Opinion
D071285
06-20-2017
In re N.C. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.C., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent. Karen McCready, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CJ1225A, B) APPEAL from an order of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent. Karen McCready, under appointment by the Court of Appeal, for Minors.
After reunification services were terminated, D.C. (Mother) filed a petition for modification pursuant to Welfare and Institutions Code section 388 alleging changed circumstances. She requested that her minor children, N.C. and J.C., be placed with her and that she receive family maintenance services. The juvenile court denied Mother's petition without holding an evidentiary hearing. At the selection and implementation hearing (§ 366.26), after it found that the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply, the court terminated Mother's parental rights and ordered a permanent plan of adoption. Mother appeals the court's denial of her section 388 petition without an evidentiary hearing and its determination that the beneficial parental relationship exception to terminating parental rights did not apply.
Further statutory references are to the Welfare and Institutions Code.
We affirm the findings and order. The juvenile court did not abuse its discretion in denying an evidentiary hearing on Mother's section 388 petition, and substantial evidence supports the court's finding that the beneficial parental relationship exception did not apply.
FACTUAL AND PROCEDURAL BACKGROUND
N.C. and J.C. were born in 2012 and 2014, respectively. In July 2014, Mother obtained a restraining order against W.T. (Father) after three separate domestic violence incidents between them. In March 2015, Mother and Father were seen together at a park in violation of the active restraining order. Witnesses observed Mother hitting Father's ankles with a stroller in which J.C. was sitting and hitting N.C. in the head hard enough to cause her neck to snap to the side.
In March 2015, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition pursuant to section 300, subdivision (a) based on the July 2014 and March 2015 domestic violence incidents. At the detention hearing, the juvenile court found a prima facie showing had been made and ordered N.C. and J.C. removed from Mother's custody. At the jurisdiction and disposition hearing the following month, the court made a true finding on the petition, placed the children in foster care, and ordered reunification services for Mother that included a domestic violence program and parenting classes.
Mother began weekly unsupervised visits with the children in September 2015. That month, she gave birth to another child, E.C. (not party to this dependency case). Mother was fully engaged in her reunification services; she arrived on time for visits, provided love and comfort to her children, and demonstrated progress in parenting classes. There was, however, some concern she was violating the restraining order by remaining in contact with Father. At the six-month review hearing in October 2015, the court terminated Father's reunification services but continued Mother's services for an additional six months, finding she had made progress but expressing "significant concern" regarding her continued contact with Father.
In January 2016, Mother began overnight visits with the children. She saw Father several times between November 2015 and February 2016. In February 2016, the children's maternal grandmother asked Mother to move out of her home because Mother refused to call the police when Father visited. In late February, Mother reverted to supervised weekly visits at the Agency's offices.
In April 2016, the court granted the Agency's section 388 petition to limit Mother to supervised visits due to concerns she had exposed the children to Father during unsupervised visits. The Agency noted Mother had irregular attendance at her domestic violence group, and her therapist believed Father was influencing her not to attend therapy.
At the contested 12-month review hearing in May 2016, the court found Mother had not made substantial progress with her reunification services. She violated the restraining order and rules of unsupervised visitation, exposed the children to Father, did not absorb the lessons of her parenting class, and was terminated from her domestic violence program for multiple absences. Finding there was not a substantial probability the children would be returned to her by the 18-month review hearing, the court terminated Mother's reunification services and set a selection and implementation hearing (§ 366.26) to determine the children's permanent plan.
Mother continued to maintain contact with Father. In July 2016, Father broke into Mother's home and punched her on her arms and stomach while she was carrying E.C.; he told her he would be staying with her, and Mother called the police. In August, while a social worker interviewed Mother at her home, Father peered through a window and left. That same month, Father showed up at the home of the children's maternal grandmother when Mother was visiting. Father threw bleach and hot sauce all over the home when Mother asked him to leave. Mother called the police, and Father was arrested.
The Agency filed a separate dependency petition as to E.C. but did not recommend the child be removed from Mother's custody as Father was incarcerated. At the detention hearing in E.C.'s case in August 2016, the court ordered E.C. to be placed with Mother provided she complied with the restraining order, and granted Mother's request for voluntary services.
