Filed 2/6/18 In re A.F. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re A.F., a Person Coming Under the Juvenile Court Law. H044387
(Santa Clara County
Super. Ct. No. 1-13-JD-022036)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M.P.,

Defendant and Appellant.

M.P. (mother), appeals from an order terminating her parental rights to her 10 year-old daughter, A.F., under Welfare and Institutions Code section 366.26 and selecting adoption as A.F.’s permanent plan. Mother contends that the court erred by (1) failing to ensure that the Department of Family and Child Services (DFCS or the Department) gave notice of the section 366.26 proceedings under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and California law implementing ICWA and (2) determining that the beneficial parent-child exception to termination did not apply. We will affirm the order.
Background
A.F. was declared a dependent of the juvenile court twice. In August 2013, when she was nearly seven years old, she was taken into protective custody upon mother’s arrest for driving under the influence while A.F. was unrestrained in the back seat. Mother had an ongoing problem with methamphetamine and alcohol abuse as well as untreated mental health issues. On September 18, 2013, while mother remained in custody and A.F. was in foster care, the court found true the allegations of the amended petition under section 300, subdivisions (b) and (g). The disposition hearing was continued to give DFCS an opportunity to comply fully with the requirement of ICWA to notify all potentially affected tribes.
At the disposition hearing on October 9, 2013, the court declared A.F. a dependent child of the court and removed her from mother’s custody, with reunification services ordered for mother. Mother’s case plan included parenting classes, psychotherapy or counseling, weekly drug and alcohol testing, and substance abuse assessment and treatment. The court also found that J.P. was the presumed father of the child, but his whereabouts were unknown. Neither he nor an alleged father, E.M., was to be offered services. A.F. herself was reported to be affected by hearing and vision problems as well as developmental delays; she was receiving individualized educational services and was scheduled for further disability assessments.
By June 18, 2014, the Department was recommending the return of A.F. to mother with family maintenance services. Mother had complied with her case plan by being involved in A.F.’s education, participating in parenting classes and drug programs, and subjecting to random drug testing (with only one positive test). She had also progressed to unsupervised weekend visits, while living in her own mother’s home. On July 3, 2014, the court ordered the return of A.F. to mother under DFCS supervision.
By December 2014 mother had continued to make progress with her case plan, having “worked hard” to comply with the Department’s requirements. At the Department’s recommendation, unopposed by A.F.’s attorney, the court terminated jurisdiction on December 18, 2014.
The second dependency proceeding was initiated six months later, with the Department’s petition filed June 23, 2015. Four days earlier, as in the previous case, mother was driving recklessly while under the influence, with A.F. unsecured in the car. Mother was again arrested, and A.F. was taken into protective custody and placed in foster care. Mother’s toxicology report indicated the presence of both methamphetamine and alcohol. She was charged with felony child endangerment and felony driving under the influence, and her probation officer intended to charge her with a violation of her probation.
In the report for the jurisdiction hearing, the social worker reported that a police officer familiar with the household had expressed concern about A.F.’s welfare, saying it was in “no way a place for any kid.” The officer had been called to the home several times in the past year to find fighting and drug overdosing. During July that year he had responded to the home and found mother “high as a kite.” Although A.F.’s delays were significant, she was able to convey the fighting that had taken place between her uncle and her mother in the home. One of the child’s maternal uncles, who lived in the home with mother, reported that mother called A.F. “stupid” and other names; A.F. had heard this so long that “she’s used to it.” At eight and a half years old, A.F. needed 24-hour supervision, as she was unable to properly take care of herself. In the maternal grandmother’s three-bedroom home, however, there could be as many as seven adults living there; it was “typically described as dirty, cluttered, and in various stages of repair.” Mother had offered various excuses for not visiting with A.F., such as the need to clean the home or attend class.
At the combined jurisdiction and disposition hearing, the court sustained the allegations of the petition under subdivisions (b) and (c) of section 300 and removed A.F. from mother’s custody. Mother was again required to attend substance abuse assessment and treatment programs along with random testing for alcohol and drug use. She was allowed supervised visits under specified conditions depending on whether she was locally incarcerated, sentenced to prison, or released. A.F. was placed in a confidential foster home.
