Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of San Diego CountySuper. Ct. No. SJ11378A-D, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
K.B. appeals judgments terminating her parental rights to her children, S.B., A.B., Y.B., Jr., and Y.B., under Welfare and Institutions Code section 366.26. We affirm the judgments.
Statutory references are to the Welfare and Institutions Code.
AARON, J.
FACTUAL AND PROCEDURAL BACKGROUND
K.B. is the mother of S.B., A.B., Y.B., Jr., and Y.B. (together, children). The children are now 14, 12, 10 and eight years old, respectively. The children's father does not appeal.
In October 2004, the San Diego County Health and Human Services Agency (Agency) detained the children in protective custody and initiated dependency proceedings. (§ 300, subds. (a), (b), (j).) The conditions in K.B.'s home were substandard and unsanitary. The kitchen was flooded, the water could not be turned off, and the refrigerator and stove were not working. Garbage, cockroaches, and dirty clothes were on the floor throughout the home. The children said that they were afraid of both parents, but primarily K., because she "whipped" them with her hand, fist, a cord and a belt. K.B. reported that she had used methamphetamine and marijuana "on and off" for 10 years, and that she heard voices. The children's father was often incarcerated. He had physically assaulted K.B. on several occasions.
The Agency also detained the children's two younger siblings, who were placed with paternal relatives. The court terminated reunification services to the children's siblings at the six-month review hearing on June 28, 2005.
In December 2004, the children were adjudicated dependents of the juvenile court. (§ 300, subds. (a), (b), (j).) The court removed the children from parental custody. The children had multiple placements with relatives and in foster care. The children were eventually placed together in the home of a maternal uncle and aunt (caregivers).
K.B. did not have any contact with her children from mid-December 2004 to December 2005. Visitation was initially suspended after K.B. threatened to kill a social worker. K.B.'s whereabouts then became unknown. In June, K.B. was arrested and incarcerated on charges of burglary, possession of a controlled substance, being under the influence of a controlled substance, vandalism, damage to power lines, arson, and assaulting emergency personnel.
K.B. was released from custody in December 2005. The social worker arranged visits on February 4 and 12, 2006, and March 3, 10, 17, 19, and 24. After these visits, K.B. did not contact S.B., Y.B., Jr., and Y.B until July. A.B. was in a separate placement at that time, and K.B. did not contact him until November. In July, K.B. was arrested and subsequently entered a residential drug treatment program. Her drug treatment counselor reported that K.B. suffered from schizophrenia or schizo affective disorder and that K.B. was not always compliant with her medication regimen.
In August 2006, the court terminated reunification services and set a hearing to select and implement a permanency plan for the children (section 366.26 hearing).
The children had eight visits with K.B. in November and December 2006. They were happy to see K.B. K.B. was attentive to the children's needs, and the children were affectionate with her. K.B. told the children that she loved them. When the children left, they shouted, "Bye mom, love you."
In December 2006, K.B. was discharged from her drug treatment program and became homeless. The children's caregivers arranged visitation at K.B.'s request, which was approximately once a month. K.B. was incarcerated from March 19 to June 6, 2007. She had no contact with the children during this time.
In March 2007, the children informed the social worker that they still wanted to be adopted by their caregivers, and that they wanted to know what was taking so long.
The section 366.26 hearing was held on June 11, 2007. The social worker reported that the children's caregivers wanted to adopt them. The social worker opined that K.B.'s relationships with the children were not parental in nature; rather, the children viewed K.B. as a supportive member of their extended family. The social worker believed that the benefits of adoption outweighed any detriment from the termination of parental rights. The social worker discussed adoption with the children. The children expressed a desire to be adopted by the caregivers, and also expressed a desire to maintain some contact with K.B., if possible.
K.B. testified that she visited the children regularly when she was able to visit. The children called her "Mom." K.B. observed that "the way they act toward me seems like best friends."
The court found that K.B.'s visits with the children were at best "sporadically regular." The court found that the children were adoptable and that that the benefits of adoption greatly outweighed the benefits to the children of continuing their relationships with K.B. The court thus terminated K.B.'s parental rights.
DISCUSSION
K.B. asserts that the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of her parental rights. She contends that the evidence showed that the children had a significant and important bond with her, and that this bond was at times parental in nature.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
The Agency contends that there is substantial evidence to support the court's finding that the beneficial parent-child relationship exception does not apply. (§ 366.26, subd. (c)(1)(A).) Minors' counsel joins with the Agency's arguments and further asserts that all four children readily accept that the value of the maternal relationship is outweighed by the benefits of adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.).)
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To overcome the statutory preference for adoption, the parent must prove, by a preponderance of the evidence, that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. In the context of section 366.26, subdivision (c)(1)(A), "benefit" means the parent-child 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(A). (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, there is substantial evidence to support the court's determination that the children would be not be greatly harmed by termination of parental rights. We do not view the history of K.B.'s sporadic visitation and contact with the children as constituting "regular visitation and contact" within the meaning of section 366.26, subdivision (c)(1)(A). The record shows that she regularly visited the children only from October to December 2004, February to March 2006, and November to December 2006. K.B. had no contact with the children from mid-December 2004 to December 2005, April to July 2006 (and none with A.B. until November), and from March to June 2007. Her contact with the children from July to November 2006 and from January to March 2007 was irregular.
The quantity of contact must be also considered within the context of the visitation the parent is permitted. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) While K.B. was incarcerated for a substantial portion of the dependency proceedings, there is no evidence that she sought to maintain regular, quality contact with the children through alternate means, such as letters or telephone calls. Thus, the record shows that K.B. maintained regular visitation and contact with the children for approximately seven of the 32 month-long dependency proceedings. While K.B.'s visitation may be characterized as "sporadically regular," such a characterization does not denote the kind of sustained, consistent contact necessary to establish a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).
Even if K.B. had maintained regular contact and visitation with the children, there is substantial evidence to support the court's finding that K.B. did not have a beneficial parent-child relationship with any of the children. The court placed great weight on the social worker's opinion that K.B.'s relationships with the children were familial but not parental in nature, and that termination of parental rights would not be detrimental to them. Throughout the proceedings, K.B. was unable to stabilize her circumstances sufficiently to maintain a consistent relationship with the children or to act in a parental role toward them.
Further, the children's willingness to be adopted by their caregivers permits the reasonable inference that termination of parental rights would not be detrimental to them. (§ 366.26, subd. (c)(1).) The record shows that the social worker and the caregivers discussed adoption with the children and answered their questions. The children realized that K.B. was unable to care for them. They wanted to be adopted by the caregivers and wondered why the adoptions were taking so long.
We recognize that the children enjoy their visits with K.B. and their interactions with her confer some benefit to the children. (Autumn H., supra, 27 Cal.App.4th at p. 575.) However, this benefit is minimal compared with the children's needs for stability, permanence, guidance, and continuity of care. The court correctly determined that the parent-child relationships do not promote the children's well-being to the degree necessary to outweigh the benefits they would gain through adoption. (Ibid.) There is substantial evidence to support the court's findings that the beneficial parent-child exception does not apply to preclude termination of parental rights.
DISPOSITION
The judgments are affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.