Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK73360, Anthony Trendacosta, Juvenile Court Referee.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Senior Associate County Counsel, for Respondent.
MOSK, J.
D.W. (mother) appeals an order of the juvenile court pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights over her two daughters, V.S. and A.S. (children). Mother argues that the juvenile court erred in concluding that the parental relationship exception to the termination of parental rights (§ 366.26, subd. (c)(1)(B)(1)) (the “parental relationship exception”) did not apply. For the reasons stated below, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
A. Detention
On June 16, 2008, the Los Angeles County Department of Children and Family Services (DCFS) received information that three-month-old A.S. had been hospitalized and was in critical condition from injuries consistent with Shaken Baby Syndrome. Children’s father, Al. S. (father), had been taken into custody by the Baldwin Park Police Department on charges of child abuse. Father claimed that A.S. was injured when he dropped her in the shower one month earlier. A.S.’s doctors opined that her injuries were not consistent with father’s explanation.
DCFS determined that A.S. and her three-year-old sister, V.S., were at risk. DCFS removed children from father’s care and placed them with mother. On June 19, 2008, DCFS filed a petition pursuant to section 300 alleging that A.S. had suffered and V.S. was at risk of serious physical harm; parents had failed adequately to supervise or protect children; father had a history of drug abuse that placed children at risk of harm; and A.S. had suffered severe physical abuse.
At the detention hearing, DCFS informed the juvenile court that A.S.’s physicians had discovered additional, older injuries indicating that A.S. had been abused over an extended period of time, and that DCFS could not determine who had caused the injuries. Accordingly, DCFS requested that children be detained from both parents. The juvenile court ordered children detained in shelter care, and found father to be children’s presumed father.
B. Jurisdiction/Disposition
In July, 2008, DCFS filed an amended petition adding allegations, among others, that father had physically abused V.S. on numerous occasions; mother had a history of drug abuse that rendered her incapable of providing regular care for children; and children had been exposed to violent altercations between mother and father.
DCFS reported that V.S. had been placed with her maternal grandmother, while A.S. remained in the hospital with no projected discharge date. A.S. had suffered significant brain damage; her preliminary prognosis was that she would be blind and might never walk. V.S. had told a social worker that father had hit A.S. against the wall. V.S. said that father had hit her (V.S.) in the back with his shoe and on her legs and back with his belt.
Mother told DCFS that father was children’s primary caregiver. She denied that father had ever abused children, although he sometimes became frustrated with A.S.’s crying. Mother said that V.S. had a tendency to lie. Mother admitted that she had shaken A.S. once when frustrated, but said she “‘never shook her too hard.’” Mother confirmed that she and father had gotten into physical altercations and that father had pushed her, punched her, slapped her, thrown her to the ground, tried to kick her and attempted to choke her. Mother admitted that she and father had abused drugs, particularly methamphetamine.
DCFS reported that mother had failed to appear for a random drug test, but she had visited V.S. weekly with no reported issues. Mother’s visits with A.S. were “‘infrequent’” due to the difficulty in finding a monitor for the visits. Father was in custody and had been charged with felony child endangerment with great bodily injury to a child under the age of five (presumably, Pen. Code, §§ 273a, subd. (a), 12022.7, subd. (d)).
DCFS recommended that parents receive no reunification services and no visitation. Parents denied the allegations in the amended petition and the matter was set for a contested jurisdictional hearing.
In September 2008, DCFS reported that V.S. remained with her maternal grandmother. A.S. had been released from the hospital and placed with a licensed medical placement foster family; she had been hospitalized again briefly due to seizures. Mother had enrolled in an outpatient drug treatment program; she had attended eight sessions and missed two sessions. She had five negative drug tests. The criminal case against father was still pending. DCFS continued to recommend against reunification services and visitation for both parents.
In October 2008, DCFS reported that mother’s progress in her drug treatment program was satisfactory; she had completed 10 sessions and missed 3 sessions. She continued to test negative for drugs. Mother visited V.S. once per week, but maternal grandmother—V.S.’s caregiver—complained that mother was not cooperative in scheduling visits and only visited with V.S. if maternal grandmother transported V.S. from her home in Victorville to mother’s home in Baldwin Park. Mother maintained daily telephone contact with V.S. DCFS continued to recommend against family reunification services and visitation for both parents.
At the contested jurisdictional hearing, mother testified that she was not aware that father had abused A.S. She had never seen father shake A.S., and she denied that she had shaken A.S. in any way that affected her. She believed father’s explanation that he had dropped A.S. in the shower.
The juvenile court sustained the allegations in the amended petition that father had physically abused both children and had perpetrated severe physical abuse against A.S.; both parents had a history of drug abuse that placed children at risk of physical and emotional harm; and children had been exposed to violent altercations between parents. The juvenile court took the issue of disposition under submission, stating that it was concerned about what appeared to be a “lack of connection” between mother and children.
