Opinion
A132810
03-14-2012
In re J.Z., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. OJ05002351)
Appellant C.W. (mother) challenges an order terminating her parental rights as to her six-year-old son, J.Z. She argues that the juvenile court applied the wrong legal standard in determining that adoption was the appropriate permanent plan and terminating her parental rights, after previously finding that termination of her parental rights was inappropriate. She also argues that the juvenile court impermissibly took into account post-adoption visitation between the minor and his biological parents when it made its ruling. We disagree and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The procedural and factual background of these proceedings was set forth in a previous appeal (In re J.Z. (Dec. 23, 2009, A124548) [nonpub. opn.]), and will be briefly reviewed here. In October 2005, respondent Alameda County Social Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b) [failure to protect], alleging that mother and the minor tested positive for drugs when the minor was born the previous week, and that mother struggled with substance abuse. The petition later was amended to include an allegation regarding the minor's presumed father, Frederick Z. (who is not a party to this appeal), under section 300, subdivision (g) [no provision for support]. The minor was adjudged a dependent child.
On September 29, 2011, this court took judicial notice of the briefs and record in the prior appeal.
All statutory references are to the Welfare and Institutions Code.
The minor was placed with mother for five months beginning in November 2005 under a plan of family maintenance, but was removed again after mother relapsed. The juvenile court ordered visitation and reunification services after a combined jurisdictional and disposition hearing on May 18, 2006; however, mother and father did not comply with their case plan. At a review hearing on November 1, 2006, the juvenile court terminated reunification services and scheduled a permanency planning hearing (§ 366.26).
The minor was placed in a new foster home in January 2007, after the foster mother who had been caring for the minor was diagnosed with a serious illness, and the minor has remained with that same family ever since. Mother and father continued to have weekly supervised visits with the minor after he was placed with the new foster family, and both parents reportedly interacted positively with the minor.
The juvenile court held a contested permanency planning hearing over three days, on May 9, June 6, and August 4, 2008, and both parents testified about their positive relationships with the minor. The juvenile court thereafter, on its own motion, ordered that a bonding study be conducted, and received into evidence the study and the testimony of the licensed psychologist who conducted the study. The psychologist testified that the minor's relationship with his parents was a beneficial one, and that he was attached to his parents.
On February 9, 2009, the juvenile court (Judge Stephen Pulido) found by clear and convincing evidence that it was likely that the minor would be adopted. The court also concluded, however, that mother and father had met their burden to show that the beneficial relationship exception to the termination of parental rights applied; that is, that termination of parental rights would be detrimental to the minor, because mother and father had maintained regular visitation and contact with the minor, and because the minor would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Legal guardianship was selected as the permanent plan, and the minor's foster parents were appointed as his legal guardians.
The minor appealed from the juvenile court's order, arguing that the juvenile court erred when it found that termination of parental rights would be detrimental to him. This court affirmed the juvenile court's order in a nonpublished opinion dated December 23, 2009, concluding that the order was supported by substantial evidence. (In re J.Z., supra, A124548.)
Following the minor's filing of the notice of the previous appeal, the Agency recommended that the minor continue to have one-hour, supervised visits with mother and father each week, but that visits not be increased. The social worker explained in a review report that the parents had not addressed their drug abuse or domestic violence issues, as they had agreed to do following a mediation, and that they had repeatedly violated an agreement not to give sugary treats to the minor, who is sensitive to sugar. On May 15, 2009, the juvenile court ordered that visits could be increased to two hours if mother and father could demonstrate through drug tests that they were drug free, and if they attended an anger management program.
Over the next year and a half, the Agency reported on the status of visits between the minor and his birth parents. In a review report dated July 28, 2009, the social worker reported that visits were "uneventful for the most part," that the minor "appear[ed] to enjoy interacting with his parents, consistent with his generally cheerful, happy disposition," and that the minor did not have difficulty ending visits and returning home. Tensions sometimes arose, however, regarding the parents' ability to follow guidelines surrounding the visits, such as when the parents disagreed with a request not to give the minor treats or presents during a visit because the minor had kicked a teacher earlier in the day. At the time the report was filed, neither parent had complied with the conditions set in order for weekly visitation to be increased to two hours per week. The minor was continued as a dependent child following a hearing on July 28, 2009.
