Filed 1/19/18 In re L.M. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
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In re L.M. et al., Persons Coming Under the Juvenile Court Law. C084740


(Super. Ct. Nos.
53-003610, 53-003611)


PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Appellant,

v.

CARRIE S.,

Defendant and Appellant.



Carrie S., mother of the minors, appeals from the juvenile court’s orders terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Mother argues the juvenile court erred in failing to find she had established the beneficial parental relationship exception to the preference for adoption. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Original and Supplemental Petitions
In November 2012, the Placer County Department of Health and Human Services (the Department) filed a petition alleging the minors, A.M. (age 6), and L.M. (age 3), were at risk of physical and emotional harm due to domestic violence, the parents’ mental illnesses, developmental disability, and/or substance abuse. (§ 300, subds. (b) & (c).) The Department further alleged the father left the minors without provision for support. (§ 300, subd. (g).)
The matter was transferred to Sacramento County in March 2013 and the children remained in mother’s custody under supervision until April 2015.
On April 30, 2015, the Sacramento County Department of Health and Human Services (Sacramento DHHS) filed supplemental petitions for more restrictive placement on behalf of A.M. and L.M. Sacramento DHHS alleged that mother was “utilizing profanity and derisive language to berate” one of her three children, repeatedly threatening to hit the children, and on at least one occasion, actually striking all three children. Sacramento DHHS further alleged that mother suffered from mental health problems and had participated in mental health services, but had not provided the name of her current provider or a list of medications. Twice in April of 2015 Sacramento DHHS asked mother to submit to a substance abuse test, and she failed to comply. Mother also violated a June 10, 2013 court order, and moved herself and the children into a trailer containing black mold.
That same day, Sacramento DHHS filed an application for a protective custody warrant on behalf of A.M. and L.M. Sacramento DHHS averred that, if left in the care of mother, A.M. and L.M. “would be at risk for physical harm.” In support of the request, Sacramento DHHS chronicled the family’s history with Child Protective Services, dating back to the original transfer-in hearing in Sacramento County in June 2013. Sacramento DHHS repeated that mother was refusing to comply with requests for drug testing, failed to participate in mental health services or medication monitoring as provided in her case plan, and put the children in harm’s way by moving them into a trailer with black mold—in violation of the court’s order. Sacramento DHHS also noted that “[b]y not addressing her mental health and using methamphetamine and marijuana [mother] is unable and unavailable to take care of her children . . . .”
The children were taken into protective custody on April 30, 2015, and quickly placed with maternal relatives.
Detention Report and Hearing
In the detention report filed May 5, 2015, Sacramento DHHS recommended the court detain the children. As of May 4, 2015, mother still had not submitted to drug testing. The court ordered the children detained and temporarily placed with Sacramento DHHS. The court granted mother a minimum of three visits per week. The court also ordered mother to submit to drug testing that day or the next, and to provide updated information on her mental health status and compliance with medication.
Jurisdiction/ Disposition Report and Hearing
On May 20, 2015, Sacramento DHHS filed a report indicating the social worker left messages on mother’s cell phone and sent a certified letter to her known address, asking mother to “complete an interview and discuss the Petition filed before the Court.” The letter also contained information on whom to contact to arrange visitation with the children and the date and time of the upcoming hearing. Mother did not respond to any of the social worker’s messages.
Sacramento DHHS recommended continuing services for mother, including counseling, domestic violence program, psychotropic medication evaluation and monitoring, parenting education, substance abuse assessment, and random substance abuse testing. They also recommended the children remain in their out-of-home placement.
Mother did not appear at the jurisdictional/ dispositional hearing but counsel denied the allegations and objected to the court’s sustaining the petition.
The court found true the allegations in the petition and sustained the petition. The court thus found the prior disposition had not been effective in the protection of the children and ordered the children detained with the maternal aunt and uncle. The court ordered regular visitation between mother and the children.
At a subsequent hearing for relative placement, the court committed the children to Sacramento DHHS, for placement with the maternal aunt and uncle. Mother appeared at the hearing and supported the placement.
Status Review Report and Hearing
On October 13, 2015, Sacramento DHHS filed a report recommending the children remain in the care of their maternal aunt and uncle. They further recommended the court continue services for mother and return the case to Placer County, where mother lived.
