In re M.D. CA4/1

Filed 12/12/14 In re M.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.D. et al., Persons Coming Under
the Juvenile Court Law.
D065420
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518440 A & B)
Plaintiff and Respondent,

v.

KELLY S. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.

Lagotta, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and

Appellant Kelly S.

Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and

Appellant Benjamin D.
 Thomas E. Montgtomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Carra L. Rhamy, Deputy County Counsel, for Plaintiff and Respondent.

Dependency Legal Group of San Diego and Maria Diaz for Minors.

Kelly S. and Benjamin D. appeal orders of the juvenile court terminating parental

rights to, and ordering a permanent plan of adoption for, their children, M.D. and A.D.

Kelly1 challenges the sufficiency of the evidence to support the court's finding that the

beneficial parent-child relationship exception to termination of parental rights and

adoption found in Welfare and Institutions Code2 section 366.26, subdivision (c)(1)(B)(i)

is inapplicable.3 Alternatively, Kelly contends the court erred by selecting a permanent

plan of adoption rather than guardianship. We affirm.

1 Benjamin joined in all of Kelly's arguments at the hearing in the juvenile court that
resulted in the orders on appeal. In this appeal, Benjamin joins in the arguments raised
by Kelly in her briefs on appeal. (Cal. Rules of Court, rule 8.200(a)(5).) Thus, a
reference in this opinion to an argument by Kelly includes Benjamin as well.

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

3 Kelly's notice of appeal indicates she is also appealing from the denial of her
section 388 request to change the court's order terminating reunification services.
However, having raised no argument in her briefing as to this ruling, Kelly has
abandoned any claim of error. (Title Guarantee & Trust Co. v. Fraternal Finance Co.
(1934) 220 Cal. 362, 363; see In re S.C. (2006) 138 Cal.App.4th 396, 408.)

2
 FACTUAL AND PROCEDURAL BACKGROUND4

At A.D.'s birth in 2006 (when M.D. was a toddler), Kelly and A.D. tested positive

for methamphetamine, and Kelly admitted both that she smoked methamphetamine and

that she had failed to seek prenatal care during the pregnancy. As a result, the San Diego

County Health and Human Services Agency (the Agency) provided Kelly with voluntary

services related to substance abuse addiction. However, the Agency closed its case plan

after almost 11 months, because Kelly did not complete any component of it other than

applying for cash aid and Medi-Cal.

In May 2011, Kelly was arrested at her apartment for possession of

methamphetamine. In August 2011, the Agency opened a second voluntary case after

substantiating a referral reporting in part that the children were outside late at night

unsupervised, they were often yelled at and spanked by Kelly, and she was still using

methamphetamine.

In September 2011, Kelly was granted deferred entry of judgment on the pending

possession charges and ordered to complete a drug diversion program. (See Pen. Code,

§ 1000 et seq.) She tested positive for methamphetamine and amphetamine, or refused to

drug test, multiple times between January and May 2012. During that same time, the

Agency received reports that the family's apartment was in disarray, that Kelly was

displaying paranoid behavior and that she and her boyfriend had been physically abusive

4 In accordance with the applicable standard of review (see pt. B., post), we recite
the facts in a light most favorable to the orders on review. (Bullock v. Philip Morris USA,
Inc. (2008) 159 Cal.App.4th 655, 667, fn 2.)

3
to each other in front of the children. Kelly was also dropped from a weekly parenting

education program for lack of attendance.

Based on Kelly's performance, the Agency closed the second voluntary case as a

failure. The Agency remained concerned, however, that the children were being exposed

to domestic violence and that Kelly's methamphetamine use was adversely affecting her

abilities to parent them and ensure their safety.

During this same time, Kelly was not reliably getting the children to their

elementary school.5 In May 2012, she failed to pick up the children from their after-

school program; M.D. and A.D. reported that Kelly left them unattended at home for

hours, and even days, at a time. They also stated that when they were home alone, they

had to prepare their own food, and at times there was no food. Kelly admitted, and

others confirmed, that there was domestic violence in the home.

