Opinion
B299243
06-02-2020
In re L.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.K. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant M.K. Michael D. Randall, under appointment by the Court of Appeal for Defendant and Appellant A.C. Mary C. Wickham, County Counsel, R. Kristine P. Miles, Assistant County Counsel, and Brian Mahler, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. DK03536, DK03536D) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Juvenile Court Referee. Affirmed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant M.K. Michael D. Randall, under appointment by the Court of Appeal for Defendant and Appellant A.C. Mary C. Wickham, County Counsel, R. Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
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Mother M.K. and father A.C. appeal from juvenile court orders denying their Welfare and Institutions Code section 388 petitions to reinstate family reunification services with their son, L., and terminating their parental rights under section 366.26. Mother contends that the juvenile court generally abused its discretion and made three specific errors in adjudicating her section 388 petition: it failed to consider evidence relevant to the petition, it used an improper test to determine whether the petition was in L.'s best interests, and it improperly assessed her bond with L. Mother further contends that the errors related to the section 388 petition compel reversal of the section 366.26 order. She also argues that the section 366.26 order must be reversed because the juvenile court applied the wrong legal test and failed to recognize her significant parental bond with L. Father makes no argument aside from joining mother's arguments in their entirety.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm the orders.
BACKGROUND
Previous Petition
In February 2014, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of mother's three older children, L.'s half-siblings. The juvenile court took jurisdiction over the older children in March 2014 after sustaining subdivision (b) allegations that mother's and father's domestic violence, mother's substance abuse and mental health issues, and mother's failure to protect the children from father's substance abuse placed the children at risk of physical harm. The court placed the older children with maternal grandmother and ordered family reunification services for mother. Mother was ordered to complete a drug and alcohol program, submit to drug testing, and attend counseling and a domestic violence victims' program.
Father is not related to the older children and was not involved in the proceeding.
Current Petition
Mother gave birth to L. in October 2014. Approximately two weeks later, DCFS received a referral alleging that L. was at risk of neglect because mother was not in compliance with her plan to reunify with the older children. DCFS investigated and discovered that mother had attended only one parenting class, one counseling session, and three domestic violence sessions in the approximately seven months she had been receiving services. She also had failed to appear for at least 16 drug tests, and had tested positive for methamphetamines, amphetamines, and/or cannabinoids on four others. Mother agreed to drug test on November 5 and November 6. Both tests were positive for methamphetamines and amphetamines.
DCFS also spoke to father, who reported that he was no longer living with mother and had seen L. only once since his birth. Father was on probation as a result of the January 2014 domestic violence incident that precipitated the earlier section 300 petition concerning mother's older children. Father reported that he wanted to reunify with L., mother, and mother's older children, and was willing to attend parenting classes and counseling as well as the domestic violence and alcohol abuse programs mandated by his probation.
DCFS detained L. on November 13, 2014 and placed him with maternal grandmother and his older half-siblings. DCFS filed a section 300 petition on November 18, 2014. The petition alleged that parents' domestic violence and substance abuse, as well as mother's mental and emotional problems, placed L. at risk of harm within the meaning of section 300, subdivisions (a), (b), and (j).
At the November 18, 2014 detention hearing, the juvenile court found there was a prima facie case for detaining L. The court also found that father was the presumed father of L. The court ordered both parents to submit to weekly, on-demand drug tests. The court also ordered both of them to have weekly monitored visits with L. The court ordered DCFS to provide family reunification services. The court set the matter for an adjudication hearing on January 26, 2015.
Re-Placement
On January 6, 2015, maternal grandmother informed DCFS that she was no longer able to care for L. DCFS placed L. with foster parents J.B. and B.B. (the B. family) the next day.
Jurisdiction and Disposition
The contested adjudication hearing originally set for January 26, 2015 was continued numerous times before eventually being held over several days in March and April 2017.
On May 2, 2017, the juvenile court sustained four of the petition's eight counts, to which father pled no contest during the hearing: identical subdivision (b) and (j) counts alleging substance abuse by mother, a subdivision (b) count alleging substance abuse by father, and a subdivision (b) count alleging the parents engaged in domestic violence in January 2014, an incident that precipitated the February petition. It declared L. a dependent of the court and ordered him suitably placed; he remained with the B. family. The court ordered weekly monitored visitation for both parents, and family reunification services including drug and alcohol programming, domestic violence programming, counseling, and parenting classes. Mother also was ordered to undergo a mental health assessment. The court set the matter for a six-month review hearing on November 2, 2017.
First Review Report & Hearing
DCFS filed a status review report on October 19, 2017. It reported that L., now three, was generally doing well with the B. family and had developed a strong bond with J.B., whom he called "mommy." J.B. reported concerns about tantrums, as well as L. "not wanting to go to visits and becoming frustrated." The local school district evaluated L. and noted "some concerns" about his hyperactivity, but concluded that he did not qualify for special education services.
DCFS further reported that L. was "bonding well with his biological parents" and called them "mommy" and "daddy" during monitored visits. Father visited L. consistently, but mother "has not been consistently visiting the child during this period of review." Mother also frequently no-showed for her drug tests, and was arrested for driving under the influence on June 6, 2017. Mother enrolled in a drug and alcohol program on September 1, 2017. Father was generally compliant with his drug testing and had enrolled in counseling and substance abuse services. DCFS recommended that reunification services continue for both parents. DCFS later changed its recommendation in a last- minute information, citing the age of the case and length of time the parents already had been receiving family reunification services. The petition concerning L. was filed on November 18, 2014.
At the November 2, 2017 six-month review hearing, the court continued reunification services for both parents. It set the next review hearing for January 18, 2018.
Second Review Report & Hearing
DCFS filed an interim review report on January 11, 2018. It reported that both parents had been cutting their visits with L. short. A DCFS social worker "observed the child being very upset during his visit with mother," and mother "continues to struggle with boundaries" during visits. L.'s foster mother told DCFS that L. "gets upset when he is told that he needs to go to a visit and cries or makes excuses to try not to go. He tries hiding under tables or chairs to get away." She also stated that L. had begun grinding his teeth, having nightmares, and throwing more tantrums.
