Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. J203498. James C. McGuire, Judge.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant M.S.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant K.S.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
M.S. (Mother) and K.S. (Father) appeal from the termination of their parental rights from a Welfare and Institutions Code section 366.26 hearing. Mother, joined by Father, raises two issues on appeal: (1) The juvenile court should not have terminated their parental rights because they established the beneficial relationship exception embodied in section 366.26, subdivision (c)(1)(A); and (2) the juvenile court violated Mother’s and Father’s due process rights by questioning them on the stand, which gave the appearance of bias and partiality.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
We find no error; hence, we will affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
On August 22, 2005, San Bernardino County Department of Children’s Services (the Department) detained Faith S., who was 10 months old, and her brother D.S., who was two years old, after Mother was arrested for being in possession of and under the influence of methamphetamine. On August 24, 2005, the Department filed a section 300 petition on behalf of Faith and D.S. against Mother and Father. The first allegation was against Mother, alleging that she suffered from a substance abuse problem and could not provide safe and adequate care for the children. The second allegation was against Father (who was considered the biological father), who allegedly also suffered from a substance abuse problem that prevented him from providing a safe environment for the children. The third and final allegation was against Father, alleging that he knew Mother was putting the children in danger, and he failed to protect the children.
Pursuant to the detention report, officers from the Barstow Police Department had gone to the parents’ house to do a probation check on Father. Father was not present. During a search of the residence, a backpack containing methamphetamine, a scale, and prescription drugs was found. The backpack was within reach of D.S. Mother admitted that methamphetamine was being sold from the residence and that she had used methamphetamine or marijuana on the day she was arrested.
Father was on probation due to a felony drug possession charge. Mother reported that Father was father to both Faith and D.S., and he was supporting them financially. Father had moved out of their house two days prior because he suspected Mother was sleeping with another woman. Mother and Father each had seven prior arrests for drug-related offenses. Faith was born drug positive.
Mother and Father were present at the detention hearing held on August 25, 2005. Mother was still in custody on the drug possession. The juvenile court found that a prima facie case for detention had been made. It ordered that Faith and D.S. be detained by the Department. The juvenile court also ordered weekly visitation between the parents and the children, with more frequent visitation should Mother be released from custody. Faith and D.S. could be placed with Father by approval packet, if appropriate. Reunification services were offered.
In a jurisdictional report filed on September 12, 2005, the Department recommended that the family receive reunification services and that Faith and D.S. be placed outside the home. According to the report, Father had a negative drug test on August 25, 2005. The Department noted that there had been six prior referrals due to the parents’ drug use. The report also recounted their prior arrests, which all involved drugs.
Father had moved back in the apartment he had shared with Mother. Mother was still in custody. Father claimed he would take care of the children and had arranged for the paternal grandmother to help him. The Department believed that Father might be able to provide adequate care after completing parenting and substance abuse counseling. The children were in placement together and were adjusting well.
At the jurisdictional hearing held on September 15, 2005, the juvenile court ordered mediation and a pretrial settlement conference. Mother and Father agreed to submit on the first two allegations in the section 300 petition, with no finding to be made on the third allegation. The parties agreed that the paternal grandmother would be assessed for placement. If Father was approved for placement, Mother would move out of the residence. Mother and Father were to enroll in a drug treatment program and submit to random drug testing. On October 14, 2005, the Department submitted amended dispositional hearing findings and orders that included the agreements reached during mediation.
At the contested jurisdictional hearing, the juvenile court indicated it had reviewed the jurisdictional report filed on September 12, 2005; the mediation report; and the amended dispositional findings and orders that had been filed by the Department that day. The juvenile court found the first two allegations in the section 300 petition true; no findings were made on the third allegation. The juvenile court declared that Faith and D.S. came within section 300, subdivision (b) and removed them from the custody of the parents. Father was declared the presumed father. Father was to submit to drug testing, and if he tested negative for 60 days and completed his case plan, the children could be placed with him. The Department could place Faith and D.S. with the paternal grandmother “when appropriate.” Mother and Father were granted reunification services.
