IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 27, 2010
IN RE T.B., A PERSON COMING UNDER THE JUVENILE COURT LAW.
ORANGE COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
L.B., DEFENDANT AND APPELLANT.
Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super. Ct. No. DP-012301)
The opinion of the court was delivered by: Aronson, J.
In re T.B.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
L.B. (mother) appeals from the juvenile court's order terminating her parental rights to her now 10-year-old daughter, T.B. (See Welf. & Inst. Code, § 366.26; all subsequent statutory citations are to this code.) Mother asserts the juvenile court erred by denying her modification petition (§ 388) seeking the return of T.B. to her custody after nearly five years as a dependent and by not applying the benefit exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. As we explain, mother's contentions do not require reversal, and we therefore affirm the juvenile court's order.
I FACTUAL AND PROCEDURAL BACKGROUND
The Orange County Social Services Agency (SSA) detained five-year-old T.B. in September 2005 after mother attempted to commit suicide with a butcher knife and was placed on a 72-hour involuntary psychiatric hospitalization hold. (§ 5150.) While threatening to kill herself, mother had left T.B. alone in the apartment complex parking lot. Mother denied trying to kill herself, claiming she only sought attention and was upset about losing her job and the prospect of her girlfriend, Terri, leaving her, although she earlier had obtained a restraining order against Terri for domestic violence.
In a previous contact the year before, SSA substantiated a general neglect allegation arising from a domestic violence incident where mother and another girlfriend admitted using physical force against each other and the girlfriend reported mother "'pulled a kitchen knife out and threatened to cut her.'" T.B. awoke during the confrontation, but was not harmed and SSA did not detain her. This time, however, SSA filed a dependency petition based on the suicide attempt and ensuing hold, mother's decision to leave T.B. in the parking lot, her unresolved substance abuse problem (methamphetamine), and incidents of domestic violence, including the 2004 altercation.
Mother initially demonstrated devotion to T.B. in monitored visits. She also sought and obtained additional unmonitored visits with T.B. at Orangewood Children's Home, where informal staff observations reflected the mother-daughter contact was positive. Staff reported T.B. was "a joy to be with." Mother had been a dependent herself seven years earlier. She reported she only began smoking marijuana in the last two months, and admitted using methamphetamine over the last month "to lose weight." She progressed well before the jurisdictional hearing, testing clean and attending a drug rehabilitation program (Perinatal) and therapy, and she found a job. Perinatal staff diagnosed mother with a general "Depressive Disorder" with no psychotic features, which a social worker noted was "very different from a Major Depressive Disorder." Mother received a prescription for Wellbutrin for her depression, but if she could not take it, for instance while she had bronchitis, there was little risk to her mental stability.
In October 2005, the juvenile court sustained the petition and ordered T.B. released to mother under a Conditional Release to Intensive Supervision Program (CRISP) agreement, and then formalized the placement with a later dispositional order establishing family maintenance services.
By November, mother's progress stalled, with mother moving her residence four times since September and bouncing emotionally from crisis to crisis. T.B. appeared to cope well at first, but then became chronically sick. After several more months of unsettled housing, mother took an apartment in April with Terri, which violated her case plan because of the domestic violence restraining order. T.B. moved briefly to respite care after mother became ill with diabetes-related complications. T.B. suffered multiple episodes of enuresis, cried all night, and wanted to go home to mother. Her enuresis continued on her return to mother and through the remainder of the dependency.
Mother failed to attend counseling sessions, never began her parenting classes, and was discharged from the Perinatal drug program for noncompliance. She blamed a positive methamphetamine test on sabotage at the testing site. She also lost her job. Mother displayed some initiative in finding a new substance abuse program. But SSA redetained T.B. after mother tested positive twice for methamphetamine in early May 2006. SSA filed a supplemental dependency petition (§ 387) based on the positive drug tests, mother's domestic violence history, her failure to ensure T.B. attended school (16 absences from January into April 2006), and alleged failure to follow through with T.B.'s medical appointments.
Mother had taken T.B. to an endocrinologist in February 2006 because of pubic and armpit hair growth, but it was not until May that the social worker learned from the doctor's office that the diagnosis was adrenarche, or "early development," a benign condition. Of greater concern, T.B. weighed 94 pounds before her sixth birthday. Another report six months later put her weight at 80 pounds. Whether she lost that much weight or one of the numbers may have been in error, in either event, her kindergarten classmates were already teasing her about her size, making it difficult to form friendships. She did not want to go to school as a result.
