IN RE: EMMA R. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

V.R. appeals from the order of the juvenile court that terminated her parental rights to four of her six children.  (Welf. & Inst.Code, § 366.26.) ¹ We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The juvenile court takes jurisdiction and orders reunification services.

At the time the petitions were filed, V. had custody of five of her children, E. (11 years old), Darwin (6 years old), Emma (3 years old), Marlon (2 years old), and Brandy (1 year old).   V.'s sixth child, Richard, had been freed for adoption.

In 2008, the juvenile court sustained a petition on behalf of E., Darwin, Emma, Marlon, and Brandy alleging that V. used inappropriate physical discipline on Darwin (§ 300, subds.(a) & (j)), and created a detrimental and endangering home environment for the children by allowing Mauricio B.,² father of Emma, Marlon, and Brandy, who had previously violently assaulted V. and used illicit drugs, to have access to the children in violation of the juvenile court's orders that Mauricio have no contact with mother and have only monitored visitation with the child Marlon. (§ 300, subd. (b).)

After the juvenile court sustained the petition, in December 2008, V. gave birth to her seventh child, Es. Es. became a dependent of the court based on another petition alleging that V. and Mauricio had unresolved history of domestic violence and engaging in violent altercations, Mauricio had an unresolved history of drug abuse, and that Es.'s siblings are dependents of the court because of this domestic violence.   The petition also alleged that V. failed to participate regularly in court ordered individual counseling and continued to reside with Mauricio. (§ 300, subds.(b) & (j).)

As a disposition plan, the court ordered V. to undergo individual counseling, complete parenting education classes and domestic abuse counseling.   The court granted V. monitored visits with the children.

In August 2009, during the reunification period, the juvenile court terminated its jurisdiction over Darwin and E., gave sole physical custody of them to their father, B. R.,³ and ordered that V. and B. have joint legal custody.   B. was ordered to monitor V.'s visits with the older two children.   This appeal concerns V.'s parental rights to her children with Mauricio, Emma, Marlon, Brandy, and Es.

2. Mother's relationship with the children

In July 2009, the Department of Children and Family Services (the Department) decided to liberalize visits with the children because the social worker was under the impression that the juvenile court had given it discretion to liberalize visits with all six children.   However, as soon as the Department discovered it only had discretion to liberalize V.'s visits with Es., it immediately reinstituted monitoring and apologized to the court.

The juvenile court granted V. unmonitored half-day visits in August 2009 and ordered that if the visits went well, she could have full-day visits for the months of September and October 2009.   However, in October 2009, the social worker reinstituted supervision because of concerns about Mauricio's continued emotional and verbal abuse of V. The Department also received a report from Es.'s foster mother that V. had returned the child without proper clothing and sick to her stomach.   On November 6, 2009, the juvenile court reinstated visit supervision in a neutral setting, and ordered that V. and Mauricio visit the children separately.

Although V. denied having any contact with Mauricio in November 2009, in January 2010, she called the police because Mauricio was striking her in the head and leg with his fists and a shoe.   V. immediately entered a 45–day emergency shelter for victims of domestic violence.   V. later gave the social worker contradicting stories about whether she resumed living with Mauricio once she left the shelter.

In February 2010, Es. was reluctant to go to V. during visits.   As V. reached out to take Es. from her foster mother's arms, the child reacted by clinging to the foster mother, crying, and hiding her head.   The social worker observed that Es. was not comfortable being with V. In response to Es.'s behavior, V. went and hugged Emma, who was playing with her brother and sister.   Emma hugged V. back and smiled at her.

The social worker caught V. in a lie in February 2010 when she stated her contact with the two older children was being monitored by B.

In March and April 2010, the visitation monitor reported that twice V. used corporal punishment on the baby.   The second time occurred after the monitor reminded V. that corporal punishment was an inappropriate form of discipline.   In April 2010, the social worker expressed “concerns over [V.'s] ability to supervise, protect and care for the children.   Thus [V.] places the children at a ‘very high’ risk for further abuse and neglect.”

Commencing in April 2010, V. arrived late for visits and cut the visits short.   She also missed several visits in May 2010.

