In re M.A. CA4/1

Filed 12/18/14 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. et al., Persons Coming Under
the Juvenile Court Law.
D065790
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J516164B-C)
Plaintiff and Respondent,

v.

CONNIE B. et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.

Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and

Appellant Connie B.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and

Appellant Michael A.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Tahra C. Broderson, Deputy County Counsel, for Plaintiff and Respondent.
 I.

INTRODUCTION

Connie B. and Michael A. appeal from the judgment terminating their parental

rights to their son, M.A., and daughter, L.A. Connie and Michael contend that the trial

court erred in declining to apply the beneficial relationship exception to termination of

parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i))1. We affirm the

judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. General family background

Connie and Michael are the parents of M.A. (now 5) and L.A (now 3). Connie

first tried alcohol at age six, began smoking marijuana at age 17, and began using

methamphetamine at age 20. Connie, who is now approximately 30 years old, reported

using methamphetamine daily during a period of time while she was in her 20s.

Michael was convicted of a felony drug charge in 2004. In 2006, he was

convicted of charges involving possession and sales of marijuana. He served a two-year

prison term.

1 Unless otherwise stated, all subsequent statutory references are to the Welfare and
Institutions Code.

2
 In July 2005, a referral alleging that Connie was unable to care for M.A. and

L.A.'s older sibling, K.Y.,2 was substantiated after Connie was admitted to the hospital

for abdominal pain and tested positive for marijuana, benzodiazepine, and

methamphetamine. In early 2006, another referral regarding K.Y. was substantiated after

she was left with an unsuitable caregiver. K.Y. became the subject of a dependency case.

Connie was arrested for drug possession in May 2006. She did not contact the Agency

regarding K.Y. for two months after her arrest. However, Connie received reunification

services, was reunified with K.Y., and jurisdiction was terminated in May 2008.

After M.A. was born, another referral was generated in 2011 based on domestic

violence between Connie and Michael in the presence of K.Y. and M.A. During the

argument, Michael choked Connie and caused her to fall on M.A. K.Y. tried to call the

police, but Michael grabbed the telephone away from her, and in the process, hit K.Y. in

the face, leaving a welt. Michael was arrested as a result of this incident. Connie was

offered voluntary services. She did not complete the services, and the voluntary case was

closed as a failed case.

The current case involving M.A. and L.A. began with a February 2012 referral.

M.A. was found wandering in the middle of the street, and the police were called. M.A.

was able to tell the officer his name, but not where he lived. M.A. was taken to Polinsky

Children's Center, where he was examined by a doctor. The doctor determined that M.A.

2 K.Y. is Connie's daughter by another man.
3
had "loop marks" on both legs, grab or pinch marks on both arms and a possible burn

mark on his left forearm. These injuries were indicative of physical abuse.

Connie had called police to report M.A. missing. She was asleep in bed with M.A.

in the morning, and when she woke up, she could not find him in the house. She initially

thought that M.A.'s maternal uncle had come by to take M.A. out, but later learned that

M.A. was not with the uncle.

Connie claimed that M.A. had sustained the injuries that an examining doctor at

Polinsky Children's Center found by biting and scratching himself, and from falling

down.

B. From the filing of the petitions and detention hearing through the six-month
review hearing

On March 2, 2012, the San Diego County Health and Human Services Agency

(Agency) filed petitions alleging that the children were at substantial risk of serious

physical harm under section 300, subdivisions (a) and (j) due to physical abuse to M.A.,

and that the substantial risk of serious physical harm or illness to L.A. was based on the

abuse of her sibling.3

At a detention hearing, the court found Michael to be M.A.'s presumed father.4

The court ordered that the children be detained in out-of-home care, and ordered

supervised visits for both parents. L.A. was detained in a licensed foster home, and M.A.

3 The Agency also filed a petition with respect to K.Y., but she is not at issue in this
appeal.

4 The Agency located a paternity declaration showing that Michael was L.A.'s
presumed father.
4
was detained with paternal relatives. The children were later detained together with a

paternal aunt.

