In re G.A. CA4/3

Filed 8/22/14 In re G.A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

In re G.A., et. al, Persons Coming Under
the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G049735
Plaintiff and Respondent,
(Super. Ct. Nos. DP014979
v. & DP019655)

V.A., OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Gary G.
Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant
and Appellant.
Nicholas S. Chrisos, County Counsel, and Jeannie Su, Deputy County
Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
 V.A. (Mother) appeals from the order made at the Welfare and Institutions
Code section 366.26 hearing (hereafter the .26 hearing)1 terminating her parental rights to
her daughters G.A. and J.A. She contends the trial court should have applied the
“parental benefit exception” to adoption. (§ 366.26, subd. (c)(1)(B)(i).) We find no error
and affirm the order.
FACTS AND PROCEDURE
Prior Dependency Proceedings
In March 2007, then seven-month-old G.A. and her 11-year-old
half-brother (Brother), were declared dependent children due to Mother’s long standing
and unresolved substance abuse dating back to her teenage years, leaving the two
children alone without supervision, and unresolved anger management problems
evidenced by assaults on family members. Mother had previously given the maternal
grandmother legal guardianship of Brother, but the maternal grandmother had permitted
Mother to reside in the home and be Brother’s sole caretaker. G.A. and Brother were
placed with the maternal grandmother. Brother reunified with the maternal grandmother
and his case was closed. Mother received reunification services as to G.A.
J.A. was born in December 2007. At first, Mother and J.A. lived with
J.A.’s father,2 and J.A.’s paternal grandmother and her husband (hereafter sometimes the
paternal grandparents). J.A.’s father also had an extensive criminal history and
substance abuse problems. There were some reports G.A. lived with them sometimes
too, but eventually Mother and J.A. moved in with the maternal grandmother. Mother
completed her case plan and reunified with G.A., and the case was terminated in
June 2009. But Mother relapsed into substance abuse within a few months.

1 All further statutory references are to the Welfare and Institutions Code.

2 G.A.’s father’s whereabouts were unknown. J.A.’s father participated in
the dependency proceedings and received services, but he is not a party to this appeal.
Accordingly, we discuss only the facts pertaining to Mother.

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Current Dependency Proceeding
Initial Detention
The current dependency proceeding was filed in April 2010. G.A. and J.A.
were detained when Mother was arrested and incarcerated for driving under the influence
and possessing a controlled substance. Mother admitted she had been using
methamphetamine for 20 years with some periods of sobriety. The girls were placed with
the maternal grandmother where Brother lived. The maternal grandmother explained the
girls lived in her home for most of their lives. Mother was in and out of the home
because the maternal grandmother would kick her out whenever she relapsed. The
maternal grandmother signed an agreement with Orange County Social Services Agency
(SSA) that she would not allow Mother into the home for any reason. The court ordered
two-hour, twice-weekly monitored visits once Mother was released from jail.
Jurisdiction & Disposition Hearings
In July 2010, the court sustained the petition under section 300,
subdivisions (b) [failure to protect], (g) [no provision for support], and (j) [abuse of
sibling], based on allegations of Mother’s substance abuse problem, drug-related criminal
history, and the previous dependency history related to her drug use. At the August 2010
disposition hearing, the children were removed from parental custody, and the court
vested custody with SSA. Mother and J.A.’s father were given reunification services.
Mother’s case plan included requirements she remain sober, not break the law, and
participate in substance abuse testing and treatment, counseling, and a 12-step program.
The court further ordered her to reside in a sober living home, participate in anger
management and parenting courses, and be assessed for any medication needs in a
therapeutic setting. Mother was given twice-weekly monitored visitation with the girls.
Re-Detention/Change in Placement
In October 2010, G.A. and J.A. were removed from the maternal
grandmother’s home and detained. The maternal grandmother was hospitalized after

