Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ100392 Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant, R.W.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant, A.F.
Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Appellants R.W. (Father) and A.F. (Mother) appeal the termination of their parental rights under Welfare and Institutions Code section 366.26 as to their minor daughter, A.F.W. On due process and other grounds, Mother contends the juvenile court abused its discretion in denying her section 388 motion to have A.F.W. placed with her maternal aunt and uncle who had expressed an interest in adopting her. Mother and Father both claim the trial court erred when it found the parental benefit exception in section 366.26, subdivision (c)(1)(B)(i), did not apply because the record shows they visited A.F.W. regularly and she has a beneficial relationship with them.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A.F.W. was removed from Mother by the Riverside County Department of Public Social Services (DPSS) as a newborn. The original petition was filed on January 7, 2008, shortly after her birth, based on section 300, subdivisions (b) (failure to support) and (j) (abuse of siblings). Prior to A.F.W.’s birth, six half siblings were removed from Mother’s care. Mother has a long history of untreated drug and alcohol abuse and received services as to some of her children, but failed to reunify with any of them. When A.F.W. was born, she was detained for these reasons, because Mother had not obtained prenatal care, and she was not bonding appropriately with A.F.W. in the hospital.
The petition further alleged Father had a history of drug abuse and criminal convictions for attempted murder and distribution of controlled substances. At the time A.F.W. was detained, Father was on parole. Relatives reported Mother abused alcohol during the pregnancy and neither Mother nor Father had done anything to prepare for the baby and had little or no means to support a child.
On January 8, 2008, the juvenile court found there was probable cause for detention. DPSS was authorized to place A.F.W. with relatives following a suitable home evaluation. Supervised visitation and reunification services were offered to the parents pending a further hearing. Shortly thereafter, on January 24, 2008, the social worker reported Mother and Father had been participating in weekly supervised visits with A.F.W.
When the maternal grandmother was contacted by the social worker, she indicated she was still caring for two of Mother’s children and would be a placement option for the new baby. She stated she was living with her daughter and son-in-law. As a result, the social worker initiated background checks on these parties.
On April 14, 2008, the court found the allegations in the petition to be true and assumed jurisdiction over A.F.W. Mother was denied services because she previously failed to reunify with her other children. (§ 361.5, subd. (b)(10).) Father was denied services because he had been convicted of a violent felony involving great bodily injury. (§ 361.5, subd. (b)(12).) Genetic testing confirmed Father’s biological relationship to A.F.W. The court ordered an assessment of a maternal aunt and uncle for placement, set a selection and implementation hearing pursuant to section 366.26, and referred the case to a licensed county adoption agency.
On June 4, 2008, the court executed an order authorizing DPSS to initiate the ICPC (Interstate Compact on Placement of Children) process to determine whether A.F.W. could be placed in Nevada with the maternal aunt and uncle. On July 11, 2008, A.F.W. was placed with a prospective adoptive family willing to take the risk of having A.F.W. removed from their care if the ICPC results were favorable. In a report prepared July 28, 2008, the social worker reported A.F.W. was likely to be adopted by her maternal aunt. The section 366.26 hearing was continued a number of times to await completion of the ICPC process with Nevada.
By November 2008, A.F.W. had been in the home of her prospective adoptive parents for five months and was reportedly doing very well and had bonded with the family. The social worker’s report of November 19, 2008, included a preliminary adoption assessment of A.F.W. and the prospective adoptive parents. The assessment of the prospective adoptive parents was very favorable. Based on her young age, overall good health, and the prospective adoptive parents’ commitment to her, the social worker concluded A.F.W. was adoptable.
