Adoption of Anthony F. CA4/1 ( 2014 )


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  • Filed 11/21/14 Adoption of Anthony F. CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    Adoption of IN RE ANTHONY F., a
    Minor.
    SAN DIEGO COUNTY HEALTH AND                                      D066080
    HUMAN SERVICES AGENCY,
    Plaintiff and Respondent,                               (Super. Ct. No. NJ13312A)
    v.
    MELISSA F.,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County, Michael J.
    Imhoff, Commissioner. Affirmed.
    Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
    Counsel, and Patrice Plattner-Grainger, Deputy County Counsel.
    Dependency Legal Group of San Diego and James Blackburn for Minor.
    Melissa F. appeals from (1) a denial of her petition under Welfare and Institutions
    Code section 3881 to modify the prior order denying reunification services in the juvenile
    dependency case involving her son, Anthony F., and (2) the juvenile court's order
    selecting adoption as the permanent plan and terminating Melissa's parental rights.
    Melissa contends that the juvenile court should have held an evidentiary hearing
    on her section 388 petition, rather than denying it, because she showed changed
    circumstances based on her completion of a residential substance abuse treatment
    program and participation in parenting classes and therapy. Further, Melissa contends
    that her parental rights should not have been terminated because she established
    (1) Anthony is not likely to be adopted; (2) the sibling relationship exception to adoption
    applies; and (3) the beneficial relationship exception to adoption applies. We conclude
    that Melissa's arguments are without merit, and we accordingly affirm the judgment.
    I
    FACTUAL AND PROCEDURAL BACKGROUND
    Anthony, who was born in 2006, has been the subject of three juvenile
    dependency petitions filed pursuant to section 300 by the San Diego County Health and
    Human Services Agency (the Agency). The first and second petition resulted in Melissa
    receiving reunification services and eventually having Anthony returned to her care. The
    1       Unless otherwise indicated, all further statutory references are to the Welfare and
    Institutions Code.
    2
    third dependency petition and the resulting order terminating Melissa's parental rights is
    the subject of this appeal.
    A.     The First Dependency Petition
    The Agency filed the first juvenile dependency petition when Anthony was less
    than one month old. The petition alleged that Melissa abused marijuana and
    methamphetamine, creating a substantial risk of serious physical harm to Anthony.
    Anthony's father was in prison, and Melissa had her parental rights to an older child
    terminated in November 2005 after the juvenile court ordered that reunification services
    be terminated for that child.
    The juvenile court declared Anthony a dependent, placed Anthony in a licensed
    foster home, and ordered that Melissa receive reunification services. Melissa participated
    in substance abuse treatment programs, took parenting classes and was in compliance
    with her case plan. At the 18-month review hearing in July 2007, the juvenile court
    followed the Agency's recommendation that Anthony be placed in Melissa's care, and in
    October 2007, the juvenile court terminated jurisdiction.
    B.     The Second Dependency Petition
    The Agency filed the second juvenile dependency petition in September 2009.
    The second petition was filed because Melissa relapsed into drug use and had been
    arrested for child cruelty and other offenses when she drove under the influence of drugs
    with Anthony in the vehicle. Specifically, in September 2009, Melissa was pulled over
    by law enforcement when she was observed driving erratically, on a suspended license,
    causing other cars to swerve out of the way. Three-year-old Anthony was sitting
    3
    unrestrained in the front passenger seat. Melissa had methamphetamine in her pockets,
    and a fixed blade was sticking up in the front driver's door. Melissa reported to the
    Agency that she had relapsed into methamphetamine use after she started associating
    with the wrong people and stopped attending 12-step meetings.
    The juvenile court declared Anthony a dependent, placed him in the home of a
    non-relative extended family member and ordered reunification services for Melissa.2
    Melissa made excellent progress on her services, which consisted of substance
    abuse treatment, individual therapy and parenting class. After a successful trial
    placement with Melissa, the juvenile court ordered that Anthony be returned to Melissa's
    care in May 2010, and it terminated jurisdiction in November 2010.
