Opinion
F080364
05-12-2020
In re T.L. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JVDP-18-000154, JVDP-18-000155 & JVDP-18-000156)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
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Then-five-year-old T.L., then-two-year-old L.M., and then-two-year-old M.M (collectively, "the children" or "minors") were removed from mother, Amanda M.'s (mother) care, and dependency jurisdiction was taken over them. The juvenile court ordered that mother and L.M. and M.M.'s father, F.M., be provided family reunification services. At the six-month review hearing, the court terminated mother's and F.M.'s reunification services and set a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Subsequently, mother filed a petition pursuant to section 388 requesting the court to reinstate reunification services for her. The court denied her petition without holding an evidentiary hearing and held the section 366.26 hearing. The court terminated all parents' parental rights and ordered adoption as the permanent plan for the children.
Neither F.M. nor T.L.'s father are parties to this appeal.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother argues on appeal that the juvenile court erred by denying her section 388 petition without an evidentiary hearing and by declining to apply the "beneficial parent-child relationship exception" to termination of parental rights described in section 366.26, subdivision (c)(1)(B)(i). We affirm the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2018, the Stanislaus County Community Services Agency (agency) received a referral that mother had rear ended someone with the children in the vehicle not properly restrained. Mother's vehicle was totaled, and she and M.M. were injured. It was discovered the family was living inside the vehicle, and the vehicle had feces, urine, old food, and trash in it. The children were dirty and hungry and appeared not to have had their diapers changed in some time. Mother was suspected of being under the influence of drugs; she denied drug use but refused to test, and a methamphetamine pipe was found in her purse. Mother refused to accept a referral to a homeless shelter, cooperate with the social worker, or develop a safety plan for the children; therefore, upon discharge from the hospital, the children were taken into protective custody.
Mother had participated in voluntary parenting and substance abuse services from April 2013 to June 2014 due to her substance abuse. In July 2013, the agency received a referral of general neglect involving an incident of domestic violence between mother and Thomas L., T.L.'s father, which resulted in Thomas L.'s arrest; the referral was substantiated. Between January 2017 and September 2018, the agency had received a number of referrals regarding mother's substance abuse and the children being dirty that were either evaluated out or deemed conclusive.
On October 2, 2018, the agency filed a petition on behalf of the children, alleging they came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1). It was alleged the children had suffered or there was a substantial risk the children would suffer serious physical harm or illness due to mother's inability to provide care due to substance abuse. The factual allegations included the circumstances surrounding the car accident, as well as the agency's previous referrals involving mother. It was also alleged that T.L. came within the jurisdiction of the juvenile court under section 300, subdivision (g) because the whereabouts of Thomas L., were unknown. As to L.M. and M.M., it was further alleged that they came within the jurisdiction of the juvenile court under section 300, subdivision (g) because the whereabouts of F.M. were unknown. On October 3, 2018, the children were ordered to remain detained. The children were initially placed together in a foster home in Madera County, but placement was changed to Stanislaus County on October 5, 2018.
On November 1, 2018, a combined jurisdictional and dispositional hearing was held. The juvenile court found the petition true. The children were adjudged dependents of the court, and the court ordered that mother and F.M. be provided with reunification services. Thomas L. was denied services because his whereabouts were still unknown. (§ 361.5, subd. (b)(1).) Mother's case plan included general counseling on issues pertaining to domestic violence, unhealthy lifestyle choices, substance abuse, and coping skills for depression; parenting classes; a substance abuse assessment plus all recommendations; and drug testing. Mother had been referred to 30 days of residential substance abuse treatment. Mother visited weekly with the children at a visitation center.
In November 2018, the children changed placement again to a different foster home in Stanislaus County. T.L. displayed problem behaviors at school, including swinging a yard stick in the classroom, running away from teachers, and throwing things at staff. T.L. participated in services to help him stabilize his behaviors.
In December 2018, mother told the social worker she was recently diagnosed with bipolar disorder and was prescribed Latuda. Mother disagreed with the diagnosis but agreed to take the medication.
