Opinion
D076637
04-27-2020
In re B.B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. B.S. et al., Defendants and Appellants.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant B.S. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant Be. B.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519742) APPEALS from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant B.S. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant Be. B.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Christa Baxter, Deputy County Counsel, for Plaintiff and Respondent.
B.S. (Mother) and Be. B. (Father) appeal an order denying Mother's Welfare and Institutions Code section 388 petition to modify a previous order terminating her reunification services and setting a section 366.26 permanency planning hearing for their daughter, B.B. They also appeal a subsequent order terminating their parental rights and selecting a permanent plan of adoption for B.B. pursuant to section 366.26. On appeal, Mother and Father contend the juvenile court: (1) abused its discretion by denying Mother's section 388 petition because she showed there had been a substantial change in circumstances since the previous order and it was in B.B.'s best interest to continue her relationship with Mother; and (2) erred by finding the beneficial parent-child relationship exception to preclude termination of parental rights and adoption did not apply pursuant to section 366.26, subdivision (C)(1)(B)(i). Based on our reasoning below, we affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, B.B. was born. In April 2018, San Diego police officers responded to a report from employees of a restaurant who saw Mother and Father nearly drop B.B. several times and believed they were under the influence of drugs or alcohol. On their arrival at the restaurant, the officers observed Father sitting in a booth and holding B.B. with his left arm. B.B. was slipping out of Father's arm while he sat in the booth unconscious, leading the officers to believe he was under the influence. When an officer removed B.B. from Father, Father did not realize B.B. had been taken away. Father eventually woke up and began slurring his words. Father's pupils were constricted and had little or no reaction to light, leading one officer to conclude he was under the influence of a controlled substance. Surveillance video recordings showed Father swaying side to side and almost dropping B.B. several times. The other officer found Mother in the restaurant's restroom. Mother was mumbling her words, her eyelids were droopy, and her tongue had a green coat. The officer concluded Mother was under the influence of a controlled substance and had left Father to fall asleep in the booth with B.B. Mother and Father failed the sobriety tests that the officers administered. Both parents were arrested and B.B. was taken into protective custody.
The San Diego County Health and Human Services Agency (Agency) filed a dependency petition alleging that B.B. had suffered, or there was a substantial risk she would suffer, serious physical harm or illness within the meaning of section 300, subdivision (b)(1), due to her parents' failure or inability to provide regular care for her because of their substance abuse. The petition alleged that while under the influence of opiate medications, Mother and Father failed to safely protect and parent B.B.
In Agency's detention report, it described the restaurant incident and the officers' observations. Father admitted he had misused his prescription pain medication for several years and was addicted to it. Mother denied misusing her prescription pain medication. At the detention hearing, the court found that a prima facie showing on the petition had been made and detained B.B. out of the parents' home. Both parents were granted reasonable, supervised visits with B.B.
In its jurisdiction and disposition report, Agency stated that Mother and Father had not made themselves available for interviews and had not pursued resources to eliminate the need for Agency intervention. Both parents had visited B.B. at her placement and were loving and attentive during visits. During one incident, an Agency social worker could not conduct a meaningful interview with Mother and Father outside a courtroom because they were under the influence and visibly intoxicated. The social worker could not prevent them from leaving the courthouse. Father was subsequently arrested and detained for driving under the influence of drugs and causing an accident that resulted in injuries while he drove home from the courthouse with Mother. Mother did not acknowledge Father's culpability in the accident. At the jurisdiction and disposition hearing, the court sustained the petition, removed B.B. from her parents' custody, and ordered her placed with a relative. The court ordered Mother and Father to comply with reunification services consistent with their case plans and granted them reasonable, supervised visitation with B.B.
In its January 2019 six-month review hearing report, Agency stated that Father had been convicted of driving under the influence and was serving a two-year prison term with a scheduled release date in May 2019. Mother reported that she was homeless. Mother's visitation with B.B. was sporadic. Mother had failed to comply with drug testing and had not met with a substance abuse specialist or entered drug treatment. Agency recommended that the court terminate the parents' reunification services because there was not a substantial probability of B.B. returning to the home by July 2019 and set a section 366.26 hearing to select a permanent plan for B.B.