    C.     The Third Dependency Petition
    The Agency filed the third dependency petition, which gave rise to the current
    appeal, in July 2013 when Anthony was seven years old. The petition was filed after
    Melissa was arrested for willful cruelty to a child in May 2013 for driving under the
    influence of methamphetamine with Anthony's younger half-sister, F., in the car. F. was
    removed from Melissa's care immediately after the May 2013 incident, but a dependency
    petition was not filed as to Anthony at that time as he was being cared for by a relative.
    When Melissa took Anthony from the care of the relative in July 2013 and allowed her
    boyfriend, who had a history of substance abuse, to care for Anthony, the Agency took
    2     The juvenile court also ordered reunification services for Anthony's father, who
    was no longer incarcerated, but Anthony's father died from a stroke in September 2010.
    4
    Anthony into protective custody and filed a juvenile dependency petition alleging a
    substantial risk that Anthony would suffer serious physical harm based on Melissa's
    inability to provide required care to him due to her substance abuse.
    The Agency recommended in the jurisdiction/disposition report filed August 2,
    2013, that Melissa not receive reunification services. As the Agency explained, Melissa
    had been unable to successfully parent any of her children, despite the fact that the
    Agency had repeatedly provided services to her. Most recently, after F. was taken into
    protective custody, Melissa was provided services, but walked out of those programs.
    The Agency noted that after being in Melissa's care since the last dependency
    proceedings were completed, Anthony was once again exposed to trauma and neglect,
    and was far behind his peers educationally and developmentally. When Anthony was
    taken into protective custody in July 2013, he presented with a flat affect and was unable
    to answer certain simple questions.
    On November 13, 2013, the juvenile court sustained the petition and declared
    Anthony a dependent. It adopted the Agency's recommendation to deny reunification
    services for Melissa and scheduled a section 366.26 hearing to select and implement a
    permanent plan. Anthony was placed with non-related extended family members.
    The juvenile court relied on section 361.5, subdivision (b)(10) and (11) to deny
    reunification services to Melissa. Under those statutory provisions, a juvenile court may
    deny reunification services when the parent has failed to reunify with a different child or
    has had parental rights terminated as to a different child and has failed to make a
    5
    reasonable effort to treat the problems that led to removal of that child.3 As the juvenile
    court explained, those provisions applied to Melissa based on the termination of Melissa's
    parental rights to her oldest child in 2005 after reunification services were terminated.
    In finding that Melissa had not made a reasonable effort to treat the substance
    abuse that led to the termination of parental rights for her oldest child, the juvenile court
    noted Melissa's multiple relapses into substance abuse since 2005, and the fact that after
    having F. taken away from her in May 2013, Melissa had been in three different
    treatment programs and had several positive drug tests, with the most recent being in July
    2013. The juvenile court further explained that although it could nevertheless order
    reunification services if doing so was in Anthony's best interests (§ 361.5, subd. (c)), it
    was not in Anthony's best interests to reunify with Melissa because Anthony had been
    traumatized by the instability created by the multiple dependency proceedings and
    3      Under section 361.5, subdivision (b)(10), reunification services may be denied
    when the juvenile court finds that "the court ordered termination of reunification services
    for any siblings or half siblings of the child because the parent or guardian failed to
    reunify with the sibling or half sibling after the sibling or half sibling had been removed
    from that parent or guardian pursuant to Section 361 and that parent or guardian is the
    same parent or guardian described in subdivision (a) and that, according to the findings of
    the court, this parent or guardian has not subsequently made a reasonable effort to treat
    the problems that led to removal of the sibling or half sibling of that child from that
    parent or guardian."
    Section 361.5, subdivision (b)(11) permits the juvenile court to deny reunification
    services when it finds that "the parental rights of a parent over any sibling or half sibling
    of the child had been permanently severed, and this parent is the same parent described in
    subdivision (a), and that, according to the findings of the court, this parent has not
    subsequently made a reasonable effort to treat the problems that led to removal of the
    sibling or half sibling of that child from the parent."