In November 2008, the social worker also reported she had spoken on two occasions during the reporting period with the maternal aunt in Nevada who was willing to adopt and encouraged her to begin regular visitation with A.F.W. The social worker told the maternal aunt regular visitation would be very important in order to develop a relationship with A.F.W. The maternal aunt said she would speak with her husband, but visitation would be difficult. Despite these two conversations, the maternal aunt had not scheduled any visitation during the reporting period. At that time, the social worker recommended termination of parental rights and adoption by the prospective adoptive parents as the permanent plan. However, the maternal aunt and uncle did visit on December 8, 2008, December 27, 2008, January 9, 2009, January 23, 2009, and February 6, 2009. The next visit was scheduled for February 20, 2009. However, it appears visits with the maternal aunt and uncle were not continued after March 9, 2009.
Effective January 21, 2009, the maternal aunt and uncle were granted a foster home license to have A.F.W. live in their home in Nevada. In a report signed February 11, 2009, the social worker said the ICPC process was not yet complete and the home study indicated several items were still pending. The social worker recommended termination of parental rights and adoption by the prospective adoptive parents who had been caring for A.F.W. since July 11, 2008.
On February 24, 2009, Mother filed a request to change order (Judicial Council Forms, form JV-180) under section 388, based on the recent approval of the maternal aunt and uncle’s foster care license. Mother requested placement of A.F.W. in the maternal aunt and uncle’s home. In support of the request, Mother argued placement with maternal relatives would be in A.F.W.’s best interest because it would “facilitate the maintenance of familial relationships and foster continued safe contact with both parents.” However, the social worker concluded it would be detrimental to move A.F.W. to the maternal aunt and uncle’s home because she had developed a bond with the prospective adoptive parents. Although A.F.W. was reportedly comfortable with Mother, Father, and maternal relatives and enjoyed their visits, she was not attached to them. Therefore, the social worker recommended termination of parental rights and adoption by the prospective adoptive parents.
On April 23, 2009, a second request to change order was filed by the maternal aunt and the maternal grandmother asking the court to grant legal guardianship of A.F.W. to maternal relatives because it would be better for her to be raised around her half siblings and other family members. The court denied a hearing on the motion. The maternal relatives who brought the motion are not parties to the current appeal.
On March 2, 2009, A.F.W.’s prospective adoptive parents requested appointment as de facto parents. The court granted the request on March 30, 2009.
On April 23, 2009, the court held a combined section 388 and section 366.26 hearing. At that time, the court also considered briefs filed by the parties on the application of the relative placement preference (§ 361.3) and the caretaker preference for adoption (§ 366.26, subd. (k)). After extensive arguments, the court took the matter under submission. At a continued hearing on Mother’s section 388 motion, which began on May 14, 2009, the court considered testimony by the social worker and a social services assistant (SSA) who had been supervising visitation. The maternal grandmother also testified in support of Mother’s motion. On May 20, 2009, the court denied Mother’s section 388 motion. Although the court found Mother met her burden of showing changed circumstances, she had not shown it was in A.F.W.’s best interest to be placed with her maternal aunt and uncle.
On June 3 and 4, 2009, the court held the final section 366.26 hearing. Mother and Father objected to the termination of their parental rights. The court considered testimony by Father about his relationship with A.F.W. Mother presented no affirmative evidence. The court terminated parental rights and concluded that: (1) A.F.W. is likely to be adopted; (2) adoption is in A.F.W.’s best interest; (3) termination of parental rights would not be detrimental to A.F.W.; and (4) the parental benefit exception did not apply. In addition, the court ordered that the adoption application by the current caretakers (i.e., the prospective adoptive parents) be given preference over any other application.
DISCUSSION
A. Mother’s Section 388 Motion
Mother argues the juvenile court abused its discretion in denying her section 388 motion because it applied the caretaker preference for adoption (§ 366.26, subd. (k)) rather than the relative placement preference (§ 361.3). Because maternal relatives expressed an interest in placement early in the proceedings, Mother contends the court should have applied the relative placement preference without regard for the caretaker preference for adoption. Because it erroneously believed the caretaker preference for adoption applied, she believes the court gave too much weight to A.F.W.’s relationship with the prospective adoptive parents prior to the termination of parental rights. In doing so, Mother claims the court failed to consider the importance of maintaining biological ties.
