Opinion
D071617
05-26-2017
In re G.L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GABRIELLA L., Defendant and Appellant.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldanado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ13102A) APPEAL from an order of the Superior Court of San Diego County, Kenneth Medel, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldanado, Deputy County Counsel, for Plaintiff and Respondent.
Gabriella L. (Mother) appeals an order terminating her parental rights to her son, G.L., under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred when it found G.L. was likely to be adopted within a reasonable time if parental rights were terminated, and she argues the adoption assessment report prepared by the San Diego County Health and Human Services Agency (Agency) was deficient because it did not adequately ascertain G.L.'s views on terminating Mother's parental rights and adoption. Mother also argues there is insufficient evidence to support the court's finding that the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We affirm the findings and order.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, Mother violated the terms of her probation by using methamphetamine. She had a history of drug use, prostitution, and mental health issues, and she allowed her father, who had molested her when she was a child, to reside in her home with her then eight-year-old son, G.L. Mother claimed she did not worry her father would sexually abuse G.L. so long as he remained sober. However, she admitted her father was still using drugs, and her probation officer feared she planned to leave G.L. in her father's care while incarcerated for violating probation.
In February 2015, the Agency filed a dependency petition under section 300, subdivision (b)(1), alleging Mother was unable to provide regular care for G.L. At the detention hearing, the juvenile court made a prima facie finding on the petition and ordered G.L. to be detained at Polinsky Children's Center (Polinsky). After Mother's release, she visited G.L. at Polinsky on three different dates in February and was a no show for a fourth visit. G.L. stated he missed his mother and wanted to live with her again. In late February, G.L. was detained in foster care.
In March 2015, Mother was admitted to KIVA, a residential drug treatment center. She resumed weekly supervised visitation with G.L. During visits, she played board games, brought G.L. snacks, helped him wash his hands, made positive statements, and redirected his behavior or instructed him when necessary. In late March, Mother submitted on the petition, and the juvenile court made a true finding.
By mid-April, Mother reported she was not using drugs, had tested negative in drug tests, and participated in groups at KIVA. A counselor at KIVA confirmed that Mother was engaged in her treatment and doing well. At the contested disposition hearing in April 2015, the court declared G.L. a dependent child, placed him in foster care, and ordered reunification services, including conditional unsupervised visits.
During the reunification period, G.L. seemed excited to see Mother during unsupervised visits and would kiss her goodbye when it was time to leave. He wanted to spend more time with Mother and asked when he could live with her. Mother completed her treatment at KIVA, gave birth to another child, and moved to a transitional living center with her newborn. At the six-month review hearing, the juvenile court granted Mother overnight visits with G.L.
By the 12-month permanency hearing in December 2015, Mother had three negative drug tests at her transitional living center, was very attentive to her newborn, and had kept up with overnight visits with G.L. The juvenile court adopted the Agency's recommendation to continue G.L. as a dependent and return him to Mother's care, with family maintenance services.
Less than three months later, the Agency filed a section 387 petition to remove G.L. from Mother's care. Mother and her boyfriend, Robert, drove a stolen vehicle with the children in the car while under the influence of methamphetamine. Robert crashed the car into a wall, grabbed plastic bags containing methamphetamine and a semiautomatic handgun, and fled the scene with G.L. Mother ran in the other direction with G.L.'s half-brother, and witnesses saw her drop the child. Mother later admitted to relapsing on methamphetamine on more than one occasion. She claimed she obtained the car from her long-time "John" and admitted to having other "Johns." Mother and Robert were arrested, and the children were taken into protective custody. The juvenile court made a prima facie finding on the section 387 petition on March 28, 2016. Pursuant to a criminal protective order, Mother was barred from contacting her children.
G.L. was initially placed in Polinsky. When the social worker visited him, he hid under his sheets and refused to get out of bed, stating he was mad at his mother. In April 2016, he was placed in the home of a non-relative extended family member, Regina F. Regina was Mother's friend and had known G.L. his entire life.