A six-month status review report filed on April 4, 2006, recommended that Faith and D.S. remain in care outside the home and that six more months of reunification services be granted to the parents. Mother was employed as an in-home caregiver, and Father was employed in construction. They were not living together. Mother was living with her significant other, Jennifer O., but she advised the Department that Jennifer would move out if Faith and D.S. were returned to her. Jennifer had her own substance abuse problems. Mother was out of custody and enrolled in a Proposition 36 substance abuse program.
D.S. and Faith were in the same foster home. Faith was adjusting well in her current foster home, although she had been moved three times during six months mostly due to D.S.’s behavioral problems. D.S. had been getting up in the middle of the night and taking food out of the trash or trying to go out the front door. D.S. was an “overactive” child, who required constant supervision and had caused minor bruising to Faith by roughhousing. The current foster mother was working with D.S. on his social skills and behavior.
Mother had completed half of her parenting program and was also in a substance abuse program. She had not tested positive for methamphetamine since December 20, 2005. Father reported that he was in a parent education program, but the Department had not received any documentation to confirm that fact. He was also in a substance abuse program. Father had refused one drug test; he took the next test, which was negative, but the specimen was diluted.
Mother and Father had participated in most of the weekly visits with D.S. and Faith. However, Mother had brought Jennifer O. to visits without authorization, and Father had brought the paternal grandmother to visits, also without the Department’s approval. The prognosis for reunification appeared good if Mother remained sober and worked on her parenting skills.
The Department indicated that the concurrent plan for Faith and D.S. was adoption. The maternal grandmother wanted to adopt the children if reunification with Mother and Father failed. The Department withdrew its request to place Faith and D.S. with Father by approval packet because he had failed to advise the Department of his current living situation. The Department requested court authorization to return Faith and D.S. to Mother with an approval packet.
At the six-month review hearing held on April 14, 2006, the juvenile court ordered that Faith and D.S. remain in foster care. Father and Mother were ordered to submit to drug testing by the end of the day. The matter was contested by Mother, and therefore Father and Mother were ordered to participate in meditation with the Department. The juvenile court also ordered that no other parties were to attend visitations.
A mediator’s report was submitted to the court. According to the report, the Department had recommended that the children be returned to Mother by packet if she completed her 12-week parenting program, participated in individual counseling, continued in her after-care program, and remained drug free. Father had not been able to secure adequate housing.
On June 1, 2006, a pretrial settlement conference was held in anticipation of the contested six-month review hearing. The juvenile court indicated that it had read the mediator’s report and the six-month review report dated April 14, 2006. It continued reunification services to the parents. The children remained in their current placement. The parents were to continue to submit to random drug testing. Visitation was to be a minimum of once a week. The contested six-month review hearing was vacated, and a 12-month review hearing was scheduled.
On November 15, 2006, a 12-month status review report was filed. The Department requested that reunification services for Father and Mother be terminated and that a section 366.26 hearing be set to establish a permanent plan of adoption for both children. Since the six-month review, Mother had failed to keep in contact with the Department, and it had no current living information for Father. Mother had been keeping the children, unsupervised, because the foster mother had asked her to take the children. Mother was aware she was not supposed to have the children living with her.
Faith and D.S. had been in seven different foster homes during one-year period. They had been in their current home for three months and seemed to be adjusting well. Placement with the maternal grandmother was not appropriate because her husband had a previous conviction of sexually assaulting a minor. The paternal grandmother also had not completed the process to determine whether Faith and D.S. could be placed with her.
Mother had failed to complete her after-care program, had not attended all of her individual counseling sessions, and had not appeared for all of her random drug tests. She tested positive for methamphetamine on April 27, 2006, and October 31, 2006. Father had failed to complete his parenting education and substance abuse treatment programs. He also did not complete drug testing.
Mother had participated in weekly visits with Faith and D.S. However, she had missed some of her visits or arrived late. Mother had been emotional during the visits and had brought third parties with her to the visits even though she had been informed not to bring other persons. Father had been involved in visitation on only four occasions. D.S. seemed to like visits with both his Mother and Father and would be sad when the visits ended.
