In re R.C.

Filed 1/22/09 In re R.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.

T.C. (Mother) appeals from the order terminating parental rights to her daughter, R.C. (Welf. & Inst. Code,  366.26.)[1] She contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. ( 366.26, subd. (c)(1)(B)(i).) We find no error and affirm the order.

FACTS

Detention

Then five-year-old R.C. was taken into custody in August 2006. Mother had a long and unresolved history of drug use and a lengthy criminal record. She was largely transient and unemployed. Mother had two adult daughters, whom the maternal grandmother had largely raised due to Mothers drug use and unstable lifestyle.

Mother failed to comply with her reunification plan. Throughout this dependency proceeding, R.C. has been placed with a maternal aunt and her husband from whom Mother is estranged, and who wish to adopt the child. Prior to the dependency, R.Cs aunt and uncle frequently provided care for her. R.C. loves her aunt and uncle, is strongly bonded to them, has thrived in their care, and has indicated she desires to remain with them. R.C. also clearly loves her mother and is bonded to her as well.

A few days before R.C.s detention, Mother drove a car to the aunt and uncles house to pick up R.C. from a visit. Mother was agitated and appeared to be under the influence of methamphetamine. The aunt and uncle refused to let R.C. leave with Mother. Mother and the aunt got into a tussle on the front lawn, in the course of which, Mother elbowed R.C. in the eye. Mother and R.C. tried to jump into the car Mother had driven up in, when the owner of the car arrived. Mother and the man got into an argument. The uncle called the police. Mother took off running with R.C. and hid in nearby bushes where police found them. It turned out the car was stolen, and there was drug paraphernalia inside. Mother was arrested for driving a stolen car and possession of methamphetamine paraphernalia. She admitted earlier driving under the influence while R.C. was in the car with her. Mother was given once a week monitored visits while she was in custody, with visits to be increased upon her release.

Jurisdiction/Disposition Reporting Period

In the report for the September 2006 jurisdictional hearing, the Orange County Social Services Agency (SSA) reported R.C. had primarily lived with Mother and the maternal grandmother, but frequently visited with her aunt and uncle. Mother (who was now in her mid-40s) admitted she had been using drugs for over 30 years. Mother participated in a one-year drug rehabilitation program at Heritage Housewhich was where she lived when R.C. was bornbut she soon relapsed. Mother was very bonded to R.C., whom she described as her best friend and her little bull dog who would go after anyone who tried to harm Mother. She claimed R.C. did not need to be taken care of because she was a such a good kid. She blamed her problems on other family members who wanted to always tear her down.

Mother stated she and R.C. had recently been living with Mothers boyfriend, also a drug user, but had gone back to the maternal grandmothers home. The maternal grandmother told the social worker Mother had a very unstable lifestyle, frequently stayed away from home for long periods of time, did not work, and had questionable friends.

R.C. had regular visits with Mother while Mother was in custody, and R.C. was always eager to visit her. The visits were appropriateR.C. described them as sad . . . even happy.

R.C. enjoyed living with her aunt and uncle, but she appeared fearful and panicked they would abandon her. R.C. said if she could live anywhere it would be in a house with her mom next door to her aunt and uncle. The uncle had enrolled R.C. in kindergarten. The uncle reported R.C. was happier than she had ever been, she was excited about school, and doing well. The uncles interactions with social workers and other service providers were not always positive, however. He frequently expressed his frustration that he believed SSA and social workers placed Mothers rights above R.C.s. He was sometimes rude to the social worker and expressed annoyance with Mother for not staying out of trouble. The court declared R.C. a dependent child and ordered a reunification plan that included Mothers attending substance abuse treatment, drug testing, 12-step meetings, and parenting classes.

Six-Month Review

In the first report for the six-month-review hearing, social worker Vanetta Warrior explained Mother had been released from jail. She moved into a sober living facility, but soon got kicked out for drinking. Mother had positive alcohol tests that she blamed on her breath mints. Mother had not seen R.C. for four weeks and asked to begin monitored visits. Although two visits a week were allowed, Mother only wanted one so she could look for a job.

In March 2007, Warrior recommended services be continued. Mother was now back living with her boyfriend. R.C. was doing well at school, but having some behavior problems for which she had been referred to therapy. Warrior reported the aunt and uncle were dedicated and committed to R.C.s well-being.

