Opinion
E068663
03-14-2018
In re C.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. P.M., Defendant and Appellant.
Dennis Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole A. Nunes Fong, and Prabhath D. Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1401137) OPINION APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed. Dennis Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole A. Nunes Fong, and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
P.M. (mother) appeals the order terminating her parental rights and finding her now 10-year-old son, C.M., likely to be adopted. She argues the record contains insufficient evidence to support the juvenile court's determinations that (1) C.M. is adoptable and (2) the parental benefit exception to terminating her parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)) did not apply. We affirm.
I
FACTUAL BACKGROUND
Mother is 47 years old and has seven children, two of whom she failed to reunify with in 1999, and four of whom were removed from her care in separate dependency proceedings during the course of this case. C.M. is her youngest child, and this appeal pertains to him only.
A. Jurisdiction and Disposition
C.M. was born in 2007. He came to the attention of Riverside County Department of Public Social Services (the department) when he was seven years old, by way of the probate court. In October 2014, a woman named Linda applied for temporary legal guardianship over C.M. Although the probate court ultimately granted her application, it found the circumstances surrounding it questionable and asked the department to investigate whether dependency proceedings might be necessary.
Upon interviewing Linda, the department learned a friend had come to her several months earlier asking if she could care for C.M. because his mother was unable. The friend told Linda mother was homeless and had been sleeping in the park with C.M. Though Linda did not know mother, she agreed to temporarily care for C.M. She applied for temporary guardianship when she noticed he had surgery scars and was unable to obtain his medical records. She intended to care for C.M. only until mother was back on her feet. She did not know where mother was and did not have any way of getting in contact with her. Mother would call her from time to time to check on C.M., but it was always from a different number.
The social worker expressed concern about C.M.'s safety in Linda's care. Linda told her she was in the practice of taking in and caring for homeless individuals and families she encountered at a nearby park. In addition, the social worker learned that Linda's live-in adult son was schizophrenic, had a criminal record, and a history of substance abuse.
About 10 days after the interview, the department took C.M. in protective custody and transported him to the hospital out of concern he was a medically fragile child. The doctor learned from C.M.'s medical records he had undergone surgery in 2008 to repair a hernia and a ventricular septal defect in his heart. According to the records, the surgeries were successful and neither condition required long-term follow-up care. The doctor concluded C.M. was not a medically fragile child. However, the doctor did observe C.M. was very small for his age (he was about the size and weight of a four year old at age seven) and thought nutritional deficiency might be the cause, given C.M.'s history of homelessness.
When the social worker spoke with mother she admitted she was unable to care for C.M. at the time. She and her two daughters were currently staying at a friend's home in Adelanto and she was in the process of obtaining housing through a San Bernardino County mental health program. She did not know where C.M.'s biological father was living, but said her husband, Prince, held C.M. out as his son. She did not know Prince's whereabouts either.
When the social worker interviewed C.M., he referred to Prince as his father and said he was excited because his mom and dad were "getting him a new house."
By the end of October 2014, the department had placed C.M. in foster care and filed a section 300 petition on his behalf. The petition alleged he had suffered or was at substantial risk of suffering serious physical harm due to mother's and Linda's neglect. It also alleged mother suffered from unresolved mental health and substance abuse issues.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The social worker interviewed mother and C.M. in November 2014. Mother said she has a total of seven children with four men, all but one of whom were physically abusive. She failed to reunify with her two oldest children (who are now adults) in 1999, and she had two sons who were living with her uncle. Referring to the earlier dependency, she said, "[p]eople went behind my back and got Legal Guardianship of my children then . . . I really don't remember back that far."
Mother had hoped C.M. could also live with her uncle, however, once she met with Linda and saw her home, she accepted that arrangement. She said Linda had told her about the homeless people she would take in, but said she had not done so in 20 years. Linda also told her she had a history of substance abuse. Mother knew she could not currently take care of her son and was happy with his foster placement. She told the social worker she wanted C.M. "to stay living with his current foster family because they take good care of him."
