Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super.Ct.No. J200507
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Andrea Renee St. Julian, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
Petitioner Brenda D. (mother) is the mother of Brianna M., born in 2000. Mother appeals the juvenile court’s orders denying her Welfare and Institutions Code section 388 petition and terminating her parental rights to Brianna under section 366.26. Brianna’s father, Mark M. (father), joins in mother’s arguments, as they apply to him, and seeks reinstatement of his parental rights. Father does not raise any arguments apart from those asserted in mother’s appeal.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother and father never married.
Mother contends the juvenile court erred in denying her a full evidentiary hearing on her section 388 petition for modification. She also argues the parental bond exception (§ 366.26, subd. (c)(1)(A)) applies and claims she did not knowingly waive the exception. Alternatively, she argues that her attorney’s failure to raise the exception in the trial court constitutes ineffective assistance of counsel.
We reject mother’s contentions and thus affirm the judgment as to both parents.
The facts and procedure, up until mother filed her petition for extraordinary writ in this case challenging termination of reunification services, are taken from this court’s opinion filed on October 4, 2006, denying mother’s writ petition (case No. E040686).
A. Detention and Jurisdiction
On January 30, 2005, mother and Brianna’s father got into an argument. Father threw mother to the floor and choked her. Mother left the motel room and eventually called the police. When the police arrived, father kept them at bay by holding Brianna, then four years old, off the ground with one arm while pointing a seven- to eight-inch knife at her neck with the other. Father eventually gave up and was arrested and sentenced to two years in state prison.
The San Bernardino County Department of Children’s Services (department) received a report of the knife incident, and first contacted mother and Brianna on March 2, 2005. At that time, mother said she did not believe that father had held a knife to Brianna’s neck. Mother also admitted she drank on a regular basis. When asked if she would participate in family maintenance services, mother said that she would take Brianna to counseling, but would not seek treatment for alcoholism or enter therapy to address domestic violence.
Mother also stated that they had recently moved to California from Pennsylvania. The social worker contacted child welfare officials in that state and discovered that the family had been placed on a family maintenance plan in 2001, after a domestic violence dispute between the parents, resulting in Brianna, then 11 months old, sustaining a bump on her head from a door falling on her. The Pennsylvania court had ordered that visitation between father and Brianna be supervised by a third party. It was also reported that father had a long criminal record and that both parents had admitted to alcoholism.
The department in the instant case initially decided to file a dependency petition and offer family maintenance services to mother. However, after mother reported that she had been taking Brianna to visit father since he had been incarcerated, the department decided to recommend that Brianna be detained.
At the March 17, 2005, detention hearing, Brianna was detained, the court ordered the department to provide mother with reunification services, and mother was to have supervised visitation and undergo an immediate drug test.
On May 16, 2005, the juvenile court declared Brianna to be a dependent child, and found true allegations in the section 300 petition that mother and father had failed to protect Brianna (§ 300, subd. (b)), that Brianna had suffered serious emotional damage from her father holding a knife to her throat (§ 300, subd. (c)), and that father had made no provision for her support because he was incarcerated (§ 300, subd. (g)). The court ordered mother to participate in the reunification case plan and authorized two visits per week. The case plan included parenting classes, anger management, psychological counseling, and outpatient substance abuse treatment.
Mother married Mr. D in June 2005. Although mother initially told the social worker that Mr. D did not have a criminal history, he refused to have his fingerprints taken (live scan) so that Brianna could spend Thanksgiving with the family. The social worker discovered that Mr. D had a criminal record spanning from 1981 to 2004, including burglary, vehicle theft, battery, contempt of court, inflicting corporal injury on a spouse, arson, attempted murder, and violations of parole. Included in this history were two active warrants for disorderly conduct and solicitation for prostitution. Mr. D never did have a live scan performed.
“Live Scan is an electronic fingerprinting system that provides a vehicle for quickly checking an individual’s criminal background. (See Health & Saf. Code, § 1522.04.)” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2005) 126 Cal.App.4th 144, 149, fn. 2.)
