In re M.H.
Filed 2/2/09 In re M.H. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re M. H., a Person Coming Under the
Juvenile Court Law.
SONOMACOUNTY HUMAN SERVICES
DEPARTMENT,
Plaintiff and Respondent, A121834
v. (SonomaCounty
Super. Ct. No. 2463DEP)
T. H.,
Defendant and Appellant.
__________________________________________/
T.H. (mother), the mother of M.H. (daughter) appeals from the juvenile courts denial of her Welfare and Institutions Code section 388 petition.[1] She contends the court erred in denying the petition because she demonstrated a change in circumstances and that further services were in daughters best interest. Mother also appeals from the termination of her parental rights after a section 366.26 permanency hearing (the .26 hearing). She contends the court erred by not applying the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i).
We affirm.
FACTS
Detention, Jurisdiction, and Disposition
Daughter was born in April 2000. She lived with mother until January 2005, when a fire destroyed mothers home and mother and daughter became homeless. Thereafter, she lived with A.S. (father). [2] On September 13, 2006, daughter was removed from fathers custody after she told her maternal aunt (Aunt), that father had sexually abused her. A petition filed by the Sonoma County Human Services Department (the Department) alleged that daughter came within section 300, subdivisions (b) and (d), specifically, that mother had a history of substance abuse that placed daughter at risk and that mother had been convicted of possession of a controlled substance in April 2005. (Health & Saf. Code, 11377, subd. (a).)
Mother contested detention and the court set a date for a contested detention and jurisdiction hearing. In its jurisdiction report, the Department stated that mother admitted to using methamphetamine in the past but told a social worker that she was currently clean and sober and had completed a court-ordered drug program and eight weeks of counseling. The report also noted, however, that mother failed to submit to drug tests on September 20 and 21, 2006, and that she tested positive for methamphetamine and amphetamine on September 26, 2006. Although mother had been referred to the Drug Abuse Alternatives Center (DAAC), she told the social worker she did not feel the need for further substance abuse services. Mother also told the social worker that she was working full-time and could care for daughter.
The social worker opined that [t]he outcome of the drug test, mo[thers] lack of veracity with the undersigned Worker, and a recent arrest record indicates that more time is needed to assess when [daughter] can safely return to [mothers] custody. At the detention and jurisdiction hearing in early October 2006, the court concluded that daughter came within section 300, subdivisions (b) and (d).
In the Departments disposition report, the social worker recommended providing mother with reunification services. The social worker described mothers difficult upbringing and noted that neither mother nor anyone in her immediate or extended family is able to optimally provide for [daughters] needs. Mother submitted on the Departments recommendation and the court concluded, by clear and convincing evidence, that placing daughter with mother would be detrimental to daughters safety, protection, or physical or emotional well-being and that mothers progress toward alleviating or mitigating the causes necessitating placement had been minimal.
Six-Month Review Hearing
In its six-month review report, the Department recommended continuing reunification services for mother. The report stated that mother was working full-time, but remained homeless and [was] living with a friend. The social worker was unaware whether mother had made any progress toward obtaining housing. She also noted that mother was to begin a parenting in recovery class in late February 2007.
The report described Dr. Gloria Speichers December 2006 psychological evaluation of mother. Dr. Speicher concluded that mother resents the hoops she has to jump through to get her daughter back but seems to be highly motivated for treatment and wants to cooperate to get her daughter returned to her care. Dr. Speicher recommended that mother consult with a psychiatrist to deal with her extreme anxiety, depressive hopelessness and vulnerability[.] She also recommended that mother undergo therapy, parenting education, and joint therapy with daughter to improve mothers parenting skills. Finally, Dr. Speicher noted that mothers problems with drugs need to be addressed in terms of relapse potential and prevention and that given her psychiatric history, mother is at high risk for continued drug abuse and or relapse. She needs to demonstrate serious effort to engage in educational activities and create and participate in supportive networks for herself.
The report also described mothers unwillingness to participate in DAAC services and her failure to appear for five drug tests in December 2006 and January and February 2007.[3] The social worker noted that mother was very unhappy to be attending sessions at the Orenda Center and that she becomes agitated and defensive when asked to drug test. According to the report, mother claimed to be attending two to three Alcoholics Anonymous (AA) meetings per week beginning in November 2005 but had failed to provide the social worker with proof of attendance. Mother later conceded that she had not been attending any 12-step meetings. The social worker also reported that daughter was currently placed with Aunt.