Where names appear in quoted documents or transcripts we substitute initials or pronouns to safeguard confidentiality.
Mother reported she had recently been diagnosed with depression and bipolar disorder. She had been prescribed psychotropic medication and was taking it, along with marijuana, to help her sleep. Mother also reported Prince had recently been arrested for choking her and hitting one of her daughters in the face, causing bruising. She said Prince was bipolar and schizophrenic and "acts crazy."
The social worker was unable to interview Prince for the jurisdiction/disposition report but confirmed he was in custody in San Bernardino on charges of domestic battery. He had an extensive criminal record involving violent crimes and domestic abuse.
C.M. told the social worker, "I want to live with my mom really, I want to live with her now." When asked if she used drugs he replied, "I don't know about drugs, I think my mommy does a drug." About his father, C.M. said, "My daddy is Prince. My mommy told me I have another daddy, but I don't know where he is living."
As for C.M.'s health, mother said she had taken him to a medical examination in January 2014 and there were no concerns. The social worker observed he appeared to be developmentally on target "as he walks, runs, [and] talks at [an] age appropriate level." He enjoyed "playing outside, riding his bike, drawing, and playing computer games." The social worker also observed he and mother were "extremely bonded."
At the jurisdiction/disposition hearing in December 2014, the juvenile court terminated Linda's temporary guardianship, found true the petition allegations against mother, declared C.M. a dependent, removed him from mother, and awarded her family reunification services.
B. The Reunification Period
1. Six months
In the first month of reunification, mother called C.M. frequently but missed multiple in-person visits. The foster parents were willing to transport C.M. to her, but she was having difficulty scheduling time for visits. Meanwhile, the foster parents had scheduled C.M. for individual counseling and tutoring services. According to the social worker, the foster family was providing "exceptional care."
Around this time, the department initiated dependency proceedings on behalf of the two daughters living with mother out of concern for neglect. Mother was homeless and periodically living in a hotel. In addition, the department had received allegations the girls were not attending school and mother was allowing Prince to stay with them. The girls' biological father, F.W., was in custody for domestic violence.
In the next few months, mother's situation began to improve. By March 2015, she was renting an apartment and her daughters were attending school. The juvenile court declared the girls dependents but allowed them to remain in mother's care. By all accounts, mother was participating in services and making strides towards obtaining a stable home life. She was participating in counseling and substance abuse treatment and taking her prescribed psychotropic medication. These efforts at self-improvement impeded her ability to visit C.M., however. She could manage only two or three visits a month. During those visits, she was nurturing and appropriate and C.M. appeared very bonded to her.
The foster parents continued to provide C.M. with a loving, stable home. They reported he was experiencing "some" behavior problems at home and school, but was "typically a very happy, outgoing, and active child." C.M. was developmentally on target. He was very active and liked to ride his bike and play football. His favorite sport was gymnastics and he was said to be an exceptional tumbler. Unfortunately, he was not on target academically. He was in the first grade and struggled in most subjects.
Personality-wise, the social worker described C.M. as an alert and happy child "who presents with a sweet and boisterous disposition." According to the foster parents, he was mostly pleasant and cooperative, but could be moody and argumentative at times. They said C.M. sometimes expressed sadness about missing mother.
The foster parents loved C.M. and wanted to give him a permanent home in the event mother was unable to reunify with him. C.M. was also bonded with his foster parents and while he wanted to continue living with them, his ultimate goal was to live with mother.
C.M. had a checkup on March 8, 2015 and the doctor concluded he was "in adequate health."
2. Twelve months
Mother made good use of the first half of this reunification period, maintaining her residence, testing negative for drugs, and actively participating in services, including a parenting class. But things took a negative turn in October 2015, after Prince was released from jail. Mother stopped taking her medication and participating in services. In violation of a court order, she began spending time with Prince and leaving her daughters in his care. She also spent several nights a week away from home, leaving her daughters unattended overnight. As a result of these developments, the court removed the girls from her care.
