Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J98-01302
Haerle, Acting P.J.
I. INTRODUCTION
M.G., the mother of R.C. (Mother), appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. Mother argues that the court erred when it found that the beneficial relationship exception set out in former section 366.26, subd. (c)(1)(A) (now § 366.26, subdivision (c)(1)(B)(i)), which overcomes the statutory presumption in favor of adoption, did not apply. We disagree and, accordingly, affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
R.C. was born in 1996 and was removed from Mother’s care two years later, in 1998. She was placed in long term foster care with her maternal grandmother, who also cares for R.C.’s two older sisters, whom grandmother has adopted.
Reunification services provided to Mother after R.C. was removed from her care were terminated on July 6, 2000. In 2007, the juvenile court terminated Mother’s parental rights. We reversed that order, and remanded in order to ensure that the Contra Costa County Children and Family Services Bureau (Bureau) comply with the Indian Child Welfare Act. We also remanded for a new hearing under section 366.26.
In a Status Review Report filed February 21, 2008, the Bureau stated that R.C., who was at that time almost twelve years old, was developmentally delayed and functioned “emotionally... at the level of a seven year old” with fine motor skills “on the level of a nine year old.” R.C. had been diagnosed a year before the hearing with scoliosis and was now wearing a brace.
The Bureau also reported that R.C. visited with Mother once a month for an overnight visit, generally on the weekend. The prior Christmas, R.C. spent one week with Mother and, during the summer, spent two weeks with her. The report indicated that R.C. “is in agreement with being adopted by her grandmother as long as she is able to continue visiting with her mother and everything stays the same.”
The Report indicated that R.C. “is doing well in her grandmother’s care. Her grandmother is a strong advocate for [R.C.] and obtains services for [R.C.]” The Bureau recommended that the juvenile court set a hearing under section 366.26 to determine the appropriate permanent plan for R.C.
The juvenile court determined that the Bureau had complied with the requirements of the Indian Child Welfare Act.
On October 22, 2008, before the section 366.26 hearing was held, Mother filed a petition under section 388, seeking to have R.C. returned to her care or to reinstate reunification services. Alternatively, Mother argued, “the plan should be legal guardianship.” Mother stated that “[t]he parental bond is significant, and to terminate the parent child relationship would be detrimental to the minor.” In support of her motion, Mother attached a piece of paper thanking Mother for “registering with USPS,” a “Notice of Rating Eligible,” with the United States Postal Service, a scheduling showing visits Mother had made to a counselor, Mother's school class schedule, a description of a support group for students participating in an academic program an “application eligibility notice,” from the United States Postal Service a “student plan inquiry,” and further information regarding “supported education services.”
The court scheduled a hearing for November 25, 2008, on both Mother’s section 388 petition and on the Bureau’s request for a permanent plan under section 366.26. In its report for this hearing, the Bureau recommended that parental rights be terminated, and the court find adoption to be the appropriate permanent plan for R.C.
The Bureau reported that R.C. visited with her mother for weekend visits twice a month when she was not in school, and monthly when she was. “Who [R.C.] stays with the on the weekend visit depends on how the mother is doing emotionally at that time. [R.C.] will spend one night with her mother and the rest of the weekend with her great aunt.” According to the Bureau, “Visits are short with the mother. When [R.C.] is staying with the mother, the mother often has somewhere else to go and the mother will leave her in the care of the great aunt. [R.C.’s] older sister... Stays at the mother’s house to take care of [R.C.] as the mother frequently has ‘places to go’ and will leave [R.C.] at her apartment. [R.C.] enjoys visiting with and spending time with her mother.”
R.C. told the social worker that she “wants to be adopted by her grandmother because she wants everything to remain the same.” In the Bureau’s opinion, “[e]ven though the mother and [R.C.] share a strong relationship, this relationship does not outweigh the need for permanence for [R.C.] The maternal grandmother has facilitated visits and contact between [R.C.] and her mother. [R.C.] has been in foster care since she was two years old. She is now twelve years old. The mother has received Family Reunification services on two separate occasions during this dependency, as well as Voluntary Family Maintenance services from November 1996 to July 1997. The mother continues to exhibit emotional problems and her circumstances have not changed. The maternal grandmother has stated her strong desire to adopt [R.C.] [R.C.] has stated that she wants to be adopted by her grandmother. She wants to be like her sisters.”
