Opinion
E044654
9-5-2008
In re S.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. T.B. et al., Defendants and Appellants.
Leslie A. Barry and Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant T.B. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant S.C. Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for Minor.
Not to be Published
Defendants and appellants T.B. (Mother) and S.C. (Father) appeal from the juvenile courts order terminating their parental rights to three-year-old S.C. pursuant to Welfare and Institutions Code section 366.26. On appeal, Mother contends the juvenile court erred in failing to apply the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v). Father claims the juvenile court erred in (1) failing to apply the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), and (2) failing to return S.C. to him at the June 18, 2007, referral hearing. We reject these contentions and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Effective January 1, 2008, section 366.26, subd. (c)(1)(E) was renumbered as section 366.26, subdivision (c)(1)(B)(v).
Effective January 1, 2008, section 366.26, subd (c)(1)(A) was renumbered as section 366.26, subdivision (c)(1)(B)(i).
I
FACTUAL AND PROCEDURAL BACKGROUND
S.C. came to the attention of the San Bernardino County Department of Childrens Services (DCS) when she was five months old and a referral was made alleging that Mother failed to attend crucial medical appointments related to S.C.s congenital urological problem. An investigation revealed Mother had 11 children, nine of whom were minors, and a history with DCS since 1998 for general neglect and substance abuse.
None of S.C.s siblings are parties in this appeal.
On November 18, 2005, DCS filed a petition on behalf of S.C. pursuant to section 300, subdivision (b), alleging that the parents had "failed to comply with follow-up medical appointments" for S.C. and that the child was "developmentally delayed from lack of stimulation." Despite Mothers promises and the social workers urgency, Mother and Father failed to attend the follow-up medical appointments for S.C. In addition, S.C.s development was more consistent with a two-month-old baby, rather than a six-month-old baby. The juvenile court found a prima facie showing had been made and ordered S.C. detained in foster care.
In a jurisdictional/dispositional report, DCS recommended the petition be found true and that reunification services be ordered. The social worker reported that S.C., who had been placed in a confidential foster home, was eating and sleeping well. S.C. was also beginning to make developmental progress and could sit up and hold her own bottle.
Due to a miscommunication, Mother was having unmonitored visits twice a week for an hour. However, S.C. seemed lethargic after visits with Mother. Mother eventually admitted using drugs and it appeared she suffered from depression, which the social worker opined affected S.C.
On December 9, 2005, DCS filed an amended petition adding an allegation that Mother had a substance abuse problem.
Mother and Father attended mediation on December 21, 2005. Mother agreed to submit to the allegations, as amended, and to participate in reunification services including parenting education, individual counseling, random drug testing, and a substance abuse program if Mother tested dirty. Mother also agreed to submit to a psychological evaluation and follow all recommendations. The allegations against Father were resolved earlier so he was not a participant in the mediation but attended to support Mother. Fathers case plan required him to attend a parenting education program and general counseling.
On December 22, 2005, S.C. had been placed with her maternal grandmother and adult half sister in Los Angeles.
On January 4, 2006, Mother and Father submitted waiver of rights forms and submitted on the amended petition. The juvenile court found the allegations true as amended and declared S.C. a dependent of the court. The parents were provided with reunification services and ordered to participate. The court also found that Father was S.C.s presumed father and ordered the child placed with her maternal grandmother.
On February 6, 2006, DCS filed a section 387 petition, requesting that S.C. be removed from the maternal grandmothers home and returned to her former foster parents. DCS reported that S.C.s adult sister, who had moved in with the maternal grandmother to provide care for the child since the grandmother worked extended hours holding down two jobs, had called the Los Angeles Department of Children and Family Services Child Abuse Hotline (DCFS) and reported that Mother was drinking and abusing drugs with the uncle who resided with S.C. in the maternal grandmothers home. When DCFS went to the home to investigate the referral, the uncle told the social worker that the baby was not home because Mother had taken her out for a while and that they would return in few minutes. The social worker waited for about an hour, and called DCS to report that she did not feel placement in the grandmothers home was a safe placement for S.C. The following day, the DCS social worker went to the grandmothers home to check on S.C. Mother was in the home and told the social worker that she thought S.C. should be returned to her former foster mothers home because the grandmother was unable to watch the baby as she worked long hours and because it would be closer for Mother to visit the child.
