Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD17904
McAdams, J.
The mother of a dependent child appeals the juvenile court order terminating her parental rights, citing three grounds: (1) failure to comply with the Indian Child Welfare Act; (2) representation at the hearing by an attorney who was not counsel of record; and (3) insufficient evidence to support the court’s finding concerning the mother-child relationship.
For reasons explained below, we reject the mother’s challenges. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves J.B. (the child). He was born in March 2002 to appellant B.W. (the mother).
The father, R.B., is not a party to this appeal. We therefore limit our factual and legal discussion to events and issues involving the mother.
Jurisdiction and Disposition
This dependency proceeding began in February 2007, when the child was placed in protective custody “due to caretaker absence.” The mother was arrested on an outstanding warrant and jailed, after leaving the child with friends who later called child welfare authorities.
On February 20, 2007, a petition was filed on the child’s behalf by the Santa Clara County Department of Family and Children’s Services (the Department). The petition sought dependency jurisdiction over the child pursuant to section 300, subdivision (b), of the Welfare and Institutions Code. In addition to caretaker absence, the petition alleged that the mother was currently abusing drugs, including methamphetamines, and had done so for 23 years. The petition also alleged that the mother has three older children, “who have been in the care of relatives due to the mother’s substance abuse.” The petition further alleged that the mother suffers from “mental health issues” but “has not taken her prescribed medications.”
Further unspecified statutory references are to the Welfare and Institutions Code.
The mother submitted on the petition. The court assumed jurisdiction over the child, removed him from the mother’s custody, and ordered the Department to provide family reunification services.
Placement
Initially, the child was placed in an emergency satellite foster home. In June 2007, the court authorized a change in placement to the maternal grandmother’s home. The maternal grandmother later advised the Department that she could not provide a permanent home for the child. In December 2007, the child was moved to a fost/adopt placement. He has remained there since.
Reunification
In October 2007, the court held the six-month review hearing. The court adopted the Department’s recommendation to continue the mother’s reunification services.
In a status review report dated April 2008, the Department recommended continuing the mother’s reunification services. But in an addendum report the following month, the Department sought termination of those services. As the addendum report explained, the Department had since learned that the mother had recently tested positive for alcohol, had missed another test, and had “excessive absences” from “her outpatient treatment and individual counseling.” In another addendum report, dated July 2008, the Department related that the mother “has been compliant and making steady progress” in her substance abuse treatment, but it assessed that the mother “continues to make little efforts in her therapy to address her underlying mental health issues” and likewise “continues to make little efforts in developing her living skills to prepare for future independence.”
In July 2008, the court held the 12-month review hearing. As recommended by the Department, the court terminated family reunification services for the mother.
Permanency Planning
The court conducted the contested permanency planning hearing on December 9, 2008. The Department submitted an assessment report and two addendum reports. The mother testified. At the conclusion of the hearing, the court terminated the mother’s parental rights and selected adoption as the child’s permanent plan.
Appeal
This appeal by the mother ensued. As noted above, the mother raises three arguments on appeal: (1) lack of compliance with the Indian Child Welfare Act; (2) representation by an attorney who was not counsel of record; and (3) rejection of the parental bond exception to adoption. She seeks reversal and remand for a new hearing under section 366.26.
The Department and the child both defend the order.
DISCUSSION
We address the mother’s three claims in turn. As to each, we begin with a brief overview of the legal principles that inform our analysis.
I. The Indian Child Welfare Act
A. Legal Principles
The Indian Child Welfare Act (ICWA) is a federal law, which is recognized and applied in California. (See, e.g., In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.)
1. Federal Law
Congress enacted the Indian Child Welfare Act in 1978. (See 25 U.S.C. § 1901 et seq.) The ICWA was enacted to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)
“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; accord, In re Alice M., supra, 161 Cal.App.4th at p. 1195.) In broad brush, the ICWA requires notice when there is reason to know that a child affected by certain custody proceedings may be an Indian child. (25 U.S.C. § 1912(a).)
2. California Law
California recognizes the ICWA’s notice requirements, both in statutes and in court rules. (§§ 224-224.6, 290.1-297; Cal. Rules of Court, rules 5.480-5.487.) “If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved” in the dependency proceeding, notice is required. (§ 224.2, subd. (a); In re Alice M., supra, 161 Cal.App.4th at p. 1197.)
3. Content of the Notice
As relevant here, under state statutory law, the notice must “include all of the following information: [¶] (A) The name, birthdate, and birthplace of the Indian child, if known. [¶] (B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known. [¶] (C) All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5).) The pertinent federal regulations require similar information, if known. (25 C.F.R. § 23.11(d) (2008); In re Alice M., supra, 161 Cal.App.4th at p. 1198; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 578.)
The ICWA notice must “contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child’s eligibility for membership.” (In re Cheyanne F., supra, 164 Cal.App.4th at p. 576.) Known information about the family member alleged to have Indian heritage is of particular importance to the investigating tribes. (Ibid.;In re Louis S. (2004) 117 Cal.App.4th 622, 631.) The agency must include all of the Indian heritage information that it has collected. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 996.)
As California courts recognize, “technical compliance with the Act’s notice requirements may not be required where there has been substantial compliance.” (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.)
4. Appellate Review of ICWA Notice Violations
“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.” (In re E.W. (2009) 170 Cal.App.4th 396, 403.) “We review the trial court’s findings for substantial evidence.” (Id. at p. 404.)
Failure to comply with ICWA does not necessarily warrant automatic reversal. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.) As in other areas of the law, a juvenile court order cannot be disturbed without a showing of prejudice from the claimed error. (Cal. Const., art. VI, § 13.) “Deficiencies in an ICWA notice are generally prejudicial but may be deemed harmless under some circumstances.” (In re E.W., supra, 170 Cal.App.4th at p. 402; see also, e.g., In re Cheyanne F., supra, 164 Cal.App.4th at p. 576; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414.) “An ICWA notice violation may be held harmless... when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions would not have applied [citations].” (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) Even when prejudicial error has been shown, the reviewing court may order conditional reversal with a limited remand to permit proper ICWA notice. (In re Veronica G., supra, 157 Cal.App.4th at p. 187; In re Alice M., supra, 161 Cal.App.4th at p. 1203.)