In November 2015 A.F. was placed with her adult brother, D.H., and his wife, who had moved from Oklahoma to be the child’s caretakers in the maternal grandmother’s home. By the six-month review in February of 2016 both A.F. and her caretakers were happy with the placement. D.H. and his wife had been cooperative with service providers and had worked hard to clean up the home so that it would be safe for A.F. to live there. They had been meeting A.F.’s needs, and they had indicated interest in adopting her if reunification proved impossible. A.F. had expressed worry that she would be taken away from them; she had described her mother’s having yelled at her and pulled her hair. A.F. had made progress not only in articulating her wants and feelings, but in school and in self-care.
Mother had been released from custody in January 2016 and was currently homeless. In addition, she had reported to the social worker that she had been diagnosed with a fatal illness, Huntington’s Disease, and had not been able to obtain treatment for it. Compliance with the visitation arrangements were proving difficult for mother. The court’s six-month order extended mother’s reunification services to the 12-month review in August 2016.
Mother was still encountering the challenges of homelessness by the time of the 12-month hearing on August 3, 2016. She had expressed regret that she had lost custody but was hopeful that she would be able to progress to unsupervised visits. She complained that her family was depriving her of contact with A.F. because of a protective order the maternal grandmother had secured against her. Mother had been in compliance with her probation conditions, but she had not yet completed drug treatment or individual therapy. Drug testing had been irregular. A.F. was continuing to do well in her relative placement and in school. Although her caretakers had encouraged mother to cooperate with them to co-parent A.F., mother continually blamed them for her homeless state and sent them threatening messages. Mother had declared her intention to have nothing to do with her family once she regained custody of A.F. There were indications that mother was drinking, and they had seen her driving although she did not have a license. D.H. had been supervising visits, but by mid-April of 2016 he asked to be relieved of this duty, as mother had been accusing him of cutting visits short even though she had been the one to request the shortened time.
Mother thereafter progressed to unsupervised visits between June and mid-July of 2016, and she wanted to start overnight visits. A.F., however, had told the social worker that she wanted to visit mother but live with D.H. and his wife.
The social worker, while noting his difficulty keeping mother focused on her reunification efforts, nevertheless expressed hope that mother would continue to work on her case plan and rebuild the parent-child relationship. In his July 19, 2016 report he recommended six more months of reunification services. On August 3, 2016 the court continued the 12-month review to September 8, 2016 for a contested hearing. Visitation was to be supervised.
On September 6, 2016, the Department’s recommendation was for termination of parental rights. Mother had missed some scheduled drug tests and had tested positive for methamphetamine on August 3 and 31, but she denied having used drugs on the first occasion. She claimed she had been attending drug abuse recovery meetings but had no attendance slips to verify her participation. She blamed the caretakers for lying about her oppositional conduct and planned to file charges against them and her mother when the case was over.
The social worker noted that he had been hopeful after the August 3 hearing that mother would “focus on her reunification efforts, take responsibility for her actions, get support for her sobriety, and continue to work on addressing the issues that [had] brought her family to the attention of the Juvenile Court.” By this point, however, mother had not been able to address her sobriety issues or to take any responsibility for her actions; instead, she “blamed her family, the situations she [was] in, or other persons” for her experiences. The Department therefore recommended terminating reunification services and setting the matter for a selection and implementation hearing under section 366.26. Although advised of her right to file for writ relief, she did not do so. In October and again between November 13 to December 21 of 2016, she was incarcerated, the second time for violating a no-contact order.
