Opinion
E071379
02-27-2019
In re M.M. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jodi L. Doucette, Special Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J267979 & J267980) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jodi L. Doucette, Special Counsel for Plaintiff and Respondent.
Defendant and appellant A.B. (mother), and S.M. (father; collectively, parents) are the parents of Ma.M. (born in 2009) and Mj.M. (born in 2014). Mother appeals from the juvenile court's order summarily denying her Welfare and Institutions Code section 388 petition and the court's section 366.26 order terminating her parental rights. Plaintiff and respondent San Bernardino County Children and Family Services (CFS) requests that we reject mother's contentions and affirm the trial court's findings and orders. For the reasons set forth below, we affirm the court's denial of mother's section 388 petition and the termination of mother's parental rights under section 366.26.
Father is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. PRIOR CFS CASES
This case presents mother's third dependency case. Prior child welfare history records show that in 2012, parents had an open case of neglect, caretaker absence, and incapacity. From December 5, 2012, to October 29, 2015, parents had another open FR case when Mj.M. was born; she was born addicted to drugs. Mother denied drug usage even when Mj.M. tested positive for methamphetamine. Allegations of caretaker absence/incapacity and general neglect were substantiated. In 2012 and 2015, mother completed an inpatient drug program at "IVRS," and eventually reunified with the children. Father never reunified due to his incarcerations and other reasons. Paternal grandmother reported that after the case was closed in September 2015, mother had resumed using drugs by December.
B. DETENTION HEARING AND SECTION 300 PETITION
On October 2, 2016, CFS received a referral regarding mother's behavior involving the children. The reporting party stated that mother would "rip the children out of the home," take them with her to drug houses, drive with them under the influence, pull their hair, and throw them down calling them "niggers" and "bitches." The reporting party stated that this behavior had been ongoing for a while but had progressively gotten worse within the last four months. The reporting party also saw bruises on the children's arms from mother grabbing them too hard. It was also reported that mother did not provide adequate food to the children. A few days prior to the report being made, law enforcement had been called because of a fight between mother and another female occurring in front of the children.
CFS investigated the allegations and determined that mother was using alcohol, methamphetamine, and other drugs on a daily basis. Mother had returned to her old behaviors: she was aggressive, was physically abusive to the children, did not provide the children with adequate food, left the children with random people the children did not know, and allowed the children to witness violence between mother and her boyfriend. Mj.M. stated that mother had been talking "weird," yelled, and said strange things. Mj.M. admitted that mother had called her bad names like "dumb." The children had been residing with the paternal grandmother, off and on. Mother admitted to being homeless, living with friends or at her boyfriend's mother's home at times. Mother could not provide the social worker with an address or a telephone number because she broke her phone in a fight with her boyfriend.
On October 25, 2016, when mother was asked to take a drug test, she admitted to using Narco, a narcotic, which was not prescribed to her.
On October 27, 2016, CFS filed a petition pursuant to section 300, subdivision (b), alleging domestic violence, substance abuse, an unsafe lifestyle, lack of parenting skills, and homelessness. The petition included allegations under subdivisions (g) and (j), regarding father; specifically that father failed to reunify with the children once before due to incarceration and that he remained in custody with an unknown release date.
As to mother, the section 300 petition alleged the following:
"b-1 The mother . . . engaged in domestic violence which places the children . . . at risk of harm and injury.
"b-2 The mother . . . has a substance abuse problem, which prevents her from being able to adequately parent her children . . . .
"b-3 The mother['s] unstable, unsafe lifestyle and lack of knowledge and parenting skills place[] her children at substantial risk for being abused;
"b-4 The mother . . . is currently homeless and unable to provide a stable home for the children, thus placing the children's safety and overall wellbeing at risk."
The petition indicated that mother believed she had no Indian ancestry.
The petition also included mother's criminal history. In 2005, mother was convicted of assault under Penal Code section 240, but found not guilty of assault with a deadly weapon under Penal Code section 245, subdivision (a). In 2010, mother was convicted of fraud to obtain aid under Welfare and Institutions Code section 10980, subdivision (c)(2).