In a review report prepared in December 2009 (shortly before this court decided the prior appeal), the social worker reported that mother had been "very cooperative with the Agency and the foster family agency" during the reporting period, and that she had been participating in an anger management class. Problems sometimes arose around scheduled visits, such as when the parents brought dairy products despite being told that the minor does not digest them well, and when father brought four people to a visit at the park, contrary to prearranged guidelines. The minor was again continued as a dependent child following a hearing on January 12, 2010 (about three weeks after this court filed its opinion in the previous appeal).
In a status review report dated June 29, 2010, the social worker reported that there had been a "violent domestic dispute" between mother and father (apparently around the time that mother had intended to move out of the apartment she shared with father), and that Berkeley police had arrested both of them in connection with the incident. No charges were filed; however, each parent reportedly took out a temporary restraining order on the other. Although both parents had visited the minor during the reporting period, the social worker wrote that there appeared to be tension between the parents during the visits, and the minor "generally appear[ed] willing to visit with his parents, but he is neither particularly excited to see them or reluctant to leave at the end of their visits." The minor was again continued as a dependent child following a hearing on June 29, 2010.
The Agency recommended in a report dated September 13, 2010, that the parents' visits be adjusted so that mother and father saw the minor for an hour separately on alternate weeks, in part because the parents' domestic disputes highlighted the need for the parents to visit the minor separately. The social worker also reported that the minor enjoyed his visits with his parents, but he did "not appear to have a strong emotional connection with them," and he sometimes resisted attending visits. The worker also concluded that the minor's "relationship with his birth parents is pleasant but not central to his life." The minor was continued as a dependent child at a hearing on September 13, 2010. Each parent was granted separate, weekly visits of 45 minutes with the minor.
In a review report dated February 22, 2011, the Agency recommended that the juvenile court set a hearing pursuant to section 366.26 (.26 hearing), to consider termination of parental rights. Visits between the minor and his parents were "generally uneventful." However, the social worker did report that father once got angry when the minor referred to his guardian as his mother, and father also violated guidelines arranged regarding attending the minor's fourth birthday party by bringing people who were strangers to the minor, and by asking the minor to leave the picnic table where the party was being held so that he could join father and his friends. The Agency and the minor's counsel were reportedly concerned that the arrangement of legal guardianship was "less permanent than is possible or ideal." The social worker reported: "It is clear that [the minor's] birth parents both love him dearly and have stabilized their own lives separately since he was removed from their care. However each of them continues to cherish the dream that they will be able to 'reunify' with [the minor] despite not having cared for him during any significant portion of his young life." The social worker was concerned that the minor was aware the there were "different opinions in play" regarding rules surrounding his behavior, and that "this dichotomy will grow, and if he is not adopted, he will have even more opportunity for confusion and splitting." The social worker also stated that it was in the minor's best interests to stay in his current placement, and reported that, according to the minor's therapist, the minor rarely mentioned his birth parents and "clearly regard[ed] his guardians as his parents."
A six-month review hearing was held on February 22, 2011, before a different judge (Judge Kimberly Briggs) from the one who had presided over the previous .26 hearing. Father's counsel objected to a .26 hearing being set, claiming that the Agency was trying to get a "second bite of the apple." Counsel also objected to the court accepting into evidence the February 22, 2011, review report, because "it hasn't focused on the family enough and it has already been decided. The .26 hearing took place in February of '09. It was already decided and appealed and here we are again."
County counsel objected that the review hearing was not scheduled to be a contested hearing, and argued that there was "no statutory authority for not setting the .26" hearing. Mother's counsel disagreed, noting that the previous judge assigned to the case had refused to terminate parental rights, and had instead ordered legal guardianship as the permanent plan. Counsel suggested that "[m]aybe that needs to be fleshed out by a contest where the father's counsel, mother's counsel and everybody could put their evidence on the record as to whether or not we should proceed with this issue at this time, which has been litigated extensively previously. That might give all of us some information." Mother's counsel further protested that "I don't know that there is any change of circumstance that the child is not still attached to these parents. We have no evidence of that." She also argued that "[t]he Agency has a significant burden to show that there has been a dramatic change of circumstances," and that "[t]hey have a tremendous burden to prove that this [termination of parental rights] is something that needs to happen right now."