The section 366.26 hearing was continued repeatedly until it finally took place on February 14, 2017. Now 10 years old, A.F. was “happy and physically healthy.” She had been “making strides in many areas of her development, communication skills, and self care.” Since her placement with D.H. and his wife in November of 2015, all of her physical, social, and emotional needs had been met. Her caregivers had developed a “strong and healthy attachment” to A.F. and were “committed to providing [A.F.] with a safe, stable and permanent home.” She referred to them as “mom” and “dad” and wanted to remain in their home. The social worker believed that it was in A.F.’s best interest to be adopted by her relative caregivers; having been through dependency twice, she needed “safety, permanency, and stability.” Although she was a “special needs” child due to her intellectual disability, she was adoptable even if her current caregivers became unable to adopt her. Having observed A.F. during visits and having talked with previous social workers who had supervised visits, the social worker stated that she did not regard the relationship between mother and A.F. as a strong parent-child relationship; instead, it appeared to be “friendship based.” While understanding that this was her mother, A.F. did not seek mother out “in a mothering role” but looked instead to her caregivers when upset or excited. Termination of mother’s parental rights would not, in the social worker’s opinion, cause substantial detriment to A.F.’s emotional well-being; though she would experience some initial loss, she was used to mother’s extended absences during the periods of incarceration, and she was a “very resilient young girl.” The social worker had “no doubt that she would be fine.” She had a “very deep connection” to D.H. and his wife; being adopted by them would alleviate some of the anxiety she felt and give her the “sense of permanency that she so desperately wants” after twice going through dependency. By contrast, there was nothing about her relationship with mother that indicated a benefit greater than adoption; on the contrary, not having the permanency afforded by adoption would be detrimental to her well-being.
In addition to the social worker, mother testified at the hearing. She believed that terminating her parental rights would hurt A.F. because the child would be upset and confused. Mother disagreed with the recommended disposition because she was “really trying” to keep the two of them together as a family. Mother’s attorney urged the court to reject the recommendation in light of the efforts mother had been making to leave her addiction behind her, to visit consistently, and to provide comfort when A.F. was upset during a visit.
A.F.’s attorney agreed that mother loved the child, but emphasized that “our focus right now needs to be on [A.F.’s] best interest,” which was “to make sure that she has a stable future, a stable home with the people that she considers supportive of her and the people who give her comfort. And although she cares about her mom, definitely, the people who right now she relates to in a parental way are Mr. and Mrs. [H.]. Those are the people that she seeks out when there’s something that she needs or when she is upset. Those are the people that she calls ‘mom’ and ‘dad,’ and they are the people who are going to be able to give her a steady, consistent future.”
The court adopted the Department’s recommendation. It acknowledged that mother loved the child, but mother had not met her burden to show a substantial detriment to A.F. if she were adopted. The court thus found by clear and convincing evidence that A.F. was likely to be adopted, and it terminated mother’s parental rights and ordered adoption as the permanent plan for A.F. Mother then filed this timely appeal.
Discussion
1. ICWA Compliance
On appeal, mother asserts that reversal of the termination order is required because “the court made no inquiry of [A.F.]’s Indian status, and it did not ensure that ICWA-compliant notice was served on tribes.” The Department points out that in the first dependency proceeding the court had made a finding that ICWA did not apply. It urges this court to apply res judicata principles to bar the ICWA challenge to the subsequent proceeding; alternatively, the Department argues that additional notice was unnecessary and would have been futile, as mother had no new information about her Indian heritage. Further, no party objected to the court’s reliance on the previous finding that ICWA did not apply.
a. Prior Inquiry
Mother acknowledges that at the outset of the first proceeding the Department inquired and investigated mother’s possible Indian ancestry. In the first petition in August 2013 the social worker learned from the maternal grandmother that “there is Cherokee and Apache ancestry in the family.” Mother had been adopted, and her biological mother lived in Oklahoma. Mother completed a “Parental Notification of Indian Status” indicating that she “may have Indian ancestry” through the Chickasaw and Comanche tribes, naming “Paulette.” On that basis, ICWA notice was ordered. On August 27, 2013, the Department was sent to numerous prospective tribes as well as the Bureau of Indian Affairs (BIA), based on information supplied by the maternal grandmother. The September 2013 jurisdictional report listed the receipt status (“mail receipt received” or “pending”). Disposition was continued in order to ensure receipt of complete information from the notified tribes. In the disposition order the court “deferred” the ICWA inquiry to the case plan.
By November 2013 the Department had received “No” responses from 17 tribes and the BIA, and “receipt received” from three other tribes and the Secretary of the Interior. At the six-month review hearing on April 2, 2014, the court again found that ICWA notice was necessary. At the final hearing dismissing jurisdiction on December 18, 2014, the court made an express finding that ICWA did not apply.
