Opinion
F079791
05-05-2020
In re M.M. et al., Persons Coming Under the Juvenile Court Law. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.T. et al., Defendants and Appellants.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant, S.T. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant, G.M. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JV7912, JV7913)
OPINION
APPEAL from orders of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant, S.T. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant, G.M. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Then 11-year-old M.M. and then nine-year-old I.M. (collectively, "children" or "minors") were removed from the care of S.T. (mother), and G.M., I.M.'s presumed father (father), due to mother and father's substance abuse and domestic violence. Dependency jurisdiction was taken over the children. The juvenile court bypassed mother and father for reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(13) and set a permanency planning hearing pursuant to section 366.26. Mother subsequently filed a section 388 petition requesting the court to make an order that she be provided with reunification services. The juvenile court denied mother's petition following an evidentiary hearing, and subsequently terminated parental rights and ordered a permanent plan of adoption with the children's care providers.
M.M.'s biological father is deceased and was not a party to the proceedings below.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother appeals the juvenile court's orders denying her section 388 petition and terminating her parental rights. Mother contends the court abused its discretion by finding mother had not proven a change in circumstances so as to merit ordering reunification services, or that such an order would be in the best interest of the children. Mother also contends the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights. Father joins in mother's arguments. Father raises no independent arguments but asserts that if we were to reverse the order terminating mother's parental rights, the order terminating his parental rights as to I.M. must be reversed as well. Finding no error, we affirm the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
This family's child welfare history dates back to 2009. In February 2009, Stanislaus County Child Welfare Services contacted the family due to ongoing methamphetamine use and domestic violence. Mother and father participated in 16 months of voluntary services, and the case ended in June 2010.
In 2014, M.M. and I.M. were removed from mother and father's care and adjudged dependents of the juvenile court due to mother and father's methamphetamine use. Mother received 24 months of services, and successfully completed dependency drug court. Father received 18 months of services, but his services were terminated because of lack of participation. The children were returned to mother's care in September 2016, and the case was closed in June 2017. The juvenile court found mother to have the ability to protect her children and maintain her sobriety should father return to the home. At the close of the case, father had been arrested for a new drug offense, and the court admonished mother to be wary of reentering a relationship with father.
Father returned to the home in December 2017. In January and February 2018, the Tuolumne County Department of Social Services (department) began receiving referrals regarding possible drug use by mother and father. In April 2018, the department received a referral that the police had to be called to the home due to domestic violence between mother and father. During the prior dependency case, father expressed to the social worker he and mother only engage in domestic violence when using methamphetamine. The department attempted to test mother for illicit substances and provide voluntary services, but mother consistently declined. In May 2018, the department learned that the children started to miss school. The department requested and obtained a protective custody warrant on May 29, 2018. The children could not initially be located at their school, and the social worker learned that mother had told the school the children would not be present for the remainder of the school year. The children were eventually located at their residence, where they were taken into protective custody.
The department filed a petition on behalf of the children, alleging I.M. and M.M. came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) and additionally that I.M. came under section 300, subdivision (c). Under subdivision (b)(1), it was alleged that on April 25, 2018, mother and father used methamphetamine and engaged in domestic violence while M.M. and I.M. cried and screamed. It was further alleged that I.M. witnessed, on a separate occasion, father hit mother. It was alleged under subdivision (c), that I.M. disclosed there is often screaming in her home, which causes her to walk by herself down the street or into the nearby liquor store to get away from the screaming and fighting. It was further alleged that I.M. cries at school due to worry over mother being home alone with father. On June 7, 2018, the juvenile court ordered the children to remain detained.
On June 7, 2018, mother and father consented to a toxicology test and tested positive for methamphetamine and marijuana. After having a confrontation with the social worker during a visit with the children in June 2018, mother apologized to the social worker and told the social worker she had "faked [her] last case."
On June 18, 2018, mother told the social worker she had begun attending Narcotics Anonymous (NA) meetings daily, reaching out to her support system, seeking counseling, and seeking assistance to apply for employment.
At mother and father's first supervised family visit, it was noted that mother and father seemed to have a strong bond with both children. Father subsequently stopped visiting regularly with the children, but mother continued to visit three times a week. Visits with mother went well.
