Filed 6/26/17 Humboldt County Dept. of Health & Human Services v. M.G. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
M.G.,
Defendant and Appellant.


A148587

(Humboldt County
Super. Ct. No. JV140005)

HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
E.G., et al.
Defendants and Appellants.

A149306

(Humboldt County
Super. Ct. No. JV150254)


In re E.G.,
On Habeas Corpus.

A149399
(Humboldt County
Super. Ct. No. JV 140005)

M.G. (father) and E.G. (mother) are parents of now three-and-a-half year old W.G. (son) and 18-month-old P.G. (daughter). In separate juvenile dependency proceedings, (1) father appeals from the juvenile court’s June 1, 2016 order insofar as it terminates his parental rights with respect to W.G. (Welf. & Inst. Code, § 366.26 ) (Case No. A148567); and (2) father and mother appeal from the juvenile court’s August 23, 2016 order, which terminated their parental rights with respect to P.G. (§ 366.26) and denied mother’s section 388 modification petition (Case No. A149306). We find no merit to parents’ challenges to the June 1, 2016 and August 23, 2016 orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. W.G.’s Dependency Proceeding
Mother gave birth to W.G. in January 2014. On January 8, 2014, respondent Humboldt County Department of Health and Human Services (the agency) filed a section 300 petition based on the circumstances that at birth W.G. tested positive for amphetamine, methamphetamine and opiates, and at the same time, mother tested positive for amphetamines, opiates, oxycodone and marijuana (Id., subd. (b) (failure to protect)). Following a jurisdictional hearing, mother submitted to the allegations, as amended in court, the court removed the child from parents’ custody, and the matter was continued for disposition. At the dispositional hearing, the court declared W.G. a dependent child and returned him to parents’ custody with family maintenance services. Because mother continued to make progress in her case plan, the court ultimately terminated jurisdiction, and closed the dependency proceeding on September 25, 2014.
Nevertheless, three months later, on December 4, 2014, while the police were attempting to conduct a probation search at mother’s home, they discovered in the home 11-month-old W.G. unsupervised and within reach of hypodermic needles, methamphetamine, and heroin. When the parents failed to return home, the police placed W.G. in protective custody and the child was later detained by the agency.
On December 8, 2014, the agency filed a new section 300 petition, alleging W.G. should be declared a dependent of the court because he was a child described under subdivision (b) (failure to protect). Following a contested jurisdictional hearing on January 12, 2015, the court sustained the petition’s allegations, as amended in court, and placed the child in the agency’s custody. The child was placed with his current foster care parents on February 17, 2015. At the dispositional hearing on March 30, 2015, the court declared W.G. a dependent of the court, continued his out-of-home placement and ordered family reunifications services.
The “six-month” review hearing was ultimately held on December 28, 2015. Although mother attended supervised visits with the child, the court found mother had not complied with her case plan and had made no progress toward alleviating the issues which gave rise to the dependency. The court terminated reunification services and set a section 366.26 hearing. Two weeks before the section 366.26 hearing, mother filed a section 388 modification petition seeking reinstatement and extended family reunification services. The agency filed a response arguing, among other things, that the section 388 modification petition should be summarily denied as it failed to set forth a prima facie case for relief.
On June 1, 2016, the juvenile court held a combined hearing to address mother’s section 388 modification petition and the agency’s section 366.26 request to terminate parental rights. Mother’s retained counsel appeared in court and mother appeared by telephone. Mother testified that on May 17, 2016 she enrolled in a 30-day residential drug treatment program in Napa, and she apprised the court of her plans to pursue after care treatment through the Napa program and attendance at NA meetings. The court found mother’s completion of 30 days at an inpatient drug rehabilitation program and her plans for future rehabilitation were “absolutely insufficient,” to support reinstatement and extension of reunification services, when “weighed against” W.G.’s need for permanency that was particularly urgent as he was a special needs child. The court denied mother’s section 388 modification petition, adopted the agency’s proposed section 366.26 findings and orders, and terminated parental rights after finding, by clear and convincing evidence, that W.G. was likely to be adopted.
B. P.G’s Dependency Proceeding
1. Detention, Petition, Jurisdictional and Dispositional Hearings
Mother gave birth to P.G in mid-December 2015. The agency detained the child based on the child’s positive test for opiates, amphetamine, and methamphetamine and mother’s positive test for heroin, opiates, and methamphetamine. The child remained hospitalized for approximately six weeks, and, on January 20, 2016, she was placed in the same foster care home as her sibling W.G.