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having a mild stroke and allowed Mother to care for the girls in her home, despite having
agreed with SSA to keep Mother away and all visitation would be arranged outside her
home as directed by SSA. On November 4, 2010, the girls were placed with the paternal
grandmother, and were well cared for by her. Mother objected to the placement and filed
a section 388 petition, which SSA opposed. (The section 388 petition was ultimately
decided at the six-month review as described below.)
Six-Month Review Reporting Period
In its January 31, 2011, report for the six-month review, SSA reported
Mother was in a sober living home, unemployed, and on three years formal probation.
The children were doing well in their placement with the paternal grandmother. Mother
had made moderate progress with her case plan. She seemed to be doing well staying
sober and participating in a number of services, including counseling, parenting classes,
anger management classes, drug testing and treatment, and a 12-step program. She was
having visits with the girls (six hours monitored every week) and no problems were
noted.
At the six-month review hearing on March 1, 2011, the court granted
Mother’s section 388 petition and ordered the girls be transitioned back to the
maternal grandmother, beginning with overnight weekends. Mother was given further
services. A progress review was set for May 2011 and a 12-month review for July 2011.
12-Month Review Reporting Period
In its report for the May 2011 progress review, SSA reported Mother
continued to participate in services, but she “continues to be an angry young woman.”
She was enrolled in a drug treatment program and consistently drug tested. She was
consistent with monitored visitation. The children had been transitioned back to the
maternal grandmother’s home, with the paternal grandmother having visitation. Mother’s
visitation was liberalized to 10 hours a week monitored by the maternal grandmother in
the maternal grandmother’s home. Mother and the maternal grandmother signed a

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visitation contract stating Mother was not to be at the family home at any time outside of
the prearranged visitation schedule. On May 2, 2011, Mother was authorized 10 hours
per week of unmonitored visitation.
On June 24, 2011, SSA reported Mother was still progressing with services,
the children enjoyed spending time with her and wanted to be with her more. Mother’s
therapist recognized Mother loved her children very much. Mother still had not
overcome her anger management issues. In March 2011, Mother pleaded guilty to
disturbing the peace and fighting and was placed on 18 months formal probation.
On May 29, 2011, she had an altercation with a resident in her sober living home and was
evicted as a result. The house manager reported Mother had altercations with other
residents and was confrontational and demanding. The social worker noted that in
meetings with the social worker and paternal grandmother about visitation with J.A.,
Mother became hostile and angry if she did not get her way. Mother’s probation officer
reported Mother had been kicked out of several sober living facilities due to her serious
issues with anger.
On June 27, 2011, SSA reported both G.A. and J.A. had temper tantrums
but otherwise were developing normally. At visits, the social worker observed Mother
sometimes was successful in redirecting the children and exhibiting self-control and
patience dealing with their misbehavior. But Mother refused to participate in further
anger management classes. Mother’s visitation was restricted to supervised, six hours per
week, but later liberalized to 10 hours per week unmonitored. For most of this period,
visits went well. At the 12-month review on August 4, 2011, the court continued
jurisdiction and set an 18-month review hearing for October 2011.
18-Month Review Reporting Period
By August, things deteriorated. In early August 2011, Mother was having a
visit with the girls at the maternal grandmother’s home. She lost her temper with Brother
(now 15 years old) and kicked him full force in the ribs. The maternal grandmother took