B. Application
1. Pertinent Facts
a. ICWA Inquiry and Notices
At the detention hearing held in February 2007, both parents reported possible Indian ancestry. The court acknowledged the potential application of the Indian Child Welfare Act, and it ordered the Department to give notice under the Act. Over the course of the dependency proceedings, the Department sent three sets of notices.
In March 2007, the Department sent notice to three Cherokee tribes, one Pawnee tribe, and the Bureau of Indian Affairs (BIA), advising them of the jurisdiction/disposition hearing scheduled for the following month. The notice identified the maternal great-grandfather as Ivan Pearl H., and the maternal great-great-grandfather as William H., but it contained no other information about those two ancestors.
More than a year later, in early June 2008, the Department sent notice to the same four tribes, concerning an upcoming interim hearing. This notice contained additional information about three maternal ancestors. (1) Regarding the maternal grandmother, Vicki K., the notice provided her name, address, birth date, and birth place; it indicated her tribal affiliation as Cherokee and Pawnee. (2) Concerning the maternal great-grandfather, Ivan Pearl H., the notice provided a former street address for him, which listed the city as San Jose, although the number, street, and zip code given matched the maternal grandmother’s San Diego address. According to the notice, Ivan Pearl H. was born “6/23/1911” in Carbondale, Ohio. (By contrast, the Department’s July 2008 addendum report reflected “DOB: 6/22/1911” for him, based on information attributed to the maternal grandmother.) As for his date and place of death, the notice stated: “No information available.” (By contrast, the Department’s July 2008 addendum report stated: “His place of death is San Diego but his date of death is unknown.”) (3) Regarding the maternal great-great-grandfather, William H., the notice indicated that he was born in Ohio.
In late June 2008, the Department again sent notice to the four tribes, this time noting the 12-month review hearing scheduled for the following month. In this notice, the address for the maternal great-grandfather, Ivan Pearl H., was corrected to show San Diego as the city where he formerly resided.
b. ICWA Finding
In late November 2008, the case was on calendar for an ICWA compliance hearing.
At that hearing, counsel for the Department asked the court “for an ICWA finding.” According to counsel: “The only concern that was raised was on number 4, the addresses. But we do have responses from all tribes. So I believe that certainly satisfies the notion that the tribes weren’t actually noticed because we did get responses.” Counsel further stated: “The report has all the responses, your honor.”
After a discussion about the tribes’ receipt of notice, the court asked: “Is there any objection to my finding that the child does not fall within the Indian Child Welfare Act?” The mother’s attorney answered: “No objection, your honor.” Counsel for the other parties likewise indicated that they had no objection. The court then made an express finding that the child “does not fall within the Indian Child Welfare Act as evidenced by the paperwork provided to me by the Department of Family and Children Services.”
2. Contentions
In this court, the mother claims two errors in the content of the ICWA notices. She asserts: “It was error to fail to identify June 22, 1911, as the date of birth for Ivan Pearl H[.] on the ICWA notices that were sent in June 2008, since the undisputed evidence shows that the Department had been informed that this was his date of birth and the Department had a duty to provide all available information about Indian ancestors. It was also error to fail to identify where he died, since this information was also available.” The mother acknowledges that these errors “may not be as egregious as the errors” in other cases where reversal was ordered. But the mother nevertheless argues that “this court cannot find that the error was harmless beyond a reasonable doubt.”
The Department disagrees. As to the notices, the Department first maintains that the one-day discrepancy in the great-grandfather’s birth date “would be unlikely to render a tribe unable to identify a tribal member or a potential tribal member” – particularly given his “distinctive” name – and that there is no evidence that the ICWA notice gives the incorrect date anyway. It also characterizes the omission of this ancestor’s place of death as a “relatively trivial oversight” unlikely to affect the tribe’s identification process. As for the juvenile court’s finding that ICWA does not apply, the Department contends that substantial evidence supports it.
The child joins the Department’s arguments.
3. Analysis
In this case, we conclude, the record reflects substantial compliance with ICWA’s notice requirements such that any error or omission is harmless. We further conclude that the record contains sufficient evidence to support the court’s finding that ICWA does not apply.
a. Compliance with ICWA Notice Requirements
The mother concedes that the Department “did substantially comply with the statutory requirements,” but she argues that “the error was not harmless beyond a reasonable doubt.” We disagree.
Contrary to the mother’s contention, harmlessness need not be shown beyond a reasonable doubt. The cases that the mother offers in support of that contention are inapposite. (In re Angela C. (2002) 99 Cal.App.4th 389, 394 [failure to give notice of hearing where parental rights were terminated is reviewed “to determine whether the error was harmless beyond a reasonable doubt”]; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 [failure to give notice of “the jurisdictional and dispositional hearing or the hearing to appoint a guardian ad litem” is reviewed under that same standard].)
For ICWA notice violations, the Watson standard applies. (In re S.B., supra, 130 Cal.App.4th at p. 1162, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Under that standard, an ICWA notice deficiency “must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.” (In re S.B., at p. 1162.) The proper question, therefore, is whether the inclusion of more complete, accurate information in the ICWA notice likely would “have led to a different determination.” (In re Brandon T., supra, 164 Cal.App.4th at p. 1415; accord, In re Cheyanne F., supra, 164 Cal.App.4th at p. 577 [finding “no basis upon which to conclude that the outcome would have been different” had the ICWA notices contained more complete information].)
Applying that standard to the factual circumstances presented here, the two claimed deficiencies in the ICWA notices are harmless.
We first address the asserted error in the maternal great-grandfather’s birth date. As noted above, the record reflects a one-day discrepancy, with the ICWA notice showing the ancestor’s birth date as June 22, 1911, while the Department’s report gives it as June 23, 1911. As the Department observes, however, the record fails to show that it is the ICWA notice – as opposed to the Department report – that contains the wrong date. The mother thus has failed to show error, much less prejudice. (See In re Gerardo A., supra, 119 Cal.App.4th at p. 995 [on silent record, parent’s ICWA argument was mere “speculation”].)
