Opinion
NOT TO BE PUBLISHED
Appeals from an order of the Superior Court of Orange County Super. Ct. No. DP014419, James Patrick Marion, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant N.W.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant R.A.
Nicholas S. Crisos, County Counsel, and Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOORE, ACTING P. J.
The juvenile court terminated the parental rights to 3-year-old T.A. Each parent appeals. N.W. (mother) says the court erred in failing to apply the beneficial parent-child relationship exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). R.A., the child’s biological father (father), joins in mother’s arguments.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specifically stated herein.
Contrary to mother’s assertion, the court did not apply the wrong standard in determining the applicability of the beneficial parent-child relationship exception. Furthermore, substantial evidence supports the court’s determination that the exception does not apply. We affirm.
I
FACTS
In November 2006, mother, an admitted drug addict who was about to become homeless, abandoned her 8-month-old daughter at the police station, saying she was not in a position to care for the child. Father failed to retrieve the child when the police requested that he do so. Mother had a history of domestic abuse and substance abuse, including use of alcohol, marijuana and methamphetamine. In addition, she had a history of mental illness and depression, including five suicide attempts, and had been prescribed multiple psychotropic medications. Father had a history of alcohol abuse. On November 15, 2006, the child was detained in the custody of the Orange County Social Services Agency (SSA). She was initially placed at the Orangewood Children’s Home.
In February 2007, the child was placed in a foster home. In March 2007, the child was declared a dependent child of the juvenile court. The court ordered reunification services for mother and father.
Because father’s case plan compliance and visitation are not at issue on appeal, we mention only mother’s.
Mother began participation in a perinatal program in January 2007, but her participation was inconsistent. She missed two drug tests in January 2007, five in March 2007, and six in April 2007. In addition, mother tested positive for methamphetamines and ampthetamines once in February 2007, once in March 2007, and once in April 2007. In April and May 2007 she was having attendance problems with the perinatal program. She did no drug testing in May or June 2007. Mother was terminated from the perinatal program in June 2007. She then began a substance abuse outpatient program. Mother started counseling with Karen West in April 2007. However, by July 2007 mother was terminated from counseling with West, due to three missed sessions.
Mother was having monitored visits with the child, reasonably consistently. However, she missed scheduled visits on March 29, May 6, May 20, and May 24, 2007. The six-month review was scheduled for August 16, 2007.
SSA, in its August 2007 status review report, recommended terminating reunification services and scheduling a section 366.26 hearing. It reported that mother and father had each made unsatisfactory progress on their case plans.
SSA’s September 2007 addendum report reflected that mother continued to have two hours of monitored visitation twice a week. She was nurturing and interacted well with the child, played with her, fed and groomed her, and tended to her needs. Mother was attentive and involved with the child and ensured that her emotional and physical needs were met during visitation. However, mother missed three visits in August 2007 and one in September 2007.
At the six-month review, the court found that return of the child to mother and father would create a substantial risk of detriment to the emotional or physical well being of the child. It scheduled a 12-month hearing for January 2008.
At the time of the 12-month review, SSA opined that there was a substantial probability that the child could be returned to her parents within six months, and recommended that the matter be set for an 18-month permanency review hearing. Mother had been drug testing twice a week and had had only negative results, but for two missed dates which were considered positive results. Mother was again attending individual counseling and 12-step meetings. In addition, she had begun a parenting education program, but had been terminated due to three no-shows. Mother was reinstated to that program in January 2008.
Mother had been having four-hour monitored visits twice a week. She continued to interact well with the child, to nurture her, to feed, groom and play with her, and to attend to her needs.
The court set the matter for an 18-month review. As of March 2008, mother continued to participate in individual counseling with West. However, she had missed two drug tests in February 2008 and two in March 2008. Moreover, she had tested positive for drugs twice in February 2008 and once in March 2008. Mother continued to attend a substance abuse outpatient counseling program and had completed 16 hours of parenting education classes.
