IN RE: EMMA F.

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Court of Appeal, Second District, California.

IN RE: EMMA F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KRISTINA D., Defendant and Appellant.

B234151

Decided: January 20, 2012

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Emery El Habiby, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Kristina D. (mother) appeals from the juvenile court's termination of her parental rights as to Emma F. following a Welfare and Institutions Code section 366.26 hearing.1  She contends the court erred by declining to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Emma (born June 2008), came to the attention of Department of Children and Family Services (DCFS) because of an allegation of sexual abuse by her father, Terrance F. (“father,” who is not a party to this appeal.)

One day in April 2009 mother left Emma (then about nine months old) home alone for a short time with father.   When mother returned, she saw father rubbing the child's vagina.   Father appeared startled when he saw mother, immediately became defensive and asked mother, “What the hell's wrong with you?   Do you think I did something to my daughter?”   Later, when mother changed Emma's diaper she saw redness around the child's vagina and rectum.   Frightened for Emma's safety, mother took Emma to her maternal grandmother's (grandmother) home.   Mother also had seen father rub Emma's vagina on two prior occasions.

The results of a pediatrician's medical examination were inconclusive.   The doctor found no evidence of sexual abuse.   However, Emma's vaginal opening appeared “larger than usual,” and she had some minor irritation which might have been caused by an antibiotic she had been taking for an infection.

Mother told the social worker that father suffered from various mental illnesses, including schizophrenia, and had been severely physically and sexually abused by his foster parents as a child.   Father had suffered from drug addiction for many years and mother suspected he may have relapsed.   Mother said she too had been a victim of sexual abuse by her biological father, and had grown up in foster care because her mother suffered from drug addiction.   Mother admitted having used drugs as a teenager, but said she had been clean for over three years, with the exception of medical marijuana for which she had a prescription.   She said the marijuana was used to help alleviate severe back pain, and that she only used it at night after putting Emma to bed.

Mother told DCFS that on April 23, 2009, she and father argued after he demanded her prescription marijuana.   He slammed her against a fence, spit in her face and cursed at her.   Father was arrested and mother received an emergency protective order after reporting the assault to police.   A few days later, father contacted DCFS and said he was living in a sober living home.   He denied having sexually abused Emma. His explanation of the incident resembled mother's:  father recounted that mother had startled him when she approached him and looked at him strangely.   He said, “What the fuck are you looking at me like that for, do you think I did something to my daughter?”   Father acknowledged his mental illness, but denied any relapse into drug use.

On April 29, 2009, DCFS filed a petition pursuant to section 300, subds. (a) and (b).  Emma was detained that day.

Jurisdiction and disposition

In a report prepared for the jurisdictional and dispositional hearings, DCFS stated that mother was quite distressed about her living and financial situation because father was unemployed and unable to pay child support.   She had to move because she could not afford to pay rent.   Mother said she and father had engaged in physical altercations since before Emma's birth.   When mother was three months pregnant, father shoved her into a wall and she fell and began hemorrhaging.   They continued to argue after Emma's birth and father once threw hot coffee at mother as she held the baby.   Mother told DCFS she suspected father of molesting Emma when she was three months old.   He had gone to change the baby's diaper during the night, and behaved suspiciously (he did not turn on the light, was moaning and jumped up when mother came in, looking as though he had done something wrong).   Ever since, Emma had “ ‘been getting ․ [r]eally red on and off.’ ”   Mother said she did not fear father but was worried about him.

With regard to drug use, mother said she had used cocaine and other drugs since she was 12 years old.   She had been addicted to methamphetamine, but had been sober since mid-May 2005.   She regularly attended a 12–step program, and used prescribed marijuana only at night while Emma slept.   She said father also used marijuana regularly and, in the past, had also used heroin, crystal methamphetamine, cocaine and PCP.

