Opinion
E074678
07-13-2020
In re L.L., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.P., Defendant and Appellant.
Vincent W. Davis for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J279354) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Vincent W. Davis for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
T.P. (Mother) and D.L. (Father) are the parents of L.L. (Minor; born July 2018). Mother challenges the denial of her Welfare and Institutions Code section 388 petition, and the termination of her parental rights by the juvenile court at a section 366.26 hearing. For the reasons set forth post, we shall affirm the juvenile court's findings and orders.
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 APPELLATE CASE NO. E073354
Except for the last two paragraphs in this section, the factual and procedural history are taken from the prior opinion in case No. E073354.
"On January 9, 2019, a social worker responded to an immediate response referral in which the reporting party stated he had been shown pictures of Minor and was concerned Minor was being sexually abused. Minor had several bruises on her lower body and blood in her stool. Minor's vaginal area had bruising and a half-moon-shaped bruise which may have been a bite mark. According to the reporting party, Mother and the maternal grandmother (MGM) were aware of the sexual abuse but had not taken any remedial action. The injuries were believed to be five days old. [Father] watched Minor while Mother was at work; he was believed to be the perpetrator.
"The social worker arrived at the police station where a detective showed her pictures of Minor which reflected 'an extreme red diaper rash, bruising to her right buttocks, what appeared to be bruising to her anal area, an incomplete large circle on her upper right thigh and hip area, a round bruise to her right lower cheek[,] and bruising to her outer left ear.'
"A detective interviewed Father at the police station. Father said he had lived with Mother since before Minor was born. Father had a strong odor of marijuana. Father said he smoked marijuana due to back problems; he denied any other drug use. Father reported that the bruising to Minor's face occurred when she was trying to sit up and ' "face planted" ' on a toy. He said the diaper rash was due to his use of Germ X antibacterial hand wipes on Minor when he ran out of diaper wipes. Father expressed anger at what he felt were slights to his family from Mother's family. He reported watching Minor all day, every day and felt unappreciated by Mother.
"When Mother came home from work on January 2, 2019, and noticed the bruising on Minor's face, she asked the MGM to watch Minor while she was at work. Mother was concerned enough that she did not leave Minor alone with Father. However, Father continued to live in the same house. On January 3, 2019, the MGM became concerned about Minor's injuries, took pictures of them, texted them to Mother, and asked what had happened. At some point, the MGM took Minor to the doctor's office and was told by a nurse that if the child were seen by the doctor, CFS and law enforcement would be called. The MGM said she wanted to give Mother the benefit of the doubt so she did not have Minor seen by the doctor.
"On January 9, 2019, Father took Minor to the paternal grandmother's home. When Father returned to Mother's home on January 10, 2019, he was arrested. Small baggies and an apparent pipe containing white crystalline substances, which the officer suspected of being methamphetamine, were located in Father's phone case. Throughout the residence the officer noted the strong odor of marijuana and found several marijuana bongs and small empty baggies containing a white residue. Father's knuckles appeared discolored and scabbed; Father reported he would get angry and punch walls; he said he would get so angry that he would ' "black out." ' Mother agreed to have Minor examined at Loma Linda University Children's Hospital. When asked if Minor was afraid of anyone, Mother told the physician that Minor was only afraid of Father. A physician at the Children's Assessment Center was told Father had an obsession with changing Minor's diapers and was the only one to do so. Minor 'was found to have multiple rib fractures, multiple tears in the lower portion where the labia meet[,] [a] [tear] in the hymen[,] and fissures around the anus.' All the injuries were consistent with blunt force trauma and penetration of the genitalia. The social worker took Minor into protective custody.
"CFS personnel filed a juvenile dependency petition alleging that on or about January 2, 2019, and on numerous occasions, Father physically abused Minor (A-1); that while in the care of Mother, Minor was physically abused (A-2); that Father had a substance abuse problem (B-3); that Mother failed to protect Minor from physical and sexual abuse by Father (B-4); that Father sexually abused Minor (D-5); that Mother failed to protect Minor from sexual abuse by Father (D-6); that on or about January 2, 2019, and on numerous occasions, Father physically abused Minor (E-7); that Mother failed to protect Minor from physical abuse by Father (E-8); and that Father was incarcerated (G-9). On January 15, 2019, the juvenile court detained Minor.
