Opinion
NOT TO BE PUBLISHED
Received for posting 7/5/11.
San Francisco City & County Super. Ct. Nos. JD05-3014, JD05-3015.
MARGULIES, J.
Appellants Carlos F. and Lorenzo F. (minors) are the children of respondent A.F. (Mother). They were detained in 2005 after Mother was arrested on drug charges and spent nearly all of the following five years in foster care. Although Mother initially struggled to overcome her personal problems, by 2010 her life was relatively stable, and she had developed a solid relationship with the minors through frequent contact and regular visitation. As a result, in a permanency planning hearing held that year, the juvenile court refused to terminate Mother’s parental rights in favor of adoption by the willing foster parent. We affirm that decision.
I. BACKGROUND
Brothers Carlos F. and Lorenzo F., then ages four and one, were the subject of dependency petitions under Welfare and Institutions Code section 300, subdivisions (b) and (j), filed January 18, 2005. The petitions alleged Mother had been arrested when drugs sales were found to have occurred in her home, she had an untreated substance abuse problem, and drugs were kept and used in the immediate vicinity of the minors. The minors were placed in foster care. Initially, Mother maintained only sporadic contact with them while she continued to struggle with drug abuse. Beginning in November 2005, however, Mother was free of drugs. Her conduct changed so substantially over the course of the following year that the minors were returned to her custody and the San Francisco Human Services Agency (Agency) recommended termination of the dependency proceeding.
All statutory references are to the Welfare and Institutions Code.
It was not to be. In January 2007, Mother was arrested after stabbing her boyfriend, and the minors were returned to their foster parent. The juvenile court denied Mother any further reunification services, a decision affirmed by this court in denying Mother’s petition for an extraordinary writ. (A.F. v. Superior Court (Sept. 25, 2007, A118359) [nonpub. opn.].) Because Mother maintained regular contact with the minors and the foster parent was unwilling to adopt them, however, the juvenile court declined to terminate parental rights and appointed the foster parent guardian after a permanency planning hearing in November 2007.
Late in 2008, when Carlos and Lorenzo were seven and four years old, Mother and the foster parent filed competing section 388 petitions to modify the permanent plan. Mother’s petition sought increased visitation as a prelude to the minors’ return to her custody. She contended the foster parent had made visitation difficult and attempted to undermine her relationship with the minors and asserted she could now provide them with a stable, safe home. The foster parent sought to adopt the minors. She denied attempting to undermine Mother’s relationship with the minors, claimed Mother’s compliance with the visitation order and her care for the minors had been erratic, and asserted she was now ready to become their parent. Postponements delayed a hearing on the cross-petitions until August 2009. In the meantime, the Agency filed a report effectively joining in the foster parent’s request. The Agency asked to reinstate the dependency petition, set a new permanent plan hearing, and allow the foster parent to adopt.
The evidence before the juvenile court at the hearing on the cross-petitions demonstrated the relationship between Mother and the foster parent had become contentious. The foster parent had proved to be a competent, caring parent and had created a stable, nurturing home for the minors. Mother had successfully overcome her drug abuse. While she had maintained regular contact with the minors, she struggled when placed in the role of their parent. She had custody of two children born to her after the minors were detained, and the four together were difficult for her to handle. Nonetheless, she, too, was a loving caretaker, and the minors had developed a strong and positive relationship with her, as with the foster parent. A clinical psychologist retained to perform a bonding study recommended an “open adoption, ” allowing the foster parent to adopt while retaining regular, structured visits with Mother. The juvenile court reinstated the dependency proceeding, slightly increased Mother’s visitation, identified adoption as the permanent plan goal, and set a permanency planning hearing for early 2010.
In preparation for the second permanency planning hearing, the Agency filed a report reaffirming its support for adoption. The Agency concluded the minors were well-integrated into the large household of the foster parent, which consisted of four other children in addition to the minors. Mother had made “every effort” to maintain contact with the minors, regularly participating in generally successful bimonthly overnight visits, but their “primary parental relationship” was with the foster parent. After living with the foster parent for nearly three consecutive years, they “appear[ed] to understand adoption as being able to live with their prospective adoptive parent forever and... want to live with her forever.” The Agency believed they “deserve the permanency of Adoption.”
At the hearing, the minors’ therapist testified that the children love Mother and are loved “passionate[ly]” in return. They share “a pretty good functioning mother-son relationship” that is “absolutely” important to the minors. When asked if the minors would be harmed by a termination of the relationship the therapist declined to answer directly, but over the course of a rambling response made clear his beliefs that it was “important” the minors continue to build their relationships with Mother, they should not be denied regular contact with her without a “pretty good reason, ” and “it would be hard” for the minors to be separated from her. Notwithstanding, the minors considered themselves part of the foster parent’s family and “benefit a great deal from that.” Because of the stability and permanence it offers, the therapist favored the minors’ adoption, but he also believed the minors’ relationship with Mother should continue.
