Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK59342, Robert Stevenson, Juvenile Court Referee.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ J.
Brandi G. (mother) appeals from two juvenile court orders: an order denying a petition for modification under Welfare and Institutions Code section 388, and an order terminating her parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
CONTENTIONS
Mother contends that the juvenile court erred in: (1) denying her section 388 petition; (2) failing to apply the beneficial relationship exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(i); and (3) failing to apply the sibling relationship exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(v).
FACTUAL AND PROCEDURAL BACKGROUND
1. Section 300 Petition and Initial Detention
D.G. was born on March 20, 2003. On May 17, 2005, mother was arrested for involvement in a robbery. Mother and D.G. were with mother’s acquaintance when mother’s acquaintance stole a purse. D.G. was with mother at a motel when the arrest was made. Mother informed the police that she did not know that the acquaintance was going to steal the purse, and that she became angry and scared because D.G. was with them. D.G. was released to maternal grandfather, Edwin G., by the Whittier Police Department.
Mother has three other children who are not parties to this appeal. Angel, now age 11, is cared for by his maternal uncle, to whom mother gave guardianship authorization. Another child, who was less than a year old at the time of mother’s arrest, was voluntarily given up for adoption through Independent Adoption Agency. In addition, during the pendency of this proceeding, in September 2007, mother gave birth to a boy.
Edwin’s wife, Maria, took D.G. to the doctor. The doctor discovered that D.G. was suffering from a severe skin condition consisting of scabbed-over infected bacterial boils on her thighs, stomach and buttocks. The doctor reported that the condition, known as “fur uncles,” is a form of staph skin infection common in children who do not bathe regularly. The doctor gave Maria an antibiotic for the child.
A social worker interviewed Angel, who was eight years old at the time. Angel reported seeing mother and D.G.’s father, Leo F. (father) engage in acts of violence. The history of domestic violence was confirmed by Edwin and Maria. Father was incarcerated for being under the influence of a controlled substance, and mother remained incarcerated for robbery.
Father had an extensive criminal history. Mother had previously been arrested for burglary and convicted of vehicle theft.
On June 8, 2005, the Department of Children and Family Services (DCFS) filed a petition under section 300, subdivision (b), alleging that: (1) mother endangered D.G.’s safety by being involved in the robbery on May 17, 2005; (2) mother failed to obtain medical treatment for D.G.’s skin condition; and (3) mother failed to protect D.G. from father’s violent conduct. DCFS also alleged that mother and father had a history of substance abuse and crime.
By the time of the detention hearing on June 8, 2005, DCFS had placed D.G. in a foster home due to Edwin’s criminal history. The court found that DCFS had made out a prima facie case that D.G. was a child described by section 300, subdivisions (a) and (b), and detained her.
2. Pretrial Conference and Disposition Hearing
On July 12, 2005, DCFS filed a jurisdiction/disposition report. The report described an interview with Angel that took place on June 23, 2005. Angel reported seeing mother and father fight. He further described father grabbing mother by the wrist on three or four occasions and slapping her. Mother denied having any physical altercations with father, and stated that what Angel witnessed was a “play fight.” However, maternal grandmother reported seeing mother with black eyes and a bruised face. In addition, in June or July 2004, father was arrested for hitting mother. A three-year restraining order against him was issued on July 13, 2004.
Mother was interviewed on June 22, 2005, at Twin Towers Jail. She claimed that she did not neglect D.G. She explained that D.G. had gotten a diaper rash because mother did not have any baby wipes. Mother thought the boils on D.G.’s stomach were spider bites. Mother admitted that she used drugs when she was younger. Right after D.G. was born, she used methamphetamine, but she had refrained from drug use for a long time. Mother admitted that father had used drugs before and was arrested for being under the influence.
D.G. had returned to the care of Edwin and Maria. She was developing within normal limits, appeared happy, and was appropriately attached to Edwin and Maria. Since D.G.’s detention, neither parent had visited or telephoned the child and DCFS did not believe it would be in D.G.’s best interests to visit either parent in jail.
