ARONSON, J.
Jennifer C. (mother) appeals from an order terminating parental rights to her four-year-old daughter M.C. (born October 2011) (Welf. & Inst.Code, § 366.26; all statutory references are to this code). She contends the juvenile court erred in failing to apply the "continuing benefit" exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i) [termination of parental rights detrimental where parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].) For the reasons discussed below, we affirm.
We restate, with minor revisions, the facts and procedural background from our prior opinion denying mother's petition for writ relief from the juvenile court's orders at the disposition hearing removing M.C. from her custody, bypassing reunification services (§ 361.5, subds. (b)(10), (11)), and scheduling a section 366.26 selection and implementation hearing. (Jennifer C. (Aug. 31, 2016, G053582) [nonpub. opn.].)
In January 2016, the Orange County Social Services Agency (SSA) filed a petition, later amended, alleging four-year-old M.C. came within the jurisdiction of the juvenile court (§ 300, subds. (b), (j)) based on a substantial risk M.C. would suffer serious physical harm based on her parents' failure to protect her, the inability to provide regular care due to the parents' mental illness or substance abuse, and sibling abuse. Specifically, SSA alleged father had been arrested for multiple offenses including child endangerment, obstructing a public officer, carrying a concealed firearm in his vehicle, carrying a loaded firearm in a public place, and possession of ammunition. Law enforcement agencies were investigating whether father had discharged a firearm at occupied vehicles from his car. At the time of father's arrest, officers found M.C. alone in father's car with the engine running outside a marijuana dispensary. She was wearing a backpack containing a loaded semiautomatic handgun registered to mother, and a marijuana bong.
Father denied shooting at vehicles. He told officers the firearm belonged to mother, and he usually kept it in the trunk for protection. On the day of the incident, he drove with M.C. from their residence to the marijuana dispensary, took money out of the backpack, put the backpack containing the firearm and bong on the backseat, left the car running, and went into the dispensary. Father admitted he had a felony in Texas for arguing with family members, but denied there was any domestic violence in his home.
The petition also alleged the parents previously had their parental rights terminated to six children (four children together and two of mother's children) in Fresno County. According to the sustained allegations of the prior petition, father physically abused some of the children, mother failed to protect the children, and father engaged in domestic violence against mother. The petition also cited father's substance abuse and mental health issues. Reunification services were provided, but the parents failed to reunify with the children and parental rights were terminated in 2013.
Mother reported she worked during the day and had no knowledge of the incident. Father watched M.C. while she worked. She saw M.C.'s backpack that morning and did not see a gun or a bong in it. She had last seen the gun in the family's storage unit a few days earlier and was unaware father had taken it. She sometimes kept the gun in the car's trunk, unloaded, and in a bag. Father bought the gun for her because she was frightened.
M.C. had a severe burn scar on the inside of her left hand. Mother explained M.C. accidentally burned herself with a hot iron in 2013, and the child received treatment at a Dallas hospital. An orthopedist examined M.C.'s hand and informed mother the child would require reconstructive plastic surgery. Mother declined to sign an authorization allowing the social worker to obtain the child's medical records, but stated she would look for the paperwork and provide it to her attorney.
At the time of detention, M.C. had a scratch with a scab on her left arm, and stated that was where her father hit her. M.C. apparently suffered from speech and developmental delays, which made it difficult to interview her. The parents, however, did not believe she had any developmental problems.
Mother refused to discuss the current allegations, but agreed to discuss her social history and the services she needed to complete. She and father married in 2007, and they had been together over 10 years. Mother denied father had substance abuse or mental health issues, or that she was the victim of domestic violence. The parents acknowledged they had participated in therapy in the earlier dependency case.
At the detention hearing, the court ordered SSA to provide reunification services. The social worker provided referrals for parenting classes, counseling, and drug testing.
The parents' therapist reported in April 2016 the parents were hesitant and ambivalent about exploring the issues that brought them to the attention of juvenile authorities. They would not complete the therapist's surveys or answer her questions. She asked them to leave their second session because they would not stop using their cell phones and refused to discuss the issues leading to SSA's involvement. She reported the parents felt they did not need therapy and refused to discuss any issues related to the case.
SSA gradually increased supervised visits to eight hours a week, presumably because the parents acted appropriately and interacted positively with the child. They also called daily to see how she was doing.
