Filed 7/15/16 In re R.G. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 In re R.G., et al., Persons Coming Under
 the Juvenile Court Law.

 SAN BERNARDINO COUNTY
 CHILDREN AND FAMILY SERVICES,                                           E065222

          Plaintiff and Respondent,                                      (Super.Ct.Nos. J255570-J255573)

 v.                                                                      OPINION

 R.G.,

          Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,

Judge. Affirmed.

         Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County

Counsel, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant R.G. (Father) appeals from the juvenile court’s order

terminating his parental rights as to his four children: nine-year-old Ar.G., six-year-old

An.G., five-year-old Rog.G., and two-year-old Roc.G.1 Father’s sole contention on

appeal is that the juvenile court erred in failing to find the beneficial parent-child

relationship exception to termination of parental rights applied. We reject this contention

and affirm the judgment.

                                               I

                   FACTUAL AND PROCEDURAL BACKGROUND

       On July 9, 2014, the San Bernardino County Children and Family Services (CFS)

detained the children due to the parents’ substance abuse, domestic violence, criminal

history, mental health issues, and medical neglect.2 The children were placed with their

maternal grandmother.3




       1  Neither A.C. (Mother) nor the children’s half siblings (14-year-old Al.B. and
13-year-old Am.B.) are parties to this appeal. The alleged father of Al.B. and Am.B. was
identified as R.B., and is also not a party to this appeal.

       2  Roc.G. has spina bifida and required medical care. The parents failed to take
the child to his medical appointments for approximately six months.

       3  The maternal grandmother resided with the parents and the children. However,
the parents moved out of the family home to allow the children to be placed with the
maternal grandmother. The maternal grandmother and the children later moved out of
the family home, and the parents moved back into the residence. The social worker’s
reports also mention the maternal grandmother’s husband sparingly; collectively, they
will be referred to as the maternal grandparents.


                                               2
       On July 11, 2014, CFS filed petitions on behalf of the children pursuant to Welfare

and Institutions Code4 section 300, subdivision (b) (failure to protect). The children were

formally detained on July 15, 2014, and the parents were provided with supervised

visitation.

       The social worker recommended that the allegations in the petitions be found true

and that the parents be provided with reunification services. Mother admitted that all of

the allegations in the petitions were true. She also admitted to abusing marijuana and

methamphetamine, and suffering from a bipolar disorder and mood swings. The maternal

grandmother confirmed Mother’s statements, and added Mother had a long history of

suicide attempts, threats, and ideation.

       Father admitted to smoking marijuana and having engaged in acts of domestic

violence with Mother. Father had a restraining order against Mother, but both parents

had violated the order and intended on staying together in a relationship. Although

Father claimed that there were only two incidents of domestic violence between him and

Mother, the children reported ongoing episodes of domestic violence between the parents

with Father being the aggressor. The children reported feeling safer with the parents out

of the home and only desired supervised visitation with the parents.




       4 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.


                                             3
       The jurisdictional/dispositional hearing was held on August 5, 2014. At that time,

both parents submitted on the petitions. The juvenile court sustained the petitions,

declared the children dependents of the court, and maintained them with the maternal

grandmother. The parents were offered reunification services and supervised visitation.

       On November 24, 2014, CFS recommended that the social worker be given the

authority to liberalize visits to unsupervised. CFS reported that the parents had made

“significant progress in their case plan” and that they had interacted with the children in a

positive and loving manner during visits. CFS further noted that the parents appeared to

be “bonded” with the children; that the children interacted “lovingly” with the parents;

and that the parents were working hard to get the family back together and build a

relationship with trust. Based on their progress, the court authorized the parents

unsupervised overnight and weekend visits with the children.

       By the time of the six-month review hearing in February 2015, CFS recommended

additional services for the parents. The parents continued to make progress in their case

plan; however, the children expressed concern about fighting between the parents and

their sobriety. The children enjoyed visiting their parents once a week unsupervised for

four to six hours and the visits had been mostly positive. The children, however, believed

their parents had not changed. In addition, the children’s two older half siblings refused

to visit the parents, stating they were happier with their grandmother and lacked

confidence the parents would ever change. The children were all happy and well-

adjusted in their maternal grandparents’ care.



                                              4
        On March 3, 2015, CFS advised the court that the children had been having

overnight and weekend visits since February 4, 2015, and “everything appear[ed] to be

going well.” The children were “interacting positively with the parents” and “counseling

for the older children” had begun to reestablish their trust in the parents. Additionally,

the parents continued to test negative for drugs.