DCFS expressed concern with mother's progress toward reunification. She continued to miss drug testing sessions and had "minimum class completions" in both her parenting and domestic violence programming. She also had not completed her mental health evaluation. Father was in "partial compliance" with his case plan. He was participating in several types of classes and was partially compliant with visits, but had not enrolled in drug or alcohol programming or individual counseling. He continued to struggle with sobriety and left his sober living residence to move in with mother. DCFS recommended that the court discontinue reunification services.
In a last-minute information filed January 18, 2018, DCFS recommended that the court reduce parents' visitation to one hour per week, due to the "poor and inconsistent" quality of the visits and their apparent adverse effects on L.'s behavior. It also noted that mother had alleged that L. was being abused in his foster home. DCFS investigated and found no merit to the allegations.
The court continued the review hearing to April 19, 2018. DCFS filed a last-minute information on April 18, 2018. It reported that L. had begun receiving in-home counseling in late March 2018; his therapist noted that L. had "a lot of behaviors, including acting out and tantrums." DCFS also reported that mother had submitted to a mental health assessment, but opined that her delay of nearly a year in doing so "does not allow her service providers to use the information to guide their treatment and case planning." The mental health assessment stated that mother's diagnosis of multiple drug abuse and dependency was in remission, and that she had a "good" prognosis because she had been sober for "approximately 1 ½ years," a timeline contradicted by mother's June 2017 arrest for DUI.
The court held the review hearing over several partial court days in April and May 2018. On May 8, 2018, the court found that parents had been only partially compliant with their case plans and that returning L. to their physical custody would create a substantial risk of detriment to him. The court terminated family reunification services and set the matter for a section 366.26 hearing on September 5, 2018. The earlier order granting parents monitored visitation for two hours twice per week remained in effect.
Mother's Section 388 Petition
On August 28, 2018, mother filed a section 388 petition to change the May 8, 2018 order terminating reunification services. Mother asked the court to return L. to her care, or, alternatively, order further family reunification services and liberalized visitation. In the portion of the petition asking "What has happened since that order that might change the judge's mind," mother asserted that she "has continued to demonstrate her commitment to her sobriety through continued weekly drug testing, active participation in the 12 step program, and individual therapy." Mother reported a sobriety date of August 26, 2017, numerous negative drug tests, and "significant insight and appreciation for her addiction and alcoholism." Mother further reported that she was participating in monthly counseling and "has also continued to have regular and positive visitation with her child."
As to why "the requested order or action [would] be better for the child," mother stated: "Mother's first and foremost priority has been her commitment to her sobriety and this has allowed her to create a safe and stable home environment for the child L[.]. Mother has obtained and maintained a stable residence in close proximity to L[.]'s maternal grandmother, which would allow L[.] to continue to develop and maintain his family and sibling bonds. L[.] has sibling visits every Monday with his brothers . . . who all live in the home of the maternal grandmother. Mother has put significant thought into creating a safe and stable environment for L[.], down to the creation of a proposed daily routine that would seek to provide for L[.]'s daily needs while at the same time promoting his growth and development. Mother has located a Montessori preschool that L[.] could attend in the mornings for learning and socialization. (See attached 'Weekly Routine'). Mother also has maintained a loving and appropriate bond with L[.] through her regular and consistent weekly visitation. L[.] would only benefit from the opportunity to grow up with the love and support of his mother, siblings, and extended family members."
In an attached declaration, mother further asserted that she has "been stable and more than willing to raise my child. NO ON,E [sic] and I mean no one, could ever love and care for L[.] better or more deeply than me, his Mom. Our bond is unbreakable and blood deep." Mother also emphasized her sobriety and active participation as an officer in her Alcoholics Anonymous group. Mother attached a letter from her visitation monitor and Alcoholics Anonymous sponsor Loretta R., which stated, "I see the natural, loving, deep, familiar bond linking mother and child. It is demonstrated with ease and genuine [sic] by both her and L[.]. M[other] is a kind, gentle, loving parent that is positive and nurturing to L[.]."
The court set mother's petition for an evidentiary hearing.
Father's Section 388 Petition
Father filed a section 388 petition to change the May 8, 2018 order terminating reunification services on September 5, 2018. Like mother, he asked the court to "[r]eturn the minor to the father, or reinstate family reunification with unmonitored visitation." Father reported on his progress in completing his programming, attaining sobriety, and maintaining stable housing and employment since the May 8, 2018 order. Father asserted that changing the order would be in L.'s best interest because "It is in the best interest of the child to have a relationship with his biological father who has shown a period of sobriety and personal growth."
In an attached declaration, father represented that he had completed his case plan and visited with L. regularly. Father stated that he and L. engaged in activities including reading stories, playing games, and observing wildlife at a local pond. Father also stated that he accepted responsibility for his past behavior and mistakes. He further stated that he had "grown from this experience" and "hope[d] to be a good parent to my son and am willing to make any changes necessary to regain custody of my child." Father attached a reference letter from his work supervisors, who described him as "reliable, hard-working, honest, a team player, and shows good moral character." In another letter, father's brother asserted that father "has one-hundred percent changed everything in his life - on the outside and inside of himself."
The court set father's petition for a preliminary hearing on whether an evidentiary hearing was warranted.
Interim Reports and Hearings
The hearings on the section 388 petitions were continued numerous times before being held over a series of partial court days between February and July 2019. In the period between the filing of the petitions and the hearings thereon, DCFS filed a series of reports and last-minute informations apprising the court of developments in the case.
In its section 366.26 report, filed September 5, 2018, DCFS described mother's visits from January 2018 to April 2018 as "overall good." Father's visits in that time period "were not as consistent and he would cut his visits short or be on the phone during the visits." "During this period of supervision," presumably from May 2018 to September 2018, L. continued to do well with the B. family. DCFS provided the court with a letter from L.'s therapist, who stated "[n]oticeable behaviors have been reported to occur both before visits with birthparents and after visits," including "anger outbursts, tantrums, and bedwetting." DCFS reported that the B. family remained "engaged" with DCFS and hoped to adopt L. DCFS recommended that the court find L. adoptable and set adoption as his permanent placement goal.