Mother argues the court should have granted her section 388 motion based on the relative placement preference, the favorable results of the ICPC process, and a lack of evidence indicating it would have been detrimental to remove A.F.W. from the home of her prospective adoptive parents to place her with the maternal aunt and uncle in Nevada. Mother claims the social worker was not only biased against the maternal aunt and uncle, but her testimony about potential detriment to A.F.W. if she was placed with the maternal aunt and uncle was weak and not very credible.
Under section 388, subdivision (a), “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made....” “If it appears that the best interests of the child may be promoted by the proposed change of order,... the court shall order that a hearing be held....” (§ 388, subd. (d).)
“At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interest of the child. [Citations.] [¶] After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [Citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Once reunification services are denied or terminated, the child’s interest in stability becomes paramount, and at this time a court can err if it places “too great weight to [a relative’s] interest in maintaining a family tie with the child....” (Stephanie M., supra, 7 Cal.4th at p. 324.) “In any custody determination, a primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. [Citation.] ‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.]” (Id. at p. 317.)
A juvenile court’s ruling on a motion made pursuant to section 388 “should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]... [W]hen a court has made a custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]... ‘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.’ [Citations.]” (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
The caretaker preference for adoption in section 366.26, subdivision (k), reads as follows: “Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being. [¶] As used in this subdivision, ‘preference’ means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.”
The relative placement preference set forth in subdivision (a) of section 361.3 reads as follows: “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” The relative placement preference does not “operate as an evidentiary presumption in favor of placement with [relatives] that would overcome the juvenile court’s duty to determine the best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 320.) Section 361.3, subdivision (a), specifically states that it should not be construed to “guarantee” placement to any identified relative. “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) Subdivision (d) of section 361.3 also provides, in part, as follows: “Subsequent to the [jurisdictional/dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given... to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements....”
The relative placement preference in section 361.3 “assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative’s application will be considered before a stranger’s application.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) “When reunification has failed, however, and the juvenile court has before it a proposed permanent plan for adoption, the only relative with a preference is a ‘relative caretaker’ (if there is one seeking to adopt) and the only preference is that defined by subdivision (k) of section 366.26 (that is, a preference to be first in line in the application process). [Citation.]” (Id. at pp. 285-286.)
In reaching its decision to deny Mother’s section 388 petition, the court held a lengthy contested hearing and “spent an enormous amount of time” considering whether to grant Mother’s section 388 petition. The court heard exhaustive arguments by all counsel and extensive testimony by the social worker assigned to the case, as well as from the SSA who supervised visitation with Mother, Father, and their respective relatives. The court then concluded “the relative preference does not apply... based upon the procedural posture of this case in that there is not a need for a new placement of the child.” The court also said that “the caretaker preference under 366.26, subdivision (k)... does apply.... [¶] Therefore, when you apply those preferences, I do not find that the requested relief would be in the best interest of [A.F.W.].” However, the court said, “[I]f I am wrong on the law, if I am wrong about the caretaker preference and if a higher court determines that the caretaker preference in fact in this case does not apply, I would still be finding that it would not be in [A.F.W.’s] best interest to place her in the care of [her maternal aunt and uncle].”
In support of its decision, the court stated as follows: “You know, in juvenile dependency law, we have to deal with this [unwieldy] mechanism called the ICPC. It is a frustrating thing to deal with, but as counsel has alluded to, the court, of course, is prevented from placing a child out of state without that other state’s approval.” “It is quite clear to me that [A.F.W.] has made a family with [the prospective adoptive parents].... [A]s I said, we’re forced to deal with the ICPCs. There [are] delays in getting ICPC approval. Those delays are unfortunate. I do not believe in any way that there is any evidence before the court that the social worker... had any animus towards anyone in this case. In fact, [in] this case we saw more rapid ICPC approval than I have had in some other cases especially from the State of Nevada. [¶] However, it is quite clear to me in the time that we were waiting for ICPC approval that [A.F.W.] has formed a considerable bond with the [prospective adoptive parents]. She looks to them as her parents.... I cannot find on the record any reason to remove [A.F.W.] from [the prospective adoptive parents].... [¶]... [T]he overriding concern of the juvenile dependency proceedings is not what is in the best interest of the extended family members, but what is in the best interest of this child.”
