Opinion
F080047
03-02-2020
In re J.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ELISA G., Defendant and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CEJ300149-1, 14CEJ300149-2, 14CEJ300149-3, 14CEJ300149-4, 14CEJ300149-5, 14CEJ300149-6)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. William Terrence, Judge. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
INTRODUCTION
Elisa G. (mother) and Ricardo C. (father) are the parents of six children. In May 2017, a Welfare and Institutions Code section 366.26 permanency planning hearing (permanency hearing) was held in which the juvenile court issued an order terminating mother's and father's parental rights. The parents appealed. In January 2018, this court filed an opinion which reversed the order terminating parental rights and remanded for the juvenile court to set a contested permanency hearing. (In re J.C. v. Superior Court (Jan. 11, 2018, F075711) [nonpub. opn.] (F075711).) Before the remittitur issued, the judicial officer whose decision was reversed on appeal set a contested permanency hearing in his department. On the day of the contested hearing, which was held after the remittitur issued, mother filed a motion to disqualify the judicial officer under Code of Civil Procedure section 170.6, which was denied. Following the hearing, the judicial officer terminated parental rights.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Subsequent references to dates are to dates in the year 2018, unless otherwise stated.
By order filed on December 27, 2019, this court granted mother's request for judicial notice and took judicial notice of the appellate records in case Nos. F075711 and F077586.
Mother appealed, seeking review of the order denying the disqualification motion. In an unpublished decision in case No. F077586, this court issued a peremptory writ of mandate directing the juvenile court to vacate its order denying the motion to disqualify and all subsequent orders, and to assign the matter to another judicial officer.
(E.G. v. Superior Court (Apr. 19, 2019, F077586) [nonpub. opn.] (F077586).)
At a subsequent section 366.26 hearing, mother's and father's parental rights were terminated and the children placed for adoption. Mother contends the juvenile court abused its discretion in failing to find that the beneficial parent-child relationship exception applied. We affirm.
Father has not appealed.
FACTUAL AND PROCEDURAL SUMMARY
These dependency proceedings began in February 2016, when the Fresno County Department of Social Services (department) received a referral that mother and G.C. tested positive for methamphetamine at G.C.'s birth. A prior dependency case involving the five older children was dismissed just four months before G.C.'s birth, in which mother was granted sole physical custody of the five children and joint legal custody with father.
Many of the facts and procedural summary are taken from our opinion in case No. F077586.
The department filed a petition alleging the children came within the provision of section 300, subdivision (b), based on mother's substance abuse problem from which father failed to protect the children, and G.C. came within the provision of section 300, subdivision (j), based on her siblings' prior neglect. The children were taken into protective custody and ordered detained. The children were separated into two homes, with the four oldest children placed together in one foster home, and the two youngest in the home of their paternal aunt and her partner.
At the May 2016 combined jurisdiction and disposition hearing, the juvenile court found the allegations of an amended petition true after the parents submitted on the reports, took dependency jurisdiction over the children, and removed them from parental custody. The juvenile court ordered reunification services for mother, while father was denied services. Mother was given twice weekly supervised visits, and father was given monthly supervised visits.
Mother did not participate in her reunification services and failed to maintain regular contact with the department. At the December 2016 review hearing, the juvenile court terminated mother's reunification services, decreased her visits to once a month, and set a combined review and permanency hearing for April 4, 2017. The juvenile court noted that mother had not visited the children since October 2016.
The Department's Report for the First Permanency Hearing
In a report prepared for the permanency hearing, the department recommended adoption as the children's permanent plan and termination of parental rights. The children remained in their same placements and their foster parents, who the department identified as prospective adoptive parents, wanted to adopt them.
Mother and father visited the children monthly following the six-month review hearing. They brought snacks for the children and hugged and kissed them. The parents played with the children, interacted with them "fairly well," and were very affectionate and nurturing. Mother responded to the children's needs and both parents comforted the children when they fell while playing. The parents constantly told the children they loved them.
