Opinion
E069885
07-30-2018
In re D.Y. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.J. et al., Defendants and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant A.J. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant T.W. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1501049) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant A.J. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant T.W. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar for Plaintiff and Respondent.
Defendants and appellants A.J. (Mother) and T.W. (Father; collectively, Parents) challenge the termination of parental rights by the juvenile court at a Welfare and Institutions Code section 366.26 hearing. For the reasons set forth post, we shall affirm the judgment.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. PETITION AND DETENTION
On October 20, 2014, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition as to Do.Y. (a boy, born in 2013) and De.Y. (a boy, born in 2014) (collectively, the boys).
Mother was arrested for domestic violence against the boys' father, J.Y. He told law enforcement that Mother broke things such as a "TV, Dresser and Mirror," and "threw many items at him striking him in the arms and torso." He also stated that Mother "proceeded to 'GO OFF' and physically assaulted him causing numerous scratching on arms." Law enforcement had been to the family residence 13 times between April 2013 and October 2014, including at least two domestic violence calls on August 21 and 24, 2014.
J.Y. is not a party to the appeal.
Mother described herself as the victim and told law enforcement that J.Y. had put "his hands on" her, "strangled her several times in the past week, and push[ed] her constantly." Although Mother was arrested, she said that J.Y. "was the one who was the DV perpetrator too many times." Mother said that she used marijuana twice a day to help her deal with her anxiety and depression. Soon thereafter, J.Y. stated that he and Mother lied about the domestic violence. Mother wanted to get the family back together.
On October 20, 2014, the juvenile court found J.Y. to be the boys' presumed father, detained the boys from only J.Y., and allowed the boys to remain with Mother on the condition that she reside with maternal grandmother (MGM). On November 26, 2014, the court ordered family maintenance services for Mother and family reunification services to J.Y. Mother's case plan included domestic violence, counseling, parenting, and a psychiatric/psychological evaluation.
At the six-month review, Mother was partially compliant with her court-ordered services. She tested positive twice for marijuana, but had enrolled in parenting classes and had been prescribed psychotropic medications. J.Y. enrolled in parent services, but he also tested positive for marijuana. On August 6, 2015, the juvenile court ordered continued services to both parents. On September 15, 2015, the court transferred the matter to Riverside County where Parents had moved.
Mother began attending parenting classes in Riverside County but discontinued her prescription medications due to her pregnancy. She did not start individual counseling. J.Y. had not started his services in Riverside County and only had sporadic visits.
On March 1, 2016, the juvenile court ordered continued family maintenance services to Mother, but terminated family reunification services to J.Y.
On March 10, 2016, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition to add B.W., (a girl, born January 2016) to the case, under subdivisions (b) and (j). Mother had made limited progress in her case plan and her housing remained unstable. Mother was underemployed, living in a motel, and continued to use marijuana to treat her sleeping problems, anxiety and depression. Mother was unable to provide DPSS the contact information for Father—the father of B.W.
B.W. and the boys will be collectively referred to as the Children.
On April 1, 2016, DPSS detained the boys from Mother and ordered supervised visitation for Parents. The court also detained B.W. and ordered Parents to have supervised visitation.
Mother had engaged in acts of domestic violence with Father with the most recent incident occurring on March 9, 2016. This incident resulted in Mother sustaining a bruise to her eye. She also failed to contact law enforcement or obtain a restraining order after the incident. Moreover, Mother continued to lead a transient lifestyle and to use marijuana.
Mother disclosed that Father had punched her in the face and "held her hostage in the hotel room." He continuously called to make threats against her family. Parents had been getting into arguments about his infidelity. DPSS was concerned about Mother's failure to disclose Father's whereabouts earlier when he was at home with her and the Children. Father was arrested on March 10, 2016, for assault with a deadly weapon, after he "viciously beat an elderly motel manager over a dog." The police officer observed that the manager's right eye was "severely bruised and swollen shut" and his nose was broken. Moreover, the right side of the manger's mouth had severe swelling. Father admitted that he punched the manager four to five times, leaving the victim in a coma.
Mother denied engaging in domestic violence with either J.Y. or Father, except for the incident on March 9, 2016. Mother also vehemently denied smoking marijuana in her hotel room. The social worker, however, observed that Mother's room was permeated with the odor of marijuana.