At the contested six-month review hearing in April 2019, Father testified that he intended to participate in reunification services on his release from prison in May. Agency's social worker testified that Father was not eligible for services at his prison facility. Mother and Father argued that the court should extend their reunification services through the 12-month review hearing date. Agency argued that because B.B. was under three years of age when she was removed, the court could terminate reunification services if it found there was not a substantial probability of her return to the home by the 12-month review hearing and her parents had not made substantive progress in their reunification services. Mother had not engaged in treatment services until February 2019 and, even then, was discharged shortly after her entry at two different treatment facilities. At one facility, she was discharged for marijuana possession, and at the other facility, she was discharged for forging documents. On her entry into a third treatment facility in mid-March, Mother tested positive for methamphetamine. The court found by clear and convincing evidence that the parents had not regularly participated in court-ordered treatment, terminated the parents' reunification services, vacated the 12-month review hearing, and set a section 366.26 hearing to select a permanent plan for B.B.
In its section 366.26 hearing report, Agency recommended that the court terminate Mother's and Father's parental rights and select adoption as B.B.'s permanent plan. It stated that Mother continued to struggle with accepting that she needed substance abuse treatment. Also, it believed B.B. was adoptable because she was generally adoptable and her current caregivers who had cared for her for 13 months were committed to adopting her. At an August 2019 hearing, Mother and Father requested a contested section 366.26 hearing, which the court set for September 2019. Mother also stated her intent to file a section 388 petition.
On September 16, 2019, Mother filed a section 388 petition, requesting modification of the court's April 2019 order terminating her reunification services and setting a section 366.26 permanency planning hearing for B.B. Mother requested that the court return B.B. to her with family maintenance services or, alternatively, order Agency to provide her with family reunification services and/or provide her with unsupervised visitation with B.B. Mother alleged that she had completed a drug treatment program, had continued to visit with B.B., and her bond with B.B. made her requested modifications in B.B.'s best interest. The court found that Mother made a prima facie showing of changed circumstances in support of her section 388 petition and set an evidentiary hearing on the petition to be conducted concurrently with the section 366.26 contested hearing set for September 27, 2019.
At the September 27, 2019 contested hearing, Mother argued that she had shown a change in circumstances since the April 2019 order and that it was in B.B.'s best interest to grant her section 388 petition. Mother stated that she had successfully completed a drug treatment program and was currently in aftercare. She also stated that she had been visiting B.B. weekly and the caregiver noted the bond between Mother and B.B. had become stronger. Father stated that he supported Mother's section 388 petition. The court received Mother's petition and attachments into evidence. Agency's social worker testified that Mother did not complete her first two drug treatment programs, but successfully completed her third drug treatment program after initially testing positive for methamphetamine. Mother did not submit to drug testing on September 3 after B.B.'s caregivers reported that Mother's hands were trembling and that she had an open wound on her face. Mother also did not submit to drug testing on August 23 despite the social worker's request. The social worker testified that Mother's visitation with B.B. was not expanded from supervised to unsupervised visitation because the worker did not know whether Mother was sober and Mother had not brought anything to visits that met B.B.'s needs (e.g., food or diapers). The social worker believed that because B.B.'s parents were still in the process of changing their lives, it would not be detrimental to B.B. if their parental rights were terminated. Also, B.B. had spent the majority of her life with her current caregivers who met all of her needs.
Mother testified that she had not completed her first two drug treatment programs because marijuana was found in her room at the first facility and she was accused of forging a document at the second facility. She admitted that she tested positive for methamphetamine on her enrollment to her third drug treatment program in mid-March 2019. She stated she successfully completed that drug treatment program on May 29. However, despite participating in a 12-step program, Mother admitted she was just starting to work on the first step. Also, Mother did not immediately enroll in any aftercare programs after her discharge from the drug treatment program. Mother testified that in July she attended a six-day outpatient treatment program, but had no documentation showing her participation in it. Mother testified that her visitation with B.B. was inconsistent before her third drug treatment program, but afterward it got better and more consistent.
