Opinion
G045280 Super. Ct. No. DP008145
10-24-2011
In re A.L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.Y., Defendant and Appellant.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
R.Y. (Mother) appeals from the order terminating parental rights to her daughter and freeing her for adoption. (Welf. & Inst. Code, § 366.26.)She contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We find no error and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEDURE
Detention
Then nine-year-old A.L. was taken into protective custody by Orange County Social Services Agency (SSA) in June 2009, due to neglect and caretaker absence arising from Mother's mental illness. Mother had been involuntarily hospitalized under section 5150 on May 30, 2010, due to suicidal ideation and her refusal of treatment. Additionally, she was observed drinking alcohol heavily while breastfeeding her newborn baby. Mother had a history of mental illness, with at least five prior involuntary psychiatric hospitalizations since 1991. She had an unresolved substance abuse problem, and consistently failed to provide, or withheld, food for A.L. and A.L.'s half-siblings. A.L.'s four half-siblings were immediately released to their respective fathers, but because A.L.'s father's whereabouts were unknown, she was taken into protective custody and placed with a maternal aunt.
SSA reported there had been 26 investigations by child protective services agencies since 1999 involving the family. Many of the reports, substantiated and unsubstantiated, involved allegations of general neglect, caretaker absence, emotional abuse, and sexual abuse, involving others (e.g., one of Mother's husbands, a paternal step-aunt, a neighborhood boy), but the majority involved Mother and at their core resulted from her mental illness and substance abuse. The reports followed a similar theme-Mother's chronic neglect of her children, her substance abuse and involuntary hospitalizations due to paranoid and delusional behavior, her release and subsequent refusal to take her medications. A.L. and one of her half-brothers were declared dependent children in 2003, and A.L. was placed with her maternal grandmother. Mother regained custody, and the dependency was terminated in 2004.
An SSA social worker interviewed A.L. and some of her four half-siblings. They reported they had all been living with Mother in a house in Orange. When there was food in the house, A.L.'s 13-year-old half-brother was the one who would cook and feed the other children. Mother's estranged husband (father of the newborn baby) called the police because Mother was "acting crazy." Mother said "crazy things," such as asking how long it had been since she or the children had died, or to whom the newborn belonged. A.L. reported her Mother consistently withheld food from her and her siblings and she and her 13-year-old half-brother would cry from hunger pangs. A.L. said Mother frequently had left her and her 13-year-old half-brother alone to care for the younger siblings for long periods of time. A.L. said Mother drank a lot of wine.
The maternal grandmother explained about Mother's extensive history with mental illness and numerous involuntary hospitalizations. In the past, the children had been placed with her under a guardianship, but the court terminated it as soon as Mother recovered her health. The maternal grandmother was very concerned about A.L. as she was the only one of her grandchildren who had no father with whom to live. The maternal grandmother was concerned a guardianship would just continue the cycle of uncertainty for the child.
Mother's inpatient social worker reported Mother had been placed in the "'[e]xtreme AWOL Unit'" with one-on-one supervision because she was uncooperative and at high risk. Mother refused to take her medications, was "'religiously preoccupied'" and "in denial about her mental health," believing that all she needed was vitamins. Mother dismissed the seriousness of her alcohol use saying, "'[G]od protects babies and will not let the alcohol go through to the baby,'" and that "'depression is God's way of the mother being closer to her baby after giving birth.'" She admitted abusing marijuana, methamphetamines, cocaine, heroin, NoDoz, and drinking alcohol regularly while breastfeeding. Mother was diagnosed with bipolar disorder, mixed with psychotic, polysubstance dependence.
The social worker interviewed Mother in the hospital. Mother claimed to have admitted herself voluntarily because she had been overwhelmed with taking care of five children, including a newborn. Mother preferred A.L. be placed with the maternal aunt because Mother believed the maternal grandmother was in a "'sinful'" lesbian relationship. Nonetheless, Mother indicated she was willing to have A.L placed with the maternal grandmother as her second choice.
