Opinion
B163736.
7-11-2003
In re TAJEEIK B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROBERT B. and TAJUANA J., Defendants and Appellants.
Steven D. Schatz, under appointment by the Court of Appeal, for Defendant and Appellant Robert B. Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant Tajuana J. Lloyd W. Pellman, County Counsel, Arezoo Pichvai, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency proceeding, Tajuana J. (Mother) and Robert B. (Father), parents of Tajeeik B., appeal from the order terminating their parental rights (Welf. & Inst. Code, § 366.26). Mother also appeals from the order denying her request for modification of prior orders (§ 388). We affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Mother, born in November 1975, was herself a dependent child from 1987 to 1993. In June 1993, Mother gave birth to Tajenique F. In August 2001, when Tajenique was eight years old, Mother was arrested for beating Tajenique with a belt or belt buckle, causing deep bruises and lacerations. Mother received a state prison term for felony child abuse. (Pen. Code, § 273a). In the related dependency proceeding, Mother was denied reunification services as to Tajenique.
Tajenique is not involved in these proceedings.
While in prison, Mother gave birth to Tajeeik in February 2002. The Los Angeles County Department of Family and Childrens Services immediately detained Tajeeik and placed him in foster care with a nonrelative. The Department filed a section 300 petition, alleging Tajeeik was at risk of: (1) serious physical harm due to Mothers abuse of Tajenique (§ 300, subd. (a)); (2) serious physical harm or illness due to Mothers incarceration, Mothers history of substance and alcohol abuse, and the history of domestic violence between Mother and Tajeniques father, Walter F. (§ 300, subd. (b)); and (3) abuse or neglect due to Mothers abuse of Tajenique ( § 300, subd. (j)).
Walter is not involved in these proceedings. The record indicates that in 1996, Mother cut Walter on the wrist with a knife, sending him to the hospital. In another incident, Mother sliced the left side of Walters face with a razor blade.
The Departments report for the detention hearing stated that Father had acknowledged his paternity of Tajeeik and wanted to take custody of him as soon as possible. Father admitted having prior burglary convictions and was "Live Scanned." The report recommended that Father be granted monitored visits pending the Departments receipt of his Live Scan results and completion of a more thorough evaluation. The report also recommended that Mother be denied reunification services.
At the detention hearing on February 27, 2002, the court ordered Tajeeiks continued placement in foster care and directed the Department to evaluate the home of Tajeeiks maternal aunt, Sharice J., as a possible relative placement. The court granted Father unmonitored visits at the foster home, and monitored visits outside the foster home.
The Departments report for the jurisdictional/disposition hearing stated that Aunt Sharices home was still being considered as a relative placement for Tajeeik, and that Aunt Sharice wanted to adopt the child if Mother failed to reunify with him.
The jurisdictional/disposition report also stated that Father, contrary to his earlier position, no longer wanted custody of Tajeeik because his "current live-in girlfriend has a long history with [Mother] and does not want [Mothers] child to live with them." The report quoted Father as saying: "`I thought that Sharice (maternal aunt) was going to be taking [Tajeeik]. Sure, I want him to know me but I do not want him to stay with me. My current girl friend would not like that at all." Due to Fathers desire to have Aunt Sharice take custody of Tajeeik, the Department recommended that Father be denied family reunification services. The report noted that Father and Aunt Sharice had visited Tajeeik in foster care on March 15, 2002.
The Department continued to recommend that Mother be denied reunification services. The jurisdictional/disposition report stated that Mother was "less than forthright," and her "denial of physical abuse[,] history of substance abuse and domestic violence puts Tajeeik at substantial risk of abuse and/or neglect."
At the May 24, 2002, jurisdictional hearing, Fathers criminal record was admitted into evidence. The court sustained the petition and declared Tajeeik to be a dependent child under section 300, subdivisions (a), (b), and (j). The court continued the disposition hearing in order to address Fathers request to be declared a presumed father.
