Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ06004176
Haerle, J.
I. INTRODUCTION
In this appeal, W.W., joined by the Alameda County Social Services Agency (collectively referred to as the Agency), challenges the juvenile court’s order following a Welfare and Institutions Code section 366.26 hearing. The Agency argues that the trial court erred when it found that Mother had met her burden under section 366.26, subdivision (c)(1), to establish the “parent-child welfare exception” to the termination of parental rights. The Agency argues that the court abused it discretion in so ordering. We disagree and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
W.W. lived with Mother from his birth in 2004, until his second birthday, when he was removed from Mother’s home, which was dirty and unsafe. Mother submitted on the initial petition and the juvenile court assumed jurisdiction. On August 24, 2006, after a contested dispositional hearing, the court found W.W. a dependent, removed him from Mother’s care and placed him with a foster family.
Mother participated in services, and regularly visited W.W., but failed to make sufficient progress in her case plan. On February 15, 2007, when W.W. was three years old, the court terminated services to Mother and set the matter for a section 366.26 hearing.
The Agency filed status reports for the section 366.26 hearing on May 29, 2007, July 9, 2007, and September 4, 2007. An addendum report was also filed on October 5, 2007. In these reports, the Agency recommended that Mother’s parental rights, as well as those of the presumed and alleged fathers, who join with Mother in this appeal, be terminated.
At the section 366.26 hearing, which began on October 5, 2007, a number of witnesses testified on Mother’s behalf. Reverend Vern Morley testified that he had known Mother for nine and a half years. Mother was a participant in his church. He had seen her and W.W. together “numerous times.” From the time W.W. he was born, Mother came to Morley’s house “at least four or five days a week.” “[W]e would have dinner together. She would take me occasionally to doctor’s appointments . . . .” Mother always brought W.W. with her when she came to Morley’s house. W.W. was born premature, and Mother had previously miscarried twins and then another child. While the child was in the hospital, for two months, Mother stayed with him “almost 24-7.” Morley testified that Mother “was an extremely caring and attentive mother to the point where she was watching him constantly. There was a few incidents where he wasn’t getting proper oxygen and stuff. If she wasn’t there he might not have been with us.” Morley also made weekly visits to Mother’s home.
During this time, according to Morley, “[t]he home was in order.” He observed that Mother “gave [W.W.] a lot of attention, more than what I have seen most parents deal with for giving a child attention. She was there constantly with him.” He described W.W. as “always happy. . . . He tended to be quite happy.” He was affectionate toward his mother. “He was always hanging on her and kissing her.” He was nourished, dressed appropriately, had his own bedroom, furnished appropriately for a child his own age. Morley did not see Mother engage in any inappropriate behavior toward her son. Prior to being placed in foster care, W.W. did not engage in any pinching or biting.
Morley saw Mother “pat [W.W.] on the butt, but it wasn’t really hard. It was just—it wasn’t a hit. It was a pat.” He wasn’t aware of Mother having any mental health issues. He knew that “she was taking some medication to help her cope” with the loss of W.W. In the last 17 months, during which time W.W. had been in foster care, he had not seen Mother interact with W.W. on their visits.
Eloy Martinez testified. He had been a neighbor of Mother for about 30 years and had met W.W. “dozens of time” during visits at home, at the park, and at birthday parties. He last saw Mother and W.W. together in June of 2006, when W.W. was two years old. Mother took very good care of her son. She was always with him, and they seemed close and affectionate with each other. He had never seen her behave inappropriately with W.W. She seemed like the typical normal parent. Mother had two dogs, a bird and a goat who “was outside doing the yard work.” He did not see feces on the floor of Mother’s house and Mother cleaned out the bird cages regularly. He would be surprised to learn that Mother kept a messy house. He had never seen Mother physically discipline W.W.
Shawniese Tilmon, W.W.’s therapist, testified. Tilmon, who has a Ph.D. in clinical psychology, worked at Children’s Hospital, and had worked with W.W. and Mother in therapy for one year. In a letter she wrote on October 1, 2007, she stated that she had observed Mother and W.W. for a total of 46 sessions. At the time of her testimony, she had seen them for 54 sessions. During this period of time, Mother maintained regular visitation and contact with W.W. When asked if she had observed, during these sessions, “anything that would cause you to conclude that W.W. would benefit from continuing the relationship with his mother,” Tilmon responded “I do.” In her letter describing the relationship between Mother and W.W., Tilmon specifically mentioned that “there are occasions where [W.W.] seems happy to see his mother, runs to her when she calls him and is able to reciprocate his mother’s affection.” She had observed W.W. in a very recent visit “melting into his mother’s arms” and holding hands, as well as “exchang[ing] glances, smiles and some laughter.” She described a visit when W.W. experienced “much joy” in sitting on Mother’s lap and singing with her. Not all visits between W.W. and Mother had gone as well as these visits, but she agreed that “with the passage of time and the administration of . . . therapy . . . the interaction between the mother and child has improved.”