On June 6, 2016, the juvenile court found the allegations in the second amended section 300 petition to be true. The court ordered reunification services be provided to Mother for B.W., and denied services to J.Y. under section 361.5, subdivision (a), and to Father under section 361.5, subdivisions (a) and (b)(1). The court also found the allegations in the first amended section 387 petition true, ordered reunification services to Mother, and denied services to J.Y. based on section 361.5, subdivisions (b)(1) and (b)(1). Mother's case plan included counseling, parenting, and substance abuse testing. Mother was allowed to address domestic violence in counseling.
On February 6, 2017, the court terminated Mother's reunification services for the Children, reduced her visitation to one time per month, supervised, and set a section 366.26 hearing. The court also found Father to be B.W.'s biological and presumed father, and denied him services under section 361.5, subdivision (e)(1).
Mother continued to be inconsistent with her participation in services and visitation. She cancelled visits after they were scheduled to begin, did not arrive on time, and failed to provide guidance for the Children during supervised visits. Moreover, she "parentified" the Children by encouraging them to provide her with emotional support when she was sad or crying. The Children were stable and doing well in their placement.
Mother had poor attendance at counseling. Her therapist was concerned about Mother's commitment to therapy. Mother was diagnosed with adjustment disorder with anxiety and depression. In a December 13, 2016, progress report, Mother's therapist noted that Mother needed to work on reducing her anger and strengthening her coping skills. The therapist stated that Mother had frequent anger outbursts when frustrated or mad, which affected her relationships with others. Moreover, when Mother had anxiety attacks, she was unable to regulate her emotions at times. Mother denied that her therapist had discussed these concerns with Mother in therapy.
Mother was a no-show for drug testing on May 16, September 23, October 4, October 26, and December 28, 2016. She drug tested negatively on September 22 and December 12, 2016. She tested positive for marijuana on December 1, 2016. Mother provided DPSS with a medical marijuana recommendation on October 4, 2016, and stated that she used marijuana or cannabis pills every two days. The social worker and Mother's services providers described Mother as "lethargic, groggy, low tone, and at times, her pronunciation of words is unintelligible."
Mother completed a parenting program on July 29, 2016. She stated that she also completed a domestic violence class but failed to provide DPSS with a certificate of completion. Mother continued to maintain that no domestic violence ever occurred with J.Y. She frequently asked questions regarding J.Y.'s "services/visitation"; this made the social worker concerned about Mother's relationship with J.Y. Mother's visitation was also inconsistent. Moreover, the quality of Mother's visits was "an area of concern in that all though [sic] the mother is playful with the Children, she lacks consistency of structure and discipline."
Mother continued to lack consistency in obtaining appropriate housing. She also disclosed having a prior psychiatric hospitalization in 2014 when she had a "mental breakdown." At that time, she broke everything in the house. Her current mental health was in question because Mother expressed a desire to reside with her father; he had abused Mother as a child and was a source of Mother's anxiety. DPSS felt that Mother had failed to benefit from her services.
J.Y. had no contact with DPSS. On August 4, 2015, he was convicted of "PC 422 Criminal Threats/GBI." A criminal protective order directed him to have no contact with the boys, and a no-negative contact order was placed on behalf of Mother. Father was sentenced on September 23, 2016, to served two years in prison for a conviction for "Cruelty to Elder/Adult."
On April 26, 2017, the Children were placed in the same prospective adoptive home after numerous visits with the family. The Children and prospective adoptive parents were developing a reciprocal bond and attachment. The Children referred to the identified prospective adoptive parents as "Mommy and Daddy" and sought them out for comfort and attention. The caregivers provided structure and boundaries and were very loving and affectionate with the Children, and were committed to adopting them. Since their placement with the prospective adoptive parents, "there has been improvement with the children's speech and [B.W.] has shown an overall flourishment with her personality." Do.Y. was doing very well in his preschool. He also started a martial arts program. It was reported that he loved music, reading, family walks, and playing with his two dogs. He regularly gave and asked for both physical signs of affection and "I love yous" from the caregivers. De.Y. was also strongly bonded with his prospective adoptive family. He too asked for physical affection, was doing well in preschool, and had started a hip-hop dance class. "The children respond to the care giver with hugs and impromptu smiles."
