Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. RIJ118122, Matthew Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
Appellant E.O. (mother) is the mother of D.D. (the child). Her parental rights as to the child were terminated. On appeal, mother contends that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 petition, and that it erred in terminating her parental rights since the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied. We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2009, the Riverside County Department of Public Social Services Child Protective Services (the department) filed a section 300 petition on behalf of the child, who was only a few days old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). The specific allegations included that mother had an extensive history with the Orange County Child Protective Services, that she had been provided with reunification services as to six of her other children but failed to comply with her case plan, and that her parental rights were terminated as to those six children. The petition also alleged that mother had an unresolved history of using methamphetamine and that she admitted to using it on a daily basis until July 2008, that she had a criminal history and was currently incarcerated for petty theft, and that the alleged father (D.), was also currently incarcerated.
Mother had seven other children, besides this child.
Father is not a party to this appeal.
The detention report stated that mother gave birth to the child while she was incarcerated, and she designated the maternal grandmother as the care provider. However, the maternal grandmother refused to care for the child, since she was helping to take care of mother’s other children. As to mother’s other children, the social worker reported that the Orange County Child Protective Services had received numerous referrals, which included allegations of domestic violence in the presence of the children, general neglect, emotional abuse, physical abuse, caretaker absence, and use of methamphetamine. Mother’s six children (at the time) were removed from her custody on March 26, 2003. The social worker reported that she reviewed information regarding the Orange County proceedings via a database system for out-of-county referrals. Mother received reunification services at various times from 2002 to 2009. Her services included counseling, parenting education classes, substance abuse treatment, and domestic violence programs. She failed to comply with her case plan, and her parental rights were ultimately terminated as to those six children on August 30, 2007. A maternal aunt adopted the six children in May 2009. A seventh child was born in August 2003. The maternal aunt was the legal guardian of the seventh child, and she was seeking to adopt her as well.
Mother requested that the appellate record be augmented with the detention and jurisdiction reports from her prior dependency case. (See appellant’s request filed Sept. 3, 2010.) The clerk of the Superior Court of Riverside County reported that there were no prior cases found. (See clerk’s certificate filed Oct. 13, 2010.) No prior cases would have been found since the prior dependency was in Orange County. There is also no record that the reports from that case were admitted into evidence or reviewed by the juvenile court in the instant case.
The social worker interviewed mother, who admitted she had an extensive history of methamphetamine use and that she last used in July 2008. Mother stated that “towards the end, ” she was using methamphetamine on a daily basis.
The social worker also reported that mother’s criminal history dated back to 2006 and included numerous convictions for burglary, petty theft, grand theft, forging an official seal, and being under the influence of a controlled substance.
The child was detained on May 30, 2009. On June 3, 2009, the juvenile court ordered weekly supervised visits with mother.
Jurisdiction/Disposition
On June 19, 2009, the social worker filed a jurisdiction/disposition report, recommending that reunification services for mother be denied. The social worker also filed an amended section 300 petition, which contained the same allegations as the original petition with regard to mother. Mother stated that father was the biological father of the child, but she was married to E.B. (E.B. was the father of mother’s seven other children.) E.B.’s whereabouts were unknown.
The social worker reported that mother had a criminal arrest history for abusing illegal substances. On September 19, 2007, she was arrested and then convicted of being under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (a).) On February 28, 2008, she was arrested for possession of drug paraphernalia. (Health & Saf. Code, § 11364.) The social worker recommended that reunification services for mother be denied under section 361.5, subdivision (b)(10) and (b)(11), since services were previously terminated as to six of the child’s half siblings, and there was no evidence of substantial change that suggested mother would benefit from further services.
The social worker filed a second amended petition on August 19, 2009, which added some allegations about father. On the same day, the juvenile court sustained the second amended petition, found that the child came under section 300, subdivisions (b) and (g), and adjudged him a dependent of the court. The juvenile court denied reunification services for mother under section 361.5, subdivision (b)(10) and (b)(11), and ordered reunification services for father.
Six-month Status Review
The social worker filed a status review report on February 2, 2010, recommending that a section 366.26 hearing be set and that adoption be the permanent plan. Mother was released from prison on September 9, 2009, and stayed in various homeless shelters. The social worker arranged for mother to visit the child at the department office on October 5, 2009, for the first time since he was born. Mother was very happy to see the child. She changed his diaper, and asked the foster father about the child’s medical appointments, feeding and sleeping schedule, and likes and dislikes. She had another visit on October 29, 2009, and she visited the child weekly after that. The visits were supervised and were “appropriate with no concerns.”