DCFS filed an interim review report and a last-minute information addressing parents' section 388 petitions on October 2, 2018. It reported that a dependency investigator (DI) visited L. at the B. family's home on September 26, 2018. L. was well-groomed, developmentally on track, and had no visible marks or bruises. He talked to the DI, but "did not want to engage in conversation regarding visitation with his parents." J.B., L.'s foster mother, told the DI that the visits were "[t]he major disruption" in L.'s life. J.B. stated, "I would say for the past 3-4 months, he doesn't have a full meltdown around going to the visits, but they (the parents) started buying the extremely coveted gifts, and they keep them. This is when he gets to play with his toys, these special toys. When I'm telling him that there's a visit he's asking, 'Are my toys going to be there?' It's not about them, it's about his toys. He has residual effects. . . when he comes home he's extremely explosive in his temperament. He has meltdowns and is very clingy. . . . We weren't having any toileting issues, but when they upped the frequency of the visits he started having them." J.B. also told the DI that L. was "more visibly upset for visits with his dad."
L.'s therapist told the DI that she believed liberalizing mother and father's visitation "could be challenging." She explained, "There is reported behaviors before and after the visits. There are some struggles parenting and setting limits with him. . . . Even just a few hours cause such dysregulation for him. The parents [mother and father] are not even open to meeting with me, which is concerning because usually parents want to know what I'm doing with their child and how the caregivers are parenting. He [L.] doesn't say too much about his visits. He expresses a lot of anger, he acts out his anger but it doesn't seem directed toward [J.B.]. He's very affectionate towards [J.B.]. That's why I wanted to see how he is with his mom and dad to see how they are with him."
L.'s children's social worker (CSW), Christina Vartanian, told the DI that mother "is doing everything she needs to do as of now, but L[.] has been in placement pretty much his whole life. He's doing really well and it'll be devastating for him. He has a lot of tantrums after the visits. Recently he's been doing better because mom bribes him with buying toys, but she doesn't give him the toys. Before this he wouldn't want to go to visits. He doesn't want to visit with his dad." CSW Vartanian added that "the majority of mother's visits with the child are good, but that there have been a few incidents," including mother "making negative comments towards the caregiver throughout the visit" and "hyper focus[ing] on any scratches or marks that the child had on his body." Mother's Alcoholics Anonymous sponsor and visitation monitor Loretta reported that mother and L. were bonded and their visits were appropriate.
The DI also spoke to mother and father. Mother told the DI that she had secured housing and a job, and that she continued to attend counseling even after completing her court-ordered sessions. Mother told the DI her visits with L. were going very well; she described their imaginary play and told the DI that she rarely had to place L. in time out. Mother added, "I truly honestly in my heart of hearts know that his lifelong best interest in [sic] being returned to me, and being raised with his brothers." Father also reported that he had a steady job and housing, and that his visits with L. were "going great." He reported that he was in compliance with his case plan and remained sober.
DCFS recommended that the court deny both section 388 petitions. It commended both parents for their efforts, but observed that they had made significant progress only recently. DCFS also expressed "serious concerns about the detrimental effect on the child's wellbeing if he were to be removed from his current placement. . . . The Department believes that the child needs to remain in this stable home and achieve permanence through adoption with his caregivers, and that granting reunification services at this time may lead to the child lingering in foster care for many more years." It concluded that "changing the child's permanent plan at this time would not be in the child's best interest."
At the October 2, 2018 hearing, the court stated that it had read and considered DCFS's reports. The court continued the matter to October 12, 2018 for argument as to whether the 388 petitions should be set for hearing. It also authorized L.'s and mother's therapists to observe L.'s monitored visits.
On October 12, 2018, DCFS filed a last-minute information concerning parents' visits. It also attached an "observation form" completed by the foster family agency visitation coach documenting a recent positive visit between L. and mother. DCFS reported that the visitation coach observed "a good bond" between mother and L. at that visit. Another monitor stated that L. "expresses excitement to go to mother and that when the child sees mother, he often runs to her and gives a shout of joy." According to that monitor, "the child goes easily and comfortably between caregiver and mother, showing affection and excitement with both."
J.B. reported that L. told her after a recent visit with mother that he would get to go to mother's house in a few weeks. Once there, he told her, "I will get all my toys. I have to live there to have my toys. I'll get all the toys she already got and a whole lot more!" When J.B reminded L. that he did not visit mother's house "he became upset and stated that 'Mommy M[.] said I am going in a couple weeks. She has all my toys and I will go to her house. She said I wouldn't be sad because I would sleep in a bunk bed in her house and in the morning I can play with all my toys. The boys [mother's older children, who were under a legal guardianship with maternal grandmother] already live with Mommy M[.]." DCFS expressed concern "about the promises that mother is making to the child," and "that this is causing further confusion for the child and is causing a disruption in his relationships in the home."
The last-minute information also reported on father's recent visits. "Although minor continues to express his desire not to attend the visits, recently he appears more opened [sic] to the visits once he is reminded that he will have fun. Minor will bring up that his birth parents will take him to JC Penney and will buy him toys. Minor seems to look forward to his shopping trips. [Monitor] has witnessed when minor will demand to be taken to JC Penney and that his birth father buy him a toy. Birth father will compl[y], but also seems to use the shopping trip as a way to encourage minor to give him a hug and/or kiss him."
At the October 12, 2018 hearing, the court stated that it had read and considered the report. It set the section 388 and section 366.26 hearings for December 10, 2018.
DCFS filed a status review report on October 23, 2018. It reported that L. had started preschool and was doing well, though he was "more likely to act out at school when he has had a visit with Mother or Father." Mother's therapist, Dr. La Rae Neal, Psy.D., observed a visit on October 3, 2018. Dr. Neal wrote that L. "appeared to be very excited and happy while spending time with [mother] based on the smiles and laughter exchange [sic] between the two of them during the visit. Dr. Neal noted that L. was "socially active" and "loving and affection [sic] toward his mother" and was sad when the visit ended. Mother "was able to express her feelings, advise L[.] on right and wrong as well as proper manners while L[.] was able to express pure joy and a burst of physical energy release." Dr. Neal opined that the location of the visit, a shopping mall, was not appropriate, and that "it would be of benefit for L[.] to visit with his mother in a home environment without interruption from the public. . . . Once approved L[.] needs to start visiting in a safe and quiet environment where he is not confined and can familiarize himself with an environment he can soon call home."