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Brother to the hospital but did not report the kicking incident to the social worker, instead
describing Mother’s visits as “‘excellent.’” But the maternal grandmother also said the
household dynamics were not good and she did not want to monitor Mother’s visits
anymore. G.A. said the kicking incident, which she witnessed, made her feel “‘scared’
and ‘sad.’” J.A. said she wanted to go back to living with the paternal grandmother.
SSA restricted Mother’s visitation to being professionally supervised.
Mother became angry and began making numerous and inconsistent demands as to when
the visits could take place. She did not show up for some visits.
Later in August 2011, Mother left her latest sober living home after yelling
at roommates and making them feel threatened. She moved into a motel with her
boyfriend, Greg M., who had a history of methamphetamine and alcohol abuse and who
was recently released from jail. Mother’s therapist thought Mother might have
Intermittent Explosive Disorder or Oppositional Defiant Disorder, and reported they were
continuing to work on anger issues, but Mother was unwilling to admit she had an anger
management problem. By September 2011, Mother was terminated from therapy after
three no shows and terminated from outpatient drug treatment for failure to participate.
She did not follow through on her referral to anger management class. She did resume
drug testing and had two negative tests. At the October 2011, 18-month review hearing,
the court terminated reunification services and set a .26 hearing to determine the
children’s permanent plan.
The October 2011 .26 Hearing
In its February 2012 reports for the .26 hearing, SSA reported the girls
continued to be placed with the maternal grandmother and were generally doing well.
Mother was having weekly supervised visits with the girls that usually went well, but
Mother also went several months without visiting. She typically complained she wanted
different monitors and she could not find time to get to the visitation facility. At the
visits she attended, the girls often had difficulty listening to Mother and displayed

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disruptive or aggressive behavior, e.g. becoming very angry and kicking or hitting or
biting Mother, or screaming at high volumes for a long time. Mother occasionally left
visits early because of G.A.’s reaction to her. The maternal grandmother preferred to not
adopt the girls, requesting legal guardianship. SSA recommended the court find the girls
were living with a relative who was unwilling to adopt but capable of providing them
with a permanent home and removal from that relative would be detrimental to their well
being.
A .26 hearing took place in March 2012. The court ordered a permanent
plan of legal guardianship with the maternal grandmother as guardian. It found the
provisions of section 366.26, subdivision (c)(1)(A) [relative caretaker unable to adopt]
and/or (c)(1)(B)(iv) [foster parent caretaker unable to adopt] applied and adoption and
termination of parental rights was not in the children’s best interests.3 The court

3 Mother and SSA both state in their briefs that at this first .26 hearing the
court also applied the section 366.26, subdivision (c)(1)(B)(vi), parental benefit exception
to termination of parental rights. That assertion is based on the reporter’s transcript from
the March 28, 2012, hearing, which states the court was making findings under
section 366.26, subdivision (c)(1)(A), and/or (c)(1)(B)(iv) [relative caretaker] and
(vi) [parental benefit]. But there was no testimony presented at the hearing, and nothing
in the record suggests Mother raised the parental benefit exception to termination of
parental rights at the first .26 hearing. The SSA reports introduced into evidence referred
only to the relative caretaker exception. The minute order makes no mention of the
parental benefit exception and states the court’s findings were made only under
section 366.26, subdivision (c)(1)(A) [relative caretaker unable to adopt] and/or
(c)(1)(B)(iv) [foster parent caretaker unable to adopt]. Moreover, the minute order states
the court’s order and findings at the first .26 hearing were made pursuant to a signed
stipulation. The signed stipulation refers only to the relative caretaker exception. There
was no stipulation to findings the parental benefit exception applied. Our Supreme Court
has held that when the reporter’s transcript of the court’s oral pronouncement and the
clerk’s transcript are in conflict, the inconsistency need not always be resolved in favor of
the reporter’s transcript. (People v. Smith (1983) 33 Cal.3d 596, 599.) The Court
explained that where the trial court’s oral ruling and the minutes reflecting the ruling
cannot be harmonized, it may be proper that “‘that part of the record will prevail, which,
because of its origin and nature or otherwise, is entitled to greater credence [citation].
Therefore whether the recitals in the clerk’s minutes should prevail as against contrary
statements in the reporter’s transcript, must depend upon the circumstances of each