A petition was filed alleging jurisdiction under section 300, subdivisions (b) [failure to protect], (g) [no provision for support], and (j) [abuse of sibling based on the 2003 dependency of A.L. and her half-brother]. At the detention hearing, Mother submitted on the reports and the court ordered A.L. detained in SSA's custody.
Jurisdiction/Disposition
In its reports for the July 2009 jurisdictional and dispositional hearing, SSA reported that when interviewed again in early July, A.L. again explained Mother frequently made the children go without food for long periods, sometimes as a form of punishment. Mother took A.L. and her older half-brother out of school—they had not attended since April. She reported Mother drank frequently—up to five glasses of wine a day, and had been acting "'kind of weird.'" A.L. explained she suffered from asthma, for which she had an inhaler, and had a peanut allergy, for which she carried an epi-pen. Mother threw the medications in the trash, saying A.L. had been healed. A.L. told the social worker she did not want to live with Mother. A.L. and her older half-brother were always scared because they did not know what Mother was going to do. At that time, A.L. preferred to live with her maternal aunt.
In an interview with the social worker in early July, Mother claimed her mental health issues had all been resolved, she had not been suicidal, she was just suffering a temporary psychosis due to post-partum depression. Mother denied being diagnosed bipolar, claimed her hospitalization was voluntarily, and claimed taking vitamins and attending church would be sufficient to address her mental health issues.
A.L.'s half-brother, who was now living with his father in Nevada, told the social worker his mother believed in demons and did not believe in medicine. His father (one of Mother's ex-husbands) reported that when he was married to Mother, she frequently suffered visual and auditory hallucinations and was not consistent with her medication.
On July 7, 2009, Mother informed the social worker she had again been taken into custody and hospitalized. Mother had gone to Lake Arrowhead to see her current husband, from whom she was estranged, regarding visitation with their two children (younger half-siblings of A.L.'s). Mother lost her temper and threatened to get a gun and blow her head off in front of him and the children. Later, she got into her husband's house and vandalized it. Mother's visitation was suspended; A.L. told the social worker she did not currently want visits with Mother.
At a jurisdictional/dispositional hearing on July 28, 2009, the juvenile court entered the default of A.L.'s father, sustained the petition's allegations, declared A.L. to be a dependent child, and vested her custody in SSA. The juvenile court ordered reunification services for Mother and ordered a psychiatric evaluation of Mother pursuant to Evidence Code section 730. The ordered services included that Mother: participate in the court-ordered psychological evaluation; attend individual, conjoint, family, and/or group therapy as directed by SSA; follow recommendations of the treating psychiatrist regarding medications; complete a parenting class; and submit to alcohol and drug testing.
Interim Review
At the end of August 2009, the maternal aunt decided she could no longer care for A.L. due to A.L.'s defiant behavior, and in early October, SSA moved A.L. to the maternal grandmother's house. Mother and A.L. were having regular monitored visits, which A.L. enjoyed. However, because Mother "'used to say strange things to [her]'" A.L. liked that the visits were monitored. On September 21, 2009, A.L. told the social worker, "'If I could choose, I would like to live with my mom and she could change. I would live with my dad like my brothers and sisters.'"
At a later October interim review hearing, the court accepted the Evidence Code section 730 evaluator's report into evidence. The maternal aunt and maternal grandmother told the evaluator about Mother's psychotic episodes, her neglect and abuse of her children, and her obsession with religion. Various professionals reported to the evaluator Mother could become very violent (with doctors, her children, her husbands, and others) when not on medication. Furthermore, because Mother denied she had any mental health problems, it was unlikely she would continue to take her medications. A.L. told the evaluator her first choice was to live with the maternal grandmother; living with Mother her "seventh or eighth choice" because she did not want to go back to what Mother used to do to her. A.L. related numerous instances of bizarre behavior by Mother over the years. A.L. loved her mother, but did not want to live with her and only wanted twice-weekly, monitored two-hour visits with her.