C. DISPOSITION AND JURISDICTION HEARINGS
CFS's report filed for the November 28, 2016, disposition/jurisdiction hearing indicated further investigation found mother often would sleep all day, and mother admitted that she and her boyfriend drank alcohol. Mother denied a drug problem. Mother lived on and off with the children at the paternal grandmother's home for eight years. Witnesses saw mother drinking and driving with the children in her vehicle.
Mother did not have any contact with the children since they were removed by CFS. At the hearing on November 28, mother claimed that she had received no services. The social worker's reports and mother's signed acknowledgment, however, showed that mother received the list of service mother denied receiving; mother failed to pursue services. Mother was ordered to drug and alcohol test that day, and that if she failed to test, it would be deemed a positive test.
The parties agreed to mediation. The case was continued to December 7, 2016, for a pretrial settlement conference.
At mediation, the parties agreed to the following amendments:
b-1: "The mother has a history of being involved in an emotionally abusive relationship, placing the children at risk."
b-2: "The mother . . . has a history of substance abuse based upon previous CFS case, placing the child[ren] at risk."
b-3: "CFS will dismiss."
b-4: "The mother . . . has a history of unstable housing, placing the children at risk."
At the continued hearing on December 7, the juvenile court read and considered the CFS reports and accepted the allegations agreed upon by the parties at the mediation as true. The court also found that the parents had not complied with initial services offered by CFS and had not made progress since detention. In fact, progress was absent. Reunification services were again ordered. Mother was provided written referrals, particularly for drug and alcohol treatment; mother signed the written referrals. The court ordered mother to attend a drug treatment plan.
D. SIX-MONTH REVIEW HEARING
On June 7, 2017, the parties agreed to continue the review hearing to June 19, 2017, to allow for CFS to complete its report.
In the status review report filed on June 16, 2017, CFS recommended no change in status. Although mother had completed parenting and domestic violence classes, and an anger management program, she had not attended individual counseling. Mother had also failed to drug test regularly. However, CFS admitted "[t]he referral for substance abuse testing appeared to be overlooked." Mother was enrolled in substance abuse testing on June 5, 2017.
On June 19, 2017, the juvenile court continued the children as dependents of the court and continued their placement in the home of paternal grandmother. The court allowed for liberalized visitation of unsupervised and overnights when appropriate, and after mother drug tested clean four times. Mother was ordered to drug test that day. The case was set for a 12-month review hearing under section 366.21, subdivision (f).
The order refers to both Ma.M. and Mj.M. as "the child" instead of "the children." --------
F. TWELVE-MONTH REVIEW HEARING
In the status review report filed November 3, 2017, CFS reported that on June 19 mother was asked to leave the drug test site after she became combative; it was suspected mother had tried to provide a false urine test. Mother tested positive for methamphetamine on July 7, 2017, and failed to appear for nine drug tests from July 19, 2017 to October 27, 2017.
Paternal grandmother reported that in the prior three months, visits had become sporadic. There were no issues and the children enjoyed the visits that did occur. Mother was attending individual counseling where she had made some progress but had canceled three scheduled appointments and was late to two. The counselor believed mother's prognosis was "fair to good" but she should enter into an anger management program. Mother needed 12 additional appointments to accomplish her goals. CFS was recommending termination of services.
Mother's counsel set the matter for a contested hearing for December 13, 2017. The court stated: "Ma'am, you're ordered back 8:30 in the morning on December 13. Make sure you're here on time because I take the bench right at 8:30. If you fail to appear, we will proceed without you present. So December 13, 8:30, back here; okay?" Mother responded, "Okay. Thank you."
On December 13, 2017, CFS advised the court it had changed its recommendation and it "conced[ed] the issue regarding reasonable services." The juvenile court ordered that immediate referrals be provided to parents, and scheduled the 18-month review hearing for April 25, 2018.
