Filed 7/2/18; pub order 7/27/18 (see end of opn.)




                    COURT OF APPEAL, FOURH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



In re COLLIN E., a Person Coming Under
the Juvenile Court Law.
                                                      D072988
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                      (Super. Ct. No. EJ3941)
         Plaintiff and Respondent,

         v.

H.S. et al.,

         Defendants and Appellants.


         APPEALS from findings and orders of the Superior Court of San Diego County,

Gary M. Bubis, Judge. Affirmed.



         Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and

Appellant H.S.

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

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

Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

       H.S. and James E. appeal an order terminating parental rights to their son, Collin

E., under Welfare and Institutions Code section 366.26.1 James and H.S. argue there is

no substantial evidence to support the Indian Child Welfare Act (ICWA; 25 U.S.C.

§ 1901 et seq.) finding that continued custody of the child by the parents was likely to

result in serious emotional or physical damage to the child. (25 U.S.C. § 1912(f), Welf.

& Inst. Code § 224.6, subd. (b)(1).) They also assert the juvenile court erred when it

determined the beneficial parent-child relationship exception did not apply and

terminated parental rights. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In July 2015, the San Diego County Health and Human Services Agency (Agency)

filed a petition under section 300, subdivision (b) on behalf of 13-month-old Collin E.

The petition alleged Collin's mother, H.S., had left him unattended in her car while she

was under the influence of a prescription narcotic medication. Police officers arrested

H.S. for willful cruelty to a child and being under the influence. H.S. told officers she

had taken 50 mg of morphine prescribed for pain caused by a brain tumor.

       The Agency alleged Collin had suffered, or was at substantial risk of suffering,

serious physical harm or illness due to his parents' inability to provide adequate care. (§

300, subd. (b).) In reports prepared for the dependency proceedings, the Agency



1     All further unspecified statutory references are to the Welfare and Institutions
Code.

                                             2
described James's and H.S.'s extensive histories of substance abuse, drug-related criminal

histories, and lack of effective treatment.

       H.S. completed detox in 2003, 2009, February and July 2010, and 2011. In 2011,

H.S. lost custody of her three-month-old daughter to the child's father after she was

arrested for trying to buy Xanax with a fake prescription. At that time, the Agency

opened a voluntary services case but H.S. minimized her substance abuse and refused

treatment. H.S. was involuntarily committed in January 2013. She went through another

detox program in April 2013, and accidentally overdosed in May 2013. H.S. claimed she

needed pain medication for a brain tumor. A neurological examination in December

2013 revealed she did not have a brain tumor.

       James's family reported he started using crystal methamphetamine as a teenager in

approximately 1993 and had been in and out of jail for many years. James had lost

custody of a son, now an adult, when he was incarcerated. James overdosed in jail and

went through intensive therapy. He completed a substance abuse treatment program in

November 2014.

       When Collin was born, because of H.S.'s history of opiate abuse, the Agency

investigated a referral for general neglect. Collin did not exhibit any withdrawal

symptoms and the parents' families were very supportive. The Agency made a referral to

a home health nurse but did not initiate dependency proceedings. When Collin was eight

weeks old, the parents took him to the emergency room for treatment of a traumatic head

injury related to a fall. James said he did not know what had happened. In August, the

Agency received another report of general neglect when Collin underwent corrective foot


                                              3
surgery. He was dirty and appeared neglected. The parents could not be reached for an

hour and a half after the surgery. When H.S. arrived, she appeared to be intoxicated and

was unable to hold Collin. James said H.S. was just tired.

       The paternal grandfather (Grandfather) and his fiancé (together, Caregivers)

purchased supplies for Collin and cared for him three to four times a week, including

weekends. They took him to baseball games, the beach, the park, the zoo, Disneyland,

and swimming. Grandfather supplied several thousand dollars of baby supplies for

Collin, helped H.S. and James financially, and cosigned a lease after the parents were

evicted when Collin was six months old. Grandfather held a one-year birthday party for

Collin. James was two hours late to the party. H.S. was five hours late to the party and

fell asleep.

       Collin missed several pediatric appointments while in the parents' care. A

neighbor told the social worker she overheard the parents arguing for an hour about who

would feed Collin, who cried throughout their argument. Another neighbor said the

parents were constantly screaming and fighting, and Collin cried "all the time." H.S.

asked Grandfather's fiancé for money to buy pain medication for her brain tumor, and

offered to let Collin stay with them for five days in exchange for money. H.S. said Collin

had only had mashed potatoes and milk to eat that day because she had to use all her

money for the doctor.

