Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD16916
Bamattre-Manoukian, ACTING P.J.
Jose P. and Karen O., the parents of the child at issue here, have filed two appeals. The first appeal (H033036) challenges the juvenile court’s order denying the parents’ Welfare and Institutions Code section 388 petitions seeking return of the child or reinstatement of reunification services to them. Father contends that the court abused its discretion in denying his petition as there is no substantial evidence to support the court’s findings. Mother contends that the court violated her due process rights by failing to consider new evidence that the psychological diagnosis which was the basis for the termination of the reunification services was incorrect and new evidence that mother’s ability to parent the child was no longer impaired. As we find that substantial evidence supports the juvenile court’s findings and order denying the parents’ section 388 petitions, and that the court did not abuse its discretion, we will affirm the order denying the section 388 petitions.
The appeals were ordered considered together for briefing, oral argument and decision.
All further statutory references are to the Welfare and Institutions Code.
The parents’ second appeal (H033224) challenges the court’s order terminating their parental rights. The parents contend that the court erred in determining that the beneficial relationship exception to adoption in section 366.26, subdivision (c)(1)(B)(i), did not apply. As we find that substantial evidence supports the court’s findings, we will affirm the order terminating parental rights.
BACKGROUND
On March 22, 2006, respondent Department of Family and Children’s Services (the Department) filed a petition as to the child under section 300, subdivision (b) [Failure to protect]. The petition alleged that the child was taken into protective custody a few days after her birth as mother presented conflicting stories to the social worker about where she lived, who was coming to pick her and the child up, and who was the father of the child. Mother did not want any father’s name on the birth certificate, she was unemployed, and she did not appear to have the necessities to care for the child. Furthermore, mother’s three older children had become dependents of the court in 2002 and she had failed to reunify with them. The child was ordered detained on March 23, 2006, and the court ordered a paternity test for father at his request. The child was placed with a maternal aunt and the court ordered visitation for mother.
The court has taken judicial notice of the record in mother’s prior writ petition in this matter. (Karen O. v. Superior Court (June 22, 2007, H031414) [nonpub. opn.].) Our discussion of the early background of this matter is taken from our opinion in that writ matter.
A psychological evaluation from 2002, when mother’s three older children were removed from her care, indicated a provisional diagnosis for mother of “Schizophrenia, Paranoid Type with Prominent Negative Symptoms.” The evaluation stated that mother’s “emotional instability is currently precluding her from being able to adequately parent her children. She is not able to rationally focus on parenting tasks, is lacking a full appreciation of her current situation, is emotionally volatile, is utilizing poor judgment, and is having difficulty following through with completing the necessary steps to reunify with her children.” Mother had been admitted to Emergency Psychiatric Services (EPS) at Valley Medical Center in 2003 following a fire at the house where she and father were living. Hospital staff noted a diagnosis of psychotic disorder, possibly substance-induced. Mother was again admitted to EPS in 2005, and was diagnosed with “Psychotic Disorder, NOS.” Mother denied ever having any mental health issues and did not remember participating in the 2002 psychological evaluation. She had failed to participate in any court-ordered services for her older children, except the psychological evaluation, and she had failed to attend visits with the children. All three children had been placed with the maternal grandmother.
At the jurisdiction and disposition hearing on May 30, 2006, the court found true the allegations of the Department’s petition as amended, found by clear and convincing evidence that the welfare of the child required removal of the child from mother, and found that placement of the child with father would also be detrimental to the child’s well being. The court ordered services for mother and visitation for both parents pending establishment of father’s paternity. Services for mother were to include two psychological evaluations “with bypass questions.”
On July 17, 2006, the court ordered services for father, who had been found to be the child’s biological father. The court also granted the maternal aunt’s motion for de facto parent status.
James Livingston, Ph.D., a licensed psychologist, evaluated mother in August 2006. Dr. Livingston reported that mother suffered from an impaired sense of reality “serious enough to cause ineffective, inappropriate and deviant everyday behavior which is not in keeping with reality demands, and can be functionally disabling.” He further reported that mother “genuinely does not believe that she has any mental health disorder, or that there was any valid basis for removal of her sons in the past, or her daughter in the current circumstances. Given her lack of awareness of her disorder, it is my opinion that her disability will prevent her from effectively utilizing such services as psychiatric treatment.” He concluded that mother had a “psychotic disorder” that made her unable to care for her child, and that it was “uncertain” as to whether psychiatric treatment would sufficiently reduce her symptoms so that she could adequately care for a child.
William F. Alvarez, Ph.D., evaluated mother in September 2006. Dr. Alvarez had evaluated mother in 2002, and he found her presentation “somewhat more stable” than when he had previously evaluated her. However, he found that there remained “evidence of an underlying major mental disorder as reflected in her paranoia, thought blockage and inappropriate affect.” He gave her a provisional diagnosis of “Schizophrenia, Paranoid Type with Prominent Negative Symptoms,” and it was his opinion that the treatment most likely to be effective would include patient observation in order to clarify her diagnosis and to evaluate the appropriate psychopharmacological options. Dr. Alvarez found that mother’s mental disorder “interferes with her ability to provide consistent parenting of her child” and that she was currently “unable to care for and control her child adequately.” He also found that mother’s “denial of her mental health needs . . . renders her incapable of appropriately utilizing reunification efforts,” and that it was unlikely that mother “would benefit sufficiently from reunification services within the prescribed time frames to be able to adequately parent and care for her child.”
The social worker’s report for the six-month review hearing recommended further services for both parents. Mother was taking Prozac which had been prescribed by her family doctor. The parents were living together, they were regularly visiting the child, and they had participated in some aspects of their reunification plans. On November 15, 2006, the date set for the review hearing, counsel for the child requested a contested hearing, contending that there was no substantial probability the child could be returned to the parents within the following six months.
On December 19, 2006, the Department filed a section 388 petition seeking to either bypass or terminate services. (§§ 361.5, subds. (a)(1), (b)(2); 366.21, subd. (e).) The hearing on the petition was combined with the contested six-month review hearing. It began on February 26, 2007, and ended on April 3, 2007. The testimony at the hearing was as follows.
