In re Jeremiah L. CA4/1

Filed 6/22/15 In re Jeremiah L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 JEREMIAH L., a Person Coming
Under the Juvenile Court Law.
D067242
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J517704A-B)
Plaintiff and Respondent,

v.

G.L.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
 Dependency Legal Group of San Diego and Tilisha Martin for Minor.

G.L. (Mother) appeals from an order of the juvenile court terminating her parental

rights to her children Jeremiah and Jasmine (the children). Mother's sole contention on

appeal is that the juvenile court erred in concluding that she did not establish the

applicability of the beneficial relationship exception to termination of parental rights and

adoption found in Welfare and Institutions Code section 366.26, subdivision

(c)(1)(B)(i).1 We conclude the juvenile court did not err, and we accordingly affirm the

order terminating Mother's parental rights.

I

FACTUAL AND PROCEDURAL BACKGROUND

Jeremiah, who was born in October 2009, has been the subject of two juvenile

dependency petitions by the San Diego County Health and Human Services Agency (the

Agency) under section 300.

The first petition was filed in January 2010 when Jeremiah was two months old.

As a result of a domestic violence incident between Mother and Jeremiah's father in

which Jeremiah was put into physical jeopardy, Jeremiah was removed from Mother's

care and placed in licensed foster care. Mother was successful in making progress on her

case plan, and Jeremiah was placed back in Mother's home in April 2011. The juvenile

court terminated jurisdiction over the first juvenile dependency case in October 2011.

1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.

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 Meanwhile, Jeremiah's sister, Jasmine, was born in December 2010. During

Jeremiah's first juvenile dependency case, the Agency reported that there were no

indicators of concern regarding Mother's ability to parent Jasmine.

A second juvenile dependency petition, which concerned both Jeremiah and

Jasmine, was filed in December 2012. The petition alleged that while under the influence

of methamphetamine, Mother demonstrated psychotic behavior when she jumped off a

second floor balcony while holding two-year-old Jasmine, believing that she had to

escape from someone who wanted to kill her. Mother was placed on a 14-day psychiatric

hold in the hospital due to her continued psychotic behavior, and the children were

detained in out-of-home care. Mother was discharged from the psychiatric unit on

January 3, 2013.

At a March 2013 hearing, the juvenile court declared the children to be dependents

of the court, removed them from Mother's custody and ordered that Mother be provided

services by the Agency.2 The children were placed in a licensed foster home.

At the contested six-month review hearing in November 2013, the juvenile court

found that Mother had made some progress with her case plan, but continued the children

in the foster home placement where they had resided since March 2013. The Agency's

2 The children's presumed father, B.M. (Father), who was also a party to the
dependency proceedings, was provided with services and visitation and had his parental
rights terminated as well. Father has not filed an appeal from the juvenile court's order
terminating his parental rights, and Mother makes no argument challenging the ruling as
to Father. We accordingly need not, and do not, discuss Father's role in the dependency
proceedings.

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report for the hearing stated that Mother had been transported to the emergency

psychiatric unit for evaluation six times between March and May 2013; had begun, but

not completed, three drug treatment programs; and was currently enrolled in a fourth

program, during which she had positive drug and alcohol tests. Mother had also not

completed a parenting education program.

The juvenile court held a contested 12-month review hearing over several days in

April and May 2014. The Agency's report for the 12-month review hearing stated that

Mother had not made substantial progress toward mitigation of the protective risks that

brought the children to the attention of the Agency. According to the Agency, Mother

did not understand the reason for the removal of the children and continued to lack

insight into the protective issues. The Agency accordingly recommended termination of

services.

Regarding the type of relationship that Mother had with the children, at the time of

the 12-month review hearing, Mother was receiving twice-weekly supervised visitation

with the children, during which she showed difficulty managing the children's activities

and behavior. Among other things, the social worker stated in a February 2014 report

that during visitations, Mother appeared unable to redirect the children and was

confrontational and argumentative with staff and the foster parents in front of the

children. Mother had shown that she could play with the children, but not that she could

keep them safe. When Mother was busy with the one child, the other child turned to the

visitation supervisors for comfort.

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 The Court Appointed Special Advocate for the children reported in February 2014

about visitations she had observed between Mother and the children. As she described in

that report, the children were taking longer to warm up to Mother during visits, and

Jeremiah would seldom give Mother a hug or allow her to hold his hand while crossing

the parking lot. During a visit when Jeremiah was sick, he did not want Mother to hold

him.

As the social worker described in an April 9, 2014 addendum report, "at nearly

every visit, the mother either loses si[ght] of her children or is unable to redirect and

encourages their unruly behavior. She relies on [Agency] supervisors to watch her

children. She has permitted her children to hit her, spit at her, step on her foot, and refuse

to follow her directions, with little o[r] no consequence." "The mother has also

intentionally disengaged from and ignored the children, taking a personal 'time out', when

she is stressed or overwhelmed."

