Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. J202755, A. Rex Victor, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
Jessica G. (Mother) appeals from the termination of her parental rights from a Welfare and Institutions Code section 366.26 hearing. Mother has raised one issue on appeal: The juvenile court should not have terminated her parental rights because she established the beneficial relationship exception embodied in section 366.26, subdivision (c)(1)(A).
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 July 6, 2005, Mother contacted the San Bernardino County Department of Social Services (the Department) and advised them that she no longer wanted her then one-week-old daughter (Minor), because the child would not stop crying and was always whining. Mother already had two other cases open with the Department for Minor’s half siblings, J.L. and M.R., who had been removed from Mother’s custody due to her substance abuse and because she had physically abused them. J.L. and M.R. were living with a paternal aunt.
This court incorporated the record in case No. E041734 into the instant case on its own motion and draws evidence from both cases in this appeal.
The Department worker told Mother to take several hours and think about her decision. Mother also told the Department worker that she believed she was going to be kicked out of her sober living home. When the worker tried to contact Mother several hours later, she was told Mother and Minor had left the sober living home.
Mother called the Department again on July 8, 2005. She claimed that she and the presumed father (Father) of Minor had fought the night before in front of her sober living home. Father had demanded that Mother give him the child. Mother packed a diaper bag for the baby and gave her to Father, who took her to an unknown location. Father may have been under the influence of drugs or alcohol when Mother gave Minor to him. Minor was eventually located at her paternal aunt’s house.
Father had a history of drug use and an extensive criminal history, including charges for battery and possession of drugs, and had multiple outstanding warrants for his arrest. Father and Mother had engaged in mutual combat.
On July 13, 2005, the Department filed a section 300 petition as to Minor under the grounds of failure to protect and failure to supervise or protect the child adequately from the conduct of the custodian with whom the child was left pursuant to section 300, subdivision (b); no provision of support pursuant to § 300, subdivision (g); and abuse of a sibling pursuant to section 300, subdivision (j).
The original detention report recommended that custody be taken from Father. The Department recommended that Mother retain custody of Minor (with Department supervision) as long as she stayed in a sober living home. The Department recommended a family maintenance plan and that reunification services be afforded to Father. At the detention hearing, Mother denied the allegations in the petition. Father was not present. The juvenile court adopted the Department’s recommendations.
On July 25, 2005, an amended section 300 petition was filed. The Department recommended that custody be taken from Mother and that Minor be placed in foster care. This change was due to Mother having been removed from her sober living home on July 20, 2005, for fighting with another woman. Mother was staying at a friend’s house. A social worker from the Department went to the location and found Mother had left Minor with the friend; Minor was removed from Mother’s custody, as she had failed to remain in the sober living home. On July 21, 2005, Mother contacted the Department and advised them that she had been admitted to another sober living home. The Department recommended that custody be taken from Mother and Father and that Minor remain in confidential foster care. The Department submitted a case plan for reunification.
At a detention hearing held on July 28, 2005, Mother withdrew her contest of the detention. The juvenile court found that a prima facie case for detention had been made. It adopted the Department’s recommendations that Minor continue in the custody of the confidential foster home and ordered that the case plan be reunification.
In a jurisdictional report filed on August 18, 2005, the Department provided information that Mother had failed to reunify with J.L. and M.R. and that she had failed to complete her case plan for them. The Department also included statements that Mother had another daughter, for whom legal guardianship had been granted to the great-grandmother. The Department indicated that Mother herself had been in foster care and had given birth to two children while in foster care. Mother had a history of severe emotional and behavioral problems. Father had an extensive criminal and drug-use history. The Department reiterated the allegations in the petition filed for Minor and provided supporting evidence for the removal of Minor. The Department recommended that Minor be declared a dependent of the juvenile court, that the permanent plan be reunification, and that Mother be ordered to participate in a psychological evaluation.