The evaluator recommended Mother's therapy include psychotherapy and medication. He concluded Mother had a significant lack of understanding about how to appropriately care for her children, and he recommended she complete at least 22 hours of parenting classes. In view of Mother's substance and alcohol abuse, the evaluator recommended Mother complete substance abuse education, including a 12-step program and periodic drug testing. He recommended twice weekly visits for a minimum of two hours each, but because of Mother's work schedule, visits were once a week for four hours. At a late October 2009 hearing, the court increased Mother's monitored visitation to six hours a week.
Six-Month Review
In its report for the January 2010 six-month review hearing, SSA reported Mother had made only minimal progress with her case plan. She had completed three sessions of parenting class. She also had completed some therapy prior to October 30, 2009, but once the Evidence Code section 730 evaluator's report was finished, Mother said she would not participate in any further counseling—her counselor was "'the Holy Spirit.'" She had done some drug testing, with negative results, but missed several tests and announced she would not test anymore. Mother refused to meet with a psychiatrist, take medication, or attend Alcoholic Anonymous (AA) meetings because all were inconsistent with her spiritual beliefs. In short, Mother had essentially stopped participating in her case plan, other than visitation, saying "'I'm not going to do all that stuff. It's against my belief. Is my child more important than God? . . .'"
A.L. was doing very well in her grandmother's home. She was in counseling, and was described by her therapist as "very mature and very adult like. Parentified. She is not used to enjoying being a kid." Mother was having regular monitored weekly visits with A.L. on Sundays at Mother's church. A.L. continued to state she preferred for visits to be monitored because of Mother's aberrant behavior. Mother had asked for a particular woman at her church, "Nancy," to be approved by SSA as the monitor. A.L. told the social worker she was not comfortable with Nancy monitoring and did not trust her because Nancy tried to make A.L. eat peanut butter, knowing A.L. was allergic to peanuts, telling A.L. she had been "'"healed."'" The juvenile court found Mother had made moderate progress in alleviating the circumstances necessitating placement, and set a 12-month review hearing for July 19, 2010.
12-Month Review
At the 12-month review, SSA again reported Mother's progress with her case plan was minimal, and it recommended terminating services and setting a permanency planning hearing. In its July 19 report for the 12-month review hearing, SSA reported Mother had been arrested for violating a restraining order obtained by her estranged husband, served 24 days in custody, and was placed on three years informal probation. A.L. continued to thrive in her maternal grandmother's home, and both A.L. and the maternal grandmother were interested in A.L. being adopted by the maternal grandmother. A.L. continued in counseling.
Mother continued to balk at participating in services, other than visitation. She had only just begun participating in a counseling program. Despite the therapist's repeated efforts to contact Mother, Mother did not schedule her first intake session until June 15, 2010. Mother attributed her problems to lack of support from the maternal grandmother and bias of the social worker. Mother claimed to have attended three AA meetings but could not produce an attendance card. She was not drug testing and refused to attend any more parenting classes.
Mother and A.L.'s weekly visits ceased for a period after an incident at a church visit during which Mother began repeatedly questioning A.L. about her half-brother, becoming hostile and inappropriate, and making A.L. feel "extremely uncomfortable." The monitor instructed Mother to cease the line of questioning, but she would not and even when the pastor tried to intervene, Mother would not stop and would not allow A.L. to leave. Visits were suspended, and then moved to SSA's offices so "problems could be handled with the assistance of a sheriff." The 12-month review hearing was continued to August 9.
On August 9, SSA reported Mother announced she was engaged to be married in August to a fellow church member. In mid-July, Mother told the social worker for the first time that for the past four months she had been attending a program called "CHOICES" that "help[ed] her with resources and finding a job." Mother could not explain why she had never told the social worker about her participation in this program. On July 22, Mother acknowledged to the social worker she was not drug testing or participating in further parenting sessions. Mother became angry and upset and told the social worker she was not going to comply with the juvenile court's orders concerning services, no one had "proven" she had a problem, and she wanted another Evidence Code section 730 evaluation.
In early August, Mother's therapist reported Mother had missed several appointments and those services were being suspended. The social worker spoke with Heidi Lindros, an "MFT Intern" from the CHOICES program, a program through the Mental Health Association that assists people with mental health issues. Lindros explained she had been Mother's therapist in the program since March 2010. She described Mother as high functioning, with insight into her episodes, and reported that even without medications Mother was "stable and doing well." The therapist was unaware of the details of the current dependency case. She referred the social worker to Mother's CHOICES psychiatrist. The hearing was continued several times.