The Agency filed a jurisdiction and disposition report in April recommending Mother's reunification efforts with G.L. to be terminated. Mother had relapsed on methamphetamine and had not sought treatment for her diagnosed bipolar disorder and depression. After G.L. was returned to her care, Mother felt overwhelmed and resorted to drugs when she could not cope with his behavioral, educational, and mental health needs. G.L. exhibited social and emotional developmental delays and concerning mental health behaviors, such as suicidal ideation statements and an inability to regulate emotions or open up to others.
In May 2016, weekly supervised visitation between Mother and G.L. resumed. G.L. seemed excited to see his mother during one visit and hugged her; the Agency reported the visits were generally positive and that Mother tended to G.L.'s needs and gave him a lot of praise and positive affirmation. However, in late May, she tested positive for amphetamines. The juvenile court later adopted the Agency's recommendation for Regina to make educational decisions for G.L.
By June, the Agency reported G.L. seemed happy in his placement with Regina; he was exhibiting fewer behavioral problems such as defiance and tantrums and had a more positive outlook due to keeping up with his medications. In July 2016, the juvenile court made a true finding on the section 387 petition, continued G.L. as a dependent, and ordered him to be placed with Regina. Finding reasonable services had been offered and Mother's progress had been minimal, the court terminated Mother's reunification services and set a section 366.26 hearing to determine G.L.'s permanent plan.
In the months that followed, Mother's visitation with G.L. became inconsistent. She was again arrested in September 2016 for, as she claimed, "being in the wrong place at the wrong time."
To avoid repetition, we describe her visitation during this period in the discussion.
In November 2016, the Agency filed an adoption assessment report. The Agency noted G.L. was thriving in Regina's care. The Agency assessed G.L. to be an adoptable child—"a bright, active, and imaginative [eight-year-old] boy" who was developmentally on target and in good physical health. The Agency found G.L. generally adoptable by 21 families in the county with approved adoptive home studies who were willing to adopt a child with his characteristics. In addition, the Agency found G.L. specifically adoptable because Regina wanted to adopt him. The Agency determined the sibling relationship did not apply because G.L. had had an inconsistent relationship with his half-sibling. Although G.L. had a relationship with Mother, the Agency assessed his "need for stability, consistency, and permanency" outweighed the benefits of maintaining the parental relationship. The Agency believed a permanent plan of adoption would allow G.L. to have a family of his own and develop in a safe and healthy home environment.
The CASA report, also filed in November 2016, included comments from G.L.'s fourth grade teacher, who did not observe any behavioral concerns. The teacher described G.L. as "a bright student who finishes everything on time and works really hard at making it high quality." She stated G.L.'s math and reading skills were at grade level and that G.L. "enjoys sharing his thoughts in class." Overall, G.L.'s teacher reported he was "a bright student who appears to be receiving support and stability at home." The CASA report noted that G.L. had stabilized under Regina's care, as he had exhibited several behavioral problems at his previous school.
The juvenile court held a contested section 366.26 hearing on December 30, 2016, and received into evidence the Agency's assessment report. G.L. asked the court to adopt the Agency's recommendations to terminate Mother's parental rights and select adoption as the permanent plan. He argued he was "thriving" in his current placement and that the benefits of permanency through adoption "greatly outweigh[ed] any incidental benefit of maintaining a relationship with his mother." Mother offered no affirmative evidence but argued the court should select a permanent plan of guardianship because she and G.L. had a beneficial parent-child relationship. Father offered no evidence and asked the court to "explore a lesser permanent plan than adoption."
The juvenile court decided the matter on the papers. The court found clear and convincing evidence G.L. was adoptable and that none of the exceptions to termination of parental rights applied. Accordingly, the court terminated Mother's parental rights and selected adoption as G.L.'s permanent plan. The court further found that Regina qualified as a prospective adoptive parent (§ 366.26, subd. (n)).
Mother timely appealed.
DISCUSSION
I. Legal Principles
"[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 .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.) "At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) " '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.).)
Thus, a court must first assess whether a child is likely to be adopted. "A finding of adoptability requires 'clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.' " (In re Michael G. (2012) 203 Cal.App.4th 580, 589 (Michael G.).) "If the court finds the child is likely to be adopted within a reasonable time, the juvenile court is required to terminate parental rights unless the parent shows that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)(A) and (B)." (Ibid.; In re S.B., supra, 164 Cal.App.4th at pp. 296-297.)
