Arturo B. (Father) and Johanna Q. (Mother) appeal from the order terminating parental rights to their son, J.B. (Welf. & Inst. Code, § 366.26.) Father contends all orders in this dependency proceeding are void because he was not properly served with notice of the proceedings. Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We find no error and affirm the order.

All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FATHER’S APPEAL

A. Facts

In our prior opinion, we denied Father’s California Rules of Court, rule 8.452 petition and affirmed the order scheduling a permanency hearing. (Arturo B. v. Superior Court (July 26, 2007, G038614) [nonpub. opn.].) We incorporate by reference the facts set forth in our prior opinion and summarize here only the facts relevant to Father’s argument in this appeal—i.e., that all orders in this dependency proceeding are void due to improper service of notice.

As we explained in our prior opinion, Father was deported to Mexico, due to his criminal record, before J.B. was born. He has remained in Mexico throughout these proceedings, has outstanding arrest warrants in the United States, and has no intention of returning. Father participated in services in Mexico, including counseling, parenting, and drug testing, but has had no visits with the child and has no parental relationship with him.

Then almost three-year-old J.B. was taken into protective custody on September 29, 2005, after he was found wandering alone in an alley. He was unkempt, as was his residence. Mother had an unresolved substance abuse problem and a lengthy history of drug-related arrests. Two of her older children were previously subjects of dependency proceedings. She reunified with one, but that child lived with the maternal grandparents. Parental rights to the other child were terminated and he was adopted. Throughout the reunification period, Mother had many positive visits with J.B., but she fairly consistently either missed her drug tests or tested positive for drugs, and largely failed to participate in reunification services. (We will further discuss the facts relating to Mother’s interactions and visitation with J.B. in detail in part II of this opinion.)

At the time of J.B.’s detention, Father’s whereabouts were unknown. Mother told the Orange County Social Services Agency (SSA) social workers Father was in Mexico and she did not have an address or telephone number for him. SSA asked the Mexican consulate for help in locating Father, apparently to no avail. At the detention hearing in October 2005, J.B. was ordered to remain out of parental custody.

Between the initial detention hearing and the jurisdictional and dispositional hearing, the social worker contacted a paternal aunt about possible placement. The paternal aunt confirmed that Father lived in Mexico, but she had not heard from him for several months, and did not have an address for him. At the time the jurisdictional and dispositional hearing took place in January 2006, Father’s whereabouts were still unknown, although Mother indicated he was living in Michoacan, Mexico. A six-month review hearing was set for May 25, 2006.

In its May 17, 2006, report for the six-month review, SSA reported Father’s whereabouts were still unknown—Mother said she had no address or telephone number for him, although she occasionally met with him in Tijuana. She said he called her from pay phones and she could not contact him.

On May 25, SSA reported that on May 18, Mother provided the social worker with a telephone number and address for Father in Mexico. Mother admitted she had withheld the information previously because she did not want Father to know J.B. had been removed from her. The social worker sent a letter to Father on May 24, asking him to contact her. The six-month review hearing was continued to June 13.

On May 31, the social worker called Father in Michoacan, Mexico. He wanted reunification services and said he would attend the next court hearing, but did not. On June 13, the juvenile court appointed counsel to represent Father, and the six-month review hearing was continued to July 24. In July, Father contacted the social worker and told him he would not be returning to the United States because of outstanding arrest warrants.

The six-month review hearing was continued several times and took place on August 30, 2006. Father, who was not present, was represented by counsel who requested Father be given a referral to “DI[F],” the child welfare authorities in Mexico. The request was granted. The court ordered J.B. be continued as a dependent child and remain out of parental custody.

A case review hearing for Father was set for September 6, and a 12-month review hearing was set for November 28, 2006. The record contains a notice of hearing of the November 28, 2006, hearing (designated in the notice as a six-month review) served on Father by being mailed to him on November 15, via certified mail to his address in Mexico. The notice was also served on Father’s counsel.