In September 2016, Mother filed a section 388 petition in this dependency case, seeking to modify the May 2016 order terminating her reunification services and setting a selection and implementation hearing for N.C. and J.C. Mother requested a new order either: (1) placing N.C. and J.C. with her and providing her family maintenance services, or (2) placing the children with their maternal great-grandmother. Alleging changed circumstances, Mother claimed she had recently enrolled voluntarily in domestic violence and parenting programs where she had demonstrated progress. She noted she had immediately reported Father to the police in August 2016 for violating the restraining order and that the Agency had recommended she maintain custody of E.C. in the sibling case.
At the status conference on September 21, 2016, the juvenile court considered Mother's section 388 petition. As to her first request, to return the children to her, the court found Mother had not made a prima facie showing of changed circumstances or best interests of the children and denied the petition without an evidentiary hearing. The court found a prima facie case and granted an evidentiary hearing solely as to Mother's second modification request, to place the children with their maternal great-grandmother.
In October 2016, the court held a combined evidentiary hearing on Mother's section 388 request to place the children with their maternal great-grandmother and, if necessary, on selection and implementation under section 366.26. The court received into evidence all reports submitted by the Agency since detention; a report by the court appointed special advocate (CASA); the Agency's prior section 388 petition seeking to revert Mother's visitation to supervised visitation; caretaker information forms; and Mother's section 388 petition with attachments. Over a three-day period, the court heard testimony from social worker Karlis Thorpe, Mother, the children's maternal great-grandmother, and the children's caregiver.
The parties agreed that any evidence admitted during the contested section 388 hearing could be considered during the contested section 366.26 hearing that immediately followed.
The court also heard testimony from social worker Rachel Urtuzuaftigui in connection with Mother's request to place the children with their maternal great-grandmother, but her testimony is not pertinent to this appeal.
On October 26, 2016, the juvenile court denied Mother's section 388 request to place the children with their maternal great-grandmother. By clear and convincing evidence, the court found N.C. and J.C. generally and specifically adoptable and that none of the exceptions to termination of parental rights (§ 366.26, subd. (c)(1)(B)) applied. It determined that adoption would serve the children's best interests, terminated all parental rights, ordered sibling visitation, and selected adoption as the children's permanent plan. The court further found the children's current caregivers qualified as prospective adoptive parents (§ 366.26, subd. (n)).
DISCUSSION
On appeal, Mother argues the juvenile court abused its discretion when it denied an evidentiary hearing on her section 388 request to place N.C. and J.C. with her and order family maintenance services. She also challenges the finding that the beneficial parental relationship exception did not apply to preclude the termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We address her contentions in turn. 1. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother's Section 388 Petition without an Evidentiary Hearing
N.C. and J.C. join in the Agency's arguments on appeal.
Under section 388, subdivision (a)(1), a parent may petition to change, modify, or set aside a prior order "upon grounds of change of circumstance or new evidence." "The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the court's previous order is in the child's best interests." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.)
"It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) That a parent "makes relatively last-minute (albeit genuine) changes" does not automatically tip the scale in the parent's favor. (Id. at p. 530.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation]." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "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." (Ibid.)
A section 388 petition must be "liberally construed in favor of granting a hearing to consider the parent's request." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); see Cal. Rules of Court, rule 5.570(a).) However, the juvenile court need not hold an evidentiary hearing unless a parent makes a prima facie case of both a change in circumstances or new evidence and that the proposed modification would promote the child's best interests. (In re G.B. (2014) 227 Cal.App.4th 1147 1157 (G.B.); see Cal. Rules of Court, rule 5.570(d)(1).) "A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause." (G.B., at p. 1157.) "It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing." (Ibid.) "In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 62.)
Mother's section 388 petition requested N.C. and J.C. be placed with her and that she be provided with family maintenance services. The juvenile court denied this petition without an evidentiary hearing, finding Mother had not made a prima facie case of changed circumstances or that the proposed modification would promote the children's best interests. We review the decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion. (G.B., supra, 227 Cal.App.4th at p. 1158.) We do not disturb the ruling on appeal unless the juvenile court " ' "exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (Stephanie M., supra, 7 Cal.4th at p. 318.) 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. (Ibid.)