On September 1, SSA reported Mother continued to miss appointments with her therapist and was not drug testing. On September 8, SSA reported Mother was terminated from parenting classes.
At the 12-month review hearing, SSA social worker Jaenna Kim testified about Mother's lack of participation in services. The visitation monitor told Kim that Mother and A.L. enjoyed their visits; Mother was affectionate to A.L., hugging and kissing her, and brought her food and games. Kim testified that at the beginning of the dependency, A.L. did not want to go home to Mother. She then changed her mind, saying she wanted to live with Mother, but if she could not, she would like to live with the maternal grandmother. By July 2010, A.L. told Kim she wanted to be adopted by her maternal grandmother.
Mother's current therapist testified she had only recently begun sessions with Mother—four in total. She agreed it was too early to form an opinion regarding Mother, but as yet had not witnessed or observed any kind of psychotic episode. In their sessions, Mother indicated she did not believe she suffered from bipolar disorder or any other life-long illness. Rather, Mother believed her anxiety and irrational thinking were triggered by specific life events including a boyfriend's suicide when she was a teenager, the birth of her children, and bad relationships with men. The therapist did not currently agree with the Evidence Code section 730 diagnosis of Mother, but she was not willing to testify the diagnosis was incorrect either.
Mother testified her behavior was the result of stress, typically following birth of her children or other conflicts. She described her poor relationship with the maternal grandmother, who she felt had always been trying to gain custody of A.L. Mother claimed she had largely complied with her service plan.
Following argument, the court made the requisite findings to terminate Mother's reunification services and set a section 366.26 permanency planning hearing for January 11, 2011.
Permanency Planning Hearing
In its first report for the permanency planning hearing, SSA reported Mother and A.L. visited twice weekly at SSA offices, although Mother had missed seven visits in November and December 2010. The visits went well. The maternal grandmother was committed to adopting A.L. A.L. and the maternal grandmother were "very bonded and attached . . . ." A.L. told the social worker she understood what adoption meant, she wanted to remain with the maternal grandmother and be adopted by her: "[A.L.] also stated she knows that her grandmother will be her mother and that her biological mother will no longer be her [sic].[A.L.] stated that she knows the ramifications of adoption and still feels that this would be best for her." The maternal grandmother had provided care for A.L. "regularly and at various times throughout her life: including for 17 months when A.L. was placed in her care at age three. The maternal grandmother was supportive of A.L. maintaining her ongoing family relationships, and supported continuing to allow monitored weekly visits between A.L. and Mother.
In its February 7, 2011, report for the permanency planning hearing, SSA reported that in a mid-January interview, the maternal grandmother stated she preferred adoption over guardianship because adoption would provide more long term stability for A.L. A.L. again told the social worker she wanted to be adopted by the maternal grandmother, who she trusted to take care of her—"'I just want to be with my grandma.'" A.L. said she liked visiting with Mother, but only if another person was present. On March 3, 2011, SSA reported that in mid-February, A.L. again told the social worker she wanted to be adopted and she did not feel comfortable being alone with Mother.
A.L., now age 11, testified at the permanency planning hearing outside Mother's presence. She liked living with her grandmother. She explained her mother "doesn't really feel like a mom, but does in a way because I like to call her mom." She liked to call her grandmother "Grandma," but said "my grandma feels kind of like my mom . . . ." A.L. felt she had a special bond with Mother, she enjoyed visiting her and would be sad if visits stopped, but only wanted to see her once a week. A.L. felt she was closer to her grandmother and was more comfortable talking to her than Mother.
A.L. explained what adoption meant to her: "Adoption means to me that you're going to be with this person until you're 18 and you have to—adoption means that you have to have a kind of relationship with the person when she adopts you, and you have to make sure this person's safe. And adoption means to me that they are kind of taking the place of my Mom but my--they are never going to take away the place of my Mom but, you know, they are kind of taking the responsibility." A.L. understood that if she was adopted, her grandmother could potentially stop A.L. from visiting with Mother. A.L. testified she would not like it if she could never see her mother again, but she trusted her grandmother to allow her to continue to see Mother with a monitor.
