Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. JV 23677
Pollak, Acting P. J.
Defendants K.G. and David M. appeal from an order terminating their parental rights to their now 20-month-old son. K. contends that she was denied effective assistance of counsel because her appointed attorney was reassigned by the public defender’s office less than a month before the Welfare and Institutions Code section 366.26 hearing and that her newly assigned attorney was not prepared to proceed with a petition to modify the dispositional order filed the day before the permanency planning hearing. She also contends the court abused its discretion in refusing to continue the hearing on the petition for modification, which had been set at the same time as the section 366.26 hearing, and in refusing to appoint an expert to perform a bonding study. David contends there is no substantial evidence to support the finding that his son is adoptable and that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) is not applicable. We shall affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
David also joins in the arguments made by K. to the extent that those arguments are applicable.
Procedural and Factual History
In February 2006, K., who has a long history of mental illness and substance abuse, gave birth to a son. Immediately after the birth, K. was placed on an involuntary temporary psychiatric hold due to her severe mental illness. The minor was detained at the time of his birth, and five days later the Marin County Department of Heath and Human Services (the department) filed a section 300 petition alleging that “[t]here is a substantial risk that the child . . . will suffer serious physical harm or illness due to the inability of the parent or guardian to adequately provide regular care for newborn child due to the parent’s mental illness.” The petition alleges further that K. “is not consistently taking her prescribed medications, which places her at risk for further mental decompensation and placing [sic] the newborn at risk of abuse or neglect while in her mother’s care.” At the time of the detention, K. was on probation and was residing in an apartment under the care and supervision of the Marin County Star (Supervised Treatment After Release) program. At that time, the identity of the father was unknown.
On February 28, the court continued the child’s detention and set a jurisdictional hearing for March 21, 2006. Prior to the hearing, David was identified as an alleged father and ordered to submit to paternity testing. The case was continued for a contested jurisdictional hearing on April 6.
At the contested jurisdictional hearing, the court admitted into evidence the department’s reports and heard testimony from the social worker before sustaining the allegations of the petition. The court ordered K. to submit to two psychological evaluations and appointed a guardian ad litem for K. due to her inability to understand the proceedings.
Prior to the dispositional hearing, the department submitted a report recommending, pursuant to section 361.5, subdivision (b), that reunification services for K. be bypassed due to her mental illness. The social worker explained that K. “does not know how to negotiate relatively simple decisions” and he did not believe “she will be able to maneuver through the many decisions that will come up as to[] what is [a] priority for [her son].” He did not believe that “offering reunification services will benefit [K.] enough to care for [her son] within the statutory time frame of 6 months.” The report also indicated that David, who suffers from paranoid schizophrenia, had submitted to a paternity test. The social worker expressed concern “about the explosiveness of [David] and the safety issues this presents during his visitation with [his son].” After receiving the results of the paternity test indicating that David is the biological father, the department submitted an amended report recommending that reunification services for David also be bypassed due to his mental illness.
Section 361.5, subdivision (b) provides in relevant part, “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services.”
At the dispositional hearing, the court ordered that David be considered the presumed father and that he submit to two psychological evaluations. The matter was continued until July 19, at which time the court received the psychological evaluations for both parents. Both evaluators agreed that K. suffered from a chronic and severe mental illness that would interfere with her ability to profit from reunification services to the degree necessary to parent an infant in six months. One evaluator explained, “The findings from the psychological assessment and the history provided suggests strongly that K. is an individual that has become increasingly unable to care for her own emotional and physical needs adequately, even with a good deal of support and availability of correct medications, never mind an infant that requires not only physical care but nurturing and attachment behaviors to be performed by the mother.” The other observed that while K. has had “periods of mild remission” these periods are “followed by disorganization, mood swings and psychotic ideation.” That evaluator explained, “Regular feeding with appropriate food, regular bathing and general hygiene and diaper changing and regular soothing, stimulations and emotional engagement with the infant would be beyond K.’s capacity.” He believed, however that “K.’s deficits in parenting are secondary to a chronic and serious mental health disability involving episodic psychosis, depression and drug use.” Finally, he concluded, “Parenting classes, drug treatment and supportive counseling will not address the deficits in parenting caused by chronic mental illness, periods of psychosis, lack of insight, chronically poor judgment and serious episodic depression” and that “K. would not be capable of parenting an infant without another competent adult present at all times.” With regard to David, the evaluators agreed that based on his history of severe mental illness and psychotic episodes, any services provided by the department would not be sufficient to address his inadequate coping and parenting abilities. Based on these evaluations and the department’s reports, the court found by clear and convincing evidence that the parents’ mental disabilities rendered them incapable of utilizing reunification services. The court set a section 366.26 hearing for November 14.
