Opinion
D071166
03-29-2017
In re MASON M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DEANNA W., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519103A-B) APPEAL from a judgment of the Superior Court of San Diego County, Sharon L. Kalemkiarian, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk for Plaintiff and Respondent.
Deanna W. (Mother) appeals the order terminating her parental rights to her children Mason M. and Ethan W. (together, Children) entered at a permanency plan and selection hearing held under Welfare and Institutions Code section 366.26. Mother argues the court abused its discretion when it denied her section 388 petition without an evidentiary hearing, and also erred when it rejected her claim that the beneficial parent relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied when it assessed whether termination of her parental rights was proper. We conclude (1) the court properly denied her section 388 petition, and (2) substantial evidence supports the conclusion the beneficial parent-child relationship exception did not apply and the court did not abuse its discretion in terminating her parental rights.
All further statutory references are to the Welfare and Institutions Code.
I
FACTUAL AND PROCEDURAL SUMMARY
We set forth only those facts relevant to our evaluation of the court's rulings on Mother's section 388 petition and its judgment at the permanency planning hearing.
A. Background
In November 2014 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of Children alleging there was a substantial risk they would suffer serious physical harm or illness as a result of failure to adequately supervise or protect them. At a contested disposition hearing on April 29, 2015, the court made a true finding on the petition, declared Children dependents and removed them from Mother's custody and placed them in a licensed foster home. Mother was granted visitation privileges (including limited unsupervised visitation), and was ordered to engage in reunification services, including individual counseling, therapy to address her mental health issues, substance abuse services, and parenting classes.
B. The Reunification Period
The initial six-month reunification period was marked by some progress. However, during this period, Mother's housing situation remained unstable (including periods when she was homeless), her mental health issues remained in flux, she was arrested twice, and her judgment in selecting a support network was "poor." The assessment concluded she did not have the ability or means to care for Children, and needed to strengthen her mental health to be able to provide for Children. Agency's report prepared for the six-month review hearing recommended providing an additional six months of reunification services but continuing the placement of Children outside Mother's home.
At the October 21, 2015 review hearing, Children's counsel expressed concern over Mother's lack of progress and the impact of her medical and mental health issues on her progress, and supported Agency's request for a psychological evaluation of Mother and requested her medical records to determine whether to support an additional period of reunification services. The court set a new hearing date on termination of services as to Children's father and authorized the psychological evaluation. However, after Mother was subsequently incarcerated for a parole violation and was unable to make any progress on her reunification services, Agency and the children's Court Appointed Special Advocate (CASA) sought and obtained an order that the pending trial on termination of the father's reunification services include (as an additional trial issue) termination of Mother's reunification services. The court set a combined contested six-and 12-month hearing.
In March 2016 the court trial on the contested review hearing evaluated Agency's recommendation that reunification services be terminated and a section 366.26 hearing be held. After considering the Agency's reports and the testimony of both Mother and the social worker, the court found (1) reasonable services had been offered but Mother had made "minimal" progress in "alleviating or mitigating the causes necessitating placement," (2) there would be a substantial risk of detriment to Children's physical and emotional well-being if they were returned to her physical custody, and (3) there was no likelihood she could regain physical custody of Children by the "16-month mark." Based on those findings, the court terminated reunification services and set a section 366.26 hearing. However, the court allowed Mother to continue to visit Children.
C. The Section 366.26 Assessments
Agency filed a section 366.26 report, and addendums, recommending Mother's parental rights be terminated and a permanent plan of adoption be ordered. The social worker noted Mother's visits had been inconsistent through April 2016, with Mother missing almost half the visits during that period and, although her visits after reunification services were terminated had become more regular, Mother's interaction with Children during these visits was spotty; her attentiveness to them was inconsistent and at times inappropriate; and, when Ethan ran off on several occasions, Mother was inattentive and it was the caregiver who retrieved him. Children looked to the caregiver for attention, direction and comforting when frightened, and separated easily from Mother at the end of visits. The social worker opined Children's relationship to Mother was not a parental one but more akin to an extended family member. The social worker also reported Children were assessed as generally adoptable, with 27 approved adoptive families in San Diego County willing to adopt a sibling set with Children's characteristics. Additionally, Children were assessed as specifically adoptable because the caregivers with whom they had been placed since late 2014 wanted to adopt them.
