Filed 4/10/18 In re L.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.J. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.A. et al.,

Defendants and Appellants.


E069616

(Super.Ct.Nos. J263283 &
J263284)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant, S.A.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, D.J.
Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Appellant S.A. (mother) appeals from a juvenile court’s order terminating parental rights as to her children, L.J. and D.W. (the children). She claims that the court erred in not applying the beneficial parental relationship exception. (Welf. & Inst. Code , § 366.26, subd. (c)(1)(B)(i).) Appellant D.J., who is L.J.’s father (father), filed a separate brief joining in mother’s argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 2015, the San Bernardino County Children and Family Services (CFS) filed section 300 petitions on behalf of the children. L.J. was seven months old at the time, and D.W. was four years old. The petitions alleged that the children came within section 300, subdivision (b) (failure to protect). The petition concerning L.J. alleged that mother and father engaged in physical and verbal altercations in front of the children, which placed them at risk of harm; that mother and father had substance abuse histories; and that mother and father failed to provide adequate shelter, in that their residence was cluttered to the extent of presenting a safety hazard to the children. The petition concerning D.W. alleged that mother and father engaged in physical and verbal altercations in front of the children, that mother had a history of substance abuse, and that D.W.’s father, D.W., Sr., knew or reasonably should have known that mother had problems with anger and domestic violence.
The social worker filed a detention report stating that mother called 911 on December 1, 2015, alleging that father beat her up and was trying to get back into the house. A police officer responded to the call and observed that mother had red marks on each side of her face, which were starting to swell. Mother said father hit her in the face twice. Father had scratches on his neck. The officer observed that the home had various broken items thrown about on the floor, the refrigerator was tipped over, and the car’s rear window was broken. The officer arrested father for domestic battery and advised mother to get a protective order against him.
The court held a detention hearing on December 16, 2015, and detained the children in foster care. The court ordered supervised visitation at a minimum of one time a week.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on December 31, 2015, recommending that the court sustain the petitions, declare the children to be dependents, and order reunification services for mother, father, and D.W., Sr. The social worker reported that mother had a visit with the children on December 29, 2015, and was engaging and appropriate.
On January 5, 2016, the social worker filed amended section 300 petitions, which deleted the allegations that mother and father failed to provide adequate shelter. The court held a hearing the following day, and the parties acknowledged receipt of the amended petitions. The court set the matter for mediation and a pretrial settlement conference on February 2, 2016.
On February 2, 2016, mother and father appeared in court and acknowledged that they waived their rights and submitted on the amended petitions. The court continued the matter to February 23, 2016. The matter was continued again to March 16, 2016.
The court held a hearing on March 16, 2016, found that the children came within section 300, subdivision (b), declared them dependents of the court, and removed them from the custody of all three parents. The court found father to be the presumed father of L.J. and D.W., Sr., to be the presumed father of D.W. The court ordered services for mother, father, and D.W., Sr., and ordered supervised visitation, at a minimum of one time a week, with the authority to liberalize to unsupervised, overnight, and weekend visits.
Six-month Status Review
The social worker filed a six-month status review report on September 8, 2016, recommending that services for mother be continued and services for the two fathers be terminated. The social worker reported that mother was having visits with the children consistently every week. The children were bonded with her; D.W. would run to mother and hug her at the start of every visit, and L.J. would reach for mother. D.W. said he loved mother “more than the air.” Mother was supposed to start having unsupervised visits; however, she had two incidents of domestic violence that resulted in a police officer having to go to her home.
The social worker further reported that the children were together in the same placement where they had been for five months. They were bonded with the caregiver and felt very comfortable in her home.
The court held a contested six-month review hearing on October 19, 2016. The court continued services for mother and father, but terminated services for D.W., Sr.
Visitation Issues
The court held a nonappearance review on visitation on January 17, 2017. It was reported that mother would speak very negatively toward D.W., and she would pull on his shirt or grab his arm or face, when she got upset. She also yelled at both children. Despite being told to avoid being aggressive and negative toward the children, mother’s behavior increased. As a result, the children’s behavior was affected, and they had stress and anxiety after visits. CFS filed a packet that included a letter from a visitation monitor reporting the negative behavior. CFS recommended suspending visitation.
The court held a hearing on February 17, 2017, since the parties objected to the packet. Mother claimed the visits had been appropriate. County counsel argued that there had been a recurring issue with visits, and the social worker and monitors had observed mother during visits being physically aggressive, grabbing D.W., and causing him to be upset and act out after visits. The court reduced visits to once a month and gave CFS authority to terminate visits if there was any inappropriate contact or discussions. The court also ordered conjoint therapy, to begin when the therapist thought it was appropriate for D.W.