B. Six-Month Review Hearing
At the December 13, 2005, six-month review hearing, the juvenile court ordered six more months of reunification services. Mother had completed parenting, anger management, and domestic violence programs. However, mother had missed 10 out of 22 days of her outpatient drug treatment program, had refused to drug test once, had turned in “many” diluted tests, and had once tested positive for methamphetamine. The court altered the case plan to require three substance abuse meetings per week, in addition to drug testing twice per month. The court also ordered that mother’s counseling sessions specifically address “protecting her child from men and the fact that she chooses to have relationships with men who have domestic violence problems.”
C. 12-Month Review Hearing
The 12-month review hearing was held on June 8, 2006. In the status review report dated May 10, 2006, the department recommended that reunification services be continued. The report indicated that mother’s sessions with her drug treatment therapist were at first to be “extended a second time for an additional thirty days because of her poor attendance.” However, the therapist ultimately decided that mother “had many issues aside from substance abuse that would be better served by continuing individual psychotherapy with her current therapist” at Caritas Counseling Services (Caritas). Mother attended a single individual counseling session with a new therapist at Caritas on January 4, 2006. The therapist reported that mother explained how she had done nothing wrong and should have her daughter returned to her, and that mother “exploded” when questioned about her marriage to Mr. D, stating that she did not understand why the department was concerned about him being involved with Brianna. Mother did not return to that therapist, but instead arranged counseling at Kaiser. Mother also testified at the 12-month hearing that she had attended only one counseling session at Kaiser at the time of the 12-month review hearing. Mother attended an intensive 14-day chemical dependency recovery program at Kaiser and was attending alcoholism recovery meetings several times per week.
The social worker reported that by November 2005, mother had completed 12 sessions with a previous therapist, but had not told the therapist that her current husband had a criminal and domestic violence background. Mother failed to drug test on February 15 and March 31, 2006. She tested positive for opiates on February 22, 2006.
In an addendum report dated May 25, 2006, the department changed its recommendation to termination of reunification services. The change was based on the following information: First, the social worker had received two recent drug tests, dated March 2 and April 18, 2006—both were diluted; and second, Brianna’s once positive behavior and attitude had deteriorated significantly after a recent visit from mother. Mother had shown Brianna pictures of mother’s new home, and a room set up for Brianna, including a new comforter, television, and DVD player. Mother promised Brianna she would be returning to her soon to live in the new house. Brianna told the social worker that mother had been “telling secrets” during the twice-weekly visitation, including that Mr. D would be her “new dad” and that his adult children would be her sisters.
At the June 8, 2006, contested 12-month hearing, the social worker testified that mother had consistently attended the twice-weekly visitation with Brianna and that she initially appeared motivated to complete the reunification plan. However, mother had become “defensive and difficult” after the six-month review hearing when the social worker and court explained to her that she had additional services to complete and issues to address before Brianna could be returned to her. The social worker described the additional issues that remained to be addressed: First, Mr. D would have to complete counseling to address the domestic violence incidents in his past; second, the social worker would need to speak with mother’s therapist to “go over specific issues that mom has in dealing with what type of men she brings into the home and how those type of men can place the child in danger”; third, mother would need to finish addressing her substance abuse issues and have consistent, valid, and negative drug tests; and fourth, mother would need to attend conjoint counseling with Brianna.
The juvenile court concluded that mother had not made substantive progress in the reunification plan and there was not a substantial probability that Brianna would be returned to mother within 18 months of the initial detention. For those reasons, on June 8, 2006, the juvenile court terminated reunification services, and scheduled a selection and implementation hearing (.26 hearing) under section 366.26.
Mother filed a writ petition, challenging the order terminating reunification services. This court denied mother’s petition.