At the September 6 review hearing, Father was represented by counsel who stipulated to approval of a service plan for Father. At hearings over the next several months, Father was represented by counsel and the 12-month review hearing was continued several times. The contested 12-month review hearing (which due to the passage of time was also the 18-month review hearing) began on April 26, 2007, and concluded on May 2. Father’s counsel again advised the court Father could not legally come to the United States to visit J.B., arguing SSA should have made attempts to arrange for visitation in Mexico.

After making appropriate findings, the court terminated reunification services for both parents and set a permanency planning hearing for August 28, 2007. Father filed a writ petition, which was denied by this court on July 26, 2007. (Arturo B. v. Superior Court, supra, G038614.)

On August 2, 2007, SSA filed a proof of service of notice of the August 28, 2007, permanency planning hearing on Father at his address in Mexico. The notice was mailed to Father on May 9, via certified mail and the proof of service included a delivery receipt signed by Father.

The permanency hearing was continued several times. On January 28, 2008, Father through his counsel filed a section 388 petition asking that J.B. be placed in his custody in Mexico, or that he be given further time to reunify. The court denied the petition.

At the permanency hearing, Father was represented by counsel, but offered no evidence or witnesses. In closing argument, counsel asked the court to consider “a less permanent plan than adoption.” The court found J.B was adoptable, found none of the exceptions to adoption applied, and terminated parental rights.

B. Discussion

Father contends all orders in this dependency proceeding are void because he never received proper notice of the proceedings as required under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638) (hereafter the Hague Service Convention or the Convention). He asserts the orders are void regardless of the fact he had actual notice of the proceedings, was represented by counsel, appeared and participated in the proceedings through counsel, was offered and participated in reunification services, and never raised this issue below or in his prior writ proceeding. We reject his contention.

In re Alyssa F. (2003) 112 Cal.App.4th 846 (Alyssa F.) explains the requisites of the Hague Service Convention in the dependency context. “The Hague Service Convention was ‘intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.’ [Citation.] It applies ‘in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.’ [Citations.] Because juvenile dependency matters are civil in nature [citations], the Convention applies to cases brought under section 300. Both the United States and Mexico are signatories to the Convention. [Citations.] [¶] Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person. [Citation.] This is true even when the party indisputably had notice of the action. [Citations.]” (Alyssa F., supra, 112 Cal.App.4th at p. 852; see also In re Jorge G. (2008) 164 Cal.App.4th 125.)

The Hague Service Convention does “‘“not apply where the address of the person to be served with the document is not known.”’ (People v. Parcel No. 056-500-09 (1997) 58 Cal.App.4th 120, 125.) Nor does it ‘apply to situations in which the whereabouts of the defendant cannot be ascertained despite reasonable diligence.’” (Ibid.)

Although the Hague Service Convention establishes a system for designating a “‘Central Authority’” in each participating country to receive service of process, the Convention recognizes other methods of service as well. (Alyssa F., supra, 112 Cal.App.4th at p. 852.) Article 10, paragraph (a), provides so long as “‘the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad . . . .” (Id. at p. 853.) As Alyssa F. explained, although Mexico apparently does not permit service by first-class mail, or telephone, it does not “object” to service by registered or certified mail. (Id. at p. 854.)

In Alyssa F., the mother gave the social services agency the father’s address in Mexico. (Alyssa F., supra, 112 Cal.App.4th at p. 851.) Under the controlling dependency statute, because the father was not present at the initial detention hearing, the agency was required to serve notice of the jurisdictional and dispositional hearing personally or by certified mail. (Id. at pp. 853-854.) The agency served the father with notice of the jurisdictional hearing by first-class mail, and the social worker left voice mail messages for him at his telephone number. The father did not appear at any of the subsequent hearings. (Id. at p. 851.) On appeal from the order terminating parental rights, the court concluded service of notice of the jurisdictional and dispositional hearing by first-class mail and telephone did not comply with the Convention and thus the orders made at that hearing (and all subsequent hearings) were void. (Id. at pp. 854-855.) The court remanded for a new jurisdictional hearing.