The visitation manager reported mother was at times "very loud" and shouted at the children. The visitation manager explained mother appeared to be overprotective and "has the right idea," but mother's delivery toward the children was forceful and a bit harsh and rough. T.L. displayed behavioral issues that mother had difficulty controlling.
In February 2019, the children's care providers submitted a "14-day notice" (§ 16010.7) requesting the children change placement because of T.L.'s behavior. The care provider reported she had to pick T.L. up early from school because of his behavior. She reported T.L. did not follow rules, broke items in the home, and caused "daily chaos and stress." The children changed placement again, and their new care providers reported that T.L. was aggressive and punched and kicked the care provider and his siblings. T.L. threatened to kill the care providers and drew pictures of how he would do it. T.L. told the care provider his therapist told him he acts this way because he missed his mom, but the care provider believed he "may have heard that from someone else."
Mother began to present as aggressive and argumentative toward the social worker. Further, when mother was admonished by her sober living facility for a rules violation, she responded with anger. Mother began to work on how to communicate when angry with her therapist.
In March 2019, mother began visiting with L.M. and M.M. at her residence in a sober living facility. Mother continued to visit with T.L. at the visitation center alone with a parent mentor to assist her with developing better parenting skills with T.L.
On March 8, 2019, the agency learned that on February 28, 2019, while T.L.'s care provider was driving him to school, T.L. unbuckled his seatbelt and attempted to stand up in his car seat and open the car door. When the care provider asked T.L. why he did this, he said mother told him to misbehave so that he would be reunified with her more quickly. The children's care providers submitted a "14-day notice," and on March 15, 2019, the children were placed in the home of T.L.'s paternal great-aunt and great-uncle, which became a concurrent home for them. The care providers worked with T.L. on his behavior, and it began to improve.
On March 20, 2019, mother attempted to bring several people to her visit with T.L. When told the rules were that visitors could only visit with children in the second hour of the visit, mother became argumentative. Mother's parent mentor reported that mother was not verbally appropriate in front of T.L. The visitation center reported that mother had a "poor attitude."
Due to the incident with T.L. trying to get out of a moving vehicle based on something mother had said, as well as mother's behavior at the visitation center in front of T.L., mother's visits with M.M. and L.M. were moved back to the visitation center on March 27, 2019.
On March 28, 2019, mother's counselor reported to the social worker that mother participated in sessions and was receptive to the counselor's feedback. The counselor reported that mother did not present as aggressive with her, but because the social worker had concerns, the counselor worked with mother on being open to constructive feedback from service providers and maintaining a calm demeanor when working with them. The counselor recommended that mother continue to participate in services. As to mother's progress in her parenting program, it was reported that mother actively participated and offered detailed responses. The clinician observed mother utilizing positive parenting skills in parent/child labs.
It was noted in the agency's six-month status review report dated April 17, 2019, that mother struggled and had limited ability to reinforce appropriate roles and boundaries for the children and required prompting to do so. The report indicated mother had not demonstrated the ability to recognize the children's cues and behaviors and needed guidance in establishing such an ability. It was noted the agency had concerns with mother's ability to provide safety for her children.
The agency's recommendation at the time the status review report was written was that reunification services be continued as to mother. The report indicated mother had not demonstrated behavioral change consistent with her plan objectives. The report indicated the positive aspects of mother's progress with her case plan included that mother had attended 10 out of 10 parenting classes; consistently tested negative for all illicit substances, including alcohol; consistently visited with the children; and had attended and arrived on time to all of her appointments. The social worker requested visits remain supervised. Mother's case plan was amended to include an anger management program.
On April 19, 2019, mother completed outpatient services at her sober living facility. It was noted that though mother struggled for the first month with behavior and building a support system, she made notable improvement in those areas. Mother had created an after care plan including attending a minimum of four 12-step meetings per week, working the steps with her sponsor, saving money, and continuing to set healthy boundaries with others.
On April 24, 2019, mother reported to the social worker she had stopped taking her bipolar medication two weeks after it was prescribed to her because she did not like the side effects. Mother told the social worker that the director of mother's sober living facility told her it was ok to stop taking the medication.