For her part, Mother was not complying with her service plan. She had several positive drug and alcohol tests in January and February. During a visit with R.C., Warrior could smell alcohol on Mother. Mother insisted she was clean, but then blamed her renewed drug use on being back with her boyfriend. Mother was not communicating regularly with Warrior and Mothers probation officer was threatening to have her arrested. Mother was balking at going into a treatment program. Mother was having consistent monitored twice weekly visits with R.C., the visits were appropriate, and it was apparent that the mother and child love each other. Dependency and services were continued and a 12-month review hearing was set.

12-Month Review

In August 2007, Warrior reported Mother completed a 90-day residential treatment program at The Villa, but following completion of the program moved back in with her boyfriend, whom she had earlier claimed was a bad influence on her. She had not begun a parenting program, outpatient drug treatment, or drug testing. Mother had not found a job, blaming it on her numerous felony convictions. Mother did visit R.C. regularly and provided appropriate parenting during visits.

R.C. was still doing well in her placement with her aunt and uncle. She was developmentally on target, but still having behavior problems at school. There was talk of a meeting with school district officials to see if an individualized education plan (IEP) was appropriate for R.C. The aunt and uncle reported R.C.s behavioral problems were noticeably worse after visits and telephone calls with Mother; R.C. returned from visits grumpy and whinny. R.C.s therapist noted that whenever Mothers name came up in sessions, R.C. changed the subject.

The aunt and uncle continued to be difficult with social workers and other providers. In a nutshell, they believed SSA was only focused on Mothers rights, and was not giving proper consideration to R.C.s needs for stability. They complained about having to drag R.C. all over the place for visits to accommodate Mother. Warrior said the uncle had a cool attitude toward her and wanted to control where visitation took place. Warrior was worried the aunt and uncle might try to alienate R.C. from Mother, and she counseled them if they did not feel they could cooperate with reunification efforts, R.C. would be removed from their care. They immediately backed down as they did not want R.C. removed. And despite their uncooperative attitude with social workers, Warrior observed the couple clearly loved R.C. and cared for her.

By September 2007, Mother was back in custody. She had failed to report to her probation officer and had tested positive for alcohol. Mother was living with her boyfriend and his mother, and during a probation search of the residence, empty beer cans and drug paraphernalia (two bongs) were found.

At the 12-month review hearing, the parties stipulated to the courts order terminating reunification services and setting a permanency planning hearing. The court ordered once a week monitored visits for Mother while she remained incarcerated, to be increased to twice weekly after her release.

Permanency Planning Hearing

In her first report for the permanency planning hearing, social worker Warrior explained R.C.s IEP did not come to fruition, the court had appointed an education attorney for the child, and Mother was participating in that process. R.C. and Mother had weekly monitored visits at jail that went well. By November 2007, Mother was out of custody and had twice weekly monitored visits that went well.

Warrior reported that R.C. is adoptable and her aunt and uncle wanted to adopt her. She was happy and had transitioned well to their home. There appears to be a significant family relationship in the home, as the [aunt and uncle] are very [sic] with the child and reinforce appropriate responses to her positive and negative behaviors. The couple was very committed to R.C. and [t]he child appears to love them as well. The aunt and uncle believed they could provide R.C. with stability and the longer she stays with them the more well-adjusted she appears to be.

There were still issues with the aunts and uncles interactions with Mother, social workers, and service providers. The aunt did not want Mother to send gifts home with R.C., and the aunt and uncle would become very upset if R.C. had any small mishaps during visits. Mother believed her sister and her sisters husband were jeopardizing and sabotaging the relationship she has with the child. The visit monitor reported the uncle was often antagonistic towards the monitor about visits, particularly if he thought Mother was somehow being accommodated in scheduling.

Warrior noted the aunt and uncle continued to try to control things and the uncle in particular had some control issues[,] but he and the aunt truly love this child and continue to provide safety and permanency in her life. The prognosis for R.C.s return to Mother was not good. It was only since her release from jail in November 2007, after the permanency planning hearing had been set, that she began participating in any of her services. Warrior was concerned Mothers compliance would soon slow down, or stop. [I]t appears that the mother loves her child and desires to have the child placed with her[,] but the need for permanency and stability were paramount and Warrior recommended termination of Mothers parental rights.