Relevant here, section 366.26, subdivision (c)(1)(B)(i), provides an exception to terminating parental rights where "termination 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 (Anthony B.).) "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 (Jasmine D.), italics added.)
On appeal, Mother challenges the court's finding that G.L. was adoptable and its determination that the beneficial parental relationship exception did not apply. We review both findings for substantial evidence. (Michael G., supra, 203 Cal.App.4th at p. 589; In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) In applying this standard, we construe the evidence in the light most favorable to the court's order, giving the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 (Gregory A.); C.F., supra, at p. 553.)
Courts are divided on the appropriate standard of review for juvenile court findings denying applicability of the beneficial parental relationship exception to termination of parental rights. Most apply the substantial evidence standard. (See, e.g., Autumn H., supra, 27 Cal.App.4th at p. 576; 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 In re J.C. (2014) 226 Cal.App.4th 503, 531.) "The practical differences between [these] standards of review are not significant." (Jasmine D., supra, at p. 1351.) We affirm the finding denying applicability of the beneficial parental relationship exception under any of the above standards.
II. Substantial Evidence Supports the Adoptability Finding
At the section 366.26 hearing, the juvenile court found by clear and convincing evidence G.L. was adoptable. The court noted G.L.'s current caregiver, Regina, was "fully on board to adopt," and that there was evidence of "21 families in San Diego County who would adopt if the caregiver was not on board." Mother challenges that finding, arguing the evidence did not support that G.L. was generally adoptable. "The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child." (Michael G., supra, 203 Cal.App.4th at p. 589.) We conclude the record contains substantial evidence from which the juvenile court could find clear and convincing evidence that G.L. was generally adoptable.
Mother presented no affirmative evidence at the section 366.26 hearing, and the court made its adoptability findings based solely on the Agency's November 2016 assessment report. The assessment described G.L. as "a bright, active, and imaginative [eight-year-old] boy" who was "developmentally on target" and "in good physical health." Although he demonstrated some problem behaviors in the past, such as anger, frustration, and self-harm statements, these behaviors had decreased over time with treatment, medication, and services. The assessment indicated G.L. "has an easy time making new friends and shows good social skills." Together, this evidence supports the juvenile court's finding that G.L. was generally adoptable. (Gregory A., supra, 126 Cal.App.4th at p. 1562 ["young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability"].)
The assessment further opined that G.L. was generally adoptable because "there are 21 San Diego County families with approved adoptive home studies that are open to adopt a child similar to [G.L.'s] characteristics." Mother contends "[s]uch a recitation is seriously lacking in detail to give a reliable forecast as to whether the dependent child under examination is generally adoptable." Mother cites no authority for her argument that this recitation is too imprecise to support an adoptability finding, and our independent review reveals none.
Moreover, the Agency's assessment stated that G.L. was "specifically adoptable" because Regina "wants to adopt him." The assessment noted Regina was "committed to adopting [G.L.]" as a "permanent member of her family" and that she sought "to provide him with a stable, loving home." At the permanency planning hearing, the juvenile court found Regina qualified as a prospective adoptive parent, and Mother does not challenge that finding on appeal. " ' "[A] prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." ' " (Gregory A., supra, 126 Cal.App.4th at p. 1562.) Construing the evidence in the light most favorable to the juvenile court's adoptability finding (ibid), we conclude the record contains substantial evidence to support the finding that G.L. was generally adoptable.
III. Mother Does Not Demonstrate Prejudice from any Deficiencies in the Assessment
In ordering a section 366.26 hearing, the juvenile court must direct the social services agency to prepare an adoption assessment report. (Michael G., supra, 203 Cal.App.4th at p. 590.) Among other things, the assessment must include "a statement from the child concerning placement and the adoption or guardianship . . . unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." (§ 366.21, subd. (i)(1)(E).) At the section 366.26 hearing, the juvenile court must "consider the wishes of the child." (§ 366.26, subd. (h)(1).) On appeal, Mother argues the Agency's assessment report was deficient because it did not adequately assess G.L.'s views on terminating Mother's parental rights and adoption. We conclude Mother does not demonstrate prejudicial error on appeal.
