In re Brianna L.

Filed 6/30/08 In re Brianna L. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Angela L. (appellant) appeals from the juvenile courts order, pursuant to Welfare and Institutions Code section 366.26,[1] terminating her parental rights with respect to her daughter, Brianna L. (now two years old). Appellant contends (1) the juvenile courts adoptability finding was not supported by substantial evidence, and (2) the courts finding that the parent-child relationship exception to adoption did not apply was not supported by substantial evidence. We shall affirm the juvenile courts order.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2006, the Alameda County Social Services Agency (Agency) filed an original petition alleging that Brianna L. (then less than two weeks old) came within the provisions of section 300, subdivisions (b), (g), and (j), in that appellant had a history of substance abuse that impaired her ability to provide care to Brianna; the identity and whereabouts of Briannas father were unknown, as was his ability to provide care for her; and appellant failed to reunify with Briannas sibling, D.S., and the court had terminated appellants parental rights to D.S. on June 22, 2001. As to the substance abuse allegations, the petitionas amendedspecifically alleged that, at the time of Briannas birth, both Brianna and appellant tested positive for amphetamines. Brianna was born in a detrimental condition with low Apgar scores, was not breathing at birth, and required two intubations. During her hospitalization, Brianna exhibited withdrawal symptoms consistent with drug exposure. In addition, appellant admitted a history of methamphetamine use and, on January 1, 2006, appellant had been arrested for being under the influence of methamphetamine. Finally, Briannas sibling, D.S., had been a dependent of Alameda County due in part to appellants substance abuse before appellants parental rights were terminated.

On February 24, 2006, the juvenile court ordered Brianna retained.

In a jurisdiction/disposition report filed on March 13, 2006, the social worker reported, as to jurisdiction, that if called to testify, several doctors and a social worker at the hospital in which Brianna was born; a highway patrol officer; and an Agency social worker would confirm the specific allegations in the petition.

As to disposition, the social worker reported that appellant was born with fetal alcohol syndrome, and that her mother (Briannas maternal grandmother) had a long history of alcohol abuse and a long history of domestic violence, as a perpetrator. Appellant, who had been an addict for almost 14 years, was a resourceful woman who had recently found and enrolled herself in a substance abuse program. Appellant also had the staunch support of several family members. There were two relatives in consideration for a relative placement of Brianna, her maternal great aunt Cheryl T., with whom Brianna had been placed on an emergency basis and who had previously adopted appellants older daughter, D.S., and her maternal great aunt Cecilia T.

Brianna, a fair complexioned child with sparse ruddy reddish-brown hair and big blue eyes, was still displaying some symptoms of withdrawal, but was generally in good health.

The Agency recommended out-of-home placement for Brianna, with reunification services offered to appellant and Brianna.

On March 13, 2006, the juvenile court sustained the allegations in the petition, adjudged Brianna a dependent of the court, ordered Brianna removed from her mothers custody, and ordered reunification services.

In a Contested Placement Hearing report, prepared on April 24, 2006, the social worker reported that appellant had been actively participating in the SISTER residential recovery program since March 8, 2006 and was doing well. The social worker was concerned, however, about the need to balance the demands of appellants recovery and underlying mental health issues with the challenges of parenting an infant. She therefore recommended that appellant enroll in a more intensive inpatient treatment program with a dual-diagnosis component, where Brianna could also be placed after appellant stabilized.

Brianna appeared to be recovering from her intrauterine drug exposure and was showing decreased substance abuse withdrawal symptoms. She had had consistent visits with appellant at appellants recovery program and appellant had been observed as appropriate with Brianna during visits. The Agency recommended that Brianna remain in her current placement with Cheryl T.

On May 9, 2006, the juvenile court ordered a psychological evaluation for appellant and further ordered that Brianna remain in her current placement.

In a six-month status review report, filed on August 7, 2006, the social worker reported that appellant had entered the Project Pride treatment program on May 8, 2006, where she was able to have liberal visitation with Brianna, whom she hoped would eventually be placed with her there.

Brianna continued to experience symptoms related to her methamphetamine exposure, including arm and leg tremors, increased muscle tone and rigidity, and sensitivity to stimuli and irritability when subjected to multiple transitions. She had been evaluated by an ophthalmologist for a slight eye turn, which the doctor thought seemed within normal limits for her age. She also had been diagnosed with scoliosis and torticollis (a turning of the head). She was referred to physical therapy for the torticollis and the scoliosis would continue to be monitored to evaluate whether a brace or surgery would be necessary.