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authorized Mother to have up to eight hours of visitation per week, not in the home, with
four to six hours monitored by the maternal uncle and the rest monitored by SSA.
Periodic Reviews of Guardianship with Maternal Grandmother
In its report for the April 30, 2012, interim review hearing, SSA explained
both the maternal grandmother and maternal uncle felt Mother’s visits needed to be
supervised and Mother should not be left alone with them due to her explosive behavior.
The girls were happy and healthy in the maternal grandmother’s care. Mother requested
additional visitation time, which the court denied. The court ordered the girls were to
have no contact with Mother’s boyfriend, Greg M.
However, there was evidence the girls were having unauthorized contact
with Mother and her boyfriend including sometimes in her apartment and/or overnight.
G.A. described seeing Mother and her boyfriend, Greg M., fighting with “bad words” at
their residence, which scared her. Mother, the maternal grandmother, and the maternal
uncle denied there was any unauthorized contact with Greg M. Mother’s visitation time
and monitor status fluctuated during this period. In July 2012, Mother’s visitation was
suspended. In August 2012, it was reinstated and the court ordered all visitation
monitored by a professional monitor and arranged through SSA and ordered the social
worker to make weekly unannounced visits to the maternal grandmother’s home.
On September 10, 2012, SSA reported Mother had expressed no
willingness to comply with being consistently available for visitation with the girls. G.A.
continued to comment on seeing Mother and Greg M. outside of the monitored visits, but
J.A. said she had not seen Mother in a long time. The social worker had to admonish the
maternal grandmother to not spank the girls as punishment—something they had

particular case.’ [Citations.]” (Ibid.) Here, the circumstances—including the minute
order, the signed stipulation, and the lack of any evidence or argument concerning the
parental benefit exception—plainly indicate the court applied only the relative caretaker
exception at the March 28, 2012, .26 hearing.

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discussed on other occasions and the maternal grandmother had previously agreed not to
do.
On September 24, 2012, SSA reported the maternal grandmother had again
allowed unauthorized contact with Mother. Brother had moved from the maternal
grandmother’s home to a military style “boot camp” due to his “‘out of control’”
behavior. As of September 11, 2012, Mother had not participated in any of her scheduled
visits. She denied knowing about any scheduled visits and continued to assert she could
not commit to regular scheduled visit times because of her work schedule. The social
worker observed Mother was unwilling to accept the court’s or SSA’s terms of
supervised visitation.
On December 17, 2012, SSA reported Mother failed to show up for visits
on November 6 and November 18. She called and canceled 15 minutes later for one of
the visits and did not call at all as to the other. At a supervised visit on December 2,
2012, Mother attempted to get now six-year-old G.A. to stop marking on Mother with a
marking pen, and G.A. physically attacked Mother, hitting, kicking, pinching, and
screaming, requiring staff intervention.
In March 2013, SSA reported the children continued to live with the
maternal grandmother. She provided them with their basic needs, and they were happy
living there. But the maternal grandmother was not consistent with keeping SSA
informed about the children’s whereabouts. Mother attended the supervised visits with
the children but continued to be inconsistent. She occasionally left early when she
became frustrated with the children. The supervised visitation sometimes went well, with
playing, affection, and appropriate redirection by Mother. But sometimes the girls had
difficulty listening to Mother and became disruptive and/or attacked her, making her
frustrated. Mother sometimes acted inappropriately during visits. For example, at one
visit she dragged J.A. on the ground after J.A. punched Mother. Mother was sometimes
combative and used profanity in front of the children.

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SSA’s Section 387 Petition/Section 388 Motion
In April 2013, G.A. and J.A. described more unauthorized contact with
Mother and Greg M., including overnights at Mother’s and the maternal grandmother’s
homes. G.A. described close physical contact with Greg M. during these visits—
sometimes she slept in the same bed with him and Mother and once he held her upside
down and shook her around. Mother, the maternal grandmother, and the maternal uncle
denied what the girls described. J.A. told the social worker the maternal grandmother
was mean to her and spanked her and she wanted to live with the paternal grandmother—
“that is my dream come true.” G.A. told the social worker visits with Mother were
“‘pretty bad.’” She said the maternal uncle was “mean to her, spanks her and yells at
her.” She said the maternal grandmother and maternal uncle argued all the time.
Brother denied G.A. and J.A. were home when Mother came over. He told
the social worker Mother and Greg M. were married, and they had a very volatile and
violent relationship. He said Mother had serious anger management problems and
Greg M. drank a lot. Brother understood they had been evicted from three apartments
due to their violent behavior. Brother said Mother acted like she was still using drugs.
He said Mother and Greg M.’s home was “‘beyond terrible’” and felt “[M]other cares
more about herself than she does about her children.”
In May 2013, SSA filed a supplemental petition for a more restrictive
placement. G.A. and J.A. were removed from the maternal grandmother’s home and
placed with the paternal grandmother. They were happy and excited to go to her home,
were doing well there, and she met all their needs. Mother objected to placement with
the paternal grandmother. The court authorized Mother to have two-hour visits twice a
week. Her section 388 motion to liberalize visits was summarily denied. Mother’s
formal probation expired in May 2013, and her probation officer reported she had last
tested positive in March 2012 for opiates, codeine, and morphine which was usually
positive for heroin. SSA recommended no services for Mother or the maternal

