Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV090057-1, JV090057-2
Margulies, J.
Two children (minors) of appellants C.B. (Mother) and A.K. (Father) were detained by the Humboldt County Department of Health and Human Services (Agency) after the minors were found to have been neglected. The parental rights of both parents were eventually terminated after they failed to demonstrate an ability to care for the minors. Mother and Father contend the juvenile court erred in terminating Mother’s parental rights because she had formed a beneficial relationship with the minors. We affirm.
I. BACKGROUND
Brothers W.K. and M.K., then fourteen months and eight weeks old, were the subject of a dependency petition under Welfare and Institutions Code section 300, subdivision (b), filed June 1, 2009. The petition alleged Mother, who had stopped attending a substance abuse treatment program, had left newborn M.K. with a neighbor without provision for his feeding. M.K. was found to weigh barely more than at his birth. Toddler W.K. was also found with a neighbor, who had been provided no food or diapers. Father could not be located. On June 24, the petition was amended to allege a claim under subdivision (g), stating Father was present at M.K.’s birth and was aware of Mother’s substance abuse problems, but failed to take steps to protect his son from neglect.
All statutory references are to the Welfare and Institutions Code.
In a nonpublished decision denying Mother’s petition for a writ of mandate, we summarized the background and first year of this dependency proceeding. (C.B. v. Superior Court (Sept. 2, 2010, A128640).) Mother was originally referred to child welfare services prior to M.K.’s birth in October 2008 as a result of her neglect of W.K. Mother entered a substance abuse program, but she failed to attend regularly or remain sober. Following the detention of W.K. and M.K. in May 2009, the juvenile court ordered reunification services to be provided to both parents while the minors remained in out-of-home custody. At the six-month review hearing held on May 10, 2010, the court terminated reunification services. We affirmed that decision as to Mother, concluding the juvenile court’s findings that she failed to make significant progress in her court-ordered treatment plan for alcohol abuse and the minors were unlikely to be returned to her at the end of the 12-month review period were supported by substantial evidence.
Father, an appellant in this matter, was not a party to the writ proceeding. Father did appeal from the dispositional order, but his appeal was dismissed by this court.
Following our denial of the writ, the juvenile court held a permanency planning hearing under section 366.26 on December 16, 2010. The court found the minors were likely to be adopted and terminated the parental rights of Mother and Father. In so doing, the court rejected Mother’s contention that she qualified for the “beneficial parental relationship” exception, under which the juvenile court may decline to terminate parental rights if it finds the termination of rights would be detrimental to the child because “[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), hereafter subdivision (c)(1)(B)(i).)
With respect to Mother’s relationship with the minors, the record demonstrates that in the first month after their detention, June 2009, the minors were placed with a family friend who allowed daily visits, and the parents visited often. Once the minors were placed in day care, the parents’ visitation appeared to diminish for a time. Following the dispositional hearing in September 2009, the parents were provided with five hours of visits per week. They maintained that schedule for several months, visiting consistently “except when they are incarcerated, in detoxification, or ill.” Visit logs for October through January showed that Mother typically visited four to five days a week, although she also typically missed two to three visits per month without notice or explanation. She also missed a week in January while in “detox.”
Father’s visits were fairly regular in October, but he missed the entire month of November and most of December while jailed, and his visits in January and February were sporadic, at best. Father stopped visiting with the minors altogether after reunification services were terminated in May 2010.
Mother maintained the schedule of four to five visits per week until early June 2010, when she entered substance abuse treatment. At that point, she planned to reduce her visits to two per week, but in fact she had little contact with the minors after August 2010. At the permanency planning hearing in December 2010, a social worker testified that Mother and the minors’ maternal grandmother had visited the minors between eight and ten times total in the seven months since the termination of services in May.