Sacramento DHHS reported that mother was arrested on July 31, 2015, for theft. Mother claimed it was a misunderstanding. Mother completed an alcohol/drug assessment, which did not recommend treatment. She tested negative twice in August of 2015, then believed she did not have to test anymore. As of October 9, 2015, she had not resumed testing. Mother reported complying with mental health and domestic violence services, but the programs reported otherwise. Mother attended only one parenting class. Sacramento DHHS assessed a high risk to the children if they were returned to mother because she had only minimally engaged in services.
The children were doing well in their relatives’ care. L.M. missed mother, and A.M. wanted to return to her but is happy where he is living. With regard to visitation, Sacramento DHHS reported that mother “visited her children on a routine basis.” Nevertheless, mother failed to arrive on time, missed several visits, and had to have a visit terminated because she refused to follow visitation guidelines.
At the hearing on November 6, 2015, the court found returning the children to mother would create a substantial risk of detriment. The court continued services for mother, as well as visitation. The case was subsequently transferred to Placer County in December 2015.
Status Review Report
In May 2016, the Department recommended mother continue reunification services and the children remain with their maternal relatives.
The Department reported that mother was living in a well-maintained home with her boyfriend. She completed parenting classes, a biopsychosocial assessment, and individual therapy. Mother received medication management and advised the social worker that she did not have problems with drugs or alcohol. Mother’s therapist advised the social worker that mother really wanted her children back.
When mother met with the social worker in April 2016, the social worker explained to mother “what was expected of her” and advised mother to engage in services. The social worker “attempted to explain the process”; mother became tearful and upset. The social worker recommended a parenting class and mother said she would go that evening; she said she would do “whatever [the social worker] recommended.” Mother “agreed to engage in services immediately.” As of May 6, 2016, however, “mother had not reported any further engagement” in services.
Supervised visitation was going well. Mother visited the children four times in February, five times in March, and four times in April. Mother brought “goodies” and games and was very affectionate with the children.
The Department requested a psychological assessment to determine whether mother could benefit from services. According to the biopsychosocial assessment of mother, completed on March 7, 2016, mother had patterns of behavior that appeared inflexible and negatively impacted her interactions with others. If mother would allow the Department to work with her, the Department believed there was a substantial probability the children could be returned home within six months.
Twelve-month Review Hearing
On May 18, 2016, mother’s counsel noted mother would be seeking additional visitation. The Department opposed the request. At mother’s last visit with the children she cried and told them she would probably never see them again, causing A.M. to cry after the visit. The court set the matter for a contested hearing.
At the continued hearing on June 1, 2016, the Department recommended that mother receive additional services. The court ordered mother to participate in an Evidence Code section 730 evaluation, ordered that mother be given two phone calls with the children each week, and increased her visits to three hours a week. The court again continued the hearing.
July 21, 2016 Memorandum
The Department filed a memorandum on July 21, 2016, reporting that mother was scheduled for a psychological evaluation. Mother failed to show up for three therapy appointments and was removed from the schedule. Mother’s therapist reported she had not seen “ ‘any measurable improvement in [mother’s] coping or communication skills.’ ” The therapist also reported that “ ‘[i]f [mother] was willing to attend on a consistent basis and participate it would take a pretty considerable amount of time in therapy, probably with a therapist who is really strong and experienced with disorders that trouble people.’ ”
The social worker referred mother to “Turning Point for Dialectical Behavioral Therapy (DBT).” The program manager tried three times to contact mother; when staff later spoke to mother, she told the staff she did not think she needed “the full scope” of their services. Mother advised she was receiving individual DBT therapy, which the social worker was unable to confirm. Mother also was not drug testing; the social worker asked her to test in order to demonstrate that she is not using drugs or alcohol.
Mother was visiting with the children once a week for two hours and had two weekly phone visits. Mother ignored the Department’s repeated admonishment not to make promises to the children.
Contested 12-month Review Hearings
On July 26, 2016, the court appointed a special advocate (CASA) to the children.
Mother was not present at the August 23, 2016 review hearing. The Department and minors’ counsel asked the court to proceed and terminate mother’s reunification services. Mother’s counsel requested a continuance. The court found mother received notice of the hearing and proceeded.
