Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. DP013964, Carolyn Kirkwood, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O’LEARY, J.
Julie S. appeals from the termination of her parental rights to her four-year-old son, James H., at a Welfare and Institutions Code section 366.26 hearing (permanency hearing). James’s father is not a party to this appeal. Julie argues the juvenile court should have applied the benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). We find no error and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
I
In August 2006, the Orange County Social Services Agency (SSA) filed a petition alleging then two-year-old James had been exposed to verbal and domestic violence. His father, Marc H., had a history of substance abuse dating back to 1992. It was alleged Julie’s history of substance abuse began in 1998. James was placed with his maternal great-aunt, Sandra W.
James was taken into protective custody after Sandra and other family members stated they were concerned for his safety and welfare. The maternal uncle explained Julie moved to Eureka in February 2006. On August 8, 2006, James was picked up for a visit with the family in Orange County. Julie failed to pick up James as had been previously arranged on August 19. Three days later, the family members contacted SSA after learning Julie was unsure when she would return, and Marc was being released from jail. The maternal uncle was worried about returning James to Julie’s care because he believed Julie was using drugs. He noted Julie was spending a lot of time with her mother and stepfather, who were habitual drug users and in the past had grown and manufactured marijuana and methamphetamine. The maternal uncle also noted James’s step-maternal grandfather had a history of violent behavior.
In the report prepared for the detention hearing, the social worker noted there were two prior substantiated child abuse reports regarding the family: The January 2005 report concerned domestic violence, and the August 2006 report related to allegations of general neglect regarding James. Marc had a lengthy criminal record, which included arrests and convictions for drug-related offenses as well as for domestic violence crimes.
The social worker interviewed Marc, who stated he was trying to find a sober living home. He admitted there was a history of domestic violence and he had been incarcerated for 60 days after failing to enroll in court-ordered domestic violence services. Marc stated he and Julie had been using drugs (marijuana and methamphetamines) together for several years. They bought their drugs from James’s step-maternal grandfather. Marc stated he was trying to turn his life around and expressed concern for James’s safety if he was returned to Julie.
The paternal grandmother reported she had visited Julie’s home in January 2006 and saw Julie and another adult male under the influence of drugs. She stated, “James [was] walking around dirty and unsupervised.”
When Julie was interviewed, she denied taking drugs and claimed to have been sober for five years. She asserted Marc had lied about her using drugs because he was angry she had broken up with him. She stated the maternal grandmother and step-grandfather were also sober. Julie stated she could not get to Southern California in time for the scheduled August 25 detention hearing, but could attend if the hearing was scheduled for August 28.
In an addendum report, the social worker stated Marc had given her letters supporting his testimony. In letters written to him by Julie on June 23 and 27, 2006, Julie expressed concern about drug testing for a new job.
On August 28, the court determined it was necessary to detain James under the protective custody of SSA. James’s parents were given “liberal/monitored” visitation. The court authorized funds for random twice-weekly drug testing of both parents as well as other appropriate services. It authorized SSA to assist with transportation as needed to facilitate the case plan, given that Julie had stated she lived in Hydesville (Humboldt County, California).
The jurisdiction and disposition report dated September 21, 2006, recommended the court declare James a dependent and order family reunification services. On the date of the last court hearing, August 28, Julie had visited James. The social worker observed James interacted well with Julie. She also saw he “freely left his mother’s care and appeared excited to return to his maternal aunt and the other relatives.”
During an interview that same day, Julie admitted she had used methamphetamine as recently as June 2006, the same month Marc was incarcerated. Julie stated she and Marc never used drugs while James was present. However, she admitted she once caught Marc giving James marijuana candy and she claimed this prompted her to kick out Marc in April 2006.
Julie stated she started using drugs at age seven with the help of one of her brothers. Between the ages of 7 and 11 she was molested by a brother. In 1989, when she was 14 years old, she went to a drug treatment program. Julie claimed she was sober for five years. She questioned why she would have to complete a program again. In March 2005, she and Marc gave up a child for adoption.
As for the allegations of domestic violence, Julie stated Marc was arrested for attacking her in January 2005 and June 2006. She said Marc would choke, hit, and slap her. She claimed James was present, but asleep during one of the incidents.