A.L. testified the social worker explained that under a guardianship, she could have a slight chance of going back to Mother. A.L. did not mind guardianship but preferred adoption. A.L. understood that with guardianship, the court could order visitation with Mother, whereas with adoption it could not. Nonetheless, A.L. said she "prefer[red] adoption because I feel like that if anything does go wrong, then I feel like I have someone to help me." She felt safer being adopted than under a guardianship. She felt safe with her grandmother. A.L. said she loved her mother and "would love to go back with her," if she was well and A.L. felt she could trust her. But when it came to safety and similar matters, A.L. thought it would be better for her to stay with her grandmother. After more questioning, A.L. testified she could "go with" both guardianship and adoption. "And I believe that if [Mother] does--does do well for quite a while, then I don't have a problem going back with her. Because I do love my Mom, and I do feel like she's some[one] important to me. And believe it or not, if my Mom wasn't like this, then I'd want to be with her." A.L. also testified it would hurt her heart if she could not see her brothers and sisters again.
The maternal grandmother, who had been granted de facto parent status, testified that A.L. lived with her from age seven months to a year and a half, then again for a seven month period when she was three years old. A.L. had currently been in her care again for the past year and a half. The maternal grandmother preferred adoption over guardianship and long-term foster care. She believed adoption would give A.L. a sense of permanency, and give A.L. "pretty strong lines" before she hit her teen years when A.L. might want to try to play Mother and the maternal grandmother against each other, which the maternal grandmother thought a teenager might do.
The maternal grandmother planned to continue A.L.'s visits with Mother, which she thought would benefit A.L., because she and Mother have a strong relationship. The maternal grandmother agreed A.L. loved Mother and they had a strong bond. When the maternal grandmother suggested to A.L. that she discuss the permanency options with her therapist, A.L. responded it was not necessary because she had already decided on adoption. The maternal grandmother thought A.L. equivocated on the stand because she was concerned about hurting Mother's feelings.
The maternal grandmother testified A.L. had a very strong bond with her half-siblings (with the possible exception of the youngest with whom she spent little time.) The maternal grandmother would definitely allow A.L. to visit her siblings and other extended family members if she were adopted, noting those children were also the maternal grandmother's grandchildren and Mother's parental rights as to them were intact. The maternal grandmother testified if the court decided not to terminate Mother's parental rights, she would be hesitant to accept guardianship. The maternal grandmother would consider having A.L. placed with her under a plan of long-term foster care, which she though put her in a better position to adopt later.
Mother testified she had been A.L.'s primary caretaker for most of her life, except when A.L. was out of her care. A.L. called her "mom" and whenever they saw each other A.L. told Mother she loved her. Their visits went well. Mother believed it would not be in A.L.'s best interests to have Mother's parental rights terminated.
The juvenile court found A.L. was adoptable, that none of the exceptions to adoption had been proven. With respect to the parent-child beneficial relationship exception to adoption, the juvenile court stated there was an attachment and a relationship of love and affection between A.L. and Mother. But A.L. looked to the maternal grandmother for parental guidance and support. The juvenile court concluded the attachment did not rise to the level such that termination of the relationship would greatly harm A.L. and outweigh the benefits to be derived from permanency. The court reasoned A.L.'s hope she and Mother might be united at some future time defined the lack of a current beneficial relationship. The juvenile court terminated parental rights and ordered A.L. placed for adoption.
DISCUSSION
Parental Benefit Exception
Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. We find no error.
At a permanency planning hearing, the juvenile court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) An exception to the adoption preference occurs 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 parent bears the burden of proof on both these prongs: (1) that visitation was consistent and regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.)
Here, the juvenile court found Mother satisfied the first prong of the parental benefit exception with regular and consistent visitation, and SSA does not argue otherwise. Nonetheless, we cannot say the juvenile court erred by concluding the second prong was not met.
