Opinion
C090972
05-27-2020
In re A. C. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A. G., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ17424, JVSQ17425)
Appellant A. G., mother of the minors A. and J., appeals from the juvenile court's orders denying her petition for modification, entering a permanent plan of guardianship for A. and terminating parental rights as to J. (Welf. & Inst. Code, §§ 388, 366.26, 395.) She contends the juvenile court erred by denying her petition for modification seeking reinstatement of reunification services or return of the minors and by failing to find the beneficial parental relationship exception to adoption applied as to J. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
A
Section 300 Petition
On August 15, 2017, Yolo County Health and Human Services Agency (Agency) filed a section 300 petition alleging the minors A. (then age 12) and J. (then age one) were at risk due to mother's mental health issues. Mother has a lengthy history of mental health issues and had been placed on a section 5150 hold on August 13, 2017, due to her untreated mental health issues. The petition also alleged the minors' father (who did not live with mother and the minors) had a substance abuse problem and had failed to protect the minors from mother's behaviors. At the September 19, 2017, jurisdiction hearing, the juvenile court sustained the allegations in the petition and continued the matter for disposition. The minors remained in mother's custody.
B
Disposition On Section 300 Petition
The disposition hearing took place on November 14, 2017. The juvenile court adjudged the minors dependent children of the court, continued the minors in mother's home, and ordered family maintenance services. Mother was ordered to participate in mental health treatment and parenting classes. The court further ordered mother to sign releases for mental health counseling.
C
Section 387 Petition
Two weeks after the disposition hearing, mother was arrested on an outstanding warrant that had been issued for criminal acts which had allegedly occurred on September 15, 2017. Mother was incarcerated with pending charges for robbery and carjacking. Mother also had two additional new charges pending -- one for trespassing in August 2017 and another for petty theft in October 2017. She also had a lengthy prior criminal history, including a prior felony conviction and four separate misdemeanor convictions.
The minors were taken into protective custody on November 30, 2017, ordered detained on December 6, 2017, and a section 387 petition was filed alleging the minors were at risk due to mother's inability to provide for the minors' care as a result of her criminal activities and ensuing arrest. Mother reported she was addressing her mental health issues by seeing a doctor and therapist, but her interactions with child welfare staff were hostile and accusatory. She was observed to be agitated and cursed at staff in the lobby, and she was hostile and cursed at visitation staff. She refused to sign releases for her mental health providers and had failed to participate in the parenting classes to which she was referred.
D
Disposition On Section 387 Petition
At the January 18, 2018 hearing, mother made repeated interjections and disrupted the proceedings. The juvenile court sustained the allegations in the section 387 petition, removed the minors from parental custody, and ordered reunification services be provided. Mother's new case plan required she undergo a psychotropic medication evaluation, psychotropic medication monitoring, parenting education, individual weekly therapy, family counseling upon recommendation of the minors' therapist, and supervised visits three hours per week. Mother was ordered to have mental health and substance abuse assessments and was again ordered to sign releases for her doctor and therapist.
E
Six-Month Review
The six-month review hearing took place on July 26, 2018. The Agency recommended reunification services be terminated. Mother had reported she was living in a shelter but refused to sign a release of information for the Agency to confirm her living arrangements. Mother had previously reported being homeless and sleeping in her car. The Agency subsequently assisted with getting mother's Section 8 housing reinstated. The trial for the robbery and carjacking charges was set for July 2018. Mother had been inconsistent in attending therapy. She attended only every other month and had multiple no-shows and cancellations. Due to her failure to attend scheduled appointments, she was not seen for her monthly medication monitoring until May 31, 2018.
Mother missed her initial intake for her parenting classes. She finally attended an intake on January 4, 2018, and attended one parenting group, but participated only minimally. She did not return to class and was discharged for nonattendance. Mother was re-referred and attended an intake and a session on May 21, 2018, but did not attend further sessions. That was mother's sixth attempt at beginning parenting classes.
Mother had continued to display inappropriate behavior and be verbally aggressive toward child welfare staff. The minors had been placed with a nonrelative extended family member but had to be moved to another foster home due to mother's harassing behavior toward the caregiver.
