IN RE: JOSHUA E. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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A mother appeals from an order terminating parental rights.   The mother contends the juvenile court erred in refusing her an opportunity to demonstrate the applicability of an exception to termination of parental rights, and in choosing adoption over legal guardianship as her son's permanent plan.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Fifteen-month-old Joshua E. (born July 2007) was detained in November 2008 after a social worker from respondent Department of Children and Family Services (DCFS) observed Joshua's mother, appellant Robin M. (mother), breastfeeding the child after admittedly using methamphetamines three hours earlier.   Mother had reportedly been breastfeeding the child after using methamphetamines for the past three months.   The child's father, Dylan E. (father;  who is not a party to this appeal) was also present and admitted he was “under the influence” at the time after having smoked methamphetamines earlier that day.   Joshua was dirty and had a severe diaper rash and open lesions, but appeared otherwise healthy.   He was taken to the emergency room for observation.   Joshua was placed in foster care.

In a December 2008 report prepared for the jurisdictional hearing, DCFS noted that mother's older child was placed in a legal guardianship with a maternal aunt, also as a result of mother's drug use.   Father told DCFS he and mother used methamphetamines together.

The jurisdictional hearing was conducted in February 2009.   The court sustained a petition filed under Welfare and Institutions Code section 300, subdivision (b) ¹ alleging:  the parents had a history of substance abuse;  mother breast-fed Joshua shortly after taking methamphetamines;  both parents suffered from mental and emotional problems (including mother's bipolar disorder and schizophrenia);  and the parents had a history of engaging in domestic violence.   Mother was given monitored visits, and ordered to participate in a parenting program and a drug rehabilitation program with random testing, to attend individual counseling to address case-related issues and anger management and to take medication recommended by her therapist.

Initially, mother made good progress toward attaining sobriety.   She relapsed, however, in February 2009 and used methamphetamine again.   During a visit with Joshua in May 2009, mother behaved in a manner that led DCFS to believe she was under the influence of some substance.   Paradoxically, in May 2009, mother received a certificate of completion from an outpatient drug treatment program.   In June 2009, mother had a positive drug test.   Also that month, mother and father told Joshua's foster parents they were high on crystal methamphetamine, and asked them for money to purchase herbs they believed would help them test negative.   Early in 2010, DCFS reported that mother admitted using methamphetamines with father once in mid-January 2010.

The parents experienced difficulty controlling their anger and continued to engage in domestic violence throughout the course of this proceeding.   DCFS reported that in June 2009, August 2009, and early in 2010, the parents had been physically aggressive with one another in the course of domestic disputes.   During several visits with Joshua, DCFS observed scratches on father's face it believed was indicative of domestic violence.   In September 2010, father told DCFS he and mother had had a violent altercation during which she stabbed him in the thigh with a steak knife.   The parents were referred for couples counseling.   In September 2009, mother told the therapist about incidents in which the parents had engaged in domestic violence in Joshua's presence—on one occasion mother threw a remote control at father while he was holding Joshua and in response father kicked mother while still holding the child.

Mother's visitation record with Joshua was spotty, and DCFS reported the parents had canceled about half of their allotted visits.   During 2009, DCFS reported that mother attended only one of four scheduled visits in February, attended four of five visits in March, three of four during April.   In June 2009, DCFS reported that mother had missed two of the last six scheduled visits at a foster agency.   Most of mother's visits were monitored, but she was permitted unmonitored visits outside the home she shared with father, beginning on Joshua's birthday in July 2009.   In October 2009, DCFS reported that mother had not taken advantage of the visitation she was permitted, consistently canceled one of two permitted weekly visits and had not seen Joshua for over two months.   Mother displayed indifference regarding the lack of visits.   DCFS observed that when mother did visit the quality of the visits was generally “good,” and she displayed appropriate behavior.   Joshua was bonded with his parents, “always happy to see [them] and upset” when they had to leave.   The parents brought Joshua toys and an art set, and began to teach him about colors.

In fall 2009, Joshua was moved into the care of his paternal grandparents, the P.'s (with whom he remains), after his previous caretakers separated.

In January 2010, DCFS filed a section 388 petition requesting a change to the court's visitation order to require only monitored visits.   The parents had relapsed and used methamphetamines in mid-January.

In its report for the section 388 hearing, DCFS noted that mother had completed a parenting education program and was participating in individual counseling.   However, she continued to live with father (who was only marginally complying with the case plan), both parents had experienced drug relapses at least twice in the preceding year and neither parent had shown any significant change in their circumstances or behavior.   In February 2010, mother had missed two random drug tests and had three negative tests.   On more than one occasion mother did not test after she claimed to be unable to urinate.   DCFS also reported that the quality and consistency of the parents' visits with Joshua was “poor.”   Although the parents were allotted two weekly visits with Joshua, they rarely made it to both visits and often canceled claiming illness or scheduling conflicts.   On one visit during March, mother's behavior was described as “very bizarre” and she ignored Joshua and sent text messages during the visit.   DCFS suspected continued drug use.   DCFS reported that father's progress had been inadequate, but mother was doing better.   Mother told DCFS that if necessary, she was willing to separate from father in order to reunify with Joshua.   The parents separated in March 2009 but reunited within three months.