Tilmon also described visits in which Mother had difficulty dealing with W.W.’s “extremely aggressive” behavior. Tilmon had some concern about Mother’s ability to pick up on W.W.’s “cues” during some visits. She was also concerned that when Mother became agitated, W.W. would pick up on that and himself become aggressive and agitated. At one point in their therapy, she had recommended reducing some visits because the length of the visits seemed to be too long for the environment in which they were held, namely, at W.W.’s preschool.
When W.W.’s foster parents picked him up at the end of visits with Mother, Tilmon sometimes observed W.W. running to them. She was not yet prepared to recommend unsupervised visits for the Mother. Recently, however, she had observed “an increased number of sessions” in which Mother and W.W. “have done incredibly well.”
Minou Djavaherian, a marriage and family therapy intern, had been seeing mother on a regular basis since August 2006, for “nearly 72 sessions.” When she came to Djavaherian, Mother had been diagnosed with bipolar disorder. In her therapy sessions with Djavaherian, Mother worked on her parenting skills, including skills related to W.W.’s difficult behavior. In Djavaherian’s opinion, Mother is attached to her son and “interested in seeing that he had a successful life.” She also testified that Mother was very cooperative and consistent in her attendance at therapy.
Keisha Washington, a friend of Mother’s, testified that she had known Mother for over 20 years and she knew W.W., whom she babysat for a few months when Mother was working in Modesto. Mother dressed W.W. appropriately, did not leave him at Keisha’s house for extended periods of time, asked how W.W. was at the end of the day, appeared affectionate and was a “very concerned mother.” She saw a lot of “cooing and smiling” from W.W. during this time period, which occurred when W.W. was about a year old.
Janet Bayer, who was employed the Alameda County Social Services Children and Family Services, testified that she was assigned to W.W.’s case for a year, from September 2006 to the time of the hearing. She never observed W.W. and his Mother in their home environment. She agreed that Mother had maintained regular visitation and contact with W.W. “with very few exceptions.” She was “not sure” if W.W. would benefit from continuing his relationship with his mother. She testified that “[t]here are times when there seems to be very positive moments between [W.W.] and his mother, and there are other times that I have been concerned about detriment and I’ve had those conversations with Dr. Tilmon as well.” She had observed occasions where the behavior she saw “would be beneficial to continue for the child.” She had never observed Mother physically or sexually abuse W.W., although she had observed her “to be harsh with him or to withhold affection from him at times.”
Bayer testified that W.W. is developmentally delayed. Mother participated in treatment or services for W.W. before the petition was commenced. “[S]he welcomed those services and was participating in them.” Mother was a single parent during this time. According to Bayer, Mother “not only was cooperative but sought them [services]. I think there were instances where she might have had some conflicts with some of the involved professionals and that might have impacted her pursuing those services.”
During the time Bayer knew her, Mother “has dealt with some mental health issues for which she is taking medication specifically dealing with bipolar disorder II . . . some depression. She herself has physically not appeared to be in good health. She’s described a number of health issues, and I believe that I did see some documentation of fibromyalgia.”
Bayer recommended termination of parental rights because she was “very concerned about the impact of that relationship on [W.W.] and the long-term impact of him being without a parent who can help him emotionally and developmentally.” She was concerned about Mother’s “ability to be consistent over time in responding to him in an appropriate way in terms of being emotionally available and attentive to him, setting appropriate limits with him without using physical punishment and providing him with a sense of emotional security.” Her “wish is that continued contact could be enjoyable with no detriment to him. My worry is that it could be confusing to him and cause continued anxiety for him.” She was aware that in March 2007, Mother “had been very upset and depressed about the situation with her son and had talked about wanting to kill herself or her child.” She did not see this statement “as a threat. . . . It was thoughts and feelings.” She conveyed her concern about this statement to Mother’s therapist. The therapist was surprised and said she would follow up.
Bayer had not monitored a visit between W.W. and his mother since July 2007. She had observed positive interactions between W.W. and his Mother. In fact “most of the visits that I observed had moments that were very positive.” Mother had reported to her that, when W.W. did something she did not approve of she would “pop” his hand. She never herself observed Mother do this. However, she was aware that another therapist had observed mother do this on one occasion.
In December 2006, W.W.’ s foster parents told her that Mother had made a threat against Bayer. Mother had never done anything aggressive toward her. In the 12 months before the hearing, Mother had not done anything she perceived as a threat to her.
Jenny Janow testified that she had known Mother “for years.” Mother patronized her business. She saw Mother and W.W. every week until W.W. was placed in foster care. W.W. always was appropriately clothed and well nourished. Mother exhibited “care and concern for him” when she saw them together. She was affectionate with him and W.W. responded to her affection. Mother hugged and kissed him and he responded. He appeared to be a happy child with no health issues. Mother regularly took W.W. to doctor’s appointments. The last time she saw W.W. and Mother together was around W.W.’s first birthday.
