In re A.F.

Filed 9/13/06 In re A.F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Travis F. and Mary H., the parents of A.F., appeal the judgment terminating their parental rights under Welfare and Institutions Code section 366.26.^[1] Mary contends the San Diego County Health and Human Services Agency (Agency) violated her due process rights by not filing her psychological evaluation with the juvenile court. Mary also claims the court erred by denying her an evidentiary hearing on her section 388 petition, by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)), and by failing to apply the exception to adoption found in section 366.26, subdivision (c)(1)(D) for situations in which the relative caregiver, although unwilling to adopt, was willing to provide a permanent home for the child.

Travis contends the court erred by denying him a hearing on his section 388 petition and not applying section 366.26, subdivision (c)(1)(D) ¾ an exception to adoption in which a relative caregiver, although unwilling to adopt, is willing to provide a permanent home for the child. Travis also claims that under the circumstances presented, the court should have selected a permanent plan of guardianship rather than adoption.^[2]

PROCEDURAL AND FACTUAL BACKGROUND

On July 24, 2004, A.F., who was then five months old, had a seizure while in the care of Travis. Travis telephoned 911 and paramedics took A.F. to Children's Hospital, where doctors discovered she had a subdural hematoma and a bruise near the right ear. Travis said A.F. had fallen off the couch a week earlier, but doctors opined the baby's injury was nonaccidental.

Rhonda L., the maternal grandmother, with whom Mary and Travis were living, told the social worker that Mary and Travis's relationship "fluctuated daily" and they often argued. One time Travis threw eggs at Mary and A.F. Rhonda also said Travis appeared to be a loving and caring father when others were around, but she believed that Travis had a temper and anger issues. Camilla C., the maternal great-grandmother, also told the social worker that Travis had anger issues and often yelled. Camilla said she wanted to be evaluated for placement of A.F. in her care.

On July 28, Agency filed a dependency petition on behalf of A.F., alleging that she had suffered serious physical harm inflicted nonaccidentally by her parent. (§ 300, subd. (a).) The juvenile court detained A.F. in out-of-home care and ordered supervised visitation for Mary and Travis. Also that day, when Travis was in juvenile court for the detention hearing, he approached the social worker outside the courtroom and told her that A.F.'s injuries occurred while he was giving her a bath. Travis said he was wiping the baby with a towel and holding her by her left arm on the sink counter when she slid off the counter and into the sink, hitting her head on the inside of the sink. Mary said she was upset that Travis did not provide this explanation earlier but believed he would not do anything to intentionally hurt their child.

A physician at Children's Hospital reviewed photographs of the sink and opined that while A.F.'s bruise might have been caused by falling into the bathroom sink, the subdural hematoma was not caused by such a short fall.

On August 3, A.F. was detained in the home of Camilla.

On September 9, Mary and Travis submitted to the petition as amended, and the court sustained the amended petition.^[3] The court ordered Mary and Travis to undergo psychological evaluations, and continued the dispositional hearing to receive the results of the evaluations.

At the end of September, Travis moved to Los Angeles to join the military. He was no longer in contact with the social worker. Mary said Travis telephoned her every few days and inquired about A.F.'s progress.

On October 4, Mary participated in a psychological evaluation. Although the social worker said she would provide the court with a copy of the written evaluation upon receiving it, the court file does not contain a copy of the evaluation.^[4]

At the October 12 dispositional hearing, the court declared A.F. a dependent child, placed her in Camilla's home, and ordered Mary and Travis to comply with their case plans. The court also gave Agency discretion to allow Mary to reside in Camilla's home with A.F., if counsel for the child concurred. On February 15, 2005, Mary moved into Camilla's home.

For the upcoming six-month review hearing in March, a new social worker informed the court that the psychologist who conducted Mary's psychological evaluation "d[id] not report any mental health issues and did not provide a diagnosis other than Axis IV ¾ Child in out[-]of[-]home care, parents divorced when she was young." According to the social worker, the evaluation recommended that as long as Mary "demonstrates that she can protect the baby from the father, unsupervised visits would probably be warranted."

Mary was compliant with the three components of her case plan; she completed a psychological evaluation and a parenting course, and was participating in individual therapy. Travis had not complied with any part of his case plan, which required him to complete a psychological evaluation, a parenting course and an anger management course, and to participate in individual therapy.