At the hearing on the section 388 petition a social worker testified she was “really concerned with the home of the parents,” and an apparent lack of stability.   Several individuals had reportedly done drugs in the home.   One person was taken away by ambulance after an overdose and two of the parents' current roommates were allegedly using drugs.   One person whom mother brought with her to a visit with Joshua told the social worker mother had been smoking crack.

The juvenile court found the parents had not consistently visited Joshua, had made “unsatisfactory” progress in their efforts to resolve the issues of substance abuse and domestic violence which led to the child's removal, and had not demonstrated an ability to satisfy the objectives of their case plan.   Reunification services were terminated and the matter was set for a selection and implementation hearing (§ 366.26).

In its July 20, 2010 report for the section 366.26 hearing, DCFS stated that mother's visitation with Joshua remained sporadic, and that she regularly canceled or was late for visits.   Joshua had adapted well to his placement with his grandparents with whom he had “clearly bonded” during the past year.

Mother was incarcerated in July 2010, when the selection and implementation hearing was scheduled to occur.   The hearing was continued to September 21, 2010 to permit her to be transported to court.   Mother's attorney requested that a contest be set for September 21 so mother could demonstrate the applicability of an exception to termination of parental rights.   Mother's counsel conceded mother's visits “had been sporadic.”   The court observed that sporadic visitation would not satisfy the statutory exception to termination of parental rights, and denied the request for a contested hearing.

In September 2010, DCFS reported that Joshua continued to do well in the P.'s care, and they were eager to adopt him.   Joshua was receiving services from the regional center.   Ms. P. was working to ensure he remained active and continued working to meet developmental milestones, and had requested that his need for mental health and behavioral therapy services be assessed.   DCFS also reported that Joshua's contact with his biological parents had been minimal since its most recent report.   Joshua had seen mother, at most, once or twice each month before her incarceration in July, and not at all since then.   Mother continued to drug test, albeit sporadically.   She was arrested in late summer 2010 after police observed bite marks and scratches on her boyfriend.   The parents had continued to engage in domestic disputes and had separated.   Father told DCFS mother stabbed his thigh with a steak knife during one argument, and that scratches DCFS monitors had observed on his face during some earlier visits were inflicted by mother.   An adoptive home study for the P.'s had been approved.

The section 366.26 hearing was held on September 21, 2010.   Mother renewed her request for a hearing to address her contention that granting an exception to termination of parental rights was in order.   In response to the court's request for an offer of proof, mother's attorney noted that prior to her incarceration mother had visited Joshua, albeit sporadically.   Counsel for DCFS and Joshua each argued that no exception could be shown, in that mother's preincarceration visits were inconsistent and mother had not complied with the case plan—she had missed drug tests and also relapsed.   The juvenile court agreed mother's infrequent visits would be insufficient to carry her burden to establish the applicability of a statutory exception, and declined to hold a contest.   The court found Joshua adoptable.   It also found the parents had not established a statutory exception and terminated parental rights.

DISCUSSION

Mother maintains the juvenile court erred in refusing to grant her request for an opportunity to demonstrate applicability of the beneficial relationship exception to termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(i).)   Specifically, mother argues (1) the court erroneously concluded mother's visitation was insufficient;  (2) mother's bond with Joshua warranted preservation of the parental relationship;  and (3) adoption is unnecessary because legal guardianship would provide Joshua the requisite degree of stability.   None of these contentions has merit.

Once the juvenile court finds by clear and convincing evidence that a dependent child is adoptable, it must terminate parental rights and order the child placed for adoption except in an action in which a parent is able to show that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1);  In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1345.)   Mother argues the “beneficial relationship” exception applies here.   Under that exception, a court may refuse to terminate parental rights if 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).)   A “beneficial relationship” is one that promotes the child's well-being to such a degree that it would be detrimental to terminate parental rights, when weighed against the stability and permanence provided by an adoptive home and family.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575;  In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

The exception has two components, each of which must be satisfied for the exception to apply.   First, the parent must show she has maintained consistent visitation and contact with her child.   If that showing is made, the court must decide whether those visits have engendered a “significant, positive, emotional attachment from child to parent.”  (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)   We review a juvenile court's order refusing to apply an exception for substantial evidence.  (In re Derek W. (1999) 73 Cal.App.4th 823, 825.)

The juvenile court declined mother's request to hold a contested hearing to address the applicability of the beneficial relationship exception.   It found mother's offer of proof insufficient, and concluded she would not be able to satisfy even the first prong of the beneficial relationship exception given her “sporadic” visitation record.   Mother insists she missed only a few of her weekly visits.   We reject this assertion.

