Filed 6/29/17 In re J.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.D., a Person Coming Under
the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
J.D.,
Defendant and Appellant.




A150318

(Contra Costa County
Super. Ct. No. J15-00428)


J.D. (mother) appeals from the juvenile court’s termination of her parental rights to her son following a Welfare and Institutions Code section 366.26 hearing (.26 hearing). Mother contends the court erred by failing to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).
We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND
J.D. was born in 2009. Mother and father divorced in 2012. Mother married stepfather in 2014, who moved in with mother and her three children. In 2015, police arrested stepfather for committing lewd and lascivious acts on J.D. At the time, mother and stepfather were expecting a child.
Detention, Jurisdiction, and Disposition
The Contra Costa County Children and Family Services Bureau (the Bureau) filed a petition alleging J.D. came within section 300, subdivisions (b) and (d), because mother failed to protect him from sexual abuse by stepfather. As amended, the petition also alleged J.D. was at risk of further sexual abuse because mother accepted stepfather’s excuse for touching J.D.’s penis, allowed stepfather to remain in the home, and had not sought appropriate therapeutic support for J.D. J.D. was detained and placed in foster care. Mother admitted the allegations. The court determined J.D. came within section 300. The court ordered visitation.
According to the disposition report, police arrested stepfather because he admitted he fondled J.D.’s penis and kissed J.D on the mouth, and he also admitted fondling the genitals of his children from a prior relationship in the Philippines. Mother claimed stepfather was engaged in “an Asian custom that involved pulling on the testicles of children,” and she described the conduct as “ ‘harmless and non-sexual.’ ” Mother believed stepfather’s actions were “misinterpreted.” She did not believe stepfather kissed J.D. on the mouth or pulled off his pants. The Bureau could not guarantee J.D. would be safe under mother’s care because she continued to interact with stepfather, but tried to hide it from the Bureau. Regarding visits, the disposition report stated there was “a brief period in the month of July 2015 in which the children seemed less engag[ed] as a family . . . [J.D.] spent the time engaging with the Social Casework Assistant who would redirect him to his mother or siblings. During one of those visits, the entire family had a flat affect and was quiet for most of the visit.” The court declared J.D. a dependent of the court and ordered reunification services.
Review Hearings
According to the six-month review report, stepfather had moved out of mother’s apartment, but she remained in contact with him. Even though mother “actively participated in each component of her court ordered case plan,” the Bureau expressed “grave concerns” about mother’s protective capacity. Mother exhibited a “lack of insight” regarding stepfather’s sexual abuse. Dr. Schmidt, a treatment provider, reported “reunification at this time would be a significant risk/safety issue to minors” because mother “believes her husband’s versions of events; she was unable to comprehend[] or admit that abuse occurred. [Mother] does not believe anything dangerous or untoward has occurred and she declined to state whether or not she believed her son’s report.” The Bureau recommended continuing family reunification services, and the court adopted the recommendations.
The Bureau’s 12-month review report recommended terminating reunification services. The report stated J.D. and his brother had “adjusted well in the caregiver’s home and have expressed hesitation at being returned to their mother’s care.” The report noted mother was “not in an active relationship with the perpetrator, but would like to regain this relationship if it was found that he was appropriate and not a[] risk to her children.” Dr. Cynthia Zecic, another treatment provider, reported mother continued to believe the system misunderstood stepfather’s actions, and she switched between “believing and doubting the incident occurred.” Based on “mother’s continued lack of insight and protective capacity,” the Bureau opined “the prognosis for returning the minor children to her care is very poor.”
Mother contested the Bureau’s recommendation to terminate her reunification services. The social worker testified mother lacked insight and was unable to protect her children because she did not believe sexual abuse occurred. The social worker noted mother misled the Bureau regarding contacts with stepfather, and stated mother also contacted stepfather to find out the results of a polygraph test. Mother testified she now accepted J.D. had been molested. Mother claimed she contacted stepfather regarding the polygraph test results because her therapist told her to do so. The court did not find mother’s testimony credible. The court terminated reunification services and set a .26 hearing.
The .26 Hearing
The .26 report recommended terminating parental rights, and recommended adoption for J.D. and legal guardianship for his older brother with the same caregiver. The report stated mother had regular, supervised visits with her children, who enjoyed the visits, but “the family was not engaging with one another at times. . . . [At times, mother] has been unable to initiate conversation, set limits or boundaries and appropriate discipline when needed such as when [J.D.] was grabbing at mother’s breast while in line to enter . . . [an] 8th grade graduation celebration. . . . Since the visits also include[] the children’s younger half sibling, the visits can be complicated and chaotic at times as the younger child is now more mobile and interfere[s] with games that [J.D.] is trying to play.” The report indicated J.D. had been placed in his prospective adoptive home for over a year, and he “looks to his prospective adoptive mother for emotional support, guidance and love. He has a close reciprocal relationship with his prospective adoptive mother.”