The report filed by the CASA concurred in those recommendations.
The social worker opined Mother had consistently demonstrated poor decisionmaking skills as it related to the care and safety of Children, and Mother (despite a year of services) did not make progress. Indeed, social worker noted that a recently completed neuropsychological exam led the doctor to opine Mother's " 'functional and emotional behaviors . . . make me very concerned about her ability to safely and effectively parent.' " The social worker opined there was no detriment to Children if parental rights were terminated, and a permanent plan of adoption was in Children's best interests.
In supplemental reports filed prior to the section 366.26 hearing, the social worker also noted Mother had stopped participating in therapy sessions, and had been inconsistent in her attendance even when engaged in therapy. Indeed, the therapist stated it is "rare [when] she wouldn't recommend reunification" but this "is a case in which it seems that the children should not be returned to the mother." This report indicated Mother was not compliant with her substance abuse program and had tested positive for marijuana and alcohol, and may be feigning medical issues to obtain opioid prescriptions. Mother was also living in an apartment with a fiancé and two roommates, and the fiancé has a "long and very concerning criminal history" that is "very violent" but Mother did not agree this fact posed risks to Children's safety.
The CASA concurred with Agency's assessments and recommendations.
D. Mother's Section 388 Petition
At the pretrial status conference for the contested section 366.26 hearing, Mother filed a section 388 petition alleging there were changed circumstances warranting a new order placing Children with her and vacating the section 366.26 hearing. She alleged she (1) had completed a drug treatment program on June 30, 2016, (2) has attended therapy sessions with Ms. Campbell since June 29, 2016, (3) is taking a drug that has managed her seizures, (4) has had no recent experiences of anxiety or depression, and (5) lives in a two-bedroom home with her fiancé and two roommates and could dedicate one of the bedrooms to Children. She averred placement of Children with her and vacating the section 366.26 hearing was in Children's best interests because their relationship with her remained strong. Agency and the CASA objected that Mother failed to prima facie show that placing Children with her or reopening services was in Children's' best interests, and also argued Mother made no prima facie showing of changed circumstances because the conclusory statements contained in the petition were unsupported by any evidence.
However, the only "evidence" attached to the petition was an attachment verifying Mother had completed a drug treatment program, but that attachment also indicated it required "follow up" of written verification of her attendance at twice weekly 12-step meetings and random drug testing.
The court ruled that, to find changed circumstances, it would have to find "just based upon the surface of your motion . . . that you were now ready to parent the children, and I can't find that based on the information that I have. [¶] . . . I don't have information about . . . what you've done about your parenting abilities, the housing situation . . . it is not specific enough for me to find . . . a change of . . . circumstance that would be in the best interests of the children for them to be placed with you. . . . I don't even have evidence as to what your visitation has been like recently. . . ." Accordingly, the court denied the petition without prejudice.
E. The Contested 366.26 Hearing
At the section 366.26 hearing, the court heard testimony from Mother and considered the admissible evidence contained in the various reports and addenda filed by Agency and the CASA. The court, after finding Children were adoptable both generally and specifically, turned to whether the parent-child bond exception applied to overcome the preference for adoption. The court noted that visitation, although inconsistent up until March 2016, had been "regular" over the preceding seven months. However, the court determined the strength of their bond did not warrant application of the parent-child beneficial relationship exception because the evidence showed Children did not look to Mother for their safety, reassurance and comforting, or for stability. The court, finding by clear and convincing evidence Children were likely to be adopted and none of the statutory exceptions applied, ordered parental rights terminated and referred Children to Agency for adoptive placement. Mother timely appealed.
Although the court had denied Mother's section 388 petition without prejudice, Mother did not resurrect that motion at the section 366.26 hearing held a month later.
II
ANALYSIS OF APPEAL OF THE SECTION 388 RULING
Mother asserts on appeal the court abused its discretion by denying her an evidentiary hearing on her section 388 petition.