F. EIGHTEEN-MONTH REVIEW HEARING
In the status review report filed April 11, 2018, the recommendation was to terminate services and set a permanent plan for adoption.
In February 2018, mother's therapist told the social worker that mother had completed 16 sessions, but that she was "actively using." He recommended mother enter an inpatient treatment facility, and afterward attend additional anger management classes. The social worker referred mother to an inpatient program; mother was denied entry into the program because it was discovered mother was pregnant. Mother was also referred for anger management classes to address new issues.
Mother's visits with the children during this reporting period were sporadic. Mother attempted to change visitations citing car trouble or traffic, and expected paternal grandmother to reschedule the visits. In January 2018, after not visiting for three weeks, parents visited with the children at a fast food restaurant. However, paternal grandmother had to end the visit early because mother was "cussing" at father. When paternal grandmother asked mother to change her language in front of the children, mother began "cussing" at paternal grandmother as well. Police were called and responded to the restaurant. It was then required that visitation occur at a visitation center.
Counsel for mother requested a contested hearing. The juvenile court ordered mother back to court and stated: "I'll order you to appear Tuesday, May 29th, 8:30. If you fail to appear on time, we will proceed without you present, and you already know what the recommendation is, so it's really important that you are here on May 29th at 8:30; okay?" Mother responded, "Yes, Ma'am. Thank you."
At the contested section 366.26 hearing on May 29, 2018, mother testified. Mother enrolled in a residential drug program on April 10, 2018. Mother admitted to using drugs early in April 2018. It was her third time in the same inpatient drug program at IVRS since 2012; she had started using methamphetamine again within a year of completing the first program. Mother entered the program again in 2014, after the children were removed when Mj.M. tested positive for methamphetamine at birth. The children were returned to her in October 2015. In the instant case, the children were removed in October 2016. Mother admitted to using methamphetamine since she was 12 years old.
The juvenile court indicated: "Not only do I have to find that the parents are making significant and consistent progress, either in the substance abuse treatment program or in establishing a safe home for return, I can't make that finding . . . because Mother's recent substantial progress has been that, very recent, unfortunately; only since April 10th. . . . [¶] I also have to find a substantial probability that the children will be returned within 24 months of removal, and I can't find that based on the history in this dependency and the prior dependency." The court viewed mother's visitation with the children optimistically, even though it had been sporadic, but the court could not find that mother made significant and consistent progress in resolving the problems that led to the removal of the children. The court additionally could not find that mother was able to complete substance abuse, especially since it was mother's third time in the same program.
The juvenile court found mother failed to make significant progress in her case plan, terminated reunification services, and set the matter for a section 366.26 hearing. The court ordered parents back to court for the section 366.26 hearing on September 26, 2018. The court warned as follows: "Make sure that you are here on time, otherwise we will proceed without you present." Mother continued to receive supervised visits.
G. SECTION 388 PETITION
On August 6, 2018, mother filed a section 388 petition requesting a change to a court order. Mother had completed additional parenting and anger management classes. She completed an inpatient program on June 9, 2018, and had enrolled in an outpatient program where she continued to drug test. Mother indicated a changed order would be better for the children because they would be raised by their mother. Her participation in programs was evidence of her dedication to sobriety, mother included documents showing her progress. Mother's petition was denied without a hearing: it did not state new evidence of a change of circumstances and a change in the order would not promote the best interest of the children. Mother did not appeal the denial.
H. SECTION 366.26 HEARING
On September 26, 2018, mother failed to appear for the section 366.26 hearing, even though she was given oral and written notice.
Mother had completed her inpatient treatment on June 18, 2018, however, shortly thereafter mother began exhibiting "old behaviors," as reported by paternal grandmother. These included short, unannounced and sporadic visits and an angry attitude. A visit on August 26 was terminated early because mother yelled at a neighbor's child.
The social worker recommended terminating mother's parental rights with adoption as the permanent plan. The children had been with paternal grandparents since October 25, 2016; paternal grandparents had been approved for adoption. Mother's counsel objected to termination of parental rights, but had no affirmative evidence.