Following a contested jurisdiction hearing, the juvenile court found the petition true and that the children came within its jurisdiction under section 300, subdivision (b) and additionally that I.M. came within its jurisdiction under section 300, subdivision (c).
In the disposition report dated August 28, 2018, it was reported that mother told the social worker she started using methamphetamine when she was 14 years old. Mother said she began using daily after I.M. was born and became sober after participating in voluntary services in 2009 and residing in a sober living facility. Mother reported she stayed sober until 2014 when her previous dependency case began. After she completed her services at the end of 2017, she did not use again until the department began contacting her about the present case in January 2018.
At the time the disposition report was written, visits continued to go well with mother. She had four supervised visits per week. When asked if M.M. would like to provide a statement for the disposition report, M.M. stated: "What I want [the court] to know is can my mom ... do a couple months of therapy before we go back? I think if we go back before that and she is not ready for us and then we might be taken again, which ... um would, like, not make sense." M.M. was displaying aggressive behaviors. Both M.M. and I.M. were referred to counseling. M.M. and I.M.'s care providers were open to adopting them.
With regard to disposition, the department recommended family reunification services not be offered to mother or father pursuant to section 361.5, subdivision (b)(13) and a section 366.26 hearing be set.
Section 361.5, subdivision (b)(13) provides in relevant part: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence ... [¶] ... [¶] [t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention."
At the contested disposition hearing on September 28, 2018, mother called the social worker to testify. The social worker confirmed that mother had provided proof of attending NA meetings and had expressed commitment to sobriety. The social worker also testified that the children liked to see mother and were bonded to her. The social worker testified that mother loves her children.
Mother testified that she took care of all the children's basic and emotional needs. Mother and the children attended community events together, and mother participated in the children's education by talking to their teachers and attending activities in which the children were involved. Mother and the children read together every night before bed. Mother said she had been the children's primary caretaker their entire lives, and the longest the children had been out of mother's care was for eight months during the previous dependency case.
Mother testified she was no longer in a relationship with father. Mother's plan for not relapsing again was to reach out to other women and contact her sponsor. Mother said she last used methamphetamine on June 5, 2018. She said she had been attending three or four 12-step meetings a week, as well as group meetings at Behavioral Health. Mother had been attending 12-step meetings since her last case closed. The groups she attended at Behavioral Health were the same groups she went to as a part of dependency drug court. Mother said she initially declined to drug test because she did not think she "had to." In retrospect, she wished she would have complied with the department's requests. Mother had just started the third week of her first job stocking at a liquor store.
Minors' counsel reported the children had expressed they both love their mother and know she loves them. M.M. expressed he wanted his mother to get help and would like to eventually return to her care. I.M. said she loves her mother but wanted to stay with her care providers. Minors' counsel argued that "if the children are returned to [mother's] care, there is a very highly likelihood that things are going to turn out badly for them." The court deferred its disposition ruling to October 12, 2018.
On October 12, 2018, the juvenile court found that section 361.5, subdivision (b)(13) applied to both parents. The court then went through a detailed analysis of whether the granting of services to mother would be in the children's best interest despite finding the bypass provision applied. The court found there was not a substantial likelihood mother would be able to successfully reunify with the children and ultimately decided that providing services would not be in the children's best interest. The court adjudged the children dependents of the court, bypassed parents for reunification services, and set a section 366.26 permanency planning hearing. The court ordered the parents to have a minimum of one visit per month.
At the time scheduled for the section 366.26 hearing, February 5, 2019, the court continued the hearing because father could not be found.
On April 24, 2019, the social worker received a phone call from father and informed him of the upcoming section 366.26 hearing. Father told the social worker he would be at the hearing. Father also reported that he had been in contact with mother until recently when she entered into a new relationship. Father told the social worker he had been with mother as recently as February 2019, when they had used methamphetamine together for several days. Father said the reason he had not been in contact with the department was that mother told him she would have a better chance of reunifying if he were unavailable. Mother did not complete any substance abuse testing in February 2019. On March 7, 2019, mother's test came back "dilute." Mother also missed a visit with the children in February 2019.