We next consider the omission of the maternal great-grandfather’s place of death. As the ICWA notices reflect, the deceased ancestor’s only former address was in San Diego, at the same number and street where his daughter currently resides, apparently with his surviving widow. That information implies that the ancestor died in San Diego. Though it does not excuse omission of the ancestor’s known place of death in San Diego, inferentially, that information helps to fill the gap. (Cf., In re Brandon T., supra, 164 Cal.App.4th at pp. 1414-1415 [relying on inference to support conclusion that ICWA notice error was harmless].) Under these circumstances, the mother has not shown that including this omitted information would “have led to a different determination.” (Id. at p. 1415.)
b. Evidentiary Support for ICWA Finding
Here, the evidentiary record supports the juvenile court’s finding that ICWA does not apply. At the November 2008 ICWA compliance hearing, the court had before it: (1) the three sets of ICWA notices sent in 2007 and 2008; (2) the return receipts; and (3) the responses received from the tribes and from the BIA. After inviting objections, and based on that documentation, the court made a finding “that the child does not fall within” ICWA. The documentation before the court constitutes substantial evidence in support of its determination that ICWA does not apply here. (In re E.W., supra, 170 Cal.App.4th at p. 404 [implicit determination that ICWA did not apply was supported by “social worker’s reports” that “included documentation of the notices sent and the negative responses received from the tribes”].)
In sum, the mother’s ICWA challenges provide no basis for reversal.
II. Representation
A. Legal Principles
1. Right to Appointed Dependency Counsel
An indigent parent in a dependency proceeding has the statutory right to appointed counsel where an out-of-home placement for the child is at issue. (§ 317, subd. (b); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659; see Cal. Rules of Court, rule 5.534 (g).) “In addition to these statutory rights, an indigent parent may in some cases have a due process right to counsel where the termination of parental rights may result.” (In re Kristin H., at p. 1659.) Representation is one of the constitutional safeguards built into the statutory dependency scheme. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308; In re Julian L. (1998) 67 Cal.App.4th 204, 207.)
“The counsel appointed by the court shall represent the parent... at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent... unless relieved by the court upon the substitution of other counsel or for cause.” (§ 317, subd. (d); In re Ronald R. (1995) 37 Cal.App.4th 1186, 1193.)
2. Substitution of Counsel
As a general rule in civil proceedings, “the substitution of an attorney of record can only be made in the manner provided in section 284, Code of Civil Procedure.” (People ex rel. Dept. Pub. Wks. v. Hook (1967) 248 Cal.App.2d 618, 623; see also, e.g., Davis v. Rudolph (1947) 80 Cal.App.2d 397, 402.) That section provides: “The attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: [¶] 1. Upon the consent of both client and attorney, filed with the clerk or entered upon the minutes. [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)
“The real purpose of the procedure provided by Code of Civil Procedure, section 284, is to have the record of representation clear so that the parties may be certain with whom they are authorized to deal.” (People v. Metrim Corp. (1960) 187 Cal.App.2d 289, 294; accord, McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 965.) “The function of the notice is that all parties may be apprised of what is happening and if there is some lawful reason why the new attorney ought not to be recognized as the attorney of record, the person having knowledge of such defect might appear and be heard.” (People v. Metrim Corp., at p. 294.)
“The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case.” (Epley v. Califro (1958) 49 Cal.2d 849, 854; see also, e.g., Wells Fargo & Co. v. City etc. of S. F. (1944) 25 Cal.2d 37, 42-43; Board of Commissioners v. Younger (1865) 29 Cal. 147, 149.)
B. Application
1. Pertinent Facts
Starting at the detention hearing in February 2007, the mother was represented by Dependency Legal Services (DLS). Several individual attorneys associated with DLS appeared for the mother over the course of the dependency proceedings from February 2007 to July 2008.
On September 30, 2008, Hon. Katherine Lucero, as supervising judge of the Santa Clara County juvenile dependency court, issued a “Standing Order” substituting Dependency Advocacy Center as counsel for parents and others previously represented by Santa Clara Juvenile Defenders. As reflected in the Standing Order, Family Legal Advocates took the place of Dependency Legal Services. There is no evidence that the juvenile court made a particularized substitution order in this case.
The first hearing at which the mother’s new counsel appeared was on November 3, 2008, when the court scheduled further hearings. The minute order for that hearing indicates that the mother was represented by “Jennifer Henig-Fla.” But the section of the preprinted minute order entitled “Legal Representation” was left blank, with nothing to indicate a change in representation.
According to the parties, “Fla” is a reference to Family Legal Advocates, identified in the Standing Order as the new attorneys for clients previously represented by Dependency Legal Services.
The Department’s report for the section 366.26 hearing, which was dated November 3, 2008, and filed December 9, 2008, states that the mother is represented by her former attorneys, Dependency Legal Services. The Department filed two addendum reports on December 9, 2008, but neither one corrects the earlier statement regarding the mother’s representation.
There is no evidence that the mother was provided with actual notice of the Standing Order or that she was otherwise advised of the change in her counsel.
The mother’s notice of appeal was filed February 6, 2009. It states: “I appeal the findings in the court on Dec. 8, 2008; order was to terminate my parental rights and have my child permanently adopted....”
2. Contentions
The mother challenges the Standing Order. She contends that the exclusive procedure for attorney substitution is provided in the Code of Civil Procedure, sections 284 and 285, and since the court failed to comply with the requirements of those provisions, there was no proper attorney substitution. Absent proper substitution, the mother asserts, “the court lacks jurisdiction to proceed in the matter, and any orders it makes are void.” And in the face of a void order, the mother contends, there is no need to demonstrate prejudice.
In response, the Department first raises several threshold issues, questioning both the timeliness of the mother’s challenge to the Standing Order and her standing to appeal on that issue. The Department next defends the Standing Order on the merits, asserting that it represents a legitimate exercise of the court’s inherent powers, that it is not in excess of the court’s jurisdiction, and that the mother has suffered no prejudice in any event. The mother disputes the Department’s arguments in her reply brief.
The child also defends the Standing Order. He first argues that “appellant is wrong in asserting that the Code of Civil Procedure sets forth the exclusive procedure for relieving and substituting in new counsel in dependency cases.” Instead, the child maintains, “Welfare and Institutions Code section 317 and its subdivisions specify the procedures for appointment of counsel for parents and children in the dependency court.” Under that and other authority, the child posits, the Standing Order is legitimate. Finally, the child urges, if there was any violation of the mother’s statutory right to counsel, it was harmless.
