IN RE: S.D. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Michelle G. (mother) appeals from an order terminating parental rights to her daughter, S.M., under section 366.26 of the Welfare and Institutions Code.¹

She contends substantial evidence does not support the finding that the exception to termination under section 366.26, subdivision (c)(1)(B)(i) was inapplicable.   We affirm.

FACTS AND PROCEDURAL HISTORY

S. was born in 2004 to mother,² a former court dependent,³ who had a history of depression, instability, aggression, violence, and drug abuse.   She physically and emotionally abused her children and left them with others without providing for their care.   Mother did not take the psychiatric medicine she was prescribed.

S. lived with mother and her two half-siblings, D., born in 2001, and B., born in 2007.   In 2002, the dependency court found mother's history of substance abuse, gang involvement, running away, and screaming at three-month-old D. on numerous occasions, placed D. at substantial risk of physical and emotional harm.

In 2007, D.'s and B.'s father, David, was released from prison and lived with mother in a drug-using and transient life-style.   S. and her half-siblings stayed with relatives.   Mother would hit the children across the face.   Her slapping left a scratch mark on S.'s face below the eye.

In February 2008, mother, S., and B. witnessed David's murder in a gang-related assault.   Mother remained gang-affiliated.   S. was aware she witnessed his murder:  “ ‘[M]y daddy[ ⁴ ] is with God, some bad kids shot him in front of me.   He was dead and he had blood in his mouth.’ ”

Mother went into hiding, taking S. and B. with her.   On March 12, 2008, mother was arrested while smuggling 50 pounds of marijuana across the United States/Mexico border in the gas tank of her vehicle.   Mother brought S. and B. with her in the vehicle, because she thought it would be easier to cross the border with children.   Mother had brought her children with her on prior occasions when she transported drugs across the border as part of a smuggling ring.   Mother admitted “she knew it was dangerous to have her children with her, but that was a risk she was willing to take.”   However, she believed she was a good mother who had made one mistake by smuggling drugs.   Mother pled guilty to child endangerment and possession of marijuana for sale.

At mother's request, S. and B. were released to a maternal relative who lived in a house where there had been multiple gang shootings.   Mother pled guilty to willful child endangerment (Pen.Code, § 273a) and possession of marijuana for sale (Health & Saf.Code, § 11359).   The Department of Children and Family Services detained S. on March 20, 2008, due to caretaker absence.

Mother was ordered to serve six months in local custody and three years formal probation.   She refused to be transported from jail to the jurisdictional hearing on May 20, 2008.

Mother called S. in her foster home, falsely telling S. that mother was working and would pick S. up after work.   S. waited anxiously to be picked up by mother.   She wet her bed and had nightmares.   S. said, “please God take me to heaven with my dad.”   Mother was released from jail, on formal probation, on June 23, 2008, but displayed a “really bad attitude” toward probation.

Mother appeared at the jurisdictional hearing on June 26, 2008, with court appointed counsel.   The dependency court found, under section 300, subdivision (b), that there was a substantial risk S. will suffer serious physical harm as a result of mother's failure to adequately supervise her, failure to provide her with adequate food, clothing, and shelter.

Mother was depressed and did not visit S., but she did call.   Mother did not follow up with referrals for counseling.

At the disposition hearing on July 30, 2008, S. was declared a dependent of the court, custody was taken from mother, the Department was ordered to provide reunification services, and mother was ordered to participate in parenting classes, random drug testing, and a mental health assessment.   Mother was ordered to complete six random drug tests and to complete a drug program if any tests were missed or positive.   Mother was ordered to comply with all recommendations of the mental health evaluator.   Mother was granted monitored visits.

S. thrived in her foster home.   However, she often cried out loud when she remembered what she witnessed while in the care of her biological family.

Although provided with transportation funds, mother visited S. on only one occasion for 15 minutes.   Mother failed to comply with the drug testing order and did not enroll in a drug counseling program or participate in a mental health assessment.   She did not appear at the six-month review hearing in November 2008.

Mother was arrested in Orange County in February 2009.   She was convicted of receipt of stolen property (Pen.Code, § 496, subd. (a)) and incarcerated until mid-May 2009.

In May 2009, upon approval of the relative placement, S. was moved into the home of Mrs. S., a maternal great aunt, and her husband.   S. had a relationship with the family since birth and made a successful adjustment to the home.

Mother failed to reunify with S. Reunification services were terminated on July 9, 2009.   Mother was not present at the hearing.   She had not completed any of the court-ordered rehabilitation programs except parenting classes, and she did not maintain contact with the social worker while she was in custody.   A permanent plan hearing under section 366.26 was set for November 5, 2009.

Mother had appropriate, monitored, one-hour visits with S. every other week at the Department's office.   She became consistent in her visits after mid-February 2010.⁵  Mother often bought toys or food for S.S. called mother by her first name;  she also called her “mom” or her big sister.   S. enjoyed the visits and wanted them to continue.

Mrs. S. wanted to adopt S., who thrived in the home.   She was healthy, cheerful, and playful at home.   S was successful in school, where she liked to participate and share her ideas, was a good story teller, was always happy and helpful, and tried hard in all areas.   S. told the social worker she was “happy to be under the care of Mrs. S. and Mr. S. and would like to continue to be under [their] care․  [She] reports that she enjoys her new school and has made several friends.”   S. told her therapist she liked living in Mrs. S.'s house and loved Mr. and Mrs. S. and their two sons, who she sees as her older brothers.   The adoptive home study of the S.'s was approved.