At the jurisdictional hearing, Mother admitted the allegations in the section 300 petition. Father was found to be the presumed father. The juvenile court found the allegations in the petition true. It declared Minor was within section 300, subdivision (b). The court ordered continued reunification services for both Father and Mother not to exceed six months and ordered that Mother submit to psychological counseling.
Mother was evaluated by Dr. James Pace, a licensed psychologist. Dr. Pace diagnosed Mother as having major depressive disorder, post traumatic stress disorder, and intermittent explosive disorder. Mother had been a victim of child abuse and was a cannabis abuser. Dr. Pace recommended that she not be given custody of Minor due to her unstable living conditions, psychological instability, and continued use of illegal drugs.
In a six-month review report filed on March 2, 2006, the Department recommended that Minor remain with the foster parent, Ms. A.; that Mother continue with reunification services; and that reunification services to Father be terminated. The report noted that Mother had been in and out of a substance abuse treatment home and was currently homeless. Mother had weekly visits with Minor but had missed one entire month of visits when she left the inpatient treatment program. Mother and Minor appeared to be “very” bonded during their visits. The Department recommended six additional months of reunification services.
In an addendum report filed on March 3, 2006, the Department determined that Minor could be returned to Mother if an additional six months of reunification services were afforded to Mother. Mother was progressing in counseling and completing her parenting programs. She had reconciled with her own mother and was living at her mother’s house.
On March 29, 2006, based on the March 2 and March 3 reports, the juvenile court extended the reunification services for six months for Mother. Father’s reunification services were terminated.
The Department submitted a status review report filed August 29, 2006. Mother had been kicked out by her mother. Mother had been only moderately successful in the treatment programs she had completed; however, she had threatened violence at an outpatient treatment facility and had tested positive for marijuana. Reunification services for J.L. and M.R. had been terminated. Mother had been somewhat consistent in her weekly visits with Minor. She had entered the Save the Babies residential treatment program because she was once again pregnant. The Department noted that Minor had bonded with the prospective adoptive family. The Department requested that reunification services for Mother be terminated and that a section 366.26 hearing be set to establish a permanent plan of adoption for Minor.
On November 7, 2006, a 12-month review hearing was conducted. The Department relied upon the September 28 status review report and the psychological evaluation conducted by Dr. Pace. The juvenile court also took into account a letter received from the Save the Babies program, and the Mother’s laboratory results that showed a decrease in the amount of tetrahydrocannabinol (the active ingredient in marijuana) in her blood. Counsel for Mother argued that she was now in a program and that she wanted to be reunited with Minor. Mother asked that the reunification services be continued for another six months.
The court commended Mother for her recent progress but found that it was too late for reconciliation with Minor. Based on Mother’s history, there was no guarantee she would complete her current program. It was unfair to Minor to continue to give Mother a chance to reconcile. The juvenile court adopted the Department’s findings from its September 28 report. The trial court found it was in the Minor’s best interest to consider termination of parental rights at a section 366.26 hearing and free Minor for adoption.
Mother was given notice of the necessity of filing a petition for extraordinary writ pursuant to former California Rules of Court, rule 38 (now rule 8.452). Mother filed a notice of intent to file a writ petition. However, she never filed a writ petition, and the action was dismissed by this court on December 28, 2006.
The Department filed a section 366.26 report on January 30, 2007, recommending that Minor be freed for adoption. The Department noted that Mother’s parental rights to J.L. and M.R. had been terminated, and legal guardianship had been ordered for them. Mother had maintained weekly visits with Minor. J.L. and M.R. had also attended these visits. The Department noted that Mother had threatened a department worker during one of the visits. The adoptive family had agreed to continue visits with the siblings. The accompanying adoption assessment report recommended that termination of parental rights was the appropriate plan. It recommended that Minor be freed for adoption because Minor had bonded well with the prospective adoptive family.
