Opinion
A150805
03-09-2018
In re B.E. et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. VIRGINIA W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV140210-1; JV140210-2)
Mother Virginia W. appeals an order of the juvenile court terminating her parental rights to her daughters, B.E. and C.E. She argues that the court erred in failing to apply the beneficial relationship exception to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). We conclude there was no error, and we affirm.
All statutory references are to the Welfare and Institutions Code.
Petition, Detention, Jurisdiction, and Disposition
Virginia and Fred E. are the parents of two girls, B.E. and C.E., who were five years, eleven months and four years, three months old, respectively, at the time this dependency proceeding commenced in November 2014. The referral that precipitated this proceeding was received from a health clinic that reported Fred was under the influence of a substance when he showed up with the children, who smelled bad and were very dirty and dressed in filthy pajamas. Fred had a methamphetamine pipe in his possession and was arrested on an outstanding warrant, and B.E. and C.E. were taken into protective custody. According to the police, Fred and the girls were living in squalid and unsanitary conditions in a camp on the edge of a river, while Virginia was apparently living in a shed and her boyfriend had purportedly locked her and the children inside for long periods of time.
On November 17, 2014, the Humboldt County Department of Social Services (Department) filed a Welfare and Institutions Code section 300 petition containing failure to protect and no provision for support allegations. (§ 300, subds. (b), (g).) Following an initial detention hearing, the juvenile court ordered B.E. and C.E. detained.
In its January 2015 jurisdiction report, the Department informed the court that Virginia and Fred had a history of domestic violence and long criminal records and both suffered from substance abuse and mental health issues and chronic homelessness. The Department recommended the court take jurisdiction over the children, and it did so at a January 14 jurisdiction hearing.
Because this appeal is brought only by Virginia, we omit details regarding Fred except where relevant to the issues before us.
The Department's disposition report informed the court that B.E. and C.E. had been chronically neglected, which had taken a particularly serious toll on B.E. Among other things, she had severe dental issues due to a lack of dental care, necessitating the removal of 12 of her 20 teeth, and had been diagnosed with failure to thrive.
At a February 17 disposition hearing, the court declared B.E. and C.E. dependents and ordered reunification services for both parents.
Six-month, Interim, 12-month, and 18-month Reviews
In a August 2015 six-month status report, the Department advised that on May 23, Virginia had been arrested on an outstanding warrant. She had remained in custody for over two months, and on July 28 had been released to a residential substance abuse treatment program. At the time of the August 2015 report, she was still in the treatment program. Virginia had also not made progress on other components of her case plan. Nevertheless, the Department recommended six more months of reunification services. Court-appointed special advocate (CASA) Sherry Hazelton submitted a report concurring with this recommendation.
At the September 2 six-month review, the court continued services as to Virginia and set a 90-day interim review regarding the status of unsupervised visitation.
In a 90-day interim review report, the Department had positive observations about Virginia's progress. She had completed a 90-day residential drug treatment program and was living with her sponsor while she searched for housing. She had completed a parenting program, and she had agreed to participate in collateral therapy with B.E. and C.E. to assist her with implementing the parenting skills she was learning. On November 1, she had begun unsupervised visits with the children at the visitation facility. According to Virginia, she had terminated her relationship with Fred because he was still using drugs.
In its February 2016 12-month status report, the Department reported that Virginia was continuing to make progress in her substance abuse treatment. However, she had some attendance issues in the aftercare program, and one of C.E.'s teachers had reported that she and Fred attended a December 17 school event smelling of alcohol. Fred had also reported that Virginia was living with her new boyfriend, who was a drug dealer, and had been drinking and doing drugs. The Department believed that if Virginia was able to maintain her sobriety and address the other components of her case plan, as well as to demonstrate the ability to protect the children from Fred, reunification by the 18-month mark was likely. Accordingly, the Department recommended extension of Virginia's reunification services.
