Sa.C. said Mother “drinks five to seven times a week and usually consumes ‘two 40 ounces of Mickey’s malt liquor’ or a ‘six pack and a half of beer.’ ”

Sa.C. said she was worried about her younger sister, Si.C. Si.C. is “shy and doesn’t talk much and my mom calls her a goddamned retard, dumb b[**]ch, goddamned lazy, and tells her [‘]I hope you leave[’].” Mother would also call Co.C. “ ‘a disappointment, and a p[**]sy ass b[**]ch’ ” and an “ ‘asshole and a dumbass.’ ”

CWS’s Interview of Si.C.

Si.C. said her mother drinks heavily “ ‘every other’ ” day. Even when Mother is not drinking, she often becomes angry and will call the children degrading names. The previous night, Mother told Co.C. she hoped he died.

CWS’s Interview of Co.C.

Co.C. said Mother told him she hoped he would die. When asked why she would say that, Co.C. said, “ ‘My mom just doesn’t like me.’ ” When asked how he felt about that, Co.C. said, “ ‘I feel sad.’ ”

CWS’s Interview of Cl.C.

Cl.C. said Mother calls Sa.C., Si.C., and Co.C. “ ‘stupid, assholes, and dumbasses.’ ” Cl.C. said he feels safe except when Mother “ ‘gets really mad.’ ” Mother gets mad “ ‘about every other day.’ ” She sometimes would lock Cl.C. and Co.C. out of the house.

CWS’s Interview of P.C.

CWS interviewed P.C., who said Mother does not call her names but does call the other kids names like “ ‘lazy, assholes, dumbasses, and stupid.’ ”

Dependency Proceedings

On August 4, 2016, the Tuolumne County Department of Social Services (“Agency”) filed juvenile dependency petitions under subdivisions (a), (b)(1), and (c) of section 300, concerning Sa.C. (16)[3], Si.C. (14), and Cl.C. (8).[4] The children were placed in protective custody later that day. The foster parents reported that upon their placement, P.C. and Sa.C. each had lice.

Detention and Jurisdiction Hearings

A social worker explained at the detention hearing that Sa.C. had been the subject of a voluntary family maintenance plan since mid-2015. As a part of that plan, Sa.C. had already been placed with a foster family.

At the detention hearing on August 9, 2016, the parties submitted, and the court ordered the children detained. Likewise, at the jurisdiction hearing on September 27, 2016, the parties submitted, and the court sustained the allegations in the petitions.

Disposition Report

Ahead of the disposition hearing, the Agency prepared a Disposition Report.

History of Dependency Cases

The report detailed Mother’s substantial history with CWS.[5]

On July 29, 2004, a petition was filed in juvenile court alleging Mother had abused illicit substances while pregnant with Sa.C. and continued that abuse despite commencing a voluntary family maintenance plan in 2000. On December 7, 2004, a supplemental petition was filed alleging Mother was incarcerated for six months. By October 31, 2005, the juvenile court found Mother had complied with her case plan and dependency was terminated.

On April 30, 2009, a petition was filed alleging Mother and Cl.C.’s presumed father had “engaged in numerous acts of domestic violence in the presence of the children” and that they both were abusing methamphetamine and alcohol. Sa.C. was injured during an incident of domestic violence. Mother complied with her case plan and dependency was terminated on November 9, 2010.

Mother’s Interviews With CWS

Social workers interviewed Mother on several occasions.

Mother said her “main addiction was alcohol.”[6] She began drinking at the age of nine, sneaking it during gatherings her parents would have at their home. Mother said “she has had several periods of sobriety throughout her life but was never able to maintain it.” For example, she maintained her sobriety for approximately four years until she befriended a “tweaker” neighbor in the summer of 2013. Mother and the neighbor “did meth” together. However, Mother said she had only used methamphetamine “a handful of times” between the summer of 2013 and the present.

CWS asked Mother about a positive methamphetamine urinalysis test on August 11, 2016. Mother said she came across a plate in her home with methamphetamine residue on it. “She stated she ‘didn’t even think about it. I just licked the plate. It was an accident.’ ” The social worker said it was not an accident if Mother intentionally licked the plate, and Mother agreed. Mother maintained she does not frequently abuse methamphetamine.

In 2014, Mother began drinking “heavily” upon learning of her father’s diagnoses of cancer and Alzheimer’s. However, she had been sober for 19 days before the present CWS interview.

Mother had not been employed for 16 years.

On September 2, 2016, a social worker advised Mother to stop consuming alcohol. Mother agreed she should not consume alcohol and said she had not consumed any recently. The social worker told Mother she had tested positive for alcohol on August 31, 2016. Mother replied, “ ‘[W]ell that was four days ago. That’s not recent. And it was just one or two beers.’ ” Eventually, Mother admitted her continued drinking did not show that she had changed her circumstances. Mother said she would stop consuming alcohol. However, on September 11, 2016, Mother tested positive for alcohol.