In late April 2016, mother pleaded no contest to the petition's allegations and father submitted. The court sustained the petition under section 300, subdivisions (b) and (j). Concerning disposition, the social worker recommended bypassing reunification efforts.
At the disposition hearing in May 2016, the social worker testified the family's history and circumstances of father's arrest demonstrated he placed M.C. in dangerous situations and mother could not protect M.C. from father. Although mother completed some services in the prior dependency case, including a parenting class, mental health assessment, therapy, and domestic violence classes, she failed to reunify with her children and she continued to maintain a relationship with father despite his domestic violence. The parents refused to discuss issues from the prior dependency case, and the social worker had no information they did anything to address their issues following the 2013 termination of their parental rights to the siblings.
Although in the current case mother provided a certificate she completed a parenting class, the social worker could not assess whether mother had benefitted because mother communicated minimally with the social worker. Concerning therapy, in the prior case mother was guarded and had difficulty engaging in the sessions. Mother was currently enrolled in therapy and had attended three sessions, but her current participation in therapy was similar to her prior participation. She was guarded and did not want to talk about anything, including the issues that brought the child into protective custody. Asked about her treatment goals, mother stated "I don't know" or "I don't want to talk about it."
The social worker believed mother would not protect M.C. from the danger posed by father. Nor did mother indicate a willingness to live apart from him. They remained married and living together, and sometimes visited M.C. together. Mother temporarily separated from father while participating in reunification services during the siblings' dependency, but mother sided with father in the current case and did not believe the allegations.
The social worker also faulted mother concerning the burn scar on M.C.'s hand. Although a hand specialist could not determine whether the burn was intentional or accidental, the specialist reported M.C. would need plastic surgery. Mother provided no treatment records, and no evidence to support her claim she was about to seek treatment when authorities detained M.C.
Mother testified she did not believe father had physically abused her older children, and she denied he engaged in any domestic violence. She believed the Fresno court wrongfully removed M.C.'s siblings from their custody. She separated from father during the prior reunification process because he was not complying with the court ordered services and the court ordered the parents to live separately. During the separation, they had contact because she was pregnant with M.C. and father checked on her while she was in the hospital. They reconciled after parental rights were terminated. Father smoked marijuana, but not around her, and she claimed he was not under the influence of marijuana while supervising M.C.
Concerning the current allegations, mother asserted she bought the gun for herself in early 2015 and it was in her possession most of the time. She usually kept it unloaded, locked in a gun case, and stored in a closet at home, with the ammunition locked up separately. Father knew where she kept it and could access it. She denied telling the police father bought her the gun or that she sometimes kept it in a bag in the car trunk. She also denied telling investigators she was the only one with access to the gun. Mother refused to believe M.C. was wearing a backpack with a gun in it or that father was shooting at others.
Concerning M.C.'s scar, mother testified M.C. was about a year and a half old when she touched an iron while mother was in the restroom. Mother took M.C. to the hospital, and to several follow-up appointments, but the doctor did not refer her to a specialist or see the need for surgery. Nevertheless, mother had been looking for doctors to remove the scar to avoid future self-esteem issues.
Mother admitted she was unwilling to discuss her past history with the therapist because she did not feel like what happened with her other children was relevant to the current case. She also was not comfortable discussing the current allegations with the therapist because she felt it was unnecessary and might incriminate father in his criminal case.
Mother did not understand why M.C. had been removed from her custody. She believed the family's past history was not relevant and the social worker ignored the fact things had changed and M.C. was not abused or neglected. Mother acknowledged she and father had discussed separation and she was willing to abide by court orders to separate from father so M.C. could live with her. She could pay the rent and accommodate her work hours with M.C.'s school hours. M.C. was happy to see the parents at visits and ran to them. They ate and played with M.C., bathed her, watched her try on the clothes the parents brought, and watched movies together. When visits ended, M.C. cried, said she wanted to go home, and did not want the parents to leave.
The paternal grandfather testified father lived with him in Fresno County in 2011. He falsely accused father of physical abuse and domestic violence even though he never witnessed any abuse. The grandfather explained he made up the allegations because he was suffering from psychological problems, including paranoid delusions, and had stopped taking his medication.