"In the January 31, 2019, jurisdiction and disposition report, the social worker reported that a physician at Loma Linda University Medical Center had conducted a forensic child sexual abuse examination. The physician stated that Minor had possible saliva or semen in her vaginal area. There were submucosal hemorrhages of Minor's hymen and erythema of the labia majora. Minor had sustained multiple anal fissures and bruising on her ears, buttocks, cheek, thigh, and stomach. There were multiple healing rib fractures indicative of blunt force trauma. Minor had an abnormal anal-genital examination; sexual abuse was 'highly suspected.' The physician had been told by Mother that Father prefers to change Minor and that Minor starts to cry when being changed. An officer had found diaper wipes with a significant amount of blood on them in the home. Minor was discharged from the hospital on January 13, 2019, and placed in foster care.
"Mother reported that the family waited so long to report the injuries because they did not want to get CFS involved. Mother said that she heard that the MGM had contacted law enforcement. Mother postponed Minor's doctor's appointment scheduled for January 7, 2019, to consolidate it with an appointment for vaccinations on January 10, 2019, even when told to bring Minor to the hospital as soon as possible. Mother reported there was a family gathering the day before where there were a lot of small children who were rough and liked to bite. She also reported that she had endured abuse by her stepfather as a child; the stepfather also lived in the home.
"Mother denied saying Minor was afraid of Father. She denied saying that Father was 'obsess[ed]' with changing Minor's diapers. Mother said Father was not the only one who cared for and changed Minor. She said her last contact with Father was when he was arrested; Mother was unsure whether she would have further contact with him, but did want to speak to him and did not believe he did what he was alleged to have done. She said that if Father was proven innocent, she wanted to continue to be with him; if 'they' were 100 percent sure that Father abused Minor, then she would not continue to be with him. The social worker reported that Mother had made posts to her Facebook account which reflected that Mother was still in a relationship with Father.
"Mother acknowledged that Father would punch walls and a punching bag as a way to let out his anger. Father told Mother the bloody wipes were due to Minor having hemorrhoids. The MGM brought Minor into Dr. Case's office on January 4, 2019. The MGM showed the office manager photographs taken of Minor; the office manager told the MGM Minor's bruising and redness were not in 'usual areas.' The officer manger informed the MGM that they had two courses of action: call CFS or keep an eye on the areas and see if they changed.
"The People charged Father with aggravated assault of a child, sexual penetration with a foreign object of a victim under 14, forcible lewd acts of a child, child abuse, possession of a controlled substance, and possession of drug paraphernalia. Father was already a ward of the juvenile court; previous allegations in 2014 of lewd and lascivious acts with a child and false imprisonment by violence were sustained when Father was 12 years old; the juvenile court placed him on probation. At the time of the detention in the instant case, Father was 17 years old and Mother was 21 years old.
"Father reported that he may have fallen asleep on the couch while watching Minor and someone may have broken into the home and assaulted Minor. Father denied watching Minor on January 2, 2019. Father acknowledged sleeping in the bed with the Minor while naked.
"In an additional information to the court filed on March 1, 2019, the social worker reported that Minor's relative caregiver had been supervising visits between Mother and Minor; she reported that Mother was not bonded to the child. The caregiver reported Mother spent 90 percent of the visitation time talking with the caregiver about Father and what a great father he is rather than paying attention to Minor. Mother showed no affection toward Minor; she did not hug or kiss Minor.
"On April 16, 2019, the social worker filed an additional information to the court in which she reported that Mother had said she had taken a video of Father and Minor in the shower together because she thought it was cute. Mother had missed one visit with Minor without notification. Due to purported conflicts between Mother and the caregiver, the court moved visitation to the CFS office with CFS personnel supervising. In an additional information to the court filed on May 8, 2019, the social worker reported that Minor did not appear to recognize Mother during visitation.
"At the contested jurisdictional hearing on May 8, 2019, Mother testified that on January 3, 2019, the MGM texted her around 9:00 p.m., while Mother was at work, with pictures of Minor's bruises. Mother got off work at 11:00 p.m. and became concerned because Minor had a couple of bruises and a really bad diaper rash. The next day, Mother left Minor with the MGM when Mother went to work; the MGM took Minor to the doctor. The MGM told Mother that the doctor said the bruises were in unusual places, but they were not signs of abuse. The MGM later told her that it was not a doctor, but a nurse who had seen Minor. The MGM, who was a mandated reporter, spoke with her supervisor who said she did not need to report Minor's injuries because they were 'just bruises.'
