Opinion
D074414
11-15-2018
In re G.P. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.P., Defendant and Appellant.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15264AB) APPEAL from orders of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
M.P. (Mother) appeals from two of the juvenile court's orders: (1) an order denying her motion under Welfare and Institutions Code section 388 (section 388 motion) to modify prior orders placing her daughters G.P. and Krista P. (together, the girls) in foster care and setting a permanency planning hearing, and (2) an order terminating her parental rights under section 366.26. Mother claims the juvenile court erred in: (1) failing to set an evidentiary hearing on her section 388 motion; (2) finding that G.P. was generally adoptable; (3) finding the beneficial relationship exception to termination of parental rights did not apply (§ 366.26, subd. (c)(1)(B)(i)); and (4) finding the child-objection exception to termination of parental rights did not apply (§ 366.26, subd. (c)(1)(B)(ii)). Mother also asserts the girls maintain a bonded sibling relationship and must be adopted (or not) together.
Further unspecified statutory references are to the Welfare and Institutions Code.
We conclude the juvenile court did not err on any asserted ground and accordingly, affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves generational incest. The girls' biological father, M.P. (Father), is also their biological grandfather.
Father successfully petitioned for his 16-year-old daughter—Mother—to immigrate to the United States from the Philippines. Father then groomed his daughter to be sexually abused, began raping her when she was 17 years old, and continued raping her on essentially a nightly basis. At some point, Mother "stopped physically fighting" him, and over the course of the following 19 years, Father and Mother engaged in an incestuous relationship. When she was in her 20s (in 2001 and 2009), Mother gave birth to G.P. and Krista; Father is the biological father. The girls lived with Mother in Father's home and relied on him as the family's sole provider. Mother suffers from recurring depression.
Father's paternity was confirmed through DNA testing.
G.P. experienced an ischemic brain injury at birth and is intellectually disabled, developmentally delayed, and language impaired. G.P.'s conditions are well documented in an individualized education program (IEP) through her public school, and her conditions are manageable with appropriate treatment and therapy. Krista is healthy, developmentally on target, and attends regular elementary school classes.
It should be noted that Mother did not always provide G.P. with appropriate treatment. In 2015, the San Diego County Health and Human Services Agency (Agency) received a substantiated child welfare referral for general neglect of G.P., based on Mother's failure to meet her mental health and developmental needs. Mother agreed to the opening of a voluntary case, but the case was closed due to noncompliance. Between 2001 and 2016, the Agency received about 20 anonymous child welfare referrals in total involving the girls, alleging sexual abuse, physical abuse, emotional abuse, and/or neglect. Many of these referrals did not meet the criteria for investigation, were evaluated out, or were found inconclusive.
Beginning in 2014, when G.P. was 13 years old, her IEP team composed of teachers and aides observed that G.P.'s personality had changed, and she was regressing in her functioning. For example, she went from being an "energetic," "talking," "giggly child" to a nearly mute one, and went from having only occasional toilet accidents to needing to wear a diaper full time. In 2015 and 2016, G.P.'s IEP team documented her writing numerous obscene, sexually explicit words and phrases that she had acquired from a source outside of school. In May 2016, G.P. told someone that "her grandfather . . . raped [my] mother and raped [me]." G.P.'s teachers strongly suspected that G.P. was being sexually abused at home; however, Mother repeatedly denied it.
In 2016, there were several incidents of domestic violence between Mother and Father, which gave rise to Mother's seeking help from friends and disclosing her incestuous relationship with Father. In October 2016, the Agency filed juvenile dependency petitions on behalf of G.P. and Krista, then ages 15 and six, based on sexual abuse or the substantial risk thereof (§ 300, subd. (d)). During its investigation, the Agency learned from one of Father's ex-wives that, though unknown to the ex-wife when it had been occurring, Father had raped the girls' half sister when the half sister was between the ages of nine and 15.
The juvenile court detained the girls outside of the home, granted Mother supervised visitation, and ordered Father to have "no contact, direct or indirect" with the girls. In November 2016, the girls were placed together in a foster home, where they continue to reside with a foster mother who intends to adopt them.