Turning to the case before us, Father refers us to sections 290.1 and 290.2 and contends he was not properly served with the notices required by those sections. Section 290.1 pertains to the initial detention hearing, and section 290.2 pertains to filing the initial dependency petition and service of notice of the hearing on the initial petition. Both require notice of the initial petition hearing be served on specific persons (including fathers) “whose whereabouts are known or become known prior to the initial petition hearing[.]” (§§ 290.1, subd. (a); § 290.2, subd. (a), italics added.)

Neither of these provisions is applicable as it is without dispute Father’s whereabouts were unknown until well after the jurisdictional and dispositional hearing took place in January 2006. Thus, Father cannot complain that any of the orders were void due to failure to properly serve him with notice as required by sections 290.1 and 290.2, or the Hague Service Convention. (People v. Parcel No. 056-500-09, supra, 58 Cal.App.4th at p. 125 [Hague Service Convention does not apply when whereabouts unknown].)

Father suggests that SSA cannot legitimately assert his whereabouts were unknown. Although Mother had told the social worker she did not have an address or telephone number, and did not reveal his address until right before the six-month review hearing, Mother later admitted to the social work she had known Father’s whereabouts all along. But Father points to no facts suggesting the social worker should have known Mother was concealing information.

Father complains that even after his whereabouts became known, he was still not properly served with “notice of the proceedings.” It is unclear whether Father’s complaint is that he was not thereafter properly served with notice of subsequent court proceedings (i.e., subsequent status review hearings and the permanency hearing) or of prior (i.e., completed) proceedings. Again, he only references sections 290.1 and 290.2, suggesting his complaint is he should have been served with notice of the initial detention hearing, filing the initial dependency petition, and notice of the hearing on the initial petition. But he cites to no law suggesting the statutory scheme envisions service of notice after the fact of proceedings that have already taken place and to which at the time they took place notice was not required to be given. Common sense requires we construe his argument as being that notice of subsequent proceedings was not adequate.

Section 293, subdivision (a)(2), requires notice of status review hearings (e.g., six-month, 12-month, and 18-month review hearings) be given to, among others “[t]he presumed father or any father receiving services.” “Service of the notice shall be by first-class mail addressed to the last known address of the person to be noticed or by personal service on the person. Service of a copy of the notice shall be by personal service or by certified mail, return receipt requested, or any other form of notice that is equivalent to service by first-class mail.” (§ 293, subd. (e).)

In January 2006, a six-month review hearing was set for May 25, 2006. At that time, Father’s whereabouts were unknown, he was not a presumed father, and he was not receiving services. Notice was not required. A few days before the May 25 hearing, Mother finally provided the social worker with a telephone number and address for Father in Mexico. The six-month review hearing was continued to June. In June, Father was appointed counsel and the six-month review hearing was continued to July 24. The six-month review hearing was continued several times and took place on August 30, 2006, at which time Father was declared the presumed father, and on September 6, Father was given services.

The next review hearing was set for November 28, 2006. Because Father was now both a presumed father and a father receiving services, he was entitled to notice of that hearing. The record on appeal in fact contains certification that notice of the November 28, 2006, review hearing (designated in the notice as a six-month review) was served on Father by being mailed to him on November 15 via certified mail to his address in Mexico. Because section 293 permits service by certified mail, and Mexico does not “object” to service by certified mail (see Alyssa F., supra, 112 Cal.App.4th at p. 854), Father has not demonstrated service was improper.

Finally, Father acknowledges he was served in Mexico with notice of the permanency planning hearing by certified mail, an allowable method under both section 294 and the Hague Service Convention. (See Alyssa F., supra, 112 Cal.App.4th at p. 852.) Father suggests the return receipt presented by SSA is defective because his signature is in hand printed letters instead of cursive, but he does not claim he did not receive the notice or sign the receipt. Father offers no authority suggesting a signature must be in cursive writing to be valid.

In short, we conclude Father received notice of the dependency proceedings that complied with the requirements of the Hague Service Convention. Accordingly, we need not address SSA’s arguments that Father waived his complaints by making a general appearance below through his attorney and by failing to raise the issue below, and any error in service was harmless.

MOTHER’S APPEAL

A. Facts

After J.B. was detained in September 2005, he was initially placed at Orangewood Children’s Home. Mother was directed to participate in drug testing, a drug treatment program, counseling, and parenting classes. She was given monitored visits with J.B.

