Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J214087, J214088, Marsha Slough, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P.J.
Defendant and appellant L.A. (Mother) is the mother of two boys, E.G., and I.G., (children) who were removed from her care at the ages of one and three, respectively. Mother argues the juvenile court erred when it terminated her parental rights and freed the children for adoption by their foster mother at a hearing held pursuant to Welfare and Institutions Code section 366.26. Specifically, Mother argues the juvenile court should have declined to terminate her parental rights under the parental benefit exception to the preference for adoption, found at section 366.26, subdivision (c)(1)(B)(i). As discussed below, we conclude that Mother waived this argument by failing to raise it below, and, in any case, it has no merit. Thus, we affirm the juvenile court’s orders terminating Mother’s parental rights and freeing the children for adoption.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
The Department of Children’s Services (DCS) received an after hours, immediate response referral in April 2007, after police had responded to a domestic violence call at the home and found it in disarray. The home was strewn with filthy clothing and trash, the kitchen was filled with rotting food, and there was little edible food available for the children to eat. The children were very dirty and their hair was oily and matted. Police arrested the children’s father (Father) for possessing drugs and being under the influence. Mother had left the home by the time police and later DCS arrived. The paternal grandmother was at the home. She had temporary guardianship of the children because of previous CPS involvement with the family, but had allowed them to return to their parents for several days and nights at a time. Given these circumstances, DCS detained the children.
Father is not a party to this appeal and is referred to only when necessary.
The section 300 dependency petition filed on April 10, 2007, alleged, under subdivisions (b) (failure to protect) and (g) (no provision for support) that the parents had engaged in domestic violence in the children’s presence, abused drugs, and failed to supervise and protect the children and provide them with adequate food and shelter, and that the paternal grandmother had failed to supervise and protect the children. The petition also alleged that Father was incarcerated and Mother’s whereabouts were unknown
Mother appeared at the detention hearing held on April 11, 2007. The court found a prima facie case for out of home detention and ordered weekly visitation.
In the jurisdiction/disposition report filed April 27, 2007, the social worker reported that, according to Mother, Father had hit E.G. in the face three times and threw his stroller over sideways on the floor a week before the detention hearing. E.G. had bruises on his head and abrasions on his face, but Father would not allow Mother to take E.G. to the doctor. Mother said that father only hits E.G., not I.G., and that this occurred three to four times per month. Mother stated that Father was less violent when he smoked methamphetamine. She also stated that Father would not allow her to leave the house and had removed the telephone from the home. The police were called on the day the children were removed because Mother had wanted to visit her sister and Father had become angry, slugging her, hitting her with a broomstick and slapping E.G. Father admitted to domestic violence against Mother. He also admitted to spanking E.G., but couldn’t remember the details because he had been under the influence of drugs at the time.
At the jurisdiction/disposition hearing held on May 2, 2007, Mother signed a waiver admitting the allegations. Mother was ordered to complete general counseling, health services, violence as it affects children, parent education program, domestic violence program, substance abuse testing, outpatient program and a 12-step program.
The children’s first foster mother requested respite care for the children while she visited Mexico. The children were moved on June 1, 2007 to the home of the woman who would become their prospective adoptive parent. The children adjusted well to the new placement and so on August 9, 2007, DCS asked the court to place the children in the home. The court assented.
At the six-month status review hearing held on January 23, 2008, the juvenile court ordered six more months of services.
At the twelve-month status review hearing held on June 5, 2008, the juvenile court found that Mother had made only minimal progress in her case plan, terminated reunification services, and set a section 366.26 hearing.
The section 366.26 hearing was held on October 20, 2008. Mother presented no evidence other than proof of enrollment at an out-patient substance abuse program. During closing argument, Mother’s counsel did not urge the court to apply the parental benefit exception to the preference for adoption. The juvenile court found the children adoptable, terminated Mother’s parental rights, and chose adoption as the permanent plan. This appeal followed.
Discussion
Mother argues that the court should have, sua sponte, applied the parental benefit exception to the preference for adoption when it decided to terminate her parental rights. DCS correctly points out that, by failing to raise it below, Mother has waived this argument. Even were it not so, the argument is without merit.
Section 366.26, subdivision (c)(1)(B)(i) provides for an exception to a court’s decision to terminate parental rights. The exception applies when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proving that the exception applies. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) “The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) This means that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Ibid.)
It is somewhat arguable that Mother meets the first requirement of the exception—regular visits. Prior to the six-month review, Mother attended “the majority” of weekly visits, although she regularly arrived late. Between the six- and twelve-month reviews, mother attended seven of the eleven weekly visits, missing four visits. Between the twelve-month review and the section 366.26 hearing, Mother’s visits were “inconsistent,” in that she missed about one weekly visit per month.
It is, however, not arguable that Mother meets the second requirement of the exception—that the children have a “significant, positive, emotional attachment” to Mother, such that the benefits to the children from continuing the parent-child bond would outweigh the benefits to the children from being adopted. This is especially true in view of the fact that Mother carried the burden of proof in the juvenile court and chose not to present any evidence or argument on this point. The following evidence as to the children’s attachment to Mother is in the record on appeal. Prior to the six-month review, the children enjoyed visiting with Mother and appeared comfortable with her, and there were no problems with transitions, either before or after the visits. Between the six- and twelve-month reviews, the visits were “generally positive.” However, between the twelve-month review and the section 366.26 hearing, the children behaved negatively when returning from visiting with Mother. In the report prepared for the section 366.26 hearing, the social worker commented that Mother had difficulty taking the initiative when the children began to fight and that, while the visits were generally positive, the children appeared to view Mother as a playmate rather than in a parental role. None of this indicates that the children had a positive, significant emotional attachment to Mother, the benefits of which would outweigh the benefits they would receive by being adopted by their current foster mother.
To the contrary, the record manifests that the children have bonded with the foster mother since being placed with her for respite care on June 1, 2007. First, even Mother and Father requested in August of 2007 that the children remain with the current foster mother rather than returning to their first placement “as they have been impressed with changes seen in the children, and how they interact during visits.” Second, the children “have a secure bond and attachment to [the foster mother] and look to her for comfort and security... and refer to her as “mama.” Third, the social worker commented in the twelve-month review report that she had observed the children “to delight in the presence of their [foster mother].” Thus, given the dearth of evidence that the children were attached to Mother as compared to the ample evidence that they were attached to the foster mother, we conclude that, even had Mother not waived this point by failing to raise it in the juvenile court, Mother’s parental bond argument is without merit.
Disposition
The judgment of the juvenile court is affirmed.
We concur: McKINSTER, J., MILLER, J.