Applying this standard, we conclude the juvenile court did not abuse its discretion. The court reasonably found Mother had not met her burden to show a prima facie case of changed circumstances and that releasing the children to her custody would promote the best interests of the children.
Mother's section 388 petition alleged the following changed circumstances: (1) Mother had independently enrolled in a domestic violence treatment program and attended 15 of 16 sessions with one absence for a personal emergency; (2) Mother was receiving scores of 3's (and one 4) in her treatment program, demonstrating improvement from before; (3) Mother was abiding by the restraining order, and Father was presently incarcerated; (4) Mother had enrolled in a parenting class, where she was on track to complete the final course goal; and (5) in the related sibling case involving E.C., the Agency had assessed Mother to be a safe parent and placed the child in her care.
Considering this information, the court found that Mother's participation in domestic violence treatment was, at best, prima facie evidence of changing, not changed, circumstances. That E.C. had been placed in her care pending disposition was not "overly persuasive" in light of the prima facie finding on the domestic violence allegations in that case enabling the case to proceed. Given the "entire factual and procedural history" of the case (In re K.L., supra, 248 Cal.App.4th at p. 62), we conclude the juvenile court reasonably found that Mother had shown, at best, changing, not changed, circumstances.
During the reunification period, Mother failed to make significant progress addressing the root causes of her domestic violence issues with Father, despite receiving 12 months of services. By the six-month review hearing, Mother was attending a parenting class and a domestic violence group but remained in contact with Father despite the active restraining order. During the next review period, Mother completed her parenting course and domestic violence group and began an in-home parenting program, but she continued to have contact with Father despite a new safety plan designed to help her to avoid contact. Mother's therapist believed Father was influencing Mother not to attend her therapy. The court changed Mother's visitation from unsupervised to supervised due to Mother exposing the children to Father.
Mother's reunification services were terminated in May 2016, and she re-enrolled in a domestic violence program in June. Yet she continued to maintain contact with Father in violation of the restraining order. In July, Father entered Mother's home and punched her while she was carrying E.C. In August, Father showed up at the maternal grandmother's home when Mother was there and threw bleach and hot sauce all over the house. He also peered into Mother's window while the social worker was there. Mother called the police on each occasion, and Father was later arrested for violating the restraining order.
On August 18, Mother participated in a team decision meeting with the Agency to develop a safety plan. Among other things, she agreed to purchase window locks and an alarm system and talk to her housing case manager about moving to a new apartment. Four days later, the social worker visited Mother's home and found all the windows open. She also saw some of Father's clothing inside. The social worker met with Father at the detention facility; Father stated Mother left the door open to her home so he could shower and eat and claimed he had last visited on August 11. He admitted leaving his pants in Mother's home.
At the time Mother filed her section 388 petition in September 2016, she had yet to complete a safety plan as part of her domestic violence program. Father indicated that he and Mother continued to communicate over the phone. Mother avoided the social worker's request to visit to confirm she had installed alarms as she had claimed. Mother's scores of mostly 3's in her domestic violence class indicated she was only "sometimes" (not "often" or "routinely") engaged, aware of protective issues, completed homework, and applied homework topics to her own case. While Mother showed improvement from her scores at the 12-month review stage, her record suggested she was still at the early stages of recovery, and the court could legitimately question whether old behavior patterns might re-emerge when Father was released from custody.
Given Mother's ongoing contact with Father despite a restraining order and extensive services, the juvenile court reasonably concluded that Mother's recent efforts at seeking domestic violence treatment were insufficient to make a prima facie showing of changed circumstances to warrant an evidentiary hearing. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [participation in 12-step meetings insufficient change of circumstances to warrant a hearing, where father had previously relapsed despite extensive alcoholism treatment]; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [mother's recent sobriety reflect changing, not changed, circumstances given her history of relapses, despite her completion of a drug treatment program].) "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." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) "Childhood does not wait for the parent to become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310.)