After services were terminated, Mother visited on February 22, 2017, and March 2, 2017, with no reported concerns. During her April visit, Mother requested that J.Y. be allowed to visit the Children, even B.W. During the May visit, Mother drug tested negatively, but admitted to smoking marijuana a week prior due to a backache; she did not have a valid medical marijuana recommendation.
On June 19, 2017, J.Y. reported that Mother had been calling to harass him, his girlfriend, and the mother of his seven-month-old child, via Snapchat, Facebook and other social media. Police were called because Mother went to his house. J.Y. told Mother that he wanted nothing to do with her. She responded, "you're going to ruin my life. I am going to ruin your life, and I'm going to do the extra!" She threatened to take pills because he did not want to be with her. She showed up to his home unannounced, asking to see him, and was sleeping in her car. She also made threats.
Mother admitted that she confronted J.Y. and his girlfriend. She said that police were involved and she admitted threatening to take too many pills, but said that it was from losing the Children, not J.Y. Mother planned to see a doctor to inquire about her medication.
On July 12, 2017, Mother said that she obtained employment in Las Vegas as a caregiver and was being paid under the table. She also filed restraining orders against both fathers.
During Mother's visit in July, B.W. cried excessively at the time of separation from her foster mother. B.W. was hesitant to go to Mother. Mother was appropriate and visited with the Children on August 29, 2017, and September 9, 2017. After the September visit, Do.Y. became moody and desired more physical affection and comfort from his caregivers.
On October 17, 2017, Mother filed section 388 petitions seeking reunification services based on her alleged completion of her case plan and consistency and appropriateness in visits. Mother attached proof of her completion of 10 counseling sessions in a letter dated January 17, 2016. The letter described Mother as a willing participant in her therapy and that she "continues to work towards setting healthy boundaries with others." Mother also attached a parenting certificate dated July 29, 2016, and a "Healthy Relationships" certificate dated August 15, 2016.
Mother had filed for divorce from J.Y., and said she used marijuana once a week to help her sleep. She said she would be willing to go to a psychologist and therapist to get diagnosed properly. Father also filed a section 388 petition. DPSS recommended that the juvenile court deny both parents' section 388 petitions.
On January 23, 2018, Father testified that B.W. lived with him the first few months of her life. He completed parenting, substance abuse and 12-steps classes. He also attended AA and NA while incarcerated. Additionally, he drug tested clean, obtained his GED and was in the process of enrolling in anger management classes. He was released on December 18, 2017, obtained employment, and currently shared a residence with his mother. Father had one visit with B.W. on January 9, 2018, which went well.
Mother testified that she had a two-bedroom townhouse and worked full-time in telemarketing. She had completed classes in parenting, domestic violence and anger management. She was currently not in a relationship. She had regular visits with the Children. Mother admitted that the certificates attached to her section 388 petition occurred prior to her services being terminated. She also testified to having only one incident of domestic violence with Father. She agreed that the foster parents were good parents.
Mother's counsel argued that Mother had completed her case plan, had housing and employment, and her visits with the Children were in the Children's best interest.
The juvenile court found that Parents' circumstances had not changed, and the best interests of the Children were to let them remain in their current placement. The court denied both parents' section 388 petitions.
As to the section 366.26 hearing, Father's counsel requested that the court proceed with legal guardianship instead of adoption because he felt that Father was bonded to B.W. Mother's counsel also requested that the court consider guardianship instead of adoption. Neither counsel argued the applicability of any exception under section 366.26 to prevent the termination of parental rights.
The juvenile court terminated the parental rights of Mother and Father and selected a plan of adoption for the Children, after finding that none of the exceptions under section 366.26, subdivision (c)(1) applied. On January 26, 2018, both Mother and Father filed their notices of appeal.
Father simply joined in Mother's appellant's opening brief pursuant to California Rules of Court, Rule 8.200(a)(5). --------
DISCUSSION
A. THE JUVENILE COURT PROPERLY DENIED MOTHER'S SECTION 388 PETITION
The juvenile court found that Mother's circumstances had not changed and denied her section 388 petition. Mother contends that the juvenile court abused its discretion. We disagree with Mother and affirm the trial court's order.