The juvenile court found there was not a substantial probability that the children

would be returned to Mother's physical custody by the 18-month review hearing, and it

therefore terminated reunification services and scheduled a permanency planning hearing.

The permanency planning hearing was held on December 31, 2014. Mother stated

she was requesting that the juvenile court select guardianship with continued visitation

rather than adoption as a permanent plan because she loved her children and would

eventually like to reunify with them. Mother believed she had a bond with the children

that would make the beneficial relationship exception to adoption applicable to her case.

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 As stated in the social worker's reports, Mother's visits had not progressed to

unsupervised. Although Mother was allowed to telephone the children, she never did so.

Mother had been hospitalized in the psychiatric unit from July 18 to July 28, 2014, due to

paranoid behavior, and thus missed visits during that time. Upon admission to the

hospital, Mother tested positive for methamphetamine and other drugs. Mother again

missed visits in September 2014 due to hospitalization and reported also being in the

hospital on certain dates in October and November 2014. Mother also missed or

cancelled visits on several occasions when she was not hospitalized.

At the permanency planning hearing, the social worker testified that she had

observed visits between the children and Mother since early July 2014. The children

were excited to see Mother during the visits and responded positively to her. The

children have an attachment to Mother, but when the foster parents arrived, the children

were ready to go, as their primary relationship is with the foster parents. The social

worker testified that stability was important for the children, since both were very young

and this was Jeremiah's second dependency. The social worker believed that the

children's need for stability outweighed whatever attachment they had to Mother. The

same opinion was expressed in the social worker's report, which stated that "[a]lthough

the children have enjoyed visits with [Mother], this relationship does not outweigh the

stability they would receive in an adoptive home."

The report of the Court Appointed Special Advocate for the children stated that

she had observed two visits in August 2014, during which Mother did not engage the

children, who played independently of Mother.

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 By the time of the December 31, 2014 permanency planning hearing, the children

were four and five years old and had been living in the foster parent's home for 21

months, since March 2013. The foster parents were interested in adopting the children.

As the social worker observed, the children were securely attached to the foster parents.

The juvenile court ruled that Mother did not meet her burden to establish the

beneficial relationship exception to adoption. The juvenile court observed that Mother

had "regular," visits with the children,3 but the evidence did not indicate a strong parental

bond that would be harmed if the relationship was terminated. The juvenile court

explained that it appeared Mother and the children loved each other, and the "visits are

nice, the children have fun[ and] there is affection shown." Nevertheless because the

visits did not progress beyond supervised visitation and Mother's personal issues

interfered with her ability to expand the relationship with her children and engage in

more frequent unsupervised visits, "it is not a relationship that rises to the level of such

weight that the court cannot terminate it because of harm to the children." Further, the

juvenile court explained that the children desperately needed stability after their history in

the juvenile dependency system, and adoption would provide that stability rather than a

permanent plan of guardianship, which Mother was advocating.

The juvenile court found that the children were likely to be adopted and selected a

permanent plan of adoption, terminating Mother's parental rights.

3 The juvenile court noted, however, that although the visits were regular, they were
not "frequent" or "consistent."

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 II

DISCUSSION

The Juvenile Court Did Not Err in Concluding That Mother Failed to
Establish the Applicability of the Beneficial Relationship Exception to Adoption

The sole issue presented in Mother's appeal is whether the juvenile court erred in

concluding that the beneficial relationship exception to adoption was not established.

A. Applicable Law

At a permanency planning 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,

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

child under one of several statutory exceptions. (In re Michael G. (2012) 203

Cal.App.4th 580, 589.) One of these statutory exceptions is the beneficial relationship

exception to adoption, which applies when it would be detrimental to the child to

terminate parental rights in that "[t]he parents have maintained regular visitation and

contact with the child and the child would benefit from continuing the relationship."

(§ 366.26, subd. (c)(1)(B)(i), italics added.) The burden is on the party seeking to

establish the beneficial relationship exception to produce evidence establishing the

exception is applicable. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)

Once the juvenile court finds that a parent has met his or her burden to establish the

requirements of the beneficial relationship exception are present, the juvenile court may

chose a permanent plan other than adoption if it finds the beneficial relationship to be "a

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compelling reason for determining that termination would be detrimental to the child."

(§ 366.26, subd. (c)(1)(B); see Bailey J., at p. 1314.)

