Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ107040. Charles J. Koosed, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Minors.
Gaut, J.
Mother appeals an order terminating her parental rights to her four children under Welfare and Institutions Code section 366.26. She argues that her parental rights should not have been terminated because the juvenile court should have applied the beneficial parental relationship exception and beneficial sibling relationship exception to termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(i) & (v)).
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Former section 366.26, subdivision (c)(1)(A), is now section 366.26, subdivision (c)(1)(B)(i). Former section 366.26, subdivision (c)(1)(E), is now section 366.26, subdivision (c)(1)(B)(v).
We conclude mother waived these issues on appeal by not asserting them in the trial court. Furthermore, mother did not meet her burden of establishing the exceptions applied. Accordingly, we affirm the judgment.
1. Procedural and Factual Background
Mother has four children: E.G., a daughter, born in 2000, when mother was 17 years old; C.G., a son, born in 2002; E.C.G., a son, born in 2003; and I.C.G., a son, born in 2004. With the exception of E.C.G. and I.C.G., the children have different fathers, who are not parties to this appeal. When mother gave birth to her fourth child, I.C.G., she was a 21-year-old, single mother, living in a Sober Living Women and Children shelter with her children. Mother had used methamphetamine since she was 14 years old. The biological fathers of two of her children were being deported and another biological father was in prison for murder. After being deported, E.G.’s father was killed in 2005.
A. Previous Dependency Case
When E.C.G. was born in October 2003, Child Protective Services received a referral from a hospital social worker. Mother and E.C.G. had both tested positive for methamphetamine and mother showed little interest in E.C.G. Nevertheless, mother was permitted to retain custody of her children until the Department of Public Social Services (DPSS) intervened in December 2003.
On December 2, 2003, the DPSS filed a juvenile dependency petition under section 300, subdivisions (b) and (g), alleging mother’s whereabouts were unknown, she had been continuously abusing drugs, and she had failed to provide the children with a stable living environment. She repeatedly left the children with relatives and frequently moved with her children to different friends’ homes. The children’s fathers also failed to provide for their children. E.G. and C.G. were placed in foster care. E.C.G. was placed with a paternal aunt. Mother visited the children weekly but missed and was late to some of the visits.
In April 2004, mother was living at MFI Recovery Center, participating in a 90-day substance abuse prevention program, and had completed a parenting course and attended group drug counseling. As of August 2, 2004, E.G., C.G., and E.C.G. remained in foster care.
The children were returned to mother in September 2004. A month later, mother gave birth to I.C.G. At the time, mother was living at a sober living facility with her children. Mother was discharged from the MFI program in October 2004 due to her lack of participation in the program.
In January 2005, the DPSS filed a nondetention petition for I.C.G. The petition alleged that the children had been neglected, mother failed to provide them with adequate care and support, mother had not completed her court ordered case plan, and I.C.G.’s father was incarcerated. The social worker reported that E.G., C.G., and E.C.G. appeared to be closely bonded to mother but mother was struggling to take care of the four children. Her financial situation was dismal. She reportedly was at risk of relapsing.
Mother’s situation improved. She was employed and seemed to have addressed her substance abuse problem. In November 2005, the juvenile dependency cases as to the four children were terminated. All four children were living with mother in a sober living home.
B. Current Dependency Case
In April 2006, mother and her children were evicted for failing to pay rent. Mother stayed with the children at various motels and friends’ homes. Mother began leaving her children with paternal relatives.
On June 7, 2006, mother was arrested and incarcerated for possessing methamphetamine for sale. Just as mother and her friends were about to smoke methamphetamine in the presence of C.G., the police entered the motel room and arrested mother. Mother stated she was a “drug addict.” C.G. was placed in a foster home. E.G. remained at her paternal grandmother’s home where mother had left her. E.C.G. and I.C.G., who were staying with a paternal aunt, were placed with nonrelative caretakers.
On June 9, the DPSS filed a juvenile dependency petition under section 300, subdivisions (b) and (g) on behalf of the four children, alleging that mother was abusing drugs, had been leading a transient lifestyle, had failed to protect and supervise the children, and was currently incarcerated for 180 days.
As of July 2006, E.C.G. and I.C.G. were placed together in a confidential foster home. C.G. was placed in another foster home. E.C. remained with her paternal grandparents. C.G. tended to be violent, hitting himself and others. He told his foster mother that his aunt and mother had hit and yelled at him. E.C.G. and I.C.G. got into fights and had to be moved to another foster home.
