Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JV05228, JV05229, JV05230.
CANTIL-SAKAUYE, J.
T. O. (appellant), the mother of M. W., C. W. and L. W. (the minors), appeals from the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the juvenile court erred by failing to find an exception to adoption based on a beneficial parental relationship with the minors. We shall affirm.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, the Yolo County Department of Employment and Social Services (the Department) filed petitions concerning M. W., C. W. and L. W. (ages 12 years, nearly 10 years, and two and one-half years, respectively), which, as later amended, alleged unsafe conditions in the home, drug use by appellant and the minors’ father, as well as previous domestic violence between them. The amended allegations in the petition were sustained.
Initially, the minors were placed with appellant, but they were removed before the dispositional hearing when she failed to enroll in treatment and was arrested for possession of methamphetamine. At the dispositional hearing, reunification services were ordered. The minors were placed with their paternal aunt and uncle.
The parents completed substance abuse treatment and, initially, complied with their case plans. However, they eventually stopped participating in services and did not maintain regular contact with the social worker. By July 2006, the Department was recommending that services be terminated, as neither appellant nor the minors’ father had maintained contact with the social worker, although appellant continued to visit the minors in the home of the aunt. Nonetheless, at the review hearing, the juvenile court ordered additional services.
By the next review hearing, the social worker was still recommending termination of services. Appellant was having unsupervised visits with the minors but otherwise had not complied with her case plan. She was on a waiting list for transitional housing, but the minors needed to be placed with her three days a week in order to obtain this housing. The juvenile court ordered that appellant would be allowed three overnight visits per week so she could qualify for housing, and the matters were continued for an 18-month review hearing.
Appellant obtained transitional housing, and the 18-month review hearing was continued. At a hearing in May 2007, the minors were placed with appellant with a family maintenance plan, and services for the minors’ father were terminated.
In November 2007, a supplemental petition was filed seeking to remove the minors from appellant and place them back with the aunt and uncle because appellant had been evicted from transitional housing “due to compliance issues.” Appellant had been leaving the minors with the aunt and uncle during the week and caring for them only on the weekends.
The minors were detained. Between late November 2007 and February 2008, appellant visited the minors only once or twice a month, despite having been informed that she could visit them as often as she wished so long as she maintained a consistent schedule.
Following a contested hearing in April 2008, the juvenile court sustained the allegations in the supplemental petition and continued the matter for a dispositional hearing.
Appellant did not visit the minors at all between early February and late April 2008, although she spoke to M. W. on the telephone. The minors saw her twice during the following month. The minors reported that they loved their mother and did not want to hurt her feelings, but M. W. wanted the court to know they were fine where they were and C. W. said he really wanted to stay with his aunt and uncle.
At the dispositional hearing in June 2008, the juvenile court declined to order further reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors.
According to the social worker’s report for the section 366.26 hearing, the aunt and uncle, with whom the minors had principally resided for over three years, wanted to adopt the minors, and the minors all expressed a desire to be adopted by them. The aunt and uncle intended to schedule informal, supervised visits with the minors’ parents, although they did not wish to enter into a formal post-adoption contact agreement with them.
Meanwhile, as of mid-October 2008, it had been three months since appellant had visited the minors.
The minors’ testimony was taken prior to the section 366.26 hearing. L. W., now six years old, testified he had lived with his aunt and uncle “as long as [he could] remember” and wanted to stay there. He stated he did not see appellant very often but he liked seeing her, would like to see her every day and would feel sad if he could not see her for a long time.
C. W., who was now 13 years old, testified that the minors saw appellant approximately three times a month and he would like to see her more often. However, he wanted to be adopted by his aunt and uncle because he felt it was “a better place for [him] to live” and he did not “want to go through all that stuff again,” like not getting to school on time and “what happened when they took me away.” C. W. testified that he did not want to live with appellant even if she got “her act together,” reiterating that he wanted to “get adopted from” appellant and live with his aunt and uncle. Although C. W. stated that he would not want to be adopted if it meant he would never see appellant again, his aunt said she would let them see their parents.
