Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. Nos. JV050139, JV050140, JV050141
Lambden, J.
Sarah M. appeals from the juvenile court’s orders terminating her parental rights to minors James M. and Steven B. She argues the juvenile court improperly denied her motion for a continuance; made findings about the likelihood of adoptability and the applicability of an exception to termination that were not supported by substantial evidence; and, along with the minors’ counsel, failed to determine this counsel had an actual conflict of interest. We affirm the judgment.
BACKGROUND
Sarah is the mother of three boys, J.W., James M., and Steven B., ages 10, 9, and 5 respectively at the time of the parental termination proceedings below. The present appeal is from the juvenile court’s termination of Sarah’s parental rights regarding James and Steven only.
Sarah’s parental rights to J.W. were not terminated because J.W.’s father appeared and was granted reunification services.
Summary of the Record From the Previous Appeal
In a prior appeal, case No. A112439, Sarah challenged the juvenile court’s rulings that her children were dependents to be removed from her custody subject to Welfare and Institutions Code section 300. We affirmed the court’s rulings. As we related in our previous opinion, the relevant section 300 petitions alleged that Sarah, homeless in Eureka, California, had made an arrangement in June 2005, after contacting the police, to leave her children with a woman overnight, but had not made further appropriate arrangements. At a contested jurisdiction hearing, Sarah testified that she had moved to Eureka from Nevada in June 2005, In re J.W. et al. (Dec. 15, 2006, A112439) [nonpub. opn.]) that she “was not very stable . . . very emotional” when she contacted the police, and that her living situation scared her. She acknowledged telling a social worker that she considered herself an alcoholic and a drug addict, that she was clean up to that point, but that she “had started slipping into my patterns,” although not yet with drugs, which was why she was asking for help.
Statutory references in this opinion are to the Welfare and Institutions Code, unless otherwise indicated.
We have previously granted Sarah’s request that we take judicial notice of the records and briefs in this previous appeal.
Separate petitions were filed because each of the children has a different father. Matters regarding the children were generally reviewed and heard together at the same hearing, however. Therefore, we refer herein to “hearing” in the singular form, even when matters regarding more than one child were addressed.
The jurisdiction reports from the Humboldt County Department of Health and Human Services (Department) indicated that the fathers’ present locations were unknown, that child welfare services had received numerous previous referrals on the family in the past, and that the children had previously been placed with their maternal grandmother, who was no longer able and/or willing to care for them. The reports also stated that Sarah told a social worker soon after her children were placed in protective custody “that she can no longer care for the child because she is suffering from mental health issues and has not taken her psychotropic medication for over a year,” and that she had been diagnosed with bipolar disorder, a personality disorder and social anxiety.
The reports recommended the children be found minors covered by section 300 and made dependents of the juvenile court. A case plan for Sarah and the children stated as the goal the children’s return home, and as service objectives that Sarah stay drug free, comply with medical or psychological treatment, and find appropriate housing. Sarah’s responsibilities included engaging in counseling as recommended to complement the benefits provided by prescribed medications, engaging in an assessment to determine the need for anger management counseling, attending a substance abuse assessment and any recommended services. The court sustained the allegations of the section 300 petitions.
At the December 2005 disposition hearing, the court considered and adopted the recommended disposition reports from the Department. The court ordered the children be placed in suitable foster homes, visitation rights and family reunification services for Sarah, and set the matter for a six-month status review hearing.
Background of the Present Appeal The Six-Month Review
In June 2006, the Department reported that James and Steven were living together in licensed foster care, were in good health, and appeared to be developing normally. James had been exposing his genitals and threatening to urinate on others, fighting, lying, bedwetting, and defecating in drawers, but the doctor who examined him thought that his behavior would improve when he could control his bodily functions. Sarah had completed her mental health assessment, but had not started her recommended counseling. She had visited the children consistently and showed “great parenting skills.” Both James and Steven said that they loved and missed their mother, and wanted to move back with her. Sarah had housing in three different motels, and had not been living on the streets. She did not show signs of drug abuse. The Department recommended that the court find that Sarah had complied with her case plan and made substantial progress, order more reunification services, and allow Sarah weekly visitations. The Department also deleted from its recommended case plan the need for a drug and alcohol assessment. At the uncontested six-month review hearing in July 2006, the court adopted the Department’s recommendations as its own findings and orders, ordering six months of additional reunification services.