        On April 23, 2015, pursuant to the parties’ mediation agreement, the juvenile court

returned the children to the custody of Father and Mother under a family maintenance

plan.

        Unfortunately, less than six weeks later, on June 5, 2015, CFS detained the

children and placed them back in the maternal grandmother’s care. CFS also filed

supplemental petitions pursuant to section 387 based upon Mother’s substance abuse,

mental health issues, and taking the children to Mexico on June 2, 2015, without

permission. The petition also alleged that Father should have known of Mother’s

substance abuse and mental health issues and that Father’s ability to appropriately care

for and parent the children was unknown. Father claimed he was opposed to Mother

taking the children to Mexico but “ ‘could do nothing’ ” to stop her. The children also

reported that the parents had been “drinking regularly” and that Mother had recently been

arrested for driving under the influence (DUI).




                                              5
       The children were formally detained on June 10, 2015, and the parents were

provided with supervised visitation.

       CFS reported the “prognosis for reunification” was “guarded,” noting both parents

had previously been engaged in reunification services from August 2014 through April

2015. CFS was concerned that Father and Mother were either “unable or unwilling” to

benefit from the services they received and that the children continued to report the

parents had not changed and were still drinking. CFS nonetheless recommended further

reunification for the parents. CFS noted that although Father “stated to not have any

knowledge of the [M]other’s DUI,” he “expressed a great deal of concern” and had asked

Mother not to go to Mexico. CFS believed Father was “very supportive,” but had

remained “passive” “towards the real issues surrounding their sobriety and relationship

problems.”

       On July 1, 2015, the juvenile court found the allegations in the supplemental

petition true, removed the children from parental custody, and maintained them in the

maternal grandmother’s home. The court also provided the parents with reunification

services and ordered them to participate. The court authorized unsupervised/overnight

visits “when deemed appropriate.”

       Although the parents had previously visited the children on a regular basis, by the

time of the August 5, 2015 status review hearing, the parents had not visited the children

since they were detained on June 5, 2015. The children continued to reside with the

maternal grandparents and appeared happy and well adjusted. The children’s two half



                                             6
siblings continued to express concern over the parents’ history of abuse and Mother’s

mental health, and had verbally desired to remain with the maternal grandparents.

       The contested 12-month review hearing was held on August 5, 2015. At that time,

the children’s counsel asked the court to terminate the parents’ services. Counsel noted

that despite the parents’ participation in services and having received unsupervised visits,

the children continually reported the parents were not getting better. Following further

argument, the juvenile court terminated the parents’ services and set a section 366.26

hearing.

       In a section 366.26 report dated December 3, 2015, CFS recommended parental

rights be terminated and adoption be selected as the permanent plan. The children

remained placed together in the home of the maternal grandparents, who have known the

children since birth. The maternal grandparents continued to express their love for the

children, desire to adopt them, and provide them with stability. The children were

healthy and current on their medical exams. Roc.G. continued to suffer from spina

bifida, club feet, and an enlarged heart, and was being medically monitored. The children

were developmentally on target and were mentally and emotionally stable.

       Since the children were returned to the maternal grandparents’ home on June 5,

2015, the parents had “very limited contact with the children.” The children expressed

apprehension about visiting with the parents, believing they would “ ‘never change.’ ”

The children recognized Mother and Father would always be their biological parents, but

were happy and stable living with the maternal grandparents. When the social worker



                                             7
visited and spoke with the children at the maternal grandparents’ home, the social worker

observed the children were happy, comfortable, and secure in their home, and looked to

the maternal grandparents for support and guidance. The five eldest children indicated

they knew what adoption was and stated they wanted the maternal grandparents to adopt

them. Although the youngest child, Roc.G., was not of an age to understand adoption, he

appeared happy, comfortable and very secure in his grandparents’ care. He was also

observed to be very attached to them and looked to them for safety and comfort.

       The contested section 366.26 hearing began on December 17, 2015. In relevant

part, Father testified that the children lived with him and Mother since their birth; that

after they were detained, he and Mother visited with the children every weekend for a

total of five hours per visit at the maternal grandmother’s home; and that he and Mother

had visited with the children two times a week since August 2015. During the visits,

Father and Mother talked to the children, asked them how they were doing, played with

them, took them shopping, and went out to eat. The children were happy to see their

parents, would run into their arms and give them kisses and tell them they loved them,

and at the end of visits, the children cried. Father also stated that the children called him

“ ‘dad’ ” and that Ar.G., An.G., and Rog.G. told him and Mother they wanted to come

home with them. Father further asserted that the maternal grandmother had allowed him

and Mother unsupervised visitation with the children when they went out to eat or

shopping, even though he was aware the court had limited him to supervised contact.

