Opinion
F076724
10-18-2018
In re JOSEPH W. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. C.P., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 517336, 517337)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
C.P. (mother) appeals the juvenile court's summary denial of her Welfare and Institutions Code section 388 petition and subsequent termination of her parental rights over her sons, Joseph W. and Jacob W. (collectively, the children). She contends the juvenile court abused its discretion in denying the section 388 petition and erred in finding the children were likely to be adopted and in declining to apply the beneficial parent-child relationship exception. We affirm.
All further statutory references are to the Welfare and Institutions Code.
The children's father, J.W., is not a party to this appeal. --------
FACTUAL AND PROCEDURAL BACKGROUND
Dependency petitions were filed alleging that Joseph W., age six, and Jacob W., age four, came within subdivision (b) of section 300. The petition alleged that the children were found unsupervised in their home with feces on their faces, smelling of urine. Father was locked in his room sleeping. A.H., the children's 17-year-old half-sister, was in the garage sleeping with her boyfriend, who stated he stays at the house to assist A.H. in the care of her brothers. Father appeared to be under the influence of drugs. The home was cluttered, with animal feces and moldy food throughout. Father stated there was nothing wrong with the home. A.H. told the social worker she cares for her brothers because father is usually locked in his room or not home and mother is almost always gone with friends or her boyfriend. She stated mother and father fight every time they see each other. She stated she cuts herself due to the stress of the household. She stated that mother and father smoke marijuana and methamphetamine and that she walked in on mother smoking methamphetamine a few months prior. Father told the social worker there are no issues in the home but admitted he would test positive for methamphetamine if he were tested. Mother arrived at the home while the social worker was present and stated that the home was dirty but not hazardous. She admitted to using methamphetamine three days prior.
The children were detained and placed in foster care.
Mother waived a jurisdictional hearing and submitted on the documents. The jurisdiction/disposition report indicated that both parents had a history of substance abuse, but both had previously achieved a significant period of sobriety. In the last year before the children were detained, they both relapsed into methamphetamine, marijuana, and alcohol use. The relapse was believed to be associated with difficulties dealing with one of the children's autism. The children were adjudged dependents of the juvenile court on September 30, 2015.
Reunification services were ordered for mother and father. Mother was ordered to complete domestic violence and clinical assessments, couples counseling with father, parenting classes, and an alcohol and other drug (AOD) assessment, as well as to follow substance abuse treatment recommendations and submit to drug testing. She was to have a minimum of one face-to-face visit with the children per week.
In the time leading up to the six-month review hearing, mother's compliance with the reunification services was poor. She was consistently difficult to contact. She failed to make any substantial progress with substance abuse treatment and did not complete her clinical assessment or make any progress with counseling or parenting classes. When she was tested for drugs, she tested positive.
On the day the six-month review hearing was scheduled, father represented to the court that the children might fall under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) on mother's side. The six-month review hearing was then continued several times over the next several months in order to perfect service to the tribes.
The six-month review hearing was finally held on August 5, 2016, and the court ordered continued services for both parents, noting progress for both parents was fair. At the time, mother had been in residential substance abuse treatment for approximately one week.
After the six-month review hearing, mother failed to return to the residential program and continued to fail to make any significant progress on her reunification plan.
During the reunification period, mother and father were convicted of child endangerment due to the state in which their children were found. Both were sentenced to 48 months of probation with 180 days in custody and a 52-week parenting class. Father served his custody sentence in jail, and mother served her custody sentence through the Alternative Work Program. On December 22, 2016, as part of her probation, she completed an AOD assessment. She tested positive for methamphetamines, amphetamines, and ecstasy. She admitted she used methamphetamine every two to three days. She entered residential substance abuse treatment on December 27, 2016. She tested positive for amphetamines upon admission.
She continued to make little progress in the other aspects of her reunification plan. On November 17, 2016, she had completed parenting group sessions but had not made progress with other components of her parenting classes nor completed individual counseling and was placed "on hold" for services from the facility. She attended five clinical assessment sessions but did not show up for an appointment on January 4, 2017, and did not complete her clinical assessment. Over the course of the reunification period, she was placed on hold for services at the parenting class and counseling facility a total of four times due to failure to show up for appointments.
The 12-month review hearing was held over a period of two days, February 7, 2017 and February 16, 2017. Mother asked for further reunification services. She made an offer of proof that due to her criminal case, she had entered residential substance abuse treatment and was 51 days' sober. She also was taken off "hold" at the parenting class facility, and had completed one of the three components of the parenting classes and was working on completing her clinical assessment. She was visiting the children every two weeks.