The minors’ caseworker from the Agency testified that when the minors visit their mother, they “enjoy it.” She characterized their relationship with the foster parent as “parent-child” and their relationship with Mother as a “great visiting [parent] relationship, ” but she believed the relationship with Mother was “important” and “beneficial” to the minors and agreed with the therapist that the relationship should continue. Again like the therapist, the caseworker favored adoption because of the stability and permanence it offered the minors. She believed termination of Mother’s parental rights would not be “detrimental” because “there won’t be any changes in terms of their current placement, ” but she acknowledged it would “have some impact” and “bring... sadness” to the minors if they had no further contact with Mother. Mother testified that, in addition to regular personal visits, she spoke on the telephone with the minors nearly every night.
The commissioner hearing the matter declined to order adoption and terminate Mother’s parental rights, citing In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), which the commissioner concluded was “on all fours with our situation.” The commissioner found the therapist’s testimony that the minors’ relationship with Mother was important and should be maintained particularly persuasive.
The juvenile court adopted the commissioner’s ruling, denying the minors’ motion for a rehearing after reviewing the hearing transcripts. During the hearing, the court expressed some frustration that while “everybody agreed... there will be some hurt to the children” from a termination of parental rights, none of the witnesses were asked whether “serious harm” would result from cessation of contact with Mother. The court expressed confidence in the commissioner growing out of the commissioner’s familiarity with the matter, which allowed her to “know[] the parties” and weigh their testimony. Discussing the competing factors, the court noted that while there was no question the minors belonged with the foster parent, it was similarly undisputed the minors recognize Mother as “a mother figure, ” a status Mother had worked hard to achieve. Ultimately, the court held it could not “disagree with the Commissioner’s finding” that the decision should be guided by S.B. because “the record supports the conclusion that there would be harm” to the minors. The court’s denial was reflected in a written minute order, filed July 6, 2010.
II. DISCUSSION
The minors contend the juvenile court erred when it denied rehearing and abused its discretion in refusing to terminate Mother’s parental rights and permit their adoption by the foster parent.
A. The Rehearing Motion
The minors contend the juvenile court erred in denying the motion for a rehearing, arguing the court applied an incorrect standard of review.
Because a commissioner who acts without the consent of the parties can render only an advisory opinion, the parties may seek rehearing of the commissioner’s order before a judge of the superior court. (In re Damon C. (1976) 16 Cal.3d 493, 496 (Damon C.); Cal. Const., art. VI, § 22.) The decision to grant rehearing is governed by section 252. In addition to setting various time limits, section 252 states, in relevant part, “If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of those proceedings, grant or deny the application [for rehearing]. If proceedings before the referee have not been taken down by an official reporter, the application shall be granted as of right. If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted.” If rehearing is granted, the juvenile court affords the parties a new hearing and decides the matter de novo. (In re Mark L. (1983) 34 Cal.3d 171, 176.)
The law governing appellate review of a ruling on a motion for rehearing is summarized in Damon C., which states that the juvenile court judge must “base a decision to adopt those findings [of the commissioner] on data ‘sufficient for forming a judgment independent from that of the referee.’ ” (Damon C., supra, 16 Cal.3d at p. 496.) In addition, the judge must personally read the transcript and rule on the motion for a rehearing within the time period prescribed by section 252. Failure to meet these requirements results in the grant of rehearing as a matter of right. (Damon C., at pp. 496–497.) Contrary to the minors’ claim, Damon C. makes no provision for review beyond ensuring these procedural rules have been followed.
There is no question the procedural requirements of section 252 were met here. Because the juvenile court judge was in possession of a complete transcript from the permanency planning hearing, it had sufficient information to form an independent judgment. The court reviewed the transcript personally, heard the parties’ arguments, and rendered a decision on the motion for rehearing within the time frame established by section 252. So long as these procedural rules are followed, section 252 leaves the decision to grant or deny rehearing in the discretion of the juvenile court judge. (See In re Mark B. (2007) 149 Cal.App.4th 61, 80 [“Although a party may petition for rehearing of any referee’s order by a juvenile court judge, the judge may deny rehearing if the proceedings before the referee were officially transcribed”].)