At the jurisdiction/disposition hearing on July 3, 2006, the court found the petition allegations true and ordered the children removed from mother’s custody. The court ordered reunification services for mother and approved a case plan requiring mother to complete a substance abuse treatment program and parenting class, and participate in random drug testing. The court authorized family visits while mother was in county jail. Mother completed a parenting class while in jail.
The DPSS social worker reported in the January 2007 status review report that the children had face-to-face telephone visits with mother in jail, without physical contact. When mother was released in September 2006, she did not attend scheduled visits with the children. On one occasion she visited E.C.G. and I.C.G. during a visit scheduled for paternal grandfather. During the visit, she became upset when the children called their foster caregiver, “mommy.” In November 2006, E.G. said she was happy to see mother but wanted to continue living with her paternal grandparents because mother would not take care of her properly. In December 2006, mother attended another visit with her children, which went well.
According to the April 2007 addendum report, mother was visiting the children bi-weekly and was interacting with the children appropriately. In June 2007, the court authorized overnight and weekend visits with the children. According to the July 2007 status review report, mother’s visits were sporadic. Mother participated in an MFI substance abuse program and completed two phases of the program. In the July report, the social worker concluded that mother was still unable to provide the children with a stable, safe, and nurturing home. The court continued reunifications services. The court also authorized overnight and weekend visits, conditional upon mother receiving a suitable home evaluation.
In September 2007, mother told the social worker she believed she would not be able to complete the MFI substance abuse program and said she wanted C.G.’s paternal grandfather to adopt all her children. The social worker lost contact with mother in November 2007.
According to the December 2007 18-month status review report, E.C.G. and I.C.G. were living together in a foster home and E.G. remained with her paternal grandparents. C.G. had had multiple placements due to behavioral problems and in August 2007, was placed in another foster home. The social worker reported that the children should not be returned to mother because of her lack of involvement in reunification services and her discharge twice from the MFI substance abuse program due to too many absences and because she had three positive drug tests in September 2007. Mother had weekly supervised visits with the children but no weekend or overnight visits because she did not have a stable home.
In December 2007, mother contacted the social worker and said she thought it was too late to recover the children. Mother requested E.C.G. and I.C.G. placed with mother’s sister in Missouri. The social worker contacted mother’s sister, who said she was willing to adopt E.C.G. and I.C.G., and that mother had moved to Missouri in January 2008 to straighten out her life.
In December 2007, C.G. was placed with paternal grandmother, who stated that she would adopt C.G. if family reunification failed. E.G. continued to live happily with her paternal grandparents, who were willing to adopt her.
At the February 2008 review hearing, the court terminated reunification services and set the section 366.26 hearing (.26 hearing). Mother was not present at the hearing. Mother had moved to Missouri, hoping all the children would be placed with her sister in Missouri.
Following the hearing in February 2008, mother cancelled all of her scheduled visits with her children. However, she maintained regular telephone contact with E.G. and C.G.
The June 2008.26 hearing report stated that E.C.G. and I.C.G. remained with their foster family, with whom they had lived for about two years. An evaluation of mother’s sister’s home in Missouri was initiated under the Interstate Compact on the Placement of Children (ICPC) as a backup plan if adoption of E.C.G. and I.C.G. by their current caregivers failed. E.C. remained with her paternal grandparents with whom she had been living on and off since birth. C.G. was happily living with his paternal grandmother.
E.G.’s prospective parents were open to allowing appropriate contact with E.G.’s birth mother. As of May 2008, mother reportedly had sporadic visitation and telephone contact. E.G. had not had any visitation with her siblings, but had occasional telephone contact.
C.G.’s prospective mother agreed to make arrangements for C.G. to maintain contact with his biological relatives, including allowing supervised visits with his birth parents. E.G. and C.G.’s prospective parents also agreed to arrange for E.G. and C.G. to visit each other one weekend a month. There was no such agreement as to the other children, E.C.G. and I.C.G., because their caretakers could not be reached by phone.
The.26 hearing on June 5, 2008, was continued because mother could not be located for purposes of notice of the.26 hearing. Mother was eventually located in county jail.
In September 2008, the children’s prospective adoptive parents participated in mediation to discuss postadoption visitation between the children. E.C.G. and I.C.G.’s prospective adoptive parents did not wish to enter into a written voluntary postadoption agreement for sibling visitation. However, they verbally agreed to share pictures of the children and information important in the children’s lives. E.G.’s and C.G.’s prospective adoptive parents, who were relatives of the children, agreed to allow C.G. and E.G. to have a weekend overnight visit each other once a month.