In August 2006, the department concluded in a combined section 366.26 report and adoption assessment that Brianna was adoptable due to her young age, good health, and lack of behavioral issues. Brianna was currently in counseling to help her accept that she would not be living with mother again and was doing well with coming to terms with this. At this point, the department’s Adoptions Division could not recommend terminating parental rights because Brianna’s foster parents had decided they were too old to adopt Brianna.
According to the .26 hearing report, filed in September 2006, no prospective adoptive parents had been identified. The department was investigating placement of Brianna with out-of-state relatives.
D. Section 388 Petitions and Hearing
On December 13, 2006, mother filed a section 388 petition seeking to change the orders terminating reunification services and setting a .26 hearing. She claimed her circumstances had changed; she had completed her case plan objectives; she had benefited from the programs, and she had changed her lifestyle. She also alleged Brianna would benefit from granting the petition because she was Brianna’s biological mother, Brianna was bonded to her, and mother’s ability to protect Brianna had improved.
Attached to mother’s petition were various documents, including letters from Kaiser Permanente stating mother had completed chemical dependency recovery programs at Kaiser, had been meeting with a counselor twice a month, had tested negative for drugs on multiple occasions, and was making excellent progress. The juvenile court summarily denied mother’s petition on the grounds she had not sufficiently shown changed circumstances or that granting the petition was in Brianna’s best interests.
On December 29, 2006, mother filed a second section 388 petition essentially reasserting the same allegations contained in her first petition. The juvenile court denied the petition on the same grounds as the first petition, noting that the petition was merely a slight revision of the previous petition.
On January 29, 2007, mother filed a third section 388 petition, containing the same allegations contained in her previous petitions and adding that she had “access to a lifetime of resources and have developed coping skills and abilities that allow me to maintain a safe environment for myself and my daughter at all times.” Mother stated in the petition that Mr. D had completed the live scan process and had completed a chemical dependency and recovery program. Mother claimed she had completed her individual therapy program, was living a sober lifestyle, and had learned to identify signs of domestic violence. Attached to her petition were the same documents previously submitted, some of which she claimed her attorneys had failed to submit with her previous petitions.
The juvenile court found that Brianna’s best interests might be promoted by the new order requested in mother’s section 388 petition and that the petition stated a change of circumstances or new evidence. The court thus ordered that a hearing would be held on the petition, but limited the hearing by precluding testimony and decided the matter on the submitted papers.
On January 29, 2007, Brianna’s half-brother and half-sister (mother’s adult son and daughter) filed section 388 petitions, which the juvenile court denied on the grounds the petitions were duplicative of mother’s petition and did not raise any sibling issues.
In the department’s .26 hearing addendum report, filed on February 20, 2007, the department recommended termination of parental rights and placement of Brianna for adoption with her prospective adoptive parent, Mrs. S. Brianna had been placed with Mrs. S on October 31, 2006, and visitation with mother was reduced to once a week. She reportedly was doing well with her new family. After considering and investigating Brianna’s out-of-state relatives for placement, the department disapproved such placements.
The department filed an addendum report and adoption suitability study, stating that Mrs. S wished to adopt Brianna, and returning Brianna to her parents would place her at substantial risk. Brianna continued to visit with mother weekly but understood the concept of adoption and that she would be permanently living with her new family and not return to mother. The department recommended Mrs. S adopt Brianna.
In the department’s interim review report, filed on February 23, 2007, the department recommended denying mother’s section 388 petition. The department noted that mother’s husband, Mr. D, notified the department that he did not want to be live scanned because he had a criminal history, which included domestic violence offenses and two active warrants.
According to the interim review report, mother’s therapist at Caritas had recommended that mother participate in Phase II of the Matrix Institute substance abuse program and attend 12-step Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings. Rather than completing Phase II, mother completed a treatment plan and attended therapy at Kaiser, but it was unknown from the Kaiser reports as to the frequency of mother’s drug tests or the degree of mother’s progress in addressing her problem with her choice of men.
The department concluded mother’s marriage to Mr. D indicated mother had not benefited from the services provided and continued to be attracted to men posing a risk of harm to Brianna. Mother’s current residence was not suitable for Brianna due to Mr. D residing there.