The social worker encumbered anger management services for mother on April 24, 2019, and the encumbrance was approved on May 2, 2019. Mother did not immediately sign up for the anger management services. On May 22, 2019, mother received a write-up at her sober living facility for a messy room. Mother refused to sign the write-up and comply with the consequence of writing a 1,000 word essay.
On May 23, 2019, mother began seeing a new counselor because her previous counselor was no longer working for the facility.
On June 5, 2019, a "Planned Linkage Conference" (PLC) was held to address mother's progress. Several concerns were noted, including mother's (1) failure to demonstrate healthy meaningful behavioral changes; (2) lack of willingness to work with service providers; (3) non-compliance with services; (4) struggling with controlling her anger; (5) having outbursts when she disagrees; (6) "continual demonstration of a negative attitude and of blaming others, and of not taking responsibility"; and (7) dishonesty. Most of her service providers were present.
The director of mother's sober living facility reported that mother was required to check in once a week but had not done so in two months. Mother had also received four write-ups. The director explained that she did not tell mother it was okay to stop taking her medication, as reported by mother. The director said she had had issues with mother's "attitude and behavior" since mother moved in. In response, mother stated she does not always make rude comments and would not take responsibility for her actions. The director communicated the facility could no longer help mother and mother would be discharged that day because of her "attitude" problems and failure to comply with the rules.
Mother's new counselor stated that during their first session, mother "presented with attitude, resistance, appeared to shut down, and provided yes and no answers." The counselor stated that seeing a new clinician can be difficult, but the prior clinician's case file said some of the same things about mother. The counselor stated that in order to be able to provide services to mother, mother needed to engage and be open and honest.
Mother's parent mentor expressed she encountered similar challenges when communicating with mother.
Mother was discharged from her sober living facility on June 5, 2019. On June 7, 2019, an administrator from the visitation center reported that mother makes improvements with parenting skills and then regresses. The administrator reported that over the last month of visits, mother appeared overwhelmed on two occasions, appeared to wrestle with T.L. on the floor to take away a toy, placed blame on the social worker, and placed blame and shame onto T.L. For these reasons, the administrator recommended that mother remain on supervised status during visits. On June 13, 2019, mother's counseling services were placed on hold because she had missed two appointments.
In an addendum status review report dated June 25, 2019, the agency changed its recommendation to termination of mother's reunification services and setting a section 366.26 hearing with a permanent plan of adoption. The matter was set for a contested six-month review hearing.
Mother signed up for her anger management services in late June and completed the orientation on July 12, 2019.
At the contested six-month review hearing on July 26, 2019, mother testified she had been sober since October 2, 2018, and was actively working on her recovery. Mother said at the beginning of the case she did not feel she needed the substance abuse services to which she was referred because she was in denial of being an addict. Mother testified that at the time of the review hearing, she needed anger management and domestic violence counseling. She testified she needed counseling to "figure out where the root of the domestic violence came from." She had realized within the past two weeks that her last relationship was a domestic violence relationship and that it was the reason she started using drugs. Mother admitted it was her fault she was discharged from her sober living facility and she should have followed the rules. Mother testified she was not ready to have the children returned to her because she could not provide a stable environment for them and needed more parenting classes. Mother requested that reunification services be continued. Counsel for the agency and minors both argued mother's services should be terminated.
The court found there was a significant risk of detriment if the children were to be returned to a parent, and the children's placement was necessary and appropriate. The court stated it believed mother had shown progress as she had incorporated some parenting skills she had learned in visits and remained sober. The court then noted concerns included mother's anger management and "the attitude." The court noted mother did not attempt to get involved in anger management when it was first deemed necessary. The court also noted that after 10 months of receiving services, mother had not made a connection between domestic violence and using substances. The court noted mother had not been engaging with counseling or her parent mentor. The court found mother had not made substantive progress in resolving the issues that caused the children to be removed from her care because in the court's estimation, she had not gotten past the first stage of denial and triggers for substance abuse and had refused to meaningfully engage in services. The court noted that though mother had completed the parenting education component of her case plan, mother did not absorb the information and make progress. The court found there was not a substantial likelihood the children would return to mother's care by November 1, 2019. The juvenile court terminated services as to mother. The court also terminated services as to F.M., who had made no progress in services.