Brianna was reported to be developmentally on track. She was a sociable baby, who was easygoing when not stressed by intense stimuli or excessive transitions. She made eye contact with others and had an infectious smile. Her relatives all report that they have fallen in love with her because of her sunny personality. She had begun to display mutual bonding with her mother and caregivers, suggesting healthy attachment. While she did have some measure of medical fragility, she was not gravely incapacitated by her medical issues.

Brianna continued to reside with her great aunt Cheryl T., where she was thriving. It had been positive for her to live in the same home as her older half-sibling, D.S., as the two had bonded and developed their relationship. Brianna also had begun to have overnight visits several nights a week with appellant at Project Pride. During a visit, the social worker had observed that Brianna and appellant made frequent eye contact and appeared to be mutually bonded and that appellant was very attentive to Brianna during the visit. Nonetheless, the social worker was concerned that appellant did not ask about Briannas feeding and sleeping schedules when Brianna arrived for a visit and continued to have difficulty recognizing the babys cues that she is distressed.

There had been several issues of concern regarding appellants ability to closely monitor Briannas health and safety. For instance, Brianna had gotten sunburned on her arm when appellant took her outside without any protection from the sun. On another occasion, Brianna was suffering from double ear infections that went unnoticed during an extended overnight visit, despite the fact that she was reportedly extremely irritable and had a temperature of 102 degrees. In addition, an unusual bruise was discovered on Briannas leg after a visit with appellant, that appellant apparently did not notice.

The social worker requested that the status review hearing be continued pending receipt of appellants psychological evaluation, after which the Agency would have more information and be better able to know whether to recommend further reunification or family maintenance services.

Over appellants objection, the juvenile court granted the Agencys request for a continuance.

In a report for the six-month interim review, filed on September 12, 2006, the social worker reported that Brianna had experienced some struggles since the last report. She had been consistently ill with ear and respiratory infections and her weight had dropped one percentile.

Appellants aunts Cecilia T., Cheryl T., and Sandra T. had all indicated they felt that appellant had made excellent progress in her efforts at recovery and was strongly committed to caring for Brianna as a full-time parent. Cheryl T. had some reservations about appellants competency as a caregiver, but was also pleased at her progress. Appellants counselor at Project Pride described appellant as a competent caregiver who was well-respected by her peers and who showed strong initiative to build her parenting skills.

Gary Solak, LMFT, had completed a psychological evaluation of appellant, in which he found, inter alia, that appellant  does not adequately take the time to consider the long term impact of an action on her or within her environment . . . consequently she may act without having fully [considered] the implications or consequences of her action. . . .  In addition, appellants responses to a parenting inventory revealed a number of concerns regarding her knowledge of child development.

Carolyn Conlin, PNP, Briannas general practitioner, who described Brianna as a  vulnerable baby,  expressed concerns about appellants inability to pick up on Briannas behavioral cues when she was not well and noted that appellant is uncomfortable holding the baby, lacks soothing gestures, and doesnt bring the baby close when she is getting fussy. She also noted a marked difference in Briannas irritability after visits to Project Pride . . . .

Briannas physical therapist, Heather Walsh, had indicated that appellant had come to two training sessions and had great difficulty grasping and replicating the exercises she needed to be able to perform on Brianna. In the second session, Briannas neck did not seem better; had the exercises been done correctly, there should have been a visible result. Appellant also appeared to lack the skills to soothe Brianna when she got upset.

The social worker concluded that appellant clearly was enthusiastic about assuming the role of full-time parent to Brianna, had been open to receiving services, and had been a willing and active participant in all aspects of her case plan. However, in light of information obtained from Briannas healthcare providers and the psychological evaluation, the social worker believed appellant was in need of one-to-one coaching and supervision to effectively meet Briannas needs. The social worker therefore recommended continued reunification services while addressing the need to offer appellant more individualized services.

On September 12, 2006, the juvenile court ordered continued reunification services and granted the social worker discretion to allow a 30-day trial visit.

On November 13, 2006, appellant filed an ex parte application for commencement of a 30-day trial visit. In support of her application, appellant submitted letters from, inter alia, a Project Pride therapist intern, a Childrens Hospital First Program therapist, and a Baby Builders program early intervention manager.