    6
    Melissa's substance abuse. In addition, Anthony had been diagnosed with cognitive and
    developmental delays requiring special attention that Melissa had been unable to provide.
    On April 2, 2014, Melissa filed a petition under section 388, in which she asked
    the juvenile court to modify its November 13, 2013 order that denied reunification
    services to her. To establish the changed circumstances required for the section 388
    petition, Melissa stated that (1) she had been in a residential drug treatment program
    since January 14, 2014, which she was planning to complete within the month and then
    move to transitional housing; (2) she had tested negative for substance use; (3) she was
    taking a parenting class; and (4) she was participating in individual therapy sessions.
    The Agency opposed the section 388 petition. In its April 14, 2014 report, the
    Agency explained that Melissa had recently completed a residential drug treatment
    program in nine weeks by graduating early against the advice of her counselor, who
    believed that the nine-week treatment program was not sufficient to provide the tools for
    Melissa's long-term sobriety. The counselor felt that Melissa was not in the program to
    work on her sobriety but instead only to graduate from the program so she could seek
    reunification with her children. The counselor stated that Melissa " 'consistently turned
    in requirements late and required constant supervision' " and that she " 'made minimal
    progress while in treatment.' " The Agency pointed out that Melissa had previously
    completed treatment programs and had previously reunified with Anthony, but her
    substance abuse problems had returned in each previous instance.
    Further, although Melissa stated that she planned to enroll in outpatient treatment
    after leaving the residential treatment facility, she did not do so, and she was unable to
    7
    provide the social worker with any plan for where she would live after leaving the
    residential treatment facility. The social worker was not able to reach Melissa after her
    graduation from the residential treatment facility, and Melissa had missed a visitation and
    phone call with Anthony since that time. Melissa had also been inconsistent or late in
    some of her visitation with Anthony in previous months, having not visited him at all
    from December 23, 2013, to February 5, 2014.
    On April 14, 2014, the juvenile court denied the section 388 petition, concluding
    that Melissa had not established a prima facie case of changed circumstances or that the
    modification would be in Anthony's best interests.
    At the hearing held pursuant to section 366.26 on May 2, 2014, the juvenile court
    terminated Melissa's parental rights and referred Anthony to the Agency to place him for
    adoption.
    II
    DISCUSSION
    A.     The Juvenile Court Did Not Abuse Its Discretion in Denying Melissa's Section 388
    Petition for Modification of the Order Denying Reunification Services
    We now turn to Melissa's first substantive argument, which is a challenge to the
    court's denial of her petition brought pursuant to section 388 to modify the order denying
    reunification services.
    1.     Applicable Law
    "A juvenile court order may be changed, modified or set aside under section 388 if
    the petitioner establishes by a preponderance of the evidence that (1) new evidence or
    8
    changed circumstances exist and (2) the proposed change would promote the best
    interests of the child. [Citation.] A parent need only make a prima facie showing of
    these elements to trigger the right to a hearing on a section 388 petition and the petition
    should be liberally construed in favor of granting a hearing to consider the parent's
    request." (In re Zachary G. (1999) 
    77 Cal.App.4th 799
    , 806.) " 'A "prima facie"
    showing refers to those facts which will sustain a favorable decision if the evidence
    submitted in support of the allegations by the petitioner is credited.' " (In re B.C. (2011)
    
    192 Cal.App.4th 129
    , 141.) "We review the juvenile court's summary denial of a section
    388 petition for abuse of discretion." (In re Anthony W. (2001) 
    87 Cal.App.4th 246
    , 250
    (Anthony W.).)
    Here, the juvenile court determined that Melissa had not established a prima facie
    case and accordingly denied the section 388 petition without an evidentiary hearing.
    Melissa contends that the juvenile court erred because her petition set forth sufficient
    facts to create a prima facie case of changed circumstances and established that provision
    of reunification services would be in the best interests of Anthony. As we will explain,
    we reject both contentions.