At the six-month review hearing on March 30, the court found Mary had made substantive progress with the provisions of her case plan and ordered six more months of services. The court also ordered visitation between Mary and A.F. to be unsupervised and gave Agency the discretion to allow overnight visits and a 60-day trial visit if the child's counsel concurred and Mary was in compliance with her case plan.

In June, Travis, who was still in the military, visited San Diego and ¾ unbeknownst to Agency ¾ married Mary. In July, Travis, who was stationed in New York State, asked the social work office on the base to help him in arranging services. Also that month, Mary told the social worker that she was pregnant.

As a result of these developments, the social worker opined the prognosis for Mary to reunify with A.F. was "not good" because Mary had (1) minimized the risk of harm to A.F. from Travis, who had not received any services, and (2) placed her relationship with Travis ahead of her relationship with A.F. Agency recommended services be terminated and a section 366.26 hearing be set. At the 12-month review hearing on September 21, the court followed Agency's recommendations.

In the Agency's adoption assessment, the social worker reported that Travis had been discharged from the Army in December and returned to live in San Diego with Mary. Travis had enrolled in parenting and anger management classes. Agency assessed A.F. as "very adoptable [because of] her young age, sociability, good health, appropriate development, and attractive appearance." Both the maternal great-grandmother and the maternal grandmother were willing to adopt A.F. if she was freed for adoption, but both women preferred a plan of guardianship. Agency also had identified 17 approved prospective adoptive families who were willing to adopt a child with A.F.'s characteristics.

On January 17, 2006, the court authorized a bonding study between Mary and A.F. Psychologist Yanon Volcani, who conducted the study on February 17, opined that A.F. perceived Mary as a central care-giving figure in her life and separating the child from Mary would likely be traumatic for the child. Furthermore, the potential detriment to A.F. would be exacerbated were she concurrently separated from Camilla, to whom A.F. also was deeply attached.

On March 28, the day of the section 366.26 hearing, Mary filed a section 388 petition, seeking placement of A.F. with her and provision of family maintenance services. As changed circumstances, Mary alleged the birth of her second child and the fact she had custody of the newborn. Mary also alleged she will be separating from Travis and moving back to Camilla's home. (See fn. 9, post.) Mary alleged that reuniting her with A.F. would be in A.F.'s best interests because (1) A.F. will have the opportunity to be raised with her sibling, and (2) she and A.F. had a beneficial parent-child relationship, as reflected by Dr. Volcani's bonding study.

Travis also filed a section 388 petition on March 28. Travis's petition sought a resumption of reunification services for him, or return of A.F. to his custody and family maintenance services. As changed circumstances, Travis alleged he (1) was engaging in reunification services, including parenting classes, individual therapy and a domestic violence program, (2) was regularly visiting A.F., (3) had community and church support, (4) was employed and had stable housing, and (5) was a tutor and a volunteer at community organizations.^[5] Travis alleged his proposed changes would be in A.F.'s best interests because she "deserves to be raised by her loving, stable biological father" and to have the opportunity to be raised with her sibling.

The court found neither section 388 petition presented a prima facie showing and denied Mary and Travis an evidentiary hearing on their respective petitions. The court proceeded to the section 366.26 hearing, which spanned two days.

Social worker Sunny Schade recommended A.F. be adopted by Camilla, who initially did not want to adopt A.F. because she preferred to be the child's guardian. Schade testified the great-grandmother agreed to adoption after being told that A.F. would be removed from her home if the court selected adoption as the child's permanent plan and she was unwilling to adopt. Schade quoted the great-grandmother as saying she changed her mind because she would do "whatever I have to do to keep [A.F.]"

Schade also testified that Mary had a good parental relationship with A.F. and Camilla had some "maternal relationship" with A.F. The social worker recommended that Mary's relationship with A.F. continue after adoption and believed it would if Camilla adopted A.F. Notwithstanding the close relationship between Mary and A.F., Schade said she recommended adoption as A.F.'s permanent plan because the benefits of adoption outweighed the benefit of maintaining a legal relationship between Mary and A.F. Schade also favored adoption because she was not confident that if Camilla was appointed A.F.'s guardian she could protect A.F. to the same degree that she could as the child's adoptive parent. The social worker opined that Mary valued her relationship with Travis more than she valued her relationship with A.F.