As she did in her section 388 petition, Mother argues changed circumstances based on the order in the parallel sibling case for E.C. to be placed with her. However, the two proceedings were at different stages and subject to different legal standards. E.C.'s case was pending disposition, and the court was required to release him to Mother unless it found remaining in her home would, among other things, be contrary to his welfare. (§ 319, subd. (b); Cal. Rules of Court, rule 5.678(a).) By contrast, reunification services had been terminated in the case involving N.C. and J.C. At that stage, "the focus shifts to the needs of the child for permanency and stability" (Marilyn H., supra, 5 Cal.4th at p. 309), and "the parents' interest in the care, custody and companionship of the child are no longer paramount" (Stephanie M., supra, 7 Cal.4th at p. 317). Delaying the selection and implementation hearing to see if Mother might be able to reunify with N.C. and J.C., despite her prior inability to do so, would not promote the children's paramount interests in permanency and stability. (Casey D., supra, 70 Cal.App.4th at p. 47.)
Moreover, E.C.'s detention with Mother in the sibling case was a "close call." The Agency based its recommendation on the fact that Father was incarcerated. Although the juvenile court detained E.C. in Mother's care, it expressed significant concern about her past inability to abide by the restraining order. The court conditioned E.C.'s placement on Mother complying with the restraining order and ceasing all further contact with Father, including by phone, and it gave the Agency discretion to immediately remove E.C. from Mother if she failed to comply. Contrary to Mother's claim that the court's ruling "acknowledged that she had been complying with the restraining order," the court's ruling indicates significant concern as to whether Mother was contacting Father over the phone while he was incarcerated and whether she would have additional contact with him upon his release.
Relying on In re Jeremy W. (1992) 3 Cal.App.4th 1407, Mother argues the juvenile court erroneously weighed Mother's probability of prevailing on her section 388 petition, rather than assessing if she had alleged "any change of circumstance or new evidence which might require a change of the order." (Jeremy W., at pp. 1413-1414, italics added; see In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433 [to obtain a hearing, § 388 petitioner is "not required to establish a probability of prevailing on her petition"].) To the contrary, the juvenile court properly assumed the truth of the allegations in Mother's section 388 petition and found she did not make a prima facie showing of changed circumstances. (See G.B., supra, 227 Cal.App.4th at p. 1157 [prima facie case not made "if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing"].) In Jeremy W., declarations attached to the section 388 petition made a strong prima facie showing of a favorable change in the only stated basis for terminating reunification services. (Jeremy W., at pp. 1415-1416.) The same is not true here.
Our conclusion as to changed circumstances would be sufficient, on its own, to affirm the juvenile court's denial of Mother's section 388 petition without an evidentiary hearing. (G.B., supra, 227 Cal.App.4th at p. 1157 [petitioner must make a prima facie showing of both changed circumstances and best interests].) However, we also conclude the court reasonably found that Mother did not make a prima facie showing that returning N.C. and J.C. to her care with family maintenance services would be in the children's best interests.
Liberally construed, Mother's section 388 petition indicated she was in a position to safely care for N.C. and J.C., as evidenced by E.C.'s placement in the parallel proceeding. However, the mere fact Mother may have been in a position to safely care for the children's younger sibling while Father was incarcerated did not establish a prima facie showing that reunification with Mother would serve the older children's best interests.
In evaluating a child's best interests on a section 388 petition, courts may take into consideration "the seriousness of the reason for the dependency in the first place"; "the strength of the existing bond between the parent and child"; and "the strength of a child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond . . . ." (Kimberly F., supra, 56 Cal.App.4th at pp. 530-531.) Here, the parents had a lengthy history of domestic violence that could not be resolved through voluntary services or reunification services, and Mother had only just begun her long road to recovery through treatment. Mother did not allege the children were strongly bonded with her or even that they wanted to live with her. Instead, she offered the conclusory allegation there was a "bond between the children and mother." "To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) Mother did not meet her burden.
"While the bond to the caretaker cannot be dispositive [citation], . . . the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion." (Kimberly F., supra, 56 Cal.App.4th at p. 531, italics omitted, citing In re Jasmon O. (1994) 8 Cal.4th 398.)
By contrast, in In re Aljamie D., the case Mother cites, the section 388 petition alleged the mother had "a strongly bonded relationship" with her children and that "[t]he children, ages 9 and 11, repeatedly made clear that their first choice was to live with [her]." (In re Aljamie D., supra, 84 Cal.App.4th at p. 432.)