The social worker reported that mother lived in a sober living house in December 2009. However, that house shut down, so she moved to another sober living home in January 2010, where she was required to attend three Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings each week, obtain a sponsor, and work on the “12-steps.” Mother was on a waiting list for an inpatient substance abuse program. The social worker further reported that mother was attending a six-month drug class/support group and an anger management class at a church. She was also drug testing once a month with her parole officer, with negative results. The social worker additionally reported that father was still incarcerated and did not want visitation with the child or any involvement with the dependency case. He requested his parental rights be terminated.
The social worker concluded that there was not a substantial probability of the child returning home within the next review period. Mother continued to lack stability in her life, and she self-reported that she needed to enter an inpatient treatment program for her extended history of substance abuse.
At the six-month review hearing on February 16, 2010, the juvenile court terminated father’s reunification services and set a section 366.26 hearing for June 17, 2010.
Section 388 Petition
On June 2, 2010, mother filed a section 388 petition, requesting that the juvenile court reverse its order denying reunification services, order services to be provided for her, and vacate the section 366.26 hearing. For changed circumstances, she alleged that she had completed a 90-day inpatient substance abuse program at MFI Recovery Center (MFI), a parenting class, counseling, a domestic violence program, and a 12-step program. She further alleged that she visited the child consistently, and the visits were appropriate. For the best interest of the child, she alleged that she completed the inpatient substance abuse program and had maintained her sobriety, that she had consistently visited the child with no concerns, that she had a strong bond with the child, and that reunification services would enable her to maintain that relationship.
Section 366.26
The social worker filed a section 366.26 report on June 4, 2010, recommending the child remain with the current caretakers and that parental rights be terminated. The social worker stated that mother had not fully addressed her lengthy substance abuse history and that she lacked stability. The social worker acknowledged that mother began inpatient treatment at MFI on February 22, 2010, but noted that she had failed to benefit from years of reunifications services for her other children. The social worker also noted that during the previous reporting period for the child, mother failed to actively participate in anything to provide evidence that she desired to maintain a sober lifestyle and obtain stability. The social worker attached a preliminary adoption assessment report, stating that the child had been living with the current caretakers since April 14, 2010, and had bonded quickly with them. The child was very comfortable in their home. They lived in a five-bedroom home, were financially stable, and were fully capable of meeting the child’s emotional and physical needs. They were committed to providing a safe, stable, loving, permanent home for him.
Combined Hearing on Section 388 Petition and Section 366.26
The juvenile court held a hearing on June 23, 2010, and first addressed the section 388 petition. Mother’s counsel repeated the allegations in the section 388 petition, and also informed the court that mother currently resided in a two-bedroom home, where she was helping to take care of an infant in exchange for being able to live in the home. She had been taking care of the infant since he/she was three days old, and the infant was approximately two months old at the time of the hearing. Mother’s counsel also asserted that the child in this matter was just over one year old, and that the prospective adoptive parents had had him in their care just over two months. She claimed that mother had a strong bond with the child, and it would be in the child’s best interest to grant Mother reunification services and allow them to maintain that relationship. Mother’s counsel argued that mother had completed an intense program at MFI and had stayed sober.
Counsel for the department argued that the juvenile court should deny the section 388 petition. Mother had a lengthy substance abuse history, and she had six of her children removed due to domestic violence and substance abuse issues. Her parental rights were terminated as to those six children, and they were later adopted. Mother also had a seventh child removed, who was in legal guardianship. Counsel argued that the amount of time mother had been in the MFI program was minimal compared to her long history of substance abuse. Counsel also pointed out that mother was the perpetrator of domestic violence on her partner and her mother, that she was ordered to complete a 52-week domestic violence program, and that she had not provided any evidence of completion.
The juvenile court noted mother’s long history of substance abuse and domestic violence and commended her on completing the 90-day MFI program. It then stated that mother’s circumstances were arguably changing, but she had not demonstrated that they had actually changed. The juvenile court further stated that the child was clearly adoptable, and that he was now in a very good home. It concluded that it was in the child’s best interest to be adopted. The juvenile court denied the section 388 petition, and proceeded with the section 366.26 hearing.
Mother’s counsel argued that the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied in this case. She asserted that mother had maintained regular visitation for nearly 13 months, with no reported concerns, and that the visits had benefited the child. She contrasted mother’s 13 months of visits with the prospective adoptive parents’ two months of having the child in their care.
The juvenile court found that it was likely the child would be adopted, that none of the exceptions to termination of parental rights applied, and that adoption was in the child’s best interest. The juvenile court terminated parental rights and ordered adoption as the permanent plan.