Emma's grandmother told the DCFS social worker that mother had been clean and sober (apart from using medical marijuana for back pain) for about 4 years;  she entered the AA program shortly after grandmother did.   Grandmother said mother was “a good mom,” and was really good with Emma. Grandmother said mother had twice expressed concern that Emma had been molested.   On one occasion, on April 21, 2009, after mother fled from her home, grandmother saw “some redness” on Emma, but it looked like a rash.   On the earlier occasion, Emma had also appeared to have had a rash which disappeared after grandmother wiped her with a warm cloth.   Grandmother was concerned about father's mood swings, but was unsure whether he still used drugs.

The petition was sustained and Emma was returned to mother's care in early June, 2009.   DCFS was ordered to provide family maintenance services to mother and she was ordered to attend a drug counseling program with random testing, parenting classes, and individual and domestic violence counseling.

Status review report

In early December 2009, DCFS reported that Emma remained placed with mother but that, with DCFS's approval, the child spent nights with her grandmother because mother had become homeless.   Mother had not complied with her case plan.   She was overwhelmed by housing, financial and health issues, and told DCFS her “priority” was “survival.”   Mother had not enrolled in a parenting program, nor was she undergoing counseling.   She enrolled in a domestic violence program, but had not participated on a regular basis.   She also enrolled in a substance abuse program, but was discharged for nonattendance.   Mother twice tested positive for drugs, once for Hydrocodone, which was prescribed by a physician and once for low levels of marijuana.   She did pass a drug test required for a job for which she applied.   Father had reportedly lost his job and been evicted from his sober living home.   He was homeless, reportedly staying with mother despite her restraining order against him, and no longer cooperating with DCFS. He enrolled in domestic violence and parenting programs, but stopped attending for financial reasons.   Father had seven positive drug tests for marijuana, and was a no-show for two tests.   DCFS reported that Emma was safe and well cared for by mother and by grandmother, who continued assisting her.

A detention hearing was conducted on December 15, 2009.   DCFS filed a supplemental petition (§ 387) alleging that detention was necessary because, in violation of the juvenile court's order, mother allowed father to have unmonitored, unlimited access to Emma. Mother's failure to abide by the court's order allegedly placed Emma at risk of physical and emotional harm.

DCFS reported that mother had missed a drug test in October, was not complying with the case plan and still unable to make appropriate living arrangements so Emma could live with her.   As a result, Emma stayed for prolonged periods with grandmother, who had a DCFS history of her own (for failing to reunify with mother), and a husband with an extensive criminal history.   Mother told DCFS that the programs were overwhelming for her.   She refused to enroll in any program other than individual counseling, and also refused to undergo a psychological evaluation or to take prescribed medication.   In addition, mother had allowed father to stay with her in violation of the restraining order, which mother acknowledged indicated “poor judgment” on her part.   Mother began working in early November 2009, and claimed her job limited the time she had available to comply with her case plan.

A DCFS team decision meeting was held on December 10, 2009, during which mother became angry and hostile.   She behaved aggressively toward an aide who was holding Emma, and assaulted grandmother.   As a result, DCFS determined that Emma's safety could not be assured in mother's care, and placed Emma in the care of foster mother Iris S. (Iris).

Mother, joined by grandmother, had two monitored visits with Emma during the last two weeks in December 2009 (mother canceled one other scheduled visit).   The child was happy to see her family, alternating her attention between mother and grandmother.   Mother's behavior was appropriate.   During one visit, mother told the social worker the child had no jacket, was freezing and had blue lips.   The social worker held Emma who was warm.

Jurisdiction and disposition

In connection with the jurisdictional and dispositional hearing, DCFS reported that mother had failed to attend a visit with Emma on January 4, 2010.   Mother contacted the social worker to say she would be an hour late for a 2:00 p.m. appointment.   The social worker stayed until 3:40 p. m. and left two messages for mother, who never showed up.   Iris reported that Emma was a happy child who knew she was loved, and said she was doing “great.”   Iris told DCFS mother seemed resentful that Emma was in Iris's care.   Mother was homeless and unemployed.