The agency's section 366.26 report dated November 18, 2019, recommended that the parental rights of mother, Thomas L., and F.M. be terminated and a permanent plan of adoption be established. The report indicated the children's care providers wished to adopt the children and were not interested in kinship adoption or legal guardianship.
The visitation logs attached to the report indicated that mother and the children regularly greeted one another with hugs and kisses, and the children were often excited to see mother. Mother and the children engaged in activities together such as coloring, putting together puzzles, and playing games. T.L. often watched videos and played on mother's phone. On several occasions, no issues were noted with visits ending and the children often "went willingly" to the waiting room. On one occasion, it was noted that M.M. cried when he left the care providers, and the care providers informed the social worker that he has trouble with transitions.
On November 25, 2019, mother filed a section 388 petition requesting the court to reinstate family reunification services and vacate the section 366.26 hearing date. In a declaration attached to the petition, mother stated that since the last court date, she had completed an anger management class; had begun attending parenting and domestic violence classes; had maintained employment; had been living and paying rent at Freedom House, a sober living facility; maintained her sobriety; received substance abuse services from Modesto Recovery Services; and attended 12-step meetings. Mother also stated she had been to her primary care physician three times to actively treat her mental health needs. She also stated she had built her support system, volunteered at her church, and taken up kickboxing.
Mother attached her anger management class certificate of completion and a letter from the facility who administered the class and the domestic violence classes. The letter indicated mother had excellent attendance and "contributed greatly to the group process."
Mother attached a letter from the sober living facility, which indicated mother has shown "expediential growth." The letter stated mother attended meetings regularly and complied with house requirements with no complications. It stated mother had made her recovery and reunification with her children her highest priority. Mother also attached two negative drug tests from September 3, 2019, and September 10, 2019.
Mother also attached several positive character letters, including one from her employer.
The juvenile court set a hearing to determine whether an evidentiary hearing on mother's petition would be held for the same day scheduled for the section 366.26 hearing.
Counsel for both the minors and the agency opposed the court's granting of an evidentiary hearing on mother's petition. On December 2, 2019, the juvenile court found that mother had not made a prima face case of showing a change of circumstances. The court noted mother had shown "changing" rather than "changed" circumstances. The court noted mother had failed to engage in domestic violence counseling even though she had testified at the review hearing that domestic violence was one of her substance abuse triggers. The court also found mother had not made a prima facie case that reinstating reunification services was in the best interest of the children. The court noted the children had been in five different placements and had been in their most recent placement for eight and a half months. The court stated "children shouldn't have to wait indefinitely to find out if their parents are going to get it together. And the reality is there's a request to reopen reunification services, so then we start all over again and the children still don't ultimately know where they belong." The juvenile court found mother's request was not in the children's best interests.
The juvenile court subsequently heard evidence for the section 366.26 hearing. The agency and the minors did not submit evidence, but mother testified on her own behalf. Mother testified the children had lived with her since they were born. She had never missed a visit, and she had visited every other week since the last court date. She testified the visits often started with the children running in yelling "mommy." She believes the children enjoy their visits because they smile and hug her and tell her they love her, laugh and have a lot of fun. She and the children do activities the entire duration of the visits. At the end of visits, they hug each other. Sometimes the children wanted to leave visits and sometimes they did not.
The court found that though mother and the children had good visits, mother had not met her burden to show the children would be greatly harmed if parental rights were terminated. The court found the children were adoptable and that mother was not able to meet "a very difficult burden of proof." The court also found termination of parental rights would not be detrimental and ordered a permanent plan of adoption.
