Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J230733. J230734, Barbara A. Buchholz, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
INTRODUCTION
Na.H., mother of two-year-old E.H. and one-year-old N.H., appeals from a judgment terminating her parental rights as to both children. The two children were removed when baby N.H. was punched twice in the head by her father when she would not stop crying, causing a displaced skull fracture, subdural hematomas, edema in the frontal lobe and left side of the brain, and retinal hemorrhaging. After the parents submitted to the juvenile court’s jurisdiction, the court denied reunification services and scheduled a hearing to select and implement a permanent plan of adoption. Mother appealed following the judgment severing her parental relationship to the children.
Father has not appealed.
On appeal, mother asserts that the juvenile court erred in freeing the children for adoption because of a beneficial parent-child relationship between her and the children, such that it would be detrimental to terminate parental rights. We affirm.
BACKGROUND
Prior to the incident that brought the family to the attention of the Department of Children and Family Services (CFS), mother and father lived in a room at the paternal grandparents’ residence, which was detached from the main residence. The parents used the bathroom, shower and kitchen facilities of the main residence, and the only time mother left the children in father’s care was when she showered, used the bathroom, or fixed bottles for the children. The parents were cohabiting when E.H. was born and father’s name is on the birth certificate. Paternity of N.H. was in question because the parents separated for several months subsequent to the birth of E.H. due to domestic violence, during which time mother had a relationship with another man, while still sleeping with father. However, she moved back in with father when she was pregnant with N.H, and father’s name is on the birth certificate.
On January 2, 2010, in the evening, mother went to the main residence to use the restroom or get a bottle for the baby, leaving father alone with the children. When she returned, N.H., who was then two months old, was crying in an unusual manner, and vomited, but father denied doing anything to the baby. The baby’s condition got worse, and on January 3, 2010, she began to have seizure-like symptoms, so the parents took her to a medical center for evaluation.
On January 4, 2010, infant N.H. was transferred to a pediatric intensive care unit with diagnoses of bilateral subdural hematomas, a skull fracture extending from the frontal area of the skull to the back of the skull, bruising to the left ear and occipital area, and substantial edema in the left side of the brain as well as in the frontal lobe. The head injury may have resulted in a stroke, indicated by decreased movement on the child’s left side. Retinal hemorrhaging was later noted, and the results of scans showed that large parts of the baby’s brain were dying. On January 5, 2010, father confessed that he struck the baby, N.H., twice on the left side of the head with a closed fist and shook her forcefully because she would not “shut up.”
A petition was filed alleging that N.H. came within the definition of a dependent child under Welfare and Institutions Code section 300, subdivisions (a) (physical abuse), (b) (mother’s failure to protect; father’s inability to provide adequate care and supervision due to drug abuse and history of domestic violence; mother’s inability to provide adequate care due to mother’s history of being a victim of domestic violence), (e) (infliction of severe physical abuse by father; mother failed to protect); and (g) father’s inability to arrange the care of child due to incarceration). A sibling petition was filed respecting 17-month-old E.H., alleging he was a dependent child under section 300, subdivisions (b), (j), and (g), due to the abuse of his baby sister that placed him at risk.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On February 26, 2010, both parents waived their right to a trial on jurisdictional issues, making pro forma objections to jurisdiction but offering no affirmative evidence. The trial court made true findings on all but one allegation of the amended petition. Prior to the disposition hearing, mother visited E.H. twice weekly, and she visited N.H. daily in the hospital, spending most of the day and night there to be with the child. At the disposition hearing, the court declared both N.H. and E.H. dependents of the court, removed custody from the parents, and denied family reunification services, setting a hearing for the selection and implementation of a permanent plan for the children. (§ 366.26.) The court maintained E.H. in his foster home, and maintained N.H. in a medically fragile foster home. Mother was granted weekly visitation, but father was denied visits.
During weekly visits with N.H., mother participated in feeding, holding and rocking the baby. Mother also maintained weekly visits with E.H.; after visits with E.H., he had difficulty separating from mother. On July 9, 2010, mother filed a petition seeking to modify the prior order (§ 388), requesting reunification services. In support of the petition, mother demonstrated that, on her own initiative, she had participated in four separate programs to address domestic violence issues and parenting. She had also obtained employment. Mother continued to visit consistently and interacted appropriately. E.H. displayed an emotional connection to his mother. He also had frequent tantrums that were initially attributed to mother’s visits, but were later believed to be related to frustration over difficulty he had communicating.
In August 2010, CFS placed E.H. and N.H. with prospective adoptive parents from Fresno, California, who were interested in taking both. Mother continued to visit the children weekly after the placement, in Fresno. N.H. showed no signs of distress or separation anxiety at the end of visits. On August 27, 2010, at the hearing on mother’s petition to modify the prior order (§ 388), mother withdrew her petition.
In September 2010, the adoption assessment reported that E.H. had less tantrums and he was adjusting well to his new placement. He was comfortable with his prospective adoptive parents. The adoption assessment of N.H. indicated she also was doing well in this placement, although she had global developmental delays due to her injury. While N.H. seemed comfortable with mother at visits, her condition made it difficult to tell if she could discern one caretaker from another.
