Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge. Super. Ct. No. DP012687
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOORE, J.
Ariel Y. (the mother) appeals the termination of her parental rights to Ariel B. (Ariel). She argues the court failed to appoint a guardian ad litem for her, an error that requires reversal. She further contends the court erred by finding the benefit exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply. We find that neither of these contentions has merit and affirm the order.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
Facts from the Prior Proceeding
We restate, in relevant part, the facts from our prior unpublished opinion in this case. (Ariel Y. v. Superior Court (Oct. 11, 2007, G038872) [nonpub. opn.].)
“The mother was 14 years old when Ariel was born in November 2005. The father, who was 18 years old, had been released from jail the prior day for a probation violation. Ariel was born with multiple birth defects, including a severe cleft palate, eye deformities, and a facial opening. These resulted in numerous special needs with respect to care techniques and the environment she would occupy upon release from the hospital. She was at risk of malnutrition and dehydration, and extremely susceptible to illness and infection. Multiple caregivers were not an option due to this risk. The child would also require extensive surgery.
“At the time of Ariel’s birth, the mother was living with the maternal great-grandparents, but placing Ariel there was not an option. The mother’s own family had eight prior referrals to the Orange County Social Services Agency (SSA). When Ariel was born, they were living in a recreational vehicle without running water and were therefore not a placement option. At the hospital, the mother did not seem to grasp the extent of the child’s medical condition. The father did not appear to wish to listen to staff explain the child’s special needs.
“Additionally, the mother had a history of unresolved drug use. She admitted to weekly drug use, including marijuana, crack, and crystal methamphetamine since the age of 12. The father [Jesus B.] also admitted to using marijuana, crystal methamphetamine, and cocaine. He had been arrested twice for possessing a controlled substance. He was on probation with gang terms due to a felony conviction.
“SSA placed Ariel in a specialized foster home and filed a petition under section 300, subdivision (b). The petition alleged risk due to the parents’ unresolved drug problems, and their lack of resources and ability to care for the child due to her special needs. The court ordered Ariel detained and authorized monitored visits and drug testing.
“Jurisdiction/Disposition
“Prior to the jurisdiction hearing, SSA submitted reports on Ariel’s progress. Her ophthalmologist diagnosed left eye blindness and she was being treated by a number of specialists at Children’s Hospital. The parents were present at a mid-January 2006 evaluation. Expected future treatment was extensive, and expected to include surgery for the child’s facial deformities, ophthalmology care, auditory and speech/language evaluations and treatment, surgery to insert ear tubes, and later dental care. As of early January, the parents had attended three of four possible visits, and were noted as interacting with the child carefully and lovingly.
“The mother’s drug tests in January and early February were negative. She began missing tests in February, and only tested twice between mid-February and mid-March. The father twice tested positive for marijuana and missed all other tests between mid-February and mid-March. The foster mother reported that visits went well, and the mother was attending school. The father, however, missed appointments with SSA and had apparently left school.
“As of late March, the social worker stated: ‘The undersigned believes the parents love their child and want what is best for her. However, it appears that the parents lack the capability to provide for a child with so many special needs. Based on [] the medical reports, the child will continue to require specialized care, especially for her surgeries and follow up care.’
“The continued jurisdiction hearing was held in April 2006. The court sustained the amended petition and approved service plans for the parents. The parents were to attend all of the child’s medical appointments, participate in general counseling focusing on the issues that led to the child’s removal, take parenting classes, and drug test twice per week. Demonstrating the ability to care for the child’s special needs was a specific objective of the case plan.
“Six-Month Review
“SSA reported that the father had been arrested on June 1 for violating probation, and would remain incarcerated until September. He had not participated in services, including drug testing, counseling, or parenting education. The mother’s progress showed more promise, as she was attending and doing well at school and living in an apartment with her parents. She missed a number of drug tests, however, and missed meetings with one of her service providers. Visits with the child went well, but the mother eventually gave up on trying to feed the child. Both parents had visited prior to the father’s arrest and were affectionate and nurturing during visits.
“The parents stipulated to further SSA custody and continued reunification services. The court set a 12-month review.
“Combined 12-Month/18-Month Review
“During this period, Ariel underwent three more operations to repair her facial deformities, in August and October 2006 and February 2007. The mother was present for the August surgery, but the foster mother provided most of the needed care. The mother slept in the child’s room but could not be awakened by the attending nurse. She said: ‘I was tired and Nancy is better at it anyway.’