The juvenile court declared M.C. to be a dependent child, removed custody from the parents, and vested custody with SSA. The court found both parents had made minimal progress toward alleviating or mitigating the causes necessitating placement. The court denied reunification services under section 361.5, subdivisions (b)(10) and (11) as to both parents. It found neither parent had made a reasonable effort to treat the problems that led to the removal of the older siblings. The court also found it would not be in M.C.'s best interests to provide services. The court set a section 366.26 selection and implementation hearing to provide a permanent plan for the child.
Mother failed to appear at the section 366.26 hearing on September 6, 2016. The court denied mother's counsel's motion for a continuance, and admitted into evidence the SSA's report prepared for the section 366.26 hearing.
According to SSA's report, M.C. was initially placed out of the home on January 15, 2016. On June 29, 2016, SSA placed her with her current caregivers. The parents initially visited every week, but then opted to visit every other week. The visits went well, the parents were affectionate and interacted with M.C.
M.C. was four years old, sociable, and appeared to be developmentally on target. The foster mother reported M.C. attended kindergarten and enjoyed school, appeared eager to learn, and received "stickers every day for good behavior." Based on a preliminary planning assessment, social workers concluded M.C.'s genial characteristics made adoption likely. The current caregivers expressed a willingness to adopt, and a paternal aunt in Missouri was being assessed for possible placement.
The report also noted M.C. could "become withdrawn and anxious because she is worried about when she will get to visit with her mother." The foster mother used a calendar to "ease the child's concern" that showed "the child the days she is going to get to visit with her mother and then uses counting down as a means to ease the child's anxiety." The social worker concluded: "At the time of placement, the child was reported to be doing well with no concerns or issues noted. However, as time has passed, and the visits between the child and her mother have become less frequent, the child becomes sad. Despite her sadness, the child is in need of a permanent home where she can be safe and secure. According to [SSA's] records and reports, the child's parents have a history of not being able to provide a stable and safe home for the child or her siblings." The social worker stated a "referral will be completed for therapy to address the child's grief and loss issues related to not being in the care of her mother."
The parties submitted on the report and argument. The court found M.C. was likely to be adopted and termination of parental rights would not be detrimental.
Section 366.26 provides that after reunification efforts have failed and the court finds the child is likely to be adopted, "the court shall terminate parental rights" (§ 366.26, subd. (c)(1)), unless specified circumstances exist. One exception is where "[t]he court finds a compelling reason for determining that termination would be detrimental" because "[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).)
To apply the statutory exception, the child must "benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The benefit exception "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.).) To the contrary, once the mandated period for reunification has passed, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) After reunification efforts end, the Legislature's preferred permanent plan calls for 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.) "Adoption is the Legislature's first choice because it gives the child the best chance at . . . commitment from a responsible caretaker. [Citations.]" (Jasmine D., at p. 1348.) 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.) The court's balancing of competing considerations must be performed on a case-by-case basis, taking into account variables such as the child's age, "`the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs. [Citation.]'" (Jasmine D., at pp. 1349-1350; Autumn H., at pp. 575-576.)
The party seeking to establish the existence of the parental benefit exception bears the burden to produce that evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) The appellate court will not disturb the juvenile court's balancing of interests unless the order is not supported by substantial evidence (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425), or the court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351; see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 [substantial evidence standard of review applies to existence of a beneficial parental or sibling relationship; abuse of discretion standard applies to whether existence of relationship constitutes a compelling reason for determining that termination would be detrimental]; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465 [appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason; when two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court].)
Mother contends she shared a significant positive parental bond with M.C. She notes the juvenile court recognized a "loving bond" in May 2016 when it scheduled the section 366.26 hearing, but concluded this was "insufficient to overcome the gravity of problem that brought [M.C.] to the attention of the court and the gravity of the parental history and lack of progress" by the parents. She cites visitation and phone call reports from January to March 2016 that reflect M.C. was excited and enjoyed time with her mother, and occasionally cried or was downcast at the end of visits. Mother notes that "[a]t almost five years old, [M.C.] knew her mother and was strongly attached to her. She became sad and withdrawn when missing her mother. To cope with her anxiety, the foster mother would help [M.C.] count the days left to visit her mother. Mother was loving and affectionate with [M.C.]. At the visits, not only did she play with [M.C.], but she took on the parental role of bringing food, taking care of her needs, and doing the child's hair. Therefore, mother was a very active and present figure in [M.C.] life and to terminate all contact between the child and mother was certainly detrimental."