On November 14, the case was continued for a contested section 366.26 hearing. The court initially proposed to set the contested hearing for November 16, but K.’s attorney, Ms. Berg, objected to the date, explaining that she needed more time to procure the attendance of “potential psychiatrists” and also that later in the week she would be transferring the case to her colleague in the public defender’s office, Ms. Berrong. Ms. Berg also indicated that she would be filing a section 388 petition for modification. The court continued the hearing to December 5.
The section 388 petition was filed later that day, seeking to change the court’s order denying reunification services to K. based on statements by her treating psychiatrist that she had made “considerable progress,” had maintained her medication and a stable lifestyle, and was working five days a week. According to the treating psychiatrist, there had been considerable “clearing” and K. was very “functional.” Although the petition states that the change would be in the best interest of the minor because “K. is [the minor’s] biological mother. She has bonded with him and can care for him,” there was no allegation that K. was then capable of caring for her son on a regular basis or that with the provision of reunification services she would be able to do so in a reasonable period of time. The court denied the petition without a hearing, finding that “[t]he facts do not support what it requested and does not show how it will be in the best interest of the child.”
On Tuesday, December 5, Ms. Berrong appeared on behalf of K. at the contested section 366.26 hearing and requested a continuance. The court continued the matter for one week. Ms. Berrong requested additional time, explaining, “I got the case officially December 1st. And I got some discovery as late as last Tuesday, which was also the first opportunity for me to meet my client.” She also asked the court to appoint an expert to perform a bonding study or to allow her additional time to retain her own expert to perform the study. The court denied the request for appointment of an expert and refused to continue the hearing beyond December 12th.
On December 11, K. filed a second petition for modification, asking the court to reconsider its ruling on her first petition. The petition states, “Additional information has come to light since the previous 388 was filed including: a current treating psychiatrist’s opinion that K. would be able to care for [her son] and that K. is ‘much better and making great progress;’ visit notes that cast significant doubt on the assertions made in the 366.26 WIC report were received by counsel for the mother on 11-28-06. Specifically, the visit notes are indicative of marked and significant improvement in the interaction between K. and [her son] documenting consistent loving interaction and engagement.” The petition explains that providing reunification services to K. would be in the minor’s best interest because “it is in [the child’s] best interest to be able to continue to bond with and have a continuing parental relationship with his natural mother particularly given the grave lack of professional input regarding the relationship between mother and son . . . . [¶] . . . [¶] In the absence of any clear evidence of the lack of a relationship between [the child] and K., and in light of newly received discovery indicating that there may well be a parental bond between mother and son, it is in the best interest of [the child] to at least determine whether circumstances have changed to a degree that K. would be able to care for her son.” The court set the hearing on the petition for 9:30 the next morning, the same time as the contested section 366.26 hearing.