In June 2012, the Agency filed petitions under section 300, subdivision (b),

alleging that Kelly and Benjamin failed to protect the children6 and requesting the

issuance of protective custody warrants for the children under section 340. The court

found reasonable cause to remove the children and ordered the issuance of the protective

5 For the school year that began in September 2011, the children's attendance
records showed that M.D. had been tardy 59 times and A.D. had been tardy 48 times;
both had 14 absences due to illness and three unverified absences.

6 The Agency alleged: "The child has suffered, or there is substantial risk that the
child will suffer serious physical harm or illness, [¶] by the inability of the parent or legal
guardian to provide regular care for the child due to the parent's or legal guardian's' [sic]
mental illness, developmental disability, or substance abuse."

4
custody warrants. It also ordered the children's detention, subject to supervised visitation,

and voluntary services for Kelly.

Shortly thereafter, Kelly acknowledged recent methamphetamine use, saying that

although she did not have a drug problem, she would finish the drug diversion program

"to 'appease' the court." She made no effort to see the children, despite two inquiries by

the social worker.

Benjamin was cooperative and expressed a willingness to participate in

reunification services, including parenting classes and sobriety, in order to rebuild the

relationship with the children and participate in visitation. Following a successful

supervised visit, the social worker recommended supervised visits in the future for

Benjamin to demonstrate his parenting skills and sobriety.

The case plans for Kelly and Benjamin included referrals to specific programs that

the Agency believed would assist in their reunification efforts. Although Kelly enrolled

in a substance abuse program, she failed to attend regularly and tested positive for

methamphetamine twice during the first two weeks of July 2012. Additionally, ignoring

the Agency's recommendations, Kelly failed to arrange for therapy, and Benjamin failed

to attend the drug meetings or parenting classes.

By the time of the combined jurisdictional/dispositional hearing in August 2012,

the children were living in the home of a maternal aunt (Caregiver). At the hearing, the

juvenile court sustained the petition with a true finding on the section 300,

subdivision (b) count. (See fn. 6, ante.) The court declared M.D. and A.D. dependent

5
children pursuant to section 360, subdivision (d) and directed the Agency to find a

suitable placement pursuant to section 361.2, subdivision (e).

Meanwhile, Kelly continued to test positive for methamphetamine and was

dismissed from two separate drug treatment programs, as well as from counseling and

mental health services. Providers reported Kelly was often late and never accepted the

depth of her addiction.

Benjamin failed to complete the parenting classes, had no proof of attending drug

treatment meetings (although he reported otherwise), and tested positive for marijuana

and a combination of methamphetamine, amphetamine and marijuana. After Benjamin

missed three consecutive visits with the children, the Agency terminated his visitation

services; by the time of the six-month hearing, he had not seen the children for more than

four months. In the meantime, both M.D. and A.D. were healthy and adjusting well to

living with Caregiver.

Shortly before the six-month hearing, Kelly and Benjamin reengaged in services;

Kelly was in detox and Benjamin stated a willingness to participate in drug treatment.

However, the Agency reported continuing concern as to the children's safety should they

be returned to Kelly, based on both parents' continued drug use and Kelly's lack of insight

as to her addiction and its impact on her, the children and her ability to care for the

6
children.7 Further, Benjamin had not demonstrated either a commitment to the children

or the ability to provide them with a safe environment.

At the six-month hearing in January 2013, the court found that returning the

children to Kelly's custody would create a substantial risk of harm to their physical and

emotional well-being. Further, the court ordered Kelly to meet with a specialist in

substance abuse. Based on the specialist's recommendation, the Agency requested and

the court ordered Kelly to drug court in February 2013.

Despite this, Kelly continued to test positive for methamphetamine and

amphetamine and miss treatment sessions. One substance abuse specialist reported that

Kelly was in denial and "not really getting it." In addition, Kelly was only "fairly

consistent" in attending her drug court hearings. Finally, with regard to visitation, Kelly

was often late, had difficulty setting limits for and redirecting the children, and once

pulled A.D. across the rug in a fit of anger, causing A.D.'s foot to bleed slightly.

Benjamin continued to test positive for drugs, was discharged from his last

treatment program in early June 2013 and was arrested on new drug charges the next

week. Despite multiple attempts, the Agency was unable to contact Benjamin, and he

made no effort to return messages or otherwise reach the social worker. Benjamin also

had no contact with either of the children during this time.