DCFS filed a last-minute information on December 6, 2018. It reported that mother and father both continued testing negative for drugs and were consistently visiting L. L.'s therapist observed two visits between mother and L. The therapist observed L. "having fun" and opined that the visits "were good." She spoke to mother after one of the visits, and mother "expressed a lot of concern about the child's well-being in his foster home, specifically regarding a bump on the child's head. . . . [M]other was very focused on these concerns and [the therapist] had to redirect the mother many times." The therapist opined that "it is a good decision to have the visits monitored at this time." J.B., L.'s foster mother, told DCFS that L. was "going through new emotions over visits" and had a "flailing, kicking, screaming" meltdown and hit mother during one of them. L. later told J.B. he had a good time at that visit, though he also complained that the visits were too long and that he was too tired for them.
The last-minute information also included a lengthy report from one of father's visitation monitors. The monitor reported "no immediate concerns" about the visit, which occurred at a shopping mall. L. and father played games at an arcade, which L. enjoyed. Father picked up L. when they left the arcade, and he screamed that father was hurting him. Father put L. down and asked L. where it hurt, and L. "began to cry and throw a few tantrums and claim he wanted to go home with the caregiver." After L. calmed down with assistance from the monitor, father put him on his shoulders; L. "was happy and singing different holiday songs" as they walked around the mall. L. had a snack and took photos with father before the visit ended.
DCFS reported that it "continue[d] to have concerns about the detrimental impact on the child's wellbeing if he were to be removed from his current placement. Although mother's visits are reported to be positive in nature, the child appears to separate from the mother easily during visits, and there is a lack of the strong parent child bond, which is evident between the child and his current caregivers. The child's therapist reports that it would be in the child's best interest for the visits to remain monitored at this time and reported concerns regarding mother's fixation with injuries that the child has sustained, even when given a credible explanation for the injury. The child continues to resist visitation with father, and father appears to have difficulty parenting and redirecting the child during the visitation. Additionally, the child's pediatrician expressed concerns regarding the potential removal of the child from his current placement, stating that it may cause psychological damage to the child. The Department maintains the belief that the child needs to remain in this stable home and achieve permanence through adoption with his caregivers, and that granting reunification services at this time may lead to the child lingering in foster care for many more years."
DCFS attached the letter from L.'s pediatrician. It stated that L. "has biological hyperactivity, and responds well to a stable environment. To remove him from the only home he has ever known would endanger his ability to overcome the behavioral issues associated with it and could cause grave psychological damage to him. I am supportive of his foster parents [sic] adoption for the sake of the child."
At the December 10, 2018 hearing, the court stated that it read and considered the report. It continued the section 388 and section 366.26 hearings to February 15, 2019.
DCFS filed a last-minute information on February 19, 2019, in which it continued to recommend that the court deny parents' section 388 petitions. Parents continued to test negative for drugs, but had fewer visits with L. due to various illnesses and the holidays. Mother's visits went well; during one of them, L. ran to her and "gave her a big hug" when she arrived. L. was less enthusiastic about father's visits, telling the monitor that he did not like father and did not want to visit him. One of L.'s visits with father was terminated because L. threw tantrums and was inconsolable. During another visit, L. kicked and yelled at father, who "appeared to get upset." L. became happier when father placed him atop his shoulders and walked around the mall.
DCFS attached a "progress letter" from L.'s therapist to the last-minute information. According to the letter, "L[.] is observed to have a close bond with his foster parents and when he is upset quickly reaches out to them for comfort. L[.] is observed to enjoy being comforted and interacting with his foster parents, and responds well to their interventions when he is having anger outbursts or temper tantrums. It has been reported by foster parents when client is scheduled to have visits with his birthparents, he can become easily dysregulated and display behaviors. It's also been reported that after visits it can take a couple of days to get client back to his routine were [sic] foster parents observed less behaviors. If therapist acknowledges that client had or will be having a visit with birth parents he becomes upset and tells therapist to stop talking or that he won't talk. There was one parents visit during December 7 through January 6 where there were little to no behavior observed and reported by foster parents. There were some discussions of ending therapy as L[.] was achieving his therapeutic goals. Visits restarted January 6 and behaviors re-started and were reported by foster parents and observed by therapist during session." Due to the re-escalation of L.'s behaviors, the therapist referred L. to a psychologist for an evaluation.
The therapist also reported that mother asked to meet with her again to talk about L.'s behaviors. The therapist agreed to the meeting, though she noted, "When I met with mom originally it was not about L[.] at all. It was her feelings about the foster family and feelings about herself, nothing geared toward L[.] at all. And then at the end she said she's not having any issues with L[.]."
Section 388 Hearing
The section 388 hearing commenced on February 15, 2019. The court stated that it read and considered the DCFS report. It also admitted into evidence mother's Exhibit A, more than 60 pages of visitation observation forms prepared by the foster family agency. The forms documented visits monitored by the agency from July 23, 2018 through November 12, 2018 and contained many positive observations. For instance, on August 13, 2018, "Mother and Child were very excited to see one another and used all of their time to engage in age appropriate activities," and L. spontaneously told mother he loved her twice. On October 8, 2018, L. greeted mother "with great enthusiasm" and was "engaged and comfortable" during the visit. On October 15, 2018, L. said he wanted the visit to last 10 hours, and mother appropriately redirected his behavior when necessary. The forms also noted that on August 27, 2018, the visitation coach suggested that mother keep the toys she brought for L., and that mother advised L. on September 24, 2018 that she was his "real mom" because "he was 'in her tummy.'" Mother then told L. it was okay to have two mommies.
Mother's counsel called CSW Vartanian as a hostile witness. She asked Vartanian about the visitation observation forms, suggesting that Vartanian did not accurately summarize the forms when preparing the DCFS reports. When the hearing resumed on February 22, 2019, mother's counsel again pursued this line of questioning. She also attempted to ask Vartanian about mother's case plan and completion thereof. The court sustained a relevance objection by L.'s counsel to the latter line of questioning. Mother's counsel explained that she had been seeking to establish a change in circumstances, and the court stated that it sustained the objection "because that's already been addressed. So I don't think the completion of those programs that occurred prior to the reunification being terminated is relevant to the 388." The court permitted mother's counsel to question Vartanian about the length of mother's sobriety and mother's continuation of individual counseling.
