Filed 5/18/18 In re R.M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT


In re R.M., a Person Coming Under the Juvenile Court Law.

KINGS COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

R.D.,

Defendant and Appellant.

F076444

(Super. Ct. No. 16JD035)


OPINION

APPEAL from a judgment of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After a contested hearing pursuant to Welfare and Institutions Code section 366.26, R.D.’s (mother) parental rights to R.M. were terminated and the juvenile court found R.M. was adoptable. Mother contends the juvenile court erred in failing to apply the exception for a beneficial parent-child relationship to the preference for adoption. We affirm the orders of the juvenile court.
FACTS AND PROCEEDINGS
Initial Proceedings
In January 2016, the Kings County Human Services Agency (agency) became involved with mother and her newborn daughter, R.M., after discovering mother was homeless and intended to live with Jonathan M. (father), a registered sex offender on parole. Father was prohibited from having contact with any children, including his own. The agency agreed to allow mother to maintain custody of R.M. under a plan of family maintenance as long as she prevented father from having contact with the child.
The agency filed a petition pursuant to section 300 in February 2016 and then filed an amended petition in April 2016 alleging mother was homeless and unable to provide R.M. with a safe, stable, and protective environment. Mother failed to follow through with an application for homeless assistance, and father became mother’s source of financial and emotional support. Mother continually expressed her desire to continue contact with father and to return to his home.
On May 6, 2016, the agency filed a subsequent petition pursuant to section 342 alleging R.M. was at substantial risk of suffering serious physical harm or illness because of mother’s failure to provide R.M. with adequate food or shelter. Weeks after R.M. was born, a physician told mother her child showed inadequate weight gain and explained mother had to supplement R.M.’s diet with formula after nursing her. On May 3, R.M. was admitted to Valley Children’s Hospital for failure to thrive and inadequate calorie intake. R.M. had only gained one pound since her birth. R.M. was detained. At the jurisdiction/disposition hearing on June 8, 2016, the court found the allegations in the subsequent petition true and mother’s care had not been effective. The court ended voluntary family maintenance services, ordered the child’s detention, and granted mother reunification services.
At the six-month review hearing, mother was showing progress in her case plan, but still wanted R.M. to have a relationship with father. The agency was further concerned mother was having difficulty understanding the cognitive abilities of children at various stages of development and how this understanding impacts daily parenting decisions because this was what led to R.M.’s failure to thrive. On November 30, 2016, the juvenile court found returning the child to mother would create a substantial risk of detriment. The court found mother regularly visited R.M. and had made substantial progress with her case plan. Reunification services were continued.
At the time of the 12-month review hearing on June 13, 2017, the agency reported mother still had limited insight and made little progress in her case plan. Mother did not see the necessity to change, and she maintained a very narrow perspective. Mother became pregnant again by father, but had a miscarriage. Mother wanted R.M. to have father in her life, and mother’s therapist reported mother was insistent R.M. know her father. Mother needed more time to work on herself before she would be able to put the interests of her child first, and the therapist did not believe mother would be able to take full responsibility for her child within the next year. The therapist did not recommend R.M. be returned to mother.
At the 12-month hearing, the juvenile court found mother complied with her case plan but continued to have limited insight of the safety concerns of staying in an intact relationship with father throughout the dependency process. The court continued R.M. as a dependent, finding return of custody to mother would create a substantial risk of detriment, and terminated reunification services. The matter was set for a section 366.26 hearing. Mother filed a petition for writ review with this court; mother’s petition was subsequently denied (R.D. v. Superior Court (Kings County Human Services Agency) (Sept. 11, 2017, F075856)). Remittitur was issued thereafter.
Section 366.26 Proceedings
The agency’s report for the section 366.26 hearing recommended termination of mother’s parental rights. Mother had received supervised visitations twice a week for two hours at the agency and offsite prior to the termination of reunification services. After these services were terminated, mother visited R.M. once a month for one hour in June and July of 2017.