7 Kelly felt that because the children did not witness her drug use, they were not
affected by it.

7
 M.D. and A.D. continued to live with Caregiver, providing strong support for each

other and enjoying good health and success in school. Caregiver wanted to do whatever

was necessary to allow the children to stay with her, and Kelly and Benjamin were

comfortable with this arrangement. M.D.'s therapist reported that Caregiver " '[wa]s

doing a great job' " with the children.

Based principally on the parents' continued drug use, the Agency recommended

that services be terminated. At the 12-month review hearing in July 2013, the court

ordered Kelly to drug test that day, continued in place all prior orders and set the matter

for trial.8 Kelly checked into a residential drug treatment program on August 20, 2013,

but was involuntarily discharged nine days later because she had left the facility without

permission.

At the 12-month contested hearing in September 2013, the court found that Kelly

and Benjamin had not made substantive progress with their respective case plans and that

there was no substantial probability that either parent would be given custody of M.D. or

A.D. within the next six months. The court terminated reunification services and set a

hearing date under section 366.26 to implement a permanent plan of adoption,

guardianship or other permanent living arrangement for the children.

At the contested section 366.26 hearing on February 11, 2014, Kelly testified that

she had been residing at a drug treatment facility — and had been sober — since

8 The court advised Kelly that that the matter would be set for trial "a long way
out . . . because I want to see how you are doing in the drug treatment. . . . [W]e have a
mother who is not participating in services and not getting clean . . . ."
8
November 1, 2013, and was attending group therapy meetings and classes (including

domestic violence, anger management, NA/AA, and parenting and child development).9

She also argued that she had maintained frequent contact with the children throughout the

case, that during the supervised visits she engaged appropriately and lovingly with the

children, and that she shared a positive relationship with M.D. and A.D., who had

expressed a desire to return to living with her.

At the time of the hearing, Benjamin was in custody on several theft- and drug-

related charges. Although he was present for the hearing, Benjamin did not offer

evidence of his own.

The Agency asserted that Kelly had made very limited progress with regard to the

provisions of her case plan,10 lacked insight into both the magnitude of her drug use and

its impact on the children, and was merely in the very early stages of recovery. Likewise,

although Benjamin was given ample opportunity to reunify, he made very minimal

progress with his case plan, instead continuing with his substance abuse addiction and

making poor lifestyle choices that often resulted in incarceration. With regard to

9 These facts relating to her November 2013 entry into the residential treatment
program had been the basis of Kelly's previously filed section 388 request to change the
September 2013 order terminating reunification services. At the February 11, 2014
hearing, the court took evidence, listened to the argument of counsel and denied Kelly's
request — finding that although circumstances were changing, they had not sufficiently
changed for purposes of section 388. Kelly raises no issues in this appeal as to the denial
of her section 388 request.

10 For example, during the pendency of this dependency case, Kelly attempted to
engage in drug treatment services on 11 separate occasions.

9
visitation, the Agency pointed out that although Kelly "maintained frequent contact" with

the children, it never progressed past supervised visits and had "not always been regular

and consistent." The visitation monitor reported that during the visits, the children

regressed and acted like babies, Kelly failed to set limits on the children's behavior

(requiring the monitor to redirect the children), and on one occasion Kelly's anger

resulted in a minor injury to A.D. In August 2013, the visitation center had terminated

visitation services due to Kelly's excessive no-shows. Finally, Benjamin had not visited

the children in the preceding 15 months.

The social worker opined that M.D. and A.D. were "highly adoptable" (both

individually and together), that Caregiver had expressed a strong desire to adopt them and

that Caregiver had already developed a parental relationship with the children such that

they called her "mom" or "mommy." Both M.D. and A.D. felt safe, loved and cared for

in Caregiver's home; they appeared to understand — and did not express reservations

about — their potential adoption by Caregiver.

Adopting the Agency's recommendations, the court (1) found by clear and

convincing evidence that M.D. and A.D. would likely be adopted and that none of the

exceptions in section 366.26, subdivision (c)(1)(B) applied; (2) terminated parental

rights; and (3) identified adoption as M.D.'s and A.D.'s permanent plan.