The 12-month review report included a report that confirmed that the previous foster mother had allowed Faith and D.S. to live with Mother without the Department’s approval. According to Mother, the foster mother had approached her to watch Faith and D.S. Eventually, the foster mother had Mother taking care of the children exclusively for a six-week period. Once the Department discovered this, Faith and D.S. were placed in a new foster home. Mother admitted she knew it was against court orders to have the children.
The Department concluded it was unlikely that Faith and D.S. could be returned to the custody of Mother or Father during the statutory time frame. The Department requested that reunification services be terminated, that a section 366.26 hearing be set, and that visitation continue between the parents and the children.
On December 19, 2006, at the contested 12-month review hearing, the juvenile court indicated that it had read the 12-month status review report, and it adopted the Department’s recommendations. Mother and Father were not present at the hearing, but counsel for both parties objected to the setting of the section 366.26 hearing. Reunification services for the parents were terminated. The juvenile court concluded that there was not a substantial probability that the children would be returned to the parents within the statutory time. Visitation was continued until the resolution of the section 366.26 hearing.
Mother and Father were advised by mail of their right to file a writ pursuant to former California Rules of Court, rule 38 (now rule 8.450). Mother filed a notice of intent to file a writ petition. However, after Mother advised this court on February 1, 2007, that she had found no legal or factual issues upon which to file a writ, the action was dismissed by this court on February 5, 2007.
The Department filed an adoption assessment report on March 22, 2007. Faith was now two years old, and D.S. was four. The current foster parent was willing to adopt both of them. Both D.S. and Faith had developed a significant attachment to the adoptive parent.
The Department filed a section 366.26 report on April 5, 2007, recommending that parental rights be terminated and that Faith and D.S. be freed for adoption. According to the report, Faith and D.S. had biweekly visits with both parents. Mother continued to get emotional and cry during visits. She had missed some visits and been late to others. She continued to bring other persons with her to the visits.
On April 18, 2007, the juvenile court set the section 366.26 hearing as contested. At the next hearing held on April 27, 2007, the juvenile court ordered that a new social worker be appointed to observe visitation between Mother and Father and the children. The Department filed an addendum report on June 4, 2007. The report was written by the new social worker who had observed three visits between the parents and the children.
On the first visit, Mother and Father had attempted to interact with D.S. and Faith, but the children just wanted to play. D.S. did not listen to instructions from the parents, but he did listen to the foster mother. Faith and D.S. were willing to hug Mother and Father at the end of the visit, but they did not appear distressed when the visit ended.
At the next visit, Mother and Father ate with Faith and D.S. D.S. and Mother played together, but when D.S. needed something, he asked the foster mother. Father and Mother were unable to interact with Faith. Mother left the visit for 30 minutes. Father and the paternal grandmother, who was also present during this visit, had very little interaction with the children.
Father did not attend the third visit and never called the social worker. During that visit, Mother ate with the children. Faith would not talk to her. D.S. would respond to her questions. Mother brought a power motorcycle, which Faith and D.S. played with for most of the visit. They asked the foster mother to take them to the bathroom. D.S. did not follow Mother’s instructions but obeyed the foster mother. D.S. and Faith had to be instructed to call Mother “Mom.” They did not appear upset when the visit was over.
The social worker, after observing the three visits, concluded that the children viewed Mother as more of a friend or aunt and had little interaction with Father. The social worker recommended that the section 366.26 hearing go forward. The Department again requested that the parental rights be terminated and that the children be freed for adoption.
On June 12, 2007, Mother filed a section 388 petition requesting that the court change its order terminating reunification services and setting the section 366.26 hearing. Mother claimed that she had addressed her substance abuse problems and was now clean and sober. According to a substance abuse progress report filed with the juvenile court, Mother had tested positive for methamphetamine and marijuana on May, 1, 2007, and had missed some treatment sessions. She had negative tests on May 10, 15, 22 and 28, 2007.
The contested section 366.26 hearing was held on June 12, 2007. The court initially found that the section 388 petition filed by Mother was untimely. Nonetheless, the juvenile court indicated that it had reviewed the petition. Counsel for Mother was allowed to argue the merits of the petition, and the juvenile court denied it.