Mother's involvement with Prince affected C.M. as well. One of her supervised visits was terminated early when she allowed Prince to talk to C.M. over the phone. On another occasion, the foster parents brought C.M. to mother's apartment for a scheduled visit and found Prince there, alone. Mother's visits during the 12-month reunification period remained sporadic, averaging about two per month. Her primary contact with C.M. was over the phone.
C.M. had another checkup in September 2015 and there were no concerns. The following month, he saw an endocrinologist who concluded he suffered from "abnormal chromosome issues" and was unable to say whether he would grow much taller. C.M. also received significant dental care—six extractions, two root canals, and 21 fillings.
C.M. was doing well in his foster home, although he did continue to struggle with behavior problems. It seemed he would mimic the negative behaviors of other children at school by being aggressive at home. The foster parents were able to eliminate the at-home aggression, however, by not allowing him to watch wrestling or other violent television programs. The foster parents again expressed their desire to become C.M.'s legal guardians if mother failed to reunify with him. They were also open to adoption, but they thought guardianship might be better for C.M. given his and mother's bond.
3. Eighteen months
Over the third reunification period, mother continued to regress on her case plan and C.M. continued to do well in his foster home. The social worker tried to interview mother in her apartment in March 2016, but mother would not let her come in, saying the apartment had recently been fumigated. At the front door, mother told the social worker she was not currently employed but her boyfriend was helping her pay the rent. Her boyfriend was disabled and she was hoping to obtain gainful employment providing him with in-home care. She said she did not agree with her bipolar diagnosis and had stopped taking her medication because she felt it was unnecessary.
In January 2016, C.M.'s elementary school completed an individualized education plan for him and determined he required special education classes. His defiant and aggressive behavior at school had "significantly decreased." C.M. had begun attending individual therapy sessions to work on "issues related to neglect, abandonment, separation from family, and to teach him to control negative behaviors, such as impulsivity and aggression at school." The counselor was also working with him on reducing instances of enuresis (involuntary urination).
C.M. had bonded with his foster family to the point where he wanted to be adopted by them, and the feeling was mutual. The foster parents loved and wanted to adopt him.
Although she had stopped participating in services, it was still difficult for mother to find time to visit C.M. As of April 2016, she had not visited her son in over three months. The foster parents' attempts to transport C.M. to mother had been unsuccessful, and her only contact with him at that point was by phone.
Somewhere around this time, mother's two other minor sons must have begun living with her because in May 2016, the San Bernardino juvenile court removed them from her care out of concern for neglect. Reportedly, there was not enough food in the home and the boys were afraid of mother's boyfriend. It is unclear from the record whether this allegedly abusive boyfriend is the same disabled individual mother wanted to work for as an in-home caregiver a few months earlier.
At the 18-month review hearing in May 2016, the juvenile court found mother failed to make satisfactory progress on her case plan, terminated her services, and set a section 366.26 permanency planning hearing.
C. Permanency Planning and Adoptability Finding
In April 2016, C.M. was circumcised after his urologist determined his foreskin was too tight and had been affecting his ability to urinate. The foster parents reported his overall emotional well-being markedly improved after the surgery. At a checkup in June 2016, his doctor found him to be in good health with no concerns. He was 42 inches tall and weighed 43 pounds, and his hearing and vision were normal.
In August 2016, C.M. saw a cardiologist who diagnosed him with a heart murmur. His echocardiogram results indicated a previously resolved ventricular septal defect. The cardiologist concluded he required no activity restrictions and recommended a follow-up appointment in one year. That same month, the department conducted a joint adoption assessment with Child Welfare Services and Adoptions and concluded C.M. was an adoptable child.
By this time, C.M. was in the third grade, had an individualized education plan, and attended special education classes. He continued to have behavioral problems at school, which included becoming easily distracted by his peers and being disruptive. C.M.'s behavior at home had improved, however, and as a result the foster parents were exploring the option of home schooling.