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 DISCUSSION11

A. Applicable Law

Once reunification services are terminated, the focus of a dependency proceeding

shifts from preserving the family to promoting the best interests of the child, including

the child's interest in a stable, permanent placement that allows a caregiver to make a full

emotional commitment to the child. (In re Jason J. (2009) 175 Cal.App.4th 922, 935-936

(Jason J.).) At the section 366.26 selection and implementation hearing, the juvenile

court has three options: (1) terminate parental rights and order adoption as the permanent

plan; (2) appoint a legal guardian for the dependent child; or (3) order the child placed in

long-term foster care. (In re Jason J., supra, at pp. 935-936.) As shown by the language

of section 366.26, subdivision (b),12 the Legislature has directed a "mandatory

preference for adoption over legal guardianship over long-term foster care." (San Diego

County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; see In re

Michael G. (2012) 203 Cal.App.4th 580, 588 (Michael G.).)

Thus, at a section 366.26 hearing, once the juvenile court finds by clear and

convincing evidence that the child is likely to be adopted within a reasonable time, the

court is required to terminate parental rights and select adoption as the permanent plan,

11 The children join in all arguments raised by the Agency. (Cal. Rules of Court,
rule 8.200(a)(5).)

12 "At the [section 366.26] hearing, . . . the court, in order to provide stable,
permanent homes for these children, . . . shall make findings and orders in the following
order of preference:" termination of parental rights and adoption; guardianship; and
long-term foster care. (§ 366.26, subd. (b), italics added.)

11
unless the parent shows that termination of parental rights would be "detrimental" to the

child under one of the seven exceptions listed in section 366.26, subdivision (c)(1)(A)

and (B). (Michael G., supra, 203 Cal.App.4th at p. 589; Jason J., supra, 175 Cal.App.4th

at p. 936.)

The beneficial parent-child relationship exception found in section 366.26,

subdivision (c)(1)(B)(i) provides an exception to adoption if termination of parental

rights would be detrimental to the child upon a showing "[t]he parents have maintained

regular visitation and contact with the child and the child would benefit from continuing

the relationship." (Ibid.) The statutory phrase "benefit from continuing the relationship"

means that the parent-child 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added

(Autumn H.).) In determining the benefit to the child for this purpose, "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." (Ibid., italics

added.)

The parent asserting the applicability of this statutory exception must show more

than frequent and loving contact, an emotional bond with the child or pleasant visits. (In

re Derek W. (1999) 73 Cal.App.4th 823, 827.) The beneficial parent-child relationship

12
exception "applies only where the court finds regular visits and contact have continued or

developed a significant, positive, emotional attachment from child to parent."

(Autumn H., supra, 27 Cal.App.4th at p. 575) Such a parent must show that he or she

"occupies a 'parental role' in the child's life." (In re Derek W., supra, at p. 827.)

"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, italics in original.) That is because

"[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.) Thus, such a

child "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." (In re Angel B., supra, at p. 466, italics added.)

B. Standard of Review

In determining whether the section 366.26, subdivision (c)(1)(B)(i) exception

applies, which necessarily includes the choice of placement, the juvenile court's finding is

reviewed for sufficiency of the evidence. (Autumn H., supra, 27 Cal.App.4th at p. 576;

Michael G., supra, 203 Cal.App.4th at p. 589.) This is so even where, as here, the

juvenile court made its finding based on clear and convincing evidence. (In re Luke M.

(2003) 107 Cal.App.4th 1412, 1426.)

Under the substantial evidence standard of review, "we presume in favor of the

order, considering the evidence in the light most favorable to the prevailing party, giving

13
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.) "The appellate

court does not reweigh the evidence, evaluate the credibility of witnesses or indulge in

inferences contrary to the findings of the trial court." (Michael G., supra, 203

Cal.App.4th at p. 589.) As particularly apt here, "the test is not the presence or absence

of a substantial conflict in the evidence. Rather, it is simply whether there is substantial

evidence in favor of the respondent. If this 'substantial' evidence is present, no matter

how slight it may appear in comparison with the contradictory evidence, the judgment

must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631

(Howard).)

