Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. J183326 A. Rex Victor, Judge. Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
INTRODUCTION
In this appeal from an order terminating her parental rights to her daughter, Chelsey W., Deborah D. (mother) contends reversal is required because the court erred in failing to apply the “benefit exception” set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). Because mother failed to raise the issue below, it has been forfeited. However, even if the issue were not forfeited, the record does not support mother’s position. We shall therefore affirm the order.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The beneficial relationship exception to the termination of parental rights has recently been renumbered to section 366.26, subd. (c)(1)(B)(i), effective January 1, 2008. For purposes of clarity, we will refer to it as former section 366.26, subdivision (c)(1)(A).
FACTUAL AND PROCEDURAL BACKGROUND
Chelsey, who is developmentally delayed and also suffers from a severe seizure disorder, is now 12 years old. In July 2002, when she was seven, she was removed from mother’s custody after she was found wandering, unsupervised, near a freeway on-ramp located several blocks from her home. When the police brought Chelsey back home, they found the premises to be in an unclean and unkempt condition. Moreover, the police arrested mother after learning that she had an outstanding warrant for petty theft.
In April 2002, Chelsey underwent a medical procedure whereby she had a vagal nerve stimulator (VNS) implanted to control her seizures. Since then, the frequency of her seizures had decreased, and those which she did have responded to the implant. Before the implant, Chelsey would have been unable to unlock the door and the gate without becoming frustrated and alerting mother. In addition, due to the lessening of seizure activity and reduction in medications, Chelsey was beginning to exhibit new behaviors and seemed better able to retain information than before. As a result, Chelsey required closer supervision and the social worker apparently had some concerns as to whether mother would be capable of providing it.
Mother also has a son, William, who is two years older than Chelsey. By the time of Chelsey’s detention, William had been in long-term foster care for several years. He suffered from bipolar disorder with hyperactivity and delusions, and was removed from mother’s custody because she was unable to provide him with appropriate care.
A juvenile dependency petition was filed, alleging under section 300, subdivision (b), that Chelsey was at risk of substantial harm, and under subdivision (g), that mother was incarcerated and unable to provide care for Chelsey. In light of Chelsey’s medical condition, the San Bernardino Department of Children’s Services (DCS) determined it was necessary to place her in a “medically fragile” home. Accordingly, any foster home being considered for Chelsey’s placement would need to qualify by receiving special training in Chelsey’s illness as well as the use of medications and medical equipment. In August 2002, Chelsey was placed in a suitable home, where she remains today. Mother was provided with reunification services.
Chelsey’s father, who is a registered sex offender, was never married to mother. His whereabouts were unknown at the time the petition was filed and remained unknown during the course of these proceedings.
At a six-month review hearing in May 2003, the court found that mother had made moderate progress in her reunification plan, and ordered that services be continued for an additional six months. The court also ordered that mother be afforded liberal visitation with Chelsey, with overnight visits to be arranged by the social worker.
In November 2003, the 12-month review hearing was held. Mother had been having frequent visits with Chelsey by telephone and in person, and Chelsey looked forward to these visits. Mother wanted both Chelsey and William to be returned home, although it was unclear to the social worker how mother would be able to accomplish that. Mother had been compliant with both DCS and the foster mother but she was unable to maintain a stable residence; thus, the social worker determined it was unlikely that mother would be able to attend to Chelsey’s needs. Moreover, mother’s brother, who had been the primary caregiver for Chelsey’s maternal grandmother, had recently passed away, leaving mother to attend to the grandmother’s needs. Accordingly, the court terminated reunification services and ordered long-term foster care as Chelsey’s permanent plan. Visitation between mother and Chelsey was to be arranged by the social worker.
During the next three years, Chelsey remained in the same foster home. The foster family was said to have worked diligently with her. As a result, she was showing improvement in nutrition and hygiene, and had also shown tremendous progress in school. However, the foster parents were not ready for adoption, as they “wanted to keep the department involved to help deal with the mother.” Due to mother’s transient lifestyle, visitation with Chelsey was sporadic.