Schade opined that Travis did not have a strong parent-child relationship with A.F. Schade acknowledged that A.F. addressed Travis as "daddy" and enjoyed playing with him. However, A.F. was not upset when her visits with Travis ended. Schade said Travis had not visited A.F. for a year when he resumed visits the previous December. The following month, Travis's visits became consistent. Although Schade was unaware that Travis had begun participating in reunification services, she believed he had not made significant strides in treatment regarding the issues that brought A.F. into the dependency system. Schade described Travis as "untreated [and] totally unrepentant."

Mary testified that from February to December 2005 she provided daily care for A.F., bathing, feeding, dressing and rocking the child to sleep at night. A.F. knew Mary as her mother. After she moved in with Travis, Mary visited A.F. daily and stayed overnight at Camilla's home three to four times a week. Mary denied that her relationship with Travis was more important than her relationship with A.F. Mary said she married Travis in June 2005 in order to receive military benefits. Also, Travis demonstrated that he was trying to change and wanted to live as a family with her and A.F., and promised to participate in services.

The court found A.F. was likely to be adopted within a reasonable time and that none of the statutory exceptions to adoption applied. With respect to the exception under section 366.26, subdivision (c)(1)(D), the court noted the evidence indicated Camilla was willing to adopt. Furthermore, the court said "it's only fair that the Agency place the caretaker on notice that this child is generally adoptable" and explain that if the caregiver is not willing to adopt, that the child likely would be removed. Regarding the exception under section 366.26, subdivision (c)(1)(A), the court observed that despite the parent-child relationship between Mary and A.F., the child would not benefit from continuing that relationship because it was uncertain that Mary would protect A.F. from Travis. The court terminated parental rights and referred A.F. to Agency for adoptive placement.

DISCUSSION

I

Failure to Provide Court With Psychological Evaluation Was Not Prejudicial

Mary contends Agency violated her due process rights by not filing with the court and not providing her with a copy of her favorable psychological evaluation. We agree Agency should have filed the evaluation with the court and given a copy to Mary's counsel. However, Mary cannot prevail because she cannot demonstrate prejudice.

We begin our analysis by rejecting Agency's waiver or forfeiture argument, even though Agency is correct that Mary did not raise this issue below. If there are due process implications, an appellate court may review an error despite a party's failure to raise it below. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849.) Moreover, "application of the forfeiture rule is not automatic," and a reviewing court has the discretion to consider forfeited claims. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

It is not disputed that under applicable case law and rules of court, Agency erred by not filing the evaluation report with the court and by not providing a copy to Mary.^[6] Section 370 gives the juvenile court authority to order Agency "to obtain the services of those psychiatrists, psychologists, and other clinical experts as may be required to assist in determining the appropriate treatment of the child and as may be required in the conduct or implementation of that treatment." Agency, as an "impartial arm" of the juvenile court, also has the duty to provide reports and recommendations to the court to assist the court in carrying out the Juvenile Court Law (§ 200 et seq.). (In re Ashley M. (2003) 114 Cal.App.4th 1, 8.)^[7] Moreover, "[t]he juvenile court rules encourage the informal exchange of information between the parties and create an affirmative duty to disclose favorable evidence, subject only to a showing of privilege or other good cause." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166; see also Cal. Rules of Court, rule 1420(a) & (c).)

Mary claims Agency's failure to provide the favorable psychological evaluation to the court and to her infringed upon her substantive due process right to a fair hearing and a "level playing field." Mary points out that our Supreme Court has observed that the state's dependency system "comports with the due process clause of the Fourth Amendment" (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256) because Agency is required, among other things, to provide parents' counsel with " '. . . all records relevant to the case which are maintained by state or local agencies' or 'by . . . other medical or nonmedical practitioners . . . .' " (Id. at p. 255.) Thus, to the extent that Agency suggests that due process rights in dependency cases are limited to issues of notice and the right to a hearing, Agency is mistaken.

