IN RE A.B.

No. D071579.

In re A.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.B., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Joseph T. Tavano , under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery , County Counsel, John E. Philipsm , Chief Deputy County Counsel, and Tahra C. Broderson , 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NARES, J.

San Diego County Sheriff's deputies arrived at the home of J.B. (Mother) and J.B., Sr. (Father) to find Father wandering around outside with a machete and a flashlight, looking for his minor children. Inside, there were knives all over the house, trash in the children's beds, exposed wires, and stairs with no safety barriers. Mother and Father both have a history of mental illnesses. Family members reported that Father is an alcoholic who has gotten "progressively worse."

After removing the children from the parents' custody, the court ordered the San Diego County Health and Human Services Agency (Agency) to provide reunification services. After Mother and Father failed to make substantial progress for 18 months, the court terminated reunification services.

Subsequently, Mother filed petitions for modification under Welfare and Institutions Code section 3881 alleging changed circumstances. She requested that her five children be placed with her and that she receive family maintenance services.

The juvenile court denied Mother's section 388 petitions without holding an evidentiary hearing. At the selection and implementation hearing (§366.26), after it found the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply, the court terminated Mother's and Father's parental rights and ordered a permanent plan of adoption for the children.

Mother appeals, contending the court erroneously (1) denied her section 388 petitions, and (2) determined the beneficial parental relationship exception to terminating parental rights did not apply.

We affirm. The juvenile court did not abuse its discretion in denying an evidentiary hearing on Mother's section 388 petitions, and substantial evidence supports the court's finding that the beneficial parental relationship exception does not apply.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Section 300 Petitions

Mother and Father married each other in October 2007 and have five children: A.B. (born 2009), C.B. (born 2011), X.B. (born 2013), and twins J.B., Jr. and E.B. (born 2014).

In December 2014 Father called the sheriff's department to report two of the children were missing. When deputies arrived at the home, Father was intoxicated, wandering outside with a machete looking for the children in bamboo. He was so intoxicated he did not realize that Mother and the children were elsewhere.

Inside the home, deputies saw swords leaned up against a wall, knives "left everywhere in access to the children, trash in the kid's beds and food everywhere in the home." When the Agency inspected the home a few days later, they saw empty glass beer bottles, exposed wires connected to electrical outlets, unsecured power tools, and hazardous chemicals on the floor.

Mother has a history of mental illness and section 5150 holds.2 In 2013 Mother was hospitalized after "banging herself on the floor and furniture at home." In 2014 Mother was being treated for anxiety, depression, and bipolar disorder. Father has a history of depression and anxiety, including a suicide attempt in November 2013 when he tried to strangle himself with a belt.

Family members told the Agency that Father is an alcoholic. The children stated Father "[d]rinks and acts crazy and mean" and spanks their "[b]ottoms and face."

When removed from the parents' home, X.B., who was then less than two years old, had a bruise to his left eye and a possible burn on his finger. A.B. said X.B. got the bruise from Father, although the parents denied this.

Mother said Father "has a drinking problem and that he drinks daily." Previously, Mother said that if Father drank again, she would take the children and leave; however, she returned two days later.

Father denied having an alcohol problem. He said he has Crohn's disease, and when deputies found him with the machete he was having a "psychotic episode" caused by not taking his prescribed medicine.

When a deputy began taking photographs of the home, Mother became irate, yelling and waving her arms while holding one of the children. Fearing that Mother would assault them or drop the baby, deputies handcuffed Mother and arrested her for obstructing an officer. They also arrested Father and Mother for child endangerment.

The Agency filed a section 300 petition for each child, alleging Father's substance abuse and the parents' mental illness placed the children at substantial risk of serious harm. The court ordered the children detained. A.B., C.B., and X.B. were placed with a nonrelated extended family member. The twins were placed with nonrelated extended family members Brad and Lori S.

B. Jurisdiction Hearing

When the Agency met with Mother, she admitted having severe depression and borderline personality disorder. She took prescribed medication to help with "wild mood swings."

At the contested jurisdictional hearing, the court found the children were minors described in section 300, subdivision (b). The court found there was a substantial risk to the physical health of the children if returned to the parents' custody, ordered custody removed and the Agency to provide reunification services. The court ordered Mother to attend therapy to specifically address codependency issues. Mother's case plan objectives included (1) providing her children with a safe and stable home, and (2) developing a support system to ensure she attended meetings, took her medication, and kept the home clean and safe.

