Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J219377. Wilfred J. Schneider, Jr., Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MILLER, J.
Appellant T.B. (mother) is the mother of C.B. (minor), born in October 2007. Mother appeals from the juvenile court’s order terminating her parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Mother contends substantial evidence does not support the juvenile court’s finding under section 366.26, subdivision (c)(1)(B)(i), that the “beneficial parental relationship” exception does not apply here. For the reasons described below, we affirm the juvenile court’s ruling.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Minor was brought to the attention of San Bernardino County Children and Family Services (the Department) when, after having been diagnosed with “failure to thrive” in November 2007, mother failed to keep four scheduled doctor’s visits in the ensuing two months. Minor was “‘off the curve to <5% for weight’” suffering from “malnutrition due to inadequate caloric intake.” Hospital staff had attempted to contact mother on multiple occasions. Social workers met mother at her residence on January 18, 2008, and transported minor to an emergency doctor’s appointment. Minor was admitted to the hospital.
After a contested detention hearing, mother requested that minor be placed with her uncle. Minor was released from the hospital to the uncle’s care on January 25, 2008. The juvenile court ordered that mother have twice weekly supervised visitation with minor giving the social worker authority to liberalize visitation at her discretion. A report filed February 8, 2008, reflected that “mother laments she is not seeing the child often enough nor long enough.” However, in an addendum report prepared March 6, 2008, it was noted that mother had not visited with minor since February 14, 2008. Mother reported that she had unreliable transportation which made it difficult for her to travel from her home in Redlands to uncle’s home in Desert Hot Springs. Mother’s father (grandfather) lived only blocks away from uncle and offered mother a room to stay overnight when she visited with minor; mother declined the offer indicating that grandfather was a poor housekeeper. “Reports from the caregiver report that visits between mother and child are marginally appropriate with mother trying to engage caregiver in lengthy talks rather tha[n] focus on the child’s needs and bonding issues.”
After the juvenile court found jurisdiction over minor and formally removed him from mother’s care, it inquired into the frequency of visitation. The social worker responded that accessibility of visitation was “pretty liberal because of... [mother’s] father living about a block and a half from the caregiver’s home. If she exercises that option, she can see the child very often. If not, then it reduces down, because of the travel time from Desert Hot Springs to Redlands where she lives. It really is her option. She can see the child very often if she moves out there with her father or goes and stays with her father.” The court again ordered twice weekly supervised visitation with authority to liberalize; it further ordered that visitation could be made unsupervised if appropriate.
A psychological report dated May 8, 2008, noted that mother was “observed demonstrating appropriate nurturing and care for her infant son.... [Mother’s] interaction with her child has been ‘warm, motherly, and nurturing.’” The psychologist “observed that [mother] was ‘well bonded’ to [minor] and that she was ‘very attentive to his needs.’” A status review report filed September 5, 2008, noted that “transportation ha[s] been provided by [uncle] on a consistent basis for visitation.” However, mother had consistently been extremely uncooperative in scheduling visitation, wanting to dictate frequent changes in dates and times: “The mother is very resistant in allowing visitation on a consistent basis.”
On April 23, 2008, visitation was scheduled to occur at 3:00 p.m.; mother called at 11:39 a.m. in an attempt to reschedule the visit for 1:00 p.m.; the social worker instead offered to extend mother’s scheduled visit on April 25, 2008, from one to two or three hours; mother refused all proffered options. “On July 23, 2008, [the social worker] did not schedule the Monday visit because [the social worker] could not get a hold of mom to confirm that she was coming prompt[ly]. The mother previously missed three (3) visits and [the social worker] was unsure if mother was going to attend.” Mother visited with minor on August 18, 20, and 27, 2008.
At the six-month review hearing on September 19, 2008, the social worker noted that mother had come one-half hour late to a visit on the prior day. Nevertheless, the social worker characterized mother’s frequency of visitation as “[p]robably, 95 percent. She has done pretty well attending.” The court continued services for an additional six months, again ordering supervised visitation twice a week with the department having authority to liberalize.