At the inception of this action the parents were given three hours twice weekly of visitation with Joshua, half at DCFS's offices and the other half at a foster agency.   Mother's attendance at visits was spotty and she was regularly late for or missed altogether one of her two weekly visits, even after DCFS altered the schedule to accommodate the parents' needs.   Mother failed to take advantage of unmonitored visits afforded to her beginning in summer 2009, and was indifferent about her lack of visitation.   By summer 2010, mother saw Joshua only once or twice a month;  after her incarceration in July 2010 there were no visits at all.

Mother takes issue with the characterization of her visitation as poor.   She claims she visited Joshua every week and that over a 17 week period, she missed just one visit and came late to two others.   Again, the record is to the contrary.   The fact that DCFS commented only on three specific instances to illustrate its point does not negate the additional evidence showing mother regularly failed to visit.   Moreover, it is improper to pull one four-month period out of context from mother's overall visitation record.   The record contains ample evidence to support the court's conclusion that mother was an inconsistent visitor.

Moreover, even if mother could show she maintained regular contact with Joshua and satisfy the first prong of the exception, she would be unable to establish her contact with Joshua engendered a “significant, positive, emotional attachment,” such that termination of the parental relationship would cause the child detriment.   Consistent visits, while necessary, are not sufficient.   To establish the beneficial relationship exception, “[t]he parent must do more than demonstrate ‘frequent and loving contact[,]’ ․ an emotional bond with the child, or that the parent and the child find their visits pleasant․  Instead, the parent must show that he or she occupies a ‘parental role’ in the child's life.”  (In re Derek W., supra, 73 Cal.App.4th at p. 827, citations omitted;  In re Beatrice M., supra, 29 Cal.App.4th at pp.   1418–1419.)   It is not disputed that Joshua was “always happy to see his parents and [became] upset when it [was] time for them to leave.”   Nor is it disputed that mother's conduct during visits was, for the most part, appropriate.   She and father did demonstrate some parenting skill when they limited the food they gave to Joshua to help teach him not to use tantrums as a way of garnering attention.   Beyond this, however, there is little evidence of any emotional attachment between mother and Joshua, much less one that would cause the child detriment if severed.

After two years of reunification services, mother had not progressed beyond monitored visitation.   Moreover, over the course of the reunification period, mother suffered a number of actual or suspected relapses even after completing a substance abuse program, and had several positive or missed drug tests.   She also demonstrated a continued inability to control her anger, engaging in several violent confrontations with father.   These shortcomings in mother's progress are significant given that it was the parents' substance abuse and the domestic violence that gave rise to this action in the first place.   Mother knew her parental relationship with Joshua was at stake but remained unable to control her actions.  “Children should not be required to wait until their parents grow up.”  (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632, disapproved on another ground by In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12.)   Joshua has waited long enough for mother to demonstrate her ability to parent.   The child's right to a stable future with a family committed to his adoption need no longer be sacrificed to give mother another opportunity to learn to control her behavior.

We also reject mother's contention adoption is unnecessary because guardianship with the grandparents would provide the child a stable home.   While guardianship would, as mother argues, provide some measure of stability, it does not promise the same degree of stability as a permanent plan of adoption.  (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251;  In re Autumn H., supra, 27 Cal.App.4th at pp.   573–574).   Adoption not only provides a measure of security not inherent in guardianship but also gives legal effect and recognition to the existing parental relationship between the children and their guardians.  (See Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 454 (dis. opn., Baxter J.);  Adoption of Barnett (1960) 54 Cal.2d 370, 377–378.)

At the permanency planning hearing, the juvenile court must order one of three dispositional alternatives, adoption, guardianship, or long-term foster care.   (In re S.B. (2008) 164 Cal.App.4th 289, 296–297.)   The Legislature has declared a strong preference for adoption over the alternative plans if the dependent child is adoptable.  (Id. at p. 297.)   As the statute directs, if the court finds that the children are adoptable, it “shall terminate parental rights” unless the court “finds a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)  Thus, only if a compelling reason for applying an exception exists may the court select a plan other than adoption.

“The Legislature has decreed ․ that guardianship is not in the best interests of children who cannot be returned to their parents.   These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them.”  (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.)   Unlike adoption, guardianship “is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.”  (Jones T. v. Superior Court, supra, 215 Cal.App.3d 240, 251;  see also In re Jose V. (1996) 50 Cal.App.4th 1792, 1799[“[I]t is well established that there is a strong preference for adoption as the most permanent, and thus the best, plan for a dependent child․  ‘ ․ Once the court determines adoption is feasible, the less desirable and less permanent alternatives of guardianship and long-term foster care need not be pursued.’ ”].)

Substantial evidence supports the juvenile court's decision to terminate parental rights.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Subsequent statutory references are to this code..  FN1. Subsequent statutory references are to this code.

MALLANO, P. J. ROTHSCHILD, J.