It recommended termination of services for Fred, who had not engaged in any services since the six-month review hearing and had not made any behavioral changes since B.E. and C.E. were detained.
CASA Hazelton reported that B.E. and C.E. were thriving in their foster placement. B.E. loved the "stability, safety and family dynamic of the home," while C.E. "seem[ed] to have a sense of being safe, sound and content in her placement." C.E. expressed a desire to stay with the foster mother (whom she referred to as "Momma") if reunification was not possible. According to Hazelton, the girls seemed to enjoy visits with Virginia and were "very sad" when the visits ended. She agreed with the Department's recommendation that reunification services be extended.
At the February 23, 2016 12-month review hearing, the court continued Virginia's reunification services.
The Department's 18-month status review report recommended that B.E. and C.E. be returned to Virginia's care under family maintenance. Virginia was engaged in aftercare and individual counseling, had maintained a clean, safe, and stable residence for three months, was appropriate with B.E. and C.E., and had "demonstrated the willingness and ability to access supportive services to assist her in living a clean and sober lifestyle."
CASA Hazelton agreed with the Department's reunification recommendation. She observed that the children's foster placement had provided a stable household in which the girls had prospered, and they benefited from having regular meals and a place to sleep that made them feel safe. They were bonded with Virginia, however, and were " 'over the moon' " to have overnight visitation with her, which had begun in April 2016. Hazelton believed B.E. and C.E. were eager to permanently reside with Virginia. They loved their bedroom and the fenced yard at Virginia's house, and it appeared to be "a safe environment where they can enjoy the warmth of a family unit . . . ."
At the May 10 18-month review hearing, the court ordered that B.E. and C.E. be reunified with Virginia under family maintenance services.
The court suspended Fred's visitation, finding it was detrimental to the children.
Section 387 Supplemental Petition
On September 6, 2016, a mere four months after reunification, the Department received a referral regarding two incidents that had occurred in July or August. In one, Virginia had taken B.E. and C.E. to see Fred, despite that she had a restraining order against him and that the court had found visits between him and the children to be detrimental. In another, Virginia had taken the girls to visit their aunt, riding the bus part way but then calling Fred and asking for a ride the rest of the way. Virginia's boyfriend found out she was with Fred, showed up where they were parked, and began fighting with Virginia. While B.E. and C.E. were still in Fred's truck, the boyfriend slashed the truck's tires and threw a rock through the window. The broken glass hit C.E. in the head and the rock struck her leg.
The social worker interviewed B.E. and C.E., who essentially confirmed what the Department had learned. Asked if David ever hit their mother, B.E. started to say, " 'Only when they . . . ,' " but then paused, smiled, and said, " 'Nope.' " B.E. said she was worried her mother was going to die. She also said C.E. screamed so loudly at night she worried her mother's eardrums were going to break.
B.E. and C.E. were returned to foster care, and the Department filed a supplemental petition for a more restrictive placement. At a detention hearing on the petition, the juvenile court found there was a need for the continued detention of the children.
In the Department's jurisdiction report on the petition, the Department recommended that B.E. and C.E. remain in foster care because Virginia had once again exposed them to domestic violence and was again drinking alcohol. At an October 12 jurisdiction hearing, the court sustained allegations that Virginia was unable or unwilling to protect B.E. and C.E. from harm and had placed them at serious risk of physical and emotional harm.
In its disposition report, the Department requested that the court set a section 366.26 permanency hearing. It believed Virginia was unable or unwilling to adequately supervise B.E. and C.E., as she had continued to allow them to have contact with their father, exposed them to acts of domestic violence, chastised them for discussing the incidents with the social worker, and relapsed with alcohol. Significantly, the 24-month date from the children's initial removal was November 13, 2016—three days after the scheduled disposition hearing on the section 387 petition. Thus, according to the Department: "The time for reunification has expired and at this point, it is in the children's best interest to move to permanency."