The children were considered "generally adoptable" based on their ages (ranging from one to five), their good physical health, and their lack of any significant behavioral concerns that would prevent their adoption. The five older children had speech delays—the four oldest children were receiving speech therapy through their school district, while Isaiah C. was receiving services through Exceptional Parents Unlimited (EPU). The children's speech had improved since being placed with their prospective adoptive parents, and they were able to follow directions, dress themselves, and interact with others. The children enjoyed playing with each other and interacting with their prospective adoptive parents, although they sometimes had age-appropriate physical outbursts. While Isaiah C. was a Central Valley Regional Center (CVRC) client, his development was improving through EPU services. J.C. and R.C. had been referred to CVRC, but their eligibility had not been determined, while A.C. and Johnny C. were determined not to be eligible for CVRC services.
The children also were considered "specifically adoptable," as they were placed with prospective adoptive parents who wanted to adopt them. The prospective adoptive parents had formed healthy parent-child relationships with the children and stated on numerous occasions that they loved them and wanted to adopt them. The children appeared comfortable and happy with the prospective adoptive parents and saw them as their primary caregivers who met their daily needs. The prospective adoptive parents were committed to adoption, and to maintaining and nurturing sibling relationships through frequent visits. The two sets of prospective adoptive parents had good relationships with each other and were willing to maintain sibling relationships.
The department opined that due to the lack of visitation, there did not appear to be a parent-child relationship, and termination of parental rights would not be detrimental to the children. The children were well adjusted to their care providers and looked to them to meet their daily needs. The children were considered to be "very easygoing"; they loved to play, smile and laugh. The children needed a permanent parent-child relationship which adoption would provide.
The 2017 Permanency Hearing
Both parents were present at the April 4, 2017 permanency hearing. The juvenile court continued the hearing because the parties had not received the department's report until April 3, 2017, and set dates for updated discovery and filing a statement of contested issues. The juvenile court set May 4, 2017, for the continued permanency hearing and settlement conference, and ordered the parents to appear at the hearing.
Mother's attorney filed an issue statement, which stated mother was requesting a contested hearing on the issues of the children's adoptability, and the applicability of the beneficial parent-child and sibling relationship exceptions to adoption. Mother objected to the termination of parental rights and requested a permanent plan of either guardianship or long-term foster care.
On May 3, 2017, the department provided the parties with an addendum report which addressed paternal grandmother's application for placement of the four older children. The department recommended against placing the children with paternal grandmother, as it was concerned for the children's safety and it would be detrimental to the children if they were removed from their current care providers. The social worker opined it was in the children's best interest to be adopted and remain with their prospective adoptive parents.
The report also discussed the results of the Consortium for Children Permanency Planning Mediation. The children's biological family and prospective adoptive parents agreed the two sibling sets would have contact at least six times per year, and the visits would include the paternal grandmother. The children's respective prospective adoptive parents encouraged and invited the children to celebrate important occasions such as birthdays, school functions, and sport activities together; they developed the plan to maintain and support the sibling connection.
The parents were not present at the beginning of the May 4, 2017 settlement conference. The juvenile court noted the department had filed the addendum report the day before, and mother had set the contested hearing. County counsel and the children's attorney both confirmed they were submitting on the reports. Father's attorney thought the matter should be continued, as the addendum report was filed the prior afternoon and the attorney wanted to review the report with father.
Commissioner Gary Green (the commissioner) presided over this hearing.
Mother's attorney requested a continuance, so she could review the addendum report with mother and determine whether mother wanted to continue with the contested hearing. The attorney attempted to contact mother on May 3, 2017, to discuss the hearing, but mother's phone was no longer in service. Paternal aunt indicated she spoke with both parents on May 3, 2017, who said they would be at the hearing. Since neither parent had a working telephone, no one knew why they were not there.
After county counsel confirmed the addendum report did not materially change anything, and both the department and the children's attorney stated they were prepared to proceed, the juvenile court heard argument. The juvenile court acknowledged the addendum report was filed in the late afternoon on May 3, 2017, but noted the report was a "fairly brief" five pages. With respect to the parents' failure to appear, the court stated they were ordered to be there, and it had no assurance the parents would be able to attend the hearing if it were continued. Considering the children's interest in permanency and stability, it did not see any reason to further delay the matter.