Julie stated she did not forget to pick up James from her relatives in Orange County. She asserted it was never the plan that she would pick up James. Julie explained the original plan was for her brother to fly with James to Eureka. The plans then changed, and she had arranged for Marc to pick up James when he got out of jail. This plan was spoiled when she broke up with Marc, and she did not have a car to retrieve James. Julie told her brother she would arrive by August 25, but James was taken into protective custody by SSA on August 22.
The social worker interviewed Marc in early September. He stated Julie was sober the first two years of James’s life and during the pregnancy. Julie’s relapse with drug usage was fairly recent. He admitted they used methamphetamine while caring for James. Marc stated the maternal grandmother and step-grandfather continue to manufacture methamphetamine and smoke marijuana. Marc stated he does not remember punching Julie. He stated James witnessed a lot of arguing, but not any “physical stuff.”
At the next hearing on September 21, the court continued the matter to October 11, 2006. The social worker received a drug test result from Drug-Free USA dated September 20 showing Julie had tested negative. Because Julie was in town for the hearing, the social worker authorized a same day drug test at nearby lab and gave Julie directions to the facility. Although Julie had previously been given a list of drug treatment programs in Humboldt County, the social worker gave her the list of referrals again. Julie failed to drug test as the social worker did not receive test results from the local lab.
That same day, Julie also visited James. The social worker who monitored the visit reported James “was slow to warm up to his mother, but that they interacted appropriately and the mother was attentive to the child.”
In early October, the social worker spoke to Marc who stated he and Julie were at the casino, Julie was paying for his hotel room, and neither of them were participating in any services. The social worker left messages for Julie on her cell phone and at the maternal grandmother’s home.
In an addendum report, the social worker concluded the parents were violating the restraining order they stay apart, they had not enrolled in services, and Julie’s missed drug test would be considered a dirty test. The social worker requested that the case be transferred to Humboldt County, but that James remain placed with Sandra because he “is very bonded to the family members here with whom he is placed.” Sandra had learned James was delayed in his speech development, and he was now receiving speech therapy. He also had issues with biting, hitting, kicking, and following rules.
At the hearing on October 11, 2006, the court continued the matter to November 2. In a subsequent report, it was noted the parents had been living in Orange County since October 13. Julie told the social worker that she and Marc had missed the prior hearing because of the weather and bad traffic. She reported they were living in their broken down car and were not enrolled in any services. They had not submitted to drug testing. The social worker provided referrals for homeless shelters. Julie and Marc indicated they intended to return to Humboldt County after the next court date.
Despite being in Orange County since October 13, the parents did not request visitation with James until October 26. A visit was arranged for November 1. The next day, at the hearing, both parents filled out waiver of rights forms and then left the courthouse. Their counsels represented they did not authorize the parents’ departure. The court sustained an amended petition under section 300, subdivision (b), and ordered reunification services. Julie’s case plan required her to attend counseling, parent education, out-patient substance abuse services, and testing. She was authorized to visit James once a week.
In the report prepared for the six-month review hearing (April 9, 2007), the social worker recommended termination of reunification services and for the court to schedule a permanency hearing. Julie was unemployed and living in Eureka with her mother and step-father. There was a bench warrant for her arrest in Orange County for possessing marijuana and drug paraphernalia. Marc was incarcerated in the Orange County jail due to his failure to provide proof of enrollment in an anger management course.
In December 2006, Julie contacted the social worker and requested to see James. On December 28, Julie visited James at SSA’s offices. When James saw his mother, he smiled and became shy. Julie spoke to James in a low tone of voice and she got down to the child’s level before hugging and telling him that she missed him. During the visit, Julie and James played with puzzles and trucks. Julie consistently praised James. She was affectionate and loving throughout the visit. This was the only visit Julie had with James during the first six months of the reunification period. On that same day, the social worker again went over the case plan. When Julie complained the services were too expensive, the social worker suggested Julie obtain assistance through Medi-Cal healthcare coverage.
During the second week of January 2007, the social worker left Julie several telephone messages, but Julie did not return her calls. In one message, the social worker told Julie that SSA was authorized to pay for twice-weekly drug tests. Julie did not return her call.