At the jurisdictional and dispositional hearing, the court made true findings on the petitions, declared the girls to be dependents of the court, and ordered Mother to be provided with reunification services. Father, who faced criminal charges for incest and rape, declined to participate in the juvenile court proceedings.
At the six-month review hearing, the court continued the girls as dependents of the court and directed that Mother be provided with another six months of reunification services. According to the Agency's reports, Mother was struggling to meet her case plan objectives—she was unable to develop a positive support system, she did not understand why Father could not have contact with the girls, she continued to live in Father's home and rely on him for financial support, and she did not follow through with therapy for her "severe" depression. Mother sometimes had "inconsistent contact and visits" with the girls, but nevertheless appeared to be bonded and affectionate with them during their supervised visits.
Through the rest of 2017, Mother made little or no progress on her case plan. Although a criminal protective order (CPO) prevented Father, who was out of prison on bail, from having any contact with Mother and the girls, Mother continued to reside in Father's home and allowed him to drive her to one or more visits with the girls. Mother's actions allowed Krista to see Father in passing. For seven weeks in summer of 2017, Mother did not visit with the girls, during which time G.P.'s functioning and social skills improved. G.P.'s condition regressed when Mother's visits started again. During their supervised visits, Mother frequently displayed inappropriate conduct, including overfeeding them and making them feel uncomfortable about their appearance. Nonetheless, the girls and Mother were affectionate with each other during visits.
At the contested 12-month review hearing in March 2018, the juvenile court terminated reunification services for Mother and scheduled a permanency planning hearing. The court also appointed the foster mother to make educational and developmental services decisions for the girls. In the Agency's assessment, Mother was unable to place the girls' needs above her own needs, as demonstrated by her past year and a half of inertia. She had not been able to process the fact that Father posed a protective risk. Mother was debilitated by her mental health issues, which significantly interfered with her ability to provide and care for the girls; she had no support system, no employment, and no plan to gain financial independence.
In January through March 2018, Mother inconsistently visited the girls. In April through June, Mother visited them once a week around mealtime, and the visits were generally positive. The girls primarily associated their mother with food and separated easily from her at the end of visits. On the other hand, the girls looked to the foster mother to meet their daily living, health, education, and emotional needs, and were thriving in the foster mother's care. The foster mother's adult daughter lived with them, along with two dogs. A court appointed special advocate (CASA) reported that the foster mother "continues to use clear communication with the girls and all share respectful, loving interactions. [G.P.] and [Krista] seem comfortable, secure, and happy with their foster mother." The foster mother was committed to adopting the girls, and she was legally cleared by the Agency for placement.
In July 2018, Mother filed her first section 388 motion seeking the girls' placement with her. As changed circumstances, Mother's motion stated that she had "maintained consistent visitation, participated in individual therapy, and obtained housing separate from the Father." Mother asserted that the girls would benefit from being placed with her because of their close relationship and bond. The court denied Mother's motion for failing to allege a prima facie case.
One week later, on the same day that the permanency planning hearing (section 366.26 hearing) was scheduled, Mother filed her second section 388 motion, which is the motion at issue in this appeal. The second section 388 motion was virtually identical to Mother's first motion except it added as a changed circumstance that "Father is incarcerated."
At the outset of the section 366.26 hearing, the parties argued the second section 388 motion. The court accepted as true that Father had been sentenced for his crimes and was then in custody and that Mother had leased a separate residence in Chula Vista prior to Father's incarceration. Nevertheless, the court denied the section 388 motion, finding that Mother had not made a prima facie case and had not shown "a true change in circumstances."
The Agency's section 366.26 report indicated that Father had pleaded guilty to the criminal charges against him and would be sentenced to a prison term of up to four years.