Relying on Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334 (Sheri T.), county counsel argued that the Agency was entitled to have a second .26 hearing, whereas mother's counsel argued that the juvenile court "should have all of the information prior to the setting of the .26 [hearing]." The juvenile court stated, "My suggestion is that we set the .26 [hearing] and at that point everybody can bring whatever information they want to have brought in."
The juvenile court scheduled a .26 hearing for June 20, 2011. The court also found, over the parents' objection, that the existing plan of legal guardianship was no longer appropriate, and that the permanent plan of termination of parental rights and adoption was appropriate and was so ordered. The parents, who both were present for the hearing, were advised of their right to challenge the order setting a .26 hearing by filing a writ petition; however, neither parent did so.
The Agency recommended in a section 366.26 report dated June 20, 2011, that the juvenile court terminate parental rights so that the minor could be adopted. At the time the report was prepared, an expert on child attachments had begun to work on a bonding study. He reportedly was "very impressed with the quality of the guardians' parenting and with [the minor's] attachment to them." The birth parents did not participate in the appointments scheduled for them to participate in the study. The guardians reported that if they were able to adopt the minor, they would like to continue contact between the birth parents and the minor. It was the social worker's opinion that termination of parental rights would not harm the minor, because it was unlikely that ties with extended family members would be severed. It also was the social worker's opinion that there was "no evidence that [the minor] has a parent-child relationship with his birth parents."
Mother was not present at the .26 hearing, which was held on June 20, 2011. Father testified regarding his visitation with the minor, and the strong bond that he had with the minor. Mother's counsel argued that the previous judge assigned to the case had found that the beneficial relationship exception to the termination of parental rights existed, and that it would be detrimental to the minor for the juvenile court to terminate parental rights. Counsel also argued that there was no evidence that the minor was not still attached to his biological parents. County counsel argued that a lot had changed since the juvenile court appointed the minor's caregivers as his legal guardians, because the minor had bonded with his caregivers, and his biological parents were no longer able to visit together with the minor because of their domestic violence issues.
The juvenile court found that adoption by the minor's guardians was appropriate, and stated that "I don't think that the [beneficial relationship] exception that Judge Pulido found exists today." The court further stated, "I believe that [the legal guardians] will give the biological family access to [the minor]." The juvenile court terminated the parental rights of mother and father. Mother timely appealed.
II.
DISCUSSION
A. Change of Permanent Plan to Adoption.
Mother argues that the juvenile court erred in terminating her parental rights, because it did not follow the proper procedure for changing the minor's permanent plan, and did not "hold[] the Agency to its burden of proof and burden of production." Where, as here, the juvenile court does not terminate parental rights because it finds that the beneficial relationship exception apples, "the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the child [or] order that the child remain in long-term foster care . . . ." (§ 366.26, subd. (c)(4)(A); Sheri T., supra, 166 Cal.App.4th at p. 340.) Section 366, subdivision (a) provides, in relevant part: "If a juvenile court orders a permanent plan of . . . legal guardianship pursuant to Section . . . 366.26, the court shall retain jurisdiction over the child until . . . the legal guardianship is established . . . . Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction . . . ." (See also Cal. Rules of Court, rule 5.740(a)(3) [juvenile court may continue dependency jurisdiction after legal guardianship is granted if it is in best interest of child].) Here, the juvenile court retained jurisdiction of the minor following the establishment of a legal guardianship.