C. Six Month Review

In the first six months of reunification services, Father relapsed on alcohol. Mother admitted she was depressed and contemplated suicide. There was also domestic violence. In April 2015 Mother appeared at a friend's home unexpectedly at night without shoes and appearing disheveled. She told the neighbor she feared Father would kill her. The next day, Mother tried to harm herself by jumping out of a moving car.

In the first six months of the reunification period, Mother participated in therapy, psychotropic medication management, and parenting classes. Although she made some progress, she continued to deny responsibility for court involvement, and continued to assert Father was not drunk when he was wielding a machete in December 2014.

Father participated in substance abuse treatment, but relapsed on alcohol in March 2015 and again in April 2015.

During this period, Mother and Father visited the twins four days a week and were having weekly supervised visits with their other three children. Generally, these visits went well. The visitation monitor reported that the parents demonstrated a parental role, responded appropriately to their children, and placed the children's needs above their own.

A.B. and C.B. were both receiving in-home therapy. The therapist stated A.B. was "parentified in the sense that she has had relatively little stability to turn to for orientation, guidance, security, and protection. This has been due to chronic, severe, complicated and untreated mental illness in her father, mother, and parental relationship rendering them incapable of providing consistent and safe care children require."

The children's court-appointed special advocate (CASA) reported that A.B. was now living with Brad and Lori S. (who were also caring for the twins). Father's adult son from a previous marriage, Robert, along with Robert's wife, Annalise, were now caring for C.B. and X.B. The CASA believed that Mother and Father "have been unable to make progress on the issues that led to the removal of their children" and recommended the court terminate reunification services.

On August 11, 2015, Father threatened suicide. Sheriff's deputies responded to the home. Father said he was depressed but not suicidal. The deputy smelled alcohol. About 10 days later, the Agency recommended the court terminate Father's reunification services.

Although it had been several months since the children were detained, the home remained unsafe. The entry was strewn with tools and an open stairway, a balcony was "even not safe for the dogs to go out on," and a bedroom was being used as a storage space piled with clothing and junk.

In September 2015 Father returned to substance abuse treatment, and Mother, who had separated from Father for a few days in August, moved back in with him. Mother now denied she had been the victim of any domestic violence.

On October 15, 2015, the Agency recommended Mother and Father receive six more months of reunification services. By this time, Father had successfully completed an inpatient substance abuse program. Also, because Mother and Father were living together again, the Agency concluded "it is not in the best interest of the family to cease services for one parent while providing them to the other."

At the October 2015 contested six-month review hearing, the court ordered continued out-of-home placement for the children and continued reunification services for Mother and Father. The court ordered the parents to have supervised and separate visitation.

D. One Year and 18-Month Reviews

1. January through March 2016

Father relapsed on alcohol twice in January 2016, but still refused to acknowledge his alcohol addiction was a problem.

Mother continued participating in services, including taking medication for her mental illness, participating in individual therapy, and attending a parenting program. She visited the children and drove X.B. and C.B. to therapy weekly and helped A.B. with school work.

Despite Father's relapse, Mother said she would not leave him, regardless of whether he was drinking or not. She said if she left Father he would not be able to "fend for himself and he would kill himself." Mother admitted she had no plan to keep the children safe. Her therapist stated, "She is willing to pick dad over her five kids," and "[i]f the children were to return and the father drank alcohol, she wouldn't call or tell anyone." The therapist stated Mother and Father "are extremely co-dependent upon each other which hinders the parents creating safety for the children."

A.B. and the twins remained with Brad and Lori S. C.B. and X.B. were with Robert and Annalise. All five siblings were spending much of the week together. While Robert and Annalise were at work, C.B. and X.B. stayed with A.B. and the twins at Brad and Lori's home. On weekends, A.B. went to Robert and Annalise's home to be with C.B. and X.B.

Mother and Father were each receiving two separate supervised visits per week with the children. Starting November 2015, Mother began unsupervised visits with A.B., C.B., and X.B.

In January 2016 Mother and Father began unsupervised visits in the family home. After these visits, the children had significant behavioral problems. X.B. started urinating in his pants. The children's frequency of tantrums escalated, particularly for X.B. and C.B.

Brad and Lori S. stated they were willing to adopt A.B. and the twins. Robert and Annalise stated they were willing to adopt C.B. and X.B. Mother agreed with the caregivers adopting the children, stating, "I'm okay with it as long as they are with people who love Jehovah."

After three continuances, the court scheduled the 12-month review for May 2016.