On January 20, 2016, at the jurisdictional hearing, the juvenile court sustained the agency’s section 300, subdivision (a), petition, as amended, finding that P.G. had suffered serious physical harm caused nonaccidentally by mother due to the child’s in utero drug exposure and the severity of the child’s withdrawal symptoms. In its report for the dispositional hearing, the agency recommended that the court bypass reunification services for P.G. because, among other things, mother had failed to reunify with W.G. and she had failed to resolve her heroin addiction that resulted in P.G. being born with a positive drug toxicity. (§ 361.5, subd. (b)(10), (13).) Following a contested dispositional hearing held on February 29, 2016, the juvenile court bypassed reunification services and set a section 366.26 hearing.
2. Mother’s Section 388 Modification Petition and Section 366.26 Hearing
On May 24, 2016, mother filed a section 388 modification petition with related attachments in P.G.’s dependency proceeding. The documents and attachments submitted by mother were identical to those filed in W.G.’s dependency proceeding. Mother did not submit a declaration in support of the petition. Instead, her counsel submitted a declaration asserting that mother had been complying with her case plan since May 2015, as evidenced by copies of mother’s “signing” cards at parenting classes and weekly “Drug and Alcohol Program” meetings, and signed authorizations for the release of information (ROI) forms. Mother had also complied with drug testing on demand or as required by the agency, and had tested negative, as evidenced by an October 20, 2015, report. Counsel also indicated that “[d]ue to [mother’s] relapse at the beginning of 2016,” she “understood the need for treatment in an inpatient facility. . . . [¶] [She] has actually sought inpatient treatment and has enrolled as of May 17, 2016 and will be [at a drug treatment facility in Napa] for the next 30 days,” as evidenced by a May 16, 2016, letter from the facility. Counsel attached to the petition two letters, both dated October 2015, from mother’s family members attesting to mother’s positive relationship with W.G. The agency filed a response to mother’s section 388 modification petition. In pertinent part, the agency social worker contended mother’s section 388 petition failed to set forth a prima facie case for relief because, at best, it showed that mother was at the beginning stages of addressing her long-standing drug addiction. The agency social worker also contended mother had failed to show it was in the child’s best interest to offer mother reunification services as mother had failed to visit the child since January 1, 2016, and P.G. had been placed with W.G. in a foster care home with foster parents who wanted to adopt both children.
On June 27, 2016, the juvenile court commenced a combined hearing to address mother’s section 388 modification petition and the agency’s section 366.26 request to terminate parental rights. Mother was present and represented by retained counsel. In support of the section 388 modification petition, mother’s counsel argued there was a change of circumstances because mother had completed the 30-day program at the drug treatment facility in Napa, and she planned to attend a “relapse type service.” The court admitted into evidence certificates of “completion” and “sobriety/drug free,” which were issued by the Napa facility. The court did not believe a 30-day drug treatment program was sufficient to address mother’s “long-standing drug abuse.” Nevertheless, it continued the hearing for a few weeks.
Before the continued hearing, the agency filed an additional “Report in Response to 388,” which was received by the court on August 12, 2016. The agency social worker set forth the history of mother’s visits with P.G. Mother had three visits with the child while the child was in a neo-natal intensive care unit before the child’s hospital discharge on January 20, 2016. Thereafter, the agency offered mother supervised visits. Mother did not attend or call to cancel a visit scheduled for February 19, 2016. Sometime in March 2016, mother informed the agency that she was entering a drug treatment program. As of May 11, 2016, mother had not called the agency to arrange visits, even though mother was aware of the process to arrange them. After the June 27, 2016, hearing, the agency scheduled two supervised visits, one in July and one in August. Mother missed the July visit, explaining that she was confused about the day and time of the visit. She asked for a make up visit but the agency could not arrange another visit in July. Mother had a two-hour visit with the child on August 8, 2016. The visitation monitors observed that mother was “attentive and loving,” as she held, fed, and diapered the child. Mother’s conduct was reported as appropriate throughout the visit. The agency social worker also recounted, for the court, mother’s testimony at the June 1, 2016 hearing in W.G.’s dependency proceeding, regarding mother’s recent participation in drug treatment at a Napa facility. However, as of August 11, 2016, the agency social worker had no knowledge that mother was then participating in any inpatient or outpatient drug treatment services. In her assessment of the case, the agency social worker opined it was not in P.G.’s best interest for the court to offer mother reunification services because mother had not demonstrated any meaningful changes in her behavior since reunification services had been bypassed on February 29, 2016 and there was no substantial probability mother would be able to reunify with the child if services were offered. In addition, the agency social worker opined it was not in P.G.’s best interest for the court to offer mother further visits because mother’s poor attendance at visits (four visits within eight months) indicated she was not committed to maintaining a relationship with the child.