The social worker testified as an expert in the area of risk assessment of dependent children and provision of child welfare services with regard to family reunification. The social worker told mother that she had been diagnosed with schizophrenia and encouraged mother to comply with the recommended psychiatric treatment. Mother denied having schizophrenia, and said that the Prozac was helping her to feel better. The social worker was concerned about mother’s ability to reunify with the child because mother did not seem to have a grasp of what the issues were or why her children had been removed from her care.
The social worker did not believe that father fully understood the seriousness of mother’s diagnosed illness, and the social worker felt that it would be difficult for father to protect the child. She was concerned that because father worked full time he would be leaving the child in mother’s care. She was also concerned that father was involved in reported incidents of domestic violence with both his former spouse and mother.
Glenda Diseth, a licensed clinical social worker in the district attorney’s office, testified as an expert in the areas of risk assessment for dependent children, evaluating progress in reunification plans, and the appropriateness of a treatment plan. She recommended terminating services for both parents because she did not believe that they could make substantial progress on their plans within the time allowed by law for reunification with a child under the age of three years. Mother suffers from a significant mental illness and she was not complying with the recommended treatment. Father did not grasp the severity of mother’s illness, he tended to minimize the risks posed, and he insisted that mother could parent the child.
Dr. Livingston testified as an expert in diagnosis and treatment of mental disorders, assessing the effect of mental disability on the ability to adequately care for a child, assessing the ability to utilize reunification services, and assessing the time necessary to effectively utilize services. He concluded after his August 2006 evaluation of mother that mother “displayed the level of illogicality [and] perceptional distortion that is typically seen in people suffering from schizophrenia,” and that mother was also suffering from a “mild to moderate level of severity of clinical depression.” Dr. Livingston explained that it is common for a person suffering from a thought disorder such as schizophrenia to also suffer from a mood disorder such as depression. “When it’s not possible to determine whether the thought disorder or mood disorder are primary, we speak of schizoaffective disorder describing a condition in which both a mood and a thought disorder are present. Anti-depressants can be helpful and can raise the level of functioning of a patient who has depression but anti-depressants won’t be of assistance in treating a thought disorder. In fact, they can potentiate a psychotic episode.” His diagnosis of mother was that her thought disorder was primary. The only treatment he felt to be successful in clearing the kinds of symptoms mother was suffering from was antipsychotic medication.
Dr. Andrew Klompus, a psychiatrist, testified as an expert in diagnosis and treatment (including prescription medication) of mental and emotional disorders, assessing the effect of mental disability on the ability to adequately care for and control a child, assessing the capacity to utilize reunification services, and assessing the time necessary to effectively utilize services. He saw mother six times from June through November 2006. In Dr. Klompus’s opinion, mother “had a psychotic disorder and . . . the diagnosis that seemed to fit the best was schizophrenia, paranoid type . . . .” He recommended a course of treatment that included antipsychotic medication and he prescribed Risperdal. Mother said that she did not want to take that kind of medication and she denied having any problem with psychosis. He explained to her that it might help her become a better parent, and he gave her a very small dosage to try. Mother took it three times and then stopped taking it.
Dr. Klompus testified that a person could be schizophrenic and depressed at the same time, but schizophrenia would be the primary diagnosis. An antidepressant such as Prozac would not address the schizophrenia. In November 2006, after mother had been taking Prozac for several months, Dr. Klompus noted that mother’s thinking was still tangential and her insight was still poor. Dr. Klompus had rejected a diagnosis of depression because mother had not presented with symptoms of depression and had not complained of depression. Without taking an antipsychotic, it would be very difficult for mother to understand the complexities of a parenting class, to retain the information, or to apply any of the lessons.
Susan Sidel, a licensed marriage, family and child therapist, testified as an expert in the area of treatment of mental and emotional disorders, and in “conducting diagnosis through course of treatment.” She did psychiatric assessments and referrals for the Santa Clara County court, and met both parents after the court referred mother because of a domestic violence incident. When Sidel interviewed the parents together, father expressed concerns about mother’s peculiar behavior at home and he expressed an interest in getting help for mother. Mother did not admit or deny her behavior, but Sidel observed a “very guarded and paranoid thinking, paranoid features and a resistiveness to treatment of medication and . . . a lack of insight and judgment.”
Sidel referred mother to Dr. Klompus and sat in on several of their sessions. Sidel agreed with Dr. Klompus’s diagnosis of paranoid schizophrenia. She thought that mother had elements of underlying depression, but that this was not mother’s main problem. Mother was unwilling to cooperate in Dr. Klompus’s recommended treatment of antipsychotic medication. Mother eventually decided to get a second opinion. Sidel was concerned that mother lacked insight and judgment, and that she was not acknowledging what was really going on in her mind and in her daily life. Sidel was also concerned that mother’s internal process and paranoid thinking would interfere with her ability to be aware of the needs of a child.
Dr. John Greene, a psychiatrist, testified as an expert in evaluating psychiatric illnesses and mental disorders, evaluating how such people can function in society and their ability to reunify with their children or care for their children, and determining the appropriate treatment for such individuals. Dr. Greene evaluated mother in February 2007. He did not find any evidence of schizophrenia. His psychological test results indicated that mother showed “paranoia with depressive features.” He determined that mother had a major depressive disorder, without psychotic features, that the depression was in partial remission due to treatment with antidepression medication, and that mother was receiving appropriate treatment.
Dr. Greene disagreed with the evaluators who found that mother had schizophrenia or a psychotic disorder. In his opinion, that diagnosis was not supported by any evidence of the classic symptoms of schizophrenia. Moreover, other evaluators did not consider and rule out major depressive disorder as a diagnosis. Dr. Green did not believe that mother was a high risk to be left alone with the child.