"Mother testified that Father, who had left the home for several days, came back to the home on January 9, 2019. Father took Minor and was gone for around eight hours. The MGM called the police. Officers arrested Father. Mother picked up Minor from the police station. Mother changed Minor's diaper at the police station; there was no evidence of sexual abuse. The MGM had found a box of wipes with red on it, but she was not sure if it was blood or paint.
"Mother took Minor to Loma Linda University Medical Center. The MGM asked medical personnel to check for signs of sexual abuse. Mother was informed there were signs of sexual abuse. Mother suspected Father's cousin was responsible for the sexual abuse. She also suspected Father, but he was not her number one suspect. Minor would cry when Father changed Minor, but that did not concern Mother. She was shocked about Father's previous sexual abuse case, which she did not know about until after his arrest. Mother believed Minor was sexually abused, she was just not sure who was responsible. She suspected at least three people could be responsible: Father, Father's cousin, and Mother's stepfather. Prior to this incident she had no reason to believe that Father was hurting Minor.
"The court found that '[t]o the extent that the mother's testimony conflicts with the reports, I'm going to make a finding that the reports are far more credible than the testimony today.' The court found that Father was the perpetrator of the abuse and sustained all the allegations against him. The court also found: 'Mom was well aware, I believe, that there was a threat of physical injury to the child, and specifically the injuries that we now see which include the bruising on the head, the buttocks, the hip, [and] the rib fractures.' The court found the allegations against Mother true due to 'the delay in seeking treatment both for the sexual abuse and for the physical abuse.' The court further noted: 'I'm taking into account the questions about the mother's credibility as evidenced by the reports and in contrast to the statements of other people who appear to be credible and have no incentive to provide false information either to the police or to the social worker.'
"In an information to the court filed on June 6, 2019, the social worker reported about and attached text messages between Mother and the paternal great-aunt in which Mother stated she and Father wanted Minor placed with the great-aunt because she would return Minor to them, that CFS is blaming Father even if he is proven innocent, that CFS wanted Father to be proven guilty, that Father would have his prior sexual assault adjudication dismissed, and that he would obtain reunification services after he was proven innocent. Further, Mother texted that she would focus on getting Minor back first and then worry about getting Father released.
"The social worker also noted that during visitation Minor responded to Mother by 'grabbing her arm and holding onto her' as well as smiling at her. Mother brought her own diaper bag with toys and books for her visits. Mother was appropriate in ensuring Minor was safe; Mother played with Minor and spoke to her in quiet tones.
"On June 24, 2019, Mother filed an exhibits list for the contested dispositional hearing which consisted of a psychological assessment of Mother by Dr. Robert Suiter, a report by Mother's therapist, and certification that Mother had completed a 12-week course in anger management/parenting. In his report, Dr. Suiter noted that Mother reported Father was 14 years old and she was 17 years old when they met. Mother became pregnant when she was 20 years old; Father then moved in. Minor stayed in the home with Father while she worked. Mother denied knowing Minor was being harmed; Mother claimed she had no contact with Father since his arrest. Mother reported that Father 'was then arrested specific[ally] [for] possession of methamphetamines. Although it was determined the child had been physically abused, it was unclear from [Mother] if [Father] had actually been charged with any mistreatment of their child.' A 'Child Abuse Potential Inventory' was deemed invalid due to Mother's attempts to present herself favorably. Dr. Suiter noted: 'CFS records indicate there [were] considerably more injuries to the child than . . . described by [Mother].' Dr. Suiter opined that: 'In considering the ability of [Mother] to benefit from services it is evident she has some traits and characteristics which may make that difficult.'
"Dr. Suiter further observed: Mother 'has difficulty with adequately attaching to others. Therefore, it is understandable that she formed a relationship with someone considerably younger than [she] and who felt safe to her. In that same vein, it is equally understandable she would have difficulty extricating herself from him, even given the circumstances where her daughter was harmed. Nonetheless, it is this examiner's opinion she was sincere in her assertions she does plan to stay separate from the father of her daughter, even as she will undoubtedly need considerable support towards bringing that about.' 'Amidst the areas of concern . . . there are still some favorable prognostic indicators that warrant close consideration of whether she can benefit from services as this examiner considers she would likely do so.' Ultimately, Dr. Suiter opined reunification services would benefit Mother mostly in caring for the future children she was likely to have.
"The juvenile court held the dispositional hearing on July 12 and August 7, 2019. Mother's therapist testified Mother had completed nine sessions of individual therapy. The therapist was not given the background of the allegations or injuries to Minor by CFS. Instead, the therapist relied upon what Mother reported to her. With respect to helping Mother reach an understanding of what was meant by the allegations in the case, as described by Mother, the therapist did not 'feel that [Mother] got there 100 percent.'
