Opinion
B303904
08-05-2020
In re N.P. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.A.H., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. Nos. DK10061A, DK10061C APPEAL from orders of the Superior Court of Los Angeles County. Steven E. Ipson, Judge Pro Tempore. Affirmed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Mother appeals from the juvenile court's orders terminating her parental rights to her two children N.P. and E.P. under section 366.26 of the Welfare and Institutions Code. Mother contends substantial evidence does not support the juvenile court's decision to terminate her parental rights because her children would benefit from continuing their relationship with her based on the beneficial parental-child bond. We find no error, and thus we affirm.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's findings, drawing all reasonable inferences in favor of the court's orders. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
1. Earlier dependency
In December 2014, the Los Angeles County Department of Children and Family Services (the Department) filed a section 300 juvenile dependency petition on behalf of almost-eight-year-old N.P. (born December 2006), five-year-old J.P. (born July 2009), and 21-month-old E.P. (born March 2013). The petition alleged the children were exposed to domestic violence between their father and mother. The children remained in mother's care, but were detained from father. In March 2015, the juvenile court sustained the petition, retained the children in mother's custody, and removed them from father's custody.
J.P. is not a subject of this appeal.
Father is not a party to this appeal. We limit our discussion of the facts to those relevant to mother's appeal.
In November 2015, the juvenile court terminated its jurisdiction and awarded sole legal and physical custody of the children to mother. The court granted father monitored visits, but ordered mother could not act as monitor.
2. Current dependency
Five months later, on April 18, 2016, the Department filed another section 300 petition on behalf of the children. Mother had allowed father to return to the home despite the juvenile court's order. On April 2, 2016, father allegedly physically abused mother in front of N.P. Earlier, father also allegedly had physically disciplined J.P. with a belt. The petition described parents' history of domestic violence and the earlier dependency proceeding, as well as father's criminal history, including spousal battery. The petition alleged mother failed to protect the children by allowing father to live with them, and father's abuse and mother's failure to protect endangered them.
The Department obtained a removal order and placed the children in foster care. At the April 18, 2016 detention hearing, the juvenile court detained the children from parents and ordered the Department to provide reunification services. The children remained in the care of their foster parents while relatives were assessed for placement.
After the children were detained, mother saw them every Friday for a three-hour, monitored visit. The Department reported the visits went well, and the children looked forward to them. Mother also spoke to the children on the phone each night.
During the earlier dependency case, mother completed parenting classes and participated in counseling, but was unable to complete her court-ordered domestic violence classes. As of July 2016, however, mother said she had enrolled in a domestic violence program and now was more aware of the dangers associated with her continuing a relationship with father. The Department recommended mother be required to complete a domestic violence program for victims before liberalizing her visits. In its August 1, 2016 and October 11, 2016 supplemental reports, the Department described another domestic violence altercation between parents that had occurred on July 23, 2016. Father was arrested after the incident and incarcerated with a projected release date in January 2017.
In November 2016, parents pleaded no contest to the petition. On November 28, 2016, the juvenile court declared the children dependents of the court under section 300, subdivisions (a) and (b), removed them from parental custody, and ordered the Department to provide parents with reunification services. The court ordered mother to complete a domestic violence program for victims and participate in counseling. It granted monitored visitation.
3. Reunification period
By May 2017, both parents were in partial compliance with their court-ordered programs. Mother completed a 12-week domestic violence program in July 2016 and was participating in individual counseling. She participated in weekly, three-hour monitored visits with the children. The Department had liberalized her visits to unmonitored in late January 2017, but after she inappropriately disciplined the children, the visits reverted back to monitored. Mother said she loves her children and wanted them to return to her care.
During the six-month review period, the children continued to do well in their foster parents' care and had a positive attachment to the foster mother. The children enjoyed spending time with mother during their visits. They wanted to reunify with their parents. N.P. was concerned her parents were not completing their court-ordered programs and feared parents were not following the restraining order and father could be incarcerated again.
A criminal ten-year protective order protecting mother from father had been entered after the latest domestic violence incident.