At the contested.26 hearing on October 1, 2008, the court considered the DPSS’s hearing reports. Mother opposed placing I.C.G. and E.C.G. for adoption. She did not object to termination of parental rights and adoption of E.G. and C.G. Mother did not offer any evidence. The children’s attorney informed the court that all of the children’s foster parents were open to continuing visits between the children. The court found that the four children were likely to be adopted and terminated parental rights.
2. The Beneficial Relationship Exceptions to Adoption
Defendant contends the trial court erred in rejecting the beneficial parental and sibling relationship exceptions to adoption. Mother forfeited her objection by not asserting in the trial court that these exceptions applied. Furthermore, on the merits, we conclude the trial court properly found the exceptions did not apply.
A. Waiver
When a parent fails to raise one of the specified exceptions to termination at the section 366.26 hearing, the issue is forfeited on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 402-403 (Erik P.).) In Erik P., a parent failed to raise the sibling relationship exception at a section 366.26 hearing. The parent nevertheless asserted the applicability of the exception on appeal. (Id. at p. 402.) In language equally applicable here, the court stated: “If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court’s determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this court’s role of reviewing orders terminating parental rights for the sufficiency of the evidence.” (Id. at p. 403.) The court in Erik P. therefore concluded that the parent “waived his right to raise the exception.” (Ibid.)
Because mother did not raise any of the exception below and did not submit any evidence, she has forfeited the claim on appeal. Even if mother did not forfeit the contention, she failed to meet her burden of establishing the exceptions.
B. Beneficial Parental Relationship Exception
Section 366.26, subdivision (c) provides that when a juvenile court determines that a child is likely to be adopted, it shall terminate parental rights and select adoption as the child’s permanent plan, unless it finds that one of the exceptions specified in subdivision (c)(1)(B(i)-(v) provides a “compelling reason” for finding that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1); see In re Celine R. (2003) 31 Cal.4th 45, 53.) The burden is on the parent to show that termination of parental rights would be detrimental to the child under one of these exceptions. (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).)
One of the section 366.26, subdivision (c)(1)(B) exceptions is the beneficial parental relationship exception: “The parents or guardians 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).) The “benefit” to the child, which would justify an exception to the termination of parental rights, is not, however, some mere incidental benefit, but must be a benefit which “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 re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also S.B., supra, 164 Cal.App.4th at p. 297.) Frequent and loving contact is not enough, in and of itself, to establish the exception under section 366.26, subdivision (c)(1)(A). (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
The court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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 Brandon C. (1999) 71 Cal.App.4th 1530, 1534; S.B., supra, 164 Cal.App.4th at p. 297.)
Interaction between a 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. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (Ibid.)
“Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the... exceptions listed in section 366.26, subdivision (c)(1). [Citation.] We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because the parents had the burden of proof, we must affirm unless there was “indisputable evidence [in their favor] — evidence no reasonable trier of fact could have rejected....” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Mother did not meet her burden of proof in establishing that one or more of the exceptions existed. At the.26 hearing, she did not assert that any of the exceptions to adoption applied. She also did not present any evidence. On the other hand, the trial court’s rejection of the exceptions is supported by substantial evidence. The evidence established that mother did not maintain regular visitation and contact with the children. Although she initially regularly visited the children during the first juvenile dependency case and succeeded in recovering custody of her children, mother relapsed in June 2006, and the instant juvenile dependency case commenced.
Thereafter mother never fully overcame her addiction to meth. She initially regularly visited her children during the instant dependency case but ultimately gave up recovering her children and stopped visiting them. In December 2007, she told the social worker she thought it was too late to recover her children. After the February 2008 hearing, mother cancelled all of her scheduled visits with E.C.G. and I.C.G., and did not visit E.C. or C.G., although she maintained telephone contact with them. At the.26 hearing in October 2008, mother did not object to termination of her parental rights and adoption of E.G. and C.G., whose prospective adoptive parents were relatives. She was opposed, however, to placing I.C.G. and E.C.G. for adoption since they were not placed with relatives.
Regardless of whether mother once held a close bond to the children, she failed to present any evidence establishing that she maintained regular visitation and contact with her children. She essentially stopped visiting the children approximately eight months before the.26 hearing in October, and although she continued to call E.G. and C.G. on occasion, she did not maintain sufficient contact with them to support the beneficial parental relationship exception to adoption, particularly since mother informed the court she did not oppose termination of her parental rights to E.G. and C.G. and adoption.