Fathers record included convictions in: (1) 1990 for use of a controlled substance and grand theft; (2) 1991 for grand theft and second degree burglary; (3) 1992 for second degree burglary and prison escape without force; (4) 1993 for use of a controlled substance and petty theft; (5) 1994 for petty theft with a prior; (6) 1995 for petty theft with a prior; and (7) 1997 for shoplifting and petty theft with a prior.
At the continued disposition hearing on May 28, 2002, the court denied Mother reunification services under section 361.5, subdivisions (b)(6), (b)(7), (b)(10), and (e). The court also denied Father reunification services, finding that although Father was visiting the child, Father did not seek or want reunification services or custody (although Father was apparently willing to assume custody if Aunt Sharice could not). The court concluded that Father, having "done nothing to assume full custody of the child," did not qualify as a "presumed father," and, until his biological paternity was established by court order, was only an alleged father. Under section 361.5, subdivision (a), the court determined that because Father was not a presumed father, he was not entitled to reunification services.
These provisions permit the court, provided certain conditions are met, to deny reunification services where the parent, among other things, has inflicted severe physical abuse on the child or the childs sibling or half-sibling, or is incarcerated.
Earlier at the May 24, 2002, hearing, Fathers counsel (Ms. Castro) stated that although Father did not want custody, Father wanted to have reunification services so he could have visitation privileges. When the court pointed out that Father could still receive visitation privileges without being granted reunification services, Castro agreed to "submit on that." Castro stated: "The Court can make findings as to no reunification services. My concern on behalf of my client is that he be granted the specific visitation order."
"In dependency cases, presumed fathers are entitled to reunification services while mere biological fathers are not. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 [24 Cal.Rptr.2d 751, 862 P.2d 751] (. . .).)" (In re Raphael P. (2002) 97 Cal.App.4th 716, 725, fn. omitted.)
"A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in Civil Code section 7004. (In re Baby Girl M. (1984) 37 Cal.3d 65, 72, fn. 5 [207 Cal.Rptr. 309, 688 P.2d 918], superseded on other grounds by statute; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3 [4 Cal.Rptr.2d 615, 823 P.2d 1216].) A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an alleged father. (See In re Shereece B. (1991) 231 Cal. App. 3d 613, 620-621 .)" (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15, 862 P.2d 751.)
The court scheduled a section 366.26 hearing for September 25, 2002 (which was continued until December 2, 2002).
On August 6, 2002, Mother was transferred from state prison to a work furlough program.
On September 6, 2002, Tajeeik was moved from foster care to the home of Aunt Sharice, who had been visiting Tajeeik weekly at the foster home.
On October 2, 2002, Father filed a section 388 petition requesting unmonitored day visits, overnight weekend visits, and an order granting him presumed father status. At the November 12, 2002, hearing on Fathers petition, Father testified that if Tajeeik were placed in his home, he would take financial responsibility for him. Father presented evidence that he had visited Tajeeik at Aunt Sharices home at least once a week in September and October 2002. He had also provided financial support and food, wipes, lotion, medicine, and clothing for Tajeeik.
"In order to become a presumed father, a father must fall within one of several categories enumerated in Family Code section 7611 . . . . [Citation.] As in Zacharia D., the only relevant category here is subdivision (d) of Family Code section 7611 . . ., which requires a natural father to receive[] the child into his home and openly hold[] out the child as his natural child. (Ibid.) . . . If an unwed, biological father promptly comes forward and demonstrates a full commitment to his parental responsibilities, his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. [In re Zacharia D., supra,] 6 Cal.4th at p. 450.)" (In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.) A presumed fathers consent is required before his child may be adopted in the absence of a finding of his unfitness. (Fam. Code, § 8604.)
The court denied Fathers request for overnight visits based on Aunt Sharices testimony that Tajeeik still suffered from separation anxiety whenever he was apart from her. The court also noted Aunt Sharice had doubts concerning Fathers present ability to take care of Tajeeik without assistance. The court granted Father leave to have unmonitored visits in Aunt Sharices home, subject to her approval. As for Fathers request to be designated a presumed father, the court stated the situation was now "totally different than what was presented back in May," when Father had been denied presumed father status due to his unwillingness to assume custody. The court stated that Fathers changed behavior since May "seems to fit more in the presumed father status. So I11 grant the motion on that one. I think its much more clear now, and it was not clear in May."