On November 16, 2006, the juvenile court granted appellants application and the 30-day trial visit began on that date.

On December 22, 2006, appellant filed a JV-180 Request to Change Court Order, asking for in-home placement of Brianna with her at Project Pride, with family maintenance services. In the request, appellant stated that the 30-day visit had been extremely successful and that the social worker and Briannas attorney were in agreement with her request. The juvenile court granted the request on December 26, 2006.

In a status review report, filed on February 22, 2007, the social worker reported that appellant and Brianna had been living with appellants aunt Cecilia T. since January 31, 2007. Appellant continued to be enthusiastic about parenting Brianna full-time and continued to make steady progress in attempting to follow all aspects of her case plan. Appellant was communicating openly and frequently with the social worker and was very open minded and willing to accept services. She had continued to address her substance abuse issues and had maintained sobriety while at Project Pride. She was doing a great job of parenting Brianna and had shown her ability to meet Briannas needs.

Appellant and Brianna had been asked to leave Project Pride unexpectedly on January 31, 2007, due to concerns about Briannas health, at which time appellant began attending the program as an outpatient. Appellant had tested clean for drugs during the reporting period. She was attempting to locate transitional housing for herself and Brianna.

Brianna had been hospitalized from January 9 to January 18, 2007, due to silent aspiration of liquids. A nasal jejunum (NJ) tube had been put in place, which went from Briannas nose past the stomach and into the small intestine, to reduce the possibility of stomach acids rising into her lungs. Surgery was planned in mid-February for a more permanent placement of a feeding tube. Brianna was also able to ingest pureed and solid foods under careful supervision, but could not drink liquids. Brianna also continued to receive regular physical and occupational therapy.

Brianna continued to make developmental strides every day. She was now crawling, could stand up with assistance, and was becoming more coordinated when using her hands. Her gross motor skills were emerging, but impacted; her fine motor skills were impacted to an extent by her lack of mobility; her language and communication skills were excellent and at age level; her self help skills were emerging nicely; and her coping behaviors were strong. The social worker described Brianna as an adorable, happy, 1 year old. She is very friendly and appears to be comfortable around other adults and children. The social worker and other service providers had seen a nice growth of attachment of Brianna to her mother. Briannas transition to living with her mother went very well. . . . [Appellant] picks up on parenting [cues] very quickly and does a good job of regulating Brianna.

The social worker recommended that appellant continue to receive family maintenance services. Appellant needed to obtain housing for herself and Brianna and show her ability to live on her own. She also needed to continue to show her ability to live drug-free and attend 12-step meetings.

On March 5, 2007, the juvenile court found that appellant had made substantial progress and ordered Briannas return home as the permanent plan, with family maintenance services also ordered. An earlier request for de facto parent status made by Cheryl T., Briannas great aunt, was denied.

Ten days later, on March 15, 2007, the Agency filed a section 387 supplemental petition, alleging that appellant was homeless and unable to provide for Briannas multiple and complicated medical needs.

In a detention report, filed on March 16, 2007, the social worker reported that, on the morning of March 8, Briannas maternal great aunt Cecilia T., with whom Brianna and appellant were staying, heard appellant banging around and calling Brianna names. When she went into their room, she found Brianna alone in the room; she then went outside and called appellant back as she needed to take a shower. They argued and appellant roughly took Brianna from Cecilia T.s arms while Cecilia T. was on the phone, threatening to call police. Appellant left with Brianna who had no feeding tube or jacket. Police later located appellant, who allowed Brianna to return to Cecilia T.s home. Later that day, maternal great aunt Cheryl T. took Brianna, who was not feeling well, to the doctor.

Cecilia T. told the social worker that things had been piling up for some time with appellant. She had never voiced her concerns before and had minimized appellants problems because she was caught up in her quest of fighting CPS and making mother successful in getting Brianna back. Cecilia T. said she had taught appellant how to present herself and answer questions in court. She also said that Brianna is more bonded with her than with appellant, but she would sit away from Brianna and let appellant be close to her in front of outsiders. Since appellant had moved in with her and she observed the interaction between appellant and Brianna, Cecilia T. became increasingly concerned about appellants ability and judgment in caring for Brianna.

