Filed 7/26/16 In re A.M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A. M., a Person Coming Under the Juvenile Court Law. D069625 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1180) Plaintiff and Respondent,
v.
C. M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Randall
White, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent. San Diego County Health and Human Services Agency (Agency) filed a petition
in juvenile court after the newborn child (A.M., hereafter Baby) of C.M. (Mother) tested
positive for narcotics at birth, and Baby became a dependent of the juvenile court. The
court ordered services for Mother to address the protective issues, but she did not reunify
with Baby because she did not make substantive progress in the treatment plan to address
her drug addiction. Consequently, the court terminated services to Mother and set a
Welfare and Institution Code section 366.2611 hearing to terminate parental rights.
Subsequently, Mother filed a section 388 petition seeking placement of Baby and
reinstatement of reunification services. At the combined section 388 and section 366.26
contested hearing the juvenile court denied Mother's section 388 petition, determined
Baby would likely be adopted and that adoption would be in her best interests. The court
terminated parental rights and ordered a permanent plan of adoption for Baby. Mother
timely appealed, and contends the juvenile court erred by (1) denying her section 388
petition; and (2) terminating her parental rights.
FACTUAL AND PROCEDURAL HISTORY
A. The Detention and Jurisdiction/Disposition
Baby was born in July 2014, with methamphetamine in her system, caused by
Mother's drug use while pregnant. Five days later, Agency filed a petition under section
300, subdivision (b)(1), because of Mother's inability to protect and provide adequate
care for Baby because of Mother's and Baby's positive tests for methamphetamine at the
1 All statutory references are to the Welfare and Institutions Code.
2 time of Baby's birth, and Mother's history of drug use. Mother admitted using drugs
when she was stressed, that her drugs of choice are cocaine and marijuana, and that she
uses cocaine when it is available. During her pregnancy, she tested positive for
marijuana and benzodiazepine and admitted to ingesting what she believed was cocaine
the day prior to Baby's birth.
At the detention hearing, the juvenile court made a prima facie finding on the
petition, detained Baby in out-of-home care, and ordered liberal supervised visitation and
voluntary services to Mother. At the contested jurisdiction and disposition hearing on
July 31 the court read and considered the social worker's jurisdiction/disposition report
dated July 31 that outlined Mother's admissions to using marijuana, cocaine, and
methamphetamine. In addition, she reported being under stress because of mental health
issues of depression and housing difficulties; and expressed a willingness to participate in
services. The juvenile court made a true finding on the petition by clear and convincing
evidence; declared Baby a dependent; ordered that she be placed with a nonrelative
extended family member (NREFM) as Baby's caregiver (Ms. K. L., hereafter caregiver);
and ordered reunification services to Mother. Mother's case plan included counseling and
mental health services, parenting education, substance abuse services, and liberal
visitation.
B. The Reunification Period
As of the six-month review hearing on February 19, 2015, Mother was enrolled in
Kiva, an inpatient substance abuse treatment program, to address her substance abuse and
housing issues. The social worker noted that although Mother visited regularly and there
3 appeared to be a strong parent-child bond, it would be detrimental to return Baby to
Mother's care based on Mother's pattern of relapse on alcohol and drugs, including
methamphetamine. Mother also struggled with lack of stable housing, and was in need of
therapeutic treatment. The juvenile court found returning Baby to Mother would create a
substantial risk of detriment to Baby, but ordered additional reunification services for
Mother.
As of the contested 12-month review hearing, the reports documented concerns
over Mother's unstable housing situation, her relapse (just two weeks prior to the review
hearing) to using drugs, and her failure to address her substance abuse problem at the
inpatient treatment program. Mother did visit Baby regularly and the social worker noted
that they appeared bonded. The court considered the Agency's status review report dated
July 22, 2015, and addendum dated August 6, 2015, a July 22, 2015, report from a court
appointed special advocate (CASA), and Mother's testimony that included a statement
that she was participating in the court-ordered services just to get her "baby back, and
that's it."
