mother to occur a minimum of four hours per week.
II. Jurisdiction and Disposition
In its report, the Department noted mother minimized the physical abuse and claimed that this time she only hit M. one time and, although she had hit him in the past, she had never hurt him. Mother admitted she used drugs in the past but denied current use of cocaine. Mother could not explain her recent positive test for cocaine and claimed someone must have tainted her test.
At the hearing, the court sustained the amended petition that mother had physically abused M., had a history of drug use and was a current user of cocaine. The court found mother had not made reasonable efforts to address her substance abuse problem despite having had many chances to do so. The court denied mother reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The court continued its prior visitation order and encouraged mother to enroll in an inpatient drug rehabilitation program to show she was serious about reunifying with M.
III. Permanency Planning
M. did very well in foster care. M.’s caregiver reported that when he first came to live with her, he would hoard his food and swallow it whole. After a few months, M. realized there was always more food to eat, and he stopped that behavior.
M.’s first caregiver did not want to adopt him. Initially, she said she did not want to adopt because she did not want to take him away from mother; subsequently, she divulged she did not want to adopt because she had problems with mother over visits.
A new adoptive home was found, and M. was placed with prospective adoptive parent H. on August 25, 2008. M. appeared attached to H. H. said M. was a “‘perfect fit’” within her family, and she was committed to providing him with a permanent home. H. was open to maintaining a relationship with M.’s birth family.
Even though mother was not given reunification services, the Department referred her for random drug testing. Mother only showed up for two tests, both of which were positive for cocaine. Mother was a no-show for the remaining seven tests. The Department provided mother with a bus pass and bus tokens, but she gave excuses for why she did not test and reiterated her belief that her testing samples would be tainted.
For the most part, mother visited M. once a week. Those visits were monitored by M.’s caregiver, who reported the visits went well and M. recognized mother. Mother played and talked to M., and he enjoyed the visits. Mother was inconsistent with visits, and once she went three weeks without seeing M. The caregiver also reported mother let M. do whatever he wanted to do during the visits.
On occasion, mother brought M.’s other siblings to the visits. M. enjoyed his visits with his sister T. and recognized her as family. In April 2008, mother told the CSW that M.’s adult sister T. wanted to care for M., and she wanted M. to be adopted by her family.
The Department assessed placing M. with T., but determined it was not an appropriate placement. T. was 19 years old, expecting her own child, unemployed, and did not have a stable home environment, having already moved several times. M. did not have a long standing relationship with his sister. M. was in a stable placement.
After 18 months of delays due to problems locating M.’s father, obtaining paternity tests results, and finalizing M.’s adoptive home, the court held the section 366.26 hearing. Mother’s counsel asked the court not to terminate her parental rights, arguing the parental and sibling exceptions applied based on the visits M. had with mother and his sister T. M.’s counsel and the Department argued the exceptions did not apply. The court found M. was adoptable, no exception applied, and terminated parental rights.
Mother filed a timely notice of appeal from the order terminating her parental rights.
DISCUSSION
I. Substantial evidence supports the finding the beneficial parent-child exception did not apply.
Mother contends the court erred in finding the section 366.26, subdivision(c)(1)(B)(i) exception did not apply. Mother had the burden of showing the exception applied. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) We review the court’s finding for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Id., at p. 576.)
A 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. [¶] 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. The relationship arises from day-to-day interaction, companionship and shared experiences. 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.” (Citations omitted.) (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Although day-to-day contact is not mandated (In re Casey D. (1999) 70 Cal.App.4th 38, 51), more than frequent and loving contact is required. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (Fn. omitted.) (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
Mother argues this exception applies because she parented M. for two years prior to his becoming a dependent, she maintained regular and consistent visits, she was affectionate and appropriate with M., she had a positive relationship with M. and M. recognized her as his mother.
At the time mother’s parental rights were terminated, M. had been in the system for over two years. For the most part, mother visited regularly and played with and talked to M.; however, there is no indication in the record that the nature of their relationship was very parental, i.e., mother took care of M.’s basic needs. (Compare In re Brandon C., supra, 71 Cal.App.4th at pp. 1534-1538.) The prospective adoptive parent noted mother let M. do whatever he wanted during the visits. Mother suggests the first caregiver did not want to adopt M. because of his strong relationship with mother. However, the caregiver later divulged she did not want to adopt M. because she had problems with mother over visits.
There was no evidence M. would be harmed, much less greatly harmed, if their bond was severed. (Compare In re S.B. (2008) 164 Cal.App.4th 289, 295-296, 298-301 [where the father had fully complied with the case plan and there was expert testimony of potential harm to the child should her relationship with her father be terminated]; In re Amber M., supra, 103 Cal.App.4th at pp. 689-691 [testimony from the psychologist who conducted a bonding study, therapists and the social worker supported finding that maintaining the parent-child relationship outweighed adoption]; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1209 [the court concluded there was sufficient evidence to support a beneficial relationship based on expert testimony regarding the positive effect of the interaction between a boy and his mother as well as other facts].)
Mother argues her contact with M. must be considered in the context of the visits she was permitted to have. However, despite the extended time for the dependency, mother had not progressed to (or even asked for) unmonitored visits or overnight or extended visits. (See In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover, mother had not addressed her drug problem and gave no indication she desired to reunify with M. only that she wanted her family to adopt him; the only family member suggested was mother’s 19-year-old, pregnant, unemployed daughter who had no stable home. “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
II. Substantial evidence supports the finding the sibling exception did not apply.
Mother contends the court erred in finding the section 366.26, subdivision (c)(1)(B)(v) exception did not apply. This finding is also reviewed for substantial evidence. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) The burden of demonstrating the exception applied was on mother. (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
This exception “provides that if the parent makes a sufficient evidentiary showing, the court must consider the nature and extent of the sibling relationship, ‘including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.’” (Citation omitted.) (In re L. Y. L., supra, 101 Cal.App.4th at p. 951.)
The court further explained: “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.... [¶] Moreover, even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (Fn. omitted.) (In re L. Y. L., supra, 101 Cal.App.4th at pp. 952-953.)
Mother posits the termination of her parental rights would substantially interfere with M.’s relationship with his sister. The record shows M. did not have a significant sibling relationship with his sister other than after he was declared a dependent, she visited him a few times. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1014 “[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount.”].) Furthermore, mother adduced no evidence M. would suffer any detriment if separated from his sister. (See In re Megan S., supra, 104 Cal.App.4th at pp. 251-252.)
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J. JACKSON, J.