The Department’s August 2006 Section 388 Petitions
In August 2006, the Department filed section 388 petitions alleging that Sarah had been arrested in July 2006 for possession of a controlled substance, possession of a hypodermic needle, driving without a valid license and with no proof of insurance, and for displaying false evidence of registration. The Department, with Sarah’s agreement, proposed a new service objective that involved Sarah obtaining an assessment from the Humboldt County Alcohol and Other Drugs program, and following its recommendations. The Department also reported that “it appears the safety factors have been addressed to a point that the children can be returned home. The outstanding issue is obtaining and maintaining suitable housing. [Sarah] also needs to continue to work on her case plan.” The court granted the petitions, amending the case plan.
The 12-Month Review
In January 2007, the Department reported Sarah had missed two appointments to request funds and food stamps needed to support her children. For reasons unknown to the Department Sarah had not maintained housing for more than approximately two months; was staying with friends during the week; had not had a mailing address for the past six months; had completed her mental health assessment, but not begun counseling with the boys; was “very dedicated” to her visitations and had visited consistently; exhibited “very good parenting skills”; and that the boys appeared to enjoy her visits. Although Sarah had made “several appointments” for her alcohol and other drugs assessment, she had not had her assessment. Her social worker reported that in her weekly contacts, “[Sarah] always appears to be clean and does not present as having a substance abuse problem. Child Welfare Services feels Sarah does not appear to need this assessment to successfully reunify with her children.”
As for Steven and James, the Department reported that they remained in foster care, in good health, were happy in their placement, but missed their mother and wanted to return to her. James had been held back a year in school, continued to have intermittent behavioral problems and remained in counseling, while Steven did not appear to have any mental or emotional issues.
The Department recommended that reunification services be terminated because the boys had been in placement over 18 months, but noted “if it were not for the fact that Sarah has not obtained housing for her boys, she would have been successful in reunifying with her children at the last court hearing, 07/12/2006.”
After some delay, the court began a 12-month review hearing in March 2007, at which the Department’s counsel reported that Sarah was currently living in a multiple assistance center and had requested a family unit. The court continued the hearing for one month at the request of counsel to see if Sarah could obtain such a unit. The Department reported in April 2007 that, with help from its social worker, Sarah had moved into a multiple assistance center on March 1, 2007, but that on March 7, 2007, she had been dismissed from the program for failing to check in for three consecutive nights.
After some additional delay, the court held a contested 12-month review hearing in June 2007. Sarah’s counsel stated that Sarah thought there was a relative out-of-state with whom she and the boys could live. The court authorized the initiation of the ICPC process (relating to interstate placements) to determine if the children could be placed with an appropriate relative out of state with the written approval of minors’ counsel, terminated reunification services, and set a section 366.26 parental termination hearing.
The Department’s September 2007 Section 388 Petitions
In September 2007, the Department filed new section 388 petitions, requesting Sarah’s visitation be changed from overnight, unsupervised visits to supervised visits once a month for two hours. The Department had been informed that she left the children unsupervised with individuals unknown to the Department when she worked at night, had a “car stashed locally” and took the boys to Vallejo in violation of the visitation order, and told the boys they would be moving with her to Texas, where she would have a job. Sarah’s counsel, with Sarah absent, objected to the allegations and the petitions’ recommendations without presenting evidence. Minors’ counsel agreed with the petitions, which the court granted.
The Section 366.26 Hearing
In September 2007, the Department filed section 366.26 reports for James and Steven that included adoption assessment reports, which are discussed further in part IV, post. Although no prospective adoptive parents had been found, the Department recommended that the court terminate Sarah’s parental rights regarding James and Steven, with post-termination visitations allowed for Sarah and J.W.
