Filed 6/19/13 In re M.T. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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 M.T. et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E057273

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J235562 & J235563)

v.                                                                       OPINION

J.T. et al.,

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and

Appellant J.T.

         Marissa Coffey, under appointment by the Court of Appeal, for Defendant and

Appellant E.T.



                                                             1
       Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County

Counsel, for Plaintiff and Respondent.

       This is an appeal by defendants and appellants, J.T. (mother) and E.T. (father),

from the trial court’s order under Welfare and Institutions Code section 366.26

terminating their parental rights to their daughters, C. and M.1 Both parents contend the

trial court erred in terminating their parental rights because the exception to parental

rights termination set out in section 366.26, subdivision (c)(1)(B)(i), applies in this case.

Mother and father also contend the trial court abused its discretion when it denied father’s

request to continue the section 366.26 hearing so that he could file a section 388 petition.

       We conclude their claims are meritless. Therefore, we will affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The facts are undisputed. San Diego County Department of Health and Human

Services filed section 300 petitions in August 2010 with regard to then five-year-old

M. and seven-year-old C. after law enforcement officers conducted a welfare check after

receiving a report that both girls and their father were asleep in a car in the parking lot of

a gas station, and the car’s engine was running. The officers found mother passed out in

the gas station bathroom. According to the detention report, the family had been en route

from San Diego to Redlands when they stopped in Encinitas so mother could stretch her

legs and use the bathroom. Mother said she had taken several prescribed medications,

including OxyContin and oxycodone. Father told the officers he had taken two Vicodin.

       1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                              2
The officers found 600 prescription pills, all prescribed to mother, in the trunk of the

family’s car, along with three pipes that contained marijuana residue. The interior of the

car was littered with hundreds of cigarette butts, dirty laundry, spoiled food, and other

trash. According to the detention report, the stench of rotten food, feces, and urine was

“unbearable.” Because mother and father appeared to be under the influence of

controlled substances, law enforcement officers arrested them and took the two girls into

protective custody.

         One month earlier, San Bernardino County Children and Family Services (CFS)

received a referral after M. was taken by ambulance to a hospital because mother and

father thought she might have ingested some of mother’s OxyContin. Hospital staff

would not allow mother to leave with M. because mother was so heavily medicated she

had difficulty keeping her eyes open. CFS could not complete an investigation on the

referral because the social worker was unable to contact mother and father, apparently

due to the fact that they did not have a permanent residence and were living in motel

rooms.

         The social worker also reported in the detention hearing report that mother

suffered from various medical conditions, including Sjögren’s Syndrome, which,

according to the social worker, is a genetic condition that affects her tissue, joints, and

endocrine system, and causes her pain for which she is prescribed oxycodone and

OxyContin. A doctor confirmed mother’s various medical issues, and also provided the

social worker with a list of mother’s prescribed medications.




                                              3
       San Diego County detained both girls and later found jurisdiction under section

300, subdivisions (b) and (g), as to both C. and M. Both girls were ordered placed in

foster care. The court also ordered reunification services for mother and father and

weekly monitored visits between mother and father and the children. In November 2010,

San Bernardino County accepted transfer of the case.

       According to the report prepared for the six-month review hearing in April 2011, a

psycho-educational assessment disclosed that C. is autistic, mildly mentally retarded, and

her verbal capacity was limited. M. had developmental delays both in gross and fine

motor skills. She also had speech difficulties and poor writing skills, but she was reading

at grade level. M. also had behavioral problems. The social worker described her as

defiant and said she had tantrums four times a day, which lasted 15 to 30 minutes.

M. would also wake up screaming and yelling in the middle of the night, but that

behavior occurred less frequently when mother called and spoke with M. before bedtime.

M. was diagnosed with intermittent explosive disorder and mental retardation, severity

unspecified. Mother and father were participating in services and visitation. The court

continued reunifications services, and ordered twice weekly supervised visits, which the

court authorized the social worker to liberalize to unsupervised when appropriate.

       For the 12-month review hearing in October 2011, the social worker reported that

mother and father had made substantial progress on their reunification plan. Father had a

job. The parents had a car and home. A doctor was monitoring their prescription

medications. C. and M. had been moved to a new foster home (their sixth) at the request




                                             4
of the most recent foster parents. Each of the previous homes had been unable to manage

the girls’ behaviors.

       The trial court authorized six additional months of reunification services for

mother and father, and set the 18-month review hearing date. The court also authorized

the social worker to liberalize the frequency and duration of visitation, which could

include unsupervised day and/or overnight visits as appropriate. The trial court also

authorized the social worker to return the children to the parents on family maintenance,

if appropriate.