At the six-month review hearing on May 30, 2017, the court retained the children in foster care and continued the matter to August 2017 and then October 2017 for a 12/18-month review. In its status review report filed September 28, 2017, the Department noted mother had begun her court-ordered individual counseling sessions in January 2017 and was responding well. Mother's weekly monitored visits with the children also had been going well, until mother began bringing her boyfriend to the visits. On August 11, 2017, the court ordered mother's boyfriend could not be present at visits. On August 25, 2017, mother yelled at the social worker and foster mother after she was told her boyfriend could not attend visits. The children did not want to visit with mother after that, and mother respected their decision. The Department noted its concern that mother was not complying with the visitation rules and "acting inappropriate during her visits, by yelling and getting upset."
The children continued to do well in their foster parents' care. The foster parents said they were willing to adopt the children if parents failed to reunify and no family member was available.
The court continued the October 2017 review hearing several times, ultimately to May 2018. In early January 2018, N.P. and J.P., aged 11 and 8 at the time, told the Department they would like to return to mother's care. N.P. otherwise wanted to live with the paternal grandmother and paternal aunt, but J.P. was not sure. E.P., who was not yet five years old, did not know what she wanted. The children remained in their foster mother's care.
In February 2018, the Department liberalized mother's visits to unmonitored day visits with the intent to transition to overnight weekend visits. The court granted the Department discretion to further liberalize visits, including release of the children to mother, and to restrict visits if mother acted inappropriately.
Mother had three unmonitored day visits with the children on Saturdays and one unmonitored overnight visit before the March 14, 2018 progress hearing. The children told the social worker that, during the March 10, 2018 overnight visit, mother had slapped J.P.'s hand and yelled at them, and mother's male friend had been there. They also said mother had been drinking beer and smoking cigarettes. N.P. stated, " 'I don't want my mom to treat us bad anymore.' " Mother explained J.P. had not had her medication and was acting out. Mother said she slapped J.P.'s hand to stop her from grabbing and trying to rip N.P.'s knitting supplies. Mother also said the friend did not stay the night and that she was not drinking.
In early April, J.P. and E.P. told the social worker that their visits with mother were "going bad." N.P. said they were "kind of good." J.P. and E.P. said mother hit J.P. on the hand and hit E.P.'s hand with a belt. N.P. said mother threatens to hit them and confirmed she hit J.P. and E.P. on their hands. J.P. and N.P. told the social worker that mother's male friend stays in the home. Although N.P. said she wanted to visit with mother, she also wanted her to "change her ways and take parenting classes."
Mother denied hitting the children and reported she had to yell at E.P. to get her to stop hitting her sister, J.P. She signed an agreement not to use corporal punishment, be under the influence, or allow anyone to attend visits without the Department's approval.
On April 13, 2018, E.P. informed the social worker mother had slapped her in the face during their last overnight visit. She had a small bruise on her cheek. E.P. later said she did not know how she got the bruise, answered "no," when asked if anyone hit her, and then answered "yes," when asked if mother had hit her. Mother denied slapping E.P. She said she saw E.P. fall while jumping on a trampoline. The investigation was inconclusive for physical abuse. The Department reverted mother's visits to monitored.
On May 9, 2018—after having lived with their foster parents for two years—the children were placed with their paternal aunt. Before moving to their aunt's home, N.P. vacillated between wanting to be placed with her paternal relatives and staying with her foster parents. J.P. and E.P. said they wanted to remain with and be adopted by their foster mother.
At the May 15, 2018 review hearing, the juvenile court terminated reunification services and set the matter for a section 366.26 permanency planning hearing on September 12, 2018. 4. Continued section 366 .26 hearings and reports
In its June 22, 2018 interim review report, the Department noted J.P. and E.P. said they were adjusting well in the home of paternal relatives. N.P., however, missed her foster mother and wanted to return to her care. Mother was having weekly monitored visits with the children for two hours. She had stopped participating in individual therapy, however.
The Department filed its initial section 366.26 report on August 31, 2018, in anticipation of the September 12, 2018 hearing. The paternal aunt said she was committed to adopting the children. The paternal grandmother, who lives with the aunt and helps care for the children, was interested in co-adopting the children. However, the Department had received an allegation of physical abuse about grandmother creating a barrier to adoption until the issue could be resolved.