At the end of February, Julie’s mother called the social worker to complain that during Julie’s last telephone call with James, Julie overheard a relative making negative comments about Julie. The social worker questioned James’s caretakers about this allegation, and they adamantly denied it occurred. The social worker told Julie what the caretakers had said, and Julie did not discuss the matter further. A few days later, Julie told the social worker she was attending parenting classes and six Narcotics Anonymous meetings a week. She said she was not attending counseling or substance abuse treatment due to the expense. The social worker again advised Julie to obtain Medi-Cal for medical coverage of her case plan activities. Julie stated she would call the social worker the next day, but she did not.
On March 1, the caretakers informed the social worker they were not comfortable monitoring telephone contact between James and Julie due to the false allegations that had been made against them. The social worker stated she would monitor telephone contact. On March 5, Julie called to speak to James and the caretakers told her the social worker would be monitoring all further calls. At the end of March, Julie said she would like to enroll in Drug-Free USA for testing. The social worker arranged to have Julie begin testing on April 3. Julie told the social worker she had obtained Medi-Cal, and the social worker explained Medi-Cal would cover the costs of her counseling and drug treatment. The social worker urged Julie to contact one of the drug treatment agencies on her referral list.
On March 27, the social worker monitored a 10-minute conversation between Julie and James. James told his mother about events in his life and at school. He sang two songs to her. Julie’s conversation with James was appropriate, and Julie said she was looking forward to having another visit with him. After the call ended, the social worker and Julie arranged a date and time for the next call (two days later), but Julie did not call. The following day, Julie told the social worker she had forgotten to call. The social worker arranged for Julie to speak to James later that day, but he would not speak to Julie. However, later in the evening, James decided to speak with Julie, and he appeared at ease.
Three-year-old James was described as happy, playful, and lively. He had positive and loving relationships with his caregivers and extended family members. He was meeting age-appropriate milestones and appeared to feel secure. The pediatrician said James’s speech and language were developmentally appropriate for his age. Marc and the paternal grandfather told the social worker they felt James “could not be placed in a better home.”
At the scheduled six-month review hearing on April 9, the court granted James’s caretakers’ request for de facto parent standing. The court continued the hearing to the end of the month. The following day, Julie visited with James. When the social worker arrived at the office, James and Julie were interacting in the lobby, but James was also clinging to Sandra for comfort. Julie gave James an Easter basket, and he enjoyed the items inside. Julie read James three books, and he sat next to her. They played together with toys and cuddled for a short period of time. James said he wanted to go home with Julie and asked her where Marc was.
The next day, Drug-Free USA contacted the social worker. Julie had failed to drug test on April 3, 6, 10, 13, and 17. Julie missed her pre-arranged telephone calls with James on April 11 and 13. On April 14, the social worker attempted to arrange a telephone call for Julie and James, but she could not reach Julie by telephone. On April 26, Julie stipulated to termination of reunification services, but she agreed to continue drug testing until the permanency hearing. She signed the stipulation stating one missed, positive, or diluted test would cause funding to cease. The permanency hearing was scheduled for August 23.
In the next report, filed August 21, the social worker recommended the permanency hearing be continued for 180 days to find an adoptive family because James was difficult to place. The social worker explained that when James was originally placed with Sandra in August 2006, he exhibited behavioral problems which decreased over time. After visiting with Julie in April, James began having problems falling asleep and staying asleep. He again started to display negative behaviors and Sandra suggested James may benefit from counseling. Starting in May, Sandra and James began participating in Parent Child Interaction Therapy. James was responding positively to the therapy, and Sandra stated she was learning ways to better interact with James. By late August, Sandra reported James’s behavior was much better.
In addition, the social worker stated James’s maternal uncle, Justin S., and his wife, Allison, wished to adopt James. They filed a de facto parent status request with the juvenile court, stating they visited with James three to four times a week and participated in many activities with him. At the beginning of the case, Justin and Allison asked to be James’s caretakers, but they were rejected after SSA discovered substantiated allegations of abuse in Justin’s record. Justin claimed he was unaware of the reports and was in the process of having the allegations amended. He successfully resolved some of the reports, but he was in the process of having the last substantiated allegation of sexual abuse amended.