Nonetheless, the error is harmless because Mary cannot show prejudice under the standard for assessing the prejudicial effect of state error ( People v. Watson (1956) 46 Cal.2d 818, 836-837) or the more demanding standard for evaluating the prejudicial effect of federal constitutional error (Chapman v. California (1967) 386 U.S. 18, 87).^[8]

First, we note Agency did not hide the fact that Mary's psychological evaluation was favorable; the social worker told the court at the jurisdictional hearing that she expected the evaluation to be positive. For the six-month review hearing, the social worker reported the evaluator found Mary did not have any mental health issues. This summary was repeated in a subsequent written report that Agency submitted to the court.

We also note the court ordered the psychological evaluation to assist it making dispositional orders. After the social worker had related she expected the evaluation to be favorable, the court, at the dispositional hearing, went along with Mary's request and Agency's recommendation that Agency be granted discretion to allow Mary to move in with the great-grandmother and A.F. This was an early stage in the proceedings for such an order, but it was based in part on the social worker's expectation that the evaluation would be favorable.

Mary argues Agency's failure to provide the evaluation to the court and a copy of it to her violated her due process rights in an ongoing way because the evaluation contained positive, exculpatory evidence that was relevant to her section 388 petition and to her ability to establish the beneficial parent-child relationship at the section 366.26 hearing. We are not persuaded. Mary has never seen the evaluation; hence, her claims with respect to the section 388 petition and the section 366.26 hearing are based solely on speculation. Such speculation does not establish prejudice. (People v. Hovey (1988) 44 Cal.3d 543, 585.)

Moreover, petitions filed under section 388 are required to show changed circumstances or new evidence. (See part II, post.) Mary underwent the psychological evaluation on October 4, 2004; the section 388 petition was filed on March 28, 2006. The relevancy of a favorable evaluation, which was ordered for dispositional purposes, to an eleventh-hour section 388 petition, is difficult to discern ¾ particularly, when the court was aware the evaluation was positive and found Mary had no mental health issues. Nor do we see the relevancy of a psychological evaluation completed almost one and one-half years earlier to establishing the beneficial parent-child relationship under section 366.26, subdivision (c)(1)(A).

In light of these circumstances, we conclude beyond a reasonable doubt that the failure of Agency to provide Mary's psychological evaluation to the court was harmless. (Chapman v. California, supra, 386 U.S. at p. 87.)

II

Denial of a Hearing on Mary's and Travis's Section 388 Petitions Was Proper

Mary and Travis contend the court erred by denying an evidentiary hearing on their respective section 388 petitions. Each claims she or he made the requisite prima facie showings ¾ there are material changed circumstances that require the proposed change and the proposed change would be in A.F.'s best interests ¾ to warrant an evidentiary hearing. Their contentions are without merit.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on an appropriate showing of changed circumstances or presentation of new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is "in the best interest of the dependent child." (§ 388, subd. (b).) Section 388, subdivision (c) goes on to state: "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." However, the court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) that the requested change would promote in the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

A juvenile court has extremely broad discretion in deciding whether to grant an evidentiary hearing on section 388 petitions. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) The court's ruling on a section 388 petition should not be reversed absent an " ' ". . . arbitrary, capricious, or patently absurd determination . . . ." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (See In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Regarding Mary's petition, the court declined to order an evidentiary hearing because it found her petition did not meet the requirements of section 388, stating: "[H]er circumstances are [a] contemplation of change, but I don't see any change of circumstances sufficient to provide for a hearing on the issue." On this record, we find no abuse of discretion.

Mary's counsel orally amended the petition to allege as changed circumstances Mary (1) had given birth and had custody of that child, (2) will be separated from Travis, and (3) will be moving in with the great-grandmother.^[9] These circumstances did not constitute changed circumstances within the meaning of section 388.

Despite Mary's representation regarding what she would be doing, as of the filing of the section 388 petition Mary had not separated from Travis and had not moved back into the great-grandmother's house. On these points, there were no changed circumstances; there only was a contemplation of the changed circumstances, as the court below noted. Even if one accepts counsel's representation that Mary's willingness to separate from Travis demonstrated that Mary had decided to prioritize A.F.'s needs over her relationship with Travis, this, at most, constitutes "changing circumstances," not changed circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "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. [Citation.] ' "[C]hildhood does not wait for the parent to become adequate." ' [Citation.]" (Ibid.)