The court went on to receive evidence relevant to the section 366.26 hearing without objection, including several Agency reports and one CASA report. The Agency's reports detailed the girls' health and developmental background, interactions and visits with Mother, and the girls' preferences regarding their future living arrangement. Krista expressed a clear preference to be adopted by her foster mother. G.P. gave conflicting responses when asked about adoption, ranging from not knowing what "adoption" meant, to not wanting to be adopted, to being satisfied that her foster mother wanted to be her "new mommy." The Agency recommended adoption as the girls' permanent plan and assessed the girls to be specifically adoptable (by their foster mother) and generally adoptable (based on there being five families in San Diego County approved to adopt a sibling set matching the girls' characteristics). Although the girls had a loving relationship with Mother, in the Agency's evaluation, the benefits of adoption outweighed any risk to the girls from severing their relationship with Mother.
The court also heard live testimony at the section 366.26 hearing from G.P., Krista, Mother, and the girls' therapist. G.P., who was chronologically 17 years old but appeared to possess the cognitive abilities of a much younger child, frequently responded "I don't know" to simple questions posed by Mother's counsel:
"Q. What kinds of stuff do you do with [Mother]?
"A. I don't know. [¶] . . . [¶]
"Q. And what kinds of things do you do [with Mother]? Do you know?
"A. Just nothing. [¶] . . . [¶]
"Q. What kind of food does [Mother] bring you?
"A. I don't know.
"Q. Okay. . . . [¶] . . . [¶]
"Q. Do you want to see her again?
"A. No.
"Q. You don't want to see her anymore?
"A. Yes, I do.
"Q. Yes, you do. Did you get confused?
"A. Mm-hmm.
"Q. Did you get mixed up?Eight-year-old Krista testified that she wanted to be adopted by and live with her foster mother. G.P.'s therapist testified that she believed G.P. was "confused about adoption and what that means."
"A. Mm-hmm.
"Q. Yes. So do you know when you're going to see your mom again?
"A. (Shakes head in the negative.)
"Q. How would you feel if you don't -- if you don't see your mom again?
"A. I don't know.
"Q. You don't know how you'd feel?
"A. Hmm-mm.
"Q. Did you tell [social worker] that you'd be sad if you didn't see her again?
"A. No.
"Q. No?
"A. No."
After considering the evidence and arguments of counsel, the juvenile court found the girls were adoptable (specifically and generally as a sibling set), terminated Mother's parental rights, and selected adoption as the permanent plan. The court considered and rejected the applicability of the beneficial relationship and child-objection exceptions to termination of parental rights. Regarding the first exception, although acknowledging a strong bond between Mother and the girls, the court found that their bond was not substantial enough to outweigh the benefits of adoption. Regarding the second exception, the court believed G.P. did not possess the necessary cognitive ability as contemplated by the statute to assert an objection to terminating parental rights. (§ 366.26, subd. (c)(1)(B)(ii).) Mother filed a timely appeal.
The court also described Mother's visitation pattern with the girls as "irregular."
DISCUSSION
I
The Court Did Not Err in Denying Mother's Section 388 Motion
Mother claims the trial court erred in denying her second section 388 motion without an evidentiary hearing. We conclude the court did not err.
Under section 388, a parent may petition to change or set aside a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing if "it appears that the best interests of the child . . . may be promoted" by the proposed change of order. (§ 388, subd. (d).) Accordingly, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)
All further rule references are to the California Rules of Court.
A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. (Rule 5.570(d)(1); In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) While the petition must be liberally construed in favor of its sufficiency (In re Zachary G., supra, 77 Cal.App.4th at p. 806; rule 5.570(a)), the allegations must nonetheless describe specifically how the requested change of order will advance the child's best interests. (Anthony W., at p. 250; Zachary G., at p. 806.)
After reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) " 'A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.' " (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Therefore, "after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (Ibid., italics added.)
In this case, we conclude that Mother's section 388 motion failed to adequately show (1) a change in circumstances or new evidence, or (2) the promotion of the girls' best interest. For the preceding year and a half, Mother made little progress on her case plan, failing to become self-sufficient or seek consistent mental health treatment. Even if Father was sentenced for up to four years in prison, Krista would still be a minor upon his release and G.P. had significant special needs. By the time of her second section 388 motion, Mother's circumstances were unchanged in that she was still in denial, mentally unstable, dependent, and incapable of meeting the girls' needs. Mother did not show changed circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49 [petitioner must show "changed" not merely "changing" circumstances].)
