Opinion
E073243
01-21-2020
In re M.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle d. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J267236) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle d. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
Plaintiff and appellant K.S. (mother) challenges the termination of her parental rights by the juvenile court at a Welfare and Institutions Code section 366.26 hearing to M.B. (a girl born March 2015, minor). 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
On September 8, 2016, San Bernardino County Children and Family Services (CFS) received an immediate response referral regarding allegations of general neglect, physical abuse, and emotional abuse to J.B. (a boy, born February 2008), N.B. (a girl, born March 2009), V.B. (a girl, born March 2010), and minor. J.B., N.B. and V.B. (collectively, siblings) reported an incident of domestic violence between mother and father. J.B. told his teacher that "mother and father were arguing really bad the night before and the father was punching mother in the chest with his fist and the mother was crying." When a social worker interviewed J.B., he informed the social worker that he and his sisters witnessed this incident. Moreover, J.B. stated that father hit J.B. while J.B. was trying to protect mother during the incident. J.B. also stated that father (1) punched mother in the chest with his fist; (2) held her at gunpoint while holding minor, who was 18 months old at the time, in his arms; and (3) threatened to kill mother. J.B. reported that he had stayed up all night trying to protect mother. J.B. also reported that "father drinks and does drugs all the time." Furthermore, J.B. stated that this was not the first time father threatened to kill mother by holding her at gun point.
Neither father nor siblings are parties to this appeal.
Additionally, according to J.B., father "kept trying to kick the mother and children out of the home." When mother was able to get minor from father, mother "took all the children to a hotel." Father, however, "kept calling his mother, threatening her with burning the house down, so she eventually went back to the home." Although the siblings were unable to sleep, they attended school the next day. At school, J.B. was upset while N.B. shook with fear thinking that father would kill mother. V.B. stated that father threatened to kill mother "a lot." A similar referral made a few weeks prior, August 22, 2016, was also under investigation.
V.B. told a San Bernardino County Police Department deputy that the children missed school often because of domestic violence. She proposed a solution by asking the police to arrest father "or make him move out." In the alternative, V.B. wanted the police to stop by the house daily so mother and father would not fight.
When the police interviewed mother, she denied that father resided in the same house. She stated that father "comes and goes." Mother "admitted to there being both verbal and physical domestic violence between her and the father." Although mother first denied an argument with father the night prior, "mother eventually admitted that they had an argument the night before and she and the children went to a hotel room." Father called mother at the hotel and threatened to burn their clothes if they did not return. Therefore, mother and the children returned to the home.
CFS "recommended that the children needed to be taken into CFS custody due to the extreme danger of the parents' domestic violence and the mother being more protective of the father rather than the children." Mother consented. At this time, father's whereabouts were unknown.
On September 12, 2016, CFS filed section 300 petitions under subdivision (b), failure to protect; subdivision (c), serious emotional damage; and subdivision (g), no provision for support, on behalf of all four children.
At the detention hearing the next day, the juvenile court placed minor in the temporary care of CFS and ordered separate visits for the parents. Minor and siblings were placed together in foster care. The court ordered visitation occur one time a week for two hours, supervised by CFS. That same day, both mother and father filed ICWA-020 forms denying any Indian ancestry.
On September 29, 2016, CFS filed a jurisdiction/disposition report. In the report, the social worker recommended the dismissal of the section 300, subdivision (g), allegation, and to find the reminder of the allegations true. The dispositional recommendation included reunification services.
When the social worker interviewed mother on September 27, 2016, "mother admitted to engaging in physical and verbal altercations with the father in the home." According to mother, "the physical altercations occur 'once in a month if any, which involved pushing, shoving, and hitting.' " The verbal altercations occurred approximately five days per week, " 'almost on a daily basis.' "
Mother acknowledged that exposure to domestic violence affected the children. Mother stated that she told father that the domestic violence " 'affects the kids and that my son is learning from him.' " J.B. exhibited aggressive behaviors toward his sisters. Before his removal, J.B. used to kick the wall and hit "stuff." The foster parents reported that J.B. was aggressive toward his sisters and "hit the older girls for no reason."