While appellant was not physically abusive, she was  rough and not nurturing  with Brianna. She would go on the internet or talk on the phone rather than spending time with Brianna. Appellant would also continue sleeping at night, rather than fix the feeding pump, ignoring its continuous beeping. Appellant also sometimes fed Brianna, who had aspiration problems, too fast or with too much soft food. Cecilia T. was concerned too that appellant might have given Brianna prescribed medication every night to make her sleep. Now, with the possibility of appellant and Brianna moving into transitional housing without supervision or support, Cecilia was terrified for Briannas safety.

Cecilias adult daughter, Alexa, also stated that appellant neglected Brianna and that she talked to her in a negative way, like how come you (Brianna) would not be normal, etc.

A public health nurse stated that, because Briannas medical condition required her treatment plan to be adjusted regularly, her caretaker needed to be attentive to all the changes. Briannas occupational therapist expressed concern about appellants ability to care for Brianna. Appellant appeared unable to put many instructions into practice. Briannas physical therapist reported that appellant was easily distracted, asking the same question 30 seconds later. The physical therapist also reported that when Brianna got upset and needed to be soothed, she would lean toward and look up at Cecilia T. (who came to most of the physical therapy sessions), instead of at appellant.

Due to concerns about Briannas safety, the Agency decided to take Brianna into protective custody so that a more thorough investigation could be conducted and facts could be gathered regarding Briannas medical situation. The social worker concluded that mother was not in an appropriate placement that could provide her with proper supervision and support to address the concerns about her ability and judgment in caring for a special needs child. Brianna was placed with Cecilia T.

On March 16, 2007, the juvenile court ordered Brianna temporarily retained and set a contested detention hearing for March 19.

On March 19, 2007, after appellant filed a motion to dismiss and a demurrer to the supplemental petition, the juvenile court ordered the petition dismissed.

On June 12, 2007, the Agency filed a section 387 supplemental petition, alleging that appellants substance abuse interfered with her ability to protect Brianna. In particular, the petition stated that appellant was arrested at 3:30 a.m. on June 9 for driving under the influence (DUI) while Brianna was in the vehicle. Appellant had been driving on a suspended license due to a previous DUI. Appellant was incarcerated and Brianna was taken to Childrens Hospital where it was reported that she was dirty and disheveled. Appellant had not been staying at Elizabeth House (where she and Brianna had been living) for approximately one week due to failure to pay rent. They had been staying with the maternal grandmother at a motel, where Brianna and appellant reportedly slept on the floor, which was littered with beer cans. Appellant also was not complying with her drug treatment specified in the family maintenance case plan.

The petition also alleged that appellant had medically neglected Brianna, specifically stating that Brianna required feeding with a pump through a feeding tube and that the pump had been left at Elizabeth House, so Brianna had not been properly fed for at least five days. When appellant went to the hospital to have the feeding tube reinserted on June 8, she appeared to be under the influence. Brianna was also required to wear a neck brace; since the brace was also left at Elizabeth House, Brianna was without the brace for at least five days. The nurse on the SEED team had documented numerous medical appointments for Brianna that appellant had missed. Brianna had begun to pull on her eyelashes, which is a sign of feeling stressed. Finally, there were multiple reports by family members who witnessed Brianna being fed bottles and/or solid food, contrary to medical advice.

The Agency recommended that Brianna be placed with her maternal great aunt, Cheryl T.

In a detention report, filed on June 13, 2007, the social worker reported that, after appellant was arrested for DUI, Brianna was transported and admitted to Childrens Hospital in Oakland. Brianna had to remain hospitalized due to the extent of medical neglect she had received. A doctor stated that the neglect finding was based on the totality of the circumstances including being dirty and disheveled (including dirty hair and a full diaper) upon arrival, being without the neck brace for multiple days, and most importantly being without the feeding pump for multiple days. The doctor stated that improper feeding could lead to serious medical consequences. Briannas dietician noted that growth in the previous six months had been slightly below goal, with the rate of growth much slower recently, from March to the current hospital admission.

At the June 13, 2007 detention hearing, appellant did not appear except by counsel. The juvenile court set a contested hearing for June 19, at which appellant again apparently did not appear except by counsel. The matter was submitted and Brianna was ordered retained.

