Filed 5/26/17 In re J.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.S., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.C.,

Defendant and Appellant.


E067556

(Super.Ct.No. J259262)

OPINION


APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant C.C. (Mother) challenges the termination of her parental rights by the juvenile court at a Welfare and Institutions Code section 366.26 hearing on December 16, 2016. For the reasons set forth post, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PETITION AND DETENTION
J.S. (Minor; a boy, born October 2012) was two years old when plaintiff and respondent San Bernardino County Children and Family Services (CFS) responded to a 10-day referral on February 27, 2015. The referral had alleged general neglect of Minor. There were multiple families living in Minor’s home. The social worker had recently moved another child from the home and noticed that Minor was unsupervised, and Mother was under the influence. Other family members had tested positive for amphetamines, and had criminal histories.
On March 3, 2015, Mother spoke with the social worker. Mother admitted to a history of marijuana and alcohol use. Mother also had a history of involuntary admissions under section 5150 for mental health issues. In 2010, her two-year-old daughter was removed from her custody by the child’s father through family law orders. At that time, Mother sprayed lighter fluid in her stepfather’s bedroom, threatening to light it. Mother was involuntarily admitted under section 5150. In 2013, Mother was admitted, again involuntarily, for attempted suicide. She had left eight-month-old Minor in the care of a family member for a couple of months.
When given an on-demand drug test on March 3, 2015, Mother tested positive for amphetamines. The social worker made two attempts to take Minor into protective custody; both he and Mother were absent from the home. A resident of the home told the social worker a family member had taken Minor to an aunt’s house in Las Vegas, but did not provide any contact information.
On March 16, 2015, CFS filed a section 300 petition on behalf of Minor. The petition alleged that Mother and R.G. (Father; collectively, Parents) failed to protect Minor. (§300, subd. (b).) Mother had a history of mental illness and substance abuse, which placed Minor at risk of serious harm. Additionally, Father made no provision for Minor’s support. (§300, subd. (g).) Father’s whereabouts were unknown and his ability to provide adequate care and/or supervision of Minor were also unknown.
Mother, who was 32 years old at the time, had a criminal history dating back to 2002, when she was 19 years old. She also had a child welfare history dating from 2013.
At the time of the report and at the detention hearing on March 17, 2015, CFS had not located Minor. The court ordered that Minor be detained and removed from Parents upon Minor’s apprehension. The court ordered a SART assessment for Minor.
B. JURISDICTION AND DISPOSITION
In its report filed April 3, 2015, CFS recommended that Minor be removed and placed in out-of-home care with family reunification services to Mother. Mother had left Minor with Father’s friends. Minor did not know the couple, but the couple had the insight to contact CFS and report what had happened. When Minor was taken into protective custody, he exhibited signs of trauma.
Mother’s drug use affected her stability and her ability to provide stability for Minor. She had been in and out of jail. Paternal grandmother (PGM) had provided housing and a support system. However, PGM, was also involved in a drug lifestyle and rented her home out to drug users. PGM also tolerated poor care and neglect of the children living in her home, including Minor.
The report concluded that the prognosis for the case was poor. Mother had no clear idea what adequate care and structure for Minor meant. Moreover, she had no resources to provide Minor with safety and security. She recognized that she may not be able to provide for her son, and that he may be better without her.
Mother and Father were never married. She also had not married the father of her daughter. She had used drugs since high school, and had difficulty getting and keeping a job.
On April 8, 2015, Mother was present at the jurisdiction/disposition hearing. Her counsel set the matter contested and the court continued the matter.
On May 28, 2015, CFS reported that Mother’s drug tests had been negative since March 30, 2015. The social worker, who had not seen any signs or symptoms of mental illness, recommended that the allegation be dropped from the petition. Moreover, Mother had never been formally diagnosed with a mental illness.
At the hearing on July 22, 2015, Mother waived her rights and Father objected to the recommendation of no services, but had no affirmative evidence to offer. The court found that Minor came within section 300, subdivision (b); Parents had a history of substance abuse, which placed Minor at risk of serious harm. The court increased Mother’s visitation to two hours per week, and authorized CFS to liberalize visitation as to supervision. Night and weekend visitation required approval packet. The court then continued the matter.
C. SIX-MONTH REVIEW
Minor’s caregiver, Mrs. L, filed an information report on January 14, 2016. Minor was delayed in his speech but improved greatly from speech classes and Mrs. L’s help. He was able to speak in three-word sentences. Minor had adjusted well to the L Family and appeared secure. Overall, he was a happy child. If Mother did not reunify with Minor, the L Family wanted to adopt him.