Mother visited the children every Tuesday for two hours. Her interaction with the children was appropriate. CFS reported that "[t]he children are bonded with the parents and they have cried after leaving their visits."
On November 4, 2016, the parents entered into a mediation agreement with CFS. The parents submitted on the petition based on CFS's reports. The court sustained the petition; declared the children dependents under section 300, subdivisions (b)(1), and (c); awarded father and mother reunification services; and allowed two hours of supervised visits per week. The children remained placed together in the foster home of Mr. and Mrs. G.
Mother requested that a paternal aunt be assessed for the children's placement. The juvenile court gave CFS authority to place the children with any appropriate relatives upon the relative assessment unit's approval.
On January 18, 2017, CFS filed a section 387 petition seeking to remove minor from her placement. According to the report, on January 13, minor was seen at CHOC with bruising to the right check and left eye. The examining physical determined that minor suffered from a subdivision-conjunctival hemorrhage on the upper nose, redness and bruising on her left nostril, and a bruise to the inner ear. The physician "expressed concern for non-accidental trauma." Because of these injuries to minor and the concern that they were caused by physical abuse, CFS recommended that minor and siblings be placed in a higher level of care. Consequently, minor was placed in the home of her relative caregiver, Mrs. L., and siblings were placed together in the foster home of Mrs. S.
In the interim, mother visited the children once a week. Mother was "very consistent with her visits" and "always" arrived on time. Her interaction with the children was "positive." The visitation supervisor, however, was concerned because mother failed to address some of the children's behavioral issues and negative behaviors. Mother recognized these concerns and acknowledged that she needed to work on them. She believed that her parenting classes were helpful and planned to use "some of her new techniques" during visits.
CFS opined that the prognosis for reunification with mother was "good." Therefore, CFS asked the court for discretion to liberalize mother's visitation with the children to "unsupervised" and/or "overnight/weekend" when "deemed appropriate."
At the hearing on the section 387 petition on January 19, 2017, the court sustained the supplemental petition, detained the children, removed minor from the home of her relative caregiver Mrs. L. and maintained her in the home of the V. family, and continued siblings' placement with Mrs. S. The court also ordered sibling visits.
The court did not modify mother's visitation but gave CFS the discretion to liberalize mother's visits "as to frequency and duration." On February 2, 2017, the court granted mother "unsupervised day visits" with the children, and allowed "overnights/weekends" when CFS deemed them appropriate.
On April 24, 2017, CFS filed a six-month review hearing report. In the report, CFS recommended that the court continue the parents' reunification services. Minor remained in her separate foster care placement with the V. family.
CFS reported that mother had "completed a good portion of her case plan with moderate progress," and that she appeared to be "insightful about the safety concerns in her relationship." Mother stated that she would not resume her relationship with father.
Mother consistently visited the children—once a week for two hours. Her interaction with the children was appropriate. Her visits increased to four hours a week but CFS did not believe that overnight visits were appropriate because of mother's unstable housing.
On May 3, 2017, the juvenile court maintained the children as dependents, increased mother's visitation to four hours a week, and "unsupervised to include overnights and weekends when appropriate." The court also continued the parents' reunification plans.
On July 10, 2017, CFS moved siblings to a new foster care placement.
On October 12, 2017, CFS filed a 12-month review hearing report. In the report, CFS recommended that mother continue with reunification services but to terminate father's services. Minor remained with the V. family.
Mother completed her case plan and was given a good prognosis in individual therapy. Mother maintained consistent visits with the children. In September 2017, mother started to have overnight visitations with the children in their maternal grandmother's (MGM) home. The visits went well with no reported issues. However, on October 1, 2017, the children reported seeing father; mother denied father was present.