A. Legal Framework
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. . . . However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
A section 388 petition must show a change of circumstances, not merely changing circumstances, and such changed circumstances must also be substantial. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Indeed, because the proposed order must be in the best interests of the children, "[a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] ' "[C]hildhood does not wait for the parent to become adequate." ' " (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
"The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) Conclusory allegations unsupported by any evidentiary proffer in support of the allegations permits a court to conclude the prima facie showing was not met (In re Anthony W. (2001) 87 Cal.App.4th 246, 250-251), and the court may consider the entire factual and procedural history of the case in determining whether the petition makes the necessary showing. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) An appellate court will not disturb the trial court's decision to deny an evidentiary hearing on a section 388 petition absent an affirmative showing by the appellant that the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.) The burden is on the appellant to demonstrate the order was arbitrary, capricious, or patently absurd. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
B. Analysis
Mother has not demonstrated that the court's order denying an evidentiary hearing on her request, which sought an immediate return of Children to her custody because alleged changed circumstances warranted placing Children back in her custody, was an abuse of discretion.
Mother asserts on appeal that the court's order must be reversed because the court erroneously construed her request as one seeking immediate return of Children to her custody, and instead should have "liberally construed" her request as one seeking an order immediately returning Children to her custody plus postpermanency reunification and family maintenance services under section 366.3, subdivision (f). The record is clear that Mother did not request such order, and in fact stated (in response to the court's request for clarification of what Mother sought) that Mother only sought placement and would "submit" on whether the case should be closed or should include reunification services. Because Mother only sought placement, she has arguably forfeited the right to claim error insofar as the court allegedly misconstrued her request. (See, e.g., Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 ["[m]any dependency cases have held that a parent's failure to . . . raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court"].) However, we need not reach the waiver question because we are convinced the court's ruling was not an abuse of discretion even if her section 388 petition encompassed a request for reunification services in conjunction with placement.
First, the court was entitled to consider the sufficiency of the petition in light of the entire factual and procedural history of the case (In re Justice P., supra, 123 Cal.App.4th at p. 189) including the fact the section 388 petition was filed "on the eve of the section 366.26 permanency planning hearing [when] the children's interest in stability was the court's foremost concern and outweighed any interest in reunification." (In re Edward H. (1996) 43 Cal.App.4th 584, 594 (Edward H.).) As one court observed, when confronted with that milieu, a petition filed "at the eleventh hour and the fifty-ninth minute . . . offer[ing] a bare scintilla of proof that she was beginning to rehabilitate . . . [is] not enough to require or justify a hearing on return of the child to her after [nearly] two years." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Moreover, Mother's section 388 petition supported her claimed "changed circumstances" with an amalgam of conclusory allegations unsupported by any proffered evidence, or allegations facially lacking in foundation, and at best described changing rather than changed circumstances. For example, she stated she lived in a two-bedroom home with her fiancé and two roommates and claimed that, if Children were returned to her, she could dedicate one of the bedrooms to Children, without explanation of how that would be compatible with her two roommates' status. She claimed she was taking a drug that managed her seizures and had no recent experiences of anxiety or depression, without a scintilla of evidentiary attachments to buttress those claims. (In re Anthony W., supra, 87 Cal.App.4th at p. 251 [mother asserted she completed family reunification program including drug counseling and testing, and parenting classes; court concluded the statements were conclusory and unsupported by evidence such as certificates of completion or drug test and did not require evidentiary hearing]; accord, Edward H., supra, 43 Cal.App.4th at p. 593 [rejecting parents' position because it "would endorse vague and evasive section 388 petitions. . . . The references . . . to a 'prima facie' showing is not an invitation to section 388 petitioners to play 'hide the ball' . . . . If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality"].)
Mother's other allegations were of a similar conclusory and unsupported nature. For example, she alleged she had attended therapy sessions with Ms. Campbell since June 29, 2016, but attached only a business card from Ms. Campbell as her "proof" of that allegation. She also alleged she had completed a drug treatment program on June 30, 2016, but the letter attached to Mother's section 388 petition (as corroborative evidence for the allegation) specifically stated "[c]lients must provide written verification of their attendance at two 12-step meetings per week and submit to random drug testing," and Mother's petition contained no verification she complied with those "follow-up" tasks.
The absence of documentary verification of her visits, and indeed Mother's failure to resurrect her section 388 petition at the section 366.26 hearing, may be explicable by the fact that a subsequent investigation revealed Mother had only an "intake" visit with Ms. Campbell in May 2016, and then canceled or "no showed" on four of the six scheduled sessions between June and August 2016, the result of which was that Ms. Campbell "will not see the mother again." These circumstances reinforce the observations of the Edward H. court that permitting parents to satisfy the prima facie showing without attaching corroborative evidence "would endorse vague and evasive section 388 petitions . . . [and] invit[e] section 388 petitioners to play 'hide the ball. . . .' " (Edward H., supra, 43 Cal.App.4th at p. 593.)