To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(B)(i), exception must prove that severing the relationship will cause not merely some harm but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, "the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).)
In Autumn H., supra, 27 Cal.App.4th at page 575, the court articulated a test for determining whether a child would benefit from continuing a relationship with the natural parent. To succeed under this test, the parent must establish "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 evaluating this issue, the 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." (Ibid.) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond[, including t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at pp. 575-576; see also In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.).)
"[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption." (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) "[F]requent and loving contact" may also be insufficient to establish the type of beneficial relationship "contemplated by the statute." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) "'Interaction between [a] natural parent and child will always confer some incidental benefit to the child[,]'" but the basis of a beneficial relationship is that the parents have "occupied a parental role." (Id. at p. 1419.) "'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.'" (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Whether we apply the abuse of discretion standard or the substantial evidence standard (see Jasmine D., supra, 78 Cal.App.4th at p. 1351 ["practical differences between the two standards of review are not significant"]), the result on appeal is the same. Substantial evidence supports the juvenile court's conclusion termination of parental rights would not cause the child detriment because Mother has failed to demonstrate the benefit A.L. would receive from maintaining their relationship outweighs the benefits she will gain in a permanent home with an adoptive parent. (See Autumn H., supra, 27 Cal.App.4th at p. 574 [parent bore burden of establishing termination of parental rights would greatly harm child]; accord Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Mother argues application of the Autumn H./Angel B. factors—"(1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs" (see Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted)—compels a finding she proved the parental benefit exception. A.L. was nine years old when detained, and 11 years old at the time of the permanency hearing. She had been in Mother's care for over half her life. A.L. had a "special need for a spiritual connection to God and church attendance that [the maternal grandmother] was not meeting." And Mother contends her and A.L.'s interactions were "unquestionably positive," and the two shared a special bond. Mother has not demonstrated the exception applies.
In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.),illustrate the compelling evidence necessary to establish the benefit exception. In Jerome D., supra, 84 Cal.App.4th at page 1206, the child "seemed lonely, sad, and . . . 'the odd child out'" in his placement. He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at pp. 1206-1207.) A psychologist opined the child and his mother "shared a 'strong and well[-]developed' parent-child relationship and a 'close attachment' approaching a primary bond." (Ibid.) The court concluded that keeping parental rights intact would prevent the child's "position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained [the mother's] children." (Id. at p. 1208.)
In Amber M., supra, 103 Cal.App.4th at page 690, the court reversed termination of parental rights where a psychologist, therapists, and the court-appointed special advocate uniformly concluded "a beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption." Additionally, two older children had a "strong primary bond" with their mother, and the younger child was "very strongly attached to her." (Ibid.)If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)
Here, Mother did not demonstrate harm would have ensued from termination of parental rights similar to that demonstrated in Amber M. or Jerome D. At the permanency stage, the bond the child shares with the parent and the harm that might arise from terminating parental rights must be balanced against what is to be gained in a permanent stable home, and "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption.
While Mother points out A.L.'s years spent in her care, she ignores the overwhelming evidence of negative aspects of those years. The current dependency case was preceded by dozens of investigations into the family's situation, Mother's multiple involuntary psychiatric hospitalizations, her violent behavior and tirades, and destructive parenting that included withholding food from her children, leaving them unsupervised for long periods, excessive drinking in their presence, and even discarding A.L.'s prescribed allergy medications because Mother deemed the child to be "healed." When she was taken into protective custody, A.L. first said she did not want to reunify with Mother and did not want visits with her. The maternal grandmother testified to A.L.'s years of an unstable and chaotic life with Mother. Although Mother and A.L. did start having visits, and the visits were enjoyable for A.L., A.L. was adamant she did not want to be left alone with Mother because she did not trust her—A.L. would only attend monitored visits. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 523 [benefit exception difficult to invoke when parent has not advanced past monitored visitation], disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) We are hard-pressed to envision a fact more indicative of the lack of a beneficial parental bond than a child's own testimony she does not want to be left alone with her parent. A.L. told social workers and testified she viewed the maternal grandmother as her mother, trusted her grandmother, but not her mother, and wanted to be adopted by her grandmother.