Although CFS noted that mother wanted to have her children back, it was concerned that mother was still in a relationship with father. CFS cautioned: "It is vital that [mother] understand the risk of allowing unauthorized visitation with [father] and the risk of domestic violence..."
On December 1, 2017, the juvenile court maintained the children as dependents, terminated father's reunification services, continued mother's services and unsupervised visitation, deemed "return to home of mother" the appropriate permanent plan, and set an 18-month review hearing.
On February 27, 2018, CFS filed an 18-month review hearing report. In the report, CFS recommended that the court continue mother's reunification services for an additional 60 days. Minor remained in her separate placement with the V. family.
The report indicated that mother consistently visited with the children and the visits were successful. The children were bonded with mother. CFS was "optimistic" that the children would return to mother's custody. Mother, however, struggled to secure adequate housing and was unable to provide the children with a stable environment. CFS wanted to give mother additional time so she could try to obtain stable housing.
On March 9, 2018, the juvenile court found "extraordinary circumstances" to extend mother's services for an additional 60 days and continued the 18-month hearing to May 8, 2018.
Prior to the May 8, 2018, hearing, mother's domestic violence advocate, A.P., expressed an interest in allowing mother and her children to reside with A.P. CFS deemed her home as appropriate. At the hearing on May 8, 2018, the court ordered a 29-day extended visit for mother with the children in A.P.'s home, and continued the 18-month review hearing. Mother's extended visit with the children went well for about two weeks until May 24, 2018. A.P. told CFS that she requested mother to move out for fraternizing in her home and for breaking "rule after rule." CFS returned the children to their respective placements.
In an additional information report dated June 6, 2018, CFS recommended that the court terminate mother's reunification services.
At the hearing on June 7, 2018, the juvenile court terminated mother's statutory services but offered mother discretionary services under the children's plan. The children's counsel requested that the children be placed together "if possible in an alternative home." Unsupervised visits continued for mother with overnights and weekends at MGM's home.
On June 12, 2018, siblings were placed together in the home of Ms. M. The next day, CFS returned minor to the home of the V. family.
The section 366.3 report dated December 7, 2018, recommended the setting of a selection and implementation hearing for the children. The quarterly report from the foster family agency (FFA) reported that minor "continu[ed] to be well adjusted to the foster home. [Minor was] attached to the foster parents." Moreover, minor was dependent on her foster parents, and her foster mother worked with the FFA to develop minor's psychological, independent/functional skills, and physical development. The FFA social worker noted that minor had been placed with this foster family "for a long time then she was reunified with her bio-mother, but after a month came back to care (on 6/13/18). Minor [was] treated as a member of the foster family." Minor interacted well with other members of the foster family. Minor was also meeting most of her milestones but continued to struggle with speech.
The additional information report also summarized how minor's siblings were doing in their placement.
The report indicated that mother continued to visit consistently with the children. Starting in mid-September, mother also received phone calls with minor twice a week for five minutes. The visits were mostly appropriate and minor enjoyed the visitations with mother and siblings.
On November 28, 2018, CFS filed a post-permanency report recommending that the court set a section 366.26 hearing. The siblings had been placed in the "FFA home of Ms. A." Minor remained in her separate foster care placement with the V. family.
Mother had obtained a full-time job and secured adequate housing. CFS, however, did not believe that mother established a suitable child care plan. CFS was also concerned that mother exposed the children to a new relationship and maintained contact with father.
At the hearing on December 7, 2018, mother set the matter contested on the issue of return. The court continued minor in her placement with the V. family and expressed its preference to place all four children in a concurrent planning home together. That same day, CFS placed minor with the J. family.
In a report dated January 29, 2019, CFS stated that mother had "been caught several times" with father. Although father did not reside with mother, he was observed at her home "several times per week." A social worker saw father's truck parked in front of the home. While the social worker was walking through the home, she discovered father sleeping on mother's bed. Mother claimed that the person was her cousin. Later, the social worker confirmed that the sleeping man was father. The social worker recommended that supervised visits should be held at a CFS office.