Section 388 allows the parent of a dependent child to petition the juvenile court to change, modify, or set aside a previous order of the court. Under the statute, the parent has the burden of establishing by a preponderance of the evidence that (1) there is new evidence or changed circumstances justifying the proposed change of order, and (2) the change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); § 388, subds. (a) & (b); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The decision to grant or deny the petition is addressed to the sound discretion of the juvenile court, and its denial of the petition will not be overturned on appeal unless an abuse of discretion is shown. (In re S.J. (2008) 167 Cal.App.4th 953, 959-960.)
1. MOTHER FAILED TO ESTABLISH A CHANGE OF CIRCUMSTANCES
In this case, the first section 300 petition was filed in October of 2014 based on domestic violence and Mother's failure to treat her mental health needs in a consistent and appropriate manner. Mother used marijuana twice a day to address her anxiety and depression. Moreover, between April 2013 and October 2014, law enforcement went to the family home on 13 occasions for domestic violence. In September of 2014, Mother went "OFF" on J.Y.; she physically assaulted him and broke household items. Mother told the police that Father was violent and she had been the victim "too many times."
The juvenile court ordered Mother to complete domestic violence, counseling, and parenting programs, and to undergo a psychiatric/psychological evaluation. Mother was prescribed psychotropic medications. She, however, continued to self-medicate with marijuana to treat her insomnia, anxiety and depression. Mother was unable to maintain stable housing or participate fully in services.
Mother also became involved with another partner who engaged in domestic violence, Father; he gave Mother a black eye one day and beat an elderly man into a coma the next day. Mother lost custody of the Children in April 2016, and continued to use marijuana or cannabis pills every two days. Mother tested positive for marijuana in December of 2016. She smoked marijuana in May of 2017. She continued to use marijuana to help her sleep in September of 2017. Mother promised to see a psychiatrist and therapist for a proper diagnosis; she never went.
Although Mother completed a parenting and a "Healthy Relationships" program in July and August 2016, respectively, prior to the termination of her services, she did not benefit from the programs. A few months after completing both programs, Mother discussed moving in with her father, even though he abused her as a child and was a major contributing source of Mother's anxiety. On June 19, 2017, Mother harassed and threatened J.Y. and his girlfriend on social media and at his residence. Mother threatened to take her own life because J.Y. did not want to live with her. Mother's therapist reported in December of 2016 that Mother had frequent anger outbursts when frustrated or mad, which affected her relationships with others. When Mother had anxiety attacks, she was at times unable to regulate her emotions. Mother's mental health continues to be an area of concern.
Mother also asserts that she completed counseling, but there is no credible evidence to support this contention. The only proof is a letter that Mother attached to her section 388 petition dated January 17, 2016. The letter stated that Mother completed 10 counseling sessions, described Mother as a willing participant in her therapy, and stated that Mother continued "to work towards setting healthy boundaries with others." Mother's counseling services were ongoing at the time the letter was written; they were not complete. The letter was also contradicted by statements from Mother's therapist in December of 2016, wherein the therapist voiced concerns over Mother's commitment to therapy. The therapist noted that Mother needed to work on reducing her anger and strengthening her coping skills.
Moreover, Mother continued to display limited insight into why the Children were removed; she failed to acknowledge the extent of domestic violence in both her and the Children's lives. She only admitted to one incident of domestic violence with Father at the section 388 hearing. She denied any domestic violence with J.Y. However, Mother had previously told law enforcement in 2014 that J.Y. had put his hands on her, strangled her, "several times in the past week, and push[ed] her constantly." She stated that "he was the one who was the [domestic violence] perpetrator too many times." Law enforcement had been to the family residence at least two times in response to domestic violence episodes in August of 2014.
After separating from J.Y., Mother became involved with another abusive man, Father; he punched Mother in the face, blackened her eye, and called to threaten her family when the Parents were arguing about Father's infidelity. After Father was arrested in March 2016 and sentenced to state prison for his conduct towards an elderly victim, Mother reunited with J.Y. Mother requested that DPSS provide visitation for J.Y. with the Children despite the criminal protective order. Mother also threatened to commit suicide in June 2017 if J.Y. did not return to her.
Finally, although Mother testified that she obtained employment and housing in Las Vegas, she failed to provide proof. She was allegedly being paid "under the table." Other than Mother's testimony, there was no evidence regarding Mother's employment or housing. Moreover, she failed to disclose Father's whereabouts when he was living with her and the Children.