The department further noted that a significant amount of time had passed since Brianna’s detention and mother still had not adequately addressed her substance abuse, mental health and domestic violence issues.
Before the court ruled on her third section 388 petition, on March 7, 2007, mother filed a fourth section 388 petition, stating she no longer lived with Mr. D and had filed for divorce, which would be final in six months. Mother alleged that Mr. D was “continuously domestically violent and at this point is no longer willing to help in maintaining a family in a safe and sober environment. As a result I have filed a restraining order . . . .” Mother provided a copy of her restraining order.
The juvenile court denied mother’s fourth section 388 petition on the ground her third section 388 petition was still pending and thus any new facts should be submitted in a declaration, not in a new section 388 petition.
On April 24, 2007, the juvenile court heard and denied mother’s third section 388 petition and then conducted a .26 hearing. During the hearing on the section 388 petition, mother’s attorney argued there were changed circumstances: Since the filing of the last section 388 petition, Mr. D no longer lived with mother; mother had filed for divorce; mother had obtained a restraining order against Mr. D; and Mr. D was in custody for spousal abuse.
The court explained this was not enough because mother also had to show that granting the petition was in Brianna’s best interests. Since mother had not completed her court-ordered treatment plan, Brianna could not be returned to her.
E. Section .26 Hearing
After denying mother’s section 388 petition, the juvenile court conducted a .26 hearing, found Brianna adoptable, terminated parental rights, and ordered Brianna placed for adoption.
2. Denial of Mother’s Section 388 Petition
Mother contends that the juvenile court erred in summarily denying her section 388 petition without an evidentiary hearing. We disagree.
A. Standard of Review
Section 388 permits a change in a previous court order upon a showing of (1) changed circumstances and (2) a showing that the change in the order might be in the best interest of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Under subdivision (c) of section 388, the juvenile court is required to hold a hearing on the petition only “[i]f it appears that the best interests of the child may be promoted by the proposed change of order, . . .” (§ 388, subd. (c).) Otherwise, the court may summarily deny the petition without a hearing. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
B. Sufficiency of Evidence Showing Prima Facie Case
The record shows that the juvenile court appropriately summarily denied mother’s first and second section 388 petitions, which were duplicative, because she failed to establish changed circumstances or that modifying the order terminating reunification services was in Brianna’s best interests. The fourth petition was also appropriately summarily denied because mother’s third section 388 petition was pending when mother filed the fourth petition. Mother does not dispute these orders summarily denying her first, second and fourth section 388 petitions. The instant appeal concerns the third petition.
The third petition contains many of the same allegations contained in mother’s previous petitions but adds that Mr. D completed the live scan process and a chemical dependency and recovery program. Mother also alleges she completed her individual therapy program, was living a sober lifestyle, and had learned to identify signs of domestic violence. Attached to mother’s petition are the same documents submitted with her other petitions.
The juvenile court ordered a hearing on the third petition, but would not allow testimony.
While the petition was pending, the department reported that Mr. D had notified the department that he did not want to be live scanned because he had a criminal history, which included domestic violence offenses and two active warrants. This indicated that mother’s circumstances had not changed. She had not addressed her problem of forming relationships with men who had criminal histories, which included domestic violence.
In addition, according to the department’s interim review report, mother did not follow her therapist’s recommendation that mother continue counseling provided by the department at Caritas and complete Phase II of the Matrix Institute substance abuse program. Instead, mother switched to therapy and rehabilitation at Kaiser through her own insurance because she was offended by the Caritas therapist’s inquiry into her marriage with Mr. D. Although mother attended therapy and completed a Kaiser rehabilitation program, the department was unable to determine the degree of mother’s progress.