“At the preoperative consultation in October, the mother did not ask questions about the surgery. She did want to know whether ‘the thing hanging down’ in the child’s mouth would be fixed and if she would be able to go to the mall and be with other people. She was again not overly helpful during the child’s hospital stay. Similar issues arose during the later surgery. Problems also arose during visits with respect to following feeding instructions.
“A January 2007 evaluation revealed that although significant progress had been made, there were substantial delays in Ariel’s skills. Continued weekly therapy was recommended. The mother resisted the facts, informing the social worker that Ariel was not blind (despite the diagnosis of blindness in the left eye), and refusing to read the occupational therapy report because it was ‘full of lies.’ Problems also revealed themselves with respect to the mother’s basic parenting skills, such as diapering, hygiene, safety, and attention to the child. SSA’s final report expressed concern that the mother minimized the child’s health issues and did not recognize the potential impact if her special needs were not met.
“In March 2007, Ariel was placed in a concurrent planning home. Ariel quickly adjusted and formed a strong attachment to her new caretakers, who were willing to provide Ariel with a permanent home.
“In the meantime, the mother had resumed her relationship with the father and became pregnant again after he was released from jail in September 2006, despite the fact that only supervised contact had been ordered by the court. The baby was due in June 2007. The mother and father generated a domestic violence report in October 2006. When the father appeared at a September visit, the mother abruptly cut the visit short, then missed a number of visits over the next several months, including two immediately before and after Ariel’s October surgery.
“After the October surgery, the father disappeared, and the mother denied any involvement with him or knowledge of his whereabouts. He was arrested later that day at the home the mother shared with her parents. The mother then cancelled two visits to attend the father’s court hearing and visit him in jail. The maternal grandparents were often unaware of her whereabouts for several days at a time. In May, she insisted to the social worker that she could meet both Ariel’s needs as well as the newborn’s, because the new baby would ‘mainly sleep.’
“To her credit, the mother finally began serious drug treatment during this period. She consistently tested negative after January 2007 and was given high marks for compliance. She did not, however, wish to become involved with the 12-step program or obtain a sponsor. She did not obtain a sponsor until June 2007. The mother was terminated from parenting classes for failure to attend, and then was provided in-home parenting education. The parenting instructor expressed concerns about her ability to parent a special needs child. The mother denied needing the classes. She later received positive evaluations from the instructor at her teen parenting school. [¶] . . . [¶]
“The review hearing was held in May and June 2007. The court heard testimony from multiple witnesses, including the parents, the social worker, maternal grandmother, and the mother’s drug treatment counselor. On June 21, the court concluded that Ariel would be at risk if returned to either parent and that reasonable services had been provided. The court terminated services and scheduled a permanency planning hearing. The parents filed the instant petition.” (Ariel Y. v. Superior Court, supra, G038872.)
We ultimately upheld the juvenile court’s decision to terminate services after 18 months and schedule a permanency planning hearing.
Additional Facts
While Ariel’s case was pending in the juvenile court, the mother resumed her relationship with the father. As noted above, she became pregnant again. (Ariel Y. v. Superior Court, supra, G038872.) Claudette was born in late May and taken into custody due to the open dependency case. The mother was 15 years old at the time. The mother contested Claudette’s detention, which was later upheld by this court. (In re Claudette B. (Feb. 20, 2008, G039066) [nonpub. opn.].)
SSA requests we take judicial notice of our prior opinion and the juvenile court records in Claudette B. Pursuant to Evidence Code sections 452 and 459, the request is granted.
“We note that Ariel’s case was still pending when Claudette was detained; indeed, the 18-month hearing in that matter began only 10 days before Claudette was born. Thus, the evidence taken regarding the mother’s progress in that matter was highly relevant, and we previously granted SSA’s request to take judicial notice of the records in that matter.
“SSA’s investigation also provided the court with further information on the mother’s current circumstances. She admitted that the father is still her boyfriend and that she had been visiting him in jail. She appeared to be in denial regarding the potential seriousness of his gang activity, referring to it as ‘silly.’ She denied the father’s gang involvement was dangerous and placed the child at risk. She justified her continual involvement with Jesus (despite a prior order that the have only monitored contact) by stating that Jesus is her only sexual partner and she wanted her child to have a sibling. The mother and father were involved in an incident of domestic violence in October 2006.