Mary's ability to protect A.F. from Travis had been the focus of this dependency proceeding from the beginning. Yet throughout the history of the case, Mary had vacillated between putting her relationship with Travis above her relationship with the child. Although Mary complied with her case plan, she married Travis unbeknownst to Agency and became pregnant by him. When Travis was discharged from the Army, Mary moved in with him. Given this history, the representation that Mary will separate from Travis brings to mind the proverb, "Actions speak louder than words."

As to the changed circumstance of Mary having given birth to a second child and retaining custody of the newborn, there was insufficient showing that this development supported Mary's position that placing A.F. with her would be in A.F.'s best interests. Such placement would have A.F. living in the same home as Travis, who still had not provided an explanation of how A.F. was injured that was consistent with the medical evidence and had not completed services addressing the reason he abused A.F.

Mary's failure to present a prima facie showing of changed circumstances as required by the statute was sufficient, by itself, to warrant a summary denial of her section 388 petition. However, Mary also failed to show that granting her petition would be in A.F.'s best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) The best interests showing is more difficult to accomplish when the petition is filed after reunification services have been terminated and the child's need for a permanent, stable home is paramount. At that point, the balancing of the parent's rights versus the child's rights shifts, and the child's interest in a stable, permanent home outweighs the parent's interest in reunification. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420.)

To support her claim that it would be in A.F.'s best interests to be returned to her custody, Mary relied on Dr. Volcani's favorable bonding study and "the fact that it would be in [A.F.'s] best interest to be able to be raised in the home with her sibling." However, the bonding study was not helpful to Mary on this point. Although the bonding study indicated that Mary and A.F. had a strong parent-child relationship, this was not a new development. Furthermore, the bonding study did not address whether it would be in A.F.'s best interests to be placed with Mary. The author of the bonding study said he could not evaluate Mary's parenting skills and it was not his role to make placement recommendations. As to being able to live with her sibling, the protective issues surrounding A.F. and Travis outweighed the benefit to A.F. of living with a new sibling.

With respect to Travis's section 388 petition, the court denied an evidentiary hearing because Travis had not demonstrated a change of circumstances within the meaning of the statute. The court said: "[W]hile there have been some change of circumstances they do not equate to a change of circumstances that would provide for a modification of the previous order, or an existing order." On this record, we do not discern an abuse of discretion.

Travis's petition alleged as changed circumstances that he had engaged in reunification services, including parenting classes, individual therapy, a domestic violence program and regular visitation with A.F. Travis started these services after he was discharged from the Army in December 2005, almost one and one-half years after A.F. had been removed from the family home. Although Travis made a prima facie showing his circumstances were "changing," he did not show they had "changed." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Even had Travis begun participating in services as soon as he was discharged from the Army, he would have been engaged in those services for only three to four months by the time his section 388 petition was filed. Furthermore, Travis did not submit any progress reports; thus, there was no evidence of any progress Travis had achieved because of the services he had received. In short, Travis could only show he was starting to engage in treatment aimed to reducing the risk of harm to A.F. Thus, the changes in Travis's circumstances were not legally sufficient to require a hearing on his section 388 petition.

Moreover, even if Travis had shown sufficient changed circumstances, he did not show modifying the court's order was in A.F.'s best interests. A.F. became a dependent child because Travis caused her to suffer a serious head injury. Until Travis completed his treatment, A.F. remained at risk if she were placed in his custody. As a young child, A.F. deserved a safe, secure, predictable home environment. Very young children are especially vulnerable and require special protection. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

III

Court Properly Found None of the Statutory Exceptions to Adoption Applied

Mary and Travis contend the court erred by not applying the statutory exception to adoption in which the relative caregiver, although unwilling to adopt, was willing to provide a permanent home for A.F. (§ 366.26, subd. (c)(1)(D).) Mary also contends the court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)). The contentions are without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1).) There are five statutorily recognized exceptions to adoption. (§ 366.26, subd. (c)(1)(A)-(E).) These include an exception when the relative or foster parent caretaker is unable or unwilling to adopt because of exceptional circumstances (§ 366.26, subd. (c)(1)(D)). Another exception is the beneficial parent-child relationship (§ 366.26, subd. (c)(1)(A)). The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

A.

Substantial Evidence Exists That Section 366.26, subdivision (c)(1)(D) Did Not Apply

Section 366.26, subdivision (c)(1) reads in relevant part:

"(c)(1) If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:

"[¶] . . . [¶]

"(D) The child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child."