At the conclusion of the hearing, the juvenile court remarked that the case had started with mother's section 5150 hold, her mental health issues, and her erratic behavior, which had raised serious safety concerns for the minors, "[a]nd that erratic behavior has carried on intermittently ever since." It found that mother had failed the Agency's case plan and that it was apparent she was not interested in the Agency's services. But the court noted mother had "done some other things on the outside to show some level of stability." Her visits had been good, she had a strong bond with the minors, and A. had expressed a preference to return to mother's custody. The juvenile court terminated reunification services and set a section 366.26 hearing.
F
First Combined Section 388/366.26 Hearing
The Agency requested a 180-day continuance to allow for completion of an adoption assessment. At the November 15, 2018 hearing, mother filed a section 388 petition for modification seeking reinstatement of reunification services or, alternatively, return of the minors to her custody. The court set and held a combined hearing for the petition and the section 366.26 selection and implementation.
The social worker's section 366.26 report recommended a plan of legal guardianship with their current caregivers, where they had been placed since April 2018, for both minors. A. had stated she did not want adoption or guardianship, and wanted to be returned to mother's custody. J. appeared happy and was doing well in her placement. Her caregivers were willing to provide permanency.
In support of her section 388 petition for modification, mother stated she had continued therapy, complied with medication recommendations, graduated from a parenting program, obtained housing, obtained employment, and had maintained consistent visitation. The provider's notes indicated, however, that mother's attendance at therapy appointments was sporadic and she had attended only 16 sessions over the past year. She had attended four medication management appointments. The Agency had also supplied information that, although mother had attended some parenting classes, the notes from the August 16, 2018, class indicated mother's participation had been "unacceptable," she had been uninterested in feedback, and had shown a minimal grasp of concepts. Likewise, the notes from the September 9, 2018, class indicated mother needed to improve her participation, grasp of concepts, and cooperation. Mother had been arrested for three new incidents of shoplifting, alleged to have occurred on December 29, 2017, March 4, 2018, and May 8, 2018. Also, on August 24, 2018, father had made an unauthorized appearance with mother at a visit and, when he was told to leave, mother had yelled and become so hostile and aggressive in the minors' presence that she was asked to leave. The foster family agency was no longer willing to supervise visits due to safety concerns, so visitation had to be moved.
The combined hearing took place on January 17 and February 7, 2019. The juvenile court indicated it was a "close call" but found mother had demonstrated a change of circumstances in that she was employed and had housing. The court noted that she still had felony criminal charges pending but she had no new "serious" criminal problems. Finding it to be in the minors' best interests, the court reinstated mother's reunification services and added anger management as a component of her individual counseling. The 18-month review hearing was set for May 30, 2019.
G
18-Month Review Hearing
The social worker's 18-month review hearing report recommended reunification services again be terminated and a section 366.26 hearing set. The Agency had difficulty maintaining contact with mother and when the social worker finally spoke with her on May 9, 2019, and asked about the services in which mother had been engaging, mother reported "I don't have any services. I don't need any." Mother said she was seeing her own doctor and therapist at North American Mental Health Services but refused to give the social worker any more information. A few days later, mother showed the social worker documentation from her doctor indicating she was diagnosed with post-traumatic stress disorder, borderline personality disorder, and mood disorder and she showed the social worker her medications.
Mother reported that she was attending therapy with Fernadina Ocegueda at North American Mental Health Services and was attending 12-step meetings. The social worker contacted North American Mental Health Services but was only able to verify attendance because mother's release did not permit disclosure of anything else. Mother had also missed several appointments with the therapist: one in January 2019, two in February, two in March, three in April, and had already missed one in May. Mother did not provide any documentation of her attendance at the 12-step meetings. Mother had also reported completing her parenting classes. However, the social worker learned that mother attempted to participate in parenting classes at CommuniCare two times but had never completed a parenting program because of her sporadic attendance.