       In May 2015, the Agency received a referral alleging H.S. was frequently going to

the local convenience store and inhaling gas from whipped cream cans while holding

Collin. Surveillance video confirmed the allegation. A confidential reporter said the


                                            4
parents left Collin in his swing for extended periods and were doing drugs. James and

H.S. denied any substance abuse and refused to drug test. The Agency provided service

referrals to the parents. On July 21, when H.S. was arrested, the Agency detained Collin

in protective custody.

       The Agency placed Collin with Caregivers on July 23, 2015. At almost 14 months

old, Collin was not yet walking or using any words. He wore braces on his legs at night.

Collin displayed difficult behaviors, including biting, scratching, and having tantrums.

       H.S. denied any substance abuse. She denied having been arrested and said she

had been suffering from low blood pressure when she left Collin in the car by himself.

Family members said James had lost 30 pounds in two months. They believed he was

using drugs again. James said he only took medication prescribed for back pain and

anxiety, including clonazepam, morphine sulfate, and hydromorphone. James advised

the social worker H.S. took morphine during her pregnancy for a brain tumor. He used

morphine to alleviate the pain from past methamphetamine addiction, which had caused

his body to break down. According to the social worker, H.S. and James continued to

provide inaccurate and conflicting statements about their use of prescription medication.

They did not follow through with referrals for substance abuse treatment and appeared

unwilling to discontinue using narcotics or obtain alternative methods for pain relief.

       In October 2015, Collin was diagnosed with moderate receptive and severe

expressive language delays and was referred to San Diego Regional Center for early

intervention services. Collin had multiple appointments each week for services. Issues

being addressed included foot deformities, anemia, respiratory issues, eczema and


                                             5
allergies, hearing and speech deficiencies, hyperactivity, sensory processing disorder, and

surgery for hearing loss. Because of his behaviors, Collin was removed from several

daycare facilities. He had speech therapy twice a week, occupational therapy once a

week, physical therapy twice a week, and was taking soccer and swim lessons, with

minimal participation by his parents. Caregivers gave the dates of all upcoming

appointments to the parents.

       In reports prepared for the six-month review hearing, the social worker stated

Collin was happy with Caregivers. He called their house "home." H.S. and James lacked

motivation to resolve their substance abuse problems. Visitation had not been expanded

because of the parents' noncompliance with services. As of May 20, H.S. had been clean

for 175 days. She was pregnant and due in late August. H.S. continued to take

methadone on the advice of her doctor and was decreasing the dose slightly each week.

James was taking hydromorphone, the muscle relaxant cyclobenzaprine, morphine, and

diazepam.

       H.S. had a C-section a month before her due date. The baby had some withdrawal

symptoms and was briefly subject to a hospital hold. H.S. was discharged from the

hospital at the end of July with 45 Percocet pills. On August 8, she went to the

emergency room seeking pain medication for migraines. Medical staff believed this was

drug seeking behavior because H.S. did not have any history of migraines. They

nevertheless refilled the prescription for Percocet.

       In September 2016, the social worker reported that James missed four drug tests,

which had to be rescheduled, and tested positive for hydromorphine, morphine, and


                                              6
oxazepam. James paid for, and attended, Collin's swimming lessons. During visits with

his parents, Collin asked Grandfather to stay. Grandfather said Collin treated James like

an uncle and was happy to return to Caregivers' home. The parents did not attend any of

Collin's therapy or doctor appointments during the second six-month review period.

       On September 13, H.S. obtained a new prescription for morphine sulfate for

fibroid pain. The parents' levels of morphine indicated substance abuse. The social

worker said a prescription of morphine for fibroid pain was unusual, especially because

H.S.'s medical chart was flagged for narcotic drug abuse. The social worker reported if a

patient was taking hydrocodin, hydromorphone, or Tylenol, any level greater than 12,000

to 15,000 ng/gl was considered substance abuse. On October 17, H.S.'s morphine levels

were greater than 100,000 ng/gl. When H.S. tested at the end of October, her morphine

levels were 6,226 ng/ml. On October 28, James tested positive for morphine at a level

greater than 100,000 ng/ml. He did not test the following day as requested, saying he had

been in the emergency room for food poisoning.