The jurisdiction/disposition report noted that Edwin had a criminal history. However, DCFS had received character reference letters on his behalf and he had submitted a criminal statement.
The pretrial conference was held on July 12, 2005. Both parents submitted to an amended petition. The juvenile court sustained the amended petition under section 300, subdivisions (b) and (j), finding that the parents had a history of domestic violence, a history of substance abuse, and that D.G. was in danger when she was present in a car with mother and an acquaintance who had just robbed an adult female. Further, after argument by counsel, the court sustained the allegations that mother medically neglected D.G.
The juvenile court proceeded with the disposition hearing. D.G. was declared a dependent of the court. Mother was given reunification services, and was warned by the court: “[B]ecause of the child’s young age, you have only six months to comply with all of the orders of the court.” Father was denied reunification services pursuant to section 361.5, subdivisions (b)(10) and (11).
3. Six-month Review Hearing
A hearing was held pursuant to section 366.21, subdivision (e) on January 10, 2006. DCFS filed a report on the same date. The report stated that D.G. was still living with Edwin and Maria. She had adjusted well to their home, got along well with all of the family members, had regular eating and sleeping patterns, and was now potty trained. Her skin condition had cleared up and she was in overall good health.
Mother had been released from jail and was living with a paternal aunt. The aunt informed DCFS that mother’s stay was temporary and that she would not allow mother and D.G. to reside in her home. Mother had found employment working at a Burger King in Covina. Mother stated that she was saving money in order to secure a residence for herself and D.G. Mother continued to maintain a relationship with father. She was helping him enroll in a drug program, and had a strong desire to form a family with him.
Mother had been enrolled in a six-month family reunification program at the National Council on Alcoholism and Drug Dependence (NCADD) in Covina. The program included individual interviews, chemical dependency education, 12-step meetings and parenting classes. Progress reports for October and November of 2005 indicated that mother was not in compliance with the 12-step meetings and fees. Her counselor indicated that mother had been resistant to the program because she did not feel that she had a drug problem; moreover, she worried more about what father was doing. In addition, the program had no domestic violence component. Mother had been referred to DCFS’s random drug and alcohol testing program on July 29, 2005, and had consistently tested negative through January 5, 2006.
Mother had been visiting D.G. weekly at Edwin’s home, and the visits had been appropriate. D.G. also visited with Angel at Christmas and the half-siblings were happy to see each other.
At the hearing on January 10, 2006, mother’s attorney claimed that there had been a breakdown in communication concerning DCFS’s monitoring of mother’s progress. The night before the hearing, mother had learned that she was not in compliance with the domestic violence component of the program. Mother asked for a mediation to resolve the issue.
The juvenile court found that mother had completed her drug testing requirement. Mother’s counsel set the matter for a contest, requesting that D.G. be returned to her care or, in the alternative, that mother’s visits be liberalized due to her substantial compliance with the reunification plan.
4. Subsequent Hearings
On March 27, 2006, based on an agreement between the parties, mother was given additional reunification services and unmonitored visits in the home of paternal aunt, contingent on paternal aunt’s Rottweiler dogs being penned up. The court also required that DCFS provide a report regarding the visits and mother’s progress in domestic violence counseling. The matter was set for a progress hearing on April 24, 2006.
DCFS submitted an interim review report on April 24, 2006. It stated that D.G. came back from her second unmonitored visit with mother with bruises and scratches on her back and arm. When D.G. was asked what happened to her, she answered: “My mommie got mad.” Edwin did not report the incident right away because he thought that D.G. may have been harmed when he put her into her car seat after the visit. D.G. did not want to leave mother and resisted, stiffening her body and wrestling. Edwin thought she might have received the marks then, but continued to be concerned about D.G.’s reports that mother got mad.
On April 18, 2006, when a DCFS social worker visited with D.G., she asked her why her back hurt. D.G. stated, “Mommy hit me,” and showed the social worker how mother hit her with her fist.