The juvenile court subsequently issued a written order denying mother reunification services pursuant to section 361.5, subdivision (b)(5) and (6). The juvenile court stated that mother was not the perpetrator of the abuse, but she appeared to “be in a great deal of denial about what happened....” The juvenile court was “disturbed by the mother’s reported lack of consistent visits” even though maternal grandmother had “gone out of her way to make sure mother visits.” In contrast, mother had visited father in jail “at least three times,” indicating that mother’s “priorities seem to be misplaced.” Not only had A.S. suffered “significant injury,” but V.S., too, had suffered “substantial emotional trauma” from “her mother’s failure to protect [her].” The juvenile court concluded that “mother needs many months, perhaps years, of counseling and maturity to adequately be reunified with these children, beyond what would be a reasonable time for reunification.” Mother was, however, permitted monitored visitation. Mother filed a notice of intent to seek writ review of the juvenile court’s orders, but there is no indication in the record that she did so.
C. Permanency Planning
In February 2009, DCFS reported that A.S. recently had been moved to the same home as V.S., after the caregivers had received training to attend to A.S.’s medical needs. The caregivers wanted to adopt both children and a home study had commenced. Children were doing well in their placement and were bonding with their caregivers. A.S. continued to suffer “severe effects” from her abuse and was receiving intensive occupational and physical therapy. She was visually impaired and unable to track or focus. Although 11 months old, she still could not lift her head, was unable to coordinate chewing and swallowing, and required splints on her hands to keep them open. Developmentally, she was “‘like a one month old child.” V.S. appeared developmentally appropriate, but it appeared she may have been affected to some degree by fetal alcohol syndrome. V.S. was receiving therapy due to “significant anxiety surrounding past trauma,” which caused nightmares, fear of the dark, irritability, poor self-regulation skills, and “occasional sexual acting-out behavior.”
DCFS’s report does not identify the children’s caregivers, but it appears from the context that children were placed with maternal grandmother and her husband. To be consistent with the evidence in the record, however, we hereafter refer to the caregivers.
Children’s caregivers told DCFS that mother had “infrequent” contact with V.S., visiting approximately twice per month. Mother would call V.S., but would become upset when, after a few minutes, V.S. no longer wished to continue the conversation. A.S.’s prior caregiver informed DCFS that mother had visited A.S. once per week for approximately one hour. DCFS recommended that the juvenile court identify adoption as the permanent placement goal for children. The juvenile court did so and continued the matter for completion of the adoption home study.
In May 2009, DCFS reported that the adoption home study had been completed and approved. DCFS reported that, between January 1 and May 29, 2009, mother had a total of 11 monitored visits with V.S. The visits lasted “about 10-15 minutes”; V.S. “d[id] not show much interest in having visit[s] with her mother” and “mother d[id] not interact much with her daughter” or “show any affection.” As a result, the visits were “poor.” DCFS also reported that mother had been dropped from her drug treatment program because she failed to attend Narcotics Anonymous meetings.
The juvenile court held a contested permanency planning hearing on May 29, 2009. Mother testified that she had completed her drug treatment program, but was dropped because she did not have money to pay for the certificate. Mother stated that DCFS had not reported her visits accurately. She believed she had visited children two or three times in April, rather than the one time reported by DCFS. Mother admitted that some of the visits were only 10 to 15 minutes, but not all of them. She testified the visits were short because she did not have a car and she got rides to the visits with her father, who did not want to stay long. Some visits, including her most recent visits, were three hours or more because she was borrowing her father’s car and driving herself. Mother testified that during the visits she would change diapers, comb children’s hair, dress them, and serve children plates of food. Mother testified that she believed A.S. recognized her, and that V.S. was excited to see her and would run to her and hug her. V.S. would get mad at the end of the visits because she did not want mother to leave. Mother also called V.S. twice a day, at noon and 8:00 p.m. The conversations lasted five to 10 minutes on average. Mother used to call three times per day, but V.S.’s caregiver asked her not to call in the afternoon because it interrupted children’s activities. Mother testified that V.S. wanted to come live with her and that she had a “close connection” with V.S. On cross-examination, mother admitted that she had not completed the training to care for A.S. because she was “already enrolled in other classes.” Mother testified, however, that she sometimes helped caregivers give A.S. her home therapy.
Counsel for mother argued that the juvenile court should not terminate her parental rights because the parental relationship exception (§ 366.26, subd. (c)(1)(B)(1)) applied. Mother had visited child when she could, and mother had called V.S. every day. Counsel for DCFS and counsel for the children argued that although mother had maintained “some visitation,” mother had not played a parental role in children’s lives and that it was in children’s best interests to be freed for adoption.