Based on the relevant case law cited ante, as well as our plain reading of sections 361.3 and 366.26, subdivision (k), we cannot disagree with the juvenile court’s conclusion the relative placement preference did not apply at the time Mother filed her section 388 motion. Mother’s motion was filed on February 24, 2009, long after reunification services had been denied to both parents on April 14, 2008, and at a time when A.F.W. was in a stable home and there was no reason for DPSS to consider a new placement.
On the other hand, maternal relatives stepped forward early in the process and expressed an interest in having A.F.W. placed in their care. The maternal aunt and uncle had expressed an interest in adopting A.F.W. and began visiting her in December 2008 in anticipation of her being placed in their home. In fact, the record suggests A.F.W. might have been placed with the maternal aunt and uncle prior to the denial of reunification services but for the fact that they lived in Nevada and needed approval through the cumbersome ICPC process. Under these circumstances, it was appropriate for the juvenile court to conduct a full evidentiary hearing on Mother’s section 388 motion to determine whether it was in A.F.W.’s best interest to be placed with her maternal aunt and uncle after the ICPC process was completed.
During the hearing on Mother’s section 388 petition, the social worker indicated during her testimony she initially planned to place A.F.W. with the maternal aunt and uncle if the ICPC was approved.
Based on the record, however, we cannot conclude the juvenile court abused its discretion in denying Mother’s section 388 motion. In reaching this conclusion, we must preliminarily reject Mother’s argument that the social worker “failed to follow protocols” and did not “timely process” the ICPC, because she was biased against placing A.F.W. with the maternal relatives. The record does not support Mother’s conclusory accusations. First, the record indicates the social workers assigned to the case were unable to process the ICPC on their own. They were unfamiliar with the process and therefore had to rely on others, such as the “ICPC supervisor,” to complete the necessary steps.
Second, Mother’s argument overlooks too much of the record. In support of her argument on timeliness, Mother cites only unsupported argument by counsel, which was rejected by the court, and a single ICPC document that was included as an attachment to the social worker’s report of February 26, 2009. Although the cited document is entitled “Interstate Compact Placement Request,” and appears to have been signed in October 2008, the origin and purpose of the document are unclear. A complete set of ICPC documents is not included in the record on appeal.
Third, other evidence in the record undermines Mother’s claim that the testifying social worker did not timely process the ICPC because she was biased against placing A.F.W. with maternal relatives. The notes of the social worker who was originally assigned to the case say the ICPC process was initiated as to the maternal grandmother on January 18, 2008, shortly after the detention hearing, when no information was available on the maternal aunt and uncle. At the time of the disposition hearing on April 15, 2008, the original social worker stated as follows in her notes: “[The maternal grandmother] clarified that maternal aunt requests ICPC, as primary care provider. I explained to the [maternal grandmother] that the maternal aunt has not made contact with the Department.” On April 18, 2008, the original social worker completed an ICPC form and forwarded it to someone else in the office for processing.
The record indicates the maternal grandmother was 71 years of age and was therefore not considered suitable for permanent placement.