The report noted that mother had weekly supervised visits with daughter and that both mother and daughter look forward to visits and spending time together. The social worker had rejected mothers request for unsupervised visits for two reasons: (1) mother had not had at least three clean drug tests; and (2) the social worker was concerned that mother may abscond with [daughter] to Ohio. She has taken off to Sacramento or Arizona in the past and has family in Ohio.
The social worker opined: [a]t this time, it does not appear that [mother] is yet able to optimally provide for [daughters] needs. The Department acknowledges that [mother] is making efforts by seeing her therapist regularly, following through on a psychological evaluation and attending visitation. Additionally, it is hopeful to see that [mother] recently attended an intake at Orenda Center. However, [mother] remains in defiance to work other services in her case plan, while claiming a sense of entitlement and insisting that she should not have to jump through hoops to get her daughter returned to her care. [Mother] led DAAC to believe that she did not need drug treatment. Additionally, [mother] has been defiant and evasive in her drug testing and tested positive for Methamphetamines on September 26, 2006. All the while, [mother] has denied any drug use. The social worker continued, [t]he Department has not seen the efforts on [mother]s behalf that would show that she is ready to take on a child with a high level of needs and support. The undersigned has hopes that within the next six months, [mother] will actively engage in substance abuse treatment, seek out appropriate housing and create an environment for [daughter] that would provide her with the safety and security that she is in need of.
Following the six-month review hearing in March 2007, the court concluded that [t]he extent of progress which mother has made toward alleviating or mitigating the causes necessitating placement has been minimal and continued the case for a permanency hearing. The court also continued reunification services for mother. One day after the six-month review hearing, mother tested positive for methamphetamine.
12-Month Review Hearing
The Departments 12-month review report recommended terminating reunification services for mother. The report stated that mother: (1) was expecting a baby in October 2007; (2) told the social worker that she is not interested in having a sponsor or working the steps. She reports being clean and sober since August 1, 2006, although drug test results indicate otherwise; (3) tested positive for methamphetamine in early July 2007; (4) stormed out of a parenting in recovery group meeting and expressed a desire to get her drug treatment services over with; (5) missed sessions with her therapist; and (6) used Aunts drivers license in June 2007 when she was stopped for driving without a drivers license or registration. The report also noted, however, that mother had visited daughter consistently, had attended daughters softball games and daughters birthday party, and had been working with an in-home parent educator.
The social worker described daughters progress in second grade and noted that her themes of play are about her parents preferring partying and fun to her, feeling unimportant to her parents, and feeling demeaned by them. . . . Additionally, [daughter] express[ed] some concerns about her mother being pregnant . . . [daughter] is afraid of being misplaced or displaced by a baby. Daughters therapist indicated that if mother is not stable, busy with a new baby, is not clear about decision making with [daughter] or is unable to recognize that her children are primary in her life, then [mother] would be unable to meet [daughter]s needs.
The report opined that daughter was in need of ongoing support and given that [mother] continues to test positive for methamphetamine, denies any drug use, recently left her drug treatment program, and is expecting a new baby into her life, it seems unlikely that she would be able to create a patient, stable and secure environment for [daughter]. At this time, there is a lack of substantial probability for reunification in the next six months[.]
In an addendum report, the social worker noted that mother: (1) was arrested in September 2007 and charged with grand theft (Pen. Code, 487, subd. (a)) and burglary (Pen. Code, 459) after attempting to steal approximately $900 worth of merchandise from a Kohls Department Store; and (2) gave birth to a baby boy in October 2007 and agreed to enter treatment at Womens Recovery Services (WRS) a few days later.