On August 23, 2016, the juvenile court resumed the combined hearing to address mother’s section 388 modification petition and the agency’s section 366.26 request to terminate parental rights. At that time mother did not appear and her retained counsel appeared by telephone. The court indicated it had received and would consider mother’s section 388 modification petition and related attachments, the agency’s response to the petition and related attachments, and the agency’s section 366.26 report and adoption assessment addendum. Mother’s counsel asked the court to provide mother with reunification services based on mother’s participation in a drug treatment program, and then submitted the matter on the section 388 modification petition and argument. The court ruled in the following pertinent manner: “Frankly as to [mother], I was encouraged by the fact that she had once again initiated substance abuse services and participated in a program . . . . I did continue this matter over objection to permit her some additional opportunity . . . to work with her substance abuse issues so she could further establish that this was a lasting sort of change. [¶] . . . But when I examined it a little further, one of the other things I considered . . . is the [agency’s] additional report in response to the [section] 388 [modification petition] received on August 12th . . .[and] the nature of the bond between [mother] and the child. Because she has been participating . . . in substance abuse treatment, the degree to which she has made herself available for visitation has been relatively limited, and I also need to take into consideration the fact that this child is in a stable placement, that she also is with a [sibling], and the disruption of that particular placement to permit mother to continue on with her recovery which I want to encourage her in . . . . [¶] When I weigh all of that, I do think it is a close call, but I do think that the second prong of a [section] 388 [modification petition] considering the best interest of the child, the [section] 388 petition is not in the best interest of the child at least based on the evidence that is before me at this time.” The court denied mother’s section 388 modification petition, adopted the agency’s section 366.26 findings and orders, and terminated parental rights after finding, by clear and convincing evidence, that P.G. was likely to be adopted.
DISCUSSION
I. June 1, 2016 Order Terminating Father’s Parental Rights With Respect
To W.G.
Father filed a timely notice of appeal from the June 1, 2016 order insofar as it terminated his parental rights with respect to W.G. However, in his opening brief he presents no substantive arguments challenging that order. Instead, he argues, “to the extent that any benefits incur to him, [he] joins in [mother’s] request to reverse the termination of parental rights” to W.G. According to father, if we reverse so much of the order as terminated mother’s parental rights, reversal of so much of the order as terminated his parental rights must follow even if there is no independent error pertaining to him. However, mother failed to file a timely notice of appeal challenging the June 1, 2016 order. The 60th day was Sunday, July 31, 2016, and therefore, mother was required to file her notice of appeal by Monday, August 1, 2016. (Code Civ. Proc., §§ 12, 12b.) She did not file her notice of appeal until August 8, 2016, seven days late. In the absence of a timely filed notice of appeal, we cannot address mother’s appellate arguments with respect to W.G. (In re Z.S. (2015) 235 Cal.App.4th 754, 767, 768-769.) Because father has failed to establish error in the juvenile court’s rulings pertaining to him, we affirm the June 1, 2016 order insofar as it terminates his parental rights with respect to W.G.
II. Mother’s Petition for Writ of Habeas Corpus to File A Late Notice of Appeal
From June 1, 2016 Order Terminating Her Parental Rights With Respect
to W.G.
In a petition for habeas corpus relief, mother requests that we grant her permission to file a late notice of appeal from the June 1, 2016 order terminating her parental rights as to W.G. by applying the doctrine of constructive filing. However, as mother concedes, “ ‘numerous cases have held that constructive filing, which can be applied in criminal cases, does not apply in termination of parental rights proceedings . . . . [Citations.] These cases have determined that the special need for finality in parental termination cases and the danger of imperiling adoption proceedings prevails over the policy considerations in favor of constructive filing.’ [Citation.]” (In re Z.S., supra, 235 Cal.App.4th at p. 769, fn. omitted; see In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1253-1254; In re Issac J. (1992) 4 Cal.App.4th 525, 531-532.) We are not persuaded by mother’s argument that “there is a particularly compelling reason” for applying the doctrine of constructive filing in this case because mother filed a timely notice of appeal with respect to her other child P.G. The juvenile dependency proceedings were not consolidated in the juvenile court and the children were separately situated as to their needs and their relationships with the parents.