ANALYSIS
I. The Juvenile Court Properly Denied Mother’s Section 388 Petition
Mother argues that the juvenile court abused its discretion in denying her section 388 petition. She contends that the juvenile court denied the petition based on past events she could not change, specifically her prior termination of reunification services and parental rights as to her other children, and her past history of substance abuse and domestic violence. She specifically claims that the juvenile court committed legal error in relying on her past failure to reunify as a basis for denial “because it did not reflect a current circumstance regarding [her] suitability for reunification services.” We find no abuse of discretion.
A. Standard of Review
Under section 388, “[t]he petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) “After the termination of reunification services, 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 interest of the child. [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) “The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
B. Mother Has Not Shown That the Juvenile Court Committed Legal Error
At the outset, we note mother’s claim that the juvenile court “committed legal error in relying upon [her] past... failure to reunify as a basis for denial.” She contends that the juvenile court based its denial “on the mistaken premise that [her] past failure to reunify... could again be recycled to show [her] current circumstances in 2010 reflected insufficient change.” She further complains that the juvenile court relied on her history of substance abuse and domestic violence, rather than focusing on her present circumstances. She states that the change in her circumstances was beyond dispute, since she had participated in numerous programs, and had gone nearly two years without using drugs and eight years since committing an act of domestic violence.
Mother fails to cite any relevant authority in claiming that the juvenile court committed legal error. She cites Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359. However, the part of that case she refers to concerns the trial court’s failure to properly exercise its discretion in awarding attorney fees in an employment discrimination action under the Fair Employment and Housing Act. (Id. at pp. 393-396.) Mother also cites In re Carmaleta B. (1978) 21 Cal.3d 482 (superseded by statute as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 224-225), which was a proceeding to terminate parental custody and control under Civil Code section 232. (Id. at p. 485.) She further relies upon Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429. However, that case addressed whether the trial court had properly denied certification for a class action. (Id. at p. 433.) None of these cases support mother’s proposition that the juvenile court here committed legal error or applied an incorrect legal standard.
In any event, the record demonstrates that the juvenile court considered mother’s failure to reunify with her other children in an appropriate manner. The juvenile court stated, “I commend the mother on completing the MFI 90-day program, but, given the mother’s long history of substance abuse, domestic violence issues and all of the problems she’s had resulting in the removal of her other children, the Court does not believe that it’s faced with changed circumstances.” The juvenile court cited her problems with substance abuse and domestic violence, which resulted in the removal of her other children. It did not deny mother’s petition simply because she failed to reunify, as she claims. The record does not show that the juvenile court used an incorrect legal standard.
C. The Juvenile Court Properly Determined That Mother Failed to Demonstrate Changed Circumstances
Mother argues that the juvenile court erred in relying on her history of substance abuse and domestic violence in denying her petition, since her two years of being drug free and eight years of being violence free established changed circumstances. However, the juvenile court properly considered mother’s past and the alleged changes she had made since her reunification services were denied in August 2009, in making its determination. At the time the juvenile court denied her services in August 2009, she was incarcerated, and there was no evidence that she had made a reasonable effort to resolve the problems that led to the removal of her other children and termination of her parental rights (e.g., substance abuse and neglect). For changed circumstances, mother alleged in her petition that she had completed a 90-day inpatient substance abuse program at MFI, as well as a parenting class, counseling, a 12-step program, and a domestic violence program. She also alleged that she submitted to random drug testing and tested negative, and that she had been consistently visiting the child. The evidence showed that, since the denial of reunification services in August 2009, mother was released from prison, started the MFI drug treatment program in February 2010, and completed it on May 23, 2010. Thus, by the time of the section 388 hearing in June 2010, she had only been out of the drug treatment program for one month. In light of mother’s admission that she had an extensive history of methamphetamine use, the juvenile court properly found that the completion of a 90-day substance abuse program and other classes may have indicated that her circumstances were changing, but not that they had actually changed.
In arguing that the juvenile court erred in relying on her long history of substance abuse and domestic violence issues, mother cites In re Casey D. (1999) 70 Cal.App.4th 38 (Casey D.), in which the juvenile court found that, after a long addiction history, the father’s nine-month period of being drug free established a change of circumstances. (Id. at p. 49.) Mother claims that by this “absolute standard, ” her 23 months of being drug free “clearly supported the conclusion that her recovery was permanent.” However, the juvenile court in Casey D. did not purport to set forth an absolutestandard by which a court could determine when a recovery is permanent. Moreover, in no way did the juvenile or appellate court hold that a nine-month period of sobriety constituted a per se change in circumstances. While the juvenile court there determined that the father’s nine-month period of sobriety amounted to a change in circumstances, it, nevertheless, denied the father’s section 388 petition, finding that it was not in the minor’s best interest to be returned to his care. The appellate court affirmed the denial of the father’s section 388 petition. (Id. at pp. 45, 49, 54.)