At the end of October 2007, the court conducted a section 366.26 hearing, after denying Sarah’s motion for a continuance. Minors’ counsel stated that Steven, while he loved Sarah, wanted permanence, needed a permanent home and was very adoptable, that James wanted to live with Sarah, but counsel believed he had been coached, that it was in James’s best interests to have permanency and that he was adoptable, that it was in the children’s best interests not to be placed together, and that he was confident there would be post-adoption visitation. Sarah also testified, which we discuss further in part IV, post, and her counsel argued, among other things, that the “beneficial relationship” exception to termination applied. The court found by clear and convincing evidence that it was likely Steven and James would be adopted, found that the “beneficial relationship” exception to parental termination did not apply, and terminated Sarah’s parental rights. Sarah subsequently filed a timely notice of appeal.
DISCUSSION
I. Sarah M.’s Motion to Continue the Section 366.26 Hearing
Sarah argues that the juvenile court’s denial of her motion to continue the section 366.26 hearing was a denial of her due process rights, and an abuse of discretion. These arguments lack merit.
Section 352 provides in relevant part that “the court may continue any hearing under this chapter . . . provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause.” (§ 352, subd. (a).) Continuances are generally discouraged. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) We review the denial of a continuance for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Sarah notes that “the juvenile court has the power to ‘control all proceedings during the hearings with a view to the expeditious and effective ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought.’ (§ 350.) ” (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.) Nonetheless, continuances are subject to the guidelines of section 352 and generally discouraged. Indeed, Sarah’s argument is taken from a paragraph that also states “ ‘[d]elay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.’ ” (Ibid.)
The day of the section 366.26 hearing, Sarah’s counsel filed motions regarding both children for continuances of “at least one month,” stating in declarations that they were needed to file section 388 petitions, as Sarah “informs me that she has a job in Texas and can take custody” of James and Steven. At the hearing, Sarah’s counsel contended “the only impediment” to the boys’ return to Sarah had been “her lack of housing.” Counsel for the Department and the minors opposed the motion, citing such things as lack of good cause, that issues other than housing were of concern, and that the boys needed permanence. The court denied the motion, stating, “I think that the 366.26 does need to proceed. If the mother does make her showing that there should not be a termination of parental rights based on the bond, then obviously a 388 can be brought in at a later time that relates to that.”
The court granted Sarah’s ex parte requests for orders shortening time to hear the motions, and heard them just prior to the section 366.26 hearing.
We find no abuse of discretion. It was reasonable for the court to find, given that the children had already been within the court’s jurisdiction for approximately 24 months, that it was in their best interests for the hearing to proceed as quickly as possible. Sarah’s stated reason for the continuance—that she had obtained a job and housing—would do little to address the significant problems the Department raised in its reports to the court, such as Sarah’s failure to sufficiently address her mental health or substance abuse issues, her emotional abuse of the children, or that she had been unable to maintain work and housing for any significant length of time. Also, the court reasonably could find the reasons stated for the continuance unpersuasive because no details were given, and Sarah herself did not submit a declaration or make any offer of proof.
Sarah also argues that the trial court’s denial of the continuance was a violation of her constitutional due process rights, and argues that the court’s denial of the continuance deprived her of the “sole mechanism to escape the limited defenses governing the selection and implementation hearing, and thus, the juvenile court blocked [Sarah] from presenting important facts upon which reunification could be based.” Her argument comes perilously close to asserting any such motion must be granted. It is unpersuasive in light of the inadequacies of her motion discussed herein.
We do not address the department’s harmless error argument in light of our ruling.
II. Likelihood of Adoptability
Sarah argues that the juvenile court’s finding of clear and convincing evidence that James and Steven were likely to be adopted was not supported by substantial evidence. This is incorrect.
