Filed 9/17/14 In re K.G. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 K.G. et al., Persons Coming Under the
Juvenile Court Law.
                                                                 D066010
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. SJ012119A-B)
         Plaintiff and Respondent,

         v.

ASHLEY H.,

         Defendant and Appellant.


         APPEAL from orders of the Superior Court of San Diego County, Kimberlee A.

Lagotta, Judge. Affirmed.

         Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and

Appellant Ashley H.

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

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.
       Ashley H. appeals from orders terminating parental rights to her children, K.G.

(born 2008) and K.J.G. (born 2009, together the children). She argues the juvenile court

erred in not applying the beneficial relationship exception to termination of parental

rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); undesignated statutory

references are to this code.) We find no error and affirm the orders.

                  FACTUAL AND PROCEDURAL BACKGROUND

A. First Dependency Proceeding (January 2009 to August 2010)

       Ashley has a long history of substance abuse, beginning at the age of 12 when she

started smoking marijuana. At age 16, she began using methamphetamine with the

children's father, Bruce G. At age 18, she gave birth to K.G. When K.G. was six months

old, the San Diego County Health and Human Services Agency (the Agency) filed a

petition on her behalf alleging the parents were unable to provide regular care due to

excessive use of methamphetamine and marijuana. The juvenile court detained K.G. in

the licensed foster home of Maricela and Rueben C. (the Cs).

       In late 2009, Ashley gave birth to K.J.G. The Agency opened a voluntary services

case for K.J.G. so she could remain with Ashley while Ashley completed reunification

services. In August 2010, K.G.'s first dependency case was closed with sole physical

custody granted to Ashley. By that time, Ashley had achieved at least a year of sobriety

and completed therapy, parenting and anger management classes.

B. The Second Dependency Proceeding (June 2012 to Present)

       By August 2011, the parents were no longer drug free. In June 2012, the Agency

filed petitions on behalf of the children alleging the parents were unable to provide


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regular care due to substance abuse, Ashley's whereabouts were unknown and she had

been leaving the children at various homes, including with the Cs. The children were

detained together with the Cs.

       In July 2012, the juvenile court sustained the petitions, declared the children

dependents and ordered the parents to comply with the requirements of the case plan. At

the six-month review hearing in February 2013, the court terminated court-mandated

reunification services for Bruce, but continued services for Ashley. At an uncontested

12-month review hearing in July 2013, the juvenile court followed the social worker's

recommendations and continued Ashley's services to the 18-month review date. At the

18-month review hearing in January 2014, the juvenile court terminated court-mandated

reunification services for Ashley, continued the children in foster care, and set a hearing

under section 366.26.

       At the contested section 366.26 hearing in May 2014, the court heard testimony

from Ashley, Bruce, a maternal aunt, the foster mother, two social workers and a

therapist that worked with the children and Ashley. The court also received stipulated

testimony from the children. The court found the children adoptable, determined none of

the exceptions to adoption contained in section 366.26, subdivision (c)(1) existed,

terminated parental rights and declared the children freed for adoption. It also granted

the Cs' request for prospective adoptive parent status. Ashley timely appealed.




                                             3
                                        DISCUSSION

       Parental rights may be terminated if there is clear and convincing evidence of

adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where a parent has

"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 is

one 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 adoptive parents. (In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) The parent must show that the parent-child

relationship is such that the child will be greatly harmed by the termination of parental

rights, so that the presumption in favor of adoption is overcome. (In re Brittany C.

(1999) 76 Cal.App.4th 847, 853-854.)

       Implicit in this standard is that "a parental relationship is necessary for the

exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000)

78 Cal.App.4th 1339, 1350.) The existence of this relationship 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. . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

There is a split of authority regarding whether an appellate court reviews a challenge

involving the beneficial relationship exception for substantial evidence, abuse of

discretion, or a combination of the two. (See In re K.P. (2012) 203 Cal.App.4th 614,

621-622.) We need not weigh in on this debate as our conclusion is the same under any

of these standards.


                                               4
       Ashley impliedly concedes that the children are adoptable, but asserts her parental

rights should not have been terminated given the beneficial nature of her ongoing

relationship with the children. In making this argument, she focuses on the fact that she

continued unsupervised visitation with the children until the time of the section 366.26

hearing.

       The juvenile court found that Ashley maintained regular and consistent visits with

the children. The evidence supports this finding and the Agency does not challenge it.