In January 2008, the court appointed Dr. Jane Mak to conduct a bonding study. It ordered her to interview R.C., Mother, the aunt and uncle, Warrior, and Mothers adult daughters. The referral specifically directed Dr. Mak to consider the following issues: (1) Does child have [a] beneficial relationship with Mother; (2) If so, is it so beneficial as to outweigh childs needs for permanency by adoption; (3) Nature [and] quality of relationship with caretakers; (4) Extent of detriment if removed from caretakers; [and] (5) If removed from caretakersevaluation of adult siblings as possible placement.

In her April 4, 2008 report, Warrior again recommended termination of parental rights and adoption. Mother continued to have very good monitored visits with R.C. for one hour twice a week, but the aunt and uncle believed R.C.s behavior regressed after visits. Mother was now participating in drug testing and enrolled in a perinatal program.

The aunt and uncle continued to express frustration and skepticism with social services. They questioned the need for the IEP process at R.C.s school, which they felt was being unnecessarily promoted by Mother. They did not believe Mother should have any involvement in R.C.s education given her history. They did not want R.C. involved in a therapy program that would involve additional therapists. They were concerned that even at the permanency stage, SSA was focused on reunifying R.C. and Mother.

Warrior observed that while the [aunt and uncle] eventually comply, they continue to be rigid in interacting with transporters and monitors and in complying with the mothers phone calls and visitations. The[y] continue to show difficulty with any changes or deviations of previous schedules. [] The caretakers do love the child but appear to be too controlling and continue to appear to try and sabotage the mother and childs relationship. [] It appears to the undersigned that although [] the caretakers are willing to adopt the child, and the adoption process is beginning, they feel they should have a say so in all of the Social Services procedures. Nonetheless, R.C. was thriving under the care of her aunt and uncle. She says she wants to stay with them. She stated to [Warrior] without any prompting that she would not like to live with her mother.

Warrior concluded the aunt and uncle have been involved in R.C.s life since birth and are family to her. Warrior believed it was in R.C.s best interest to allow her to be adopted into this loving family. She has adjusted so well and is obviously well cared for. I think it would be a great injustice to this child to thwart her adoption by this family. Mother continued to participate in various services and her drug tests were all negative. One of R.C.s therapists reported that at a session in April, the uncle said R.C. would not be attending any more therapy because it was not necessary. Warrior later told the uncle it was not his decision to make. The uncle replied he acted as he did because he did not believe the therapy was helping R.C. and too much was being asked of the childwith all the things that the child has to do, such as therapy, phone calls and visits with the mother, this does not allow her to have time, to just be a kid. Warrior allowed R.C. to miss the next scheduled therapy session, but directed that therapy resume thereafter.

In June 2008, Warrior reported Mother continued to drug test negative and comply with her service plan. The aunt and uncle continued to complain about the frequency and amount of services still being provided to Mother, and to be abrupt with Warrior and the visit monitor, but all scheduled visitation and telephone calls nonetheless took place.

Bonding Study

Dr. Maks report was filed with the court in June 2008. R.C. told Dr. Mak she liked her aunt and uncle. If she could change anything it would be my mom being back. R.C. said if she had three wishes it would be for her mom to be good, for her loose teeth to fall out, and to live with [my aunt and uncle] forever. She expressed happiness about seeing her mother and sadness at not seeing her, but when asked to draw a picture of her family, she drew a picture of herself with her aunt and uncle.

The uncle told Dr. Mak that prior to the dependency, Mother was passing R.C. around to various relatives to be cared for, so his wife had started going to the maternal grandmothers home daily to care for R.C., so R.C. could stay in one place. There was nothing he and his wife would not do for R.C. Their priority was for R.C. to be happy and healthy. The uncles goal was for R.C. to go to college and have a future. He hoped eventually R.C. would become like her older sisters and learn to deal with the fact that Mother makes bad choices. Dr. Mak observed that although the uncle cooperated with the interview, his affect was controlled and his mood tense and testy.