The juvenile court found Mother had not made substantive progress with the
provisions of her case plan, return of Baby to Mother would create a substantial risk of
detriment to Baby, and there was no substantial probability she would be returned to
Mother within the next five months. The court terminated Mother's reunification
services, set a section 366.26 hearing, and ordered continued liberal, supervised
4 C. The Section 366.26 Assessment
On November 17, 2016, the Agency filed a section 366.26 report and subsequent
addendum for the section 366.26 hearing recommending that Mother's parental rights be
terminated and a permanent plan of adoption be ordered. The social worker noted that
during the reunification period Mother visited Baby regularly but did not fulfill a parental
role in her life.
Similarly, between the time services were terminated and the original section
366.26 hearing, Mother had supervised visits with Baby at the caregiver's home. The
social worker noted that although Mother attended all visits and was prepared for each
visit, she was not able to meet Baby's needs during the visit or manage the care of both of
her children during a structured 60-90 minute visit.2 The social worker noted that it
appeared Mother lacked a significant parent-child relationship with Baby, who identified
the caregiver as her primary caregiver, and testified Baby identified Mother more as a
relative or close friend than a birth parent.3
2 For example, at a visit on October 17, Mother showed up with the child's newborn half-sibling but had to ask the caregiver for help while Mother held the sibling or pumped milk. During another visit on October 31, Mother tried to put a Halloween mask on Baby and comb her hair, but became frustrated when Baby would not let her do so, and Mother then asked for help from the caregiver's relative, who completed the task.
3 For example, during the October 17 visit, Baby looked to the caregiver when she had a soiled diaper, sought approval from her by making eye contact, went to her for water, and ran to the caregiver for comfort when she was scared by a loud sound even though Mother was in closer proximity. Although Mother displayed affection toward Baby with a hug and kiss, Baby accepted the affection but did not reciprocate it, and the caregiver reported Baby does not cry or appear distressed when Mother departs the visits. During visits in December, Baby looked to the caregiver for approval several times 5 The adoptions placement coordinator assessed Baby as generally adoptable, with
34 possible adoptive families in San Diego County willing to adopt a child with her
characteristics as of November 12, 2015. Additionally, Baby was assessed as specifically
adoptable because her caregiver was willing to adopt her. Based on the Agency's
assessment, Baby established an attachment to her caregiver, as evidenced by Baby
seeking her for affection, approval, security, comfort, and to meet her daily needs. These
behaviors identified the caregiver as Baby's primary caregiver, who met all of her daily
needs and was committed to providing her with safety, well-being, and permanence. The
caregiver had a family support system in place to help care for Baby if needed, and the
caregiver was open to continued visits with Mother so long as they were beneficial and
appropriate.
The social worker testified, based on her observations, Mother was unable to meet
Baby's needs during the supervised visits and could not manage caring for her and her
half-sibling. More importantly, the Agency concluded that it appeared Mother "lack[ed]
a significant parent-child relationship with [Baby]," and did not have a parental role in
Baby's life. During the reunification period, Mother did not progress to unsupervised
visits and Baby did not seemed distressed when visits ended. Baby identified her
caregiver as her primary caregiver, looked to her for approval when exploring unfamiliar
areas or persons, and was distressed when she was taken from the caregiver's home. The
social worker observed that Baby's relationship with Mother was akin to a relative rather
before doing something, called the caregiver "[m]ommy," and separated from Mother at the end of the visits without distress. 6 than a birth parent, as evidenced by her absence of distress when separating from Mother
and not looking to her for approval or affection. Finally, the social worker noted it
appeared Baby did not have a significant attachment to her half-sibling, born in
September 2015, because they did not have any shared experiences and they had never
lived together. Thus, there was no detriment to Baby if parental rights were terminated,
and a permanent plan of adoption was in her best interests.4
D. Mother's Section 388 Petition
Mother filed a section 388 petition on December 28, 2015, seeking placement of
Baby with her or, in the alternative, that reunification services be reinstated for Mother up
to the 24-month review date. The petition included attachments verifying Mother's
enrollment and phase one status in Dependency Drug Court, enrollment verification at
Kiva since August 7, 2015, with results of onsite random drug testing, and a letter from
Kiva verifying Mother volunteered there as a daycare coordinator responsible for
scheduling and organizing the Kiva daycare facility. At a January 4, 2016, hearing, the
juvenile court found Mother had made a prima facie case by making a "minimal
showing" of both changed circumstances and best interests of the minor, and therefore set
a section 388 evidentiary hearing.