In its assessment, the Agency stated a social worker had asked G.L. what he thought about adoption. G.L. answered, "That is when kids at Polinsky get people to take care of them." The social worker responded that G.L. was partially right and explained that adoption meant that his caregiver would be taking care of him until he was 18 years old. The social worker then asked G.L. if he liked being in the caregiver's care and if he wanted to be adopted. G.L. pointed his thumb sideways. When asked what it would take to move his thumb up, he pointed at the bunk beds in his caregiver's home and indicated the caregiver's children were "annoying" because they yelled and were "messy."
Mother argues this discussion did not suffice as "a statement from the child concerning placement" (§ 366.21, subd. (i)(1)(E)) for three reasons. First, she argues the social worker gave G.L. "no idea how adoption would impact his relationship with his mother, both legally and practically." Second, she argues the social worker gave G.L. "the incorrect impression that adoption could only be done by his current caregiver," rather than "possibly someone who is a complete stranger." Third, she contends the social worker failed to "clearly distinguish adoption from guardianship, or even long[-]term foster care."
As the Agency points out, Mother did not object to any deficiencies in the assessment before the juvenile court. Consequently, she forfeited her challenge on appeal that the assessment was deficient because it did not comport with statutory requirements. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) However, she did not forfeit "her right to argue on appeal the sufficiency of the evidence supporting the juvenile court's finding of [G.L.'s] adoptability." (Gregory A., supra, 126 Cal.App.4th at p. 1561.) Thus, Mother preserved her argument that, absent adequate information about G.L.'s preferences, there was insufficient evidence to support the court's finding that G.L. was adoptable or that termination of Mother's parental rights would serve his best interests.
As we noted in In re Amber M. (2002) 103 Cal.App.4th 681, 687, "there is some disagreement whether evidence of the child's wishes must reflect his or her awareness that termination of parental rights is at issue." In In re Diana G. (1992) 10 Cal.App.4th 1468, 1480, the court concluded a statement as to the child's preferences at the permanency planning hearing "must reflect the fact that the child is aware that the proceeding involves the termination of parental rights." By contrast, the court in In re Leo M. (1993) 19 Cal.App.4th 1583 (Leo M.) reached the opposite result, concluding, "in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." (Id. at p. 1593.) Assuming without deciding that G.L. needed to be made aware that termination of Mother's parental rights was at issue, Mother does not show prejudicial error on appeal.
The court explained, "To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. We must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma. We see nothing to be gained by mandating such a specific requirement and we see no statutory language compelling that it be inferred." (Leo M., supra, 19 Cal.App.4th at p. 1593.)
At the outset, we note that the social worker was not the only source of this information. G.L.'s trial counsel had a duty to interview him, determine his wishes, and advise the court of those wishes. (§ 317, subd. (e)(2).) In the absence of contrary evidence, we must assume G.L.'s counsel complied with the code's mandate when it joined the Agency's recommendation for adoption as G.L.'s permanent plan. (In re Jesse B. (1992) 8 Cal.App.4th 845, 853.)
As to Mother's claim the Agency failed to discuss guardianship or long-term foster care with G.L., the Agency correctly notes there was no reason to discuss those alternatives when G.L. was found to be adoptable. (In re D.M., supra, 205 Cal.App.4th at p. 290 [juvenile court does not consider guardianship and long-term foster care unless adoption has been rejected]; Autumn H., supra, 27 Cal.App.4th at p. 574 [same].) In addition, notwithstanding Mother's argument to the contrary, Regina told the social worker she had "no interest in legal guardianship."
Ultimately, it is not sufficient to show error; Mother must also demonstrate the error was prejudicial. (Michael G., supra, 203 Cal.App.4th at p. 591.) We conclude Mother does not meet that burden; she does not demonstrate a reasonable probability the juvenile court would have reached a different result had G.L.'s preferences been ascertained in the manner she claims was required. (Ibid. [applying People v. Watson (1956) 46 Cal.2d 818 standard to alleged omission in adoption assessment report and deeming any error harmless].) Here, as in Michael G., the record contains evidence that is " 'reasonable in nature, credible, and of solid value' to support the juvenile court's finding that [G.L.] would be adopted within a reasonable time if parental rights were terminated." (Michael G., supra, at p. 591.) Consequently, in view of the strength of the other evidence in the record supporting the court's adoptability findings, any failure to adequately consider G.L.'s views on adoption in the assessment report was harmless. (Ibid.)
