In re C.T.

Filed 7/12/07 In re C.T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant, the mother of C. T. and A. S. (the minors), appeals from the order of the juvenile court terminating her parental rights. Appellant contends the juvenile court erred by failing to find an exception to adoption based on her relationship with the minors and because the minors were living with relatives who were unwilling to adopt them. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2005, the Sacramento County Department of Health and Human Services filed juvenile dependency petitions concerning the minors -- six-month-old C. T. and three-and-one-half-year-old A. S. -- which, as later amended, alleged that appellant had a history of using methamphetamine and excessive amounts of alcohol and tested positive for such substances during her pregnancy with C. T., and that appellant had sustained bruises as a result of domestic violence incidents involving the minors father that occurred while the minors were present in the home.

The minors were placed with the maternal grandparents, where they had been residing since approximately July 2005. The grandparents later reported that the minors had lived with them on and off . . . for most of their lives. The minors were declared dependents of the court, and reunification services were ordered for appellant.^[1]

According to the report for the six-month review hearing, appellant had been discharged from three residential treatment programs for failing to comply with program rules and testing positive for controlled substances. Appellant visited the minors sporadically, and A. S. seldom asked about her mother unless she had seen her. Both minors are strongly bonded to the maternal grandparents.

At the review hearing in August 2006, the juvenile court terminated reunification services and set the matter for a hearing to select and implement a permanent plan for the minors.

The social workers report for the Welfare and Institutions Code^[2] section 366.26 hearing recommended guardianship as the permanent plan. Appellant had entered a long-term drug program, and she was not permitted to have contact with the minors for the first year of treatment. The minors were described as healthy children who were emotionally bonded to the maternal grandparents. The maternal grandparents wanted a guardianship of the minors rather than to adopt them because they hoped that appellant would successfully complete her drug program and reunite with the minors.

At the section 366.26 hearing in December 2006, the social worker testified that the grandparents were adamant that they did not want to adopt the minors. She reiterated that the grandparents were hopeful appellant would complete her drug program and regain custody of the minors. The social worker acknowledged that the minors were generally adoptable and that the grandparents said they would adopt the minors if the alternative were to place them in another home. However, the social worker said we have to respect the grandparents viewpoint, explaining that the grandparents were open . . . to taking this to an adoption if [appellant] cant reunify when she finishes [the drug] program. The social worker testified it would destroy the minors to be placed in a home outside the family.

The maternal grandfather testified that the grandmother and he were seeking guardianship because they understood it would be substantially more difficult for appellant to reunite with the minors if an adoption were in place. He was committed to caring for the minors for the rest of their lives and would adopt them if appellant was unsuccessful in her recovery. He clarified that he was not unwilling to adopt the minors but was seeking an alternative to give appellant a chance to reunite with the minors. The grandfather acknowledged his preference for guardianship was in consideration of appellant, explaining: This is my daughter. I have to have some feelings there, too. He believed appellant would successfully rehabilitate because she was in the same program that his son had successfully completed after failing in several other programs.

The grandfather felt there was a bond between A. S. and appellant because appellant was sober during the first two years of A. S.s life and was a good mother. Appellant saw the minors two to three times a week when she was in her previous rehabilitation programs, but she visited infrequently during the periods that she was not in a program. According to the grandfather, C. T. last saw appellant more than four months earlier, before she went into her current program, and the grandfather believed C. T. knew appellant was his mother. He testified that he showed the minors a picture of appellant every day, and that A. S. recognized appellant and referred to her as mom.

The maternal grandmother testified that the grandfather and she wanted guardianship of the minors because adoption [i]s so permanent. She explained that appellant was doing real well and, if they adopted the minors, appellant would have to go through all the system again to get the children back. According to the grandmother, A. S. was very close to appellant and asked about her [a]ll the time. The minors also were close to their extended family. The grandmother felt it would be really bad for the minors to be removed from appellant.

Appellant testified it would be detrimental to the minors to terminate parental rights because [c]hildren have a special bond with their mother. Appellant said she knew A. S. wanted to live with her again.

The social worker testified that the minors saw the grandparents as their primary caregivers, and that children experience grief and loss when removed from a primary caregiver.

Appellants attorney argued that exceptions to adoption applied based on the minors relationship with appellant and because they were living with relatives who were unwilling to adopt them.^[3]

The juvenile court ordered termination of parental rights. The court concluded there was insufficient evidence the minors would benefit from maintaining a relationship with appellant because they looked to the grandparents for parenting and appellant did not occupy a parental role for them. The court also rejected the exception urged based on the grandparents unwillingness to adopt, concluding that the familys preference for guardianship was not a sufficient basis to forestall permanency for the minors.

DISCUSSION

Appellant asserts the juvenile court erred by failing to find a statutory exception to adoption. We disagree.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368, italics omitted.)

Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child because one or more of the statutorily enumerated exceptions apply.

The juvenile courts ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 [applying abuse of discretion standard].) On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., at p. 576.)