The Department’s section 366.26 report filed on April 5, 2007, the adoption assessment report filed on March 22, 2007, and the addendum report filed on June 4, 2007, were presented as evidence. The juvenile court also took judicial notice of all the prior proceedings. Both Mother and Father testified at the hearing. Thereafter, the juvenile court found that Faith and D.S. were adoptable and that the parental rights of Mother and Father should be terminated. Faith and D.S. were freed for adoption. Mother and Father appealed.
II
THE BENEFICIAL RELATIONSHIP EXCEPTION OF SECTION 366.26, SUBDIVISION (C)(1)(A)
Both Mother and Father contend that the juvenile court erred in finding that the exception in section 366.26, subdivision (c)(1)(A), the so-called beneficial relationship exception, was not applicable and in terminating their parental rights.
A. Additional Factual Background
As previously stated, the juvenile court took into account at the section 366.26 hearing, the section 366.26 report, the adoption assessment report, and the addendum report that outlined the three additional visitations, the contents of which were discussed, ante. Mother and Father both testified at the section 366.26 hearing.
Father admitted that he was the father of Faith and D.S. Mother and Father were not living together at the time that the children were taken by the Department. Prior to that time, Father would “baby-sit” the children for Mother and provide financial support.
Father claimed during the visitations with D.S. and Faith, both children would run up to him and call him dad. Father believed that the children were “programmed” to listen to the foster mother rather than to the parents. Father claimed he talked, ate, and played with Faith and D.S. during their visits. Although Father wanted to attend all the visits, he was unable to attend some of them because he did not have a car.
Father believed that “every kid needs their parents.” Father’s own father had not been around when he was young. Without parents, children lose “a piece of themselves.” Father claimed to have gotten a job. He asked that his parental rights not be terminated.
Mother had regularly visited Faith and D.S. and wished she could have been granted additional visitation. D.S. called her “mother” or by her first name. Faith called her “mom.” Mother brought toys to their visits so they would have something to do together. She brought things that D.S. had asked her to bring. When Mother first arrived at the visits, D.S. would run up to her and give her a hug. She had to go to Faith and pick her up, but Mother indicated that Faith had always been this way with her.
Mother did not want Faith and D.S. to be adopted. Mother indicated that she had made mistakes, but she loved her children. Mother was afraid she would never see them again. She wanted D.S. to know that it was not his fault that they had been taken away from her.
Mother denied that she had left one of the visitations for 30 minutes. She claimed that she went to the restroom and was only gone for 15 minutes. Mother disagreed with the foster mother during one of their visits as to whether it was okay for D.S. to play in the bushes; Mother thought it was okay. Mother believed that Faith and D.S. listened to her as much as to the foster mother. Mother initially did not recall testing positive for methamphetamine on May 1, 2007. She later admitted that she had used methamphetamine, which would account for the positive test, and that she had lied on her section 388 petition where she claimed she had been clean and sober for six months.
No other evidence was presented. The Department argued that Faith and D.S. were adoptable. Counsel argued the only issue was whether there was a bond between the children and Mother and Father and whether terminating their parental rights would be detrimental to that relationship. The children had been out of the parents’ custody for as long as they had been in their custody. The Department argued that Father did not have a strong bond with the children. Faith did not respond to either Father or Mother, and neither D.S. nor Faith listened to them. Faith and D.S. were not upset at the end of the visits, further evidencing that there was not a parental bond. Mother and D.S. had a more “play-type” relationship.
The Department argued that whatever bond Mother and Father had with Faith and D.S., it was not the type of bond that must exist in order for the court to find that terminating rights would be detrimental to the children. Counsel for Faith and D.S. agreed that there was not a bond between the children and either Father or Mother.
Counsel for Father argued that Father and Mother were placed in an awkward position. Father claimed that they had to choose between attending the visits with the children and being stern with them and then being accused by the Department of being “too mean” or “too strict,” or just having easy, playful times with the children and being accused of not parenting the children. Faith and D.S. immediately recognized Father as their father. Father could provide for the children. By taking Faith and D.S. away from their parents, the children were going to miss out on “knowing their background, their heritage, things they could learn from these parents.” Father was asking for a “lesser permanent plan.”
Mother argued that the visits were difficult because the foster mother was always there, making it confusing for the children. Mother argued that there was a bond between her and the children. She asked that another plan, such as long-term foster care or legal guardianship, be chosen in place of adoption.