Respondent contends that mother's argument amounts to a challenge of the juvenile court's setting of the second .26 hearing, a challenge that is barred by her failure to file a petition for an extraordinary writ. (§ 366.26, subd. (/).) As set forth above, there was extensive discussion at the review hearing before the juvenile court set the .26 hearing about what the Agency had to show before proceeding to a .26 hearing. However, the juvenile court stated that a .26 hearing should be set "and at that point everybody can bring whatever information they want to have brought in," suggesting that it would consider as part of the .26 hearing what the Agency had to demonstrate in order to proceed. Moreover, mother focuses on appeal on whether the correct standard was used at the .26 hearing itself, as opposed to at the review hearing setting the .26 contest. We therefore proceed to the merits of mother's arguments, focusing particularly on whether the juvenile court applied the correct standard when terminating mother's parental rights at the .26 hearing.
All rule references are to the California Rules of Court.
Section 366.3, subdivision (c) provides in part: "If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption . . . may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child." Here, the Agency notified the juvenile court in a review report that changed circumstances indicated that adoption may be an appropriate plan for the minor, and the juvenile court exercised its discretion under section 366.3, subdivision (c) to set a new .26 hearing.
Mother apparently acknowledges that section 366.3, subdivision (c) governed the juvenile court's consideration of changing the minor's permanent plan from legal guardianship to adoption. She claims, however, that rule 5.740(c) (regarding hearings on petitions to terminate guardianship or modify guardianship orders) governs this case, meaning that the Agency was required to file a section 388 petition in order to terminate the guardianship, and that the juvenile court was to apply the standards for ruling on such petitions at the .26 hearing. Stated differently, she claims that the Agency had the burden to show under section 388 both changed circumstances or new evidence, and that a change in court order would be in the minor's best interest. (E.g., In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.)
The rule provides in part: "A petition to terminate a guardianship established by the juvenile court, to appoint a successor guardian, or to modify or supplement orders concerning the guardianship must be filed in juvenile court. The procedures described in rule 5.750 [implementing § 388] must be followed, and Request to Change Court Order (form JV-180) must be used." (Original italics.)
An almost identical argument was raised, and rejected, in David L. v. Superior Court (2008) 166 Cal.App.4th 387 (David L.): "No modification petition was necessary. In [In re Andrea R. (1999) 75 Cal.App.4th 1093, 1106], the court explained: 'To the extent that appellants contend that preliminary to a new section 366.26 hearing under section 366.3, subdivision (c), there must be a separate noticed hearing upon a section 388 petition on the issue of whether there are sufficient changed circumstances to warrant setting the section 366.26 hearing in the first instance, we conclude that no appropriate authority is cited to support such a procedural requirement and the language of section 366.3, subdivision (c), does not on its face require such a judicial finding or separate evidentiary hearing.' We agree with Andrea R. The language of section 366.3, subdivision (c), is clear and unambiguous on its face: no section 388 petition is necessary; rather, the juvenile court 'may' set a new .26 hearing at its discretion. [Citations.]" (Id. at pp. 392-393.)
Like mother, the father in David L. relied on rule 5.740(c), which governs termination or modification of guardianship. (166 Cal.App.4th at p. 393.) "The flaw in [mother's] argument is that no party filed a petition to terminate [the minor's] guardianship. Moreover, from the dependent child's perspective, a petition to terminate a guardianship [that was] functioning as well as [the guardians'] here bears no resemblance to a .26 hearing set under section 366.3, subdivision (c), to ascertain whether adoption has become an appropriate permanent plan. The former potentially upsets the child's stability, while the latter aims to safeguard and increase it through the permanency of adoption. [¶] Accordingly, the Legislature has specified strict procedures, including the necessity of a section 388 modification petition, to mitigate or prevent destabilization when a party seeks to terminate a guardianship. (§ 366.3, subd. (b); Cal. Rules of Court, rule 5.740(c).) In contrast, as Andrea R. observed, '[Inasmuch] as the juvenile court is subject to the mandatory preference for adoption over legal guardianship [citation], . . . section 366.3, subdivision (c), permits the court'—unencumbered by the necessity of a modification petition—'to more readily hold a new section 366.26 hearing to determine whether adoption or continued guardianship is the most appropriate plan.' (Andrea R., supra, 75 Cal.App.4th at p. 1107; accord, San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888-889 . . . [no modification petition necessary for court to set .26 hearing for child in long-term foster care].)" (Ibid.) Indeed, section 366.3, subdivision (b), which governs the "strict procedures" to terminate or modify a guardianship, specifically provides that is inapplicable where, as here, the termination of a guardianship is "due to the . . . adoption of the child." (Italics added; see also In re Heraclio A. (1996) 42 Cal.App.4th 569, 573-575 & fn. 3 [where agency sought change of permanent plan from guardianship to adoption, § 366.3, subd. (b), regarding termination of guardianship, inapplicable].) Rule 5.740(c), which implements section 366.3, subdivision (b), simply does not apply here.