At the hearing the following day, Ms. Berrong again asked for a continuance, indicating that she was not “prepared to move forward on the [petition for modification]” at that time. She explained that with less than 24 hours notice of the hearing she could not adequately represent her client. When the court refused to continue the hearing on the section 388 petition, she attempted to withdraw the prior stipulation to have the petition for modification heard by a commissioner, requesting that the “matter be sent to a different department to hear the 388 and also to give me adequate time to provide adequate representation.” The court denied the request on the ground that counsel’s attempt to withdraw her client’s stipulation was untimely. The commissioner opined that Ms. Berrong’s attempt to withdraw her stipulation was “a most inappropriate effort to further delay these proceedings.” In his opinion, “it seems highly inappropriate to suggest that you can file a 388 the day before a hearing and then disqualify the judge who has been assigned to hear this case and who has been the subject of stipulation from the beginning of the year.” The commissioner explained that while he was not unsympathetic to Ms. Berrong’s circumstances, the section 366.26 hearing had been set for more than four months and was going to be heard that day. Ms. Berrong then moved to disqualify the commissioner under Code of Civil Procedure section 170.1, and the motion was also denied as untimely. The court proceeded with the contested section 366.26 hearing, receiving testimony from the department regarding the adoptability of the minor. The parents’ attorneys, including Ms. Berrong, cross-examined the social worker. At the conclusion of the hearing, the court terminated K.’s and David’s parental rights, finding that the minor was adoptable and that adoption would be in his best interest. The parents filed timely notices of appeal from the order terminating their parental rights.
Discussion
1. K.’s Appeal
A. K. received effective assistance of counsel.
K. contends that she was denied effective assistance of counsel based on the reassignment of her attorney by the public defender’s office less than three weeks prior to the termination hearing and by her attorney’s failure to proceed on her second petition for modification. While the circumstances in the juvenile court were less than ideal, K. was adequately represented at all times and she was not prejudiced by the asserted shortcomings of her attorneys.
K. had both a constitutional and statutory right to effective assistance of counsel in these dependency proceedings. (§ 317, subd. (b); In re Sade C. (1996) 13 Cal.4th 952, 987 [“The indigent parent has a ‘liberty interest . . . in the care, custody, and management of’ his [or her] child. [Citations.] This concern has been characterized as ‘fundamental.’ ”]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659 [“A parent who has established a due process right to appointed counsel is entitled to effective assistance of counsel; otherwise ‘it will be a hollow right.’ ”].) “To establish ineffective assistance of counsel in dependency proceedings, a parent ‘must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent’s] interests would have resulted.’ ” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) This test is essentially the same whether K.’s claim is grounded on the statutory or constitutional right to effective assistance. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812.)
Initially, we reject K.’s claim that she was denied effective assistance of counsel when Ms. Berg was replaced by Ms. Berrong. K. argues that Ms. Berg failed to act in a manner expected of a reasonably competent attorney by transferring the case to Ms. Berrong shortly before the termination hearing, assertedly in violation of her ethical obligations under the State Bar Rules of Professional Conduct. She asserts, without elaboration, that “[t]he reassignment in this case worked obvious prejudice upon appellant, and as such, is grounds for reversal.” However, Ms. Berg transferred the case to Ms. Berrong well before the termination hearing. Prior to the transfer, she requested and was granted a continuance of the permanency planning hearing to allow additional time for Ms. Berrong to prepare. Dependency cases are required to be heard on an expedited basis. Although undoubtedly a matter of the utmost importance to the parties, there is nothing unusually complicated about this case that precluded Ms. Berrong from preparing adequately for the hearing in the time provided by the court. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1241-1242 [The juvenile dependency statutory scheme requires that petitions under section 300 be heard and decided rapidly and continuances are discouraged].) Thus, the reassignment of K.’s appointed counsel did not in itself deny her effective assistance of counsel.
The record does not reflect the precise date on which Ms. Berg actually transferred the case to Ms. Berrong. At the November 14 hearing, Ms. Berg stated that later in the week she would be transferring the case to Ms. Berrong, who according to the department was present at the hearing. Ms. Berrong indicated on December 5 that the case was not “officially transferred” to her until December 1.