The juvenile court then proceeded to make the findings and orders. The court stated it had reviewed the social worker's reports and mother's issue statement. The court considered mother's attorney's arguments on the issues raised in the statement and found they were insufficient to preclude going forward with the hearing. The court found notice of the hearing had been given as required by law, clear and convincing evidence existed that the children were likely to be adopted, and adoption was the appropriate permanent plan. At that point, the juvenile court noted that mother and father had arrived and told them it was going to proceed. County counsel asked the court if it was going to go back over the orders; the court responded that it was going to continue.
After counsel and clients conferred, the juvenile court stated that it had waited until 9:30 a.m. to call the case at the request of mother's attorney and it could not "devote anymore time to this case, so the Court will go forward." The juvenile court made the remaining findings and orders, including termination of parental rights, and placement of the children for adoption. After advising the parents of their appellate rights, mother's attorney asked for a brief opportunity to state why mother was late, adding that mother "wanted this [c]ourt to know and to also indicate that it was her desire to have a contest in this matter." The court said it would give her "30 seconds." Mother's attorney explained: "She said that the buses were running late and they unfortunately had not accommodated for that and so that is why they're late, and as I stated before, they don't have telephones, so they weren't able to communicate that."
The First Appeal
Mother and father both appealed from the order terminating parental rights. Mother argued the juvenile court prejudicially erred when it denied her attorney's request for a continuance of the permanency hearing, which deprived her of her due process right to a contested hearing on the issues of adoptability and the beneficial parent-child and sibling relationship exceptions to adoption. In an opinion filed on January 11, this court agreed mother's due process rights were violated, as the juvenile court effectively denied mother a contested hearing when it proceeded with its orders, despite mother's late appearance at the hearing, without affording her the opportunity to at least make an offer of proof on the exceptions to adoption. The disposition stated: "We reverse the juvenile court's adoptability finding and the orders terminating parental rights as to both parents. We remand for the juvenile court to set a contested section 366.26 hearing to consider the issues of adoptability of the children and the applicability of the exceptions to adoption." (In re J.C. v. Superior Court, supra, F075711, at p. 17.)
The Juvenile Court's Actions Before the Remittitur Issued
On January 19, eight days after our opinion in case No. F075711 was filed, the juvenile court, on its own motion, set a permanency hearing for February 15, in department 21, which is the commissioner's department. On February 9, the department submitted an addendum report which provided an update on the children's circumstances. The department continued to recommend adoption as the children's permanent plan. The children remained placed with their prospective adoptive parents, who wanted to adopt them. The prospective adoptive parents for the two youngest children had an approved home study, while the prospective adoptive parents for the four older children were working to complete their home study.
The commissioner was the judicial officer who issued the order setting the February 15 hearing.
The prospective adoptive parents had supervised at least three visits between the children and their parents since May 2017. The two sets of children visited each other at least quarterly and their prospective adoptive parents agreed it was in the children's best interest for the children to remain connected after the adoptions were finalized.
Six-year-old J.C., who was in first grade, was determined to be eligible for special education services under the qualifying criteria of speech or language impairment. He was receiving twice weekly speech therapy and services from a reading specialist. Five-year-old Johnny C. and the four-year-old twins were attending preschool, where they were receiving speech therapy. While Johnny C. exhibited some inappropriate behaviors at school, which were being addressed there, he consistently demonstrated responsive, engaged and happy interactions with his prospective adoptive parents. None of the four oldest children were CVRC clients. Three-year-old Isaiah C. had been diagnosed with autism and remained eligible for CVRC services. One-year-old G.C. was healthy and had no developmental problems.
At the February 15 hearing, the commissioner appointed attorneys for mother and father—attorney Katherine Fogarty of the Alternate Defense Office (ADO) was appointed to represent mother. The department and the children's attorney submitted on the department's addendum report and a previous status review report filed on October 19, 2017. Both mother and father requested a contested hearing. The commissioner set the following dates: (1) March 22, for updated discovery; (2) March 29, for statements of disputed issues and witnesses; (3) an April 5 settlement conference; and (4) two trial dates—the first on April 12, before the commissioner in department 21 if the matter was a short cause, and the second on May 1, in department 23 if it looked like the matter would be a long cause.
On March 13, this court issued the remittitur in case No. F075711.