Carol Johnson-Schroetlin, Ph.D., testified as an expert in determining psychological services needed by a patient, evaluation of a patient’s psychological status, and parent/child relationships. She started seeing mother in December 2006, and had seen her for nine sessions. Her impression was that mother was struggling with depression and grief related to the loss of her children, but that mother was making some progress dealing with her depression. It was Dr. Johnson-Schroetlin’s impression that mother did not have a psychotic disorder. She never considered that mother might be schizophrenic, but she did note some paranoid features, which she believed were not uncommon when a mother has experienced the trauma of having her children removed.
Dr. Alvarez testified as an expert in assessing mental capacity or disorder, assessing the effect of mental disability on the ability to adequately care for a child, assessing the capacity to utilize reunification resources within the statutory time frame, and assessing the time necessary to effectively utilize services. He explained that mother presented with a “very complex clinical picture, given the range of cognitive, affective and delusional features . . . .” He found that mother had “a major psychotic disorder, that there were major mood disorders underlying the psychotic disorder, and that there were basic cognitive dysfunctions underlying that as well, [and] that her emotions were variable, from being very agitated to being very lethargic.” He testified that, in order to disentangle mother’s complex clinical picture, a clinician would need to evaluate her over a period of time of at least six months to determine what the primary condition was. He felt, however, that mother’s symptoms were more indicative of schizophrenia than depression because her symptoms were recurring over a long period of time, with “continued patterns of the instability, continued patterns of delusions, continued patterns of cognitive difficulties, et cetera.” In his opinion, mother would not be able to parent effectively, and she would not be able to benefit in a meaningful way from services such as a parenting class. She would have to be in ongoing therapy to address some personality issues, she would have to be treated by a psychiatrist well trained in evaluating schizophrenia dual diagnosis issues, and she would have to be monitored to ensure that she was compliant with medications.
Mother testified that she and father had been in a committed relationship since 2002 and that they loved and cared for each other. She said that she had what she needed at home to take care of the child and that she did not understand why the child was taken from her. She and father intended to raise the child together. He provided most of the financial support and they supported each other emotionally. She would be the person who would be primarily responsible for taking care of the child while father was at work.
Mother testified that she had used drugs “years ago,” but also acknowledged that she had tested positive for methamphetamine in 2003 when she was admitted to EPS. She said someone had given her something to “calm her nerves” after the fire and it turned out to test positive for methamphetamine. She was taken to EPS for a 72-hour hold and tried the prescribed Risperdal, but it made her feel sick and dizzy. She was taken back to EPS in 2005 by her friend Barbara, who had agreed with the maternal grandmother and aunt that mother needed to be evaluated.
Mother testified that she was very depressed after the child was taken away from her. She felt hopeless and afraid. She felt that people at the county had conspired against her by insisting on a diagnosis of schizophrenia. When she tried the antipsychotic medication Dr. Klompus prescribed, she felt dizzy and had trouble sleeping so she stopped taking it. She wanted to get another opinion so she went to her family doctor, Dr. Morris, in August 2006. Dr. Morris prescribed Prozac, which had been effective in the past, and referred her to a psychiatrist, Dr. Shakir, who recommended that she double the dose of Prozac she had been taking. Under her Kaiser insurance, she was referred to a psychiatrist, Dr. Chen, whom she saw once a month. Dr. Chen continued her on the higher Prozac dosage and agreed with the diagnosis of depression. She also saw Johnson-Schroetlin weekly beginning in December 2006.
Mother testified that since she had started the Prozac in August 2006, she felt good and her relationship with father had improved. She believed that she suffered from depression and that Prozac was the appropriate treatment for her. She did not agree with the diagnosis of schizophrenia. But she said that if her treating doctors and therapists determined that she had schizophrenia and needed to take medication, she would do so. She said she talked to Dr. Chen, her treating psychiatrist, about antipsychotic medication and he did not think that was the proper medication for her.
Father testified that he and mother had been together for five years. He explained that living with mother was often frustrating because “she couldn’t function right.” She slept a lot, she “was always sad and crying,” she was always in her room in the dark, and she did not do anything around the house. He said that he did not understand this at the time but he later realized that she was depressed because she had lost her three children in 2002. When mother found out she was pregnant she was very happy and was looking forward to having the child. He wanted to be a father to the child.
Father testified that, when he found out the authorities had taken the child, he was shocked and he said that it was “cruel.” He said that they were fully prepared to take care of the child. He thought that the maternal grandmother and aunt, who did not like him and never approved of their relationship, had made the statements that resulted in the removal of the child.
Father testified that, from what he had been learning in his classes and what he knew about mother from living with her, he agreed with the doctors who said mother was depressed and he disagreed that she was schizophrenic. In order to find out more about schizophrenia, he talked to people in his classes at the National Alliance for Mentally Ill People who were schizophrenic and also contacted one of mother’s sisters who is schizophrenic. Comparing their behavior to mother’s, father said that mother was “just not like that.” After mother started taking Prozac, her symptoms improved and he felt she was back to being the woman he had first met. In father’s opinion, the medication mother had been taking since August 2006 was working and he believed that mother would now be fully capable of taking care of the child.
Father further testified that, if the court found that mother was schizophrenic and that it was a risk to the child to place her with mother, he would insist that he and mother separate and he would raise the child on his own. He had raised a child as a single parent and knew how to do it. He would procure day care while he worked. He said he and mother had talked about this possibility and she agreed. He said he would make sure the child maintained her relationship with mother’s family, whether they liked him or not. He wanted the child to know both sides of her family. If the court ordered mother to see certain doctors or to take certain medications, he would make sure she did that.
Mother’s friend Barbara Guillen testified that she had seen mother be “the most wonderful mother you can imagine” and then she had seen the opposite extreme “where she’s not focused on the children.” She said she facilitated mother’s admission to EPS in 2003. She said father had called her and said that he just could not deal with mother any more and did not know what to do. Guillen told father to bring mother to EPS and she would meet them there.