The juvenile court found by clear and convincing evidence that children were adoptable. The juvenile court further found the parental relationship exception did not apply. Mother, the juvenile court stated, had “very little concept of what the children’s special needs are.” Mother had not participated in A.S.’s medical care or the therapy both children were receiving at the Regional Center, or otherwise acted in a parental role. Accordingly, the juvenile court terminated mother’s parental rights. Mother timely appealed.
DISCUSSION
A. Applicable Principles and Standard of Review
Section 366.26 provides that the preferred disposition at a permanency planning hearing is to “[t]erminate the rights of the parent... and order that the child be placed for adoption....” (§ 366.26, subd. (b)(1); see also San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885.) Because of this statutory preference, the juvenile court must terminate parental rights unless one of the exceptions specified in section 366.26 exists. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997-998; In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.) One such exception is the parental relationship exception, which applies when termination of parental rights would be detrimental to the child because the 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).) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement”].)
To invoke the parental relationship exception, the parent bears the burden of proving both that visitation was regular and that the child would benefit from continuing the relationship. (In re Mary G. (2007) 151 Cal.App.4th 184, 207; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) Although actual day-to-day contact between parent and child is not required, the parent must establish “[a] strong and beneficial parent-child relationship” of the type that “characteristically aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) In other words, the parent is required to establish 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
In evaluating the parent’s showing, the juvenile court must “balance[ ] 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., supra, 27 Cal.App.4th at p. 575.)
Accordingly, a parent “must show more than frequent and loving contact or pleasant visits. [Citation.]” (In re Mary G., supra, 151 Cal.App.4th at p. 207.) Rather, “[t]he 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.]” (Ibid.; see In re Helen W. (2007) 150 Cal.App.4th 71, 80-81; In re Beatrice M. (1994)29 Cal.App.4th 1411, 1416-1418.)
We review for substantial evidence a juvenile court’s determination that the parental relationship exception does not apply. (In re Mary G., supra, 151 Cal.App.4th at p. 206; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We will affirm if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the juvenile court’s conclusion. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600; In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “‘[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’” (In re Mary G., supra, 151 Cal.App.4th at p. 206 .) “We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (In re Casey D., supra, 70 Cal.App.4th 38, 52-53.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Some courts have applied an abuse of discretion standard in these circumstances. (E.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448-449; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) However, “[t]he practical differences between the two standards of review are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We would conclude under either standard of review that the juvenile court did not err.
B. No Error
Substantial evidence supported the juvenile court’s finding that the parental relationship exception did not apply. (§ 366.26, subd. (c)(1)(B)(1).) There was evidence from DCFS’s reports that, in the five months preceding the section 366.26 hearing, mother visited with V.S. a total of 11 times. All of the visits were monitored; most of the visits lasted 15 minutes or less. According to children’s caregiver, V.S. was uninterested in visiting with mother, and mother showed little or no affection for V.S. The caregiver characterized the visits as “poor.” If we presume that the juvenile court accepted the evidence submitted by DCFS—as we must under the applicable standard of review—there was simply no evidence that mother fulfilled a parental role in V.S.’s life or that there was a significant, positive, emotional attachment between V.S. and mother.
Mother does not contend on appeal that the parental relationship exception applied as to A.S. With respect to A.S., she contends only that, if we reverse the order with respect to V.S., we must also reverse the order with respect to A.S. under the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v). Because we affirm the order as to V.S., we need not address that contention.
Mother’s argument to the contrary is premised on accepting mother’s testimony as true. But the juvenile court was not required to accept mother’s testimony, and its remarks from the bench indicated that it gave mother’s testimony little, if any, weight.
In any event, to the extent the juvenile court “g[a]ve mother the benefit of the doubt... for the purposes of [its] discussion,” the juvenile court correctly concluded that mother’s testimony was insufficient to establish that mother played a parental role in V.S.’s life, or that the bond between mother and V.S. was so strong that preserving it outweighed the benefits to V.S. of a stable adoptive placement. At most, mother’s testimony established that mother had monitored visits with V.S. of 15 minutes or less, two or three times per month, until the month immediately before the permanency planning hearing. Mother then had three monitored visits of three hours each. Mother played with V.S., combed her hair, served her food, and changed children’s diapers. Even if such visits were supplemented by daily telephone calls, as mother testified, such visitation failed to demonstrate that mother played a parental role in children’s lives. Mere cordial visits and brief telephone calls do not constitute a parental relationship. (See In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)
As the juvenile court noted, both children were suffering severely from the abuse perpetrated in mother’s household— A.S. physically (and permanently); V.S. emotionally. Yet there was no evidence that mother was anything more than a passive observer in obtaining medical care, physical or occupational therapy, or psychological counseling for children. The burden of tending to children’s special needs, as the juvenile court observed, was borne almost entirely by children’s caregivers. At the time of the section 366.26 hearing, A.S. was one year old. She was blind; she had seizures; she had no purposeful muscle control. Her brain was severely damaged. She had such difficulty swallowing that she was still unable to eat solid food. Caregivers had been trained to meet A.S.’s special needs. Caregivers took responsibility for transporting A.S. from their home in Victorville to the Regional Center in San Bernardino for therapy, and to her various doctors in Rancho Cucamonga, Loma Linda and Montclair. In addition, V.S. was receiving weekly mental health therapy at the Regional Center in San Bernardino. As counsel for children stated during argument, “The [caregiver] has taken excellent care of these children. She’s worked tirelessly to ensure that they receive all the services that they need.”