The 2018 Permanency Hearing
Mother filed her statement of contested issues on April 2. Mother stated she wished to challenge whether the children were likely to be adopted and whether it was detrimental to terminate parental rights under the beneficial parent-child and sibling relationship exceptions to adoption. Mother listed three witnesses—the social worker, herself and the paternal grandmother. Father also filed a statement of contested issues, which raised the same issues and listed two witnesses—himself and the social worker.
At the April 5 settlement conference, attorney James Binion of the ADO appeared on mother's behalf. Both mother and father confirmed they intended to contest the department's recommendation. Due to a court commitment, the commissioner vacated the April 12 trial date and reset it to April 26, in his department, and vacated the May 1 trial date in department 23.
On April 26 at 11:42 a.m., Fogarty filed a Code of Civil Procedure section 170.6 peremptory challenge on mother's behalf, which stated the following: "Fogarty of the [ADO], declares that she is the attorney for [mother] in this matter. [The commissioner], the judicial officer to whom this trial is assigned is prejudiced against the party and/or her attorney, and/or the interest of the party so that [mother] cannot have a fair and impartial trial before this judicial officer. [¶] [The commissioner] acted as the trial judge in the prior proceeding that was reversed on appeal. [Mother] is the party who filed the appeal that resulted in the reversal of the final judgment. The remittitur was issued on March 13, 2018[,] and the matter was confirmed for a new trial on April 5, 2018. Therefore, this motion is being made within 60 days after the party or party's attorney had notice of final assignment." Fogarty signed the document, but not under penalty of perjury.
The commissioner considered mother's peremptory challenge at the outset of the permanency hearing held that afternoon. The commissioner made findings regarding the peremptory challenge; declined to recuse himself; and proceeded with the hearing.
The social worker testified that both prospective adoptive parents had completed their home studies, they were committed to adopting the children, and the children were thriving under their care. The youngest two children acknowledged their older brothers as siblings and the children appeared to enjoy each other's company. The children identified mother and father as their parents; during visits they were affectionate with their parents, and mother and father both attended to the children's needs. The children, however, did not have any problem separating from either mother or father, although the oldest child would feel a "little down" when visits with father ended.
Mother and father each testified the children were excited to visit with them and had difficulty separating from them. Mother, however, did not believe the children would be harmed if they were unable to see her again, although she believed the children would miss her. Father believed the children had a close bond with him and each other, and it would be detrimental to terminate parental rights, as he would miss out on doing things with the children. The hearing was continued to May 3.
At the continued hearing, following oral argument by the attorneys, the commissioner determined the children were generally and specifically adoptable. The commissioner found the parents had not met their burden of proving the beneficial relationship exception to adoption, as there was no compelling reason that termination of parental rights would be detrimental to the children. The commissioner also found the parents failed to establish the sibling relationship exception because, while the children shared a bond, with the strongest bonds being between the four oldest children as one group and the two youngest children as a second group, the department was committed to maintaining the bonds between the groups. Moreover, the children were relatively young, they lacked a history of significant common experiences, the children would have contact after adoption, and there was no evidence of detriment based on the proposed adoption plan.
Based on these findings, the commissioner found the children were likely to be adopted, terminated parental rights, and ordered the children placed for adoption. Mother filed a timely notice of appeal on June 4, and in our unpublished decision in case No. F077586, we reversed the findings and order and directed the juvenile court to vacate its order denying the motion to disqualify and all subsequent orders, and to assign the matter to another judicial officer.
Proceedings After Second Remand
The juvenile court re-appointed counsel for both parents. The parents were to be provided with once per month visits with J.C. and Johnny C., and with the other four children visits were to be twice per month.
At the July 11, 2019 settlement conference, the department asked that visits with all children be reduced to once per month. The department reported that mother was late to two visits, brought a taser gun with her to one visit, and discussed kidnapping with the minors. Father brought unapproved relatives to visits and became aggressive with the department. The juvenile court reduced visitation to once per month.
The department filed an addendum to the section 366.26 report on August 22, 2019. A contested hearing was set for September 10, 2019.
