Filed 9/10/15 In re N.B. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re N.B. et al., Persons Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
                                                                         E063310
         Plaintiff and Respondent
v.                                                                       (Super.Ct.Nos. J251000 & J25100l)
A.G.,
                                                                         OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

         Jack A. Love, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel and Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.




                                                             1
       A.G., the mother of Niv.B., age two, and Nik.B., age three, appeals from a

judgment terminating her parental rights, pursuant to Welfare and Institutions Code,1

section 366.26. Mother lost custody of the children after an initial period of family

maintenance services due to a drug relapse and her arrest for theft. Two months before

the hearing pursuant to section 366.26, mother participated in online parenting and anger

management classes, and filed a petition for modification of the prior order terminating

services (§ 388), to be heard on the date of the 366.26 hearing. At the hearing, the court

denied the section 388 petition and terminated parental rights. Mother appeals.

       On appeal, mother argues that the order terminating parental rights must be

reversed because the juvenile court erred in finding there was no beneficial parent-child

relationship. We affirm.

                                     BACKGROUND2

       The family first came to the attention of the San Bernardino County Children and

Family Services (CFS) on August 8, 2013, upon a referral alleging the children, Niv.B.,

age 10 months, and Nik.B., age 22 months, had been physically abused and severely

neglected. A social worker responding to the referral found no evidence of abuse, there

was adequate food, and the children appeared to be safe with the parents. Two more



       1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

       2Because father is not a party to this appeal, only limited references to him are
provided, and only as necessary.


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follow up visits led CFS to file a petition on behalf of the children based on the parents’

admitted use of controlled substances.

       Mother admitted she had a long history of using drugs, and tested positive for

marijuana and methamphetamine. Mother also acknowledged she had been diagnosed

with bipolar disorder and possible schizophrenia, for which she was not taking

medication. The social worker provided the parents with drug referrals, but did not take

the children into temporary custody because the children appeared safe. On September 3,

2013, CFS filed a dependency petition pursuant to section 300, subdivision (b), based on

the parents’ inability to provide regular care due to mental illness and substance abuse.

       On October 1, 2013, the children were detained by CFS after both parents

admitted using drugs and the children appeared unkempt. On November 4, 2013, at the

contested jurisdictional/dispositional hearing, the court sustained the petition, declared

the children to be dependents, removed custody from the father, but placed the children

with their mother under a family maintenance plan.

       On February 18, 2014, CFS filed supplemental petitions pursuant to section 387

on the grounds that the prior disposition of family maintenance had been ineffective in

the protection of the children where mother had abused drugs, was arrested for

shoplifting, and had used inappropriate discipline on Nik.B. The children were detained

with a paternal uncle and his girlfriend. On April 2, 2014, the court found that the

children came within the provisions of section 387 in that the previous disposition had




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been ineffective in the protection of the minors, removed the children from mother’s

custody, and ordered the parents to participate in court ordered reunification services.

       At the time of the six month review report, the prognosis for reunification was

guarded because mother had relapsed and had only begun drug treatment in March 2014.

Father had completed his service plan, but still lived with his mother. During visits, the

children were happy to see mother, who played with them and brought food and snacks.

Both parents were described as appropriate in their discipline of the children and changed

their diapers when needed. At the six-month review hearing, the court found mother’s

progress was moderate, and extended reunification services.

       On October 9, 2014, the social worker submitted a 12-month review report, in

which CFS recommended terminating reunification services. Mother had a myriad of

problems relating to her bipolar disorder and schizophrenia which led to conflicts with

everyone in her life, and ultimately to discharge from her substance abuse program. She

had not completed any services. Mother was also dishonest in reporting her progress in

programs.

       The social worker also noted that mother exercised poor judgment: she had a new

boyfriend, by whom she was pregnant, and lived with the boyfriend along with his ex-

girlfriend and the three children from that relationship. She also came to the CFS office

for a meeting with her social worker bringing the 11-month old dependent child of

another woman, whom mother claimed to be babysitting. The report observed that

mother loved her children and wanted to reunify, but her poor impulse control made it



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unlikely she would be able to care for three children, particularly since Nik.B. appeared

to be autistic. Aside from commenting that mother visited weekly with the children, the

social worker made no observations about the quality of the parent-child relationship.

       On November 4, 2014, the court conducted the 12-month review hearing pursuant

to section 366.21, subdivision (f), at which the court found by clear and convincing

evidence that the parents had failed to regularly participate in the court ordered treatment

plan, terminated reunification services, and set a selection and implementation hearing

pursuant to section 366.26.

       On February 20, 2015, the social worker submitted a report pursuant to section

366.26, recommending a permanent plan of adoption. By this time, both children were

found to be developmentally delayed and Nik.B. was diagnosed with autism. Between

November 4, 2014 and the date of the section 366.26 report, a period of about three

months, mother had visited only twice. During visits, mother interacted with the children

appropriately. However, there was a mutual attachment between the children and their

adoptive parents, who were committed to adoption, and whom the children considered

parent figures. Nik.B. cried when his uncle (the adoptive father) left for work in the

morning.

       On March 13, 2015, mother filed a petition requesting modification of the prior

order pursuant to section 388. In the petition, mother alleged her circumstances had

changed in that she was seeking therapy and psychiatric help, and she had obtained

certificates for parenting education and anger management. By way of showing how the



                                             5
proposed modification would be in the children’s best interests, mother stated that the

requested order would be better “for [the] child because the child belongs in mother’s

care.”

