Filed 12/10/13 In re A.R. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.R., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E059391

         Plaintiff and Respondent,                                       (Super.Ct.No. J238341)

v.                                                                       OPINION

D.R.,

         Defendant and Appellant.



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

Judge. Affirmed.

         Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and

Appellant.


         Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County


                                                             1
Counsel, for Plaintiff and Respondent.

                                             I

                                    INTRODUCTION

       Mother appeals from an order terminating her parental rights pursuant to Welfare

and Institutions section 366.26.1 Mother argues the juvenile court’s failure to apply the

beneficial parent-child relationship exception to adoption requires reversal. We reject

mother’s appeal and affirm the judgment.

                                             II

                  FACTUAL AND PROCEDURAL BACKGROUND

       A.R., the subject of this appeal, was born in October 2009. He is presently four

years old. His father is G.R. Mother’s other two children are not the subject of this

appeal because they are living with their father, A.L.

A. Detention

       The original dependency petition was filed by CFS2 in April 2011. It alleged

failure to protect and no provision for support (§ 300, subds. (b) & (g)) based on mother

not providing safe and adequate housing or supervision and allowing access to harmful

medications. The petition also alleged mother had a prescription drug problem. A.R.’s

       1  All further statutory references are to the Welfare and Institutions Code unless
stated otherwise.
       2 Children and Family Services, San Bernardino County.




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older half-sister had sustained a black eye and facial bruising from G.R., who had a

history of anger management issues. Mother was incarcerated for child endangerment.

(Pen. Code, § 273a.)

       In the detention report , CFS stated that mother had left A.R. and his two half-

siblings, ages six and eight, alone at night for about an hour. Mother had been detained at

3:00 a.m. during a narcotics investigation at another location conducted by the San

Bernardino County Sheriff and the criminal investigative division of the 29 Palms Naval

Base. Mother claimed the three children were with a friend. Instead, the officers

discovered the children alone with the front door unlocked, the home in an unsanitary

condition, and excessive amounts of drugs, including “Triple C” and Ecstasy. A German

shepherd was present and the home was in disarray and had a strong odor of urine. The

bathroom smelled of urine and the floor had urine stains. The toilet was dirty. A.R. was

in a crib soaked with urine and sour milk. He was wheezing because he was asthmatic.

Mother appeared to be engaged in prostitution. G.R. had been deployed to Afghanistan.

       The family’s previous history included referrals for abuse and neglect in May and

June 2009, March 2010, and February 2011. Mother was suspected of using her older

son’s prescription medicine. The family received maintenance services from June 2009

until March 2010.

       The juvenile court found a prima facie showing had been made and ordered the

children detained in a foster home.



                                             3
B. Jurisdiction and Disposition Report

      CFS interviewed mother in jail. She admitted having made a poor choice but she

claimed she had only left the children briefly while driving a friend home. Mother denied

abusing drugs or alcohol but admitted taking anxiety medication. G.R. had returned from

Afghanistan and was losing his military housing because of the drugs found there.

      The parents participated in mediation and submitted on the amended petition. The

juvenile court sustained the amended petition, declared A.R. a dependent and ordered

him removed from the parents’ custody pending the provision of family reunification

services.3 Mother’s case plan required her to participate in substance abuse treatment,

drug testing, individual therapy, psychotropic medication evaluations and monitoring,

and a parenting program.

C. Status Review Report

      In December 2011, CFS reported that mother’s drug abuse had increased and she

had accused G.R. of domestic violence and rape. Mother was uncooperative about drug

tests and she tested positive four times. Mother was soliciting men by sending them

photographs of her exposed breasts. Between June 2011 and January 2012, mother

completed individual therapy and a parenting education program but denied she had a

substance abuse problem in spite of the positive drug tests. On December 31, 2011,


      3   G.R. subsequently moved to Texas and then disappeared.



                                            4
mother was arrested for burglary and petty theft and convicted of felony burglary in

March 2012. Between January and July 2012, mother failed to participate regularly in

services. From July to October 2012, mother failed to make any further progress toward

reunification. In October 2012, mother was unemployed, without any known source of

income. She was also on probation for shoplifting.

       Between June 2011 and January 2012, mother visited A.R. regularly twice a week

for an hour and their visits were described as “‘fair’ but not wholly satisfactory” because

mother spent the time on her cell phone or talking to the foster mother or social worker.

From January to October 2012, mother regularly visited A.R. once a week for two hours

and the visits were described as “appropriate.”

       Between June 2011 and October 2012, A.R. remained placed in the same foster

home. He was healthy, developmentally on target, and bonded with his caretakers, who

were granted de facto parent standing on September 21, 2012.

       On October 9, 2012, the juvenile court ordered mother’s reunification services

terminated and selected a permanent plan of long-term foster care for A.R. A.R. was

happy, healthy, developmentally on target and bonded to his caretakers. Mother

continued to visit weekly for two hours and the visits were described as appropriate.