2. April through May 2016

Initially, by April 2016, the reunification plans seemed to be working. Mother and Father successfully completed a parenting program. And Mother was now appropriately interacting with the children. In fact, a substance abuse specialist who observed Mother with the children thought Mother was a social worker. The Agency stated that Mother has "increasingly asserted herself and has been determined to provide safety for her children while remaining in a relationship with [Father]."

The parents were also attending conjoint therapy. That therapist suggested more sessions were appropriate, stating:

"We are just getting started in therapy. There is [sic] definitely co-dependency issues working in this couple, it is going to take some work. My main concern would be [Mother] covering for him. The parents have depression and anxiety issues and [Mother] has strong dependency issues. . . . The children appear to be secondary to their relationship."

The Agency recommended Mother and Father receive reunification services to the 18-month review date. The Agency concluded that "for [Mother] to achieve return of the children she will need to address co-dependency with her current therapist, participate in conjoint therapy with [Father] to further address co-dependency and develop a safety plan around the father's alcohol use and domestic violence. Additionally, she will need to demonstrate the capacity to keep the children safe in the event [Father] is drinking; as we have reason to believe will happen again."

However, about a week later, the CASA informed the court of disturbing new information. After a recent unsupervised visit with Mother, A.B. (now almost seven years old) returned to her caregiver's home singing, "I don't care if you drink, daddy, I love you the way you are."

After another unsupervised visit with Mother, A.B. regressed in her behavior, asking for help getting dressed and brushing her teeth, tasks she had previously mastered and completed independently. A.B. also began yelling at her caregivers, throwing tantrums, and acting defiantly, particularly after visiting Mother and Father.

Equally disturbing, after an unsupervised visit with Mother and Father, X.B. (now age three) defecated in his bed and then smeared the feces on the sheets and bedding. When asked why he did that, X.B. said, "I was sad, and then I was mad." X.B. also returned from unsupervised visits with Mother and Father wearing different clothes because he had bathroom accidents during the visits. This was atypical behavior; X.B. had been toilet-trained for quite some time.

After one unsupervised visit with Mother and Father, C.B. (now four years old) reported, "Mommy said it's ok to keep secrets so daddy doesn't get in trouble." C.B. also began exhibiting "much more needy behavior . . . as she craves constant attention all the time and does not want to be in any room of the house alone."

The CASA reported the twins referred to Brad and Lori S. as "mom" and "dad." At a scheduled visit with Mother and Father, E.B. clutched onto Brad's pant leg to avoid being with them.

The CASA concluded that Mother and Father "have not progressed to consistent conjoint unsupervised visits with all five children due to inconsistencies on their case plan progress." The CASA also reported that Mother and Father had received low scores "in the following areas: demonstrating parental roles, knowledge of child development, putting the needs of the children above their own, and showing empathy toward the children." After noting that the children's "behavior problems have sharply escalated since the reintegration of visitation with [Father] and [Mother] over the past six weeks," the CASA recommended the court terminate reunification services.

On May 2, 2016, the Agency filed an addendum report, which contained conflicting opinions about Mother's progress. The conjoint therapist reported, "[Mother] is always putting her husband first. She is not putting children's needs first." When the therapist asked Mother for her plan if she had to leave Father for the children's safety, Mother replied, "I would never leave my husband." Mother stated that if she had to choose between her children and her spouse, she would choose her spouse. The conjoint therapist concluded, "I am very concerned. They have been in the system for a year, it seems like [Mother] has just begun. She [is] not willing to always put her kids first, that's pretty telling. . . . The children in her mind will never come first. . . . The mother has no self-esteem, no sense of self, dependent upon her husband."

However, Mother's individual therapist gave a very different assessment, stating Mother "is doing really well" and said she would leave Father, "kick him out or go elsewhere." Another therapist stated, "The kids are doing well with parents during the visits; they have fun playing with them."3

The Agency recommended services be extended to 18 months, and that Mother have unsupervised visitation. The court ordered the 12- and 18-month review to be heard in June 2016.

3. June 2016

In May 2016 Mother and Father were living together and both remained unemployed. Father again relapsed on alcohol. Mother minimized the problem and refused to leave him, even though she had agreed to do so as part of her safety mapping plan.

At about the same time, there were conflicting opinions being reported about the parents' visitation. The parents'"family visit coach" stated the children "do not display any issues with their behavior when with the parents. Overall the visits go well. . . ." But the caregivers themselves reported very different behavior. According to them, A.B. and C.B. were yelling and screaming at each other and at times A.B. pushed C.B. X.B. hit and spit at C.B. A.B. returned from parental visits displaying defiant behavior and constantly arguing.