In contrast, mother testified that she had never accompanied V.S. to any of her therapy sessions, or even called V.S.’s therapist to discuss her child’s condition. Similarly, there is no evidence that, after A.S. was released from the hospital, mother accompanied A.S. to any of her medical appointments or therapy sessions, or spoke to any of A.S.’s doctors or therapists about her condition. To the contrary, mother testified that she failed to complete the training to care for A.S. because she was busy taking “other classes.” The juvenile court reasonably found that mother submitted no evidence “that she has any real concept or understanding of what it is that the [R]egional [C]enter is doing for either of these children other than that they are, quote unquote, in therapy.”
Mother argues that the DCFS reports were based on the caregiver’s observations, rather than on independent observations by the social worker. But mother made no objection to the admission of the report into evidence, and she makes no claim on appeal that the trial court improperly considered it. Accordingly, mother’s argument goes only to the weight of the evidence, not its admissibility. As noted, it is the exclusive function of the juvenile court to weigh the evidence and to resolve conflicts in the evidence. (In re Casey D., supra, 70 Cal.App.4th 38, 52-53.)
Mother also argues that DCFS “failed to provide the [juvenile] court with information on... the quality of the child-parent relationship.” This is incorrect—as discussed, DCFS reported on the frequency and length of mother’s visits; that child “d[id] not show much interest in having visit[s] with her mother”; that “mother d[id] not interact much with her daughter” or “show any affection”; and that, qualitatively, the visits were “poor.” Furthermore, mother—not DCFS—bore the burden of producing evidence to demonstrate that her relationship with children was so strong that severing it would be detrimental to children. (In re Mary G., supra, 151 Cal.App.4th at p. 207; In re Derek W., supra, 73 Cal.App.4th at p. 826-827.) Mother failed to carry that burden.
Mother argues that the juvenile court failed to consider the benefit to V.S. (and, presumably, A.S.) from continuing their relationship with mother. But mother cites nothing in the record to support this assertion. The juvenile court ruled that mother had failed to establish that she played a parental role in children’s lives, and in doing so expressly gave mother the “benefit of the doubt” with respect to the frequency and quality of her visitation. The juvenile court determined that any benefit to children from continuing their relationship with mother was outweighed by the benefit to children of freeing them for adoption by their caregivers. As discussed, that determination was supported by substantial evidence.
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289. In that case, the juvenile court determined that the parental relationship exception did not apply because the relationship between the child and her father was not parental in nature and there was no evidence that terminating the relationship would be greatly detrimental to the child. (Id. at p. 296.) The appellate court reversed. The Court of Appeal noted that the juvenile court had found that the child and her father had “frequent and loving visits” and shared “‘an emotionally significant relationship.’” (Id. at p. 298.) In addition, the undisputed evidence demonstrated that the father had “maintained a parental relationship with [the child] through consistent contact and visitation. His devotion to [child] was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows [child] loved her father, wanted their relationship to continue and derived some measure of benefit from his visits.” (Id. at pp. 300-301.)
In re S.B., supra, 164 Cal.App.4th 289, is not dispositive of this case. As one appellate court recently observed, “The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is ‘some measure of benefit’ in continued contact between parent and child.” (In re Jason J., supra, 175 Cal.App.4th at p. 937.) In this case, unlike In re S.B., there was substantial evidence that mother’s visits with V.S. had averaged only twice per month, most visits had lasted less than 15 minutes, and the visits qualitatively were “poor.” There was also substantial evidence that neither V.S. nor mother were particularly interested in the visits or affectionate with one another. The juvenile court could reject mother’s testimony to the contrary, and—under the substantial evidence standard of review—we must presume that it did so. Moreover, as discussed, even if one accepted mother’s testimony at the section 366.26 hearing, mother failed to establish that she had a parental relationship with children that would benefit them significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.