4 The CASA provided the juvenile court two informational reports, dated December 1, 2015, but did not make any formal recommendations based on her limited ability to gather information during this period. The CASA noted Mother maintained regular visitation with Baby and that it appeared Mother and Baby had a strong connection, based on previous visits she had observed and one visit she observed on November 21, 2015.
7 E. The Combined Section 366.26 and Section 388 Hearing
At the combined section 366.26 and section 388 hearing on January 15, 2016, the
juvenile court admitted into evidence numerous reports, and also heard testimony by
Mother, the caregiver, and the social worker.
The caregiver testified she has cared for Baby since she was 10 days old,
supervising visits with Mother during that time. She testified that Mother would play
with Baby and care for both Baby and her sibling during visits. Further, the caregiver
testified she was willing to adopt Baby if parental rights were terminated.
Mother testified she is an addict, and that she entered her current residential
treatment program at Kiva on August 7, 2015, which she completed on December 27,
2015, and during which she had numerous clean drug tests. She was currently looking
for housing, was on the third step of the 12-step program, and had obtained a sponsor the
previous October. However, she admitted she had previously completed Kiva's
residential treatment program on April 1, 2015, during which she had participated in drug
testing, parenting, and 12-step meetings as part of that program, but that two weeks after
completing her first program at Kiva she relapsed on methamphetamine and had used it
daily for about three months thereafter. Mother also admitted she continued to visit Baby
during the time she was using methamphetamine, but she would not use prior to the visit,
only a few hours after.
The social worker testified that, after reviewing the entire dependency file, social
worker contact logs, and reports admitted into evidence, and hearing Mother's testimony
that day, it was his opinion Mother had not shown changed circumstances because of her
8 extensive drug history, several recent positive drug tests, and inability to provide a safe
home for Baby. The social worker testified, based on Mother's lack of parental
relationship with Baby and because Baby was a highly adoptable child, it was in Baby's
best interests to order a permanent plan of adoption. In addition, he testified (based on
his visitation observations) Baby had built an attachment to her current caregiver, seeking
her for affection, approval, and direction, and identifies the caregiver as her "mommy."
He did not observe Baby displaying the same behaviors indicating she identified Mother
as her primary caregiver because Baby did not reciprocate affection toward Mother at
times and did not seem distressed after separating from her. The social worker explained
Baby needed permanency due to her young age and the importance for infants to be
provided with safety, emotional well-being, and having their daily needs met; and
cautioned a second removal from Mother's care would hinder that development. The
social worker testified the likelihood of Mother maintaining sobriety was very low and
leaving Baby in foster care without a permanent plan was harmful to her development
and stability. Further, he stated that based on his assessment of the totality of the
circumstances, adoption was in Baby's best interests.
F. The Juvenile Court's Rulings and Orders
The court denied the section 388 petition. The court noted the circumstances
remained largely the same since July of 2015, when Mother completed her residential
treatment program and nevertheless relapsed, and that it is in Baby's best interests for her
to remain with her caregiver and in a stable situation.
9 After denying the section 388 petition, the court then turned to the section 366.26
hearing. The court terminated parental rights, and found by clear and convincing
evidence Baby was likely to be adopted and that no exceptions to adoption pursuant to
section 366.26 subdivision (c)(1)(B), applied. The juvenile court ordered a permanent
plan of adoption for Baby, designating her current caregiver as the prospective adoptive
parent and sole holder of Baby's educational rights, and ordered sibling visitation, finding
that sibling interaction would not be contrary to Baby's safety and well-being. The
juvenile court also noted, although there had been regular visitation by Mother, some of
that visitation was during a three-month period when Mother relapsed and was not sober;
and there was insufficient evidence to show that the parent-child bond exception applied.
Mother filed a timely notice of appeal.
ANALYSIS
A. Mother's Challenge to the Ruling on the Section 388 Petition
Mother first asserts the court abused its discretion when it denied her section 388
petition.
Legal Principles and Standard of Review
Under section 388, a parent or any person having an interest in a dependent child
may request the court to change, modify, or set aside a previous court order (§ 388, subd.
(a)(1)), but bears the burden of proof and must show by a preponderance of the evidence
that (1) there is new evidence or a change of circumstances; and (2) that the proposed
change is in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In
re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner must demonstrate changed
10 circumstances, not merely that there are changing circumstances. (In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223 [period of "recent sobriety reflects 'changing,' not
changed, circumstances"].)