"Mother never provided the therapist with copies of the reports, but Mother did tell her that Minor had been sexually abused. Only on the day of the hearing did the therapist receive the medical report and Dr. Suiter's report. She 'was very upset' because 'by reading that report I saw more of a severity of what was taking place. Because all I had was her understanding of what—what took place. But getting details such as I got this morning . . . .' Had the therapist learned of the severity of the injuries at an earlier stage, she would have been more confrontational with Mother in therapy.
"The therapist testified that on the first day of therapy, Mother said she would no longer be involved with Father; Mother's focus and priority was being reunited with Minor. Mother said she had had no contact with Father. The therapist believed that Mother 'believes that dad is the perpetrator.' Mother indicated she would never let Father around Minor again.
"The therapist recommended more therapy sessions: 'Eight weeks as a therapist you are just getting your feet wet. And in light of what I discovered this morning too, I would have to say there is a lot more to deal with too.' She believed that Mother could eventually reunify with Minor. The therapist believed Mother would be protective of Minor: 'But I have to say this. It's out of my scope of practice for me to be involved in placement and normally the social workers don't even ask me that, and I don't volunteer that.'
"Dr. Suiter testified that Mother did not tell him Father had been arrested for sexual abuse of Minor; rather, he learned that from the reports. Mother stated she had not had any contact with Father since his arrest and would not reconcile with him. Dr. Suiter believed her and had reason to believe she would maintain that resolve. He believed she would be amenable to services, i.e., she would participate in and benefit from services. Mother would be more likely to be in a position to protect Minor if she continued with services.
"Mother testified that Father would most often watch Minor when she worked. She did not know Father was a registered sex offender. Mother initially did not believe Father was responsible for the abuse, but through therapy came to accept that he was. She said she shared some responsibility for what happened because she could have prevented it if she had seen the signs sooner. Mother said that through therapy she had learned what signs to look for. She denied having any contact with Father since Father was arrested.
"Mother admitted posting on Facebook memories of how much she loved Father: 'And I was still like—at that point I was like on and off. Because I was mad, but then trying to convince myself that that is not who he is. But the more I learned about his past and everything that has happened when he was younger, I realized that that is who he is. And that is not the person that I met.' If Father was released, she would obtain a restraining order to protect Minor. If he violated the restraining order, she would call the police. Mother visited Minor once a week for two hours; she brought Minor toys, taught her, helped her learn to walk, and fed her. Minor smiled and reached for Mother when Minor saw her. Minor would get upset when Mother left a visit."
The juvenile court applied family reunification bypass to the parents under section 361.5, subdivisions (b)(5) and (6), and (e)(1) as related to Father's incarceration. The court then ordered two-hour monthly supervised visits for Mother. The court found that visits with Father were detrimental to Minor. The court then set a section 366.26 hearing.
Thereafter, Mother filed a writ petition challenging the juvenile court's findings that Mother had knowledge, or reasonably should have known, of the severe and sexual abuse by father, and that Mother failed to protect Minor. Moreover, mother challenged the denial of reunification services to her. We found that there was sufficient evidence to support the jurisdictional findings. We also found that the juvenile court erred in applying the bypass provisions under section 361.5, subdivision (b)(6), because there was insufficient evidence that Mother gave actual or implied consent to the severe abuse of Minor. We, however, found that any error was harmless because there was sufficient evidence to support denying reunification services under section 361.5, subdivision (b)(5).
B. PROCEEDINGS SUBSEQUENT TO THE PRIOR APPELLATE CASE
On August 9, 2019, Minor's foster parents filed a de facto parent request. In support of their request, the foster parents submitted an attachment. In the attachment, the fosters parents stated that the foster mother "spends 24 hours a day, 7 days a week caring and nurturing [Minor]." The foster father "spends the evenings after work, helping care for and nurturing [Minor]." They also stated: "When we first had [Minor] placed with us, she was assessed. . . . While we were there we learned she was behind developmentally. We were given a check list chart to follow every month and activities to do at home with [Minor] to help get her on track." The foster parents noted that Minor had now surpassed her age group and made great progress. They had concerns with Minor's behavior after visiting with Mother. They noticed that Minor came "home extremely fussy and clingy." Although Minor was usually a happy baby, she was "very sad and depressed" after visits with Mother, and the behavior continued for a few days after visits. Moreover, Minor also woke "with night terrors and scream[ed] with fear," which was unusual behavior for Minor. On September 11, 2019, at the de facto parent hearing, the juvenile court granted the foster parents de facto parent status.
