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In re B.B.

California Court of Appeals, Second District, Second Division
Apr 2, 2009
No. B208018 (Cal. Ct. App. Apr. 2, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK63310Sherri Sobel, Judge.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.B.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant S.C.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.


CHAVEZ J.

In this consolidated appeal, J.B. (father) and S.C. (mother), the parents of B.B. (minor) (born April 1998), challenge the juvenile court’s orders denying father’s request for a stay under the Servicemembers’ Civil Relief Act (50 U.S.C. Appen. § 501 et seq.) and denying mother’s petition, under Welfare and Institutions Code section 388, seeking to return minor to her custody. Both parents also appeal from the order terminating parental rights. We affirm the juvenile court’s orders.

All further statutory references are to the Welfare and Institutions Code, unless stated otherwise.

BACKGROUND

1. Section 300 Petition/Detention

On May 12, 2006, the Department of Children and Family Services (DCFS) filed a petition under section 300 on behalf of then eight-year-old minor and his siblings, four-year-old N.G., and 15-month-old T.V. The petition alleged that mother’s mental and emotional problems, refusal to participate in psychiatric treatment or take psychotropic medication, and illicit methamphetamine use, placed the children at risk. DCFS had been alerted after mother threatened to kill herself. The petition further alleged that C.V., mother’s male companion and the father of T.V., had physically abused minor.

Minor’s siblings are not subjects of this appeal.

In a May 10, 2006 interview with a DCFS social worker, mother admitted to using speed and cocaine consistently for the past three years. She said that she has been diagnosed as bipolar and has been receiving mental health treatment and medication for that condition. She had missed her last therapy appointment and had not taken her medication for one to two weeks.

At the detention hearing held on May 12, 2006, the juvenile court found father to be minor’s presumed father. Father’s whereabouts were unknown at the time, as were the whereabouts of N.G.’s father. Mother stated that father had not seen minor for one and a half years, and she had no contact information for him. The juvenile court ordered the children detained in foster care.

2. Jurisdiction/Disposition

At the time of the jurisdiction/disposition hearing on June 2, 2006, father’s whereabouts remained unknown, and efforts were underway to locate him. Minor and his siblings were placed together with C.V.’s relatives.

DCFS reported that there had been three prior referrals for the family -- one in 1999, alleging that minor was a victim of neglect, and twice in July 2005, alleging that all three children were victims of mother’s instability and that the family home was in an unclean and unsanitary condition. The disposition of the first referral was unknown, and the allegations in the other two referrals were deemed unfounded.

Mother admitted to being hospitalized three times for treatment of emotional and mental problems. Her last two hospital admissions, in 1993 and 2005, followed attempts to harm herself by consuming an entire bottle of aspirin and by slitting her wrists. Mother was receiving psychiatric and psychological treatment and participating in substance abuse counseling and appeared committed to maintaining her treatment schedule to improve her emotional stability. She was also enrolled in parenting classes and was compliant with random drug testing. She had twice tested negative for illicit substances. Mother was visiting with the children for two hours twice a week and had not missed any scheduled visits. She was consistently appropriate with the children during visits and telephoned the children every day between 7:00 and 7:30 p.m.

Minor was enrolled in elementary school and had been receiving individual counseling services previously arranged by mother. He was in good health and was not exhibiting symptoms of emotional or mental stress, although he appeared to be developmentally behind in basic self care related to bathing, cleaning, and dressing himself.

On July 5, 2006, Mother waived her right to a trial on the section 300 petition, and the juvenile court sustained an amended petition based on mother’s mental and emotional problems, mother’s drug use, and C.V.’s 10-year drug abuse history. The court declared minor and his siblings to be dependents of the juvenile court and ordered them suitably placed. The juvenile court further ordered reunification services for mother, as well as parent education, drug counseling and testing, individual counseling, and psychiatric treatment.

3. Progress and Review Hearings

By the time of the October 3, 2006 review hearing, both father and the father of N.G. had been located. Father was serving in the United States Army and had been enlisted for one year. He was stationed at Fort Hood in Texas and could not attend the hearing. In a telephone call with the DCFS social worker, father stated that he last saw minor two or three years ago, and that he wanted to be back in minor’s life. He also said that he wanted to write to minor. On the day of the hearing, DCFS filed an ex parte application on father’s behalf requesting family reunification services.