A report submitted by Julie Rosen, the daughters court appointed special advocate (CASA) described daughter as a bright, beautiful girl with remarkable verbal skills and a sense of humor. Rosen noted that daughter struggled with self-esteem and behavioral issues but was improving and responding well to therapy. Rosen described Aunt as being very committed to meeting [daughters] needs for nurturing and stability. She has been careful to keep this CASA informed of events which have been stressful or difficult for [daughter] while always being sensitive to [daughter]s rights to respect and privacy. Rosen also noted that Aunt appears to provide [daughter] with consistency and predictability in the home, and with affection and attention. According to Rosen, daughter said, she loves her auntie and indicated feeling secure and loved in the home. The CASA recommended that daughter remain in Aunts home.
At the 12-month review hearing in October 2007, mother submitted on the Departments report and its recommendation to terminate reunification services. The court terminated services and concluded that there was not a substantial probability that, with the continuation of services to [mother], the child will be safely returned to [mother]s physical custody during the extended service period. The court determined that mothers progress in alleviating or mitigating the causes that led to placement had been minimal and continued the case for a .26 hearing.[4]
Mothers Section 388 Petition
In February 2008, mother filed a request to change court order (form JV-180, commonly referred to as a section 388 petition). The petition requested that the court vacate the .26 hearing date and order a trial home visit, expand visitation, and offer reunification services. In a declaration submitted in support of the motion, mother stated that she: (1) completed three months of intensive treatment at WRS; (2) moved into a sober living environment (SLE); (3) was taking anti-depressants which has helped her outlook and ability to handle stress; and (4) would continue taking classes and attending AA and Narcotics Anonymous (NA) meetings. Mother also averred: I believe it would be in [daughter]s best interests to allow me the opportunity to have her with me. I raised her for the first four years of her life . . . and have always remained a part of her life. We are very close, and I believe she has a strong attachment with me. I am healthy now, and able to provide excellent care for her. I want whats best for [daughter], and I believe being with me would provide that.
Mother also submitted a letter from WRS stating that mother has done well in treatment demonstrating a real desire to change her life to one of pro social behavior and that given this opportunity[,] she will continue her sobriety and make a good home . . . and be able to demonstrate good parenting skills to her daughter[.]
The Joint Section 388 and .26 Hearing
In April 2008, the court held a hearing on mothers section 388 petition. Counsel for mother contended that mother had turned her life around and was able to take care of [daughter]. And given her parenting of [daughter] . . . for the first five years of her life and staying involved with her after that, that it would be in daughters best interest to essentially work towards reunification of [daughter] with [mother].
Sharon Youney, a perinatal specialist for Drug Free Babies and the coordinator for the Dependency Drug Court, testified for mother. Youney stated that mother went to WRS after she gave birth to her son in October 2007 to make sure that she was solid in her recovery and to avoid some of the types of issues that shes experienced with losing her daughter. Youney stated that mother did very well in the residential program and was definitely participating in her groups and classes and doing her work. According to Youney, mother stayed at WRS for three months; then she moved to a SLE. She takes classes and receives outpatient services at DAAC; she is also drug tested at WRS and attends classes there. On cross-examination, Youney conceded that she was not in a position to opine whether mother would be able to stay clean and sober and safely parent daughter.
Mother testified next. She stated that she completed treatment and was living in a SLE. She noted that she is taking parenting classes as well as denial and stress management classes. She also attends AA and NA; she is on the first step because she just received a new sponsor. Mother was on the third step with her previous sponsor but had to start over when she began working with a new sponsor. She explained that her treatment and recovery had been different this time because she wanted to participate instead of having to.
Mother further testified that she took care of daughter until shortly before daughters fifth birthday and continued to see daughter while she lived with father. She stated that she and daughter have developed a bond because Im her mom. Thats my daughter. . . . she calls me mom. She knows that Im her mom. . . . We spend whatever time we can together. Mother opined that it would be good for daughter to reunify with her because daughter has already lost a lot. . . . She has already been hurt a lot. I dont think it would be beneficial for her to lose her mom as well.
On cross-examination, mother conceded that she had never progressed beyond step three of the 12-step program and that the longest period of time she had been sober since she began using drugs 11 years prior was one year. Her clean and sober date was March 31, 2007.[5] Finally, she conceded that if daughter wanted to be adopted and continue living with Aunt, then thats what Ill support.