The Department argued mother had not participated in services, was not cooperative with the Department, and still was not drug testing. The Department concluded there was not a substantial probability the children would be returned “by the 18-month date.” Minors’ counsel agreed mother was not participating in services.
Mother’s counsel argued that mother had several mental health issues and had not received timely referrals to mental health services. Counsel asked the court to find reasonable services had not been given and to continue services.
The court found the Department made reasonable efforts and the return of the children would create a substantial risk of detriment. The court also found there was not a substantial probability of return; the court terminated services and set a section 366.26 hearing. At mother’s counsel’s request, the court also ordered a bonding study.
Mother’s Psychological Evaluation
On August 31, 2016, the Department submitted a memorandum to the court, enclosing mother’s psychological evaluation. The evaluator noted that mother disputed much of the Department’s information and claimed she was never given a chance to tell her side of the story. After reviewing records, interviewing mother, and conducting several assessments, the evaluator concluded that mother’s personality dysfunction was chronic and would likely “continue to cause her difficulties throughout her adult life.” Additionally, “given the degree to which she has resisted participating in the services that have been made available to her to date,” the evaluator found she was “highly unlikely” to benefit from the services she was then being offered to the point where she could provide a safe, stable home for the children by November 2016.
Section 366.26 Report and Hearing
In the report filed on December 5, 2016, the Department recommended the court terminate the parental rights of mother and father, and order a permanent plan of adoption.
The Department reported that mother was previously advised her services were terminated and a bonding study was ordered by the court. Mother was advised to contact her attorney and not to discuss the case with her children.
Mother’s visits with the children continued to go well; the children spent most of their time playing video games. Mother would sometimes read to them from the Bible or talk to them about Jesus. The children gave minimal responses and focused on their games. She would eventually stop and engage in their games. According to the supervisor, “[t]he children seemed to enjoy the time they spent with their mother[;] however[,] they always left easily without any issues.”
The Department continued to supervise mother’s weekly phone calls with the children. Mother regularly did not answer at the scheduled time.
The social worker left several messages for mother to schedule the bonding study. The Department eventually reached mother and gave her the information she needed to schedule the study; she agreed to call as soon as possible. Several days later, the social worker left a followup message. Mother was later given a letter reminding her to schedule the bonding study; she never followed through.
On November 10, 2016, mother was late for her scheduled visitation with the children so the visit was canceled. Neither of the children were upset.
The following week, mother was reminded that she needed to call if she was going to be late for a visit, and the visit would be canceled if she was more than 15 minutes late. She said she did not have a phone the week before; she was late to this visit as well, but called first. During the visit, mother wanted to give the minors cough drops. The supervisor advised her that she was not permitted to give the children medicine. Mother argued for a while, then finally said “ ‘okay.’ ” She then read from the Bible and talked about God while the children played games.
The Department advised that the maternal aunt and uncle wanted to adopt the children. The Department noted that the home provided the children with stability they never had before. The children were comfortable and affectionate with their caregivers and were “well-adjusted” in their home. When first placed with their caregivers, A.M. acted in a “parental role” with L.M.; that had lessened as their caregivers continually encouraged A.M. “to be a child.” The children also were on track academically and doing well in school, both having recently received all A’s on their report cards. Accordingly, the Department recommended the parents’ rights be terminated and the children found likely to be adopted.
The court continued the section 366.26 hearing because the parents received late notice; the court ordered the Department to rejoice the parents.
CASA Report
On February 7, 2017, the CASA assigned to the children filed a report with the court. She indicated she spent five hours with the children and found them to be courteous, active, and goal-oriented. She noted their participation in Taekwondo and saw their motivation to advance in the program. The CASA noted the children had “clear ties to their [m]other”: they asked to go roller skating for the next excursion because it was something they enjoyed doing with mother, and they each wore necklaces given to them by mother. The CASA also noted the maternal aunt and uncle’s home was a “very positive environment” for the children.