The court noted that because of all the continuances, the proceedings were taking place only a few days away from the 18-month review hearing, which is the outer limit for children over three, and that mother's recent enrollment in substance abuse treatment as a condition of her probation was not reason enough to grant her further reunification services. The court terminated services as to mother and ordered an additional eight weeks of services as to father because he was unable to access services while he was incarcerated.
At father's 18-month review hearing on June 8, 2017, his reunification services were terminated, and the matter was set for a section 366.26 hearing.
On June 14, 2017, mother filed a notice of intent to file a petition for an extraordinary writ challenging the setting of the section 366.26 hearing. She did not file the petition.
On September 21, 2017, the section 366.26 report was filed. It recommended that parental rights be terminated as to both parents and indicated that the children's current relative caregivers were certain to adopt them.
On September 29, 2017, mother filed a petition pursuant to section 388 for an order returning the children to her custody and vacating the section 366.26 hearing. She alleged that in the time since the juvenile court terminated her reunification services she had completed substance abuse treatment, maintained sobriety, completed some parenting classes, became gainfully employed, and secured housing separate from the children's father. The court set a hearing for the same day as the section 366.26 hearing to determine whether an evidentiary hearing would be held on the merits of the petition.
On October 18, 2017, the court denied mother's request for an evidentiary hearing on her section 388 petition. The court immediately proceeded to the section 366.26 hearing and terminated parental rights as to both parents. The court found that the children were likely to be adopted within a reasonable time and that the parents had not met their burden to show that the beneficial child-parent relationship exception to adoption existed. Mother filed a timely appeal to the order denying her section 388 petition without an evidentiary hearing and the order terminating her parental rights.
DISCUSSION
I. Denial of Evidentiary Hearing on Section 388 Petition
Mother contends the juvenile court erred in denying, without an evidentiary hearing, her section 388 petition to return custody of the children to her and vacate the section 366.26 hearing because her petition established the requisite prima facie showings entitling her to a hearing. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) However, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190; see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
" 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of mother's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
In her section 388 petition, mother alleged, to show changed circumstances, that she had completed residential and outpatient substance abuse treatment and had consistently tested negative for drugs. She alleged she had secured housing separate from father and that the children could live with her. She alleged she had completed 32 Child Abuse and Neglect (CAN) classes. She alleged she was gainfully employed. To support these allegations, she attached documents indicating that she completed residential substance abuse treatment, completed one outpatient treatment and had begun another, was consistently testing negative for drugs, was attending AA meetings and working with her sponsor and generally doing well with recovery, had completed some parenting classes (as a condition of probation) with satisfactory progress, and was on a scholarship bed at a sober living facility. She alleged that the requested order was in the best interests of the children because "[i]t would be in the best interest of the children to live in a stable and nurturing environment while being cared for by their mother."
At the hearing to determine whether an evidentiary hearing should be held, both the agency and counsel for the children argued that a hearing should not be granted because mother had not made a prima facie showing that return of the children to mother was in their best interest.
The juvenile court held that mother had demonstrated a substantial change of circumstances but noted that the children had been dependents of the court for almost 26 months. It noted the children seemed to be thriving in their current environment and needed stability at that stage of the proceedings. The court held it was just too late for the granting of the section 388 petition or the holding of an evidentiary hearing to be in the children's best interests and denied mother's request for an evidentiary hearing.
Because the court found mother made a showing of changed circumstances, our sole task is to determine whether the juvenile court abused its discretion in finding she did not make the requisite showing that the requested order was in the children's best interest. We find it did not.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, overruled on other grounds in John v. Superior Court (2016) 63 Cal.4th 91.) By the time of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Indeed, children have a fundamental independent interest in belonging to a family unit, and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Marilyn H., supra, 5 Cal.4th at p. 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 310.) 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Mother ignores this shift in focus. Her argument that the petition made the requisite showing is premised primarily on the fact that she is the children's mother. However, in light of the court's focus on permanence and stability and not reunification, her allegation in the petition that it is in the children's best interests to live with their mother is conclusory. It does not make a prima facie case because it does not include any facts which would support a finding that the children would be better off with her than continuing in their current placement. In other words, she did not attempt to rebut the presumption that continued out-of-home placement was in the best interests of the child. (See Marilyn H., supra, 5 Cal.4th at p. 310.) Neither in the juvenile court nor on appeal has mother addressed the children's needs for permanency and stability and how those interests would be advanced by placing the children with her. "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P., supra, 123 Cal.App.4th at p. 192.)