I

Beneficial Relationship Exception

Appellants first claim is that an exception to adoption applied based on the beneficial relationship she shared with the minors. Section 366.26, subdivision (c)(1)(A), provides for an exception to adoption when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

[A] parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must promote 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 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. If severing the natural parent/child 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 parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

[F]requent and loving contact is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even a strong positive bond with a parent has been held insufficient to defeat adoption when a child looks to a prospective adoptive parent to meet his needs. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)

Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In the present matter, the juvenile court found there was insufficient evidence to warrant forgoing a permanent plan of adoption because appellant did not occupy a parental role with the minors. Substantial evidence supports this determination. At the time of the section 366.26 hearing, the minors had been out of appellants custody formally for over a year and had been in the grandparents care for even longer. Contact between appellant and the minors had been inconsistent during the period of reunification and there had been no visits for over four months at the time of the section 366.26 hearing. Although the grandparents have made a valiant effort to keep the memory of appellant alive for the minors, they have spent major portions of their young lives in the care of the grandparents, to whom they are emotionally bonded. And while the minors may have enjoyed visits with appellant, this is not sufficient to defeat the presumption in favor of adoption.

Moreover, regardless of whether the minors saw appellant as a parent figure, the detriment posed to them from terminating parental rights had to be compelling to warrant a permanent plan other than adoption. ( 366.26, subd. (c)(1).) Although there is evidence to support that the minors had a positive relationship with appellant, the juvenile court was required to weigh this against the benefit the minors would gain in a permanent adoptive home. The court engaged in this process, acknowledging that A. S. looked forward to visits but concluding there was insufficient evidence that the minors would benefit from continuing the relationship with appellant under the requirements of section 366.26, subdivision (c)(1)(A). In light of the young age of the minors and the length of time they had been out of appellants care (see In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576), we conclude substantial evidence supports the courts determination that the exception did not apply.

II

The Grandparents Position On Adoption

Appellant also asserts that an exception to adoption applied based on the grandparents unwillingness to adopt the minors. Again, we disagree.

Section 366.26, subdivision (c)(1)(D), provides an exception to adoption when [t]he child is living with a relative . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child.

In the present matter, the grandparents wanted to assume guardianship over the minors rather than adopt them because they hoped that appellant would successfully complete her drug program and reunite with the minors. According to the social worker, the grandparents were adamant about not adopting the minors, although the grandfather testified he was not unwilling to adopt the minors but he wanted an alternative that would allow appellant to regain custody of them. The juvenile court concluded that the familys preference for guardianship was not a sufficient basis to forestall permanency for the minors.

Appellant acknowledges appellate cases that have held that family preference for guardianship over adoption is insufficient to establish the exceptional circumstances required to support the exception to adoption. (See In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295; In re Jose V. (1996) 50 Cal.App.4th 1792, 1797, 1801.) However, echoing a comment in In re Fernando M. (2006) 138 Cal.App.4th 529, 536, appellant argues that if family preference could never be considered, the term unwilling as used in section 366.26, subdivision (c)(1)(D), would be rendered meaningless.

Appellants argument ignores the entirety of the statutory language in this regard, which is that an unwillingness to adopt because of exceptional circumstances may form the basis for an exception to adoption. ( 366.26, subd. (c)(1)(D).) In other words, relative preference is an appropriate consideration to the extent that it is based on exceptional circumstances. But where, as here, the only basis for the relatives preference for guardianship is to give a parent more time to reunify with a child when that parent has been unable to do so within the statutory time limits, exceptional circumstances have not been established.

Fernando M., on which appellant relies, is not at odds with our conclusion. In Fernando M., the maternal grandmother preferred guardianship over adoption of the one-year-old child because she believed the minor belong[ed] to his mother and that one day the mother would get him back. (In re Fernando M., supra, 138 Cal.App.4th at pp. 532, 533.) The appellate court reversed the juvenile courts order for a permanent plan of adoption, noting that exceptional circumstances existed because the grandmother was taking care of the childs two siblings, with whom he was bonded, and the childs adoption could result in his separation from his siblings. (Id. at pp. 537, 539.) Additionally, the maternal grandmothers husband had not been willing to adopt the child, necessitating a spousal waiver in order for an adoption to be effected, which the appellate court found would invade the private realm of [the grandmothers marriage] and could affect the childs relationship with the grandmothers husband. (Id. at pp. 533, 537.) Thus, although the reasons stated by the grandmother for her preference for guardianship may have related merely to a desire to protect the mothers interest in the child, the appellate court relied on other conditions to satisfy the statutory requirement of exceptional circumstances.

The circumstances here are distinguishable, as the only basis apparent from the record for the grandparents preference for guardianship was their desire, in essence, to supplant the Legislatures determination of the time period a parent has to reunify with a child with their own determination in this regard. As a childs interest in stability and permanency is the sole focus at the permanent planning stage of dependency proceedings, the juvenile court was warranted in concluding such interest would not be served by ordering guardianship as the permanent plan.

DISPOSITION

The juvenile courts order is affirmed.

ROBIE , J.

We concur:

DAVIS , Acting P.J.

MORRISON , J.

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^[1] The minors father died prior to the jurisdictional hearing.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] An exception based on the minors relationship with a sibling was also asserted.