       H.S. told the social worker, "I'm not taking drugs I have prescriptions for my

medication." James said, "I'm not taking drugs I have prescriptions for my medications

and so does she." The social worker said the parents were still at a relatively early stage

in recovery. Collin was challenging to manage and the parents needed to demonstrate

strong parenting skills to adequately parent him and care for his baby brother.

       Collin's court-appointed special advocate (CASA) reported that Collin was very

comfortable and secure with Caregivers. They were willing to become his legal

guardians or to adopt him, if that were in his best interests. Collin enjoyed his visits with


                                              7
his parents and they attended to his needs. He asked, "Go with mama?" Collin's daycare

was considering whether to keep him after he scratched and bit a staff person twice. The

CASA believed that Collin should remain with Caregivers, and continue to visit with his

parents and siblings.

       According to the social worker, H.S. was consistently parenting Collin during

visitation. James's parenting was inconsistent at times. During some visits, James lay on

the couch watching movies on his cell phone while H.S. was more involved with Collin.

The parents blamed Collin's behaviors on his removal from their care.

       In January 2017, at the 12-month review hearing, the juvenile court terminated

reunification services and set a section 366.26 hearing.

       H.S. had learned in 2016 that her great uncle was an enrolled member of the

Cherokee Nation. In February 2017, after resolving discrepancies in the family's lineage,

which was time consuming, the Cherokee Nation declared Collin an Indian child and

intervened in the dependency proceedings. In April, the juvenile court determined that

ICWA applied prospectively to the dependency proceedings pursuant to section 224.3,

subdivision (e)(3).2 The Cherokee Nation asked the court to continue the section 366.26

hearing for 45 days to allow it to assess permanency plan options for Collin.



2       "If proper and adequate notice has been provided pursuant to Section 224.2, and
neither a tribe nor the Bureau of Indian Affairs has provided a determinative response
within 60 days after receiving that notice, the court may determine that the [ICWA] does
not apply to the proceedings, provided that the court shall reverse its determination of the
inapplicability of the [ICWA] and apply the act prospectively if a tribe or the Bureau of
Indian Affairs subsequently confirms that the child is an Indian child." (§ 224.3, subd.
(e)(3).)


                                             8
       The section 366.26 hearing was held on September 5, 2017, more than 25 months

after Collin was detained in protective custody. The juvenile court received reports from

the social worker, CASA, and Indian expert witness (Indian expert) in evidence, without

cross-examination.

       The social worker reported that Collin was receiving developmental services

through the San Diego Regional Center and would transition to another program to

continue receiving services. Collin had a history of slapping teachers, pulling hair,

scratching and biting peers, throwing food, and touching feces. On one occasion, he tried

to choke another child. His behaviors improved after he received additional support. His

teachers became adept at anticipating some of his triggers and intervening to prevent

oppositional and aggressive behaviors, which tended to occur when he received too much

stimuli.

       H.S. and James were having weekly supervised visits with Collin. They were

consistently on time and often appropriate with him. H.S. was attentive to Collin and

always provided snacks for the visit. Collin bit James at the end of one visit. James

responded appropriately by putting Collin in a time out.

       The social worker reported that Collin was specifically and generally adoptable,

and Caregivers were eager to adopt him. She believed that adoption was in Collin's best

interests. The parents had not made any significant changes to show they were

committed to sobriety and could safely care for Collin. James never tried to stop using

narcotics and did not participate in any treatment programs. H.S. continued to obtain

narcotic medication for pain even though her medical record was flagged. The social


                                             9
worker was concerned H.S. would never be able to stop using narcotics. Collin's special

needs required the parents to remain sober.

       The CASA said Collin was an energetic, active, and happy child. He was

constantly in motion. Caregivers provided him with a warm, loving, safe, and stable

home. They were looking forward to adopting him. Collin no longer wore a brace on his

legs. His speech appeared to be within normal limits. Collin was diagnosed with

attention deficit hyperactivity disorder and sensory processing disorder. He was

described as a smart boy with extreme and disruptive behavioral and sensory-seeking

issues. School staff reported that on visitation days with his parents, there was an

increase in Collin's aggressive behaviors. Caregivers provided Collin with the stable and

consistent environment he needed to thrive, and he was making progress in all areas of

his development. The CASA recommended that Collin stay in his current placement and

that the parents continue visiting as long as the visits were safe and supervised.