Mother asserts reversal is mandated based on two cases: In re Daijah T. (2000) 83 Cal.App.4th 666 (Daijah T.) and In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.). Both cases are distinguishable.
In both Daijah T. and Hashem H., the juvenile court denied the appellants' section 388 petitions without evidentiary hearings and the appellate courts reversed the orders, finding the appellants had made the requisite prima facie showings for hearings. (Daijah T., supra, 83 Cal.App.4th at p. 668; Hashem H., supra, 45 Cal.App.4th at p. 1793.)
Daijah T. is simply inapposite. There, the appellant's section 388 petition had alleged that the return of the children was in their best interest because she had completed reunification services in another matter, resulting in the return to her of the children's siblings with whom they shared a bond. (Daijah T., supra, 83 Cal.App.4th at p. 669.) The appellate court found this allegation had made a prima facie showing the return would be in the child's best interest, citing statutory law placing importance on keeping siblings together. (Id. at pp. 674-675.) Here, mother made no such allegation.
In Hashem H., the child was removed from the appellant's home due to the appellant's numerous emotional and mental problems which prevented her from regularly caring for the child and that the child's home was found in a filthy and unsanitary condition. (Hashem H., supra, 45 Cal.App.4th at pp. 1793-1794.) The appellant had alleged in her section 388 petition that she had been in individual therapy for more than 18 months. (Hashem H., at pp. 1796-1797.) She attached a letter to her petition wherein her therapist recommended the child be returned to the appellant's custody. (Id. at pp. 1797-1798.) She also alleged she had regular and consistent visitation with her child for more than a year, had participated in joint counseling with him, had stable employment and religious affiliation, and her current ability to provide a home for him on a full-time basis. (Id. at p. 1797.) The juvenile court denied the petition ex parte noting the appellant had not shown successful completion of therapy and that the letter from her therapist was unverified hearsay. (Id. at p. 1798.) The appellate court reversed. The court found the appellant was entitled to an evidentiary hearing because she made the requisite showing of changed circumstances so that the requested order would be in the best interest of the child by alleging her mental and emotional problems that led to Hashem's removal had been resolved through therapy. (Id. at pp. 1798-1799.)
Hashem H. is factually distinguishable because the issues that led to the removal of the appellant's child did not involve substance abuse. The California Supreme Court has recognized that the burden of showing the best interest prong is "especially difficult to sustain for a parent who failed to continue with substance abuse treatment during the reunification period." (In re Nolan W., supra, 45 Cal.4th at p. 1235.) Further, the appellant in Hashem H. had provided the court with a letter by a psychologist which recommended the children be returned to her. The appellant in that case showed that the problems that led to the child's removal had been resolved. Mother made no such showing here. Though mother provided letters indicating she was doing well in her recovery, none of these made mention of her ability to parent. Rather, her progress report for her CAN classes indicated that her progress was "satisfactory," but not the highest category, "superior," and she was indicated as being at moderate risk for further abuse or violence.
Moreover, to the extent the Hashem H. court does not analyze both changed circumstances and best interests, we cannot follow that court's example. More recent cases consistently analyze a section 388 petition for both changed circumstances and factual allegations of best interest. (See Daijah T., supra, 83 Cal.App.4th at p. 672 ["a party must plead facts showing that the best interests of the child may be promoted by the proposed change of order, because our Supreme Court has expressly approved a case that acknowledges such a pleading requirement"; see also In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Mother also points out that visitation logs demonstrating mother's positive visits with the children as well as comments and actions by the children indicating they wanted to live with their parents on the record compelled the juvenile court to grant the evidentiary hearing. She argues the comments by the children needed to be considered more "seriously" by the juvenile court and that the court "should have further considered the ages of the children." However, in doing so, she asks us to reweigh evidence, which we are precluded from doing. (See Stephanie M., supra, 7 Cal.4th at pp. 319-326.)
Finally, we find it worth noting that mother did not make any substantial efforts at achieving sobriety until she was required to as a condition of her criminal probation. Thus, her incentive to get sober was stronger when faced with possible incarceration than with the possible termination of her parental rights. With this on the record before the juvenile court, and given mother's failure to establish the children's interest in permanency and stability would be promoted by returning the children to her custody, we conclude the court did not abuse its discretion by denying mother's request. (See Stephanie M., supra, 7 Cal.4th at p. 318.)
Mother also claims her due process rights were violated because the juvenile court relied on information from the section 366.26 report to deny the evidentiary hearing. Specifically, mother argues the juvenile court's comment that the children seemed to be "thriving" could have only come from the section 366.26 report and thus was improperly relied upon because mother did not have an opportunity to cross-examine the social worker on the report. We find no merit to her claim.