As to the children's relationship with their mother, the Department reported that Virginia had resumed twice-weekly visits with B.E. and C.E. and was affectionate and appropriate with them. However, she had violated protocol by promising the girls she would buy them a puppy and a bunny and telling them they would all be moving into a bigger house together. B.E. had told the social worker "she wants to live with her mom because she misses her heart pillow and her kitten (which she has never met, as the mother got the kitten after the children were removed from her care)," while C.E. stated "she wants to live with her mom because she misses her room and her mom."
CASA Hazelton likewise recommended that the court bypass reunification services and set a section 366.26 hearing. She noted that the girls, particularly B.E., displayed anxiety that they might be adopted and never see their mother again or that she would die before they could live with her again. She also noted that each girl identified her sister and then Virginia as the most important person to her. Nevertheless, the girls were thriving in the foster home, and Hazelton did not believe Virginia knew how to do what she needed to do on a long-term basis.
At a contested disposition hearing on November 10, 2016, the court stated that an immediate return to family maintenance was not an option given the circumstances and it could not extend services because 24-month date was three days away. It thus bypassed services and set a section 366.26 permanency hearing for March 8, 2017. The children remained placed with the same foster parent with whom they resided prior to returning to Virginia's care.
Section 388 Request to Change Court Order
On January 31, 2017, Virginia filed a section 388 request, seeking to have B.E. and C.E. returned to her care or reunification services reinstated. She claimed she had completed the "Healthy Moms" drug and alcohol program, resumed biweekly therapy to address domestic violence and other issues, engaged in alcohol and drug testing with negative results, and visited the children regularly. Additionally, her boyfriend was voluntarily receiving weekly counseling services. Virginia claimed the requested change would be better for the children because they "are bonded with mother. Children are old enough to express their desire to be with mother. They deserve the opportunity to have a relationship with their mother, in a home that she has provided, with family they have strong ties to. The children have experienced inconsistency in their past, the mother has corrected those issues and can provide the children the stability they need."
On February 17, the Department objected to Virginia's section 388 petition, advising that while Virginia represented she had completed the Healthy Moms program, she was attending it but had not in fact completed it. Additionally, it noted that three of Virginia's drug tests were diluted urine tests, which are considered positive tests. An addendum advised that Virginia's attendance in therapy had been sporadic. Additionally, according to the children's foster mother, B.E. was recently pretending she had a boyfriend who had gouged her eye out. When the foster mother intervened, B.E. responded that she did not want to leave her imaginary boyfriend because " 'I just love him so much.' " According to the Department, this evidenced B.E.'s "internalizing the destructive cycle of domestic violence that she has been exposed to."
A hearing on Virginia's section 388 petition was scheduled to coincide with the section 366.26 hearing.
The Department's Section 366.26 Report, Adoption Assessment, and CASA's Recommendation
In its section 366.26 permanency report, the Department detailed the nature of the relationship between Virginia and her children, describing their interactions as "generally . . . positive" since the inception of the case. The visits tended to center around fun activities, such as playing with toys and doing craft projects, but Virginia frequently had difficulty enforcing rules with the children. B.E. and C.E. had told the social worker that their mother had made them multiple promises, including that she would buy them a kitten, puppy, or bunny if they came home, they would move to a big home together, and they were not going to be adopted.
The Department reported that B.E. and C.E. were both adoptable and were placed in a concurrent home with a care provider who would like to adopt them. It described the girls as ambivalent about adoption throughout the case but explained that this ambivalence appeared to stem from their belief that adoption meant moving far away to live with strangers. They had expressed concern about having to move in with mean foster parents and not being able to see their loved ones anymore and were relieved to learn that their foster mother would be the one to adopt them if that became the permanent plan. While the children said they would be sad if they were adopted and were concerned their mother would be sad, they also said they could not wait to have the same last name as their foster mother. Additionally, they both wanted to sign up for softball even if it meant missing visits with their mother.