Mother tested positive for methamphetamine again in late May and was terminated from her new drug program and individual therapy for missed appointments. T.B. reported that both mother and Terri had hit her and also reported seeing mother naked with various men. Mother denied hitting T.B. In July 2006 mother was involved in another domestic violence incident with Terri; the police report stated Terri's daughter was injured as mother and Terri struggled during an argument. Mother did not visit T.B. after she was removed from mother's care, leaving T.B. bewildered and sad. T.B. told the social worker, "'I love my mommy and I miss her very much.'" The juvenile court sustained the supplemental petition, ordered reunification services, and set a six-month review hearing.
Mother performed poorly during the six-month review period. She served three weeks in jail in September 2006 for possession of a "'pipe and a controlled substance,'" and she remained enmeshed with Terri despite a no contact order and her allegations Terri ran her over and broke her femur and fractured her ankle. She spent two days in the hospital on another psychiatric hold before absconding. The record is not clear, but she may have served another brief stint in jail on an outstanding warrant. She failed to attend personal empowerment classes, skipped a psychological evaluation and her substance abuse sessions, and was terminated from counseling and parenting classes for absences. Mother rarely visited T.B., who reported to school authorities and the social worker that she did not want to return home because mother hit her with a closed fist. At the review hearing in January 2007, the juvenile court admonished mother it almost terminated reunification services and set a permanency planning hearing (.26 hearing) because of her poor performance.
Mother's progress remained unsatisfactory in the 12-month review period, but improved slightly at the end. After termination from yet another therapy referral for nonattendance, she began to attend counseling sessions sporadically. She missed 30 of 42 drug tests, despite the condition in her reunification plan that missed tests counted as failed tests. She ignored referrals for a psychological examination and made no effort to attend her empowerment program, but began attending Alcoholics Anonymous and testing more regularly through her substance abuse program. She did begin visiting T.B. regularly on Mondays and Fridays. At the 12-month review hearing in July 2007, the court authorized a final six months of reunification services.
Mother improved her compliance dramatically in the final, 18-month review period, but then relapsed on methamphetamine. Mother started the review period impressively: by September 2007, she had participated in 12 counseling sessions, almost completed her empowerment program, attended a parenting class, and tested negative in her substance abuse program 10 times, missing three tests. She called T.B. daily and visited consistently. T.B. expressed she loved mother and wanted to be with her "'all of the time.'" T.B.'s foster caretaker supported additional visits for mother beyond her allotted two per week, and SSA soon authorized unmonitored visitation at the foster caretaker's home of up to eight hours weekly. Despite the progress, however, mother continued to miss drug tests, failing to show for 12 -- or more than one quarter -- of her scheduled tests in the review period. She tested positive for methamphetamine in November 2007. By then, the 18-month reunification period following the supplemental petition had closed and more than two years had passed since T.B.'s initial detention in September 2005, yet T.B. still could not be safely returned to mother's care. The juvenile court terminated reunification services and set a .26 hearing. T.B. was now almost seven and one-half years old.
Mother entered a 30-day residential drug treatment facility, but left after 12 days. Based on her unresolved methamphetamine problem, SSA filed, and the juvenile court granted, a modification petition (§ 388) to revoke mother's liberal, unmonitored visitation and restore it to the former schedule of monitored, twice weekly visits. Through January 2008, mother only visited T.B. twice in seven weeks.
SSA's adoption assessment in March 2008 described T.B. as difficult to place based on behavioral and medical issues, including attention deficit disorder, lying, and ongoing enuresis. At the April 2008 .26 hearing, the juvenile court found there existed the requisite probability that T.B. would be adopted to authorize a 180-day period for SSA to seek an adoptive placement for her. (§ 366.26, subd. (c)(3).) Accordingly, the court rescheduled the .26 hearing. The court eventually authorized additional six-month search periods, pushing the .26 hearing to March 2010.