In the six-month status review report, CFS recommended that Mother continue to receive reunification services. Mother had participated in her services, but had not made significant progress in her substance abuse treatment. Although Mother tested positive for both methamphetamines and opiates, she denied having a substance abuse problem. Mother was terminated from an outpatient treatment program on September 10, 2015, for testing positive several times, showing hostility to staff, and violating the confidentiality of other patients in treatment. Mother entered a residential substance abuse treatment facility on December 22, 2015.
Mother, who had been living with maternal grandmother, was evicted from the home. Mother looked for a sober living home, but then entered residential treatment. She was working at a local supermarket.
Mother visited Minor for two hours on a weekly basis. Overall, the visits went well. Mother, however, tended to leave the visits early.
Minor had been living with the L Family, who were non-relative extended family members, since June 2015. This was his second placement.
The six-month status review hearing was held on January 22, 2016. The court ordered Mother to drug test that day. The court continued reunification services and supervised visitation for two hours per week.
D. TWELVE-MONTH STATUS REVIEW
On April 28, 2016, Mrs. L filed a caregiver information form. Minor, a very affectionate child, was thriving. His speech and motor skills improved substantially. Mrs. L confirmed that the L Family wanted to provide Minor with “a healthy, stable environment.”
In a report filed May 3, 2016, CFS recommended that Mother’s services be terminated, and a hearing be set for selecting and implementing a permanent plan of adoption. Mother had been provided 12 months of services and was not benefitting from them because of her struggle with sobriety. On March 9, 2016, while in residential treatment, Mother tested positive for alcohol. She left the treatment facility on a job search pass, but used alcohol, which resulted in additional days of treatment. Mother graduated from the program on April 19, 2016. CFS, however, was concerned that Mother could not remain sober even in a restricted environment.
Mother visited regularly with Minor. While in the residential treatment facility, visitation would occur at the facility and Mother would stay the full two hours. When Mother was discharged from the facility, her first visit was at the CFS office. Mother had difficulty focusing on Minor and engaging with him one-on-one. Mother also left the visit one hour early. The social worker was concerned that Mother was reverting to her old pattern of leaving visits early. CFS recommended that visits be reduced to once a month for two hours so that Minor could form a permanent attachment with his prospective adoptive family. Fewer visits with Mother would not disrupt his daily routine nor confuse his mental, emotional or psychological development.
Minor had been living with the prospective adoptive family since June 9, 2015. He had bonded with Mr. and Mrs. L and their children, and was very affectionate. He had progressed in his speech and motor skills. The receipt of report hearing was held on May 9, 2016. The court ordered Mother to drug test.
At the 12-month review hearing on May 24, 2016, Mother was not present. The court found that Mother had failed to participate regularly and to make substantive progress in her court-ordered case plan. The court ordered termination of Mother’s reunification services and set a hearing to determine Minor’s permanent plan. The court ordered visitation twice a month for two hours. Mother arrived after the hearing was over. The court reviewed its orders and informed Mother about her writ rights.
Mother filed a notice of intent to file extraordinary writ. Mother’s counsel, however, sent a letter dated June 27, 2016, to this court stating that counsel could not find a legal basis or factual issue upon which to base the writ. We dismissed the petition.
E. SELECTION AND IMPLEMENTATION OF PERMANENT PLAN OF ADOPTION
In the section 366.26 report dated September 21, 2016, the social worker recommended that parental rights be terminated and a permanent plan of adoption be implemented for Minor. Minor was living with the prospective adoptive parents, who were willing and committed to adopting him; Minor had lived with the L Family since June 9, 2015. Mother consistently visited twice a month without any concerns.
Minor was four years old at the time of the report. He was a happy, engaged and active boy without any special medical issues. The only concern was Minor’s need for speech therapy.
Minor was considered adoptable because of his young age and the L Family’s willingness and ability to adopt him; Minor was attached to his prospective adoptive family, with whom he had been residing for 15 months. Although Minor was too young to understand permanency and adoption, he was very comfortable with his prospective adoptive parents, was affectionate with both of them, sought out the family’s three other children as playmates, and acknowledged the prospective adoptive family’s home as his home.
The prospective adoptive parents were aware of Parents’ backgrounds, and was willing to accept any potential risks these would pose to Minor. Their extended families were supportive of the adoption. Aware of other permanency options, Mr. and Mrs. L chose adoption because it was the most permanent for Minor, and it allowed them to become his legal parents.
The caregiver information form filed on October 6, 2016, stated that Minor was fully toilet trained. He was attending preschool and all of his developmental areas were being assessed. His social skills were delayed. The prospective adoptive family and Minor were attached to each other and the family loved Minor very much. Minor and one of the family’s other children were “best friends.”