10
grandmother. It recommended the permanent plan of guardianship was no longer
appropriate, and recommended the court schedule a .26 hearing. The paternal
grandmother was willing to adopt both girls. The court ordered monitored visitation for
both Mother and maternal grandmother.
In June 2013, Mother was visiting once a week for two hours, and the
maternal grandmother was visiting twice a week for five hours total. Mother’s visits
sometimes went well, with mutual affection and expressions of love, laughing, playing,
and appropriate redirection by Mother. Some visits with Mother did not go well, and the
girls would act out, disobey Mother, cry, scream, and physically attack her. Mother
missed two visits. When she did not show up, G.A. was sad and tearful. At one
June visit, Mother was “‘out of it’” because the previous night Greg M. hit her on the
head so hard she had a concussion, and he was now in jail.
In August 2013, the section 387 supplemental petition was dismissed, when
all counsel agreed section 388 was the proper vehicle for addressing the issues it raised.
The girls’ therapists concluded returning to the maternal grandmother’s care would be
detrimental. The girls displayed behaviors such as hyperactivity, attention deficit
hyperactive disorder (ADHD), defiance, aggressiveness, hitting, not taking responsibility,
and lack of remorse. The therapists believed the negative behavior was not because of a
change in their placement but due to being traumatized and neglected in an environment
with no structure or boundaries or consequences. Both girls had difficulty adjusting to a
more structured environment. J.A. regressed when she talked about Mother, and
although she loved Mother, she wanted to stay with the paternal grandmother. She was
fearful of Greg M. After two months with the paternal grandmother, her behavior
improved. G.A. was “parentified . . . to an extreme” due to being raised in an
environment with no boundaries. Her therapist believed that if she were returned to the
unstructured environment she had been living in, she could develop problems such as a

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reactive attachment disorder, borderline personality disorder, and problems with
impulsivity.
At a hearing on October 23, 2013, the court granted the section 388
petition, terminated the maternal grandmother’s guardianship, removed the girls from her
care, and set a .26 hearing. It authorized Mother and the maternal grandmother to have
weekly four-hour visits. It denied Mother’s request for a bonding study without
prejudice. Mother renewed the request in December, and it was again denied.
.26 Hearing
The .26 hearing took place in February 2014, and the parties waived
cross-examination of the social worker. In reports submitted for the hearing, SSA
recommended terminating parental rights and freeing the children for adoption. The
children were healthy, content, and comfortable living with the paternal grandparents.
The paternal grandparents met all the girls’ needs and they wanted to adopt them.
SSA reported that G.A.’s therapist diagnosed her with oppositional defiant
disorder (ODD). Although G.A. said her fantasy was to live with Mother, she voiced
past experiences that negatively impacted her living in a dirty home, abuse in Mother’s
home, yelling, a sense of moving around from home to home, and Mother’s various
boyfriends. G.A.’s therapist believed G.A. would benefit from remaining with the
paternal grandmother because return to Mother’s care would make her regress to old
dangerous behaviors due to lack of structure, boundaries, and stability. J.A.’s academic
tutor reported J.A. had problems with focus, impulsivity, and proper social cues, but she
was improving because of structure, routine, and positive reinforcement in the paternal
grandparents’ home. J.A.’s therapist reported J.A. was diagnosed with ADHD and ODD
and was prescribed psychotropic medications. She was adjusting to her change of
environment but had internalized negative thoughts, low self-esteem, and self-sabotaging
behaviors.

