Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK62232, James Hahn, Judge,
Catherine C. Czar, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Respondent.
CHANEY, J.
D.C. (Mother) appeals from April 30, 2009 order terminating her parental rights to her daughter, S.C., born in May 1999. We affirm because substantial evidence supports the juvenile court’s rejection of the beneficial relationship exception to termination of parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)).
Statutory references are to the Welfare and Institutions Code.
BACKGROUND
Mother has a history of drug abuse and homelessness. At approximately 8:30 p.m. on January 25, 2006 her 12-year-old son, J.H. (Brother), was detained by the Los Angeles County Sheriff’s Department after telling a deputy he was homeless, did not know where Mother was, and did not know where he would be staying that night. His clothes were dirty and in disarray and he had not bathed in some time. He said he typically went to the library after school and stayed there until it closed, frequently wandered the streets for hours without supervision, and sometimes panhandled to eat. Mother appeared at the sheriff’s station with S.C. at approximately 11:00 p.m., not to report Brother missing but to get out of the cold. She and S.C.’s clothes were extremely disarrayed and dirty, and they appeared not to have bathed in days. Mother appeared to be under the influence of a controlled substance. She was arrested and found to be in possession of drug paraphernalia. The Los Angeles County Department of Children and Family Services (DCFS) detained the minors.
DCFS reported that Mother admitted she had a methamphetamine habit and said the family is homeless and she sometimes has to panhandle for food. In March 2006 the juvenile court sustained a petition, finding S.C. was a dependent pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). S.C. was removed from parental custody. Mother was afforded monitored visits and reunification services. She was ordered to attend a drug rehabilitation program with random weekly testing and obtain parent education and individual counseling. S.C. was also ordered to be in individual counseling.
By the end of 2006, Mother had enrolled in none of the court-ordered programs, was homeless, had tested positive for methamphetamine three times, and had missed several months of drug testing. She visited the children regularly at first, but after August 2006 her visits became irregular. She was arrested in October 2006 for violating probation and failed to maintain regular contact with DCFS. Mother finally enrolled in an in-patient drug treatment program in January 2007, one year after she had been ordered to do so, testing positive for methamphetamine when she was admitted.
The juvenile court terminated reunification services in March 2007.
By March 2008 Mother showed good results in her drug treatment program and had completed it plus several treatment and education programs. She lived in a sober living facility, visited S.C. regularly, and maintained routine contact with DCFS. She had no employment but was seeking it.
S.C. began individual counseling in March 2007. She was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and complained of hearing voices. She was prescribed medication for both conditions. S.C. was well cared for in her foster home.
Mother visited regularly, with appropriate interactions.
S.C. visited Brother twice monthly, with appropriate interactions, but was observed to be anxious following the visits and sometimes said she was not interested in seeing Brother. She disclosed that while in Mother’s care he had inappropriately touched her vaginal area. Brother denied the allegation, which was found to be inconclusive.
S.C. expressed a desire to reunify with mother, but if that was not possible she was “okay” with being adopted by her current caregiver. She was deemed adoptable and the caregivers were “very interested” in adopting her, indicating they would be willing to allow her to have contact with Mother after adoption. She was well cared for in the foster home.
S.C. and Mother began unmonitored visitation in June 2008. S.C.’s behavior in her placement changed soon thereafter. She became “reactive” before and after the visits, had difficulty following directions, and told the foster mother that she need not follow rules because she is leaving and that the foster mother cannot tell her what to do because she is not her mother. She experienced increased anxiety, as demonstrated by enuresis and sleep disturbances. On October 1, 2008, S.C. wrote a letter regarding her visit with her mother: “Today I had my visit with my mother. It went bad. My mom told me 4 times to visit my brother but I said no. Ok. One hour later I said no again. Ok. Thirty minuts later, asking me again, but she said it more louder. I iknord her. She, later, five minuts later, she said it so loud, I can not hear my self think as I color. I almost started to cry. I did not like it. One hour after all of that, I started to shake very much[.] One hour later, I got home was also nervoes. I was dancing wildly that I almost triped. I got in the house, talked to [Foster Mother] about what happened in my visit and wrout this letter.”
On October 3 she wrote another letter: “My mom’s room is very messy. She forces me to see it. I don’t like it. My mom is always giving me pretion [preaching?] about the court. The last visit, I was crying because she was yelling at me daring the visit. She also forces me to breathe the smoke from outside pourch. I tell her no she does not listen. My mom told me too say to the court ‘no, don’t tell no one that you want to be adopted.’ And she also said this in a forceing mood, ‘And visit your brother if you don’t you will not go back with me.’ ‘And I will tell [Foster Mother] to punish you.’ I really don’t like her expresstion. She made me cry. And said this, ‘Don’t tell [Social Worker] or [Foster Mother] or the juge, that I was yelling at you and you were crying.”