C. Application of the Beneficial Parent-child Exception

Tracking the language of section 366.26, subdivision (c)(1)(B)(i), Kelly contends

the juvenile court erred, because she established both that she maintained regular

visitation and contact with the children and that the children would benefit from

continuing the relationship with her.13

13 In her reply, Kelly argues that Autumn H.'s interpretation of section 366.26,
subdivision (c)(1)(B)(i)'s phrase "benefit from continuing the relationship" merely
suggests that certain factors be applied, whereas the statute itself requires only evidence
that "the child would benefit from continuing the relationship." However, we do not
consider arguments raised for the first time in reply. (In re Daniel M. (2003) 110
Cal.App.4th 703, 707, fn. 4 (Daniel M.).) In any event, we will continue to follow the
Autumn H. balancing test, since it has been applied by this and other appellate courts for
more than 20 years and is settled law. (In re J.C. (2014) 226 Cal.App.4th 503, 529
[suggestion that "the law has departed from the Autumn H. line of cases" rejected].)

14
 1. Regular visitation

Kelly argues that the juvenile court erred in not finding she visited with her

children "sufficiently" to have required application of the beneficial relationship

exception. In so doing, Kelly relies on the frequency of the visitation, noting that she

attended the majority of the visits and emphasizing the social worker's comment that over

the course of the case Kelly maintained "frequent contact" with the children. Kelly then

posits that because "frequent" means "regular," she met her burden of proof in

establishing "regular visitation and contact" for purposes of applying the section 366.26,

subdivision (c)(1)(B)(i) exception.14 We disagree.

Although Kelly relies on the frequency of her contact, evidence presented in

conjunction with the section 366.26 hearing supported the ruling that her contact with

M.D. and A.D. was "not always . . . regular and consistent." (Italics added.) The social

worker explained the struggles Kelly had with excessive tardiness, cancellations and no-

shows — including the termination of visitation services in August 2013 due to no-

shows, followed by the two-and-a-half-month time period through mid-November 2013

in which she stopped visiting the children entirely. This evidence alone fully supports the

14 For the first time in her reply brief, Kelly argues that we should apply de novo
review in interpreting the word "regular" in the clause "regular visitation and contact" in
subdivision (c)(1)(B)(i) of section 366.26. We reject Kelly's suggestion. Again,
arguments raised for the first time in reply are forfeited. (Daniel M., supra, 110
Cal.App.4th at p. 707, fn. 4.) In any event, we need not interpret the word in this appeal
since, as discussed in the text, post, given the social worker's reports, regardless of the
meaning of "regular," Kelly did not meet her burden of proving the statutory minimum
standard for "regular visitation and contact" in order for the exception to apply.

15
court's statement at the hearing that "although there has been contact, it has been

sporadic. It has not risen to the level of regular and consistent contact with the

children . . . ."15

2. Benefit to the children

Kelly focuses on bits and pieces of individual evidence that she contends

preponderate in favor of the ultimate finding she wishes the juvenile court had made,

namely, that her relationship with the children was so beneficial to them as to outweigh

the well-being they would gain in a permanent home with new adoptive parents. Such

showing, however, is insufficient to establish reversible error on appeal.

"[P]reponderance of the evidence" is one of the recognized burdens of proof for a

party that is required to establish a fact by the trier of fact. (Evid. Code, § 115.) The

preponderance of the evidence standard of proof is " 'more likely than not.' " (People v.

Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, fn. 28.) In contrast, to

obtain relief on appeal, Kelly must establish, under the appropriate standard of appellate

review, that the trial court committed prejudicial error. (See People v. Yeoman (2003) 31

Cal.4th 93, 166 (conc. opn. of Kennard, J.).) Unlike proceedings in the trial court, the

purpose of an appeal is not to determine the case on its merits, but instead to review

decisions of the trial court for potential error under appropriate appellate standards.

15 The fact that the record may contain substantial evidence in support of a contrary
finding — as argued by Kelly — is irrelevant to our role on appeal, which is limited to
determination of the sufficiency of the evidence in support of the findings actually made.
(Howard, supra, 72 Cal.App.4th at p. 631.)
16
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013)

¶ 1:12, p. 1-2 (rev. #1 2009); see In re Zeth S. (2003) 31 Cal.4th 396, 404.)