Sandra and her husband indicated they would adopt James if Justin and Allison could not. They supported Justin’s story regarding the past abuse reports. Sandra stated she was like a mother figure to Justin. She explained Justin had a very chaotic childhood, and he was falsely accused of doing “terrible things to his siblings due to dysfunctional family dynamics . . . .”
As for Julie, she returned to Northern California on May 10. She tested negative on May 11, 15, and 18. However, she missed a drug test on May 22, and consequently, funding for further testing ceased.
Julie scheduled a one-hour visit with James the day before the scheduled permanency hearing. She arrived 25 minutes late. However, the visit went well. Julie was affectionate and loving with James. They played with toys together throughout the visit. When the visit ended, James “appeared ready to go home, as [he] ran over to [Sandra] and clung to her side.” Before leaving, he hugged and kissed Julie goodbye. Sandra told the social worker she had followed the therapist’s suggestion of telling James what to expect during the visit because he had a history of regressing after visits.
On August 23, 2007, the court continued the hearing for one month. The following day, Julie left the social worker a message in which she requested another visit with James immediately because she planned to return to Northern California that day. The visit could not be arranged because James was staying with his paternal grandparents and Sandra was on a business trip. Sandra had requested that due to James’s tendency to regress after visits, James should not be disturbed while she was away. When Julie asked to set up a visit before the next hearing, the social worker advised her “ample time must be given to make visitation arrangements” and Julie should call as soon as she knew what date she would return. A few days later, Sandra reported James had engaged in negative behaviors such as hitting and kicking and calling out “‘mommy.’”
On the date of the next hearing, September 24, Julie filed a section 388 petition seeking a 60-day trial release with James, or alternatively, that reunification services be reinstated. Justin also filed a section 388 petition seeking placement and adoption of James. The court denied Justin and Allison’s de facto parent status request and continued the permanency hearing to November to allow time for further briefing on the other motions.
A few days later, on September 26, Julie called the social worker asking for a visit that same day. The social worker reminded Julie that she needed to call 48 hours in advance, but nevertheless tried to arrange a visit. Because Sandra had a previously scheduled commitment, the visit was arranged for November 1, the date of the next hearing.
On October 10 and 13, 2007, Julie was not available for her scheduled telephone contact with James. Julie claimed poor weather conditions caused problems with her cellular telephone service. On October 20, Julie left a telephone message for the social worker stating she no longer had access to a working telephone, but she would call again on October 22. However, Julie did not call again until October 28. She left a voicemail message indicating she could be reached at her parent’s house. Julie requested a telephone visit with James on October 30. The social worker spoke with Julie on October 30. Due to a scheduling conflict, the telephone visit with James could not be arranged. However, the social worker confirmed Julie would visit James on November 1. Julie stated if James was returned to her care, she wanted to ensure he could keep some familiar items (toys and clothing) to help with the transition.
At the next hearing, the court denied both Julie’s and Justin’s section 388 petitions for lack of a sufficient showing to have a hearing. The permanency hearing was continued again. Sandra and her husband, Bruce, began the adoptive home study process. The social worker reported James “appears very comfortable with the prospective adoptive parents.” James was well adjusted to living with them, and the social worker believed they would provide James “with a structured, loving, and nurturing home environment.” James told the social worker he would be “‘happy’” to live with Sandra and Bruce forever.
At the two-day permanency hearing in December 2007, the court considered testimony from the social worker and Julie. The social worker testified Julie was entitled to two visits of two hours per week with James. She had monitored eight visits between James and Julie over the past 11 months. Julie had maintained more frequent telephone contact with her son, but in the last two months the number of calls had decreased due to a lapse in communication between the social worker and the caregivers. The social worker opined visits between Julie and James were affectionate and loving. James called Julie “mom,” “mommy,” or “momma.” Julie often brought food or gifts to visits. James sometimes would cling to Sandra after visits ended, but otherwise did not show any signs of immediate distress. Sometimes James had negative behavioral outbursts approximately a week or two after visits with Julie. This negative behavior did not occur at other times.