In its April 2008 interim review report SSA noted the parents had four hours of monitored visits twice a week. The report stated: “The parents continue to be appropriate, affectionate and nurturing towards the child. The parents kiss and hug the child when greeting her throughout the visit. The child recognizes and calls out to the parents by ‘mommy and papi.’ It has been observed that the child recognizes the parents and is excited when seeing the parents at the visit. The child smiles and runs to the parents. The parents are very attentive towards the child, interact well with the child and involve the child throughout the visit.... The parents play, feed, groom, and attend to all of the child’s needs during the visit.... The parents continue to ensure that the child’s physical and emotional needs are met during the visits.... The child is comfortable with the parents during their visits.”
In its May 2008 status review report, SSA said that mother needed more progress on her case plan. West reported to SSA that mother “exhibited an increase in agitation, impulsivity, irritability, and noncompliance behaviors.” Based on mother’s behavior, West could not recommend either custody or overnight visits. Mother appeared to be regressing. She had had another positive drug test result in April 2008 and had missed another drug test.
SSA recommended that reunification services be terminated and a section 366.26 hearing be scheduled. It stated: “[T]he child has been found to be adoptable and is placed with a foster mother that loves her and is willing to provide her with stability and a nurturing environment.” On May 22, 2008, the court ordered the termination of reunification services and the scheduling of a section 366.26 hearing.
In its September 2008 section 366.26 report, SSA continued to state that mother was nurturing towards the child and interacted well with her. Mother played with the child, fed her, groomed her, and attended to her needs. She provided snacks including cookies, popsicles, lollypops, ice cream and fast food. The report also stated: “The caretaker has expressed her concerns as to the child’s health after the visits between the child and the parents. The caretaker has reported that the child returns to her home with stomach aches and vomiting. The caretaker stated that [the] child does not eat junk food [at home]....” SSA also reported: “Emotionally, [the child] has adjusted well in her placement and to the caretaker. She has developed a close relationship with the caretaker and seeks her out when needing comforting.” Although the caregiver stated that she wanted to adopt the child, she was not interested in beginning the adoption home study process until the child was freed for adoption.
An October 2, 2008 addendum report reflected that mother had missed visits with the child on August 16, August 25, September 1, September 13, and September 15, 2008. Subsequent addendum reports stated that mother missed additional visits with the child on September 20, September 29, October 6, October 18, October 20 and November 3, 2008.
After a contested hearing, the court, on December 8, 2008, terminated parental rights to the child. It found that the provisions of section 366.26, subdivision (c)(1)(B)(i-vi) did not apply. Mother and father each appeal.
II
DISCUSSION
A. Introduction:
“At the selection and implementation hearing held pursuant to section 366.26, the court must choose a permanent plan for the dependent child. The court may terminate parental rights and order adoption; identify adoption as the permanent goal and order efforts made to locate an adoptive family within [180] days without terminating parental rights; order legal guardianship without terminating parental rights; or order long-term foster care without terminating parental rights. (§ 366.26, subd. (b).)” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1534.)
“Under section 366.26, subdivision (c)(1), ‘[t]he court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted....’ If the court finds the child adoptable, it must terminate parental rights unless it finds that termination would be detrimental to the child due to one of four circumstances. The one pertinent to our case is section 366.26, subdivision (c)(1)[(B)(i)]: ‘The parents... have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship.’” (In re Brandon C., supra, 71 Cal.App.4th at p. 1534, fn. omitted.) The parent must show that both prongs of the statute have been satisfied — that “there has been regular contact and ‘the [child] would benefit from” the continued relationship with the parent. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
Here, the trial court found that neither prong of the test had been met. Mother argues that substantial evidence does not support the court’s findings pertaining to either prong. She also contends that the court applied the wrong legal standard in its analysis of the second prong. Mother maintains that the court should order the implementation of a plan short of adoption.
B. Analysis:
(1) First prong
Griselda Damian was the social worker assigned to the case beginning March 2007. In her testimony at the section 366.26 hearing, Damian characterized mother’s visitation before February 2008 as “consistent,” but clarified that mother “usually missed... maybe three out of nine visits.” She also stated that mother missed a number of visits in September, October, and November, 2008, as reflected in SSA’s October 2008 addendum reports.