On October 20, 2008, the department sought to reduce mother’s visitation to once a week with mother required to call two hours prior in order to confirm her ability and intention to attend. The department noted that mother was more than 20 minutes late to a visit on September 1, 2008, which was, therefore, cancelled; more than 15 minutes late on September 15, 2008, 56 minutes late on September 17, 2008, called 15 minutes after scheduled visitation on September 29, 2008, to report she had a flat tire; more than 15 minutes late on October 1, 2008; nearly 20 minutes late on October 6, 2008; and 15 minutes late on October 8, 2008. During those visits, mother complained nearly the entire time and had little interaction with minor. On October 14, 2008, at a visit occurring at the department’s offices, mother took minor into the bathroom, refused to leave, and refused to hand over minor. The department called the police who supervised the remaining 10 minutes of the visit. Although mother initially visited minor at uncle’s home, she now refused, requiring that uncle and minor travel 100 miles roundtrip for visits with mother.
At the contested hearing on the department’s request for reduced visitation, the former social worker testified that visitation times had to be changed on a weekly basis on the demand of mother: “Mom wanted different times that were accommodating to her. Appeared to me after a while that she wanted just to make it very inconvenient for [uncle]. Whatever [was] the most inconvenien[t] for him, that’s what she wanted.” Uncle preferred morning visits. However, mother refused morning visitation because “it was too early for her to wake up, and that she would sleep in....” She testified that mother was focused on her own needs, not those of minor. The current social worker testified that mother took minor into the restroom on October 14, 2008, when she was refused repeated requests to have unsupervised visitation with minor. She testified mother has “been late to every visit that I’ve supervised.” Mother “gets kind of agitated during the visits and loses focus on [minor] and starts wanting to be argumentative and discuss the case while he’s kind of playing alone. [¶] She just seems really involved and concerned about her own issues in that one hour.” “I think it’s very difficult for [minor], just one years old, to be, you know, pulled from daycare in the middle of the afternoon, after being there a few hours, to travel fifty miles for a visit where he has very little interaction with his mother, travel fifty miles or so back home or possibly to go back into daycare until the uncle gets back home from work.”
Mother testified that she was not willing to have visitation at uncle’s home. She admitted being “late to quite a few of these visits recently, ” but not as late as reported by the department. The court granted the department’s request for reduced visitation expressing concern that “[w]ith the drama created at the visits and circumstances, this court is having a real difficult time even believing that mom even cares a whit about [minor] at this instant right now based on her testimonial quality.”
A status review report filed March 6, 2009, reflected the vicissitudes of the locations of visitation over the course of the dependency proceedings: Initial visits at uncle’s home were canceled after mother accused him of poor parenting; visits at parks ended when mother attempted to coerce uncle into lengthening visits, allowing friends to attend, and changing the time and parameters of visitation without consulting with the department; visits at mother’s home ended when she would spend the entire time dressing minor up in various outfits and taking pictures of him; “[he] would cry and fuss about being constantly dressed and undressed.” “Generally [during] all of the visits... supervised in between September 2008 until January 2009 the mother sat in her chair and watched as [minor] played with toys. She would talk to him and change his diaper but the interaction stopped there. She would smile and comment on his actions but would rarely get on the floor and play with him.” On a December 1, 2008, visit when minor was sick mother “appeared cold and uncaring, citing a doctor’s note as an excuse to avoid comforting her son.”
However, the department noted that since visits were reduced “mother has been generally appropriate at visits. She still complains about the items (i.e. toys, baby food, etc) that her uncle does or does not bring to visits, however, the constant demands and hostility have decreased. Since January 2009, the mother seems to be more interactive with [minor].... She sits on the floor and plays with him, changes his diaper and feeds him snacks.... The mother stated that she is now trying to improve her visits with [minor].”
At the section 366.21, subdivision (f) hearing, a department supervisor testified that she had continuously supervised visits with mother between 2008 and 2009; she never witnessed any problems or hostility by mother. While during earlier visits mother did not demonstrate affection for minor or hug him, later visits mother “was more responsive to the child.” However, she observed visits where minor would simply play by himself, have little verbal interaction with mother, and would be reluctant to go to her. The social worker testified that visitation “improved in some ways. It’s improved in that pretty much from the beginning of the year. I’ll say that [mother has], for the most part, been on time. She’s been less [confrontational] with staff and myself. She’s been a bit more interactive with [minor].” “She interacts more than she used to. She used to sit in her chair and wait for [minor] to come to her. Now she sits on the floor a little bit more and talks to him a little bit more. Still quite a bit of sitting in the chair, but less.” Mother had visited minor consistently.