Status Review Report and Hearing
On February 14, 2017, the Department reported having very little contact with mother, other than her weekly two-hour visits with the children.
The children had been living with their maternal aunt and uncle for nearly two years. The maternal aunt and uncle were committed to the children and wanted to adopt them; they had already begun the process to be approved for adoption.
Mother again did not appear at the review hearing. The court found mother received timely notice of the hearing and adopted the Department’s report. The court also found the placement was necessary and appropriate and it would be detrimental for the children to be returned to mother. The court set a permanent plan of adoption and confirmed the section 366.26 hearing.
Section 366.26 Hearing
On March 8, 2017, the court held the section 366.26 hearing. Mother did not appear and her counsel requested a continuance; the court denied her request. Mother’s counsel objected to the termination of parental rights: “I would state an objection to [appellant’s] parental rights being terminated. I know, again, the [section 366.21, subdivision (f)] contested hearing she was very involved. She felt that her relationship raised to the level that there would be an exception to the adoption, specifically, the parent-child relationship, so I would enter an objection on those grounds.”
Minors’ counsel indicated the children’s first preference was to be reunited with mother, but indicated she had no legal basis to contest the matter. The Department submitted the matter without further comment and the matter was deemed submitted.
The court noted mother was given notice of the hearing but “elected not to attend.” The court further noted that mother’s reunification services were previously terminated. The court found there was clear and convincing evidence the children would be adopted. Accordingly, the court terminated mother’s parental rights (as well as father’s).
DISCUSSION
Mother contends she established a beneficial parent-child relationship existed and her parental rights should not have been terminated.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is such a bond, the parent must prove that the parental 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 re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) “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 parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) On the other hand, “ ‘[w]hen the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’ ” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
In the juvenile court, mother failed to appear at the section 366.26 hearing. And, while counsel objected to the termination of mother’s parental rights stating the beneficial relationship exception, counsel offered no evidence to support the objection. Now, on appeal, mother emphasizes that the children were in her care for eight and five years, respectively, before they were detained. She further notes that, since the children were detained, she has maintained consistent contact with them, and that she was affectionate and loving with the children during their visits.
Mother may have established that she maintained contact with the children and that their visits went well. She has not, however, met her burden to establish that the children’s bond with her was so substantial and positive that the children would be greatly harmed by its termination, or that maintaining the bond would promote the well-being of the children to such a degree that it would outweigh that which the children would gain in a permanent home. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant, positive, emotional attachment between parent and child. (In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)
The children have been in the care of their prospective adoptive parents for nearly two years. As noted by the Department, the children were in a stable environment for the first time in their lives. The children were on track academically and the home in which they were living was a “positive environment.” A.M. no longer assumed the duty of parenting his younger brother, and the children were well adjusted in their placement. And, while the children expressed interest in returning to mother’s custody, they left the visits “easily,” were not upset when mother missed scheduled visitation, and spent most of their time with mother playing video games.
Additionally, as noted in her psychological evaluation, mother’s personality dysfunction was chronic and would likely “continue to cause her difficulties throughout her adult life.” She nevertheless continued refusing to participate in the services that were offered to her, services that she needed in order to provide a safe, stable home for the children. Mother even failed to show for the section 366.26 hearing, further demonstrating her unwillingness to participate in the process for the benefit of the children.
In sum, the record supports the juvenile court’s finding that the children’s relationship with mother did not rise to the type of substantial, positive, and emotional attachment that would cause them great harm if severed and did not outweigh the benefits of a stable and permanent home.
DISPOSITION
The orders of the juvenile court are affirmed.


BUTZ , J.

We concur:



BLEASE , Acting P. J.



HULL , J.