Following S.C.s replacement in the home of her former foster parents, the child was developing well and gaining weight. Mother visited twice weekly and S.C. recognized Mother.
On February 28, 2006, the juvenile court found the allegations of the section 387 petition true and ordered S.C. formally placed in a foster home.
In a status review report dated July 3, 2006, DCS recommended an additional six months of services to Mother and Father. Mother and Father both completed a parenting program. Mother also entered a substance abuse program, attended some sessions, and tested clean, but was terminated due to "extensive absences." When confronted, Mother informed the social worker that she did not have time to attend the program because she was remodeling her home for S.C. Mother also had not started individual counseling despite receiving referrals.
Both parents had maintained regular supervised visits with S.C. twice weekly but had been less regular in the past two weeks. They were appropriate at visits with S.C. and took turns holding and engaging her. S.C. remained in her foster home and was developing well both emotionally and physically.
On July 3, 2006, the juvenile court authorized an additional six months of services, finding that the parents progress had been moderate.
By December 2006, DCS recommended another six months of services for the parents. DCS also recommended a 60-day trial visit upon successful completion of a home inspection. Mother was regularly visiting S.C. twice a week and interacting appropriately with her. Mother and Father had completed a second parenting program and were also participating in individual counseling. Mother had also completed a psychological evaluation. The evaluator found Mother to be in the mild mental retardation range of intelligence and found her parenting skills to be of questionable validity. The evaluator did not recommend that Mother provide care for S.C. in her present state. After testing positive for alcohol in September, Mother reenrolled in the substance abuse program and regularly tested clean. However, Mother missed classes and testing in November due to a problem with lice, but returned to the program on December 11, 2006.
As to possible extended visits, the social worker explained to the parents that S.C. needed a safe and clean environment for unmonitored and overnight visits. There had been another referral in June 2006 and the family home was found to be very messy but S.C.s siblings were not detained. The social worker had difficulty assessing the home and, therefore, unmonitored visits did not commence until December 1, 2006. However, the parents failed to keep their first unsupervised visit. When the foster parents went to the home to drop S.C. off, the parents were not present and left S.C. with the maternal aunt. When the foster parents returned, the parents were still not at home.
On December 14, 2006, the juvenile court authorized an additional six months of services.
However, by May 2007, DCS recommended terminating services and setting a permanency planning hearing. The parents situation had changed very little since the inception of the case. They lived in a two-bedroom home with nine children and the home was often messy. Mother had another bout with lice and had missed numerous sessions of her substance abuse program. She also tested positive for methamphetamine on February 13, 2007. Mother and Father initially attended counseling, but Mother did not appear to have gained any insight or to be motivated to have S.C. returned to her custody. Father accepted responsibility for S.C.s removal, but felt overwhelmed by Mothers strong personality and conformed to Mothers demands. After completing 11 sessions in conjoint counseling, Mother began the second series of sessions, but regularly missed those sessions and was eventually dropped from the program.
In addition, by June 2007, Mother had been terminated from her substance abuse program for drinking alcohol, and a referral was received by DCS alleging Mother had physically abused her 11-year-old daughter while intoxicated. In an interview, Mothers daughter reported that Mother drank all the time and that Mother had told the children not to talk to the social worker. Mother denied the allegations and appeared to be intoxicated during the interview with the police and social worker.
Visitation with S.C. was originally facilitated by the caretakers, but it was changed to the DCS office in January 2007 because Mother and Father were not consistent. The parents initially missed several visits but began visiting regularly on March 15. Mother showed affection to S.C. but had difficulty interacting with her. Father was very engaging with S.C., but appeared to be "just along for the ride" rather than a "true participant" in reunification services. Neither parent asked how S.C. was developing or about other aspects of her life. The social worker opined that although the parents had participated in services, there was no evidence that either of them had benefited from the services, and the parents continued to present a risk to S.C. The social worker was also concerned about one of S.C.s brothers, who was constantly dirty and frequently sick. The social worker also pointed out that S.C. needed to be closely monitored due to her medical needs.