We apply a substantial evidence standard of review to a juvenile court's findings

on whether the requirements for the beneficial relationship exception have been

established. (Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)4

B. The Evidence Supports the Juvenile Court's Determination That Mother Did Not
Have a Beneficial Relationship with the Children

As we have explained, to show the applicability of the beneficial relationship

exception to adoption, Mother was required to establish that she had a relationship with

the children that they would benefit from continuing. Here, substantial evidence supports

the trial court's finding that Mother did not establish the existence of a such a

relationship.5

4 As the Agency notes, there is some debate in recent case law on the proper
standard of review regarding the beneficial relationship exception. In In re J.C. (2014)
226 Cal.App.4th 503, the court applied the substantial evidence standard of review to the
factual issues of whether the parent maintained regular visitation and contact with the
child and whether the parent proved he or she had a beneficial parental relationship with
the child. However, as to the weighing test, in which the juvenile court balances the
strength of the parent-child relationship against the benefits the child would derive from
adoption to decide whether the relationship is a compelling reason to chose a permanent
plan other than adoption, the abuse of discretion test applied to "[t]his
' ". . . quintessentially" discretionary decision.' " (Id. at p. 531; see Bailey J., supra, 189
Cal.App.4th at pp. 1314-1315.) We need not take a position on that issue, as the juvenile
court here did not find a beneficial parental relationship.

5 The other requirement for the application of the beneficial relationship exception
is regular visitation by the parent. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643
["Overcoming the statutory preference for adoption and avoiding the termination of
parental rights requires the parent to show both that he or she has maintained regular
visitation with the child and that the child would benefit from continuing the
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 The statutory phrase "benefit from continuing the relationship" (§ 366.26, subd.

(c)(1)(B)(i)) refers to a parent-child relationship that "promotes the well-being of the

child to such a degree as to outweigh the well-being the child would gain in a permanent

home with new, adoptive parents. In other words, the court balances the strength and

quality of the natural parent[-]child relationship in a tenuous placement against the

security and the sense of belonging a new family would confer. If severing the natural

parent[-]child relationship would deprive the child of a substantial, positive emotional

attachment such that the child would be greatly harmed, the preference for adoption is

overcome and the natural parent's rights are not terminated." (Autumn H., supra, 27

Cal.App.4th at p. 575.)

To meet the burden of proof to establish a beneficial relationship, "the parent must

show more than frequent and loving contact, an emotional bond with the child, or

pleasant visits — the parent must show that he or she occupies a parental role in the life

relationship."].) "Regular visitation exists where the parents visit consistently and to the
extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) Here,
although the juvenile court's ruling could have been more precisely expressed, the court
appears to have found that Mother engaged in regular visitation with the children by
stating that the "court agrees that the parents have had regular visits." We acknowledge,
however, as the Agency points out, that there is some uncertainty regarding the juvenile
court's findings on regular visitation, as the juvenile court also stated that although
Mother's visits were regular they were not "frequent" or "consistent" and didn't "help the
relationship to grow."
We need not, and do not, resolve the ambiguity in the juvenile court's finding on
regular visitation or determine whether the finding is supported by substantial evidence,
as we affirm the trial court's ruling rejecting the applicability of the beneficial
relationship exception to adoption on another ground. Specifically, we conclude that
Mother did not establish she had the type of parental relationship with the children that
satisfied the requirements of the beneficial relationship exception, regardless of whether
she engaged in regular visitation.
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of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527; see In re Jason J. (2009)

175 Cal.App.4th 922, 936-937 (Jason J.); In re Derek W. (1999) 73 Cal.App.4th 823, 827

(Derek W.).) The evidence must establish more than merely "a loving and happy

relationship" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419), and the parent must

be more than " 'a friendly visitor.' " (Jason J., at p. 938.) "A child who has been

adjudged a dependent of the juvenile court 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. (2002) 97

Cal.App.4th 454, 466.) "It is only in an extraordinary case that preservation of the

parent's rights will prevail over the Legislature's preference for adoptive placement." (In

re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

Here, although it was undisputed that Mother and the children had a loving

relationship, substantial evidence supports the juvenile court's findings that it was not a

beneficial parent relationship within the meaning of the statutory exception to adoption.

As we have explained, the social worker reported that Mother generally had pleasant and

positive visits with the children, but evidence showed that the children did not look to her

to meet the type of needs a parent would satisfy. There was evidence that Mother did not

fully engage with the children during visits, had difficulty managing and parenting the

children during the visits, and the children did not look to her for support. The children

generally separated easily from Mother, and their primary attachment was with the foster

parents, who had cared for them for 21 months at the time of the permanency planning

hearing.

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 Based on this evidence, the juvenile court reasonably could conclude that Mother

did not establish that she "occupies a parental role in the life of the child" (In re I.W.,

supra, 180 Cal.App.4th at p. 1527), and that Mother's relationship to the children "bears

no resemblance to the sort of consistent, daily nurturing that marks a parental

relationship." (Derek W., supra, 73 Cal.App.4th at p. 827.) The beneficial relationship

exception does not apply, as "[t]here is no evidence [the children] ha[ve] any needs only

[Mother] can satisfy, or that [they] ha[ve] the type of emotional attachment to [Mother]

that would cause [the children] to be greatly harmed if parental rights were terminated."

(Jason J., supra, 175 Cal.App.4th at p. 938.)

We accordingly conclude that Mother has not successfully shown that substantial

evidence does not support the juvenile court's determination that the beneficial

relationship to adoption is inapplicable here.

DISPOSITION

The order terminating Mother's parental rights is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

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