3. Analysis
Framed by the parties’ contentions, our analysis will proceed in three steps. First, we consider the threshold issue of whether the mother’s claim is cognizable, ultimately reaching the mother’s claims on the merits. Second, we address the validity of the Standing Order. Operating on the assumption that the Standing Order is procedurally deficient, we nevertheless conclude that the juvenile court was not divested of jurisdiction thereby such that its subsequent orders were void. In the third and final step of our analysis, we determine that the mother was not prejudiced by the order.
a. Cognizability of the Mother’s Challenge
The Department asserts that the mother did not challenge the Standing Order in time and that the “only issue identified for review” in the notice of appeal was termination of her parental rights. Rejecting those arguments, we will consider the merits of the mother’s challenge to the change in her representation.
As noted above, the Department also questions the mother’s standing to appeal the order, arguing that she is not aggrieved by the order since she has shown no injury. As we see it, the issue is more properly characterized as one of prejudice, not standing. We discuss prejudice infra.
The statute governing dependency appeals provides: “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.” (§ 395, subd. (a)(1).) “The term ‘judgment’ in the statute refers to the dispositional order in a dependency proceeding.” (In re Aaron R. (2005) 130 Cal.App.4th 697, 702.) “Thus, pursuant to section 395, the juvenile court’s dispositional and following orders are directly appealable, with the exception of an order setting a selection and implementation hearing under section 366.26, which is reviewable only by petition for extraordinary writ.” (In re Melinda K. (2004) 116 Cal.App.4th 1147, 1153.) An appeal must be brought within 60 days from the filing of the challenged order. (Cal. Rules of Court, rule 8.400 (d).) “An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.” (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) This “rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’ through a parent’s attacks on earlier orders.” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) Consistent with this policy, the Legislature has “placed an increasing emphasis on efficiency and expediency in the process.” (In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.)
Under the circumstances of this case, we decline to treat the Standing Order as a separately appealable order placed beyond our review by the passage of time. (Contra, In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251 [holding that an order denying substitution of counsel at the § 366.26 hearing was separately appealable and that the appeal from that order was untimely].) For one thing, if Government Code section 68071 applies in the manner asserted by the mother, the effective date of the Standing Order would be delayed to January 2009. (Gov. Code, § 68071 [establishing delayed effectiveness dates for local rules].) Even if that section does not apply, there is authority for the proposition that the time for filing the appeal does not begin until there has been a judicial “pronouncement” of the challenged order. (In re Conservatorship of Ben C. (2006) 137 Cal.App.4th 689, 695 [appeal period did not start to run until attorneys received actual notice of order, where the court made no “oral pronouncement of the order in open court” and there was no proof that the order was “served on or mailed to any of the [appellants] or their attorney”].) Moreover, due process considerations warrant our review of the mother’s representation claims in this appeal, given the absence of any evidence that she was provided actual notice of the Standing Order or of her right to seek review of that order. (Cf. In re Cathina W. (1998) 68 Cal.App.4th 716, 724, 722 [where “the mother had not been notified that she must seek relief by writ petition,” the court would address “the merits” of the challenged order setting the § 366.26 hearing]; In re Gregory M. (1977) 68 Cal.App.3d 1085, 1090 [where delinquent minor was not advised of his appeal rights, the court would “consider errors alleged to have occurred” at earlier hearings].)
Nor will we treat the mother’s representation claims as outside the scope of her notice of appeal. “The notice of appeal must be liberally construed and is sufficient if it identifies the particular... order being appealed.” (Cal. Rules of Court, rule 8.821 (a)(2); In re Malcolm D. (1996) 42 Cal.App.4th 904, 910.) Thus, a court may “liberally construe a parent’s notice of appeal from an order terminating parental rights to encompass” other issues, so long as review of those issues is not foreclosed as untimely. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1451 [considering the nearly-concurrent denial of the parent’s § 388 petition, even though the notice of appeal identified only the order terminating parental rights]; but see In re Miracle M. (2008) 160 Cal.App.4th 834, 846 [finding the appellant’s challenge to the court’s ICWA determination outside the scope of the notice of appeal].) In the context of this case, our decision to consider the mother’s representation claims as part of her appeal from the order terminating her parental rights does not prejudice the Department, nor does it undermine the important policy of finality and expedition for the child.
We therefore proceed to the merits of the mother’s challenge concerning the substitution of counsel. As noted above, we first address the validity of the Standing Order; we then consider the question of prejudice.
b. Validity of the Challenged Order
Our assessment of the validity of the Standing Order proceeds in three steps. First, we assume that the statutory procedure for attorney substitution applies in the dependency context. Next, we assume that the lack of compliance with the statutory requirements constitutes error. Finally, we conclude that the assumed error did not divest the juvenile court of jurisdiction, such that its ensuing orders were void.
(i) Application of the Statutory Substitution Procedures to Dependency
On the general question of what statutes apply in the dependency context, courts have observed: “Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. [Citations.] Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply.” (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711, fn. omitted; accord, In re Shelly J. (1998) 68 Cal.App.4th 322, 328.) “However, in the absence of a dispositive provision in the Welfare and Institutions Code, we may look to these requirements for guidance.” (In re Josiah Z. (2005) 36 Cal.4th 664, 679.) In other words, “application of a statute outside the Welfare and Institutions Code... is not necessarily barred from dependency proceedings.” (In re Claudia E. (2008) 163 Cal.App.4th 627, 636.) To the contrary, such application is proper “if the statute applies to special proceedings such as juvenile dependency cases and if it is consistent with the overall purposes of the juvenile dependency system.” (In re David H. (2008) 165 Cal.App.4th 1626, 1639.)
Concerning the more specific question of attorney substitution, a number of courts have applied the procedural requirements of Code of Civil Procedure section 284 in the dependency context. (See, e.g., In re Julian L., supra, 67 Cal.App.4th at pp. 207-208; In re Malcolm D., supra, 42 Cal.App.4th at p. 914; In re Ronald R., supra, 37 Cal.App.4th at p. 1194; In re Andrew S. (1994) 27 Cal.App.4th 541, 546-547.) But at least one court has questioned wholesale application of all accompanying court rules. (In re Ronald R., at p. 1194, fn. 6; see Cal. Rules of Court, rule 3.1103 (a)(1) [rules governing law and motion do not apply to “causes arising under the Welfare and Institutions Code”].)