Mother attempts to distinguish David L., supra, 166 Cal.App.4th 387 on the basis that the case considered only the standards for setting a .26 hearing, as opposed to the standards to be used at the .26 hearing itself. Because the relevant statute (§ 366.3, subd. (c)) does not require a section 388 petition to be filed before a .26 hearing is set in these circumstances, it follows that the juvenile court is not required to proceed under the standards set forth in section 388. The cases upon which mother relies in arguing that the juvenile court erred in failing to apply section 388 thus are inapposite, because they considered situations where, unlike here, the juvenile court considered termination or modification of a guardianship, but not a change in a permanent plan from a guardianship to one of adoption. (In re R.N. (2009) 178 Cal.App.4th 557, 561, 565-566 [appointment of new guardian after death of previous guardians]; In re Jacob P. (2007) 157 Cal.App.4th 819, 824 [mother filed section 388 petition seeking termination of guardianship and return of children to her care]; In re Carlos E. (2005) 129 Cal.App.4th 1408, 1413-1414, 1417 [termination of guardianship where guardian could no longer care for minor]; In re Michael D. (1996) 51 Cal.App.4th 1074, 1086-1087 [termination of guardianship so that minor could be returned to mother's care].)
Mother relies on In re Heraclio A., supra, 42 Cal.App.4th 569, where the social services agency filed a petition pursuant to section 388 seeking a section 366.26 hearing to change a minor's permanent plan from guardianship to adoption. The juvenile court proceeded before section 366.3 was amended in 1995 to add subdivision (c), regarding determining whether changing from a permanent plan of guardianship to adoption is appropriate. (Heraclio A. at p. 576, fn. 4; Historical and Statutory Notes, 73A Pt. 1 West's Ann. Welf. & Inst. Code (2008 ed.) foll. § 366.3, p. 374.) The Heraclio court cited former rule 1466(c) (now rule 5.740(c)) to support the conclusion that the juvenile court had properly taken jurisdiction in the matter. (Heraclio A. at p. 575.) The case does not compel the conclusion that a court must follow the procedures set forth in that rule whenever a permanent plan is changed from guardianship to adoption, as mother claims.
Mother contends that the juvenile court was precluded from terminating parental rights, because the juvenile court previously had determined that the beneficial relationship exception applied. Again, a similar argument was addressed, and rejected, in Sheri T., supra, 166 Cal.App.4th 334. There, the juvenile court found, pursuant to a stipulation at a permanent plan selection hearing, that termination of parental rights would be detrimental to the minor because of the beneficial relationship exception, and the minor was placed into long-term foster care with her maternal grandparents. (Id. at p. 338.) About six months later, the social services agency recommended that the juvenile court schedule another permanent plan selection hearing, and that the minor's grandparents adopt the minor. (Id. at p. 339.) The mother objected at a review hearing to the setting of a new permanent plan selection hearing, and requested a contested hearing on whether a .26 hearing should be held, noting that the parties had recently stipulated that the beneficial relationship exception applied. (Id. at p. 339.) The juvenile court denied the request for a hearing, and set a new permanent plan selection hearing. (Ibid.) The mother sought an extraordinary writ, but the appellate court denied relief, and held that mother's offer of proof was inadequate to compel a hearing. (Id. at pp. 336, 341-342.) The court noted that the legislative preference is " 'for adoption over legal guardianship over long-term foster care,' " and that "when circumstances have changed, the court should hold a permanent plan selection hearing unless the mother proves there
is a compelling reason not to do so." (Id. at pp. 340-341, italics added, quoting San Diego County Dept. of Social Services v. Superior Court, supra,13 Cal.4th at p. 888.) In other words, it is the parent's burden to show that setting a .26 hearing is inappropriate where the social services agency presents changed circumstances that show adoption may be a preferable permanent plan for the minor. Because the social services agency had identified "several significant changes" since the previous permanent plan selection hearing, the juvenile court "was certainly justified in taking another look" at whether adoption was a preferable plan to long-term foster care. (Sheri T. at p. 341.)