       The Indian expert said regretted that tribal customary adoption was not an option

for the Cherokee Nation because termination of parental rights was an extreme measure

within the Native community. The parents received 23 months of active reunification

efforts. During that time, H.S. did not demonstrate any commitment to sobriety. She

continued to insist she did not have, and never had, a substance abuse problem. H.S. said

her medical issues resulted in Collin's removal from her care. The Indian expert said

Collin could not be safely returned to H.S.'s care because of his special needs, H.S.'s long

history of substance abuse, and the nonrandom nature of her voluntary drug testing. The




                                              10
Indian expert concluded that Collin's continued custody by H.S. was likely to result in

serious emotional or physical damage to Collin.

       The Indian expert said James denied having a substance abuse problem and did

not take responsibility for the negative impact of drugs, whether prescribed or not, on his

parenting. James colluded with H.S. to obtain unnecessary opiates. He missed or arrived

late for all his service appointments and visitation. The Indian expert concluded that

Collin's continued custody by James was likely to result in serious emotional or physical

damage to Collin.

       H.S. testified she cared for Collin for the first 13 months of his life and they shared

a significant bond. At visits, he told her, "I love you mommy." H.S. did not believe it

would be harmful to him to return home. Collin loved his little brother. The brothers

saw each other three times a week and H.S. wanted them to grow up together. At visits,

Collin ran to her and jumped into her arms. He cried when she left and asked why his

brother could go home with her and he could not.

       H.S. said James had moved out of her home four months ago to facilitate her

reunification with Collin. She saw James every other day. H.S. said James never abused

drugs; he was on pain medication. James was going to have back surgery and would be

off his medications within two months. He was not in a substance abuse program. She

and James "just [went] to meetings."

       H.S. testified she last used drugs in December 2016 or January 2017, when she

took Percocet and prescription morphine for her C-section and fibroids. H.S. had been on

methadone since October 2015 and would discontinue its use in two weeks. She


                                             11
acknowledged she had not attended any of Collin's doctor appointments since the last

hearing or his recent educational assessment.

       The Cherokee Nation did not agree with the Indian expert's conclusion that

returning Collin to the parents would result in serious emotional or physical harm to him.

The parents appeared to be safely caring for their other child. The Cherokee Nation was

opposed to termination of parental rights.

       The juvenile court said having custody of one child did not necessarily mean H.S.

could adequately parent Collin. H.S. still did not understand why Collin was removed

from her care. The court found that active efforts had been made to provide services and

programs to prevent the breakup of the Indian family and that those efforts had proved

unsuccessful. The court further found, by proof beyond a reasonable doubt, that Collin's

continued custody by either parent would likely result in serious emotional or physical

damage to Collin. Finding that no statutory exceptions applied, the court terminated

parental rights and designated Caregivers as Collin's prospective adoptive parents.

                                      DISCUSSION

                                             I

                                             A

                                 The Parties' Contentions

       H.S. and James contend the evidence was insufficient to support the finding by

proof beyond a reasonable doubt that her or his continued custody was likely to result in

serious emotional or physical damage to Collin. H.S. contends the evidence shows that

by the time of the section 366.26 hearing, she had been sober for 10 months. James


                                             12
argues the Indian expert's declaration was based on the parents' past circumstances and

the fact Collin had special needs did not support the requisite finding of harm by proof

beyond a reasonable doubt. James contends he participated in many of Collin's special

needs appointments and proved during visitation he was capable of caring for his son. He

asserts the court was required to consider whether continuation of legal custody, not

merely physical custody, would be likely to cause emotional or physical damage to

Collin.

                                                B

                       Relevant Legal Principles and Standard of Review

          "ICWA was designed to protect the best interests of Indian children and promote

the stability and security of Indian tribes and families by establishing minimum federal

standards for the removal of Indian children from their families by state courts and the

placement of such children in foster or adoptive homes." (In re Jack C. (2011) 192

Cal.App.4th 967, 975-976 [declined to follow on another point by In re Abbigail A.

(2016) 1 Cal.5th 83, 96 fn. 3]; Adoptive Couple v. Baby Girl (2013) 570 U.S. 637, 642;

25 U.S.C. § 1902.) To accomplish this goal, ICWA sets forth minimum substantive and

procedural standards to protect the interests of Indian children and their families and

tribes. (Jack C., at p. 977.)