In October 2005, J.B. was placed in a foster home. Mother was visiting, but at one visit seemed “‘dazed’” and “‘out of it’” for a while. J.B. was engaging in some troubling behaviors, suggesting some prior sexual abuse, but otherwise was adjusting well to his placement. Mother missed drug tests.

By December 2005, Mother had been referred to a substance abuse program. The foster mother reported that often at visits Mother did not engage with J.B. J.B. would crawl during visits, something he did not do at foster home. Mother missed some visits and sometimes called the foster mother later—seemingly drunk. J.B. was doing very well in foster placement. The foster mother reported more behavior and comments by J.B. suggesting J.B. had suffered sexual abuse by the maternal grandfather. At visits, J.B. went “freely to [M]other,” but at the end of visits he did not cry and wanted the foster mother to hold him. Mother continued to miss drug tests.

By the end of December 2005, Mother had lost her job and reported she was seven months pregnant by Father. She continued to miss drug tests and conceded she was not participating in any other programs offered to her. She continued to have monitored visits.

In January 2006, SSA reported Mother’s visits had been increased to two times per week, and J.B. was generally happy at visits. Mother missed some visits. She had attended Alcoholics Anonymous (AA) meetings during the holiday period, and had been drug testing some with some tests being negative.

In March 2006, due to the chronic illness of the first foster mother, J.B. was moved to a new foster home. In early March, Mother gave birth to a baby girl, K.B., who was removed from Mother’s custody and placed with the same foster parents. (Father’s and Mother’s parental rights to K.B., were also terminated, but they have not challenged that order.) The foster parents reported J.B. was doing very well and was very well behaved. K.B. was doing well too. The foster parents were willing to adopt both children if reunification did not occur. Mother tested positive for methamphetamine and amphetamine. She had consistent visits with J.B. and K.B. that generally went well.

At a visit in May 2006, J.B. said he wanted to go home with Mother and he did not like the foster mother. He bit Mother during the visit because he was mad that he could not go home with her. The foster mother reported that before visits with Mother, J.B. did not want to go to visits, but afterwards he behaved normally.

In June, the social worker went to transport J.B. and K.B. to a visit with Mother. J.B. said he did not want to see Mother and wanted to stay with the foster mother. But on the way to the visits, J.B. said he wanted to go with Mother, who he referred to as “‘my mommy.’” The social worker observed that at visits with Mother, J.B. generally behaved well, but often did not listen to Mother. Mother was terminated from her counseling program for failure to keep appointments.

In August 2006, SSA reported J.B. and K.B. were doing very well in their foster placement. J.B. behaved well and was very comfortable in the foster home. Mother continued to miss drug tests and other service-related appointments. She continued to have regular visits with the children that went well. At a visit in July, J.B. again said he wanted to go home with Mother. Mother again tested positive for methamphetamine, and as a result was discharged from the perinatal program in which she had been enrolled. Mother denied having used drugs, and said a friend had spiked her food. By the end of August 2006, Mother still had not enrolled in programs required by her service plan.

In its January 2007 report for the 12-month review hearing, SSA recommended termination of services for Mother. Mother acknowledged she was not drug testing and had not “complied with any part of her case plan . . . .” She continued to visit the children (visits usually took place at a shopping mall) and the interaction between them was generally positive. J.B. and K.B. were in the same foster placement and doing very well.

In March, SSA reported Mother missed some visits, had not drug tested, and balked at entering into the requisite treatment programs because she did not think she would be able to reunify with the children anyway. J.B. referred to the foster father as his “‘dad.’”

During this time, SSA was exploring the possibility of placing J.B. and K.B. with paternal relatives, but often J.B. did not want to attend visits with relatives, preferring to stay with “‘Mama Rosa’” (i.e., the foster mother). After some visits with the paternal relatives, J.B. was very sad and cried. Later, he became very emotional at school and wanted his foster father. J.B. began being very clingy with the foster mother and foster father “as if he’s scared of being left.” Mother continued to have appropriate supervised visits with the children.