The caregiver filed additional information on October 19, 2016. Minor’s assessment was completed and the prospective adoptive family was waiting for the report. He was making friends in school. Mrs. L was working with the school to monitor Minor’s behavior and working with Minor to improve his responses. Minor brought books home daily to have read to him.
On September 15, 2016, Mother filed a section 388 petition, requesting a change to the court’s order terminating her reunification services. Mother asked that Minor be returned to her, or in the alternative, that her reunification services be reinstated. The court ordered a prima facie hearing for September 21, 2016, and ordered the social worker to respond at the hearing.
At the section 366.26 hearing on September 21, 2016, both parents set the hearing as contested. The court did not hear the section 388 petition and continued the matter.
At the October 25, 2016, hearing, Father’s attorney asked for a continuance because Father’s transport order was mishandled. Mother’s attorney also asked for a continuance of her section 388 petition hearing to “trail” to that date.
The juvenile court denied Mother’s request for a continuance. The court found that, although Mother’s circumstances were changing, there was no prima facie evidence that her circumstances had changed. Moreover, there was no prima facie case established to show that granting the petition would be in Minor’s best interests. The court, therefore, denied Mother’s section 388 petition.
On December 12, 2016, CFS filed an additional information report indicating that Mother failed to attend her visit on November 14, 2016. Mother later called to report that she was sick. On November 28, 2016, Mother was late to her visit and stayed for only one hour.
At the December 16, 2016, hearing, Mother testified. She stated that Minor called her “mom.” She visited him two times per month for two hours under supervision. She also testified that Minor was happy to see her from the beginning of the visit to the end. She would bring food and toys to the visit. Mother claimed that she fulfilled a parental role because she acted like a parent when coloring with him, “things like that, that sort of thing.” She also stated that she maintained a bond with Minor. At the end of their visits, she and Minor would hug and say good-bye to each other. According to Mother, Minor told her that he did not want to return to his caretaker’s home. Initially, he would cry. But, at the time of the hearing, he just told her good-bye.
By the time of the contested hearing, four-year-old Minor had been out of Mother’s care for 21 months. The court found Minor generally and specifically adoptable. That was not a contested issue. The court did not find a parental benefit exception exited. “[F]riendly and loving contact is not sufficient for that exception. What is necessary is a parental role.” The court found that the relationship between Minor and Mother did not outweigh the benefit of Minor having a stable and permanent home. Minor was flourishing where he was and there was no evidence that terminating parental rights would harm Minor. Therefore, the court terminated parental rights and ordered adoption as the permanent plan.
On January 11, 2017, Mother filed her notice of appeal challenging the termination of her parental rights.
DISCUSSION
A. THE JUVENILE COURT PROPERLY FOUND THE PARENTAL BOND EXCEPTION DID NOT APPLY
Mother contends that the juvenile court erred in terminating her parental rights because the parental bond exception to the termination of parental rights applied.
In general, at a section 366.26 hearing, if the juvenile court finds that a child is adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when “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.” (§ 366.26, subd. (c)(1)(B)(i).)
“When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
“‘[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.’” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The parent must show more than frequent and loving contact or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.’” (Jason J., at p. 937.)
“The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This court must affirm a juvenile court’s rejection of these exceptions if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review “the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling.” (In re S.B. (2008) 164 Cal.App.4th 289, 297.) Because Mother had the burden of proof, we must affirm unless there was “indisputable evidence [in her favor, which] no reasonable trier of fact could have rejected.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, Mother failed to meet the first requirement of the exception—that she regularly visited Minor. (§ 366.26, subd. (c)(1)(A).) Mother claims that her visits with Minor “were consistent and always appropriate.” Although there is nothing in the record to indicate that the visits were inappropriate, her visits were inconsistent. Mother often left the supervised, two-hour visits early, even when the visits were reduced from weekly to twice a month. In the six-month report of January 14, 2016, the social worker reported that the visits went well but Mother left the visits early. In the 12-month report of May 9, 2016, the social worker noted that Mother stayed the full two hours when the visits occurred at the residential treatment facility. However, at the first two-hour visit after Mother’s discharge from the residential facility, she left the visit one hour early. The social worker was concerned that Mother was reverting to her old pattern of leaving visitations early. The December 16, 2016, additional information report advised the court that Mother missed her November 14, 2016, visit without advance notice. She later called to state that she had been ill. Mother arrived late for her visit on November 28, 2016, and only stayed for an hour. Minor, therefore, only saw Mother for about an hour during the entire month of November 2016.