As of the writing of that report, the children had been living with the paternal aunt and grandmother for a little over three months. The children were doing well in their home. The Department observed the aunt and grandmother to be loving and compassionate with the children. Nevertheless, because the children had lived with their foster parents for two years, they were "having a difficult time transitioning" to living with their paternal relatives. N.P. was ambivalent about being adopted by her aunt. J.P. and E.P. wanted to be adopted by the paternal grandmother, but were unsure about their aunt. All three children said they wanted to return to their mother, but if they could not, then they would like to live with the paternal grandmother. The Department recommended terminating parental rights.
The matter was continued several times for over a year. Meanwhile, the children were "thriv[ing]" in their aunt's and grandmother's care and continued to have weekly, monitored visits with mother. They said they enjoyed their visits with mother and looked forward to them. Mother brought food and activities for the children and played with them. The paternal grandmother, who brought the children to visit mother, had no major concerns. Mother wanted the children returned to her care. As of late October 2018, the children said they felt comfortable with their aunt and grandmother, but wanted to return to mother.
By January 2019, all three children were participating in individual and family therapy with paternal aunt and grandmother. Mother missed J.P.'s Individualized Educational Plan (IEP) meeting in March 2019. The Department tried to contact mother several times about the IEP, but she did not respond. As a result, the court gave the paternal aunt the right to make educational decisions for the children.
In its status review report filed April 23, 2019, the Department stated the children continued "to thrive" in the care of their paternal aunt and grandmother, who provided for their needs. The social worker observed a "positive bond build" between the children and their relative caregivers. The children were enjoying their weekly visits with mother, although some visits were canceled. N.P. said she would like to have unmonitored visits with mother, J.P. expressed her desire to reunify with parents, and E.P. said she would like to reunify with one of her parents if they are ready, and if not, she would like paternal aunt to adopt them. The children continued to receive individual and family therapy. J.P.'s behavior, however, was a concern. She also had been hospitalized and was behind in school. The Department still recommended adoption as the children's permanent plan, but requested additional time to further assess the aunt's and grandmother's ability to provide for the children's needs, especially J.P's mental health needs.
In May 2019, N.P. left the aunt's home without permission. The aunt called the police, who learned from mother that N.P. was with her, although mother at first denied knowledge of N.P.'s whereabouts. N.P. told the aunt she no longer wanted to live with her. She did not want to be adopted because she wanted to return to mother. N.P. understood mother was not ready to take care of her or her sisters, however, and said she would like to return to the aunt's care. The aunt told the Department that mother had appeared at her home and the children's school unannounced. She also said the children would cry and become withdrawn and argumentative with each other after visits with mother or father. The aunt believed the children needed a safe, permanent home environment and wanted to adopt them.
In July 2019, J.P. had to be hospitalized on a psychiatric hold "due to intent to hurt others and ideation." After her discharge, she was placed with a foster family. The paternal aunt remained committed to adopting the children and re-integrating J.P. back into her home. In September 2019, however, allegations surfaced that the aunt neglected the children and the paternal grandfather had sexually abused J.P. The Department could not move forward with the adoption until those allegations were resolved. On September 30, 2019, J.P. was re-placed with a different paternal aunt, Ms. P.
As of October 2019, mother continued to have weekly monitored visits with the children (except with J.P., who had missed visits due to her placement change). Mother brought the children food and activities to do during the visits. N.P. said she enjoyed seeing her mother, but mother sometimes canceled visits. The Department reported the visits were going well.
Both N.P. and E.P. said they would like to remain together in their aunt's home. They appeared to be stable in her care. The Department needed additional time to assess whether it was in the best interest of all of the children to re-introduce J.P. into the aunt's home.
In its written reports filed December 20, 2019 and January 9, 2020, the Department advised the court that the paternal aunt's home was ready for adoption, and there were no impediments to the aunt adopting N.P. and E.P. The allegations of neglect by the aunt were deemed unfounded, and the allegation of abuse was deemed inconclusive after J.P. recanted her story.
N.P. and E.P had made "huge improvements" in their aunt's home since J.P. had moved. The aunt decided it would be best not to pursue adoption of J.P.; she did not want to jeopardize the placement of the other two girls. Earlier, J.P. had been physically aggressive toward her siblings and the paternal grandmother and had engaged in self-harming behavior. N.P. and E.P. also had made substantial progress in therapy and met all of their goals. The Department recommended termination of parental rights as to N.P. and E.P.