Mother filed a section 388 petition on April 25, 2019, requesting the court order that she be provided with reunification services. Mother alleged she had made progress with substance abuse issues, including participating in individual and group substance abuse counseling, attending almost daily 12-step programs, and working with a sponsor on the 12 steps. With regard to domestic violence issues, she alleged she had participated in individual mentoring with a counselor at a Center for a Non Violent Community and had attended trauma and domestic violence groups. Mother had also maintained her employment, completed a parenting workshop, and obtained a restraining order against father. As for why the order would be in the best interest of the children, mother alleged that she could maintain a safe home for her children based on the progress she had made since the court's order bypassing services, had a bond with her children, and that her "transformation" was "empowering and comforting" to the children. Mother attached documents to her petition, which supported her allegations as well as character reference letters. The court set an evidentiary hearing on mother's section 388 petition and a contested section 366.26 hearing for June 28, 2019.
The department's section 366.26 report recommended adoption as the children's permanent plan and recommended that mother and father's parental rights be terminated.
The section 366.26 report indicated that M.M. had been diagnosed with adjustment disorder and posttraumatic stress disorder (PTSD). M.M. was attending counseling, and his counselor reported that M.M. was struggling with divided loyalties between mother and the care providers. M.M. often refused to participate in counseling because he worried that his statements to the counselor would negatively affect mother. I.M. was also attending counseling to work on past trauma, and struggled with mixed feelings between loyalties to mother and the care providers. Mother's visits were supervised and had decreased to weekly visits in December 2018. Mother began having monthly visits in March 2019.
The social worker reported that mother's visits with the children were positive overall. Mother brought snacks to the visits and the children enjoyed spending time with mother. On one occasion, however, when mother and the children were speaking on the telephone, mother spoke about the upcoming hearing and began to cry. The children got upset, and the call had to be ended. The children told their care provider they did not want to speak with mother on the telephone because hearing her get choked up "hurt their hearts." After this incident, the children did not ask to speak to mother on the telephone again.
M.M. and I.M.'s care providers wished to adopt M.M. and I.M. The care providers were not interested in legal guardianship. M.M.'s grades and behavior had improved since the writing of the disposition report.
The department's adoption assessment for M.M. indicated that M.M.'s first choice was to live with mother, but he understood he could not return to her care. M.M. wanted to remain in his current home and be adopted by his care providers and would not want to be adopted by anyone else. According to the report, M.M. was "beginning to form a close relationship with the [care providers] and would benefit from the establishment of a permanent parent/child relationship." M.M. resided with the care providers in the previous dependency case and had emotional ties to the care providers and other family members. The care providers were open to some form of contact with mother if it is in M.M.'s best interest.
Evidence was heard on mother's section 388 petition and the section 366.26 hearing simultaneously over the course of two days: June 28, 2019 and July 30, 2019. Mother called the social worker to testify. The social worker testified that mother's visits were positive overall and mother and the children had a bond and loved each other. She said the children enjoyed spending time with mother. The social worker testified the children were also bonded with the care providers and were happy, healthy, well cared for, and thriving in that placement. The children had never made a complaint about their care providers.
Mother testified the children had lived with her their whole lives apart from the eight months they were out of her care in the prior dependency case and the 12 months they were out of her care for the present dependency case. Mother testified she had a bond with her children and they are able to talk to her and trust her. When asked what concerns mother had if the children were to be adopted, she responded, "Not being able to see them, not being a part of their life, just being there." Mother went on that she thought it would be hard for her children if they did not see her.
Mother testified she was not currently in a relationship with father and that she did not see him in January or February. Mother said she did not use methamphetamine with father in February as he reported to the social worker. Mother testified she was sober and participating in two NA meetings per week and meeting with her sponsor. Mother attended groups through Behavioral Health from June to April. Mother said she had been clean from methamphetamine since June 6, 2018, and from alcohol since January 12, 2019.