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 The social worker explained the girls sought the paternal grandparents’
attention and expressed they felt safe with them. The paternal grandparents continued to
want to adopt both girls. The girls had both lived with the paternal grandparents from
November 2010 to May 2011, and since May 2013.
Mother and the maternal grandmother were permitted monitored weekly
visits. Out of 20 visits between October 5, 2013, and February 10, 2014, Mother did not
attend seven. Some visits went well and some did not. The monitor had concerns about
Mother’s and the maternal grandmother’s behavior during some visits. Although
sometimes affection and shared pleasurable experiences and appropriate redirection
occurred during the visits, sometimes the girls had difficulty listening to Mother, became
disruptive, and acted out. When the children did not listen to redirection, there were no
consequences from Mother. Sometimes the girls wanted to leave visits, sometimes they
did not want Mother to leave, and sometimes J.A. would display negative behavior after
visits.
Brother testified he had lived with G.A. and J.A. most of their lives. Based
on what Mother and maternal grandmother told him, he believed the paternal
grandparents were unsuitable caretakers.
Seven-year-old G.A. testified she was happy living with the
paternal grandparents. They treated her and J.A. equally. She called them “Grandma”
and “Grandpa,” and called Mother “Mom.” When asked to name the five most important
people in her family, she replied, “my two dogs . . . , my [paternal grandparents], my
mom and my brother.” She denied telling her therapist she wanted to live with Mother,
and could not describe any good memories she had of her. But she testified she loved her
mother and would be sad if she never saw her again. The only person she identified who
she missed a lot was the maternal uncle.
Six-year-old J.A. testified she called the paternal grandparents “Grandma”
and “Grandpa.” She liked everything about living with them but thought she was treated

13
better than G.A., who got in trouble more. When asked to identify who in her family did
not live with her, she named the maternal grandmother, Brother, and the maternal uncle
“and that’s all.” But she considered Mother part of her family, identified her as one of
the important people in her life, and missed her. She had good memories of playing with
Mother and liked their visits. She would be sad if she could not see Mother anymore, and
cry, but “only for one day.” The family members whom she loved were: “Mommy and
Daddy and [the paternal grandparents] and G.A. I love all my family.”
The visitation monitor who monitored the maternal family’s visits for about
four and a half months before the .26 hearing testified. There were almost 20 visits, with
both Mother and the maternal grandmother. She testified Mother missed three visits
during this time. The visits were generally positive. G.A. was affectionate with Mother
and other maternal family members, and would prolong goodbyes, clinging to Mother.
J.A. was less affectionate, and took a while to warm up. Mother was always appropriate.
The girls did not act differently when Mother was not at a visit.
The maternal grandmother testified the girls and Mother were “bonded
deeply.” At visits, G.A. was always hugging Mother, telling Mother she loved her, and
did not want to leave when visits ended. J.A. “beam[ed]” when Mother praised her, and
sometimes, but not often, expressed she missed Mother when Mother was not at a visit.
Mother testified that since May 2013, either she or children had missed six
or fewer of their weekly visits. Mother agreed she missed two out of four visits in the
past month. G.A. was always excited to see Mother at the beginning of each visit; J.A.
took longer to warm up to her. The girls always said they loved Mother, and once or
twice a month G.A. would say she missed Mother and prolonged her goodbyes. Mother
comforted the girls, and she did not want them to be adopted.
At the conclusion of the .26 hearing, the court found the children were
adoptable and terminated parental rights. The court found Mother did not satisfy either
prong of the parental benefit exception. With regard to the regular visitation prong, the