On January 9, 2020, the juvenile court convened the final section 366.26 hearing. The court received the Department's reports into evidence. Mother was present at the hearing, but presented no evidence or argument. Counsel merely asserted termination of mother's parental rights was "over her objection." The juvenile court found the children were adoptable, it would be detrimental to return them to parents, and there was no exception to adoption. It terminated parental rights over N.P. and E.P., releasing them for adoption by the paternal aunt.
Ms. P. was willing to become J.P.'s legal guardian. Because J.P. needed significant mental health services, Ms. P. was not yet ready to adopt. The Department requested more time to assess that plan.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights because the Department's reports showed she regularly visited the children and they had a strong, positive bond with her, rendering the termination of their parent-child relationship detrimental. She argues the court should have ordered a permanent plan of legal guardianship to preserve the positive relationship the children shared with her.
1. Applicable law and standards of review
"The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful." (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Thus, section 366.26 provides that once the juvenile court terminates reunification services and determines a dependent child is adoptable—a finding not in dispute here—it "must order adoption and its necessary consequence, termination of parental rights, unless one of the specified" exceptions stated in section 366.26, subdivision (c)(1) "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.)
Mother contends the beneficial parental relationship exception applies here—that she "[1] ha[s] maintained regular visitation and contact with the child[ren,] and [2] the child[ren] would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "The exception requires the parent to prove both that he or she has maintained regular visitation and that his or her 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 re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).)
Thus, the "benefit" prong of the beneficial parent exception has been interpreted to require the juvenile court to "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The juvenile court's decision that the beneficial relationship exception does not apply "may be based on any or all of the component determinations—whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes 'a compelling reason for determining that termination would be detrimental to the child.' " (Breanna S., supra, 8 Cal.App.5th at pp. 646-647.)
Appellate courts apply a dual standard of review when considering a challenge to a juvenile court's rejection of the adoption exception. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) We review the juvenile court's determination whether a beneficial parent-child relationship exists for substantial evidence. (Id. at p. 622.) We "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." (Autumn H., supra, 27 Cal.App.4th at p. 576.) We review for abuse of discretion whether a compelling reason exists for finding termination of that relationship would be detrimental to the child. (K.P., at p. 622.)
The issue of what standard governs appellate review of the beneficial relationship exception to adoption currently is before our Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.) On the record before us, we would affirm under either the substantial evidence or abuse of discretion standards. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [explaining practical differences between substantial evidence and abuse of discretion standards are minor in this context].)
2. Forfeiture
The Department contends mother forfeited her right to appellate review of whether the beneficial parental relationship exception applies. We agree. "A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do." (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.) Dependency matters are not exempt from the general rule that a "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Mother is correct that an appellate court has discretion to review claims not raised in the trial court that raise important legal issues, but that "discretion must be exercised with special care," particularly in dependency matters where "considerations such as permanency and stability are of paramount importance." (Ibid.)
At the section 366.26 hearing, mother's attorney did not argue the beneficial parental relationship exception applied—counsel made only a general objection to the termination of mother's parental rights. Mother argues "it was common knowledge" the parental relationship exception was at issue. She notes that, throughout the dependency, she maintained she wanted her children returned to her care. Her desire to reunify and the children's stated wishes to return to mother are reflected in the Department's reports. The juvenile court, however, had no sua sponte duty to consider whether the beneficial relationship exception to terminating parental rights applied. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) As the party bearing the burden of proof, mother was required to raise the issue. (Ibid.) She did not.
Mother notes the juvenile court found no exception to adoption applied, and its minute order specifically addressed the parental relationship exception. True, the minute order includes general findings that the circumstances required to apply the beneficial parental relationship exception did not exist, but the record reflects mother never objected to termination of her parental rights on that ground. She cannot be said to have raised the issue simply by voicing her desire to have her children returned and objecting to the termination of her parental rights as a general matter.
Those findings included: "parent has not maintained regular visitation with the child and has not established a bond with the child"; and "any benefit accruing to the child from his/her relationship with the parent(s) is outweighed by the physical and emotional benefit the child will receive through the permanency and stability of adoption, and that adoption is in the best interests of the child."