For purposes of our analysis in this case, we will assume (without deciding) that the attorney substitution procedures set forth in Code of Civil Procedure section 284 apply in the dependency context.
(ii) Lack of Compliance with Statutory Procedure
It is undisputed that there was no compliance with Code of Civil Procedure section 284. For that reason, we assume (without deciding) that the use of the Standing Order to substitute counsel is procedurally improper. We thus proceed on the assumption that the Standing Order is not the “functional equivalent” of the statutory procedure, as the Department contends. And we proceed on the further assumption that the Standing Order cannot be justified as an exercise of the court’s inherent administrative powers, as the both the Department and the child suggest. (See Code Civ. Proc., § 187 [court may adopt “any suitable process or mode of proceeding” if a specific procedure is not specified by statute]; Gov. Code, § 68070, subd. (a) [courts may adopt local rules, so long as they are not inconsistent with statutes]; Los Angeles County Department etc. v. Superior Court (1996) 51 Cal.App.4th 1257, 1267 [local rule for appointment of independent counsel for children in dependency proceedings upheld as consistent with § 317]; In re Jeanette H. (1990) 225 Cal.App.3d 25, 34 [local rule requiring exchange of witness lists in dependency trials justified “under the court’s inherent power to manage its cases and its duty to ensure expeditious proceedings in juvenile matters”]. But see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1352 [“local courts may not create their own rules of evidence and procedure in conflict with statewide statutes”]; Hock v. Superior Court (1990) 221 Cal.App.3d 670, 674 [local rule that required leave of court for substitution of counsel impermissibly conflicted with provisions of Code Civ. Proc. § 284]; see also, e.g., Cal. Rules of Court, rule 10.613 [defining local rules and setting forth the procedures for promulgating them]; Hall v. Superior Court (2005) 133 Cal.App.4th 908, 915 [invalidating court’s policy, which “was not adopted or properly promulgated in accordance with the statutes governing the promulgation and adoption of local rules”].)
In sum, we assume that Code of Civil Procedure section 284 applies in this dependency proceeding and that lack of compliance with its requirements renders the Standing Order procedurally defective. Even with the aid of the foregoing assumptions, however, the mother’s contentions concerning voidness cannot be sustained, as we now explain.
(iii) Effect on the Court’s Jurisdiction
Contrary to the mother’s claims, the assumed procedural deficiency in substituting counsel did not render the juvenile court’s subsequent orders void as acts in excess of the court’s fundamental jurisdiction.
“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Abelleira v. District Court of Appeal. (1941) 17 Cal.2d 280, 288.) “Thus, where the action of a court is in violation of constitutional restrictions upon its power, it has been held that the court has exceeded its authority.” (Redlands etc. Sch. Dist. v. Superior Court (1942) 20 Cal.2d 348, 359.) “Similarly, there are certain procedural rules developed by the courts which operate as a limitation on their power and are so fundamental in their nature that any violation thereof constitutes an excess of jurisdiction for the purposes of certiorari or prohibition.” (Id. at pp. 359-360.) “But not every violation of a statute constitutes excess of jurisdiction on the part of a court.” (Id. at p. 360.) “Where, as here, the statute does not restrict the power of the court... the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.” (Ibid.)
The mother cites three cases in support of her voidness claim, none of which assists her: In re Marriage of Park (1980) 27 Cal.3d 337; Wells Fargo & Co. v. City etc. of S. F., supra, 25 Cal.2d 37; and Epley v. Califro, supra, 49 Cal.2d 849. As all three cases recognize, only the attorney of record may properly act for a party. (In re Marriage of Park, at p. 343; Wells Fargo & Co. v. City etc. of S. F., at p. 42; Epley v. Califro, at p. 854.) Contrary to the mother’s claim, however, none of the three cases holds that the trial court’s failure to adhere to proper substitution procedures rendered its judgment void.
In Marriage of Park, the wife’s “involuntary deportation rendered her incapable of attending her dissolution proceeding.” (In re Marriage of Park, supra, 27 Cal.3d at p. 343.) “Her original attorney did not file a formal substitution of attorneys pursuant to Code of Civil Procedure section 284. Further, Mrs. Park never consented to the new attorney’s representation.” (Ibid.) Moreover, “the new attorney was not associated on the case. Therefore, the trial court should not have so recognized him. As a result, the court was without authority to enter judgment other than by default.” (Id. at p. 344.) Despite its comment on the limits of the trial court’s authority, the high court did not find a lack of fundamental jurisdiction.
The second case cited by the mother, Wells Fargo, involved an association of attorneys, not a substitution. (Wells Fargo & Co. v. City etc. of S. F., supra, 25 Cal.2d at p. 43.) As the court said there: “The requirements of a substitution as prescribed in sections 284 and 285 of the Code of Civil Procedure are not applicable unless the associated attorney attempts to act as the sole attorney rather than as an associated attorney and to convert his association into a substitution for the attorney of record.” (Ibid.) Since counsel “did not claim to act as sole attorney for plaintiff,” his conduct “did not depart from the proper course for an associated attorney.” (Ibid.) Thus, in Wells Fargo, there was no error, much less a judicial act in excess of jurisdiction.
In the mother’s third cited case, Epley, the appellant successfully challenged an order that vacated an earlier dismissal. (Epley v. Califro, supra, 49 Cal.2d at pp. 851, 855.) The pertinent facts included these: that the defendants – including both the appellant and attorney Thomas Califro – were represented by a firm, which had interposed a demurrer to the complaint; “that more than three years had elapsed from the date of service of summons; that plaintiff failed to have judgment entered; that no stipulation for extension of time was on file; that no answer was filed by the attorneys of record for the defendants, and that no authority appeared for Thomas T. Califro to file an answer and cross-complaint on behalf of his codefendants.” (Id. at p. 853.) A dismissal ordered in July 1955 was set aside the following month “without notice on the ground that it was inadvertently made.” (Ibid.) The appellant challenged the later order as “in excess of the court’s jurisdiction” and “void.” (Ibid.) The court did not describe its decision in those terms, however. Rather, the court said this: “In view of the factual situation appearing in the record, the trial court had no discretion but to dismiss the action against the appealing defendant.” (Id. at pp. 854-855.) Epley thus does not stand for the proposition that an order premised on a procedurally defective substitution is void as in excess of jurisdiction.