Mother was suspended from her program at NCADD for absences and loss of contact. Father was arrested again on March 7, 2006, for a parole violation. At the hearing on April 24, 2006, the court noted that there was no documentation showing that mother had been involved in a domestic violence program, as required by her case plan. The court ordered mother’s visits to revert to being monitored, with DCFS discretion to liberalize.
On September 26, 2006, DCFS filed a status review report. D.G. continued to live with Edwin and Maria. She had adjusted very well and was comfortable in the home. She was a happy child, with continued good eating and sleeping patterns.
DCFS reported that mother had a new fiancé, Raymond R. Edwin reported that between May and July 2006, mother left Raymond due to his jealous and controlling nature, but that she resumed the relationship after about two weeks. Raymond, who worked as a machine operator, had recently been in an industrial accident and mother was providing care for him. Nevertheless, mother remained emphatic that her first priority was regaining custody of D.G. She stated that she had made a place for D.G. in the rented room she shared with Raymond. Mother stated that she had no knowledge of Raymond’s criminal background.
Mother had attended an intake session for domestic violence counseling on January 30, 2006. However, it did not appear that she actually had domestic violence counseling at that time. On August 21, 2006, she completed another intake for domestic violence, and was scheduled to begin sessions in September 2006.
Since May 2006, mother’s visits with D.G. had been sporadic, totaling three visits for a couple of hours each. Edwin monitored the visits, which were appropriate. Mother telephoned a few times, but when mother let D.G. speak to Raymond, Edwin ended the telephone call. Edwin and Maria continued to provide D.G. with a nurturing and stable environment, and had expressed a desire to provide D.G. with a permanent home through adoption.
5. Termination of Parental Rights
The contested section 366.21, subdivision (f) hearing began on November 8, 2006. The court took the DCFS reports into evidence with no objection by any party. The social worker testified that mother recently enrolled in domestic violence counseling and attended two sessions. However, Raymond had still not submitted to a criminal history investigation. The social worker felt that D.G. was attached to mother and that mother was appropriate with D.G. However, mother had tested positive for methamphetamine in April 2006. After that, mother missed drug tests. During the past month, visitation was regular; however, before that visitation was “at best sporadic.” The hearing was continued to December 5, 2006, and then to January 10, 2007.
On January 10, 2007, DCFS provided the court with an interim review report. DCFS reported that mother was employed full time. However, she was not in compliance with the case plan and continued to live with Raymond. She had gone back to the same drug program in which she was previously enrolled; however, she was non compliant and had been terminated due to excessive absences. She had participated in four one-hour sessions of domestic violence counseling. Her counselor recommended that she continue counseling.
At that hearing, mother submitted to DCFS’s recommendation of termination of her reunification services. The court noted that mother had not complied with her case plan and had not consistently shown sobriety. The court found that it would be detrimental to return D.G. to mother’s care and terminated reunification services.
6. Mother’s Section 388 Petition and Permanency Planning
On May 7, 2007, mother filed a section 388 petition asking for custody of D.G. Mother claimed that she had completed the case plan and had a new apartment. She had completed a three-month drug program and had held a steady job since November 10, 2006. The court set a hearing on the petition.
On May 9, 2007, DCFS filed its section 366.26 report. D.G. continued to do well in the home of Edwin and Maria. Monitored visits with mother were appropriate and without incident. DCFS recommended that the court terminate parental rights so that DCFS could proceed with the adoption process.
DCFS filed an interim review report on July 18, 2007. The report indicated that, despite mother’s recent compliance with certain aspects of the case plan, she had still not addressed “the paramount issue of domestic violence.” DCFS stated that without such counseling, there was a risk of re occurrence, which presented a substantial risk to D.G. DCFS reported that, according to mother’s counselor, mother still minimized domestic violence and denied that she had a problem with it. DCFS recommended that D.G. remain a dependent of the court and that DCFS initiate adoptive placement.
The hearing on mother’s section 388 petition began on July 20, 2007. D.G.’s social worker testified that mother had completed all of the requirements of her reunification plan with the exception of the individual counseling to address domestic violence. The social worker further testified that Edwin was “very supportive” of mother’s efforts to return D.G. to her care. Although Raymond had indicated that he had a criminal history, he had still not submitted to a criminal background evaluation.