The aunt told Dr. Mak that R.C. was her main concern. Mother has been in crisis mode for her entire life, leaving everyone [] to get involved for her childrens sake. She reported the maternal grandmother essentially raised [Mothers] two older daughters. When R.C. was two, Mother went to jail and R.C. stayed with the maternal grandmother. The aunt went to the house daily to care for R.C., and on her days off work, she would bring R.C. to her house to play. She was positive about R.C. receiving therapy because she now could voice her emotions more positively. She reported that R.C. was in a good place now and she and her husband loved R.C. very much. Dr. Mak observed the aunt also had a controlled affect and appeared mildly anxious. She cooperated with the interview, but seemed somewhat skeptical.

R.C.s adult sister noted to Dr. Mak that the uncle was not a very friendly person, which made it difficult to spend time with R.C. For that reason, she wanted R.C. returned to Mother. But she admitted that when she lived with Mother, their life was very unstable, and acknowledged R.C. was having all her needs met with her aunt and uncle.

R.C.s other adult sister similarly observed the uncles personality made it difficult for her to spend time with R.C. She agreed Mother has made many mistakes in her life, but she thought it could be different now. She told Dr. Mak, If she were able to change one thing in her life, she said she would change my momI wish I could shake [her problems] out of her, I wish she had learned the first time.

Warrior told Dr. Mak that Mother was progressing well and was consistent with visitation. Mother and R.C. had appropriate and loving visits and there was a very observable bond. Warrior also advised that R.C.s placement with her aunt and uncle was very successful, they loved R.C. very much, and R.C. loved them very much. The uncle was inflexible and had a control thing, and Warrior worried that if R.C. was adopted by them, they would sabotage the effort to retain the mother-child relationship.

Dr. Mak observed R.C. with the uncle. She was very relaxed and comfortable with him and sought his attention. But when the uncle perceived Dr. Mak was accommodating Mother in scheduling a further session, he became annoyed and made a negative comment about Mother. R.C. was similarly relaxed and comfortable with the aunt. When asked to draw a picture of her family, R.C. drew a picture of herself with her aunt and uncle. With Mother, R.C. was also comfortable and relaxed, called her mom, and said she loved her when parting.

In her summary and recommendations, Dr. Mak observed R.C. was attached to the aunt and uncle, but also attached to her mother. [R.C.] now has three love-objects, three parent figures in her life. The aunt, the uncle, and R.C. clearly loved each other, and the aunt and uncle earnestly want to protect [R.C.] from further danger and disruption. But [w]hile they have become an integral part of [R.C.]s world, they need to understand that for [R.C.] to be psychologically and emotionally free to pursue the tasks of being a child and fulfill her potential, she needs her mother to remain a part of her world. Dr. Mak stated the aunt and uncle needed to be better advised as to the goals and expectations of a foster family.

Dr. Mak concluded that while Mother clearly loved R.C., it was unrealistic to think she was capable of providing a safe, secure and stable environment for her any time soon. Mother still needed to learn to consistently put R.C.s needs first. Mother should remain an active but positive part of [R.C.]s life. At present and for the foreseeable future, [R.C.]s primary physical placement should remain with [her aunt and uncle] with the firm caveat that they do not undermine or jeopardize [R.C.]s attachment to and connection with her [Mother]. In light of [the aunt and uncles and Mothers] current estrangement, a structured schedule for shared physical custody needs to be established, agreed upon and complied with. Hopefully, for [R.C.]s sake, their relationship as co-parenting adults will eventually mature and progress beyond mutual tolerance. Dr. Maks report did not address whether R.C. and her mothers relationship was so beneficial as to outweigh her needs for permanency through adoption.

Testimony

The parties stipulated that R.C. understood what adoption meant, and that if adopted, the aunt and uncle would be her parents permanently and Mother would not be her parent anymore. R.C. said she wanted to be adopted by her aunt and uncle.

SSA social worker Warrior testified she had monitored two visits between Mother and R.C. and had reports from the monitor about all visits. R.C. was usually happy to see Mother, and Mother always prepared for the visits. Mother engaged appropriately with R.C., properly redirected her, read to her, and properly cared for her during visits, and there was an observable bond between them. But Warrior did not believe the relationship was a parent-child relationship because R.C. only saw Mother twice a week.