Moreover, assuming arguendo that Father's incarceration presented a changed circumstance, Mother failed to address how a change in the girls' placement would be in their best interest, i.e., how it would advance their need for permanence and stability. By July 2018, the girls had been stably living with their foster mother for over 18 months. The girls felt safe and secure and wanted to continue living with her. We discuss further, infra, that it was in the girls' best interest to be adopted by the foster mother.
We are not persuaded by Mother's argument that she was denied due process by the lack of an evidentiary hearing on her section 388 motion. As we have noted, Mother failed to allege a prima facie case. Additionally, Mother was given an opportunity to be heard on why the girls should be placed with her. Mother's section 388 motion was filed and argued the same day that her section 366.26 hearing was held, and the issues and evidence overlapped. Mother presented evidence and testified at the section 366.26 hearing regarding her current circumstances and the extent of her relationship with the girls. As a result, any error in the court's failure to hold a separate evidentiary hearing on Mother's section 388 motion was harmless. (In re G.B. (2014) 227 Cal.App.4th 1147, 1160-1161 [court's failure to hold a hearing on section 388 petition was not prejudicial given the evidence received by court and findings made at selection-and-implementation hearing].) Mother has failed to establish reversible error.
II
The Court Did Not Err in Finding that G.P. Was Adoptable
Mother claims the court erred in finding that G.P. was generally adoptable, though she concedes the issue is only relevant if G.P. is not adopted by the foster mother. In response, the Agency acknowledges the evidence supporting G.P.'s general adoptability was limited, but nevertheless contends the court's adoptability finding should be affirmed based on G.P.'s specific adoptability by the foster mother. We conclude the court did not err in finding that G.P. was adoptable.
"Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e view the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence." (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
Under section 366.26, subdivision (c)(1), "[i]f the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." The likely-to-be-adopted standard is a low threshold. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
"[T]he law does not require a juvenile court to find a dependent child 'generally adoptable' before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. [Citations.] The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family waiting in the ' " 'wings.' " ' " (In re A.A. (2008) 167 Cal.App.4th 1292, 1313 (A.A.).) General adoptability "focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
Specific adoptability, which focuses on the suitability of a specific caregiver who is willing to adopt, bears on general adoptability and the likelihood a child will be adopted. (In re R.C. (2008) 169 Cal.App.4th 486, 493-494.) " ' "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." ' " (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Here, regardless of what may be said about G.P.'s medical, emotional, and developmental issues, substantial evidence supports the juvenile court's finding that G.P. was likely to be adopted in a reasonable time. Her foster mother was willing and waiting to adopt her, and thus G.P. was specifically adoptable. Mother identifies no legal impediment to adoption by the foster mother. The foster mother was fully aware of G.P.'s needs, having cared for her since November 2016. " ' "[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established." ' " (In re J.W. (2018) 26 Cal.App.5th 263, 268.)
Further, there was evidence, albeit limited, that G.P. was generally adoptable as part of a sibling set. The foster mother's willingness to adopt the girls as a sibling set served as evidence that other individuals would be willing to adopt the girls together in a reasonable time. The Agency identified five families in San Diego County who were approved to adopt siblings matching the girls' characteristics. Krista was young, "vibrant," healthy, and adoptable under any standard; she, in turn, was closely bonded to G.P., whose conditions were well documented, manageable, and improved with proper care and treatment. The CASA's report described a number of G.P.s positive attributes, e.g., she was "thoughtful, funny, kind, and easy-going." Additionally, G.P. was actively engaged in various services to help her gain independence and job skills. Substantial evidence supports that G.P. was likely to be adopted. (See A.A., supra, 167 Cal.App.4th at p. 1313.)
Mother contends for the first time on appeal that the Agency's report containing its adoption assessment is flawed for lack of detail regarding whether G.P.'s background was fully disclosed to the five putative adoptive families. The issue is forfeited. (In re R.C., supra, 169 Cal.App.4th at pp. 492-493.) Even if the issue is not forfeited, we have no need to address the adequacy of the specific report because, based on the totality of evidence before the juvenile court, substantial evidence supports the finding that G.P. was adoptable.