A. Legal Standards
After termination of reunification services, if a juvenile court determines, based on the appropriate assessment and any other evidence, and subject to certain exceptions, “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 fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806.) As one court has put it, “what is required is clear and convincing evidence of the likelihood that the children will be adopted within a reasonable time either by the prospective adoptive family or some other family.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “The issue of adoptability posed in a section 366.26 hearing 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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
We “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].’ ” (In re Angela P. (1981) 28 Cal.3d 908, 924.) “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984)150 Cal.App.3d 870, 873-874.)
B. Proceedings Below
The Departments prepared section 366.26 reports on James and Steven. The report for James stated specifically that Sarah’s “obtaining housing is not the only factor impacting her ability to care for her children. As evidenced in previous reports Sarah has not completed drug assessments and she has been cited for possession of controlled substances in 2006. Sarah has not provided evidence to the court that she maintains housing, proof that she is free from the influence of controlled substances, and proof that mental health needs are identified and met.” The reports indicated the children’s needs for permanency outweighed the benefits of their relationship with Sarah, and recommended termination of parental rights and a permanent plan of adoption In doing so, the reports relied on adoption assessment reports prepared for both children, which we discuss now in some detail.
1. The Children’s Assessments
The Department’s recommendations of termination to the court relied heavily on the assessments and recommendations prepared by the Department of Social Services, Adoptions Services Bureau, regarding James and Steven, contained in two reports, dated August 31, 2007, submitted by an adoptions specialist, and approved by an adoptions supervisor. The reports stated that joint review of the children’s cases were held between assigned staff from the Department and the California Department of Social Services (CDSS). Interviews were also held with the children and foster parents, an Environmental Alternatives social worker, J.W.’s therapist, who worked with Steven collaterally, and the maternal grandmother. Interviews and observations of the children occurred in their foster homes on two occasions, and available records concerning medical, psychological, and scholastic or developmental backgrounds were reviewed. The reports stated:
“Historically, while in the care of their birth mother, the children have been neglected, exposed to multiple caretakers, and moved frequently. The children have reported that they have witnessed domestic violence: their mother being assaulted by a boyfriend. The children have reported that during their weekend overnight visits, their mother often leaves them with a babysitter (different person each time) in order to go ‘teach.’ [¶] Environmental Alternatives has expressed concerns about the birth mother’s interactions with the children during phone contacts and visits, summarizing with the opinion that the mother’s approach is emotionally abusive to the children. . . . It is likely that the children have been and continue to be exposed to substance abuse-related and other physically and emotionally unhealthy behaviors.”
A specific family suitable to adopt the boys had not been identified, but the CDSS was “confident that a suitable adoptive family will be found if additional efforts are made to locate such a family.”
a. James’s Assessment
The report on James, nine years old, stated that he reported in 2004 that several round scars on his arms were caused by his mother burning him with a match; that James reported seeing his mother hit J.W., whose eye was swollen shut after a weekend visit with her, in August 2006; and that James had been placed in five foster care placements since 2005.
As for James’s own condition and development, his foster mother had indicated he was in “fair general medical health,” suffering from asthma, nighttime bedwetting, and obesity. He had begun third grade after repeating second grade the year before, had a “speech enunciation issue,” experienced behavioral difficulty at his latest school and received therapeutic behavioral services that appeared to have assisted him and had been discontinued. He was “dealing with anger and aggression, sadness, and lying,” had thrown furniture at school, threatened his foster brothers with a knife at his previous placement, and carved on cupboards, but his aggressive behaviors had not occurred in his current foster home and had decreased at school. He was attending therapy, had a diagnosis of adjustment disorder, and was progressing well in therapy. His former foster mother described him as “helpful and wanting attention.” His current foster mother stated that he had “made a big improvement since living with her,” was “very compassionate, caring about other people, kind, endearing and creative.”
James expressed a desire to return to his mother, understood that adoption meant he would have no parents and that he would not see his birth mother often, and that he expressed a desire for a family that could adopt him with his brothers. The report believed his primary relationship was with his current foster mother, and his secondary relationships to be with his brothers. However, his relationship with J.W. was “labile and toxic.”