On June 7, 2016, the Agency recommended that the court terminate reunification services, explaining:

"During the past 18 months the parents have displayed a pattern of [Mother] saying she will separate from [Father] and not doing so, [Father] relapsing, [Mother] not following through on what she previously said she would do, and parents not putting the children's needs ahead of their own dysfunctional relationship."

The Agency also stated Mother and Father "have been unable to rectify the issues that brought them to the Agency's attention." Father continued to drink alcohol, despite receiving treatment. Mother refused to accept the reality of his addiction and her role in keeping the children safe. Although the support network Mother and Father identified said they will help, the Agency noted they "never do." Therefore, the Agency concluded, "no safety planning has occurred." Although Mother has participated in unsupervised visits, the Agency concluded "it remains detrimental" to return the children to the parents.

At the combined contested 12- and 18-month review hearing, the court found that returning the children to the parents would create a substantial risk of detriment to their physical and emotional well-being. The court terminated reunification services, but authorized Mother to continue having reasonable unsupervised visits.

E. Postreunification

After the reunification period ended, Mother continued to attend individual therapy. On September 14, 2016, her therapist said Mother continues to "blatantly choose her husband" even after multiple relapses and denies domestic violence occurred. The therapist was also concerned Mother and Father would "potentially commit[] a `dual suicide.'"

These words were almost prophetic. On September 20, 2016, after learning the Agency would be recommending termination of parental rights and a plan of adoption, Mother threatened she and Father would commit suicide.

On the same day, September 20, Father became intoxicated and argued with Mother about the children. After threatening to "get something to smash [Mother's] head in," Father took a trowel used for grouting tile and struck Mother in the head while strangling her. When Father let go to get a hammer, Mother escaped and called police. Sheriff's deputies arrested Father for assault with a deadly weapon and domestic violence.4 After being released from custody, he moved out of the house.

About a week later, Mother obtained a temporary restraining order against Father. On October 14, 2016, the court issued a domestic violence restraining order against Father.

F. Mother's Section 388 Petition

On December 9, 2016, Mother filed a section 388 petition for return of the children.5 As changed circumstances, Mother asserted she was separated from Father and obtained a restraining order against him. She also claimed to have "resolved other safety issues and gained insight into the protective issues in this dependency case" by continuing to participate in therapy.

The court denied Mother's section 388 petition without an evidentiary hearing, stating, "There may be some changing circumstances, but there clearly isn't even a prima facie showing of changed circumstances." The court also noted that "[d]omestic violence has been an issue in this case since the beginning" and Mother "is still at supervised visitation."

G. The Contested Section 366.26 Hearing

On December 30, 2016, the court conducted a contested selection and implementation hearing under section 366.26. The Agency recommended the termination of parental rights and a permanent plan of adoption for the five children.

X.B and C.B. had been residing with Robert and Annalise since February 2016. Robert is their paternal half-brother, and he has known these children their whole lives. He and Annalise have been married for one year and are both employed.

A.B. and the twins had been residing at Brad and Lori S.'s home since May 2015 and December 2014 respectively. Brad and Lori S. have been married for 16 years and both are employed. They have known these children for most of the children's lives. The twins, who were taken out of Mother and Father's home at just three months of age, refer to Brad and Lori as "mommy" and "daddy." Although A.B. states she would like to return to her parents' care, she also said she is all right with living with Brad and Lori S. and feels safe there.

In a report dated October 13, 2016, the Agency stated the children are "generally adoptable" due to their "young age, excellent health, and generally happy disposition." The children are also specifically adoptable "due to their caregivers who wish to adopt and provide the children with permanency if parental rights are terminated."

The Agency noted that Mother had been "very consistent in visiting her children." During visits in August 2016, Mother brought the children food, fed them, took them all to the restroom, played with them, comforted them, and when Mother pushed A.B. and C.B. on the swings, E.B. said, "Mommy mommy mommy." An addendum report dated December 9, 2016, states Mother's supervised visitation was consistent; she provided food and age appropriate activities. At the end of the visits, the children did not cry and generally followed directions when transitioning to the caregivers.

The Agency noted the children have been separated from their parents for almost two years, which "has affected the parent-child relationship." The social worker stated that "typical behaviors that are characteristic in a strong parent-child relationship include[] children constantly asking for their parents, showing anxiety and anguish after physical separation and appearing distressed with their absence." The social worker noted that "[t]hese behaviors have not been observed with the children." During visits with Mother, A.B. "appears to be anxious" and "takes on a parental role where she constantly checks on the whereabouts of her siblings." The social worker concluded, "Although [A.B.] has stated that she wants to return to her biological parents, her parentified behavior during visits is an indication of anxiety under the presence of her parents. A permanent plan of adoption will provide the children with the permanency and stability they need in order to thrive."