On December 2, 2002, the court heard Mothers section 388 petition, in which she sought unmonitored day and weekend overnight visits. Mother, who had been released from the halfway house in November 2002, presented evidence of her changed circumstances, including her employment, negative drug and alcohol tests, and attendance at courses on stress, anger management, parenting, and drug education.
The court denied Mothers section 388 petition, stating that "the burden of proof has not been met. There is not a significant change of circumstances here at all. [P] In the petition it indicates that mother has visited with the child on a weekly basis — thats not true — that she has a home for the child. [P] Thats not true. [P] She requests return of the child to her care. Mothers own testimony indicates thats not appropriate. It also asked . . . for unmonitored day and weekend overnight visits. She has no place for the weekend overnight visit. So that — that cant be done. [P] . . . And it certainly has not been shown its in the best interests of the child to do that as well. [P] This was — what started this was a very severe physical abuse case. It wasnt just a little spanking. It was a very severe case, which resulted in mothers incarceration. And shes done a couple of things but nothing really significant and not enough to meet the legal standard."
After denying Mothers section 388 petition, the court held a section 366.26 hearing. At the hearing, Aunt Sharice testified that she was opposed to having Father in her home during her absence, but had no objections to having him visit when she was present. Aunt Sharice stated she was willing to abide by the courts decision as to whether she should be Tajeeiks legal guardian or adoptive parent. She was amenable to either plan, as she was reluctant to go against her sister, who wanted to retain her parental rights.
Father testified that while he wanted Aunt Sharice to have guardianship, he also wanted to retain his parental rights and opposed having Tajeeik adopted.
CSW Jones testified that Tajeeik was a well child and had no issues to impair his adoptability.
Mother testified that she had tried to visit Tajeeik and bring him clothes and things as much as possible given the constraints of being incarcerated and on the work furlough program. Mother admitted that Tajeeik was more comfortable with Father than with her, and had cried when she tried to bathe him and would tire of playing with her.
The Department recommended that the court terminate parental rights and adopt a permanent plan of adoption. As for Mother, the Department pointed out that she had given birth while incarcerated and spent only about two days with Tajeeik before he was detained. Mothers incarceration precluded her from having anything but limited contact with Tajeeik, and after her release she had unmonitored visits on a sporadic basis. Tajeeik does not recognize Mother as his mother, and does not turn to her for his care and needs. As for Father, the Department argued that while he has visited more than Mother, and Tajeeik is more comfortable with Father than with Mother, Tajeeiks primary caretaker is Aunt Sharice, to whom he turns for comfort. In addition, the Department pointed out that "father is not asking for custody of his child. He is asking that the child remain in the aunts home. Therefore, the childs stability and permanence outweighs that for which the father is requesting, in that he just get — remain able to know the child." The Department also argued that the parents failed to meet any of the statutory exceptions to termination of parental rights.
Tajeeiks attorney joined in the Departments request to terminate parental rights and identify adoption as the permanent plan. Tajeeiks attorney stated that Tajeeik was adoptable and it was in "Tajeeiks best interests to be adopted by his aunt." Counsel argued that while Father was making efforts to be involved in Tajeeiks life, Father did not want to bring Tajeeik into his home against his girlfriends wishes: "The reality is that you cant have it both ways. You cant say, on the one hand, I want somebody else to raise my child and then, on the other hand, say, But I still want to be the dad."
Fathers attorney, who did not dispute that Tajeeik is adoptable, contended that Fathers parental rights should not be terminated simply because he does not desire custody of the child. Counsel stated Father "never" wished for physical or legal custody, but had always wanted Aunt Sharice to have legal guardianship: "Its never been his position . . . that he has wanted physical or legal custody of his child. He has stated throughout these proceedings that he was satisfied with the possibility of the aunt being granted legal guardianship over his son." Counsel urged the court to apply the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights, which applies when the court finds termination would be detrimental to the child because the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Counsel also cited the section 366.26, subdivision (c)(1)(D) exception, which applies when the court finds termination would be detrimental because the custodial relative is unable or unwilling to adopt the child due to exceptional circumstances. Counsel argued that the parents opposition to adoption, coupled with Aunt Sharices desire to avoid family conflict, constituted exceptional circumstances under subdivision (c)(1)(D).