When assessing a section 388 petition, "[i]t is not enough for a parent to show just
a genuine change of circumstances under the statute. The parent must [also] show that the
undoing of the prior order would be in the best interests of the child." (In re Kimberly F.
(1997) 56 Cal.App.4th 519, 529.) In making its decision on this issue, the juvenile court
may not merely compare the relative strengths of the competing households (id. at
p. 530), but instead should examine numerous factors, including (1) the seriousness of the
problem that brought rise to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent to both parent and
caregivers; and (3) the degree to which the problem that created the initial dependency
proceeding may be easily removed or ameliorated and the degree to which it already has
been removed or ameliorated. (Id. at p. 532.)
We conclude the evidence, viewed in the light most favorable to the judgment,
supports the court's decision to deny Mother's section 388 petition (In re Stephanie M.,
supra, 7 Cal.4th at p. 318), and therefore Mother cannot demonstrate the court abused its
discretion.
On the first prong, Mother showed at most that a major circumstance leading to
the initial dependency proceeding—her drug addiction—was in the process of changing,
which a court may deem inadequate to show a real change in circumstances. (In re Casey
11 D. (1999) 70 Cal.App.4th 38, 49.) Although Mother argues on appeal that her continued
progress in her substance abuse treatment reflects changed circumstances, her sobriety
had only lasted for a brief period (from early Aug. 2015 to the contested § 388 hearing in
Jan. 2016) and only occurred in a highly structured setting of a residential treatment
program. Moreover, the court was entitled to view this recent progress with skepticism,
considering the evidence she had completed the same residential treatment program but
been unable to maintain the sobriety needed to parent Baby because she relapsed to using
methamphetamines two weeks before the 12-month review hearing and then entered a
period of daily use for three months until she resumed her latest residential treatment
program. Because there was evidence Mother was a long-term drug abuser and had only
recently completed the Kiva program, the court could conclude she had not shown a real
change in circumstances. As the court explained in In re Ernesto R., supra, 230
Cal.App.4th at page 223, Mother's "recent sobriety reflects 'changing,' not changed,
circumstances. [Citation.] [Mother] has a history of drug relapses, is in the early stages
of recovery, and is still addressing a chronic substance abuse problem. (See [In re
Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9] [' It is the nature of addiction that one
must be "clean" for a much longer period than 120 days to show real reform.']; In re
[Cliffton] B. (2000) 81 Cal.App.4th 415, 423-424 . . . [200 days of sobriety not enough].)
[Mother's] completion of a drug treatment program, at this late a date, though
commendable, is not a substantial change of circumstances."
Mother also appears to claim she showed a change in circumstances by
demonstrating she had attained the ability to safely parent Baby because she was
12 parenting Baby's younger sibling. Although Mother demonstrated that during this period
she cared for her new child at her residential treatment program, she was not able to show
she could manage the care of an infant outside a structured setting or be able to parent
Baby on her own. Indeed, at trial, a social worker testified that based on his observations
of events at the caregiver's home and at Mother's residential treatment program when
both children were present, Mother was unable to manage both infants without the
assistance of others. These events, in addition to suggesting Mother did not occupy a
parental role in Baby's life, permitted a trier of fact to infer Mother lacked the ability to
care for two very young and vulnerable children outside of brief visits in a highly
structured setting.
Moreover, as to the second prong, there was ample evidence supporting the court's
determination the relief requested in Mother's section 388 petition (either placement with
Mother or reinstatement of reunification services up to the 24-month date) was not in
Baby's best interests. Once reunification services have been terminated, as here, "the
court's focus shifts from family reunification toward promoting the child's needs for
permanency and stability. [Citation.] '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, quoting In re Stephanie M., supra, 7 Cal.4th at p. 317.].) There
was evidence from which the court could have concluded it was in Baby's best interests
for her to remain with her current caregiver in a stable situation, and to begin the process
of a permanent placement, rather than to place her in limbo for another year to await
13 Mother's efforts to achieve sobriety and stability. Mother appears to argue the factors
outlined in In re Kimberly F., supra, 56 Cal.App.4th at page 532 show it was in Baby's
best interests to place her with Mother or, in the alternative, to have reunification services
reinstated for Mother up to the 24-month review date. Specifically, the factors articulated
in Kimberly F. address: (1) the seriousness of the problem that led to the dependency; (2)
the strength of relative bonds between the child and both the parent and caregivers; and
(3) the degree to which the problem may be easily removed or ameliorated, and the
degree to which it has actually been cured. (Ibid.) However, the In re J.C. court declined
to apply the Kimberly F. factors, holding they do not take into account the shift in focus
to a child's needs for permanency after the reunification period has ended. (In re J.C.,
supra, 226 Cal.App.4th at p. 527.)