Mother continued to have monitored visits with Emma. Mother's behavior was appropriate and Emma was always happy to see both her mother and grandmother, each of whom she sought out equally during visits.   Grandmother had requested that Emma be placed in her care, but grandmother's earlier failure to reunify with mother, coupled with her husband's extensive criminal record, posed an obstacle to that placement.

Mother was still not complying with her case plan.   She had enrolled in a domestic violence and a drug counseling program, but failed regularly to attend either one.   Mother also failed to participate in parenting or any counseling programs, failed to seek help for her mental health issues and failed to follow through on any of numerous referrals for services and programs she received from DCFS. Mother remained extremely emotional and overwhelmed by her situation throughout this action.   She showed signs of depression and agreed—but then failed—to seek mental health treatment.   Her living situation was consistently unstable throughout her involvement with the DCFS, and she was currently homeless.   She always appeared overwhelmed and continued struggling to obtain basic necessities, such as food and shelter.   Mother was no longer employed and offered many excuses for her failure to follow through on DCFS's programmatic recommendations and housing referrals, and continued to see father even while a restraining order was in effect.

DCFS recommended that mother be offered reunification services, noting that an inclusive inpatient program would eliminate mother's current difficulties participating in various case-related programs, held at different times and places.   Mother remained in great need of counseling and a mental health assessment.   Her condition had worsened since the initial petition was filed and she had now become homeless.

In January 2010, the juvenile court declared that Emma remained a dependent child under section 300, subdivision (b), ordered her to remain in shelter care.   Mother was given reunification services and monitored visits.

Six-month review hearing

In its report for the six-month review hearing in March 2010, DCFS noted that Emma remained in Iris's care.   Mother was in a sober living home and, in early February 2010, had enrolled in an outpatient program.   Mother had been cooperative with DCFS and enrolled in an outpatient substance abuse recovery program, where she planned to participate in individual counseling, parenting classes, drug counseling and random drug testing, although her attendance at a domestic violence program remained irregular.

Mother “forgot” about a court-ordered visit with Emma on January 27, 2010, but saw her on February 3 and 10, 2010, and those visits went well.   Mother brought snacks and clothes for Emma, and played with her.   Mother requested more frequent visitation, but DCFS told her the schedule could not be liberalized until she was consistently complying with her case plan.   At the review hearing, the juvenile court ordered an increase in mother's visitation.

Interim review hearing

In the report prepared for an interim review hearing in September 2010, DCFS stated that Emma continued to do well in her placement with Iris, and had three hour-long visits per week with mother.   During visits, mother hugged, kissed and played with Emma. However, Iris told DCFS mother appeared to be engaged in a power struggle with her toddler, and was more concerned about showing that she was in control than in spending quality time with Emma. For example, on one occasion, mother put two-year-old Emma in a “time-out” after she called Iris “mummy” and refused to go to mother when asked.   On another occasion, mother behaved erratically, putting Emma in a time-out “for every little thing” and causing the child to cry, and asked Emma to “give [her] a hug, give [her] a kiss” practically “every minute.”   Mother became upset during visits if Emma declined to kiss her and insisted that Iris correct Emma when she referred to her caretaker as “mummy.”   Mother also engaged Emma in activities the child did not enjoy.   Emma usually cried several times before visits ended and remained agitated and defiant with Iris for hours after she spent time with mother.   Once at the end of a visit, mother kept Emma from running to greet Iris's daughter by holding Emma by her hair, releasing her only when she began to yell.   On other visits, mother's behavior was appropriate, and she showed love and affection to Emma. Mother missed four visits between April 23 and June 25, 2010.   She tried rescheduling one June visit at the last minute, but eventually showed up when Iris was unable to reschedule.