Mother testified she was currently in an "open relationship" with a man named Luis. Mother admitted the police had recently reported to mother's home because of an incident involving Luis and yelling. Mother testified she saw her relationship with Luis going down a "bad path" that was similar to her relationship with father. Because the police were called, mother told Luis he could not stay at her house anymore. She did not, however, terminate the relationship and continued to see him. Luis was in mother's Facebook profile picture in a romantic context for months up until three hours before court. Mother could not explain why she changed the picture right before the hearing. The minors' counsel asked mother, "If you're in a relationship with Luis ... and you have problems with fighting and kind of domestic violence type issues with him, why are you still with him when you want to get your children back?" Mother responded, "I don't know."
The minors' counsel informed the court he had spoken to the children and the children want to stay with their care providers and "can emphatically state [M.M.] is not objecting to the termination of parental rights in this case." The children love their mother but know they are in a happy, healthy home.
The court deferred ruling on mother's section 388 petition and continued the section 366.26 hearing to August 6, 2019.
On August 6, 2019, with regard to mother's section 388 petition, the court noted that though mother had maintained employment, she had continued to engage in negative relationships as evidenced by the relationship she had with Luis. The court noted that mother had a job when it denied reunification services and had already taken it into consideration. The court found that granting mother reunification services would be subjecting the children to continued turmoil. The turmoil the children had already been subjected to had resulted in PTSD for M.M. The court held that even if mother's evidence constituted changed circumstances, it was not in the best interest of the children to provide mother reunification services. The court pointed out that mother had not alleviated the problems that led to the children's removal in the first dependency case, because the children were detained a second time. The court stated, "I have absolutely no confidence that that problem wouldn't recur. I think if I were to offer her services now, we'd be in exactly this same position two years from now and the kids would be worse off." The court noted the children had a bond with mother, but it was not beneficial as M.M. was in a protective position towards his mother and "that's not a situation an 11 year-old should be placed in." The court noted that the children not wanting to talk to mother on the telephone because it "hurts their heart" is "devastating" and "it is just not beneficial to put those children in that situation." The court held that mother had not carried her burden of showing changed circumstances nor that reunification services would be in the best interest of the children and denied mother's section 388 petition.
With regard to its section 366.26 ruling, the court found the children adoptable. As to whether the beneficial parent-child relationship exception to terminating parental rights applied, the court held that while the children and mother share a strong bond and the children clearly love their mother and mother loves them, the "divided loyalty and the uncertainty ... continuing that for some permanent plan other than adoption would not be in these children's best interest." The court terminated parental rights and ordered adoption as the children's permanent plan.
DISCUSSION
I. The Juvenile Court's Denial of Mother's Section 388 Petition
Mother argues the juvenile court erred by denying her section 388 petition. We disagree.
A juvenile court order in a dependency proceeding may be changed, modified, or set aside if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The petitioner bears the burden of showing both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) To make a showing of a change of circumstances, the problem that initially brought the child within the dependency system must be removed or ameliorated. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
Section 388 petitions are within the sound discretion of the juvenile court, and its decision shall not be overturned on appeal absent a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) A reviewing court will not disturb the juvenile court's decision unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.) " 'When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Id. at pp. 318-319.)
Here, mother requested the court change its order from bypassing her for reunification services to granting her reunification services. When the court determines a reunification bypass provision applies, the general rule favoring reunification is replaced with the legislative presumption that reunification services would be an unwise use of government resources. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
In the present case, the reason mother was bypassed was because of mother's chronic substance abuse issue and recent resistance to treatment. (§ 361.5, subd. (b)(13).) At the time evidence was taken for disposition on September 28, 2018, mother had been attending NA meetings, maintaining she had not used illicit substances since June, and working at her job for approximately three weeks. The court considered all this evidence, as well as the other evidence on the record before it, including taking judicial notice of the children's prior dependency case. The court recounted mother's history of relapse and reengagement in her relationship with father despite receiving services in the past. Considering all the evidence before it, the court found there was not a substantial likelihood mother would successfully reunify and that it was not in the children's best interest for mother to receive services.