In sum, the Agency recommended a permanent plan for adoption, stating:

"The children are physically thriving in their current placement. The caregivers have provided the children with nurturing and stable homes. They have taken the parental role in their lives. The children look at their caregivers as their parental figures and the caregivers get their daily needs met. The children have been dependents of the Juvenile Court for almost two years and they deserve the permanency that their caregivers are willing and committed to provide."

In a 15-page report, the CASA concurred with the Agency's recommendation.

The court read and considered the Agency's October 13, 2016 report, the CASA report of the same date, and two addendum reports dated December 30, 2016. At the hearing, the social worker testified, and the court received in evidence A.B.'s stipulated testimony that she loves Mother and misses her. A.B. also testified (by stipulation) that "[i]n a perfect world, her first choice would be to live with Mom, Dad, and siblings and no one else. Her second choice would be to live with Lori and Brad where she lives now."

The court found the Agency's assessment to be "sound." The court also "paid particular attention to the information provided in the CASA's very extensive report. . . ." The court determined all five children were generally and specifically adoptable.

The court also determined the parents had not met their burden of demonstrating "that there is a parent/child exception which would cause the Court not to order adoption. . . ." Balancing "this relationship that exists between the children and the parents with the benefit of having a home that is stable," the court stated the parents had not shown "that the parent/child bond exception exists in this particular case that would outweigh the benefits of a permanent and stable home for these children." The court terminated parental rights and ordered adoption as the permanent plan.

DISCUSSION

I. THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING MOTHER'S SECTION 388 PETITION WITHOUT AN EVIDENTIARY HEARING

A. Legal Standards under Section 388

The dependency statutes balance numerous competing interests, including the interest in preserving a family unit; the parents' interest in the custody and care of their children; and the children's interest in a stable, permanent relationship with a fully-committed caretaker. (In re Zacharia D. (1993) 6 Cal.4th 435, 446 (Zacharia D.).)

Once the court terminates reunification services, the focus shifts to the needs of the child for permanency and stability. (Zacharia D., supra, 6 Cal.4th at p. 447.) However, to allow the court to consider new information even after termination of reunification services, a parent may file a section 388 petition for modification of a court order. (Zacharia, at p. 447.)

To obtain an evidentiary hearing on a section 388 petition, the petitioner must allege facts establishing a prima facie case that (1) circumstances have changed since the prior juvenile court order, and (2) the proposed modification will be in the child's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)

To obtain an evidentiary hearing, it is not enough to show changing circumstances, because that does not benefit the child. The circumstances must have actually changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A change in circumstances must be substantial and permanent. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 (Marcelo B.) [recent sobriety from long-standing alcoholism was insufficient]; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.) [mother's recent sobriety reflects changing, not changed circumstances given her history of relapses, despite her completion of a drug treatment program].) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (Casey D., at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).)

A section 388 petition must be "liberally construed in favor of granting a hearing to consider the parent's request." (Marilyn H., supra, 5 Cal.4th at p. 309.) However, the juvenile court need not hold an evidentiary hearing unless a parent makes a prima facie case of both a change in circumstances or new evidence and that the proposed modification would promote the child's best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.)) "A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause." (Ibid.) "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." (Ibid.) "In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 62.)

B. The Standard of Review

We review the denial of a section 388 petition without a hearing for abuse of discretion. (G.B., supra, 227 Cal.App.4th at p. 1158.) We do not disturb the juvenile court's ruling unless it "`"exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

C. Analysis

The juvenile court did not abuse its discretion in determining Mother failed to establish a prima facie case of changed circumstances. Mother's section 388 petition alleged the following changed circumstances: (1) Mother and Father have been living apart since late August or early September 2016; (2) Mother has gained insight into the protective issues in this case by continuing to maintain her mental health, taking prescribed medication, attending therapy, and addiction recovery support group meetings; and (3) Mother has continued to visit regularly with her children.

The court could reasonably view Mother's assertion she had permanently separated from Father as a changing—but not a changed—circumstance. Throughout the two-year case, Mother had said she would separate from the Father because of his alcoholism and/or domestic violence, but she always returned to him. For example, in December 2014 she told Father if he drank again, she would take the children and leave, which she did. However, she came back after two days. In August 2015 she separated from Father for one week, but later returned. In or about September 2015, after Mother separated from Father because of domestic violence, she again returned. At that time, the Agency stated, "It now appears [Mother] has returned to the home of [Father] and the separation was short lived." In November 2015 Mother again separated from Father, only to return again.