When the hearing resumed on March 8, 2019, mother's counsel called mother's Alcoholics Anonymous sponsor and visitation monitor, Loretta. Loretta testified that L. hugged mother at "every visit" and often told her that he loved her. She further testified that mother had "done the work and shown her relationship to be there." Loretta also opined, in lay capacity, that mother was likely to remain sober because she had achieved more than a year of sobriety and remained active in her meetings and recovery.
Mother took the stand and testified about her visits with L. and the affection he showed her. She also testified about her continued participation in Alcoholics Anonymous. L.'s counsel objected to mother's testimony that she completed her domestic violence classes in April 2018; the court sustained the objection because "that occurred prior to the termination." When L.'s counsel objected on similar grounds to another question asked by father's counsel on cross-examination, father's counsel reframed the question to limit it to changes mother had witnessed in father since May 2018 before the court ruled on the objection. In response to a question about why it would be in L.'s best interest to live with her, mother stated, "Because I'm his biological mother. Nobody will ever, [ex]cept for me, love L[.] the way I can. I know how to raise good children."
Prior to the next hearing date, April 12, 2019, DCFS filed a last-minute information reporting that mother and father continued to test negative for drugs. It also reported that mother had asked multiple times for her home to be assessed as a visitation site. DCFS denied the requests on the ground that "she is not currently receiving FR services and that it would be misleading for the child."
The April 12, 2019 hearing session was continued to April 19, 2019. On that date, maternal grandmother testified that she had observed five recent visits between mother and L., and L. and his older half-siblings. She stated that L. was always happy to see his biological family and did not have tantrums unless J.B. was present.
Father took the stand and testified that, since May 2018, he had become more patient and thankful, extended his period of sobriety, and achieved success at work. He also testified that he had secured stable housing through his employer. He further testified that his visits with L. had been good. "We have fun together. We talk. We laugh. We play together." The court admitted into evidence several photographs of father and L.
On May 10, 2019, the day of the next hearing session, DCFS filed a last-minute information. It stated that both parents continued to maintain their sobriety and have good visitation with L. DCFS reported that mother's therapist, Dr. Neal, observed a visit between mother, L., and L.'s half-siblings on April 14. Dr. Neal opined that "the children appear to have a strong bond with each other as well as their mother, displayed by hugs, kisses and terms of endearment." She further opined that L. "displayed obvious signs that he did not want to leave" the visit, and that separating him from his biological family "at this point after allowing him to get to know and love his biological mother, brothers and grandmother it could have profound negative effects as he tries to process the 'why me' later in life which can cause low self-esteem, a general distrust of others, mood disorders (including depression and anxiety), socio-moral immaturity, and inadequate social skills." Dr. Neal recommended that L. "spend more time with his mother and his siblings as [sic] to make the transition from placement to home of parent."
The May 10, 2019 hearing was continued to June 7, 2019. Dr. Neal continued her testimony. She opined that mother was a fit mother, and that L. looked to her as a parent. Based on "the love, the affection, the con[versa]tions, the way they meet one another, the smiles, the happiness, [and] the laughter" she observed during mother's visits with L., Dr. Neal opined that mother and L. had a bond. She further opined that because L. "has already bonded and has a relationship with his mother and his brothers, I don't believe that removing him at this time [from his foster home] would be detrimental." Dr. Neal recommended that L. "transition" to mother's care, by spending more time with her and his siblings.
At the next hearing session, on June 21, 2019, DCFS's counsel called J.B. to testify. She testified that L. called her mommy, called B.B. daddy, and called her biological children his brothers. She and L. called mother "mommy M[.]." J.B. further testified that L. was reluctant to visit parents, especially father, and "tantrums more" and "is very clingy" after visits. She testified that L. told her that mother had told him J.B. "could not love him because I am not his real mom."
The court heard arguments on the section 388 petitions on June 24, 2019. Mother's and father's counsel argued that the petitions should be granted, because they had demonstrated changed circumstances and that their reunification with L. was in his best interest. As relevant here, mother's counsel argued that the visitation observation forms showed that mother had "completely turned her life around," that "all of the mother's visits were great," and that "mother's gone above and beyond to address the issues that brought her before this court." DCFS's counsel urged the court to deny the petitions. L.'s counsel also argued that the petitions should be denied. The court took the matter under submission, stating, "I'm going to take a look the [sic] everything in the case, everything in the case that's relevant, including the visitation logs and the case law that was cited [by the parties], as well as review the testimony."
The court denied both section 388 petitions on July 10, 2019. At the outset of the hearing, the court stated that it had reviewed "the file, the evidence, [and] the testimony." It then explained its ruling:
"The parents have been having visits and have demonstrated sobriety during the last time since May of 2018. The court does note that at this point the parents' interest and the minor's interest have diverged where reunification is no longer the focus.
"The burden is on the parents to demonstrate, one, a change in circumstance and, two, that if there is a change in circumstance, that any relief requested such as reinstitution of reunification or return is in the minor's best interest.
"All right. So in my review of the case, I do indicate that the parents, as I said, have been having visits for the past year and have demonstrated sobriety for a period of time that, after a significant period of drug and alcohol abuse, they have demonstrated sobriety. I will find there has been a change in circumstances.
"Second question is is it in the minor's best interest. [¶] . . .
"I note that the minor has never been in the parents' care, has - - they have never parented the child. While the visits have gone generally well, I - - I did not see anything indicating that the minor is significantly bonding with either parent. I note in the Friends of the Family [the foster family agency] report of September 24, 2018, the child showed confusion about who his mother is, whether it's the caretaker or the biological mother.
"The minor's therapist . . . indicated that the minor's behavior is better during the time when visits are not occurring. That is in the last minute information of February 15, 2019.
"There is a letter from [L.'s pediatrician] dated December 2, 2018, indicating that the minor has been in the care of the foster parents since 11 weeks of age; that L[.] has biological hyperactivity and responds well to a stable environment. The letter indicates to remove him from this home would endanger the stability to overcome the behavioral issues associated with and could cause grave psychological harm to him.
"So I - - I am faced with a choice between a situation where there is a home study and a family that is prepared to adopt and provide stability to the minor and biological parents who - - who do love the minor and wish to have the minor returned and have demonstrated sobriety. But I - - I cannot say that the parents have demonstrated that the requested relief would be in the minor's best interest.