During this period, mother was still not complying with her case plan.   She had not enrolled in drug or individual counseling, and had not undergone a mental health evaluation.   DCFS remained concerned about mother's inappropriate behavior and troubling interactions with Emma. DCFS recommended that reunification services be terminated, and that the matter be set for a selection and implementation (§ 366.26) hearing.   On October 6, 2010, the juvenile court terminated mother's reunification services.2

Section 388 petition and the 366.26 hearing

The section 366.26 hearing was scheduled initially for early January 2011, but later continued.   In a report for that hearing, DCFS observed that mother interacted well with Emma during visits, although mother was also moody on occasion and put Emma in an excessive number of time-outs, which annoyed the child.   Mother also became upset if Emma refused to say “I love you mommy” when prompted her to do so.   DCFS recommended that mother's parental rights be terminated.

On April 1, 2011, mother filed a section 388 petition requesting reinstatement of reunification services.   She explained that she had difficulty attending the programs required by the case plan because she had a full-time job and attended AA meetings.

On April 25, 2011, Iris requested that Emma be removed from her home.   Iris suspected mother had discovered her home address and feared for her own safety.   DCFS expected Emma to have a new preadoptive placement by mid-May 2011.

A hearing on mother's section 388 petition was conducted on May 3, 2011.   Her request for reinstatement of reunification services was denied.   The court found the proposed modification was not in Emma's best interest.

Emma was placed in a prospective adoptive home on May 24, 2011.   DCFS reported that the prospective adoptive parents were thrilled and in love with Emma, and eager to move forward with the adoption and to provide Emma a stable, safe home environment.   Emma appeared comfortably attached to the couple.

The section 366.26 hearing was held on June 6, 2011.   The court found Emma adoptable, found mother had failed to establish the applicability of any statutory exception to adoption and terminated parental rights.   This appeal followed.

DISCUSSION

Mother's sole contention on appeal is that the juvenile court erred by refusing to apply section 366.26, subd. (c)(1)(B)(i), commonly known as the beneficial relationship exception to adoption.   We conclude otherwise.

At a section 366.26 hearing, where possible, adoption is the permanent plan preferred by the Legislature.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)   If the juvenile court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of several enumerated exceptions. (§ 366.26, subd. (c)(1)(B);  see In re L.Y. L., at p. 947.)

One exception is at issue here.   The beneficial relationship exception of section 366.26 provides that if the juvenile court finds the child adoptable, “(c)(1) ․ the court shall terminate parental rights and order the child placed for adoption ․ unless ․ [¶] ․ [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:  [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”   The parent bears the burden to establish the existence of one of the circumstances that are exceptions to termination.  (In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)

In the seminal case of In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the beneficial relationship exception to mean “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.”  (Id. at p. 575.)   Various factors affect the parent/child relationship—such as the child's age, the portion of the child's life spent in the parent's custody, the effect of the interaction between the parent and child and the child's particular needs—and may be considered by the court in considering the applicability of the beneficial relationship exception.   (Id. at pp.   575–576;  accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

For the exception to apply “the relationship must be such that the child would suffer detriment from its termination.  [Citation.]”  (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)   A parent who has failed to reunify with an adoptable child “may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent,” or that the parental relationship may be beneficial to the child to some degree.  (Id. at p. 466.)   The parent must also show that continuation of the parent/child relationship will promote “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.)

The juvenile court's determination regarding the beneficial relationship exception is upheld if supported by substantial evidence.  (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) 3

Mother contends that sufficient evidence was presented to establish the beneficial relationship exception.   She argues her visitation with Emma was largely consistent, and that she was appropriate, caring and attentive during visits.