Guillen testified that mother stayed with her for a few weeks in 2005. During that stay, Guillen was very concerned about mother. Their conversations “would lead nowhere.” “She wouldn’t make sense . . . she could not complete a thought process . . . . She would just go on and on with these words and nothing would make sense.” Guillen told her that if she was going to stay there, she needed to get help. Guillen took mother to EPS in July 2005. When mother was released, Guillen took her to a follow-up appointment, but mother decided not to continue with the appointments or to avail herself of medical help. Guillen was frustrated that the mother refused help and asked mother to move on.
Corinne M., the maternal aunt who is the caretaker and de facto parent of the child, testified that she had concerns about mother’s thinking process. It was “difficult to carry on a conversation with her. Her thinking [was] scattered.” Mother denied the reality of her sons being removed from her care and held to the belief that she had not done anything wrong. She gave contradictory information about what was going on. And her moods would swing from screaming and yelling one moment to being pleasant the next.
Mother called Ms. M. from the hospital the day after the baby was born and asked her to bring a change of clothes to the hospital. Mother said that father was not involved. Ms. M. purchased some baby things and brought some clothes to the hospital. Mother seemed very happy and Ms. M. asked mother about father. Mother said that father was the father of the child but that “He has made it very clear he will have nothing to do” with the child. Ms. M. thought mother was somewhat detached from the child: “she was not engaged in thinking about what the baby needed.” Ms. M. was concerned about mother’s plans and asked her where she was going to live. Mother said she would go back to where she and father had been staying. She said that father was “involved in something I can’t get involved with.” This statement, and the fact it was uncertain where mother and the child would live, concerned Ms. M.
Ms. M. had concerns about mother’s ability to parent a small child, including her not being able to follow a thought process, not accepting what was true, and denying responsibility for her own actions. Ms. M. was also concerned about the instability of mother’s life. Ms. M. thought that mother’s mental problems had gotten worse over the last ten years. She was concerned because she was seeing some similarities to their older sister who had been diagnosed as schizophrenic and was conserved.
The maternal grandmother testified that she saw some similarities between mother and mother’s older sister who was diagnosed with schizophrenia. The grandmother believed mother suffered from the same disease. When she tried to get help for mother, mother insisted she was fine and that there was nothing wrong with her. The grandmother had concerns about mother’s ability to take care of the child. She thought mother intended to be a good mom, but just did not have the attention for it.
The court first found that returning the child to the parents “would create substantial risk of detriment to her safety, protection, physical, emotional well being.” The court found that the parents had participated in their plans and had made some progress, but that “because of the mental health issues of the mother that have not been appropriately and timely addressed and father’s denial of them, . . . there is no substantial probability the child shall be returned within the 12-month period.” Finally, the court found by clear and convincing evidence that “reasonable services have been offered and provided to the parents which were designed to aid them to overcome the problems which led to the removal of the child.” Based on these findings, on April 3, 2007, the court terminated reunification services and set a section 366.26 hearing for the child for August 1, 2007.
Mother filed a petition for an extraordinary writ pursuant to California Rules of Court rules 8.450 and 8.452, contending that the juvenile court’s findings were not supported by the evidence. After reviewing the record, we concluded that substantial evidence supported the court’s findings that the parents failed to make substantive progress in court-ordered treatment programs, that returning the child to the parents would create a substantial risk of detriment to the child’s safety, protection and well-being, that there was no substantial probability that the child could be returned to the parents within six months, and that reasonable services were provided or offered to the parents. Accordingly, we denied the writ petition. (§ 366.21, subds. (e) & (g).) (Karen O. v. Superior Court, supra, H031414.)
H033036
On July 16, 2007, father filed a section 388 request seeking unsupervised weekend visits with the child. The request noted that counsel for the child and the Department disagreed with the request. On July 25, 2007, mother filed a section 388 request seeking reinstatement of reunification services. This request also noted that counsel for the child and the Department disagreed with the request. The court set a hearing for both requests for August 1, 2007, the date set for the section 366.26 hearing. On August 1, 2007, the court continued the matter at the parties’ request. At the start of the hearing on the petitions, which was held over eight court days beginning on September 24, 2007, and ending on May 19, 2008, father informed the court that he was seeking custody of the child or, in the alternative, unsupervised visitation and regular contact with her.
A number of continuances in 2008 occurred due to the serious illness of father’s counsel which required a substitution of counsel.
Dr. John Yu-Sheng Chen, a psychiatrist, testified on September 24, 2007, that he has seen mother about every six weeks for one-half hour beginning in December 2006, and that he last saw her on August 24, 2007. At their first session, mother stated that she has had no significant psychiatric history except for a depressive episode a few years earlier. Mother was already taking Prozac, and he has continued the prescription. He has not performed any psychological tests, and he has not reviewed mother’s prior medical or psychological records. Mother’s current diagnosis, which is based on what mother has told him and his observations, is adjustment disorder with anxiety and depressive symptoms. Cyrus Yokum, mother’s therapist, agrees with the diagnosis. Mother continues to show signs of depression and anxiety, but Dr. Chen has not observed any signs of schizophrenia. Nor has he observed any difficulty in her understanding their conversations, in her understanding his instructions to her regarding her treatment plan, or in her decision-making regarding her responsibilities. He would not prescribe any antipsychotic medication for her.
Roberta Verderico, a licensed marriage and family therapist, testified on September 25, 2007, that she began seeing father in January 2007, and has seen him regularly except for the period between the end of March and the middle of June 2007. She was asked by father’s social worker to help father understand schizophrenia and to help him deal with his anger issues. Father has an impulse control disorder and a post-traumatic stress disorder due to not being able to parent the child. They are working on anger management, domestic violence issues, and partner relationship problems between mother and father. In the course of father’s therapy, Verderico has seen a change in his anger and attitude toward mother’s family and the court, and in their need to step in to provide protection and care for the child. They have talked about schizophrenia, what symptoms he should watch for, how it would affect mother’s parenting, and how to deal with it. Verderico believes that, if mother showed signs of an impairment that affects her ability to take care of the child, father would take appropriate action to protect the child. Father stated that he had taken mother to the hospital when, in the past, she showed signs of hallucinations or delusions of some sort. However, father still believes that mother does not have schizophrenia. He believes that she has depression, that she is being properly treated, and that she is functioning well. He is committed to their relationship and his hope is that, if the child were to be returned to him, the family remain intact.