A contested hearing was held in June 2012. The court found the allegations of the

petitions to be true, removed the children from the custody of their mother, found that it

would be detrimental to place the children with their father, and ordered that reunification

services be provided. Michael had been in custody since the initial detention of the

children and was still incarcerated at the time of this hearing.

Connie did not initiate reunification services until November 2012. From the time

the children were initially detained in May, until November, she had not contacted the

continuing services social worker. Connie also had not visited the children during this

period of time.

Even after initiating visitation with the children in November 2012, on

November 29, Connie missed a visit, claiming that she lacked transportation.5 In

December 2012, Connie missed an opportunity to see the children at an Incredible

Families parenting program because she had not complied with the prerequisite of

completing an assessment. The social worker expressed concern that Connie's

"irresponsible behavior is causing further harm and detriment to the children." According

to the social worker, the children would be excited to see Connie, but then, "when the

mother does not follow through," her conduct would take an "emotional toll" on the

children.

5 Connie had been provided with bus tokens at an earlier point in time.
5
 In July 2012, the social worker took M.A. and L.A. to visit Michael at the George

Bailey Detention Facility. M.A. seemed confused about having to talk with his father

through glass and using a telephone. M.A. expressed anger on the way home from the

visit and seemed emotionally upset. In August 2012, the social worker took M.A. and

K.Y. to visit Michael at the George Bailey Detention Facility. M.A. again appeared

confused as to why he could not be in the same room as his father, and became upset at

the conclusion of the meeting, stating that he did not want to leave. Michael was released

from custody in October 2012.

Michael enrolled in the "Incredible Families" program in December 2012.6 A

therapist at the program suggested that L.A.'s visitation sessions at the Incredible

Families program be limited to every other week because " 'having the baby there limits

the father's ability to tend to [M.A.'s] needs.' " The therapist also reported that M.A. had

been "physical" with the therapist during a visit.

After the January 9, 2013 contested six-month review hearing, the trial court

terminated Connie's reunification services. The court found that she had not made

substantive progress with the provisions of her case plan. The court ordered continued

reunification services for Michael.

6 According to a letter attesting to Michael's enrollment in the program, "Incredible
Families is a 15-week program that consists of a two hours weekly therapeutic monitored
visit, a two hours weekly parenting class and individual counseling for children ages 2-11
as indicated."
6
C. From the six-month review hearing to the 12-month review hearing

In January 2013, Connie gave birth to the children's younger sibling, J.A., who

was also taken into protective custody by the Agency.

Between January and the end of April 2013, Connie did not stay in contact with

anyone at the Agency and failed to visit with M.A. or L.A.

During this time, M.A., who was three years old, displayed behavioral problems

that included hitting, pushing, and biting. He presented as "physically aggressive towards

other children including his two siblings." M.A. also was observed putting "just about

anything in his mouth," including dirt, rocks, and some items that could contain toxic

materials, such as paint and pencils. M.A. and the caregiver were participating in

therapeutic services to try to address some of these issues.

L.A., who was one year old, was described as a generally happy child, but her

caregiver noted concern that L.A. seemed willing to go into the arms of strangers easily.

According to the social worker, L.A. was bonded with her caregiver.

Michael continued to participate in reunification services. He was described as

"oppositional" with respect to a therapist's suggestions and teachings. For example, when

the therapist suggested that Michael not refer to three-year-old M.A. as "selfish" in front

of M.A., Michael responded, " '[H]e is selfish. I know how I talk to my children, [M.A.]

knows what selfish is and that's just how I talk to him.' " In addition, in a group parenting

class setting, Michael stated, " '[W]e have our own way of raising our kids and you are

trying to change us.' " The therapist reported that Michael needed to improve his basic

7
parenting skills, including giving M.A. adequate attention, setting limits, and helping him

interact positively with other children.

At the April 2013 12-month review hearing, the trial court ordered continued

reunification services for Michael, given the finding that he had made "SOME progress"

with the provisions of his case plan.