In all events, even if we were to apply the doctrine of constructive filing, we would conclude mother has failed to make a prima facie showing for relief on the record before us. In In re Benoit (1973) 10 Cal.3d 72, our Supreme Court applied the doctrine of “constructive filing” to late-filed criminal appeals where the late filing of the notice of appeal occurs in the context of (a) defendant’s justifiable reliance on counsel timely filing a notice of appeal, (b) defendant’s due diligence in assuring a notice of appeal is being timely filed, and (c) the ineffective assistance of counsel in nevertheless failing to timely file a notice of appeal. (Id. at pp. 86-89.) In support of her petition in this case, mother submitted an affidavit of a paralegal who worked in the law office of mother’s retained appellate counsel. The paralegal stated that on July 22, 2016, mother sent an email stating she wanted the law office to represent her in the appeal from the June 1, 2016 order. The paralegal replied by email on July 25, 2016, advising mother that a case manager from the law firm would contact mother “regarding fees and a new fee agreement for the appeal.” The paralegal did not hear from mother after July 25, 2016, and she did not receive any information that mother had retained the law office for the appeal. The notice of appeal was put aside while the law office awaited further instructions, and, the paralegal “unfortunately . . . missed the deadline to file the notice of appeal in a timely manner.” The notice of appeal, signed by appellate counsel and dated, July 29, 2016, was sent to the superior court for filing. The superior court initially filed the notice of appeal on August 8, 2016, but, then advised appellate counsel that the notice of appeal had been rejected as untimely. Mother has not offered, by way of her own affidavit or otherwise, any explanation concerning her contacts and retention of appellate counsel to represent her. Because mother has not shown justifiable reliance on her appellate counsel to timely file a notice of appeal and her due diligence in assuring herself that a notice of appeal was being timely filed, she has failed to demonstrate, prima facie, that the late filing of the notice of appeal was due to inadvertence. (See also In re Ryan R. (2004) 122 Cal.App.4th 595, 597, 598-599 [court refused to allow late filing of notice of appeal where mother’s counsel offered the following explanation for late filing: “The 60th day fell on Sunday, July 11, 2004. I . . . received a voice mail message at approximately 4:00 p.m., after I returned from court on July 12, 2004, from mother that she wished to file an appeal. The voice mail message was left by mother on my voice mail machine at 2:08 p.m. on July 12, 2004. The clerk's office closes at 3:00 p.m. The clerk’s office was closed when I received the voice mail message. I am filing this notice of appeal on the next court date”]; In re A.M. (1989) 216 Cal.App.3d 319, 321-322 [court refused to allow late filing of notice of appeal where mother informed counsel she wished to appeal but counsel was not able to reach her to obtain her signature on the notice, which counsel then signed and filed believing it to be timely, but which was filed one day late].) Accordingly, we deny mother’s petition for habeas corpus without issuing an order to show cause.
Lastly, even if we were to reach the merits of mother’s appeal, we would affirm the juvenile court’s termination of her parental rights with respect to W.G. By the time of the June 1, 2016, hearing, mother was in the middle of a 30-day inpatient drug treatment program, after previous failed attempts at rehabilitation, and she had not progressed beyond supervised visits with W.G. who had been detained since December 2014. The then two-and-a-half-year-old W.G, a special needs child, had been in his current foster care placement for approximately 16 months with foster parents who wanted to adopt him. Thus, on this record, we would find no basis to set aside the juvenile court’s termination of mother’s parental rights, thereby freeing the child for adoption. (See In re Jesse B. (1992) 8 Cal.App.4th 845, 851 [absent a contrary indication in the record, entry of a termination order implies a finding of no detriment to the child].)
III. August 23, 2016 Order Denying Mother’s Section 388 Modification Petition
and Terminating Parental Rights With Respect To P.G.
1. Denial of Mother’s Section 388 Modification Petition With Respect
to P.G.
We now turn to an evaluation of mother’s contention that the juvenile court erred when it denied her section 388 modification petition with respect to P.G. without conducting an evidentiary hearing.