At the conclusion of the hearing, the juvenile court noted as follows: "I have no doubt that the mother loves her children and would like to have them back in her custody. But, she has not changed her circumstances. There is no change of circumstances sufficient to justify changing a current court order." We agree with the court. Based on the above, we cannot find that the juvenile court abused its discretion in denying Mother's section 388 petition for failing to establish changed circumstances. Mother failed to complete any services after the court terminated her services in February of 2017. Moreover, she did not benefit from the services she had completed because she continued to pursue unhealthy relationships with the men who abused her—J.Y., Father, and her own father. Furthermore, Mother failed to appropriately treat her mental health needs. The evidence showed that Mother's circumstances had not changed.
2. MOTHER FAILED TO ESTABLISH THAT THE CHILDREN'S BEST INTERESTS WOULD BE SERVED BY GRANTING HER SECTION 388 PETITION
Mother argued that the juvenile court erred in denying her request for additional services based on the Children's best interests. She asserts the evidence shows that she had regular contact with the Children, was affectionate with them, and had a bond.
"To understand the element of best interests in the context of a 388 petition filed, as in this case, on the eve of the .26 hearing, we turn to the Supreme Court's language in Stephanie M." (In re J.C. (2014) 226 Cal.App.4th 503, 526 (J.C.).) The Supreme Court stated, "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Id. at p. 317.)
The presumption that continued foster care is in the child's best interests applies with even greater strength when the permanent plan is adoption, as it was in this case. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) "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." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1340.)
Mother suggests that the best interests of the child can be determined by factors set out in In re Kimberly F. (1997) 56 Cal.App.4th 519. In Kimberly F., the Court of Appeal rejected the trial court's use of a simple best interest test of comparing the household of the natural parent to that of the caretakers in analyzing a section 388 petition. (Kimberly F., at pp. 526-530.) The appellate court recommended a list of factors, not meant to be exhaustive, which should be considered. (Id. at pp. 531-532.) They are as follows: "(1) The seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id.)
The Kimberly F. factors focus primarily on the parent and not on the child's need for permanency and stability. The factors overlook the California Supreme Court's analysis in Stephanie M., which states that the goal of assuring stability and continuity was a "primary consideration" in any custody determination. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Accordingly, Kimberly F. is of limited value in providing guidance as to how to determine the child's best interests when analyzing a section 388 petition after services have been terminated because the focus of the dependency at that time is on stability and continuity for the child.
The court in J.C., the same reviewing court that decided Kimberly F., declined to apply the Kimberly F. factors when evaluating best interests concerning a section 388 petition. (J.C., supra, 226 Cal.App.4th at p. 527.) The J.C. court determined that the factors did not take into account the Supreme Court's analysis in Stephanie M., which was applicable after reunification efforts have been terminated. (J.C., at pp. 526-527.) The J.C. court held that "after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (Id. at p. 527.)
In this case, Do.Y. was only three years old, and De.Y. was only two years old at the time of removal. They had not resided in Mother's care for 21 months. B.W. was a little more than two months old at the time of her removal from Mother's care. Mother has had only supervised visitation with the Children since their removal. After a visit in September of 2017, Do.Y. was moody and wanted more physical affection and comfort from his caregivers. B.W. was hesitant to go to Mother and cried excessively at the time of separation from her foster mother. While Mother was playful with the Children, she lacked consistency of structure and discipline. Moreover, she "parentified" the Children by encouraging them to provide her with emotional support when she was sad or cried.
Mother has claimed that she addressed the issues that led to the removal of the Children. However, based on her choices to remain attached to abusive men and to self-medicate with marijuana on a regular basis, she has shown that she did not benefit from the services she has received. Moreover, the evidence showed that Mother could not provide the stability and permanency the Children needed and deserved. The Children spent a significant period of their lives outside Mother's care, and she has not successfully addressed any of the issues that led to their removal in 2016.
The Children were in a stable home with prospective adoptive parents, after being placed with them on April 26, 2017. The Children called their prospective adoptive parents "Mommy" and "Daddy," and sought them out for comfort and attention. "The children respond to the caregiver with hugs and impromptu smiles."