Minor and his siblings remained placed with C.V.’s relatives, who were finding it difficult to care for them. The relatives reported that minor was difficult to work with and did not do his homework or follow directions. DCFS suggested leaving the other children as placed and moving minor to the home of his maternal grandmother. Minor expressed feelings of sadness during his therapy sessions and said that he missed mother and would like to know who his father is. When told that father wanted to contact him, minor became excited.

Mother was enrolled in parenting classes, individual counseling, and drug treatment and was cooperative and compliant with all program requirements. She was stable on psychotropic medication and tested negative on all four of her random drug tests to date. Mother had monitored visits with minor and his siblings two times a week and telephoned the children regularly.

At the October 3, 2006 hearing, the juvenile court appointed counsel for father and ordered family reunification services for him, including parenting classes and conjoint counseling sessions with minor at the discretion of minor’s therapist. The court also ordered monitored visits for father and gave DCFS discretion to grant unmonitored visits if minor’s attorney concurred. The juvenile court expressly noted that father had not requested a stay under the Servicemembers’ Civil Relief Act.

At the six-month review hearing held on January 7, 2007, DCFS reported that minor was in his second foster home placement since moving, in November 2006, from his placement with relatives. He was adjusting well to his current foster home. Minor was having some behavioral issues at school, where he was sometimes disruptive and had angry outbursts in class. He was continuing to participate in therapy sessions to address these problems.

Mother was in compliance with her case plan and had completed a parenting program and a six-month substance abuse program. She continued to random drug test and had tested clean for seven months. She was also continuing to take her psychotropic medication and her mental health condition was stable. She had three monitored visits with minor since his most recent placement. Mother was unemployed and residing in the home of her mother. DCFS had determined that the home was not safe for the children to live in, as it was not clean, lacked electricity in the kitchen and living room, and its walls and floors were in need of repair. The DCFS social worker encouraged mother to apply for assistance benefits and provided her with referrals for shelters and other affordable housing options. Despite DCFS’s urging, mother had made little effort in the previous three months to locate suitable housing, employment, or assistance.

Father was stationed in Fort Hood, Texas, and was scheduled to be deployed to Iraq in 2007. He had not enrolled in any parenting classes, nor had he contacted DCFS. He had not made any telephone contact with minor. Although father had told the DCFS social worker in September 2006 that he wished to write to minor, he had not done so. When the social worker telephoned father to ask about a letter to minor, father said that he was a “procrastinator” and had been meaning to write but kept forgetting to do so. Father sent a letter to minor in early December, and also sent Christmas gifts later that month. Minor was excited to receive both the letter and the gifts.

The juvenile court continued the matter to February 2007 for a contested hearing as to whether the children could return to parental custody. By the end of January, mother had obtained temporary employment as a dental receptionist and was hoping to be hired on a permanent basis. She had also undertaken, in conjunction with C.V. and her mother, cleaning, repairing, and remodeling the home she shared with her mother in order to make it habitable for the children. Because the home would not be ready by the next hearing date, DCFS recommended that the children remain in their placements but that mother be granted unmonitored visits. At the February 5, 2007 hearing, the juvenile court found that all parents were in compliance with the case plan, and that all parents had made significant progress toward resolving the problems that led to the removal of the children from the home. The court ordered unmonitored day visits for mother, liberalized visits for the siblings’ fathers, and further reunification services for all parents.

In April 2007, DCFS reported that it had liberalized visits for mother and for the fathers of T.V. and N.G. Mother was now permitted six hours of unmonitored visits per week. Although both the fathers of N.G. and T.V. took advantage of the liberalized visitation schedule, mother did not. She continued to visit minor’s siblings only once a week for two hours, despite encouragement from the social worker and caretaker to spend Saturdays with them as well. Mother’s visits with minor had become sporadic; she visited with him only twice a month, for two to three hours. At an April 26, 2007 hearing, the juvenile court further liberalized the siblings’ father’s visits, ordered that mother have unmonitored day visits for six hours per week, and ordered that father’s visits remain the same -- monitored with DCFS discretion to liberalize.