Julie testified she received only 6 of the 12 visits she requested. She claimed her frequent calls for additional visits were not answered. She claimed James often expressed a desire to come home with her. He has asked her why she could not come for more visits. Julie believed James enjoyed being with her and would be greatly harmed if her parental rights were terminated. She opined James wanted to be with her, as evidenced by his questions of when he could come home. On cross-examination, Julie stated she requested visits once or twice outside of the times she was in Southern California for court dates. She said visits were hard for her because of the questions James would ask her, and she was unsure how she was allowed to answer. Julie explained she did not travel to Southern California for more visits because she worked. She said, “I have to save up for weeks before my court date just to be able to come down on my court date.”
The court terminated parental rights. It concluded the first prong of the benefit exception (regular and consistent visitation) had not been met. It also determined the evidence did not support a finding on the second prong. The court concluded James was strongly bonded with his de facto parents and he needed the stability that comes from being adopted.
II
On appeal, Julie maintains James loved her and he should be able to continue his “precious relationship” with her. She argues the juvenile court erred by severing their strong mutual bond and it should have applied the “beneficial relationship” exception to adoption under former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)). We disagree.
At a permanency hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.).) 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 regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
In Autumn H., the court articulated a test for determining whether a child would benefit from continuing the parental relationship. To succeed under this test, the parent must establish 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) 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.)
“[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 (Beatrice M.).) “‘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 pp. 1418-1419.) “‘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.’” (In re Jasmin D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmin D.).)
We recognize there is a split of authority regarding the applicable standard for reviewing a juvenile court’s decision as to whether the parental relationship exception to termination of parental rights should be applied. On the one hand, some courts have applied the abuse of discretion standard. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying parental benefit exception is a “quintessentially discretionary determination”].) Other courts employ the substantial evidence standard. (Autumn H., supra, 27 Cal.App.4th at p. 576.) However, “The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling . . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘“‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .”‘ [Citations.]” (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either standard of review, we find the juvenile court did not err in concluding James’s need for permanency outweighed any benefit which they might have derived from maintaining his biological connection with Julie.
Julie asserts she met the first prong of the benefit analysis because she provided evidence visitation was reasonably limited by the distance between her home and James. She hints that SSA could have done more to help her out, but this argument is undermined by her stipulation to terminate reunification services in April 2007. Because she did not complain below that services were inadequate, she cannot now be heard on the issue.
There was substantial evidence to support the trial court’s determination Julie did not meet her burden of proving visitation was regular. There were several instances when Julie could have arranged for additional visits with James when she was in Southern California, but she failed to do so. Julie often failed to return telephone calls made by the social worker trying to coordinate visits and monitored telephone calls with James. Julie often called at the last minute to arrange visits, which could not be accommodated due to the lack of sufficient notice.
Julie also failed to meet her burden of proof as to the second prong of the benefit-exception test. Julie points to favorable evidence that James enjoyed visits with her and was very affectionate. He called her “mommy” and asked when he could come home. They liked to play together during visits and four-year-old James knew Julie was “momma.” However, the court reasonably concluded this evidence was insufficient to show the benefits from a continued relationship with Julie outweighed the benefits from a stable and permanent home provided by adoption.
Having the title of “mommy” bestowed is not enough to establish the exception. Julie was required to show she occupied the role of mother in James’s world. She provided no evidence she performed any of the needed functions ordinarily performed by a parent, such as providing food, shelter, clothing, and guidance. There was no “day-to-day interaction, companionship and shared experiences” with the child. (See Casey D., supra, 70 Cal.App.4th at pp. 50-51.) Rather, the evidence showed James looked to his de facto parents for his daily needs and emotional support. He has lived with them for approximately 15 months during these dependency proceedings, and he had also spent time with them previously. Julie’s failure to pick up James from these caregivers after a two-week visit is what prompted them to voice their concerns to SSA.
In addition, there was no evidence termination of parental rights would be detrimental to James. He did not demonstrate any sadness at the end of visits with Julie, but would often cling to Sandra before and after visits. He would sometimes express distress during the week following visits, but this would not warrant depriving James of a stable adoptive parent. The social worker stated James had developed a loving and affectionate relationship with Sandra and Bruce. James said he would be “happy” to live with his de facto parents. While Julie’s love for James and her relationship with him certainly provides him with some incidental benefits, it does not fulfill his need for a full-time stable parent.
III
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.