After a weekend visit with his paternal relatives, J.B. reported he had spent the weekend with Mother at her home. When the social worker confronted Mother about the unauthorized visit, she said J.B. was lying. Afterwards J.B. did not want to leave Mother after a visit saying he wanted to stay with her—something he had not done in the past.

In April 2007, SSA reported Mother was terminated from her therapy due to having failed to show up for appointments. Her therapist said Mother “does not seem committed, and is still in denial in regards to her drug use.” Mother missed some scheduled visits with J.B. and was not returning the social worker’s telephone calls. After one visit with Mother, J.B. became aggressive, hit his sister, and got in a fight at school. J.B. was still having visits with paternal relatives, but he generally became very distressed about them and looked to the foster parents for comfort. J.B. was doing very well in the foster home, his relationship with the foster parents was close and affectionate, he said he liked living there, and wanted to remain living with his sister.

In late April 2007, Mother reported there was a warrant out for her arrest, and she was considering turning herself in to authorities. She had only drug tested once. Although her therapy had been reinstated, she had more no shows for scheduled sessions. Mother admitted to the social worker, “she hasn’t been doing what she needed to do in order to reunify with her child and said it was because of her pride. She said she was going to start and if it was too late, at least she knows she tried.”

Mother’s visits with J.B. and K.B. continued to take place at the mall, where she would play with them in a lounge area and take them to lunch. During visits Mother was affectionate and appropriate with the children. But when J.B. misbehaved, she would not discipline him unless directed to do so.

J.B. did very well emotionally when he was with the foster parents, but became very anxious and emotional when he had to go to visits with the paternal relatives. He told the social worker he wanted to live with the foster parents, not his paternal relatives. The paternal relatives said they no longer wanted weekend visits with J.B., and eventually ceased contact with him.

In its first report for the permanency hearing, SSA reported J.B. was highly adoptable and the foster parents desired to adopt J.B. and his sister. J.B. was thriving in the foster home, was attached to his foster parents, and sought comfort from them. They had met all his medical, developmental, and emotional needs. J.B. told the social worker he wanted to remain with the foster parents “‘forever.’” Although Mother had visited fairly regularly, she missed several visits without notifying the monitor ahead of time.

In October 2007, SSA reported Mother missed three visits with J.B. The foster parents had stated they were very willing to continue contact between J.B. and Mother and would allow Mother to be part of J.B.’s extracurricular activities. Mother had given birth to another baby in September, but she would not give the social worker any information about where the child was born or was residing.

In November 2007, SSA reported Mother continued to refuse to provide any information or the whereabouts of her new baby. She attended some visits with J.B. that went well with no concerns reported, but failed to show up for others.

On January 23, 2008, SSA reported the social worker had visited J.B. in the foster home. He was doing very well. He referred to the foster parents as “‘mami’” and “‘daddy.’” The social worker noted J.B. and his sister had lived with the foster parents since March 2006. J.B. was very bonded to his sister and “would suffer emotionally should he be separated from her.” Both J.B. and K.B. were “very well adjusted to the [foster parents’] home and both seem to be comfortable and close to [them].” All of J.B.’s needs were met by the foster parents.

At the permanency planning hearing, the social worker testified J.B. referred to the foster parents as “‘mommy’” and “‘poppy,’” and was responsive and affectionate towards them. She had monitored many visits between J.B. and Mother, which generally went well. Mother was affectionate with J.B. during visits. Sometimes he called her “mom” and sometimes called her by her first name. On occasion, J.B. said he wanted to live with Mother. Mother missed about 20 of 115 scheduled visits and often ended visits early. At times, Mother did not seem to take it very seriously when she was directed to discipline J.B. Mother was in custody at the time of the permanency planning hearing and did not want visits with J.B. while she was in custody.

In response to questions from Mother’s counsel, J.B. testified he wanted to continue seeing his mother. When asked, “if you weren’t able to see your mom . . . and visit with her, how would that make you feel?” J.B. replied, “Good.” But when next asked if he wanted to see her again, he replied, “Yeah.” When asked what he liked about his mom, J.B. said he liked that she gave him candy and took him to McDonald’s.