D. Section 366.26 Hearing

       As recommended by CFS, the juvenile court set a section 366.26 selection and

implementation hearing as to A.R. to consider adoption by the caretakers.



                                             5
       CFS described A.R. as a happy child who was attached to his caretakers, whom he

called “Papa” and “Grammy.” He was healthy and developmentally on target except for

some mild speech delays that were being addressed. A.R. enjoyed visits with mother but

he did not seek her out for comfort or support and he separated from her easily at the end

of visits. A.R.’s two siblings were relocating to live with their father in Pennsylvania but

they were maintaining contact with A.R.

       On July 17, 2013, mother filed a section 388 petition for modification alleging she

had completed substance abuse treatment and counseling and was participating in a

domestic violence and child abuse program and seeking either custody of A.R. or

increased visitation and additional services. The juvenile court summarily denied

mother’s petition.

       Mother appeared at the contested section 366.26 hearing on August 8, 2013.

 Mother testified that she visited A.R. once a week for two hours at the Yucca Valley

CFS office, supervised by a social worker. She believed her visits with A.R. were “pretty

good.” He was always happy to see her and called her “Momma.” They played with

toys and talked about A.R.’s school. At the end of the visits, A.R. was neither happy nor

upset. Mother believed that A.R.’s relationship with her was important to him and that,

because of their visits, he knew he could depend on his mother. Mother’s counsel argued

that the beneficial parent-child relationship exception to adoption applied and mother’s

parental rights should not be terminated.



                                             6
       The juvenile court found A.R. was adoptable and that the beneficial parent-child

exception to adoption did not apply. Therefore, the juvenile court ordered termination of

mother’s parental rights and selected adoption by the prospective parents as A.R.’s

permanent plan.

                                             III

                      SECTION 366.26, SUBDIVISION (c)(1)(B)(i)

       Adoption is the preferred permanent plan for a dependent child once family

reunification efforts have proven unsuccessful. (In re Marilyn H. (1993) 5 Cal.4th 295,

307; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Section 366.26 provides that,

once the juvenile court determines that a dependent child is likely to be adopted, it shall

terminate parental rights unless one of the seven enumerated exceptions to adoption

applies. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(B)(i), provides the

preference for adoption is overcome, and another permanent plan should be selected,

where the parent establishes that she maintained regular visitation and contact with the

child, the child would benefit from continuing that relationship, and terminating the

relationship would cause the child to suffer detriment. (In re S.B. (2008) 164

Cal.App.4th 289, 300-301.)

       The applicability of the exceptions to adoption is reviewed under a hybrid

substantial evidence and abuse of discretion standard. (In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314.) The questions for the reviewing court are “whether the



                                              7
evidence compels a finding in favor of the appellant as a matter of law” as to the factual

questions of whether the parent maintained regular visitation with the child, whether a

beneficial parent-child or sibling relationship exists, and whether the juvenile court’s

application of the law to the facts was arbitrary or capricious. (In re I.W. (2009) 180

Cal.App.4th 1517, 1528; In re C.B. (2010) 190 Cal.App.4th 102, 123.)

       In this case, mother maintained consistent visitation with A.R. from June 2011 to

August 2013. However, mother cannot demonstrate a credible benefit or corresponding

detriment to A.R. by severing their relationship.

       In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, the Court of Appeal described

the beneficial parent-child relationship as “[t]he significant attachment from child to

parents [that] results from the adult’s attention to the child’s needs for physical care,

nourishment, comfort, affection[,] stimulation . . . companionship and shared

experiences.” The four factors to be considered in determining whether the parent

occupies a parental role in the child’s life are “[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; In re S.B.,

supra, 164 Cal.App.4th at p. 299; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

       A.R. was only 18 months old when he was detained and he was three years and 10

months old at the time of the section 366.26 hearing. More than 60 percent of his life (28

months) was lived with his foster family. There is no evidence that A.R. had an



                                               8
emotional attachment to mother that was stronger than his attachment to his beloved

caretakers, Papa and Grammy. A.R. did not react negatively or positively to mother’s

visits. Other than having pleasant visits with A.R., there is little or no evidence that

mother attended to A.R.’s needs for physical care, nourishment, comfort, affection,

stimulation, companionship and shared experiences. Mother gave no indication that she

was able to meet A.R.’s particular needs. There is no evidence that mother occupied a

parental role in A.R.’s life. The juvenile court did not abuse its discretion when it found

that the benefits of adoption outweighed any detriment to A.R. by the termination of

parental rights.

                                             IV

                                       DISPOSITION

       Mother did not establish the beneficial parent-child relationship exception. We

affirm the findings and orders of the juvenile court.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 CODRINGTON
                                                                                              J.
We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.

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