Other decisions involving attorney substitution demonstrate that failure to comply with the governing procedures does not result in the court’s loss of fundamental jurisdiction.
One such decision is Crocker National Bank v. O’Donnell (1981) 115 Cal.App.3d 264. In that case, “there was a change in the name of the law firm representing respondent, and no formal substitution of attorneys had been filed by the time of the hearing on the motion... for appointment of a receiver.” (Id. at p. 268.) Counsel appearing at the hearing “explained that the law firm had recently split, that his firm represented 25 banks and had 6,000 cases pending, and for that reason might not yet have filed the many necessary substitutions of attorneys, but that all the attorneys working on this file were involved in the change; that he did not think a technicality like that should be determinative; and that if the court desired he could provide a substitution of attorneys within 24 hours.” (Ibid.) The trial court “impliedly overruled appellant’s objection and then heard arguments on the merits.” (Ibid.) On appeal, the court stated: “Appellant fails to show he was misled or prejudiced by the lack of a formal substitution. Considering all the circumstances, the court did not abuse its discretion in recognizing” substituted counsel. (Ibid.)
Another example is Davis v. Rudolph, supra, 80 Cal.App.2d 397. In that case, a judgment was assigned though without any formal substitution of parties or attorneys. (Id. at p. 400.) On appeal, the defendant contended that “the judgment was void on its face,... in that [the assignee’s attorney] had no standing in the court below, not being attorney of record, and his client... not having been substituted as a party of record.” (Id. at pp. 400-401.) The court stated: “If that judgment is completely void,... the court’s action setting it aside must be affirmed. If, on the other hand, the judgment was a mere irregularity, a different situation results.” (Id. at p. 401.) The court concluded that the assignee’s failure “to get a formal substitution of attorneys was a mere irregularity, as to which the defendant cannot complain....” (Id. at p. 404.) The court further observed: “While the proceedings by an attorney not of record might be irregular, still defendant was not injured thereby.” (Id. at p. 403.)
The same principle holds true even in cases involving a criminal defendant’s constitutional right to counsel. “While it is error not to comply with section 284 in connection with the substitution of counsel in criminal cases [citation] such error does not always result in a deprivation of one’s constitutional right to counsel or require a reversal.” (People v. Ward (1972) 27 Cal.App.3d 218, 234.)
We therefore reject the mother’s claim that the Standing Order for substituted counsel was an act in excess of jurisdiction rendering subsequent orders in this case void.
Given that conclusion, we necessarily reject the mother’s argument that since the order was void, “there was no need to show prejudice.” We turn to the question of prejudice now.
c. Prejudice
“The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) The California Supreme Court has “interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.” (Id. at p. 60, citing People v. Watson, supra, 46 Cal.2d at p. 836.) Moreover, our high court has reasoned, it is “appropriate to apply the same test in dependency matters.” (In re Celine R.,at p. 60.) That means, for example, that a reviewing “court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (Ibid.)
The same prejudice standard applies to the representation of parents in dependency proceedings. Thus, “the violation of a parent’s statutory right to counsel in dependency proceedings is reviewed under” the Watson standard. (In re Ronald R., supra, 37 Cal.App.4th at p. 1195, citing People v. Watson, supra, 46 Cal.2d at p. 836; see also, e.g., In re David H., supra, 165 Cal.App.4th at p. 1634, fn. 9.)
Applying that standard here, we find no prejudice.
In this case, there is no claim and no evidence that the mother was “prejudiced by the lack of a formal substitution.” (Crocker National Bank v. O’Donnell, supra, 115 Cal.App.3d at p. 268.) There is no contention or indication that the outcome would have been different had the court undertaken the formal substitution process envisioned by Code of Civil Procedure section 284.
Furthermore, apart from her procedural challenges, the mother does not claim or show that the attorney change itself was erroneous. As both the child and the Department point out, consumers of legal services provided at public expense generally have no right to be represented by a particular attorney or firm. (People v. Jones (2004) 33 Cal.4th 234, 244 [“the state Constitution does not give an indigent defendant the right to select a court-appointed attorney”]; People v. Sapp (2003) 31 Cal.4th 240, 256 [“defendant suffered no infringement of his constitutional right to counsel because the trial court refused to appoint the [desired] attorney as defendant’s counsel”]; cf. In re Andrew S., supra, 27 Cal.App.4th at pp. 546-547 [parent had statutory right under § 317 “to be represented by the same attorney (‘vertical representation’) unless that attorney was removed as provided in the statute itself”].) In this case, the mother does not assert entitlement to continued representation from her prior firm. The change of counsel, in and of itself, thus does not constitute error.
Nor does the mother explicitly assert that the change in attorneys prejudiced her. In her opening brief, the mother makes no claim that her new counsel was unprepared or otherwise failed to represent her properly. (In re David H., supra, 165 Cal.App.4th at p. 1636 [the appellant failed to show “that two weeks was an insufficient time to prepare, and the record on appeal does not support such a finding”]; cf. In re Marriage of Park, supra, 27 Cal.3d at p. 344 [as “a further basis” for concluding that the wife was deprived of a fair hearing, the court cited “inadequacy of the new attorney’s representation” in that new counsel never consulted with the wife, was unaware of her involuntary deportation, and failed to investigate community assets].)
In her reply brief, however, the mother appears to take a different tack. There, she states that her new counsel “did little to assist” her in showing the court “that she had visited her son regularly and that the child benefitted from his relationship with his mother.” According to the mother, her counsel “did not cross examine the social worker who filed [a] biased and misleading report. She called the mother as a witness, but she did not corroborate the mother’s testimony with prior social studies, which had been placed in evidence when other judges were presiding in this case. She did not present any argument, despite the fact that the opposing attorneys presented arguments. She did not object when the judge found that visits had been merely ‘sporadic.’ ”
The record belies this particular complaint. In response to the court’s invitation to present argument, and after an off-the-record consultation with the mother, counsel addressed the court at some length, specifically urging application of the parental bond exception to adoption.