The juvenile court terminated reunification services in July 2010 and granted V. weekly visitation.   V. still experienced problems with visits, which continued to be monitored.   V. was overwhelmed by visiting four children at once, and attending to and engaging all of them.   Hence, the Department arranged for Es. to have separate visits with V.

Still, V. was overwhelmed.   On at least two occasions, she failed to call to cancel visits.   She repeatedly arrived late and regularly ended the visits only 45 minutes into the scheduled three hours because the children were bored and the baby would become fussy as she had no place to nap.   In November 2010, V. admitted that the mall was not the best place for visits because she struggles to play with the children.   The foster parents all expressed concerns about the visits.   For example, one foster parent reported that V. did not take food for the children, only snacks.   V. told the social worker that the foster mothers help her read the children's cues and that the foster mothers are meeting the children's needs.

V. also brought E. and Darwin to visits without a supervisor, against court orders.   She slapped Darwin before the monitor could prevent it.   Brandy witnessed this and called V. “mean,” to which V. responded, “ ‘how do you then suppose that I educate your brother?’  “ V. appeared to lie to the monitor repeatedly about why she was late and why the older two boys' monitor was not present.   During a visit, she also appeared to receive a text message from Mauricio, which she showed to Emma. V. became pregnant with her eighth child, and the social worker stated there was reason to believe that Mauricio was the father.

Meanwhile, the children received good care and supervision in their placements, where they were thriving.   The foster parents gave the children the individual attention, stimulation, stability and consistency that they did not receive from V. In October 2010, the Department reported that the three older children had adapted well to their placement.   All three were affectionate with their potential adoptive parents, whom they called “ ‘mami and papi.’  “ The children appeared comfortable and stable in their placements, were well adjusted, and required no therapy.   Es. formed a “strong” attachment with her prospective adoptive mother, the only caregiver she has known, and identified the woman as her mother.   The child's needs were being met and she was confident in her environment.   In advance of the permanency planning hearing, Emma, Marlon, and Brandy all stated they wanted to remain with their foster parents “because they love ․ and feel safe with [the foster parents].”   The social worker opined that Es. was “bonded with” her foster mother, developing appropriately, and reaching all of her milestones.

The Department concluded that all four children were “very adoptable” given their youth, health, lack of developmental delays, and the fact they were not drug-exposed.   The foster family for Emma, Marlon, and Brandy declared its desire to adopt the three children, and Es.'s foster mother stated her interest in adopting the baby.   The juvenile court granted Es.'s foster mother de facto parent status.   Both sets of foster parents indicated they would maintain sibling contact after adoption.

At the permanency planning hearing held in January 2011, V. testified that in the two years of this dependency she missed only two visits.   Her visits have always been once a week for three hours at a mall's arcade.   She saw all four children at the same time.   She played and talked with the children and gave them snacks.   She offered to give her older son $5 if he got happy faces from his teacher.   V. never gave her children nicknames other than “mijo” or “amore,” but they called her “mom.”   V. explained she terminated visits after about 45 minutes because the children got bored.   At the close of the hearing, the juvenile court found by clear and convincing evidence that the children were adoptable and no exception to adoption applied.   The court terminated V.'s parental rights.

CONTENTIONS

V. contends the juvenile court erred in terminating her parental rights because she demonstrated application of the parental-relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)).

DISCUSSION

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.)   Thus, the statute directs, if the court finds that the child is adoptable, “the court shall terminate parental rights unless” the court “finds a compelling reason for determining that termination would be detrimental to the child due to” one of the six delineated exceptions. (§ 366.26, subds.(c)(1) & (c)(1)(B).)  Thus, only if a compelling reason for applying an exception appears may the court select a plan other than adoption.

“[T]o terminate parental rights, the court need only make two findings:  (1) that there is clear and convincing evidence that the minor will be adopted;  and (2) that there has been a previous determination that reunification services shall be terminated.”  (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249–250, italics added.)   Once the court makes these two findings, “the decision to terminate parental rights will be relatively automatic[.]”  (Id. at p. 250.)   V. does not challenge the juvenile court's determination that the four children are adoptable.  (Id. at pp. 249–250.)   Nor does she argue that the court did not terminate reunification services.   (Ibid.) Therefore, the termination of V.'s parental rights was “relatively automatic.”  (Ibid.)