Mother had a two-bedroom apartment and had been working at Children's Choice Dental since 2018. Her carjacking case was scheduled for trial in July 2019, and in addition to the already pending shoplifting cases, mother had been arrested for shoplifting in Woodland in August 2018 and for petty theft in Roseville in November 2018. She was on informal probation for the Roseville theft. There were also concerns that, despite the history of domestic violence, mother was continuing her relationship with father, who had not participated in any services.
The 18-month review was set for a contested hearing on June 18, 2019, and the court again ordered the mother to sign releases for the Agency. Nonetheless, on May 30, 2019, mother refused to sign a release and, instead, started to curse at the social worker in front of A. and the caregiver. On June 5, 2019, mother again refused to sign a release and cursed at the social worker. The social worker attempted to get mother to sign the releases on at least three or four occasions, with no success. Mother also responded with yelling and cursing when the social worker asked her to drug test. She later reported that she had tested but refused to sign a release and cursed at staff while children were present nearby.
The social worker discovered that mother had attended therapy only eight or nine times in 2019. Mother's therapist sent an e-mail indicating that she was treating mother for post-traumatic stress disorder and was working on her self-esteem and self-confidence and developing healthier cognitive patterns and beliefs about herself in the world. The social worker was not able to discuss mother's concerning behaviors with the therapist nor confirm the therapist had the necessary information to treat mother because mother had signed a limited release that allowed access only to attendance information. The Agency stated mother's ongoing refusal to provide releases prevented it from assessing the adequacy of the services or determining what additional services might be needed.
At the conclusion of the June 18, 2019 contested hearing, the juvenile court terminated reunification services and set the section 366.26 hearing for October 3, 2019. In making its order, the court stated that its decision was based on mother's pattern of erratic conduct, her refusal to cooperate with the Agency and with court orders, and her failure to progress in services to the point where her visits would no longer need to be supervised.
H
Second Combined Section 388/366.26 Hearing
The social worker's section 366.26 report recommended a plan of legal guardianship for A. and a plan of adoption for J. A. still wanted to return to mother's care but was doing well in her current placement. She reported feeling safe and comfortable in her caregivers' home and had formed a close relationship with her caregivers and foster siblings. J. had been placed with the current caregivers when she was only 20 months old and it was believed she would be unlikely to remember living anywhere else. She had developed a nurturing relationship with the caregivers, has substantial emotional ties to them, and removal would be detrimental to her well-being. The caregivers were willing to adopt J. and were committed to keeping the two children together.
Mother had been visiting six hours a week until August 25, 2019, when she informed the Agency she got a second job and could not attend the second three-hour weekly visit anymore. Mother also canceled the July 31, 2019, visit because A. could not attend and mother said J. " 'wouldn't remember.' " Mother canceled the August 4, 2019, visit but did not provide a reason. On August 21, 2019, mother told A. that she had been written up at work for a conflict between herself and a coworker. A. suggested mother should walk away from conflict but mother responded she could not do so because she was " 'too angry.' " Mother remarked to the visitation monitor she " 'might need those classes after all.' "
The Agency continued to have problems communicating with mother. On September 3, 2019, two weeks after leaving a voice message for mother, the social worker received a series of text messages from mother referring to "white bitches" at the Agency and in the courtroom, and stating the Agency had lied and put her through hell. It was unclear what prompted these text messages.
The section 366.26 hearing took place on October 3, 2019, and was set for a contested section 366.26 hearing on October 31, 2019. On October 10, 2019, mother filed another section 388 petition for modification requesting further reunification services or the return of the minors. In her petition, mother alleged that since the court had terminated her reunification services she had continued with therapy one to two times per month, continued to refill her prescribed medication, and had maintained housing and employment. She further alleged that her felony charges in Sacramento County were dropped and that was the only reason the minors had been removed from her custody. She also alleged that she was attending weekly domestic violence counseling, attending Celebrate Recovery, and had maintained weekly contact with the minors. She requested a bonding study and stated that visits are "wonderful," she has a special bond with the minors, and J. runs up to her at the beginning of visits saying " 'mommy,' " She signed and provided a release for the Agency to obtain progress information from North American Mental Health Services. The court set a hearing on mother's section 388 petition to coincide with the October 31, 2019, section 366.26 hearing.