DISCUSSION
I. Section 388 Petition
Mother contends the juvenile court erred by declining to hold an evidentiary hearing on her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts making a prima facie showing (1) new evidence or changed circumstances exist and (2) changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) " 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of mother's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions "exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 (Marcelo B.).) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Mother contends she submitted "ample" evidence constituting a prima facie showing on both prongs of section 388. While the facts alleged in mother's petition are commendable, the juvenile court did not abuse its discretion in finding mother had not made a prima facie showing of changed circumstances. To make a showing of changed circumstances, the problem that initially brought the child within the dependency system must be removed or ameliorated. (In re A.A. (2012) 203 Cal.App.4th 597, 612.) "A petition which alleges merely changing circumstances [as opposed to changed circumstances] and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Here, the children were removed from mother's care because she was not able to care for them due to her substance abuse and unwillingness to accept services which would have ameliorated their homelessness. Though mother completed a drug treatment program and parenting services and consistently tested negative for illicit substances during the reunification period, by the time of the six-month review period, by her own admission, her children could not be safely returned home to her. As late as June 2019, it was reported that mother had developed a pattern where she made progress with her parenting skills but then regressed. As time went by, mother began to refuse to comply with rules of her sober living facility, which resulted in her discharge. She began to disengage with counseling. When it became clear that mother's anger issues interfered with her other services and anger management was encumbered, mother did not attend an orientation until two weeks before the six-month review hearing. She asserted at the six-month review hearing that she needed domestic violence counseling because her domestic violence history was tied to her substance abuse, but she had not made the connection until recently. It was for these reasons, the court found that reunification services should be terminated.
In denying mother's petition, the juvenile court noted that mother needed more domestic violence counseling because of mother's recent revelation that domestic violence was a cause of her substance abuse. The court's implied conclusion that mother's substance abuse issue was not fully ameliorated was reasonable. The letter attached to mother's petition from the center who provided mother her domestic violence group class indicated the class was 16 sessions, held weekly and that they began on October 4, 2019. Thus, at the time of mother's section 388 petition, she had attended, at most, approximately half of the sessions. Mother was only beginning to work on domestic violence issues.
Mother asserts her attitude, anger, and domestic violence issues did not necessitate removal and asks us to consider this with regard to whether she had made a prima facie case of changed circumstances. But mother ignores evidence on the record of the effect her anger and other behavioral issues had on her ability to safely parent the children. Mother's inability to follow the rules and remain at the sober living facility put the children's housing stability at risk, and at the beginning of the proceedings, the family was living in a vehicle and not practicing proper hygiene. Though mother had tested negative for drug substance abuse throughout the course of the proceedings, her unwillingness to participate in counseling in a meaningful way kept her from being able to get to the root of why she abused substances in the first place which, by her own admission, was domestic violence. Unfortunately, mother did not begin to see the value of anger management services and domestic violence counseling until just before the six-month review hearing. Though it is commendable that mother has begun addressing her anger and domestic violence issues after her services were terminated, we cannot say the juvenile court's finding that mother had not made a prima facie case of changed circumstances was arbitrary or capricious; the juvenile court did not act outside its discretion. We note our Supreme Court has stated, "[c]hildhood does not wait for the parent to become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310.)
Even if we were to find the court abused its discretion by finding mother had not made the requisite showing of changed circumstances, mother would not be entitled to reversal because the court did not abuse its discretion by finding mother had not shown the order was in the children's best interests. The children went through several placements due to T.L.'s difficult behavior, and were finally in a home in which he, as well as M.M. and L.M., seemed to be doing well, with a family who wished to adopt them. Mother correctly acknowledges on appeal that after reunification services are terminated, the focus shifts from reunification to the children's need for stability and permanence (Marilyn H., supra, 5 Cal.4th at p. 309), but still insists reinstatement of services was in the children's best interest because they were in a stable placement, which would not be disrupted should services be reinstated. We are not persuaded by mother's argument. Children have a fundamental independent interest in belonging to a family unit, and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Id. at p. 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Be reinstating reunification services, the juvenile court would be further delaying permanency and stability for the children.
The juvenile court did not abuse its discretion by denying mother's section 388 petition without an evidentiary hearing.
II. Beneficial Parent-Child Relationship Exception
Mother contends the juvenile court erred by declining to apply the beneficial parent-child exception to terminating parental rights. We disagree.
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption. (§ 366.26, subd. (c)(1).) There are statutory exceptions which " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' " (In re C.B. (2010) 190 Cal.App.4th 102, 122, fn. omitted.) " '[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.' " (In re K.P. (2012) 203 Cal.App.4th 614, 621, italics added (K.P.).)