The evidence adduced at the section 388 hearing supported that mother had continued to attend meetings and maintain her employment. In that regard, the primary thing that had changed since the disposition hearing was the passage of approximately nine months. If the court were to accept all of mother's allegations as true, mother's approximately year-long sobriety was not a change of circumstances in the context of her history. Mother had used methamphetamine since she was 14 years old. At the time evidence was heard on her section 388 petition, mother was 32 years old, which means she had used methamphetamine on and off for nearly half her life. She had maintained some periods of sobriety but, on more than one occasion, ultimately relapsed. Mother testified she had been attending meetings at the time of her most recent relapse. Participation in the type of services that have previously failed does not constitute a change in circumstances. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 (Marcelo B.).) Though mother's ability to maintain employment for the first time in her life is commendable, considering the totality of the circumstances, it was not unreasonable for the juvenile court to conclude mother's alleged sobriety did not constitute a change of circumstances. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)
In any event, there was also evidence before the juvenile court from which it could reasonably infer mother had used methamphetamine as late as February 2019. Father alleged she had used with him, and this was during a period both that mother uncharacteristically missed a visit with the children and failed to drug test.
Further, mother had not demonstrated a change of circumstances with regard to domestic violence issues. Though evidence supported she was no longer in a relationship with father, it did show that she had established another relationship with a man with whom she was by her own admission going down a similar "path." Mother testified she had told Luis he could not stay at her house anymore, but she continued to be in a relationship with him. The court was permitted to conclude from this that mother still struggled with boundaries in negative relationships.
The court did not abuse its discretion in finding mother had not carried her burden of proving there existed a change of circumstances to justify the court's modification of its order bypassing her for services.
Nor did the court abuse its discretion by finding mother had not carried her burden of proving the requested order was in the best interest of the children. At the time of a section 366.26 hearing, the focus has shifted from family reunification to stability and permanence for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The court did not abuse its discretion in finding at the section 366.26 hearing stage in the case that reunification services were not in the best interest of the children because of the great delay in permanency it would have for the children, particularly in light of the court's reasonable conclusion mother would not be able to reunify even if provided with services.
Mother's argument on appeal highlights the evidence favorable to her and either downplays or ignores the evidence unfavorable to her. The juvenile court expressly considered all of the favorable evidence to mother, but in considering the totality of the evidence, found reunification services were not in the best interest of the children. As we have explained, the juvenile court's conclusions were reasonable, and it did not abuse its discretion by denying mother's section 388 petition.
II. The Juvenile Court's Order Terminating Parental Rights
Mother argues the court erred by failing to apply the beneficial parent-child relationship exception to termination of parental rights. We disagree.
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption. (§ 366.26, subd. (c)(1).) There are statutory exceptions which " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' " (In re C.B. (2010) 190 Cal.App.4th 102, 122, fn. omitted.) "[B]ecause 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 K.P. (2012) 203 Cal.App.4th 614, 621, italics added (K.P.).)
One of the statutory exceptions to the general preference of termination of parental rights is the "beneficial parent-child relationship exception." Section 366.26, subdivision (c)(1) provides the court shall terminate parental rights unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child [where] [¶] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
It is the parent's burden to show that termination of parental rights would be detrimental to the child because of the exception to termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
The parties disagree regarding which standard of review to apply. Mother requests we apply the substantial evidence standard, while the department contends the abuse of discretion standard should apply. More recent cases have applied a "hybrid" approach, applying a substantial evidence standard to the factual determination (whether a beneficial parental relationship exits) and an abuse of discretion standard to the discretionary determination (whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child). (K.P., supra, 203 Cal.App.4th at p. 622.) As the more recent trend in case law supports the application of the hybrid approach, we will apply the hybrid approach, noting that under any of these standards of review, the practical differences between them are slight because they all give broad deference to the juvenile court's judgment. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We should interfere only if under all the evidence viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.)
The proper standard of review to apply is currently before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.
The parties agree on appeal that mother maintained regular and consistent visits with the children throughout the dependency proceedings. Thus, the issue before us is whether the parents met their burden with regard to the second prong that the children would benefit from continuing the parent-child relationship. We do not find the juvenile court was unreasonable in determining this was not one of the extraordinary cases where this exception should have been applied.