The social worker's addendum report stated that mother was consistently argumentative, disrespectful, and hostile, and had refused to provide any information about her employment or therapy. She repeatedly raised her voice when speaking with the social worker and accused the social worker of harassing her. The social worker called North American Mental Health Services and was informed that mother attended therapy appointments in June and July of 2019, but had not attended since then. Mother had not previously reported she was allegedly attending weekly domestic violence counseling, nor had she signed a release, so the social worker had been unable to confirm mother's attendance or progress.
Mother refused to provide copies of her pay stubs and, when asked for information about her work schedule, told the social worker to "do her job" and find out for herself. The social worker spoke with mother's employer who reported mother works one to three days every two-week pay period, and in September she had an unexcused absence from work. During the most recent pay period, she was scheduled to work two days and only worked one. She was currently scheduled to work only Saturdays.
The visitation notes revealed a pattern of frequently ending visits early, having inappropriate conversations with A., and frequently leaving J. to watch videos on an iPad. Since June 2019, mother had ended most visits early. After ending five visits early in June and July 2019, the visits were changed to end half an hour early. Nonetheless, mother ended visits early on September 22 and 29, and October 9, 2019. There were also multiple occasions where mother had inappropriate or concerning conversations with A., including discussions about her criminal cases and how she expected to go to jail and may not attend future visits. There were also several visits where mother either failed to respond when A. tried to talk to her or turned the conversation around to herself, rather than engage with A. With respect to engaging with J. during visits, mother had let J. watch videos for a large portion of nearly every visit that took place between June and October, 2019.
The combined section 388/366.26 hearing took place on October 31, 2019. Visitation supervisor, Brenda Gage, testified she had been supervising mother's visits since September 2018. In addition to mother frequently ending visits early, mother had canceled about five or six visits, including a few times where A. was not available so mother chose not to visit with J. Mother had only visited alone with J. one time when they celebrated her birthday. Visits were, however, a positive experience for J. Gage testified that while A. and her mother love each other, mother treats A. more as a confidant or a friend, not as her parent. Mother was not consistent with setting limits for the minors. She was not willing to hear comments or accept input and told Gage she has "had it up to her ears with people telling her stuff." Gage has also observed mother to be very impulsive and exhibit rapid speech, rapid thoughts, easy distraction, and elevated moods.
Mother's therapist, Ocegueda, who has been treating her since November 2017, testified she has been treating mother for post-traumatic stress disorder, not her mood affect disorder, and is working on emotional regulation. She was not treating mother for her mood affect disorder as she believed that was being treated by another provider's prescription for Lamictal. Mother initially attended therapy on a weekly basis but now attends every two or three weeks, sometimes skipping entire months. Ocegueda had also observed mother's agitation and, accordingly, sent her to have her medications reevaluated. Ocegueda acknowledged that mother still has work to do on her mental health stability, especially in controlling her emotions.
The social worker testified that J. appears to be bonded with the foster parents, she responds very positively to them, and seeks comfort and attention from them. J. refers to the foster mother as "mom." J. was now three years old and had been out of mother's care for about two years. The social worker did not believe mother would be cooperative with the Agency or in engaging in services if the court were to give her more time, as mother had expressly told her she does not plan to change how she acts toward the social worker or the Agency.
Mother testified she is medication compliant, taking Wellbutrin and Lamictal, and "doing everything [she] can possibly do for [her] mental health." She denied knowing that anger management was also part of her case plan and had not been working on her anger management. When asked why she was hostile to the Agency, she responded that she did not "really know what you mean by hostile," and admitted only to being "very sarcastic." She believed she could communicate with the Agency politely but felt "they need to show me the same respect." She believed she had acted inappropriately a few times during this case but did not regret anything she had said or done. She also testified that, through therapy, she was learning different ways to deal with things, such as not cursing at people when she is angry. Mother also disputed the accuracy of the hospital's note regarding the section 5150 hold placed on her back at the initiation of this case. The note stated mother had become incredibly physically and verbally aggressive and hostile, such that law enforcement officers were called to make sure everyone was safe. Mother said she was not hostile or aggressive and admitted only to arguing for medication she believed they were supposed to supply. She testified she was admitted, not because she was a danger to herself or others, but because it was necessary to prescribe her the Wellbutrin medication she was "demanding." She expressly disavowed any responsibility for the minors being removed from her care, losing her housing, or losing her car.