In an addendum to the adoption assessments filed in November 2010, the social worker reported that E.H. may have a hearing problem with speech and language delays. He now referred to the prospective adoptive parents as “ma ma” and “da da” and his tantrums had improved. He continued to have weekly visits with his mother and exhibited defiant behavior for two or three days afterward. However, at the visit on September 8, 2010, E.H. began to cry and tried to leave the visit early; after the visit, he ran to the prospective adoptive parents. The following week, he did not react badly with mother, allowing her to hold him, but after the visit, he ran to the prospective adoptive father with hugs and kisses. Although he knew who his mother is, he was bonding well with his sister, N.H., and his prospective adoptive parents.
The prospective adoptive parents were diligent in meeting N.H.’s needs and N.H. was comfortable with them. A neurologist informed the prospective adoptive parents that her condition was unlikely to change, but this did not diminish their desire to adopt. In November 2010, the social worker noted N.H. experienced increased seizure activity. Her retinal hemorrhages were resolved, but there was partial optic atrophy in the right eye, and cortical visual impairment in both eyes. She was also diagnosed with cerebral palsy. She was learning to sit without support and to pull herself up to stand. At visits, N.H. seemed indifferent to her mother.
The selection and implementation hearing was held on December 1, 2010. Through counsel, mother objected to the termination of parental rights, and indicated an intention to proceed by way of argument only. She presented no affirmative evidence and did not testify on her own behalf, but her counsel argued that she had been visiting weekly since removal and during the visits they have developed a bond, such that they, “at least, recognize her.” The juvenile court found the children were adoptable and terminated parental rights. On January 7, 2011, mother timely appealed.
DISCUSSION
On appeal, mother argues that the juvenile court erred in finding that the beneficial parent-child relationship exception to adoption did not apply. We disagree.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on the adoption assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless one of several statutory exceptions applies. Adoption, where possible, is the permanent plan preferred by the Legislature. (In re Mary G. (2007) 151 Cal.App.4th 184, 206-207, quoting from In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If the court finds a child cannot be returned to the parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of six specific exceptions. (Mary G., at pp. 206-207.)
Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26. (In re C.B. (2010) 190 Cal.App.4th 102, 122.) The statutory exceptions merely permit the court, in exceptional circumstances (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348-1349), to choose an option other than the norm, which remains adoption. (C.B., at p. 122.) We review the court’s factual findings for substantial evidence. (Id. at p. 123.) In doing so, we review the entire record in the light most favorable to the court’s determinations, drawing all reasonable inferences from the evidence to support the court’s findings and orders. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
One such exception applies when the court finds a compelling reason for determining that termination would be detrimental to the child because the parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship” refers to a “parent-child” relationship that “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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) To meet the exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits; the parent must show that he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.) However, to constitute a “parental role” it is not necessary for a parent to prove day-to-day contact and interaction. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Although it is not necessary for a parent to prove that the child has a “primary attachment” to the parent (In re S.B. (2008) 164 Cal.App.4th 289, 299), a termination order is not subjected to reversal whenever there is “some measure of benefit” in continued contact between parent and child. (In re C.F. (2011) 193 Cal.App.4th 549, 558, citing In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (S.B., at pp. 298, 300-301.) Here, there is no serious dispute that mother maintained regular visitation and contact with the children. The issue we must decide is whether there was a significant relationship between mother and children, the severance of which would be detrimental to the children.
As to E.H., visitation during the initial months following the declaration of dependency showed he was strongly attached to mother. However, in more recent months leading up to the selection and implementation hearing, E.H. demonstrated he was developing a strong attachment to his prospective adoptive parents, running to them for hugs and kisses at the end of his weekly visits with his mother. While his tantrums were initially attributed to separation anxiety, it was later determined that his episodic acting-out behavior was likely related to his inability to communicate with others. There was substantial evidence presented to the court that E.H. was adoptable, and mother did not meet her burden of proof that termination of parental rights would be detrimental to E.H.
As to N.H., despite mother’s consistent visits, there was no indication of any relationship at all between mother and daughter. While N.H. seemed comfortable with mother, she was also comfortable with the prospective adoptive parents. Although N.H.’s medical condition was such that she was deemed adoptable because there was a family willing to adopt her (see In re Jose C. (2010) 188 Cal.App.4th 147, 158, citing In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650), mother did not meet her burden of proof that termination of parental rights would be detrimental to N.H.
Although a parent is entitled to rely on all reports filed by CFS over the course of the dependency, older reports do not fulfill mother’s burden of proving the existence of a significant parent-child relationship at the time of the hearing at which parental rights may be terminated. Absent a showing that a beneficial relationship between parent and children exists at the time of the hearing, there is substantial evidence to support the juvenile court’s findings that the children were adoptable and that terminating parental rights would not be detrimental.
DISPOSITION
The judgment is affirmed.
We concur: McKinster, J., King, J.