Two other witnesses, Hannah Nguyen and Charlotte Anderson, also testified regarding visitation. Nguyen worked for New Alternatives and was assigned to monitor visitation beginning in August 2008. Nguyen confirmed that mother missed one or two visits in August, about three in September, another three or so in October, and some more in November 2008. Anderson was a supervisor at New Alternatives. She estimated that in the six months preceding the hearing mother had missed 50 percent of the visits.
Mother, in her testimony, had various explanations for missed visits. She said that between February and October 2007, she missed about three visits due to work. She lost out on about two more during that period because the caretaker cancelled, but the social worker nonetheless marked the visits as “missed.” Mother did not think she missed visits between February and July 2008. She acknowledged that she started missing visits in July. She missed some because she was working with father doing fumigation jobs. Mother thought she had missed about 10 visits since July, “a lot more than [she was] proud to say.” She missed various visits due to lack of transportation, because she needed to visit her sister who had had part of a foot amputated, and because she went to Mexico to visit father.
On appeal, mother acknowledges having missed some visits, but insists that section 366.26, subdivision (c)(1)(B)(i) does not require perfect visitation. She emphasizes that she maintained regular contact with her child and that she “was provided with 3 to 4 times the... visitation parents usually receive in dependency cases” and “still spent more time with her child on a regular basis than most parents ever do in a dependency case.” Mother focuses on the number of visits she did have with the child, not the number she missed. For example, she notes Damian testified that, irrespective of the number of visits that were missed, mother did have approximately 40 or 45 visits, each three to four hours long, in the six months preceding the section 366.26 hearing. In other words, mother saw the child about six or seven times a month in that time frame, even though she could have seen the child more often.
“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. [Citation.] 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). [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)
Here, the question is whether mother maintained regular visitation with the child. Given the testimony of three witnesses to the effect that mother missed many scheduled visits with the child, substantial evidence supports the finding that mother did not maintain regular contact with the child. However, even if this were not the case, and even if we were permitted to reweigh the evidence, substantial evidence shows that the requirements of the second prong of section 366.26, subdivision (c)(1)(B)(i) were not met, as we shall show.
(2) Second prong
According to mother, the second prong of section 366.26, subdivision (c)(1)(B)(i) is satisfied because the evidence shows the child has “‘a significant, positive, emotional attachment’” with her (In re S.B., supra, 164 Cal.App.4th at p. 297) and would suffer detriment if the parent-child relationship were terminated (id. at pp. 297, 300). She cites several SSA reports stating that mother tended to all of the child’s physical and emotional needs during visits, fed and groomed her, played with her, and was nurturing to and involved with the child. Also, mother testified she had held the child during a doctor’s appointment when a couple of stitches were removed.
In addition, mother cites evidence showing that she and the child were affectionate with each other, exchanging hugs and kisses. The child recognized mother, called her “mommy,” and was excited to see her. The child used to cry when visits ended and mother went away, but she did not tend to do this any more.
At the section 366.26 hearing, Damian testified that she thought the child was comfortable with mother, but she did not know whether the two had an emotional bond. Indeed, in the section 366.26 report she prepared, Damian said that, according to the visitation monitors, mother once said that the child “was not the same anymore and didn’t seem like her child anymore.” At the hearing, Damian also testified that the child was comfortable with the caretaker and would seek her out for emotional comfort. Mother had cared for the child for the first eight months of her life, but by the time of the section 366.26 hearing, it had been two full years since she had been the primary caregiver. Indeed, by then the foster mother had been the primary caregiver for nearly two years, providing for the child’s day-to-day needs. Damian opined that terminating parental rights would not be detrimental to the child.
In applying section 366.26, subdivision (c)(1)(B)(i), “we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The burden is upon the parent to make this showing. (Id. at p. 574.)
“Courts have required more than just ‘frequent and loving contact’ to establish the requisite benefit for this exception. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child....’” (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.) Certainly, mother here maintained loving contact with the child and this conferred benefit upon her. However, reviewing the evidence in the light most favorable to the prevailing party (In re Autumn H., supra, 27 Cal.App.4th at p. 576), we conclude substantial evidence supports the court’s finding that the child would not be greatly harmed if the parental relationship were terminated.