D. From the 12-month review hearing to the 18-month permanency hearing

Between the 12-month review hearing and the 18-month permanency planning

hearing, M.A. and L.A. remained in the home of their caregiver. A psychologist

evaluated M.A.'s development and diagnosed him with disruptive behavior disorder, not

otherwise specified. During a June 2013 evaluation, M.A. was observed to share many

things with his caregiver, was respectful to her, and responded to her direction most of

the time. M.A. and his caregiver were making progress in therapy, and the therapist

noted a decrease in M.A.'s aggressive behaviors.

Michael tested positive for marijuana in June and July 2013. In addition, during

this time period, Michael visited the children only sporadically, despite the fact that he

had been told that he could visit any time at the caregiver's home, and the fact that he

lived only two miles from the caregiver's home. In May, June, and July, Michael visited

the children only once each month. According to paternal relatives, Michael sat on the

couch and did not interact much when he visited the children.

Michael attended three Agency-supervised visits in July and August 2013. A

supervisor observed Michael struggling to attend to the needs of the two children. At one

visit, Michael allowed M.A. and L.A. to play by themselves while he sat on a couch.

8
Michael appeared to struggle with M.A.'s behavior as M.A. acted out to get Michael's

attention. Michael threatened to put M.A. in time-out, but failed to follow through. At

the end of the visit, however, M.A. cried.

At another visit, Michael sat on a couch and did not make any attempt to manage

the children's behavior. When L.A. put a marker in her mouth, Michael did nothing.

Rather than redirect M.A.'s behavior, Michael yelled at him. Michael threatened M.A.

with taking toys away or a time-out, but again failed to follow through.

During this time period, Michael stated that he did not understand the reason for

the Agency's involvement with the children. He asserted that when he was a child,

children could play outside and cross the street, apparently in an attempt to address the

fact that M.A. had been found wandering in the middle of the street alone. Michael's

therapist reported that Michael sometimes viewed himself as "a victim of circumstances,"

and that he " 'acts as a victim' " rather than taking "full responsibility for his actions."

Michael was arrested for possession of marijuana and cocaine for sale, and

transportation of marijuana, in August 2013. While in custody, Michael had a visit with

both of the children in October 2013, and a visit with L.A. in November 2013. The

children separated easily from Michael. Michael ended the November 2013 visit after

approximately 15 minutes because L.A. was not interacting with him very much.

Connie attended supervised visits through the visitation center. These visits often

included K.Y., as well as J.A. Although M.A. and L.A. appeared to enjoy spending time

with Connie, and generally complied with her requests for shows of affection, Connie

struggled to attend to the needs of all of the children at once. The children's behavior

9
often required the intervention of a visitation monitor. At the end of most visits, the

children separated easily from Connie.

During one supervised visit, Connie washed baby bottles in the bathroom for

approximately 20 minutes, leaving the children unattended. While Connie was gone, the

children ran around, L.A. placed choking hazards in her mouth, and M.A. screamed in

such a manner that a person from a nearby business came over to investigate what was

going on. Connie had to be asked to return to the visitation room.

Additional issues arose at other visits. During one visit, Connie struggled to

manage M.A.'s frequent behavioral outbursts during the final third of the 90-minute visit.

At the end of the visit, Connie started crying, which in turn caused M.A. to cry, and

eventually there was what was described as a "familial melt down." At other visits, the

monitor had to intervene with respect to a safety issue involving one of the children.

By September 2013, the children's younger sibling, J.A., had been placed in

Connie's care. But Connie continued to struggle to adequately supervise M.A., L.A., and

J.A. at the same time. Connie's focus tended to be directed toward J.A., and she failed to

notice safety issues with respect to L.A., in particular. A monitor suggested that Connie

not bring J.A. with her to the visits with the other children so that she could spend more

time with M.A. and L.A., but Connie was resistant to the suggestion.