There was also insufficient evidence showing that the children would benefit from continuing their relationship with mother. The children had not lived with mother for over two years and mother had stopped visiting them. The children were happy living with their prospective adoptive families. E.G. and C.G. were living with relatives. E.G. had been living with her paternal grandparents for over two years and wanted to remain there. C.G. was placed with his paternal grandfather in December 2007, and was doing well in his prospective adoptive home. E.G. and C.G.’s prospective adoptive parents were open to allowing the children to remain in contact with mother and agreed to arrange for the children to visit each other one weekend a month. I.C.G. and E.C.G.’s prospective adoptive parents indicated they were also willing to allow sibling visits with E.G. and C.G., but not with mother, due to problems arising in the past from contact with mother. I.C.G. and E.C.G. were happy living with their prospective adoptive parents, with whom they had been living for over two years.
Mother’s reliance on S.B., supra, 164 Cal.App.4th 289for the proposition the beneficial parental relationship exception nevertheless applied is misplaced. S.B. is distinguishable in that in the instant case mother did not maintain regular visitation and contact with the children. (Id. at p. 300.) She also did not overcome her drug addiction and fully comply with her case plan as did the appellant in S.B. (Id. at pp. 298, 300.)
Here, mother no longer had regular visits and contact with the children and there was no evidence the children still had a close, significant, positive, emotional attachment to mother that would outweigh the benefits of the children living in permanent, stable homes. The trial court thus did not err in finding the beneficial parental relationship exception did not apply.
C. Beneficial Sibling Relationship Exception
Mother also contends the court should have applied the beneficial sibling relationship exception. Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights where termination would cause a substantial interference with the sibling relationship. “If termination will substantially interfere with the sibling relationship, section 366.26, subdivision (c)(1)(E) [now, subdivision (c)(1)(B)(v)] lists numerous factors the juvenile court is to consider in determining whether the circumstance of any given case warrant the application of the exception. First a juvenile court must consider the nature and extent of the relationship, including, but not limited to, factors such as 1) whether the child was raised with a sibling in the same home, 2) whether the child shared significant common experiences, or 3) whether the child has existing close and strong bonds with a sibling. If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption. [Citations.]” (Erik P., supra, 104 Cal.App.4th at p. 403; see also § 366.26, subd. (c)(1)(B)(v); In re L.Y.L. (2002) 101 Cal.App.4th 942, 949.)
The parent seeking to assert the sibling relationship exception bears the burden of asserting and demonstrating its existence. (Erik P., supra, 101 Cal.App.4th at p. 401.) As with the beneficial parental relationship exception, mother fails to meet her burden of establishing the exception applies. Mother argues the exception applies because termination of her parental rights would sever the children’s relationships with each other since they are placed in different prospective adoptive homes and E.C.G. and I.C.G.’s prospective adoptive parents are nonrelatives. But mother failed to present any evidence in the court below supporting her position and did not assert the exception in the trial court.
Furthermore, there was substantial evidence supporting the trial court’s rejection of the beneficial parental relationship exception. There was evidence all of the prospective adoptive parents were willing to allow the children to visit each other. Also, E.G. and C.G.’s prospective adoptive parents agreed to allow E.G. and C.G. to have overnight weekend visits once a month.
There also was evidence indicating E.G. and C.G. were not particularly close to their younger half-siblings. E.G. and C.G. lived with E.C.G. for two months after E.C.G. was born, and later lived with E.C.G. and I.C.G. from September 2004 to June 2006, when E.C.G. and I.C.G. were quite young. When the four children were removed from mother, E.G. and C.G. were separated from E.C.G. and I.C.G., and have not lived with them since then. According to E.G.’s prospective adoptive mother, there was no visitation with E.C.G. and I.C.G., and only occasional telephone contact.
The evidence does not show a “‘compelling reason’ for concluding that the termination of parental rights would be ‘detrimental’ to the child[ren] due to ‘substantial interference’ with a sibling relationship.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) E.G. and C.G. would be permitted to maintain their relationship with each other, as it had existed most of their lives. They would continue to remain in contact with each other and have monthly visits. They might be permitted to visit their other younger siblings but, if not, the security and stability the children would all gain living in permanent, loving homes outweighed the benefits of maintaining their sibling relationships.
Substantial evidence supports the trial court’s rejection of the beneficial sibling relationship exception. The children’s need for a stable permanent home far outweighed any detriment the adoptions might cause to the children’s sibling relationships.
3. Disposition
The judgment is affirmed.
We concur: Richli, Acting P. J., Miller, J.