The juvenile court stated, “Well, I think that the parents missed the mark in this case. The issue is not them. The issue is the children.” It found by clear and convincing evidence that termination of parental rights would be appropriate and that the children would be adopted. It denied that the beneficial relationship exception existed, finding that “permanency for children and bonding with the children that exists is with the foster parents, not with the parents.” Faith and D.S. were freed for adoption.
B. Analysis
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) The Legislature prefers a permanent plan of adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court concludes that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(A) through (F). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The parental benefit or “beneficial relationship” exception is set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where “‘[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.’ [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Ibid.)
In order to prove the exception, the parent must show that his or her relationship with the child “‘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.’ [Citation.]” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “In other words, for 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. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, “the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000)78 Cal.App.4th 1339, 1348.)
Appellate courts have differed as to whether the “substantial evidence” or “abuse of discretion” standard of review applies to a juvenile court’s determination that the section 366.26, subdivision (c)(1)(A) exception is inapplicable. (Compare In re Autumn H., supra, 27 Cal.App.4th at p. 575 [substantial evidence] with In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion].) Nonetheless, “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. 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.] . . . The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Jasmine D., at p. 1351.)
Applying the above principles, under either the substantial evidence or abuse of discretion standard of review, we conclude that the juvenile court did not err in finding the beneficial relationship exception did not apply, thereby freeing Faith and D.S. for adoption.
We first address the termination of Mother’s parental rights. As to the first prong of the beneficial relationship exception, whether Mother maintained regular visitation with Faith and D.S., we conclude Mother did maintain regular visits with the children throughout the two-year period. Mother did have some problems with her visitation, including bringing unauthorized persons to some of the visits, missing some of the visits, appearing late to some, and leaving one of the visits for somewhere between 15 and 30 minutes. However, over the two-year period, she consistently maintained regular visitation.
Despite this fact, Mother nevertheless has failed to demonstrate that the children would benefit from maintaining a relationship with her. A reasonable inference from the evidence before this court is that the relationship between Mother and the children before their removal was not good, as Mother had numerous prior arrests for drug-related offenses. At the time the children were taken, Mother was under the influence of methamphetamine. It is reasonable to infer that Mother’s consistent drug use impaired or even prevented any meaningful relationship with her children prior to their removal from the home.
After Faith and D.S. were taken from Mother, there is little evidence that a significant bond developed between them. Faith appeared indifferent during her visits with Mother. Although Faith sometimes would “weep” when the visits ended, it was not described as distressing to her. D.S. seemed to “enjoy” the visits with Mother and sometimes wept when she left. However, the addendum report filed after a new social worker was appointed to observe three visitations indicated that there did not appear to be any bond between Mother and the children. Mother merely played with D.S., and he was not particularly distressed when the visits ended. Faith and D.S. asked the foster mother to take care of their basic needs (including taking them to the bathroom) and called her mom.
The record does not establish that severing the relationship between Mother and the children would cause substantial harm to the children. (In re Brittany C., supra, 76 Cal.App.4th at p. 853.) Although there was some relationship between them, it was not the emotional attachment that exists between a parent and child, but rather was more akin to that of friend or relative. (In re Angel B., supra, 97 Cal.App.4th at p. 468.)
In support of Mother’s argument that she proved the beneficial relationship exception should have been applied here, she points to evidence that she had unauthorized custody of Faith and D.S. for six weeks and that they “did not suffer from any harm or illness while in her care.” Although Mother appears to commend herself for this interaction with Faith and D.S., we believe this shows her complete inability to take on a parental or responsible role. Mother should have immediately notified the Department as to the foster mother’s inadequacies and recognized the potential harm that could be done to Faith and D.S. due to the foster mother’s complete abandonment of the children. Rather than express concern with the foster mother’s actions, which could have caused harm to the children (in fact, foster mother did not even know where Faith was on one occasion), Mother only indicated that she was remorseful for having broken the Department’s rules. This unauthorized, deceptive visitation does not support Mother’s argument that the beneficial relationship exception applies. It shows her inability to provide a safe, stable environment for Faith and D.S. And even though Mother spent this additional time with Faith and D.S., it did not appear to create a bond between them in subsequent visits.