On September 2, 2016, Sa.C. said she wanted visits reduced from weekly to once every other week because “the visits were hard on her and her siblings” and that “P.C. cried a lot.”

On September 23, 2016, a social worker explained to Sa.C., Si.C. and Cl.C. that CWS would recommend that Mother not receive reunification services. All three children said they understood and agreed with the recommendations. Sa.C. “indicated her relief with the recommendation.”

Attached to the report was a letter authored by Sa.C. and addressed to the dependency court. It read:

“I agree with the permanent placement proposal. My siblings and I have been in and out of foster care our entire lives, and I believe it should end here. It is a very hard decision for me to make but I think that finally having a safe household to stay in would be the best for me and my siblings.”

Si.C. also provided a letter in which related that she loved her Mother but thought it would be better for her and her siblings to stay with their foster family permanently.

Addendum Report

An addendum report indicated that on October 9, 2016, Mother called P.C.’s presumed father asking for gas money. He went to help, but found her “to be under the influence of alcohol, as he could smell alcohol, she was ‘hysterical,’ and was having a difficult time having a linear conversation.” Mother’s father had passed away that day. Mother told P.C.’s presumed father that she had “lost herself in the midst of raising five children and her addiction.”

The next day, Mother refused a drug test and admitted to a social worker that she had consumed alcohol. Mother said she would not drink again.

On October 21, 2016, Mother had a supervised visit with Sa.C., Si.C., and Cl.C. Mother spent time speaking with each child and all interactions were appropriate.

On November 3, 2016, Mother tested positive for alcohol – her fifth positive test since October 9, 2016.

Disposition Hearing

The disposition hearing began on November 16, 2016.

Mother testified that she enrolled in an early recovery skills group, which she had attended three times. She also joined a 12-step program, but had received her “step one package” from her sponsor only days prior to the hearing. Mother also attended a “women’s meeting” with her sponsor.

Mother said she had been diagnosed with a mood disorder that involved anxiety and depression. She saw a psychiatrist four times, and had another appointment scheduled the next month. The psychiatrist prescribed her Antabuse, “a drug designed to curb drinking by inducing nausea when mixed with alcohol.” (Cooper v. Bowen (9th Cir. 1987) 815 F.2d 557, 559.)

Mother said she had been sober for several years until the middle of 2014 when she “began to drink again.” She testified that in the six months prior to the children being removed in August 2016, she would drink “[m]aybe three” times per week.

Mother claimed that during the incident that led to the removal of the children, she was not “significantly” intoxicated. However, she admitted that her inability to recall the details of the incident the next day was “[p]robably” due to her drinking.

Mother admitted that even after the children were removed, she continued to drink despite repeated urgings to stop from the social worker.

Mother testified:

“nfortunately, I do suffer from a disease called alcoholism, and it is very cutting [sic], baffling, and powerful, so I am really trying to, you know, take the suggestions that are given to me. But I’m 45 years old. I have been repeating a lot of the behavior, you know, for a while, so it is not going to change overnight, but I am trying. I am making a huge effort to better myself, you know, for everyone, for myself, my kids, everyone.”

[u]Section 366.26 Hearing

The section 366.26 hearing occurred on June 8 and 9, 2017.[7]

Mother’s counsel called social worker Jennifer Carlson to testify. Carlson said Mother visits with the five children together twice per month. Mother did not miss visits, and the children were generally happy to see her. The children would walk up to her and talk with her. She generally brought food for the children, and sometimes made the food herself.

At visits, Mother would spend time with the children both individually and corporately. She also ensured the children were safe and would intervene when they would argue. Outside of visits, the children would communicate with Mother by text message and phone.

Mother’s interaction with the children was “[m]ostly … very appropriate.” However, on January 29, 2017, Mother tested positive for alcohol and threatened to spank one of the children during the visit. The social worker acknowledged that it is not categorically inappropriate for a parent to threaten physical discipline, but said that given Mother’s “history,” it was inappropriate for her to threaten to hit one of her children.

Additionally, the children’s behavior after visits would vary. Sometimes, the children would return and act “fine,” but other times they would return exhausted or stressed and “feeling weighed down by the visits.”

At times, Cl.C. would say that he missed Mother and wanted to see her more. While Cl.C. said he would want to live with Mother, his opinion was considered in light of his younger age. In contrast, Sa.C. wanted to stay with her foster family because she “looks forward to being able to feel like she can remain in a stable environment and that her siblings will also have that stable environment.” Si.C. felt similarly to Sa.C.

After Mother tested positive for alcohol on January 29, 2017, the social worker repeatedly tried to get additional samples from Mother for a random substance abuse test, but Mother would not return calls or text messages.