Moreover, the record suggests the children were more closely bonded to their present caretakers. At the time Mother filed her petition in September 2016, four-year-old N.C. and two-year-old J.C. had been out of Mother's custody for a year and a half. They had built a meaningful relationship with their caregivers, with whom they had lived for almost a year and who they referred to as "mommy and daddy." As we discuss post, substantial evidence supports the juvenile court's finding at the selection and implementation hearing that the benefit of maintaining the parental relationship was outweighed by the benefits of adoption. "[W]hen at a selection and implementation hearing there was 'no showing whatsoever of how the best interests of [the children] would be served by depriving them of a permanent, stable home in exchange for an uncertain future,' it is 'not reasonably likely additional testimony would have persuaded the court to grant [contemporaneous] section 388 petitions and offer reunification services to parents.' " (G.B., supra, 227 Cal.App.4th at p. 1164.)
In short, the juvenile court reasonably determined that Mother did not make the necessary prima facie showing of changed circumstances or best interests to be entitled to an evidentiary hearing on her section 388 petition. The court did not abuse its discretion in denying the petition without a hearing. 2. Substantial Evidence Supports the Juvenile Court's Finding that the Beneficial Parental Relationship Exception to Termination of Parental Rights Did Not Apply
"[A] parent and a child share a fundamental interest in reuniting up to the point at which reunification efforts cease. [Citation.] However, the interests of the parent and the child have diverged by the point of a [section 366.26] hearing to select and implement a child's permanent plan." (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).) "Consequently, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability." (Ibid.)
" ' "A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child." ' " (In re D.M. (2012) 205 Cal.App.4th 283, 289.) The goal is to provide a child with " ' "a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." ' " (Ibid.) The juvenile court may order one of three alternatives—adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296 (S.B.).) "If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (Id. at p. 297.) " 'Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered.' [Citation.] Adoption, of course, requires terminating the natural parents' legal rights to the child; guardianship and long-term foster care leave parental rights intact." (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn H.).)
"Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (S.B., supra, 164 Cal.App.4th at p. 297.) Section 366.26, subdivision (c)(1)(B)(i) provides an exception to terminating parental rights where "termination of parental rights would be detrimental to the child" because a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." For this exception to apply, Mother bore the burden of establishing both prongs—consistent visitation and a sufficient benefit from continuing the parental relationship. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395, 397.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, italics added (Jasmine D.).) A parent must show the strength and quality of his or her parental relationship outweighs the security and sense of belonging the child would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575; J.C., supra, 226 Cal.App.4th at p. 533.) To overcome the Legislative preference for adoption, the parent must show that "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (Autumn H., at p. 575, italics added; J.C., at p. 533.) "[A]doption should be ordered unless exceptional circumstances exist." (Casey D., supra, 70 Cal.App.4th at p. 51.) A parent who has failed to reunify with a child may not "derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Jasmine D., at p. 1348.)
On appeal, Mother cites academic articles and other secondary sources to argue that "[a]doption is not—and never has been—a panacea for all children" and urge long-term foster care or guardianship as preferable permanent plans. However, the Legislative preference for adoption is well established (Jasmine D., supra, 78 Cal.App.4th at p. 1350; S.B., supra, 164 Cal.App.4th at p. 297), and we decline the invitation to revisit it here.
Although "[p]arent-child relationships do not necessarily conform to a particular pattern" (Jasmine D., supra, 78 Cal.App.4th at p. 1350), "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). "No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy "a parental role" in the child's life.' " (In re K.P. (2012) 203 Cal.App.4th 614, 621.) While day-to-day contact is not necessarily required, courts evaluate whether the parent has the type of relationship that typically arises from day-to-day interaction, companionship, and shared experiences. (Casey D., supra, 70 Cal.App.4th at p. 51.) Courts make the determination on a case-by-case basis, taking into account factors that logically "affect a parent/child bond," including "[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." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Mother contends the juvenile court erred when it determined the beneficial parental relationship exception to termination of her parental rights did not apply. She argues the court should have selected a permanent plan of guardianship or long-term foster care. We apply the substantial evidence standard to review the court's finding that the exception did not apply, construing the evidence and resolving all conflicts in favor of the court's order. (In re C.F. (2011) 193 Cal.App.4th 549, 553.)