The Department described B.E. and C.E. as quick to attach to new adults and easy to transition from one caregiver to another, although they both displayed difficulty in understanding that adults were not interchangeable. For example, in April 2016, the girls were briefly placed with a licensed foster parent whom they had never met, immediately referred to her as " 'mama,' " and cried for a few hours after learning they would be moving out of her home after just five days. Similarly, after being detained again in September 2016 and placed with a new caregiver, C.E. told the new caregiver, " 'I love you mommy' " within 30 minutes of arriving. In November 2016, the children met the caregiver's daughter's grandmother, and within 10 minutes, B.E. told her, " 'I love you grandma.' "
In the end, the Department recommended termination of Virginia's parental rights with adoption as the permanent plan. It believed adoption greatly outweighed any parent-child bond between Virginia and the girls because it was clear B.E.'s and C.E.'s "desperate need for stability and permanency" was greater than their bond with their mother.
The Department's adoption assessment described both children as adoptable. They were "happy and healthy children who have a strong connection" with their foster parent, and they looked to her, rather than their mother or father, for comfort and support.
CASA Hazelton agreed with the Department's recommendation. She did so, however, with reservations: "Quite frankly this is the first case I have had in over ten years that has me questioning what is the correct home for these girls only because these girls clearly love their Mother but I do not feel she is responsible enough to stay sober, focused on her girls and their needs and not hers or her boyfriend or even the Father. I have strong reservations about her parenting skills since she has allowed them to stay up until 2:00 a.m., eat whatever they want and watch inappropriate movies. I have tried to determine what really happened when she took the girls to Rio Dell and broke the restraining order against the Father and still she is not forthcoming but rather maintains that the Father lied about what happened and will do anything to keep her from the girls. I do not feel as though the Mother has appropriate parenting skills or that her focus is totally on her children's safety."
Regarding the children's views of adoption, Hazelton reported: "The girls told CASA that they would be okay being adopted but worry about their Mother being sad. [C.E.] said she would be a little happy to be adopted but also really sad for her Mom. [B.E.] told CASA she would not mind being adopted, as long as she could stay in her current foster home but also that she worries she will not ever see her Mother when she and [C.E.] are teenagers. . . . [C.E.] told CASA she likes her current foster home and wouldn't mind being adopted by her foster Mom but will be sad because her Mom will be sadder."
Contested Hearing on Virginia's Section 388 Petition and Permanency
Virginia's section 388 petition and the matter of permanency came on for a contested hearing on March 8, 2017. At the outset of the hearing, counsel for Virginia requested that B.E. and C.E. be available to testify. County counsel objected that their testimony was irrelevant and it would be traumatizing for the children. Instead, he argued, it would have been more appropriate for Virginia to have sought a bonding study, which she did not do. The court denied the request, and then heard testimony from the following four witnesses:
Chere Kane was the parent educator for the County Mental Health Department and worked in the Healthy Moms program. She testified that Virginia was expected to graduate from Healthy Moms in March 2016. She was drug testing at random about twice a week and had no positive results, although she had three dilute tests. Kane acknowledged that while Healthy Moms addresses domestic violence, it is not a court-approved domestic violence program.
Virginia's boyfriend testified that he and Virginia had been together almost two years. Since November 2015, there had not been any domestic violence incidents between them, nor had he had any contact with Fred. He was voluntarily participating in anger management counseling and had been clean and sober for four years.
Virginia testified about her recent progress. She was participating in the Healthy Moms program, a DUI program in order to get her driver's license back, and a sheriff's work program as an alternative to jail time for a 2012 DUI. She was attending AA, NA, and "Celebrate Recovery" meetings four to five times a week. She had been participating in counseling, but she was dropped from the program in January after she missed three sessions.
Turning to her relationship with B.E. and C.E., Virginia testified that she visited them twice a week, and they generally did fun activities like arts and crafts or went places like the zoo, "Bounce-A-Palooza," the mall, or out to eat. B.E. liked to use Virginia's phone to play games and take photos and videos. Virginia had not missed any visits since November. According to Virginia, the girls "love" seeing her, and it "hurts them" and they cry when they have to leave. The girls told her they want to come home and would be "sad" to be adopted. She claimed these were spontaneous statements by the children.