          In cases involving an involuntary termination of parental rights to an Indian child,

the state must demonstrate that "active efforts have been made to provide remedial

services and rehabilitative programs designed to prevent the breakup of the Indian family

and that these efforts have proved unsuccessful." (§ 1912(d).) A state court may not


                                               13
involuntarily terminate parental rights to an Indian child "in the absence of a

determination, supported by evidence beyond a reasonable doubt, including testimony of

qualified expert witnesses, that the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical damage to the child" (ICWA

detriment finding; § 1912(f).)

       "The evidence must show a causal relationship between the particular conditions

in the home and the likelihood that continued custody of the child will result in serious

emotional or physical damage to the particular child who is the subject of the child-

custody proceeding." (25 C.F.R. § 23.121 (2016).) Without a causal relationship,

"evidence that shows only the existence of community or family poverty, isolation, single

parenthood, custodian age, crowded or inadequate housing, substance abuse, or

nonconforming social behavior does not by itself constitute clear and convincing

evidence or evidence beyond a reasonable doubt that continued custody is likely to result

in serious emotional or physical damage to the child." (Ibid.) The United States

Department of Interior states: "These provisions recognize that children can thrive when

they are kept with their parents, even in homes that may not be ideal in terms of

cleanliness, access to nutritious food, or personal space, or when a parent is single,

impoverished, or a substance abuser. Rather, there must be demonstrated correlation

between the conditions of the home and a threat to the specific child's emotional or




                                             14
physical well-being." (U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for

Implementing the Indian Child Welfare Act (Dec. 2016) p. 53 (Guidelines).) 3

       Before we address the substantial evidence argument, we discuss James's

argument the court was required to consider whether continued legal custody of the child,

which would allow him to continue to enjoy visitation and other rights, was likely to

result in serious emotional or physical damage to the child. He contends the phrase

"continued custody" in title 25 United States Code section 1912(f) and Welfare and

Institutions Code section 366.26, subdivision (c)(2)(B)(ii), does not refer merely to

physical custody of the child but also to legal custody of the child. (In re Crystal K.

(1990) 226 Cal.App.3d 655, 667-668 (Crystal K.).)

       Legal custody refers to the right and responsibility to make the decisions relating

to the health, education, and welfare of a child. (Cf. Fam. Code, § 3006.) Physical

custody means that a child shall reside with and be under the supervision of a person,

subject of the power of the court to order visitation. (Cf. Fam. Code, § 3007.)

       Crystal K. does not support the parents' argument the juvenile court must consider

whether continued legal custody was likely to result in serious damage to the child

without considering whether continued physical custody was likely to result in serious

damage to the child. In Crystal K., in a stepparent adoption proceeding, the trial court

ruled ICWA did not apply because the child had not recently been in the father's physical

custody and had not been removed from his care pursuant to court order. (Crystal K.,



3     The Guidelines are instructive but nonbinding. (In re Alexandria P. (2016) 1
Cal.App.5th 331, 347.)

                                             15
supra, 226 Cal.App.3d at p. 668.) The reviewing court reversed the trial court, noting the

father had some type of legal parenting relationship with the child and held that the trial

court must comply with ICWA notwithstanding a parent's lack of recent physical custody

of the child. (Ibid.) Thus, Crystal K. stands for the proposition the trial court must apply

ICWA when a parent has established "some sort" of a legal relationship to his or her

Indian child. (Accord, Monroe County Dep't of Human Servs. v. Luis R. (In re Vaughn

R.) (Wis.Ct.App. 2009) 770 N.W.2d 795, 803 (Vaughn R.) [rejecting argument ICWA did

not apply because the parent had not had physical custody of the child.) Thus, Crystal K.

does not support the argument a parent can retain legal custody when the court has

determined that continued custody of the child by the parent would damage the child.

We could not locate any authority in a comprehensive review of state cases interpreting

25 U.S.C. section 1912(f) to support James's argument the court erred in terminating his

parental rights by failing to consider whether termination of legal custody was necessary

to prevent serious emotional or physical damage to Collin.

       With the exception of cases in which the parent argued 25 U.S.C. section 1912(f)

did not apply because the parent had not had physical custody of the child (see, e.g.,

Crystal K., supra, 226 Cal.App.3d at p. 668; In re Vaughn R., supra, 770 N.W.2d at p.