However, the social worker still found “the amount of affection that [mother] displays [towards minor] is pretty minimal. There is some at times, but for the most part it’s pretty minimal.” Likewise, the social worker expressed “concern[] that some of the interaction I’ve seen between [mother] and [minor] has been inappropriate and lacking in warmth and genuineness.” Mother testified that minor had been calling her “momma” for a few months. “I hug him. I kiss him. I hold him.... I play peek-a-boo, hide and seek. I play with the toys that are there. He likes the ones that light up. He likes Legos.” “We play soccer.” “I have successfully reestablished that bond. I think the way [minor] looks at me and talks to me, I see that he has, too.” The court terminated mother’s reunification services. Mother petitioned for extraordinary writ which we denied by opinion on September 17, 2009.
In a section 366.26 report filed on October 1, 2009, the social worker noted the strong bond between uncle and minor. The adoption assessment report filed the same day noted that uncle wished to adopt. An addendum report filed December 1, 2009, reflected that visitation between minor and mother continued at a park near mother’s residence. Minor apparently only hugged mother with encouragement from uncle. Minor appeared comfortable in mother’s presence only for a limited duration and only when directly involved in an activity. If minor noticed uncle around, he sought uncle out. “[Minor] seems to enjoy the visits with his mother. Mother usually brings some kind of toy or stuff[ed] animal for [minor] to play with. She also brings [minor] a snack and/or drink. [Minor] seems to have responded more favorably to mother’s more interactive approach.” Uncle continued to offer mother additional visits at this home which mother refused.
At mother’s request and upon the juvenile court’s order, a psychologist conducted a bonding study of mother and minor on December 7, 2009, consisting of observations of their interaction during a one-hour visit. In her report, the psychologist noted that minor smiled and approached mother without hesitation, seemed to enjoy his visit with her, looked up at her in a trusting manner suggesting that he felt comfortable seeking her help, referred to her as “mommy, ” and looked momentarily sad at the end of the visit. “There was a strong impression that [minor] and [mother] have a history of working in unison. These interactions are typically seen in child/caregiver pairs who have formed a bond and ‘work as a team.’” “[Minor’s] attachment behaviors toward [mother] resemble the behaviors of small children toward their non-custodial parents, with whom they have an undeniable bond, even though they do not live with them.” “The results of this bonding study do suggest... that a strong, trusting bond exists between [minor] and [mother], and that it is in [minor’s] best interest to protect this bond if at all possible.”
In an addendum report filed January 11, 2010, the social worker reported on her observations of the December 7, 2009, visit. They were consistent in content with the psychologist’s, but came to a contrary conclusion regarding the degree of the bond between mother and minor. The social worker noted that the psychologist had substantial interactions with mother and minor contrary to both the court’s order and the criteria of a bonding study. She also observed that mother and minor’s continued “visits are a pleasant and friendly interaction between two people. [Minor] gets to play games and eat snacks. [Minor] recognizes his mother due to their regular interaction. [Minor] and his mother have a relationship that is based upon play dates in the park. It is not indicative of a genuine parent-child relationship which encompasses all aspects of a child’s development. It’s merely a relationship based upon familiarity. It is the undersigned’s opinion that [minor] views his mother as a playmate.”
At the contested section 366.26 hearing on January 13, 2010, the social worker took issue with the psychologist’s characterization of mother and minor’s bond: “I think because the visits are generally confined-they either occurred in my office or the park-I don’t necessarily know that there has been a situation where you could really determine if a two-year-old was extremely trusting. They haven’t gone anywhere together. There hasn’t been a situation that has come up to really determine how strong that level of trust is.” While mother was proficient at changing minor’s diapers and minor called her “mommy, ” “[t]he relationship with Mother that I’ve observed while it has been pleasant for the most part, it just doesn’t seem to have-be at the same level as [minor’s] relationship with his uncle. It just is on the level of a playmate or friend.”