The report concluded that James’s relationship with Sarah was very problematic, and that he was very adoptable. It stated that “Sarah’s mental health issues, substance abuse, and frequent absences have made her relationship with James unpredictable and undependable. James appears to be very loyal to his birth mother.” Furthermore, “James by himself is not a difficult child to place for adoption and will be adopted if parental rights are terminated.” Although James was “harder to place due primarily to [his] age,” he was “adoptable and will be adopted if parental rights are terminated,” and “[t]he probability of finding a family for James and Steven together are 90 percent.” It recommended termination of parental rights and a permanent plan of adoption for James.
b. Steven’s Assessment
The report on Steven, five years old, stated he had been in two foster homes since 2005, was in good medical health, but poor dental health, was beginning kindergarten, and appeared to be developmentally on track. He was “dealing with frustration, anger and aggression issues, particularly following visits with his birth mother. He sometimes bites, hits, punches, or throws things. Aggressive behaviors towards other children in his foster home and at preschool have decreased.” His foster mother said he was “lovable, helpful, and wanting attention.” He sometimes lied, and wet his bed nightly.
Due to his age and cognitive development, Steven could not have a determining discussion or opinion about his permanent plan. It was reported that he had an ongoing relationship with Sarah, who expressed her love for him, but that his responses to such expressions appeared “obligatory rather than spontaneous.” As with James, the report noted that Sarah’s mental health and substance abuse issues, and her frequent absences, made her relationship with Steven “unpredictable and undependable.” Steven’s primary relationship was with his foster mother, and his secondary relationship was with J.W.
The report stated that “Steven by himself is not a difficult child to place for adoption and will be adopted if parental rights are terminated,” and that, “[b]ased on the eight-plus years of adoption experience of the undersigned, the estimated probability of finding a family for Steven by himself is 100 percent, [and] for Steven and James together about 90 percent.” It recommended termination of parental rights and a permanent plan of adoption for Steven.
2. The Section 366.26 Hearing and Rulings
At the hearing, the Department submitted on its reports. Sarah’s counsel called Sarah to the stand, which testimony we discuss further in part IV, post. There was no evidence presented to contradict the findings and recommendations of the assessment reports regarding the children’s adoptability.
The court terminated Sarah’s parental rights after noting that this was “an extremely difficult case” because of Sarah’s love for her children and their love for her. However, it found it was also a case “where for a long time it was just standing ready to have [Sarah] address some final issues and return the children, and frankly the kids have been in limbo longer than the law really statutorily looks at. I think that has been detrimental to the kids in this case.” It determined the children were adoptable based on the reports and, after considering the wishes of the children, adjudged its orders to be in their best interests, and found clear and convincing evidence that they would be adopted.
C. Analysis
The Department’s section 366.26 reports and the assessment reports constitute substantial evidence of clear and convincing evidence that James and Steven were likely to be adopted within a reasonable period of time, based on a thorough review of their cases by the Department and an experienced adoption assessor.
Sarah’s arguments are unpersuasive. She contends that at the hearing “the juvenile court considered only a scant amount of evidence as to whether it was likely the children would be adopted. There was no testimony on the subject whatsoever.” This ignores the court’s consideration of the reports.
Sarah next argues that the children “are not likely to be adopted within a reasonable period of time. Given the ages of the boys, [J.W.] is 11 and James is nine, both fall within the statutory definition of being difficult to adopt. (§ 366.26, subd. (c)(3).[)]” J.W.’s adoptability is not at issue in this appeal, and we do not find the “statutory definition” cited by Sarah in section 366.26, subdivision (c)(3). Regardless, her argument cannot replace the substantial evidence discussed herein.
Sarah also argues that “pursuant to section 366.26, subdivision (c)(3),” the boys’ affiliation as a sibling set “makes them difficult to place” and “reduces the likelihood of their adoption.” Section 366.26, subdivision (c)(3), gives a court the discretion to identify adoption as the permanent placement goal without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for a child, and continue the hearing for up to 180 days, if the court finds that a child has a probability for adoption but is difficult to place for adoption. (§ 366.26, subd. (c)(3).) The subdivision states, “For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” Thus, the subdivision does not require that a court find that a child is difficult to place, or that the likelihood of adoption is reduced, because of either age or sibling set status.