The social worker described C.M.'s personality as well-mannered and polite "for the most part," and she praised his strong social skills and ability to adapt to new surroundings. She noted C.M. needed to be re-referred to therapy. He had been attending individual counseling sessions, but had recently been discharged due to missed appointments.
Mother's visitation continued to be limited. The foster parents reported she often called them to check on C.M., but did not always speak to her son during those calls.
In the September 2016 section 366.26 report, the social worker wrote C.M. had formed a strong bond with his foster parents and referred to them as "mom" and "dad" and to their two adopted children as his "brothers." At the time of the report, the foster parents were "going through some personal family issues" and as a result did not feel they could proceed with adoption.
However, on September 26, 2016, shortly after the department filed the report, the foster parents asked the social worker for an adoption application and told her they did not want C.M. to go anywhere else. In that vein, the foster mother expressed concern about how often mother was calling their home. She said mother had told C.M. he would be returned to her care. She was worried mother's comments might be negatively impacting C.M.'s behavior and emotional well-being.
A few days later, the social worker interviewed C.M. at school. He said he liked living with his "mom and dad," but also wanted to live with mother. He said he had not seen mother in a while because she had "moved," and the last time he saw her was "at the meeting where she was yelling at everybody." (Months later, the social worker learned from the department's visitation monitor that mother became angry and aggressive during a visit with C.M. when told her other children could not attend the visit because they were not on the referral list. The monitor said mother screamed at department staff and said "inappropriate words" in the presence of C.M. and his siblings.)
In March 2017, the department reported C.M. was in good physical health and had not required any medical care. He was attending a gymnastics class twice a week and also playing AYSO soccer. Mother had not visited him for several months. She had informed the foster parents she was available only on Saturdays, which they could not facilitate due to soccer obligations (C.M. played and they coached). As soon as soccer season ended, they scheduled a visit with mother the following Saturday, but she ended up cancelling last minute citing car troubles.
On May 16, 2017, the social worker spoke with mother about her lack of visitation. She said Saturday was her only available day because she was working as an in-home caregiver the other days of the week. She said she and the foster parents shared videos and messages over the phone during the week to keep in touch. She thought it was unfair she was going to lose C.M. to adoption when the whole dependency was Linda, C.M.'s former guardian's, fault.
The foster parents again expressed concern mother's phone visits were negatively impacting C.M. They reported C.M. was "terrible" after the calls, acting aggressively and disrespectfully. The foster mother said mother allowed C.M. to talk to Prince over the phone via a video application. The foster parents "strongly believe[d]" it was not in C.M.'s best interest "to be exposed to mother's inappropriateness and behaviors."
On May 18, 2017, the foster father left mother a voice message asking her to schedule a visit, but she never returned his call. Almost two weeks later, she called their home at 10:00 p.m. to speak with C.M., who was sleeping. She was unable to commit to a time for an in-person visit. The following day, the social worker and foster father called her to schedule a visit, but she avoided the topic until finally saying her car was broken. When the foster father offered to provide transportation, she said she would call back to schedule a visit, but never did.
Mother finally visited with C.M. on June 3, 2017. According to the foster father, C.M.'s behavior became much worse in the days following the visit. He started lying and fighting with his brothers, demanding food then throwing it away in the bathroom, having trouble sleeping, and also crying in his sleep. Prior to that visit, the foster father said C.M. had been doing well and his behavior issues were under control.
On June 6, 2017, the department submitted a favorable adoption assessment for the foster family. The foster parents are a young, mixed-race couple (the foster mother is Caucasian and the foster father is African-American) who met at church and share a commitment to helping others. They married in 2011 and neither had previously been married. The foster father was obtaining his master's degree in administration and working part-time as a substitute teacher. The foster mother holds a master's degree in psychology and was developing a private practice in therapy. Before that, she supervised a mental health clinic. The foster parents recently adopted a 4-year-old boy and 16-year- old boy whom C.M. considered his brothers. They lived in a three-bedroom, two-bathroom house in Hesperia with a basketball court and large front and back yards.
