Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Nos. DP016735, DP017438 Cheryl L. Leininger, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant M.S.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant T.S.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
RYLAARSDAM, ACTING P. J.
Father M.S. and mother T.S. appeal from the order terminating their parental rights to now almost five-year-old N.S. (daughter) and two-and-a-half-year-old N.S. (son) on the grounds the court erred in refusing to apply the benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) (all further statutory references are to this code). Father contends both of the statutory requirements were met: he regularly visited and the children would benefit from him maintaining parental rights. Thus, he argues, the court should have selected a legal guardianship instead of adoption.
Mother does not advance any arguments on her own behalf but instead joins in father’s and asserts that her parental rights should not be terminated if his are not.
Parents did not satisfy the elements of the benefit exception and we affirm.
FACTS
In March 2008 Orange County Social Services Agency (SSA) took custody of then two-year-old daughter after she was found roaming the neighborhood unattended for close to an hour. The petition alleged police found marijuana and drug paraphernalia in the house in which the family had lived for three months. Prior to that they had been homeless since daughter was born. Father had a history of substance abuse and arrests and convictions as a result. Mother, who suffered from paranoid schizophrenia and was off her medication due to her pregnancy, was demonstrating “bizarre and destructive” behavior. The family had had contact with social service agencies in three counties in the two years since daughter’s birth. In August 2008, after son was born, he was detained as well. Shortly thereafter the children were placed with their aunt.
During the reunification period parents only “minimal[ly]” complied with their case plans and although they signed the plans for the six-month review hearing, by the 12-month review hearing they refused to do so. Father testified he had not used illegal drugs, but both parents had several positive drug tests; he did not believe he needed treatment. Parents missed enough sessions with their therapists to be terminated and even after reinstatement missed appointments. The therapist did not believe father was deriving any benefit from services provided. During therapy he was “very accusatory” and thought there “was a ‘conspiracy against him’” “to take his children from him.”
Visits with the children were inconsistent. The 6-month review hearing report stated for a 5-month period father missed 12 visits. The addendum report showed that in the next month he visited regularly, but brought unhealthy snacks. Additionally he was telling daughter that she would be going home with him soon. Between the time of the 6-month and the 12-month review hearings parents missed some visits, sometimes with valid excuses and other times not, and were often late to visits. Despite instructions to the contrary they continued to bring unhealthy food. Father was inconsistent disciplining the children. At a few visits either the aunt or the monitor smelled alcohol on parents or the parents seemed to be drunk.
During this period father was generally “appropriate” during the visits and paid attention to the children. The children seemed to enjoy themselves. He played with them and was affectionate and gave them encouragement. At the 12-month review hearing the court terminated services and set a permanency hearing.
SSA reports for the permanency hearing also showed many missed visits. During four months there were eight visits but father failed to confirm another eight. The children enjoyed the visits with him although not initially pleased to be there and the children were happy to see their aunt when the visits were over. At the permanency hearing the social worker testified generally to the same facts about the inconsistency of the visits. In addition, she testified daughter called father “‘Daddy’” and the two were affectionate. She thought “there might be some benefit” to daughter “from her contact with... father.” Father did not always act in a parental fashion, sometimes not supervising the children. At three visits she smelled alcohol on father’s breath. The monitor’s testimony was similar to the social worker’s.
Father testified only three missed visits were his fault; the rest were due to other circumstances. He also was not drinking two to four hours before a visit. The children were always happy to be with him and called him “‘Daddy.’” They enjoyed playing together and he and daughter were affectionate. The children were not upset to leave at the end of the visits; daughter was “confused” and son was just tired.
SSA reports showed the children were happy and flourishing with the aunt, with whom they had lived for two years. She wanted to adopt them.
The court determined parents had not satisfied either prong of the benefit exception. It specifically found visits were “inconsistent” and parents had missed more than half of the scheduled visits since the last hearing in April, not counting those where missed visits were “unavoidable, ” which the court was not considering. It also found that, although the visits were usually “appropriate and pleasant” and the children generally seemed to want to visit, they had no problem leaving parents and were happy to see the aunt. There was no evidence the children were upset when visits were missed, and they would suffer no detriment if parental rights were terminated. Even though parents loved them, the children’s best interest was to have a secure, loving environment.
Additional facts are set out in the discussion.