In answer to a question by R.C.s counsel, Warrior admitted she was not crazy about the uncle and sometimes got along better with Mother. But Warrior believed it was the aunt and uncle who acted in the role of parents to R.C., and R.C. was well cared for in their home.

On direct examination by county counsel, Warrior explained that just because Mother and R.C. had good and appropriate visits, and R.C. was happy with and responded well to her, did not mean there is a parent-child relationship. R.C.s therapist had not indicated she believed there is a parent-child relationship between R.C. and Mother. Warrior believed the uncles abrupt and controlling attitude towards her and other service providers was due to Mothers past history and his desire to protect R.C. and to do what was best for her The aunt and uncle had been caring for R.C. long before SSA became involved. In the uncles view, Mother will continue to mess uphe and his wife have no faith in Mother. Warrior did not believe they acted as they did to get back at Motherthey acted in R.C.s best interests.

Warrior testified that whenever R.C. was asked about her parents she responded in reference to her aunt and uncle, not Mother. Warrior was never able to lift the monitor for Mother and R.C.s visits because of Mothers history and her complete lack of consistency with addressing her problems. The only thing Mother had done consistently was attend visits. She had numerous failed attempts at sobriety, only very recently started her perinatal program, and began testing consistently. Warrior opined the benefits R.C. would get through adoption outweighed any detriment from terminating Mothers parental rights because R.C.s been unstable her entire life, pulled from one place, put to another.

Mother testified she has been a drug user for her entire adult life, her longest period of sobriety was five years, and she has relapsed since R.C. was born. She has currently been sober for seven months. Mother testified she currently lives with her boyfriend and his mother. The boyfriend had been sober for a year and there was no alcohol in the home.

Mother testified her probation violation arrest in September 2007 was simply due to not reporting. She explained the drug paraphernalia found by the probation officer was her boyfriends from 20 years ago, and the beer cans were old ones that were never picked up. She had falsely said earlier that her boyfriend used drugs because she was mad at him. Later in her testimony, Mother remembered she had also tested dirty when rearrested.

Mother admitted she never lived on her own with R.C., and always relied on her family to help her with the child. She conceded R.C. would benefit from being adopted by her sister and her sisters husband because she would have a stable home, but did not think it would be in R.C.s best interests because they did not want anything to do with Mother. Mother testified she has a parent-child relationship with R.C., although it has been a couple of years since she has done any of the things she thinks a parent does for a child. She agreed that due to her own actions, the aunt and uncle have been acting in the parental role for the past two years. Nonetheless, R.C. gets excited when she sees Mother, loves her, and cries when its time to go. If parental rights are terminated, Mother might never see R.C. againor not as often as she does now, and R.C. would miss out on her mothers love and doing things together. Mother agreed that despite the aunt and uncles attitude toward her, R.C.s visits with her have never been disrupted by them. Mother understood her bad relationship with them was because of what shes done to R.C.

Closing Argument and Ruling

In closing argument on the applicability of the parental benefit exception to termination of parental rights, county counsel and minors counsel both conceded Mother had maintained regular and consistent visitation (prong one), but argued Mother had not established the second prong (benefit from continuing the relationship). Both argued Dr. Maks report should not be given much weight by the juvenile court because it did not address the possibility of termination of parental rights and did not address the questions posed in the courts appointment order.

The juvenile court found R.C. was adoptable. Despite county counsels concessions, the court concluded visitation was not regular and consistent. Although Mother took advantage of all visitation offered, she caused visits to be disrupted by her incarceration, requiring less frequent jail visitation during that time.

The juvenile court found Mother had failed to establish the benefit prong. Although R.C. clearly looks forward to visits with her mom and they enjoy their time together, a lesser plan of guardianship would not be stable for R.C. and would continue the disruptive nature of visits and relationship. Although the court found Dr. Maks report to be of little help because it failed to address key issues, it interpreted her comment about R.C. needing to have Mother as part of her world not as a conclusion that termination of parental rights would be detrimental, but as advice to the aunt and uncle that it would be unwise to totally cut Mother out of R.C.s life. It was clear R.C. viewed them as her parents, and she viewed Mother more like a fun older relativelike an aunt or grandmother. But there was no evidence the benefit to R.C. from continuing a relationship with Mother outweighs benefit of a permanent and stable home. The court terminated parental rights.