III
The Court Did Not Err in Finding that the Beneficial Relationship Exception to
Termination of Parental Rights Did Not Apply
Mother argues the court erred in finding that the beneficial relationship exception to termination of parental rights and adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We conclude the court did not err. A. Legal Standards for Termination of Parental Rights and Standard of Review
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) One of these statutory exceptions is the beneficial parent-child relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the requirements of the exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
"Regular visitation exists where the parents visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) "Sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption." (In re C.F. (2011) 193 Cal.App.4th 549, 554 (C.F.).)
Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception, the juvenile court may choose a permanent plan other than adoption if it finds the beneficial relationship to be "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, 189 Cal.App.4th at p. 1314.)
We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parent-child relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) B. The Juvenile Court Did Not Err in Concluding That Mother Did Not Meet Her Burden to Establish the Beneficial Relationship Exception to Adoption
As we have explained, there are two factual predicates to establishing the beneficial relationship exception, namely, (1) "regular visitation and contact" and (2) that "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Here, the juvenile court characterized Mother's visitation pattern as "irregular," but did not make a definitive finding one way or another. The court discussed that the girls and Mother shared a strong bond because Mother had raised them for a significant number of years. We will proceed in our analysis as the juvenile court appeared to do, accepting both factual predicates as established. The issue before us then is whether the court abused its discretion in determining that Mother had not established "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); C.F., supra, 193 Cal.App.4th at p. 553.)
We note that, at the 12-month review hearing in March 2018, a different judicial officer presiding over the proceedings stated that "a fair reading of this record indicates that the mother['s visitation] has been consistent and regular." Given the different characterizations of Mother's visitation, we will assume that regular visitation was established for purposes of analysis.
In making the determination of whether a beneficial relationship presents a compelling reason to order an alternative to adoption, the court applies a balancing test in which it weighs "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court must evaluate the issue on a case-by-case basis, considering the many variables that can affect the parent-child relationship. (Id. at pp. 575-576; In re J.C., supra, 226 Cal.App.4th at p. 532.) Among the variables to be considered in evaluating the benefits of a parental relationship are the child's age, the amount of time the child spent in the parent's care, whether the interactions are positive or negative, and whether the child has particular needs that only the parent can satisfy. (In re Angel B. (2002) 97 Cal.App.4th 454, 467; see also In re Jason J. (2009) 175 Cal.App.4th 922, 938.) It is not enough for a parent to show frequent and loving contact during pleasant visits. (C.F., supra, 193 Cal.App.4th at p. 555.) More than incidental benefits from maintaining parental contact are required for this exception to apply. (Id. at pp. 558-559; In re Helen W. (2007) 150 Cal.App.4th 71, 79-80.)
"A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child" is "a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Bailey J., supra, 189 Cal.App.4th at p. 1315.) The parent seeking to establish the beneficial relationship exception to adoption must prove not only that it would benefit the child to continue the parental relationship, but also that continuing the relationship would "promote[] 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." (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
Under the balancing test set forth in Autumn H., we conclude the juvenile court was within its discretion to find that Mother did not establish that termination of her parental rights would be detrimental to the girls.
It was undisputed the girls had a loving relationship with Mother, but she was not fulfilling a parental role in their lives. Mother suffered from debilitating depression and did not possess the mental stability, good judgment, or independence necessary to care for the girls. Mother had yet to understand the highly disturbing protective risks in this case. While in Mother's care, the girls were sexually abused and/or subjected to a substantial risk of sexual abuse, witnessed domestic violence, and were neglected to varying degrees. Mother repeatedly made the girls feel uncomfortable during visits, and the girls separated easily from her after visits. By the time of the section 366.26 hearing, the foster mother had cared for the girls for over a year and a half, and the girls relied on her for their daily needs, positive interactions, stability, and security. The girls thrived in the foster mother's care. On the other hand, G.P. regressed in her functioning and social skills after visits with Mother.