In order to allow mother additional time to participate in domestic violence counseling, the court continued the hearing on the section 388 petition and the section 366.26 permanency planning issues to November 15, 2007. The court recognized that mother had done a good job on her other programs, but warned mother that she needed to “recognize that issue that I think puts you at risk and perhaps your child at risk for any future domestic violence.” The court indicated that it would “make sure that [the issue of domestic violence] is really resolved before [D.G.] comes home to you.” The court indicated that legal guardianship might be the best plan for D.G. due to the relationship that D.G. had with mother. D.G.’s counsel requested that mother be given “a full 120 days” to complete her obligations because mother was expecting a child.
On September 20, 2007, DCFS filed an interim review report. DCFS explained that on July 20, 2007, following the hearing, the social worker tried to talk with mother regarding the court’s instructions. Mother refused to speak with the social worker, turning her body away from the social worker. While mother’s attorney and counselor looked on, Raymond aggressively approached the social worker and verbally berated and threatened her. Mother’s attorney and counselor attempted to calm Raymond down, but were unsuccessful, and he continued his tirade as he and mother left the area.
After several attempts, the DCFS social worker was finally able to visit mother and Raymond’s residence on September 12, 2007. Mother had gone back to her old drug program and had been compliant for several weeks. She had called some agencies about obtaining individual counseling and was awaiting services.
The social worker obtained the name of mother’s probation officer and Raymond’s parole agent in order to verify their current status. Mother was not in compliance with her probation in that she failed to show up for drug testing on two occasions and had failed to make a required payment. Mother’s probation officer indicated that she had been lenient as mother was due to give birth on September 18, 2007. Mother was on leave from her employment while awaiting the birth of her child, and was scheduled to return to work after Thanksgiving.
When asked to explain his criminal history, Raymond refused and became agitated and argumentative. While Raymond continued to refuse to submit to a live scan, a CLETS (California Law Enforcement Telecommunications Service) search revealed a number of convictions and arrests, including (1) a felony conviction on August 30, 1997, under Penal Code section 273.5, subdivision (A) for infliction of corporal injury on a spouse or cohabitant; (2) an arrest on April 11, 2002, for being under the influence of a controlled substance, with no disposition; and (3) a felony conviction on February 4, 2005, under Penal Code section 273.5, subdivision (A) for infliction of corporal injury on a spouse or cohabitant.
DCFS recommended that D.G. remain a dependent of the juvenile court, that parental rights be terminated, and that DCFS begin the adoption process.
On November 15, 2007, DCFS filed a report in anticipation of the section 366.26 hearing. DCFS reported that D.G. was mentally and emotionally stable and developing age appropriately. She was animated and affectionate and was comfortable in the home of Edwin and Maria. D.G. recently visited her newborn half-brother and mother. On the way home, D.G. informed the social worker that she wanted to stay with “papa” (Edwin) and have sleepovers with mother. Mother continued to reside with Raymond, who was the father of her newborn baby.
An adoptive home study for Edwin and Maria was approved on October 30, 2007. Edwin owned a construction company; Maria provided full time care for D.G. They had a stable and loving marital relationship and were committed to raising and caring for D.G. They did not have an objection to D.G. having contact with her biological parents if that were appropriate. D.G. had resided with Edwin and Maria for more than two years. DCFS recommended termination of parental rights and adoption.
At the hearing on November 15, 2007, the matter was continued. DCFS was ordered to provide a supplemental report regarding its discussions with Edwin and Maria regarding the permanent plans available, as well as any other information relevant to the mother’s 388 petition and section 366.26 permanency planning.
On January 8, 2008, DCFS reported that mother admitted that she had not visited D.G. regularly since the birth of her new baby. In fact, since September 17, 2007, mother had only visited D.G. four times. Mother had finally begun individual counseling to address domestic violence on November 26, 2007, and had attended five sessions.