On or about May 6, 2008, the case was reassigned to the testifying social worker, who learned that the ICPC could not be initiated because the court’s minute order of April 15, 2008, did not state that an ICPC was authorized. Therefore, on May 12, 2008, she signed an ex parte application to the court seeking ICPC authorization for the maternal aunt and uncle. Although the court signed an order authorizing the ICPC on June 4, 2008, it was not filed in the court’s official record until July 10, 2008. The testifying social worker’s notes indicate she did not learn that the court signed the order until July 15, 2008. Shortly thereafter, on July 28, 2008, the social worker reported that the ICPC for placement with the maternal aunt and uncle was in process. In addition, the record indicates the testifying social worker did attempt to expedite the ICPC process but was told A.F.W. did not qualify for priority status.
In sum, any delays in initiating the ICPC were brief and appear to have been the result of factors that are not indicative of any bias against the maternal aunt and uncle. These factors included a change in the relatives seeking placement from the maternal grandmother to the maternal aunt and uncle due to the maternal grandmother’s advanced age, a change in social worker assigned to the case, and the court’s failure to timely file and process a request for ICPC authorization. Therefore, on the record before us, we cannot conclude the social worker who testified at the hearing or anyone else at DPSS deliberately delayed the ICPC process to affect the outcome of the case as Mother’s argument implies.
We are equally unconvinced by Mother’s contention the juvenile court should have granted her section 388 motion because the results of the ICPC process were favorable, the social worker admitted it was possible for A.F.W. to adjust if placed with her maternal aunt and uncle, and placement with maternal relatives would allow A.F.W. to maintain connections with her biological family, including some half siblings who had previously been placed with relatives. We also reject Mother’s claims that the social worker did not have sufficient training and experience to offer testimony about A.F.W.’s emotional ties to her relatives, as opposed to her relationship with the prospective adoptive parents, and the court placed too much weight on the social worker’s testimony. First, these arguments go to the weight of the evidence, not its admissibility. Given the particular stage of the proceedings, the juvenile court properly evaluated the evidence by placing special weight on A.F.W.’s need for stability and permanence. Second, Mother’s arguments merely refer to evidence that could have made it possible for the trial court to reach a different resolution of the case. When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
We also disagree with Mother’s contention the juvenile court erred by only considering A.F.W.’s relationship with the prospective adoptive parents and ignoring A.F.W.’s interest in maintaining ties to her biological family. The record indicates the maternal grandmother did testify at the hearing on Mother’s section 388 motion. She not only presented Mother’s family in a favorable light, she expressed a desire to have A.F.W. placed with her maternal aunt and uncle so she could grow up around her relatives in Nevada. She also explained the reasons why she believed it was important for A.F.W. to maintain ties with her biological family. Thus, there is nothing to indicate the trial court ignored these interests. Rather, the court simply did not give them the weight Mother would have liked. This is not enough to justify a reversal of the court’s order denying Mother’s motion or the order terminating parental rights.
Based on our review of the sizeable record in this case, we conclude there is ample evidence in the record from which the court could reasonably conclude it was not in A.F.W.’s best interest to be removed from the home of her prospective adoptive parents in order to be placed with her maternal aunt and uncle. From the record, it is apparent DPSS and the social worker assigned to the case were faced with very difficult circumstances once the court denied reunification services to the parents on April 14, 2008. At that time, A.F.W. was an infant at the tender age of four months old. According to the applicable law, it was time for the focus of the proceeding to shift to her need for permanency and stability. She was at that time living in a foster home, which had not yet been approved as a potential adoptive home. A.F.W. could not be placed with the maternal aunt and uncle pursuant to the relative placement preference in section 361.3, because they had not yet been approved through the time-consuming and difficult ICPC process. As the court noted on the record, delays in the ICPC process are common, and the approval process in this case actually took less time than in some others known to the court. The outcome of the ICPC was uncertain. There was no way to know whether the Nevada relatives would be approved.