Fred also testified, with most of his testimony relating to his request for resumption of reunification services. As to his relationship with Virginia, he acknowledged they had engaged in domestic violence but claimed that Virginia was the only one arrested for it.
The court then heard argument. County counsel began by arguing there were no changed circumstances warranting reinstatement of reunification services or return of the children to Virginia's care and that after almost three years, the girls "desperately need permanency." He elaborated: "They need stability. They cannot be in limbo any longer. That's really evidenced in the reports, discussion of the visitation with the mother. The mother's own testimony, which the girls are extremely conflicted and back and forth. They clearly get attached to people easily. They have some attachment issues. They also have a sense of loyalty and they feel that they need to placate their mother while also placating the other adults in their lives. They're really clearly caught in the middle. They don't deserve that any longer. They deserve a sense of permanency, a sense of security, and established stability."
Virginia's counsel contended the evidence showed changed circumstances, claiming the only thing preventing return of the children to Virginia's care was the one incident the previous summer but that Virginia had mitigated any concerns about the risk to the children. He also argued that if the court denied Virginia's section 388 petition, the question would be whether termination of parental rights was appropriate, and Virginia's visitation record showed that it was not, as she had not missed a single of her twice-weekly visits for six months. When combined with all of the visits since the dependency started in 2014 and the period of time she and the children were reunified, they have an "incredibly strong bond. . . ."
Virginia's counsel further argued that CASA Hazelton's report provided additional evidence of the bond between Virginia and her children: "[C.E.] is quoted by the CASA as saying they feel bad having been taken from their mother and they fear missing their mother if they're going to be adopted. They told the CASA in February that they do not want to be adopted because they think they will not be able to see their mother when they are teenagers. These kids are looking forward to a relationship—the stages of their life and spending that with their mother given the long period of time they've been together in their young lives, and you know, this is a tough situation that even the CASA mentioned in the report which is very detailed about the contacts and these kids. CASA is also struggling with what is the best thing for these kids given their strong connection to the mom. She said quite frankly this is the first case I have had in over ten years that has me questioning what is the correct home for these girls because of their clear love for their mother."
Counsel for B.E. and C.E. joined in county counsel's arguments, adding, "the ones that are struggling and suffering the most turmoil are these children because they've been subjected to things that they have by these parents and they're subjected to it with the ongoing lack of permanency in their lives. . . . I would just strongly urge the Court that it would be in the children's best interest to give them permanency and follow the recommendations of the Department."
County counsel then closed with this observation: "In looking at the parent-child bond, the Court doesn't just look at the age of the children or the expressed love of them but has to look at the bond and whether it's so significant that it will actually be detrimental to the children. I don't see that here. The kids express love. Yes, they're in and out of their parents' care for some time during their life. But I see the relationship as actually quite toxic. I see domestic violence occurring in front of them up until just recently. I see a lot of blaming, kids blaming themselves for being removed, mom's blaming the kids for violating protocol. I see relapsing, consistent relapsing in front of the children according to the CASA report. And mom said that she's taking advantage of all the resources to address these issues, yet she left the [domestic violence] program which seems to be the biggest and most glaring issue in the case for her and did not re-engage in the program."
Following argument, the court announced it was time to put B.E.'s and C.E.'s interests first. It commended Virginia for her efforts but noted that she was "in the midst of what she has tried before" and her efforts were not enough. And, as the best interests of the children weighed "heavy in [its] mind and heart," the court intended to follow the recommendations of the Department and the CASA. Accordingly, it denied Virginia's section 388 petition, terminated her parental rights, and identified adoption as the permanent plan for B.E. and C.E.
This timely appeal followed.