As we have discussed, the record establishes mother did not make a prima facie showing that the proposed order would be in the children's best interest. Though the court made a comment that the children were "thriving," assuming arguendo it got that information from the section 366.26 report, its order was not dependent on that comment. At that stage of the proceedings, out-of-home placement is presumed to be in the best interest of the children. (Marilyn H., supra, 5 Cal.4th at p. 310.) It was mother's burden to show in part that placement with her was more beneficial than out-of-home placement. (Ibid.) The cases mother cites are inapposite because they deal with situations where the court did grant a section 388 petition hearing and due process was denied in the context of the hearing. (In re Matthew P. (1999) 71 Cal.App.4th 841; In re Lesly G. (2008) 162 Cal.App.4th 904.) Here, the proceedings had not advanced to that point, and as discussed, the court was acting within its discretion in finding mother had not shown the best interest of the children would be furthered by the order and properly denied an evidentiary hearing. Thus, there is no merit to her due process claim.
II. Termination of Parental Rights
Mother argues the order terminating parental rights must be reversed on two grounds. She first contends that the evidence was insufficient to support the court's finding that the children were likely to be adopted. She also contends that the court erred when it found that the beneficial parent-child relationship exception to adoption did not apply. We find no merit to either contention.
A. Adoptability
Mother contends there was insufficient evidence to support the juvenile court's finding that the children were likely to be adopted. We disagree.
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).)
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In determining adoptability, the juvenile court assesses the child's age, physical condition and emotional state and how these characteristics affect a prospective parent's willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) " '[A] prospective adoptive parent's willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.' " (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.), italics omitted.)
In assessing adoptability, some courts have divided children into two categories: those who are "generally adoptable" and those who are "specifically adoptable." A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) " 'When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.' " (Id. at p. 494.) We do not find it necessary to weigh in on the parties' discussion of general versus specific adoptability. Those terms are not mentioned in section 366.26, the statute governing termination of parental rights. Further, the juvenile court is not required to assess the general and specific adoptability of a child or make such findings. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time. We find there was substantial evidence before the juvenile court to make such a finding in this case.
The section 366.26 report indicated that the children were currently living with Mr. and Mrs. M., their paternal aunt and uncle. The report alleged Mr. and Mrs. M. were "certain" to adopt the children if given the opportunity. They had been in the children's lives since their infancy. Prior to the children's dependency, Jacob lived with them for half his life while mother and father focused on Joseph. The children were placed with Mr. and Mrs. M. for approximately one year at the beginning of the dependency proceedings, and then the children were returned to foster care because Mr. and Mrs. M. were having trouble dealing with mother and father and some of Jacob's behaviors. Approximately eight months later, Mr. and Mrs. M. realized they missed the children and that they were part of their family and requested them back. At the time of the section 366.26 hearing, the children had been with the prospective adoptive parents for approximately five months in addition to the year they spent with them at the beginning of the proceedings. The report indicated the children were doing well with them. Mr. and Mrs. M. were indicated as having no criminal history and no history with the child welfare system and as understanding the responsibilities and legal and financial rights of adoption.
Mother argues that the evidence supporting the finding that the children were adoptable was insufficient because Mr. and Mrs. M. requested removal of the children at one point in the proceedings and that they had not begun a home study. She also points out one of the children's autism rendered him not "generally adoptable." She again asks us to reweigh the evidence before the juvenile court. We find there is sufficient evidence to support the finding that the children were likely to be adopted because they were living with relative caregivers who had indicated they would adopt them. There is no evidence that the prospective adoptive parents had not begun or completed a home study nor would this have been required for the juvenile court to make a finding of adoptability. Nor was there any evidence on the record that the prospective adoptive parents would have any impediments to completing a home study.
The court's finding that the children were likely to be adopted within a reasonable time was supported by sufficient evidence.
B. Beneficial Parent-Child Relationship Exception
Mother also contends that the court erred in finding that the parents had not carried their burden to prove the beneficial parent-child relationship applied.
When the juvenile court finds a minor is likely to be adopted, it is generally required to terminate parental rights and order the minor to be placed for adoption. (§ 366.26, subd. (c)(1).) If the court finds by clear and convincing evidence that the minor is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the minor because of a specific statutory exception to termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).)
The finding of a beneficial parent-child relationship is one of the statutory exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Specifically, section 366.26, subdivision (c)(1)(B)(i), states: "[T]he court shall terminate parental rights unless ... [¶] ... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
In Autumn H., the court explained the "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Therefore, more is required, and the preference for adoption is overcome if severing that relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed. (Ibid.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (In re Zachary G., supra, 77 Cal.App.4th at p. 811.) Evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.)