Even assuming the Kimberly F. factors are relevant to the "best interests" prong,
Mother's argument nevertheless fails. First, even the Kimberly F. court recognized it will
be the "rare" case in which an appellate court would reverse a juvenile court's denial of a
section 388 petition. (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.) Moreover,
Kimberly F. recognized section 388 provides an " 'escape mechanism' when parents
complete a reformation in the short, final period after the termination of reunification
services but before the actual termination of parental rights." (Kimberly F., at p. 528,
citing In re Marilyn H. (1993) 5 Cal.4th 295.) However, Kimberly F.'s observations
occurred in the context of a dependency proceeding in which the children were removed
because the family home was dirty and unsanitary (Kimberly F., at p. 523), and after the
reunification period ended the mother cleaned and maintained her home and engaged in a
14 parenting class and other services, and then filed a section 388 petition seeking return of
her children or more reunification services. (Kimberly F., at pp. 524-525.) The appellate
court reversed an order denying the section 388 petition, specifically noting that an
important factor to be considered was the seriousness of the problem that gave rise to the
dependency case. (Kimberly F., at p. 530.) However, the Kimberly F. court specifically
observed that, unlike a dirty house problem, "we doubt that a parent who sexually abused
his or her child could ever show a sufficient change of circumstances to warrant granting
a section 388 motion. Likewise the parent who loses custody of a child because of the
consumption of illegal drugs and whose compliance with a reunification plan is
incomplete during the reunification period. It is the nature of addiction that one must be
'clean' for a much longer period than 120 days to show real reform." (Id. at p. 531, fn. 9,
italics added.)
Here, the original issue giving rise to the proceedings was Mother's significant
drug history, a more serious issue significantly less amenable to rapid remediation than
the dirty home case in Kimberly F. Second, the strength of relative bonds between the
child and both the parent and caregivers, an appropriate consideration when considering
the best interests of the child, were more significant in Kimberly F. (56 Cal.App.4th at p.
533) than here.5 Finally, the degree to which the problem may be easily removed or
5 Based on many visits observed by the social worker between Mother and Baby, the social worker noted their relationship resembled that of a friend or close relative rather than a parent: Baby was not distressed when separating from Mother, did not look to her for approval or affection, and at times did not reciprocate Mother's affection and sought the caregiver instead. In contrast, the social worker observed Baby has identified 15 ameliorated, and the degree to which it has, is considered under the Kimberly F. factors.
(In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Here, Mother has not shown a
change of circumstance in treating her drug addiction, and thus Kimberly F. does not aid
Mother's claim that it was an abuse of discretion to deny her section 388 petition.
At the section 388 hearing, the court considered Baby's best interests based on her
needs of permanency due to her young age and developmental needs for stability, safety,
and emotional well-being; and the high risk of leaving her in foster care, the least
desirable placement. Ultimately, the court found Mother did not meet her burden in
establishing changed circumstances or new evidence and found that it was in Baby's best
interests for her to remain with her current caregiver in a stable situation. We conclude
Mother has not shown the court's ruling denying her section 388 petition was an abuse of
B. Mother's Challenge to the Ruling Terminating Parental Rights
Mother asserts the trial court erred when it ordered her parental rights terminated
and approved a permanent plan of adoption for Baby, arguing there was no substantial
evidence that the parent-child bond exception did not apply.