By early October 2013, Connie was able to do a better job managing all of the

children during visits, although the monitor believed that Connie still needed significant

guidance. At an October 31, 2013 visit, Connie had a great deal of difficulty with the

children. M.A. ran out of the building and into the parking lot. Older sibling K.Y., and

10
not Connie, went after him. Connie gave L.A. whole grapes, and failed to cut L.A.'s food

into smaller pieces until after L.A. choked on one of the grapes.

At the conclusion of a contested November 2013 hearing, the court denied a

section 388 petition that Connie had filed to seek placement and services. The court also

terminated Michael's reunification services.

E. The post-reunification period

Between November 2013 and April 2014, Connie continued to have supervised

visits with the children at the visitation center. The children appeared to enjoy seeing

their mother, referred to her as "Mommy," and generally exchanged affection with her at

the beginning of visits. However, they rarely initiated affection during the visits, rarely

went to Connie for comfort during visits, and gave no sign that they did not want the

visits to end.

Connie continued to struggle with managing the children's behavior during visits.

For example, at a November 2013 visit, the visitation monitor had to alert Connie that

M.A. had a plastic knife. Connie threatened to stop visiting the children when they did

not follow her directions. Connie sometimes failed to notice safety hazards for the

children, including one occasion when L.A. put a marker cap in her mouth and the

monitor had to intervene and remove it.

During visits between January and March 2014, the children were generally happy

to see Connie and exchanged affection with her, but also separated easily. Although

Connie made some progress in being able to manage her children's behavior in the

11
supervised setting, she still struggled. Connie also discussed the caregiver and the case in

the presence of the children.

In March 2014, a referral was generated on the children's younger sibling, J.A.

The Agency learned that Connie had failed to pick up the baby when the daycare center

that he was attending had closed during lunch time. Connie was located in her room at

her residential drug treatment program, and she appeared sick and disoriented. She

refused to retrieve J.A. from the daycare center, and also failed to pick him up when the

daycare center closed for the day.

Although Connie claimed to have "self-discharged" from her residential treatment

program, the program reported that in fact, she was asked to leave for failing to comply

with program rules. Connie had generated 29 incident reports prior to being asked to

leave.

Michael remained in custody until December 2013. During a Christmas week

visit, Michael and M.A. exchanged affection, and Michael told the child that he was

going into a drug rehabilitation program. Both children separated easily at the end of the

visit.

After Michael resumed visits with the children, the caregiver reported her

concerns about M.A.'s behavior. For example, M.A. misbehaved by ripping clothes,

pulling down curtains, and making holes in walls.

As of February 2014, Michael had missed three visits at the visitation center,

which caused the center to cancel his services.

12
 On February 20, 2014, Michael was back in custody. He remained in custody

through the contested section 366.26 hearing in April. Michael did not contact the social

worker to ask for visits during this time.7 Michael's attorney eventually requested that

visits be arranged for Michael, and the social worker followed up to make arrangements.

At the same time, the caregiver reported that M.A. had asked where his father was, and

had been told that he was "out of town." M.A. said that he did not like to go to the prison

because "bad people" were there. The caregiver also noted that Michael had not

contacted her at all that year to inquire about the children.

F. The contested section 366.26 hearing

At the initial section 366.26 hearing, the Agency recommended terminating

parental rights and freeing the children for adoption. Both parents requested a trial.

While waiting for trial, Connie filed a section 388 petition in which she requested that the

children be placed with her.

At the contested hearing, the court considered the Agency's assessment report and

addendum and the mother's section 388 petition and attachments.

Social worker Tuyen Ly recommended that the court terminate Connie and

Michael's parental rights and free the children for adoption. She considered the children

to be adoptable because they were young, attractive, and had met developmental

milestones at appropriate ages.

7 The social worker accepted collect calls.
13
 The children's caregiver wished to adopt them. She was not interested in a

guardianship. She had initiated an adoptive home study.8

M.A. had resided with the caregiver for a few months when he was a toddler. In

addition, after the petitions were filed, M.A. lived with the caregiver as of April 2012 and

L.A. lived with her as of July 2012. The caregiver was willing to facilitate ongoing

contact between the children and Connie and Michael. The caregiver was apparently an

extended family member.

