Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWJ004052, Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for minors.
OPINION
McKINSTER, J.
Veronica J. is the natural mother of A.A., R.A., and V.A., three dependent children of the juvenile court. Mother appeals after the juvenile court found the children were adoptable and terminated her parental rights. Mother contends that she had a beneficial relationship with her children, such that the juvenile court erred in terminating her rights. She argues alternatively that she received constitutionally ineffective assistance of counsel when her attorney failed to raise the beneficial relationship exception below. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2005, the two older children first came to the attention of the Riverside County Department of Public Social Services (DPSS). It was alleged that mother failed to protect the children (Welf. & Inst. Code, § 300, subd. (b)), in that she had a substance abuse problem that limited her ability to care for them.
At that time, in January 2005, the juvenile court declared the two children dependents, but continued them in mother’s custody with family maintenance services. The father, who did not reside in the home and who also had substance abuse problems, was denied reunification services.
In February 2005, DPSS filed a supplemental petition when mother was arrested. The two children were removed and placed in confidential foster care.
At a new dispositional hearing in April 2005, the court found the allegations of the supplemental petition true. As the earlier dispositional orders had not been effective to protect the children, the court removed custody from the mother and placed the children with DPSS.
By the time of the six-month review hearing, mother had returned to residing with the maternal grandmother and was expecting the birth of the third child. Mother had undertaken an inpatient drug treatment program and had completed classes in parenting, anger management, and relapse prevention. The court extended reunification services for another six months upon a finding that mother’s progress made it likely the children would be returned.
In October 2005, DPSS filed a dependency petition for the new baby. The court declined to make a prima facie finding of dependency and returned the third child to mother. The court ordered mother to remain in the home of the maternal aunt where she was then living, however, and not to move without authorization from DPSS. The older two children were returned to mother’s care in November 2005.
In December 2005, acting on DPSS’s petition for the third child with respect to the father, the juvenile court found the allegations of the petition true as to the father and ordered reunification services. The third child continued to be placed with mother on family maintenance services.
As of April 2006, the court continued the case in family maintenance status as to mother.
In May 2006, DPSS again removed the children and filed a supplemental petition when it was found that the children were playing in an area where they had access to dangerous implements (knives, a hammer, and a bat). The supplemental petition alleged that mother had been placed under a mental health observation order. In June 2006, mother admitted relapsing into drug use, and she admitted resuming contact with the father, which had been precluded by earlier orders of the court.
Difficulties arose between mother and the maternal grandmother because of ongoing conflict and because of mother’s suspected drug use. The maternal grandmother no longer wanted mother in the home. In approximately July 2006, DPSS recommended terminating mother’s reunification services. The court did not adopt that recommendation at that time, but extended mother’s services another six months.
At the 18-month review in December 2006, the court terminated reunification services and set the matter for a selection and implementation hearing. (Welf. & Inst. Code, § 366.26.) At the contested selection and implementation hearing in April 2007, mother appeared telephonically; she was attending an inpatient drug treatment program. She asked the court to select an alternative plan to adoption to give her more time to complete the elements of her program and enable her to later file a petition under Welfare and Institutions Code section 388, for changed circumstances.
The court found the children, ages approximately four, three, and one, were likely to be adopted. The court also made a finding that none of the exceptions to parental rights termination applied. Accordingly, and finding adoption in the best interest of the children, the court terminated mother’s parental rights.
Mother now appeals, contending that the court should have applied the beneficial relationship exception.
ANALYSIS
I. The Order Terminating Parental Rights Was Proper
A. Mother Waived Her Right to Raise the Beneficial Relationship Exception
When a parent fails to object to a ruling, or fails to raise an issue in the juvenile court, the parent is precluded from raising that issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Mother never argued below that the court should apply the beneficial relationship exception at the selection and implementation hearing. Rather, she simply requested the court to choose a “lesser plan today”—that is, a plan other than adoption—to allow her more time to complete her substance abuse program, so that she might later be able to file a petition for modification of the permanent plan under Welfare and Institutions Code section 388. This did not squarely raise the issue of the beneficial relationship exception; rather, it expressed a mere hope that, with more time, mother might finally be able to show some reason not to terminate her parental rights.
Because mother failed to raise the issue below, she is precluded from raising the beneficial relationship exception as a ground for reversal on appeal.
The juvenile court did expressly find, however, that none of the statutory exceptions applied. To the extent that mother’s position below may have implicitly presented the issue, so that there was no waiver, review on the merits does not warrant a different result.