The psychologist testified that a one-hour visit is the standard period of time utilized in assessing a bond between a parent and a child. She characterized mother’s and minor’s “bond as trusting and secure.” Minor derived comfort and reassurance from his relationships with both mother and caretaker, both of which “are essential for optimal development as the child goes through stages.” She believed “that there is a significant value to the relationship as it exists now....” Mother “scored” as high as possible on the bonding study. Mother testified that she believed a bond between her and minor existed; that minor resisted leaving his last visit with her; he hollered, “‘Come here, Mommy.’” Mother admitted that she would not visit minor at uncle’s because she does not feel comfortable there. Uncle testified that he has offered mother visits with minor at his home as often as she likes. He plans to continue to allow mother visitation. The court found minor adoptable, terminated mother’s parental rights, and ordered adoption as the permanent plan.
DISCUSSION
Mother contends that substantial evidence fails to support the juvenile court’s determination that the “beneficial parental relationship” exception to termination of parental rights did not apply. We find substantial evidence supports the juvenile court’s order.
Once reunification services have been terminated and a minor has been found adoptable, “adoption should be ordered unless exceptional circumstances exist....” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i) one such exception exists where “[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 proving that termination would be detrimental to the child under one of the enumerated exceptions. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) “We determine whether there is substantial evidence to support the trial court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]If the court’s ruling is supported by substantial evidence, the reviewing court must affirm the court’s rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298 (S.B.)
The statutory benefit from a continued relationship means “‘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.’... ‘[T]he 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.’ [Citation.]” (S.B., supra, 164 Cal.App.4th at p. 297.) However, “[i]nteraction 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; see also In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Casey D. (1999) 70 Cal.App.4th 38, 50 & 52, fn 4.) “[S]ignificant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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.’ [Citation.]” (S.B., at p. 297.)
Here, substantial evidence supports the juvenile court’s determination that mother did not occupy a parental role in minor’s life “resulting in a significant, positive emotional attachment.” Minor was only three months old when initially detained and never returned to mother’s custody. Mother never progressed to unsupervised visitation; indeed, mother had visitation reduced from two, one-hour weekly supervised visits to one, one-hour weekly visit supervised by two department workers. Mother was frequently late or altogether missed the visitation she was provided during the initial 12 months of services. What visitation mother did have was spent predominantly complaining to the social worker or caretaker about the proceedings. Mother interacted only minimally with minor during her visits. Although mother was offered virtually unlimited visitation at uncle’s home during the entirety of the proceedings, mother consistently refused those offers. Likewise, mother could have exercised the option offered her of living with or staying overnight with her father who lived close to uncle in order to increase the frequency and duration of her visits with minor; this she elected not to do. Despite an improvement in the quality of the more recent visitation, the social worker described mother’s relationship to minor as that of a “playmate.” Mother simply never attended to minor’s “needs for physical care, nourishment, comfort, affection and stimulation” on a regular basis.
Moreover, the juvenile court acted within its discretion to the extent it discounted the results of the psychologist’s bonding study. The psychologist knew nothing about mother’s case history. She spent only one hour with mother and minor. When weighed against the detailed information provided by the social workers and uncle over the course of a year and a half, the court acted reasonably in rendering its finding.
Mother’s citations to S.B., supra, 164 Cal.App.4th 289; In re Jerome D., supra, 84 Cal.App.4th 1200; and In re Brandon C., supra, 71 Cal.App.4th 1530 are unavailing. In S.B., the father was the minor’s primary caregiver for three years, he complied with “‘every aspect’” of his case plan, and the minor expressed his desire to live with the father. (S.B., at p. 298.) In Jerome D., the minor expressed his desire to live with the mother, the court expressly found the mother’s relationship to the minor as “parental, ” the minor had lived with the mother for six and one-half years, the mother progressed to unsupervised visitation with the minor including overnight visits, and the minor’s counsel argued that suspension of visitation would “devastate” the minor. (Jerome D., at pp. 1204, 1206, 1207.) In Brandon C., the mother had consistent visitation up to and including three hours twice weekly for the preceding three years, the mother fed and cared for the minors, the caretaker was ambivalent about adoption and believed the minors’ relationship with the mother was beneficial and should continue. (Brandon C., at pp. 1533-1535, 1537.) Here, aside from his first three months, mother simply never occupied a parental role with respect to minor such that it would counterbalance the security offered in adoption by uncle who had cared for minor on a daily basis for just shy of two years.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P. J., KING J.