We note that, following the denial of an extraordinary writ in Sheri T., the juvenile court terminated parental rights, based on the fact that mother failed to meet her burden to show that the beneficial relationship exception still applied, a finding that was affirmed in a nonpublished opinion. (In re Taylor Y. (Aug. 31, 2009, G041378).) We take judicial notice of the opinion to show that the juvenile court in that case was not required to follow the standards and procedures set forth in section 388. (In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3 [judicial notice of nonpublished opinion pursuant to Evid. Code, § 451, subd. (a)].)
Mother argues that Sheri T. is distinguishable, because that case dealt with changing the permanent plan from foster care (as opposed to guardianship) to adoption. "[W]e perceive in section 366.3, subdivision (c), no basis to discriminate between children in long-term foster care and those under guardianship, since the legislative preference for the permanency and stability of adoption applies equally to all dependent children. (§ 366.26, subd. (b)(1); [citations].) Consequently, children under guardianship should not be subject to the necessity of a modification petition when the Supreme Court has determined children in long-term foster care are not." (David L., supra, 166 Cal.App.4th at pp. 393-394; accord, San Diego County Dept. of Social Services v. Superior Court, supra, 13 Cal.4th at p. 888 ["mandatory preference for adoption over legal guardianship over long-term foster care"].)
In sum, the Agency was not required to proceed by way of a section 388 petition. Section 366.3, subdivision (c) is clear that the juvenile court "may" hold a hearing pursuant to section 366.26 after the social services agency notifies the court of changed circumstances that indicate adoption "may" be an appropriate plan for the child. The Agency did that here when it notified the juvenile court that the minor now viewed his parents as no more than friendly visitors, that he rarely mentioned them and viewed his guardians as his parents, and that he would benefit from a more permanent living situation. There is nothing in the statutory scheme to indicate that the juvenile court is required to apply standards other than those applicable at .26 hearings, where it is the parent's burden to show that termination of parental rights is inappropriate if a minor is found likely to be adopted. (Post, pt. II.B.) Because the juvenile court did not use an incorrect standard in determining whether adoption was an appropriate permanent plan, we reject mother's argument that remand is required for the court to exercise its discretion under different legal standards. In light of the clear statutory support for the juvenile court's handling of the case, and the caselaw that likewise supports this conclusion, we dismiss out of hand mother's argument that "public policy" supports complying with section 388 where a permanent plan is modified from guardianship to adoption.
B. Sufficient Evidence Supports Juvenile Court's Order.
Mother argues at length that insufficient evidence supports the juvenile court's order terminating her parental rights, but proceeds under the mistaken premise that it was the Agency's burden to show both that there were changed circumstances and that a change in the permanent plan was in the minor's best interests (§ 388). She also limits her focus to whether there were any changed circumstances between September 13, 2010 (the date of a review hearing when the juvenile court continued the minor's guardianship) and June 20, 2011 (when the juvenile court terminated parental rights).
" 'In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).)' " (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) The parent then has the burden to show termination would be detrimental to the minor under one of the specified exceptions. (Ibid.) " 'In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court "shall terminate parental rights . . . ." ' [Citation.]" (Ibid., original italics.) Mother must overcome the strong statutory preference for adoption over other permanent plans in order to show that the beneficial relationship exception applies. (In re S.B. (2008) 164 Cal.App.4th 289, 297.) In making that determination, courts consider whether " 'severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.' " (Ibid.) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. 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 are some of the variables which logically affect a parent/child bond." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) "[T]he parents must do more than demonstrate 'frequent and loving contact' [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy 'a parental role' in the child's life. [Citation.]" (Andrea R., supra, at p. 1108.)