DISCUSSION
The Law Governing the Beneficial Parent-Child Relationship Exception to Termination of Parental Rights
At the section 366.26 permanency hearing, the juvenile court's task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1)); In re Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights and order the child placed for adoption, unless it finds termination would be detrimental to the child under one or more of the statutorily-specified exceptions. (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) One such statutory exception is the beneficial parent-child relationship exception, which provides that the juvenile court cannot terminate parental rights where it "finds a compelling reason for determining that termination would be detrimental to the child" because the "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).) This has been described as a two-prong analysis: "The first prong inquires whether there has been regular visitation and contact between the parent and child. [Citation.] The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. [Citation.]" (In re Grace P. (2017) 8 Cal.App.5th 605, 612.)
The "benefit" necessary to trigger the beneficial relationship exception is not statutorily defined. It has been judicially construed, however, to mean that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In 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. (1994) 27 Cal.App.4th 567, 575.) The overriding concern is whether the benefit gained by continuing the relationship between the biological parent and the child outweighs the benefit conferred by adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156.) Factors to be considered when determining whether a relationship is sufficiently strong and beneficial to outweigh the benefit of adoption include: "(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." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)
The parent seeking to prevent termination of his or her parental rights by asserting the beneficial relationship exception bears the burden of proving the applicability of the exception by a preponderance of the evidence. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re Valerie A. (2007) 152 Cal.App.4th 987, 998.)
Standard of Review
As Virginia correctly notes, there is a lack of consensus regarding the standard of review applicable to an appellate challenge to a juvenile court ruling rejecting a claim that an exception to adoption applies. For example, some courts have reviewed the challenged decision for substantial evidence. (See, e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) Others have applied an abuse of discretion standard. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) And still others are of the view that appellate review of an adoption exception incorporates both the substantial evidence and abuse of discretion standards. (See, e.g., In re Breanna S. (2017) 8 Cal.App.5th 636, 647; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J., supra, 189 Cal.App.4th at p. 1315; In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) The court in In re J.C., supra, 226 Cal.App.4th at p. 530 explained the hybrid standard this way: " 'Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination.' [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes 'a "compelling reason for determining that termination would be detrimental" ' to the child. [Citation.] This " ' "quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption," is appropriately reviewed under the deferential abuse of discretion standard.' [Citations.]" We are persuaded the hybrid standard is the proper one, and that is the one we shall apply.
It has been said that the practical differences between the standards are "not significant," as all three give deference to the juvenile court's judgment. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
The Juvenile Court Did Not Err in Terminating Virginia's Parental Rights Instead of Applying the Beneficial Parent-child Relationship Exception to Termination
There is no question here that the first prong of the beneficial relationship exception—regular visitation—was supported by substantial evidence. Without question, Virginia maintained a solid visitation record over the course of the dependency proceeding, regularly visiting B.E. and C.E. from the time of their initial removal in November 2014 to their brief reunification in May 2016, and again after their second removal in September 2016 up to the section 366.26 hearing. We thus turn our focus to the second element—whether B.E. and C.E. would benefit from continuing that relationship. (§ 366.26, subd. (c)(1)(B)(i).) As noted, this element asks whether the relationship promotes the children's wellbeing to such a degree that it outweighs the wellbeing they would gain in a permanent, adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We conclude the trial court did not abuse its discretion in finding it did not.
Virginia points to what she describes as the "significant positive relationship" she shared with B.E. and C.E. The record showed that during visits, they did fun activities like arts and crafts, took trips to the zoo and other places, or went out to eat. The girls enjoyed their visits with her and were sad when they ended. CASA Hazelton described B.E. and C.E. as " 'over the moon' " when overnight visits began. This indeed demonstrated that Virginia and her children shared a loving relationship, and we do not disagree that this relationship conferred some benefit on the children. However, Virginia's burden was greater than that, as "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As the court stated in In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109: "[T]he parents must do more than demonstrate 'frequent and loving contact' [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy 'a parental role' in the child's life. [Citation.]" (Accord, In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419 [beneficial relationship exception applies to situations where dependent child benefits from a continuing parental relationship but not where parent has maintained frequent contact but does not stand in a parental role].) This, she failed to do.
