Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. NJ12192D Martin Staven, Judge. (Retired Judge of the Tulare County S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McCONNELL, P. J.
Beatrice R. (Beatrice) appeals a juvenile court judgment terminating her parental rights over Esperanza R. and choosing adoption as the preferred permanent plan. Beatrice contends insufficient evidence supports the court's finding the beneficial parent-child relationship exception to adoption is inapplicable. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) We affirm the judgment.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship exception, section 366.26, formerly subdivision (c)(1)(A), is now section 366.26, subdivision (c)(1)(B)(i) without substantive change.
FACTUAL AND PROCEDURAL BACKGROUND
Beatrice has given birth to four children. Beatrice was a dependent of the juvenile court herself when her daughter was born in 2001. She asked that the baby be removed from her care because she could not care for her, and parental rights were terminated in early 2003.
A son was born to Beatrice in 2003 and a second daughter was born to her in 2004. In January 2005, the San Diego County Health and Human Services Agency (the Agency) removed the children from Beatrice's custody on the ground her daughter sustained multiple non-accidental injuries, including several fractures. Beatrice was not offered reunification services and her parental rights were terminated in those cases in January 2006.
Esperanza was born to Beatrice in June 2006, and the Agency removed her from Beatrice's custody and filed a petition on her behalf based on the injuries Beatrice inflicted on her second daughter. The Agency recommended that Beatrice be denied reunification services and the matter be set for a selection and implementation hearing under section 366.26, and the court agreed.
The Agency's December 2006 assessment report states: "Esperanza is a beautiful baby who is thriving in her placement. She is well bonded to her caregivers and looks to them to meet all of her needs. She is assessed as adoptable due to her young age, gender, good health, sociability, personality and developmental characteristics. She is an adorable and happy child. She also has caregivers who are excited about adopting her and are approved to adopt. Esperanza has lived with her caretakers since she was two days old and they are the only family she has known." The caretakers wanted to adopt Esperanza and had completed their home study, and there were 27 other prospective adoptive families. The report continued that while Beatrice and the baby had supervised weekly visits, Beatrice "has never fulfilled a parental role in her life. . . . There is no beneficial parent-child relationship that would outweigh the benefits of adoption for Esperanza."
Because of several continuances, the section 366.26 hearing was not held until July 19, 2007. The parties presented no witnesses, and the matter was submitted on the Agency's reports. The court found Esperanza was adoptable and none of the exceptions to adoption was applicable. The court terminated parental rights and selected adoption as the preferred permanent plan.
DISCUSSION
Beatrice's sole contention is that the court erred by finding the parent-child beneficial relationship exception to adoption is inapplicable.
"After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]' [Citation.] The purpose of a section 366.26 hearing is to 'provide stable, permanent homes for' dependent children. (§ 366.26, subd. (b).) At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care." (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable, and none of the exceptions of section 366.26, subdivision (c)(1) applies to make termination of parental rights detrimental to the child. (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) It is the parent's burden to show the applicability of one of the exceptions to adoption. (In re Fernando M., supra, 138 Cal.App.4th at p. 534.)
Under section 366.26, subdivision (c)(1)(B), there are six circumstances that may present "a compelling reason for determining that termination [of parental rights] would be detrimental to the child." One exception applies if termination of parental rights would be detrimental to the child because the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The Agency asserts Beatrice has forfeited the issue on appeal by not raising it at the juvenile court. A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) "Dependency matters are not exempt from this rule." (Ibid.)
We agree that forfeiture applies. Beatrice did not testify, cross-examine the social worker, or even mention the Agency's reports, which discussed her visits with Esperanza, or the section 366.26(c)(1)(B)(i) exception to the adoption preference. In closing argument her attorney merely stated "we object to the termination of her parental rights. We ask that the court . . . choose a plan other than adoption. We would ask that the court choose either guardianship or long-term foster care as a permanent plan. [¶] Regardless of the court's ruling today, mother would like the court and everyone to know she very much loves her daughter and would like to continue to see her and hope that the caretakers will allow that to continue." The juvenile court cannot be criticized for not applying the exception when Beatrice did not raise it.
Beatrice asserts she has not forfeited appellate review of the beneficial parent-child relationship issue since the Agency discussed the visits between her and Esperanza in its assessment report, and the Agency argued at the hearing that none of the exceptions to the adoption preference applied. That did not, however, satisfy Beatrice's burden to bring the specific exception to the court's attention and establish its applicability.
Even without forfeiture, however, Beatrice's position lacks merit. This court has interpreted the phrase "benefit from continuing the relationship" in section 366.26, subdivision (c)(1)(B)(i) to refer to a relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
"A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and child, and (4) the child's particular needs." (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.) "[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (Id. at p. 468.)
At the time of the section 366.26 hearing, Esperanza was approximately 13 months old, and she had never lived with Beatrice. Further, while the evidence showed the supervised visits were pleasant and Beatrice was loving toward Esperanza, there was no indication that further contact was required to satisfy Esperanza's needs. The social worker wrote that during visits Beatrice "does not provide for Esperanza's basic needs and looks to the foster mother for items such as diapers, wipes, pacifiers and bottles." Further, she wrote that a few weeks before the hearing "Esperanza has become more independent in her play and does not interact as much with the mother."
The social worker also explained that Beatrice was bonded with her foster parents, with whom she had lived since removal, and during visits she showed "some separation anxiety with the foster mother. At two recent visits, Esperanza became very upset and began crying when her foster mother left the room. The mother could not console her and Esperanza only stopped crying when she saw the foster mother again." There is no suggestion that termination of the parent-child relationship would be detrimental to Esperanza, or that continuation of the relationship would outweigh the permanence and stability of adoption. As this court noted in In re Casey D. (1999) 70 Cal.App.4th 38, 51, the showing necessary under section 366.26, subdivision (c)(1)(B)(i) "will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation."
Given Esperanza's young age, her removal from Beatrice at birth, and the lack of any evidence adduced at trial on the beneficial parent-child relationship exception, this appeal indisputably lacks merit. Thus, we are puzzled as to why Beatrice's counsel filed a brief on the purported merits rather than a brief under In re Sade C. (1996) 13 Cal.4th 952.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., IRION, J.
Further statutory references are to the Welfare and Institutions Code.