B. Even Absent Waiver, the Juvenile Court Properly Found That the Beneficial Relationship Exception Did Not Apply
1. Standard of Review
Courts have reached different conclusions as to the standard of review that applies to a juvenile court’s ruling on exceptions to adoptability under Welfare and Institutions Code section 366.26, subdivision (c)(1). In In re Autumn H. (1994) 27 Cal.App.4th 567, 576, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. In contrast, in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352, the court applied the abuse of discretion standard of review. For purposes of the present case, it makes no difference which standard applies because, as we discuss post, we conclude that the juvenile court did not err under either test.
2. The Court’s Finding Was Proper
Welfare and Institutions Code section 366.26, subdivision (c)(1)(A), provides an exception to termination of parental rights when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” As the courts have recognized, interaction between a parent and a child will always confer some incidental benefit to the child. Such incidental benefit does not satisfy the parent’s burden under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)
To satisfy the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Here, mother argues that she met the first prong of the beneficial relationship exception, in that she had weekly, and sometimes daily, visits with the children. She contends that “the second prong of the exception was satisfied because the minors enjoyed a bonded parental relationship with their mother that DPSS documented up to and including the section 366.26 report.” When mother visited, she helped with the children’s daily activities, such as feeding and changing diapers. The caretaker reported that mother interacted well with the children, and behaved appropriately with them.
“When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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.’ [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Contrary to mother’s claim, there was no evidence the children would suffer any particular detriment from severing her parental relationship with them. The children were very young. The oldest child had some bond with her mother. The second child related well to mother, but was no longer described as being bonded to her. The youngest child had been removed from mother’s care while still in infancy. He was a happy baby, but not particularly attached to mother.
Otherwise, mother’s argument simply expresses a disagreement with the statutory preference for adoption. Mother complains that “[t]he idea that a positive relationship can and should be disposed of is outmoded.” That is an argument to be addressed to the Legislature, not to the courts.
Notably, mother had not filed a petition under Welfare and Institutions Code section 388. By her own admission, she was, on the date of the hearing, in no position to do so. Rather, she asked the court to ignore the legislative preference for adoption as the permanent plan and to select a different plan to allow her more time to complete actions that might have supported a Welfare and Institutions Code section 388 petition at a later time.
In effect, mother was asking for an extension of time to complete her service plan. Her request represented a failure to understand that, under the statutory scheme, she had been accorded all the time deemed appropriate for parents to demonstrate their commitment to and ability to regain custody of their dependent children. The children had already been dependents for over two years. The Legislature determined that 18 months was an appropriate time in which to provide reunification services. That period had already elapsed while mother still struggled with unresolved issues of drug addiction. The court was not only not obligated to select a different plan, it was required to select adoption as the children’s permanent plan unless mother affirmatively demonstrated some detriment to the children from termination of her parental rights. She made no such demonstration here.
Whether viewed as a matter of discretion or as a matter of substantial evidence, the record amply supports the juvenile court’s express finding that the beneficial relationship exception did not apply in this case.
II. Counsel Was Not Ineffective
Mother contends, alternatively, that her counsel rendered constitutionally ineffective assistance by failing specifically to raise the beneficial relationship exception below.
A. Standard of Review
The burden is on the parent to demonstrate both that counsel’s representation fell below the standard of prevailing professional norms, and that, in the absence of counsel’s errors, it is reasonably probable that a more favorable result would have been obtained. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292-293, citing Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674, 698] and People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) “Unless the record affirmatively establishes ineffective assistance of counsel, we must affirm the judgment.” (In re Daisy D., supra, 144 Cal.App.4th 287, 293, citing People v. Pope (1979) 23 Cal.3d 412, 426.)
B. Mother’s Claim of Ineffective Assistance of Counsel Is Without Merit
As we have already determined, the record below was devoid of any evidence that the children would suffer any detriment, let alone substantial detriment, if mother’s parental rights were terminated. Had counsel expressly raised the issue of the beneficial relationship exception, there is little to no possibility that the result would have been any different. Mother had visited the children more or less consistently and had acted appropriately with them during visitation. Although A.A. was bonded with mother, the other two children were not. There was nothing to suggest that either A.A. or the other children would suffer any particular trauma or detriment if mother’s relationship with them were severed. At the time of the termination hearing, mother had enrolled in yet another drug treatment program. By her own admission, she was in no position to show that the court’s orders should be presently changed; she only proffered the hope that, with more time, she might be able to file a Welfare and Institutions Code section 388 petition in the future.
There was no realistic possibility of any different result had the issue been raised directly. Mother’s claim of ineffective assistance of counsel fails.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: RAMIREZ, P. J., GAUT, J.