Mother argues this case is similar to In re S.B. (2008) 164 Cal.App.4th 289 (S.B.),in which the Court of Appeal concluded the juvenile court erred in finding the parental benefit exception did not apply. The father in S.B. had maintained regular, consistent, and appropriate visits with the child throughout the dependency proceedings and they had "'an emotionally significant relationship.'" (Id. at p. 298.) The father had been the child's primary caretaker for three years when she was removed from his custody. Upon her removal, he recognized his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and complied with every aspect of his case plan. (Ibid.)The child loved the father, wanted their relationship to continue, and "derived some measure of benefit from his visits." (Id. at pp. 300-301.) A psychologist conducted a bonding study of the father and child and testified that, due to their "fairly strong" bond, "there was a potential for harm to [the child] were she to lose the parent-child relationship." (Id. at pp. 295-296.) The appellate court concluded that "[b]ased on this record, the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father]." (Id. at p. 301.)
Although there are some similarities between S.B. and this case, we also note the appellate court which decided S.B. stated later in a different case: "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. (2009) 175 Cal.App.4th 922, 937.) Quite recently the same court in In re C.F. (2011) 193 Cal.App.4th 549, 558 (In re C.F.), lamented that, "[o]ur effort in Jason J. to discourage the improper and inaccurate use of our opinion in S.B. has not been successful. Following Jason J., in literally dozens of unpublished opinions various panels of this court and courts in other appellate districts have been required to distinguish S.B. on its facts and repeatedly reject the notion a parent can prevent termination of parental rights by merely showing there is some measure of benefit in maintaining parental contact. We have not found any case, published or unpublished, in which a reviewing court, relying on S.B., provided relief to a litigant whose parental rights were terminated."
Here, as in S.B., Mother had been A.L.'s primary caretaker for much of her life, maintained consistent visitation with A.L., and visits went well, and A.L. loved her mother. But there the similarities end. Here, Mother's years with A.L. were marked by chaos and interrupted several times by Mother's involuntary hospitalizations, a prior dependency, and A.L.'s placements with the maternal grandmother or maternal aunt on prior occasions. Mother was not in full compliance with her case plan—she balked at much of what was required because she found it conflicted with her spiritual beliefs. And the nature and quality of Mother's visits with A.L. were quite different from the parent/child visits in S.B. The visits never proceeded past monitored visits; A.L. herself wanted the visits limited and did not want to visit Mother without a monitor present. A.L. looked to her grandmother as the primary parental figure, testifying it was her grandmother that she trusted to take care of her, not Mother. And although A.L. testified she would be upset were she not to see her mother again, there was no testimony from a psychologist or a bonding study showing that termination of parental rights would be detrimental to her. (See Amber M., supra, 103 Cal.App.4th at pp. 689-691 [order terminating parental rights reversed where experts opined children had a primary beneficial relationship with parent outweighing benefit of adoption].) In short, the record supports a finding the benefit A.L. might gain by continuing her relationship with Mother was outweighed by "the well-being [A.L.] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, we conclude the juvenile court did not abuse its discretion by concluding the parental benefit exception did not apply.
Post-Adoption Visitation
Mother also cites S.B., supra, 164 Cal.App.4th 289, to support her contention the juvenile court based its termination decision on an impermissible assumption the maternal grandmother will permit continued contact between Mother and A.L. after adoption. As Mother points out, the appellate court in S.B., supra, 164 Cal.App.4th at page 300, noted, "The [juvenile] court recognized that [the child] would benefit from continuing her relationship with [the father] and based its decision to terminate parental rights in part on the grandparents' willingness to allow [the father] to continue to visit [the child]. We do not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." But here there is no indication the juvenile court relied on the maternal grandmother's willingness to allow contact between Mother and A.L., if she felt it to be appropriate, in concluding the beneficial relationship exception did not apply. As we have discussed, the juvenile court's findings are reasonable and supported by the record, and we will not disturb them on appeal.
DISPOSITION
The order terminating parental rights is affirmed.
O'LEARY, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.