In her opening brief, Mother claims she visited twice a week from June through December 2010, but her supporting citation to page 658 of the clerk’s transcript does not confirm the claim. The cited status report states only that after Mother entered the treatment program in June 2010, “the undersigned agreed to the mother’s plan of reducing visits to twice per week for a period of time.” The report did not describe Mother’s actual, as opposed to planned, visitation. No evidence in the record contradicts the social worker’s hearing testimony that Mother visited the minors only a handful of times after May 2010.
The Agency acknowledged Mother’s “visits were positive and the boys know their mother” and “the children are attached to their mother and maternal grandmother.” It disputed that the bond was “ ‘strong, ’ ” however, noting “[Mother] has not been involved in their everyday life. She has not been involved in addressing behavioral problems....” In recommending termination of parental rights and cessation of parental visits, the court-appointed special advocate (CASA) explained, “[M]other did consistently visit with the boys. However, both CASA and the current caregivers observed that after the visits, both [W.K.] and [M.K.] would exhibit considerably more fussiness, clinging behavior, and acting out behavior.” CASA was also concerned Mother sometimes visited while intoxicated and had occasional difficulty controlling her anger in the minors’ presence.
II. DISCUSSION
Mother contends the juvenile court should have declined to terminate her parental rights under the beneficial parental relationship exception of subdivision (c)(1)(B)(i). Father makes no claim of error with respect to the termination of his parental rights, but he joins in Mother’s appeal and contends any reversal of the judgment as to Mother should apply to him as well. (See In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
Although there is some conflict in published decisions, the recent weight of opinion agrees with In re Jasmine D. (2000) 78 Cal.App.4th 1339 (Jasmine D.) that the abuse of discretion standard of review is applied to juvenile court decisions under section 366.26, rather than the substantial evidence standard. (Jasmine D., at p. 1351; see similarly In re C.B. (2010) 190 Cal.App.4th 102, 127.) As Jasmine D. notes, however, there is little practical difference between the two tests in these circumstances: “ ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ ” ’ ” (Id. at p. 1351.)
Adoption is the strongly preferred permanent plan for dependent children who have not reunified with their parents. “After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child. A child has a fundamental interest in belonging to a family unit, which includes a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.] At the selection and implementation stage, the court has three alternatives: adoption, guardianship or long-term foster care. [Citation.] In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 808–809.)
Accordingly, the juvenile court mustorder adoption and termination of parental rights unless “one of the specified circumstances [in section 366.26, subdivision (c)(1)(B)] provides a compelling reason for finding that termination of parental rights would be detrimental to the child.” (In re Celine R. (2003) 31 Cal.4th 45, 53.) The exception relevant here is subdivision (c)(1)(B)(i), which authorizes the juvenile court to decline to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The beneficial parental relationship exception was explored in In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), which remains the leading decision interpreting the exception. The father in Autumn H. was a physically abusive alcoholic with limited parenting skills. (Id. at p. 571.) Following his failure to reunify, he visited his child on about half of the opportunities offered, seeing her once every two weeks for about an hour, only once taking her from the foster home. He showed little interest in the child when not visiting and was viewed by her as a “ ‘play mate’ ” or “ ‘friendly visitor, ’ ” not as a parent. (Id. at pp. 572–573.) The father objected to the termination of his parental rights, contending he had “maintained regular visitation” and his daughter “would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) In rejecting the father’s argument, the court established the law governing application of the beneficial parental relationship exception: “In the context of the dependency scheme prescribed by the Legislature, 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.... [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.... The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Decisions since Autumn H. have derived the general rule that the exception applies only if the parent has developed a genuinely “parental relationship” with the child, rather than a merely “friendly or familiar one.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “ ‘While friendships are important, a child needs at least one parent. Where a biological parent... is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’ [Citation.] Thus, a child 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. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (Ibid.; see similarly In re Jason J. (2009) 175 Cal.App.4th 922, 938 [“A friendly relationship, however, ‘is simply not enough to outweigh the sense of security and belonging an adoptive home would provide’ ”]; In re Helen W. (2007) 150 Cal.App.4th 71, 81 [“the parent must show more than ‘frequent and loving contact’ [citation], and be more to the child than a mere ‘friendly visitor or friendly nonparent relative’ ”]; In re Angel B. (2002) 97 Cal.App.4th 454, 468 [same].)
