Filed 6/22/17 In re D.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re D.M. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH & HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.M.,

Defendant and Appellant.
D071473


(Super. Ct. No. NJ15102A-D)

APPEAL from orders of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips and Patrice Plattner-Grainger, Deputies County Counsel, for Plaintiff and Respondent.
S.M. appeals juvenile court orders terminating his parental rights to his four sons, D.M., S.V.M., A.M. and C.M. He contends that insufficient evidence supported the court's finding that under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), the beneficial parent-child relationship exception to termination did not apply. We affirm.
BACKGROUND
In September 2015, the San Diego County Health and Human Services Agency (Agency) petitioned under section 300, subdivision (b)(i) on behalf of D.M. (10 years old), S.V.M. (7 years old), A.M. (6 years old), and C.M. (2 years old), alleging their mother failed to supervise the children. She had left them in the care of her then boyfriend, who was found intoxicated and passed out on a grass embankment. The children were found wandering around a busy street. The boyfriend was arrested for child endangerment. The petition stated that S.M. and mother (who is not a subject of this appeal) had a history of violent confrontations and substance abuse and there was a substantial risk the children would suffer serious physical harm or illness.
A social worker summarized in a detention report a telephone conversation she had with the paternal grandparents. During March and April 2014, they had cared for the children because S.M. "contacted them and asked them to care for the children because he did not have a way to care for them. [The parents] did not have a place to stay and [S.M.] did not have a way to feed them. [S.M.] was in agreement with the grandparents obtaining guardianship. In April[,] the mother contacted them and wanted to take the children . . . . The mother called the grandparents after she had the children indicat[ing] that she would not be returning them. In August the mother contacted them stating that she and the children were kicked out [of] the shelter and asked the grandparents could they care for the children." In early 2015, the paternal grandparents sought guardianship for the children but had filed incorrect papers. A social worker spoke to the paternal grandmother in September 2015, and reported: "Although the grandparents have been supervising visits for [S.M.] with the children, they are no longer willing to do so, due to his beligerent [sic] behavior and abuse towards them. The father has visited the children a few times since their removal, as the paternal grandfather was willing to supervise during those times. The grandmother is concerned that [S.M.] has a history of drug abuse and the mother has a history of drinking alcohol to excess."
Agency's numerous efforts to prevent or eliminate the need for the children's removal from the home were summarized in its report: "The family previously participated in Voluntary Services with the Agency from [early February 2014] through [mid-November 2014]. The parents were offered a team decision making [] meeting, transportation, drug testing and treatment, community services for families [], domestic violence classes, in-home family preservation program [] services, referrals for housing, a family unification program [] voucher, crisis intervention, referrals to Exodus and Community Mental Health and referrals for shelters. The parents participated in the aforementioned services and the case was closed. During this time, [S.M.] admitted to having an addiction to crystal methamphetamines (May 2014) and the mother tested positive for crystal methamphetamines (August 2014)." (Some capitalization omitted.)
At the November 2015 jurisdiction and disposition hearing, the court sustained the petitions, declared the children dependents, removed them from their parents' custody and placed them together in relative care.
Agency's report for the six-month review stated mother was homeless. S.M. was residing with a girlfriend, but reportedly looking for a different place to live. Despite an active restraining order against S.M., mother continued to contact him, including once after she had a physical altercation with her boyfriend. That day, S.M. picked her up and used methamphetamines with her.
Agency reported S.M. had completed parenting classes. However, he did not complete any substance abuse programs. Several times he did not appear for scheduled drug tests. S.M. admitted to using marijuana, and on several occasions he appeared to be under the influence of drugs while visiting his children. Agency requested that S.M. produce sign-in sheets from his Alcoholics Anonymous or Narcotics Anonymous meetings, but he failed to produce any documentation. S.M. was terminated from one program.
Despite Agency giving S.M. referrals to different places, he did not complete a domestic violence course. The social worker wrote: "[S.M.] has not shown an understanding of why a protective order is in place. He is focused on the fact that [mother] has a restraining order against him. He has made several requests to the Agency to tell [mother] to change it. The Agency has consistently told him that [mother] has the protective order in place and that he needs to follow through with what it states." S.M.'s supervised visits with the children were going well.