In the meantime, mother continued to falter. The record does not show she exerted independent efforts to address her case plan goals once reunification services ended. Worse, her bond with T.B. began to show negative aspects. She visited T.B. only sporadically, and after her visits, T.B. threw tantrums and disobeyed household rules in her foster placement. In contrast, when mother was reincarcerated briefly in May 2008 and missed months of visits after her release, T.B.'s behavior improved. Indeed, with her stabilization, T.B. did not ask about mother, but instead expressed interest in being adopted. Based on T.B.'s improvement in mother's absence, minor's counsel filed a modification petition in August 2008 to reduce mother's authorized visitation from twice a week to once a month. The juvenile court limited mother's visitation to twice a month.
T.B., unfortunately, faced some upheaval in her placement. By December 2008, T.B.'s foster mother, with whom T.B. had lived with since June 2006 and who had expressed some interest in adopting T.B., determined she could not do so because she already had adopted four other children. The foster mother relinquished her foster license. After a brief interim placement, SSA found a new foster home for T.B. in February 2009, but the foster parents were ambivalent about adoption Despite the upheaval, T.B. did not regain interest in living with mother. She did not ask about mother and, when quizzed directly about returning home, she responded, "'I want to stay where I'm at [with the new foster parents]. I'm being good. I have my own room!'"
Mother began a spate of regular, twice monthly visits in 2008 through early 2009. But in March and April 2009, she returned to jail yet again, this time on an "outstanding warrant" for undisclosed criminal conduct. For more than a month after her release, she failed to reappear in T.B.'s life to resume visitation. Mother recommenced regular bi-monthly visitation by June 2009, but in September 2009, T.B. faced another setback in her foster home placement, raising allegations the foster father spanked her hard over her clothing and forced her to walk nude in the backyard as a form of discipline. SSA returned T.B. to Orangewood Children's Home.
T.B. finally found stability in a prospective adoptive placement in early November 2009 with an experienced foster care couple named Charlene and Tom. At the outset of her new placement, T.B. expressed interest in ongoing contact with mother, who continued bi-monthly visits and called her once or twice a week, but as she grew more comfortable, she disclosed to Charlene she did not think about mother in between mother's telephone calls and that she would be "okay" seeing mother just twice a year. Putting her experience to work, Charlene helped now nine-year-old T.B. with several strategies to address her enuresis and her weight. Charlene set an alarm in the middle of the night and got up with T.B. to go to the bathroom. Although "'rough'" for both of them, by the third morning T.B. awoke and excitedly announced, "'I'm dry.'" Charlene also explained to T.B. that a dry bed meant she only needed to make it in the morning, rather than strip it for laundering. When T.B. attempted to manipulate Charlene by pouting, Charlene ignored her. T.B. progressed to where she went weeks between enuretic episodes at home or school. Charlene and Tom limited T.B.'s access to snacks, and walked her to and from school rather than driving her. Nevertheless, she gained 11 pounds in three months and was up to 127 pounds midway through fourth grade.
T.B.'s teacher reported she was a "[p]leasure to have in class," but that she "finds work difficult" and "has difficulty keeping pace with the class." Her grades were generally below average. An earlier assessment of mild mental retardation had been ruled out, but Charlene pursued an Individualized Educational Program assessment to obtain further services for T.B., and she scheduled appointments with a neurologist to evaluate signs of mild autism or Asperger's syndrome, which remained inconclusive at the time of the last review. Charlene enrolled T.B. in a group counseling program at school designed to improve social skills. She and Tom had more than 30 years of foster experience parenting children with special needs.
T.B. grew attached to Charlene and Tom, calling them "Mom" and "Dad," and she wanted to adopt their last name and live with them "forever." They felt the same way, having formed, according to the social worker, a "special and loving relationship" with T.B. T.B. had become a part of their family and, despite any cognitive or health challenges she faced, they wanted to adopt her unconditionally. In discussions with the social worker, they expressed openness to postadoption contact with mother, but admitted they had not made up their minds about the issue.
Mother continued to visit T.B. regularly twice a month into May 2010. The visits generally went well, with a few exceptions. During a visit in March, mother, who is African-American, called T.B. "'"whitewashed"'" because she listed Caucasian artists among her musical favorites. On the next visit, the monitor noticed T.B. seemed uncomfortable and may have quietly requested to go home, but she would not repeat the request when the monitor asked her about it and, by the end of the visit, after mother cut T.B.'s nails and painted them, T.B. laid her head on mother's shoulder.