The record contains an additional eight letters written by S.C., some of which are illegible. In the legible letters she states Mother harassed her about the dependency proceedings and urged her to oppose adoption. S.C. substantially confirmed the letters in testimony on April 30, 2009. On December 3, 2008 she wrote, “Today I didn’t want to visit my mom today Because I was really tiered. I Didn’t want to go to my visit so I don’t get yelled at and so I don’t have a crisis.” On April 30, 2008 she testified she wanted to continue visiting mother, but “[o]nly monitored visits.”
On October 21, 2008 the juvenile court granted Mother’s section 388 petition for unmonitored weekend and overnight visits with Mother. The court also ordered that sibling visitation occur in a therapy setting. Unmonitored weekend and overnight visits with Mother began on November 1.
On November 24, 2008 Juanita Cummings, a psychiatric social worker, reported the following regarding S.C.’s visits with her therapist: S.C. “reported that each time she visits with her mother she is pressured by her mother to stop acting out, grow up, and accept visitations with her brother.... [S.C.] has written several daily journals of her feelings of anxiety and frustration with her mother, and she has expressed her fears with each visit that she recently had with her mother. [¶]... [¶] Therapist recommends against [S.C.’s] non-monitored visits with her mother, and believes that [S.C.’s] overnight visits with her mother are premature because [S.C.’s] behavior has deteriorated to having nightmares, screaming at night, speaking about [how] the devil is coming to get her, and [inability] to sleep through the night.”
S.C.’s therapist reported that “since unmonitored visits with birth mother began, client appears more solemn and withdrawn.” Regarding letters S.C. wrote between October 30 and November 20, 2008, the therapist reported that “client describes psychological and emotional abuse inflicted on client by birth mother during court-ordered unmonitored visits.... In the letters client describes incidents in which mother threatens client. Following is an example of one of the letters written by client: ‘Today was the worst visit ever. But my mother said that I would die on the gates of hell. And I will be possessed by demons and satan will torture me for five months as the bible said. And on holloween next year satan will visit me [and] will kill me if I don’t say what she tells me in court.’ [¶] [C]lient... assumes a parental role toward birth mother (excessive worrying of birth mother’s well-being, safety, and financial circumstances) which have increased client’s anxiety and depression. Client has demonstrated a significant decrease in her excitement with birth mother visits. Client has been having nightmares, seeing ‘demons’ and ‘devils’ during waking hours, experiencing sleeplessness due to the anxiety and as a result, missing school due to the lack of sleep.”
The therapist filed a child abuse report on November 20, 2008 and recommended that unmonitored visitation be terminated. DCFS unilaterally reverted visitation to monitored as of December 10, 2008. S.C. told a social worker that she preferred to have visitation monitored because she had not had a “crisis” since the visits became monitored. Once visits were again monitored, S.C. did not have nightmares as frequently and no longer reported seeing demons or devils. She was “notably happier and relaxed.”
During monitored visits with S.C., and in therapy with Brother, Mother repeatedly spoke to (or in front of) the children about dependency issues and had to be redirected by the monitor.
S.C. evinced a concern for Mother’s ability to provide her with food, reporting that during unmonitored visits to Mother’s home, there was minimal food available, “‘just enough for one sandwich.’” She also reported that mother said she needs another job for more money.”
S.C.’s foster mother expressed to the therapist that her primary concern was S.C.’s well being, “even if it means [S.C.] reuniting with birth mother if the court’s deem it appropriate.” She also indicated she was open to ongoing, appropriate post-adoption contact between S.C. and Mother.
DCFS filed a section 388 petition, requesting that visits revert to monitored. The petition was granted in part on January 13, 2009, the juvenile court ordering visitation to be monitored for two months and unmonitored thereafter. In remarks directed to Mother the court stated, “Now, Ma’am, you are your own worst enemy. You may think you’re not, but this case has gone on a long ways.... I don’t have to look at anything except the date and know that you’re not doing this right, Ma’am, or your daughter would not feel the way she does. She loves you. She cares about you and everything but you’re mentally doing things out there that you shouldn’t be doing and she will tell us.”