However, he did not believe he was doing anything wrong. Father was unaware the



                                              8
children “often” did not want to visit with him and did not hear the children complain

about seeing him. He believed the children wanted to be with their parents and desired to

come home.

       The maternal grandmother, in relevant part, testified that for the past month Father

had visited the children each week for two to three hours and that she had allowed Father

unsupervised visits. The children never appeared to be injured or neglected after the

visits and the children never complained about the parents’ behavior. Nonetheless, the

children frequently told the maternal grandmother that they did not want to return to

Father’s home, that they wanted to stay in the maternal grandmother’s home, and that the

parents would never change. The maternal grandmother asserted that she would follow

the court’s order if the court told her that day not to allow the children to be unsupervised

with the parents.

       Following the maternal grandmother’s testimony, the matter was continued. In

addition, the court changed the initial visitation order and provided the parents with

supervised visitation to be supervised by a visitation center or CFS.

       On January 11, 2016, CFS advised the court that since the prior hearing, the

maternal grandmother had complied with the court’s order and had not allowed Father

unauthorized contact with the children. The children expressed enjoying visits with

Father, but stated they did not want to return to their parents’ home.




                                              9
       On January 14, 2016, the continued section 366.26 hearing was held. Father’s

counsel argued that the beneficial parent-child relationship exception of section 366.26,

subdivision (c)(1)(A), was applicable. The children’s counsel noted that in speaking with

each of the children individually, the children were in agreement with adoption, and that

the maternal grandmother had served in the parental role. The juvenile court rejected the

beneficial parent-child relationship exception to adoption, found the children adoptable,

and terminated parental rights.5 This appeal followed.

                                             II

                                      DISCUSSION

       Father contends the juvenile court erred in finding the beneficial parent-child

relationship exception of section 366.26, subdivision (c)(1)(A), did not apply to preclude

the termination of parental rights. We disagree.

       This “may be the most unsuccessfully litigated issue in the history of law.” (In re

Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re

Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case

(e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.




       5   In rejecting the beneficial parental relationship exception, the court noted that
although the parents had consistently visited with the children, the children had continued
to state they are concerned the parents will never change and that they would rather stay
with their maternal grandmother. The court further noted that the parents were more akin
to friendly visitors than an actual parent providing for the care and needs of the children
on a daily basis.


                                            10
       In general, at a section 366.26 hearing, if the juvenile court finds that the child is

adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule,

however, is subject to a number of statutory exceptions (§ 366.26, subds.(c)(1)(A) &

(c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies

when “termination would be detrimental to the child” (§ 366.26, subd. (c)(1)(B)) because

“[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).)

       “When applying the beneficial parent-child relationship exception, the court

balances the strength and quality of the parent-child relationship in a tenuous placement

against the security and sense of belonging that a stable family would confer on the child.

If severing the existing parental 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.’

[Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)

       “ ‘[F]or the exception to apply, the emotional attachment between the child and

parent must be that of parent and child rather than one of being a friendly visitor or

friendly nonparent relative, such as an aunt.’ [Citation.]” (In re Jason J. (2009) 175

Cal.App.4th 922, 938.) “ ‘A biological parent who has failed to reunify with an

adoptable child may not derail adoption merely by showing the child would derive some

benefit from continuing a relationship maintained during periods of visitation with the

parent. [Citation.] A child who has been adjudged a dependent of the juvenile court



                                              11
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.’ [Citation.]” (Id. at p. 937.) Even a “loving and happy relationship”

with a parent does not necessarily establish the statutory exception. (In re Beatrice M.

(1994) 29 Cal.App.4th 1411, 1419.) “The 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 are some of the variables which

logically affect a parent[-]child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567,

576.)

        The parent contesting the termination of parental rights bears the burden of

showing both that a beneficial parental relationship exists and that severing that

relationship would result in great harm to the child. (In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314-1315.) A juvenile court’s finding that the beneficial parental

relationship exception does not apply is reviewed in part under the substantial evidence

standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial

parental relationship exists, is reviewed for substantial evidence, while the court’s

determination that the relationship does or does not constitute a “compelling reason” (In

re Celine R. (2003) 31 Cal.4th 45, 53) for finding that termination of parental rights

would be detrimental is reviewed for abuse of discretion. (In re Bailey J., supra, at

pp. 1314-1315; accord, In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) A juvenile

court’s ruling on whether there is a “ ‘compelling reason’ ” is reviewed for abuse of



                                             12
discretion because the court must “determine the importance of the relationship in

terms of the detrimental impact that its severance can be expected to have on the child

and . . . weigh that against the benefit to the child of adoption.” (In re Bailey J., supra, at

p. 1315, italics omitted.)