There can be little question that Mother’s relationship with the minors was, at most, one of a friendly visitor. W.K. was still an infant when they were taken from her care, and M.K. was just a newborn. Save for the first year of W.K.’s life, during which Mother battled a substantial substance abuse problem, she never acted as a parent to either child, nor did she appear capable of acting in that role. Further, there was no reason to believe the termination of their relationships with Mother would result in substantial detriment to the minors. While Mother was a fairly regular visitor for a period of nine to twelve months, through May 2010, she saw the minors very little after that. During the seven months preceding the permanency planning hearing, when Mother’s visits had dwindled to no more than one or two a month, the minors’ relationships with Mother had, as a practical matter, already ended. Yet there was no indication of a negative impact on their well-being. Under these circumstances, the juvenile court plainly did not abuse its discretion in declining to apply the beneficial parental relationship exception.
Mother relies primarily on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). The father in S.B. was a Vietnam War veteran who suffered from posttraumatic stress disorder and poor physical health that impaired his ability to care for his child. (Id. at p. 294.) The child was detained at age three years and placed with her grandparents after both parents were arrested for drug use. (Id. at p. 293.) The child’s detention proved to be a transformative event for the father. He complied with the dependency case plan, stayed drug-free, and regularly visited the child three times per week. The Agency wanted to return the child to his custody but concluded he was unable to care for her as a result of his poor physical and mental health. (Id. at pp. 293–294.) A bonding study found a “fairly strong” bond between parent and child and the “potential for harm” from terminating the relationship. (Id. at p. 296.) Although the social worker concluded the benefits of adoption outweighed the detriment from terminating the parental relationship, she also recognized losing her father would be a “ ‘huge detriment’ ” to the child. (Id. at p. 295.)
The court reversed the termination of parental rights, finding substantial evidence to support application of the subdivision (c)(1)(B)(i) exception on the basis of an emotionally significant relationship arising from the frequent and loving visits between parent and child. Rather than a visitor or playmate relationship, the court found a true parental relationship, which had developed during the first three years of the child’s life, when she lived with her parents, and continued to develop during foster care. (S.B., supra, 164 Cal.App.4th at pp. 298–299.) Based on this record, the court concluded, “[T]he only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father].” (Id. at pp. 300–301.)
Since its publication, S.B. has been subject to considerable criticism, particularly for its suggestion the exception applies if the child will merely “derive[] some measure of benefit” from the parental relationship. (S.B., supra, 164 Cal.App.4th at pp. 300–301.) In In re C.F. (2011) 193 Cal.App.4th 549, 558–559 (C.F.), the court held that S.B. must be “confined to its extraordinary facts. [S.B.] does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact.” In C.F., the court found that a parent’s sometimes distracted weekly visits and frequent phone contact were insufficient to justify application of the exception, holding, “[a] parent must show more than frequent and loving contact or pleasant visits.” (Id. at pp. 554–556.)
As is evident from the foregoing discussion, S.B. provides no support for Mother’s position. S.B. represents the outer limit of the beneficial parental relationship exception, and its circumstances are considerably more compelling than those presented here. The child in S.B. had lived with her father for three years prior to her detention, during which the two developed a familial relationship. The father followed the reunification plan rigorously and played a significant role in his daughter’s life throughout the reunification period. In contrast, the minors had spent significantly less time with Mother prior to their detention. Her conduct throughout the dependency proceeding was hampered by her substance abuse, which became controlled only after reunification services were terminated. At most, Mother could demonstrate “frequent and loving contact or pleasant visits, ” which C.F. found insufficient to support application of the exception. (C.F., supra, 193 Cal.App.4th at p. 555.)
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Banke, J.