DISCUSSION

Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. We find no error.

At a permanency hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was consistent and regular; and (2) that the child would benefit from continuing the relationship.[2] (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.)

To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(B)(i), exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, the 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 JasmineD. (2000) 78 Cal.App.4th 1339, 1348 (JasmineD.).)

In Autumn H.,supra, 27 Cal.App.4th 567,the court articulated a test for determining whether a child would benefit from continuing a relationship with the natural parent. To succeed under this test, the parent must establish that 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. (Id. at p. 575.) In evaluating this issue, the court must balance[ ] 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. (Ibid.) The exception must be examined on a case‑by‑case basis, taking into account the many variables which affect a parent/child bond[, including t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . . (Id. at pp. 575‑576.)

[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption. (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) [F]requent and loving contact may also be insufficient to establish the type of beneficial relationship contemplated by the statute. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Interaction between [a] natural parent and child will always confer some incidental benefit to the child[,] but the basis of a beneficial relationship is that the parents have occupied a parental role[.] (Id. at pp. 1418‑1419.) While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Whether we apply the abuse of discretion standard or the substantial evidence standard (see Jasmine D., supra, 78 Cal.App.4th at p. 1351 [practical differences between the two standards of review are not significant]), the result on appeal is the same. Substantial evidence supports the juvenile courts conclusion termination of parental rights would not cause R.C. detriment because Mother failed to demonstrate the benefit R.C. would receive from maintaining their relationship does not outweigh the benefit she will gain in a permanent home with adoptive parents. (See Autumn H., supra, 27 Cal.App.4th at p. 575 [parent bore burden of establishing termination of parental rights would greatly harm child]; accord Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), illustrate the compelling evidence necessary to establish the benefit exception. In Jerome D., the child seemed lonely, sad, and . . . the odd child out in his placement. (Jerome D.,supra, 84 Cal.App.4th at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother shared a strong and well[-]developed parent-child relationship and a close attachment approaching a primary bond. (Ibid.) The court concluded that keeping parental rights intact would prevent Jeromes position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half‑siblings] continued to enjoy visits and remained [the mothers] children. (Id. at p. 1208.)

In Amber M., the court reversed termination of parental rights where a psychologist, therapists, and the court-appointed special advocate uniformly concluded a beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption. (Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a strong primary bond with their mother, and the younger child was very strongly attached to her. (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)

Mother did not demonstrate that harm would have ensued from termination of parental rights similar to that demonstrated in Amber M. or Jerome D. At the permanency stage, the bond R.C. shares with Mother and the harm that might arise from terminating Mothers parental rights must be balanced against what is to be gained in a permanent stable home, and it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics added.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption.

Here, there is no direct evidence on the issue of whether benefits to R.C. of continuing a relationship with Mother outweigh the benefits of permanence through adoption. Dr. Maks bonding study concluded R.C. needs her mother to remain a part of her world[,] but as the juvenile court specifically noted the report did not address the potential detriment from disrupting their relationship. The juvenile court surmised Dr. Mak had assumed the proceedings were at a much earlier stage, i.e., reunification was still the goal, rather than being at the permanency stage. Thus, resolution of the issue depends on the inferences the juvenile court could permissibly draw from all the evidence.

Mothers reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), is misplaced. She cites the case for the proposition the parental benefit exception may apply, even in the absence of either day-to-day contact (id. at p. 299), or a primary attachment (ibid.). But S.B. recognized nonetheless the application of the parental benefit exception still requires evidence the child would be greatly harmed by severance of the natural parent/child relationship. (Id. at p. 297, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.)