The caregivers have provided the Children with structure and boundaries, are very loving and affectionate, and are committed to adopting the Children. Since being in their care, "there has been improvement with the children's speech, and [B.W.] has shown an overall flourishment with her personality." Do.Y. was doing very well in his preschool, started a martial arts program, and loved music, reading, family walks and playing with his two dogs. He regularly gives and asks for both physical signs of affection and verbal expressions of love from the caregivers. Do.Y. expressed "sadness when leaving the caregiver for a visit and joy when seeing the caregiver after a visit." De.Y. was also strongly bonded with his caregivers, asked for physical affection, and was doing very well in preschool.
Mother has failed to establish that the Children's need for permanency and stability would be advanced by granting her section 388 petitions. Instead, the evidence showed that the Children are in a stable placement with prospective adoptive parents who are committed to adopting them and providing a permanent home. The Children's best interests are not served by further delaying permanency and stability in favor of granting Mother's petition in the hopes that she will one day reunify with the Children. (J.C., supra, 226 Cal.App.4th at p. 527.) At this stage in the proceedings, Mother's best interest is "simply no longer the focus." (Ibid.) According to In re Debra M. (1987) 189 Cal.App.3d 1032, "[t]he reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. [¶] The Legislature has expressed increasing concern with the perceived and accurate reality that time is of the essence in offering permanent planning for dependent children." (Id. at p. 1032, superseded by statute on other grounds as stated in In re Eli F. (1989) 212 Cal.App.3d 228, 234.)
At the conclusion of the hearing on the section 388 petitions, the juvenile court found that it would not be in the best interests of the Children to grant the section 388 motions because the Children were together "in a very good adoptive home where they have been for . . . about nine months." Based on the above, we agree with the juvenile court and find that Mother has failed to establish that the Children's best interests would be promoted by granting the section 388 petitions. We discern no abuse of discretion in the trial court's order denying the section 388 petitions.
B. THE PARENTAL BENEFIT EXCEPTION DOES NOT APPLY
For the first time on appeal, Mother contends that the court incorrectly found that the parental benefit exception to adoption did not apply; Father joins in Mother's argument. The People argue that Parents have forfeited this argument. We need not address the forfeiture argument because Mother's contention fails on the merits.
This "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301 (S.B.)), this is not such a case.
In general, at a section 366.26 hearing, if the juvenile court finds that a child is adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
"When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.' " (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
" '[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The parent must show more than frequent and loving contact or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) " 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' " (Jason J., at p. 937.)
"The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship." (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This court must affirm a juvenile court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review "the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling." (In re S.B. (2008) 164 Cal.App.4th 289, 297.) Because Mother had the burden of proof, we must affirm unless there was "indisputable evidence [in her favor, which] no reasonable trier of fact could have rejected." (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, substantial evidence supports the juvenile court's finding that the parental exception did not apply. Although Mother visited the Children regularly after her services were terminated and her visitation was reduced to one time per month, her visitations were inconsistent from April 2016 to February 2017. She cancelled visits after they were scheduled to begin, did not arrive on time for visits, and failed to provide guidance to the Children during monitored visits.
Moreover, Mother did not occupy a parental role for the Children in their lives. According to In re Beatrice M. (1994) 29 Cal.App.4th 1411 the exception applies when the child benefits from a continuing parental relationship. (Id. at p. 1420.) Mother's relationship with the Children was not a parental relationship. Instead, it was that of a friendly visitor, which is insufficient for the exception to apply. "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
Here, the older boys have not resided in Mother's care for 21 months. Do.Y. was only three years old and De.Y. was only two years old at the time of removal. B.W. was a little more than two months old when she was removed from Mother's care. After the Children were removed, they only had supervised visitation with Mother. During their visit in July of 2017, B.W. cried excessively at the time of separation from her foster mother, and was hesitant to go to Mother. After a visit in September 2017, Do.Y. was moody and wanted more physical affection and comfort from the foster parents. While Mother is playful with the Children, she lacked consistency of structure and discipline. Moreover, Mother encouraged them to provide her with emotional support when she was sad or crying.