In the section 366.26 report dated December 5, 2019, CFS recommended that parental rights be terminated and a permanent plan of adoption be implemented for Minor. Minor had been placed with her prospective adoptive parents (paternal cousin and wife) since January . . . 2019, and Minor was bonded with both of them. Minor viewed the prospective adoptive parents as her parental figures.
The report noted that Mother had regular visitation once per month. Mother did not miss any visits. Mother engaged "in age appropriate activities with child such as reading to child, looking at books, and playing with toys that sing or light up." The report also stated the Mother attended to Minor's "basic needs such as feeding child and changing child's diaper[s]. The mother has been noted to bring her own diaper bag with her own diapers, snacks and drinks for the child." The report also "noted that mother has been calling and [video-chatting] with unauthorized individuals during the visits."
Moreover, the report stated that Minor was an appropriate child for adoption and was placed with a relative/prospective adoptive family who were committed to protecting Minor. Furthermore, the report recommended that the court find it was likely Minor would be adopted and that the termination of parental rights would not be detrimental to Minor.
At the section 366.26 hearing on December 5, 2019, both Mother and Father were present. The court set the 366.26 for a contested hearing on January 9, 2020.
On January 6, 2020, Mother filed a section 388 petition requesting that the court change the no reunification services order and setting of the section 366.26 hearing. Mother asked that Minor be returned to her custody and care; offer her reunification services; halt the section 366.26 hearing; and increase her visitation in frequency and duration.
In support of her section 388 petition, Mother stated that she had enrolled and completed programs in sexual abuse awareness, parenting domestic violence, anger management, and drug and alcohol awareness. Mother also completed a second psychological evaluation and a bonding study. In the psychological evaluation dated December 12, 2019, Dr. Suiter opined that Mother had benefitted from services and was able to care for Minor. Mother, however, would need to continue individual therapy and the sexual assault awareness program she was attending.
On January 6, 2020, the juvenile court summarily denied Mother's section 388 petition. The court stated that the proposed change or order did not promote Minor's best interest.
On January 24, 2020, at the contested section 366.26 hearing, Mother's counsel read a prepared statement by Mother. Mother asked for a second chance and claimed that she had made tremendous changes. She asked the court to consider a lesser plan of guardianship so she could remain in Minor's life.
At the hearing, the juvenile court found that Minor was both generally and specifically adoptable. "As to the parental bond exception," the court noted, "while I do believe the mother loves [Minor] just as much as she says she does, I have no doubt of that and the maternal relatives as well love [Minor]; [Minor] was removed as an infant due to significant abuse." The court went on to note that "[T]he de facto parents have acted in a parental role for more than a year in [Minor's] life and are a concurrently planning home." After balancing the relationship with Mother, "which has been supervised the entire length of the dependency, versus the permanency that adoption would provide for her in a safe and loving home," the court terminated parental rights and did not find the parental bond exception applicable.
On February 5, 2020, Mother filed a timely notice of appeal.
DISCUSSION
A. SECTION 388 PETITION
Mother argues that the juvenile court abused its discretion in summarily denying her section 388 petition without a hearing because there was prima facie evidence that circumstances were changed and granting the petition was in Minor's best interest.
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 argues that her circumstances had changed because she finally accepted that Father physically and sexually abused Minor. She was no longer going to let Father see Minor and was going to stay separated from him. Mother participated and completed programs that pertained to sexual abuse awareness; parenting; domestic violence; anger management; and drug and alcohol awareness. Mother can now recognize behaviors and red flags of predators and learned how to protect Minor from potential abuses.
We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because, even if Mother provided sufficient evidence of changed circumstances, she did not meet her burden of showing that granting her section 388 petition was in Minor's best interests.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 797, disapproved on another ground in John v. Superior Court (2016) 63 Cal.App.4th 91, 98-100.) At the point of the section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated or bypassed, as in this case, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been bypassed or terminated. This is because, "[a]fter the termination of reunification services [or bypass of services], a parent's interest in the care, custody and companionship of the child is no longer paramount." (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.)
In Angel B., supra, 97 Cal.App.4th 454, 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. 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 Minor's best interest. As provided above, when "reunification services are terminated (or, as in this case, never ordered in the first place), 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 Minor's permanence and stability.