       The social worker recommended in the 18-month status review report that the

children be returned to mother and father for a two-week trial/extended visit. Both

parents were making progress on their reunification plans, although the social worker

expressed concern about mother’s ability to maintain a clean home, her cigarette

smoking, and her anxiety level.

       The parents’ progress was torpedoed when drug test results for each of them were

positive for PCP and methadone. Both parents denied taking either substance. When

asked to specify her current medications, mother identified prescription medications that

had not been included in the list her doctor had provided to the social worker. The social

worker commented, “Although the parents deny taking any unauthorized substances, it

does explain past events reported by the caregiver. According to the caregiver, the

parents are frequently late, the children are returned smelling heavily of smoke and

inappropriately dressed during rainy/cold weather, mother had appeared sweaty/groggy at

times and has had to cut visits short due to being in pain. Mom has also been in a minor


                                             5
car accident on the way to visit and was reportedly lost for hours. Overall, it appears as if

the parents struggle with prescription medication and the children are at risk in their

care.” A week later, mother paid for a hair follicle drug test, the result of which was

negative for both PCP and methadone.2 In the interim, however, CFS relied on the

positive drug test results to file a subsequent report in which it asked the court to

terminate reunification services and set a section 366.26 hearing.

        On March 8, 2012, the trial court continued the 18-month review hearing to May

in order to obtain additional drug test results and for the social worker to evaluate the

parents’ home for an extended visit with the children over spring break. The social

worker visited the parents’ home on March 19, 2012. At a nonappearance review hearing

on March 28, 2012, the social worker reported the parents’ home was filthy, with dirt and

caked grime on the floors and furniture. The hot water had been turned off for a week.

There was only one twin bed in the room the children shared, and there was very little

food in the refrigerator. When the social worker returned the next day, little had changed

except that a dirty coffee table had been cleaned. Because of the condition of the home,

the social worker decided against the parents having an extended visit with the children.

Instead, until mother and father could demonstrate their home was safe, the social worker

recommended unsupervised visits of no less than two hours at a location other than their

home.



        2Apparently, the parents sold their car to pay for mother’s hair follicle drug test
and did not have enough money to have father tested.


                                              6
       After mother and father both tested positive for opiates in April, the social worker

submitted an addendum report again asking the trial court to terminate family

reunification services and set a section 366.26 hearing. At the conclusion of the

contested 18-month review hearing on May 23, 2012, the trial court followed the social

worker’s recommendation and set the section 366.26 hearing.

       By the time of the selection and implementation hearing on October 3, 2012,

M. and C. had been in their foster placement for over a year, and their foster parents

wanted to adopt both girls. Father made a motion to continue the hearing so that he could

file a section 388 petition. Mother joined in that motion, the details of which we recount

below. The trial court denied the continuance motion. With respect to the permanent

plan for C. and M., mother and father asserted that the beneficial parental relationship

exception applied and, therefore, the trial court should not terminate their parental rights.

Instead, mother and father urged the court to select guardianship as the permanent plan

for both C. and M. The trial court declined the parents’ request and, instead, terminated

their parental rights after making the required findings.

       Mother and father appeal from that order.

                                       DISCUSSION

                                              1.

            BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

       Once the court terminates reunification services, the focus of juvenile dependency

proceedings is on the needs of the child, and specifically on the need for a stable,

permanent home. Therefore, adoption is the statutorily preferred permanent plan for a


                                              7
dependent child. If the court finds that the child is adoptable and is reasonably likely to

be adopted, the court must terminate parental rights and order the child placed for

adoption unless the court finds that one of the exceptions set out in section 366.26,

subdivision (c), applies. (§ 366.26, subd. (c); In re Celine R. (2003) 31 Cal.4th 45, 53.)

       Under section 366.26, subdivision (c)(1)(B), the court may decline to terminate

parental rights, even if it finds the child is adoptable and there is a reasonable likelihood

that the child will be adopted, if the court finds one of several statutorily specified

“compelling reason[s] for determining that termination would be detrimental to the

child.” The statutorily specified compelling reason, or exception, at issue here is that

“[t]he parents have maintained regular visitation and contact with the child and the child

would benefit from continuing the relationship.” (§ 366.36, subd. (c)(1)(B)(i).)

       The parents have the burden of demonstrating that the so-called beneficial parental

relationship exception applies. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) In order

to meet that burden, the parents must demonstrate both that they have maintained regular

visitation and contact with the child and that a continued parent-child relationship would

“promote[] 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. . . . If severing the

natural parent/child 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.” (In re

Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re S.B. (2008) 164 Cal.App.4th

289, 297.) “[T]he parent must show more than frequent and loving contact, an emotional


                                               8
bond with the child, or pleasant visits. . . . [T]he parent must prove he or she occupies a

parental role in the child’s life . . . . [Citations.]” (In re Dakota H. (2005) 132

Cal.App.4th 212, 229.)