C.M. remained in good physical health and had not required medical attention since his last well-child examination in June 2016. He suffered from "unexplained genetic abnormalities that impact his growth" and would need to see a genetic specialist on a yearly basis for monitoring; however, his condition did not presently require any medication or treatment.
C.M. was still academically delayed. Although in third grade, he was performing at first-grade level in all subjects. He was demonstrating improvement due to his special education classes, however, and his school was considering assigning him a one-on-one aid for the upcoming year.
The foster parents loved C.M. and had been diligent in taking care of his medical, academic, and emotional needs. They had participated in all his school meetings and had enrolled him in private courses with a tutoring company to address his academic delays. They had placed him in soccer and gymnastics to improve his self-esteem and coordination.
The one area that still needed attention was C.M.'s behavioral health. Because the foster parents had been experiencing administrative difficulty in finding a therapist, the social worker was helping them apply for mental health services through SELPA (Special Education Local Plan Areas), a local program in the High Desert. The foster parents expressed a desire to secure C.M.'s mental health services before finalizing the adoption. The assessment states, "The prospective adoptive parents would like to provide C.M. permanency through adoption . . . The prospective adoptive parents love C.M. and consider him a part of the family. They acknowledge his positive qualities but they also recognize he needs services to improve aggressive and bullying behaviors, frequent lying, and hygiene issues. The prospective adoptive parents want to ensure he is receiving the necessary supportive services and continues to have a team of experts working with him before the family formalizes their adoption."
For his part, C.M. loved the foster family and felt safe in their home. He "verbalized a desire to be adopted by the prospective adoptive parents but also has expressed an interest in maintaining birth family connections." The foster parents supported ongoing contact with C.M.'s biological family. They had remained in contact with the biological families of their two adopted sons, and recently took a family vacation with their teenage son's birth mother.
The assessment concluded the foster parents were committed to C.M. and wanted the best for him. The department recommended C.M. remain placed with them and the court complete the adoption once C.M.'s therapy services were in place.
On June 20, 2017, in its final status report before the permanency and planning hearing, the department informed the court that C.M.'s counseling services with SELPA would begin "within the next few weeks." The foster parents had enrolled him in swim classes for the summer, and he was excited to start. The department recommended the court terminate mother's parental rights and select adoption as C.M.'s permanent plan, noting that mother had a poor track record of visitation despite the foster family having "gone above and beyond" to facilitate visits.
The juvenile court held the permanency and planning hearing on June 27, 2017. C.M.'s attorney recommended adoption and termination of mother's parental rights. He said C.M. had recently told him he wanted to be adopted by his foster family, and he believed the evidence in the department's reports demonstrated adoption was in C.M.'s best interests.
Mother's attorney objected to adoption and claimed the parental benefit exception to terminating parental rights applied, arguing mother had "tried to maintain contact" with C.M. and "has a parental bond and it would benefit the child to maintain that bond." C.M.'s and the department's attorneys argued the parental benefit exception did not apply because mother failed to consistently visit C.M. and he was happy and stable in his prospective adoptive home. The court agreed the exception did not apply, noting that mother had not seen C.M. at all for significant portions of the reunification period. It found by clear and convincing evidence that adoption was in C.M.'s best interests and terminated mother's parental rights.
II
DISCUSSION
A. Adoptability
Mother argues there was insufficient evidence C.M. was adoptable because the foster parents had based their desire to adopt upon the receipt of behavioral services that had not yet begun. "Adoption is the preferred permanent plan." (In re Jasmine T. (1999) 73 Cal.App.4th 209, 211.) "The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) A child's young age, good physical health, and "ability to develop interpersonal relationships" are all attributes "indicating adoptability." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 (Gregory A.).)
"All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406, italics added.) "It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting." (In re Brian P., supra, 99 Cal.App.4th at p. 624.) But, the fact a prospective adoptive parent "'"has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family."'" (Gregory A., supra, 126 Cal.App.4th at p. 1562.)