Mother filed an issue statement on August 26, 2019, asserting the children would be adversely affected if adopted into separate homes and maintaining termination of parental rights was not in the children's best interests. Mother maintained the beneficial parent-child relationship exception, set forth in section 366.26, subdivision (c)(1)(B)(i), applied to preclude termination of parental rights. She also argued that the section 366.26, subdivision (c)(1)(B)(v) sibling relationship applied.
The department filed another addendum report on September 26, 2019, recommending termination of the parental rights of both parents. The four older children were placed in a licensed foster home; the two younger children were placed with the paternal aunt. The department opined the children were generally adoptable, but difficult to place because of the large sibling group. All of the children were healthy with no significant behavioral concerns. The foster parents were willing to adopt the four older children and the paternal aunt, with whom the two younger children were placed, was willing to adopt them. The social worker opined that the prospective adoptive parents were willing and able to provide loving homes for the children and that the children had formed "positive attachments to their prospective adoptive parents."
This latest addendum report noted that parental rights previously had been terminated, but the ruling had been reversed and remanded. Since reversal of the order, the parents had limited contact with the children and the department believed the parents did not have a significant parent-child relationship with the children. The department opined that it was in the best interests of the children to be adopted.
Mother had visited with all the children on June 13 and 27, and August 8, 2019. She missed a July 17 visit. At the June 27 visit, mother showed the children a taser she carried and told them she had been kidnapped twice.
The addendum report stated the prospective adoptive parents were having the children engage in quarterly visits with their siblings. The four older children, however, did not have a close sibling relationship with the two younger children.
The 2019 Permanency Hearing
The section 366.26 hearing was held on September 10, 2019. The department submitted on the April 4, 2017 section 366.26 report, the May 4, 2017 addendum, the February 15, 2018 addendum, and the September 3, 2019 addendum.
Mother testified she enrolled in a substance abuse treatment program after her reunification services were terminated. She claimed she spoke with the children three or more times a week; they wanted to come home to her; and the children enjoyed their visits with her. Mother also claimed the children asked for her advice on matters.
The social worker testified mother's visits with the children went well and although the children fought during the visits, conflict was considered normal. The social worker also testified that the four older children were bonded, but they were not bonded with the two younger siblings. She testified she did not think termination of parental rights would interfere with the sibling group relationships and that the children would not suffer detriment if parental rights were terminated.
The social worker testified the children did not cry or ask for mother after visits or when she left the room. Although mother made phone calls to the children, the social worker did not believe the contact outweighed the benefits of adoption. The social worker did acknowledge that mother played a parental role in the children's lives.
The juvenile court continued the hearing to September 26, 2019, to allow mother to provide proof of services that she completed; none were produced or provided by mother. The juvenile court found by clear and convincing evidence that the children were likely to be adopted; and the beneficial parent-child relationship exception and sibling group exception did not apply. The juvenile court terminated parental rights and ordered adoption as the permanent plan.
Mother filed a timely notice of appeal on September 30, 2019.
DISCUSSION
Mother contends the juvenile court abused its discretion in finding the beneficial parent-child relationship did not apply to prevent termination of parental rights.
Standard of Review
Appellate courts are divided over the appropriate standard of review to apply to an order determining the applicability of the beneficial parent-child relationship exception. Some courts have applied the substantial evidence test (e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166) while others the abuse of discretion standard (e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). More recently, courts have adopted a hybrid approach, applying the " 'substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child.' " (In re E.T. (2018) 31 Cal.App.5th 68, 76.)
The issue is currently before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.
Where a parent fails to meet his or her burden of proof in establishing the beneficial parent-child relationship, the issue on appeal when reviewing the sufficiency of the evidence supporting the court's ruling is "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) --------
We need not decide which approach is correct because under either standard, the juvenile court did not err. Further, our review under both standards is well established. In reviewing for substantial evidence, "[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162.) In contrast, " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Whether the juvenile court abused its discretion in a particular instance "is further informed by the statutory context within which its decision ... was made." (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1288.)
Legal Framework
" 'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'A section 366.26 hearing ... is a hearing specifically designed to select and implement a permanent plan for the child.' [Citation.] It is designed to protect children's 'compelling rights ... to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] 'The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.' " (In re Celine R. (2003) 31 Cal.4th 45, 52-53.)