In addition to the caregiver, there were 23 other families with approved home

studies in San Diego County that were interested in adopting a sibling set like M.A. and

L.A.

Ly observed some of Connie's visits and reviewed the visitation logs. Connie

never progressed beyond having supervised visits with M.A. and L.A. She failed to visit

the children consistently in the beginning of their detention. Her visits were more regular

in June 2013, and again in December 2013.

Ly acknowledged the positive attributes of Connie's visits. Connie had worked to

improve her "parental role" with the children during the supervised visits. However,

Connie had also made negative comments to L.A., made negative statements about the

caregiver to the children, and talked to the children about the possibility of coming to her

house. Connie had to be educated about giving the children too much sugar, which was

8 A referral had been generated on the caregiver's home after a marijuana-like odor
had been detected in the area. The caregiver reported that a neighbor smoked marijuana.
The referral was under investigation.
14
causing L.A. some health problems. Additionally, the children separated easily from

Connie at the end of the visits.

Ly also reviewed Michael's visitation with the children. Although M.A. appeared

to be sad about ending visits with Michael in July and August 2013, he did not exhibit

any difficulty separating from Michael at more recent visits. Ly noted that Michael's

recurring incarceration interfered with his ability to maintain contact and visitation with

the children.

Ly stated that the children looked to their caregiver to fulfill their daily needs.

They referred to the caregiver as "Mom." The children were thriving in the caregiver's

home. M.A. and the caregiver were attending therapy, and it was going well. M.A.'s

therapist reported that he wanted to stay with his caregiver and did not want to leave her

home and live somewhere else.

Connie's section 388 petition alleged that she had J.A. in her care, she continued to

participate in a drug treatment program, and she expected to enter a sober living home.

Connie attached a therapy treatment update and visitation logs to her petition.

The trial court denied Connie's section 388 petition, concluding that she had failed

to meet her burden to establish changed circumstances by a preponderance of the

evidence. The court then terminated parental rights and freed the children for adoption.

Connie and Michael filed timely notices of appeal.9

9 Although Connie's notice of appeal references the trial court's denial of her section
388 petition, she makes no argument in briefing with respect to the court's ruling on that
matter.
15
 III.

DISCUSSION

Michael and Connie both contend that there is not substantial evidence to support

the trial court's finding that the beneficial parent-child exception to adoption, identified in

section 366.26, subdivision (c)(1)(B)(i), does not apply to either of them. Each parent

contends that the evidence demonstrates that terminating his or her parental rights would

be detrimental to the children.

A. Legal standards

At a section 366.26 hearing, the court may select one of three alternative

permanency plans for the dependent child—adoption, guardianship or long-term foster

care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the child is found to be adoptable,

there is a strong preference for adoption over alternative permanency plans. (San Diego

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

Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)

If the court finds that a child is likely to be adopted within a reasonable time, the

juvenile court is required to terminate parental rights unless the parent shows by a

preponderance of the evidence that termination of parental rights would be detrimental to

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

(c)(1)(B). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)

On review, we must affirm the juvenile court's rejection of any exception to

termination of parental rights if the court's findings are supported by substantial evidence.

(In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) We determine whether

16
there is substantial evidence, contradicted or uncontradicted, to support the conclusions

of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing

all legitimate inferences to uphold the court's ruling. (In re Brison C. (2000) 81

Cal.App.4th 1373, 1378-1379.)

An appellate court does not reweigh the evidence, evaluate the credibility of

witnesses or indulge in inferences contrary to the findings of the trial court. (E.g., Lenk v.

Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) The substantial evidence standard

of review is generally considered the most difficult standard of review for an appellant to

meet because it is not the function of the reviewing court to determine the facts. (See

Zeth S., supra, 31 Cal.4th at p. 405.)

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of

parental rights when "[t]he parents have maintained regular visitation and contact with

the child and the child would benefit from continuing the relationship." The so-called

"beneficial relationship exception" thus establishes a two-prong test that requires

assessment of two criteria: (1) a parent's contact and visitation with the child, and (2) the

benefit to the child of continuing the existing relationship.

