Filed 4/23/15 In re I.H. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 I.H. et al., Persons Coming Under the
Juvenile Court Law.
                                                                 D067086
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. EJ3610A-C)
         Plaintiff and Respondent,

         v.

MARIA H.,

         Defendant and Appellant.


         APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis,

Judge. Affirmed.



         Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

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

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

Respondent.

       Maria H. appeals from orders terminating parental rights to her daughter I.H. (born

2011) and twin daughters (born 2012, collectively with I.H., the children) under Welfare

and Institutions Code section 366.26. (Undesignated statutory references are to this

code.) Maria contends the evidence was insufficient to support the juvenile court's

finding that the beneficial relationship exception of section 366.26, subdivision

(c)(1)(B)(i) did not apply. We affirm the orders.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Maria gave birth to I.H. in 2011 when she was 16 years old. After I.H.'s birth,

Maria suffered three arrests for driving under the influence, possessing and transporting a

controlled substance and carrying a concealed dirk or dagger.

       Maria gave birth to the twins the following year. At that time, Maria was using

methamphetamine and had domestic violence incidents with the father. When the twins

were about three months old, the San Diego County Health and Human Services Agency

(the Agency) received a referral that Maria sold her food stamps in order to purchase

methamphetamine, the family home was dirty and lacked necessary essentials such as

food, formula and diapers. Maria admitted she had a problem with methamphetamine

and needed help with her children. The social worker reported that Maria was unable to

provide a stable environment for the children due to a lack of employment, income and

stable housing.

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       The Agency filed petitions alleging the children were at substantial risk of harm

because Maria's substance abuse did not allow her to provide regular child care. In

October 2012, the children were removed from Maria's care. Maria had not complied

with on demand drug testing and failed to follow through with her intake appointment for

drug treatment. The juvenile court sustained the petitions. It later declared the children

dependents, removed physical custody from Maria, ordered an out-of-home placement

and that reunification services be provided.

       By May 2013, the children were living together in a licensed foster home. Maria

had short, unsupervised visits with the children in a public setting. At the six-month

review hearing in July 2013, the juvenile court concluded that returning the children to

Maria would be detrimental and the services provided to her had been reasonable. It

found Maria had made some progress with the provisions of her case plan and continued

her services for another six months.

       At the 12-month permanency hearing in December 2013, the court placed the

children with Maria and provided family maintenance services. In April 2014, the

Agency filed petitions under section 387, seeking a higher level of care because Maria

had relapsed on methamphetamine and marijuana, the children had been exposed to

domestic violence between the maternal grandmother and another adult, the children

were filthy and the home had inadequate food. Additionally, Maria had been arrested in

January 2014 for exhibiting a deadly weapon and April 2014 for possessing a controlled

substance. After several continuances, the court made true findings on the section 387

petitions in October 2014, removed physical custody of the children from Maria and

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ordered them placed in out-of-home care. It scheduled a hearing under section 366.26 to

select and implement a permanent plan.

       In November 2014, the court held the contested section 366.26 hearing. It

received into evidence the Agency's reports and heard testimony from Maria. The court

found by clear and convincing evidence the children were likely to be adopted and none

of the statutory exceptions applied. It terminated parental rights and referred the children

to the Agency for adoptive placement. Maria timely appealed.

                                        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." (Id., 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

                                               4
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.) Our

conclusion, however, is the same under any of these standards.

       The Agency concedes Maria maintained regular visitation with the children.

Accordingly, we focus on the second prong and examine whether the children would

benefit from continuing their relationship with Maria. (§ 366.26, subd. (c)(1)(B)(i).) On

this prong, Maria 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.)

After reviewing the record we conclude that the juvenile court's findings are supported by

substantial evidence and are not an abuse of discretion.

       I.H. was about 18 months old and the twins were about three months old when the

Agency removed them from Maria's care. At that time, Maria was living with the

maternal grandmother who was unaware of Maria's drug use. Although Maria regained

custody of the children for about four months, she relapsed on methamphetamine and the

children were again removed.

       At the time of the section 366.26 hearing, the children had not lived with Maria for

about seven months. After multiple placements, the children had been living together

with their prospective adoptive parents since August 2014. The foster parents have

                                              5
expressed their commitment to permanently meeting the children's needs, are prepared to

take on the responsibility of providing for them in all aspects of their lives and wish to

adopt the children as a sibling set. The children respond well to the directives of the

foster parents and willingly return to the foster home after visits.

       In contrast, the social worker commented in an October 2014 report that Maria had

been discharged from her drug treatment program in September 2014 due to poor

compliance. Despite being offered 21 months of reunification services, the social worker

remained concerned for the safety of the children while in Maria's care noting Maria

required ongoing prompting regarding how to meet the needs the children would express

during visits. The social worker commented on the quality of contact Maria had with the

children, noting the children were "not responsive to [Maria's] directives and [Maria was]

unable to take on the parental role." The social worker concluded that the "parent-child

relationship [was] not significant," did not outweigh the benefits of adoption and it would

not be detrimental for the children if the court terminated Maria's parental rights.

       The juvenile court was entitled to credit the assessments and conclusions of the

social workers. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Moreover, "delaying 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." (Id. at p. 47.) While the children had a

meaningful relationship with Maria, the record here does not support a conclusion that

this is an extraordinary case where preservation of the parent's rights should prevail over

the Legislature's preference for adoptive placement. (In re Jasmine D., supra, 78

                                               6
Cal.App.4th at p. 1350.) Given the lack of evidence that the children would be harmed if

the parent-child relationship is severed, we conclude the juvenile court did not err in

determining that the beneficial parental relationship exception to adoption did not apply.

                                        DISPOSITION

       The orders are affirmed.



                                                                                MCINTYRE, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.




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