Filed 1/5/18 In re M.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.A., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

B.P. et al.,

Defendants and Appellants. D072317


(Super. Ct. No. EJ03953A)

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant B.P.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant, M.I.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION
Mother and Father appeal from juvenile court orders terminating their parental rights to the minor child, M.A., and choosing adoption as the child's permanent plan. (Welf. & Inst. Code, § 366.26.) Mother contends we must reverse the orders because the court erred in finding neither the beneficial parent-child relationship exception (id., subd. (c)(1)(B)(i)) nor the beneficial sibling relationship exception (id., subd. (c)(1)(B)(v)) applied to prevent adoption. Father is incarcerated and has only had phone calls with M.A. Father joins Mother's arguments and requests reversal of the order terminating his parental rights if the court reverses the order terminating Mother's parental rights. (Cal. Rules of Court, rules 5.708(h), 5.725(a)(1), 5.725(g); see In re Vincent S. (2001) 92 Cal.App.4th 1090, 1093.)
We conclude the court properly found the beneficial parent-child exception inapplicable in this case. There was substantial evidence to support the court's determination Mother did not maintain regular visits or a beneficial parental relationship. Further, even if there was a beneficial parent-child relationship the court did not abuse its discretion in determining the relationship did not provide a compelling reason to find detriment to the child from terminating Mother's parental rights would outweigh the benefits offered by adoption. Similarly, we conclude the court did not abuse its discretion in finding the beneficial sibling relationship exception inapplicable. We, therefore, affirm the orders.
BACKGROUND
A
M.A. (then eight years old) and three half-siblings who are triplets (then four years old) came to the attention of the San Diego County Health and Human Services Agency (Agency) in August 2015 because the children were with Mother when she was arrested for burglary and conspiracy to commit a crime. According to police reports, Mother selected a microwave from a store shelf and brought it to the store's return area where another individual presented a receipt along with the microwave and received cash in return. Outside the store, a loss prevention agent identified Mother as a participant in the theft. The children were inside a vehicle near where Mother was arrested. Mother was unable to provide names of family members who could take custody of the children.
The children reported they had been residing in different motels after Mother's husband, the father of the half-siblings, was deployed. The children would leave the motel room so Mother and an "Uncle" could work, during the night and day. The children were not allowed back into the motel room until later at night. M.A. expressed concern Mother was not getting enough sleep because of how much she worked.
B
The Agency filed a petition on August 24, 2015. The agency was concerned Mother would continue to engage in criminal activity, associate with others who engaged in criminal activity, expose the children to such activity, and fail to adequately supervise her children. If Mother were arrested again, the children could be left unattended, neglected, or exposed to dangerous situations. M.A.'s biological father is incarcerated and is not expected to be released until 2048.
Prior referrals to the Agency regarding general neglect of the children involved allegations the children often played in the street or in a car and once rolled a car into another parked car. M.A. was often picked up from school late or was expected to walk home alone. M.A. was escorted home by police officers on one occasion when the school could not reach a parent or caregiver. Mother attributed the incident to a lack of communication with the individual who was supposed to pick up the child. The allegations of general neglect were closed as inconclusive.
Mother admitted she associated with people who did drugs and other criminal activities while the children were present. Mother stated she was asked to leave military housing because a person she allowed to live in the home was doing drugs and engaged in prostitution. The Agency expressed concern Mother was involved in drug use and prostitution. Mother also admitted to over using prescription medication.
C
M.A. was initially placed in a foster home with the triplets until the triplets were eventually placed with their father (stepfather). The stepfather said at various times he would like all the children to be together, but at other times the stepfather said he wanted to focus on the triplets. There were concerns about Mother's level of sobriety if Mother and stepfather reconciled and began living together again. Stepfather minimized the protective custody issues of the Mother and did not believe Mother had a problem with drug use.
In October 2015, M.A. was placed in a foster family agency home where the child stayed for approximately one year until the caregivers moved out of state. The foster mother, as the educational rights holder, obtained an individualized education plan for M.A. The child was placed in another foster family agency home in October 2016. The caregiver was willing to provide long-term care, but was not willing to adopt or assume guardianship.
M.A.'s paternal grandparents and an aunt were evaluated for possible placement. The Agency was unable to pursue these options due to concerns that came to light during the home study and background check.
Potential adoptive parents were identified. They provided respite care to M.A. on weekends until M.A. was placed with them full time in April 2017. M.A. has an individualized education plan for attention deficit hyperactivity disorder, dyslexia, and another nonspecified learning disability. The school is working to get M.A. to grade level. The prospective adoptive parents are aware of M.A.'s educational needs and work with M.A. to complete homework assignments.
The Agency found M.A. to be generally and specifically adoptable. There were three families in San Diego County approved to adopt a child matching M.A.'s characteristics. In addition, the Agency identified prospective adoptive parents who expressed a desire to adopt M.A. The prospective adoptive parents expressed a willingness to facilitate contact between M.A. and the triplets to maintain a relationship.
DISCUSSION
I
"After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]' [Citation.] The purpose of a section 366.26 hearing is to 'provide stable, permanent homes for' dependent children. [Citation.] At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care." (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
" 'If the dependent child is adoptable, there is strong preference for adoption over the alternative permanency plans.' " (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.).) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, the court must select adoption as the permanent plan unless the court finds a compelling reason for determining termination of parental rights would be detrimental to the child under a specified statutory exception. (§ 366.26, subd. (c)(1)(A), (c)(1)(B)(i)–(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