S.C. had remained placed in the same foster home, and was healthy, developing well, and could now say a few words. S.C. was described as a happy baby who was bonded to her caretakers.
The contested 18-month review hearing was held on June 18, 2007. Father testified that he had moved out of the house and was living with his brothers friend in a single-room apartment, and claimed that he did not believe S.C. had an underlying medical problem or that Mother had a drug or drinking problem. Father did not want to lose S.C. and stated the only reason he left Mothers house was "[f]or the convenience of getting my child back." However, Father seemingly acknowledged that his intention was to reunify with Mother in the future. The social worker testified that S.C. required specialized care on an ongoing basis to monitor her kidneys. Following testimony of the social worker and Mother, and arguments from counsel, the juvenile court ordered services terminated and set a section 366.26 hearing. Through a Spanish interpreter, the court informed the parents, "Mom and dad, the Court has set a hearing to make a permanent plan for your child. If you wish to preserve your right to appeal the Courts decision you must file a petition for extraordinary writ. If you intend to file the petition for a writ, you must file a notice of intent to file a writ petition and request for the record with the juvenile court clerk within seven days of this date. You may use the form available at our clerks office to notify the court. The petition for extraordinary writ must be served and filed within ten days after the record is filed." Neither parent filed a writ.
In a section 366.26 report dated October 16, 2007, DCS recommended terminating parental rights and implementing a permanent plan of adoption for S.C. The social worker noted that S.C. had remained in the same foster home since she was removed from the family home when she was five months old, and was healthy and developing well. The social worker noted that S.C. had bonded with her caretakers and their new infant, and that they wanted to adopt her. The social worker opined that S.C. was adoptable as she was only 29 months old and her caretakers were committed to adoption.
Mother and Father consistently visited S.C. twice weekly. However, the social worker opined that S.C. did not see them as parents but rather "kind relatives but is not bonded to them."
The social worker further reported that S.C. has 10 siblings, but S.C. was the only child removed from her biological parents. According to the caretakers, S.C. did not exhibit any bonding with the biological parents or siblings, who had weekly visits with S.C.
The contested section 366.26 hearing was held on December 3, 2007. DCS entered the section 366.26 reports into evidence.
Father, with the assistance of a Spanish interpreter, testified that he was S.C.s father and was currently visiting her two hours per week supervised by the caretakers. Up until a month prior, Father visited S.C. twice a week for one hour. Mother and three of S.C.s 10 siblings also attended visits. S.C. had seen her other siblings; however, D.C. was the only sibling to attend most of the visits. During visits, S.C. played with her siblings; she also hugged and kissed them and shared her food with them. Father claimed that if D.C. was not at a visit, S.C. would ask for him and cry. S.C. called Father "dad" or "daddy" and would tell him she loved him. She generally spoke to him in English, which he was sometimes unable to understand. Father acknowledged that S.C. was removed from his care when she was six months old and that when visits would end, she was fine. Father continued to believe that S.C. did not have any medical conditions.
Mother testified that S.C. is her 11th child, that she has six children living at home with her, and that S.C. calls her "mom." Each of the siblings had visited S.C. in the last six months, but that D.C. had attended all but one of the visits. S.C. always hugged D.C. when she sees him and they would play together. Mother also stated that S.C. also hugged and kissed Mother at the visits and that on one occasion S.C. did not want to leave. Mother did not believe the social worker knew how S.C. felt because the social worker had not been to a visit in six months.
Social worker Kari D. (SW Kari) testified that she was the investigating social worker and had been reassigned the case in January 2007. She did not supervise visits, but had seen the parents with S.C. in the past. It was reported that Father attended visits and interacted appropriately with S.C. S.C. was friendly with Father; she would go to him if he called her and would go to him on her own to show him things. However, SW Kari did not believe the interaction was parental; S.C. did not seek him out for comfort. Although S.C. was happy to see Father at visits, she had no trouble leaving and had no distress. Father only visited with Mother and neither parent visited on their own accord.