Sarah next asserts that “the Department’s analysis fails to take into account that the boys are difficult to adopt because they are part of a sibling set,” and makes certain contentions about the boys’ bonding to each other and their mother that “may” impede adoption or make it difficult for the boys to accept a new family. This argument invites us to reweigh evidence and speculate, which we will not do under a substantial evidence standard of review. Again, the assessment reports considered the likelihood of Steven and James being adopted together was 90 percent, and concluded the boys individually would not be difficult to place for adoption, and the section 366.26 reports recommended termination of parental rights based on these reports and other records. Sarah’s contentions are without merit in light of this substantial evidence.
III. Conflict of Interest
Sarah next argues that counsel for James and Steven should have withdrawn, and the court should have relieved him of his representation, because the attorney had an actual conflict of interest. This also is unpersuasive.
In In re Celine R. (2003) 31 Cal.4th 45, 58, our Supreme Court stated: “When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise. . . . After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises.”
Sarah also cites to the California Rules of Professional Conduct, rule 3-310, regarding actual conflicts of interest. In re Celine R., supra, 31 Cal.4th 45, discussed the application of California Rules of Professional Conduct, rule 3-310 and Welfare and Institutions Code section 317, subdivision (c), in the dependency context, concluding that “an attorney may not represent multiple clients if an actual conflict of interest between clients exists and may not accept representation of multiple clients if there is a reasonable likelihood an actual conflict of interest between them may arise.” (In re Celine R., at p. 57.) She also appears to cite to California Rules of Professional Conduct, rule 3-700 (which she misidentifies as “rule 3-7000”), which requires withdrawal by counsel if counsel knows or should know continued employment would violate the Professional Rules or the State Bar Act.
Accordingly to Sarah, “[i]n this case, the simultaneous . . . representation of all three siblings gave rise to an actual conflict of interest. The siblings were in different positions. While James continued to express his longing to return to [Sarah], his attorney discounted this statement. Counsel claimed James’s statement was ‘coached’ even though James had repeated it throughout the case. In addition, James was placed separately from his brothers and there was apparently a rift between James and [J.W.], whereas [J.W.] and Steven were in a strongly bonded relationship. [J.W.] was split off from his siblings in that they were to be put into the limbo of adoption and he was to lose them. Hence there was a direct and substantial conflict in the interests of each and every one of the siblings.”
We fail to see an actual conflict of interest in the representation of James and Steven based on these contentions. In any event, if an error were made, it was harmless. We review any error under the reasonable probability standard for error stated in People v. Watson (1956) 46 Cal.2d 818, 836. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.) For the reasons discussed in part II, ante, there is no reasonable probability that but for the error, the outcome regarding either child would have been different.
In light of our ruling, we do not address the department’s argument that Sarah lacks standing to raise conflict of interest issues as to J.W.
IV. The Beneficial Exception to Adoption
Sarah argues that the court erred by failing to apply the “beneficial relationship” exception to parental termination. This also is incorrect.
At the time of the section 366.26 hearing, section 366.26, subdivision (c)(1)(A), provided that the court was to terminate parental rights unless it found a compelling reason for determining that termination 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.” (Historical and Statutory Notes, 73 West’s Ann. Welf. & Inst. Code (1998 ed., 2008 Supp.) foll. § 366.26, p. 289.) Application of this “beneficial relationship” exception requires the parent to show “more than that the relationship is ‘beneficial.’ ” (In re Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) “[T]he 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.) “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 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.” (Id. at p. 575.)
Section 366.26, as amended effective January 1, 2008, includes this exception without substantive change as section 366.26, subdivision (c)(1)(B)(i). (Historical and Statutory Notes, 73 West’s Ann. Welf. & Inst. Code (1998 ed., 2008 Supp.) foll. § 366.26, pp. 288-290.)