The phrase "benefit from continuing the . . . relationship" has been interpreted to

mean "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "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

17
adoption is overcome and the natural parent's rights are not terminated." (Ibid., italics

added.)10

To meet the burden of proof for the beneficial relationship exception, the parent

must show more than frequent and loving contact or pleasant visits. (In re Derek W.

(1999) 73 Cal.App.4th 823, 827 (Derek W.).) "Interaction between natural parent and

child will always confer some incidental benefit to the child. . . . The relationship arises

from day-to-day interaction, companionship and shared experiences." (Autumn H.,

supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental

role in the child's life, resulting in a significant, positive, emotional attachment from child

to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Whether the type

of relationship exists that is sufficient to meet the beneficial relationship exception is

determined by taking into consideration "[t]he age of the child, the portion of the child's

life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between

parent and child, and the child's particular needs." (Autumn H., supra, at p. 576.) And,

again, the parent must demonstrate not only that the parent-child relationship promotes

the well-being of the child, but that it does so "to such a degree as to outweigh the well-

being the child would gain in a permanent home with new, adoptive parents." (Id. at

p. 575, italics added.)

10 A substantial positive attachment from the child to the parent results from the
adult's attention to the child's needs for physical care, nourishment, comfort, affection and
stimulation. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
18
B. Substantial evidence supports the trial court's determination as to both parents

1. There is substantial evidence to support a finding that Connie did not meet
the second prong of the beneficial relationship exception

Even if we assume that Connie visited the children on a frequent, consistent

basis,11 the trial court's finding that the parent/child bond between Connie and M.A. and

L.A. was not so strong from the children's perspective that either child would be greatly

harmed if Connie's parental rights were terminated, is supported by substantial evidence.

Specifically, substantial evidence supports the court's finding that the benefits of adoption

for the children outweigh the possible detriment that they might suffer if Connie's

parental rights were terminated.

Again, M.A. and L.A. were quite young when they were removed from their

parents' care (two years old and three months old, respectively). By the time the

contested section 366.26 hearing was held, the children had been out of Connie's care for

approximately two years, virtually half of M.A.'s life, and almost all of L.A.'s life.

Although the children referred to Connie as "Mommy" and seemed to enjoy spending

time with her, there was also evidence that at times the children were reluctant to greet

11 M.A. was two and L.A. was three months of age when they were removed from
Connie's care. Connie did not visit the children at all between May and November 2012.
A period of more than four months is a significant period of time for children of such a
young age. Further, there were reports by the caregiver that Connie did not contact the
children between her supervised visits with them, and she did not ask to attend their
medical appointments. It is therefore far from clear that Connie met the first prong of the
exception, but for purposes of this appeal, we will assume that the evidence demonstrates
that she did.
19
Connie at the beginning of visits. The evidence also demonstrated that the children

separated easily from Connie at the end of the visits. Further, L.A. was described as a

child who went easily to everyone, and did not specifically reserve her affection and

positive reaction for Connie.

Connie often struggled to provide adequate physical care and supervision for the

children, even in the supervised visitation setting. At times, M.A. and L.A. ran out of the

visitation room. L.A. was at risk of choking on multiple occasions because food portions

were too large or she placed nonfood items in her mouth, often without Connie noticing.

During one visit, L.A. climbed onto a table. Visitation monitors reported that they had to

intervene with the children on numerous occasions.

In addition, Connie failed to promote a positive emotional attachment with the

children in various ways. For example, at times she threatened to stop visiting them. In

addition, she would discuss the case in front of them, would speak negatively about the

children's caregiver, and/or would fail to adequately regulate her own emotions, thereby

upsetting the children.

Given these facts, it is clear that substantial evidence supports a conclusion that

Connie did not fulfill a parental role in L.A. or M.A.'s life, in that neither child seemed to

have a significant, positive, emotional attachment with her, and their relationship

appeared to consist of little more than pleasant visits. However, even if a significant

emotional attachment did exist such that one could find that Connie's parent-child

relationship with either child promoted the well-being of that child, the evidence supports

the trial court's conclusion that the benefits of adoption for these children simply

20
outweighed any potential detriment to them from terminating Connie's parental rights.