“Under section 388, a parent may petition to modify a prior order ‘upon grounds of change of circumstance or new evidence.’ (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where ‘it appears that the best interests of the child . . . may be promoted’ by the new order. (§ 388, subd. (d).) ‘Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interest.’ (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 [174 Cal.Rptr.3d 405].) [¶] ‘A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child’s best interests.’ (In re G.B., supra, 227 Cal.App.4th at p. 1157.) In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258 [108 Cal.Rptr.3d 509].)” (In re K.L. (2016) 248 Cal.App.4th 52, 61-62; see In re E.S. (2011) 196 Cal.App.4th 1329, 1340 [in the absence of a necessary prima facie showing that a proposed change in order would benefit the child, the juvenile court can base its decision on the information provided in the petition, documentary evidence, and argument by counsel]; see Ibid. [“[a] party in dependency proceedings who has a due process right to a meaningful hearing with a right to present evidence does not necessarily enjoy full rights to confrontation and cross-examination;” “[d]ue process is not synonymous with full-fledged cross-examination rights”].) Contrary to mother’s contention, “[w]e review [the] juvenile court’s decision to deny [mother’s] section 388 [modification] petition without an evidentiary hearing for an abuse of discretion. [Citation.]” (In re K.L., supra, at p. 62.)
We initially note that neither mother nor her counsel requested an evidentiary hearing or otherwise objected to the juvenile court’s failure to hold an evidentiary hearing on mother’s section 388 modification petition. (Cf. In re Stacy T. (1997) 52 Cal.App.4th 1415, 1426 [denial of due process found where juvenile court denied request of mother’s counsel to cross-examine authors of the reports supporting the dependency petition on the ground mother was not present at hearing].)
In all events, we see no merit to mother’s argument that she presented sufficient prima facie evidence of changed circumstances justifying an evidentiary hearing to demonstrate that a modification would promote the child’s best interest. Mother asserts the juvenile court placed undue emphasis on how short a period of time she had been in drug treatment indicating she needed a longer program. According to mother, the court should have focused on whether mother was committed to her rehabilitation and sobriety and whether her current drug treatment was different from anything she had done before, and therefore, more effective. However, “[i]t is only common sense that . . . the gravity of the problem leading to the dependency, and the reason that the problem was not [previously] overcome . . . must be taken into account” by the juvenile court in evaluating mother’s section 388 request for a modification. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) When read in context, the juvenile court’s comments merely evidence its recognition that where substance abuse is a central issue, the court has a duty “to evaluate the likelihood that [mother] would be able to maintain a stable, sober and noncriminal lifestyle for the remainder of [P.G.’s] childhood. [Mother’s] belated compliance with reunification efforts is not definitive on this issue.” (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) Moreover, because mother’s section 388 modification petition was filed several months after reunification services had been bypassed, the juvenile court correctly recognized that “the goal of family reunification [was] no longer paramount, and ‘ “the focus [had] shift[ed] to the needs of the child for permanency and stability” [citation], and in fact, there [was] a rebuttable presumption that continued foster care [was] in the best interests of the child.’ [Citation.]” (In re K.L., supra, 248 Cal.App.4th at p. 62, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, the juvenile court properly focused on mother’s recent sobriety, weighed against her previous failings and the child’s circumstances in her current placement, in finding that the record undisputedly failed to show “that the child’s best interests might be promoted by the proposed change of order.” (In re Angel B. (2002) 97 Cal.App.4th 454, 463.)
We also see no merit to mother’s additional argument that she presented sufficient prima facie evidence of a bond between herself and P.G. justifying an evidentiary hearing to demonstrate that a modification would promote the child’s best interest. “As noted above, there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification.” (In re Angel B., supra, 97 Cal.App.4th at p. 465.) In this case at the time mother filed her section 388 modification petition on May 24, 2016, P.G. was five month old and mother had not seen the child for four months. At the time of the August 23, 2016 hearing, mother had seen the then eight-month-old child on only one occasion for two hours on August 8, 2016. Moreover, within one month of birth, P.G. had been placed with W.G. in the same foster care home with foster parents who wanted to adopt both children. “The parents in [the foster care] family clearly, by deed if not by name, were [P.G.’s] parents. They, not [m]other, provided [P.G.] with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler. Thus, although [m]other’s petition states that she has [deeply] bonded with [P.G.],” and mother’s August 8, 2016, visit with P.G. went well, that visit “add[ed] up to only a tiny fraction of the time [P.G.] has spent with the foster parents. On this record, no reasonable trier of fact could conclude that the bond, if any, [P.G.] feels toward [m]other (as opposed to the bond that [m]other feels toward [P.G.]) is that of a child for a parent.” (In re Angel B., supra, at p. 465.) Accordingly, we conclude the juvenile court did not err by failing to hold an evidentiary hearing on mother’s section 388 modification petition with respect to P.G. We see nothing in the cases cited by mother that requires a different result.