Nevertheless, even assuming mother did not forfeit the issue, we conclude the juvenile court did not err in finding no exception to termination of parental rights applied.
2. Substantial evidence supports the juvenile court's order terminating mother's parental rights
The Department essentially concedes mother consistently visited the children. Although she missed some visits, the Department's reports show mother had regular weekly visits with the children, as allowed by the court's order. For purposes of mother's appeal, we can presume mother's visits satisfied the first prong of section 366.26, subdivision (c)(1)(B)(i). (In re I.R. (2014) 226 Cal.App.4th 201, 212 ["[r]egular visitation exists where the parents visit consistently and to the extent permitted by court orders"].) Mother has not demonstrated, however, that the juvenile court erred when it did not find the parent-child relationship here was so "sufficiently strong" that the children "would suffer detriment from its termination." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.); Breanna S., supra, 8 Cal.App.5th at p. 648.)
Mother describes the second prong of the beneficial parental relationship exception as satisfied when "the child would benefit from continuing the relationship." That the children would receive some benefit is insufficient to overcome the preference for adoption, however. "The issue here is not whether there was a bond between [mother and the children]. The question is whether that relationship remained so significant and compelling in [the children's] li[ves] that the benefit of preserving it outweighed the stability and benefits of adoption." (In re Anthony B. (2015) 239 Cal.App.4th 389, 396.)
Mother contends there was "insufficient evidence" to support the juvenile court's finding that no exception to adoption existed because the children would be harmed by ending their strong and beneficial relationship with mother by terminating her parental rights. But, "[i]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground in Conservatorship of the Person of O.B. (July 27, 2020, S254938) ___ Cal.4th ___ [2020 Cal. Lexis 4646 at *32, fn. 7].) Rather, "where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid., italics added; see also Breanna S., supra, 8 Cal.App.5th at p. 647.)
Accordingly, for reversal to be warranted, mother must demonstrate the evidence compels a finding that the beneficial parental relationship exception applies—that the juvenile court could not reasonably have concluded that the benefit to the children of maintaining a parental relationship with her did not outweigh the security and stability provided by adoption. Mother has failed to make the necessary showing.
Mother argues the Department's reports demonstrate she maintained a positive bond with the children. She points to the Department's acknowledgment after the children's initial detention that they were well-bonded with her. Throughout the dependency, the Department also reported the children looked forward to and enjoyed their weekly visits with mother and that the visits went well. The children stated they wanted to return to mother's care.
Yet, mother never successfully transitioned to unmonitored visits with her children because she was unable to follow the rules put in place to ensure their safety. The Department liberalized mother's visits to unmonitored day and overnight stays in early 2017 and in March 2018, but mother failed to follow her case plan: she disciplined the children inappropriately, drank alcohol, and allowed a male friend over. Mother's visits quickly reverted to monitored.
Undoubtedly, mother and the children shared a positive emotional attachment. "Interaction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) But "[n]o matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy "a parental role" in the child's life.' " (In re K.P., supra, 203 Cal.App.4th at p. 621.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]" (Autumn H., at p. 575.) Substantial evidence supports a finding that mother's parental relationship with the children did not "promote[ ] the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Ibid.)
During monitored visits, mother provided the children with food and activities and engaged them in play. But, mother presented no evidence that she participated in other significant parental activities, such as comforting the children, helping them with schoolwork, or asking after their needs and welfare. And, during her few unmonitored visits, mother struggled with how to appropriately discipline and redirect the children.
Mother's educational rights also were limited when mother failed to appear for J.P.'s IEP.
Mother had the burden to present evidence her relationship with the children outweighed the benefits of adoption. This she did not do. Mother never testified about the beneficial nature of her bond with the children or provide other evidence demonstrating the children would be greatly harmed, as compared to the benefits of adoption, if the parent-child relationship were severed. Nor did she introduce any statements from the children about their relationship with mother, other than those they made to the Department about enjoying visiting with mother and wanting to reunify with her. We are not indifferent to N.P.'s and E.P.'s wish to reunify with mother, but it falls short of proving they had "a substantial emotional attachment" with mother "that would cause [them] to suffer great harm if severed." (Breanna S., supra, 8 Cal.App.5th at p. 648.) The evidence certainly does not compel such a finding.