Mothers counsel presented arguments similar to those made by Fathers counsel.
The court rejected the parents reliance on the subdivision (c)(1)(D) exception, finding that Aunt Sharice "has stated clearly that she wishes to adopt this child and is ready, willing, and able to adopt the child." Regarding Aunt Sharices reluctance to cause a family rift by adopting Tajeeik against the parents wishes, the court found her reluctance was due to "the pressure and the guilt" being placed on her by the parents, and not due to any unwillingness to adopt Tajeeik. As for the subdivision (c)(1)(A) exception, the court found severing parental rights would not be so detrimental to Tajeeik as to outweigh the benefits he would derive from the permanence of having an adoptive home.
After making the necessary findings under section 366.26, the trial court terminated the parents parental rights and ordered the Department to proceed with adoptive planning and placement. These appeals followed.
DISCUSSION
Of the three permanent plans for a dependent child — adoption, legal guardianship, or foster care — adoption is the preferred plan. (In re Heather B. (1992) 9 Cal.App.4th 535, 546.) "Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the childs best interests are other, less permanent plans, such as guardianship or long-term foster care considered." (In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Adoption requires the termination of the birth parents legal rights to the child. "In order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250, 851 P.2d 1307.)
A. Fathers Appeal
The trial court found that: (1) Tajeeik was adoptable; (2) none of the exceptions in section 366.26, subdivisions (c)(1)(A) through (E) applied; and (3) reunification services had not been granted to either parent. Father does not contest the sufficiency of the evidence to support those findings, which are essential to the order terminating Fathers parental rights.
As we understand it, Fathers contention is that because he is Tajeeiks presumed father, Tajeeik may not be adopted without his consent absent a finding of his unfitness as a parent. (Fam. Code, § 8604.) While Father concedes the facial validity of Californias dependency statutes (Cynthia D. v. Superior Court, supra, 5 Cal.4th 242), he contends they were applied in an unconstitutional manner when his parental rights were terminated without any finding of his unfitness as a parent.
The dispositive question, in our view, is whether, on this record, Father actually qualified for presumed father status. On paper, Father acquired presumed father status as a result of the trial courts November 12, 2002, ruling. At that hearing, Father testified that if Tajeeik were placed in his home, he would take financial responsibility for him. That testimony, coupled with Fathers changed behavior, misled the court to believe Father was now willing to assume custody for the child. The court cited Fathers changed behavior — his increased visitation, his request for unmonitored and overnight visits, and his purchases of food, clothing, and other necessities — in finding that a change had occurred from the May 28 hearing, when the court had refused to grant presumed father status because Father had "done nothing to assume full custody of the child." At the November 12 hearing, on the other hand, the court found the situation was now "totally different than what was presented back in May." The court stated that Fathers conduct since May "seems to fit more in the presumed father status. So I11 grant the motion on that one. I think its much more clear now, and it was not clear in May."
The December 2, 2002, section 366.26 hearing, however, left no room for doubt that the court had been misled to believe Father was willing to assume full custody. Fathers counsels remarks at the December 2 hearing conclusively established that Father had no intention of ever seeking full custody of Tajeeik: "Its never been his position . . . that he has wanted physical or legal custody of his child. He has stated throughout these proceedings that he was satisfied with the possibility of the aunt being granted legal guardianship over his son." Similarly, on appeal, Fathers position is that his unwillingness to assume full custody is irrelevant to the question of whether his parental rights should be terminated.