Further, we find no abuse of discretion in the juvenile court’s decision to deny rehearing. The court reviewed the transcripts, and its comments at the hearing demonstrate it understood fully the issues involved. Taking the competing factors into account, the court concluded it “can’t disagree with the Commissioner’s finding” that the decision should be guided by S.B. We interpret this to mean the judge applied his own judgment and found no reason to disagree with the commissioner’s decision. Because the record before the court fully explored the relevant circumstances and the court applied an independent judgment, there was no abuse of discretion in its denial of a de novo rehearing.
We do not agree with the minors’ contention the juvenile court failed to evaluate the matter independently. It is true early in the hearing, the judge commented the commissioner had a long experience with the parties in the matter, and therefore was better positioned to evaluate the situation, and suggested his review was governed by a substantial evidence standard. Despite this, the court did not actually defer to the commissioner’s judgment or factfinding in making its ruling. Instead, as noted, the court made its own evaluation of the matter, which caused the court to reach the same conclusion as the commissioner.
We also find no reason to reject the court’s decision on the basis of an inadequate record. While it is true the court bemoaned the failure of the parties to press the experts on the issue of serious detriment, the record contained sufficient factual evidence from which the court could form a conclusion regarding the degree of harm that would follow from a termination of the minors’ relationships with Mother. There is no requirement for expert testimony on this issue.
B. The Commissioner’s Decision
The minors also contend the court erred in declining to terminate parental rights and continuing the guardianship.
Adoption is the strongly preferred permanent plan for dependent children who have not reunified with their parents. “After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child. A child has a fundamental interest in belonging to a family unit, which includes a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.] At the selection and implementation stage, the court has three alternatives: adoption, guardianship or long-term foster care. [Citation.] In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement.... Unlike adoption, a guardianship is ‘not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’ ” (In re Zachary G. (1999) 77 Cal.App.4th 799, 808–809.)
While there are statutory circumstances under which guardianship may be preferred over adoption, the situation must be compelling. “Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances [in section 366.26, subdivision (c)(1)(B)] provides a compelling reason for finding that termination of parental rights would be detrimental to the child.... The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)
As relevant here, under section 366.26, subdivision (c), the juvenile court may decline to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[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), hereafter subdivision (c)(1)(B)(i).) The beneficial parental relationship exception was explored thoroughly in In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), which remains the leading decision interpreting the exception. The father in Autumn H. was a physically abusive alcoholic with limited parenting skills. (Id. at p. 571.) Following his failure to reunify, he visited the child on about half of the opportunities offered, seeing her once every two weeks for about an hour without ever taking her from the foster home. He showed little interest in the child when not visiting and was viewed by her as a “ ‘play mate’ ” or “ ‘friendly visitor, ’ ” not as a parent. (Id. at pp. 572–573.) The father objected to the termination of his parental rights, contending he had “maintained regular visitation” and his daughter “would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
In rejecting the father’s argument, the court established the law governing application of the beneficial parental relationship exception: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.... The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at pp. 575–576.)
While we agree with the vast majority of courts that Autumn H. sets the standard for evaluating the parental exception, we agree with In re Jasmine D. (2000) 78 Cal.App.4th 1339, that it is appropriate to apply an abuse of discretion, rather than substantial evidence, standard of review to the commissioner’s ultimate decision. (Id. at p. 1351; see similarly In re C.B. (2010) 190 Cal.App.4th 102, 127.) In many ways, however, the designation is academic. As Jasmine D. notes, there is little practical difference between the two tests in these circumstances: “ ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ ” ’ ” (Jasmine D., at p. 1351.)
The case closest to the present situation, as the commissioner and the juvenile court recognized, is S.B. The father in S.B. was a Vietnam War veteran who suffered from posttraumatic stress disorder and poor physical health that impaired his ability to care for his child. (S.B., supra, 164 Cal.App.4th at p. 294.) The child was detained at age three years and placed with her grandparents after her parents were arrested for drug use. (Id. at p. 293.) The child’s detention proved to be a transformative event for the father. He complied with the dependency case plan, stayed drug-free, and regularly visited the child three times per week. The Agency wanted to return the child to his custody but concluded he was unable to care for her as a result of his poor physical and mental health. (Id. at pp. 293–294.) A bonding study found a “fairly strong” bond between parent and child and the “potential for harm” from terminating the relationship. (Id. at p. 296.) Although the social worker concluded the benefits of adoption outweighed the detriment from terminating the parental relationship, she also recognized losing her father would be a “ ‘huge detriment’ ” to the child. (Id. at p. 295.)