Mother testified about her positive visits with J.B.—they played and read books. Sometimes J.B. would ask if he could leave with Mother. Mother had not reviewed any of J.B.’s school work, or consulted with any of his doctors. Mother said when their visits ended, J.B. would not want her to go and say he did not want to live with the foster mother.

The juvenile court found J.B. to be adoptable, none of the exceptions to terminating parental rights applied, and terminated parental rights.

B. Discussion: Parental-Benefit Exception

Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. We find no error.

At a permanency hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.).) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(B)(i), 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 (Jasmine D.).)

In Autumn H., supra, 27 Cal.App.4th 567,the court articulated a test for determining whether a child would benefit from continuing the parental relationship. To succeed under this test, the parent must establish that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Id. at p. 575.) In evaluating this issue, the court must “balance[ ] 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.” (Ibid.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond[, including t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs . . . .” (Id. at pp. 575-576.)

“[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) “[F]requent and loving contact” may also be insufficient to establish the type of beneficial relationship “contemplated by the statute.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.).) “‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child[,]’” but the basis of a beneficial relationship is that the parents have “occupied a parental role[.]” (Id. at pp. 1418-1419.) “‘While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Whether we apply the abuse of discretion standard or the substantial evidence standard (see Jasmine D., supra, 78 Cal.App.4th at p. 1351 [“practical differences between the two standards of review are not significant”]), the result on appeal is the same. Substantial evidence supports the juvenile court’s conclusion termination of parental rights would not cause J.B. detriment, and that termination was in his best interest. Under Autumn H., Mother bore the burden of establishing termination of parental rights would greatly harm J.B. (Autumn H., supra, 27 Cal.App.4th at p. 575; accord Jasmine D., supra, 78 Cal.App.4th at p. 1350), and the juvenile court could reasonably conclude she failed to meet that burden.

In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), illustrate the compelling evidence necessary to establish the benefit exception. In Jerome D., the child “seemed lonely, sad, and . . . ‘the odd child out’” in his placement. (Jerome D., supra, 84 Cal.App.4th at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother “shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The court concluded that keeping parental rights intact would prevent Jerome’s “position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained [the mother’s] children.” (Id. at p. 1208.)

In Amber M., the court reversed termination of parental rights where a psychologist, therapists, and the court-appointed special advocate uniformly concluded a “beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption.” (Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a “strong primary bond” with their mother, and the younger child was “very strongly attached to her.” (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)

Here, Mother presented nothing remotely resembling the harm that would have ensued from termination of parental rights in Amber M. or Jerome D. All she can point to is that they had many positive visits and J.B. wanted to continue to see her. There was evidence the prospective adoptive parents were willing to facilitate that desire. In the end, Mother did nothing to ensure she could reunify with J.B. She consistently failed to drug test and admittedly completed none of the services that would have enabled her to achieve anything more than monitored visitation with J.B. By contrast, J.B. was thriving in the foster home, expressed a desire to stay there, and was closely bonded with his sister who was being adopted by the same foster parents.

Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), is misplaced. She cites the case for the proposition that the beneficial parental exception may apply, even in the absence of either “day-to-day contact” (id. at p. 299), or a “‘primary attachment’” (ibid.). But S.B. recognized nonetheless the application of the parental benefit exception still requires evidence the child would be “‘greatly harmed’” by severance of the natural parent/child relationship. (Id. at p. 297, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.) In S.B., the father had been the child’s primary caregiver for three years. (S.B., supra, 164 Cal.App.4th at p. 298.) A bonding study indicated that “because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at pp. 295-296.) The social worker even admitted there would be “some detriment” to the child if parental rights were terminated. (Id. at p. 295.) The juvenile court found the father and the child had “‘an emotionally significant relationship’ . . . .” (Id. at p. 298.) Needless to say, there is no analogous evidence in this case.

III

DISPOSITION

The order terminating parental rights is affirmed.

WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.

In re J.B.

Opinion

In re J.B.

In re J.B.

Case Details

CitationsCopy Citation

Citations