Faced with these difficult and uncertain circumstances, it is obvious concurrent planning was the best possible means to assure permanency and stability for A.F.W. within a reasonable period of time. The court therefore referred the case to a licensed county adoption agency. For concurrent planning purposes, the social worker testified A.F.W. was removed from her former foster parents to the home of her prospective adoptive parents in case the ICPC was not approved. At that time, A.F.W. was still very young (seven months old) and, according to the social worker, would not have a problem forming an attachment to new caretakers. A.F.W. was matched with the prospective adoptive parents and placed with them as of July 11, 2008, because they had been fully approved for adoptive placement by the adoption agency and were willing to undertake the risk of A.F.W. eventually being placed with the maternal aunt and uncle.
The maternal aunt and uncle’s home was not approved for foster placement through the ICPC process until January 21, 2009, when A.F.W. was one year old and had already been with the prospective adoptive parents for about six months. At that time, Mother and Father had been visiting regularly, and the record shows the maternal aunt and uncle began visiting A.F.W. on December 8, 2008. The social worker testified A.F.W. enjoyed her visits with her Mother, Father, and other biological relatives and was comfortable with them, but she had not bonded with them. The basis for the social worker’s opinion is that A.F.W. appeared “a little stiff” and not “completely comfortable” when she sat on their laps during visitation, was not upset when visits ended, and was always happy to return to the home of the prospective adoptive parents. Instead, the social worker said A.F.W. had bonded with the prospective adoptive parents and her behavior with them was markedly different. In the social worker’s opinion, A.F.W. viewed them as her parents. As a result, she testified it would not be detrimental to terminate contact with the biological relatives. However, she said it would be detrimental to A.F.W. if she was removed from the home of the prospective adoptive parents because she was significantly older (i.e., 18 months old) and was bonded to them. Based on her training, she believed removal “would cause some emotional damage to [A.F.W.], and it could possibly cause some attachment issues.” In addition, she believed A.F.W. would have “a difficult time readjusting.”
There is also other evidence in the record supporting the court’s denial of Mother’s motion. First, the social worker testified it would not be in A.F.W.’s best interest to be placed with her maternal aunt and uncle in Nevada because they had not shown a strong enough commitment to adopting her. They did not visit her until about 11 months after the case began and had only participated in visits for a relatively short period of time. Although A.F.W. had had seven visits with the maternal aunt and uncle, the social worker said “[s]he doesn’t really have a relationship with them.” Tellingly, the maternal aunt and uncle did not testify at the hearing on Mother’s section 388 motion.
Second, the social worker also expressed some concern about A.F.W.’s future emotional well-being if she were placed with the maternal aunt and uncle; she had information suggesting this might result in future contacts with Mother and Father on a regular basis. The social worker was concerned about this because of their respective histories and because she had no information indicating either parent had done anything to correct the problems that resulted in the initial removal. During cross-examination, the maternal grandmother, who lived with the maternal aunt and uncle, indicated she believed it might not be necessary for Mother’s visits with A.F.W. to be supervised in the future.
The social worker’s statements and conclusions were further supported by the testimony of the SSA who began supervising visits between A.F.W. and her biological relatives beginning in July 2008. The SSA transported A.F.W. from the prospective adoptive parents’ home to the visitation site and supervised about 30 visits. Her testimony was consistent with that of the social worker. The SSA said both parents visited weekly for an hour, had never missed a visit, and were always on time. In the hallway leading to the visitation room, she said A.F.W. “gets jumpy,” but she does not put her arms up to be picked up the same way she does when she goes home. She described the visits as “loving and appropriate.” During visits, the parents played with A.F.W., took care of her physical needs, and comforted her as necessary. Like the social worker, she noticed “the straightness of her back” when being hugged or picked up, but this “was mostly upon the beginning of the visit.” For most of the visitations, A.F.W. appeared to be comfortable but displayed no anxiety when leaving the visits. In contrast, when she took A.F.W. back to her prospective adoptive parents, A.F.W. recognized when she was getting close to home and appeared excited. At that point, she “is already whining and putting her arms out towards the side of the window. She appears excited to see [the prospective adoptive father] walking up either the driveway or the lawn,... and she does that until he does pick her up from the car seat.”