In the second dependency petition the Department listed the possible tribes for membership or eligibility as Apache, Cherokee, Chickasaw, Comanche, and Iroquois. Although in its initial report the Department indicated that ICWA notice should be provided, at the detention hearing mother’s counsel noted that a finding had been made previously that ICWA did not apply. The court asked mother whether there was any new information regarding her Indian heritage, and she responded no. Counsel for the Department also noted that prior finding on December 18, 2014, and she recommended a finding that the Act did not apply. The court asked mother’s counsel whether she had any objection to its making such a finding again, and she said she had no objection. The court accordingly made that finding. The ensuing written detention order stated that the court had inquired and found that ICWA did not apply and notice was not required, based on “the consent of counsel” and its previous finding that ICWA did not apply.
The disposition report for the second proceeding stated that no notice was required. In a report prepared for the 12-month review hearing on September 8, 2016, the social worker noted, “The court has previously found that ICWA does not apply.”
b. Legal Background
“[ICWA] establishes minimum federal standards a state court must follow when removing an Indian child from his or her family. Congress has defined ‘Indian child’ for these purposes as ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.’ ([25 U.S.C.] § 1903(4).)” (In re Abbigail A. (2016) 1 Cal.5th 83, 88 (Abbigail A.).)
“When applicable, ICWA imposes specific requirements on child custody proceedings in state court. Among other things, when ‘the court knows or has reason to know that an Indian child is involved,’ the party seeking to remove the Indian child from the custody of its parent or Indian custodian, or to terminate parental rights, must ‘notify the parent or Indian custodian and the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) If the parent, Indian custodian or tribe cannot be determined, notice must be given to the [BIA]. (Ibid.)” (Abbigail A., supra, 1 Cal.5th at pp. 90-91.)
“The tribe may intervene ‘at any point in the proceeding.’ ([25 U.S.C.] § 1911(c).) Under certain circumstances, the court must ‘transfer such proceeding to the jurisdiction of the tribe.’ (Id., subd. (b).) If the proceeding is not transferred, the party seeking to remove an Indian child must ‘satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.’ (Id., § 1912(d).) The court may not enter an order removing an Indian child ‘in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.’ (Id., subd. (e).) Similarly, an order terminating parental rights requires ‘a determination, supported by evidence beyond a reasonable doubt,’ that continued custody by the parent or Indian custodian is likely to result in such damage. (Id., subd. (f).) Any placement of an Indian child must follow the preferences set out in ICWA. (Id., § 1915.) Finally, ICWA authorizes collateral attacks: When a court removes an Indian child or terminates parental rights in violation of ICWA, ‘any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action . . . .’ (Id., § 1914.)” (Abbigail A., supra, 1 Cal.5th at p. 91.)
“In California, the state with the second largest Indian population (U.S. Dept. of the Interior, BIA, 2013 American Indian Population and Labor Force Report (Jan. 16, 2014) p. 10 [281,374 Native Americans] ), persistent noncompliance with ICWA led the Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into California statutory law.’ (In re W.B. (2012) 55 Cal.4th 30, 52; see Welf. & Inst. Code, §§ 224-224.6.)” (Abbigail A., supra, 1 Cal.5th at p. 91.)
Under California law implementing ICWA, “[i]f the court [or] a social worker . . . knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under [the Welfare and Institutions Code” must be sent to specified recipients (§ 224.2, subd. (a)), including “all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe . . . , after which notice need only be sent to the tribe determined to be the Indian child’s tribe.” (§ 224.2, subd. (a)(3).) An ICWA notice must include, among other information, “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C).)
California law imposes upon “[t]he court [and the] county welfare department . . . an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a) (§ 224.3(a)); see California Rules of Court, rules 5.480(1) [rule 5.480 et seq. applies to proceedings under § 300], 5.481(a) [affirmative and continuing duty to inquire].) “If the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the [BIA] and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (§ 224.3, subd. (c).)
“Notwithstanding a determination that the [ICWA] does not apply to the proceedings made in accordance with subdivision (e), if the court [or] social worker . . . subsequently receives any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker . . . shall provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the [BIA].” (§ 224.3, subd. (f).)