The juvenile court terminated parental rights and selected adoption as the permanent plan.
DISCUSSION
A. SECTION 388 PETITION
Mother argues that the juvenile court "abused its discretion in denying her section 388 petition for modification without an evidentiary hearing given that such petitions must be liberally construed in favor of their sufficiency." Preliminarily, CFS argues that "mother's section 388 petition has been forfeited by failing to include this issue in her notice of appeal." We, however, need not address the forfeiture argument because mother's argument fails on the merits.
In this case, on August 6, 2018, mother filed a section 388 petition to modify the juvenile court's order made on May 29, 2018. Mother requested reinstatement of services for six months and to halt the section 366.26 permanent plan hearing. The same day, the court denied mother's petition. The court found that circumstances had not changed and the proposed change order did not promote the best interests of the children.
On appeal, mother argues that her circumstances had changed because she had continued her sobriety by drug testing clean three times in July; completed parenting and anger management classes; completed her 60-day inpatient drug program, and had attended AA/NA meetings for one month; and had enrolled in an outpatient program. All of these changes occurred after reunification had been terminated.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held"].) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) We review the court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
In this case, mother contends that she presented a prima facie case of changed circumstances. We disagree. Here, on the eve of losing her children—after receiving 18 months of reunification services—mother decided to address her drug addiction. Mother began her 60-day inpatient "clean up" program just prior to the 18-month review hearing. The court, however, was not impressed given that mother waited so late to start addressing her issues, and the unlikeliness of the program's success since mother had participated in the same inpatient program three times, relapsing each prior occasion. The IVRS inpatient program had not been successful the past two occasions or in the long term for mother. There was no evidence to indicate that the program would be successful now. Mother had used drugs for 19 years; a few months of being clean did not qualify as "changed" circumstances. It only showed that mother's circumstances were "changing," at best. Merely changing circumstances is insufficient. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
At the 18-month review hearing, the court stated: "I can't find that they made significant and consistent progress in the prior 18 months in resolving the problems that led to removal, nor can I find the capacity and ability to complete substance abuse. [¶] The program could be completed, but the objectives of the plan is where I'm having trouble with, given that this is the third time, for the mother anyway, in the program."
We agree with the court's assessment and find that mother's circumstances were merely changing, and had not changed, as required under section 388. Therefore, we discern no abuse of discretion in the juvenile court's denial of a hearing on mother's section 388 petition.
Even if mother overcame the first prong, she failed to address the second prong in her petition—that the best interests of the children would be served by reversal of the order to set a permanent plan of adoption. The record showed the opposite. In the termination of services recommendation, the social worker opined: "Had [mother] engaged earlier and shown the motivation that [she is] currently showing, the result may have been different." Here, mother had not even graduated to unsupervised visits. Therefore, mother had not parented the children since they were removed from her custody almost two years prior.
Moreover, in the report of April 2018, CFS provided an update to the court regarding the children's placement in the prospective adoptive home of the paternal grandparents. The children were adjusting well and developing a bond with them. The prospective adoptive parents reported that they were attentive to the children's medical, social and educational needs, and that the children were adjusting well to their new schedule. The report stated:
"[The children] have thrived in [their] placement with the paternal grandparents. [Mj.M.] was provided with SART services for 4-5 months after the caregiver noticed that she was unusually unresponsive when she tried to engage [Mj.M.] in play. In addition to the SART services that addressed socialization, the caregiver took [Mj.M.] to activities in the community in order to provide opportunities to socialize, as [Mj.M.] was too young to attend Head Start. [Mj.M.] is a completely different child now. She is friendly and loves to engage with others. [Ma.M.] is also doing well in an area that previously was not going well. She struggled with reading in school. The caregiver began buying her books that interested her, and now [Ma.M.] enjoys reading and is excelling in school. She is reportedly 'at the top of her class.' "
The social worker stated: "This is also the second removal for [the children], who have now been in their current placement for four months. These children deserve the permanency that their caregivers are able and willing to provide."