    2.     The Juvenile Court Acted Within Its Discretion in Concluding That Melissa
    Did Not Establish a Prima Facie Case of Changed Circumstances
    Melissa contends that "the juvenile court abused its discretion in not at least
    holding an evidentiary hearing into the issues raised" because she "presented significant
    new evidence to the juvenile court in furtherance of her effort to be reunified with
    Anthony." Specifically, Melissa argues that her progress in completing her substance
    9
    abuse treatment, her participation in parenting classes and individual therapy sessions,
    and her positive visits with Anthony show that circumstances had changed sufficiently to
    warrant the provision of reunification services.
    We begin our analysis by focusing on the basis for the juvenile court's denial of
    reunification services in November 2013. The juvenile court denied reunification
    services pursuant to section 361.5, subdivision (b)(10) and (11) because Melissa had not
    made reasonable efforts to treat the problems that led to the previous dependency
    proceedings. As we will explain, the juvenile court acted within its discretion to
    determine that as of April 2014, Melissa's section 388 petition did not show a change of
    circumstance with respect to the substance abuse problems that led to the previous
    dependency cases and to the filing of the instant dependency petition.
    Although Melissa recently had completed a residential substance abuse treatment
    program, the reports from her counselor at the program were not positive. As we have
    explained, Melissa graduated from the program early, against the advice of her counselor.
    The counselor felt that Melissa had not addressed the substance abuse issues putting her
    at risk for another relapse and that Melissa had made only minimal progress in treatment.
    Further, Melissa had not enrolled in outpatient treatment after leaving the residential
    treatment facility and had missed or been late to visitation with Anthony since she filed
    the section 388 petition. Based on all that evidence, the juvenile court could reasonably
    conclude that Melissa had not shown that circumstances had changed and that she had
    taken steps to address her past parenting problems.
    10
    Melissa argues that the juvenile court should have held an evidentiary hearing
    rather than deny her petition on the ground that she did not establish a prima facie case.
    However, because the petition did not allege any facts showing sufficiently changed
    circumstances, there is no merit to Melissa's argument that an evidentiary hearing should
    have been conducted to determine whether evidence of changes circumstances could be
    developed. (See In re Edward H. (1996) 
    43 Cal.App.4th 584
    , 593 ["If a petitioner could
    get by with general, conclusory allegations, there would be no need for an initial
    determination by the juvenile court about whether an evidentiary hearing was
    warranted."].) The most that can be said is that there may have been changing
    circumstances, not changed circumstances. A showing of merely changing
    circumstances, however, "is not sufficient to require a hearing on the merits of [Melissa's]
    section 388 petition." (In re A.S. (2009) 
    180 Cal.App.4th 351
    , 358.) The petition did not
    set forth any facts indicating that Melissa was now capable of protecting Anthony and
    otherwise providing for his needs. (See Anthony W., supra, 87 Cal.App.4th at p. 251
    [conclusory allegations of completion of parenting class and regular visits with child
    insufficient to make prima facie showing of changed circumstances].)
    3.     The Juvenile Court Acted Within Its Discretion in Concluding That
    Modifying the Order Denying Reunification Services Was Not in Anthony's
    Best Interests
    Melissa briefly argues that because she has addressed her substance abuse issues,
    she is now capable of providing a stable environment for Anthony, and thus it was in
    Anthony's best interests for the juvenile court to modify its order denying her
    reunification services.
    11
    We reject this argument because its factual premise fails. As we have explained,
    the evidence before the juvenile court showed that Melissa still presented a significant
    risk for relapse into substance abuse because she had not made significant progress in her
    residential treatment program and had not followed through by enrolling in outpatient
    treatment.
    Anthony "should not be made to wait indefinitely for [Melissa] to become an
    adequate parent." (Anthony W., supra, 87 Cal.App.4th at p. 252.) The juvenile court
    could reasonably conclude that, due to the trauma that Anthony had undergone by being
    the subject of three different dependency proceedings, and the lack of evidence that
    Melissa had taken significant steps in treating her substance abuse, Anthony's interest in
    permanency and stability outweighed any interest he may have had in the possibility of
    reunification with Melissa.