Based on the foregoing, we simply cannot conclude Mother has met her burden of showing the juvenile court abused its discretion in denying her section 388 motion. In our view, the juvenile court’s decision not to disturb the bond between A.F.W. and her prospective adoptive parents to be placed with her maternal aunt and uncle was a rational one and was supported by the evidence.
We must also reject Mother’s contention the juvenile court applied the caretaker preference in section 366.26, subdivision (k), too early in the proceedings when parental rights had not been terminated. Mother’s argument has already been rejected in the case entitled In re Lauren R. (2007) 148 Cal.App.4th 841. By its terms, the caretaker preference in section 366.26, subdivision (k), is relevant when the court has approved a permanent plan for adoption or has freed the child for adoption. According to the appellate court in Lauren R., “the circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights or the termination of reunification services.” (Lauren R., at p. 856.) In Lauren R., this intent was established when the juvenile court continued the section 366.26 hearing, approved a permanent plan of adoption, and ordered the county to find an adoptive family within six months. (Lauren R., at p. 856.)
The record in this case is essentially equivalent to the one at issue in Lauren R. At the jurisdictional/dispositional hearing on April 15, 2008, when the court sustained the petition and assumed jurisdiction over A.F.W., it denied reunification services to the parents. It also set a section 366.26 hearing and referred the case to a licensed county adoption agency. It does not appear the court formally declared adoption the permanent plan at that time. However, the case had reached the permanency planning stage, and the court’s actions unquestionably demonstrated it intended adoption to be the permanent plan. Although the court concluded the caretaker preference applied at the time it was deciding whether to grant Mother’s section 388 motion, its decision to deny the motion was based on A.F.W.’s bond with the prospective adoptive parents and other factors as outlined ante. It was not based on any preference the prospective adoptive parents may have had to have their application for adoption processed first. In other words, the caretaker preference for adoption in section 366.26, subdivision (k), did not actually come into play until the final section 366.26 hearing when the court terminated parental rights and found adoption was in A.F.W.’s best interest. At that time, the court directed “[t]hat an application for adoption by the current caretakers be given preference over any other application.”
B. Due Process
Mother claims the social worker made contradictory placement decisions indicating she was biased against placement with the maternal aunt and uncle. First, the social worker moved A.F.W. from her original foster home, where she had been since birth, to place her with her prospective adoptive parents after two one-hour visits with them when she was about six months old. Then, when A.F.W. had been with the prospective adoptive parents about the same amount of time, the social worker was against a second change of placement to the maternal aunt and uncle’s home. Mother essentially contends A.F.W. should have been moved to maternal relatives as quickly and easily as she was moved to the placement with her prospective adoptive parents. Because she was not, Mother believes the social worker was biased.
On due process grounds, Mother claims she was denied a fair hearing on her section 388 motion because the court limited examination of the social worker about the alleged contradictory nature of the placement recommendations and decisions. If her examination had not been so limited, Mother argues the court would have reached a different conclusion based on the social worker’s bias, since the evidence of detriment to A.F.W. was weak. Instead, after limiting her examination of the social worker based on lack of relevance of bias, the court then declared the social worker was not biased.
“While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings ‘are not entitled to full confrontation and cross-examination.’ [Citation.] Due process requires a balance. [Citation.] The state’s strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will ‘necessitate undue consumption of time.’ (Evid. Code, § 352.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.)
In support of her due process argument, Mother simply cites several pages of the social worker’s testimony. Mother does not state what additional questions she would have wanted the social worker to answer that might have revealed bias against placement with the maternal aunt and uncle. We have reviewed the cited portions of the record, as well as the record as a whole, and find the trial court did not improperly limit examination of the social worker as to her reasons and possible bias in reaching her placement decisions and recommendations.