Edwin was committed to adopting D.G. D.G. had been raised in his home and was safe and secure there. She did not think of mother as her caregiver, she thought of Edwin and Maria as her parents. Edwin and Maria had discussed all of the options and had chosen to adopt D.G. At the hearing on January 8, 2008, the court found D.G.’s placement to be appropriate and the permanent plan was identified as adoption.
At the contested hearing on February 5, 2008, mother testified. She described her efforts to obtain individual counseling to address domestic violence. She noted that she had attended at least five therapy sessions by the date of the hearing, and explained some of the knowledge that she had acquired regarding domestic violence. Mother stated that she had been visiting D.G. regularly during her allotted visitation sessions. She claimed to have only missed two sessions due to sickness, otherwise she indicated that missed visits were due to cancellations made by Edwin. In addition, after D.G.’s half-brother was born in September 2007, he joined the visits with D.G. every time they had a visit. Mother stated that D.G. and the baby were very close, and that they loved each other.
D.G.’s attorney agreed that mother had shown changed circumstances. However, mother had not shown that it would be in D.G.’s best interest to be returned to mother’s care. Therefore, D.G.’s attorney asked that the court deny mother’s section 388 petition. DCFS also urged the court to deny mother’s section 388 petition. While mother had shown some changed circumstances, those changes were “catch up, way late, a minimal change.” DCFS pointed out that D.G. had lived with Edwin and Maria since she was detained in March 2003, and that D.G. had expressed that she didn’t want to live with mother. Instead, D.G. wanted to continue visiting with mother.
The court acknowledged that mother had a baby in her care and DCFS had not detained the baby. However, D.G. was almost five years old and had spent most of her life in the home of Edwin and Maria. In addition, although mother had learned about the dynamics of domestic violence, she had not had enough counseling for the court to believe that she had resolved those issues. While the court felt that mother had made some positive changes in her life, the court could not find that D.G.’s best interests would be served if the court granted mother’s section 388 petition. The court noted that D.G.’s best interests would be served by remaining with Edwin and Maria. Therefore, the court denied the section 388 petition.
The section 366.26 permanency planning hearing took place on the same day. Mother provided no additional evidence. DCFS and D.G.’s attorney argued that the juvenile court should terminate mother’s parental rights. Mother’s attorney argued that adoption was not the most appropriate plan for D.G.
The court found by clear and convincing evidence that D.G. was likely to be adopted. The court further found that mother had not met the exception found in section 366.26, subdivision (c)(1)(B)(i). While there had been visitation, there was not enough evidence that the benefit to D.G. was great enough to outweigh the benefit she would gain through adoption. The court terminated parental rights and transferred D.G.’s care, custody and control to DCFS for adoptive planning. Mother timely appealed.
DISCUSSION
I. The Section 388 Petition
A. Applicable law
Section 388 provides that a parent may, “upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate jurisdiction of the court.” At a hearing on a section 388 motion, “the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, even if a parent meets her burden of showing changed circumstances, she must also show that the requested modification of the juvenile court’s order is in the best interests of the child.
A juvenile court’s decision on a section 388 petition is reviewed for abuse of discretion. Under that standard, “‘The appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 319-320.)
B. The trial court did not abuse its discretion in denying mother’s petition
The juvenile court agreed that mother showed “some change of circumstances.” Thus, the only question we must address is whether mother met her second burden under section 388: showing that her proposed modification of the juvenile court’s order promoted D.G.’s best interests.
In determining that placement with mother was not in D.G.’s best interests, the court focused on the bond between D.G. and her current caregivers. The court concluded that the best result for D.G. would be “to remain with the grandparents.” The court noted that D.G. was bonded with Edwin and Maria and “that is who she wants to be with.”
D.G. had been placed with Edwin and Maria in May 2005. At the hearing on February 5, 2008, D.G. had lived with Edwin and Maria for nearly three years -- over half her life. The evidence showed that D.G. expressed a desire to remain in the home of Edwin and Maria, while maintaining a relationship with mother through visits. These facts support the court’s determination that D.G.’s best interests would be served through the stability that she would experience by remaining in Edwin and Maria’s home.
