IN RE: MADILYN M. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This appeal arises from a proceeding in the juvenile dependency court involving Christopher M. (Father), Misty D. (Mother), and Madilyn M., born in January 2007.   We are called upon to review Mother's contention that the dependency court should not have terminated her parental rights because the evidence in the record establishes that Madilyn “would benefit from continuing the relationship” with Mother.  (See Welf. & Inst.Code, § 366.26, subd. (c)(1)(B)(i).) ¹  We affirm the dependency court's orders.

FACTS

On March 28, 2007, Mother and Father called 911, and Madilyn was taken to a hospital emergency room with a broken leg.   Once at the hospital, X-rays also revealed that Madilyn had a three-week old rib fracture.   In talking to hospital staff, Mother and Father explained that Madilyn's injury occurred when Father “yanked” too hard on her leg while changing her diaper.   An examining physician concluded Madilyn's injuries were nonaccidental, and hospital staff referred the matter to police and to the Los Angeles County Department of Children and Family Services (DCFS).  Madilyn was detained and placed in a foster home.   In April 2007, DCFS filed a juvenile dependency petition on Madilyn's behalf. (§ 300.)

At a jurisdiction hearing in November 2007, the juvenile dependency court sustained the following allegations under section 300, subdivisions (a) (physical harm), (b) (failure to protect), and (e) (severe physical harm to child under five):

“[1] On 3/28/07, the two-month-old child, Madilyn [M.] was medically examined and found to be suffering from a detrimental and endangering condition consisting of an acute oblique fracture to the left femur and at least three old rib fractures of various dates.   Further, the child's injuries are consistent with non-accidental trauma and child abuse.  [S]uch injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts on the part of mother and father, who had care, custody and control of the child.   Such deliberate, unreasonable and neglectful acts on the part of the child's parents endanger the child's physical and emotional health, safety and well being, create a detrimental home environment and place the child at risk of physical and emotional harm, damage and danger.

“[2] On numerous prior occasions, the child's father ․ physically abused the two-month-old child by grabbing, pulling and twisting the child's leg, fracturing the child's femur.   The child's father frequently handled the two-month-old child in an extremely rough manner, resulting in the child sustaining a fractured rib.   The mother ․ knew that the father was physically abusing the child and failed to take action to protect the child by allowing the father to reside with the child, physically abuse the child in the mother's presence and allowing the father unlimited access to the child.   Such ongoing physical abuse of the child by the father and the mother's failure to take action to protect the child endangers the child's physical and emotional health, safety and well being and places the child at risk of harm, damage, danger and death.”

On November 16, 2007, the dependency court entered dispositional orders which included reunification services for Mother comprised of parenting education, individual counseling, and monitored visits with discretion granted to DCFS to liberal visits.   At the six-month review hearing, the court found Mother was complying with her case plan, but had not made enough progress, and ordered an additional period of reunification services.   In June 2008, the court again found Mother in partial compliance with her case plan, and, again, ordered an additional period of services.

On December 1, 2008, the dependency court entered orders terminating Mother's reunification services, placing Madilyn with Patricia G., and setting the case for a section 366.26 hearing to determine the issue of parental rights.²  Mother's counsel filed a notice of intent to file a petition for extraordinary writ relief (see Cal. Rules of Court, rule 8.452), then filed a letter to our court in accord with the practice prescribed in Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, advising that counsel was unable to file a petition.

The dependency court conducted the section 366.26 hearing over several sessions (some merely for a continuance) from April to August 2009.   During the course of those sessions, the court received into evidence DCFS's myriad reports prepared for the case;  at least two witnesses testified:  Elsa Medina (Madilyn's babysitter hired by Patricia G.) and Mother.³  At the summation of the hearing on August 10, 2009, DCFS's counsel argued that the court should free Madilyn for adoption because Mother had not established that Madilyn would benefit from continuing their relationship. (§ 366.26, subd. (c)(1)(B)(i).)   Mother's counsel, in turn, argued against the termination of parental rights, highlighting that Mother had complied with the case plan, and had regularly visited Madilyn, and had attended to Madilyn's needs during their visits.   Madilyn's counsel argued in favor of the termination of parental rights.   After listening to counsels' arguments, the court found Madilyn would be adopted by Patricia G., and that, although Mother had maintained regular visits with Madilyn, the evidence did not establish that the termination of Mother's parental rights would be detrimental to Madilyn's well-being.

Mother filed a timely notice of appeal.

DISCUSSION

Mother's sole contention on appeal is that the juvenile dependency court erred by failing to apply section 366.26, subdivision (c)(1)(B)(i), which we hereafter refer to as the “continuing benefit exception” to the presumption in favor of adoption.   We disagree.