We review an adoptability finding for substantial evidence, giving the finding "the benefit of every reasonable inference and resolve any evidentiary conflicts in [its] favor." (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Our record contains substantial evidence C.M. was generally adoptable. C.M. is young. At the time of the court's determination, he was only nine years old and in the third grade. He is also in good physical health. While he suffers from a genetic abnormality, his condition currently has no discernable impacts other than to his size. He is much smaller than children his age, but does not require treatment or medication and his physical development is normal.
C.M. is also able to develop interpersonal relationships. Over the course of his dependency, he has become bonded with his foster family, and they to him. The social worker consistently described him as having a good personality. He was happy, boisterous, and sweet. He has strong social skills and an ability to adapt to new surroundings. He struggles academically, but this is no reason to find him unadoptable. He has an individualized education plan at his school and is receiving special education and showing improvement.
C.M.'s behavior, especially while at school, appears to pose the biggest obstacle to his adoption. He fights with his classmates and has been known to take his aggression home and bully his younger brother. The foster parents have been working with him on this issue and noticed improvement when they monitored the type of television programs he was watching (no wrestling shows, for example). C.M. used to attend therapy, but was discharged due to missed sessions. The record does not indicate why C.M. was not attending sessions, but we do know the foster parents had a lot on their plate during that time, obtaining medical care and tutoring for C.M., as well as getting him involved in extracurricular activities like soccer and gymnastics. Having been successful in stabilizing so many aspects of C.M.'s life, it appears the foster parents are now focused on and committed to addressing his emotional health. At the time of the court's determination, C.M. was set to start counseling sessions in the next couple of weeks. We also note the record indicates some of his negative behavior might have been caused by mother discussing the dependency with him and giving him false hope of being able to return to her. If so, he is likely to improve as he moves towards adoption and mother's ability to influence him is restricted.
On balance, we find sufficient evidence a parent or family would be willing to adopt C.M. in a reasonable time. Though not without his behavioral issues, he is on the whole a happy, healthy, and active child who is capable of forming strong emotional bonds with those who care for him.
Mother argues In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.) requires a different conclusion. Asia L. concerned the adoptability of two siblings under the age of four, James and Asia. (Id. at p. 503.) James's therapist described him as bright, but also the "most hyperactive child she has ever seen." (Id. at pp. 510-511.) He was taking Ritalin, "with mixed results." (Id. at p. 511.) Like her brother, Asia was also very bright and very hyperactive. Her teacher reported she stole, lied, refused to listen, and pulled her own hair out when upset. (Ibid.) The social worker had not been able to identify a prospective parent for either child and concluded they would require "specialized placement . . . where the parents are 'experienced' and capable of dealing with and providing non-punitive structure to a hyperactive child; one where the primary parent stays home; and one that will advocate for, participate in, and follow-up on all physical, mental health, and school related appointments." (Ibid.) About two months before the permanency and planning hearing, the agency finally found a placement for the children, but the foster parents felt it was "too soon" to think about adoption and would "explore" the option down the line. (Ibid.) The juvenile court found the children adoptable, but the appellate court reversed, basing its conclusion on the fact the required specialized placement was not currently available in their county and the foster parents' willingness to adopt was "too vague." (Id. at p. 512.)
Here, in contrast, C.M. has lived with the foster parents for over two years, during which time they have consistently indicated their willingness to provide a permanent home for him. Mother seizes on the brief period where the foster parents were experiencing personal family issues to argue their feelings about adoption were volatile. But we read the record differently. The foster parents have always indicated their desire to take care of C.M. In the winter of 2015, they told the social worker they were interested in becoming his legal guardians, but this was only because mother's bond with C.M. was so strong they believed reunification was likely. They did experience personal issues in the fall of 2016 that briefly threatened their ability to adopt, but their desire to adopt never faltered. They rebounded from the personal issues quickly and then immediately requested an adoption application. In short, this case is nothing like Asia L., where there was no realistic prospect of a qualified adoptive home and the children had only been in their foster placement for a couple of months.