Due to Fathers undisputed unwillingness to assume custody, we conclude, as a matter of law, that as of the section 366.26 hearing, Father was no longer eligible for presumed father status. A mans willingness to assume full custody of a child is an essential prerequisite for attaining presumed father status: "In determining whether a biological father has demonstrated such commitment [to acquire presumed father status], the fathers conduct both before and after the childs birth must be considered. ([In re] ZachariaD., supra, 6 Cal.4th at p. 450, fn. 19, citing Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849, 823 P.2d 1216 . . . .) Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. (Ibid.) In particular, the father must demonstrate a willingness himself to assume full custody of the child — not merely to block adoption by others. (Ibid.) A court should also consider the fathers public acknowledgment of paternity, his payment of pregnancy and birth expenses commensurate with his circumstances, and prompt legal action to seek custody of the child. (Ibid.)" (In re Julia U, supra, 64 Cal.App.4th at p. 541, italics added.)
Fathers unwillingness to assume full custody of Tajeeik left him with the lower status of an alleged father whose biological paternity has not been established. While a presumed father must be found to be unfit before his child may be adopted without his consent (Fam. Code, § 8604), alleged fathers are not entitled to the same protection.
Father cites In re Heather B., supra, 9 Cal.App.4th at p. 556, in which the court stated: "It is now settled that a state cannot terminate a parental relationship based solely upon the `best interests of the child without some showing of parental unfitness[.]" (Fn. omitted.) Father also relies upon Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849, 823 P.2d 1216: "If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities — emotional, financial, and otherwise — his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the childs well-being is presumptively best served by continuation of the fathers parental relationship."
Neither of those cases, however, involved a father who had refused to assume custody of his child and wanted someone else to be the childs legal guardian. Accordingly, Fathers reliance on those cases is misplaced.
Similarly, Fathers reliance on Cynthia D v. Superior Court, supra, 5 Cal.4th 242, is also misplaced. Citing the three-part balancing test stated in that case — (1) the private interests affected; (2) the risk of error created by the states procedure; and (3) the countervailing governmental interest supporting the procedure (id. at p. 251) — Father contends the risk of error in this case was unacceptably high due to "the combination of the fast-track laws that apply to infant children, and the fact that the presumed father rules prevented father from receiving any reunification services plus other specific facts of this case (particularly the lack of any finding of unfitness and the presence of several prejudicial factors)[.]" Given Fathers unwillingness to assume full custody, however, he never qualified for presumed father status. As only presumed fathers are entitled to reunification services (In re Zacharia D., supra, 6 Cal.4th at p. 451), Father was never entitled to reunification services.
As for the governments countervailing interest in preserving and promoting childrens welfare and controlling the administrative and fiscal costs of dependency proceedings, Father contends that "even though adoption is normally preferred, in this case, it would deny Tajeeik a father who loves him and who has for the childs whole life maintained weekly visits, taken financial responsibility, and cared for him in various affectionate, though admittedly limited, ways." Denying Tajeeik the stability and permanence of a loving adoptive home in order to maintain family ties in the absence of any hope of returning him to either parent is neither a goal of the dependency system nor in the childs best interests. On the contrary, preserving the nuclear family is not the "overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parents interest in reunification to the childs interest in permanency and stability. [Citation.]" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1340.) Moreover, "The fact that a potential adoptive parent is a relative does not constitute an exception [to termination of parental rights], allowing the court to order legal guardianship. [Citation.]" (In re Jasmine T. (1999) 73 Cal.App.4th 209, 213-214.)
We conclude the authorities cited in Fathers brief fail to support his position that in order to maintain parental rights, "a natural father needs only to make a reasonable and meaningful attempt to establish a relationship[,]" without making any commitment to assume full custody of the child. Accordingly, we affirm the order terminating Fathers parental rights.
B. Mothers Appeal
Mother appeals from both the order denying her section 388 petition requesting increased and unmonitored visitation, and the order terminating her parental rights.