At a 12-month review hearing convened on June 28, 2007, DCFS reported that minor remained well placed with his caregiver. The caregiver reported an incident that had occurred in May when she entered the room minor shared with another male foster child and found minor in the other boy’s bed. The incident was reported to the child abuse hotline and to the police department, but no action was taken other than to remove the other boy from the foster home.

Mother’s visits with minor remained inconsistent, and she sometimes cancelled on the day of the scheduled visit. The DCFS social worker encouraged mother to visit on a more consistent basis for longer periods of time, but mother cited transportation problems as the reason for her sporadic visits with minor. In response, the social worker contacted the foster family agency and the foster mother in order to find a more convenient meeting place for mother. The foster family agency’s social worker requested that mother contact her so they could determine a mutually convenient location; however, mother did not do so. Minor had no visits with father, but father spoke with minor by telephone on a monthly basis.

Mother continued to randomly drug test, had 21 negative tests, but missed five tests (once in September 2006, twice in November 2006, once in January 2007, and once in February 2007). DCFS reevaluated mother’s home and found it to be unsafe for the children’s return.

The juvenile court ordered minor’s siblings returned to the custody of their respective fathers but ordered that minor remain in foster care. The court ordered continued reunification services for mother. The juvenile court further ordered DCFS to inform father that he may call minor at least three times a month and that he was entitled to in-person visits with minor.

An 18-month review hearing was convened on December 27, 2007. Minor was in a new foster home placement, in which he was thriving. He had one monitored visit with father in November 2007.

Mother continued to randomly drug test and all tests to date were negative. She missed two tests, one in July 2007, and another in November 2007, and was advised that a missed test is considered a “dirty” test. Mother had been terminated from individual counseling because of missed appointments. The social worker encouraged mother to re-enroll and provided her with referrals. The condition of mother’s home had improved. The walls were completely repaired and painted, the floors had new carpet, and the kitchen had a working refrigerator, stove, and sink.

DCFS recommended that minor’s siblings remain with their respective fathers and that the juvenile court terminate its jurisdiction over them. DCFS further recommended that minor remain in foster care and that he be referred for a section 366.26 hearing. The juvenile court followed the recommendation, terminated jurisdiction over the siblings and awarded their fathers physical custody. The court referred minor’s case for a section 366.26 hearing and permitted mother monitored visits plus two hours per week of unmonitored visits.

At the December 27, 2007 hearing, father’s counsel requested a 90-day stay pursuant to the Servicemembers’ Civil Relief Act on the ground that father had been deployed to Iraq in November. The juvenile court denied the request, noting that father had failed to reunify with minor during the preceding 18 months, had failed to provide a letter from a commanding officer or any other information showing that his military service status interfered with his ability to comply with court orders to participate in parenting classes, conjoint counseling with minor, and visitation. The court then asked mother about father’s contact with minor throughout the child’s life. Mother stated that father had been present during minor’s first six years, but had subsequently lost contact with the child. Although father was aware of minor’s location at all times, he had failed to send letters, Christmas gifts, or birthday gifts for the past three years. He had recently begun telephoning minor on a monthly basis.

4. Mother’s Section 388 Petition and Section 366.26 Proceedings

On March 24, 2008, mother filed a section 388 petition requesting custody of minor. In its response to the petition, DCFS acknowledged that mother was continuing to participate in random drug testing and that all recent tests had been negative. DCFS noted that although mother had missed a total of 13 tests during the reunification period, she had tested on a consistent basis since January 2008. Mother had re-enrolled in individual counseling, after being terminated in December 2007 for missing scheduled appointments. Mother had participated in five individual sessions, and her therapist reported that mother worked hard in therapy and appeared to be making progress. Mother’s counseling was again terminated in April 2008, however, because of problems with her insurance. She was on a waiting list to receive counseling services at a different location. Mother continued to receive mental health services. She appeared to be stable and in compliance with her medication schedule. The juvenile court set the matter for a hearing.

On April 24, 2008, the juvenile court held a combined hearing under section 366.26 and on mother’s section 388 petition. DCFS reported that minor’s current caregiver, with whom minor had been placed since August 2007, was willing to adopt minor in the event mother failed to reunify with him. The caregiver acknowledged that minor had a relationship with his biological mother, and stated that if the adoption were to proceed, she would not deny minor the opportunity to have contact with mother, so long as it was in minor’s best interest.