Mother argues that the relationship between her and Faith and D.S. was “loving” and “positive.” Even if this were presumed to be true, it would not be enough to meet her burden of showing a beneficial relationship. That showing requires evidence that mother fulfilled the needs of the children by performing the functions ordinarily performed by a parent, such as providing food, shelter, clothing, affection, and guidance. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother failed to provide any evidence to show that she performed any of those functions.
As to Father, he also failed to establish the beneficial relationship exception should have been applied to prevent the termination of his parental rights. Father missed several visits and he failed to contact the Department when he knew he could not attend. Although Father attended the first two of the final three visits, he failed to attend the final visitation and never called to explain his absence. The record does not support that Father maintained regular visitation.
Father also had failed to prove that Faith and D.S. would benefit from a continuing relationship with him. Again, the record is devoid of any evidence of the relationship between Father and the children prior to their being taken from Mother’s home. Father was not living with Mother when they were taken. Father also had seven prior drug-related arrests. He described himself as a “baby-sitter” for the children. He did not appear to be bonded with Faith and D.S. prior to their being taken from Mother’s house.
Furthermore, Father’s subsequent visits with the children did not show a bonded relationship. He failed to attend most of the visitations, making it impossible to develop a bonded relationship with the children. During the final two visitations, he had little or no interaction with Faith and D.S. There does not appear from the record that any kind of beneficial relationship had been established between Father and Faith and D.S.
The juvenile court thus properly found that the beneficial relationship exception to termination of parental rights did not apply. It therefore did not err in terminating Father’s and Mother’s parental rights and freeing Faith and D.S. for adoption.
III
DUE PROCESS VIOLATION
Mother and Father also contend that their due process rights were violated by the juvenile court’s questioning of them during the section 366.26 hearing, which gave the appearance of bias and partiality. They argue that this requires automatic reversal of the order terminating their parental rights.
A. Additional Factual Background
During direct examination of Father, defense counsel asked him whether he thought a less permanent plan would be better for the children. Father responded that he had gotten his job back. He claimed that he had lost his job because he was attending “all the meetings.” Defense counsel stated she had no further questions.
The juvenile court then asked Father, “Well, what meetings are you talking about?” Father responded it was the drug abuse and parenting classes. The juvenile court then asked Father, “So, you were terminated from some of those programs, weren’t you?” Father responded, “Yes.” The juvenile court then asked, “And you missed quite a few of your visitations?” Father admitted that he had missed a few visitations but volunteered that he missed them because of lack of transportation and money. The juvenile court then asked Father, “You indicated that in your opinion the children have probably bonded with the foster parents?” Father responded, “Well, I mean, they listen. I mean, like I listen to cops. Okay? I do it. [¶] Now, maybe that’s like their relationship. I’m not saying it is. But maybe they have to consider them, okay, I got to listen to them. [¶] You know, we do trial and error. We learn from our mistakes. And as far as that goes, you know, they – they -- like I don’t know.”
The juvenile court then asked Father, “Could it be because the foster parents are the ones that have been there?” Father responded, “Well, if I was there, they’d be listening to me, too.” The juvenile court then responded, “That’s right. Because the foster parents were there?” Father responded, “Yes.” None of the parties asked Father any further questions.
After Mother was questioned by her counsel, the juvenile court asked Mother why she had left a visit on May 19, 2007. Mother responded that she had gone to the rest room to take care of a “women” problem. She had to have someone go to her car to get something for her. There was also a long line in the rest room. The juvenile court then asked how long she was gone from the visitation, and she responded “fifteen minutes or so.”
The juvenile court then asked Mother, “And when you are with the children, would you agree with your husband that they listen primarily to the foster parents?” Mother then gave a long explanation about a time when D.S. was playing in the bushes and the foster mother told him not to. Mother did not think it was a problem for him to play in the bushes. The juvenile court asked the question again, admonishing Mother to just answer the question. Mother indicated that she did not agree with Father that they listened more to the foster mother.