                                   A. Standard of Review

       “Since the proponent of the exception bears the burden of producing evidence of

the existence of a beneficial parental or sibling relationship, which is a factual issue, the

substantial evidence standard of review is the appropriate one to apply to this component

of the juvenile court’s determination. Thus . . . a challenge to a juvenile court’s finding

that there is no beneficial relationship amounts to a contention that the ‘undisputed facts

lead to only one conclusion.’ [Citation.] Unless the undisputed facts established the

existence of a beneficial parental or sibling relationship, a substantial evidence challenge

to this component of the juvenile court’s determination cannot succeed.” (In re Bailey J.

(2010) 189 Cal.App.4th 1308, 1314.)

       “The same is not true as to the other component of these adoption exceptions. The

other component of both the parental relationship exception and the sibling relationship

exception is the requirement that the juvenile court find that the existence of that

relationship constitutes a ‘compelling reason for determining that termination would be

detrimental.’ (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the

relationship is a ‘compelling reason’ for finding detriment to the child is based on the

facts but is not primarily a factual issue. It is, instead, a ‘quintessentially’ discretionary

decision, which calls for the juvenile court to determine the importance of the

relationship in terms of the detrimental impact that its severance can be expected to have


                                               9
on the child and to weigh that against the benefit to the child of adoption. [Citation.]

Because this component of the juvenile court’s decision is discretionary, the abuse of

discretion standard of review applies.” (In re Bailey J., supra, 189 Cal.App.4th at

p. 1315.)

                                        B. Analysis

       With respect to the first requirement, which requires mother and father to show

they maintained regular visitation and contact, mother and father presented substantial

evidence to support a finding in their favor on that requirement. Mother and father

maintained regular weekly contact with C. and M. At one point, before they had their

own car, mother and father spent four hours, twice a week on a bus in order to visit with

the children. Although mother acknowledged in her testimony at the selection and

implementation hearing that she had missed three visits since the trial court terminated

reunification, her visitation and contact with C. and M. nevertheless was regular. The

social worker stated as much in her report for the section 366.26 hearing—“Throughout

the life of this case, the children have had weekly contact with their parents through

supervised visits, including unsupervised and overnights at one time. During this

reporting period, [father] has been unable to attend several visits due to his work

schedule, but attends when he can. The paternal grandmother who resides with the

parents has attended one or two visits during the reporting period as well. During the

visits, the mother usually brings an arts and crafts project to work on, such as jewelry

making, drawing, or clay.”




                                             10
       The trial court, in adopting county counsel’s assertion that the parents had not

maintained regular contact and, therefore, had not met the first requirement of the

exception, apparently interpreted the phrase to require proof that the parents had never

missed a visit. The statute does not require a perfect record of visitation; it requires

regular visitation and contact. Mother and father met their burden of presenting evidence

to demonstrate they had regularly visited and maintained contact with C. and M. during

the course of the dependency.

       The second factor, the existence of a beneficial relationship, requires evidence

regarding “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s

custody, (3) the positive or negative effect of interaction between the parent and the child,

and (4) the child’s particular needs.’ [Citation.] ‘[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, 937-938.) “If severing the

natural parent/child 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.” (In re

Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re S.B., supra, 164 Cal.App.4th

at p. 297.)

       Although a close case, we cannot say the evidence in this case compels a finding

in favor of mother and father. C. was seven years old and M. was five when they were

removed from the custody of mother and father. At the time of the selection and


                                              11
implementation hearing, the girls were eight and five years old, respectively. They had

been in five different foster placements before being placed with their prospective

adoptive family in July 2011. As a result, mother and father were the only parental

figures in the girls’ lives for all but one year. The social worker and foster mother both

confirmed that C. and M. were bonded with their parents. Moreover, mother and father

had unsupervised overnight visits with the girls over the course of the dependency.

During those unsupervised visits, mother and father necessarily performed their duties as

parents to the girls. The social worker effectively said as much when she reported that

C. and M. were in good condition when returned to foster care, and there were no reports

of inappropriate behavior.

       As previously noted, C. and M. both have special needs. Because mother

suspected C. was autistic, she had requested an individual education program (IEP) for

the child when C. entered kindergarten. Mother and father both participated in C.’s IEP

and cooperated in having C. evaluated for Inland Regional Center services. As noted

above, M. was diagnosed with intermittent explosive disorder and mental retardation of

unspecified severity. During the course of the dependency process, M. was also

diagnosed with attention deficit hyperactive disorder.