Further, G.P. has significant special needs, for whom stability, structure, and consistency is especially important. Both girls were deeply traumatized by the abuse they had suffered. The juvenile court could reasonably conclude that the girls' needs would be best addressed by allowing them to be adopted by the foster mother who had shown an ability to provide them with the type of structure and care that would facilitate recovery.
The record fails to show that Mother's relationship with the girls was so beneficial to them that it outweighed the benefit they would gain from being adopted. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, there is no merit to Mother's claim that the beneficial relationship exception applies in this case.
IV.
The Court Did Not Err in Finding that the Child-Objection Exception to Termination of
Parental Rights Did Not Apply
Mother next argues that the court erred in failing to honor G.P.'s objection to terminating Mother's parental rights which, if applicable, is an exception to selecting adoption as a child's permanent plan. We review a juvenile court's finding regarding the applicability of the child-objection exception of section 366.26, subdivision (c)(1)(B)(ii) for substantial evidence. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333 (Christopher L.).)
"Section 366.26, subdivision (c)(1)(B)[(ii)] is an exception to the Legislature's preference for adoption. It permits the court to find termination of parental rights detrimental to a child if '[a] child 12 years of age or older objects to termination of parental rights.' Before terminating parental rights, the juvenile court must consider the child's wishes, to the extent that they are ascertainable. [Citations.] The juvenile court should explore a child's feelings toward his or her parents, foster parents, and prospective adoptive family. [Citations.] Evidence of a child's wishes may, but need not, be in the form of direct testimony at the parental rights termination hearing; such evidence may also appear in the Agency's reports." (Christopher L., supra, 143 Cal.App.4th at p. 1334 [concluding that 15-year-old minor "did not unequivocally object to the termination of parental rights" to trigger application of the exception].)
In this case, the juvenile court appeared to believe that an implicit requirement of the child-objection exception is that the objecting child must possess the cognitive ability of a 12-year-old child (or older), which the court found G.P. did not possess. (See § 366.26, subd. (c)(1)(B)(ii).) Mother asserts on appeal that the court did not have sufficient evidence of G.P.'s cognitive ability. The Agency argues that, regardless of G.P.'s exact level of cognition, sufficient evidence supports the court's finding that G.P. could not (or did not) object to the termination of parental rights. We agree with the Agency.
Suffice to say, G.P. suffers from significant cognitive impairments; at the section 366.26 hearing, she struggled to answer simple questions regarding recent events. Substantial evidence supports that she did not understand what "adoption" meant, much less "termination of parental rights." Without a basic understanding of these concepts, we are hard pressed to see how she could meaningfully object to them. Moreover, given her limited comprehension, the record supports that G.P. "did not unequivocally object to the termination of parental rights" to invoke the exception's applicability. (Christopher L., supra, 143 Cal.App.4th at p. 1334.) Although G.P. indicated once or twice that she did not wish to be adopted, she also indicated through her words and actions that she wanted to live with her sister and foster mother and that it would be "okay" if her foster mother became her "new mommy."
In any event, the court did consider G.P.'s feelings and wishes regarding her future placement to the extent ascertainable, and found that terminating Mother's parental rights would not be detrimental to G.P. A juvenile court is "required to act in each child's best interest (§ 366.26, subd. (h)(1)) and a child's wishes are not necessarily determinative of the child's best interest[.]" (In re C.B. (2010) 190 Cal.App.4th 102, 125.) The court here accepted that G.P. loved and shared a bond with Mother; however, it observed that G.P. could freely visit Mother when she reached the age of 18, which was within one year, and determined on balance that it was in G.P.'s best interest to be adopted. The court's finding was consistent with the recommendation of G.P.'s counsel and guardian ad litem, who was under a duty to advocate for G.P.'s best interest. (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1265 [paramount duty of minor's counsel is to serve the minor's best interests, rather than minor's wishes, even when the lawyer and the client disagree].) Consequently, Mother has failed to show the court erred in finding that the child-objection exception to termination of parental rights did not apply.
Because we affirm the juvenile court's orders, we have no need to address Mother's conditional argument based on G.P. being not adoptable. --------
DISPOSITION
The orders are affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. NARES, J.