As the mother recognizes, we generally do not consider points first raised in an appellant’s reply brief. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.) To the extent that the mother is belatedly asserting substandard representation, we reject the argument on that procedural basis alone.
Furthermore, the mother does not argue or demonstrate that the outcome likely would have been different had counsel performed differently. (See In re David H., supra, 165 Cal.App.4th at p. 1634, fn. 9 [“the parent must show there was a reasonable probability of a more favorable outcome if she had been represented at the hearing”].) In any event, it appears from this record that the mother was continuously and competently represented.
As more particularly relevant to the issues raised here, we note early efforts by the mother’s new counsel to garner evidence supporting the parental bond. At counsel’s first appearance for the mother in November 2003, she successfully requested discovery of “social worker notes, visitation logs,” and other documentation. At that same hearing, counsel also succeeded in clarifying that the mother was entitled to continued monthly visitation.
This is not a case where the hearing was rendered fundamentally unfair because the court failed “to make a timely appointment of substitute counsel.” (In re Julian L., supra, 67 Cal.App.4th at p. 208.) Nor is this a case where the mother was “wrongfully deprived of counsel because her counsel did not notice a motion to be relieved and because the trial court granted the motion and proceeded with the case without notifying her.” (In re Andrew S., supra, 27 Cal.App.4th at p. 546.) In sum, even assuming that “the court did violate the mother’s statutory right to counsel, she suffered no prejudice by the error.” (In re Malcolm D., supra, 42 Cal.App.4th at p. 913.)
III. Parental Bond Exception to Adoption
A. Legal Principles
1. Permanency Planning
At the appropriate juncture in dependency proceedings, the juvenile court is required to select and implement a permanent plan for a dependent child. (§ 366.26; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) “Where the trial court finds that the child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of [the statutory] exceptions.” (In re Jamie R. (2001) 90 Cal.App.4th 766, 773; see also, e.g., In re S.B. (2008) 164 Cal.App.4th 289, 297.)
As relevant here, the statute provides an exception to adoption in cases of a demonstrated parental bond resulting in a beneficial parent-child relationship. (§ 366.26, subd. (c)(1)(B)(i).) Parents seeking to avoid the termination of their parental rights based on the parent-child relationship bear the burden of proving that the statutory exception applies to them. (In re Jamie R., supra, 90 Cal.App.4th at p. 773.)
2. Appellate Review
When the issue on appeal is the termination of parental rights, the requisite case-by-case assessment of relevant circumstances generally requires a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Review in such cases is deferential. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) We view the evidence in the light most favorable to the order. (In re Autumn H., at p. 576.) The appellant has the burden of showing that the challenged order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Application
1. Pertinent Facts
The child lived with the mother from his birth in March 2002 until these proceedings were instituted in February 2007.
In April and May 2007, the mother had weekly supervised visits, which were generally enjoyable. After June 2007, when the child was placed with his maternal grandmother in San Diego, the mother had monthly supervised visits, which continued to be enjoyable. Starting in January 2008, when the child was placed with the fost/adopt family, the mother continued to have monthly supervised visits.
In August 2008, the monthly visit was cut short following the mother’s angry outburst. According to the Department’s reports, there were no visits thereafter because the mother failed to contact the social worker and her whereabouts were unknown. According to the mother’s testimony, there were no visits thereafter because the social worker said “several times that it was [the mother’s] last visit indeed.” In early November 2008, at the behest of the mother’s attorney, the court confirmed that the “ongoing order” was for monthly visitation and it ordered “at least one visit between now and the next hearing date.”
In late November, after discussing scheduling with the mother and with the foster family, the social worker left a telephone message for the mother with the time and place of the visit, which was scheduled for December 6, 2008. The mother failed to show up for the visit. The mother testified that she “never did receive” the message, though she felt “sure it [was] on [her] phone somewhere....”
In its ruling at the December 2008 hearing, the court acknowledged that the mother “deeply loves” the child and that “he cares for her,” but it nevertheless concluded that “the benefits of the adoption here so outweigh the relationship between [the child] and his mother and his need for long-term stability and a loving family is really overriding at this point.” The court found that the child’s need for permanency outweighed the “fairly sporadic connection that he has with his mother through the sporadic visits.”
2. Contentions
According to the mother, the court’s “finding is not supported by substantial evidence. The evidence was undisputed that appellant had been the primary caretaker for [the child] for the first five years of his life. It was undisputed that this had resulted in a strong, positive bond.” The mother further asserts that her “visits were not sporadic.” She maintains: “It was undisputed that the mother had visited regularly, even when she had to travel from San Jose to San Diego or from San Jose to Fresno for visits.” Thus, the mother urges, “the judge was clearly wrong when she found that visits had been sporadic, or irregular, resulting in a sporadic connection.”
The child responds that “appropriate visits are not enough to demonstrate a parental relationship” sufficient to satisfy the statutory exception to adoption. He maintains that the court did not err in declining to apply the exception.
Like the child, the Department asserts that the parental bond exception to adoption does not apply, regardless of how the mother’s visits are characterized. According to the Department: “Even if the court mistakenly labeled the mother’s visitation as ‘sporadic,’ it is judicial action that is the subject of review, not judicial reasoning.”
In her reply brief, the mother acknowledges that the Department correctly states the “general rule” on the limits of our review, but she nevertheless maintains that this case presents an exception, since the court’s “erroneous finding about visitation” is tied to its use of “incorrect means” in deciding to reject the statutory exception.
3. Analysis
The “parental bond” or “beneficial relationship” exception to adoption is contained in section 366.26, subdivision (c)(1)(B)(i). As developed in the case law, the exception comprises three essential elements: regular visitation and contact; a parental role; and a relationship that “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., supra, 27 Cal.App.4th at p. 575.)
That provision reads in pertinent part as follows: “(c)(1) If the court determines... that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption... unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (i) The 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).)
a. Visitation
Here, the mother’s appellate arguments focus solely on the first element, visitation and contact. Her challenge is unavailing.
As the Department acknowledged below, and as the child confirms on appeal, the mother’s visits generally were regular and appropriate, at least until August 2008. Nevertheless, the juvenile court found that the child’s “need for permanency and a permanent family and home outweigh the at this point fairly sporadic connection that he has with his mother through the sporadic visits.”