Regular visitation and contact, however, is only one prong of the analysis. The second

prong involves examining whether the children would benefit from continuing the

relationship. (§ 366.26, subd. (c)(1)(B)(i).) On this prong, Ashley must overcome the

presumption in favor of adoption by showing her relationship with the children is such

that the children will be greatly harmed by the termination of parental rights.

(In re Brittany C., supra, 76 Cal.App.4th at pp. 853-854.) The juvenile court found

Ashley did not occupy a parental role with the children and the benefits of adoption

outweighed any detriment the children would incur in terminating the relationship. After

carefully reviewing the record we conclude that the juvenile court's findings are

supported by substantial evidence and are not an abuse of discretion.

       We note that Ashley has abused drugs for much of her life. During the first

dependency proceeding she obtained sobriety, only to relapse after she gained custody of

the children. At the time of trial, Ashley had been sober for about 22 months. While

Ashley's efforts in obtaining sobriety are commendable, this is only one step toward

being a good parent. It does not appear that Ashley has ever held a job or provided


                                             5
financial support to the children. Additionally, Ashley's housing situation remained

unstable. As of November 2013, Ashley had resided at a confidential domestic shelter

for a period of four months; however, there were ongoing concerns about her ability to

remain there due to lack of compliance with the program rules requiring her to find

employment or attend school. Ashley did enroll in a culinary skills class that was

scheduled to begin in January 2014. In May 2014, however, the court appointed special

advocate (CASA) reported that Ashley's housing was again in jeopardy based on her

failure to comply with the rules of the shelter. At the time of trial, Ashley had been living

with her brother for about a week.

       This is not a case where Ashley presents a danger to her children. It is undisputed

that the children loved Ashley, enjoyed their visits with her and would be sad if the visits

ended. As Ashley noted, she had unsupervised time with the children every week.

Namely, K.J.G. visited with Ashley two days a week for four hours and on Fridays for

the entire day. Additionally, Ashley picked up K.G. on Friday afternoon and had both

children on Fridays for five hours and on the weekends for seven hours each day.

Despite these frequent contacts, the social worker concluded the children did not have a

strong attachment to Ashley, the children did not view Ashley in a parental role and

Ashley's relationship with them was more akin with that of a big sister or youthful aunt.

       At the time of trial, the children were about six and four years old and had each

lived with the Cs for about half of their lives. The CASA reported that the children

appeared stable and to be thriving in their foster home. She also noted that the children

were very attached to the Cs and viewed them as authority figures. The Cs had an


                                             6
approved adoptive home study, expressed a commitment to adopting the children and

indicated they would continue contact with the birth parents if they adopted the children.

The foster mother reported that K.G. had expressed a lot of insecurity about leaving her

foster home to live with Ashley, indicating K.G. wanted to stay with her and her husband

as K.G. felt safer with them than with Ashley.

       The social worker testified that the Cs' home was the only stable home the children

have had and that the "security, comfort and permanency" provided by the Cs outweighed

the detriment the children would incur if they lost contact with their birth parents. The

CASA also stressed that the children needed permanency and stability, noting that after

two years and despite the many resources provided to her, Ashley had not yet

demonstrated that she could provide this for the children. "[D]elaying the selection of a

permanent home for a child to see if a parent, who has repeatedly failed to reunify with

the child, might be able to reunify at some future point, does not promote stability for the

child or the child's best interests." (In re Casey D. (1999) 70 Cal App.4th 38, 47.)

       While Ashley argues legal guardianship should have been selected as the

children's permanent plan, the juvenile court is subject to the mandatory preference for

adoption over legal guardianship. (§ 366.26, subd. (b)(1); In re Fernando M. (2006)

138 Cal.App.4th 529, 536.) Significantly, guardianship is only the best possible

permanent plan for children in circumstances where the exceptions to terminating

parental rights in section 366.26, subdivision (c)(1) apply. (Fernando M., supra,

at p. 536.) On this record, the juvenile court did not err when it determined that Ashley's

relationship with the children did not place her within the beneficial relationship


                                             7
exception. Accordingly, the juvenile court correctly determined that adoption was the

appropriate permanent plan for the children.

                                     DISPOSITION

      The orders are affirmed.



                                                                         MCINTYRE, J.

WE CONCUR:



HALLER, Acting P. J.



IRION, J.




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