Mother nonetheless maintains the court applied the wrong legal standard in making its determination. She says the child’s attorney framed the issue as who occupied the parental role in the child’s life and was meeting the child’s day-to-day needs, and cited In re Autumn H., supra, 27 Cal.App.4th 567 as providing the applicable rule of law. She asserts that the court erroneously adopted the attorney’s characterization of the issue and improperly relied on In re Autumn H. even though the reasoning of that case had been rejected in pertinent part by In re S.B., supra, 164 Cal.App.4th 289. Mother cites certain portions of the reporter’s transcript in support of her position.
When ruling from the bench at the conclusion of the hearing on December 8, 2008, the court noted that the child’s attorney was right — the focus was then on permanency. In addressing the second prong of section 366.26, subdivision (c)(1)(B)(i), the court made reference to In re Autumn H., supra, 27 Cal.App.4th 567 and said: “It states that 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.... I don’t find that that’s the case here. [¶] I believe that as it’s stated in that case, interaction between natural parent and child will always provide some incidental benefit to the child. A significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection, stimulation.” The court also commented on the child’s age and stated: “She’s been there two years with the people. They’ve obviously interacted as her mom.”
The court in In re S.B., supra, 164 Cal.App.4th 289 did not reject, but rather reiterated, the principle enunciated In re Autumn H., supra, 27 Cal.App.4th 567 that “‘[i]f 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 S.B., supra, 164 Cal.App.4th at p. 297.) However, it also observed that “Autumn H. does not... specifically identify the type of relationship necessary to establish the exception.” (Id. at p. 299.) The court further stated: “We do not believe it is reasonable to require the parent of a child removed from parental custody to prove the child has a ‘primary attachment’ to the parent, or to show the parent and the child have maintained day-to-day contact. If that were the standard, the rule would swallow the exception. [Citation.]” (Ibid.)
Mother emphasizes this language from In re S.B., supra, 164 Cal.App.4th at page 297. She views the comments of the court in the case before us as showing that it focused on who had been providing day-to-day care for the child, contrary to the quoted language from In re S.B., supra, 164 Cal.App.4th at page 297. She says that, as In re S.B. makes clear, were the question who had been providing day-to-day care, no parent in a dependency proceeding could ever get his or her child back.
However, it was not improper for the court to consider that the child, only eight months old when relinquished by mother, had been outside of her care for more than two years. The court properly considered that there was a bond between mother and child, but found that it was not such that the child would be greatly harmed were it severed. Moreover, this case is factually distinguishable from In re S.B., supra, 164 Cal.App.4th 289.
In In re S.B., supra, 164 Cal.App.4th 289, the appellate court concluded that the juvenile court had erred in finding that the beneficial parent-child relationship exception was inapplicable. (Id. at p. 301.) However, there, the father had maintained consistent visitation and had fully complied with his case plan. (Id. at p. 300.) Furthermore, a bonding study “concluded that, because the bond between [the father and child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at p. 296.) In the matter before us, however, there was no bonding study warning of the danger of severing the parent-child relationship. For that matter, mother missed many visits with the child and did not comply with her case plan.
Blemishes in her efforts notwithstanding, mother urges the courts to focus on the efforts she did make and the bond between her and the child, to stop short of terminating parental rights, and to order something less than adoption. However, as mother herself acknowledges, “[i]f the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.]” (In re S.B., supra, 164 Cal.App.4th at p. 297.) Since there is no argument as to whether the child is adoptable, the court did not err in its application of the law, and substantial evidence supports its findings, we must affirm.
As we have noted, father joins in mother’s arguments and notes that, under California Rules of Court, rule 5.725(a)(2), (h) the court cannot terminate the rights of only one parent under section 366.26. Consequently, he argues that if the order terminating parental rights as to mother is reversed, the order terminating parental rights as to him must be reversed as well. However, we do not reverse as to mother, so there is no automatic reversal as to father.
III
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.