803; In the Interest of W.D.H. (Tex.Ct.App. 2001) 43 S.W.3d 30, 35 fn. 7; In re

Adoption of Baade (S.D. 1990) 462 N.W.2d 485, 490), state courts have either explicitly

or implicitly interpreted the phrase "continued custody" to include both legal and

physical custody, or have applied it without distinguishing between legal and physical

custody. (See, e.g., D.J. v. P.C. (Alaska 2001) 36 P.3d 663, 670 ["continued custody"


                                             16
under § 1912(f) refers to legal custody as well as physical custody]; In the Interest of

C.A.V. (Iowa Ct.App. 2010) 787 N.W.2d 96, 102 (C.A.V.) [explicitly defining "continued

custody" to include both legal and physical custody]; In the Matter of the Welfare of the

Children of: S.R.K. and O.A.K., Parents (Minn. 2018) 911 N.W.2d 821, 829-830

[applying "continued custody" without distinguishing between physical and legal

custody]; see also Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 994 [reversing

trial court's decision that continued custody of the type sought by father, i.e., contact by

mail or e-mail, and eventual visits in prison, would not result in serious emotional or

physical damage to the child].)

       Finally and significantly, in interpreting 25 U.S.C. section 1912(f), the Guidelines

state, "the evidence must show the existence of particular conditions in the home that are

likely to result in serious emotional or physical damage to the child . . . ." (Guidelines, at

p. 52, italics added.) This advisory interpretation further supports our conclusion that the

phrase "continued custody" does not refer solely (or alternatively) to legal custody, but

refers to both legal and physical custody in making the finding required under 25 U.S.C.

section 1912(f).4 (D.J. v. P.C., supra, 36 P.3d at p. 670; C.A.V., supra, 787 N.W.2d at p.



4       Distinguishing between legal and physical custody would result in anomalous
results for a dependent child. For example, if the court determined beyond a reasonable
doubt that continued physical custody would result in serious harm to the child, but did
not make the same finding as to the parent's continued legal custody, the court would not
be able to select a permanent plan of guardianship for the child because a guardian
assumes both legal and physical custody of his or her ward. Under a plan of
guardianship, "[t]he guardian assumes the care, custody, and control of the child" and
"the authority of the parent 'ceases.' " (Guardianship of Ann S. (2009) 45 Cal.4th 1110,
1124, 1123.) While the court has discretion to grant visitation, parental rights are
otherwise "completely suspended for the duration" of the guardianship. (Id., at p. 1123-

                                              17
102.) Thus, the trial court was not required to determine whether continued legal custody

was likely to result in serious emotional or physical damage to the child.

       We now turn to the issue whether the ICWA detriment finding is supported by

substantial evidence. (In re A.L. (2015) 243 Cal.App.4th 628, 645; In re Barbara R.

(2006) 137 Cal.App.4th 941, 951.) Under this standard, we review the entire record but

do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or

reweigh the evidence. Instead, we draw all reasonable inferences in support of the

findings, view the record favorably to the juvenile court's order, and affirm the order even

if there is other evidence to the contrary. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-

53.) The appellant has the burden of showing there is no evidence of a sufficiently

substantial nature to support the court's finding. (In re L.Y.L. (2002) 101 Cal.App.4th

942, 947.) " 'The test on appeal is whether substantial evidence supports the conclusion

of the trier of fact, not whether the evidence proves [the finding] beyond a reasonable

doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.)

       H.S. and James contend there is not substantial evidence in the record to support

the ICWA detriment finding. They contend the evidence shows they had been safely


1124.) In such a case, the court would be required to select a permanency plan of long-
term foster care. Of the permanency plan options available under the California
dependency scheme, only a plan of long-term foster care would allow a parent to retain
the right and responsibility to make decisions relating to his or her child's health,
education, and welfare. (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289.)
       We will not interpret "continued custody" to eviscerate the long-established goal
of proving the benefits of a safe, stable, and permanent home to a child who cannot be
safely returned to his parents' care. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"While the ICWA focuses on preserving Indian culture, it does not do so at the expense
of a child's right to security and stability." (In re D.S. (Iowa Ct.App. 2011) 806 N.W.2d
458, 469, quoting C.A.V., supra, 787 N.W.2d at p. 104.)

                                             18
caring for Collin's younger brother for more than a year, and H.S. had not used opiates

for seven months. H.S. further contends she was not informed of Collin's therapy,

medical, and education appointments, and would have attended them had she known of

them. James states he participated in reunification services and there was no current

evidence to show he had a substance abuse problem. The parents point out that the

Cherokee Nation disagreed with the Indian expert's conclusion that custody of Collin by

the parents was likely to result in serious emotional or physical damage to him.