On April 30, 2009 the juvenile court found S.C. to be adoptable, designated the caregivers as the prospective adoptive parents, and terminated Mother’s parental rights. In rejecting the beneficial relationship exception to termination of parental rights, the court remarked, “To really assume a parental role is more than just being there to counsel and to advise and to hug and to comfort. There’s a lot more involved in being a parent, and this mother just really hasn’t had the opportunity to demonstrate that she can do that, and a lot of that is due to how long it took her to get through these programs. [¶]... [t]he appellate courts have indicated that the court must really look at this in terms of a balance, the need for permanency for [S.C.] versus the benefit that she would receive from continuing the relationship with her mother. I think it’s clear that she wants to continue that relationship with her mother; although, as we heard today at the 388, at this point, she’s still a little nervous about even unmonitored visitation with the mother. That to me tends to undermine the exception.... [¶ ] The visitation has been regular, but, just recently, it’s gone back to monitored visitation after just a brief period of time of being unmonitored. It’s really never given the mother, you know, a way to convey to the court that she has exercised a parental role, and there’s been plenty of time in the case. [¶]... [S]o the court will find today that that exception has not been met; that we have not established the kind of parental role that the appellate courts have said must be demonstrated that would outweigh the benefit to [S.C.] of having permanency in being adopted.”
Mother appeals from the April 30, 2009 order terminating parental rights.
DISCUSSION
A. Beneficial Relationship Exception to Termination of Parental Rights
Under section 366.26, subdivision (c)(1), if the juvenile court finds by clear and convincing evidence that a child is adoptable, it will terminate parental rights unless it finds a compelling reason for determining that termination would be detrimental on the basis of certain listed exceptions. A child who is determined to be 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 does not meet the child’s need for a parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
Section 366.26, subdivision (c)(1)(B) affords an exception to termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The existence of a beneficial relationship is determined by considering “‘[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 Amber M. (2002) 103 Cal.App.4th 681, 689.)
To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Loss of mere “frequent and loving” contact with parent is insufficient to show detriment. (Ibid.) The benefit to the child from continuing such a relationship must also be such that 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.’” (Ibid., quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
We review the juvenile court’s order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Mother does not deny S.C. is adoptable, but argues her substantial beneficial relationship with S.C. requires continuation of her parental rights. We disagree.
Assuming that Mother maintained regular contact and visitation with S.C., we conclude substantial evidence supports the juvenile court’s finding that S.C.’s well-being would be promoted more by adoption than by continuation of the parent-child relationship in a more tenuous placement. DCFS reported that S.C. is happy and well adjusted in her placement of three years and is developing well. The prospective adoptive mother’s primary concern is S.C.’s well being, as evidenced by her openness to S.C. reuniting with Mother, if appropriate, and her willingness to permit appropriate post-adoption contact between S.C. and Mother. In contrast, Mother repeatedly placed her own interests above S.C.’s. She pressured S.C. to visit Brother and harassed her regarding dependency proceedings and adoption. The prospective adoptive mother and several professionals noticed that S.C.’s mental health and behavior deteriorated when she began unmonitored visits with Mother. S.C. herself reported that visits with Mother caused her to have “crises,” and she evinced a clear desire to have only monitored visits. The juvenile court reasonably concluded S.C.’s well-being would be promoted more by adoption than by continuance of the parent-child relationship in a more tenuous placement.
B. Guardianship Exception to Termination of Parental Rights
Mother argues for the first time on appeal that S.C. should be placed in legal guardianship rather than adopted because guardianship would protect her relationship with Mother and provide the needed stability and permanence.
“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.]’ [Citation.] The purpose of a section 366.26 hearing is to ‘provide stable, permanent homes for’ dependent children. (§ 366.26, subd. (b).) At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care. (§ 366.26, subd. (b).) Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. [Citation.]” (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
There are five circumstances that may present “a compelling reason for determining that termination [of parental rights] would be detrimental to the child....” (§ 366.26, subd. (c)(1)(B).) The burden falls to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) One exception applies if “[t]he child is living with a foster parent... who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent... would be detrimental to the emotional well-being of the child.” (§ 366.26, subd. (c)(1)(B).) However, the exception does not apply where the juvenile court makes a finding that the caretaker is willing and able to adopt the child. (In re Zachary G., supra, 77 Cal.App.4th at p. 810.)
Here, the court found S.C. was likely to be adopted. Therefore, the guardianship exception does not apply. In that circumstance, “[a]doption is the preferred plan and... the juvenile court is required to select [it] as the permanent plan” to provide S.C. with the stability and permanence she needs.” (In re Fernando M., supra, 138 Cal.App.4th at p. 534.)
DISPOSITION
The April 30, 2009 order terminating Mother’s parental rights to S.C. is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.