Given the nature of appellate review for substantial evidence, Kelly must show

more than the evidence that arguably demonstrates the existence of a beneficial

relationship between her and the children. Instead, we must focus on whether substantial

evidence and its inferences exist to support the actual finding of the juvenile court that

Kelly's relationship with the children was not so beneficial as to outweigh the benefits of

adoption. There is such evidence here.16

From a very early age through the removal of the children from Kelly's custody,

the children were exposed to substance abuse, domestic violence, criminal conduct and

neglect. Significantly, Kelly had a substance abuse history dating back many years, and

she lacked insight into both the magnitude of her drug use and the impact her addiction

had on the children.

Since the beginning of the case, Kelly made very limited progress with her case

plan. She would often begin treatment — at times by court order — but was unable to

commit to participating in her recovery. She had a pattern of stopping treatment

prematurely and reengaging in her addiction. Further, as noted above, Kelly's contact

with the children never progressed past supervised visits and was "not always . . . regular

and consistent." Kelly struggled with excessive tardiness in addition to no-shows and

16 Kelly does not rely on facts relating to the termination of Benjamin's parental
rights, and Benjamin asserts no arguments independent of Kelly's. Thus, we will discuss
only the evidence in support of the court's ruling that the substantial benefit exception
does not apply to the termination of Kelly's parental rights.
17
cancellations. In August 2013, the visitation center cancelled services for Kelly because

of her excessive no-shows; for the next two and one-half months, due to Kelly's

continuing struggle with drug addiction, she did not visit the children and only rarely

called them. Notably, throughout the two and one-half months that Kelly distanced

herself from the children, they did not appear distressed, were functioning well, and

seldom inquired about her. Even during otherwise successful visits, the children

regressed and acted like babies, Kelly did not set limits on the children's behavior, the

monitor had to redirect the children, and at one visit Kelly injured A.D. in anger.

By contrast, the children were doing well with Caregiver, who had expressed a

strong desire to adopt both of them, thereby providing them with a stable and permanent

home and family. Caregiver had developed a motherly relationship with each of the

children. Caregiver, not Kelly, had been the adult responsible for successfully ensuring

the children's physical, emotional and educational needs were met, and she was

committed to providing these needs on a permanent basis. Both M.D. and A.D. felt safe,

loved and cared for in Caregiver's home and expressed no reservations about their

potential adoption by Caregiver.

Despite these facts, Kelly relies on different evidence which, had the juvenile

court credited it, may have supported a different outcome. In so doing, Kelly essentially

asks us to reweigh the evidence in support of the beneficial relationship exception.

However, we may not do so. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

Finally, Kelly contends the juvenile court erred in considering the social worker's

comment that, upon adopting the children, Caregiver was willing to facilitate a

18
continuing relationship between Kelly and them as long as it appeared to be in their best

interests. (See In re S.B. (2008) 164 Cal.App.4th 289, 300 ["We do not believe a parent

should be deprived of a legal relationship with his or her child on the basis of an

unenforceable promise of future visitation by the child's prospective adoptive parents."].)

First, not having objected to this evidence in the trial court, Kelly has forfeited such a

claim on appeal. (In re Joy M. (2002) 99 Cal.App.4th 11, 17; see Evid. Code, § 353,

subd. (b).) In any event, even assuming the court erroneously considered such evidence,

the error was harmless. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) Kelly

focuses on one sentence of 45 typed pages presented in four reports and fails to explain

how the allegedly erroneous admission of this evidence would have made any difference

in the outcome. Accordingly, Kelly has not suggested, let alone established, the requisite

prejudice for the relief she seeks on appeal.

D. Adoption as the Permanent Plan

In part C., ante, we concluded that substantial evidence supports the juvenile

court's finding that, by clear and convincing evidence, the beneficial relationship

exception set forth in section 366.26, subdivision (c)(1)(B)(i) was inapplicable.

Accordingly, based on the statutorily mandated preference (§ 366.26, subd. (b); San

Diego County Dept. of Social Services v. Superior Court, supra, 13 Cal.4th at p. 888), the

juvenile court did not err in ordering a permanent plan of adoption rather than

guardianship.

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 DISPOSITION

The orders terminating Kelly's and Benjamin's parental rights and ordering a

permanent plan of adoption for M.D. and A.D. are affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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