M. W., now age 15, testified that she wanted to stay with her aunt and uncle and she felt that adoption would be the best way for them to remain there because if she was adopted, “all this (referring to the court proceedings) will be done and over with.” M. W. testified: “I want to be adopted because I just think it would be better off with me and my brothers, and it’s more stable, and I’d, also, be able to see my mom, too.” However, she would not want to be adopted if she could not see appellant.
Donald R. Siggins, a clinical and forensic psychologist, conducted a bonding assessment prior to the section 366.26 hearing. Dr. Siggins found C. W. and M. W. to be “well bonded and attached to” appellant. He believed that “completely severing the bond between [appellant] and [the minors] would generate a detrimental emotional disturbance which, more than likely, would require professional intervention” and would result in “emotional disturbance and attachment issues” being “acted out in school and in the adoptive household.” He felt that, if the status quo could “be maintained in any form of permanent placement,” this detriment could be avoided. Dr. Siggins found that L. W. was not as closely bonded with appellant as his older siblings and was “not likely to act out as much” if the bond were severed.
According to an addendum report, C. W. and M. W. did not feel the bonding assessment accurately expressed their feelings about being adopted. They felt the fact that their aunt and uncle would permit them to have contact with appellant after the adoption should be taken into consideration. They believed “it was unfair to say that they should not be able to be adopted just because they still want to see” appellant.
A second bonding assessment was conducted by Mara Newbart, a licensed clinical social worker. Both C. W. and M. W. told Newbart they wanted to be adopted. C. W. viewed his aunt and uncle as his own parents, and M. W. loved them and felt they had grown to become a family. Newbart opined that the minors’ bonding with the aunt and uncle was “incomplete because they do not feel secure” as a result of the lack of permanence in their placement. She felt that “continu[ing] the status quo would continue to keep the children in a constant state of anxiety about their living situation.” She concluded that, if the minors did “not obtain greater security in their lives, they could be at future risk of emotional and social maladjustment.”
Newbart also interviewed the minors’ aunt, who felt it would be detrimental for the minors not to have contact with appellant. She reported that, although the minors’ uncle was not willing to sign a post-adoption contact agreement, he would allow the minors to continue to have visits with appellant.
At the section 366.26 hearing, the social worker testified that the permanent plan was changed from guardianship to adoption because the minors expressed a preference to be adopted after they learned that, with a guardianship, appellant could go back to court and seek to have them returned to her. The minors were worried about returning to appellant’s care and “things being the way that they were before they were taken.” This “heavily weigh[ed]” into the social worker’s recommendation for adoption. She testified that, in her opinion, the importance of permanence for the minors outweighed the benefit to them of continued contact with their parents. The minors understood that there was no legal guarantee they would be able to see their parents if they were adopted, but they still wanted to be adopted and were confident that their aunt and uncle would permit them to see their parents. The social worker noted there had been gaps as long as three months in appellant’s visitation with the minors, and that the minors did not exhibit any negative reactions to not seeing appellant for this period of time.
Both bonding evaluators testified at the hearing.
Dr. Siggins stated he believed that severing the minors’ bonds with appellant “would reproduce a detriment to” them. He felt the minors would have “a very strong ambivalent reaction,” and the two older minors would likely rebel once they reached later adolescence. Dr. Siggins did not consider which permanent plan would best suit the minors’ needs, but he felt that maintaining “the status quo,” with the minors seeing appellant once or twice a month, would be sufficient for them. When asked whether there would be any benefit to the minors from adoption if this required severing their relationship with appellant, Dr. Siggins replied: “[T]here would be a lot of benefits beyond the detriment that would be created, but... the fact is it would be detrimental.” He testified he “would be put into a position to try to discern which particular hurt would devastate [the minors] more” if he were to offer an opinion as to whether the detriment of severing ties with appellant would outweigh the benefit of adoption for the minors.