The children have been with their caregiver for over two years, and are thriving in her

care. The stability and sense of security that adoption will provide outweighs any benefit

that the children might receive from maintaining the relationship with Connie.

To the extent that Connie attempts to rely on In re S.B. (2008) 164 Cal.App.4th

289 (S.B.) in support of her position that the trial court's finding with respect to the

beneficial relationship exception is not supported by substantial evidence, her reliance is

misplaced, since S.B. is clearly distinguishable. In S.B., the father had been his three-

year-old daughter's primary caregiver when she was removed from the home due to

parental substance abuse. (Id. at p. 293.) After the child's removal, the father visited

regularly, seeing his child up to three days a week. Not only did the father visit

frequently, but he complied with every aspect of his case plan. (Id. at pp. 294-295.) For

a year, the child was upset when visits with her father ended, and she consistently tried to

leave with him at the conclusion of the visits. (Id. at p. 298.) The father made his

daughter's needs a priority throughout the proceedings. Further, even after the court-

mandated reunification services had been terminated, the father engaged in services on

his own and continued his nurturing relationship with his daughter. (Id. at pp. 300-301.)

During a bonding study, the child spontaneously told her father she loved him and

wanted to live with him. (Id. at p. 295.) The psychologist who assessed the father-

daughter relationship was of the opinion that there was a " 'fairly strong' " bond between

the two. (Id. at pp. 295-296.)

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 This case presents significantly different facts from those in S.B. Unlike the father

in S.B., Connie failed to visit her children for significant periods of time. In addition, in

contrast to the father in S.B. making his daughter's needs a priority, Connie displayed an

inability to provide adequate physical and emotional care to her children, even within the

confines of supervised visitation. Further, the children in this case separated easily from

Connie at the end of visits. Finally, Connie presented no affirmative evidence to support

the application of the exception, unlike the father in S.B., supra, 164 Cal.App.4th at pages

295-296, who presented a bonding study, during which the daughter spontaneously told

the father that she loved him.

2. There is substantial evidence to support a finding that Michael did not meet
either prong of the beneficial relationship exception

With respect to Michael, the trial court found that he had a "sporadic and episodic"

relationship with the children, due to the fact that Michael had been "in and out of

custody" during much of the time the children had been detained. To the extent the trial

court was making a finding that Michael failed to demonstrate that he had maintained

regular visitation and contact with the children, we conclude that such a finding is

supported by substantial evidence.

Michael was in custody in March 2012, when the petitions in this case were filed

and the children were initially detained. He was released approximately seven months

later, in October 2012, and he visited with the children frequently for a period of time.

However, as of the start of 2013, Michael's visitation with the children dropped off. He

saw the children only approximately three times between January 2013 and August 2013,

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even though he had been "reminded consistently that he could have visits anytime at the

home of [the caregiver]." Michael then returned to custody as of August 2013, and he

was released in December 2013. During this detention period, Michael called the

caretaker's home on at least one occasion and spoke to M.A. about school. L.A. was too

young to engage in a telephone conversation. An Agency staff person took the children

to visit with Michael at the detention facility in October 2013. After his release in

December 2013, Michael visited with the children during the week of Christmas. In

January 2014, the caregiver ran into Michael at a taco shop and he told her that he was

having medical issues and that was why he had not been visiting. Michael then started

visits with the children at the Family Visitation Center on January 13, 2014. He had a

visit on January 13, and another on January 27. On February 10, Michael was again

arrested after violating the terms of his probation; his services at the Family Visitation

Center were terminated as of February 11, after he missed three visits, at least two of

which were to have occurred prior to his rearrest. During his detention after the February

10 arrest, Michael failed to contact the social worker about arranging visits with the

children. His attorney made a request in late March 2014.