The parent has the burden of establishing one of the statutory exceptions applies. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Since a section 366.26 hearing occurs "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. (2000) 78 Cal.App.4th 1339, 1350.)
II
The beneficial parent-child relationship exception applies if termination of parental rights would be detrimental to the child because 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 parent asserting this exception cannot meet his or her burden by showing frequent, friendly and loving contact with the child or even the existence of a parent-child bond. (In re L.S. (2014) 230 Cal.App.4th 1183, 1200; In re J.C. (2014) 226 Cal.App.4th 503, 529; In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.) Rather, the parent must show he or she "occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F., supra, at p. 555.) "Such a relationship 'arises from day-to-day interaction, companionship and shared experiences.' " (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
"The ' "benefit" ' necessary to trigger this exception requires that ' "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 parent's rights are not terminated." ' " (Anthony B., supra, 239 Cal.App.4th at pp. 396–397.)
We apply the substantial evidence standard of review to the determination of whether a beneficial parent-child relationship exists. We apply the abuse of discretion standard of review to the determination of whether the relationship presents a compelling reason for finding termination of parental rights would be detrimental to the child. (Anthony B., supra, 239 Cal.App.4th at p. 395.)
In this case, the court recognized M.A. loved Mother and Mother loved M.A. However, the court noted this is not enough under the law. The court noted Mother had the opportunity to reunify over the course of two years, but did not do so. The court also noted Mother had not regularly visited M.A. "in the sense that she has been late and has missed" visits. After weighing the relationship against the benefit of stability offered by adoption, the court exercised its discretion to order termination of parental rights and referral of M.A. for adoptive placement.
There was substantial evidence to support the court's determination the parental relationship was not of such beneficial quality that severing the relationship would harm the child to the point of outweighing adoption. Throughout the two years M.A. was detained, Mother was often excessively late to visits or missed visits. Social workers supervising the visits expressed concern over the years about Mother's drug use, nodding off during visits, or other strange behavior.
For a period of time, Mother's visitation with M.A. improved. She attended church with M.A. and the prior caregivers. However, Mother did not follow through with voluntary services and she did not regularly participate in drug testing when requested. Just before the section 366.26 hearing, the Agency received a referral for Mother's severe neglect of the triplets based on a report Mother was under the influence during a visit with M.A. when the triplets were under her care. Additionally, there were three active warrants for Mother's arrest for possession of methamphetamine and theft.
M.A. was sad if Mother missed visits. A caregiver reported M.A. would be upset if Mother missed visits. M.A. engaged in cutting behavior when upset. However, M.A. generally separated from Mother without distress at the conclusion of the visits.
M.A. initiated phone calls to Mother, which would last less than five minutes, often because she said she had to go. Mother did not initiate calls. When M.A. asked Mother if she was attending her classes, Mother would hang up the phone. M.A. took on the role of a grownup by asking Mother if she was engaging in services and undertaking drug testing. M.A. also expressed concern about Mother getting enough sleep at the time of the initial detention.
M.A. expressed sadness at the thought of not seeing Mother again. However, M.A. liked living with the prospective adoptive parents. According to the social worker, M.A.'s first and second choice of where to live would be with the prospective adoptive parents. M.A. was confident the adoptive parents would allow visits with Mother.
After considering the evidence and the alternatives, the court chose adoption for M.A. The social worker opined adoption is the only way for M.A. to obtain permanency and it is in M.A.'s best interest to have a stable and reliable home. The social worker did not recommend long-term guardianship because M.A. had experienced numerous life changes. The court agreed adoption offers more consistency and permanency than guardianship. Even if there was a beneficial parent-child relationship, the court did not abuse its discretion in determining the benefits offered by adoption outweighed any detriment from termination of parental rights.
III
The sibling relationship exception applies where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
In evaluating this exception, "the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951–952 (L.Y.L.).) Unlike the beneficial parent-child relationship exception, under the sibling relationship exception the court must assess the likelihood that terminating parental rights would in fact interfere with the sibling relationship, which enjoys separate legal recognition. "[I]t is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship, and the juvenile court must make this factual determination." (In re D.O. (2016) 247 Cal.App.4th 166, 175 (D.O.); see In re Daisy D. (2006) 144 Cal.App.4th 287, 293 (Daisy D.).)
"If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (L.Y.L., supra, 101 Cal.App.4th at p. 952.)
"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citations.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption." (In re Celine R. (2003) 31 Cal.4th 45, 61.)
Our standard of review under this exception is the same as under the beneficial parent-child relationship exception. "[W]e apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests." (D.O., supra, 247 Cal.App.4th at p.174.)
In this case, M.A. lived with the triplets for the first four years of their lives. M.A. enjoyed visiting with the triplets and stepfather. However, M.A. did not have consistent visits with the triplets over the two years after the initial detention. Mother took the triplets with her to visit M.A. three or four times. The prospective adoptive parents expressed a willingness to facilitate contact between M.A. and the triplets to continue the relationships.
Even if the court concluded termination of the parent-child relationship would substantially interfere with the sibling relationship, the court found the relationships between M.A. and the triplets did not outweigh the benefit of adoption. Although the child enjoyed time spent with the triplets, there was no evidence the child would suffer detriment so great as to present "a sufficiently compelling reason to forgo the stability and permanence of adoption." (Daisy D., supra, 144 Cal.App.4th at p. 293.) The court did not abuse its discretion in determining the sibling relationship exception is not applicable.
DISPOSITION
The orders are affirmed.



McCONNELL, P. J.

WE CONCUR:



O'ROURKE, J.



AARON, J.