Mother relies on several decisions to support her argument. In In re Jerome D. (2000) 84 Cal.App.4th 1200, the child had lived with his mother for the first six and one-half years of his life, and at the time of the section 366.26 hearing, he was nearly nine years old, and expressed a wish to live with mother. (Id. at p. 1209.) For at least two months, he had unsupervised overnight visits in her home. He called her "`mom'" or "`mommy,'" (id. at p. 1207.) and there was apparently no woman in his life other than mother with whom he had a beneficial relationship. He smiled when he said he wanted to live with mother. During a visit at mother's home, he was "`all smiles,'" "`very talkative,'" and "`outgoing'" and he and mother were "`very loving'" with each other. (Id. at p. 1206.) Another witness testified he seemed happy with mother, voiced his pleasure about her and declared he "would be sad if visits were suspended." The pair seemed to share a "`normal mother/son relationship.'" (Id. at p. 1207.) He seemed lonely, sad, and the stepchild or "`the odd child out'" in the caregiver's home. (Id. at p. 1206.) After observing the child and mother together in her home, the assigned psychologist concluded the boy "`identifie[d] her as mother'" and they shared a "`strong and well[-]developed'" parent-child relationship and a "`close attachment'" approaching a primary bond. (Id. at p. 1207.) The psychologist believed if the child were placed with mother, the bond would increase "`depending on the extent of the placement and [mother's ability] to provide care on a daily, regular basis.'" (Ibid.) The psychologist noted affection between the two, relatively effective communication, and "`no indications of unusual behaviors, unusual anxieties or distresses.'" (Ibid.) Mother tried to meet his needs "`both recreationally and in a nurturing fashion'" and practiced "`good boundary setting.'" (Ibid.) The psychologist opined severing the relationship would cause the child to grieve, he might experience emotional and behavioral difficulties, and continued contact would benefit him developmentally. (Ibid.)
The court stated the evidence demonstrated "the positive effect of interaction between Jerome and Mother. Indeed, the court characterized their relationship as `parental.' Jerome wished that relationship to continue and was entitled to have the court consider his wishes. (§ 366.26, subd. (h).) There is no evidence that the security and stability of his placement with Mr. E. would have been jeopardized if Mother's parental rights had remained intact. A permanent plan of guardianship or long-term foster care would have allowed Jerome to remain in that home yet maintain his relationship with Mother. It would have prevented his position as the odd child out in Mr. E.'s home from becoming entrenched by a cessation of visits and the loss of his mother while [other children] continued to enjoy visits and remained Mother's children. Additionally, the court's finding that Jerome would not benefit from a continued relationship with Mother is inconsistent with its immediately ensuing order allowing unsupervised visits between Mother and Jerome." (In re Jerome D., supra, 84 Cal.App.4th at pp. 1207-1208.)
In In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), at the time of the 366.22 hearing, the children were seven, nearly five, and nearly three years old and had been out of the mother's custody for slightly more than two years. One had been in the mother's care for most of her life, the second had been in her care for more than half of his life, and the third had been in her care for the first seven months of her life. A psychologist who conducted a two-hour bonding study between the mother and the eldest child concluded they shared "`a primary attachment'" and a "`primary maternal relationship'" and that "`[i]t could be detrimental'" to sever that relationship. (Id. at p. 689.) The psychologist admitted that the detriment could be mitigated under certain circumstances. The child's therapist also believed the child and the mother had a strong bond and it was important that their relationship continue. The court-appointed special advocate (CASA) for the second child testified he loved and missed his mother and had difficulty separating from her. (Id. at pp. 689-690.) The CASA disagreed with the agency's recommendation of adoption due to the bond and love between the mother and the children. The second child's therapist testified his relationship with the mother was positive and very important to him. The older children enjoyed visits, loved and missed their mother and called her "`mom.'" (Ibid.)
Amber M. concluded "the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption." (Amber M., supra, 103 Cal.App.4th at p. 690.) The court noted the older children loved and missed the mother and had a strong primary bond with her. The younger child was strongly attached to her. The mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation. (Ibid.) She was devoted to them and did virtually all that was asked of her to regain custody. The social worker provided only a perfunctory evaluation of the mother's relationship to the children, and focused on the mother's current inability to provide a home, and on the suitability of the current placements with separate grandparents, who were willing to adopt, but would not consider guardianship or any other permanent plan. The court also noted if the adoptions proceeded the three children would be adopted in separate groups, and the maintenance of mother-child and sibling relationships would depend solely on both grandparents' continued goodwill. (Id. at pp. 690-691.)