SW Kari also observed that although S.C. enjoyed visits with Mother, recognized her, and went to her, Mother appeared "disconnected" from S.C. Mother did not know how to interact with S.C. or how to play with her. SW Kari explained that was one of the central concerns with Mother, and that Mothers connection to S.C. had not changed over the course of the dependency.
As to S.C.s relationship with her siblings, SW Kari testified that prior to mid-October 2007, S.C. had only seen the siblings a couple of times through the whole case. The siblings had been attending visits for the last six weeks and not all 10 siblings ever came together; different siblings came to different visits. D.C. had been to visits throughout the case and had spent the most time with S.C. SW Kari opined that although S.C. enjoyed the visits with her siblings, as she would any playdate, she was not bonded to them. SW Kari did not believe it would be detrimental to S.C. to terminate the sibling relationships.
Father argued the beneficial parent-child and sibling relationship exceptions to adoption applied. Mother argued that the sibling relationship exception applied. Minors counsel argued S.C. was adoptable and no exceptions applied. County counsel joined in minors counsels argument.
The juvenile court found S.C. adoptable and that no exceptions to adoption applied. Specifically, the juvenile court found S.C. did not have a significant relationship with any of her siblings except D.C., but even that relationship was not so significant to cause S.C. detriment if it was terminated. The court further found that while S.C. benefited from the relationship with her parents, the relationship was not parental and the benefit did not outweigh the benefits of adoption. Thus, the court ordered parental rights terminated and selected a permanent plan of adoption.
II
DISCUSSION
A. Sibling Relationship Exception
Mother argues the juvenile court erred in finding that the sibling relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(v) did not apply. This subdivision provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a "substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interests, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
The juvenile court undertakes a two-step analysis in evaluating the applicability of the sibling relationship exception. First, the court is directed "to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the childs best interests in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952.) "[T]he concern is the best interests of the child being considered for adoption, not the interests of that childs siblings." (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
"Reflecting the Legislatures preference for adoption when possible, the `sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship. [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the courts finding on this issue for substantial evidence. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
Here, Mother failed to present any evidence to support her assertion that section 366.26, subdivision (c)(1)(B)(v), applied. S.C. had only visited her siblings, with the exception of D.C., several times during the two years after her removal. S.C. was merely five months old when she was removed from the family home. The older siblings had begun to visit S.C. only six months prior to the termination hearing. The juvenile court correctly found that S.C.s relationship with her siblings, with the exception of D.C., was not significant. There was no testimony from the older siblings; there was no evidence of the quality and nature of the relationship or that the older siblings and S.C. shared "`significant common experiences or [had] existing close and strong bonds with [her]." (In re Celine R., supra, 31 Cal.4th at p. 61.) "`[N]ot all sibling relationships are strong or healthy," and "`[t]he existence of a brother or sister does not guarantee a sibling relationship." (In re Hector A. (2005) 125 Cal.App.4th 783, 794.) "If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.)
Because of D.C.s age, being the only sibling not in school, he often accompanied the parents to visits. Thus, S.C. saw D.C. with the same frequency as she did her parents and had regular contact with him. The juvenile court found that S.C. did have a significant relationship with D.C., but the relationship was not so "powerful that it is a reason in and of itself not to allow an adoption." "If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the childs best interests in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.) Thus, even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court may still conclude that the detriment is outweighed by the benefit to the child from adoption. (Id. at pp. 952-953.) Here, although there was evidence that the siblings missed each other and that S.C. cried when she did not see D.C. at a visit, there is, however, other evidence that the nature of the sibling relationship is not sufficiently significant to cause detriment were the relationship severed. As held in In re L. Y. L., even though S.C. may be sad in not seeing D.C., sadness is not sufficient to establish detriment. (In re L. Y. L., at p. 952.) Given S.C.s young age at removal, it is highly unlikely that she had such an existing close and strong bond with D.C. that it would be detrimental to sever the relationship.
Regardless, the social worker, albeit acknowledging that the prospective adoptive parents could change their mind, testified that the prospective adoptive parents intended to allow ongoing contact between S.C. and her birth family. Because the childs prospective adoptive parents were willing to maintain sibling contact, there was no substantial interference with the sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 254.)