K.’s claim that she was not adequately represented in connection with the second petition for modification is similarly without merit. K. argues that Ms. Berrong’s failure to present any evidence and “refusal to proceed” on the section 388 petition was inexcusable. Contrary to K.’s characterization, however, Ms. Berrong did not refuse to proceed or abandon her client at the hearing. Ms. Berrong argued strenuously for a continuance. When the court refused to continue the hearing, Ms. Berrong had not secured the attendance of K.’s treating psychiatrist or any other witness. Thus, the relevant question is whether Ms. Berrong provided inadequate representation by failing to present any evidence at the section 388 hearing.
When a claim of ineffective assistance of counsel questions a tactical decision by trial counsel, the claim is properly raised by a writ of habeas corpus filed in conjunction with a timely appeal from the challenged order. (In re Darlice C. (2003) 105 Cal.App.4th 459, 465 [petition for writ of habeas corpus may be used to collaterally attack an order terminating parental rights]; In re Carrie M. (2001) 90 Cal.App.4th 530, 533-534 [claim of ineffective assistance of counsel may be raised by petition for writ of habeas corpus filed concurrently with appeal from termination order].) To the extent that K. is arguing that there was no reasonable or tactical reason for failing to present any evidence at the hearing on the section 388 petition (see In re Darlice C., supra, 105 Cal.App.4th at p. 463 [“ ‘[a]n ineffective assistance claim may be reviewed on direct appeal [only] where “there simply could be no satisfactory explanation” for trial counsel’s action or inaction” ’ ”]), prejudice cannot ordinarily be demonstrated without a showing of the additional evidence that might have been presented. In any event, to the limited extent that this issue is cognizable on appeal, we conclude that there was no prejudicial error.
Relying on In re Eileen A. (2000) 84 Cal.App.4th 1248 (Eileen A.) overruled on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414, K. emphasizes the importance of a petition for modification in cases where reunification services have been denied or terminated and a permanency planning hearing is pending. In Eileen A., the court found that the mother’s attorney provided ineffective assistance of counsel by failing to file a petition for modification prior to the termination hearing. (Id. at p. 1255.) The court explained, “There simply could be no satisfactory explanation for Olga’s trial counsel’s failure to file a request for a section 388 modification under the circumstances of this case: Olga clearly wanted reunification services . . ., and she had nothing to lose by filing the section 388 petition. Nothing. Without reunification services, her chances of avoiding a termination of parental rights at the .26 hearing based on the (c)(1)(A) ‘benefit exception’ were effectively nil. Her only hope to maintain her parental rights was a section 388 modification petition. It is the extremely rare case where parents who are offered reunification services and then have them validly terminated at a referral hearing can successfully assert the (c)(1)(A) benefit exception, it is virtually impossible for a parent who was denied reunification services at the very beginning of the case to successfully assert the exception. [Citation.] Indeed, there was not even a downside risk of any embarrassing information coming out at a modification hearing that might prompt social workers to try to remove any other children who would then have been in her custody, because Eileen was Olga’s only child.” (Eileen A., supra, at p. 1255, italics & fn. omitted.) The court determined that the failure to file the petition was prejudicial in that “it was certainly ‘probable’ that a result more favorable to Olga would have occurred if trial counsel had filed a modification petition.” (Id. at p. 1261.) Indeed, the court believed that had a section 388 modification petition been filed, it would have been “a clear winner.” (Id. at p. 1262.)