The social worker wrote: "Neither parent in this case has demonstrated any acts of protection or the ability to put the needs of their children before their own. Their behavior time and again indicates they remain focused on their own needs as they know the grandparents will take care of the children. [¶] This is a sibling group who are elementary age and in the active years of development. They have been subjected to complex trauma and need stability and consistancy [sic] that neither of their parents is in any position to provide to them. The children can not [sic] academically, emotionally or developmentally afford to wait for their parents to mature and change their behaviors."
Following the six-month hearing, the court ruled that the services had been reasonable, S.M. had made only minimal progress toward alleviating the causes necessitating placement, and a return to parental custody would be detrimental. Therefore, it ordered reunification services terminated and scheduled a hearing under section 366.26.
Agency stated in a report prepared for that hearing that S.M. had consistently visited his sons and brought along food and sports equipment. S.M. played sports with the boys, who enjoyed the visits. The social worker stated, "There were no incidents reported of the children having difficulty separating from [S.M.] and they did not cry after he left." The social worker stated that in August 2016, S.M. acknowledged not being in a position to care for the boys, stating that he needs to work on himself first but had hoped that his parents would only have the boys temporarily. In assessing the parent-child relationship, the social worker stated: "[S.M.] continues to minimize his participation in the previous protective issues regarding the boys, admitt[ing] that he is unable to take care of the children, has not addressed his drug and alcohol issues through an in/out patient program, continues to violate the restraining order and has significantly impacted the relationship the boys have with their caregivers by being negative about them. He also led the children to believe that he will be their caretaker in the future and to be compliant with the caregivers until then. This has confused the boys and has made it difficult for the caregivers to parent the boys." The social worker concluded that the boys regarded mother and S.M. more as an aunt and uncle, "[t]herefore the beneficial parent-child relationship does not apply as it would not be detrimental to [D.M., S.V.M., A.M. and C.M.] if [S.M.'s and mother's] parental rights were terminated."
Agency recommended adoption as the boys' permanent plan. It conducted a home study and concluded the paternal grandparents wished to adopt them, and they had been cooperative during the placement process. The paternal grandparents had recently moved into a bigger home to accommodate the four boys, and looked forward to providing them with a stable and permanent home. Agency had no concerns about the caregivers' suitability to adopt. The social worker concluded, "The benefit of adoption would be to provide the [] boys with continued safety, wellbeing and permanence. They need constant attention to meet their daily needs, someone to provide them with love and nurturing to meet their emotional needs and someone to constantly meet their developmental, health, mental health and physical needs. [Their paternal grandparents] have demonstrated these abilities and have provided them with the permanence, safety and wellbeing they deserve."
The three oldest boys testified at the section 366.26 hearing. Eleven-year old D.M. testified he felt he wanted his grandparents to adopt him. D.M. testified that he saw S.M. once weekly, but would like to see that increased to four times per week. He testified he did not speak to S.M. about "private stuff." An attorney asked eight-year old S.V.M. if he was "okay" with his grandparents adopting him, and he answered, "Yes." Seven-year old A.M. testified he did not know what adoption was; he had no feeling about whether he wanted to be adopted. In reply to a question about whether he had "any worries" about living with his grandparents, A.M. answered, "No." A.M. stated if he could live with anybody, he would live with his mother and father.
The court found by clear and convincing evidence that the children were likely to be adopted: "The factual basis for that finding is that the four boys are with their paternal grandparents. They've been there for a substantial portion of their respective lives. They have met their emotional and developmental milestones to date while in the care of the grandparents. The grandparents do wish to adopt them." The court added that if the grandparents could not adopt, there were eight homes that would be willing to adopt the four-sibling group with the boys' characteristics, and even more homes willing to adopt each of the boys separately. The court found the beneficial exception to adoption did not apply: "Specifically, the court finds that both mother and father have maintained regular and consistent contact and visits with the children; the visits are described generally as very enjoyable and appropriate. The children do not express any separation anxiety at the conclusion of the visits. They do inquire about their parents and are interested in their parents' well-being in between visits. However, they do recognize that their stability and security lies with being with the grandparents. [¶] So the court would conclude that it would not be in the best interests of the children to promote, facilitate either a mother-child or father-child relationship and further finds that whatever benefit may have been conferred upon the children by the contact each parent has had with the children is greatly outweighed by the need for stability and placement which can only be achieved through adoptive placement."