Minor was doing very well in the caregiver’s home and no longer exhibited some of the behavioral problems he had experienced in previous foster homes. When asked whether he would like to be adopted by his current caregiver in the event he is unable to reunify with mother, minor replied that he did not know whether he would prefer to be with his mother or the current caregiver, but that he would like to be adopted by the caregiver if he cannot return to his mother. He also stated that he is happy in his current home. The juvenile court continued the matter for a contested hearing on the section 388 petition and under section 366.26.

Mother and minor had unmonitored visits, which minor enjoyed. The caregiver reported, however, that mother had cancelled several visits, which caused minor to become angry and disappointed. On one occasion, mother told the caregiver that she could not attend the visit because she had a flat tire, and minor expressed both disappointment and disbelief at mother’s stated reason for cancelling the visit. Minor had no visits with father, who was scheduled to be deployed to Iraq on March 5, 2008.

On the date of the continued hearing, May 8, 2008, DCFS informed the juvenile court that during a recent telephone call, mother had questioned minor about why he did not want to return to her custody. Minor was very upset after the call, and in the ensuing days said that he wanted to be dead. When a DCFS social worker telephoned mother about the incident, mother became irate and hung up on the social worker. The juvenile court further continued the matter and ordered monitored visits and monitored telephone calls for mother.

The juvenile court denied a second request by father’s counsel for a 90-day stay under the Servicemembers’ Civil Relief Act. The court noted that father had been represented by counsel at all times, that services had been made available to him, and that he had ample opportunity to parent minor during the past nine years of the child’s life, but had not done so. The juvenile court further noted that the social worker had indicated by way of affidavit that she had contacted father by telephone, not in Iraq, but in Virginia, informing him of the upcoming hearing to terminate parental rights. Father had confirmed that he was aware of the hearing date and the nature of the proceedings and that he was represented by counsel. The social worker advised father to contact her if he had any further questions, and father did not do so. The court denied father’s request for a stay but continued the matter to June 26, 2008.

At the continued hearing on June 26, 2008, DCFS reported that the adoptive home study for minor’s current caregiver had been approved. DCFS further reported that minor said that he wanted to remain living with his caregiver and did not want to return home to mother. The juvenile court again continued the matter.

On July 10, 2008, the date of the continued hearing, DCFS reported that minor had said he was happy his caregiver wanted to adopt him. He said he wanted to remain with his caregiver because he believes he would have a better life with her, but that it was a difficult decision for him because he wants to continue seeing mother. He said that he believed mother had changed, and that she seemed calmer and less grouchy and agitated. Minor said he wanted unmonitored visits with mother because he felt he would be safe with her alone. At the conclusion of the hearing, father’s counsel reiterated the request for a 90-day stay, which the juvenile court denied. The court then continued the matter for another two weeks.

On July 23, 2008, the juvenile court convened for the hearing on mother’s section 388 petition and to terminate parental rights under section 366.26. DCFS reported that minor’s caregiver wanted to adopt minor, who wanted to remain in her care while continuing to visit with mother. Minor’s caregiver had stated her intention to allow visits between minor and mother and had discussed with the social worker a post-adoption contract providing for such visitation. Father’s attorney requested another stay under the Servicemembers’ Civil Relief Act, which the juvenile court again denied.

The juvenile court received into evidence DCFS’s reports and heard testimony from mother. Mother testified that since filing the section 388 petition she was attending regular mental health and individual therapy sessions and was consistently taking medication prescribed by her psychiatrist. She did not, however, offer into evidence any letters or other documentation from either her psychiatrist or her therapist. Mother further testified that although she has been diagnosed as bipolar, she does not have any current symptoms. She acknowledged her outburst in a telephone conversation with the DCFS social worker a few months ago and said that she would now react differently and more calmly. She said she regularly visits with minor every two weeks, and that more frequent visits were difficult because of transportation problems. Mother said that if the visits were liberalized, she would take minor to places such as Magic Mountain and Chuck E. Cheese, and that she wanted to talk to minor, spend quality time with him and bond with him. Mother said that she continues to drug test twice monthly, has done so consistently since January, and has tested clean for two years. She also said that she had successfully completed a drug treatment program and a parenting class. She acknowledged that loneliness, unemployment, and coping with her children had triggered her drug abuse and that she learned to cope with these issues in therapy and by attending weekly Alcoholics Anonymous meetings. Mother was currently unemployed because drug testing and court hearings interfered with a regular work schedule.