Section 224.3, subdivision (e)(3), (section 224.3(e)(3)) provides: “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the [ICWA] and apply the act prospectively if a tribe or the [BIA] subsequently confirms that the child is an Indian child.” “Reading section 224.3(a) together with section 224.3[(e)(3)] underscores the continuing nature of the juvenile court’s duty.” (In re Isaiah W. (2016) 1 Cal.5th 1, 11 (Isaiah W.).)
“Section 224.3(e)(3) implicitly recognizes that any finding of ICWA’s inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty under section 224.3(a) to inquire into a child’s Indian status in all dependency proceedings. (See Dwayne P. [v. Superior Court (2002)] 103 Cal.App.4th [247,] 261 [‘Because the court’s duty continues until proper notice is given, an error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.’].) Only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days does section 224.3(e)(3) authorize the court to determine that ICWA does not apply. The effect of that determination is to relieve the court of the duty it would otherwise have under section 224.2, subdivision (b) to provide ICWA notice ‘whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter.’ ” (Isaiah W., supra, 1 Cal.5th at p. 11.)
“Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, . . . the parent may challenge a finding of ICWA’s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.” (Isaiah W. supra, 1 Cal.5th at p. 6.) “ ‘[G]iven the court’s continuing duty throughout the dependency proceedings to ensure [that] the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents’ inaction does not constitute a waiver or otherwise preclude appellate review.’ [Citations.]” (Id. at p. 13.)
c. ICWA Compliance in the Second Proceeding
In this case the Department complied with the notice requirement under ICWA and with section 224.2. Once it was determined in December 2014 that ICWA did not apply, a finding mother did not oppose in that proceeding, further notice was unnecessary—and mother had regained custody at that point anyway. At the detention hearing in the second dependency proceeding, the court asked mother whether there was any new information regarding her Indian heritage and received a negative answer. Her attorney had no objection to the court’s finding that ICWA did not apply; mother thus not just forfeited, but waived further inquiry. Moreover, compelling the Department to again undertake the task of notifying the same entities would have been only a fruitless exercise that would have had the unfortunate consequence for A.F. of unnecessarily delaying the permanency and stability to which she was entitled. In the circumstances presented here, no prejudicial error occurred in the second dependency proceeding when the juvenile court, with the concurrence of all parties, relied on its previous conclusion regarding the inapplicability of ICWA.
2. Applicability of the Beneficial Parent-Child Exception
Mother contends that termination of her parental rights was error because there was a “sufficiently strong bond” between her and A.F. to show that A.F. would suffer detriment from ending the parent-child relationship. The juvenile court properly found otherwise.
The overriding objective of the dependency process “is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307 (Marilyn H.).) “When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) Where reunification efforts have failed, “ ‘the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. [Citation.]’ ” (Ibid.)
In selecting that permanent plan, the court must recognize the legislative preference for adoption. (§ 366.26, subd. (c)(1).) “ ‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ [Citation.] ‘Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.’ [Citation.]” (Celine R., supra, 31 Cal.4th at p. 53.) Thus, “the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ [Citation.] At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Ibid.)
In this case, mother invokes the exception for a beneficial parent-child relationship set forth in section 366.26, subdivision (c)(1)(B)(i). Under that provision the court may forgo termination if it “finds a compelling reason for determining that termination would be detrimental to the child” because “ ‘[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” The element of benefit from continuing the relationship “means that ‘the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with . . . adoptive parents.’ (In re Autumn H[. (1994)] 27 Cal.App.4th [567,] 575.) The juvenile court ‘balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging [an adoptive] family would confer.’ (Ibid.) ‘If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ (Ibid.)” (In re C.B. (2010) 190 Cal.App.4th 102, 124 (C.B.); In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).)
However, “the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.), italics added; Breanna S., supra, 8 Cal.App.5th at p. 646; In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, at p. 1350.)