In a jurisdiction/disposition report, filed on July 2, 2007, the social worker reported that appellant had been receiving family maintenance services and family preservation services. Despite all of these services, appellant was unable to sustain her housing and achieve stability, culminating in a late-night DUI arrest while Brianna was in the car. Appellant had attended seven out of 38 required groups or classes at her outpatient treatment program and had done four of the nine requested drug tests. Appellant had been declining since leaving Project Pride and the level of concern for Briannas health and safety had been increasing among the various service providers.

Brianna had been placed with her maternal great aunt Cheryl T. According to Briannas service providers and family, Brianna continued to make developmental strides every day. An adoption assessment had been conducted on June 15, 2007, and it was determined that Brianna was an adoptable child who was likely to be adopted.

The Agency recommended that Brianna be continued a dependent child and placed out of appellants home, and that no services be provided to appellant.

At the July 5, 2007 jurisdiction/disposition hearing on the section 387 petition, appellant appeared only by counsel and submitted to jurisdiction. The juvenile court found the allegations of the supplemental petition to be true.

On July 17, 2007, when the matter came on for a contested dispositional hearing, appellant again appeared by counsel. Custody of Brianna was taken from appellant, the court found that termination of parental rights and adoption would be the permanent plan, and family reunification services were denied to appellant. The court set a section 366.26 hearing for November 8, 2007.

In a section 366.26 report, filed on October 29, 2007, the social worker reported that appellant had attended five out of 12 scheduled visits with Brianna since June 2007. Two of the visits were cancelled because appellant was arrested; she failed to show up for five other visits. Appellant was also late for two visits in October, during one of which she appeared to be under the influence. According to the therapist, during visits, Brianna became distressed during the transition from the foster mother to appellant.

Brianna, at 18 months old, had multiple medical problems, including silent aspiration of liquids, which required a gastric tube to be placed in her stomach. She had continued to gain weight and had increased her intake of solid food, under careful observation, though she still could not drink liquids. Brianna also had asthma, which was well controlled. She had scoliosis and torticollis. She was wearing an orthopedic collar several hours a day to keep her head held straight. If this intervention did not adequately improve the torticollis, corrective surgery might be needed.

Brianna had developmental delays in cognitive, language, gross motor, and self-help skills. She had sensory integration and behavior difficulties. She tended to hit others as she was unable to use words to express her feelings. Her behavior had improved markedly as her verbal abilities increased. Recently her language and cognitive development had been increasing by leaps and bounds, with a lot of skills emerging between the 12 and 18 month levels. Since being placed with Cheryl T., Brianna had gone from the third percentile for weight to the 45th percentile. She was crawling energetically and trying to learn to walk.

Brianna attended home-based day care three days a week with her maternal great aunt Cecilia T. She still was not fully able to function in the small group setting and needed constant one-on-one support from her aunt to deal with her agitation. She had gradually improved, and was beginning to form friendships and to enjoy playing with the other children. Brianna had grown more secure since placement with Cheryl T., more cooperative in her therapies, and easier to soothe. She still became upset in loud or overwhelming situations and had difficulty separating from the caregiver, but she had become very social and affectionate with family members, friends and pets.

Regarding likelihood of adoption, the social worker stated that Brianna is adoptable, and the great-aunt is committed to adopting her. A home study was in progress for great aunt Cheryl T., who was also the single parent of a 10-year-old son and the adoptive mother of Briannas 13-year-old sister. All records checks had been completed and Cheryl had no criminal record or protective services history.

Cheryl was committed to keeping Brianna and her sister together and providing Brianna with a safe and nurturing environment. Brianna looked to Cheryl as her primary parent and was very close to her. Brianna was also very attached to her older sister and Cheryls son. Cheryl had done an exceptional job of dealing with Briannas specialized medical and developmental problems. She has ensured that Brianna receives all needed services, and has managed to navigate the system while dealing with a large number of professionals. She has made sure that Briannas emotional needs are not neglected in the midst of dealing with her many medical needs.

The Agency recommended that appellants parental rights be terminated so that Brianna could be adopted. Appellant strongly opposed the adoption. The alleged father was in agreement with the plan for adoption and had signed a relinquishment of parental rights.

At a hearing on November 8, 2007, appellant appeared and requested a contested hearing.