“With respect to drug use, the mother stated she had not used drugs since May 2005, when she discovered she was pregnant. She acknowledged the past use of marijuana, methamphetamine and crack. The mother’s drug counselor stated that she had consistently attended her program since December 2006. She did not test positive for drugs, but the counselor stated she needed to complete another four weeks of her plan plus eight weeks of relapse prevention. The mother consistently denied having a drug problem and insisted she did not need a 12-step program, but she had begun attending meetings.
“The mother had received prenatal care since December 2006. SSA reported the mother was nurturing, attentive and loving toward Claudette and considered her request to breast-feed as a sign of concern for the child. The foster parent stated that the mother was attentive and she had seen a change in her attitude, but noted the mother’s ‘judgment is that of a fifteen-year-old, which means the mother needs guidance.’
“The mother was living with her parents prior to Claudette’s birth. She continued to have truancy problems and her teacher reported she put forth minimal effort. The maternal grandmother acknowledged driving the mother to visit the father in jail, but she recognized the danger his gang membership could pose and thus opposed their relationship.
“To comply with her case plan for Ariel, the mother had completed seven sessions of in-home parenting education after being terminated from classes. The parenting educator told SSA that while the mother listened and participated, the educator was not convinced she understood everything. The mother denied needing the classes, and the educator expressed concern these comments showed the mother did not take the classes seriously. She was given a certificate ‘for making some progress.’
“There were also concerns about the mother’s visits with Ariel. She was not always consistent in her feeding and diapering, and she failed to work as prescribed on Ariel’s special needs. Indeed, she refused to acknowledge that Ariel was blind and developmentally delayed. She expressed the belief that Ariel did not have significant medical issues, contrary to doctors’ reports.” (In re Claudette B., supra, G039066.)
Ariel’s Section 366.26 Hearing
Ariel’s section 366.26 hearing was continued a number of times, and eventually took place in March 2008. SSA submitted a number of reports prior to the hearing, and overall, little had changed. Ariel continued to have significant medical issues, requiring therapy and the probability of additional surgeries. The mother continued to demonstrate a lack of understanding about Ariel’s special needs.
SSA reported that visits, which were twice a week for 90 minutes, were somewhat uneven. At a September 2007 visit, Ariel flinched and pulled away when the mother tried to kiss her. At times she would not reach for mother or go to her freely. At other times, she was more open to affection. She called the visitation monitor “mom” and referred to the mother and her daycare provider as “mom” or “mamma” and to her caretakers as her parents. While visiting with both Claudette and Ariel, the mother would focus on Claudette.
In October 2007, SSA further reported: “Though the mother’s attention is well received by the child, and the child enjoys being held, the child has been observed to go freely to others, including strangers in the lobby, former caretakers, and the transporters. The child’s visits with the mother consist of playtime, affection, reading books, coloring, and watching her in the visitation room. The mother has not shown an ability to consistently ask about the child’s daily life, does not always tend to the child’s physical needs, does not consistently show an understanding of the needs of the child given her age and abilities, does not consistently have an awareness of what the child can understand and perform, is not always attentive to the child, and does not always comfort the child.” In a January 2008 update, SSA noted that “these fun visits do not rise to the level that, should parental rights be terminated, the child would suffer permanent harm . . . .”
As SSA noted, there were other issues that arose during visits. The mother did not work on speech therapy activities, rejected the social worker’s request not to give the child formula, and applied an adult version of a scar cream to the child’s skin. To her credit, however, SSA noted that the mother “does consistently state her love for the child . . . . She consistently speaks to the child in a positive way, shows a concern for [the] child’s fears and uncertainties, and tries to the best of her own age ability to anticipate the child’s needs.”
As to the mother’s circumstances, she continued to express a desire to reunite with the father, who was being held at an immigration detention center, when she turned 18. She continued to live with her siblings, who were on formal probation, and her parents. In November, SSA reported that the family therapist had reported unsatisfactory progress on the mother’s academic goals, family conflict, and the grandparents obtaining employment. The mother’s teacher reported that she did not show initiative at school.
In January 2008, the mother went to Mexico, apparently to visit the father, despite an order prohibiting contact. She missed two weeks of school and two visits with Ariel. SSA reported that the maternal grandparents seemed unconcerned, and the therapist described the mother as impulsive and the grandparents as lacking strength. In February, the mother stated that her parents had driven her to Las Vegas and consented to her marriage to a new boyfriend.