After hearing argument from the parties, the juvenile court denied mother’s petition, stating that minor’s best interests would not be served by the proposed change of order. The court noted that although mother had made progress in addressing her drug abuse and mental health issues, she had provided no supporting evidence from her therapist and other mental health care providers. The juvenile court also cited minor’s stated desire to remain with his current caregiver.

With regard to father’s request for a stay under the Servicemembers’ Civil Relief Act, the juvenile court observed that there was no evidence that father had ever played a major role in minor’s life. Although father was represented by counsel and had notice of the proceedings, he never contacted DCFS, never requested contact with the minor, and never requested custody. The juvenile court concluded that father’s defense was not materially affected by his military service.

The juvenile court then turned to the issue of terminating parental rights. The court acknowledged that minor loved mother and wanted to continue visiting with her, and that these factors were sufficient to trigger an exception to adoption. The court emphasized, however, that minor clearly stated that he wanted to remain living with his current caregiver and did not want to be removed from her care. The juvenile court found that minor was adoptable, that the benefits of a stable adoptive home outweighed any benefit minor might derive from preserving mother’s parental rights, and ordered that parental rights be terminated. Mother and father filed separate appeals, which were subsequently consolidated.

DISCUSSION

I. Servicemembers’ Civil Relief Act

Father contends a 90-day stay was mandatory under the Servicemembers’ Civil Relief Act, and that the juvenile court erred by denying his application for a stay. Alternatively, father argues that if a stay was not mandated by the statute, the juvenile court abused its discretion by not granting one. Mother joins in father’s arguments.

The Servicemembers’ Civil Relief Act provides that a military servicemember who is a party to a civil proceeding is entitled, upon application, to a stay of the proceedings for at least 90 days. The statute provides in relevant part:

“(b) Stay of proceedings

“(1) Authority for stay. At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

“(2) Conditions for stay. An application for a stay under paragraph (1) shall include the following:

“(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear.

“(B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.”

(50 U.S.C. Appen. § 522(b).)

If the requirements for a stay application are met, a stay is mandatory. (George P. v. Superior Court (2005) 127 Cal.App.4th 216, 224 (George P.).) “The stay is required whenever there is a showing of how military duty materially affects a servicemember’s ability to appear in the action supported by a letter from the servicemember’s commanding officer. [Citation.]” (Ibid.)

Father concedes that his stay application did not include a letter or other communication from his commanding officer. The statute plainly states that an application for a stay must include both a letter or other communication setting forth facts showing how current military duty requirements materially affect the servicemember’s ability to appear, and a letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized at the time of the letter. Father’s stay application did not comply with the statutory requirements; accordingly, a stay was not mandated.

Because the mandatory stay provisions of the Servicemembers’ Civil Relief Act were not triggered in this case, the decision whether to grant a stay under the statute was within the discretion of the juvenile court. (50 U.S.C. Appen. § 522(b)(1); George P., supra, 127 Cal.App.4th at p. 225.) Under the circumstances presented here, the denial of a stay was not an abuse of discretion.

When father was located in October 2006, he was appointed counsel and was accorded family reunification services and visitation. Throughout most of the proceedings, father was stationed in the United States, until his deployment to Iraq in 2008. During that time, he wrote to minor only once and had one in-person visit. Although father was informed that he could call minor at least three times a month, he telephoned minor no more than once a month. He did not enroll in the court ordered parenting class, nor did he offer any explanation as to why he was unable to do so. In short, father did almost nothing in connection with the dependency case. Father was represented by counsel, received notice of proceedings, and was even contacted telephonically by the DCFS social worker about the section 366.26 hearing. Despite numerous opportunities to do so, father made no showing as to how his military service impeded his ability to comply with the case plan or to appear in the proceedings. The juvenile court’s denial of father’s request for a stay under the Servicemembers’ Civil Relief Act was not an abuse of discretion. (Christine M. v. Superior Court (1999) 69 Cal.App.4th 1233, 1244.)