Our conclusion that Mother has not shown prejudice is supported by the fact the juvenile court was not required to follow G.L.'s preferences in selecting a permanent plan. Although there is an exception to termination of parental rights where a "child 12 years of age or older objects" (§ 366.26, subd. (c)(1)(B)(ii)), G.L. was not yet 12 years old. In addition, the court was required not only to "consider the wishes of the child" but also to "act in the best interests of the child" in determining G.L.'s permanent plan. (§ 366.26, subd. (h)(1).) Even if G.L. opposed terminating Mother's parental rights, that would not preclude the court from concluding such action would nevertheless serve his best interests. Indeed, as we explain in the following section, the juvenile court could reasonably conclude from the record that the benefits from adoption outweighed the benefit of maintaining Mother's parental relationship.
IV. Substantial Evidence Supports the Court's Finding that the Beneficial Parental Relationship Exception Did Not Apply
At the section 366.26 hearing, the juvenile court determined the beneficial parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply. The court found Mother's visitation with G.L. had been inconsistent, and that their warm relationship could not overcome inconsistencies in her visitation. The court also found that given Mother's struggles with incarceration and addiction, G.L. was in a better place in Regina's care. We conclude substantial evidence supports the court's finding that the beneficial parental relationship exception did not apply.
For the exception to apply, Mother first had to demonstrate she "maintained regular visitation and contact with the child." (§ 366.26, subd. (c)(1)(B)(i).) Sporadic visitation is insufficient to satisfy this prong. (C.F., supra, 193 Cal.App.4th at p. 554.) Inconsistent visits in the months leading up to the section 366.26 hearing cannot be overcome by consistent and positive visits during an earlier period of time. (Anthony B., supra, 239 Cal.App.4th at p. 396.) Likewise, inconsistent visitation that becomes consistent shortly before the section 366.26 hearing is not sufficient. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.)
Substantial evidence supports the court's finding that mother's visitation had been inconsistent in the months leading up to the section 366.26 hearing. After G.L. was removed from Mother's care for a second time in March 2016, a criminal protective order initially prevented her from having contact with G.L. Mother was able to resume visits in May 2016. Mother made one visit on May 11, missed the next visit, and then resumed one-hour weekly supervised visits at the child welfare services office. In late June, Mother was again incarcerated, although it is not clear from the record whether that impacted her visitation.
In July 2016, the court held a contested jurisdiction and disposition hearing on the Agency's section 387 petition and placed G.L. with Regina. Mother initially visited G.L. in the mornings at the caregiver's home. These morning visits stopped in early August; thereafter, Mother began to show up at Regina's home at random times on weekends. The social worker wrote to Mother and asked her to contact her about visitation. In late August, Mother admitted her visitation with G.L. had been inconsistent and claimed it was due to her work schedule. The social worker told Mother she needed to observe visitation to assess the parental relationship and recommend a permanent plan. Mother said she would need to look at her work schedule. In early September, Mother again told the social worker she could not arrange a visit with G.L. until she knew her work schedule.
Two weeks later, Mother was arrested. She called the social worker and said she wanted to see G.L. but was not sure if it was in his best interest to visit her in jail. She left the decision to G.L. as to whether to visit her. When the social worker later spoke to G.L., he said he was mad at Mother for getting arrested again and did not want to visit or talk to her. The social worker "attempted to observe visits; however the visits were not consistent to where [she] was able to attend."
Because Mother did not maintain "regular visitation and contact with the child" (§ 366.26, subd. (c)(1)(B)(i)) in the months leading up to the permanency planning hearing, she did not meet her burden to establish the first prong of the beneficial parental relationship exception. (Anthony B., supra, 239 Cal.App.4th at p. 396 ["While Father's visitation . . . was consistent and positive during a previous period of time, during the five months preceding the section 366.26 trial Father's visitation was, at best, sporadic. This does not amount to the regular contact and visitation intended by the Legislature."]; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [same].) This alone could end our inquiry; because the court reasonably found that Mother had not maintained regular visitation, it did not err in determining that the beneficial parental relationship exception did not apply. (In re I.R. (2014) 226 Cal.App.4th 201, 212 ["significant lapses" in visitation "would fatally undermine any attempt to find the beneficial parental relationship exception"].) Nevertheless, we also conclude Mother did not meet her burden to demonstrate a beneficial relationship with G.L., such that "termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B)(i).)