Moreover, even if we accept Mothers argument that the children have strong and positive sibling relationships and will suffer detriment from severance, there remains substantial evidence that the benefits of adoption outweigh the benefits of maintaining the sibling relationships. S.C. has suffered years of uncertainty while family reunification was attempted. The reunification efforts failed. Now, "`the needs of the child for permanency and stability" are paramount. (In re Celine R., supra, 31 Cal.4th at p. 52.) Adoption will provide a permanent home and stability. S.C. has lived with her foster parents and prospective adoptive parents since November 2005, and is emotionally attached to them. Substantial evidence supports the juvenile courts conclusion that the benefits of adoption outweigh the benefits of continuing the childs relationship with her older siblings.
For the foregoing reasons, we hold that there is substantial evidence in the record to support the courts conclusion that the sibling relationship exception to adoption does not apply.
B. Beneficial Relationship Exception
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.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds 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 six exceptions set forth in section 366.26, subdivision (c)(1)(B)(i) through (vi). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
Father claims that the juvenile court erred in not finding applicable the section 366.26, subdivision (c)(1)(B)(i), exception to termination of parental rights, as he had maintained regular contact with S.D., and the child would benefit from the continued contact with him. Mother joins in Fathers claim.
The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). (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." (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Id. at p. 826.) "The parent must do more than demonstrate `frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a `parental role in the childs life." (Id. at p. 827.)
The parent must also 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 parents rights are not terminated." (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
"`The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the "positive" or "negative" effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350, quoting In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
"`Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) One court has observed, "The `benefit exception found in section 366. 26, subdivision (c)(1)(A) may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
There must be a "`compelling reason" for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a "quintessentially discretionary determination." Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, "`[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 courts action, no judge could reasonably have made the order that he did. . . . " [Citations.]" (Ibid.)
We note that courts have reached different conclusions as to the standard of review that applies to a juvenile courts ruling on exceptions to adoptability under section 366.26, subdivision (c)(1). In In re Autumn H., supra, 27 Cal.App.4th 567, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. (Id. at pp. 575-576.) In contrast, in In re Jasmine D., supra, 78 Cal.App.4th 1339, the court applied the abuse of discretion standard of review. (Id. at pp. 1351-1352.) For purposes of the present case, it makes no difference which standard applies because, as discussed below, we conclude that the juvenile court did not err under either test.
Here, although the parents could satisfactorily demonstrate that they had maintained contact as permitted with S.C., they had failed to show that the child would benefit from continuing the relationship. As stated above, "the parent must show more than frequent and loving contact or pleasant visits. [Citation.] `Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]" (In re L. Y. L., supra, 101 Cal.App.4th 942, 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "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.)
There was insufficient evidence that S.C. would benefit more from continuing her parent-child relationship with Father than from adoption. S.C. was removed from the parents home in November 2005 when she was only five months old. Reunification services were terminated on June 18, 2007. For over 17 months, she had lived with her prospective adoptive parents, who had provided her with permanency and stability. There was no evidence to show that S.C. would be greatly harmed by terminating parental rights. The social worker noted that S.C. was doing well in her prospective adoptive home and that her prospective adoptive parents were willing to adopt her and give her a permanent home.
Father asserts that S.C. would benefit "significantly" from continuing her relationship with Father. Father notes that S.C. had lived with him for the first five of the 30 months of her life; that the bond she had established with him in those first months was kept positive by the eight hours of supervised visitation per month; and that she had allowed him to hold her at visits and she gave him hugs and kisses. The juvenile court, in addressing Fathers assertion that the exception was established, agreed that S.C. and Father had a positive relationship and that it was more significant than that of "other stranger adults." The court however added "but I think thats as far as it goes frankly. [¶] I cant see how the parent-child relationship is so strong that she would be greatly harmed if it were severed." The court noted it to be a friendly relationship, but not familial, and found no evidence that S.C. would suffer any detriment from severing the relationship.
Application of the beneficial relationship exception requires the parent to show "more than that the relationship is `beneficial." (In re Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) The parent must demonstrate the relationship "`promote[s] the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents." (Ibid.; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy more than a "pleasant place" in the childs life for the beneficial relationship exception to apply]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [beneficial relationship exception did not apply; loss of mere "frequent and loving" contact with parent was insufficient to show detriment from termination of parental rights].)