At the .26 hearing, counsel for mother argued termination of her parental rights would be detrimental to J.D., new information may indicate stepfather posed no risk, and mother had done everything possible to get the help she needed. The Bureau argued mother’s continued relationship with stepfather revealed she had not put the interests of J.D. first. The court determined there was clear and convincing evidence J.D. was adoptable, and adoption would not result in detriment to J.D. The court found mother and J.D. had not established a bond sufficient to overcome the preference for adoption. The court terminated mother’s parental rights. Mother timely appealed.
DISCUSSION
Mother contends the court erred by declining to apply the beneficial relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) 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, one of the statutory exceptions applies. To establish the beneficial relationship exception, mother must demonstrate she “maintained regular visitation and contact” with J.D., and he “would benefit from continuing the relationship” with her. (§ 366.26, subd. (c)(1)(B)(i); In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
To determine whether the exception applies, the juvenile court “balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The beneficial relationship exception is “difficult to make in the situation, such as the one here, where” mother has not “advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).) 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.) “We review a juvenile court’s order on the beneficial-relationship exception for substantial evidence” but would reach the same result applying the abuse of discretion standard of review. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166 & fn. 7 [“some courts have applied” the abuse of discretion standard].)
Mother contends the beneficial relationship exception applies because she regularly visited with J.D., and he would benefit from continuing the relationship. The Bureau concedes mother visited J.D., but argues “even with consistent and enjoyable visitation, there is no conceivable recitation of the facts where maintaining a relationship with his biological mother outweighs the benefit to [J.D.] of being adopted.” We agree with the Bureau.
To establish J.D. would benefit from continuing their relationship, mother relies on the accounts of her visits with J.D., which indicate J.D. “enjoyed seeing his mother and engaged with her during their visits.” As mother acknowledges, however, “reversal is not warranted whenever there is merely ‘some measure of benefit’ in continued contact between the parent and child.” Instead, mother was required to demonstrate her relationship with J.D. promoted his well-being “ ‘to such a degree that it outweighs the well-being [J.D.] would gain in a permanent home with new, adoptive parents.’ ” (Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) Mother failed to do so.
Although there was some evidence J.D. enjoyed the visits, there was also evidence the visits were “complicated.” In the disposition report, the Bureau noted there was a period in 2015 when the children were less engaged as a family, and J.D. had to be redirected to his mother and siblings. According to the .26 report, “the family was not engaging with one another at times,” and “the visits can be complicated and chaotic at times.”
In contrast, according to the 12-month review report, J.D. and his brother had “adjusted well in the caregiver’s home and have expressed hesitation at being returned to their mother’s care.” The .26 report indicated J.D. “looks to his prospective adoptive mother for emotional support, guidance and love. He has a close reciprocal relationship with his prospective adoptive mother.” Considering the totality of the evidence, the juvenile court could reasonably conclude no “bond has been established between the mother and [J.D.] sufficient to overcome the preference for . . . adoption at this point.”
Mother contends her relationship with J.D. was “parental in nature.” To support this assertion, mother points out she “readily engaged in all of the services assigned to her and attended therapy,” and “was doing everything asked of her to be a parent for her child.” But mother’s compliance with her case plan does not show she occupied “a parental role” in J.D.’s life. Other than the reports J.D. enjoyed her visits, mother points to no evidence of J.D.’s emotional attachment to her. (See In re Angel B. (2002) 97 Cal.App.4th 454, 468 [“[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt”].)
Mother claims J.D. will be harmed if her parental rights are terminated, especially where the permanent plan for his older brother is guardianship. We disagree. By the time of the .26 hearing, J.D. had been living with his foster parent for over a year, had “a close reciprocal relationship” with her, and looked to her for “emotional support, guidance and love.” Both J.D. and his brother will continue living with the same caregiver. Mother does not explain how this arrangement will harm J.D. Viewing the evidence in the light most favorable to the judgment, we find no error in the court’s termination of mother’s parental rights.
DISPOSITION
The order terminating mother’s parental rights as to J.D. is affirmed.





_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.