After hearing argument from counsel, the court commended mother on the good choices that she was making and told mother that it was clear that she loves daughter. The court also stated, I believe that mother is making a change in her life, that mother has made the correct decisions. But I [cannot] find that the decisions made thus far will prove that there has been a changed circumstance that would warrant the Court to change its earlier orders. So the request to change the Court order is denied.
The court then proceeded to the .26 hearing.[6] The Departments .26 hearing report determined [daughter] is likely to be adopted and recommend[ed] parental rights be terminated and a plan of adoption be ordered. The report stated that Aunt was willing to adopt daughter and that daughter is attached to [Aunt] and views her as a nurturing parent figure. According to the report, daughter also understands the basic concept of adoption and wants to be adopted by [Aunt] if parental rights are terminated. The report concluded that daughter has a strong relationship with [Aunt] and would benefit from the establishment of a permanent parent/child relationship through adoption. Removal from the current home would be seriously detrimental to [daughters] well-being.
An addendum report noted that mothers visits with daughter are now supervised because mother began asking daughter questions about where she wanted to live and whether she wanted to be adopted. The report noted that it appears that [daughter] sees [Aunt] as her psychological mother. Aunt has cared for [daughter] since September 18, 2006. [Daughter] seeks [Aunt] for comfort, for guidance and reassurance. Prior to the hearing regarding her molestation, [daughter] expressed her fears . . . to [Aunt]. Further, she has talked to [Aunt] about problems she has experienced in school. Additionally, . . . [daughter] shares her accomplishments with [Aunt.]
At the .26 portion of the hearing, Cliff Lee, a former adoption specialist with the Department, testified. He observed daughter with Aunt approximately four times. He described daughters relationship with Aunt as extremely close and positive . . . its . . . a therapeutic relationship where [daughter] has been helped to the point where she is stable and pursuing her hopes and dreams. . . . [I]ts incredible to have a child emerge from that level of trauma to reach a point after a year and a half with a prospective adoptive parent to be at that . . . level of [comfort] . . . pursuing what she wants and what shes interested in.
Lee explained that Aunt had arranged for daughter to receive therapy, had gotten her involved in sports teams, and had worked with daughters teachers to make sure her needs were being met at school. Lee remarked that Aunt and daughter are truly blossoming and that their relationship was very positive and based on trust and security. He also stated that Aunt was daughters surrogate psychological parent a term he uses to describe a person who is viewed by the child as being a parent in terms of the daily living experience. The child will seek [the psychological parent] out for support and see them as the . . . primary parent figure[.] Finally, Lee testified that daughter told him that she definitely wants to stay where she is with her prospective adoptive parent ([Aunt]), but to continue to see her birth mother. Lee opined that any changes right now in [daughters] residence would be very detrimental. He further opined that it would not be detrimental to daughter if mothers parental rights were terminated.
Aunt also testified for the Department. She testified that she has known daughter since daughters birth and that daughter sometimes calls Aunt mom or Monte, a combination of mom and auntie. Aunt also described the improvement in daughters behavior since she came into her care. On cross-examination, Aunt testified that daughter was upset when mother canceled several visits and that daughter looks forward to having visits with mother. Finally, Aunt stated that she intended to maintain mothers visitation schedule with daughter if mother remained sober.
Mother testified on her own behalf. She described her visits with daughter and explained that during the visits, [w]e would play. [Daughter] reads to me. She plays me songs on the piano. We talk about whats happening at school and with sports and whats going on with her. Mother also stated that she gives daughter advice and affection. She testified that she and daughter share a bond and that daughter would benefit from continuing the relationship because I dont see how it would be a benefit not to [continue the relationship].
Monisha Sachital, daughters social worker, testified next. She testified that Lee told her that daughter understands the basic concept of adoption and wanted to be adopted by Aunt if parental rights were terminated. Sachital stated that she observed a portion of a visit between mother and daughter and that the visit appeared appropriate[.] Sachital also observed visits between Aunt and daughter and opined that Aunt was a psychological parent to daughter. She further testified that it would be in daughters best interest to allow her to be adopted by Aunt.
At the conclusion of the .26 hearing, the court determined that it was in daughters best interest to be adopted. The court terminated mothers parental rights and free[d] [daughter] for adoption.