Mother argues on appeal the juvenile court did not make a finding that it would not be detrimental to the children to terminate parental rights and thus we should find in the absence of such finding that termination was detrimental. To the extent mother is arguing this was a legal error, we disagree. The juvenile court is not required to make a finding that the termination of parental rights would not be detrimental to the children. The preferential order at the time of the section 366.26 hearing is termination of parental rights in absence of evidence compelling a different order. It is the parent who bears the burden to prove a different order is necessary. --------
To support her argument that she carried her burden to prove the second prong of the beneficial parent-child relationship exception, mother highlights the positive aspects of her relationship with the children prior to them being removed from her custody, as well as the good visits she had with them during dependency. While relevant, this evidence is not determinative. Evidence that a parent has maintained " ' "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' " (Marcelo B., supra, 209 Cal.App.4th at p. 643.) The existence of an "emotional bond" is not sufficient by itself to justify the application of the exception. (K.P., supra, 203 Cal.App.4th at p. 621.) Rather, the preference for adoption is overcome if severing the relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Marcelo B., at p. 643.)
In an attempt to show the children would be greatly harmed by the termination of parental rights, mother summarizes general authority of the importance of parent-child relationships, without making many specific citations to the record in this case. We note, "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "[B]enefit from continuing the relationship," as described by subdivision (c)(1)(B)(i) of section 366.26, however, has been interpreted to mean "the relationship 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., at p. 575.) "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) Rather, "[t]he balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
Here, though the juvenile court found that mother and the children love each other and have a bond, the juvenile court's finding that the relationship was not beneficial within the meaning of the statute was supported by substantial evidence. The record demonstrates the children's, particularly M.M.'s, relationship with mother was primarily characterized by their worry for her, rather than by emotional comfort they received from her. There was evidence on the record that supported the reasonable inference that the children did not rely on mother for emotional support to such an extent it outweighed their interest in stability and permanence through adoption. The incident where the children decided not to speak to mother on the telephone was an example of this. Rather than receive comfort from mother, the children were in a position that they would rather not talk to her than be faced with her show of emotion. Further, I.M. consistently expressed she preferred to live with her care providers. Though M.M. had expressed he wished to live with mother, by the time of the section 366.26 hearing, he expressly did not object to being adopted despite the fact that doing so would have triggered a separate exception to termination of parental rights. (See § 366.26, subd. (c)(1)(B)(ii) [exception where child 12 or older objects to adoption].) The record in this case contrasts with the type of relationship which courts generally hold merit the application of the beneficial parent-child relationship exception.
In In re Scott B. (2010) 188 Cal.App.4th 452, for example, the appellate court reversed an order terminating parental rights where the child had special needs and relied on the mother emotionally. The child's court-appointed special advocate reported the child would suffer detriment if the relationship were to be severed; the child threatened to run away if he were adopted; and the child's behavior regressed when he learned he may be adopted. (Id. at pp. 461-462, 465.)
Similarly, in In re Amber M. (2002) 103 Cal.App.4th 681, the appellate court reversed termination of parental rights, finding the exception applied, where a psychologist, therapists, and the court-appointed special advocate all concluded a beneficial parental relationship clearly outweighed the benefit of adoption, the two older children had a strong primary bond with their mother, and the younger child was strongly attached to her. (Id. at pp. 690-691.)
Unlike these cases, in the present case, there was no evidence regarding what detriment the children would suffer that outweighed adoption. To the contrary, the record showed that M.M.'s behavior improved the more time he spent with his care providers and the less time he spent with mother. When mother was asked what concerns she had if the children were to be adopted, she had the opportunity to explain the detriment that could be caused by the termination of parental rights. However, she did not give any specific examples. Finally, the children's care providers were not interested in legal guardianship, which, combined with the factual finding there was not a substantial likelihood mother could reunify with the children, would leave an enormous question open regarding stability and permanence for the children. The juvenile court's conclusion that any detriment the children would suffer would not outweigh the benefit they would receive from adoption was not an abuse of discretion.
The juvenile court's factual findings were supported by substantial evidence, and the court did not abuse its discretion by terminating parental rights. We find no error.
DISPOSITION
The juvenile court's orders denying mother's section 388 petition and terminating parental rights are affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SNAUFFER, J.