During father’s session with Verderico in late November 2007, father mentioned that he had noticed a change in mother’s behavior. He checked with mother and learned that she had not been taking her medication and that her prescription for Prozac had run out. He made sure that the prescription was refilled and that mother began taking her medication again.
Mother testified on September 25, 2007, that she began seeing Dr. Chen in December 2006. Prior to that, she saw Dr. Klompus, who recommended that she take Risperdal. Mother wanted another opinion, and got one. Dr. Chen has prescribed, and she has been taking, Prozac. She has not experienced any hallucinations since April 2006, and she feels wonderful. She has continued her classes on domestic violence and is in compliance with all the requirements for the mental health court. She plans to continue her treatment with Dr. Chen as long as she can.
Currently, mother lives with father and father’s 17-year-old son, and she is involved in the son’s care. She is also employed; she does all the banking for the store she works for. She would like to be able to parent the child with father, but would comply with a court order requiring her to move out of father’s home or allowing her to see the child only at specified times. She is not taking medication for schizophrenia because her treating psychiatrist, Dr. Chen, has not told her that she has schizophrenia. Instead, he has given her Prozac for depression. She believes that the doctors who diagnosed her with schizophrenia misdiagnosed her.
Father testified on September 26, and December 3, 2007, that he currently visits the child twice each week, and the visits have been going well. He felt betrayed and disappointed when the child was not returned to him after the prior hearing. In therapy, he has addressed his feelings about the individuals involved in the hearings. He has been working on his anger issues and he believes that he has made substantial progress in that area. He is now ready to take care of the child and there is no question in his mind that mother would be a good parent to the child. He believes that taking Prozac is enough to ameliorate any condition that mother may have and he does not think that mother poses any risk to the child if the child were returned to mother’s care. He has not encouraged mother to comply with any recommended treatment for schizophrenia or to take any medication other than Prozac.
When asked what he would do if the court finds that there is too much of a risk for mother to have unsupervised time with the child due to mother’s decision to not get treatment for her schizophrenia, father responded that mother “doesn’t have schizophrenia like they say they do [sic]. I know that. I know, I know.” When asked how he would protect the child from mother if the court allowed him to have custody or unsupervised visits with the child, father responded that he would never put the child at risk or in a dangerous situation. “If I feel [mother] is a danger to my daughter, [mother] has got to go. It’s as simple as that.” He would restrict mother’s contact with the child if the court ordered him to do so.
The social worker testified on December 3, 2007, as an expert in the risk assessment for dependent children and the assessment of permanency planning options. Mother has had consistent supervised visits with the child and the visits have been appropriate. The social worker has not received any reports of abnormal or unusual conduct by mother. However, in the social worker’s opinion, there has not been a change of circumstances since the six-month review hearing and it remains in the child’s best interests to stay where she is. In addition, it is not in the best interests of the child to have weekend visits with both parents because of the risk of detriment.
Ester Soto, who has supervised visits between the parents and the child, testified on December 4, 2007, that she has not noticed any conduct by mother that might put the child at risk. Nor has she seen any behavior by father that has caused her concern. Both parents have appropriately expressed concerns about the child and have appropriately acted with the child, even when the child has had tantrums.
Dr. Alvarez testified on February 20, 2008, as an expert in the diagnosis and treatment of mental disorders and in assessing the affect of mental disability on the ability to adequately care for a child. He reviewed Dr. Chen’s progress notes and testimony, father’s testimony and mother’s testimony. He has not met with mother since his evaluation of her in September 2006. In that evaluation, he indicated that mother had a provisional diagnosis of schizophrenia, paranoid type. Nothing in Dr. Chen’s records would rule out that provisional finding. Although Dr. Chen has been treating mother for depression for about one year, and he has not reported any signs or indications of schizophrenia, that does not necessarily support his diagnosis of depression. Dr. Chen has not considered mother’s prior history or the diagnoses by other doctors. Someone who has an underlying psychotic disorder with periods of exacerbated psychoses can function normally or fairly normally during the periods when there is no active psychosis. In addition, some of the subtle signs of schizophrenia can mimic depression. Although mother is able to hold down a job, the issues involved with mother’s prior psychotic episodes have not been addressed, and those are the issues that need to be addressed for reunification services to be effective.
The parties submitted the matter on May 19, 2008, after waiving closing arguments. On June 3, 2008, the court ruled as follows: “So with respect to [mother’s section] 388 petition, there are two parts to the proof requirements for a [section] 388 petition to be sustained. The first is that there’s a change in circumstances or new evidence.
“And I have reviewed all of the testimony and file and transcripts from previous hearings along with the decision that was rendered by the Sixth Appellate District and filed on June 27th, 2007. And I find that there is no change of circumstances, that burden has not been met.
“The mother was previously diagnosed with a psychotic disorder. She was recommended to undergo a course of treatment including therapy, psychotropic medication, and continued observation.
“She was diagnosed with that psychotic disorder by two psychologists and by a court-referred psychiatrist. Her case plan was to follow the recommendations from those psychological evaluations.
“Instead of doing that she rejected that diagnosis and the recommended treatment plan, sought her own care. That was through Dr. Chen and through a family doctor who prescribed Prozac for her depression.
“She didn’t follow through with any of the referrals that were given to her for the purpose of dealing with what had been diagnosed as her psychotic condition. And neither of the doctors that prescribed Prozac addressed issues identified in the evaluations that prevented her from adequately parenting her child.
“The evidence at trial was exactly the same. The mother continues to reject the diagnosis that the trial court found to be appropriate and that the appellate court also found to be appropriate and refuses the kind of antipsychotic medication and treatment that would stabilize her and treat that mental illness. And so that the situation is exactly the same.