However, during the pendency of mother’s third petition, mother’s circumstances changed when Mr. D was incarcerated for domestic violence. Mother informed the court under penalty of perjury in her fourth petition that she was no longer living with Mr. D; Mr. D was in custody; mother had obtained a restraining order against Mr. D; and mother had filed for divorce. Mother’s attorney also informed the court of these circumstances during the hearing on the third petition.
These circumstances concerning Mr. D constituted changed circumstances. But to establish a prima facie case requiring a hearing on mother’s petition, mother also was required to provide evidence that modifying the order terminating reunification services was in Brianna’s best interests. “It is not enough for a parent to show just a genuine change of circumstances under the statute.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
To understand the element of best interests in the context of a section 388 motion brought on the eve of a .26 hearing, as in this case, we consider the Supreme Court’s language in In re Stephanie M. (1994) 7 Cal.4th 295, in which the court stated that, after termination of reunification services and the setting of a selection and implementation hearing, “. . . 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 interests 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 interests of the child.” (Stephanie M. at p. 317.)
In Kimberly F., the court considered the following three factors in considering the best interests of the child: “(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. While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
In relying on these factors, however, the Kimberly F. court seems to focus primarily on the parent and has overlooked that by the time of the section 388 petition, the focus has shifted to the needs of the child, particularly the child’s need for permanency and stability. (Compare In re Stephanie M., supra, 7 Cal.4th at p. 317.)
In any event, even considering the Kimberly F. factors, the record supports the juvenile court’s finding that granting mother’s section 388 petition was not in Brianna’s best interests. As to the first Kimberly F. factor, the dependency proceedings in the instant case arose from a domestic violence incident committed by father, during which Brianna was traumatized and placed at risk of harm. Mother and father also had serious substance abuse problems. Although mother ended her relationship with father, shortly thereafter she became involved with another man, Mr. D, who, like father, had a substantial criminal history, which included domestic violence. Mother had a serious problem choosing violent men with criminal histories. She continued her relationship with Mr. D, and even married him, despite his criminal history and the risk of harm to Brianna.
As to Brianna’s bonds with mother and her prospective adoptive family, Brianna was bonded to mother, who had consistently visited Brianna throughout the dependency proceedings. But Brianna was also bonded to her prospective adoptive family. Brianna had not lived with mother for over two years, whereas she had been living with her prospective adoptive family for approximately six months and had received therapy to help her deal with the likelihood she would not return to mother. At the time of the section 388 hearing it thus would have been harmful to Brianna to sever her bond with her prospective adoptive family and return her to mother.
While the bond to Brianna’s prospective adoptive family (her caretaker) “cannot be dispositive . . ., lest it create its own self-fulfilling prophecy, our Supreme Court made it very clear in Jasmon O. [(1994) 8 Cal.4th 398, 408, 414-422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. [Citation.]” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) This is because, after termination of reunification services and the setting of a selection and implementation hearing, the parents’ interests in the child are no longer paramount. The focus has shifted to the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
As to the third factor, the degree to which the problems leading to the dependency proceedings might be easily removed or ameliorated was substantial, and the degree to which they actually had been resolved was uncertain at the time of the section 388 hearing. There was no evidence that mother had fully addressed her problem of choosing violent men, with criminal histories, who posed a risk to Brianna. There was also some question as to whether mother had fully overcome her substance abuse problem, although there was no indication of any recent relapses.
Even if mother had recently made progress by extricating herself from her relationship with Mr. D and her circumstances may have begun to change, her circumstances were not necessarily changed, and it was therefore not in Brianna’s best interests to grant the petition.
Under such circumstances, in which it was not in Brianna’s best interests to grant mother’s section 388 petition, the juvenile court did not abuse its discretion in denying mother a full evidentiary hearing on her petition.
Even assuming mother made a prima facie showing under section 388 to trigger an evidentiary hearing on her petition, the order denying an evidentiary hearing did not prejudice mother. Nothing would have been gained had the cause gone to a full hearing. The court conducted a hearing on the petition, with the exception of allowing mother’s testimony. Mother’s attorney, however, informed the court as to what mother most likely would have stated had she testified. Mother’s fourth section 388 petition and the department’s interim report also contained such facts concerning termination of her relationship with Mr. D.