    In sum, the juvenile court did not err in denying Melissa's section 388 petition.
    B.     The Juvenile Court Did Not Err in Terminating Parental Rights
    We next consider Melissa's contention that for three different reasons, the juvenile
    court erred in terminating her parental rights so that Anthony could be placed for
    adoption.
    "Adoption, where possible, is the permanent plan preferred by the Legislature. . . .
    'Only if adoption is not possible, or if there are countervailing circumstances, or if it is
    not in the child's best interests are other, less permanent plans, such as guardianship or
    long-term foster care considered.' . . . After the parent has failed to reunify and the court
    has found the child likely to be adopted, it is the parent's burden to show exceptional
    12
    circumstances exist." (In re Autumn H. (1994) 
    27 Cal.App.4th 567
    , 573-574, citations
    omitted (Autumn H.).)
    Here, Melissa contends that exceptional circumstances exist and the juvenile court
    erred in terminating her parental rights so that Anthony could be placed for adoption
    because (1) Anthony was not likely to be adopted; (2) the sibling relationship exception
    to adoption applies; and (3) the beneficial relationship exception to adoption applies. As
    we will explain, Melissa's arguments lack merit.
    1.     The Evidence Supports a Finding That Anthony Was Likely To Be Adopted
    The juvenile court may terminate parental rights if it determines by clear and
    convincing evidence the minor is likely to be adopted within a reasonable time.
    (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 
    31 Cal.4th 396
    , 406; In re B.D. (2008) 
    159 Cal.App.4th 1218
    , 1231.) " 'The issue of adoptability . . . focuses on the minor, e.g.,
    whether the minor's age, physical condition, and emotional state make it difficult to find a
    person willing to adopt the minor.' " (Zeth S., at p. 406.) "On review, we determine
    whether the record contains substantial evidence from which the court could find clear
    and convincing evidence that the child was likely to be adopted within a reasonable
    time. . . . We give the court's adoptability finding the benefit of every reasonable
    inference and resolve any evidentiary conflicts in favor of the judgment of the trial
    court." (In re B.D., at p. 1232, citations omitted.)
    Here, the record contains substantial evidence that Anthony is likely to be adopted.
    The social worker reported that, according to the adoption coordinator, there are 31
    approved families in San Diego County that are interested and willing to adopt a child
    13
    with Anthony's characteristics. Further, the foster family that Anthony has been living
    with since the end of March 2014 has expressed an interest in adopting Anthony and has
    been approved for adoption.
    Melissa argues that the juvenile court erred in finding that Anthony was likely to
    be adopted because of Anthony's history of developmental and cognitive problems.
    Melissa also contends that Anthony may not be a likely candidate for adoption because
    the original family that the Agency had identified as possibly being interested in adopting
    Anthony became unavailable. We reject Melissa's arguments.
    Although the record contains evidence that Anthony has certain developmental
    and cognitive problems, due in part to the trauma and neglect he has experienced, the
    social worker nevertheless opined that Anthony was adoptable. The juvenile court was
    entitled to credit the social worker's assessment. (In re Casey D. (1999) 
    70 Cal.App.4th 38
    , 53.)
    In addition, the record shows that the first prospective adoptive family withdrew
    from consideration because of issues unique to that family, not because of any problems
    with Anthony. Supporting a finding that Anthony is likely to be adopted, the Agency had
    no problem in quickly identifying a new family interested in adopting Anthony. "[T]he
    fact that a prospective adoptive parent has expressed interest in adopting the minor is
    evidence that the minor's age, physical condition, mental state, and other matters relating
    to the child are not likely to dissuade individuals from adopting the minor. In other
    words, a prospective adoptive parent's willingness to adopt generally indicates the minor
    is likely to be adopted within a reasonable time either by the prospective adoptive parent
    14
    or by some other family." (In re Sarah M. (1994) 
    22 Cal.App.4th 1642
    , 1649-1650,
    italics deleted.)