Moreover, on other occasions, Mother stated she would never separate from Father. In January 2016 Mother said "she will not be leaving Father." In February 2016 Mother's therapist stated, "She is willing to pick dad over her five kids." In May 2016 Mother's therapist stated, "The children in her mind will never come first."

In ruling on the section 388 petition, the court properly considered all these facts, stating, "I've read and considered the entire file." The juvenile court reasonably concluded Mother's recent separation from Father evidenced, at best, changing circumstances, which is insufficient to warrant an evidentiary hearing. (Marcelo B., supra, 209 Cal.App.4th at p. 642; Ernesto R., supra, 230 Cal.App.4th at p. 223.)

Instead of explaining why the court's finding was an abuse of discretion, Mother points to other facts—for example: she attended therapy, substance abuse recovery meetings, and took prescribed medication. She contends this, plus the domestic violence restraining order she obtained, show changed circumstances because she "alleviated the protective issues."

However, under the abuse of discretion standard of review, we must affirm a decision that is reasonable—and this one was. Throughout the two-year case, Mother had frequently separated from Father because of his alcoholism and domestic violence—only to return again. In denying Mother's section 388 petition, the court noted that in June 2016 the Agency filed a status report stating, "[T]he parents have displayed a pattern of [Mother] saying she will separate from [Father] and not doing so, [Father] relapsing, [Mother] not following through on what she previously said she would do, and parents not putting the children's needs ahead of their own dysfunctional relationship." Under these circumstances, the court reasonably determined Mother and Father's most recent separation was a changing circumstance, but not a changed circumstance.6

Moreover, Mother had been suffering from mental illness since at least 2008. Some eight years later in October 2016, the CASA reported the Mother's mental health issues "still exist." The CASA also noted, "Despite the children's very young age at the time of removal, the parents were afforded 18 months of reunification services and referred for the following: psychological evaluations, individual therapy . . . parenting skills training . . . and therapy to address domestic violence and co-dependency. Although they were afforded many services, the parents were still unable to achieve substantive progress. [Mother]has continued to display suicidal ideation and a lack of insight as to the causes for removal. . . ." (Italics added.)

In light of this history, the court reasonably determined that what Mother alleged in her section 388 petition showed she was moving in the right direction—but had not yet changed.

Because Mother failed to show changed circumstances, we need not consider whether she established a prima facie case that the proposed modification would be in the children's best interest. (G.B., supra, 227 Cal.App.4th at p. 1157 [parent seeking modification under section 388 must show "both a change in circumstances or new evidence and the promotion of the child's best interests."].)

II. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S FINDING THAT THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION DID NOT APPLY

A. Legal Standards for Termination of Parental Rights and Standard of Review

"`After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a "placement that is stable, permanent, and that allows the caretaker to make full emotional commitment to the child."'" (In re Jason J. (2009) 175 Cal.App.4th 922, 935.) At the section 366.26 selection and implementation hearing, the juvenile court has three options: (1) Terminate parental rights and order adoption as the permanent plan, (2) appoint a legal guardian for the dependent child, or (3) order the child placed in long-term foster care. (Jason J., at pp. 935-936.)

"Adoption . . . is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Thus, "[i]f the child is adoptable, there is a strong preference for adoption over alternative permanency plans." (In re Michael G. (2012) 203 Cal.App.4th 580, 588 (Michael G.).)

At a section 366.26 hearing, once the juvenile court finds the child is likely to be adopted within a reasonable time, the court "is required to terminate parental rights and select adoption as the permanent plan unless the parent shows that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivisions (c)(1)(A) and [(c)(1)](B)." (Michael G., supra, 203 Cal.App.4th at p. 589.)

The beneficial parent-child relationship exception in section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if the juvenile court finds a "compelling reason for determining that termination [of parental rights] 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(c)(1)(B)(i).)

The parent bears the burden of proving these statutory elements. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) This is a very difficult burden to meet. Courts have said 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.) "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., at p. 1350.)

Here, the Agency concedes Mother maintained regular visitation and contact with the children. Therefore, we address only the second prong—whether the children would benefit from continuing the relationship.