On the contrary, our review of the record indicates this issue was fully and completely vetted by counsel, and Mother received all of the process that was due. We were unable to locate anything in the record to indicate any further questions to the social worker would have revealed a genuine bias that could have affected the outcome of the proceeding. As outlined more fully ante, the social worker gave a reasonable and believable explanation for the difference in the two placement decisions, which was essentially based on A.F.W.’s age and stage of development. On the other hand, the social worker’s testimony does indicate attachment theory is not an exact science and, as a result, it was possible for A.F.W. to recover if she were moved to the home of the maternal aunt and uncle. Consequently, there was conflicting evidence as to whether it would be detrimental to remove A.F.W. from the prospective adoptive parents. Obviously, the juvenile court resolved this conflict in favor of DPSS and the social worker. Once again, we cannot substitute our judgment for that of the juvenile court.
C. Parental Benefit Exception
Mother and Father both contend the court erred when it failed to apply the parental benefit exception to the termination of their parental rights. They believe their parental rights should not have been terminated because they visited A.F.W. regularly, acted appropriately, and parented A.F.W. in a positive manner during visitation. In addition, they claim the record shows A.F.W. enjoyed the visits, was comfortable with them, and had an observable bond with both of her parents. Mother and Father both argue the record shows they did play a parental role in A.F.W.’s life, and A.F.W. derived much benefit from the relationship. As a result, they believe A.F.W. would be greatly harmed if their parental rights are permanently severed.
The court found the parents “have maintained regular visitation and contact with the child.” However, the court found adoption was in A.F.W.’s best interest, because “in weighing the evidence,” it was apparent there was not a sufficient benefit to the child in continuing the relationship. According to the court, A.F.W.’s need for permanence outweighed any benefit she would derive from a continuing relationship with the parents.
“ ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53.)
“We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) “We determine whether there is substantial evidence... by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)
We note that in the case entitled In re Jasmine D. (2000) 78 Cal.App.4th 1339, the First District, Division Three, determined that the governing standard of review is abuse of discretion rather than the substantial evidence test. (Id. at pp. 1351-1352.) However, as the court in Jasmine D. noted, “[t]he practical differences between the two standards of review are not significant.” (Ibid.) For purposes of the present case, it makes no difference which standard applies because, for the reasons outlined below, we would reach the same conclusion under either standard.
“The parent has the burden to show that the statutory exception applies.” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To meet this burden, it is not enough for the parent to show he or she occupies “a pleasant place” in the child’s life (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324) or to show “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The exception does not apply “when a parent has frequent contact with but does not stand in a parental role to the child.” (Id. at p. 1420.)
For the exception to apply, the parent must show “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “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.” (Id. at pp. 575- 576.)
As Mother and Father point out, it is possible for parents to meet the burden of showing the exception applies, even if they cannot prove that “the child has a ‘primary attachment’ to the parent,” or that the parent and child “have maintained day-to-day contact.” (In re S.B. (2008) 164 Cal.App.4th 289, 299.) “If that were the standard, the rule would swallow the exception. [Citation.]” (Ibid.)
Here, we cannot disagree with the juvenile court’s decision there were no exceptional circumstances that would justify applying the parental benefit exception. As outlined more fully ante, the testimony of the social worker and the SSA indicated A.F.W. enjoyed Mother and Father and was comfortable with them, but she was not attached or bonded to them. Her significant bond was with the prospective adoptive parents. A.F.W. was removed from the parents at birth and had never lived with them. By the time parental rights were terminated, she had lived more than half of her life with the prospective adoptive parents in a loving, safe, stable, comfortable environment. The record indicates A.F.W. also had a significant bond with the prospective adoptive parent’s young son, who lived in the same home and interacted with A.F.W. on a daily basis. There is no evidence to show A.F.W. will be harmed in any way if parental rights are terminated. Under these circumstances, we agree with the juvenile court’s conclusion Mother and Father failed to meet their burden of showing the exception applied. The facts here simply weigh in favor of adoption.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., McKINSTER J.