In closing arguments, Mother asked the court to grant her section 388 petition because she had shown a change in circumstances and that it was in B.B.'s best interest to grant the petition. In particular, Mother asserted her completion of the drug treatment program and subsequent enrollment in an aftercare program showed a significant change in circumstances since the April 2019 order. She also argued that because her visitation with B.B. was consistent since March 2019, it was in B.B.'s best interest to modify the previous order. Agency disagreed, arguing that Mother had not shown changed circumstances and Mother's and Father's substance abuse remained a concern. Agency argued that Mother did not engage in substance abuse treatment until nine months after B.B.'s dependency case began. Agency noted that Mother's last random drug test was on May 12, which was over four months before the instant hearing. All of her drug tests in the interim were scheduled tests of which she was aware. Agency noted that Mother had failed to appear for her initial July 5 intake appointment to the aftercare treatment program and was discharged from that program for failing to return after her July 30 intake appointment. Agency also noted that Father had not submitted any evidence supporting his assertion that he had not used drugs for a year and four months. Agency argued that although Mother and B.B. enjoyed being together during their visits, that did not show it was in B.B.'s best interest to be returned to Mother's custody.
The court denied Mother's section 388 petition, finding Mother was only in the early stages of her recovery from her drug problems and that was insufficient to constitute a change in circumstances. The court further found that even if there were changed circumstances, it was not in B.B.'s best interest to delay permanency for her. Accordingly, it denied Mother's section 388 petition. The court then proceeded with the section 366.26 permanency planning hearing and found, by clear and convincing evidence, that B.B. was generally and specifically adoptable. It further found that the beneficial parent-child relationship exception to termination of parental rights and selection of adoption did not apply because neither Mother nor Father had shown they had maintained regular and consistent visitation with B.B. and, even if they had, the benefits of adoption to B.B. outweighed the benefits to her of maintaining the parent-child relationship. Accordingly, the court terminated Mother's and Father's parental rights to B.B., selected adoption as B.B.'s permanent plan, and set a post-permanency planning hearing. Mother and Father each timely filed a notice of appeal challenging the September 27, 2019 orders.
DISCUSSION
I
Section 388 Petition for Modification
Mother contends the juvenile court abused its discretion by denying her section 388 petition to modify its April 2019 order. She argues she showed a change in circumstances since the previous order and that her requested modification was in B.B.'s best interest. Father joins in Mother's arguments.
A
Section 388, subdivision (a), provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition . . . shall set forth in concise language any change of circumstance or new evidence [which are] alleged to require the change of order or termination of jurisdiction."
The burden of proof is on the moving party to show, by a preponderance of the evidence, both a change of circumstances and that the proposed modification is in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Manolito L. (2001) 90 Cal.App.4th 753, 760; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The moving party must show changed, not merely changing, circumstances. (In re Casey D., at p. 47.) "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, who has repeatedly failed to reunify with the child, 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." ' [Citation.]" (Ibid., quoting In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
In considering whether to grant or deny a section 388 petition, a trial court should consider, inter alia, the following factors: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent child[] to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
The determination whether to grant or deny a section 388 petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Alternatively stated, a trial court's ruling on a section 388 petition "should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M., supra, 7 Cal.4th at p. 318.) It is the appellant's burden on appeal to affirmatively show the court abused its discretion. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
B
Mother asserts the trial court abused its discretion by denying her section 388 petition. She argues she showed both that there were changed circumstances and that her requested modifications to the prior order were in B.B.'s best interests.