Finally, there was substantial evidence the children would benefit from the permanency and stability provided by adoption. The Department's reports note the children's positive relationship with their relative caregivers. The paternal aunt and grandmother were meeting the children's daily needs and provided them with love. They participated in family therapy with the children. The Department noted the children were "thriv[ing]" in their aunt's and grandmother's care. The aunt said she cared for the children very much and believed they needed a safe, permanent home. She was committed to providing it for them through adoption.
Although the children had some difficulty transitioning to living with their aunt—having lived for two years with their previous foster parents—N.P. and E.P. both said they were adjusting well to paternal aunt and grandmother's home. By the time the Department filed its report on October 21, 2019—three-and-a-half years after having been removed from mother's care—N.P. and E.P. had made substantial progress in their aunt's home. They said they enjoyed spending time with their paternal relatives. The social worker observed a positive bond between N.P. and E.P. and their paternal relative caregivers.
Whatever emotional attachment the children had to mother, based on this record, the juvenile court also reasonably could conclude the benefit of its preservation did not outweigh the benefit to the children's well-being that the stability and permanence of adoption would provide. Even when a child loves his or her parents, the court may nonetheless terminate parental rights if doing so is in the child's best interests. (§ 366.26, subd. (h)(1); In re L.Y.L. (2002) 101 Cal.App.4th 942, 955.)
Citing In re E.T. (2018) 31 Cal.App.5th 68, 76, mother argues the factors a court must consider when weighing whether the benefit of the parental relationship outweighs the benefit of adoption favor her: the portion of the child's life spent in mother's custody; whether the child's interaction with the parent was positive or negative; and the child's particular needs. (See also Angel B., supra, 97 Cal.App.4th at p. 467 [adding a fourth factor, the age of the child].) As mother asserts, N.P. and E.P. did not have any particular special needs and had a positive relationship with mother—the Department reported their monitored visits went well. By the time of the section 366.26 hearing, N.P. was 13 years old and E.P. was two months shy of turning seven. They had been out of mother's care since April 2016, when they were nine and three years old, respectively. E.P. had thus spent less than half her life in mother's custody, while N.P. had spent about two-thirds of her life with mother.
The children first came to the attention of the juvenile court in 2014, however, when they were seven and two, respectively. --------
We can infer the juvenile court—that had the opportunity to assess this family for several years—considered these factors and concluded they did not tip the scale against adoption. That N.P. had spent more time with mother than out of her custody does not compel a finding that her relationship with mother was sufficiently strong so that maintaining it would outweigh the benefits of adoption. And as we have discussed, although visits were positive, they never progressed from one monitored visit a week for two to three hours, except for the two periods the Department was required to walk back its liberalization of mother's visits. The court reasonably could conclude mother's conduct during the unmonitored visits demonstrated her inability to put her children's needs above her own.
We are not indifferent to the children's initial reticence—they had spent two years with their foster mother before moving to live with their aunt. We also acknowledge that both children said they wanted to reunify with mother. As time went on, however, the aunt said the children became withdrawn, sad, and argumentative after visits. Both N.P. and E.P. also recognized mother was not ready to care for them; N.P. began therapy to help her adjust to living without mother.
Mother contends a permanent plan of legal guardianship with their caregivers would provide the children with the stability they need while allowing them to maintain "the attachment and loving relationship" they had with mother. But, the children having spent almost four years in foster care in two different placements, the juvenile court reasonably could conclude adoption would provide N.P. and E.P. with greater stability and permanency, and that those benefits were not outweighed by the benefits they would receive by maintaining a parental relationship with mother. (Beatrice M., supra, 29 Cal.App.4th at p. 1419 ["In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, 'Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' "].) Moreover, mother presented no evidence demonstrating how severing her parental ties with N.P. and E.P. would greatly harm them. We also note the children's counsel did not object to the termination of parental rights.
We have no doubt that mother and the children love each other. However, based on the record, the juvenile court reasonably could conclude the children's attachment to mother is not so significant and positive as to promote their well-being " ' "to such a degree as to outweigh the well-being the child[ren] would gain" ' " in a permanent home with their aunt and grandmother. (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
DISPOSITION
The orders terminating parents' parental rights to N.P. and E.P. are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
DHANIDINA, J.