    2.      Melissa Has Not Established the Sibling Relationship Exception to
    Adoption
    We next consider whether Melissa established the sibling relationship exception to
    adoption. That exception applies when terminating parental rights would be detrimental
    to the child because "[t]here would be substantial interference with [the] child's sibling
    relationship . . . ." (§ 366.26, subd. (c)(1)(B)(v).) "In enacting this exception, the
    [L]egislature was concerned with preserving long-standing relationships between siblings
    which serve as anchors for dependent children whose lives are in turmoil." (In re Erik P.
    (2002) 
    104 Cal.App.4th 395
    , 404.) "To show a substantial interference with a sibling
    relationship the parent must show the existence of a significant sibling relationship, the
    severance of which would be detrimental to the child." (In re L.Y.L. (2002) 
    101 Cal.App.4th 942
    , 952.) Factors relevant to the analysis include whether the child and the
    sibling were raised together in the same home, whether they shared significant common
    experiences, whether they have a close and strong bond, and whether continued contact
    with the sibling is in the child's best interests compared to the benefit of legal permanence
    through adoption. (§ 366.26, subd. (c)(1)(B)(v).)
    The " ' "sibling relationship exception contains strong language creating a heavy
    burden for the party opposing adoption" ' " (In re Naomi P. (2005) 
    132 Cal.App.4th 808
    ,
    823), and "the application of this exception will be rare, particularly when the
    15
    proceedings concern young children whose needs for a competent, caring and stable
    parent are paramount." (In re Valerie A. (2007) 
    152 Cal.App.4th 987
    , 1014.)
    We apply a substantial evidence standard of review to the factual issue of whether
    termination of parental rights would cause substantial interference with a sibling
    relationship. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) However, to the extent that
    the juvenile court exercises its discretion to determine whether substantial interference
    with a sibling relationship constitutes a compelling reason for determining that
    termination would be detrimental to the child, we apply an abuse of discretion standard of
    review. (In re J.C. (2014) 
    226 Cal.App.4th 503
    , 530; In re K.P. (2012) 
    203 Cal.App.4th 614
    , 622; In re Bailey J. (2010) 
    189 Cal.App.4th 1308
    , 1315.)
    Until recently, Anthony had lived in the same home with his younger half-sister,
    F., since her birth in 2012. The social worker reported that F. and Anthony share a close
    bond. The Agency reported that F.'s father was being provided with reunification
    services for F., who was currently placed with a relative. Anthony's foster parents, who
    want to adopt Anthony, are willing to facilitate a relationship between F. and Anthony,
    and they are willing to have F. move into their home and to adopt F. if she does not
    reunify with her father. F.'s father is also willing to allow visitation between the siblings.
    The sibling relationship exception to adoption is applicable only when there is
    substantial interference with the sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).)
    Because Anthony's prospective adoptive parents will allow sibling contact and are willing
    to adopt F. if she is not reunited with her father, the juvenile court reasonably could find
    that termination of Melissa's parental rights to Anthony would not cause a substantial
    16
    interference with the sibling relationship between F. and Anthony. (In re Megan S.
    (2002) 
    104 Cal.App.4th 247
    , 254 [when the social worker planned to place the child in
    one of 25 possible adoptive homes that would allow sibling contact, there would be no
    substantial interference with the sibling relationship].)
    Further, to the extent that future contact between the siblings might not occur after
    termination of Melissa's parental rights, the trial court was within its discretion to
    determine that due to the extreme trauma experienced by Anthony through the course of
    three dependency proceedings, the stability that Anthony would finally gain through an
    adoptive placement would outweigh any detriment to him from losing the benefits of his
    bond with F. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.)