DISCUSSION
I. Legal Principles and Standard of Review
The permanency planning hearing aims "to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker." (In re Emily L. (1989) 212 Cal.App.3d 734, 742.) The primary consideration at the hearing is the best interests of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) At the permanency planning hearing the court has four choices, with termination of parental rights and ordering that the child be placed for adoption as the first choice. (§ 366.26, subd. (b)(1).) Whenever the court finds "that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" (§ 366.26, subd. (c)(1)), unless it finds one of four specified circumstances in which termination would be detrimental. (§ 366.26, subd. (c)(1)(A)-(D).) One of the exceptions to the preference for adoption is that of a beneficial parent-child relationship, which exists where a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
A beneficial relationship is one that 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 adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must show that the parent-child relationship is such that the child will be greatly harmed by the termination of parental rights, so that the presumption in favor of adoption is overcome. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854.) Implicit in this standard is that "a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The existence of this relationship is determined by taking into consideration the following factors: "The 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 Autumn H., supra, at p. 576.) We review the factual issue of the existence of a beneficial parental relationship under the substantial evidence standard of review and the determination of whether there is a compelling reason for finding that termination would be detrimental to the child under the abuse of discretion standard. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.)
II. Analysis
Substantial evidence supports the court's finding that under section 366.26 subdivision (c)(1)(B)(i), the beneficial parental-child relationship exception did not apply. We do not focus on the first requirement regarding whether S.M. maintained regular contact with the children. The court correctly concluded S.M. regularly visited them and brought sports equipment and food, and they had enjoyable visits. However, substantial evidence supports the juvenile court's ruling that S.M. has not shown his relationship with the children was such that they would be greatly harmed by termination of his parental rights. The social worker pointed out S.M. had not completed his domestic violence counseling or his substance abuse courses. In fact, S.M. continued to use drugs even during visits with the children. In light of the fact S.M.'s visits were just once weekly, it is unsurprising the social worker stated that the children regarded S.M. as an uncle, but not as a parental figure. They did not cry or have difficulty separating from him. S.M. even admitted to the social worker he was not ready to have the boys live with him. S.M. was living with his girlfriend and looking for a different place to stay. "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) After all, "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
To any extent S.M. relies on In re S.B. (2008) 164 Cal.App.4th 289, his reliance is unavailing. In that case, this court stated: "[Father] was S.B.'s primary caregiver for three years. In 2004 a social worker observed him parenting S.B. in a patient and loving manner. When S.B. was removed from his care, [father] immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and maintained consistent and regular visitation with S.B. He complied with 'every aspect' of his case plan." (Id. at p. 298.) We also concluded: "The record here fully supports the conclusion [father] continued the significant parent-child relationship despite the lack of day-to-day contact with S.B. after she was removed from his care." (Id. at p. 299.) By contrast, as noted, S.M. did not comply with his case plan. He did not complete substance abuse counseling or domestic violence counseling.
S.M. also emphasizes that the boys enjoyed their visits with him and expressed a desire to live with their parents. The court did consider the boys' testimony on that point. But as S.M. concedes in a footnote, the boys were under 12 years old and the court was not required to abide by their wishes. (§ 366.26, subd. (h)(1); In re Joshua G. (2005) 129 Cal.App.4th 189, 201.) "[A]lthough the court is obligated to consider a child's best interests at the section 366.26 hearing, the court need not follow the child's wishes unless he or she is over the age of 12." (Joshua G., at p. 201; § 366.26, subd. (c)(1)(B)(ii).) "[E]ven though young children . . . may want to live with [their parents], doing so may not be in their best interests and the court may nonetheless terminate parental rights." (Joshua G., at p. 201.)





DISPOSITION
The orders are affirmed.


O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.