The court denied the petition for modification finding that there was no change of circumstances and the proposed modification was not in the minors' best interests, as it would not serve their long-term safety or stability. It noted that mother was "really still in the same place with needed supervised visitation and erratic behavior." It ordered a plan of legal guardianship for A., who objected to adoption. It found J. adoptable and, finding no exception to adoption applied, ordered a plan of adoption and terminated parental rights as to J.
DISCUSSION
I
Petitions For Modification
Mother contends the juvenile court abused its discretion in denying her section 388 petitions. We conclude there was no abuse of discretion.
Section 388, subdivision (a)(1), provides that a parent of a dependent child may petition the juvenile court "upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)
"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.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "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 petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests.' " (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmone O. (1994) 8 Cal.4th 398, 415.) Here, the juvenile court found that mother had not demonstrated a change in circumstances, nor was the proposed modification in the minors' best interests. We find no error.
Mother's petition alleged, as changed circumstances, that since the court ceased her reunification services she had "continued with" her therapy, was "still" taking Wellbutrin medication, and had "maintained" her housing and employment, and "maintained" consistent and regular visitation. None of these circumstances were new or changed. Nor were all of these allegations supported by the evidence. The Agency provided evidence that mother's attendance in therapy continued to be sporadic and she missed several of the few work days for which she was scheduled. She also had a pattern of frequently ending visits early. Mother also alleged, as changed circumstances, that she was attending domestic violence counseling and Celebrate Recovery sessions. But her attendance or progress in these programs could not be confirmed because she had not signed the releases. Accordingly, the juvenile court's finding that mother had not established a change of circumstances based on these facts was not error.
The only change in circumstances mother established was the fact that the felony criminal charges and one misdemeanor charge, which had been pending at the time her reunification services were terminated, had since been dismissed. Another misdemeanor charge had been diverted to mental health court. While these resolutions had occurred since her reunification services were terminated, the juvenile court could reasonably conclude they did not constitute a sufficient change in circumstances to support a section 388 petition.
"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
When the juvenile court terminated mother's reunification services, it stated its decision was based on mother's pattern of erratic conduct, her refusal to cooperate with the Agency and with court orders, and her failure to progress in services to the point where her visits would no longer need to be supervised. None of this had changed.
Mother continued her erratic conduct, such as her texts referring to "white bitches" which had no apparent catalyst. She continued to refuse to cooperate with the Agency and court orders by refusing to timely sign releases, refusing to provide requested employment and counseling information, and failing to maintain regular contact with the Agency. Mother had participated only sporadically in therapy and she had not demonstrated any substantial progress or behavioral change since the termination of her reunification services. Mother's mental health and erratic behavior was the basis for the minors' dependency and nothing had changed. Nor was it likely to change should reunification services resume, as mother had expressly told the social worker that she does not plan to change how she acts toward the social worker or the Agency.
In sum, while the resolution of the pending criminal charges was a positive occurrence, mother nonetheless failed to establish the significant change in circumstances necessary to support the requested modification. Because we conclude the juvenile court did not err in finding mother failed to establish a change in circumstances, we need not review her contention with respect to the minors' best interests.
II
Beneficial Parental Relationship Exception
Mother also contends the juvenile court erred by failing to find the beneficial parental relationship exception to adoption applied as to minor J. We conclude that mother failed to raise the beneficial parental relationship exception in the juvenile court and has forfeited this argument on appeal. On the merits, we conclude that mother has failed to meet her burden of showing the trial court erred by not applying this exception.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) Such circumstances include when "[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) [beneficial parental relationship exception].)