The beneficial parent-child concept has been described as "a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (In re Casey D., supra, 70 Cal.App.4th at pp. 50-51.)
There is a split of authority concerning the standard of review in this context. Under any of these standards of review, the practical differences between them are insignificant because they all give broad deference to the juvenile court's judgment. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We should interfere only if under all the evidence viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences upholding the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted; and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the juvenile court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Once the court found the children adoptable, it was the parents' burden to show termination of parental rights would be detrimental to the children under the beneficial parent-child relationship exception. While mother maintained somewhat regular visitation and contact with the children, the issue before the juvenile court was whether the children would benefit from continuing their relationship with mother and, if so, whether there was a compelling reason for determining that termination would be detrimental to them.
Mother contends the visitation notes provided by the department established a close relationship between mother and the children, citing all the positive interactions mother had with the children during their visits. These include instances of mother and the children being affectionate with one another and playing together. Mother cites one instance where she disciplined Jacob when he fought with Joseph over a toy to establish she had a parental relationship with them. As the case law indicates, loving visits are not enough to carry the burden required to overcome the strong presumption for adoption.
Throughout the reunification period, mother had many visits with the children. She started reunification services with weekly visits, and over time, she visited less frequently for various reasons such as inability to visit with father because they could not get along and the physical distance between her and the children. She cancelled several scheduled visits due to illness, and many were cancelled for her because she was late. Some visits she simply missed without calling. It appears from the reports that she consistently greeted and said goodbye to the children with hugs and kisses. She often played and talked with the children. They called her "mommy." However, there are also many reports of her not interacting with them at all, spending time on her cell phone, having a difficult time controlling her emotions around them, and not supervising them properly. It was indicated on many occasions that her parenting skills needed improvement and that she had trouble handling them for even short periods of time. It does appear that her sobriety improved the quality of her visits with the children. Once sober, instances of talking and playing became more frequent and she appeared to have an easier time controlling her emotions around them. However, once she was sober and until the section 366.26 hearing, her visits had decreased to only once per month.
Further, there was evidence on the record that Jacob lived with his aunt and uncle for half of his life before he became a dependent of the court. He was a dependent of the court for more than two years. Thus, he was out of the custody of his mother for most of his life (four of six years). Joseph appears to have been in her custody for a longer period; however, the reports consistently stated he was improving in out-of-home placement.
At best, the evidence supports the conclusion that the children enjoyed mother's visits. Mother, however, did not present any evidence that the children would be greatly harmed if their relationship with her were severed. There was no testimony about whether the children missed mother or asked for her when she was not there. Mother did not present a bonding study that might have revealed the extent of their bond and whether the children would be harmed if that bond were severed. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503, 533-534 [the mother failed to demonstrate harm would ensue from termination of parental rights where the record showed that the child easily separated from the mother at the conclusion of visits and readily returned to the caretaker's home, and there was no bonding study or evidence to counter the social worker's conclusion that the child would not suffer any detriment].) "[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanen[t] plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
An example of sufficient evidence of detriment is found in In re Jerome D. (2000) 84 Cal.App.4th 1200, where the appellate court concluded the juvenile court erred in failing to find the beneficial parent-child relationship exception applied when the nearly nine-year-old son had lived with his mother for the first six and one-half years of his life, he "seemed lonely, sad, and ... 'the odd child out' " in his placement, he wanted to live with his mother, he enjoyed unsupervised night visits in her home, and a psychologist opined the son and his mother "shared a 'strong and well[-]developed' parent-child relationship and a 'close attachment' approaching a primary bond." (Id. at pp. 1206-1207.) Similarly, in In re Amber M. (2002) 103 Cal.App.4th 681, the appellate court reversed termination of parental rights, finding the exception applied, where a psychologist, therapists, and the court-appointed special advocate all concluded a beneficial parental relationship clearly outweighed the benefit of adoption, the two older children had a strong primary bond with their mother, and the younger child was strongly attached to her. (Id. at pp. 690-691.)
Here, mother did not demonstrate harm would result from termination of parental rights like that demonstrated in these cases. She did not offer any evidence of great detriment or any evidence at all beyond what was in the visitation logs. Based on this record, the juvenile court could not reasonably conclude that the children would suffer great detriment if mother's parental rights were terminated, so that the beneficial parent-child relationship exception to adoption should apply.
DISPOSITION
The orders are affirmed in all respects.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.