In this case, at the time Mother filed her section 388 petition on January 6, 2020, five months after services were bypassed, Minor's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing Minor to be placed in mother's care, or increasing visits, or providing mother with reunification services to see if mother would and could do what she was required to do to regain custody would not have promoted stability for Minor, and thus would not have promoted Minor's best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) As noted above, by the time Mother filed her section 388 petition, Minor, who was one and a half years old, had lived with Mother for only the first six months of her life, and had been in a stable, prospective adoptive home for one year. During this time, Mother initially had weekly supervised visits with Minor. The court later changed the visits to monthly supervised visits. The visits were never changed to unsupervised visits. Although Mother attended to Minor's basic needs during the visits, she also spent time calling and video-chatting with unauthorized individuals during visits. Moreover, the prospective adoptive parents reported that Minor had difficulty with the visitations. While living with the prospective adoptive parents—since Minor was first removed from Mother's custody—Minor has thrived, "blossomed beyond belief," and made significant progress in her developmental delays. Minor was very bonded with her prospective adoptive parents and viewed them as her parental figures.
Based on the foregoing, the juvenile court did not abuse its discretion in summarily denying Mother's section 388 petition without a hearing.
B. THE PARENTAL BENEFIT EXCEPTION TO ADOPTION
Mother contends that the court incorrectly found that the parental benefit exception to adoption did not apply.
This "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
In general, at a section 366.26 hearing, if the juvenile court finds that a child is adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i), boldface and italics added.)
"The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship." (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This court must affirm a juvenile court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) We review "the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling." (In re S.B., supra, 164 Cal.App.4th at p. 297.) Because the parents have the burden of proof, we must affirm unless there was "indisputable evidence [in her favor, which] no reasonable trier of fact could have rejected." (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
There appears to be a split of authority as to whether the substantial evidence or abuse of discretion standard of review applies. In In re Jasmine D. (2000) 78 Cal.App.4th 1339, the appellate court applied the abuse of discretion standard. The court, however, noted that the practical differences between the two standards of review are not significant. (Id. at p. 1351.)
In this case, the juvenile court listened to the letter written by Mother and read by her counsel at the hearing. In the letter, Mother expressed her love for Minor, the mistakes she made, the progress she made in understanding Minor's abuse, and how much her family members love and would miss Minor. Mother also expressed concern that Minor was placed with a paternal relative. After listening to counsel and Mother's letter, the juvenile court found that the parental benefit exception did not apply. Substantial evidence supports the juvenile court's finding that the parental benefit exception did not apply.
We need not consider whether Mother visited regularly with Minor because Mother failed to meet the second prong of the parental benefit exception—that Minor would benefit from a continued relationship with Mother. "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.)
" '[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 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.) " '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., at p. 937.)
According to Beatrice M., the exception applies when the child benefits from a continuing parental relationship. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Mother's relationship with Minor was not a parental relationship. Instead, it was that of a friendly visitor, which is insufficient for the exception to apply. "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
In this case, the juvenile court stated: "As to the parental bond exception, while I do believe the mother loves [Minor] just as much as she says she does, I have no doubt about that, and that the maternal relatives as well love [Minor]; [Minor] was removed as an infant due to significant abuse. [¶] The de facto parents have acted in a parental role for more than a year in [Minor's] life and are a concurrent planning home. [¶] So balancing the relationship with the mother, which has been supervised the entire length of the dependency, versus the permanency that adoption would provide for her in a safe and loving home, I am going to terminate parental rights and set a PPR for July 24th."
We find that the evidence presented at and submitted prior to the hearing support the juvenile court's findings. As previously provided, Mother first had weekly visits with Minor, which were changed to monthly visits. All the visits were supervised. Mother never had unsupervised visitations with Minor and Minor never resided with Mother after being removed from Mother's care in January of 2019. Mother failed to meet her burden to show that the bond between Mother and Minor was so strong and beneficial to Minor that it outweighed the benefit Minor would receive from having a stable, adoptive home. As the record clearly shows, Minor was bonded to her prospective adoptive parents with whom she had lived since she was six months old. Minor was doing very well in their prospective adoptive home and she was emotionally stable there. The prospective adoptive parents were committed to providing a permanent, stable, loving home for Minor. In sum, Mother has the burden to establish the applicability of the beneficial parental relationship exception in the lower court; on appeal, she has the burden of showing that the juvenile court's ruling was an abuse of discretion or not supported by substantial evidence. We conclude that Mother has failed to meet this burden.
DISPOSITION
The juvenile court's findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.