During Chelsey’s placement in her foster home, she was removed temporarily due to the illness of another child. She was returned after several months, with minimal disruption. The foster parents were happy to have Chelsey returned to their home.
Over the next few years, review hearings were held periodically and the court maintained the permanent plan of long-term foster care. However, in December 2006, DCS recommended the permanent plan be changed to adoption. According to the social worker’s report, the foster family “has grown to love Chelsey as their own daughter and has expressed a desire to adopt her and make her a permanent part of their family. Observing the minor’s behavior and interactions over time, the [social worker] has . . . concluded that Chelsey has forged a mutual bond and . . . believes that this is her family.” The social worker opined that in spite of the inconsistency in mother’s visitation, “Chelsey does not appear to be [a]ffected . . . which is probably due to the consistent care and love that she receives from the [foster] family.”
At a hearing on January 26, 2007, the court found that the plan of long-term foster care was no longer appropriate, and that it was in Chelsey’s best interests to consider terminating parental rights. The court referred the matter to mediation to resolve the issue of post adoption contact. An objection was made on mother’s behalf, although a contested hearing was not requested. Thereafter, mediation was held and no agreement was reached.
By this time, Chelsey had been in the same placement for five years. After services were terminated in 2003, mother’s visits with Chelsey continued to be sporadic. Chelsey was in a special education sixth-grade class and had shown considerable improvement, although she did have difficulty expressing herself verbally. Due to her mental retardation, Chelsey was not asked how she felt about being adopted; her foster parents explained that they felt she would have a limited understanding of the concept.
Mother did not appear at the permanency hearing held in June 2007. At the outset, the court commented, “I think we should all be grateful that prospective adoptive parents come forward to deal with the medically fragile child that has many disabilities, had the child five years and they offer more than most of us do towards our fellow citizens.” On behalf of her client, counsel for mother objected “for the record” to terminating parental rights. The court, having found clear and convincing evidence that Chelsey would likely be adopted, terminated parental rights. The court also set a permanent plan review hearing for December 13, 2007, opining that “the chances of the parents appealing are slim and none.”
DISCUSSION
A. By failing to raise the issue below, mother has forfeited her right to challenge the juvenile court’s finding that the benefit exception did not apply.
Mother’s sole contention on appeal is that the juvenile court erred in not finding applicable the parental benefit exception to termination of parental rights. That exception provides that parental rights shall not be terminated if “[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A).)
DCS contends that because mother did not raise this issue in the juvenile court, the issue has been forfeited. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) At the permanency hearing, mother’s counsel stated: “Your honor, on behalf of the mother, I’d object, for the record, on her behalf, to termination of her parental rights.” Counsel made no objection to any of the statements in the reports, nor did she argue the applicability of the former section 366.26, subdivision (c)(1)(A) exception.
In reply, mother asserts there was no forfeiture because the issue of the benefit exception was raised when DCS asserted in its assessment report that no exception applied, upon which the court relied in making its ruling. Thus, mother maintains that her attorney’s objection “should encompass a challenge to the termination of parental rights on appeal based upon an exception to adoption.” We cannot agree.
When a parent at a former section 366.26 hearing fails to assert subdivision (c)(1)(A) as a basis for precluding termination of parental rights, he or she forfeits the issue on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 402-403.) The rationale is that the failure “not only . . . deprive[s] 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; see also In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [juvenile court has no obligation to consider applicability of beneficial relationship exception sua sponte].) Furthermore, the parent has the burden of proving that termination would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Simply because an objection to termination of parental rights was made on behalf of mother does not, without more, constitute an assertion that the benefit exception applied. In the absence of evidence, or even argument, as to why the court should consider applying the exception, the juvenile court has no basis upon which to make its determination—and we have no basis upon which to perform our role. The issue is therefore forfeited.