To defeat adoption, V. instead contends that the exception found in section 366.26, subdivision (c)(1)(B)(i), the so-called parental-relationship exception, applies.   This exception applies when the court finds that (1) “[t]he parents have maintained regular visitation and contact with the child and [ (2) ] the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)   As the parent, V. bore the burden to show application of this exception.  (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)   To carry her burden, V. had to demonstrate more than “frequent and loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or that she and the children find their contact pleasant.  (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)   She carried the burden to “prove ․ she occupies a parental role in the child[ren]'s life resulting in a significant, positive emotional attachment of the child[ren] to the parent.  [Citations.]”  (In re B.D. (2008) 159 Cal.App.4th 1218, 1234.)   She had the obligation to show that the benefit to the children of their relationship with her outweighed the benefit the children would gain in a permanent home with an adoptive parent.  (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108–1109.)

“The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)   That is exactly what the court did here.

In applying the exception, courts “balance[ ] the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child.”  (In re B.D., supra, 159 Cal.App.4th at pp. 1234–1235.)   This balance must be considered in the context of any limitations the juvenile court has placed on visitation.  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537–1538.)  “[I]f severing the existing parental 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.’  [Citation.]  In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan.  (See § 366.26, subd. (c)(1).)”  (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

On appeal, “[w]e determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling.  [Citation.]  The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence.  [Citations.]”  (In re B.D., supra, 159 Cal.App.4th at p. 1235.)

Here, V. contends that she demonstrated a bond with her children that was sufficiently beneficial to defeat the statutory preference for adoption.   Not so.   First, although V. maintained regular visitation with her children, those visits were monitored throughout the two-year dependency and were never extended beyond the three-hour timeframe, meaning the children were never safe in V.'s care.   The monitor was only removed for a three-month period between August 2009 and November 2009, and that liberalization was a short-lived experiment.   Second, although the visits may have been mostly regular, they were not as pleasant as V. would wish.   Throughout the dependency, V. was overwhelmed by the task of looking after four children;  she arrived late, and stayed for less than a third of the scheduled time.   She always relied on the caretakers to interpret the children's communication cues.   V. knew that the location of the visits was not ideal, but never attempted to arrange a better place, or increase the opportunities for visits.   The children were bored and the baby was fussy.   Third, V. repeatedly physically disciplined the baby and slapped Darwin in front of the other children, even though corporal punishment and domestic violence were reasons for dependency jurisdiction in the first place, and notwithstanding the visitation monitor's instructions that she not hit the children.   Fourth, V.'s testimony did not describe a loving bond with the children;  rather she explained that she brought them snacks and played with them.   The quality of the interaction must be more than merely “frequent and loving contact;” she must show that she “occupies a parental role in the child[ren]'s life resulting in a significant, positive emotional attachment of the child[ren] to the parent.  [Citations.]”  (In re B.D., supra, 159 Cal.App.4th at p. 1234.)   What the record shows is that V. occupies the role of a pleasant, friendly visitor, but not that of a parent.

By contrast, the children are thriving in the care of their prospective adoptive parents, where they declared they wished to remain.   The children reportedly receive the stability and consistency from their prospective adoptive parents they never received with V. They are affectionate with their potential adoptive parents, whom they call “ ‘mami and papi’ “ and whom they love and with whom they feel safe.   Baby Es. has also formed a “strong” attachment with her prospective adoptive parent, who she identifies as her mother as she is the only caregiver the child has known.   Therefore, the evidence supports the juvenile court's determination that Emma, Marlon, Brandy, and Es. would not suffer great detriment by terminating parental rights, with the result the court was required to order adoption as the permanent plan.   (See § 366.26, subd. (c)(1).)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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

FN2. Mauricio B. is not a party to this appeal..  FN2. Mauricio B. is not a party to this appeal.

FN3. B.R. is not a party to this appeal..  FN3. B.R. is not a party to this appeal.

CROSKEY, Acting P. J. KITCHING, J.