Newbart testified she recommended a permanent plan of adoption for the minors because a guardianship “would not create the sense of permanency that they need in order to... be more relaxed, less anxious, about their future.” She explained that the minors “all seemed very anxious about their permanence, their situation at the moment, whether or not they’d be removed again, what’s going to happen.” Newbart acknowledged it would be detrimental for the minors if they no longer had contact with appellant, but it was her opinion it would be more detrimental for them to be deprived of permanency and a sense of security, and to not be able to complete their attachment to their aunt and uncle.
The juvenile court noted that the minors wanted permanence in their lives but also wanted to continue to see their parents, and framed the issue before it as “which [of these interests] is paramount.” The court observed that appellant had not maintained regular visitation and that the minors had “been bounced around a bit.” It concluded that, although the minors would benefit from continuing the relationship with appellant, this did not “trump[] the need for permanence,” citing the testimony of Dr. Siggins “that adoption would have benefits beyond a detriment to the minors.” Accordingly, the court terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
I.
Appellant asserts that the juvenile court erred by failing to find an exception to adoption based on her beneficial relationship with the minors. We disagree.
At a section 366.26 hearing, if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order a permanent plan of adoption unless “the court finds a compelling reason for determining that termination would be detrimental” due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) One such exception applies when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subdivision (c)(1)(B)(i).)
However, “a parent may not claim entitlement to the [beneficial parental relationship] exception... simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child 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 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.” (In re Autumn H. (1994)27 Cal.App.4th 567, 575.)
The parent has the burden of proving that termination of parental rights would be detrimental to the child. (Rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adopti[on].” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D., supra, 78 Cal.App.4th at p. 1342 [applying abuse of discretion standard].) “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.” (In re Autumn H., supra, at p. 576.)
Turning to the present matter, we conclude substantial evidence supports the juvenile court’s determination that the exception to adoption did not apply. Initially, we note that appellant’s inconsistent visitation alone was a sufficient basis for rejecting the exception. Appellant’s assertion that, “except for a claimed brief period from March to June 2008, [she] faithfully visited the children,” is belied by the evidence. After the minors’ second detention in November 2007, appellant initially visited the minors only once or twice a month until February 2008, when she stopped visiting them all together through late April 2008. As of mid-October, appellant again had failed to visit the minors for a three-month period. Such evidence supports the conclusion that appellant did not “maintain[] regular visitation and contact” with the minors as required for the exception to apply. (§ 366.26, subd. (c)(1)(B)(i).)
Furthermore, the minors expressed both that they wanted to be adopted and that they wanted to maintain contact with appellant, goals that were mutually exclusive in a legal sense. In contrast to appellant’s assertion, the minors’ desire to be adopted was not based solely on their wish “to rid their lives of social services,” but also was based on wanting to remove the possibility that they could be returned to appellant’s care sometime in the future. The minors’ concern in this regard reflects they understood that a guardianship would leave the door open for appellant to regain custody of them in the future.
There was no question the minors would benefit from maintaining their bond with appellant, but there was also compelling evidence that they wanted and needed the security and stability that only adoption could assure them. The juvenile court could not fashion an order that would assure both of these objectives, yet denying the minors either of them would result in some detriment to them. Under such circumstances, the court was required to weigh the benefit to the minors of insuring that their contact with appellant would be preserved against the benefits they would gain from being in a permanent adoptive home. The court engaged in this process, concluding that the minors’ needs for permanence and stability outweighed the importance of maintaining a bond with appellant, and there is substantial evidence to support this conclusion.
Appellant asserts that the juvenile court misinterpreted Dr. Siggins’s testimony when making its ruling. When Dr. Siggins was asked whether there would be any benefit to the minors if they were adopted but their relationship with appellant was severed, he replied: “[T]here would be a lot of benefits beyond the detriment that would be created, but... the fact is it would be detrimental.” The testimony attributed by the court to Dr. Siggins was “that adoption would have benefits beyond a detriment to the minors.” This is nearly a verbatim paraphrase of the witness’s testimony, and there is nothing in the record to indicate that the court misinterpreted it.
Accordingly, we conclude substantial evidence supports the juvenile court’s determination that the exception to adoption in section 366.26, subdivision (c)(1)(B)(i), did not apply.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.