Contrary to mother's assertion, the fact the foster parents wanted C.M. to begin therapy before they finalized the adoption does not make their commitment to adoption vague. Rather, it shows they recognize C.M. has special emotional needs and are taking those needs seriously. Where a family is willing to adopt a child—as C.M.'s foster family is willing to adopt him—a court may interpret that willingness as an indication other parents would feel the same. There is no requirement that the family willing to adopt has actually "completed the necessary steps to clear them to adopt." (Gregory A., supra, 126 Cal.App.4th at p. 1563 [finding child adoptable where the foster parents had expressed a desire to adopt throughout the dependency and the agency had approved their home for placement].) Based on C.M.'s age, physical condition, ability to form a loving bond with his foster family, and their willingness to adopt him, we find sufficient evidence to support the adoptability finding.
B. The Parental Benefit Exception
Mother argues the court erred when it determined the parental benefit exception to terminating parental rights did not apply. We disagree.
Once the juvenile court finds a child adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exist. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception at issue here, commonly called the parental benefit exception, requires the parent to prove "termination 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), italics added.) In addition to the requirement of regular visitation, the exception applies to only those parent-child relationships the severance of which "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"[T]he 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 J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court's determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides "a 'compelling reason' for finding detriment to the child." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Mother cannot meet her burden of demonstrating the exception applies because she did not maintain regular visitation with C.M. (§ 366.26, subd. (c)(1)(B)(i).) It is undisputed her track record for visitation over the past two years has been poor. At best, her visitation was sporadic. But she also went multiple long stretches without seeing her son at all. We grant that for a time C.M. was unavailable on the one day mother offered due to soccer games, however she did not try to find another day to meet with him and, tellingly, failed to visit once the soccer season ended. We also recognize mother called C.M. frequently throughout the reunification period, but phone visits are not the same as in-person contact. Even with the foster parents offering to handle the transportation, mother still could not find time to visit her son.
Consistent visitation is a minimal requirement of the parental benefit exception. Without it, a parent cannot hope to show she is sufficiently committed to strengthening or maintaining the parent/child bond. As a result, mother's failure to consistently visit C.M. is sufficient on its own to defeat her claim of error. However, the record also demonstrates she was not committed to her case plan or regaining custody of C.M. About halfway through the 12-month reunification period, coinciding with Prince's release from custody, she stopped taking her prescribed medication and stopped attending services. During the time she should have been demonstrating to the court that she could care for C.M., she neglected and lost custody of her two daughters and flouted the court's orders to keep Prince away from her children.
Mother's reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) serves only to highlight the deficiencies of her case. In S.B., the father became sober as soon as the court removed his daughter from his care, "maintained consistent and regular visitation" with her, and "complied with every aspect of his case plan." (Id. at p. 298.) The daughter was unhappy outside of father's care, tried to leave with him at the end of visits, and had been assessed by a psychologist who opined she would be harmed if his parental rights were terminated. (Id. at pp. 296, 298.)
Mother argues her case is like S.B. because she and C.M. were extremely bonded. We have no doubt she and her son love each other deeply—that much is undisputed and abundantly clear from the record. But a strong bond, on its own, does not trigger the parental benefit exception. That bond must be coupled by effort on the parent's part to play a significant role in the child's life and a desire on the child's part to not be separated from the parent. Here, mother's efforts to play a significant role in her son's life were extremely minimal. And for C.M.'s part, while his love for mother is obvious, it is also obvious he will not be "greatly harmed" if adopted. He expressed love for his foster parents and wanted them to adopt him. He has spent over two years in their stable and loving care and deserves the opportunity to have their home become his permanent home.
Mother's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 is similarly misplaced. There, the appellate court held the mother met her burden of demonstrating the parental benefit exception applied by presenting the opinions of her daughter's bond study psychologist, therapist, and court-appointed special advocate, all of whom opined the child's relationship with the mother outweighed the benefits of adoption. Mother has presented no professional opinions in this case. --------
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.