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court noted that over the entirety of the case, Mother had not maintained regular and
consistent visitation. She would get “frustrated or upset with the state of affairs,
whatever they were, and she would choose not to visit these children out of a fit of pique
or frustration . . . .” On numerous occasions Mother “chose not to visit these children
because she was angry with the system[,]” but visitation was for the children’s benefit,
not Mother’s and not the system’s. As to the beneficial relationship prong, the court
observed Mother was not in a truly parental relationship with the girls, if anything it was
the maternal grandmother who parented them. Mother was more like “the irresponsible
older sister [who] is attempting to exert . . . sibling control over the children . . . .”
DISCUSSION
Mother contends the juvenile court erred by failing to apply the
parental benefit exception to termination of parental rights. We find no error.
At a permanency 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 Autumn H. (1994) 27 Cal.App.4th
567, 573-574 (Autumn H.).) An exception to the adoption preference occurs when
termination of parental rights would be detrimental to the child because the 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).) The parent bears the burden
of proof on both these prongs: (1) that visitation was consistent and regular; and (2) that
the child would benefit from continuing the relationship. (In re Melvin A. (2000)
82 Cal.App.4th 1243, 1253.)
We apply the substantial evidence standard of review to factual issues, such
as consistency of visitation and the existence of a beneficial parental relationship, and the
abuse of discretion standard to the discretionary determination of whether there is a
compelling reason for finding termination would be detrimental to the child. (In re J.C.
(2014) 226 Cal.App.4th 503, 530-531 (J.C.); In re Bailey J. (2010) 189 Cal.App.4th

15
1308, 1314-1315; In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) The analysis under
either standard of review is essentially the same under both standards because
“‘[e]valuating the factual basis for an exercise of discretion is similar to analyzing the
sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial
judge. The reviewing court should interfere only “‘if [it] find[s] that . . . no judge could
reasonably have made the order . . . .’” [Citations.]” (In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1351.)
The regular visitation and contact element of the beneficial relationship
exception “is somewhat self-explanatory.” (Seiser & Kumli, Cal. Juvenile Courts
Practice and Procedure (2014) Permanency Planning Procedures, § 2.171[5][b][i][A],
p. 2–542.) It does not require the parent to have “‘maintained day-to-day contact’” (In re
C.B. (2010) 190 Cal.App.4th 102, 124), but it does require the parent to have “maintained
regular visitation and contact” (§ 366.26, subd. (c)(1)(B)(i), italics added).
Substantial evidence supports the court’s finding Mother’s visitation was
not regular and consistent. During this four-year dependency proceeding, Mother’s
visitation with her daughters ranged from four to 10 hours per week, almost all of which
was monitored. There were times she visited consistently. But there were also periods
when her visitation became erratic often because, as the court noted, Mother was angry
with the dependency system. In the summer of 2011, she had several months of not
visiting the girls, after her visitation was restricted to professionally supervised due to her
violating visitation conditions. In the fall of 2011, she complained about being unable to
find time to go to the visitation center and she “[could not] stick to something consistent”
because of her schedule. When the court again imposed a professional monitor in
August 2012, Mother again was not willing or able to accept the terms of the supervised
visitation. Again, she missed visits, refused to commit to a visitation schedule, cancelled
visits because of work, did not show up, or left early when she became frustrated with the
children. During the reporting period from around October 2013 until the .26 hearing,

16
reports ranged from Mother missing three to seven of 20 visits. Mother conceded she
missed two out of the four scheduled visits right before the .26 hearing. The court could
reasonably conclude Mother’s visitation was not regular and consistent and she was not
making a priority the goal of maintaining stable relationships with her daughters.
(See J.C., supra, 226 Cal.App.4th at pp. 531-532.) Because the record supports the trial
court’s finding Mother did not maintain regular and consistent visitation, we do not
address the second prong of the parental benefit exception, which requires the court to
balance the strength and quality of the natural parent/child relationship against the
security and the sense of belonging provided by an adoptive family. (Autumn H., supra,
27 Cal.App.4th at p. 575.)
DISPOSITION
The order is affirmed.

O’LEARY, P. J.
WE CONCUR:

MOORE, J.

ARONSON, J.

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