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependent child. The express purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) The statute "requires the juvenile court to conduct a two-part inquiry at the selection and implementation hearing. First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. [Citations.] Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated exceptions applies." (In re Breanna S. (2017) 8 Cal.App.5th 636, 645-646 (Breanna S.).)
The statutory exception to adoption at issue here, often referred to as the "beneficial parent-child relationship exception," pertains where the evidence supports "a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] ... [¶] ... regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B) & subd. (c)(1)(B)(i).)
Beneficial Parent-Child Relationship Not Proven
The parent has the burden of proving by a preponderance of the evidence that the beneficial parent-child relationship exception applies. (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.) The first prong of a beneficial parent-child relationship analysis "is quantitative and relatively straightforward, asking whether visitation occurred regularly and often." (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) Mother did not visit regularly and often with the children. When the dependency was filed in 2016, mother was given frequent visits, but failed to maintain regular visitation. Visits were reduced, eventually to once a month, and even then, mother occasionally missed visits. Consequently, the record shows that mother did not satisfy the first prong of regular and frequent visitation.
Assuming for the sake of argument that mother did satisfy the first prong, the evidence does not support the second prong; i.e., whether the children would benefit from preserving her parental rights. Whether the nature and extent of a particular parent-child relationship is sufficient to be deemed "beneficial" for purposes of the beneficial parent-child relationship exception is more involved and takes into account many variables that affect the parent-child bond. Relevant factors include 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 Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.).) These factors, however, are not exclusive. (In re Grace P., supra, 8 Cal.App.5th at p. 613.) Rather, "[t]he application of the beneficial parent relationship exception requires a robust individualized inquiry given that '[p]arent-child relationships do not necessarily conform to a particular pattern,' and no single factor ... is dispositive." (Ibid.)
"A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. (See In re Angel B. (2002) 97 Cal.App.4th 454, 466 ['[a] biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent'].) No matter how loving and frequent the contact, and notwithstanding the existence of an ' "emotional bond" ' with the child, ' "the parents must show that they occupy 'a parental role' in the child's life." ' [Citations.] ... Moreover '[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.' " (Breanna S., supra, 8 Cal.App.5th at p. 646.)
Should the juvenile court determine the existence of a parent-child relationship is so significant that its severance would cause the child detriment, the court must then determine whether that relationship constitutes a "compelling" reason to forgo termination of parental rights under the balancing test set forth in Autumn H. Specifically, the parent must establish that "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) In evaluating this issue, the court must balance "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." (Ibid.) When a juvenile court takes the extraordinary step of concluding that the beneficial parent-child relationship exception applies, it must state the reasons supporting its determination in writing or on the record. (§ 366.26, subd. (c)(1)(D).)
Finally, under subdivision (h)(1) of section 366.26, the juvenile court must consider the wishes of the child within the context of the child's best interests. Even when a child loves his or her parents and desires continued contact with them, the court may nevertheless terminate parental rights if doing so is in the best interests of the child. (§ 366.26, subd. (h)(1).)
Here, mother's visits with the children throughout the dependency were in a supervised setting and mother failed to participate in the services ordered by the juvenile court during the reunification period. The children did not exhibit distress after visiting with mother; had been in foster care for over three years with the prospective adoptive parents; and the prospective adoptive parents had a loving relationship with the children.
There is no evidence that the visits between mother and the children demonstrated an overwhelmingly positive and strong parent-child relationship. That the children might derive some benefit from a continued relationship with mother is not sufficient grounds to derail adoption. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) One child was an infant when removed from her care and although the others were of varying older ages, they all have spent over three years in foster care because mother failed to participate in reunification services when ordered to do so. That the children had pleasant visits with mother is not enough to preserve parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 557.)
The children need permanency and stability in loving homes, which the adoptive parents are willing to provide. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother's limited relationship with the children is not that extraordinary case where preservation of the parent's rights should prevail over the preference for adoptive placement. (Breanna S., supra, 8 Cal.App.5th at p. 646.)
The juvenile court's order terminating parental rights and placing the children for adoption is not an abuse of discretion. (In re E.T., supra, 31 Cal.App.5th at p. 76.)
DISPOSITION
The order terminating parental rights and placing the children for adoption is affirmed.