In contrast, although K. characterizes her second petition for modification as a critical request to change the order denying reunification services and argues that her attorneys’ “refusal to proceed on the § 388 petition resulted in the withdrawal of this powerful and vital constitutional safeguard to termination,” there was no likelihood that K. would have been granted reunification services based on the second petition for modification. Any realistic chance at obtaining reunification services was foreclosed when her first petition for modification was summarily denied. Although that order was not appealed, based on the evidence it does not appear that the court erred in denying the first petition. The psychiatric evaluations submitted to the court at the dispositional hearing indicate in no uncertain terms that even if K. were able to maintain a stable lifestyle for herself, she would not likely be able to do so on a long-term basis and she would not be able to care for an infant without constant supervision. Neither petition alleged that the treating psychiatrist believed K. was capable of caring for her child or challenged the prior expert opinions that no improvement could be expected that would enable her independently to care for her child on a prolonged basis. At best, Ms. Berrong’s declaration states that she had been informed by the treating physician that “K. has made sufficient improvement that she could care for [her son] with daily assistance.” (Italics added.) Most if not all of the “additional information” referred to in the second petition was offered to challenge statements in the department’s report prepared for the section 366.26 hearing that K. did not have a strong parent-child bond with her son. On the eve of the permanency planning hearing, however, the strength of the relationship between K. and her son was relevant only to whether the beneficial parent-child relationship exception applied, so that parental rights should not be terminated. (In re Richard C. (1998) 68 Cal.App.4th 1191 [court need not consider issue of reunification at the section 366.26 hearing, at which the focus has shifted from family preservation to protecting needs of the child for permanency and stability].) This evidence was properly considered at the permanency planning hearing, but does not reflect merit in the section 388 petition.
B. The court did not abuse its discretion by refusing to continue the hearing on K.’s second petition for modification.
K. contends that the trial court abused its discretion in refusing to grant her a continuance of the hearing on the petition for modification. K. suggests initially that she was entitled to at least 24 hours notice of the hearing under section 290.2 and California Rules of Court, rule 5.524(e). These provisions, however, include notice requirements for the hearing on the initial dependency petition filed by a probation officer or social worker. In contrast, section 388, subdivision (c), provides, “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes.” Section 386 provides, “No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the social worker and to the child’s counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian.” The section 388 petition in this case was filed on behalf of K. herself. Her attorney knew when she filed the petition that the section 366.26 hearing was scheduled for the following morning and that to have any potential value the modification petition would have to be heard before the hearing under section 366.26. After she filed the petition, Ms. Berrong called the court and learned that “something was granted” in relation to her petition. Although at the hearing she claimed that she was unclear whether the court had granted a hearing on her petition, it was her obligation to ascertain what action the court had taken. In light of the fact that it was her own motion and that it was filed at the last minute, the court provided K. with adequate notice of the hearing.
Likewise, in light of the strict time constraints placed on dependency proceedings involving an infant, the trial court acted reasonably in refusing to continue the hearing. K. suggests that the court had an obligation to protect her right to effective assistance of counsel when it became clear that her attorney was not prepared to present evidence in support of the petition. While K. is correct that the court has a duty to protect her right to effective assistance of counsel, section 352, subdivision (a) also requires the court to consider the best interests of the minor, giving “substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” In light of the fact that the court had denied a similar petition just weeks before and the primary contentions in the second petition were directed at evidence relevant to the section 366.26 hearing, the court did not abuse its discretion in refusing to continue the hearing on the petition for modification.
C. The court did not err in refusing to appoint an expert to perform a bonding study.
K. contends that the court abused its discretion in denying her request for the appointment of an expert to perform a bonding study under section 730. She argues that without a bonding study she could not show that granting her section 388 petition would be in the best interests of the minor or that the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(A)) applied. The court’s refusal to grant the request, made only weeks before the permanency planning hearing, was entirely reasonable. (See In re Richard C., supra, 68 Cal.App.4th at p. 1194 [motion for a bonding study made after reunification services had been terminated and permanency planning hearing set “came too late in the proceedings to be a necessary part of the court’s efforts to develop a permanent plan for the children”].)