"So based on the reasons that I have stated, the 388 motion will be denied.
"All right. And I do note that, I believe I had already said, that the minor has never been in the parents' care. They have never parented the child. They have demonstrated that they are interested in having the minor returned, but there was very little argument other than there was a comment it's always better - - []or words to this effect - - for the children to be with the biological parents which - - the court doesn't accept that at bare face value.
"All right. That is certainly a factor that could be argued or considered. But based on the totality of the circumstances, it's denied." Section 366.22 Hearing
After it ruled on the section 388 petitions, the court proceeded with the section 366.26 hearing. The court advised the parties that "this [section] 388 hearing would be incorporated by reference into the 26. Any evidence that we have heard has been in an ongoing hearing as one has been before it. It's incorporated by reference." The court additionally admitted into evidence a status review report that had not been admitted during the section 388 hearing. The report detailed issues L. was having at school, stated that there were no significant concerns with parents' visits, and continued to recommend adoption as L.'s permanent plan.
DCFS's counsel argued that "[t]here is no exception to adoption because if there were, if the parents could successfully make this exception argument, I think the court may have considered a different ruling on the 388." L.'s counsel joined in DCFS's recommendation. He argued that even though the visits had gone well, parents had not shown "that it would be [better] for L[.] for this relationship to continue." Mother's counsel argued that mother had established the parental benefit exception to adoption. She argued that she visited L. continuously and consistently, and had a strong bond with L. She further argued that L.'s confusion about "real mothers" was due to his strong bond with mother. Father's counsel joined mother's counsel's argument and further argued that L.'s positive relationship with the B. family could not be the sole basis for terminating parental rights.
The court declined to apply the parental benefit exception. "Visitation has been generally favorable, but the standard requires more than an incidental benefit. It must be something much more significant than an incidental benefit, and I have not observed a significant bond demonstrated between the minor and either parent in this case. [¶] I know there has been some agitation on - - with the minor when the minor has been having visitation. I described that previously. So I think it clearly falls short of the . . . compelling reason. And the situation that would be offered by the permanence and stability of adoption clearly outweighs any situation that the parents would be offering. And it's never been precisely clear to me what the situation would be that the parents would be offering." The court found that continuing jurisdiction was necessary, L. was generally and specifically adoptable under the clear and convincing evidence standard, and there were no exceptions to adoption. The court terminated mother's and father's parental rights and transferred custody of L. to DCFS for adoptive planning and placement.
Mother and father timely appealed.
DISCUSSION
I. Denial of Section 388 Petitions
Although both parents filed section 388 petitions and have appealed from the denial thereof, only mother has made substantive arguments. Father joined mother's arguments without specifically stating how they apply to him; he merely asserts that he and mother "are similarly situated," and "[t]he arguments set forth in appellant M.K.'s opening brief are applicable to appellant A.C."
Mother argues that the juvenile court abused its discretion when it denied her section 388 petition seeking reinstatement of reunification services. We conclude otherwise.
A. Legal Principles
Section 388 provides a parent the right to petition the juvenile court for modification of any previous order based upon changed circumstances or new evidence. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) A parent may seek relief under section 388 even after the juvenile court has terminated family reunification services. Section 388 thus acts as an "'escape mechanism'" for a parent facing termination of his or her parental rights by allowing the juvenile court to consider a legitimate change in the parent's circumstances after reunification services have been terminated. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Alayah J., supra, 9 Cal.App.5th at p. 478.) Viewed in the context of the dependency scheme as a whole, section 388 balances the parent's right to due process and the child's right to stability and permanency. (In re Alayah J., supra, 9 Cal.App.5th at p. 478.) "After reunification services have been terminated, it is presumed that continued out-of-home care is in the child's best interests. [Citation.] Section 388 allows a parent to rebut that presumption by demonstrating changed circumstances that would warrant modification of a prior court order." (Ibid.)
To obtain modification of an order under section 388, the parent must demonstrate, by a preponderance of the evidence, both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. (In re Alayah J., supra, 9 Cal.App.5th at p. 478; In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) In evaluating a section 388 petition, the juvenile court may consider factors such as "the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner." (In re Mickel O., supra, 197 Cal.App.4th at p. 616; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) The analysis is a searching one; the court may consider the entire factual and procedural history of the case (In re Mickel O., supra, 197 Cal.App.4th at p. 616). "In assessing the best interests of the child, 'a primary consideration . . . is the goal of assuring stability and continuity.'" (Ibid.) However, the court may not merely employ a "simple best interest test" of "compar[ing] the household and upbringing offered by the natural parent or parents with that of the caretakers." (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
We review an order denying a section 388 petition for abuse of discretion. (In re Alayah J., supra, 9 Cal.App.5th at p. 478.) The order is presumed correct, and the appellant bears the burden of demonstrating reversible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Moreover, when the denial of the petition turns on a failure of proof, the question for the reviewing court is whether the evidence compels a finding in favor of the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) It is thus "rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
B. Analysis
The juvenile court here found that both parents carried their burden of demonstrating a change in circumstances. Mother contends first that the court hampered her ability to also show that modification of the May 8, 2018 order was in L.'s best interest by erroneously excluding relevant evidence she proffered. Specifically, she argues that evidence pertaining to events prior to the May 8, 2018 order—her completion of certain elements of her case plan, and her observation of changes in father—was improperly excluded on relevance grounds.
"We review the evidentiary rulings of the juvenile court for abuse of discretion, and will not disturb those rulings in the absence of a showing of a manifest abuse of that discretion." (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249.) The court did not abuse its discretion by determining that testimony regarding dates of long-ago events well-documented in the sizeable written record was not relevant. In any event, the juvenile court permitted mother's counsel to elicit evidence about the length of mother's sobriety, which predated the termination of family reunification services. Moreover, it is unclear how mother was prejudiced by the exclusion of the challenged evidence, which her counsel asserted was probative of changed circumstances; the court found that mother carried her burden on that issue.
The same rationale applies to father, to the extent his joinder of mother's arguments constitutes a contention that the court erred in excluding mother's testimony about the changes she had observed in father. We further note that father's counsel narrowed the scope of his question on this issue before the court ruled on the objection.