       Although Father had consistently visited the children and the visits were

appropriate, he has failed to show that such a strong bond existed that it would be

detrimental to the children to terminate parental rights. Father claims that he had

maintained a close and bonded relationship with his children through his many years of

custody of the children and extensive visitation. He also notes that CFS had indicated the

children appeared to be “ ‘bonded’ ” with their parents and interacted “ ‘lovingly’ ” with

the parents during visits. Finally, he argues that he bought the children clothes, took

them out to eat; and that the children would greet him with a hug and kiss at the visits,

want to leave with him, and cried at the end of the visits. That, however, is not the

standard. Rather, the juvenile court must look at whether the children are bonded to the

parents; then it must weigh that bond (if any) against the benefit of adoption by the

prospective adoptive parents.

       There was no evidence that any child would be harmed, much less “greatly

harmed,” by termination of parental rights. (In re B.D., supra, 159 Cal.App.4th at

pp. 1234-1235.) The children’s primary attachment was with their maternal

grandmother. The maternal grandmother had known the children since birth and had

resided with the parents and the children until the parents moved out of the family home



                                              13
to allow the children to be placed there with the maternal grandmother. The children

were detained in July 2014, returned to the parents’ care in April 2015, and again

detained in June 2015 and placed in the maternal grandmother’s home. The children had

resided solely in the maternal grandmother’s care for approximately 17 months from the

initial removal to the section 366.26 hearing. Father’s three older children were seven,

five, and four years old, and the youngest child with medical needs was 12 months old

when they were initially removed from parental custody.

       As to Father’s older three children, it appears they had lived with Father longer

than they had lived with the maternal grandmother.6 Nonetheless, Father was, at best,

little more than an aunt or uncle or a friendly visitor. Although Father claims the children

cried at the end of the visits and wanted to return to his care, the record belies this

contention. Rather, the record shows that the children repeatedly stated to the social

worker and their attorney that they desired to stay with the maternal grandmother and be

adopted by her. The children also reported that they believed their parents would never

change; that they were happy and stable in their maternal grandmother’s home; and that

they did not want to return home to their parents. As to the youngest child, Roc.G., he

had resided out of Father’s care for half of his young life. Moreover, due to Roc.G.’s

numerous medical needs, there is no indication in the record that Father was capable of

handling his many serious medical needs. On the other hand, the record shows that the


       6  The record is unclear as to how long the maternal grandmother had been
residing in the family home prior to the children’s removal.


                                              14
maternal grandmother was fully capable of tending to Roc.G.’s medical, emotional, and

developmental needs.

       Although Father had visited the children, had showed his commitment and love to

the children, and the visits went well, the evidence regarding Father’s visitation in no way

showed that he occupied a parental role in the children’s lives. Rather, Father’s

interactions with the children appeared to be more akin to a friendly visitor or non-parent

relative, such as an uncle. It does not appear the children were particularly upset when

the visitation sessions ended, or that they were particularly anxious to visit Father.

Furthermore, although the children recognized Father would always be their biological

father, it was not Father, but rather the maternal grandmother, that acted in a parental role

for the children.

       While there is some evidence supporting a finding of a positive relationship

between Father and the children, there is also evidence supporting a reasonable

conclusion that the children would gain a greater benefit from being placed in a

permanent adoptive home. Father simply did not meet his burden to show that the bond

between him and the children was so strong and beneficial to the children that it

outweighed the benefit the children would receive from having a stable, adoptive home.

As the record clearly shows, the children were bonded to their maternal grandmother and

interacted with her as their parental figure. The children were doing very well in their

maternal grandmother’s home and were emotionally stable there. The children looked to




                                             15
the maternal grandmother for comfort, love, and safety, and the maternal grandmother

was committed to providing a permanent, stable home for the children.

       We conclude that the beneficial parental relationship exception under

section 366.26, subdivision (c)(1)(B)(i), did not apply here.

                                            III

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                   P. J.
We concur:



HOLLENHORST
                          J.



SLOUGH
                          J.




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