At the contested January 29, 2019, hearing, mother objected to the termination of her discretionary services, and to the setting of the selection and implementation hearing. The court terminated mother's services, continued minor in her foster care placement, determined her appropriate permanent plan was adoption, continued mother's supervised visitations, and set a section 366.26 hearing. The court continued the siblings together in their foster care placement, continued supervised visits for mother, and set a section 366.26 hearing. The juvenile court advised mother of her writ rights.
On February 1, 2019, mother filed her notice of intent to file a writ petition, case No. E072079. On February 20, 2019, mother's counsel filed a "non-issue writ." On February 29, 2019, we dismissed mother's petition.
On April 5, 2019, CFS filed a non-appearance review packet. In the packet, CFS requested that several maternal and paternal relatives be ruled out for placement. Minor was placed with Ms. J. on December 7, 2018, and siblings were placed with Ms. A. Both homes were concurrent home placements and deemed appropriate for permanency planning. On April 14, 2019, the juvenile court ordered that certain maternal and paternal relatives be ruled out for placement, ordered that "all prior orders, not in conflict with this order, are in full force and effect," and continued the matter to May 29.
On May 15, 2019, CFS filed its section 366.26 hearing report. CFS recommended that the court terminate mother's parental rights with respect to minor, and place minor for adoption. In the social worker's opinion, minor was adoptable due to her young age and Ms. J.'s desire to adopt her. Overall, minor was in good health. She, however, continued to work through her speech delays.
The report noted that over the five months minor resided with Ms. J., minor developed an attachment to the family and was embraced by the family. Ms. J. acted in a parental role for minor and wished to provide permanency for her. Moreover, minor appeared very comfortable with the family and even showed the social worker around in her new home and bedroom. The social worker observed minor walk over to Ms. J. and respond "affectionately without being prompted." The social worker believed that there was "a genuine attachment and comfort between Ms. J. and the child." Ms. J. was dedicated and committed to raise minor to adulthood, and adoption was recommended as the most appropriate plan for minor. The J. family maintained minor's connection to extended family members, including the siblings; the family was open to maintaining contact with the siblings under the permanency plan.
On July 11, 2019, counsel for minor's siblings filed a section 388 petition asking for his clients to present evidence at minor's section 366.26 hearing. The court set the request for a hearing on the same day as the section 366.26 hearing on July 15, 2019.
At the hearing on July 15, the court noted that minor's siblings had the right to assert the sibling bond without the section 388 petition. The court stated: "And you filed a 388 to that effect, but I don't know that you needed to do that. I think your clients have the right to assert that [sibling] bond, as do the parents, frankly. But I can grant it and allow you to call any of your clients you wish."
The court then proceeded with the section 366.26 hearing. Mother testified that prior to minor's removal, minor had resided exclusively with mother. During the dependency, mother visited minor. Although the visits were supervised initially, they progressed to unsupervised. Finally, mother was granted a 29-day visit with minor. During supervised visits, mother and minor ate and played games. Mother taught minor her name, age, and where her eyes and ears were. The siblings also engaged with minor. Mother and the children played at the park and went to the movies during unsupervised visits. According to mother, the visits went "very well." During weekend and overnight visits, mother noted that "it would be like we were never apart from each other." The children's extended visit also went well. Minor was happy and excited to be with her family. Mother stated, "[minor] was fine. She would stay with me. We would talk. I would put her in the stroller and walk the kids to school and I would be with her. We would play. We would watch cartoons. She loves 'Toy Story,' so she would always tell me to put 'Toy Toy' on. That's what she called it." Minor always called mother "mom."
Mother testified that the siblings loved minor. They played with minor, chased her and made her laugh. "Even though [minor] was only a certain age they would tell her jokes. She would laugh." Minor called J.B., "bubba," and referred to V.B. and N.B. as her sisters.