After this visit, T.B. told Charlene she wanted a different placement, stating, "I'm not happy here" and "I want to live with my mom." She explained to the social worker that she did not like doing her chores and that the foster father, Tom, was "'nice a lot of times'" but "'[w]hen I do something wrong, he yells at me.'" She also explained she wanted to return to Orangewood Children's Home because of her friends and the toys and games there, but when the social worker pointed out that many of her friends had moved on, T.B. preferred to stay at Tom and Charlene's, noting she had made at least 10 new friends in her new classroom. She complained her 11-year-old prospective adoptive sister, "'tells me what to do'" and "'I'm getting tired of it,'" and that she "pushes people down" (but did not hurt her), and "also "'tells on me and I don't like it.'" When the social worker asked if T.B. wanted to live there or somewhere else, T.B. responded, "'I don't know.'" Asked about mother's visits, T.B. stated, "'They're kind of fun'" and "'I miss my mom.'"
Mother's visits continued to go well in April and May although, after one visit, T.B. wet her bed for the first time in a month. Charlene reported that T.B. had made recent, spontaneous statements that "'"I am so glad I live here."'" T.B. told the social worker that life at school and at home was "'good.'" When asked how she would feel about living with Tom and Charlene until she was 18, she answered, "'A little bit good.'"
In late May 2010, mother filed a modification petition seeking to change the order entered in November 2007 terminating her reunification services. She asserted T.B. should be returned to her custody under a family maintenance plan or on a "temporary release." She explained she resided at a transitional living facility, American Family Housing (AFH) for nearly a year, where she attended life skills classes twice weekly, Narcotics Anonymous meetings and individual therapy weekly, job searched daily, and met with her case manager daily. Her random drug tests were negative. AFH offered unspecified, but more permanent housing options after a year in the program. Mother attended Alcoholics Anonymous for two years, completing three of the steps. She had spent 30 days in an inpatient drug and alcohol treatment program in October and November 2009, but did not complete the program's 30-60 day follow-up, outpatient component. She continued to participate in another outpatient drug and alcohol program since November 2009, receiving her six-month certificate in May 2010, with six clean tests in four months, and one positive test the lab acknowledged could result from her diabetes and a yeast infection. An updated letter from AFH showed mother obtained part-time work at a fast food restaurant. She asserted regaining custody was in T.B.'s best interests because she had "changed [her] old habits and ways" and "I can show her all of the things I couldn't show her before," while "provid[ing] her with stability, care and love."
The juvenile court concluded mother's petition did not warrant an evidentiary hearing, noting that mother's changes were "relatively recent in the history of the case" and must be juxtaposed against that history, not "in a vacuum." Also, mother did not address concerns about her mental health at the beginning and throughout the dependency. And while mother was "working along the lines of sobriety," the court concluded there was "virtually no evidence" to suggest it was in T.B.'s best interest to change her placement at mother's request. In particular, while mother visited a couple times a month and they had a good time, mother had not addressed, for example, T.B.'s special needs or how mother would meet those needs. Accordingly, the juvenile court denied mother's modification petition and proceeded to the .26 hearing.
T.B. testified Charlene was her mom and, on cross-examination, explained mother was also her mom, too. She liked her Saturday telephone conversations with mother. When asked why, she answered, "I don't know," which was also her response to most open-ended questions, including how she would feel about living with Tom and Charlene until she was 18. She did, however, want them to be her "forever family," which she affirmed twice, even if it meant she could not see mother again. She enjoyed mother's visits and was sad when each one ended. T.B. acknowledged she would be sad if she could not see mother anymore, explaining, "I love my mom. I care about her and I miss her." Given the option, she would like to see mother more often, preferably every Friday.
Mother testified she was diagnosed as manic-depressive six months earlier, for which she took medication and saw a psychiatrist once a week. She admitted she had gained drug sobriety for as long as two years before relapsing on methamphetamine, and that she had relapsed the last time T.B. had been returned to her care. She described her bond with T.B. as "the perfect mother-daughter relationship" because "she can tell me anything in the world and I can somehow figure out the right words to tell her to make her have a better day . . . and she's happy with whatever I say." Unlike her relationship with her own mother, she wanted T.B. "to be able to tell me everything and anything. I don't want her just to think I'm just going to be the mom . . . ." She testified she worried T.B. would suffer a harmful reaction if her parental rights were terminated because visits "twice a year or whatever the decision was going to be . . . we haven't been really apart from each other."