In an addendum report, the Bureau also requested that the court deny Mother’s section 388 petition. The Bureau argued that the fact that Mother “has a potential of being offered employment” by the United States Postal Service, and “is working to improve her employable skills” “does not address her parental skills or her mental health issues.” With regard to Mother’s statement that she consistently attends a support group, the Bureau responded, “mother should be commended for participating in an education program with additional services to help her complete college/vocational education. However, this support group does not address the mother’s ability to parent or the mother’s mental health issues.”
With regard to mother’s statement that “she and [R.C.] are attached as they speak to each other at least every other day on a cell phone that has been provided by the mother” and that R.C. wishes to spend Halloween with Mother, “The mother has provided [R.C.] with a cell phone. According to [R.C.], on at least one occasion the mother called [R. C.] at 1:00 in the morning to see if [R.C.] was asleep. [R.C.] has told this worker that she wants to spend Halloween with her sisters. On-going contact between the mother and [R.C.] is not an indicator as to the mother’s ability to parent the child.”
The Bureau stated in this report that Mother and R.C. “have a relationship that is fostered by the maternal grandmother. The visits and contact between [R.C.] and the mother are not indicative of a parent-child bond. They interact more as sisters. The mother frequently leaves [R.C.] in the care of her maternal great aunt or [R.C.]’s older sister, [S.], as the mother has something else to do. [S.] stays at her mother’s house while [R.C.] is visiting. This is indicative of [R.C.’s] need to be supervised while visiting with the mother and the family’s concern that the mother is not able to provide adequate supervision to [R.C.]”
The Bureau’s assessment was that “[a]lthough the mother is in the midst of improving her employment skills through education, the mother’s ability to parent has not changed or improved. The mother’s mental health issues have not been addressed. Nothing has changed in terms of the mother’s ability to parent since the termination of reunification services on July 6, 2000.”
At the hearing on November 25, 2008, Mother was represented by counsel. However, she did not appear, although she had been ordered to. The court denied the section 388 petition, finding that a change “would not be in the best interest of the child” given the information before it.
With regard to the section 366.26 issues, counsel for R.C. stated that, based on visits with R.C., “this child has expressed a preference for staying with her grandmother and her sisters. She has some bond with her mother, but it’s more in a concept and an idea rather than a reality. [¶] Her grandmother is her mother. So I would encourage the Court to allow her to be adopted, which she has expressly stated she wants to be adopted. [¶] I mean, I’ve never seen this from a child so strongly voiced. ‘Please let my grandmother adopt me,’ were her words.”
Dianne Smith, the social worker who was R.C.’s case carrier, testified. Smith confirmed that R.C. has had monthly visits with Mother throughout the dependency. Mother did not, however, have unsupervised visits. R.C. told Smith that she enjoyed spending time with her mother and that they talked weekly on the phone, that Mother was invited to family gatherings. In addition, “on certain occasions... when mom has had the resources, she has rented a car to see the child.” R.C. wanted continued contact with her Mother and Grandmother was willing to facilitate that. Smith believed R.C. and her Mother “share a strong relationship.” Her opinion that adoption by Grandmother was the correct permanent plan would not change, however, if Grandmother did not allow Mother to have contact with R.C. Smith explained that “[R.C’]s relationship with her sisters is far more important to her than her relationship with her mother.”
According to Smith, R.C. saw Grandmother as her mother. R.C. regards Grandmother and her two siblings as “her primary family.” R.C.’s contact with mother “is just... a visit or... someone who comes and plays with her.”
At the conclusion of the hearing, the court stated “the determining factor here is the permanency for the child and the need for this child to have a permanent, stable, loving home with a person that has been her parent for the last ten years, and mother may drop in and have visits and have a little time with her daughter and -- but they’re all facilitated by the grandmother. The grandmother is the one that makes this happen, and I think that’s great. [¶] But I certainly don’t think that the mother in any way has ever assumed a parental role, and I seldom have a child be this articulate and this strong at age twelve to say she absolutely wants to be adopted. She has made her wishes absolutely clear. I think we would be hard-pressed to go against her wishes when she has good, basic, sound reasons for it.”
The court terminated parental rights, and found that R.C. was adoptable and likely to be adopted.
This timely appeal followed.
III. DISCUSSION
A. Beneficial Relationship Exception
Mother argues that the court erred in terminating her parental rights because she had a continuing beneficial relationship with R.C. under former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)). We disagree.
At the section 366.26 hearing, the court must select and implement a permanent plan for the dependent child. “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Section 366.26, subdivision (c)(1), provides that “[i]f the court determines... it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” An exception is made if the court finds “a compelling reason for determining that termination would be detrimental to the child [because]... [¶] (i)[t]he 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 beneficial relationship exception]; In re Clifton B. (2000) 81 Cal.App.4th 415, 424.) It is the parent’s burden to demonstrate the applicability of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.); Autumn H., supra, 27 Cal.App.4th at p. 574.)