       Mother and father presented evidence to show that C. and M. were bonded with

their parents. Both girls related to their mother and father as parents. Apart from the

circumstances leading to the dependency, mother and father engaged in appropriate

interaction with both girls. Mother testified at the selection and implementation hearing

that at the start of their visits, both girls would run and jump into her arms, and then they


                                             12
would spend the visit sitting on mother’s lap in order to be as close to her as possible.

Mother brought pictures the girls had drawn to the hearing, which she said reflected their

feelings about their parents and their sadness over the possibility that they would not see

each other again. In one of the pictures, M. drew a heart and explained to mother that her

heart was broken because she was not with mommy and daddy.

       The social worker testified that the girls were bonded with their parents and the

caregivers equally. The social worker acknowledged, however, given the strength of the

relationship between the children and their parents, that to a “certain extent” it would

benefit the children to continue the relationship, “[a]nd that is why I have been pressing

the caregivers to maintain a relationship with the birth parents.” The social worker also

acknowledged that her predecessor had discussed and considered guardianship, “but she

felt adoption was in the best interest of the children and provided them permanency.”

When asked whether all the things she had just mentioned could be provided to the

children under a guardianship, the social worker did not disagree, and said, “Possibly.”

       In arguing that the evidence supports the court’s finding in this case, county

counsel cites only the circumstances that led to termination of reunification services.

Those circumstances are not in dispute, and they are not relevant to the question of

whether the children had a substantial, positive emotional attachment such that they

would benefit from continuing their relationship with mother and father. After the

witnesses had testified, the court asked the social worker to bring the children to court so

that their attorney could make it clear to them, to the extent possible, that they would not

see their parents again if the court ordered adoption as the permanent plan. After talking


                                             13
with M., the more “verbal child,” the attorney for the children reported that M. said, “‘I

have a happy life where I am with the family I’m with right now, and that’s where I want

to stay. And I like it there.’” When asked how she would feel if she could not see her

mother or father again, M. said, “‘Sometimes sad, but not all the time.’” M. also

reportedly said that she wanted to be adopted.

       The above noted evidence is sufficient to establish the existence of a beneficial

relationship between the children and their parents. Therefore, the remaining issue we

must address is whether it was an abuse of the trial court’s discretion to find that the

benefit the children derived from their relationships with mother and father was not a

“compelling reason for determining that termination would be detrimental.” (§ 366.26,

subd. (c)(1)(B), italics added.) In other words, we must determine whether the court

abused its discretion when it determined the importance of the relationship, in terms of

the detrimental impact its severance would be expected to have on C. and M., was

outweighed by the benefit to C. and M. of adoption.

       Although a very close case, we cannot say the court abused its discretion in this

case when it determined that the benefit of adoption outweighed the detrimental impact

on C. and M. of severing their relationship with mother and father. M.’s statement,

quoted above, that she would sometimes feel sad, but not all the time, if she could not see

her parents, best states the impact of severing her relationship with mother and father.

We do not minimize the emotional impact on both the children and the parents of ending

a significant relationship and emotional bond. But we cannot say that either C. or M.

would be greatly harmed by severing the relationship. Therefore, the court did not abuse


                                             14
its discretion in this case, when the benefit of continuing that relationship is weighed

against the benefit of a permanent adoptive family.

                                             2.

       DENIAL OF MOTION TO CONTINUE SECTION 366.26 HEARING

       Father and mother contend the trial court abused its discretion when it denied

father’s motion to continue the section 366.26 hearing. Father’s attorney made that

motion at the start of the selection and implementation hearing, on the ground that father

and mother were, that day, moving into “a new stable residence,” an event that arguably

constituted a change of circumstance. Father asked his attorney to file a section 388

motion. To that end, father’s attorney asked the trial court to continue the contested

section 366.26 hearing so that he could gather the necessary documents from father and

file the requested motion.

       As father acknowledges, a continuance will only be granted upon a showing of

good cause. (§ 352, subd. (a).) He and mother both contend the need to file a section

388 petition is good cause that warrants a continuance of the section 366.26 hearing.

We disagree.

       As discussed previously, once the court terminates reunification services, the

needs of the children for permanence and stability are the focus of the dependency.

The ability of the parents to reunify with the children is no longer a primary concern.

Moreover, the issues that ultimately prompted the court to terminate reunification

services in this case were the excessive use of prescribed medications and the condition

of the parents’ home, not the absence of a home. Thus, the fact that mother and father


                                             15
were about to move into a new home really was not a change in circumstance that would

warrant modification of the order setting the selection and implementation hearing.

      Accordingly, we conclude the trial court did not abuse its discretion in denying the

parents’ continuance request because they failed to establish good cause to support a

continuance.

                                    DISPOSITION

      The order terminating the parental rights of mother and father as to C. and M. is

affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                              McKINSTER
                                                                                          J.

We concur:



RAMIREZ
                       P. J.



CODRINGTON
                          J.




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