This court has interpreted the statutory phrase "benefit from continuing the relationship" to mean that the parent-child 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 new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) We explained in Autumn H. that, in determining whether the child would benefit from continuing the parent-child relationship for purposes of the beneficial parent-child relationship exception, 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 a new family would confer. 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 other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

"Interaction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, to meet the burden of establishing the applicability of the beneficial parent-child relationship exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108 (Andrea R.).)

Furthermore, "[a] biological parent who has failed to reunify with an adoptable child may not derail an 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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, second italics added.)

"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)

B. Evidentiary Issues

Mother contends the order terminating her parental rights should be reversed because the court erred when it found the beneficial parent-child relationship exception did not apply. To support this assertion, she first contends the court erroneously sustained objections to questions her attorney asked Laura Chavis, a social worker:

"Q: Would you agree with me that given your recent conversations with [Mother's] physicians that it appears her mental health is currently stabilized? "[County Counsel]: Objection. Relevance. "The Court: Sustained. [¶] . . . "[Mother's lawyer]: Your Honor, under In re S.B. [(2008) 164 Cal.App.4th 289], I do believe that a parent's current circumstances is [sic] relevant. . . . "[County Counsel]: I further object on the grounds of hearsay and lack of foundation. "The Court: I'm going to sustain the objection. [¶] . . . "[Mother's lawyer]: Ms. Chavis, to the best of your understanding is [Mother] still participating in individual therapy. . . . "[County Counsel]: Objection. Lack of foundation. Calls for hearsay. "The Court: Sustained."

Mother asserts the court erred in sustaining these objections because her current mental health status "was relevant to show she met the beneficial parent-child relationship exception, i.e., that it would benefit her children to continue their relationship with their mother because she was mentally stable and participating in services." Assuming without deciding such evidence is relevant as Mother claims, her argument nevertheless fails because the court did not sustain the objections only on relevancy grounds. The court also sustained hearsay and lack of foundation objections to both questions.

In her briefs, although Mother argues the relevancy of the excluded evidence, she ignores the hearsay and lack of foundation objections. Accordingly, the issue is forfeited. (See City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463 [challenge to evidentiary rulings forfeited where appellant failed to separately identify and discuss individual objections].)

In any event, even if the issue were not forfeited, we would reject Mother's argument on the merits. The first question ("given your recent conversations. . . .") calls for hearsay, and the second question ("to the best of your understanding. . . .") also calls for hearsay and lacks foundation. In response to the hearsay objections, counsel did not assert any exception to the hearsay rule applied. (People v. Livaditis (1992) 2 Cal.4th 759, 778 [the proponent of hearsay must alert the court to the exception relied upon and has the burden of laying the proper foundation].) The court properly sustained these objections.

C. Substantial Evidence Supports the Court's Determination Regarding the Parent-Child Bond

The court determined the relationship between Mother and the children did not "rise to the level of a relationship" that supported a determination that parental rights should not be terminated. Mother contends this finding is not supported by substantial evidence. She contends the evidence showed a "positive emotional attachment" between her and the children, which "continued with regular positive supervised and unsupervised visitation" where Mother "attended to all the children's needs. . . ." She notes the visitation monitor stated generally the visits were positive and Mother hugged her children, made positive comments, "sang to them, and set boundaries appropriately." Mother highlights evidence that she "demonstrated the parental role" by transporting X.B. and C.B. to weekly therapy and helping A.B. with her school work. Mother showed empathy for her children and on one visit the children ran up to her and smiled and stated, "Hi Mommy." The social worker was so impressed with Mother's interaction with the children, she said Mother should be a teacher. Additionally, A.B. stated she loved Mother and her first choice would be to live with her.

We recognize there is evidence Mother visited the children regularly and generally cared for them appropriately during some of these visits. However, in seeking to reverse a determination that the beneficial relationship exception has not been established, a parent must show more than frequent and loving contact or pleasant visits with the child. (Andrea R., supra, 75 Cal.App.4th at p. 1108.) Moreover, under the substantial evidence standard of review, "the pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made." (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)

Here, evidence Mother largely ignores supports the court's finding she did not occupy a strong parental role. During one visit, C.B. screamed, "I want to go. I don't like you," as Mother attempted to comfort her. At a visit in October 2016, A.B. refused to follow Mother's directions, screamed, kicked and pushed her siblings and screamed "let me go" when Mother held her. Poignantly, A.B. asked her caregiver if she could call her "mommy." When asked why, A.B. said, "Because I don't feel like I have one." The twins, who had been placed with their caregivers since they were just three months old, only knew one set of parents, and called their caregivers "mommy" and "daddy."