DISCUSSION
“‘After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child’s interest in a “placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]”’” (In re Jason J. (2009) 175 Cal.App.4th 922, 935.) Under section 366.26, subdivision (c)(1), parental rights may be terminated if there is clear and convincing evidence of adoptability, which is the preferred plan (In re Autumn H. (1994) 27 Cal.App.4th 567, 573). An exception to adoption exists where a parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “A beneficial relationship is one 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.’ [Citation.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
Parents have the burden to prove the benefit exception. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) On appeal we look for substantial evidence, viewing it “most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.) Parents did not meet their burden and there is substantial evidence to support the court’s finding the benefit exception did not apply.
Father, who acknowledges he missed some visits, nevertheless argues that he satisfied the visitation requirement. But the evidence shows parents did not consistently visit. The SSA report documented it, both the social worker and the monitor testified to that fact, and the court found it to be true. Father’s testimony that he missed visits only when he had a valid excuse is merely conflicting evidence, which carries no weight on appeal. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.)
The failure to prove the visitation prong renders the benefit exception inapplicable and we could end our discussion here. But the evidence also shows that any benefit the children would derive from a continued relationship with father is outweighed by the benefit of a permanent adoptive home.
To satisfy the other requirement of the statute father must show that his 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.’ [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) There must be “more than frequent and loving contact or pleasant visits. [Citation.]... The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 207, fn. omitted.)
Father focuses on the favorable relationship he has with his children, stressing the positive aspects of his visits. He maintains “the children’s conduct during visits, the manner in which they greeted him, and the affection they displayed... is enough to signify a relationship worth preserving and to demonstrate that the [benefit] exception should have been applied.”
He claims the record shows most of his visits were “appropriate, ” highlighting the portions of the record showing the positive aspects of the visits. But there is contrary evidence, on which the court relied. As set out in the SSA report for the permanency hearing, during three months prior, at the start of the visits the children were reluctant to approach the parents and son often cried when the aunt dropped him off. Daughter was not upset when the visits were over but “often [ran] excitedly to greet the [aunt] at the end of the visit.” Moreover, “‘“[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child....”’ [Citation.]” (In re Teneka W. (1995) 37 Cal.App.4th 721, 728.)
Father’s relationship is more like that of a close relative, which is not sufficient to impede adoption. (See In re Helen W. (2007) 150 Cal.App.4th 71, 81 [despite children calling mother “‘Mom’” and her love for children, nothing showed only she could meet children’s needs]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416, 1419-1420 [pleasant visits and child addressing parent as “mommy” showed relationship was more that of one with family member].)
The reply brief suggests the children’s “absence of emotion” when the visits ended alone did not support the conclusion they had an insufficient bond with father, stating “it is not unlikely” that he “prepared his children for what to expect at the end of the visits... [to] spar[e] them any unnecessary emotional distress.” This vague claim is nothing more than pure speculation by counsel and does not negate the inference, which the trial court adopted, that the children did not have a strong emotional bond to father but treated the visits as they would a fun play date. In a similar vein father asserts that due to their young age, we cannot determine the impact of terminating the parental relationship, and on that basis and because of their “shared... bond” the benefits of adoption do not outweigh a continuing relationship with him. But again, circumstantial evidence shows the lack of such a bond. Moreover, the visits were monitored throughout the proceedings. (In re Jason J., supra, 175 Cal.App.4th at p. 938 [continuing monitored visitation a factor showing no beneficial relationship].)
On the other hand, as SSA reported, the aunt met the children’s emotional and physical needs, spending lots of time with them. She has raised three children and “promot[ed] appropriate development, attachment, and consistency.”
Cases on which father relies, In re Amber M. (2002) 103 Cal.App.4th 681 and In re S.B., supra, 164 Cal.App.4th 289, where the court found the parents had met the burden to prove the benefit exception, do not persuade. In Amber M. a bonding study stated there was a “strong primary bond” between the mother and the child. (In re Amber M., supra, 103 Cal.App.4th at p. 690.) There is no evidence of a bond here except for father’s claims. Likewise, in S.B. there was a bonding study showing an attachment. (In re S.B., supra, 164 Cal.App.4th at p. 295.) Further, there father met every requirement of his plan and the evidence supported a finding of a strong relationship between the father and the child (id. at p. 298), not the case here.
Father asserts that rather than terminating parental rights guardianship is the optimum choice. But guardianship is not in children’s best interest if adoption is available. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1336.) “‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.’ [Citation.]” (In re Jason J., supra, 175 Cal.App.4th at p. 937.)
DISPOSITION
The orders are affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.