Twelve-month Status Review
The social worker filed a 12-month status review report on March 28, 2017. The social worker reported that she met with mother and father several times to tell them to work on themselves and on having a safe home for their children. The social worker opined that they continued to focus on themselves and not their children. They continued to engage in domestic violence. They also had not completed their services or benefitted from any of them.
The social worker further reported that the children were thriving emotionally and physically in their current placement, which had been very stable. The caregiver wanted the children to be safe and happy and felt that adoption was the best option.
The court held a contested 12-month review hearing on April 19, 2017. County counsel asked the court to terminate services. The court heard argument from counsel. It then noted that mother initially made positive progress. However, she got entangled with domestic violence again, which included “an extreme level of violence.” The court was concerned about visitation, noting that there was a reduction in visits to once a month. The court found that both parents had failed to make progress in their case plans, that return of the children would create a substantial risk of detriment, and that there was no substantial probability of return within the statutory timeframes. The court terminated reunification services and set a section 366.26 hearing with the goal of adoption.
Section 366.26
The social worker filed a section 366.26 report on August 7, 2017, recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that the children had developed a strong attachment and loving bond with their current caregiver and looked to her as their parental figure. They had lived with her since March 16, 2016. She had a strong network of support and the ability to provide the children with stability and unconditional love. She desired to adopt them and was committed to meeting their needs on a permanent basis.
The court held a contested section 366.26 hearing on October 30, 2017. Mother testified at the hearing and said she had been visiting regularly with the children, the children hugged her, and D.W. told her he missed her. She would bring them toys, clothes, a tablet, or whatever they asked for. Mother said the children were disappointed the visits were so short and both usually threw tantrums when she had to leave. She also testified that D.W. said he did not want to be adopted. The court trailed the matter to the next day, since father was not present.
On October 31, 2017, the court found it likely that the children would be adopted. The court noted that mother had been consistent in her visitation, but visitation was reduced after she was repeatedly instructed about her inappropriate conduct. The court found that the beneficial parental relationship exception did not apply, since mother did not stand in a parental role, the bond was not such that it would be detrimental to break it, and the benefits of permanency far outweighed the current status of mother’s relationship with the children. The court terminated the parental rights of mother, father, and D.W., Sr.
ANALYSIS
The Beneficial Parental Relationship Exception Did Not Apply
Mother’s sole contention on appeal is that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). Father joins in her argument. We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the 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).) The phrase “ ‘benefit from continuing the . . . relationship’ ” refers to a parent/child relationship 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 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
“There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, “[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” (Id. at p. 1314.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of her position, mother asserts that the court found she consistently visited the children, and these visits were meaningful. She also claims that the children were bonded to her. The evidence she points to includes the social worker’s reports that the children were excited to see her, D.W. would run and hug her, and L.J. would reach for her, hug her, and say, “Mama, mama.” Mother also asserts that D.J. said he missed her, told her he loved her “more than air,” and asked why he was not living with her. Mother further points to her own testimony that D.W. said he did not want to be adopted and to the fact that the children usually threw tantrums at the end of visits.
Mother’s interactions with the children do not even begin to demonstrate that her relationship with them promoted their well-being “to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although the record reflects that the visits went well in the beginning, they were eventually reduced due to mother’s inappropriate conduct. She would speak very negatively toward D.W. and pull on his shirt or grab his arm or face, when she got upset. Mother’s actions caused him to be upset and act out after visits. She also yelled at both children. Moreover, mother has not proffered any evidence to support a finding that the children had a “substantial, positive emotional attachment [with her] such that the child[ren] would be greatly harmed” if the relationship was severed. (Ibid.)
In contrast, the evidence showed that the children and their current caretaker had a strong mutual attachment. By the time of the section 366.26 hearing, they had lived with her for almost two years. They looked to her as their parental figure and were thriving in her care. She had a strong network of support and the ability to provide the children with stability and unconditional love. She wanted to provide them with a safe and stable home, and she was fully committed to adopting them.
We conclude that mother failed to meet her burden of showing the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), applied.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:


RAMIREZ
P. J.


FIELDS
J.