Citing to In re Mickel O., supra, 197 Cal.App.4th at p. 616 (emphasis added), which states that the juvenile court "may consider the entire factual and procedural history of the case," mother contends the juvenile court was obligated to consider the excluded evidence. This contention is not persuasive. First, "may" is permissive, not mandatory; the juvenile court is not obliged to consider portions of a case's factual and procedural history that do not bear on the inquiry at hand. Second, the court expressly stated that it had reviewed "the file, the evidence, [and] the testimony" as it considered the section 388 petitions. The dates mother completed various portions of her case plan were within the file, which the court repeatedly indicated it had read and considered, and her opinion of father's behavior was not relevant to her section 388 petition.
Mother suggests that "parents would likely never be able to prove that reinstatement of reunification services would be in the child's best interests" if evidence predating termination of services was not relevant. She asserts that "the change in circumstances itself often occurs over time and, as here, began before reunification services were terminated." This argument is not pertinent here, as the court found that mother proved changed circumstances. She also contends evidence prior to termination of services is relevant to "fully discern the strength and depth of the parent-child bond." Her counsel contended the evidence at issue was demonstrative of changed circumstances, however. In short, we are not persuaded that the juvenile court abused its discretion by sustaining L.'s counsel's evidentiary objections.
Mother next contends the juvenile court erred by "engaging in a 'simple best interest test,' as opposed to considering all of the relevant best interests factors in its calculus." She points to the court's statement, "I am faced with a choice between a situation where there is a home study and a family that is prepared to adopt and provide stability to the minor and biological parents who - - who do love the minor and wish to have the minor returned and have demonstrated sobriety," as evidence that it "was employing at least some derivation of the simple best interest test."
As we noted above, the "'simple best interest test'" is a rudimentary comparison between "the household and upbringing offered by the natural parent or parents with that of the caretakers." (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Such an analysis is not a valid basis for concluding a child's best interests would be served by placement with non-parental caretakers. We do not find the court applied a simple best interest test here. As mother herself recognizes, "the court did discuss other facts when issuing its ruling," including the opinions of L.'s therapist and pediatrician. The court's remarks demonstrate a proper emphasis on L.'s paramount need for stability and continuity at this late stage of the case. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503, 527 ["after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability"].)
Mother next contends that the juvenile court's conclusion that L. was not significantly bonded to her was unsupported by substantial evidence and instead rested on the improper basis that L. was confused about who his mother was. The court indeed stated that it "did not see anything indicating that the minor is significantly bonding with either parent." Substantial evidence supported this finding, including L.'s regressive behaviors before and after visiting parents and his heavy focus on the toys parents brought him. Mother points to other evidence showing that she and L. had a good bond, but the weight to accord that evidence versus the evidence to the contrary was a question for the juvenile court that we do not revisit.
The court also remarked that L. "showed confusion about who his mother is, whether it's the caretaker or the biological mother." Mother contends this demonstrates a significant parent-child bond, because L. viewed both her and J.B. as his mother. However, the record shows that mother sowed the confusion by telling L. that she was his "real mom" because "he was in her tummy" and that J.B. could not love him because she was not his real mom. The court thus reasonably could conclude that L.'s confusion demonstrated that the relative strength of his bond to J.B. exceeded that of his bond with mother. (See In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447.)
Mother also argues that the court's "conclusion mother had never 'parented' the child was flawed." It was not. L. was detained from parents when he was approximately four weeks old, and he was placed with the B. family when he was approximately 11 weeks old. The B. family provided for L.'s medical, emotional, and physical needs. In contrast, mother spent the first several years of L.'s life out of compliance with her case plan. Mother subsequently remedied her behavior, and acted parentally toward L. during her visits with him, but she never progressed beyond monitored visitation. L. easily separated from her and continually exhibited negative behaviors after the visits, which his therapist recognized and worked to remediate. Though she spoke to the therapist on one occasion, mother did not demonstrate an interest in learning about L.'s therapy or how to better meet his needs. Mother is correct that a "'primary attachment'" is not necessary to demonstrate a parent-child bond (In re S.B. (2008) 164 Cal.App.4th 289, 299), but the court did not err in concluding more was required than mother showed here.
Mother contends the errors alleged and discussed to this point were cumulatively prejudicial. Because we conclude the court did not misapply the law or otherwise abuse its discretion in denying her section 388 petition, we need not address this contention.
Mother finally contends the court abused its discretion generally because she "met her burden of establishing that reinstating reunification services for her would be in L[.]'s best interest." We disagree. L. has been under the supervision of the juvenile court and in the care of the B. family for the vast majority of his life. Substantial evidence demonstrated that he had significant emotional and behavioral difficulty with even monitored visitation with mother. When visits were disrupted during the holidays, L. progressed sufficiently that his therapist considered whether her services were no longer necessary. When visits resumed, however, L. regressed to the point of needing a psychological evaluation. Mother's discontinuation of substance use and her maintenance of sobriety are commendable, but shed little light on the strength of her bond with L. or how his interests would be best served in her care. L.'s "best interests are not to further delay permanency and stability in favor of rewarding Mother for her hard work and efforts to reunify. Mother's best interests are simply no longer the focus" after reunification services have been terminated. (In re J.C., supra, 226 Cal.App.4th at p. 527.)
II. Termination of Parental Rights
Mother argues that the order terminating her parental rights must be reversed because the juvenile court misapplied the law when it considered the parent-child bond exception to adoption. We disagree.
A. Legal Principles
"The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful." (In re Marilyn H., supra, 5 Cal.4th at p. 307.) Once the juvenile court terminates reunification services and determines a child is adoptable, it "must order adoption and its necessary consequence, termination of parental rights, unless one of the specified" exceptions stated in section 366.26, subdivision (c)(1) "provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Breanna S. (2017) 8 Cal.App.5th 636, 645.)
One exception—the beneficial parental relationship exception—applies if the "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 336.26, subd. (c)(1)(B)(i).) The parent bears the burden of establishing the existence of the exception, which applies in only "extraordinary" cases. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.)