Ariel continued to progress well with her caretakers. They had completed a home study, were bonded with Ariel and committed to adopting her. Ariel appeared to be attached to them in turn. SSA reported that Ariel had “thrived in the stable and loving home” and had “greatly benefited” from her caretakers “consistent and appropriate care, structure and love.”
At the section 366.26 hearing, the court heard testimony and argument. The court found that the mother had visited Ariel regularly despite some gaps “due to some impulsive and erratic behaviors and poor decisions.” The court found credible the social worker’s testimony that the mother’s relationship with Ariel was of a friendly visitor rather than parental, and further noted that the mother had not progressed beyond monitored visitation. The court also found credible testimony that Ariel was hesitant to approach the mother at times and that she detached easily at the end of visits. Overall, the court did not find the mother to be a credible witness. The court further found that Ariel had bonded to the current caretakers, and that the benefit of an adoptive home significantly outweighed any benefit of a relationship with the mother. Finding it likely that the child would be adopted, the court terminated the mother’s parental rights. The mother now appeals.
II
DISCUSSION
Appointment of a Guardian Ad Litem
The mother argues that she was 14 years old when she gave birth to Ariel, but that she was never appointed a guardian ad litem. Section 372, subdivision (a) of the Code of Civil Procedure states: “When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” Although not automatically applicable to the dependency context, we may look to this requirement for guidance. (In re Josiah Z. (2005) 36 Cal.4th 664, 678-679.)
Respondent apparently concedes the argument that appointing a guardian ad litem is required when the parent is a juvenile herself. (In re M.F. (2008) 161 Cal.App.4th 673 (M.F.).) Respondent argues, however, that the failure to appoint a guardian ad litem was harmless. Exactly which harmless error standard should apply is unclear. (In re James F. (2008) 42 Cal.4th 901, 911, fn.1.) Even assuming the standard is harmless beyond a reasonable doubt, we find that the error was harmless in this case.
In M.F., the court found that because the mother’s “attorney did not contest any of the findings or orders in this matter, the failure to appoint a guardian ad litem for [the mother] cannot be deemed harmless under any standard.” (M.F., supra, 161 Cal.App.4th at p. 681.) The facts in M.F. are thus far from the facts here. The record clearly reflects a history of contested hearings, including appellate proceedings, to protect the mother’s interests. The mother attended all significant hearings and testified. SSA’s representatives was cross-examined. In M.F., services were ended at the six-month review without argument that the time for reunification should be extended. (Id. at p. 681.) Here, the reunification period lasted 18 months and could not statutorily be extended further.
While the mother argues that she was prejudiced by the lack of a guardian ad litem, she fails to argue just how she might have been prejudiced. Nor does she point to anything in the record that might demonstrate how, with a guardian ad litem present, the outcome might have been more favorable to her. Indeed, the mother cannot make such a showing. “‘It is the duty of a guardian ad litem to protect or defend a suit, as the case may be.’” (In re Christina B. (1993) 19 Cal.App.4th 1441, 1452.) No such protection was needed here. This case has been vigorously litigated on the mother’s behalf, and we find any error in failing to appoint a guardian ad litem to be harmless.
Benefit Exception
The mother argues the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)), typically known as the benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence rule. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Ibid.)
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing by the parent that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) The parent must prove a substantive positive emotional attachment such that the child would be “greatly harmed” if deprived of the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.) The showing is difficult to make when the parent has never moved beyond supervised visitation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Respondent does not contest the trial court’s finding that the mother met the first prong of the exception. The second prong of the exception, however, is far more troublesome for the mother. The court must determine whether a child would benefit from continuing the relationship with the parent, balancing “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., supra, 27 Cal.App.4th at p. 575.)
There was more than substantial evidence from which the court could conclude that any benefit to Ariel would be outweighed by a permanent, stable home. The court found credible the social worker’s testimony, which concluded that the mother had not established a parental role. Moreover, the mother showed a continuing and persistent immaturity and unwillingness to address Ariel’s special needs. Ariel has never lived in her mother’s home. She had developed a strong bond with her caretakers, who were willing to adopt her. Thus, none of the evidence suggested that Ariel had such a strong emotional connection to the mother that she would suffer in “great harm” if it was severed. Indeed, the evidence supported a conclusion that the mother was not more than a “friendly visitor” to Ariel. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The court, therefore, did not err in concluding that the benefit exception did not apply.
III
DISPOSITION
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.