We thus conclude that, even if the court had permitted testimony, it is not reasonably probable the outcome would have been any different. It is not likely that any additional evidence would have persuaded the court to find it was in Brianna’s best interests to grant the section 388 petition and reinstitute reunification services. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
3. Parental Bond Exception
Mother argues that her attorney should have asserted the parental bond exception (§ 366.26, subdivision (c)(1)(A)) to termination of her parental rights. During the .26 hearing, conducted right after the juvenile court denied mother’s section 388 petition, the court entered into evidence the department’s .26 hearing reports, addendum reports, adoption assessment, and adoption suitability study. Mother’s attorney, as well as counsel for the other parties, did not present any additional evidence and mother’s attorney did not argue the matter.
Mother claims she did not waive the parental bond exception since, had she been aware of it, she would have asserted it. She alternatively argues that her attorney’s failure to assert the exception constituted ineffective assistance of counsel (IAC).
Generally, an appellant waives or, rather, forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general waiver rule is “grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629-630.) This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Doers at pp. 184-185; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) “‘Any other rule would “‘“permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.”’”’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
Although the loss of the right to raise a challenge on appeal due to failing to object in the trial court is often referred to as a “waiver,” the correct legal term for the loss of a right to raise an issue on appeal is “forfeiture,” because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the “‘“intentional relinquishment or abandonment of a known right.”’” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
In the instant case, mother’s attorney did not assert the parental bond exception. Mother’s argument that her waiver or forfeiture of the exception was ineffective because it was made by her attorney, is unavailing. “Trial counsel is authorized to exercise his independent judgment with respect to strategic litigation decisions. [Citation.]” (Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 510.) “[A] party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” (In re Horton (1991) 54 Cal.3d 82, 94 (Horton).) Just as in the criminal context, “counsel is captain of the ship. . . . ‘By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’” (Id. at p. 95, quoting People v. Hamilton (1989) 48 Cal.3d 1142, 1163.) Mother is not without recourse, however. She may assert IAC, as she has done in this case.
As to mother’s IAC argument, that contention also fails. In order to demonstrate IAC, “a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694.) Because we are limited to the record on appeal, we must reject the contention that counsel provided ineffective assistance if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833, 880.)
The record sheds no light on why mother’s attorney did not argue the parental bond exception. Mother claims there simply could be no satisfactory explanation for her attorney’s failure to do so since she clearly had a close bond with Brianna and consistently visited Brianna throughout the proceedings.
The parental bond exception normally applies where “[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)(A); In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
We disagree that there was no satisfactory explanation for mother’s attorney not arguing the exception. Mother had the burden of proving that the beneficial relationship exception applied, and it was unlikely that she could meet that burden. (In re Derek W., supra, 73 Cal.App.4th at p. 826.) To do so, “[t]he parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.]” (Id. at p. 827.) The parents must also show that their relationship with the child “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.)
Mother’s counsel reasonably could have concluded that there was no point in asserting the exception because it was highly unlikely the court would have found the exception applied. The court had just denied mother’s section 388 petition on the ground mother had not made a prima facie showing that it was in Brianna’s best interests to grant the petition and reinstate reunification services. This indicated that the court did not find that mother’s relationship with Brianna outweighed the well-being and stability Brianna would gain in a permanent home with a new, adoptive family. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
We note that “[i]t is the extremely rare case where parents who are offered reunification services and then have them validly terminated at a referral hearing can successfully assert the (c)(1)(A) benefit exception.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255.) The instant case does not appear to be one of those rare cases.
We reject mother’s IAC contention on the grounds mother’s attorney’s failure to assert the parental bond exception did not constitute deficient representation under prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at p. 687.) In addition, it was not reasonably probable that, but for counsel’s failings, the result of the proceeding would have been any different. (Id. at p. 694.)
4. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King J.