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, the court set forth three factors that a court should consider in determining whether a proposed change is in the best interests of the child. Those factors are: (1) the seriousness of the reason for the dependency in the first place; (2) the strength of the bond between the parent and child; and (3) the strength of the bond between the child and the caretaker and the length of time the child has been in the dependency system. Application of these factors to the facts of this case also supports the juvenile court’s ruling.
First, D.G. was initially removed from mother’s custody for three reasons: mother was arrested for participation in a robbery while D.G. was with her; D.G. was suffering from boils resulting from neglect; and mother had a history of domestic violence. Each of these reasons is very serious. Because all three circumstances endangered D.G., the risk that she would suffer harm was quite severe.
Next, we look at the strength of the parent-child bond. We note that, with the exception of only two visits, mother never progressed to unmonitored visitation with D.G. D.G. knows who mother is, but has expressed a desire to maintain their relationship through visits. There is no evidence that mother has assumed a parental role during the time that D.G. has been in the custody of Edwin and Maria.
Finally, we evaluate the strength of the caretaker-child bond and the length of time that D.G. has been in the dependency system. As noted above, D.G. has lived with Edwin and Maria since May 2005, more than half her life. D.G. was comfortable and happy living with Edwin and Maria, and was developing within normal limits. When interviewed in connection with DCFS’s section 366.26 report, D.G. stated that she wanted to stay home with “papa” (Edwin) and have sleepovers with mother. In addition, in January 2008, mother admitted that she had not visited D.G. regularly since her new baby was born in September 2007. In fact, she had only visited D.G. four times in four months.
Mother’s statement to DCFS that she had only visited with D.G. about four times since the birth of her baby contrasted with her testimony at trial, where she stated that the number of visits between D.G. and the baby was “about 20.”
Mother argues that, under Kimberly F., supra, 56 Cal.App.4th at pages 529-530, a simple comparison of households is insufficient -- instead, we must consider all familial attachments and bonds. Even considering the relationship between D.G. and mother, as well as the relationship between D.G. and her new baby brother, we find that mother failed to meet her burden of showing that changed circumstances warranted a change in the juvenile court’s orders.
We find that the juvenile court did not err in denying mother’s section 388 petition. Reunification services had been terminated, thus the court’s focus had properly shifted to D.G.’s need for permanence and stability. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448.) The facts show that D.G.’s best interests were served by remaining with Edwin and Maria, especially given their intent to adopt her. No abuse of discretion occurred.
II. Termination of Parental Rights
A. Applicable law
Section 366.26 governs hearings terminating parental rights. Under section 366.26, subdivision (c)(1), if the juvenile court finds by clear and convincing evidence that a child is adoptable, the court “shall” terminate parental rights unless it finds that termination would be detrimental because of one of six enumerated exceptions. (§366.26, subds. (c)(1)(B)(i) – (vi).) Mother claims that two exceptions are applicable in this matter.
The first exception, found in section 366.26, subdivision (c)(1)(B)(i), provides an exception on the basis of the parent-child relationship. It states that a juvenile court may make an exception to termination of parental rights where “[t]he [parent has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
This section was formerly section 366.26, subdivision (c)(1)(A). Effective January 1, 2008, the section was amended and renumbered as section 366.26, subdivision (c)(1)(B)(i). (Stats. 2007, ch. 565, § 4; ch. 583, § 28.5.)
The second exception, found in section 366.26, subdivision (c)(1)(B)(v), provides that a juvenile court may make an exception to termination of parental rights where “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”
The party claiming an exception to termination of parental rights under section 366.26 has the burden of proving, by a preponderance of the evidence, that the exception applies. A juvenile court’s decision as to whether to apply the exception is reviewed for abuse of discretion. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1350-1351.)
In reviewing the statutory exceptions to termination of parental rights, courts have used both the abuse of discretion test and the substantial evidence test. However, “[t]he practical differences between the two standards of review are not significant. . . . 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.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. Mother did not establish the parent-child relationship exception
The exception found in section 366.26, subdivision (c)(1)(B)(i) requires that the parent show “regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.)