Focusing on the record as a whole, as well as on all the changes that took place during the more than two years that the minor was in a legal guardianship, we conclude that no such showing was made here. As for whether the beneficial relationship exception still applied, it is undisputed that the minor is likely to be adopted. Mother was not present at the .26 hearing, and presented no evidence that would support a finding that the exception still applied to her. The record reveals that the minor's visits with his parents had been reduced to 45 minutes per week, to accommodate the need to meet with the parents separately because of their domestic violence issues. The person who conducted the most recent bonding study stated that the minor viewed his parents as "friendly visitors." The social worker reported that the minor did not look to his parents for comfort and security; instead, the minor "looks to his birth parents for treats, gifts and play time. While [the minor] seems to enjoy his time with his parents, he does not view this time as vital to his wellbeing. He sometimes needs to be encouraged to go to visits with his birth parents instead of going to his home, where he wants to be after a day at preschool." The social worker also stressed the minor's need for permanence, as well as the stability of knowing that he had one set of caregivers, with one set of rules governing his behavior, as he matured and developed.
Considering the evidence in the light most favorable to the prevailing party, giving respondent the benefit of every reasonable inference, and resolving all conflicts in support of the order, we conclude that substantial evidence supports the juvenile court's determination that mother's relationship with the minor did not outweigh the well-being the minor would gain in a permanent home with adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577.)
C. Ongoing Visitation.
Finally, mother argues that when the juvenile court weighed whether to terminate parental rights, the court impermissibly relied on the fact that the minor's guardians would continue to allow the minor to see his parents and other family members after parental rights were severed. (In re S.B., supra, 164 Cal.App.4th at p. 300 [post-termination agreement regarding visitation unenforceable, and court must presume termination of parental rights will result in cessation of contact between parent and child].) At the .26 hearing, the juvenile court praised the minor's guardians for including his birth parents in family celebrations and showing an interest in having the minor know his parents. The court stated, "I believe that they will give the biological family access to [the minor]. I don't think that the exception that Judge Pulido found exists today." The court told father, "As far as I am concerned, [father], you came off as a very loving and kind father. That's why I am so grateful that [the minor] has the legal guardians that he does. I believe that they want you in his life and because of that I will follow the recommendations of the Agency."
Relying on In re C.B. (2010) 190 Cal.App.4th 102, mother argues that the juvenile court may not consider the possibility of post-adoption contact when determining whether the beneficial relationship exception exists. The court in C.B. held that if the beneficial relationship exception has been established, "the court cannot nevertheless terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent, even if substantial evidence supports that expectation." (Id. at p. 128; see also In re S.B., supra, 164 Cal.App.4th at pp. 300-301 [where only reasonable inference to be drawn from evidence was that beneficial relationship exception applied, error to terminate parental rights based in part on unenforceable promise to allow continued visitation].)
Unlike in C.B., supra, 190 Cal.App.4th 102, the juvenile court here specifically found that the beneficial relationship did not apply, so this is not a situation where the juvenile court found that the exception applied but nonetheless terminated parental rights because of an illusory promise of future visitation. County counsel correctly argued that the beneficial relationship exception did not apply when "a parent is that of a friendly visitor with whom the child has a good relationship but does not provide every day nurturing and comfort," and that the court must weigh the benefit to the minor of permanence and stability over the detriment of severing ties with his biological parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court stated that county counsel articulated the legal standards correctly, and found that the beneficial relationship exception did not apply, a conclusion that is supported by substantial evidence. The juvenile court considered the guardians' efforts to continue contact with the biological parents as part of the quality of their devotion to the minor's best interests, not as to whether mother had established the beneficial relationship exception. The record does not support mother's claims that the juvenile court's focus on post-adoption visitation played an improper role in its decision to terminate her parental rights.
III.
DISPOSITION
The juvenile court's order is affirmed.
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Retired Associate Justice of the Court of Appeal, First Appellate District, Division 4, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
We concur:
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Reardon, Acting P.J.
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Rivera, J.
Alameda County Social Services Agency (A132810)