    3.     Melissa Has Not Established the Beneficial Relationship Exception to
    Adoption
    Finally, we consider whether Melissa has established the beneficial relationship
    exception to adoption. That exception applies when terminating 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, subd. (c)(1)(B)(i).) The phrase "benefit from continuing the relationship"
    refers to a parent-child relationship that "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. In other words, the 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
    17
    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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
    We apply a substantial evidence standard of review to a finding on whether a
    beneficial relationship exists. (Autumn H., supra, 27 Cal.App.4th at p. 576.) To the
    extent the juvenile court exercises its discretion in determining whether it would be
    detrimental to the child to terminate a beneficial relationship that it has found to exist, we
    apply an abuse of discretion standard of review. (In re J.C., supra, 226 Cal.App.4th at
    p. 530.)
    Melissa argues that the beneficial relationship exception applies because the
    evidence regarding her visitation with Anthony shows that she has a positive parental
    relationship with Anthony that "is worth saving." Based on the evidence before the
    juvenile court, substantial evidence supports a finding that Melissa did not have the type
    of parental relationship with Anthony that warrants the application of the beneficial
    relationship exception.
    To meet the burden of proof for the beneficial relationship 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; see also (In re Jason J.
    (2009) 
    175 Cal.App.4th 922
    , 936-937 (Jason J.); In re Derek W. (1999) 
    73 Cal.App.4th 823
    , 827 (Derek W.).) The evidence must establish more than merely "a loving and
    happy relationship" (In re Beatrice M. (1994) 
    29 Cal.App.4th 1411
    , 1419), and the parent
    18
    must be more than " 'a friendly visitor.' " (Jason J., at p. 938.) "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.)4
    As the social worker explained, based on the interactions between Melissa and
    Anthony, Melissa "does not appear to have a parent-child relationship with Anthony"
    and instead has what "could be observed as an extended family member relationship."
    Although Melissa tries to engage Anthony during visits, he "does not stay in close
    proximity to his mother," "does not initiate affection" and often does not respond to
    Melissa's attempts to be affectionate. According to the social worker, Anthony enjoys
    spending time with Melissa, but "does not count on her to meet his needs as he would
    with a parent" and "does not exhibit any distress when leaving her and does not talk about
    her or ask for her when he is not in her presence."
    Based on this evidence, the juvenile court reasonably could conclude that Melissa
    did not establish that she "occupies a parental role in the life of the child." (In re I.W.,
    4      Melissa relies heavily on our decision in In re S.B. (2008) 
    164 Cal.App.4th 289
    ,
    299, where we held a parent relying on the beneficial parent-child relationship exception
    to adoption does not have "to prove the child has a 'primary attachment' to the parent, or
    to show the parent and the child have maintained day-to-day contact." But we have since
    "emphasize[d] that [In re] S.B. is confined to its extraordinary facts. It does not support
    the proposition a parent may establish the parent-child beneficial relationship exception
    by merely showing the child derives some measure of benefit from maintaining parental
    contact." (In re C.F. (2011) 
    193 Cal.App.4th 549
    , 558-559; accord, Jason J., supra, 175
    Cal.App.4th at p. 937.)
    19
    supra, 180 Cal.App.4th at p. 1527), and that Melissa's relationship to Anthony "bears no
    resemblance to the sort of consistent, daily nurturing that marks a parental relationship."
    (Derek W., supra, 73 Cal.App.4th at p. 827.)
    Although, as the social worker noted, Melissa "clear[ly] . . . loves Anthony," the
    positive aspects of Melissa's relationship with Anthony are " 'simply not enough to
    outweigh the sense of security and belonging an adoptive home would provide.' "
    (Jason J., supra, 175 Cal.App.4th at p. 938.) The beneficial relationship exception does
    not apply, as "[t]here is no evidence [Anthony] had any needs only [Melissa] can satisfy,
    or that he has the type of emotional attachment to [Melissa] that would cause him to be
    greatly harmed if parental rights were terminated." (Ibid.)
    DISPOSITION
    The judgment is affirmed.
    IRION, J.
    WE CONCUR:
    BENKE, Acting P. J.
    NARES, J.
    20
    

Document Info

Docket Number: D066080

Filed Date: 11/21/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021