Mother contends that the instant case is similar to S.B., supra, 164 Cal.App.4th 289. In S.B., the father appealed an order terminating his parental rights to his daughter. He contended that the court erred when it failed to apply the parental benefit exception. (Id. at p. 289.) The father, however, was unable to care for the child full time due to his health problems. He visited the child three days a week; the child became upset when visits ended and she wanted to leave with the father. (Id. at pp. 293-294.) The father also demonstrated empathy and the ability to put himself in the child's place and recognized her needs. (Id. at p. 294.)
The appellate court concluded that the father had a continuing beneficial relationship with his daughter within the meaning of the statutory exception to the termination of parental rights. (S.B., supra, 164 Cal.App.4th at p. 293.) The parties all agreed that the father maintained "regular, consistent and appropriate visits" with the child. (Id. at p. 298.) The appellate court found that there was no evidence to support the trial court's finding that the father did not have some type of parental relationship with the child. (Ibid.) The appellate court did not believe that it was reasonable to require a parent to prove the child had a primary attachment to the parent, or to show that the parent and child had maintained day-to-day contact. (Id. at p. 299.) The appellate court concluded that, based on the record, the only reasonable inference was that the child would be greatly harmed by the loss of her "significant, positive relationship" with the father. (Id. at p. 301.)
In a later case, the same court that decided S.B., supra, stated that S.B. was confined to its "extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558 (C.F.).) In C.F., the court stated that S.B. "does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. As [In re] Autumn H. [(1994) 27 Cal.App.4th 567, 575] points out, contact between parent and child will always 'confer some incidental benefit to the child,' but that is insufficient to meet the standard." (C.F., at pp. 558-559.)
Contrary to Mother's claims, S.B. does not support her position. As noted above, it is insufficient to show that the exception applies by merely showing that the Children can derive some benefit from maintaining contact with her. Here, there was no evidence in the record to show that Mother occupied a parental role in the Children's lives. (See C.F., supra, 193 Cal.App.4th at p. 557.) The Children in this case did not spend much of their lives in Mother's care. There was no evidence to show that the Children would suffer any detriment upon the termination of parental rights. In fact, the evidence showed that the Children were thriving in their placement and were bonded to their caregivers. As recognized by the appellate court in C.F.,"[t]he children are entitled to stability and permanence through adoption. 'Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.' " (Ibid.)
In sum, while there is some evidence supporting a finding of a positive relationship between Mother and the Children, there is also evidence supporting a reasonable conclusion that the Children would gain a greater benefit from being placed in a permanent adoptive home with their current caregivers. Mother simply did not meet her burden to show that the bond between her and the Children was so strong and beneficial to the Children that it outweighed the benefit the Children would receive from having a stable, adoptive home. As the record clearly shows, the Children were bonded to their prospective adoptive parents and interacted with them as their parental figures. The Children were doing very well in their prospective adoptive home and they were emotionally stable there. The Children were attached to the prospective adoptive parents and looked to them for comfort, love, and safety, and the caregivers were committed to providing a permanent, stable, loving home for the Children. In sum, Mother has the burden to establish the applicability of the beneficial parental relationship exception in the lower court; on appeal, she has the burden of showing that the juvenile court's ruling was an abuse of discretion. We conclude that Mother has failed to meet this burden.
C. THE JUVENILE COURT PROPERLY ORDERED ADOPTION OVER GUARDIANSHIP
Mother contends that the juvenile court abused its discretion in ordering adoption as the permanent plan instead of guardianship. She asserts that because of "the relationship the children had with mother, the court should have chosen a permanent plan of legal guardianship." Father joins in Mother's argument.
"[G]uardianship is not in the best interests of children who cannot be returned to their parents." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) Guardianship is only the best possible permanent plan for children in circumstances where an exception to the termination of parental rights applies. (Id. at p. 1429.) Here, because substantial evidence supports the juvenile court's finding that section 366.26, subdivision (c)(1)(B)(i) did not apply, "it necessarily follows that the juvenile court correctly determined that adoption was the appropriate permanent plan" for the Children. (Beatrice M., at p. 1420.) The appellate court stated, "The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, 'Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' " (Id. at p. 1419.)
In this case, the Children were likely to be adopted by their prospective adoptive parents, and no exception to the termination of parental rights applied. Accordingly, the trial court properly found that legal guardianship is not an appropriate permanent plan for the Children.
DISPOSITION
The juvenile court's findings and orders are affirmed on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.