Irrespective of Michael's recurring incarceration, at a number of points during this

process, Michael failed to maintain consistent visitation with the children or even make

telephone contact with the children and/or their caregiver. There is thus substantial

evidence to support a finding that Michael did not maintain regular contact and visitation

with the children, such that he could meet the first prong of the beneficial relationship

exception. We also conclude that there is substantial evidence to support the trial court's

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finding that the children's relationship with Michael was not of a sufficiently beneficial

nature as to outweigh the well-being the children would gain in a permanent home with

new, adoptive parents. (See Autumn H., supra, 27 Cal.App.4th at p. 575.)

Again, the children were very young when removed from their parents care, and

Michael had been incarcerated even prior to the time the children were removed. The

children had spent nearly the entirety of their young lives being cared for by someone

other than Michael. With respect to L.A., the record demonstrates that although L.A.

enjoyed spending time with Michael, he occupied the role of a friendly visitor in her life,

not that of a parent. During some visits, L.A. did not talk to Michael, and on at least one

occasion, Michael decided to end the visit with her after 10 to 15 minutes because she

was not talking. Michael sometimes failed to properly supervise the children during

visits that did not take place at the detention center, and failed to "notice safety concerns."

L.A. separated easily from Michael at the end of their visits. The record demonstrates

that there is substantial evidence to support a finding that Michael's relationship with

L.A. was not parental in nature, and the relationship did not "promote[] the well-being of

[L.A.] to such a degree as to outweigh the well-being the child would gain in a permanent

home with . . . adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Although the evidence demonstrated that Michael had a relatively closer

relationship with M.A. than he did with L.A., there was still abundant evidence to support

the trial court's finding that the relationship between M.A. and Michael was not one that

has resulted in a significant, positive, emotional attachment from child to parent. For

example, although M.A. would become upset at the conclusion of visits with Michael

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early on, he had no trouble separating from Michael at the end of most visits, and had not

been distressed about separating at the conclusion of visits since August 2013. In

addition, Michael failed to inquire about M.A.'s general well-being or his therapy

between visits. An Incredible Families therapist was of the opinion that Michael still

needed to improve on basic parenting tasks, like attending to his children, setting limits,

praising M.A., and modeling good behavior. During some visits, Michael would yell at

M.A. At other visits, Michael would threaten to discipline M.A. but fail to follow

through. There was also evidence that Michael would sit on the couch and fail to

properly manage his children during the visits.

If adopted, the children would gain a sense of stability that Michael has been

unable to provide, given his lack of consistent contact and his repeated incarcerations and

failure to fulfill his probation obligations. Substantial evidence therefore supports a

finding that Michael's relationship with M.A. was not as a parent caring for M.A. and

meeting his needs for daily life, and that the relationship did not "promote[] the well-

being of [M.A.] to such a degree as to outweigh the well-being the child would gain in a

permanent home with [his] adoptive parents." (Autumn H., supra, 27 Cal.App.4th at

p. 575.)

To the extent that Michael contends that S.B., supra, 164 Cal.App.4th 289

supports his contention that the trial court erred in terminating his parental rights, we

reject such a contention. Unlike the father in S.B., who complied with all of the

requirements of his case plan, Michael continued to use drugs and violate the terms of his

probation, resulting in recurring incarceration, throughout the entire dependency.

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Further, there is no evidence that Michael has put the children's needs first. In addition,

Michael has questioned the need for Agency and court involvement, and did not appear

to understand the seriousness of the incident that led to the petitions being filed as to the

children. Instead, Michael stated that when he was a child, kids could play outside—an

apparent reference to two-year-old M.A. being found alone in the street. Further, the

children separated easily from Michael as of August 2013, and Michael, like Connie,

presented no affirmative evidence to support the application of the exception, whereas the

father in S.B., supra, 164 Cal.App.4th at pages 295-296 presented a bonding study

demonstrating the strength of his relationship with his daughter.

In sum, there is substantial evidence to support the trial court's determination that

the beneficial relationship exception to adoption did not apply to prevent the termination

of Michael's parental rights to either M.A. or L.A.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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