The continuing benefit exception should be applied where the dependency court finds that maintaining the natural parent/child relationship will promote the well being of a child to such a degree as to outweigh the well being the child will gain in a permanent home with new adoptive parents.  (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)   The dependency court's finding in this context -- i.e., that the natural parent/child bond will not outweigh the benefits of an adoptive home -- is reviewed on appeal under the substantial evidence standard.  (Ibid.;  cf.  In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [discussing the standard of review in terms of reasonableness under the abuse of discretion test].)   Accordingly, we must examine the evidence in the light most favorable to the dependency court's findings, giving the decision the benefit of every reasonable inference, and resolving all conflicts in support of the court's findings.  (See Autumn H., supra, 27 Cal.App.4th at p. 576.)

Having reviewed the evidence in the record in light of the applicable standard of review, we cannot say that the dependency court's finding that Madilyn will benefit more from her prospective adoptive home is not supported by substantial evidence.   Madilyn was detained from the family home when she was two months old;  she was two years old at the time of section 366.26 hearing.   For practical purposes, Madilyn essentially never lived with Mother.   Madilyn has received appropriate care, first from her foster caregiver, and then from Patricia G., the prospective adoptive parent, an “eligibility worker” for the County of Los Angeles.   Reports filed by DCFS indicated that Madilyn referred to Patricia G. as “mommy,” and to Patricia G.'s minor daughter as her “sister.”   Madilyn appeared to “thrive physically, emotionally and developmentally in [Patricia's] home․”

We acknowledge the evidence cited by Mother -- e.g., regular visits, displays of happiness by Madilyn during visits, Mother's compliance with her case plan -- but have not been persuaded to reverse the dependency court's decision on the ground it is based on an absence of evidence.   Our task is to examine the evidence in a light favorable to the decision actually made by the dependency court, not to consider whether a different decision might also have been supported by the evidence.   The dependency court implicitly and reasonably drew an inference from the record that Madilyn views Mother as much as a friend as a parent.   While friendships are an important aspect of a child's life, a child needs at least one parent, and when a parent is not functioning in that role, it is appropriate to grant a child an opportunity to bond with an individual who will assume the role of parent.  (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

We reject Mother's reliance on In re S.B. (2008) 164 Cal.App.4th 289, in support of a different result.   In S.B., father and daughter lived together for the first three years of her life.   Daughter was removed from the family home due to parents' drug problems, not acts causing physical injury.   During the dependency proceedings, father maintained regular visits with his daughter.   An expert testified that he had conducted a “bonding study,” and concluded that the bond between father and daughter was “fairly strong,” and that there was a potential for harm to the child “were she to lose the parent-child relationship.”  (Id. at pp. 295-296.)   After examining the record in S.B., the Court of Appeal concluded that the evidence showed the daughter loved her father, wanted their relationship to continue, derived a benefit from his visits, and supported a conclusion that she would be “greatly harmed by the loss of her significant, positive relationship with [the father].”  (Id. at p. 301.)

We simply see the facts of Mother's and Madilyn's relationship to be different in both quantity and quality because the evidence does not show an over-balanced potential for harm to Madilyn from ending the parent/child relationship as opposed with the potential benefit of providing her with the permanent relationship in a new adoptive home.⁴

DISPOSITION

The orders of the juvenile dependency court are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All section references are to the Welfare and Institutions Code..  FN1. All section references are to the Welfare and Institutions Code.

FN2. Father and Patricia G. are the parents of another child;  they are no longer together as a couple..  FN2. Father and Patricia G. are the parents of another child;  they are no longer together as a couple.

FN3. There is a notation in a minute order at page 669 of the clerk's transcript indicating that Patricia G. was also “sworn to testify,” but we do not see her testimony in the record..  FN3. There is a notation in a minute order at page 669 of the clerk's transcript indicating that Patricia G. was also “sworn to testify,” but we do not see her testimony in the record.

FN4. In its ruling, the dependency court made numerous findings.   In passing, the court noted that Mother had been proactive in attempting to maintain her parental rights, and then stated “[t]hat's not to be if Madilyn's primary attachment is to her current caretaker.”   Contrary to appellant's contention, the dependency court's isolated comment did not indicate it was impermissibly requiring mother to prove Madilyn's primary attachment was to mother.   When read in context, it is clear the dependency court properly made its order to terminate parental rights based on a determination that Madilyn will benefit more from her prospective adoptive home rather than Mother's..  FN4. In its ruling, the dependency court made numerous findings.   In passing, the court noted that Mother had been proactive in attempting to maintain her parental rights, and then stated “[t]hat's not to be if Madilyn's primary attachment is to her current caretaker.”   Contrary to appellant's contention, the dependency court's isolated comment did not indicate it was impermissibly requiring mother to prove Madilyn's primary attachment was to mother.   When read in context, it is clear the dependency court properly made its order to terminate parental rights based on a determination that Madilyn will benefit more from her prospective adoptive home rather than Mother's.

RUBIN, J. GRIMES, J.