The record contains substantial evidence that Camilla was able and willing to adopt A.F., and no evidence that Camilla was unwilling or unable to adopt A.F. The court correctly found section 366.26, subdivision (c)(1)(D) did not apply; the requirements of the statute were not met. (In re Zachary G., supra, 77 Cal.App.4th at p. 810.) It does not matter that Camilla preferred guardianship over adoption. As we have noted, "family preference is insufficient" to trigger application of section 366.26, subdivision (c)(1)(D). (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298; see also In re Jose V. (1996) 50 Cal.App.4th 1792, 1797, 1801.) The caretaker's preference for guardianship over adoption is irrelevant at a section 366.26 hearing, "where the court's task [is] to select the plan which best serve[s] the child's interests." (In re Jose V., supra, 50 Cal.App.4th at p. 1801.)

Travis relies on In re Fernando M. (2006) 138 Cal.App.4th 529, 535-538 in which the reviewing court reversed the termination of the mother's parental rights, holding the juvenile court incorrectly found section 366.26, subdivision (c)(1)(D) did not apply. The reliance is misplaced as that case is distinguishable.

Fernando, a special needs child, had been placed with the maternal grandmother, who provided excellent care. (In re Fernando M., supra, 138 Cal.App.4th at pp. 532-533.) Since he was a few months old, Fernando had lived with the grandmother, who also was caregiver for his two older siblings; the siblings were not dependent children. Both grandparents bonded with Fernando, but the grandfather did not want to adopt the child. (Ibid.) The grandmother also did not want to adopt "because Fernando 'belongs to my daughter, and I know that one day she will get him back.' " (Id. at p. 534.) The grandmother testified she agreed to adoption only because the social worker threatened to remove Fernando from her home if she did not. (Id. at pp. 533, 536.)

The reviewing court found the evidence showed the grandmother was unwilling to adopt because of exceptional circumstances, thus falling within the exception to termination in section 366.26, subdivision (c)(1)(D). (In re Fernando M., supra, 138 Cal.App.4th at pp. 536-537.) The court also found Fernando's adoption by someone else would disrupt his relationship with his siblings and deprive him of the stability and consistency he required to progress developmentally. (Id. at pp. 537, 538.) If the grandmother were forced to adopt Fernando, "there would be nothing to prevent Mother from taking custody of her two other children, leaving Fernando alone with [the grandmother]." (Id. at p. 537.) Furthermore, the grandfather would have to sign a spousal waiver, which would "invade the private realm of [the grandmother's] marriage" and potentially have a detrimental effect on Fernando's relationship with his grandfather. (Ibid.)

Here, the great-grandmother did not testify. However, the court had before it evidence from Schade and Dr. Volcani that Camilla was willing to adopt. The court said it was only fair that Agency put Camilla on notice that A.F. was adoptable, adoption appeared to be the most appropriate permanent plan, and if she was not willing to adopt, A.F. would be placed elsewhere so she could be adopted. The court said it was then up to Camilla to decide whether she wanted to make that commitment to the child, and Camilla decided to adopt.

Furthermore, Travis did not establish Camilla did not want to adopt because of exceptional circumstances. Unlike the situation in In re Fernando M., supra, 138 Cal.App.4th 529, Camilla did not have a spouse objecting to the adoption; hence, A.F.'s adoption would not threaten a marriage relationship. Additionally, A.F. did not have siblings residing in Camilla's home; hence, there was no potential that A.F.'s would be separated from siblings, with whom she had lived her entire life, and be left alone. Finally, A.F. was not a child with special needs.

B.

Substantial Evidence Exists That the Beneficial Relationship Exception Did Not Apply

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.

It is not disputed that Mary visited A.F. regularly. At issue, therefore, is whether Mary had a beneficial parent-child relationship with A.F. within the meaning of section 366.26, subdivision (c)(1)(A).

To establish such a relationship, a parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Further, to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child and the child's individualized need." (Id. at pp. 575-576.)

Mary's claim that she had a parental relationship with A.F. is supported by substantial evidence. The social worker testified that Mary had a good parental relationship with A.F., one that was even stronger than the one Camilla had with A.F. The social worker recommended Mary's relationship with A.F. continue after adoption, which would be possible if Camilla adopted the child. Moreover, according to the bonding study, A.F. perceived Mary as a central care-giving figure in her life.