Legal Framework
"At a section 366.26 hearing the court is charged with determining a permanent
plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred
her caregiver as her primary caregiver by seeming distressed when she is separated from her and looking to her when exploring unfamiliar areas or persons. A court could have concluded that, although Mother appeared bonded to Baby and maintained regular visitation throughout the case, her relationship with Baby was minimal in comparison to the caregiver's primary relationship with Baby. 16 by the Legislature. [Citation.] The Legislature has provided an exception to the general
rule of adoption: the court should not order a permanent plan of adoption when
termination of parental rights would be detrimental to the child because '[t]he parents . . .
have maintained regular visitation and contact with the [child] and the [child] would
benefit from continuing the relationship.' " (In re Casey D., supra, 70 Cal.App.4th at
p. 50, quoting former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).)
Once the court determines the child is likely to be adopted, the burden shifts to the
parent to show termination of parental rights would be detrimental to the child under one
of the exceptions listed in section 366.26, subdivision (c)(1) (In re Michael G. (2012) 203
Cal.App.4th 580, 589), such as the exception for the parent-child beneficial relationship
exception. "In the context of the dependency scheme prescribed by the Legislature, we
interpret the 'benefit from continuing the [parent/child] relationship' exception 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. In
other words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
family would confer. If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent's rights are not
terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.)
"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
17 adult's attention to the child's 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.)
"The factors to be considered when looking for whether a relationship is important
and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the
parent's custody, (3) the positive or negative effect of interaction between the parent and
the child, and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th
454, 467, fn. omitted.) "[F]or the [beneficial relationship] exception to apply, the
emotional attachment between the child and parent must be that of parent and child rather
than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (Id.
at p. 468.) Frequent and loving contact between parent and child, without the existence
of a parental role in the child's life, may be insufficient to justify the selection of a
permanent plan other than adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411,
1418-1419.)
On appeal, we employ a hybrid standard of review by applying "the substantial
evidence standard of review to the factual issue of the existence of a beneficial parental
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.) The reason for this hybrid standard was
18 explained in In re Bailey J. (2010) 189 Cal.App.4th 1308, in which the court observed its
decision whether an adoption exception applies involves two component determinations:
"Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. . . . [¶] The same is not true as to the other component of these adoption exceptions. The other component of both the parental relationship exception and the sibling relationship exception is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, 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. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Id. at pp. 1314-1315.)
We conclude Mother has not shown the evidence, viewed in the light most
favorable to the judgment (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576), is
insufficient to support the determination that there was not a significant parent-child bond
between Mother and Baby, nor has Mother shown that it was an abuse of discretion to
determine that the benefits of adoption outweighed the severance of the relationship that
had developed between Mother and Baby.
Although the evidence showed Mother regularly visited Baby and there was
affectionate contact, the evidence also supports the conclusion Mother did not occupy a
19 parental role in Baby's life. Although Mother regularly visited and engaged with Baby by
playing with her and showing her affection, the social worker noted Baby looked to the
caregiver for approval and addressed her as "Mommy," in contrast to her behaviors
toward Mother, because Baby does not look to Mother for approval, does not embrace
Mother when strangers are present, separates from Mother without distress, and runs to
the caregiver rather than Mother when she is startled by a loud noise and needs
comforting. The social worker testified that their relationship resembled that of a close
friend or relative rather than as the birth parent, and it is the latter relationship that is
contemplated for the application of the beneficial parent-child relationship. (In re C.F.
(2011) 193 Cal.App.4th 549, 555 ["A parent must show more than frequent and loving
contact or pleasant visits. [Citation.] . . . The parent must show he or she occupies a
parental role in the child's life, resulting in a significant, positive, emotional attachment
between child and parent."].) We conclude substantial evidence supports the conclusion
Mother had some relationship with Baby but did not have the substantial emotional
attachment contemplated by the parent-child bond exception to the preference for
adoption as a permanent plan.
Moreover, we cannot conclude it was an abuse of discretion to determine that the
benefits of adoption outweighed any detrimental impact to Baby from severing Mother's
relationship with her. The evidence showed Baby had lived with the caregiver her entire
life and identified the caregiver as "mommy," and the caregiver was willing to adopt
Baby and provide her with a stable and safe home. Although there may have been some
detrimental impact to Baby from ending her relationship with a person who was likened
20 to a close friend or relative, we cannot conclude it was an abuse of discretion to decide
that the significant value of the safety and stability of adoption outweighed any detriment.
DISPOSITION
The orders are affirmed.
McDONALD, Acting P. J. WE CONCUR:
O'ROURKE, J.
AARON, J.