The juvenile court complimented mother on "maintaining contact with [T.B.]," noting "it's clear that they enjoy a good, very pleasant, very enjoyable relationship." But the court concluded that while the relationship "is significant to the child," "it is more like a sibling relationship" in which "mom is [T.B.]'s big sister" and "they can do things and they can talk about things and I'm sure it's very wonderful because there's not much judgment coming from mom." The court observed that "in the last, certainly, five years, mother has not truly stood in a parental relationship with" T.B. Finding that no exception to termination of parental rights applied (see § 366.26, subd. (c)(1)(B)(i)), the juvenile court terminated parental rights, and mother now appeals.
A. The Juvenile Court Did Not Err in Denying Mother's Modification Petition
Mother argues the juvenile court abused its discretion by summarily denying her modification petition. We disagree. The burden rests on the party seeking modification of an earlier juvenile court order to demonstrate "not only that circumstances have changed," but that the proposed modification "would be in the child's best interests." (In re Alexis W. (1999) 71 Cal.App.4th 28, 36; see, e.g., In re Anthony W. (2001) 87 Cal.App.4th 246, 251 [petitioner must "demonstrate how a change in the order would be in the best interest of these children"].)
Specifically, under section 388, subdivision (a), a parent "may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change" a previous court order. "If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (d), italics added.) Section 388 thus serves "as an 'escape mechanism' to ensure that new evidence may be considered before the actual, final termination of parental rights." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) But "the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)
We review a juvenile court's summary denial of a modification petition for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318 (Stephanie M.)), and therefore must affirm unless the decision "'"exceeded the bounds of reason"'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505). Factors circumscribing the juvenile court's discretion in evaluating a modification petition, and informing our review, are: "(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted.)
As the Supreme Court has explained, "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 317.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interest." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
Here, mother contends she demonstrated she was entitled to a modification because she finally addressed the issues that led to T.B.'s removal, specifically, her substance abuse, her history of domestic violence, and the mental health and emotional issues that prompted her suicide attempt and initial involuntary hospitalization. But even assuming the truth of everything mother stated in her modification petition, she made no mention of a current mental health diagnosis or any rehabilitative efforts to address psychological problems leading to multiple 72-hour psychiatric hospitalizations. Mother had a history of ignoring SSA's referrals for a mental health evaluation and, on that basis alone, unaddressed by mother's petition, the juvenile court was within its discretion in denying mother's petition.
It was not until the subsequent .26 hearing that mother claimed she received a diagnosis that she was manic-depressive and even then, she did not elaborate on her medication or the nature of her psychiatrist's care in weekly visits. SSA had no way to confirm mother's testimony. In any event, at the time of mother's request for modification, the trial court cannot be faulted for failing to anticipate that mother would later produce evidence she omitted from her petition. Mother minimizes her mental health condition as nonserious and therefore properly omitted from her petition, based on an assessment before her second commitment that she suffered a depressive disorder with no psychotic features. But the juvenile court reasonably could conclude a condition resulting in two involuntary holds was serious enough to require mother to address the issue before considering her request to release T.B. to her care, particularly given mother's history of ignoring referrals.
Apart from mother's failure to address her mental health as a basis for the sustained petition, the juvenile court reasonably could conclude mother's showing did not demonstrate T.B.'s best interests weighed in favor of modifying the existing order. At a basic level, mother failed to show she could meet T.B.'s elementary needs such as housing. Mother lived in transitional housing and never suggested T.B. could stay with her there or that she could provide shelter for T.B. elsewhere. The omission is glaring given that mother sought custody of T.B. with family maintenance services, her only option since the reunification period had long since expired. (See § 366.26, subd. (c)(3) [setting 18 months as outside limit for reunification].)
Additionally, despite the protracted duration of T.B.'s dependency, mother failed to progress beyond monitored visitation. Indeed, for the last two years, almost half of the dependency proceedings, mother only saw T.B. four hours a month over two visits. Mother failed to make any showing she could suddenly assume full-time care of any child, let alone meet T.B.'s special educational, behavioral, and emotional needs. Mother previously had found herself overwhelmed by her circumstances, including caring for T.B., which resulted in multiple involuntary hospitalizations and methamphetamine relapses. Consequently, the juvenile court reasonably could conclude T.B.'s interest in the demonstrated stability of her current placement, including the prospect of permanent stability in an adoptive home with experienced and loving caretakers, outweighed the demonstrated risks of another return to mother's care, particularly where mother made no showing she could meet T.B.'s primary needs. (Stephanie M., supra, 7 Cal.4th at p. 317; see Casey D., supra, 70 Cal.App.4th at p. 51 [showing of a parental relationship "difficult to make" where parent fails to qualify for unsupervised visitation]; see also § 366.26, subd. (b)(1) [identifying adoption as Legislature's preferred plan]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [the "most permanent and secure alternative" of adoption affords children "the best possible opportunity to get on with the task of growing up"].)