In S.B., the father had been the childs primary caregiver for three years. (S.B.,supra, 164 Cal.App.4th at p. 298.) Following the childs detention due to the parents drug abuse, the father complied with every aspect of his case plan, including maintaining his sobriety and consistently visiting [the child]. (Id. at p. 293.) But the fathers emotional and physical health, compromised due to his years of combat service during the Vietnam War, interfered with his ability to reunify and the father conceded his current health problems impeded his ability to care for [the child] full time. (Id. at p. 294.) A bonding study indicated that because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship. (Id. at pp. 295-296.) The social worker admitted there would be some detriment to the child if parental rights were terminated. (Id. at p. 295.) The juvenile court found the father and the child had an emotionally significant relationship . . . . (Id. at p. 298.) But, because the child looked to her grandparents for her daily needs and nurturing, it concluded the parental benefit exception could not be applied. (Id. at pp. 296-297.) In reversing, the appellate court concluded application of the benefit exception did not depend on the childs primary attachment. Based on the evidence, including that the father maintained a parental relationship with [the child] through consistent contact and visitation[,] the fathers devotion to [the child] was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health[,] and the evidence the child loved her father, wanted their relationship to continue and derived some measure of benefit from his visits[,] . . . the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father]. (Id. at pp. 300-301.)

Unlike in S.B., here it cannot be said the only reasonable inference that can be drawn from the evidence is that R.C. would be greatly harmed if Mothers parental rights are terminated. Mother points to the many positive loving visits she and R.C. shared, the fact that R.C. obviously loves her and wants to continue to see her. But it is also uncontroverted that R.C. is completely bonded to the prospective adoptive parents, Mothers sister and her husband, she loves them dearly as well, and they have provided all the parenting to this young child for the past two years. R.C. identifies them as her parents, and has repeatedly stated she wishes to remain living with them. The parties stipulated the ramifications of adoption were explained to R.C., she understood them, and with that understanding, R.C. continued to express her desire to be adopted by her aunt and uncle.

It must be remembered that in the end, Mother did nothing to ensure she could reunify with R.C. during the reunification period, and the uncontroverted evidence is that she will be unable to care for R.C. any time soon. She consistently failed to drug test or tested positive, she completed none of the services that would have enabled her to achieve anything more than twice weekly monitored visitation with R.C., she violated parole and ended up reincarcerated. It was not until after the permanency hearing was set, that Mother became sober (seven months by the time of the permanency planning hearing) and enrolled in required classes. Mothers 30-year history of drug abuse, her completely unstable lifestyle throughout R.C.s life, her inability to adequately parent her older children, her reliance on her family to provide adequate care for R.C., stands in stark contrast to R.C.s life with her aunt and uncle.

While the record stands uncontroverted that R.Cs aunt and uncle certainly have not warmly embraced social services, and have been unenthusiastic about Mothers ability to reunify with R.C., it also stands uncontroverted the failings have been Mothers. Mother had every scheduled visit and telephone call permitted by her case plan. Warrior agreed the aunt and uncles attitude was the result of their frustration with Mother, because of her history, and they were motivated strictly by a desire to protect R.C. and provide her with stability. The record indicates the aunt and uncle are willing to permit R.C. to have contact with Mother in the future.

Mother argues for the first time on appeal that because R.C. was placed with relatives, the parental benefit exception may be applied without any showing of detriment by her. She relies upon the amendment to section 366.26, subdivision (c)(1)(A), that became effective in January 2008. As already noted above, under section 366.26, subdivision (c)(1), if at the permanency hearing, the juvenile court concludes the child is adoptable, it must terminate parental rights unless it finds an exception to adoption applies. Section 366.26, subdivision (c)(1)(A), creates a new exception: The child is living with a relative who is unable or unwilling to adopt the child because of 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 through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. . . . The new provision has no application herethe aunt and uncle are willing to adopt R.C.

Mother also argues the court could have achieved the desired stability for R.C., by ordering guardianship. The aunt and uncle stated they would keep R.C. with them even without adoption. But adoption is the preferred plan, and the court may not order guardianship unless it determines adoption is not appropriate. Once the court determines adoption is feasible, the less desirable and less permanent alternatives of guardianship and long-term foster care need not be pursued. [Citation.] (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799.)

DISPOSITION

The order terminating parental rights is affirmed.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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

R.C.s alleged father has not participated and is not a party to these proceedings.

[2] Mother contends the juvenile court abused its discretion by concluding visitation was not regular and consistent because, due to Mothers own acts, she was reincarcerated resulting in a decrease in quantity and quality visitation during that time. We need not address this contention because assuming the first prong was satisfied by Mothers having faithfully availed herself of all visits she was permitted (SSA conceded below it was), she has nonetheless failed to establish the second prong of the parental benefit exception.