The social worker acknowledged that Mother had a bond with her children, but nonetheless recommended termination of parental rights because “these children have been repeatedly neglected and repeatedly traumatized by [Mother’s] actions and her substance abuse, her substance abuse history, to the point the two oldest girls at this point have requested they not go home. All they want is stability.”

Sa.C.

Sa.C. testified at the section 366.26 hearing. Sa.C. said that she loved Mother and would do anything for her. But Sa.C. said that throughout her life she has had to help Mother and often felt like a parent. Sa.C. “fully support[ed]” being adopted by her foster family. She said she “would love to finally have an actual family…[s]omebody who is always there for you, somebody who doesn’t just go in and out and somebody you can depend on. Because as a child, I never had anybody to depend on. It was always me. And with the adopt[ive] family, I could depend on them for anything.” Sa.C. said, “A mom is somebody who protects you and loves you and cares for you and does everything she can for you, and that wasn’t my mother.”

Sa.C. said she was proud of Mother’s current sobriety, “but it never lasts.”

Si.C.

Si.C. also testified at the section 366.26 hearing. Si.C. said she loved Mother very much and had a very strong emotional attachment to her. But Si.C. felt she had never truly had stability in her life before. When Mother would drink, Si.C. would feel “alone and, like, no one really cared about me….” She “like[d]” the possibility of being adopted by her foster family because “then we will actually be stable for once and not have to, like, move around again, where if were to go back to my mom or something, it would probably just happen again.”

Si.C. was also proud of her mother’s current sobriety, but she felt that “if something were to happen, like a minor inconvenience, like us being adopted, she would start drinking again.”

Si.C. said visits with her mother went well, and they “do a lot of fun things” like play with Frisbees or play tag.

Dependency Court’s Ruling

At the conclusion of the hearing, the court found, among other things, that the beneficial parent-child relationship did not apply and terminated Mother’s parental rights as to Sa.C., Si.C., and Cl.C. Mother appeals.

1. THE TRIAL COURT’S CONCLUSION THAT THE BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION DOES NOT APPLY IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS NOT AN ABUSE OF DISCRETION

Mother contends the dependency court erred in finding the beneficial parent-child relationship exception to adoption does not apply. (§ 366.26, subd. (c)(1)(B)(i).)

1. Law

“Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).)” (In re C.B. (2010) 190 Cal.App.4th 102, 121.) There are statutory exceptions which “ ‘permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.’ [Citation.]” (Id. at p. 122, original italics, fn. omitted.) One such statutory exception to adoption applies where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) As the statutory language shows, there are two prongs to the exception: (1) regular visitation and contact; and (2) a beneficial parent-child relationship. (Ibid.) The parties agree that Mother satisfied the first prong, so the question presented is whether the second prong was satisfied.

“Satisfying the second prong requires the parent to prove that ‘severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.’ [Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643, original italics.)

In order for the exception to apply, the parent-child relationship 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 parent's rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.)

Mother bears the burden of showing the exception applies. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.)

2. Application

Here, the dependency court essentially concluded that while the parent-child relationships at issue here were substantial, they were not ultimately positive (or at least not positive enough to outweigh the benefits of adoption).

The court acknowledged that Mother had a relationship with her children and that during visits, Mother was friendly with the children and they would all “have a good time.” But the court also found Mother to be “extremely emotional and volatile.” The court found that it was “almost inevitable … that something is going to happen to trigger mom and subject the[ children] to that continued emotional turmoil.”

The court’s conclusion that the relationship between the children and their Mother was not positive enough to trigger the exception was both supported by substantial evidence and did not constitute an abuse of discretion.[8] Mother repeatedly tested positive for alcohol despite telling social workers she would stop drinking. Si.C. clearly and specifically testified “if something were to happen, like a minor inconvenience, like us being adopted, [Mother] would start drinking again.” Sa.C. similarly testified that Mother’s sobriety “never lasts.” Mother herself told CWS early in the present case that “she has had several periods of sobriety throughout her life but was never able to maintain it.”

The consequences of Mother’s inability to remain sober were also clear. Si.C. testified that when her mother would drink, Si.C. would feel “alone and, like, no one really cared about me….” Sa.C. testified that “as a child, I never had anybody to depend on. It was always me.”

In sum, the dependency court reasonably concluded that Mother’s drinking and instability would continue to impact her relationship with the children and that, as a result, her relationships with her children were not sufficiently positive to trigger the exception.[9]

Mother cites various considerations supporting a contrary conclusion, including the evidence her children love her, she loves them, the children are older, visits went well, and Cl.C. indicated he wanted to be with Mother. But since the dependency court’s ruling is supported by substantial evidence, we will uphold it even though Mother presented contrary evidence. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 228, citing Howard v. Owens Corning (1999) 72 Cal.App.4th 621.)

DISPOSITION

The order terminating Mother’s parental rights is affirmed.

______________________

POOCHIGIAN, Acting P.J.

WE CONCUR:

______________________

DETJEN, J.

______________________

PEÑA, J.