Filed 2/26/13 In re Josiah H. CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



In re JOSIAH H., a Person Coming Under the
Juvenile Court Law.                                                                     C071928

SACRAMENTO COUNTY DEPARTMENT                                                (Super. Ct. No. JD231479)
OF HEALTH AND HUMAN SERVICES,

                   Plaintiff and Respondent,

         v.

CHRISTINA H.,

                   Defendant and Appellant.




         Mother, Christina H., appeals from the juvenile court order terminating her
parental rights to 22-month-old Josiah H. (the minor). She contends the trial court erred
in finding that the beneficial parental relationship exception to adoption did not apply.
We shall affirm.



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                              FACTUAL BACKGROUND

       Two days after he was born in April 2011, the minor was taken into protective
custody based on allegations mother had a developmental disability that impaired her
ability to adequately protect and care for the minor and that her parental rights to her four
other children had previously been terminated. The minor was placed in a foster home
with two of his half siblings. He was declared a dependent of the juvenile court and
reunification services were ordered. As part of the effort to provide reunification services
to mother, a psychological evaluation was performed by psychologist Sidney Nelson,
Ph.D. Dr. Nelson noted mother’s intellectual capabilities, abstract reasoning, conceptual
thinking, common sense reasoning, and social judgment were substantially impaired; she
functioned within the mild range of mental retardation. These impairments limited
mother’s ability to learn, retain and utilize new information provided in counseling or
parenting classes. Mother’s impairments were a significant, chronic and long-term
condition, not expected to change with the provision of services, and not conducive to
providing a safe home for a young child. Accordingly, Nelson concluded mother would
not be able to benefit sufficiently from reunification services to permit the minor to return
safely to her custody.

       Despite Dr. Nelson’s reservations, mother participated in some services and
regularly visited with the minor twice a week. By January 2012, mother had made some
progress in services; however, she had not completed her domestic violence classes and
had not completed individual counseling, becoming threatening to the therapist and
refusing further counseling. She completed the parenting class, but upon testing, with
significant assistance from the social worker, she scored only 30 percent on the parent
education survey. In parenting coaching with an infant, she was incapable of responding
to the baby’s cues, could not learn how much formula was necessary to prepare a bottle,
and forgot to secure the infant on a changing table before walking away. The social
worker concluded mother could not benefit from additional parenting coaching. The

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juvenile court found mother had not made sufficient progress in reunification and it was
unlikely the minor could be returned to her within the six-month statutory time frame.
Accordingly, reunification services were terminated and the matter was set for a Welfare
and Institutions Code section 366.26 hearing.1

       Originally, mother had visits with the minor scheduled twice a week for one hour.
Between April and November 2011, she missed six visits. Upon termination of
reunification services, mother’s visits were reduced to twice a month in February 2012
and then to once a month in May 2012. Mother’s visits were sporadic during this period.
She frequently failed to confirm or follow through with scheduled visits. When she did
visit, the minor would look at her and play games. He generally reacted happily when he
saw mother.

       The minor was doing well, although he was slow meeting developmental
milestones. He had some mild developmental delays of his feeding abilities and poor
endurance for eating, as well as physical developmental delays. He was receiving weekly
therapy to address these delays, which required significant familial involvement. He
remained placed in the foster home that had successfully adopted two of his older siblings
and the foster parents were committed to adopting him. Emotionally and behaviorally,
the minor was developing appropriately. He preferred his foster parents to other adults
and was developing healthy emotional connections to them, their children, and their
extended circle of family and friends. His foster parents provided for his daily needs and
primary emotional connection.

       At the contested section 366.26 hearing, mother objected to the termination of her
parental rights. She claimed she had maintained contact with the minor and it would be
in his best interest not to terminate her parental rights.


1 Undesignated statutory references are to the Welfare and Institutions Code.


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       The court found by clear and convincing evidence the minor was adoptable. The
court noted although there were some physical problems, they were not of such a scope
so as to impede his adoptability. The court found termination of parental rights would
not be detrimental to the minor. Accordingly, the beneficial relationship exception to
adoption did not apply. Parental rights were terminated.

                                      DISCUSSION

       Adoption must be selected as the permanent plan for an adoptable child and
parental rights must be terminated unless “[t]he court finds a compelling reason for
determining that termination would be detrimental to the child” due to an enumerated
exception to adoption. (§ 366.26, subd. (c)(1)(B).) One such exception to termination of
parental rights is 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); In re Celine R. (2003) 31 Cal.4th 45, 53.) Mother contends the trial court
erred in not finding the beneficial parental relationship exception to adoption applied.
We disagree.

       Initially, there has been some disagreement in the appellate courts as to which
standard of review applies in reviewing a juvenile court’s determination regarding a
statutory exception to adoption. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315;
In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Many courts have reviewed such
findings for substantial evidence, with a few courts utilizing an abuse of discretion
standard. (Compare, e.g., In re Megan S. (2002) 104 Cal.App.4th 247, 250-251, In re
L. Y. L. (2002) 101 Cal.App.4th 942, 947, In re Zachary G.(1999) 77 Cal.App.4th 799,
809, In re Derek W. (1999) 73 Cal.App.4th 823, 827 and In re Autumn H. (1994)
27 Cal.App.4th 567, 576 with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 and In
re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) However, as several courts have also
noted, the practical differences between these standards of review are not significant in


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the context of reviewing termination orders, as each standard accords broad deference to
the trial court's judgment. (See, e.g., In re C.B. (2010) 190 Cal.App.4th 102, 123; In re
Scott B. (2010) 188 Cal.App.4th 452, 469; In re Jasmine D., supra, 78 Cal.App.4th at
p. 1351.) Because our conclusion in the present matter would not change regardless
which of these standards of review we applied, and as addressing the issue here will not
assist in resolving the split of authority, we simply acknowledge the varying views and
turn to the merits.

       It is mother’s burden to establish the beneficial relationship exception to adoption
applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) Mother contends she met
the first prong of the exception in that she maintained regular visitation and contact with
the minor. Although there is some evidence mother was inconsistent in her visitation, we
will assume mother satisfied this prong of the test. However, she did not meet the burden
of establishing that she and the minor shared a beneficial parent/child relationship such
that termination of that relationship would be detrimental to the minor.

       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
new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The
existence of a beneficial relationship is determined by considering a number of factors,
including the age of the child, the amount of time the child spent in the parent’s custody,
the positive or negative effect of interaction between the parent and the child, and the
child’s particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) However,
neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the
derivation of some benefit from continued parental contact (In re Angel B. (2002)
97 Cal.App.4th 454, 466) is enough to establish this exception.

       Here, the minor was 16 months old at the time of the section 366.26 hearing. He
has never lived with mother. He was removed from her custody when he was two days


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old and has spent all of his life with his foster family. The minor has some special needs
which require “attention and judgment skills,” as well as active participation by his
family in his counseling and therapy. Mother does not have attention and judgment
skills, and has a significantly impaired ability to learn and utilize information provided in
counseling or classes. While the minor was generally happy around mother, he preferred
his foster parents to other adults and his foster family provided for his daily needs and
emotional connection. His foster family had also previously adopted two of the minor’s
half siblings. Based on the record in this case, there was no error in the juvenile court’s
determination that the parental bond exception to adoption did not apply.

                                       DISPOSITION

       The order of the juvenile court is affirmed.




                                                              BUTZ                      , J.



We concur:



         BLEASE                     , Acting P. J.



         NICHOLSON                  , J.




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