As noted previously, to determine whether the beneficial relationship exception applies, "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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The beneficial relationship exception is "difficult to make in the situation, such as the one here, where the parents have [not] advanced beyond supervised visitation." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Notwithstanding this high burden, Father argues there is substantial evidence of a beneficial relationship because he occupied a parental role in S.C.s life. Father cites In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534. There, the juvenile court ordered legal guardianship for two minors but did not terminate the mothers parental rights because it concluded it would be in the childrens best interests to maintain their relationship with their mother. (Id. at p. 1533.) At the 366.26 hearing, the mother testified her children hugged and kissed her, and called her "mommy" when she visited them. (Id. at p. 1537.) The childrens guardian testified the children "look[ed] forward" to visits with their mother and "ha[d] a good relationship" with her. (Id. at p. 1536.) Because the Department of Children and Family Services did not present any evidence to contradict the mothers or the guardians testimonies, and they failed to provide the juvenile court with information about the quality of the mothers visits, the Brandon C. court concluded the mother provided substantial evidence that the beneficial relationship exception applied. (Id. at pp. 1537-1538.)
Brandon C. does not advance Fathers claim that the beneficial relationship exception applies here. Here, DCS presented evidence about S.C.s relationship with her parents. SW Kari characterized that the impact of the visitations on S.C. as nonemotional playdates and did not believe Father played a parental role. She also opined that S.C. was bonded with her prospective adoptive parents and not her biological ones. S.C. greeted her parents as she did all visitors, with hugs and kisses, but did not seek either parent for comfort or for parental care. In addition, even though SW Kari acknowledged that she did not supervise the family visits about two months prior to the 366.26 hearing and that her report was based on information provided by other social workers or the foster parents, it is inarguable that the parents interaction with S.C. was limited to watching her play with toys and speaking to her, and that S.C. did not cry or appear in distress when the visits ended. Neither parent asked about S.C.s well-being nor did the child go to the parents for security and caretaking. In fact, it appears as though both parents did not even believe that S.C. had an ongoing medical condition, which needed to be monitored.
Likewise, Fathers reliance on the recent case of In re S.B. (2008) 164 Cal.App.4th 289, is misplaced. In re S.B. is wholly distinguishable from the present case. (See id. at pp. 298-300.)
We conclude the juvenile court reasonably found there was insufficient evidence that S.C. would benefit more from continuing her relationship with Father and Mother than from adoption. S.C. is doing well in her prospective adoptive familys home. There is no evidence that the child would be harmed—much less "greatly harmed" (see In re L. Y. L., supra, 101 Cal.App.4th at p. 953)—by severing the parent-child relationship with Father and Mother. The juvenile court thus properly found that the beneficial parental relationship exception to terminating parental rights did not apply.
C. Failure to Return Child to Father
Father argues the juvenile court erred in failing to return S.C. to him at the contested 18-month review hearing. He also asserts that his claim of error is preserved because the writ advisement was inadequate. We reject these claims.
We begin our analysis with an examination of the right to notice, which is based both on the constitutional right to due process and on the dependency scheme embodied in statutes and rules of court. "Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. [Citation.]" (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114, italics added.)
The general rule is that a parent may not appeal from an order made at a hearing where a section 366.26 hearing was set unless the parent timely files a petition for extraordinary writ review (§ 366.26, subd. (l)), and the juvenile court must so advise the parent of the right to file such a petition. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b).) Where the juvenile court fails to advise a parent of the right to file a petition for writ relief, the parent appealing from the order terminating parental rights may challenge the predicate order setting the section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)
All further rule references are to the California Rules of Court unless otherwise indicated.
Here, it is undisputed that the juvenile court orally advised both parents, who were present at the June 18, 2007, 18-month review hearing where services were terminated and a section 366.26 hearing was set, of their appellate writ rights as required by section 366.26, subdivision (l). Father, however, maintains the court failed to adhere to rules 5.720(c)(15) and 5.600(b)(2) when it failed to have the required forms, JV-820 and JV-825, in the courtroom.