In a memorandum, filed on November 27, 2007, the social worker reported that Brianna continued to make developmental strides and had recently begun walking. Her vocabulary was increasing rapidly and her torticollis had shown some improvement. The Agency continued to recommend termination of appellants parental rights so that Brianna could be adopted by Cheryl T.

At the December 4, 2007 section 366.26 hearing, appellant apparently arrived at court, but left before the case was called. She appeared by counsel only. Appellants counsel stated, on her behalf, that appellant was opposed to adoption, though not opposed to Brianna living with Cheryl T. in a legal guardianship. Counsel stated that Brianna does recognize [appellant] as her mother, but submitted the matter without presenting any evidence.

The juvenile court found Brianna adoptable and terminated appellants parental rights.

On December 10, 2007, appellant filed a notice of appeal.

DISCUSSION

I. Sufficiency of the Evidence that Brianna Is Likely to Be Adopted

Appellant contends there was insufficient evidence that Brianna is likely to be adopted.

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. ( 366.26, subd. (c)(1); see In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) On appeal, we must review the record to determine whether the juvenile courts finding is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; but see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [finding abuse of discretion standard of review appropriate, but noting that practical differences between abuse of discretion and substantial evidence standards of review are not significant].)

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Because the focus in an adoptability finding is on the child, it is not essential to have a proposed adoptive parent already lined up. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)  Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.  (Ibid., italics omitted; accord, In re Gregory A., supra, 126 Cal.App.4th at p. 1562, In re J.I. (2003) 108 Cal.App.4th 903, 911.)

In the present case, appellant argues that the juvenile court improperly based its adoptability finding solely on the fact that Briannas caretakerher great aunt Cheryl T.had expressed a desire to adopt her, without giving sufficient weight to the fact that Brianna suffers from numerous, ongoing health and other problems that make it unlikely that she will be adopted. We disagree.

While the record reflects that Brianna has ongoing medical issues, it also reflects that her health, as well as her emotional, developmental, and intellectual functioning have continued to improve, especially since she has been back in the consistent care of Cheryl T. For example, in a memorandum prepared days before appellants parental rights were terminated, the social worker reported that Brianna continued to make developmental strides in that she had recently begun walking and her vocabulary was increasing rapidly. In addition, her torticollis had shown some improvement.

Brianna is only two years old, which further supports the finding of adoptability. (See, e.g., In re Sarah M., supra, 22 Cal.App.4th at p. 1649 [childs age is one factor to consider in determining adoptability].) The record also shows that she has many positive attributes. For example, she was described early on as a sociable baby who made eye contact with others and had an infectious smile. Her relatives had  fallen in love with her because of her sunny personality. She also had demonstrated an ability to bond to her caregivers, and no concerns about attachment issues were ever expressed. As a one-year-old, Brianna was described by the social worker as adorable, happy and a very friendly child. Since her removal from appellant and her placement with Cheryl T., Briannas language and cognitive development have been increasing by leaps and bounds and, while she still becomes upset in loud or overwhelming situations, she has become very social and affectionate with family members, friends and pets.

Brianna also has a prospective adoptive parent, Cheryl T., with whom she has lived for a large part of her life, and who is committed to adopting her. All records checks have been completed and Cheryl T. has no criminal record or protective services history. Brianna sees as Cheryl T. as her primary parent, and is also very attached to Cheryl T.s 10-year-old son and to her own older sister, who was previously adopted by Cheryl T. Cheryl T. also has done an exceptional job of dealing with Briannas specialized medical and developmental problems and, further, has made sure that Briannas emotional needs are not neglected in the midst of dealing with her many medical needs. (See In re J.I., supra, 108 Cal.App.4th at p. 911 [substantial evidence of likelihood of adoption where child was having nightmares and looked terrified when told no, but both child and prospective adoptive parents were working on these and other issues with a new therapist and, significantly, child was living with a family that wanted to adopt her].)

In sum, the combination of factors, including a caring foster parent who has demonstrated her commitment to adopting Brianna, Briannas young age, and her many positive attributes more than counterbalance the continuing medical and related issues she faces. The juvenile courts adoptability finding is supported by substantial evidence. (See In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

II. Applicability of the Parent-Child Relationship Exception to Adoption

Appellant contends there is insufficient evidence to support the juvenile courts finding that the parent-child relationship exception to adoption does not apply.