Mother further claims that her “23-month clean period, supplemented by a 3-month inpatient program, established [that] her past addiction no longer threatened her present sobriety.” She asserts that she had remained clean between July 2008 (her last reported use) and June 2010 (the time of the hearing). In February 2010, the social worker did report that mother was drug testing one time a month, and had been testing clean. Even so, mother refrained from drug use mostly while she was in structured environments. She was first sentenced to state prison in November 2008, and she was released in September 2009. She started living in a sober living house some time before December 7, 2009, and moved to another sober living home in January 2010, where she was required to attend three NA/AA meetings each week, obtain a sponsor, and work on the “12-steps.” Moreover, she was on parole and had to drug test once a month with her parole officer. Then, she began her 90-day inpatient treatment program at MFI in February 2010. Although there were periods of time when mother was not incarcerated or living in a sober living home, she had not yet demonstrated that she could refrain from drug use in a nonstructured environment, for any significant length of time. Under these circumstances, we cannot say that the juvenile court abused its discretion in determining that mother’s circumstances were changing, but had not changed.
Mother further asserts that she had overcome her domestic violence problem in that, by the time she filed her section 388 petition, she had not committed any domestic violence in nearly eight years. The record does not contain much information on mother’s domestic violence issues, aside from the social worker’s report that she failed to complete her case plan in Orange County, which included domestic violence counseling, but she completed a program at MFI. However, even if mother had overcome her domestic violence issues, we still cannot say that the juvenile court erred in denying her petition. (See post, § I.C.)
We note mother’s argument concerning the juvenile court’s initial denial of reunification services and her assertion that the department acted “imprudently in urging the court to deny reunification services to [her] while providing them to [f]ather.” She further claims that “because the case for denying [her] reunification services was already questionable when the court first made the order in August 2009, she did not have the burden of showing as comprehensive a transformation as must some other parents who are denied reunification services based on past misconduct.” Mother cites no legal authority to support this proposition. “‘[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s... issue as waived.’ [Citation.]” (In re Daniel M. (2003) 110 Cal.App.4th 703, 708.)
Mother also raises a host of issues in her reply brief, concerning the issue of changed circumstances, which she did not raise in her opening brief. Such issues include that: 1) the juvenile court erred in failing to review the terms of the initial removal of her children in Orange County, so the juvenile court had no way of knowing what problems led to the prior removal, or whether mother had made a reasonable effort to treat those problems; 2) the initial denial of reunification services “did not rest on substantial evidence”; 3) the department’s information about the prior dependency was inaccurate and unreliable; 4) the reunification services provided after the prior removal could not have concerned methamphetamine use or criminal activity, since mother did not have those problems when she lost her other children; 5) regardless of any other misconduct, the initial denial of reunification services under section 361.5, and its confirmation at the section 388 hearing, “needed to derive from [her] domestic violence, which she had not committed in the eight years preceding the section 388 hearing”; and 6) it was her burden to establish only a change of circumstances, not “a certainty of eternal sobriety, ” and it was “premature to insist upon such a guarantee” since she was seeking reunification services, not custody. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it.... Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.]” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.) Mother has provided no reason why these arguments were not raised before. Therefore, we deem them waived. We further note that mother did not raise, with the juvenile court, any contention of the inadequacy of the information about the removal of her other children, nor did she appeal the initial denial of reunification services. “‘[A] party is precluded from urging on appeal any point not raised in the trial court.’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
C. Mother Failed to Show That Changing the Juvenile Court Order Was in the Child’s Best Interest
Assuming arguendo that mother had adequately shown changed circumstances, she still needed to show that her requested change in the juvenile court’s order was in the child’s best interest. (In re Daniel C., supra, 141 Cal.App.4th at p. 1445.) Mother failed to do so. As to the child’s best interest, the petition merely alleged that she had completed an inpatient substance abuse program and had maintained her sobriety, that she had been consistent in visiting the child, and that the visits had been appropriate. She further alleged that she had a strong bond with the child, and that ordering reunification services would enable her to maintain her relationship with him. Mother clearly failed to demonstrate how vacating the section 366.26 hearing and ordering reunification services for her would be in the child’s best interest. As the court in In re Angel B. (2002) 97 Cal.App.4th 454 (Angel B.) observed, it is “difficult to imagine” how mother could have done so, given the fact that she had never actually parented the child before his removal. (Id. at p. 465.) Moreover, despite her claim, there was no obvious bond between her and the child. (See post, § II.) “In our view, the juvenile court properly evaluated the evidence, and placing special weight on the child’s need for stability, as was appropriate at that stage of the proceedings, determined that [mother] had not carried [her] burden of proof.” (See Stephanie M., supra, 7 Cal.4th at p. 319.) Notably, when mother filed her section 388 petition, the case was set for a section 366.26 hearing, at which parental rights would ultimately be terminated. At that point in the proceedings, “the [child’s] interest in stability was the court’s foremost concern and outweighed any interest in reunification.” (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) A court hearing a motion for a change of order, at that stage, had to recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child. (Stephanie M., at p. 317.) Nothing in mother’s section 388 petition showed that it was in the child’s best interest to delay the selection of a permanent home for the child to see if she could reunify with him at some future point. (See Casey D., supra, 70 Cal.App.4th at p. 47.) Granting reunification services would have resulted in a further period of uncertainty for the child, undermining his “need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Because the juvenile court had found mother’s circumstances were changing, rather than changed, it was entitled to conclude that granting her request for reunification services was not in the child’s best interest, given his strong and immediate need for stability. (See Casey D., at p. 49.)