At most, Mother's section 388 petition showed she had taken some incremental steps at changing her circumstances, but lacked a sufficient prima facie showing of substantial changed circumstances to warrant an evidentiary hearing on her claim that return of Children to her custody, with or without postpermanency reunification and family maintenance services under section 366.3, subdivision (f), would have been in Children's best interests. Accordingly, the trial court did not abuse its discretion in denying her section 388 petition without an evidentiary hearing.
III
ANALYSIS OF APPEAL OF THE SECTION 366.26 RULING
Mother asserts on appeal the court erred by terminating her parental rights and approving a permanent plan of adoption for Children.
A. Legal Framework
"At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred by the Legislature. [Citation.] The Legislature has provided an exception to the general rule of adoption: the court should not order a permanent plan of adoption when termination of parental rights 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.' " (In re Casey D., supra, 70 Cal.App.4th at p. 50, quoting former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).)
Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1) (In re Michael G. (2012) 203 Cal.App.4th 580, 589), such as the exception for the parent-child beneficial relationship exception. "In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.), italics added.)
"Interaction between [the] natural parent and child will always confer some incidental benefit to the child. The significant attachment from [the] child to [the] parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from [the] child to [the] parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) "[F]or the [beneficial relationship] 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." (Id. at p. 468.) Frequent and loving contact between parent and child, without the existence of a parental role to the child, may be insufficient to justify the selection of a permanent plan other than adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
On appeal, we employ a hybrid standard of review by applying "the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) The reason for this hybrid standard was explained in In re Bailey J. (2010) 189 Cal.App.4th 1308, where the court observed the assessment of whether an adoption exception applies involves two component determinations:
"Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. . . . [¶] The same is not true as to the other component of these adoption exceptions. The other component of . . . the parental relationship exception . . . is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (189 Cal.App.4th at pp. 1314-1315.)
B. Analysis
We conclude Mother has not shown the evidence, viewed in the light most favorable to the judgment (Autumn H., supra, 27 Cal.App.4th at pp. 575-576), was insufficient to support the determination there was not a significant parent-child bond between Mother and Children. Moreover, we are convinced Mother has not shown it was an abuse of discretion to determine that the benefits of adoption outweighed the detriment that would accompany severance of the relationship that had developed between Mother and Children.
The first prong of the beneficial relationship exception to the termination of parental rights is that the parent must prove he or she maintained regular visitation and contact with the child. (§ 366.26, subd. (c)(1)(B)(i); see also In re Helen W. (2007) 150 Cal.App.4th 71, 80.) The trial court concluded that, although it could have found this prong was not met because there was a long period of time during which Mother's visits were not regular and consistent, the court found, for purposes of its ruling, it would find that since March of 2016 her visitation with Children had been consistent. For purposes of our analysis we accept Mother satisfied this prong.
First, there was ample evidence from which the court could have concluded Mother did not have a significant parent-child bond with Children. The court found Mother's visits, although producing some positive interactions, showed Children did not look to Mother for their support, reassurance, emotional stability or safety. Children expressed little reaction to seeing Mother and separated from Mother with ease at the end of visits. Moreover, during their visits, Children sometimes became upset when the caregivers left for the unsupervised part of the visits and asked for the caregivers during that time, which required the unsupervised part of the visit to be shortened as a result. Moreover, when both Mother and caregivers were present during the supervised portions of the visits, Children often looked to the caregivers instead of Mother for comfort and support. The social worker opined, based on her observations, their relationship to Mother was not parental but was more similar to a relationship with an extended family member or friendly relative.