In In re Richard C., supra, 68 Cal.App.4th at page 1195, the court explained, “ ‘There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order . . . . [A]lthough the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody [citation]. . . . Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability.’ ” The court expressly rejected the claim, similar to K.’s, that a bonding study was necessary to support a section 388 petition for modification. The court reasoned, “We understand that a bonding study may have enabled her to make a stronger case at the section 388 hearing. However, under the dependency scheme described by the Supreme Court in the cases cited above, [mother] was required to muster her evidence before the termination of reunification services. The kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in section 366.26, subdivision (c)(1)(A) does not arise in the short period between the termination of services and the section 366.26 hearing.” (In re Richard C., supra, at p. 1196.) The court emphasized that “[b]onding studies after the termination of reunification services would frequently require delays in permanency planning. Similar requests to acquire additional evidence in support of a parent’s claim under section 366.26, subdivision (c)(1)(A) could be asserted in nearly every dependency proceeding where the parent has maintained some contact with the child. The Legislature did not contemplate such last-minute efforts to put off permanent placement. [Citation.] While it is not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (In re Richard C., supra, at p. 1197.) For the same reasons, we conclude that the juvenile court did not abuse its discretion in denying K.’s request in the present case.
2. David’s Appeal
A. Substantial evidence supports the juvenile court’s finding that the minor was adoptable.
Under section 366.26, subdivision (c)(1), the court may terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted. “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650, italics omitted.)
Here, the social worker reported that the minor “is a delightful, engaging, and healthy baby. He loves to interact with adults around him and laughs often. [He] is currently being cared for by a family that is committed to providing him with permanency through adoption. This family currently has an approved homestudy. This family has been bonding with [him] for the last several months and they have expressed their love and dedication to him. If, for any reason, [the child’s] adoptive parents were unable to finalize an adoption, this worker is confident that another adoptive family could be found given [the child’s] young age and pleasant disposition.” At the hearing, the social worker testified that she had discussed the mental health histories of the biological parents with the “fost-adopt” parents and that the fost-adopt parents were also told “that the research shows [an] approximately 20 to 40 percent chance that [the minor] may develop schizophrenia in adulthood.” She explained that the fost-adopt parents had spoken with their family physician about the mental health concerns and that they remained committed to the adoption. Contrary to David’s assertion, this is not “a scant amount of evidence.” The fact that the department did not present additional evidence, which David now suggests was necessary, does not diminish the substantial nature of the evidence that was presented at the hearing.
While the court undoubtedly relied on the fact that the fost-adopt parents were committed to the adoption, it is not, as David suggests, the only positive evidence of adoptability. The social worker’s report describes the child in positive terms. Nothing about the child’s present health or development suggests that he would not be adopted by a different family should the anticipated adoption not be completed. David’s suggestion that “the department had difficulty locating a placement” for the child is not supported by the record. The department moved the child after three months in foster care to his present fost-adopt placement outside of Marin County. The department explained that it was necessary to move the child “out-of-county because no concurrent planning homes could be located within the county.” The department explained at the time of the placement that this was “not the only family [available] but certainly the most qualified family for the child.” Accordingly, substantial evidence supports the trial court’s finding that the child is adoptable.
B. Substantial evidence supports the court’s finding that the beneficial parent-child relationship exception did not apply.
Section 366.26, subdivision (c)(1) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless it finds “a compelling reason for determining that termination would be detrimental to the child” due to an enumerated statutory exception. One such exception is that termination would be detrimental because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The parent bears the burden of demonstrating that the beneficial parent-child relationship exception applies. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) It is not enough to show that the child would receive some incidental benefit from a continued relationship with the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Rather, the relationship must promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new adoptive parents. (Ibid.) In other words, “the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.”
David contends the juvenile court erred in failing to find that his relationship with his son satisfied the beneficial parent-child relationship exception to adoption. He argues that he maintained regular visitation and that his relationship with his son is “worthy of preservation.” However, we cannot say that the trial court erred in concluding that David’s testimony that he was “in awe” of his son and that there was a “positive feeling” between him and his son, was insufficient to overcome the “the security and the sense of belonging a new family would confer” on the minor.
Disposition
The order terminating parental rights is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.