Catresa Parquet testified that she had known Mother her “whole life.” After W.W. was born, she saw Mother every two weeks or so. She went to some doctor’s appointments with Mother. W.W. was always clean, well-fed and mother was affectionate with W.W. Mother would tell W.W. she loved him and he would appear “like he loved her.” She had seen Mother and W.W. together three to four times in the last year. She never saw Mother hit W.W. She attended a visit with W.W. and Mother when he was old enough to talk. He told her “I love you mommy.”
Mother testified. She was currently suffering from “fibromyalgia, degenerative disk of the third lumbar, arthritis, lymphoma, leukemia, asthmatic, thyroid, heart murmur, migraines, chronic pain.” She had been treated for cancer and for some heart and lung problems. Other than one occasion when she was in the hospital, she had not missed any visits with her son. Although it could be a burden for her to come to some of the visits due to her health, she came anyway because she loved her son. She went to the visits to make sure her son was clothed, and healthy and well fed.
W.W. was born prematurely at 31 weeks. He required significant medical assistance. He was in intensive care for two months. Mother stayed 22 hours a day with him. She took him every day after he was discharged to a doctor “to keep up with his weight.” Every day, “I drove from Modesto all the way back to downtown Oakland.” On his first birthday, W.W. had four birthday parties. Her “family was so happy that he survived that everybody gave him a party. . . . We were ecstatic that he was getting better. He was at his right weight. That he lived.”
Mother had W.W. placed at the Regional Center because “he was diagnosed with retardation of growth. . . . Every program that was offered to me, I took it because I wanted my son to be – to get the best care he could get.” When W.W. was a little over 18 months, Mother arranged for him to enroll in a preschool. She took him to school. She took him there after her chemotherapy appointments. She dressed him, or had help from her cousins or a nurse. She purchased clothing for him, did the laundry, made him dinner and got him ready for bed. She read to him twice a day. She described W.W. as “happy. He was always smiling. He was always laughing. His mommy can make him laugh. He was the happiest little baby I’ve ever seen. Not just because he’s my baby. But he was always happy.”
When he was diagnosed with asthma, she gave him a breathing treatment. No doctor had ever advised her that she was not properly providing care for him.
According to Mother, after W.W. was placed in foster care he became violent. “He would bite. He would hit. He really didn’t want to be held by anybody.” She had not seen this behavior before he was placed in foster care. Typically, when she picked him up from school he was happy to see her and ran to her smiling. After he was placed in foster care, “[s]ometimes he was happy to see me, sometimes he’s not. But lately, he’s been happy to see me the last couple of months.”
In Mother’s opinion, W.W. would benefit from continuing their relationship. She explained, “I’m all he knows. I’m his only living relative. We have a bond . . . . I’m the only one that understands him. I carried him for nine months. I took care of him for two.”
Mother acknowledged telling a child welfare worker that it was okay to “pop” her son on his hands if he hit her. She also said the same thing to the staff at the preschool. Mother acknowledged that there might have been charges pending against her for child endangerment, although she believed that those charges had been dropped. She did not believe her bipolar disorder affected W.W. She acknowledged that she had animals in her home and W.W. had been diagnosed with asthma. She also acknowledged that she took medication for her mental health issues.
At the conclusion of the hearing, the juvenile court found that Mother had met her burden under section 366.26, subdivision (c)(1), and declined to terminate Mother’s parental rights. This timely appeal followed.
III. DISCUSSION
At the conclusion of a section 366.26 hearing, a court may decline to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) One such compelling reason, and the reason invoked by the juvenile court in this case, occurs when the court finds that “[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).) The parent has the burden of proving that this exception—often referred to as the parent-child relationship exception—applies. (In re Zachary Z. (1999) 77 Cal.App.4th 799, 809.)
Preliminarily, we note that the parties disagree about the applicable standard of review. The Agency contends that the abuse of discretion standard of review applies and Mother argues that the substantial evidence standard of review is the correct standard. We review the juvenile court’s decision regarding the applicability of this exception under the substantial evidence standard of review. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We are, of course, aware that the court in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, applied the abuse of discretion standard of review to this question. However, it also noted that the practical differences between the abuse of discretion and substantial evidence standards of review “are not significant.” (Id. at p. 1351.) Here, were we to apply the abuse of discretion standard to this case, we would reach the same result.
The juvenile court found that W.W. would benefit from continuing the relationship with Mother. In reaching this conclusion the court noted that Mother and W.W. did not have a perfect relationship. Specifically, the court explained that, “In reviewing all the evidence, reading the reports, especially the early reports, I was concerned about, in many ways the quality of the relationship between the mother and her son. I was somewhat concerned about the mother’s behavior and reactions to events to her own child at times.”