The juvenile court considers two issues when determining whether a parent has met her burden to establish the beneficial parental relationship exception. First, the court examines the regularity of the parent's visitation and contact between the parent and child. (In re Grace P. (2017) 8 Cal.App.5th 605, 612 (Grace P.).) The court does not inquire into the quality of the visitation at this juncture; it simply evaluates whether the parent consistently had contact with the child. (Id. at p. 613.) Second, the court considers whether the parent has proven that the bond she shares with her child "is sufficiently strong that the child would suffer detriment from its termination." (Id. at p. 613.) This requires "a qualitative, more nuanced analysis" taking into account "numerous variables, including but not limited to: 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 parent and child, and 4) the child's unique needs." (Ibid.)
To meet her burden of proving the existence of a beneficial parental relationship, mother must do more than show frequent, loving contact, pleasant visits, or an emotional bond with L. She must show that her relationship with L. "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We review a court's refusal to find a statutory exception to adoption under the substantial evidence or abuse of discretion standards of review, depending on the nature of the challenge. Courts generally "apply 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. [Citations.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) "[B]oth standards call for a high degree of appellate court deference." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) Mother restricts her challenge to the second issue, whether there is a compelling reason for finding that termination would be detrimental to L.
Courts have applied different standards of review when determining whether an exception to adoption applies. Some apply the substantial evidence standard, others use the abuse of discretion standard or a combination of both, and still others have required evidence compelling a finding in favor of the parent as a matter of law. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [substantial evidence]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion]; In re Collin E. (2018) 25 Cal.App.5th 647, 663 [combination]; In re Breanna S., supra, 8 Cal.App.5th at p. 647 [matter of law].) The Supreme Court has granted review to determine the appropriate standard of review in this context. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) On this record, we would affirm under any standard. --------
B. Analysis
Mother first contends the court "inject[ed a] legally irrelevant factor into the weighing process": "whether return of the child to the parent's home would be detrimental to the child." Specifically, she points to the court's remarks that "the situation that would be offered by the permanence and stability of adoption clearly outweighs any situation that the parents would be offering."
The court did not err. Mother bore the burden of showing that her relationship with L. "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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court's comments speak directly to that burden, and mother's failure to carry it.
Mother next contends the trial court erred by failing to take into account the possibility of a legal guardianship, "whereby L[.]'s positive attachment to mother could be preserved." She relies on In re Scott B. (2010) 188 Cal.App.4th 452, but that case is inapposite.
In In re Scott B., the minor, Scott, was eleven years old. "He was nearly nine years old when he was placed with his foster family and thus had spent nearly all of his life living with Mother. After he was removed from her care he had consistent weekly visits with her and he looked forward to the visits." (In re Scott B., supra, 188 Cal.App.4th at p. 471.) Scott's court-appointed special advocate reported that Scott and his mother had a very close bond and that disrupting that relationship would be detrimental to Scott. (Ibid.) Scott also "repeated[ly]" insisted that he preferred to live with his mother. (Ibid.) The court of appeal concluded that these facts presented "a compelling reason for finding that termination of parental rights is detrimental to the minor." (Ibid.) The court further concluded: "Mother provides stability to Scott's life. That is what adoption is supposed to do, but it may not in this case. Given Scott's strong emotional attachment to Mother, his continued precarious emotional state, and his history of regressing and running away when he is stressed, there is a very good chance that he will have a meltdown if his usual frequent visitation with Mother does not continue. The only way to avoid that serious emotional and developmental setback and ensure that Scott's usual visitation with Mother continues is by court order. The only way to have such an order is to have Scott's permanent plan be legal guardianship or long term foster care. Between the two plans, legal guardianship is the Legislature's stated preference as it provides much more stability for a minor child. . . ." (Id. at p. 472.)
The facts of In re Scott B. are distinguishable from those here. L. is only five years old. Unlike Scott, who spent nine of his 11 years living with his mother, L. has spent all but approximately four weeks of his life outside mother's care. Unlike Scott, who immediately had consistent visitation with his mother, L.'s visitation with mother did not become consistent until the case had been going on for years. While L. may have been excited to see mother and engaged with her during the visits, the record contained ample evidence that the visits had a deleterious effect on his emotional state and behavior. His informal advocates, including his therapist and his pediatrician, believed that visitation with mother was detrimental to L. Adoption, not legal guardianship, will afford L. "the best possible opportunity to get on with the task of growing up by placing [him] in the most permanent and secure alternative that can be afforded [him]." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)
Mother next argues that the juvenile court erred by "concluding the parent-child bond was not significant enough for the exception to apply based on a comparison of L[.]'s stable placement with 'any situation that the parents would be offering.'" Incorporating her earlier argument, she further contends that the court impermissibly rested its conclusion on L.'s confusion about his mother and the fact that he not lived with her. We reject these contentions for the same reasons we rejected them above.
"[F]or the 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." (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) The relevant factors—the age of the child, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, and the child's unique needs—do not demonstrate an emotional attachment of that nature. L. is five years old and has spent virtually all of his life outside mother's custody. He and mother had positive interactions during many of their visits, but the overall effect of the visits on L.'s emotional and behavioral health was negative; L. misbehaved and exhibited signs of anxiety before and after visiting mother. L.'s hyperactivity also rendered his needs for stability and consistency more pressing than those of most children. Indeed, L.'s pediatrician opined that removing him from the only home he had ever known "could cause grave psychological damage to him."
Mother maintains that "[t]his was an archetypal case for the application of the parent-benefit exception to adoption," and that the evidence compels a finding in her favor as a matter of law. For the reasons we have already explained, we disagree. The additional cases mother cites, In re Amber M. (2002) 103 Cal.App.4th 681, and In re S.B., supra, 164 Cal.App.4th 289, are distinguishable and do not persuade us otherwise. Amber, a three-year-old, had spent seven months living with her mother, and a psychologist and Amber's therapist both concluded she and her mother shared a "'primary maternal relationship'" that would be detrimental to sever. (In re Amber M., supra, 103 Cal.App.4th at p. 689.) In In re S.B., the father was S.B.'s primary caregiver for three years, approximately half her life. He immediately complied with every aspect of his case plan, and S.B. displayed a strong attachment to him: "[s]he was unhappy when the visits ended and tried to leave with [the father] when the visits were over." (In re S.B., supra, 164 Cal.App.4th at p. 298.) The salient facts of In re Amber M. and In re S.B. are simply not present here.
DISPOSITION
The July 10, 2019 orders denying mother's and father's section 388 petitions and terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.