In denying Mother's section 388 petition, the court found that she had not shown changed circumstances. The court noted that by the time of the April 2019 contested six-month review hearing at which reunification services were terminated, neither parent had met the standard for extension of those services. The court further noted that even as of the time of the September 27, 2019 contested hearing, both parents were "in the early stages of recovery." Although it noted that Mother was "obviously doing very well," her recovery efforts were "not enough or long enough under the law." Therefore, the court, in effect, found that Mother showed only changing, not changed, circumstances. (In re Casey D., supra, 70 Cal.App.4th at p. 47; In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)
Based on our review of the record, we conclude the court did not abuse its discretion by finding Mother did not carry her burden to show circumstances had changed since the April 2019 order. The evidence supports inferences that Mother had a long-standing substance abuse problem which she initially denied and for which she belatedly sought assistance. After B.B.'s detention in April 2018, Mother did not engage in treatment services until February 2019 and was discharged early from two different treatment facilities before entering a third treatment facility in mid-March at which time she tested positive for methamphetamine. At the time of the April 2019 contested six-month review hearing, Mother was participating in that third treatment program. Although, as Mother asserts, she completed that treatment program after the April 2019 order was issued, that circumstance does not necessarily show her substance abuse problem had changed since that order. Rather, the court reasonably found that her recovery efforts were insufficient in quality or length of time to show her circumstances had changed and not merely changing. We conclude the court did not abuse its discretion by so finding. It is not our function on appeal to reweigh the evidence or make reasonable inferences therefrom contrary to the juvenile court's inferences. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
We further conclude that the court did not abuse its discretion by finding that Mother's requested modifications to the April 2019 orders were not in B.B.'s best interests. In denying Mother's section 388 petition, the court stated that even if it had found changed circumstances, her requested modifications were not in B.B.'s best interests. The evidence showed that B.B. had been a dependent of the court since early May 2018 through late September 2019, a period of about 17 months out of her then 24-month life. Also, Mother's visits with B.B. until the April 2019 hearing were sporadic and inconsistent. Agency's social worker opined that B.B. needed permanence and stability and was doing well in her caregivers' home. B.B. relied on her caregivers for her daily needs and comfort. Even after the April 2019 hearing, Mother's more consistent visits did not appear to create a strong bond between Mother and B.B. At the end of visits, B.B. easily separated from Mother and she showed no distress. Because of B.B.'s young age, her placement with her caregivers for most of her life, and her lack of a strong bond with Mother, the court reasonably could find that Mother's request that B.B. be returned to her with family maintenance services or, alternatively, that Agency provide her with family reunification services and/or provide her with unsupervised visitation with B.B, was not in B.B.'s best interest. It reasonably could find that although, as Mother alleged, she had completed a drug treatment program, had continued to visit with B.B., and had a bond with B.B., her requested modifications were not in B.B.'s best interest and that, instead, B.B. deserved the stability that a permanent placement would provide to her. Because Mother's circumstances were merely changing, the court could conclude a delay in the selection of a permanent home for B.B. would not promote stability for her or her best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47; In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)
Even had the court expressly applied the In re Kimberly F. factors discussed above, it reasonably could have concluded Mother's requested modifications were not in B.B.'s best interests. First, the court reasonably could find that the seriousness of Mother's substance abuse problem that led to B.B.'s dependency and the reason for the continuation of that problem weighed against her requested relief. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The evidence supports inferences that Mother belatedly sought substance abuse treatment and, although she completed the treatment program at her third facility, her substance abuse problems were not yet resolved, given the relatively short period of time between leaving that facility in late May 2019 and the September 27, 2019 hearing. The evidence shows she did not immediately enroll in aftercare. Therefore, the court could conclude Mother's substance abuse problems continued to pose a threat to B.B. if she were returned to her care and weighed against delaying selection of a permanent plan for B.B.