Mother argues that her visits with D.G. during the year leading up to the termination of her parental rights were “consistent, appropriate and without incident.” In addition, mother testified that she maintained daily telephone contact with D.G. over the past two years. However, mother admitted that after the birth of her baby in September 2007, she had not visited D.G. regularly. In fact, she had visited D.G. only about four times in the four months following the baby’s birth. At the hearing on January 8, 2008, mother testified that she currently lived only five to ten minutes away from Edwin’s home, and had previously lived 20 minutes away. Under the circumstances, we question whether mother’s recent visitation was sufficiently consistent to meet the first prong of the parent relationship exception. However, we find that we need not decide this question. Even if mother met the “regular visitation and contact” requirement, she has failed to show that D.G. would sufficiently benefit from continuing the relationship.
As noted above, mother contradicted this statement at trial.
It is only where “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, [that] the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Those circumstances do not exist here. D.G. was comfortable and happy in the home of Edwin and Maria, and desired to be with her mother for visits only. Mother was not the individual to whom D.G. looked for daily comfort and care.
Mother argues that, under In re Brandon C. (1999) 71 Cal.App.4th 1530, a quantitative measurement of the specific amount of comfort, nourishment or physical care provided by the parent during her weekly visitation is not required. In addition, mother argues that DCFS failed to provide an evaluation of the success of the visits between mother and D.G. Mother claims that her regular visits with D.G. led D.G. to request “sleepovers” with mother, and that mother’s regular telephone contact with D.G. was not even considered by DCFS. However, “‘[i]nteraction between natural parent and child will always confer some incidental benefit to the child . . . [t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (Brandon C., at p. 1534.) “[F]requent and loving contact . . . is [not] sufficient to establish the ‘benefit from a continuing relationship’ contemplated by the statute.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Mother’s arguments fail to meet her burden of showing that her relationship with D.G. “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 her maternal grandparents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We find that the evidence supports the juvenile court’s decision, and that no abuse of discretion occurred.
In her reply brief, mother argues that this court should consider that “The legacy of adoption within a family too often results in a permanent, acrimonious rift between the adopting relatives and the natural parent.” Mother points to no evidence presented below showing such a permanent, acrimonious rift -- nor has mother presented law suggesting that this factor should be considered in determining the best interests of the child.
C. Mother did not establish the sibling relationship exception
In September 2007, mother gave birth to a baby boy, D.G.’s half-sibling. Mother testified that D.G. loves her little brother. She argues that the adoption will have a significant detrimental impact on D.G.’s relationship with her sibling. Mother cites In re Naomi P. (2005) 132 Cal.App.4th 808, 822 for the proposition that the sibling exception to the termination of parental rights may be applicable even when siblings do not live together.
Mother admits that she has the burden of proving that severing the sibling relationship will be detrimental to D.G. As set forth in section 366.26, in evaluating the sibling relationship exception, the court may consider: whether the child was raised with the sibling in the same home; whether the child shared significant common experiences or has existing close and strong bonds with the sibling; and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.
We find that, under the circumstances, these factors support the trial court’s decision to terminate the parent-child relationship and allow D.G. the stability and permanence of adoption. First, we note that D.G. never lived in the same home with her half-brother. We recognize that, under Naomi P., this factor is not necessarily determinative. However, D.G. did not share significant common experiences with her baby half-brother, as she was living with her grandfather and his wife when the child was born. In addition, the evidence showed that she did not visit with her brother regularly; in fact, DCFS provided evidence that during the four months of the baby’s life, mother’s visits with D.G. became less frequent. As compared to the benefit of legal permanence through adoption, the maintenance of this sibling relationship does not support D.G.’s best interests.
Mother has failed to meet her burden of proving that severing the sibling relationship will be detrimental to D.G. We therefore find that the juvenile court did not err in failing to apply this exception to termination of parental rights.
DISPOSITION
The orders are affirmed.
We concur: DOITODD Acting P. J., ASHMANN-GERST J.