In In re S.B. (2008) 164 Cal.App.4th 289, the father had health problems that impeded his ability to provide full-time care for his daughter (S.B.), who was five at the time of the section 366.26 hearing. S.B. became upset when the visits with the father ended and wanted to leave with him. A psychologist conducted a bonding study and described the bond as "fairly strong" or "moderate." (Id. at p. 295.) Father and S.B. shared an affectionate relationship. S.B. initiated physical contact, running into her father's arms and getting him to pick her up. She whispered to her father, "`I love you.'" When he started to leave, she stated, "`I'll miss you,'" gave him another hug, and stated, "`I wish I lived with you and Mommy and Nana.'" (Id. at p. 298.) The psychologist opined there was a potential for harm to S.B. were she to lose the parent-child relationship. The juvenile court found the father maintained frequent and loving contact with S.B. and they shared an emotionally significant relationship, but there was no evidence the relationship was parental in nature or that it would be greatly detrimental to S.B. to terminate her relationship with her father.
S.B. concluded no evidence supported the court's finding the father did not have a significant parental relationship with S.B. He had been the primary caregiver for three years and social workers observed him parenting S.B. in a patient and loving manner. He maintained consistent and regular visitation with S.B. and complied with "`every aspect'" of his case plan. S.B. displayed a strong attachment to her father. She was unhappy when visits ended and tried to leave with the father when the visits were over. He was sensitive to S.B.'s needs and put his daughter's needs and safety before his own. The court rejected the agency's position the continuing beneficial relationship exception does not apply unless the child has a "`primary attachment'" to the parent. The court also noted the fact S.B. had a strong, positive and significant relationship with her caregiving grandmother did not negate the harm S.B. would experience from the loss of her significant, positive, emotional relationship with her father. (Id. at pp. 298-299; see In re Scott B. (2010) 188 Cal.App.4th 452, 461-462 [CASA stated continued contact for the child with his mother was "very important" and the child had made it clear he did not want to be adopted and if the adoption were to occur he would run away]; cf. In re C.F. (2011) 193 Cal.App.4th 549, 558-559 [S.B. must be confined to its extraordinary facts and does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact].)
The foregoing cases presented overwhelming evidence the child would suffer detriment from terminating the parental relationship, including expert testimony from therapists. Here, the evidence pales in comparison. Since detention in January 2016, M.C.'s interaction with mother had been limited to monitored/supervised visitation. Although M.C. was occasionally sad, withdrawn, and anxious about when she would get to visit with her mother, she otherwise was doing well with no concerns or issues. Over time, she had adjusted to her placements, becoming generally happy and no longer having behavioral issues. The court could reasonably infer the planned therapy referral would help her address any grief and loss issues related to not being in mother's care, and she would continue to adjust in a stable and loving home. M.C. was entitled to a permanent home where she could be safe and secure. Mother had shown herself unable to provide a stable and safe home for M.C. and her siblings. The court reasonably could find the planned therapy referral would help M.C. address sadness and loss issues related to termination of mother's parental rights, and that she would thrive in a stable and loving permanent home. As noted, adoption, not legal guardianship or long term foster care, is the Legislature's preferred plan for an adoptable child unless terminating parental rights would be compellingly detrimental. (§ 366.26, subd. (c)(1)(B)(i); see Jasmine D., supra, 78 Cal.App.4th at p. 1348 [benefit exception 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 by visitation]; In re Sade C. (1996) 13 Cal.4th 952, 988 [prolonged uncertainty whether child will remain in a home is detrimental to a child's sound development]; In re Marilyn H. (1993) 5 Cal.4th 295, 307 [at a section 366.26 hearing focus shifts from the parent's interest in reunification to the child's interest in permanency and stability].) The juvenile court reasonably could conclude from the evidence M.C.'s separation issues did not rise to the level of compelling detriment.
The September 6, 2016 postjudgment order terminating parental rights is affirmed.
MOORE, ACTING P. J. and IKOLA, J., concurs.