Although courts have recognized that "[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. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Mother cites In re S.B., supra, 164 Cal.App.4th 289 to argue she need not prove G.L. had a "primary attachment" with her for the exception to apply. (Id. at p. 299.) However, the child in S.B. saw her father two to three times per week and "derived comfort, affection, love, stimulation, and guidance from her continued relationship with [him]." (S.B., supra, at p. 300.) While Mother is correct that a "primary attachment" is not required, for the exception to apply, she still had to show she occupied a parental role in G.L.'s life. (In re K.P., supra, 203 Cal.App.4th at p. 621.) This type of relationship is difficult to make in a situation such as the one here, where Mother had not advanced beyond supervised visitation at the time of the permanency planning hearing. (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
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 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., supra, at p. 575; J.C., supra, at p. 533.) "[A]doption should be ordered unless exceptional circumstances exist." (In re 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., supra, 78 Cal.App.4th at p. 1348.)
Here, substantial evidence supports the juvenile court's finding that the potential benefits of adoption were not outweighed by any benefit from maintaining Mother's parental rights. Within three months of Mother's reunification with G.L., she relapsed and put G.L. in an extremely dangerous situation when she allowed the children to be in the backseat of a stolen car driven by her boyfriend, who she knew to be under the influence of methamphetamine. After the crash, she fled the scene with her infant while allowing G.L. to run in a different direction with her boyfriend, who was carrying drugs and a gun.
G.L.'s own statements underscored his need for stability and permanency. When a social worker asked G.L. if he worried about being back in Mother's care, he indicated concern that he would be shuffled back and forth between Mother's home and Polinsky. He started counting his fingers and said, "Go home; go back to Polinsky; back home; then back to Polinsky." The social worker asked him how that made him feel, and G.L. replied, "Exhausted." When G.L. visited with Mother, he was happy to see her, but he was not sad and did not cry when it was time for Mother to leave. G.L. expressed frustration at Mother's repeated arrests; when Mother was again arrested in September 2016, G.L. told the social worker he did not want to visit her or talk to her while she was in jail, stating it would make him "more angry cause she's bad."
By contrast, G.L. had "excelled and thrived" under Regina's care. G.L.'s behavioral issues at school had improved with consistent ADHD medication, and he was "making strides in his development." Regina was actively involved in G.L.'s educational planning and had provided for his medical and dental care. She was amenable to G.L. having therapeutic services in her home. G.L. had known Regina his entire life, and G.L. had adjusted quickly to living in her home during the six months before the section 366.26 hearing. The juvenile court reasonably found that "by overwhelming evidence," G.L. was doing better at that point in Regina's care. G.L.'s progress supported a reasonable inference that the benefits of maintaining the parental relationship did not outweigh the benefits of stability that adoption would provide.
Although the court found Mother had a warm and affectionate relationship with G.L., Mother abused methamphetamine, was in and out of jail, and did not demonstrate an ability to provide G.L. with "a stable, safe, and loving home environment." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 644.) Mother told a social worker she relapsed after reunifying with G.L. because she could not cope with the stresses of parenting, and admitted she had not been ready to have G.L. back in her care. The juvenile court reasonably found there was no beneficial parental relationship sufficient to overcome the statutory preference for adoption. (Ibid.; In re Cliffton B. (2000) 81 Cal.App.4th 415 [despite father's deep love for his son, exception not established where father had relapsed during 60-day trial visit and child "had adjusted well to his foster family, who [were] willing to adopt him"]; In re G.B. (2014) 227 Cal.App.4th 1147, 1166 [despite mother's deep love and positive visits, exception did not apply; mother 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"].)
DISPOSITION
The order is affirmed.
/s/_________
McCONNELL, P. J. WE CONCUR: /s/_________
BENKE, J. /s/_________
DATO, J.