Mother believed that minor shared a bond with her, and with her siblings.
J.B testified. He stated that he and minor lived together before their removal. He also lived with minor during an extended visit in 2018. When they were together, he played with minor. He held and hugged minor, and she hugged him back. Minor told J.B. that she loved him. J.B. stated: "She's just funny. Like, she makes jokes all the time. And every time she falls, like, she doesn't get hurt, but she starts laughing and stuff like that." Minor called him "Bubba" and called N.B. "Lee." Minor called V.B. by her name.
J.B. understood what adoption meant. He thought adoption would be a good idea for minor—"for some reasons yes and some reasons no." J.B. testified that he shared a bond with all his sisters, including minor. He believed minor would miss her siblings if she was adopted. He wanted all four of them to be together. If they could not be together, J.B. wanted to "at least . . . still get to see [minor]" a lot. He said that he would be "sad" if he didn't get to see his little sister.
At the conclusion of the hearing, mother's counsel asked the juvenile court to apply the parental benefit and sibling exception to adoption. The siblings' counsel asked the juvenile court to apply the sibling-bond exception to adoption. Minor's counsel, however, believed that minor needed the stability provided through adoption. Moreover, when minor was asked if she wanted her current caregivers to be her forever home, she said yes. CFS joined minor's counsel's request to terminate parental rights. Counsel pointed out that minor's caregivers were willing to maintain the sibling relationship.
Following closing arguments, the juvenile court rejected the beneficial parental relationship and sibling bond exceptions, found minor adoptable, terminated mother's and father's parental rights with respect to minor, and placed minor for adoption. Although the court saw "a lot of love between the parents and the children and the children amongst themselves," the court concluded that the bond did not outweigh the benefit of permanency that the adoption conferred on minor.
On July 16, 2019, mother filed a timely notice of appeal challenging the order terminating her parental rights.
DISCUSSION
A. THE JUVENILE COURT PROPERLY FOUND THE PARENTAL EXCEPTION DID NOT APPLY
Mother contends that the juvenile court erred in terminating her parental rights because the parental bond exception to the termination of parental rights applied.
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), 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.B. (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., supra, 164 Cal.App.4th at p. 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, although mother has demonstrated that she had maintained contact with minor as permitted, she failed to show that minor would benefit from continuing the relationship and that she would be greatly harmed should parental rights terminate. As previously stated, "the parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 (L.Y.L.), quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The second requirement for the parental benefit exception to apply requires that mother prove that J.S. would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) "The existence of this relationship is determined by '[t]he 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 Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H., supra, 27 Cal.App.4th 567.) "In other words, for 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 Angel B. (2002) 97 Cal.App.4th 454, 468.)
Here, while mother acted as a "friendly visitor" playing with toys and games, and taking minor to the movies during visits, mother simply did not meet her burden to show that the bond between her and minor was so strong and beneficial to minor that it outweighed the benefit minor would receive from having a stable adoptive home. As provided in detail above, minor was removed from mother's care when she was only 18 months old in September of 2016. Over the next 33 months, minor resided out of mother's care in several placements. After her initial removal, minor resided in foster care with Ms. G. At mother's request, a paternal relative was assessed and approved for minor's placement; minor resided there from November of 2016 until January of 2017. Minor was removed from that placement when she sustained non-accidental trauma. Once minor was released from the hospital, she was placed in foster care with the V. family until May of 2018. At that time, minor was briefly placed with mother on an extended visit. Three weeks later, however, mother violated the conditions of her extended visit and minor was returned to the V. family until December of 2018. When reunification with mother no longer seemed feasible, minor transitioned to a concurrent placement home; the family embraced minor as a member of the family. In sum, out of the 33 months since minor's removal, mother acted as a parent to minor for three weeks when minor was placed with mother on an extended visit. Despite the evidence that mother appropriately interacted with minor and that she loved minor, the evidence simply is not enough to establish that minor was so bonded with mother that it would be in her best interest to forego the benefits of adoption.