On April 3, 2007, when the juvenile court terminated reunification services and set the matter for a section 366.26 hearing, the court found that there was no substantial probability the child could be returned to the parents care within the 12-month period “because of the mental health issues of the mother that have not been appropriately and timely addressed and father’s denial of them.” The court found that mother had a history of both visual and auditory hallucinations, and that Dr. Alvarez felt she needed to be evaluated over six months of treatment with therapy and psychotropic medication, but mother had not embarked on such a course of treatment and father believed that mother did not have a mental health issue. This court found that substantial evidence supported the findings by the trial court, but we did not make any findings concerning whether mother has schizophrenia or whether she does or does not have a psychotic illness.
“There are no reunification services available at this time because of the passage of time. I think in the course of the trial it appeared to me that the mother was requesting that the child be returned to her, which would be the only alternative other than moving forward to a [section 366].26 hearing at this time. And there was insufficient evidence to prove that circumstances had changed enough so that that would be appropriate.
“And there was no evidence at this point that the court can rely upon that would indicate that it would be in the child’s best interests to do so.
“Turning to father’s [section] 388 petition, once again we have a circumstance that there has been no change in the position of the father. He is requesting specifically in the [section] 388 petition unsupervised visitation, weekend visitation. But during the course of the trial that changed to return of the child to him at this time.
“He indicates he’s continued his psychotherapy, complied with his service plan at his own expense and visited consistently without incident.
“He indicates he’s the only paternal relative that this child knows and he’s asking for unsupervised visits and to have a more natural environment to allow the other half of the family, including her brother . . . to have a relationship with the child.
“And once again, the circumstances that were found to be true by the court and approved by the appellate court at the last time that the matter was before the court was that the father denied the mother suffered from any mental illness or that she posed a threat to the child.
“He thought she could be a good mother. And they testified they intended to raise the child together and that she would be, at times being the sole caretaker of the child.
“Both parents’ unwillingness to recognize the importance of the mother’s mental health problems and how they affected the safety of this small child were part of the reunification plan, a critical part of the reunification plan, and nothing has changed in the parents’ position with respect to whether the court should have originally taken any jurisdiction over the child, whether the original diagnoses that were found to be true by the court and approved by the appellate court were the correct diagnoses, and the parents continued on in their own chosen way of dealing with the issue and now come back and ask the court to find that because they continued on in that chosen way of dealing with the issues that that should convince the court to I guess throw out all the findings that the previous courts have made. And I’m not prepared to do that.
“So the relief requested by both of these [section] 388 petitions is hereby denied.”
H033224
The social worker’s report and addendums for the section 366.26 hearing recommended that parental rights be terminated, that the child be freed for adoption, and that adoption be ordered as her permanent plan. The child is attached to her prospective-adoptive parents and siblings. The child is thriving in their home and the prospective-adoptive parents are committed to her.
The contested section 366.26 hearing was held on July 1, 2008. The addendum reports with the logs of the parents’ visits with the child were admitted into evidence. The social worker testified as an expert in the assessment of permanency planning options for dependent children. Because the child has never lived with either parent, and because she only visits with them twice a week, the child does not see them as occupying a parental role. Although the child asks her caretaker about the visit supervisors, she never asks about the parents. The child enjoys her visits with the parents, and she has been upset at the conclusion of a visit a couple of times, but by and large the child does not protest in any way at the conclusion of the visits. During her ride home and after she arrives home following a visit, the child clings and expresses neediness. Because the child has been with the caregivers since March 2006, they have provided her day-to-day care, and the child has a close, loving relationship with the caregivers, the child would not be harmed if the parents’ parental rights were terminated.
Mother testified that, when the child arrives for a visit, she runs into the room with open arms, saying “ ‘hi, mommy,’ ” and hugs and kisses mother. She responds to father the same way. She’ll ask, “ ‘where’s daddy?’ ” if he is not there. They read, eat, and play games together during the visits.
Father testified that he has visited the child regularly for over two years. The child runs into the visiting room with open arms, looking happy. She hugs and kisses him, and calls him “daddy.” He hugs her, plays with her, feeds her, and changes her diaper and clothes. When his son has been included in the visits, the child pulls away from him because she does not know him well. The child hugs and kisses father when she leaves. Many times she does not want to go, but he tells her it is time to go and she has gotten used to it. Father testified that he thinks it is important for the child to continue to have a relationship with him because “she’s going to need me. I’m her father.”
Following submission of the matter, the court ruled in relevant part as follows: “The unfortunate circumstance at a [section 366].26 hearing is that the inquiry of the court is pretty limited. . . . The first question is whether or not the child is likely to be adopted. And the answer in this case, of course, is yes, the child is likely to be adopted.”
“That being said then the court is directed to terminate parental rights and free the child for adoption unless it’s able to find that an exception exists. And there has been basically evidence . . . with regard to one exception here and some reference to a second.”
“The first exception that the evidence was presented on was that the parents had maintained regular contact with the child and had visited her on a regular basis.
“And as [counsel for the child] indicated in her closing statements that’s true, they have. They have maintained a level of visitation and a commitment to visitation that I rarely see in these proceedings.
“And so that level of visitation has created a relationship with [the child] which is a positive one. It is a relationship that [the child] looks forward to the visits, [the child] enjoys the visits, she interacts well with her parents during those visits.
“And there’s certainly nothing that I could say or find in the evidence that would lead me to criticize or fault the parents in any way with respect to how they’ve interacted with their child during visitation even during times when I’m sure that this has been a very painful process.
“The other side of that is whether or not the relationship that has been developed with [the child] is a parent/child relationship and whether the nature of that parent/child relationship is so strong that . . . the benefit of preserving that parent/child relationship outweighs the benefit that [the child] would receive by the permanency of being adopted as she is likely to be adopted.
“That is a very difficult standard to reach. And in this particular case it is more difficult because [the child] has never been in the full-time custody of either parent.
“And so I do not believe that the evidence establishes that – when I weigh the two options – that preserving the relationship with the birth parents outweighs the benefit that [the child] would receive from permanency. And so I find based on the evidence that’s been presented to me today that that exception does not apply.”