DISCUSSION
The Denial of Mothers Section 388 Petition Was Not an Abuse of Discretion
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 changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary Z. (1999) 77 Cal.App.4th 799, 806.) It is well-settled that [u]p until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over a childs need for stability and permanency. [Citation.] Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. [Citation.] The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. (In re ZachariaD. (1993) 6 Cal.4th 435, 447.) Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.] (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686 (Amber M).)
Mother contends the court erred in denying her section 388 petition because she demonstrated a real desire to change her life. In re Casey D. (1999) 70 Cal.App.4th 38, 48-49 (Casey D.), is instructive. There, the juvenile court denied the mothers section 388 petition on the grounds she showed that she was attempting to get her life together but had failed to establish changed circumstances. (Id. at p. 45.) The Casey D. court affirmed. It noted that the mother had been drug free for only four months and had an extensive drug history with a tendency to engage in treatment programs when required to do so by outside agencies and then relapse once the requirement was lifted. Further, the evidence indicated [the mother] was not yet working on a 12-step program and had not yet written her autobiography, which was a significant requirement of [the mothers] drug treatment program. (Id. at p. 48.)
A similar factual predicate is present here. As the juvenile court observed, mother was making a change in her life but had not established changed circumstances. This conclusion was not arbitrary, capricious, or patently absurd[.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Mother has an extensive drug history, and had never progressed beyond step three of the 12-step program. At the time of the section 388 hearing, mother had been sober for only eight months and, in the 11 years that she had been using drugs, she had never been sober longer than one year. As in CaseyD., mothers circumstances were changing, but not yet changed. The bulk of the positive changes in mothers life occurred in October 2007, after her son was born and only six months prior to the section 388 hearing. For example, in September 2007, she was charged with grand theft and burglary after she was caught stealing from a department store; and in July 2007, she tested positive for methamphetamine. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [fathers seven months of sobriety while commendable, was nothing new; 200 days of sobriety was not enough to reassure the juvenile court that the most recent relapse would be his last].)
Mother also argues that the denial of her section 388 petition was an abuse of discretion because daughters best interests would be served by granting the petition. She relies heavily on In re Michael D. (1996) 51 Cal.App.4th 1074 (Michael D.). In that case, the juvenile court granted the mothers section 388 petition where the minor testified that he wanted to live with Mommy and where the record contain[ed] ample uncontradicted evidence establishing it was in [the minors] best interest for his mother to regain custody. (Id.at pp. 1087.) Michael D. does not assist mother for two reasons. First, the Department offered evidence that daughter wanted to be adopted by Aunt and to continue living with her. Unlike the minor in Michael D., daughter did not testify that she wanted to live with mother. Instead, she expressed an interest in living with Aunt. Second and in stark contrast to Michael D., the Department presented evidence that living with mother would be contrary to daughters best interest. Moreover, mother conceded that if daughter wanted to be adopted by Aunt and continue living with her, then thats what Ill support. As a result, we conclude the juvenile court properly exercised its discretion in denying mothers section 388 petition.
Substantial Evidence Supports the Juvenile Courts Conclusion That the Beneficial Relationship Exception Did Not Apply
Next, mother contends that the court erred in terminating her parental rights because the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i) applies. Under section 366.26, subdivision (c)(1), the court must terminate parental rights if it finds the child is likely to be adopted unless the parent establishes, by a preponderance of the evidence, that one of the statutory exceptions applies. ( 366.26, subd. (c)(1); see also Cal. Rules of Court, rule 5.725(e)(1)(B)(i).) To establish the applicability of the beneficial relationship exception, mother must demonstrate she has maintained regular visitation and contact with [daughter] and [daughter] would benefit from continuing the relationship with her. ( 366.26, subd. (c)(1)(B)(i).) The parties agree that mother maintained regular visitation with daughter. As a result, the issue here is whether mother can satisfy the second prong of the beneficial relationship exception: whether daughter would benefit from continuing the parental relationship with mother.
Appellate courts have applied both the substantial evidence and the abuse of discretion standards to review the applicability of the beneficial relationship exception. (Compare Casey D., supra, 70 Cal.App.4th at p. 52 [substantial evidence standard of review]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [same] with In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [same].) Although there appears to be little practical difference between the two standards of review in this context, we apply the substantial evidence standard of review because the parties do not argue otherwise.