         Attached to mother’s petition were exhibits: a page from a prescription pad of

Exodus Recovery, Inc., on which a psychiatrist handwrote a memo indicating mother had

undergone a psychiatric evaluation on March 8, 2015 at Exodus Urgent Care, she was

pregnant, no medication was indicated at that time, and that after delivery, mother can

pursue outpatient services. Also attached was a document indicating mother had enrolled

in the Open Path Psychotherapy Collective online Parenting Skills course on March 4,

2015, and a certificate of completion of that course dated February 14, 2015, predating

mother’s enrollment. Additional documents reflected mother had enrolled in the Open

Path Psychotherapy Collective online Anger Management course on March 4, 2015, and

received a certificate of completion bearing the same date.

         CFS filed a response recommending denial of the petition because there was no

way to assess whether mother had learned any parenting or anger management skills

from the online courses other than her conduct at the visits. As to mother’s visits, the

social worker had noticed no change in mother’s approach to parenting or anger

management. Mother’s approach to parenting and anger management had resulted in

stressful or uneasy moments with the children; mother became impatient with the

children’s need to go to the toilet, yelled at Niv. B. when the latter touched her phone,

and grabbed Nik.B. aggressively by the wrist when he had an emotional outburst.



                                              6
         Mother still had not addressed her substance abuse, which was one of the main

factors in the original intervention, and she had not submitted to random drug testing so it

was not possible to determine if she was clean. The social worker acknowledged that the

children appeared to have a bond with mother and the maternal great-grandmother, but

noted they referred to mother by her first name, and called their caregivers “mom” and

“dad.”

         On April 7, 2015, the court heard the section 388 petition and the section 366.26

hearing. The court found there was no change of circumstances and denied the request

for modification. The court found by clear and convincing evidence that the children

were adoptable and that mother had failed to establish a parent-child bond sufficient to

override the permanency of adoption. Mother appealed.

                                            DISCUSSION

         On appeal, mother argues that the juvenile court erred when it failed to apply the

beneficial parent-child relationship exception to finding of adoptability, insofar as mother

maintained regular contact with the children through weekly visitation, and it would be

detrimental to terminate parental rights. We disagree.

         Section 366.26, subdivision (c)(1), provides that if the court determines, based on

the [adoption] assessment and any other relevant evidence, that it is likely the child will

be adopted, the court shall terminate parental rights and order the child placed for

adoption, unless one of several statutory exceptions applies. This reflects a statutory

preference to terminate parental rights and order a child placed for adoption. (In re C.B.



                                               7
(2010) 190 Cal.App.4th 102, 121.) Once the court determines a child is likely to be

adopted, the burden shifts to the parent to show that termination of parental rights would

be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B).

(In re Zachary G. (1999) 77 Cal.App.4th 799, 809, citing In re Lorenzo C. (1997) 54

Cal.App.4th 1330, 1343-1345.)

       Under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be

terminated if the juvenile court finds a compelling reason for determining that

termination of parental rights would be detrimental to the child because the parents have

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

continuing the relationship. (In re C.B., supra, 190 Cal.App.4th at pp. 123-124.) This

section does not require proof the child has a “primary attachment” to the parent or that

the parent has maintained day-to-day contact with the child. (In re S.B. (2008) 164

Cal.App.4th 289, 299.)

       However, the exception applies only when the relationship with a natural parent

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.) The determination of whether a beneficial parent-child

relationship exists is reviewed for substantial evidence. (In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314.)

       To overcome the preference for adoption and avoid termination of the natural

parent’s rights, the parent must show that severing the natural parent-child relationship



                                             8
would deprive the child of a substantial, positive emotional attachment such that the child

would be greatly harmed. (In re Angel B. (2002) 97 Cal.App.4th 454, 466 [emphasis by

court], citing In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1332, 1342.) The factors to

be considered when looking for whether a relationship is important and beneficial are:

(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3)

the positive or negative effect of interaction between the parent and the child, and (4) the

child’s particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see also, In re

Bailey J., supra, 189 Cal.App.4th at p. 1315.)

       Here, at the beginning of the dependency, mother visited regularly and the

children were reported to share a bond with the parents. However, during the four month

period leading up to April 7, 2015, the date of the section 366.26 hearing, mother visited

only twice. This contradicts mother’s testimony that she maintained regular weekly

contact and visitation throughout the dependency period. Mother failed to establish the

first prong of the beneficial parent-child relationship exception.

       As to the second prong, mother did not present any evidence that her relationship

promoted the well-being of the children to such a degree as to outweigh the well-being

the child would gain in a permanent home with new, adoptive parents. Her testimony

that the children called her “mom” must be considered in context, where it appears they

also called their paternal uncle “dad,” and the aunt “mom.” Additionally, while mother

indicated that in the past Nik.B. would be upset when the visits ended, currently the

children did not get upset at the end of visits.



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      Considering the special needs of the children, their very young ages, and the

commitment of the adoptive parents to meet their needs, we do not find that the mother-

child relationship promotes the well-being of the children to such a degree as to outweigh

the well-being they would gain through adoption. There is substantial evidence

supporting the judgment terminating parental rights.

                                         DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                              RAMIREZ
                                                                                      P. J.


We concur:

HOLLENHORST
                          J.

CODRINGTON
                          J.




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