Mother relies on In re S.B., supra, 164 Cal.App.4th 289 in support of her position. In In re S.B., the father lost custody of his child following his arrest on drug-related charges. The child was placed with her maternal grandparents. (Id. at p. 293.) Following the change of custody, father visited the child regularly and complied with every aspect of his case plan. (Id. at p. 298.) At the section 366.26 hearing, the juvenile court concluded that, while the child and father had a moderately strong relationship, it was more peer-like than parental, and the child turned more to her grandparents as parental figures. (Ibid.) It determined that while the father and child shared an emotionally significant relationship, it did not rise to the level required by the beneficial relationship exception. (Ibid.) The appellate court reversed, holding there was no evidence to support the court's finding that the father did not have a significant parental relationship with the child. (Id. at p. 301.) The court noted that the father was the primary caregiver for three years prior to losing custody. The child continued to display a strong attachment to the father after he lost custody; she was unhappy when visits ended and tried to leave with him. (Id. at p. 298.) The social worker reported that the father " 'demonstrates empathy and the ability to put himself in his daughter's place to recognize her needs.' " (Id. at p. 294.) The social worker stated, " 'It pains the Agency not to be able to reunify [the father] and his daughter . . . because of his consistent efforts to alleviate and or mitigate the reasons his family was brought to the attention of the court.' " (Ibid.) The court concluded that a child could not have such a "significant attachment to a parent without the parent's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (Id. at pp. 298-299.) The court noted that the beneficial relationship exception did not require day-to-day contact between the child and the parent, or a primary attachment to the parent. (Id. at p. 299.) Thus, the only reasonable inference was that the child would be greatly harmed by the loss of her relationship with her father. (Id. at p. 301.)
Here, Mother was minor's primary caregiver for only the first 18 months of minor's life. Although it was evident that mother loved minor, there is no evidence in the record to show that minor had displayed distress about being apart from mother. Moreover, mother did not produce a bonding study demonstrating that terminating mother's parental rights would be detrimental to minor. (See In re Amber M. (2002) 103 Cal.App.4th 681, 689 [the mother met burden of showing beneficial relationship with a bonding study that concluded a primary attachment and maternal relationship that would be detrimental to child if severed].) Additionally, unlike the father in In re S.B., who had developed an emotional connection with his daughter and an ability to recognize her needs, here, despite all the services, mother continually placed her needs over the child's. Thus, there is no evidence that continuation of the relationship would outweigh the benefit to minor of a permanent adoptive home.
Substantial evidence shows that minor was doing very well in her prospective adoptive home and that she was emotionally stable there. Minor was happy in her placement and was building a strong bond with her prospective adoptive parent. Minor looked to her for comfort and safety, and the prospective adoptive parent was committed to providing a permanent home for her. Therefore, we find there is substantial evidence to support the juvenile court's finding that mother failed to meet her burden of proof to establish the beneficial parental relationship exception applied in his case. We agree there was insufficient evidence that minor would benefit more from continuing her relationship with mother and than from adoption.
In her reply brief, mother argues the beneficial exception should apply because "mother maintained regular visitation and contact" with minor. CFS agreed with this point, as did we. The question on appeal, therefore, solely should focus on whether the termination of parental rights outweighed the benefits of adoption. In her reply brief, mother argues that "with or without the benefit of a bonding study," "it should be obvious any child will incur some degree of detriment if she is permanently deprived of a loving and committed parent." Although minor could suffer some degree of detriment, the question is whether the permanency afforded through adoption outweighs the detriment. Mother argues that permanency in this case was fragile since minor "was in the early stages (seven months) of establishing a 'strong, positive and significant relationship' with her prospective adoptive parents—after four prior placements." [Citations.] Her tentative hope of realizing permanency is a very important part of the juvenile court's weighing process." Notwithstanding mother's argument, the juvenile court knew that minor had been placed in the concurrent home for seven months but after considering all the testimony and evidence, the court found, "by clear and convincing evidence that [minor] is both generally and specifically adoptable." Thereafter, the court went on find that minor's "need for permanency outweigh[s] the bonds asserted today." We find that there is substantial evidence supporting this finding by the lower court.