The record in this case does not clearly establish that mother maintained regular visitation with Emma. On the contrary, the record discloses that mother canceled, forgot about or arrived late for numerous scheduled visits with Emma. Even if it could be said that mother maintained regular visitation, a more fundamental problem lies in the quality of the parent/child relationship.   The beneficial relationship exception does not apply if a parent does not occupy a parental role in his child's life.  (In re B.D., supra, 159 Cal.App.4th at p. 1234.)  “[T]o establish the exception ․, the 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.]”  (In re Andrea R. (1994) 75 Cal.App.4th 1093, 1108.)   A relationship sufficient to support the beneficial relationship exception typically “aris[es] from day-to-day interaction, companionship and shared experiences.”  (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

There is some evidence Emma enjoyed visits with and was usually happy to spend time with her mother.   There is, however, no evidence in the record that mother had a substantial parental relationship with Emma such that “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed․”  (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Mother clearly loves Emma and wants to be in a position in which she is able to care for her.   While mother belatedly began intermittently to make improvements complying with her case plan and visited with and loved Emma, she did not provide evidence that her relationship with Emma was significantly beneficial to outweigh the benefits to the child of adoption.   Even frequent and loving contact with a child in these circumstances is insufficient to meet the requirements of the exception.  (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.)   The evidence does not reflect that the strength of mother's relationship with Emma outweighs the sense of belonging Emma would receive from a stable home.  (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

By the time of the section 366.26 hearing, mother had not reached a position where she could assume her parental responsibilities or provide Emma with any degree of stability.   Consequently, mother was unable to establish that the benefits of her relationship with Emma would outweigh the benefits the child would gain in a permanent home, or that severing her relationship with Emma would be detrimental to the child.   As in this case, “if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan.”  (In re Dakota H., supra, 132 Cal.App.4th at p. 229.)   The record before us provides ample support for the juvenile court's conclusion that the beneficial relationship exception did not apply.

By contrast, in In re S.B. (2008) 164 Cal.App.4th 289, 300–301, one case on which mother relies, the evidence established that the child loved her father with whom she had lived for three years prior to detention, wanted their familial relationship to continue, and derived significant benefit from his visits.   The father rigorously followed the case plan, played a significant parental role in his daughter's life throughout reunification, and maintained consistent contact and visitation with his child.   The appellate court concluded that the child would be greatly harmed by the loss of her significant, positive relationship with her father.

In re S.B., supra, 164 Cal.App.4th 289 provides no support for Mother's position.   In re S.B. represents the outer limit of the beneficial relationship exception, and its circumstances are much more compelling than those presented here.   Unlike Emma, the child in In re S.B. had lived with her father for several years before her detention, and the two had developed a strong familial relationship.   The father consistently complied with his reunification plan and maintained consistent contact and a parental role in his daughter's life throughout the dependency action.   In contrast, Emma spent significantly less time with mother prior to her detention.   Mother's conduct throughout the dependency proceeding was erratic and hampered by untreated mental health issues, financial distress and homelessness, and an inability to maintain distance from father, let alone to deny him access to Emma despite her suspicion that he had repeatedly molested the child.   Here, unlike S.B., the evidence suggests no similarly close bond between Emma and mother.   In the end, the most mother could show was “frequent and loving contact or pleasant visits” with Emma. This is insufficient to support application of the beneficial relationship exception.  (In re C.F. (2011) 193 Cal.App.4th 549, 555.)   To establish the section 366.26, subdivision (c)(1)(B)(i) exception a parent must show her child would suffer detriment if his or her relationship with the parent were terminated.  (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)   Mother failed to make that showing.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Statutory references are to the Welfare and Institutions Code..  FN1. Statutory references are to the Welfare and Institutions Code.

FN2. Father's reunification services had been terminated in March 2010..  FN2. Father's reunification services had been terminated in March 2010.

FN3. Some courts apply the abuse of discretion standard of review.  (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351;  In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)   But, as observed in Jasmine D., there are minimal practical differences between the two standards and, on this record, we would affirm under either standard.  (Jasmine D., at p. 1351.).  FN3. Some courts apply the abuse of discretion standard of review.  (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351;  In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)   But, as observed in Jasmine D., there are minimal practical differences between the two standards and, on this record, we would affirm under either standard.  (Jasmine D., at p. 1351.)

MALLANO, P. J. CHANEY, J.