B. Even if the issue was not forfeited, the record is devoid of evidence to support application of the benefit exception.
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, “‘[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]’” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
When the court finds by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption “unless it ‘finds a compelling reason for determining that termination would be detrimental to the child due to one or more’ of specified circumstances.” (In re Celine R. (2003) 31 Cal.4th 45, 49.) The parent opposing termination has the burden of showing that termination would be detrimental to the minor under one of the specified statutory exceptions. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) As previously indicated, the exception relevant here provides: “The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A).)
We review the juvenile court’s ruling on whether an exception applies to termination of parental rights under section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at p. 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), and 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.” (Autumn H., at p. 576.)
As frequently noted, some courts have applied the abuse of discretion standard. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying parental benefit exception is a “quintessentially discretionary determination.”].) However, “[t]he practical differences between the two standards of review are not significant. ‘[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.’. . .”’ [Citations.]” (Ibid.)
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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the former section 366.26, subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, “the 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., supra, 78 Cal.App.4th at p. 1348; italics added.)
On the record before us, there is no question that mother could not meet her burden. To support the first prong of the statute, i.e., maintaining regular visitation and contact with the child, she relies solely on visits which took place in the past. Twice in her opening brief she cites to a statement made in the social worker’s October 2003 report that Chelsey’s best interests would be served by continued contact and visitation with mother. She also cites to the record from April 2003, when Chelsey was apparently happy to see mother and looked forward to their visits. Although the statute does not specify “recent” visitation and contact, we think the term is implicit and that the relationship must be a current one. Indeed, without a current relationship, there is no relationship to be preserved. Furthermore, mother points to the fact that she raised Chelsey as a single parent for seven years and spent most of her energy attempting to meet Chelsey’s needs, insisting that she stands in a different position than parents who never occupied a parental role in their children’s lives. While that may be true, again it is the present time which is of utmost importance. The reality is that mother’s visitation was limited because her conduct required it; she lived a transient lifestyle and was therefore not always accessible. As for her position that she was bonded to Chelsey, she contends the “only” evidence to the contrary was a statement from the social worker that she had not established a bond—and then argues there was no evidence that that social worker who made the statement had ever observed a single visit between her and Chelsey. But that is not the test. DCS is not required to establish that a child would not benefit from continued parental contact. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Rather, it is mother’s burden to establish there was a relationship, which she has failed to do. (Ibid.)
Mother asserts her situation is similar to that in In re Amber M. (2002) 103 Cal.App.4th 681, 690. There, the Court of Appeal, relying on evidence offered by a psychologist, a therapist, and a court-appointed special advocate (CASA), reversed an order terminating parental rights: “The common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption.” (Ibid.) Mother relies on the following language from Amber M.: “Mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation.” However, she ignores the sentence which immediately follows: “She was devoted to them and did virtually all that was asked of her to regain custody.” (Ibid.) Here, contrary to mother’s assertion, she did not act as a loving and concerned parent. As we have already said, the record does not demonstrate a bonded relationship. Mother’s belief that she shared a bond with her daughter is not a substitute for the expert testimony and evidence which was offered in Amber M. Although Chelsey may well have looked forward to visits in earlier years, there simply is no evidence that she did so in recent times. Indeed, all of the reports indicated that mother ceased doing anything to foster a mother-daughter relationship. In fact, Chelsey’s progress was significant, not because of anything mother had done, but rather because her foster parents were taking an active role in her life and were specially trained to work with her and to respond to her medical needs.
Substantial evidence supports the court’s decision to terminate parental rights. As DCS asserts, “The relationship Chelsey had built with her foster family and the care and support they were eager to provide for her outweighed any benefit Chelsey might gain from continued contact with [m]other.” Indeed, for more than three years after the court selected long-term foster care as Chelsey’s permanent plan, mother had a window of opportunity to rebuild her relationship with her daughter. She failed to do so, and it is too late now for her to complain.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: RAMIREZ, P.J., HOLLENHORST, J.