Mother suggests return of T.B. to her care would serve T.B.'s best interests because she met her emotional needs in a way that "no one else had been providing her - parental love and attention." Even if this were true, it would not suffice to support mother's requested modification to regain custody when she had made no showing she could shelter and care for T.B. full-time. Moreover, the facts belie the assertion of a paramount, parental emotional tie with mother. The social worker observed a notably warm and loving relationship between T.B. and Tom and Charlene. She called them "Mom" and "Dad" and wanted to live with them "forever." Mother was not, as she asserts, T.B.'s "first choice" for placement. To the contrary, she put Orangewood Children's Home ahead of mother, who she did not mention and, above all, she put Tom and Charlene, who she wanted to live with even if it meant she could not see mother again. Accordingly, while mother's progress in her sobriety was truly commendable, the trial court did not abuse its discretion in concluding mother failed to make the requisite showing to modify the juvenile court's order by returning T.B. returned to her custody.
B. The Juvenile Court Did Not Err in Finding the Benefit Exception Inapplicable
Mother argues the juvenile court should have applied the so-called "benefit exception" to short-circuit termination of her parental rights. Section 366.26, subdivision (c)(1)(B)(i) "authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds 'a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.'" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424 (Cliffton B.).)
This two-pronged test requiring regular visitation and "benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(B)(i)) "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 (Jasmine D.), italics added.) To the contrary, once the mandated period for reunification has passed or, as in this case, never arose, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) As noted, after reunification ends, the Legislature's preferred permanent plan becomes termination of parental rights and subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody W. (1994) 31 Cal.App.4th 221, 227-231.)
Thus, the benefit prong of section 366.26, subdivision (c)(1)(B)(i), is satisfied only if "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) "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." (Ibid.) Again, "the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family." (Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) We will not disturb the juvenile court's balancing of interests unless no substantial evidence supports it (id. at p. 425), or the court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351).
Factors bearing on the parent-child bond include "[t]he age of the child, the portion of the child's life spent in the parents custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Autumn H., supra, 27 Cal.App4th at p. 576.) These factors weigh against mother's claim to the benefit exception. Moreover, even if these factors reveal a strong bond, the parent faces a heavy burden to overcome the Legislature's preferred permanent plan of adoption. Thus, 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. (2003) 31 Cal.4th 45, 53, original italics.)
Mother bore the burden of undermining the juvenile court's order (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947), and she failed to meet that burden here. Her burden was a high one given T.B. twice expressed she would prefer to live with Tom and Charlene permanently even if it meant she could not see mother again. Mother failed to meet her burden to establish detriment from terminating parental rights that would outweigh the benefits of adoption. Mother testified, somewhat ambiguously, that she worried T.B. would suffer a harmful reaction if her parental rights were terminated because visits "twice a year or whatever the decision was going to be, we haven't been really apart from each other."
Contrary to mother's testimony, she and T.B. had been apart for lengthy periods over nearly five years -- half of T.B.'s young life. The voluminous record shows a lack of detriment from terminating parental rights because mother herself conditioned T.B. to separation, whether it was following mother's two involuntary hospitalizations, her two methamphetamine relapses, or her four incarcerations during the dependency period. T.B. had no choice but to grow accustomed to mother's absences for long stretches, even after mother's release from jail or discharge from a recovery program. Mother, by her own actions, created a de facto termination of her parental presence in T.B.'s life on a daily, weekly, and monthly basis. Accordingly, the juvenile court did not err in concluding mother had inflicted the detriment T.B. suffered from separation and that no additional detriment would outweigh the stability T.B. gained in her prospective adoptive placement with Tom and Charlene.
The juvenile court's order terminating mother's parental rights is affirmed.
MOORE, ACTING P. J. IKOLA, J.
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