The juvenile court asked Mother, “So, when did you start your treatment program?” Mother could not recall. The juvenile court asked, “How do you explain the May 1st positive for methamphetamine test?” Mother responded that she had no explanation. The juvenile court asked, “Is the explanation the test was positive because you used methamphetamine?” Mother responded, “I don’t remember having tested on May 1st. I think I admitted to her I could be positive.” The juvenile court followed up, “You used methamphetamine?” Mother responded that she had been around persons who were using; the juvenile court responded, “What do you think, you got it through the air? You know how methamphetamine gets in your system?” Mother responded that she did and also responded yes to the juvenile court’s statement that she had been using for a long time. The juvenile court then asked, “So, you know why you would be positive; right?” Mother responded, “But that doesn’t make you a terrible parent.” The juvenile court responded, “I didn’t say that. That isn’t my question. I know you have certain things you want to say to me, but I’d like you to answer my questions.”
Mother then admitted that she had used methamphetamine and that she had lied in her section 388 petition that she had been clean and sober for six months. Counsel for Faith and D.S. asked Mother a few questions regarding the age of the children. Father’s counsel and the Department had no questions for Mother.
B. Analysis
The Department initially argues that Mother and Father have waived their claim that the juvenile court violated their due process rights by failing to object to the juvenile court’s questioning. We agree that they have waived this claim. Neither Mother nor Father interposed an objection to the juvenile court’s questioning; therefore, the contention may not be raised on appeal. (People v. Sanders (1995) 11 Cal.4th 475, 531; People v. Raviart (2001) 93 Cal.App.4th 258, 270.)
We note that Mother does not address the allegation of waiver in her reply brief. Father contends in his reply brief that the issue cannot be waived as the denial of a fair hearing mandates reversal. As will be discussed, post, we do not find that Father and Mother were denied a fair hearing.
In any event, the juvenile court’s questioning did not amount to a due process violation. A trial judge has the power to call and question witnesses. (Evid. Code, § 775.) “The power of a trial judge to question witnesses applies to cases tried to the court as well as to a jury.” (People v. Carlucci (1979) 23 Cal.3d 249, 255.) “[I]t is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible.” (Ibid.) “‘“[I]f a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them.”’” (People v. Raviart, supra, 93 Cal.App.4th at p. 270.)
The record does not support that the juvenile court here took on the role of an advocate. Rather, it shows that the juvenile court sought clarification of certain aspects of the evidence it felt were most important, a proper role for the court to assume. The court’s questions went to evidence that was already before it, including that Mother had left a visit and had tested positive for methamphetamine. The juvenile court’s questions to Mother were clearly aimed at clarifying this evidence, not to advocate for the Department. Further, the questions to Father were both for the purpose of clarification and for further information on evidence already before the juvenile court. Based on the record before this court, the juvenile court acted within its discretion to question witnesses as provided in Evidence Code section 775.
Mother, joined by Father, relies on four main cases to support their claim that their due process rights were violated by the juvenile court’s appearance of bias and partiality: In re Lois R. v. Superior Court (1971)19 Cal.App.3d 895; Gloria M. v. Superior Court (1971) 21 Cal.App.3d 525; In re Ruth H. (1972) 26 Cal.App.3d 77, and In re Jesse G. (2005) 128 Cal.App.4th 724. Mother contends, relying upon these cases, that if the juvenile court appears biased or partial, then the error is reversible per se.
As argued by the Department, all of these cases involved a court acting in the dual capacity of both advocate and judge because the prosecution did not present a case. The courts in those cases called witnesses, ruled on objections, and then decided the case. Here, all involved parties were represented by counsel and given the opportunity to present evidence and cross-examine witnesses. The juvenile court allowed all of the parties to argue their cases and did not express its views or present its own argument. It did not call witnesses or present any additional evidence.The record does not support that the juvenile court took on the role of an advocate, thereby showing bias and partiality. The juvenile court here acted within its discretion toask proper questions for the purpose of developing all the facts prior to terminating parental rights. (People v. Raviart, supra, 93 Cal.App.4th at p. 270.) There does not appear in the record any bias or partiality on the juvenile court’s part. We therefore reject Mother’s and Father’s claim that their due process rights were violated.
IV
DISPOSITION
The order appealed from is affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.