Virginia asserts that "the children lived with their parents for a significant time before the dependency proceedings were initiated." She provides no record citation to support this claim, and our review of the record found no evidence indicating how long, if at all, B.E. and C.E. had lived with Virginia before the dependency. Thus, there was no evidence Virginia, who was in and out of jail due to six felony DUI charges, had parented the children prior to their initial detention or that they had ever lived with her other than the four months when they were reunified in 2016. Rather, the evidence was that at the time the proceeding commenced, the children were living with Fred.
Further, the evidence Virginia fulfilled a parental role for B.E. and C.E. during the dependency was negligible. She claims she "participated when a medical issue arose concerning [B.E.] and, in December 2015, she joined the children's weekly counseling sessions for collateral therapy focusing on implementing her parenting skills." This ambiguous reference to a "medical issue" again lacks a record citation, so we are left to speculate that she is referring to an occasion when B.E. developed a minor infection at the site of an ear piercing and Virginia wanted the earring left in. She participated in collateral therapy to learn how to implement the parenting skills she was learning because, as the Department repeatedly reported, she lacked the ability to set and enforce boundaries for the children. That, in the nearly two and one-half years between the initial removal and the permanency hearing, is the sum total of Virginia's evidence that she played a parental role while her children were in foster care. And when she had the opportunity to parent B.E. and C.E. upon reunification in May 2016, she relapsed with alcohol, twice brought the girls to see Fred despite her own protective order against him and the court's order that visitation with him was detrimental to the children, placed them in a situation in which they were subjected to violence by her boyfriend, and violated protocol by promising the girls she would buy them a puppy and a bunny and telling them they would all be moving into a big house together. Hardly parental behavior.
On the other hand, there was ample evidence that B.E. and C.E. had benefitted from their placement in foster care and needed the stability adoption would provide. According to CASA Hazelton, B.E. loved the "stability, safety and family dynamic" of their foster placement, while C.E. "seem[ed] to have a sense of being safe, sound and content in her placement." At the time of their removal, B.E. and C.E. were suffering from chronic neglect, but in the two-plus years of the dependency proceeding, they thrived, both physically and emotionally, in their foster care placement. During the case, they had expressed ambivalence about being adopted, but that ambivalence apparently stemmed from an erroneous belief that they would be adopted by strangers who lived far away. Once they learned that their foster mother would likely be the one to adopt them, they embraced the idea, even expressing excitement about sharing her last name. By the time of the permanency hearing, C.E. said she would be "a little happy to be adopted," while B.E. said she "would not mind being adopted." They had a "strong connection" with their foster mother, and they looked to her, rather than their mother or father, for comfort and support. They expressed concern their mother would be sad if they were adopted, but such an expression of loyalty and compassion was to be expected of young children who care about their mother.
In short, to overcome the preference for adoption, Virginia had to demonstrate that her relationship with B.E. and C.E. promoted their wellbeing to such an extent that it outweighed the wellbeing the children would gain in a permanent, adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) She could have requested a bonding study to help her satisfy her burden, but she did not avail herself of this opportunity. Without it, the record before us shows that prior to the dependency proceeding, B.E. and C.E. experienced neglect and tumult in their short lives, but that their initial stint in foster care provided the stability and security they needed. They were then thrown back into upheaval when Virginia failed to protect them during the period they were reunified, requiring their return to foster care. After all these years of turbulence, B.E. and C.E. deserve a permanent, safe, and reliable environment in which they are afforded the best possible opportunity to grow into healthy adults. In light of this, the trial court did not abuse its discretion in finding that the benefit of adoption outweighed any potential detriment B.E. and C.E. would suffer from the termination of Virginia's parental rights.
DISPOSITION
The order terminating Virginia's parental rights is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
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Stewart, J.