Although adoption is the preferred plan of care once reunification services have been terminated, the Legislature has provided various exceptions to the general rule of adoption. (See former  366.26, subd. (c)(1);[2]In re Casey D. (1999) 70 Cal.App.4th 38, 50.) As relevant here, former section 366.26, subdivision (c)(1) provides: A finding under . . . Section 366.21 or 366.22, that the court has continued to remove the child from custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights 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:

(A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.[3]

The parent has the burden of proving applicability of this exception to adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review the juvenile courts determination regarding whether an exception applies to determine if it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; but see In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)[4]

In In re Autumn H., supra, 27 Cal.App.4th 567, the appellate court discussed the parent-child relationship exception: In the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] relationship exception to mean 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. 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 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.

Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Casey D., supra, 70 Cal.App.4th at p. 50.)

As a preliminary matter, the Agency argues that appellant has forfeited this issue by failing to first raise it in the juvenile court. Appellant counters that when her counsel argued at the section 366.26 hearing against adoption and stated that Brianna did recognize appellant as her mother, counsel preserved the issue for appeal. She further asserts that when counsel submitted the matter to the juvenile court for decision, the matter also was preserved for appeal. (See In re Richard K. (1994) 25 Cal.App.4th 580, 588-589 [when a parent submits on a particular record, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion].) We find appellants position to be without merit and agree with the Agency that appellant failed to preserve this issue for appeal by failing to raise it in the trial court.

In In re Erik P. (2002) 104 Cal.App.4th 395, 403, the appellate court explained why a claim that one of the statutory exceptions to adoption apply may not be raised for the first time on appeal: The application of any of the exceptions enumerated in section 366.26, subdivision (c)(1) depends entirely on a detailed analysis of the relevant facts by the juvenile court. [Citations.] If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial courts determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this courts role of reviewing orders terminating parental rights for the sufficiency of the evidence.

Moreover, even were we to address this issue on the merits, we would find that appellant does not satisfy the requirements of former section 366.26, subdivision (c)(1)(A). First, appellant has not maintained regular visitation, as is required for this exception to apply. After Brianna was removed from her custody in June 2007, appellant attended only five out of 12 scheduled visits. Two of the visits were cancelled due to appellants having been arrested again, and she simply failed to show up for five other visits. She was late for two of the five visits she attended, during one of which she appeared to be under the influence. In addition, the therapist reported that Brianna became distressed during the transition from the foster mother to appellant during these visits. Far from showing that regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent (In re Autumn H., supra, 27 Cal.App.4th at p. 575), this evidence reflects both dwindling attentiveness on appellants part coupled with decreased attachment on Briannas part.

Second, as far as the benefit to Brianna from continuing her relationship with appellant in lieu of the benefit she would obtain from adoption, the question is not remotely close. Although appellant was initially diligent in her efforts to overcome her addiction and provide a home for Brianna, when put to the test, appellant was unable to do what was necessary to ensure her daughters physical and emotional safety. Indeed, she endangered Briannas health to the extent that Brianna had to be hospitalized after appellants arrest for DUI, due to the extent of the medical neglect she had received.

Instead, it is the consistent, loving care of Cheryl T. that has given Brianna the opportunity to make ongoing progress on her medical and developmental issues. Moreover, Brianna looks to Cheryl T., not appellant, as her primary parent. Appellant simply has not shown that the well-being to Brianna from a continued relationship with her would outweigh the security and stability a permanent adoptive home would offer. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In sum, this is not the type of extraordinary case in which preservation of parental rights should prevail over the Legislatures preference for adoptive placements. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

DISPOSITION

The order of the juvenile court terminating appellants parental rights with respect to Brianna L. is affirmed.

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Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.

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

[2] The portion of section 366.26 that addresses the exceptions to adoption has recently been renumbered, although the substance remains essentially unchanged. (See current  366.26, subd. (c)(1)(B).) Since this case was decided under the prior provisions, we will refer to those provisions in this opinion.

[3] This parental relationship exception to adoption is currently found in subdivision (c)(1)(B)(i) of section 366.26.

[4] The Agency urges us to utilize the abuse of discretion standard of review in determining whether any of the exceptions to adoption apply here. We decline to do so and also agree with the statement of the court in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, that the practical differences between the abuse of discretion and substantial evidence standards of review are not significant. Indeed, if we were to apply an abuse of discretion standard to the facts of this case, the result would be identical.