The permanent plan hearing under section 366.26 was held on September 14, 2010.   On October 7, 2010, the dependency court found S. was adoptable, and although mother visited regularly, she did not meet her burden of providing compelling evidence of a beneficial relationship under the exception to termination in section 366.26, subdivision (c)(1)(B)(i).   Parental rights were terminated.

DISCUSSION

Substantial Evidence Supports the Finding That the Exception in Section 366.26, subdivision (c)(1)(B)(i) Does Not Apply

Mother contends substantial evidence does not support the finding under section 366.26, subdivision (c)(1)(B)(i), that termination of parental rights would not be detrimental to the child.⁶  We disagree with the contention.

Because mother's contention asserts insufficiency of the proof, we apply the substantial evidence rule.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947;  In re Autumn H. (1994) 27 Cal.App.4th 567, 576;  compare In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard of review].) ⁷  If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently.   (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)   Thus, the pertinent inquiry when a finding on the section 366.26, subdivision (c)(1)(B)(i), exception is challenged is whether substantial evidence supports the finding, not, as mother argues, whether a contrary finding might have been made.  “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.   [Citations.]  ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ․ such that a reasonable trier of fact could find [that the order is appropriate].” ’  [Citations.]”  (In re Matthew S. (1988) 201 Cal.App.3d 315, 321;  see also In re Dakota H., supra, at p. 228[“[w]e do not reweigh the evidence”].)

Under section 366.26, subdivision (c)(1)(B)(i), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it “finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [¶] ․ maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

“ ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’  [Citation.]  ․ ‘The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.’   [Citation.]”  (In re Celine R. (2003) 31 Cal.4th 45, 52–53.)  “At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice.   [Citation.]”  (Id. at p. 49;  see also § 366.26, subd. (b)(1) [adoption is the preferred plan].)  “At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home.’  [Citation.]  The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.”  (In re Celine R., supra, at p. 53.)

“[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)   The type of parent-child relationship that triggers the exception is a relationship which “ ‘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․'  [Citation.]”  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534;  accord, In re Jasmine D., supra, at pp. 1347–1350.)

Substantial evidence supports the finding that no exceptional circumstances existed under section 366.26, subdivision (c)(1)(B)(i), that required depriving S. of a permanent, adoptive home.   Regarding the second prong of the exception to termination—that S. would benefit from continuing the relationship—substantial evidence establishes that mother's relationship with S. did not promote S.'s well-being “ ‘to such a degree as to outweigh the well-being the child would gain in a permanent home with [a] new, adoptive parent [ ]․’  [Citation.]”  (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.)   S. spent two and a half years in foster care, waiting for mother to become an adequate parent, but mother never became rehabilitated.   Mother did not treat her emotional problems, including depression, aggression, violence, and instability.   She did not treat her substance abuse issues.   She did not address through counseling her issues of exposing her children to a dangerous gang environment, criminal activities, and the violent death of a loved one.   There was evidence S. had a loving and nurturing home where she felt she belonged, thrived, and wanted to remain.   The S.'s made a full-time commitment to her and were committed and able to provide her with consistency and permanency.   Mother was only able to maintain consistent visitation for one hour every two weeks.

Mother's argument that there was evidence S. shared a strong, positive bond with mother is but a request we reweigh the evidence.   This we will not do.   (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [“When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.”].) The conclusion reached by the dependency court that no compelling reason existed for finding termination of parental rights would be detrimental is amply supported by substantial evidence.

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

KUMAR, J.^*

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. The dependency court found Raymond S., whereabouts unknown, to be an alleged father..  FN2. The dependency court found Raymond S., whereabouts unknown, to be an alleged father.

FN3. Mother was declared a dependent of the court in late 1999 at age 14.   She had “special and unique behavior problems,” maternal grandmother used handcuffs, duct tape, and rope to restrain her, and maternal grandfather had a lengthy criminal and drug history.   She was placed in foster care until age 18, although she frequently went AWOL from placement.   She became pregnant at age 16..  FN3. Mother was declared a dependent of the court in late 1999 at age 14.   She had “special and unique behavior problems,” maternal grandmother used handcuffs, duct tape, and rope to restrain her, and maternal grandfather had a lengthy criminal and drug history.   She was placed in foster care until age 18, although she frequently went AWOL from placement.   She became pregnant at age 16.

FN4. S. considered David to be her father..  FN4. S. considered David to be her father.

FN5. As mother was inconsistent in visiting prior to February 2010 when she had weekly visits, her visitation schedule was changed to every other week..  FN5. As mother was inconsistent in visiting prior to February 2010 when she had weekly visits, her visitation schedule was changed to every other week.

FN6. The parent has the burden to prove the applicability of the exception.  (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.).  FN6. The parent has the burden to prove the applicability of the exception.  (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

FN7. “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.]  However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1)[ (B) ].) That is a quintessentially discretionary determination.   The juvenile court's opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.  [Citation.]”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.).  FN7. “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.]  However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1)[ (B) ].) That is a quintessentially discretionary determination.   The juvenile court's opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.  [Citation.]”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.