On March 16, 2007, Mother filed a section 388 motion requesting a change in the juvenile court’s order terminating reunification services and setting the section 366.26 hearing. Mother claimed that she had “corrected the problems” for which Minor had been removed and that Mother and Minor were bonded. Mother submitted a personal letter to the juvenile court requesting that she be given a chance. A letter was also submitted from Save the Babies residential treatment home claiming Mother had made progress in both her drug abuse and parenting programs. In addition, she had been bonding with Minor. Mother also provided documentation that she had been attending all of her drug abuse and parenting classes.
An addendum report filed March 23, 2007, was filed by the Department responding to the section 388 motion. According to the addendum report, Mother had been discharged from the Save the Babies program on March 19, 2007, due to fighting with staff members. Mother had apparently kicked in a bathroom door. The Department recounted Mother’s three-year history with the Department, including both the termination of her parental rights to M.R. and J.L. and the instant proceedings involving Minor. A letter was attached from the Save the Babies program confirming that Mother had been terminated from the program. In addition, certificates of completion of parenting classes were submitted.
At a hearing held on March 28, 2007, on both the section 388 motion and the section 366.26 determination, the juvenile court denied the section 388 motion, finding that there were not sufficient changed circumstances to warrant granting the motion. Thereafter, the juvenile court found that Minor was adoptable and that the parental rights of Mother and Father should be terminated. Minor was freed for adoption. Mother appealed.
II THE BENEFICIAL RELATIONSHIP EXCEPTION OF SECTION 366.26, SUBDIVISION (C)(1)(A)
Mother contends 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 terminating her parental rights.
A. Additional Factual Background
At the section 366.26 hearing held on January 16, 2007, the parties first addressed the section 388 motion filed by Mother. The juvenile court took into account the section 388 motion, with the certificates of attendance for various classes Mother had completed; the section 366.26 report dated March 6, 2007, with the accompanying adoption assessment; and the addendum report dated March 28, 2007.
Since the juvenile court relied upon the evidence presented at the section 388 motion hearing in making its section 366.26 determination, the proceedings are relevant here despite the fact that Mother has not raised any issues on appeal concerning the denial of her section 388 motion.
In support of the section 388 motion, Linda Marlow testified on behalf of Mother. Marlow was the case manager counselor at the Save the Babies program. Mother was terminated from the program due to “[e]xplosive behavior.” Nonetheless, Marlow believed Mother had made progress since entering the program.
Marlow observed visits between Mother and Minor, which occurred once a week for two hours. Mother acted appropriately during these visits. Minor acted “[l]ovingly” with Mother and recognized her as her mother. Mother never displayed explosive behavior toward Minor. However, Marlow opined that Mother could not currently take care of Minor because of her mental health issues. Marlow believed Mother would benefit from medication but could not take it because she was pregnant again. Mother had left the program for a week in February because she was “stressed.”
Marlow believed that Mother needed to participate in more of the programs offered at Save the Babies. Although Mother wanted back in the program, she had to wait 30 days from the time she was terminated. Mother also needed to complete psychological or psychiatric counseling.
Mother testified on her own behalf. Mother claimed she had outbursts at the Save the Babies program because she was under a lot of stress due to the prospect of losing Minor. Mother believed she was dealing better with stress since being in the Save the Babies program. When Mother was asked whether she would be able to take care of Minor, she responded, “Right now at this time, no.” Mother claimed she still had to deal with her past and that she needed to take medication. Mother felt that she and Minor had bonded with each other and that she could eventually take care of Minor.
In arguing the section 388 motion, counsel stated that Mother had made progress and asked the juvenile court to consider giving her additional time or opportunity to get better. Counsel for Mother conceded that Mother was not asking for return of Minor, but rather to continue services.
The trial court denied the section 388 motion, finding additional reunification services or return of Minor to Mother was not appropriate at that time. Although Mother had made progress, there was not a change of circumstances that warranted granting the section 388 motion.
The parties then stipulated that the testimony from the section 388 motion hearing could be considered as evidence for the section 366.26 determination. The Department again submitted the section 366.26 report and adoption assessment and the addendum report. Mother’s certificates of compliance and the letter from Save the Babies were also considered. Counsel for both the Department and the minor submitted on the reports.