“The second exception that was alluded to was a relationship that [the child] has with siblings. . . . [¶] But once again, the exception would require that I find that any relationship that was established in that way, preserving that relationship is so important that it outweighs . . . the benefit of permanency from adoption. And I don’t think that the evidence rises to that level.
“So those statements being made with respect to the evidence that was before me today I do believe that it is appropriate to make the findings and orders as they are recommended.”
On July 28, 2008, the court filed its order terminating the parents’ parental rights. The court found by clear and convincing evidence that it is likely that the child will be adopted and that termination of the parents’ parental rights is in the best interests of the child.
DISCUSSION
H033036
Father contends that the juvenile court abused its discretion by denying his section 388 petition. He contends that he met his burden of proving by a preponderance of the evidence that changed circumstances had occurred since the previous hearing. He also contends that there is no substantial evidence to support the court’s findings. “All the court did was accept [Dr.] Alvarez’[s] stale evaluation and his recalcitrance to accept Dr. Chen’s professional diagnosis of the nature of mother’s mental illness. This position by the trial court was tantamount to the evisceration of section 388 and the vital constitutional role it plays in dependency matters.” “Father urges this Court to use the denial of mother’s writ as the starting point in determining whether or not he has shown changed circumstances since that hearing by a preponderance of the evidence. Here, the court took the position that it was the end of the case. And by doing so did not give the evidence of changed circumstances presented its just consideration.”
Mother contends that the juvenile court violated her due process rights by refusing to consider the new evidence that the diagnosis upon which the termination of reunification services was based was incorrect, and the new evidence that mother’s ability to parent was no longer impaired if she did have that condition. Mother argues that the court “erred as a matter of law” when it found that she had failed to show changed circumstances within the meaning of section 388, subdivision (a), and that the court’s ruling turned the findings at the six-month review hearing into “irrefutable presumptions.” Mother further argues that the court “refused to consider” all the new evidence presented because the evidence “was not consistent with the court’s belief that the schizophrenia diagnosis and the ‘experts’ recommended treatment for that diagnosis were set in stone.” Lastly, mother contends that the court erred “as a matter of law” in concluding that it could not grant additional reunification services because of the passage of time.
The Department contends that the court’s decision was a sound exercise of its discretion. Specifically, the Department argues that the court allowed the parents to present evidence of a change of circumstances, but they did not sustain their burden of proof. “The juvenile court did not believe that circumstances had changed, and its decision was supported by substantial evidence.” Counsel for the child argues that, because “mother testified that in fact she had never engaged in the treatment services that were found to be necessary by the court” and father “did not believe that the mother suffered from a mental illness and [believed] that the child was in no danger,” “[n]othing had changed.”
The parents’ section 388 petitions requested a modification of the juvenile court’s order setting a section 366.26 hearing, and the return of the child to them. Section 388, subdivision (a), provides in relevant part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of the court previously made . . . .” Section 388 provides “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.] As such, section 388 is vital to the constitutionality of our dependency scheme . . . .” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, italics omitted, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309; see also In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.)
At a hearing on a section 388 petition, “[t]he petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the court’s previous order is in the child’s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 671-672.) On appeal, the standard of review is not whether the petitioner’s evidence supported his or her petition, but whether the court’s exercise of its discretion was clearly without any evidentiary support. “The 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., supra, 8 Cal.4th at pp. 415-416; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
“[U]ntil the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.) However, “[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (Id. at p. 309; In re Jasmon O., supra, 8 Cal.4th at p. 420.) “On the eve of a section 366.26 hearing, the child’s interest in stability is the court’s foremost concern, outweighing the parent’s interest in reunification. Thus, a section 388 petition seeking reinstatement . . . of reunification services must be directed at the best interest of the child. [Citations.]” (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349; see also In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
The relevant factors in evaluating a section 388 petition have been summarized as follows: “(1) the seriousness of the problem which led to the dependency, and the reasons for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) In this case, the problems leading to the child’s dependency centered on mother’s past psychotic behavior and her failure to reunify with her three older children. Unlike Kimberly F., this is not a case where the problem was simply an unsanitary and cluttered house. Here, mother’s three older children were removed from her care due at least in part to her psychotic behavior, the behavior continued even after this child was removed from mother’s care in March 2006, and there remained a risk that mother could again have a psychotic episode because she refused to follow the recommended treatment plan designed to address those psychotic episodes.
Although mother presented evidence that her treating psychiatrist, Dr. Chen, believes that her only mental health issue is depression, there is other evidence in the record which indicates that may not be the case. Dr. Livingston was of the opinion that mother has a psychotic disorder. Dr. Alvarez was of the opinion that mother has a provisional diagnosis of schizophrenia as well as depression, and that the issues involved with mother’s prior psychotic episodes have not been addressed. Dr. Chen testified that he did not review mother’s prior medical records or the prior evaluations and diagnoses, he had not performed any psychological testing on mother, and he only prescribed Prozac based on mother’s statements to him and to her therapist regarding her mental health issues and history, which she did not realistically describe. Dr. Chen was only seeing mother every six weeks for one-half hour, and then only to review her medication. Mother’s therapist did not testify. Dr. Alvarez testified that there was nothing in Dr. Chen’s medical records that would rule out a provisional finding of schizophrenia, that someone with schizophrenia can function fairly normally between periods of active psychosis, and that some of the symptoms of depression can mimic some of the subtle symptoms of schizophrenia. Dr. Alvarez testified that, unless and until schizophrenia can be ruled out as a diagnosis, placement of the child with mother would place the child at risk due to mother’s failure or refusal to follow the recommended treatment plan and father’s failure to ensure that she did.
Father presented evidence that he is ready to take care of the child. However, he also testified that he has not encouraged mother to comply with any recommended treatment for her psychotic episodes or to take any medication other than Prozac. His therapist testified that he believes that mother is functioning well and is being properly treated. The therapist also testified that father is committed to their relationship and hopes that, if the child were to be returned to him, the family would remain intact. On this record, we cannot say that father has carried his burden of showing a change of circumstances since the prior court order.