There is some disagreement as to the appropriate standard of review for rulings denying applicability of the beneficial parental relationship exception. Most courts apply the substantial evidence standard. (See, e.g., Autumn H., supra, 27 Cal.App.4th at p. 576; In re C.F., supra, 193 Cal.App.4th at p. 553.) Others review for abuse of discretion. (See, e.g., Jasmine D., supra, 78 Cal.App.4th at p. 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Some courts apply a hybrid standard, reviewing the finding of a beneficial relationship for substantial evidence and reviewing for abuse of discretion the determination as to whether that relationship constitutes a " 'compelling reason for determining that termination would be detrimental to the child.' " (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314, 1315; see also J.C., supra, 226 Cal.App.4th at p. 531.) "The practical differences between [these] standards of review are not significant." (Jasmine D., at p. 1351.) On the record before us, we would affirm under any of the above standards.
Because the court found, and the parties agree, that Mother maintained regular visitation and contact, we focus our analysis on the "benefit" prong of the exception—that is, whether substantial evidence supports the juvenile court's finding that the benefits of maintaining the parental relationship did not outweigh the benefits of adoption. (G.B., supra, 227 Cal.App.4th at pp. 1165-1166.) The court found that Mother did not occupy a parental role in her children's lives and had not shown that termination of her parental rights would be detrimental to them. Substantial evidence supports those findings.
First, there is substantial evidence Mother did not occupy a parental role. The juvenile court found the testimony of social worker Karlis Thorpe persuasive. Thorpe supervised numerous visits and saw Mother feed, play with, and have appropriate interaction with her children. However, at times, Mother could not meet the children's needs. Four-year-old N.C. sometimes rejected Mother's affection, struggled to follow her directions, and showed anger toward her. Although N.C. was excited to see Mother during one visit and screamed "Mommy" repeatedly, within minutes she stopped speaking and would not respond to Mother's questions. Two-year-old J.C. had been out of Mother's care since he was six months old. He was distracted during Mother's visits, sometimes showing more interest in the social worker or other children, and Mother struggled to redirect his behavior or assert herself in a parental role. The Agency assessed Mother's relationship with N.C. as that of a "distant relative" and her relationship with J.C. as not even that of a "friendly visitor." The juvenile court found these assessments persuasive.
Second, substantial evidence supports the court's finding that severing the parental relationship would not "greatly harm" either child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The children were exposed to significant instability and domestic violence in Mother's care. The children's maternal great-grandmother testified it was not safe to leave the children in Mother's care because Father "keeps on coming to her" and "doesn't stop." Both children exhibited behavioral problems after their visits with Mother; N.C. had bathroom accidents and mood swings, while J.C. would bite and hit people. It took the children several days to calm down after visiting Mother, and their behavior improved and stabilized when Mother's visits became less frequent.
Mother refers to S.B., supra, 164 Cal.App.4th 289, but in that case, the child visited her father two to three times a week and "derived comfort, affection, love, stimulation and guidance from her continued relationship with [him]." (Id. at p. 300.) The record does not support that finding as to N.C. or J.C. --------
By contrast, the children were doing "exceedingly well" in their current placement of more than a year's duration. They developed a meaningful relationship with the caregivers, calling them "mommy and daddy." The caregivers offered the children stability, routine, and permanence, obtaining intensive services to address the children's therapeutic and developmental needs. The CASA report stated the children were "thriving" in their placement. The juvenile court heard testimony from the caregiver and was "particularly struck" by "her family's desire to meet the needs of these two children." The caregivers were committed to adopting N.C. and J.C. Although Mother suggests guardianship or long-term foster care would give her "a longer period of time to repair her life in a manner that would allow her to fully benefit her children," "[c]hildhood does not wait for the parent to become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310.)
In short, the juvenile court reasonably found the strength of the parent-child relationship between Mother and the children insufficient to overcome the statutory preference for adoption. Here, as in G.B., supra, 227 Cal.App.4th 1147, although Mother loved her children and had positive visits, she was "only at the beginning stages of working on the effects of domestic violence in her life," whereas "the children were in a secure placement and were bonded with their current and prospective caregivers." (Id. at p. 1166.) As in G.B., the juvenile court did not err in determining the beneficial parental relationship exception did not apply. (Ibid.)
DISPOSITION
The October 26, 2016 order is affirmed.
/s/_________
DATO, J. WE CONCUR: /s/_________
NARES, Acting P. J. /s/_________
O'ROURKE, J.