To determine whether the beneficial relationship exception applies, 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 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 parents rights are not terminated. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The beneficial relationship exception is difficult to make in the situation, such as the one here, where the parents have [not] . . . advanced beyond supervised visitation. (CaseyD., supra, 70 Cal.App.4th at p. 51.) At least one court has commented that the beneficial relationship exception may be the most unsuccessfully litigated issue in the history of law. [I]t is almost always a loser. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn.5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Notwithstanding this high burden, mother argues there is substantial evidence of a beneficial relationship because her relationship with daughter was positive and parental. She gave advice to [daughter][.] She also contends that she and daughter were physically affectionate, often cuddling. They read to each other and played the piano. . . . [Mother] attended [daughter]s softball games. She asked [daughter] about school and her extra-curricular activities. The time [mother] and [daughter] spent together was as mother and child.
Here, there was evidence that mothers visits with daughter were appropriate and that daughter looked forward to, and enjoyed visits with, mother. Mother also presented evidence that she loved daughter, gave daughter advice, and was affectionate with her. But there was also evidence that daughter had an extremely close and positive therapeutic relationship with Aunt, and that Aunt acted as daughters psychological parent. To establish the beneficial relationship exception, mother was required to show more than that the relationship [with daughter] is beneficial. (CaseyD., supra, 70 Cal.App.4th at p. 52, fn. 4.) She needed to demonstrate the relationship promote[s] the well-being of [daughter] to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (Ibid.; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy more than a pleasant place in the childs life for the beneficial relationship exception to apply]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [beneficial relationship exception did not apply; loss of mere frequent and loving contact with parent was insufficient to show detriment from termination of parental rights].) She failed to do so.
Mothers reliance on Amber M., supra, 103 Cal.App.4th at page 690 where the mother established the applicability of the beneficial relationship exception is unavailing. There, a psychologist concluded mother and her daughter shared a primary attachment and a primary maternal relationship and that [i]t could be detrimental to sever that relationship. (Id. at p. 689.) The court appointed special advocate testified that the children enjoyed visits and that the children loved and missed Mother and called her mom. (Id. at p. 690.) The Court of Appeal determined the common theme running through the evidence was that the mother and her two children shared a beneficial parental relationship that outweighed the benefit of adoption. (Ibid.)
Here, Lee testified that changes to daughters living situation would be very detrimental to her and, in contrast, that it would not be detrimental to daughter if mothers parental rights were terminated. He also stated that Aunt was daughters surrogate psychological parent and that she represented the primary parent figure for daughter. Sachital also testified that Aunt was a psychological parent to daughter. In contrast to Amber M., there was no evidence that mother and daughter shared a primary attachment or that it would be detrimental to sever mother and daughters relationship. (Amber M., supra, 103 Cal.App.4th at p. 689; see also Casey D., supra, 70 Cal.App.4th at p. 52 [mother failed to establish beneficial relationship exception; social worker testified that the minors preference was for her foster mother whom she called ma-ma, turned to when she was tired, fussy, hurt or in need of reassurance and that it would be detrimental to [the minor] to terminate parental rights].) Accordingly, substantial evidence supports the courts conclusion that the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i) did not apply, and the court did not err in terminating mothers parental rights.
DISPOSITION
The order denying mothers section 388 petition and terminating her parental rights is affirmed.
__________________________
Jones, P.J.
We concur:
_________________________
Needham, J.
_________________________
Stevens, J.*
*Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[1] Unless otherwise noted, all further references are to the Welfare and Institutions Code. Section 388 provides in pertinent part that a parent may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made. . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held. . . . ( 388, subds. (a), (c).)
[2] Father told daughters social worker that mother dropped off [daughter] at his doorstep in early 2005 and claimed she couldnt handle her. Father is not a party to this appeal and is mentioned only where relevant to the issues raised in mothers appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2.)
[3] The report also noted, however, that mother tested negative for illegal substances in October 2006 and in February 2007.
[4] In December 2007, the court denied mothers motion for a bonding study.
[5] As noted above, mother tested positive for methamphetamine in July 2007, several months after her purported clean and sober date of March 2007.
[6] The parties stipulated that daughter was likely to be adopted.