In Autumn H., the court considered the standard a court should use in deciding whether to apply the beneficial relationship exception. The court observed that “[i]nteraction between natural parent and child will always confer some incidental benefit to the child,” but that the exception only applies where 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The parent has the burden of proof that the beneficial relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) Thus, Mother was required to show a “parental bond” in order to overcome the strong legislative preference for adoption as a permanent plan. Emphasizing this point, in 1998 the Legislature revised section 366.26, subdivision (c)(1), “to require the court to find not only that one of the listed circumstances exists, but also that it provide ‘a compelling reason for determining that termination would be detrimental to the child.’ (Stats.1998, ch. 1054, § 36.6.) This amendment... makes it plain that a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.)
We will affirm the trial court’s order if substantial evidence supports the juvenile court’s conclusion that R.C.’s need for a permanent, stable home outweighed any benefit to her from a continued legal relationship with Mother. Factors to be considered in making this determination include “‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs....’” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, quoting Autumn H., supra, 27 Cal.App.4th at p. 576.)
R.C. has not lived with Mother since she was two. At the time of the section 366.26 hearing, she had lived with her grandmother for ten years. Without question, R.C. has a good relationship with Mother, and enjoys her visits with her, visits that have been ongoing throughout R.C.’s life. R.C. and her mother have a “strong relationship” as a result.
Nevertheless, these visits were facilitated by the grandmother, and were never unsupervised. R.C. considered her grandmother to be her mother and her relationship with her sisters was far more important than her relationship with her mother. In R.C’s view, her grandmother and her sisters were her primary family. Mother, in contrast, was described by the social worker as a “visitor”: “someone who comes and plays with her.”
Mother argues, however, that the record contains evidence sufficient to establish the beneficial relationship exception. Mother cites to the record in her prior appeal as well as the record in this appeal in making this argument, and contends that this appeal is part of the record here as well. Regardless of the validity of this argument, Mother had the burden of proof at the hearing on this matter, and was required at that time to make a sufficient showing of a beneficial relationship. In reviewing the question of whether the trial court erred in finding she did not, we look only at the evidence before the court at that hearing.
Nevertheless, we would reach the same conclusion, even were we to look at the evidence proffered by Mother, such as her assertion that she had consistent visits with R.C. throughout R.C.’s life and R.C’s happiness at being with her, the Bureau’s description of R.C. as having love for both Mother and Grandmother and seeing both of them as “parental figures,” and the Bureau’s description of Mother as being “responsible enough in caring for” R.C. and also contacting the worker when there was a fire at grandmother’s home. This is because Mother, in arguing that the trial court erred because the record contains contrary evidence of a bond between herself and R.C. misconstrues, first, the substantial evidence rule and, second, the beneficial relationship exception. With regard to the former, even if there is evidence in the record to support a contrary view, we must affirm, because we have concluded that substantial evidence exists to support the court’s order. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
With regard to Mother’s evidence, even including the evidence not presented to the trial court at the hearing on this matter, it is insufficient to establish a beneficial parent-child relationship strong enough to overcome the strong presumption in favor of adoption. In a case Mother cites, In re S.B. (2008) 164 Cal.App.4th 289, the court found a beneficial relationship where the father acted quickly to get services to deal with his drug problem, and consistently put his children before himself. In contrast, Mother has never satisfactorily addressed the issues that led to R.C.’s removal from the home. In fact, reunification services to Mother were terminated. It is telling that Mother is viewed as an unreliable caretaker for R.C. and only has visitation with R.C. when family members facilitate that visitation by being present during R.C.’s stays and caring for R.C. when Mother goes away during her visitation with R.C. Mother construes R.C.’s statement that she wanted things to “remain the same” as expressing a preference to continue seeing Mother. But R.C. also stated that she wished to be adopted, and her statement that she wished things to “remain the same” does not amount to an objection to adoption. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1335.)
Finally, Mother states that the court incorrectly relied on the grandmother’s representation that she would allow continued visits with Mother. The court did not terminate parental rights on this basis. We also reject Mother’s attempt to dismiss R.C.’s strong desire to be adopted, in part so she can be like her sisters (who have each been adopted by the grandmother). R.C.’s desire to be “like her sisters’ is a perfectly legitimate claim to stability in her home and parity with her siblings. The court did not err in terminating parental rights to permit R.C. to have this stability.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Lambden, J., Richman, J.