Mother's reliance on In re Jeremy W. (1992) 3 Cal.App.4th 1407, is not persuasive. There, the appellate court held that given the lack of explanation for the summary denial, the court looked to the record to determine whether " 'a liberal interpretation of the proffered evidence of changed circumstances might not justify modifying the order terminating reunification.' " (Id. at p. 1414.) Here, as provided above, the record clearly showed that mother failed to meet both prongs of section 388.
This case is similar to In re Angel B. (2002) 97 Cal.App.4th 454. In Angel B., the court affirmed a juvenile court's ruling that denied a mother a hearing on her section 388 petition based on findings that the mother failed to make the requisite prima facie showing of changed circumstances, and that the proposed change in custody was in the child's best interest. (Ibid.) The Angel B. court reasoned that, "there was no evidence that Mother was ready to assume custody of Angel or provide suitable care for her; while she had completed the drug program, the time she had been sober was very brief compared to her many years of drug addiction (a concern expressed by the social worker), and in the past she had been unable to remain sober even when the stakes involved were the loss of her other child. Nor was there evidence that she had a housing situation suitable for Angel, or any arrangements for child care while she worked. And . . . there was no evidence that Angel preferred to live with Mother rather than with the foster family." (Angel B., at p. 463.) In addition, "a primary consideration in determining the child's best interest is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. [Citation]. That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (Id. at p. 464.) The court in Angel B. noted that the burden of proof "is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered. After the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability." (Ibid.)
Here, as in Angel B., mother failed to make a showing that granting mother's section 388 petition was in the children's best interest. As provided above, "when reunification services are terminated . . . the focus of the proceedings changes from family reunification to the child's interest in permanence and stability." (In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) In this case, the juvenile court did exactly what is mandated by law—it focused on the children's permanence and stability.
B. SECTION 366.26 HEARING
Mother contends that when the court refused to allow a contested hearing on September 28, 2018, at the section 366.26 hearing, it abused its discretion in denying her an opportunity to participate in the proceeding. We disagree.
In her brief, mother cites In re James Q. (2000) 81 Cal.App.4th 255, for the premise that due process in a dependency case includes the right to notice, to present evidence, and to cross-examine adversarial witnesses. (Id., citing Crystal J. (1993) 12 Cal.App.4th 407. 412.) We agree.
In this case, mother received proper notice. The juvenile court told mother, three times, about the section 366.26 hearing date:
(1) "So I am going to follow the recommendation of the Department and set a .26 hearing for September 26th at 8:30. Both parents are present."
(2) "So your next court date is September 26th, 8:30, back here. Make sure that you are here on time, otherwise we will proceed without you present."
(3) "So make sure you are here September 26th at 8:30 so that you can participate in that hearing."
On the date of the hearing on September 26, 2018, the court confirmed that notice was given to both parents, in person, in court in May. Moreover, mother had been told repeatedly by the court, throughout the dependency case, to be present at the hearings and not to be late. Also, mother had received notice that termination of her parental rights was the recommendation. Therefore, there is no question that mother was aware of her rights to be present and to participate in the hearing, and how important the hearing was. Mother, however, failed to show up and participate.
As to presenting evidence, the juvenile court had mother's recent services compliance actions in the file because they were filed with mother's section 388 petition. Moreover, mother had testified about her interest in changing at the prior 18-month review hearing. The social worker's report additionally provided evidence, some of which were favorable to mother.
As for the right to cross-examine witnesses, the juvenile court followed the recommendation of CFS for the termination of parental rights. The court stated: "Minors are in a stable placement. Parents visits are inconsistent. I have no evidence that any exception applies, so I will terminate parental rights, set a PPR for March 26th." Although the social worker was present, no one required her to testify. The court never denied counsel's ability to cross-examine any witness.
Based on the record, we find mother's due process argument to be without merit.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Mother contends that she received ineffective assistance of counsel (IAC) because her "counsel at the section 366.26 hearing made no objection to mother's lack of presence despite her consistency previously and did not assert any exception to adoption, and [mother] was prejudiced by counsel's inaction." CFS argues that a "claim of ineffective assistance of counsel is to be raised through filing an extraordinary writ." We need not address CFS's contention because mother's IAC claim fails on the merits.