Second, in weighing the strength of relative bonds between B.B. to Mother and her caregivers, the court reasonably could find that B.B. was strongly bonded to her caregivers and only minimally bonded to Mother. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The evidence shows that B.B. easily separated from Mother at the end of her visits and B.B. relied on her caregivers for her daily support and comfort. Third, the court reasonably could find that Mother's substance abuse problem was sufficiently serious and prolonged such that it would not be easily removed or ameliorated and had not yet actually been substantially resolved. (Ibid.) Even after her completion of the drug treatment program, Mother denied having a history of substance abuse other than for alcohol abuse. Also, although her drug tests after leaving the treatment program were negative, she had not had a random drug test since leaving that program. In fact, Mother failed to show up for two random drug tests on the dates that Agency requested. Also, despite Mother's claim that she participated in outpatient treatment in July 2019, she provided no documentation to support that claim. Contrary to Mother's claim, Agency showed that she did not return after her July 30, 2019 intake appointment and was discharged from that outpatient program as a result. Therefore, the court reasonably could infer that Mother had not demonstrated that she had been sober since leaving that program and that her substance abuse problem had not been resolved. Accordingly, even had the court expressly considered the three In re Kimberly F. factors, we presume it would have reached the same conclusion that Mother's requested modifications were not in B.B.'s best interests. (Ibid.) Therefore, because the court reasonably found that Mother had not shown changed circumstances or that her requested modifications were in B.B.'s best interest, we conclude the court did not abuse its discretion by denying her section 388 petition. To the extent Mother cites evidence and inferences therefrom that would have supported contrary findings by the court, she misconstrues and/or misapplies the abuse of discretion standard of review that we apply on appeal in considering the court's decision on her section 388 petition.
II
Beneficial Parent-Child Relationship Exception
Mother contends the court erred by finding that the beneficial parent-child relationship exception to termination of parental rights and selection of adoption as B.B.'s permanent plan did not apply.
A
The purpose of a section 366.26 hearing is to determine the appropriate permanent plan for a dependent child and then implement that plan. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court can choose among three permanent plans: adoption, legal guardianship, and long-term foster care. (§ 366.26, subd. (b).) When a child is adoptable, adoption is the preferred permanent plan unless there are countervailing circumstances or if adoption is not in the child's best interest. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
At a section 366.26 hearing, it is the parent's burden to show an exception to termination of parental rights. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One exception to termination of parental rights applies when termination of those rights would be detrimental to the child because 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).) That requisite beneficial parent-child relationship means that there is a relationship between the parent and child that "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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) Alternatively stated, the beneficial parent-child relationship exception "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) In making the determination of whether the beneficial parent-child relationship exception applies, the juvenile court " ' "balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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." ' " (Id. at pp. 396-397.) Because interaction between a child and his or her parent will generally confer some incidental benefit to the child, the parent must prove the child will benefit to such a degree as to overcome the preference for adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) For the beneficial parent-child relationship exception to apply, the parent must show, inter alia, that the emotional attachment between the child and the parent is of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (In re Angel B. (2002) 97 Cal.App.4th 454, 468; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) Some of the factors the juvenile court should consider when determining whether the parent-child 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., at p. 467.)
On appeal, we apply both substantial evidence and abuse of discretion standards in reviewing a juvenile court's determination that the beneficial parent-child relationship exception to termination of parental rights does not apply. (In re J.C. (2014) 226 Cal.App.4th 503, 530-531.) In re J.C. stated:
"[T]he juvenile court's decision 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 or sibling 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.' [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes ' "a compelling reason for determining that termination would be detrimental to the child." ' [Citation.] This ' " '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[,]" is appropriately reviewed under the deferential abuse of discretion standard.' [Citation.]" (In re J.C., supra, 226 Cal.App.4th at pp. 530-531.)Alternatively stated, "[w]e apply 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., supra, 239 Cal.App.4th at p. 395.) Under the abuse of discretion standard of review, we determine whether the juvenile court's decision exceeded the bounds of reason, and, in so doing, we cannot substitute our view for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B
Contrary to Mother's assertion, we conclude the court did not err by finding the beneficial parent-child relationship exception did not apply in the circumstances of this case. Because Mother does not challenge the court's finding that B.B. is specifically and generally adoptable and the record does not show otherwise, we need not, and do not, address that finding. Regarding the first prong of the beneficial parent-child relationship exception, Mother argues the court erred by finding she had not met her burden to show she maintained consistent visitation and contact with B.B. Our review of the record shows that substantial evidence supports the court's finding. From May 2018 through March 2019, Mother's visitation with B.B. was sporadic and inconsistent. In particular, between September 2018 and March 2019, she visited B.B. only three times. Although Mother more frequently and consistently visited B.B. after March 2019 and through September 2019, the court reasonably considered Mother's overall record in visiting B.B. from May 2018 through September 2019 and concluded she had not maintained regular visitation and contact with B.B. Accordingly, there is substantial evidence to support the court's finding that Mother did not meet her burden to show she had maintained regular visitation and contact with B.B. (§ 366.26, subd. (c)(1)(B)(i); In re Anthony B., supra, 239 Cal.App.4th at p. 395.) To the extent Mother cites evidence and inferences therefrom that would have supported a contrary finding by the court, she misconstrues and/or misapplies the substantial evidence standard of review.