R.M. was one year old at the time of the report and appeared comfortable with the care provider, a maternal relative, who was committed to the permanent plan of adoption. The care provider was a consistent and affectionate parental figure who nurtured R.M. and took care of her needs. The care provider and R.M. were well-bonded to one another. The social worker believed R.M. was adoptable because she was young and had no medical issues or developmental delays.
The section 366.26 hearing was conducted on October 17, 2017. R.M.’s care provider, Richard P., testified he was committed to adopting her. Richard P. had taken R.M. to the doctor and reported she was generally healthy without any disabilities. Developmentally, R.M. exceeded Richard P.’s expectations.
Mother testified she played with R.M. during their visits and mother taught her numbers. Mother thought it was in R.M.’s best interests for parental rights not to be terminated because every child needs their mother. Mother believed she was the best person to care for her child. Recently, mother was visiting R.M. only once a month. Mother missed visits with R.M. at the beginning of the year and on R.M.’s birthday. Prior to losing reunification services, mother visited R.M. twice a month for two hours. Mother explained R.M. would throw out her arms to mother and smile at mother during visits. Mother said R.M. was comfortable and affectionate with her.
Mother described her relationship with R.M. as very interactive. During visits, mother did not just grab R.M. but waited for R.M. to react on her own with hugs and kisses. Mother did not believe R.M. was adoptable because no one knew mother’s family history, what mother had gone through, or what R.M. will go through. Mother disagreed with the recommendation of adoption. Mother explained she was R.M.’s secure base.
The social worker who recommended adoption as R.M.’s permanent plan heard nothing in mother’s testimony causing her to consider alternative plans such as guardianship or long-term foster care. The court found by clear and convincing evidence R.M. was adoptable and mother had not met her burden to overcome the statutory preference for adoption. R.M. had not been in mother’s custody since she was four months old; at the time of the hearing she was 21 months old. The court observed mother did have unconditional love for her child and it found mother’s visits were pleasant and nurturing. The court further found, however, that maintaining a parent-child relationship would not benefit R.M. enough to outweigh permanency for the child. The court terminated the parents’ parental rights and found adoption as R.M.’s permanent plan.
DISCUSSION
Parent-child Benefit Exception
Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. The burden is on the parent to prove changed circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) It is the parent’s burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences upholding the decision of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) In assessing the evidence, we view it in the light most favorable to the juvenile court’s judgment, contradicted or uncontradicted; appellate courts do not reweigh the evidence. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the juvenile court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378–1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court’s judgment. (See ibid.) Similarly, a substantial evidence challenge to the juvenile court’s failure to find a beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile 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 and positive emotional attachment so that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Interactions between the natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child’s life in the parent’s custody, the positive or negative effect of interaction between the parent and child, and the child’s particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Mother failed to show how R.M. would suffer detriment on the termination of her parental rights.
It was uncontested mother loved her child and had positive visits with her. These constructive qualities, however, are not enough to establish the statutory exception to adoption. The parent bears the burden of showing more than loving contact and pleasant visits. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953–954.) The parent has the burden of proving the statutory exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Mother needed to demonstrate she occupied a parental role in her child’s life resulting in a significant, positive, emotional attachment from child to parent. (In re Breanna S., supra, at p. 648.)
Here, the evidence mother occupied this crucial role in her child’s life was inadequate. (In re L.Y.L., supra, 101 Cal.App.4th at p. 954.) Mother still had supervised visits with R.M. and was nowhere near the stage where she was prepared to become her full-time caretaker. Mother has failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We agree with the agency; there was insufficient evidence presented by mother demonstrating the benefits of maintaining the parent-child relationship would outweigh the benefits of adoption to the child.
DISPOSITION
The orders of the juvenile court are affirmed.


PEÑA, Acting P.J.
WE CONCUR:



SMITH, J.



ELLISON*, J.