1. Mothers Section 388 Petition
Section 388 permits the court to change, modify, or set aside a prior order upon grounds of change of circumstance or new evidence. The parent bears the burden of proof to show the changed circumstance or new evidence. (In re Zacharia D., supra, 6 Cal.4th at p. 455.) We review the section 388 denial order for an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) "The discretion intended . . . is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by legal principles. It is . . . to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
After being released from the work furlough program in October 2002, Mother filed a section 388 petition on November 2, 2002, seeking increased and unmonitored visitation. The court denied the petition on December 2, 2002. On appeal, Mother contends that between May, when she was still incarcerated, and August, when she was transferred to the work furlough program, there were many changes in her circumstances: "She visited consistently from her prison release through the hearing date. Mother attended NA [narcotics anonymous], stress/anger management, and drug education, and tested negative. . . . She gained full-time employment. . . . She attended parenting class. . . . She showed initiative and motivation by doing these things on her own without the benefit of DCFS assistance." Mother also contends it would be in Tajeeiks best interest to grant her increased and unmonitored visitation because the problems that led to her abuse of Tajenique were addressed by the parenting and anger management programs: "She has proved she had attended anger and stress management and learned new coping techniques. . . . She also proved she attended parenting class and learned new discipline techniques. . . . Mother was only seventeen when she had Tajenique and had been a foster child herself for much of her childhood. It is apparent she never received parenting training before committing child abuse. She has begun that training now and regrets her past behavior."
While Mother took some initial steps to correct her serious anger management problems following her release from prison, she was only living on her own for less than two months when her section 388 petition was denied. The trial court reasonably concluded that given the severity of the abuse Mother had inflicted on Tajenique, any changes Mother could have made in such a short period were not significant enough to warrant setting aside or modifying the prior orders. (See Ansley v. Superior Court (1986) 185 Cal. App. 3d 477, 485, 229 Cal. Rptr. 771 ["the change of circumstances or new evidence must be of such a significant nature that it requires a setting aside or modification of the challenged prior order."].) In addition, Mother has failed to show that undoing the prior orders would be in Tajeeiks best interests. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Accordingly, we affirm the order denying Mothers section 388 petition.
2. The Termination of Mothers Parental
Rights
Where, as here, the birth parent has failed to reunify and the child is likely to be adopted, parental rights will be terminated unless the parent proves one of the four exceptional circumstances of section 366.26, subdivision (c)(1). In this case, Mother relies on subdivision (c)(1)(A): "The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
This particular exception applies where "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. 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.
"Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. , supra, 27 Cal.App.4th at p. 575.)
In reviewing the trial courts findings, we apply the substantial evidence test. "If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial courts findings. All reasonable inferences must be in support of the findings and the record must be viewed in the light most favorable to the juvenile courts order. [Citation.]" (In re Basilio T. (1992) 4 Cal.App.4th 155, 168, quoting In re Jeannette S. (1979) 94 Cal. App. 3d 52, 58, 156 Cal. Rptr. 262.)
According to the Department, the record shows that Mother "visited only eight times during the three months following her release into the work furlough program. . . . Although Mother offered many excuses as to why she was unable to visit more frequently, the fact is that she did not. Eight visits during the first nine months of Tajeeiks life is simply not the regular visitation required by the subdivision (c)(1)(A) exception."
We agree with the Department and find that the trial courts determination that Tajeeik would only incidentally benefit from continuing the parent-child relationship with Mother is supported by substantial evidence. The record is undisputed that Tajeeik does not recognize Mother as his parent. Instead, he looks to Aunt Sharice as his parent and has developed a secure and loving relationship with her. There is no evidence to support a finding that terminating Mothers parental rights would cause Tajeeik great harm. Accordingly, we uphold the trial courts finding that the subdivision (c)(1)(A) exception does not apply.
Mother next contends the trial court erred in failing to apply the subdivision (c)(1)(D) exception, which applies when the child is living with a relative who is unable or unwilling to adopt the child due to exceptional circumstances. Mother contends that Aunt Sharices reluctance to push for adoption for fear of causing a family conflict warrants application of the (c)(1)(D) exception.
We agree with the trial court that the (c)(1)(D) exception does not apply where, as here, the prospective adoptive relative is willing to adopt. The mere fact that Aunt Sharice is not pushing to adopt in the hopes of avoiding a family conflict does not support a finding that she is either unwilling or unable to adopt. Accordingly, we uphold the trial courts finding that the (c)(1)(D) exception does not apply.
DISPOSITION
The orders are affirmed.
We concur: SPENCER, P.J., and VOGEL (Miriam A.), J.