In order to establish a claim of IAC, mother must demonstrate that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) If a defendant fails to establish either component, his claim fails. An appellate court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 697, 687-694.) Trial counsel's performance is deemed reasonably competent unless the record does not provide an explanation for his performance, or " ' "there simply could be no satisfactory explanation." ' " (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In this case, mother failed to establish either component of her IAC claim. Mother failed to establish that her counsel's performance fell below the objective standard of reasonableness. First, mother claims that her counsel rendered IAC by failing to make an objection to mother's lack of presence at the hearing. At the hearing, however, mother's counsel did ask the court—"Your Honor, is there good notice to mother regarding the .26?" Therefore, despite mother's contention, her counsel did object to mother's lack of presence at the hearing. After some discussion on the issue, the court stated: "No. Notice was good. They were personally ordered to be present." The court then went on with the hearing.
Second, mother claims IAC because counsel failed to assert any exception to adoption. The court stated that "I have no evidence that any exception applies, so I will terminate parental rights." Based on the evidence in the record, we find that the juvenile court properly found that no exception to adoption applied.
The parental benefit or beneficial relationship exception applies where " '[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.' " (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Ibid.) "When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
For the beneficial relationship exception to apply, ' "the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The parent must show more than frequent and loving contact or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Moreover, " '[a] biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' " (Jason J., supra, 175 Cal.App.4th at p. 937.) There must be a " 'compelling reason' " for applying the parental benefit exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)
In this case, although mother has maintained "some" contact with the children, it was inconsistent at best, especially in the last few months of the case. There is nothing in the record to indicate that mother occupied a parental role in the children's lives—she did not even have unsupervised visits during the course of the dependency. Moreover, there is nothing in the record to show that the children would benefit from continuing the relationship with mother. Mother was a lifelong drug addict who had been through numerous dependencies and treatments. "The parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, mother never assumed a parental role with the children. Mother "dumped" the children off or left them at various people's homes numerous times in their short lives because mother was often homeless. When the dependency case was initiated, the children had been staying with the paternal grandparents. Ma.M. suffered from a vitamin deficiency and low blood sugar in mother's care for failure to receive proper nutrition. Mj.M. was born with methamphetamine in her system.
There is no evidence indicating that mother's parental role improved during the course of the dependency. As noted above, mother never graduated to even unsupervised visits with the children. Moreover, when visits occurred, mother was angry and displayed inappropriate behavior. During a visit in August 2018, the caretaker had to end the visit early because mother was yelling at the children. At another visit in January 2018, law enforcement had to be called because of mother's behavior. Simply put, there is nothing in the record to indicate that mother occupied a parental role in the children's lives.
On the other hand, the children were well bonded with their paternal grandparents, whom they had lived with off and on throughout their lives. The children had a relationship with them prior to the dependency because mother often left the children with the paternal grandparents. During the dependency, while living in the paternal grandparents' care, the children grew more attached to them.
The second requirement for the parental bond exception to apply requires mother prove that the children would benefit from continuing their relationship with mother. (§ 366.26, subd. (c)(1)(A).) "The existence of this relationship is determined by '[t]he 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 particular needs.' " (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "In other words, for 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.)
In this case, mother acted as a "friendly visitor," playing at times with the children at a fast food restaurant. The paternal grandparents took care of the daily parental duties such as homework, meals, socialization, and doctor visits. They also provided stability and permanence.
In sum, there is nothing in the record to show that the children would benefit from continuing the relationship, and that the children would be "greatly harmed" should parental rights terminate. Based on the evidence, even if mother's counsel had raised the beneficial exception rule to the court, it would not have changed the result. Mother's IAC contention, therefore, fails.
DISPOSITION
The juvenile court's order denying mother's section 388 petition and the court's findings at the section 366.26 hearing are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.