Moreover, the social worker, Laura Chavis, reported, "Some of the typical behaviors that are characteristic in a strong parent-child relationship include[:] children constantly asking for their parents, showing anxiety and anguish after physical separation and appearing distressed with their absence. These behaviors have not been observed with the children. During visits with [Mother], [A.B.] appears to be anxious. A.B. takes on a parental role where she constantly checks on the whereabouts of her siblings. During one visit, [A.B.] was observed to be counting her siblings to ensure they were all present. Although [A.B.] has stated that she wants to return to her biological parents, her parentified behavior during visits is an indication of anxiety under the presence of her parents." (Italics added.)

In determining Mother had not carried her burden in establishing the beneficial relationship exception, the court stated it was "relying in great measure" on Chavis's analysis.

Mother contends Chavis's report is not substantial evidence because Chavis "offered [no] authority for the proposition that a child's failure to `constantly ask for their parent' or `show anxiety and anguish after physical separation' indicates they have no bond with their parent. . . ." However, the court expressly found to the contrary. The court found Chavis's analysis convincing and credible, stating, "And the court notes that Ms. Chavis, while a social worker only for a year and a half, the court does believe that she has received the proper training to do her job" and "[t]he court believes that her assessment is sound." Under the applicable standard of review, we defer to the juvenile court's credibility determinations and do not reweigh the evidence. (Michael G., supra, 203 Cal.App.4th at p. 589.)

D. The Court Did Not Abuse Its Discretion in Balancing the Parent-Child Relationship in a Tenuous Placement Against the Security and Sense of Belonging a New Family Would Confer

After determining the extent of the parent-child bond, the court stated, "So, the court has to balance this relationship that exists between the children and the parents with the benefit of having a home that is stable, that's been assessed by the Agency, and that is a permanent home for these children. The Court just doesn't believe that the parents are able to demonstrate that the parent/child bond exception exists in this particular case that would outweigh the benefits of a permanent and stable home for these children. So the Court is not going to find that that exception exists."

Contrary to Mother's assertions, the court's finding was well within the bounds of its broad discretion. The children exhibited significant behavioral problems after their unsupervised visits with Mother: A.B. had tantrums and showed defiance towards her caregivers, X.B. showed aggression and had bathroom accidents, C.B. displayed anxiety and emotional distress.

In contrast, the children were doing exceedingly well in their current placements of two years' duration. In fact, in the report prepared for the section 366.26 hearing, the social worker commented that the children are "thriving in their current placement." (Italics added.) Brad and Lori S., the caregivers for A.B. and the twins "consistently met" the children's needs. The Agency stated that in their care, "[a]ll three children's physical, developmental and emotional needs are being met." The CASA, who visited the children approximately 33 times since the case began, stated A.B. is "close" with Lori S. "and has begun to share her feelings more with her as well as seek comfort from her."

The caregivers for C.B. and X.B. have known these children since they were born. They have "provided the children with a safe and stable household." The CASA reported that the twins "clearly bonded with their caregivers."

In sum, the juvenile court reasonably found the strength of the parent-child relationship between Mother and the children insufficient to overcome the statutory preference for adoption. Although Mother loves her children and had some positive visits, she was still working on the effects of domestic violence, her co-dependency issues, and her mental illness—whereas the children were in secure placements and bonded with their current and prospective caregivers. The court did not abuse its discretion in determining the beneficial parental relationship exception did not apply.

DISPOSITION

The orders are affirmed.

McCONNELL, P. J. and HALLER, J., concurs.

FootNotes


1. Undesignated statutory references are to the Welfare and Institutions Code.
2. Section 5150, subdivision (a) provides in part: "When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer . . . may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention."
3. Reports such as these led the court to comment, "I have people telling me Dad is just the best. I have people telling me he's full of it. I've got people telling me Mom is the best and that Mom is full of it too. It's a very difficult case." In May 2016 the court also observed, "[M]y impression is the parents think this is a bunch of nonsense to begin with. I think they always have. I recall the trial. They come and they say things they think will benefit them, and then they come to their sense later, quote-unquote, and decide, no, that's not true. There is no consistency here."
4. After this incident, the Agency successfully petitioned the court to change Mother's visitation from unsupervised to supervised.
5. Section 388, subdivision (a)(1) provides in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made."
6. In her reply brief, Mother asserts the court improperly relied on this June 2016 status report because her petition involved facts existing not in June, but in December 2016. However, the court properly relied on the June 2016 report to establish a baseline against which to assess whether circumstances actually changed.

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