The court reversed the termination of parental rights, finding substantial evidence to support application of the subdivision (c)(1)(B)(i) exception on the basis of an emotionally significant relationship growing from frequent and loving visits between parent and child. Rather than a visitor or playmate relationship, the court found a true parental relationship, which had developed during the first three years of the child’s life, when she lived with her parents, and continued to develop during foster care. (S.B., supra, 164 Cal.App.4th at pp. 298–299.) In summarizing the basis for its reversal, the court concluded “[the father’s] devotion to S.B. was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father].” (S.B., at pp. 300–301.)
Since its publication, S.B. has been subject to criticism, particularly for its suggestion the exception applies if the child will merely “derive some measure of benefit” from the parental relationship. In In re C.F. (2011) 193 Cal.App.4th 549, 558–559, the court held that S.B. must be “confined to its extraordinary facts. [S.B.] does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact.” In C.F., the court found that a parent’s sometimes distracted weekly visits and frequent phone contact were insufficient to justify application of the exception, holding, “a parent must show more than frequent and loving contact or pleasant visits.” (Id. at pp. 554–556.)
While the issue is a close one, we conclude the court did not abuse its discretion in declining to terminate Mother’s parental rights and permit adoption. A very important factor is the simple duration of the relationship between Mother and the minors. Because the dependency proceedings have been unusually protracted, Carlos was nine years old and Lorenzo nearly six at the time of the permanency planning hearing. With the exception of the first few months of the proceeding, Mother has been a relatively constant presence throughout. The minors have therefore had an ongoing relationship with Mother for a substantial portion of their youth, during which they have come to accept her as a second mother.
Further, like the father in S.B., Mother has turned her life around during the course of the detention. The evidence of her maturation, continuing throughout the proceeding, is striking. By the time of the second permanency planning hearing, Mother had long since shed the burden of drug abuse and was able to support herself. She was in near nightly telephone contact with the minors and visited with them fairly frequently, despite having to travel a long distance. Were it not for the burden of caring for the two additional children she had given birth to in the interim, she might have been able to resume caring for the minors as a parent. As a result of the duration and quality of her relationship with the minors, it was deeper and more substantial than that of mere playmate.
The impact of Mother’s efforts was recognized by all three experts, the social worker, the author of the bonding study, and the minors’ therapist. They agreed Mother’s relationship with the minors had, at a minimum, elements of a parental relationship and termination of the relationship would be a detriment, although they differed about the degree of harm. All believed maintaining the relationship was in the minors’ best interests.
We recognize a case can be made for the termination of parental rights, given the strong statutory preference for adoption, the importance to the minors of a stable home, and the exceptional nature of their prospective adoptive parent. Nonetheless, given the foregoing circumstances, we find no abuse of discretion in the commissioner’s implicit conclusion that “regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent” and “the relationship [between Mother and the minors] promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) In affirming the commissioner’s decision, we do not mean to suggest it was the only possible decision, or even the clearly correct one. We are limited in our review to evaluating the commissioner’s exercise of discretion, and we find no abuse of that discretion in the commissioner’s carefully made decision.
The minors contend Mother failed the first prong of subdivision (c)(1)(B)(i), requiring her to “have maintained regular visitation and contact, ” because her contact with them was erratic for a period of time during the first two years after their detention. While there is no question Mother’s visitation was sporadic earlier in these lengthy proceedings, there is similarly no doubt that in the two years prior to the second permanency planning hearing Mother had maintained steady telephone contact with the minors and failed to visit only when transportation problems or conflicts with the foster parent made it difficult. The ultimate issue is whether Mother’s contact with the minors was sufficiently regular to establish a significant, positive emotional attachment, and it clearly was.
The minors emphasize the overriding importance to them of their foster parent’s care and nurturing and the lack of expert testimony they would be greatly harmed by the termination of their relationship with their Mother. The fact the minors’ relationship with their foster parent is now the primary relationship in their lives is not determinative. (S.B., supra, 164 Cal.App.4th at p. 299.) Nor can we say the court abused its discretion in concluding there would be great harm to the minors if their relationship with Mother were terminated. Mother is a near-daily presence in their lives. All of the experts testified that the relationship was important to them. While the minors unquestionably look to their foster parent to provide for their fundamental needs, both physical and emotional, the value of a close, supportive relationship with a biological parent should not be underestimated. Because of Mother’s loyalty and persistence, the minors are secure in the knowledge their biological mother loves them, giving them a sense of self-worth denied to far too many dependent children. The court did not abuse its discretion in concluding that taking away the foundation for that knowledge could have serious consequences.
III. DISPOSITION
The order of the juvenile court is affirmed.
We concur: Marchiano, P.J., Dondero, J.