For example, during a May 13, 2016, visit at a bowling alley, Ethan triggered an alarm and became scared. He immediately ran over to the caregiver rather than Mother for help. At a visit on June 3, 2016, Mason did not want to play with Mother and instead asked for the caregiver. Later in the visit, Mason became upset with Mother and ran away from her. He called out for his caregiver, " 'momma,' " and calmed down only when she arrived at the end of the visit. At a visit on June 10, Mason again became upset with Mother and screamed out for the caregiver, calling her "mom." When Mother tried to correct him by telling Mason that she was his mother, he again called out for " 'momma Pamela.' "
In contrast, Children were thriving in their placement with the caregivers, refer to the caregiver as "mom," and rely on and seek out the caregivers to meet their needs. The trial court relied on these facts to conclude Children, although happy to see Mother, were "turning consistently to other adults for comfort," and that the relationship was not "strong" and Children did not "turn[] to [Mother] as a maternal figure." There was substantial evidence to support the conclusion Mother did not "occup[y] a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent" (In re C.F. (2011) 193 Cal.App.4th 549, 555), but rather the emotional attachment between Mother and Children was one of a friendly visitor or nonparent relative. (In re Angel B., supra, 97 Cal.App.4th at p. 468.)
Second, Mother has not shown the court abused its discretion in concluding she failed to prove the benefit to Children of continuing their relationship outweighed the benefits of adoption such that termination of parental rights would greatly harm them. As Autumn H., supra, 27 Cal.App.4th at page 575 explained, "the 'benefit from continuing the [parent/child] relationship' exception . . . mean[s] the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." When a child has been adjudged a dependent of the juvenile court, the child should not be deprived of an adoptive parent merely because the birth parent has maintained a relationship that confers a modicum of benefit, because preserving that modicum can detract from the child's need for a permanent parent. (See In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
Although we apply the abuse of discretion standard to review the court's determination that Mother failed to prove the benefit to Children of continuing their relationship outweighed the benefits of adoption such that termination of her parental rights would greatly harm them (In re Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315), we would reach the same conclusion even if we were to apply a modified form of the "substantial evidence" standard of review to this aspect of the trial court's ruling. (See, e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1528-1529.) --------
Here, Children had been out of Mother's custody for nearly two years and had been with the caregivers during that period. These caregivers provided for their day-to-day care, demonstrated a proactive ability to meet their physical, developmental and emotional needs, Children were strongly attached to caregivers and referred to each of them as "momma," and caregivers wanted to adopt them. Against benefits that would accrue to Children over the course of their formative years from the safety and security provided by an adoptive placement, Mother offered nothing more than the benefits they might enjoy from occasional supervised visits by a friendly visitor. On this record, Mother has failed to show the court abused its discretion when it concluded that continuing those visits did not outweigh the benefits of permanence and stability that could be achieved through adoption. (In re Anthony B., supra, 239 Cal.App.4th at pp. 396-398.)
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289 to assert that it was error to terminate her parental rights. We are convinced S.B. has no application here. In S.B., the child was three years old when taken into protective custody due to parental substance abuse, and the father had been the child's primary caregiver. S.B. was upset when visits with her father ended and she wanted to go with him. Moreover, there was an interaction study, and evidence S.B. spontaneously told her father she loved him and wanted to live with him, and the psychologist who assessed the parent-child relationship found the father's relationship with S.B. vacillated between parental and peer-like but opined that the child was bonded to him. (Id. at pp. 294-296.) In reversing the order terminating parental rights, this court found the S.B. trial court erred in failing to apply the beneficial relationship exception to adoption because it was not necessary for the child to have a primary attachment to a parent or that the parent maintains day-to-day contact with the child for the exception to apply. (Id. at p. 300.) This court explained that "[father's] devotion to S.B. was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [the father]." (Id. at pp. 300-301.)
This court has subsequently noted "that S.B. is confined to its extraordinary facts [and] 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." (In re C.F., supra, 193 Cal.App.4th at pp. 558-559.) Those extraordinary facts find no counterpart here. Unlike S.B., Children here were not upset when visits with Mother ended; to the contrary, both of them sometimes became upset when the caregivers left for the unsupervised part of the visit, asked for the caregivers throughout unsupervised parts of visits, and separated from Mother with ease at the end of visits. Additionally, this case has neither an interaction study nor a psychologist's opinion suggesting Mother occupied a parental role to rebut the social worker's opinion that Mother's relationship with Children was not parental. Finally, unlike the father in S.B., who regained his physical and psychological health during the case, Mother here appears to have made little or no progress on remediating the issues that led to removal of Children, and it appears her mental and physical health issues remain extant. S.B. provides no assistance to Mother, and we conclude Mother has failed to show the court abused its discretion when it concluded the preference for adoption was not overcome by the existence of the beneficial parent-child relationship exception.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.