Filed 3/13/15 In re Brianna P. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re BRIANNA P. et al., Persons Coming
Under the Juvenile Court Law.
                                                                 D066530
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J518405A-B)
         Plaintiff and Respondent,

         v.

T.S.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee

A. Lagotta, Judge. Affirmed.

         Tungsten Legal and Elena S. Min, under appointment by the Court of Appeal, for

Defendant and Appellant.

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

Counsel, and Patrice Montgomery, Deputy County Counsel, for Plaintiff and Respondent.
       T.S. appeals the judgment terminating her parental rights to her children, Brianna

P. and Daniel P., Jr. (we refer to Daniel P., Jr. as Daniel and to Brianna and Daniel

together as the children). T.S. contends the juvenile court erred by declining to apply the

beneficial relationship exception (Welf. & Inst. Code,1 § 366.26, subd. (c)(1)(B)(i)) to

termination of parental rights. We affirm.

                                     BACKGROUND

       Brianna was born in September 2009, when T.S. was a 15-year-old juvenile court

dependent. Daniel was born in April 2011, when T.S. was 17 years old and still a

juvenile court dependent. The children's father is Daniel P., Sr. (Daniel Sr.). Beginning

in 2010, there were a number of child welfare referrals regarding the family. The

referrals stemmed from ongoing domestic violence and other issues. The San Diego

County Health and Human Services Agency (the Agency) offered voluntary services and

safety plans, to no avail.

       In May 2012 the Agency filed dependency petitions for two-and-one-half-year-old

Brianna and one-year-old Daniel. The petitions alleged the children were exposed to

violent confrontations between Daniel Sr. and T.S. The petitions also alleged that in

April Daniel Sr. brought the children to the Child Welfare Office.

       The children were detained in Polinsky Children's Center. Two days later, they

were moved to an emergency shelter home. Daniel was hospitalized for three days due to

severe eczema.



1      All further statutory references are to the Welfare and Institutions Code.
                                             2
       In May 2012 the court made true findings on the petitions, ordered the children

placed in a foster home and ordered reunification services. In July the children were

moved to a foster home. Three days later, the children were removed from the foster

home at the caregiver's request. The children were detained in Polinsky Children's

Center for less than a day, then moved to a new foster home where they remained for the

rest of the case.

       T.S. made minimal progress in services. She entered into a relationship with

Daniel E. that resulted in the birth of her third child in April 2013. The baby became a

juvenile court dependent due to violence between T.S. and Daniel E.

       At the 18-month hearing in January 2014, the court terminated T.S.'s services and

set a section 366.26 hearing. The section 366.26 hearing took place in August.

                                      DISCUSSION

       T.S. does not contest the finding the children are adoptable. If a dependent child is

adoptable, the court must terminate parental rights at the section 366.26 hearing unless

the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re

Helen W. (2007) 150 Cal.App.4th 71, 80-81.) An exception exists if "[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).) A beneficial 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.) If terminating parental rights "would deprive the child

of a substantial, positive emotional attachment such that the child would be greatly

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harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a

beneficial relationship is determined by considering "[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 . . . ." (Id. at p. 576.)

Examining the evidence in the light most favorable to the judgment (ibid.), we conclude

substantial evidence supports the court's findings. The court found that initially visits

were inconsistent, but visits became more consistent and were sometimes chaotic and

sometimes positive. The court found the children did not view T.S. as a parent; rather,

the children viewed their caregivers as their parents. The court concluded there was not a

parent-child bond such that termination of parental rights would be detrimental to the

children.

       T.S.'s visits with the children were supervised for most of this case. For the first

year, T.S. did not take advantage of all of the visits she was offered. In October 2012 the

court gave the Agency discretion to allow unsupervised visits with notice to the children's

counsel and, with the concurrence of the children's counsel, overnight visits and a 60-day

trial visit. Unsupervised visits began in June 2013 and overnight visits began on July 27.

On July 29 the children were exposed to domestic violence between T.S. and Daniel E.

The Agency suspended unsupervised and overnight visits. In September the court

reinstated the supervision requirement and gave the Agency discretion to allow

unsupervised visits with notice to the children's counsel. All subsequent visits were

supervised. Beginning in August, T.S. visited consistently, for the most part, although

she was sometimes late.

                                                4
       During visits, T.S. sometimes acted as a parent and behaved appropriately and

affectionately. At other times, she displayed ignorance of appropriate parenting

techniques and had difficulty managing the children. She fluctuated between being

attentive to their needs and being unaware of what they were doing. The children

sometimes appeared happy to see T.S. and sometimes appeared ambivalent. The children

did not express distress at the close of visits. They did not view T.S. as an authority

figure and frequently asked other adults for assistance during visits. Brianna expressed

love for T.S. and fear of her.

       The children's exposure to domestic violence had caused them emotional harm.

As a result, they suffered from anxiety, displayed traumatized behavior and were in

therapy. Daniel behaved aggressively, engaged in "self injurious behavior," and had

trouble following directions. He vomited when anxious or upset. Before visits, he often

displayed regressive behavior. After visits, he refused to eat and exhibited other

behavioral difficulties. Brianna could be impulsive and angry, and displayed behavior

consistent with sexual abuse.2 Before visits, the children became anxious. They

expressed unwillingness to visit with T.S. and sought reassurance that they would return

to the foster home after visits.

       By the time of the section 366.26 hearing, nearly five-year-old Brianna and three-

year-old Daniel had been out of T.S.'s care for more than two years four months. The



2      In April 2012, while Brianna was still in T.S.'s care, there was a report that
Brianna had been sexually abused by one of T.S.'s boyfriends, Daniel M. The allegation
could not be substantiated.
                                             5
children had lived with their foster parents for more than two years. The children were

attached to the foster parents and called them "mommy" and "papi." The foster parents

were loving, cognizant of the children's many needs and fulfilled those needs. The foster

parents wished to adopt the children. The children were thriving in the foster parents'

care and needed the stability, permanence and safety of adoption.

       T.S. relies on In re S.B. (2008) 164 Cal.App.4th 289, in which this court

concluded the juvenile court erred by declining to apply the beneficial relationship

exception. (Id. at p. 301.) That case is distinguishable. There, the appellant father

"complied with 'every aspect' of his case plan" and placed the child's needs above his

own. (Id. at p. 298.) The child displayed a strong attachment to the father (id. at p. 298),

"became upset when the visits ended and wanted to leave with [him]" (id. at p. 294).

They "had an emotionally significant relationship." (Id. at p. 298.)

                                      DISPOSITION

       The judgment is affirmed.


                                                                                 NARES, J.

WE CONCUR:


BENKE, Acting P. J.


O'ROURKE, J.




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