Due to his incarceration, Father's visitation and contact with B.B. was also sporadic and inconsistent. --------
Regarding the second prong of the beneficial parent-child relationship exception, Mother argues the court erred by finding that even if Mother had met her burden on the first prong, the benefit to B.B. of continuing her relationship with Mother did not outweigh the benefits to B.B. of adoption. Our review of the record shows that substantial evidence supports a finding that Mother did not have a parent-child relationship with B.B. When B.B. was removed from Mother's custody, she was seven months old. During her entire dependency through September 2019, B.B. was placed in the home of her maternal grandmother and her current caregivers, her aunt and uncle. Therefore, at the time of the section 366.26 hearing, B.B. had been cared for by her relative caregivers for 17 months of her then 24-month life. During that time, her caregivers met her daily needs and she viewed them as her parents. As discussed above, Mother sporadically and inconsistently visited B.B. through March 2019. Furthermore, the court could find that even after Mother increased her visitation with B.B. after March 2019, Mother did not establish a parental-type relationship with B.B. At visits, Mother did not inquire about B.B.'s well-being with her caregivers. Also, Mother did not provide B.B. with food, diapers, or other necessities during her visits. Importantly, at the end of visits, B.B. eagerly returned to her caregivers and showed no distress on separating from Mother. Therefore, although B.B. enjoyed spending time with Mother, she did not view Mother in a parental role. As discussed above, for the beneficial parent-child relationship exception to apply, the parent must show that the emotional attachment between the child and the parent is of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) We conclude there is substantial evidence to support the court's implied finding that Mother did not show she had a parental relationship with B.B. To the extent Mother cites evidence or inferences therefrom that would have supported a contrary finding by the court, she misconstrues and/or misapplies the substantial evidence standard of review.
Furthermore, we conclude Mother has not carried her burden on appeal to show the court abused its discretion by concluding the benefit to B.B. of continuing her relationship with Mother did not outweigh the benefits to B.B. of adoption. Mother had a long history of substance abuse. Although she had recently completed a substance abuse program, the court, as discussed above, reasonably concluded she had not maintained her sobriety for a sufficient period of time for it to find she had overcome that problem. Also, Mother did not have a parental relationship with B.B. Therefore, the court could conclude that the benefit to B.B. of continuing her relationship with Mother was minimal, at best. In comparison, the court reasonably could conclude the benefits to B.B. of adoption were significant. It reasonably concluded that the benefits to B.B. of the stability and permanency of a home with new, adoptive parents outweighed the benefits to B.B. of continuing her relationship with Mother. By so concluding, the court did not abuse its discretion. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re Anthony B., supra, 239 Cal.App.4th at p. 395; In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Accordingly, we conclude the court properly found the beneficial parent-child relationship exception did not apply to preclude termination of Mother's parental rights and selection of adoption as B.B.'s permanent plan. (§ 366.26, subd. (c)(1)(B)(i); In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
To the extent Mother argues there is evidence that would have supported a contrary conclusion by the court, she essentially asks us to reweigh the evidence and reach our own conclusion regarding whether the beneficial parent-child relationship exception applies. However, because it is not our function on appeal to second-guess the juvenile court's decision or reweigh the evidence, we decline to do so in this case. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) Furthermore, the legislature has determined that adoption, and not guardianship or long-term foster care, is the first choice for a minor's permanent plan at a section 366. 26 hearing because adoption gives the child the best chance for a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) To the extent Mother argues a permanent plan of guardianship rather than adoption should have been selected for B.B., she ignores or minimizes that legislative preference.
DISPOSITION
The orders are affirmed.
BENKE, Acting P. J. WE CONCUR: HALLER, J. AARON, J.