One of the statutory exceptions to the general preference of termination of parental rights is the "beneficial parent-child relationship exception." Section 366.26, subdivision (c)(1) provides the court shall terminate parental rights unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child [where] [¶] [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).) It is the parent's burden to show that termination of parental rights would be detrimental to the child because of the exception to termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
Courts differ in which standard of review to apply in this context. Some courts have applied the substantial evidence standard, while others have applied an abuse of discretion standard. More recent cases have applied a "hybrid" approach, applying a substantial evidence standard to the factual determination (whether a beneficial parental relationship exits) and an abuse of discretion standard to the discretionary determination (whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child). (K.P., supra, 203 Cal.App.4th at p. 622.) Under any of these standards of review, the practical differences between them are slight because they all give broad deference to the juvenile court's judgment. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We should interfere only if under all the evidence viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.) In applying any of these standards of review, we find no error.
What is the proper standard of review to apply in this context is currently before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. --------
The parties agree on appeal that mother maintained regular and consistent visits with the children throughout the dependency proceedings. Thus, the issue before us is whether mother met her burden with regard to the second prong that the children would benefit from continuing the parent-child relationship. We do not find the juvenile court was unreasonable in determining this was not one of the extraordinary cases where this exception should have been applied.
The only evidence mother contends supported the application of the beneficial parent-child relationship exception is the visitation logs. Mother points out she and the children engaged in fun activities together. She points out she changed their diapers, took them to the restroom, and redirected their behavior when necessary. She points out that the children hugged mother, told her they loved her, sat on her lap, and sometimes said they wanted to stay with her. We do not dispute these positive aspects of mother's visits. However, to carry the burden to show the beneficial parent-child relationship exception applies, " ' "frequent and loving contact" is not sufficient' " (Marcelo B., supra, 209 Cal.App.4th at p. 643) as "[i]nteraction between natural parent and child will always confer some incidental benefit to the child" (In re Autumn H., supra, 27 Cal.App.4th at p. 575). "[B]enefit from continuing the relationship," within the meaning of subdivision (c)(1)(B)(i) of section 366.26 has been interpreted to mean "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Id. at p. 575.) That is, the preference for adoption is overcome if severing the relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Marcelo B., at p. 643.) Mother did not provide any evidence that the children would be greatly harmed by the termination of parental rights.
Mother points out that whether she was in a position to have the children returned is not a factor in determining whether the beneficial parent-child relationship exception exists. She cites In re Scott B. (2010) 188 Cal.App.4th 452, 472 and In re Amber M. (2002) 103 Cal.App.4th 681, 686 in support. We do not dispute mother's assertion, but the cases she cites show the type of evidence which typically justifies the application of the exception.
In In re Scott B., the appellate court reversed an order terminating parental rights, holding the court should have applied the beneficial parent-child relationship exception. There, the child had special needs and consistently reported he wanted to live with his mother throughout the proceedings. The child's court-appointed special advocate (CASA) opined maintaining visits with mother was " 'very important.' " (In re Scott B., supra, 188 Cal.App.4th at p. 461.) The CASA recommended that the mother's parental rights not be terminated because when the child found out he might get adopted, he threatened to run away and his behavior regressed to growling, biting, and lying. (Id. at p. 462.) The child's behavior had stabilized, by his foster mother's estimation, with the support of the mother. (Id. at p. 465.) The child was 11 years old and had lived with his mother for nine years. (Id. at p. 471.) The child's CASA reported the child would suffer detriment if the relationship were to be severed. (Ibid.)
Similarly, in In re Amber M., the appellate court reversed termination of parental rights, finding the juvenile court should have applied the exception, where a psychologist, therapists, and the CASA all concluded a beneficial parental relationship clearly outweighed the benefit of adoption; the two older children had a strong primary bond with their mother, and the younger child was strongly attached to her. (In re Amber M., supra, 103 Cal.App.4th at pp. 690-691.)
Unlike these cases, in the present case, there was no testimony or evidence regarding what detriment the children would suffer that outweighed adoption.
The juvenile court did not err by declining to apply the beneficial parent-child relationship exception.
DISPOSITION
The juvenile court's orders denying mother's section 388 petition and terminating parental rights are affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SNAUFFER, J.