2. Juvenile Court’s Failure to Apply Beneficial Parent-Child Relationship Exception to Termination of Mother’s Parental Rights With Respect to P.G.
Mother also argues reversal of the order terminating her parental rights with respect to P.G. is required because the juvenile court should have applied the beneficial parent-child relationship exception. We disagree.
At a section 366.26 hearing, once a juvenile court has determined by clear and convincing evidence that a child is adoptable, as in this case, it is required to terminate parental rights unless the parent can establish there is a compelling reason for concluding termination would be detrimental to the child because (1) a parent has maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) However, absent a request by a parent, a juvenile court has no sua sponte duty to consider the exception found in section 366.26, subdivision (c)(1)(B)(i). (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; see also In re Jesse B., supra, 8 Cal.App.4th at p. 851 [absent a contrary indication in the record, entry of a termination order implies a finding of no detriment to the child].) In this case, mother’s counsel made no attempt to argue the applicability of the beneficial parent-child relationship exception at the section 366.26 hearing. Accordingly, the issue is forfeited for appellate review. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) In all events, even if mother had not forfeited the issue, as we now explain, we see no abuse of discretion in the juvenile court’s failure to apply the beneficial parent-child relationship exception.
Contrary to mother’s contention, we review the juvenile court’s failure to apply the beneficial parent-child relationship exception for an abuse of discretion. Although other “courts . . . have routinely applied the substantial evidence test,” this court has concluded “the abuse of discretion standard is in order. The juvenile court is determining which kind of custody is appropriate for the child. Such a decision is typically reviewable for abuse of discretion. [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “ ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the [juvenile] court’s action, no judge could reasonably have made the order that he did.’ . . .” ’ [Citations.]” (Ibid.)
Mother contends she met her burden to demonstrate the beneficial parent-child relationship exception because her visits with P.G. must be considered in the context of the limited visitation she had because she was pursuing inpatient drug treatment and “the strongest and most compelling evidence of a beneficial parent-child relationship came from” the observations of the monitors who supervised mother’s visits with P.G. She asks us to consider that during the August 8, 2016 visit, the monitors, who observed the visit, described mother as “loving and appropriate,” and, that she “parented the child, meeting her needs, caring for and protecting” the child. However, to overcome the preference for adoption and avoid termination of her rights, mother was required to do more than show “frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Mother was also required to establish “that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.]” (In re Angel B., supra, 97 Cal.App.4th at p. 466.) The visitation monitors’ observations of one supervised visit in August of 2016 does not support a finding that P.G.’s relationship with mother was “so significant that its termination would cause” detriment to the child. (Id. at p. 468.) In addition, because mother failed to proffer evidence showing P.G. would be harmed, let alone greatly harmed, if parental rights were terminated, we see no abuse of discretion in the juvenile court’s implicit finding that P.G.’s “need for a safe, stable, and permanent home outweighed the benefit [she] would derive from a continued relationship with” mother. (In re Dakota H., supra, at p. 231.) Accordingly, we uphold the juvenile court’s order terminating mother’s parental rights with respect to P.G.
3. Father’s Appeal
Father also filed a timely notice of appeal from the order terminating his parental rights with respect to P.G. However, in his opening brief he presents no substantive arguments challenging the order. Instead, he argues, “to the extent that any benefits incur to him, [he] joins in [mother’s] request to reverse the termination of parental rights” to P.G. He asserts that if we reverse so much of the order as terminated mother’s parental rights, reversal of so much of the order as terminated his parental rights must follow even if there is no independent error pertaining to him. Our affirmance of the juvenile court’s order insofar as it terminates mother’s parental rights with respect to P.G. disposes of father’s appeal seeking reversal of the order insofar as it terminates his parental rights with respect to P.G.
DISPOSITION
In Case No. A148587, the June 1, 2016 order insofar as it terminated M.G.’s parental rights with respect to W.G. is affirmed. In Case No. A149306, the August 23, 2016 order is affirmed. In Case No. A149399, the petition for a writ of habeas corpus is denied.


_________________________
Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.



Humboldt County Department of Health & Human Services v. M.G., A148587
Humboldt County Department of Health & Human Services v. E.G., et al. A149306
In re E.G. on Habeas Corpus, A149399