II. Mother’s Section 388 Petition

Mother contends the juvenile court abused its discretion by denying her section 388 petition to return minor to her custody. Father joins in this argument.

Section 388 provides in relevant part: “Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made.” To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. (§ 388; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570(h)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A juvenile court’s determination on a petition brought under section 388 will not be disturbed on appeal absent a clear abuse of discretion. (Stephanie M., at p. 318.)

“Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.)

The juvenile court in this case concluded that granting mother’s petition to return minor to her custody was not in minor’s best interest. Factors to be considered in determining what is in the best interests of a child under section 388 include “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

Here, mother’s drug addiction and mental illness were serious problems that led to minor’s removal from her care. Mother made substantial progress in addressing these problems, completing a parenting course and drug treatment program, testing negative for drugs, and participating in individual counseling. She was subsequently terminated from individual counseling, however, for lack of attendance. Although mother had re-enrolled in counseling by the time of the section 388 petition, she had attended sessions for only one month and presented no letters or other evidence from her mental health care providers in support of her petition.

Mother’s visits with minor had also been inconsistent. Minor was disappointed by mother’s missed visits and once expressed skepticism at her stated reason for cancelling a visit. Minor himself also made clear that he wanted to continue living with his foster mother and did not want to go home to mother. Substantial evidence supports the juvenile court’s determination that returning minor to mother’s custody was not in minor’s best interest. The court’s denial of mother’s section 388 petition was not an abuse of discretion.

III. Termination of Parental Rights

Once a juvenile court finds by clear and convincing evidence that a child is likely to be adopted, it must terminate parental rights unless an expressly enumerated statutory exception applies. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) The exception at issue here provides that the court may refrain from terminating parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)

We review the juvenile court’s ruling on whether an exception applies to termination of parental rights pursuant to section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is reasonable, credible, and of solid value to support the order. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) The evidence must be considered “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.]” (In re Autumn H., supra, at p. 576.)

Mother bears the burden of proving that the beneficial relationship exception to terminating parental rights applies in this case. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.) “[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more than merely some benefit to the child by continuing the parent child/relationship. That relationship must be “a substantial, positive emotional attachment such that the child would be greatly harmed” if the relationship were severed. (Ibid.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Factors that the juvenile court should consider when making this determination include “[t]he 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., supra, at p. 576.)

Minor was 10 years old at the time of the section 366.26 hearing. Although he shared a bond with mother and wanted to continue visiting her, he was unequivocal about his wish to remain living with his foster mother and to be adopted by her. Minor acknowledged that the decision was a difficult one because of his attachment to mother, but that he felt safe in his foster mother’s care and that he believes he would have a better life with her. Since moving into his foster mother’s home, minor had thrived, and he no longer exhibited some of the behavioral problems he had experienced in the past.

Mother’s interaction with minor throughout the case had been mixed. Although minor enjoyed visiting with mother, her visits were inconsistent at times, and minor had been angry and disappointed by missed or cancelled visits. Mother had also upset minor during a telephone call in which she questioned why he did not want to return to her care, and in the days following the call, minor had stated that he wants to be dead.

Substantial evidence supports the juvenile court’s determination that mother had not met her burden of showing that terminating her parental rights would be harmful to minor and that preserving her relationship with minor outweighed the benefits of a stable adoptive home. The juvenile court did not err by concluding that the exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(B)(i) did not apply in this case.

DISPOSITION

The juvenile court’s orders denying father’s request for stay under the Servicemembers’ Civil Relief Act, denying mother’s section 388 petition and terminating parental rights are affirmed.

We concur:BOREN P. J.ASHMANN-GERST J.


Summaries of

In re B.B.

California Court of Appeals, Second District, Second Division
Apr 2, 2009
No. B208018 (Cal. Ct. App. Apr. 2, 2009)
Case details for

In re B.B.

Case Details

Full title:In re B.B., a Person Coming Under the Juvenile Court Law. v. J.B., et al.…

Court:California Court of Appeals, Second District, Second Division

Date published: Apr 2, 2009

Citations

No. B208018 (Cal. Ct. App. Apr. 2, 2009)