The mother attacks the sporadic visitation finding as unsupported, but she offers no persuasive ground for reversal. In and of itself, an erroneous finding does not warrant reversal. (In re Melinda K., supra, 116 Cal.App.4th at pp. 1153-1154 [a party may not “appeal a finding in the absence of an adverse order resulting from that finding”].) And where the record supports the challenged order, we will not reverse merely because “one or more of several findings made by the juvenile court is unsupported by substantial evidence.” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.) The law does not require reversal and “remand to the trial court for redetermination of the ultimate issue if some but not all of a court’s findings... are in error.” (In re Steven A. (1991) 230 Cal.App.3d 349, 353 [affirming termination of parental rights].)
In this case, the mother complains that the “erroneous finding about visitation”– combined with “an unfair social study” – “led the judge to conclude that the mother/child bond was ‘sporadic.’ ” From this complaint alone, the mother concludes that “the judge used the incorrect means to reach her decision,” and that reversal is in order.
The mother offers neither logic nor authority to support her bid for reversal, and we reject it. Having reviewed the record, we find nothing improper in the court’s decision process. Even if we agreed with the mother that the Department’s report was “unfair” or one-sided in reporting on her visitation and her relationship with the child, that report was not the only information before the court on those subjects. The mother testified about the visits, describing the kinds of activities that she and the child enjoyed together and stating: “They were happy visits.” The Department echoed that theme in its closing argument, saying: “Absolutely [the mother] has a great time, as does [the child] when they are visiting together. She did up until August, yes, make her visits consistently with him.” As for the parent-child relationship, the mother’s attorney argued that there was a “strong mother and son bond” and the Department’s “reports have consistently stated that this is a mother who loves her son....” The child’s attorney acknowledged as “undeniable” that the mother “loves her son” and that “mother and son do have a bond, and a bond that’s warranted in love....” The court plainly was attentive to these statements. In pronouncing its ruling, the court explicitly recognized the mother’s “deep love for her son and certainly his connection to her.” On this record, we find no basis for crediting the mother’s complaints about the “means” used by the court to reach its decision.
Moreover, the visitation finding itself provides no basis for reversal. Even if we agreed with the mother that there is no substantial evidence to support the court’s characterization of the mother’s visits as sporadic, she fails to show how the outcome would change. (See, e.g., In re Steven A., supra, 230 Cal.App.3d at p. 353 [affirming termination of parental rights where there was “no ‘real doubt’ that the juvenile court would have reached the same decision in this case absent the erroneous finding”].)
In and of itself, regular and beneficial visitation does not warrant application of the parental bond exception to adoption. (See, e.g., In re Angel B. (2002) 97 Cal.App.4th 454, 468 [termination of parental rights affirmed despite mother’s appropriate and loving conduct during visits]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 [termination of parental rights affirmed even though the mother “maintained a good relationship with the child through visitation”].) The parental also must demonstrate that “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) And the necessary showing of a beneficial relationship is “difficult to make... where the parents have... [not] advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
b. Parental Role
As this court long ago explained, frequent, loving contact alone is not sufficient to establish the requisite parent-child relationship. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The statute contemplates a relationship that is parental in nature. (Id. at p. 1418.) Thus, in order to trigger the statutory exception, the parent must occupy a role that goes beyond that of friendly visitor, extended family member, or day care provider. (Id. at pp. 1419-1420; In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Contrary to the mother’s contention, recent case law does not erode that requirement; a parental relationship is still required. (See, e.g., In re S.B., supra, 164 Cal.App.4th at p. 300 [the father “maintained a parental relationship with [the child] through consistent contact and visitation”].)
In this case, the juvenile court had evidence that the mother did not occupy a parental role vis-à-vis the child. As stated in the Department’s report: “While the mother has visited on a monthly basis, there is no significant child-parent rearing relationship.” This is not a case – like the one cited by the mother – in which “there is no evidence to support the court’s finding [the parent] did not have some type of parental relationship with [the child].” (In re S.B., supra, 164 Cal.App.4th at p. 298.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This is not such a case.
The record thus supports the implicit finding that the mother no longer fulfilled a parental role in the child’s life.
c. Balancing Test
In determining applicability of the parental bond exception, the juvenile court weighs the benefit to the child of continuing the parent-child relationship against the advantages of permanency through adoption. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) On one side of the equation is the relationship with the biological parent, which “must be sufficiently strong that the child would suffer detriment from its termination.” (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) In assessing this part of the equation, the court looks for substantial benefit from the relationship and great harm from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 466; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) On the other side of the equation is permanence for the child through adoption. The “juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B., at pp. 424-425.)
Here, the court found that the benefits to the child of adoption outweigh those from continuing the parent-child relationship. While acknowledging that a “connection” exists between the mother and son, that “they are attached,” and that “he cares for her,” the court nevertheless concluded that “the benefits of the adoption here so outweigh the relationship between [the child] and his mother and his need for long-term stability and a loving family is really overriding at this point. He’s found that family, thankfully, and... it’s in his best interest that we ensure that he is able to be a full-fledged member of that family.” The mother offers no basis for overturning that determination. And as the Department’s report observed, the child “has gradually switched his attachment and focus from his mother to the foster parents.”
The evidence presented to the juvenile court here supports its determination that the parent-child relationship was not so vital to the child’s long-term well-being, or of such substantial benefit, that great harm would result from its termination. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.)
d. Conclusion
Viewed in the light most favorable to the order, the record supports the juvenile court’s decision. The challenged finding that visitation was sporadic provides no basis for reversal, nor has the mother shown any error in the means used by the court to reach its decision. We find no basis for reversing the juvenile court’s determination that the mother’s relationship with the child was not sufficiently parental to warrant application of the statutory exception. Nor do we find any basis for disturbing the result of the court’s weighing process. In sum, the court did not err in concluding that the mother failed to carry her burden of establishing applicability of the parental bond exception.
Having weighed the parent-child relationship against the child’s need for permanence and stability, the juvenile court properly afforded him the most permanent and secure placement that it could – adoption. That determination is amply supported in fact and law.
Disposition
We affirm the order of December 2008, which terminated appellant’s parental rights and freed J.B. for adoption.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.