In regard to the best interest of the child, mother asserts that her “actual employment and residential status was highly material to the merits of [her] petition, and to her instant appeal.” Mother claims that she was “presently able to provide a home for [the child], free from drugs or violence.” However, there was no actual evidence that mother was able to provide suitable care for the child or assume custody of him. (See Angel B., supra, 97 Cal.App.4th at p. 463.) Although she claims she had stable housing and employment, she relies solely on her trial attorney’s representation to the juvenile court that she was living in a home and providing child care, in exchange for housing. An attorney’s argument is not evidence. (People v. Clark (1993) 5 Cal.4th 950, 1033, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn 22.) Even if the statements of her counsel constituted valid evidence of her employment and housing circumstances, such evidence did not establish her ability to take care of the child. According to her attorney’s statements, the infant that mother had been taking care of was approximately two months old, at the time of the section 388 hearing. Thus, she had only been taking care of the infant for two months and, presumably, had been living in that home for only two months. Moreover, mother did not earn any income from taking care of this infant. We note mother’s assertion that “the decision of another parent to entrust a three-day old child to [her] care confirmed her ability to parent, and thus promote [the child’s] best interests, better than any testimony.” Nonetheless, we conclude that the juvenile court could easily find that mother’s circumstance of living in a home for two months, in exchange for taking care of a child, did not demonstrate a stable housing or employment situation, or indicate that it would be in the child’s best interest to reunify with her.
We find no abuse of discretion in the juvenile court’s denial of mother’s section 388 petition.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the juvenile court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the juvenile court determines a permanent plan of care for a dependent child. (Casey D., supra, 70 Cal.App.4th at p. 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the 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).) The phrase “‘benefit from continuing the relationship’” refers to a parent/child relationship that “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, 574-575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother asserts that she maintained regular visitation for eight months, and the visits went “‘very well.’” She also claims that her role was that of a parent, not merely a “‘friendly visitor.’” She states that she changed the child’s diaper, asked questions about his appointments, health, feeding schedule, sleep patterns, and likes and dislikes. She also had the child’s welfare as her priority. Finally, she cites a time when she held the child, and talked to him, and he focused on her as if he was “‘mesmerized.’”
While the evidence showed that mother acted appropriately with the child during visits, her interactions with the child do not even begin to demonstrate that her relationship with the child promoted his well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Her eight months of visits, in total, add up to only a fraction of the time the child has spent with the current caretakers who wanted to adopt him. (Angel B., supra, 97 Cal.App.4th at p. 465.) Moreover, she has not proffered any evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that [he] would be greatly harmed” if the relationship was severed. (Autumn H., at p. 575.) All of the examples she relies on—changing the child’s diaper, asking questions about the child, the child focusing on her as if mesmerized—occurred at one visit.
We further note that the current caretakers were “experienced parents with effective parenting skills.” They had one biological child, and the prospective adoptive mother had 20 years of experience as a schoolteacher. Although the child had lived with them for just two months, he was bonded with them, and he looked to them for comfort, attention, and affection. “The parents in this family clearly, by deed if not by name, were [the child’s] parents. They, not Mother, provided [him] with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler.” (Angel B., supra, 97 Cal.App.4th at p. 465.)
Accordingly, the juvenile court did not err by refusing to find that the beneficial parental exception in section 366.26, subdivision (c)(1)(B)(i), was applicable to these facts.
DISPOSITION
The orders denying mother’s section 388 petition and terminating her parental rights are affirmed.
We concur: RAMIREZ P. J., McKINSTER J.