In sum, while there is evidence supporting a finding of a positive relationship between mother and minor, there is also evidence supporting a reasonable conclusion that minor would gain a greater benefit from being placed in a permanent adoptive home. Mother did not meet her burden to show that the bond between her and minor was so strong and beneficial to minor that it outweighed the benefit minor would receive from having a stable, adoptive home. 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.
B. THE JUVENILE COURT PROPERLY FOUND THE SIBLING BOND EXCEPTION DID NOT APPLY
Mother also argues that the juvenile court erred in finding that the sibling exception to adoption under section 366.26, subdivision (c)(1)(B)(v) did not apply. This subdivision provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a "substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
The juvenile court undertakes a two-step analysis in evaluating the applicability of the sibling relationship exception. First, the court is directed "to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) "[T]he concern is the best interests of the child being considered for adoption, not the interests of that child's siblings." (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption." (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the court's finding on this issue for substantial evidence. (L.Y.L., supra, 101 Cal.App.4th at p. 953.)
First, according to the record, minor's prospective adoptive parent expressed that she intended to allow ongoing contact between the children. Because the prospective adoptive parent was willing to maintain sibling contact, there was no substantial interference with the sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 254.)
Even if the adoptive parent does not allow ongoing contact between minor and her siblings, we find that substantial evidence supports the juvenile court's finding that it was in minor's best interest to receive the permanency of adoption rather than continuing the sibling relationship. In her opening and reply briefs, mother states that "[g]iven the unique facts of this case, this is one of those 'rare' instances when the juvenile court was confronted with a 'compelling reason' to apply the sibling exception." But in both briefs, mother has failed to demonstrate how she met her burden in the lower court to show that the exception applied, to stop the adoption of minor. It was mother's burden to establish the detriment that would result from the termination of the sibling relationship. (Megan S., supra, 194 Cal.App.4th 252.) In Megan S., the court held that even when it was undisputed that the two sisters "are bonded and shared a home and common experiences," the evidence failed to show that severing the sibling relationship would cause detriment. The court went on to explain that the parents had the burden to "obtain a psychological study or other evidence showing [that the child] would suffer detriment if separated from [the sibling]." (Ibid.)
In this case, as noted in the discussion regarding the parental relationship exception, mother has failed to produce a psychological study or expert testimony to demonstrate that minor would suffer detriment that outweighed the benefit of permanency. Even J.B., minor's oldest sibling, testified that adoption would be beneficial for minor because it would provide her with stability. J.B. stated, "Because I don't think it's go or safe in the house—like, go house to house to house and stuff like that, so she can stay in one house." After hearing testimony and argument at the hearing, the juvenile court agreed and stated that minor's "need for permanency outweighs the bonds asserted today." As provided in detail, ante, minor appeared very comfortable with the family in her concurrent placement. Minor even showed the social worker around her new home and showed her bedroom. The social worker observed minor walk over to the caregiver and respond affectionately without being prompted. The social worker believed that "there [was] a genuine attachment and comfort between Ms. J. and [minor]." Therefore, because of the mutual attachment that developed between the family and minor, and because Ms. J. was committed to raising minor into adulthood, CFS recommended adoption as the most appropriate plan for minor.
In sum, the evidence supports the court's finding that even though "there's a lot of love between the parents and the children and the children amongst themselves," minor's "need for permanency outweigh the bonds asserted today." Therefore, mother failed to meet her burden of establishing that the sibling exception applied, and the trial court did not err in terminating her parental rights
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.