Appellate courts are split as to whether abuse of discretion (see, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351) or substantial evidence (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576) is the appropriate standard of appellate review for rulings regarding this exception. For our purposes, it makes no difference because there was sufficient evidence under either test that the relationships between Sarah and her children were not sufficiently ongoing or so beneficial as to outweigh the “security and the sense of belonging a new family would confer.” (In re Autumn H., at p. 575.)
At hearing, the juvenile court specifically discussed the reasons it did not believe the “beneficial relationship” exception applied:
“There is a two-prong analysis. The court did consider the claim that Child Welfare Services did not properly assist the mother most recently in regards to providing visitation. More on balance had to do more with absenting herself from the area for her own personal needs. So the first prong of the test was not maintained and that she bore as much responsibility for those not occurring as anyone else.
“Then the second prong is that the parent must establish that the benefit of the child maintaining a child/parent relationship outweighs the benefit of the adoption, but when you read the case law in conjunction with that, it has a very high burden. In this matter, the court finds by clear and convincing evidence it does not outweigh the benefit of the adoption.”
The court’s findings are supported by a good deal of evidence. Sarah testified that she was presently living in Elk Grove, California, and that she had moved in May 2007 from Eureka to Vallejo “[b]ecause it wasn’t Humboldt County, in all honesty. There was more chance of employment, more chance to succeed.” When asked what was the problem that she was having in Humboldt County, she responded, “Honestly, just me. I—um, to be completely honest, it was just my own—my own depression, basically, here. Um, just because, um everything here hurts.” She acknowledged that she “missed some visits” around this time, and that she had difficulties securing a visitation place, because of a lack of identification and her failure to pay her bill. She could not recall if she had a visit with the children in July or August, thinking there may have been one, and did not remember if she had a visit in September. Furthermore, she testified that from the end of June to the end of August, she only had occasional phone calls with her children. Although she testified that she asked the Department’s social worker to coordinate calls, she did not testify that she requested in-person visits.
Sarah’s argument is based on other testimony she gave at the hearing, including that she planned to move to Pecos, Texas, to work and live as a motel innkeeper, which she had done recently in Vallejo, had tried numerous times to make telephone contact, but had been impeded by the lack of cooperation from a Department social worker, had moved out of the area to get work based on that social worker’s representation that she take the time to get housing and a job, which the social worker would explain to the court, that she had spent a lot of time and money to return to the area when she discovered that she was not allowed to visit because of the Department’s section 388 petition, and that she had had regular visitations for about eight months before moving that went well. Based on this testimony, Sarah contends her “inconsistencies in the last two months before the section 366.26 hearing” were “mitigated” by her previous record of consistency, impossibilities created by the Department, and the social worker’s reassurances, and that she “fully complied with the terms of the court’s orders with regard to visitation,” which “should constructively constitute maintenance of ‘regular visitation and contact.’ ”
Sarah’s testimony and argument does not alter her testimony that she left Humboldt County in May 2007 at least in part for her own reasons, that her absence from the county contributed to her sporadic contact with her children after that time, and that matters unrelated to any purported Department action also contributed to breakdowns in visitations. This is sufficient evidence in support of the court’s ruling under either an abuse of discretion of substantial evidence standard of review. Sarah’s theory of constructive compliance with the court’s orders is unsupported by legal authority, and unpersuasive in light of this evidence.
Sarah also ignores the section 388 petitions granted in September 2007, which indicated she left her children with persons unknown to the Department, took the children to Vallejo in violation of her visitation order, and told the children she would be taking them to Texas, where she had a job. These matters showed that at least some of the visitations that did occur were problematic.
Regardless, the court also concluded that the “second prong” of the exception was not met, that the benefit of maintaining the parent-child relationship outweighed the benefit of adoption. We will not repeat our discussion of the section 366.26 and assessment reports discussed in part II, ante. They provided ample evidentiary support for the court’s ruling that the beneficial relationship exception did not apply.
DISPOSITION
The findings and orders of the juvenile court are affirmed..
We concur: Kline, P.J., Richman, J.