Rule 5.600(b)(2), in relevant part, provides: "Copies of Petition for Extraordinary Writ (California Rules of Court, Rules 8.542, 8.456 ) (form JV-825) and Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820) must be available in the courtroom and must accompany all mailed notices informing the parties of their rights." Rule 5.720(c)(15) repeats this language as required of the court when setting a 366.26 hearing after an 18-month review hearing.
At the close of the 18-month review hearing, the juvenile court orally advised the parents of their writ rights and informed them that they "may use the form available at our clerks office to notify the court." Father only faults the juvenile court for failing to have the forms available in the courtroom.
As the parties point out, it is clear that a trial courts failure to give oral notice of writ requirements is error. (§ 366.26, subd. (l)(3)(A); rules 5.585(e), 5.600(b), 5.695(f)(18).) It is also clear that "[w]hen notice is not given, the parents claims of error occurring at the setting hearing may be addressed on review from the disposition following the section 366.26 hearing." (In re Harmony B. (2005) 125 Cal.App.4th 831, 838; see also In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Rashad B. (1999) 76 Cal.App.4th 442, 450; In re Cathina W., supra, 68 Cal.App.4th at pp. 722-726.) As county counsel points out, such is not the case here. The only issue is whether the forms must be contained within the particular courtroom, or if there is substantial compliance where the parent has been directed to obtain the necessary forms at the clerks office within the juvenile court.
We have found no cases addressing this issue; and the cases cited by Father relate only to the absence of any notice to the parent of their writ right (see Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254), or the notice contained an incorrect hearing date such that the writ would have been untimely filed (In re Cathina W., supra, 68 Cal.App.4th 716). The other cases cited by Father are also inapposite. (See In re Charmice G. (1998) 66 Cal.App.4th 659.)
Rather than determining whether the juvenile court was mandated to have the requisite forms available in its courtroom, we will consider the merits of Fathers arguments if he can show good cause for his failure to seek writ review in a timely fashion. (See In re Cathina W., supra, 68 Cal.App.4th at p. 722.) The reason for excusing the writ requirement when the juvenile court has failed to give notice is because this complete absence of notice constitutes good cause for the parents failure to file a timely writ petition. (Id. at pp. 722-723.) The same cannot be said of the mere failure to have the Judicial Council forms available in the courtroom.
Father here cannot show good cause for his failure to file a writ petition. He was given oral advisement of the writ requirements and, hence, had actual notice. He was also directed to the clerks office where the forms were located and Father was also represented by counsel.
As county counsel points out, it appears de minimis whether the forms are provided within the confines of the courtroom or, as in this case, outside the courtroom in the clerks office. Father still could have filed a timely writ petition—on Judicial Council forms—simply by asking his appointed counsel to obtain the forms or going to the clerks office himself to obtain them. The courts failure to have the forms available in the courtroom was not good cause for Fathers complete noncompliance.
Moreover, Father cannot show that he was prejudiced by the courts failure to have the requisite writ forms in the courtroom. (See In re Janee J. (1999) 74 Cal.App.4th 198, 208-209.) Father does not argue that he did not receive notice. In fact, it is undisputed that he received notice. Further, Father apparently did not believe he had been prejudiced by the errors because he never raised the issue in the trial court.
Additionally, Father does not assert that he was unable to file a writ because he could not locate the form, or the clerks office, or that his attorney was unable to assist in receiving the necessary forms. Rather, he claims that the court had a per se duty to provide him with the forms in the courtroom and its failure to do so was a per se violation of his right to due process. However, there is no evidence in the record to show that Father was prevented from an opportunity to be heard or to file a writ petition, or that the location of the forms compromised his ability to file a timely writ. Accordingly, we reject Fathers purported due process violation claims.
Nevertheless, the right to argue on appeal that lack of notice violated ones due process rights can be waived by failure to object at a subsequent hearing. (In re Janee J., supra, 74 Cal.App.4th at pp. 209-210.) Neither Father nor his counsel raised the issue of the writ forms at the subsequent hearings, even though they had ample opportunity to do so. Therefore, the issue has been waived.
Accordingly, we will not reach the merits of the June 18, 2007, 18-month review hearing.
III
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, Acting P. J.
MILLER, J.