Nonetheless, even though Mary had a positive and loving relationship with A.F., it was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). The court could reasonably infer from Mary continuing her relationship with Travis that she valued her own needs over A.F.'s needs, which raises protective issues and also is the antithesis of a healthy parent-child relationship. In balancing "the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new [adoptive] family would confer," the juvenile court could reasonably conclude termination of Mary's legal relationship with A.F. would not be detrimental to the child. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Furthermore, Mary did not meet her burden of showing the benefits of continuing her relationship with A.F. outweighed the well-being the child would gain in a safe and stable permanent adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The paramount concern in this case was the safety of A.F., who had suffered serious physical injury inflicted by Travis. The risk of physical harm to the child remained as long as Travis was not sufficiently treated. Mary's attitude to ending her relationship with Travis was ambivalent at best. Her allegation in the section 388 petition that she will separate from Travis is speculative. Because protective issues still existed and Mary did not demonstrate that she would protect A.F. from Travis, the court's conclusion that the benefits of Mary's relationship to the child did not outweigh the benefits of adoption was supported by substantial evidence.

IV

Selection of Adoption Rather Than Guardianship or Long-Term Foster Care Was Proper

Travis contends that given the circumstances of the case the court should have ordered a permanent plan of legal guardianship or long-term foster care rather than adoption because it was in the best interests of A.F. to maintain ties with her biological father and mother. The contention is without merit.

The statutory mandate is that once the court finds by clear and convincing evidence it is likely the minor will be adopted, the court must terminate parental rights unless one of five specified exceptions apply. (§ 366.26, subd. (c)(1)(A)-(E).) In In re Zeth S. (2003) 31 Cal. 4th 396, 410, our Supreme Court observed: "The Legislature . . . has determined that what is in the child's best interests is best realized through implementation of the procedures, presumptions, and timelines written into the dependency statutes." When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Legal guardianship is not considered by the juvenile court unless and until adoption has been rejected. (In re Cody W. (1994) 31 Cal.App.4th 221, 230-231.)

To the extent that Travis is advocating a generalized "best interests" exception to adoption, he cannot prevail. There is no generalized "best interests" exception under section 366.26, subdivision (c)(1). (In re Tabatha G., supra, 45 Cal.App.4th at pp. 1164-1165; see also In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Mary and Travis join in each other's arguments. (Cal. Rules of Court, rule 13(a)(5)).

^[3] The petition was amended to substitute an allegation under section 300, subdivision (b) for the original allegation under section 300, subdivision (a). The amended petition alleged that A.F. had suffered serious physical harm "as a result of the failure or inability of her parent to adequately supervise or protect the child." (§ 300, subd. (b).)

^[4] We granted Mary's request to augment the record on appeal and ordered the superior court clerk to transmit a copy of Mary's psychological evaluation to us. The clerk certified that Mary's psychological evaluation was not in the court file.

^[5] Travis's written petition also alleged that his military service in Iraq prevented him from beginning his reunification services earlier, adding "[p]arental rights should not be jeopardized because someone is fighting for our country." At the March 28 hearing, counsel for Travis orally amended the petition to reflect that Travis was not deployed overseas.

^[6] The record does not disclose whether the error was intentional or inadvertent. It would be speculative on our part to conclude one way or the other.

^[7] We recognize Agency has "a hybrid" role in dependency proceedings; it exercises an executive function, as well as acting as an arm of the court (In re Ashley M., supra, 114 Cal.App.4th at pp. 7-8.)

^[8] Under the test set forth in People v. Watson, supra, 46 Cal.2d 818, reversal is not required if it is not reasonably probable that a better result for the appealing party would have been achieved absent the error. Under the standard in Chapman v. California, supra, 386 U.S. 18, reversal is not required if the error is harmless beyond a reasonable doubt.

^[9] Mary's written petition stated that she had separated from Travis and had moved in with Camilla. Mary's counsel orally amended the petition to allege Mary will separate from Travis and she will move in with Camilla. Counsel argued that Mary willingness to do those two things showed she had decided to prioritize A.F.'s needs over her relationship with Travis.