It was mother’s burden to establish the applicability of the parent-child relationship exception. (In re Mary G. (2007) 151 Cal.App.4th 184, 207; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show 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.] . . . Achild 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.” (Angel B., supra, 97 Cal.App.4th at p. 466.) But “[t]o meet the burden of proving the . . . 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 (I.W.).) Further, the parental relationship must “promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575 (Autumn H.).) Though the analysis must occur on a case-by-case basis with many variables taken into account, the court should consider such factors as “the age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs.” (Id. at p. 576.)
On appeal from a court order terminating parental rights following the court’s determination that the beneficial parent child relationship exception does not apply, it is often said that we review the juvenile court’s findings of fact under a substantial evidence standard and its discretionary decision regarding the existence of a compelling reason under an abuse of discretion standard. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315; see In re K.P. (2012) 203 Cal.App.4th 614, 621-622; C.B., supra, 190 Cal.App.4th at p. 123.) However, when a parent has failed to meet the burden to show a beneficial relationship, “the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the [parent’s] evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (I.W., supra, 180 Cal.App.4th at p. 1528.) Thus, “unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed.” (Bailey J., supra, at p. 1314.)
The second threshold question—whether there is a compelling reason not to terminate parental rights based on a beneficial parent-child relationship—is “a quintessentially discretionary” decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1351; accord, Bailey J., supra, 189 Cal.App.4th at p. 1314; see also C.B., supra, 190 Cal.App.4th at pp. 123-124.) “ ‘ [“]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “The abuse-of-discretion standard requires us to uphold a ruling which a reasonable judge might have made, even though we would not have ruled the same and a contrary ruling would also be sustainable. We cannot substitute our own judgment. [Citations.]” (People v. Woods (1993) 12 Cal.App.4th 1139, 1153.)
Mother maintains that the undisputed facts demonstrated that she and A.F. enjoyed a beneficial relationship because she regularly visited with A.F. and occupied a parental role in the child’s life, including meeting her “special, education, and medical needs.” Mother compares this case to In re Jerome D. (2000) 84 Cal.App.4th 1200, in which the appellate court overturned a finding that the mother had not met her burden to show a beneficial relationship with her nine-year-old son. That case, however, is distinguishable. Jerome was not a special-needs child, and he had expressed his wish to live with his mother again. Furthermore, a psychologist had observed the parent-child relationship to approach a primary bond, and there appeared to be “no woman in his life other than [the mother] with whom he had a beneficial relationship.” (Id. at p. 1207.) Even the court characterized their relationship as parental. Jerome’s current caretaker (his mother’s former boyfriend) was willing to adopt Jerome, but he had “serious shortcomings,” including a history of domestic violence in the presence of his children. (Id. at p. 1208.) Jerome’s own attorney agreed that a permanent plan other than adoption was required.
Here, the court credited the expert testimony of the current social worker, Kellie Brasil, regarding the elements needed to overcome the preference for adoption. Brasil stated that A.F. was adoptable, notwithstanding her intellectual disabilities. Based on her own observations and discussions with previous social workers who had supervised the visits, Brasil described the relationship between A.F. and mother not as one of parent and child, but as “friendship based.” Brasil did not believe that termination of mother’s parental rights would cause A.F. to suffer substantial detriment to her emotional well-being. In Brasil’s opinion, adoption would alleviate some of the anxiety A.F., having gone through dependency twice, had about the uncertainty of her placement, and it would give her a permanent and stable future. A.F.’s counsel, while acknowledging that mother loved A.F. and wanted to keep her, believed that the plan for adoption by D.H. and his wife was in A.F.’s best interests, as they were the people A.F. “relate[d] to in a parental way” and who supported her emotionally and were able to give her “a steady, consistent future.” From this evidence the court could properly find that mother had failed to show 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.” (Angel B., supra, 97 Cal.App.4th at p. 466.) Nor had she demonstrated that the relationship between her and A.F. “promote[d] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with [her] adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Given these facts, the court did not abuse its discretion by finding that no substantial detriment would result from A.F.’s adoption by her current caretakers, and by concluding accordingly that the beneficial parent-child exception did not apply.
Disposition
The order is affirmed.




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ELIA, ACTING P. J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.












In re A.F.; DFCS v. M.P.
H044387