Although Mother testified at the section 366.26 hearing, she presented no evidence that she kept in touch with Minor between visits, especially after the visits were reduced to twice a month. Moreover, even when Mother had the opportunity to visit, she sometimes arrived late and consistently left early. Although Mother may have visited with Minor, substantial evidence supports a finding that the visits were inconsistent.
Even if Mother had consistent visits with Minor, the beneficial parental relationship exception requires both regular visitation and benefit to the child. Here, Mother has failed to establish benefit to Minor. The second requirement for the parental benefit exception to apply requires that Mother prove that Minor would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) “The existence of this relationship is determined by ‘[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 particular needs.’” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H. (1994) 27 Cal.App.4th 567.)
In this case, the court properly terminated Mother’s parental rights because the beneficial exception does not apply. Mother, however, argues that Minor “would benefit from maintaining his connection to Mother.” Mother contends that Minor has a “primary attachment” to her. We disagree with Mother.
Minor was out of Mother’s care from March 2015 to December 2016. During that time, Mother never visited more than two hours per week, under supervision. Even though the court authorized CFS to liberalize visitation, Mother never took advantage of that opportunity. She did not even stay for the entire two hours during her visits. From May 2016 to December 2016, Mother’s visits were reduced to four hours per month. Despite her limited opportunity to spend time with Minor, Mother was late, left early, and missed a visit in November. Mother did not request a make-up visit. Moreover, it is important to note that Mother never visited with Minor since his removal without supervision.
Moreover, Minor needed a permanent and stable placement—which is the required focus of the section 366.26 hearing. Here, Minor was four years old at the time of the contested hearing and out of Mother’s care for 21 months, almost half his life. His current caretakers were willing and able to adopt him. He was attached to his prospective adoptive family, with whom he had been living for 15 months. He was very comfortable and affectionate with his prospective adoptive parents, and sought out the family’s three other children when he wanted to play. Minor acknowledged that the prospective adoptive home was his home. The prospective adoptive family was also working with the preschool to ensure that all his developmental areas were being assessed.
Based on the above, we find there is substantial evidence to support the juvenile court’s finding that Mother failed to meet her burden of proof to establish the beneficial parental relationship exception applied in his case.
Mother’s reliance on In re Amber M. (2002) 103 Cal.App.4th 681, is misplaced. In Amber M., the appellate court held the lower court erred in finding that an exception to adoption did not apply where the mother maintained regular visits with the children, and the psychologist, therapists, and court-appointed special advocate unanimously stated that the mother had demonstrated the existence of the mother’s beneficial parental relationship, which outweighed the benefits of adoption. (Id. at pp. 689-691.) In this case, there are no such facts or evidence to support Mother’s beneficial parental relationship with Minor. As noted in detail ante, Mother failed to meet the threshold requirement of demonstrating regular visitation with Minor.
Mother’s reliance on In re S.B., supra, 164 Cal.App.4th 289 is also misplaced. In that case, the father “complied with every aspect of his case plan,” and maintained his sobriety and consistently visited with his child. (Id. at p. 293.) The father’s physical and emotional health problems, however, prevented him from reunifying with his child. Although the child was placed with her maternal grandparents, who wanted to adopt her, a bonding study showed that the child had a “moderate” and “fairly strong” bond with the father. The agency recommended termination of parental rights, but hoped that the maternal grandparents would allow the father to visit. The juvenile court found there was no evidence that it would be greatly detrimental to terminate the child’s relationship with the father, and terminated parental rights. (Id. at p. 296.) The father appealed and the appellate court agreed with the father finding that the child had a “substantial, positive emotional attachment” with the father. (Id. at pp. 293, 301.)
This case is distinguishable. Here, Mother had no medical issues preventing her from reunifying with Minor. Moreover, Mother was late to visits with Minor and usually left early. She missed a visit without advance notice. There was no evidence of Mother’s devotion to Minor. She continued to post on Facebook pictures and recipes that were alcohol-related despite her statements that she was sober. She did not place Minor’s needs above her needs. Moreover, she failed to provide evidence that in the very near future she could provide a stable home for Minor. Although she received services for more than one year, and had almost two years without being responsible for Minor, she still could not provide permanent and stable housing for herself and Minor, and could not assure the court that she could remain sober outside of a structured environment.
In sum, Mother has the burden to establish the applicability of the beneficial parental relationship exception in the lower court; on appeal, she has the burden of showing that the juvenile court’s ruling was an abuse of discretion. We conclude that Mother has failed to meet this burden.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


SLOUGH
J.