Regarding the second factor, mother’s and father’s visits with the child have been consistent and positive. The child also appears to know her mother’s three sons, who live with the child’s maternal grandmother. However, the child’s current caretaker, the child’s maternal aunt, has been the child’s caretaker since the first month of her life. By all accounts, the child is attached to the caretaker and the caretakers’ children, and she is happy and thriving in their home. As the court noted in In re Kimberly F., “the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, citing In re Jasmon O., supra, 8 Cal.4th at p. 419.)
As to the last factor, the degree to which the problem may be easily removed or ameliorated, the court found that mother continues to reject the psychological evaluations and diagnoses that the court earlier found to be appropriate, even though mother’s treating psychiatrist has not reviewed and addressed the issues identified in those evaluations and diagnoses. The problems that led to the removal of the child could have been removed or ameliorated if mother had either followed through with the recommended treatment plan or had her treating psychiatrist otherwise address the identified issues. Yet, mother failed or refused to follow either of these courses of action, and father failed to ensure that she did. The parents cannot now complain that the court found that that they did not carry their burden of showing that there was a change of circumstance or new evidence warranting a change in the prior order setting a section 366.26 hearing for the child.
Even if we were to find that the parents had shown a change of circumstances, we would find that they have failed to show that their proposed change to the court’s previous order is in the best interests of the child. (In re Jasmon O., supra, 8 Cal.4th at p. 415.) The child had lived for almost all of her life with her current caretakers, who are maternal relatives; she was attached to the caretakers, and happy and thriving in their home; the child had never lived with the parents; and there was no evidence that the child would not continue to have contact with other members of the parents’ families if the child was not returned to the parents’ care. On this record, we find that the parents have not shown an abuse of discretion or a violation of due process.
On June 3, 2008, the date the court ruled on the section 388 petitions, the child was over two years old and had been out of her parents’ custody since a few days after her birth. The cutoff date for fostering family reunification is 18 months; at this point “the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) It is true, as mother contends, that in the exceptional case the court has the discretion to order more than 18 months of services. (Id. at pp. 1793-1799; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778; see also In re Marilyn H., supra, 5 Cal.4th at p. 310; § 352.) However, the cases finding such circumstances have “uniformly involved some external factor which prevented the parent from participating in the case plan.” (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1790-1792, involved a mother who had worked hard to comply with the case plan but had been hospitalized during a critical stage of the reunification period. As a result, she could not participate in her case plan, necessitating a continuation of the reunification period beyond the 18 months. Here, the parents received reasonable reunification services and their failure to adhere to and progress on the case plan was not caused by forces over which they had no control. As a result, mother has not shown that the court erred in refusing to grant her additional reunification services.
H033224
Father contends that the juvenile court erred in finding that the beneficial relationship exception to adoption in section 366.26, subdivision (c)(1)(B)(i) did not apply. He argues that, because both elements necessary for the operation of that exception were present, the court should have determined that the exception applied in this case.
Mother contends that the court erred in finding that the beneficial relationship exception to adoption did not apply because it failed to consider the harm to the child from the loss of the parent/child relationship. She argues that the evidence shows that the child “had a substantial, positive attachment to the parents that was developed and maintained by their faithful, attentive, twice-a-week visits with [the child] over the course of the dependency proceedings.”
The Department contends that the court properly rejected the beneficial relationship exception to adoption as the parents failed to establish that the child would be greatly harmed if their parental rights were terminated. Counsel for the child contends that, although the parents visited the child regularly, “[t]his visiting relationship did not outweigh the child’s need for permanency in her life.”
If a child is found to be adoptable, the court at a section 366.26 hearing must order adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under any of the statutory exceptions. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) The burden is on the parent to show that an exception applies. The relevant exception in this case is found in section 366.26, subdivision (c)(1)(B)(i). Under this exception, the parent must show that termination of parental rights would be detrimental to the child because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing their relationship.” (Ibid.) The kind of parent/child relationship which must exist in order to trigger the application of this exception must be sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) The court in In re Autumn H. (1994) 27 Cal.App.4th 567 defined this relationship as one which “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In 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.” (Id. at p. 575; see also In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re S.B. (2008) 164 Cal.App.4th 289, 297.)
The court in In re Autumn H. acknowledged that “[i]nteraction between natural parent and child will always confer some incidental benefit to the child.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, the relationship must be more than pleasant and enjoyable visits. The evidence must show that the regular visits and contact between the parents and the child has resulted in “a significant, positive, emotional attachment from child to parent.” (Ibid; In re S.B., supra, 164 Cal.App.4th at p. 297.) “Such a relationship ‘arises from day-to-day interaction, companionship and shared experiences.’ ” (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; In re S.B., supra, 164 Cal.App.4th at p. 297.) In order to fall within the exception, the relationship must have some resemblance to the consistent, daily nurturing that marks a parental relationship. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)
The juvenile court’s finding that the beneficial relationship exception did not apply is reviewed under the substantial evidence standard. (In re Casey D. (1999) 70 Cal.App.4th 38, 53; In re S.B., supra, 164 Cal.App.4th at pp. 297-298.) “[W]e presume in favor of the order, considering the evidence 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. [Citations.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, the juvenile court considered all of the evidence in the record of these proceedings and found that, although the parents have maintained regular visitation and contact with the child, the child does not have such a significant, positive, and emotional attachment to the parents that the child would be greatly harmed if their relationship did not continue. Nothing in the record indicates that the child has ever formed either a parental bond or an attachment to either parent. Unlike in In re S.B., supra, 164 Cal.App.4th 289, cited by both parents, the child in this case has been out of the parents’ care since shortly after her birth, and neither parent has ever had responsibility for her day-to-day care. Although the child enjoys the visits she has had with the parents, and although she has asked about the visitation monitor, she has not asked about the parents either before or after their visits. On the record before us, we find substantial evidence supports the juvenile court’s determination that the parents have not carried their burden of showing that the beneficial relationship exception to adoption applies in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.