To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is such a bond, the parent must prove that the parental 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 S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1345.) "In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., at p. 575.) On the other hand, " '[w]hen the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.' " (In re Jasmine D., at p. 1350; In re Autumn H., at p. 575.)
"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., supra, 78 Cal.App.4th at p. 1350.) " 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' " (In re Celine R. (2003) 31 Cal.4th 45, 53, quoting In re Jasmine D., at p. 1348.) The beneficial parental relationship exception to adoption is an exception to the general rule that the court must choose adoption where possible, and it " 'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' " (In re Celine R., at p. 53.)
The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
The juvenile court, however, has no sua sponte duty to determine whether an exception to adoption applies. (See, e.g., In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Rather, it is the parent who has the burden of proving that an exception exists. (Ibid; In re C.F., supra, 193 Cal.App.4th at p. 553.) Here, mother's counsel entered what may be considered to be a general objection to termination by agreeing with the juvenile court's statement that "she would be challenging all of the issues." There was no mention of the applicability of the beneficial parental relationship exception. This general "challenge" cannot be said to constitute an effort to place the beneficial parental relationship exception at issue. Thus, mother has forfeited this argument by failing to assert it in the juvenile court. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
In any event, mother has not met her burden. She maintained regular visitation and contact with J., but she failed to establish that J. had such a significant, positive emotional attachment to her that the benefit of maintaining it outweighed the benefits the minor would obtain from adoption. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Considering, as the court must, factors such as 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 the parent and the child, and the child's particular needs (In re Zachary G. (1999) 77 Cal.App.4th 799, 811), the juvenile court did not err in determining the beneficial parental relationship exception to adoption does not here apply for J.
By the time of the second section 366.26 hearing, J., who had been only one year old when she was removed, had been out of mother's custody for almost two years. Although J. had been in six placements, she had been with her current foster family for a year and one-half -- since she was 20 months old. The foster parents had been meeting all of her needs, including food, shelter, clothing, medical and dental care, and emotional support. J. was doing well in her placement, was bonded with her foster mother, and the family was committed to providing permanence for both J. and A. The adoption assessment reported J. to have a "nurturing relationship" with her foster family and substantial emotional ties to the foster parents. She was assessed to be in need of a stable, permanent home and it was believed that removal from her foster parents would be seriously detrimental to her well-being.
There was evidence that mother had maintained a friendly relationship and a loving bond with J. and that visits were generally positive for the young minor. But it is not enough for a parent to show frequent and loving contact during pleasant visits. (In re C.F., supra, 193 Cal.App.4th at p. 555.) Neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation of some benefit from continued parental contact (In re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to establish the beneficial parental relationship exception to adoption.
Mother never progressed beyond supervised visitation. A review of the most recent visitation logs reveal that mother continued to terminate many visits early, and canceled several visits when J.'s older sibling could not attend. She regularly left J. to watch videos or play games on the iPad at almost every visit between June and October, 2019. Mother was inconsistent with setting limits for J. and the minor often ignored mother and refused to listen to her or to follow directions. Although the minor enjoyed playing at visits and gave mother hugs, there was no evidence J. looked to mother for comfort or security. In fact, to the contrary, when J. became upset at a visit during a diaper change, she cried out for the foster mother. She also had difficulty being separated from the foster mother for at least one visitation and had continued to cry after the foster mother left. J. showed no difficulty separating from mother at the end of visits, and there is no evidence J. asked about mother between visits or asked to visit more frequently.
Mother emphasizes that courts have also considered a parent's compliance with the case plan as part of the inquiry in determining whether the beneficial parental relationship exception to adoption applies. (See, e.g., In re S.B. (2008) 164 Cal.App.4th 289, 300-301.) While it may be an appropriate consideration in some cases, this is not such a case. As set forth above, mother did not, as she now claims, substantially comply with her case plan, continue to address the issues that led to the minor's dependency, and do " 'all she was asked to do and more.' " (See id. at p. 298.) Thus, this additional consideration is of no consequence here.
The juvenile court did not err.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Robie, Acting P. J We concur: /s/_________
Butz, J. /s/_________
Krause, J.