Counsel for Mother argued that Minor and Mother had bonded. Counsel argued it would be beneficial for Minor to continue the relationship with Mother and asked the juvenile court not to terminate her parental rights.
Although Mother did not specifically state on the record that she was arguing that the exception in section 366.26, subdivision (c)(1)(A) applied, based on the argument and the analysis by the juvenile court, this was clearly the intent of her argument. Furthermore, since the Department has not claimed that Mother waived the issue, we will not consider waiver.
The juvenile court found that “any bond” that existed between Mother and Minor was “far outweighed by the need for the child’s [sic] to have permanency and the best interest of the child would require that parental rights be terminated and adoption ordered.” The juvenile court indicated it had taken into account the prior reports and recommendations of the Department, as well as argument of counsel. It found that Minor was adoptable and that the parental rights of Mother and Father should be terminated. Minor was 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 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 trial court did not err in failing to apply the beneficial relationship exception to prevent Minor’s adoption.
As to the first prong of the beneficial relationship exception, whether Mother maintained regular visitation with Minor, the juvenile court only stated, “I notice there’s not many, many months of reunification services with child. Mother’s had opportunities that she certainly advised for visitation.” We believe the record shows that Mother’s visits with Minor were sporadic. Mother missed an entire month of visitation when she was removed from one home. She missed two weeks of visitation in April 2006, when she was arrested. In the section 366.26 report dated March 6, 2007, the Department noted that several visits between Mother and Minor had to be cancelled due to Mother’s inappropriate behavior. In addition, she had yelled at a Department worker during one visit. Although the record shows that Mother did maintain regular visitation when she was in sober living homes, she was unable to maintain these visits when she was removed. Mother has failed to meet her burden of showing that she maintained regular visitation.
Mother also failed to meet her burden of proving the second prong: that Minor would benefit from continuing the relationship. Minor lived with Ms. A., her adoptive foster parent, since she was one month old. Ms. A. was the only adult who had provided Minor with food, shelter, protection, and guidance on a daily basis. While Mother and Minor appeared to have a “bonded” relationship during the one- or two-hour visits, which occurred only once a week, Mother had never consistently cared for Minor.
Furthermore, Mother had no resources to take care of Minor. She continued to be in and out of sober living homes and oftentimes was removed due to her explosive behavior. Mother could not provide a consistent, safe environment for Minor. Even Mother admitted that she was in no position to take care of Minor at the time. Based on Mother’s history with the Department (including the removal of three of her other children), she had not shown that she would be ready to care for Minor any time in the near future.
Mother claims that it would not be fair to sever the bond between Minor and her, and with Minor’s siblings, J.L. and M.R. To the extent that Mother is arguing that the sibling relationship exception applies, she did not raise the issue in the juvenile court. (See § 366.26, subd. (c)(1)(E).) Such failure to raise the exception waives the issue on appeal. (See In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) Regardless, the adoptive parents agreed to continue visits between J.L., M.R., and Minor. Mother had no way to facilitate visits between the siblings as she had lost parental rights to J.L. and M.R. As such, even had the juvenile court considered the sibling exception, there was no evidence to support that the exception applied.
Mother claims in her reply brief that she could not take medication to help her mental health problems due to her pregnancy. She insists that once she was able to take the medication, it would help stabilize her mental health. There was no evidence before the juvenile court that showed that if Mother began taking medication, she would suddenly be able to take care of Minor. Mother was unable to take care of any of her four children and had another child on the way. Her history contradicted her ability to take care of these children even if she began taking medication, as she continued to have substance abuse problems. This evidence (that Mother would benefit from medication) was not before the juvenile court and is not properly considered here.
The juvenile court thus properly found that the beneficial parental relationship exception to termination of Mother’s parental rights did not apply. It therefore did not err in terminating Mother’s parental rights.
III DISPOSITION
The order appealed from is affirmed.
We concur: HOLLENHORST, Acting P.J., KING J.