However, the court went on to conclude that there was evidence on which to find that W.W. would benefit from a continued relationship. The court stated, “I read Dr. Tillman’s report carefully but I also listened to her testimony very carefully as well, and at least when Dr. Tillman testified, it appeared and was clear to me from her testimony that the relationship between the mother and the son has improved.”
The court also relied on the testimony of the witnesses who appeared on Mother’s behalf. “There were a lot of witnesses that I listened to and I put due weight on all the witnesses. What was important about this case . . . is not only the current relationship that the mother has with her son but what I believe was some strong evidence [of] the mother’s relationship with her son prior to going into dependency. [¶] This is a child, who most of the time as we progress through this process, was three years old. The child will be four in a matter of months and it is a case where the mother and son have a relationship for at least a couple years before the child was taken into dependency, that carried weight with me. There’s no perfect relationship between a parent and child that I’m aware of anywhere and there are bumps in the road in this mother-child relationship and I was particularly moved by the evidence of what the mother did early on in this child’s life when this child was born prematurely and had some very serious health issues. [¶] It is true that the court has found a petition true which found conditions of the house to be rather deplorable and mother I know finds it hard to accept that the court made that determination, but the court did. [¶] But I’m convinced that the mother has met her burden in this case, and I am convinced that there is a compelling reason for this court to determine that termination would be detrimental to the child due to the fact that the mother and her son have maintained regular visitation and contact and I do believe that this child would benefit from a continuing relationship with his mother. So I’m not going to terminate parental rights of the mother.”
Substantial evidence supports the court’s finding. Specifically, Dr. Tilmon, who had seen Mother and W.W. together for a year, testified that, based on her observations of Mother and W.W. during over 50 therapy sessions, W.W. would benefit from an ongoing relationship with Mother. She mentioned in written reports W.W.’s happiness on seeing his mother, his reciprocation of her affections, and their joy in each other. While it is also the case that in these visits she observed difficult interactions, including Mother’s struggles to handle W.W.’s aggressive behaviors, she agreed that “with the passage of time and the administration of . . . therapy . . . the interaction between the mother and child has improved.” Other witnesses described W.W.’s attachment to Mother early in his life. Mother herself testified to the extraordinary efforts she had made after his premature birth to care for him. Mother also testified about securing services for him through the Regional Center and her continuing concern about his health.
The Agency, however, argues that the trial court erred because the relationship between Mother and W.W. was not “truly parental” because it had deteriorated by the time the section 366.26 hearing was held.
We have reviewed the record and conclude it contains substantial evidence to support the court’s conclusion. In In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109, the court explained that, to establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate “frequent and loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), an emotional bond with the child, or that the parents and child find their visits pleasant. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Rather, the parents must show that they occupy “a parental role” in the child’s life. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) To do so, a parent must establish that their relationship with the child “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., supra, 27 Cal.App.4th at p. 575.)
Here, the record supports this finding. Mother visited W.W. regularly during the dependency period. She behaved not as a pleasant visitor, but as a parent—someone intimately familiar with W.W’s needs, and attentive to ensuring that those needs were met. When she was W.W.‘s primary caretaker, she attended to these needs diligently herself. When W.W. was removed from her care, she continued to visit him regularly and to advocate for his care. Although there were also less than positive aspects of this relationship, the juvenile court was entitled to weigh the testimony before him and came to a conclusion, supported by the record, that the relationship was truly a parental one.
In a similar case, In re S.B. (2008) 164 Cal.App.4th 289, the court found a parent-child relationship exception existed when a father had been his child’s primary caregiver for three years and, after the child was removed from his care, began to work immediately on addressing the issues that caused the child to be removed from his care. Mother, like the parent in S.B. “sought medical and psychological services and maintained consistent and regular visitation” with her child. (Id. at p. 298.) There is substantial evidence in the record of W.W.‘s continuing strong attachment to Mother, in the form of Dr. Tilmon’s observations of their loving bond. Although the relationship between Mother and W.W. was not always perfect, and Mother sometimes had difficulty dealing with W.W.’s behavior, this does not diminish the substantial evidence of their bond. The record therefore supports the juvenile court’s conclusion that Mother and W.W. had a parent-child relationship. (See also In re Amber M. (2002) 103 Cal.App.4th 681, 690 [trial court erred in terminating parental rights of mother who visited children regularly, acted in a loving, parental role when she was with the children and did virtually everything asked of her to regain custody.].)
The Agency cites at length contrary evidence that might support a different conclusion. Under the substantial evidence standard of review, “[w]hen a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) Although the juvenile court might have reached a different conclusion based on the evidence before it, the record contains substantial evidence supporting the juvenile court’s application of the parent-child relationship exception.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Kline, P.J., Richman, J.