(§ 1912(f).)

       We conclude there is substantial evidence to support the ICWA detriment finding.

The record shows that the parents were addicted to opiates, did not believe that taking

prescription medication was substance abuse, and did not understand the protective issues

in the case. The record further shows that Collin had many special needs and that the

parents did not address those needs by participating in or attending his many

appointments for services, many of which were scheduled on a consistent, ongoing basis.

The parents were unable to meet Collin's needs while he was in their care. They did not

participate in his treatment services during the case. Collin experienced extreme

behavioral problems. He needed focused attention and consistent parenting. James's

parenting was inconsistent at times. He watched movies on his cell phone rather than

engaging with Collin. Throughout the reunification period, H.S. and James continued to

use opiates and did not participate in reunification services. As a result, their visitation

with Collin was never expanded beyond supervised visits. Thus, there is a "demonstrated




                                              19
correlation between the conditions of the home and a threat to [Collin's] emotional or

physical well-being." (Guidelines, at p. 53.)

       In addition, the juvenile court properly considered the parents' history of substance

abuse. The court not only was required to consider the parents' current circumstances but

was also required to assess those circumstances in view of their history to "evaluate the

likelihood that [they] would be able to maintain a stable, sober and noncriminal lifestyle

for the remainder of [Collin's] childhood." (In re Brian R. (1991) 2 Cal.App.4th 904,

918.) H.S. had a lengthy and significant pattern of seeking drugs by falsely claiming pain

from various ailments, including a nonexistent brain tumor. The court also considered

H.S.'s habitual dishonesty and James's denial of the severity of her substance abuse

problem as well as his own continued opiate abuse. Each parent had resumed taking

opioid medication after overdosing, H.S. several times. After reunification services were

terminated, each parent tested positive for opioids at a level indicating abuse. James

spent a night in the emergency room after his morphine levels were found to be in excess

of 100,000 ng/dl, claiming he was suffering from food poisoning. The court did not

abuse its discretion in discounting H.S.'s current claim of sobriety and James's assertion

he was not abusing drugs because he was taking prescription medications, and

byrecognizing that the parents' history of opioid addiction and ongoing denial of any

problem presented a substantial risk of relapse, and therefore presented a threat to

Collin's emotional or physical well-being. (Guidelines, at p. 53.)

       We conclude the evidence amply shows a causal relationship between the

particular conditions in the home and the likelihood that continued custody of the child


                                             20
will result in serious emotional or physical damage to the particular child who is the

subject of the child-custody proceeding. (25 C.F.R. § 23.121.) There is substantial

evidence to support the ICWA detriment finding. (§ 1912(f).)

                                             II

                                             A

                                 The Parties' Contentions

       H.S. and James contend the juvenile court erred when it determined the beneficial

parent-child relationship exception did not apply. Each parent argues they proved both

elements of section 366.26, subdivision (c)(1)(B)(i) by maintaining regular visitation and

contact with Collin and showing he would benefit from continuing his relationship with

them. H.S. asserts Collin developed a strong bond with her during his first 13 months

and that bond was continued through regular and consistent visitation. She demonstrated

a parental role and appropriate parenting during visits. In addition, the Indian expert

concluded that Collin would benefit from continued visitation.

       James contends there is no legitimate reason to order adoption instead of

guardianship. He argues adoption by Grandfather would only confuse Collin. As the

Indian expert recognized, adoption was not the preferred alternative plan because it

would deprive Collin of the benefit of a continued relationship with his parents.

                                             B

                    Relevant Legal Principles and Standard of Review

       At a permanency planning hearing, the court may order one of three alternatives—

adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289,


                                            21
296-297.) If a child is adoptable, there is a strong preference for adoption over the

alternative permanency plans. (Id. at p. 297; San Diego County Dept. of Social Services

v. Superior Court (1996) 13 Cal.4th 882, 888.) If the court determines that a child is

likely to be adopted, the burden shifts to the parent to show that termination of parental

rights would be detrimental to the child under one of the exceptions listed in

section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-

1345.)

         An exception to termination of parental rights applies where "[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).) "Evidence of 'frequent and

loving contact' is not sufficient to establish the existence of a beneficial parental

relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) " '[B]enefit

from continuing the . . . relationship' " means the parent-child relationship "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. (1994)

27 Cal.App.4th 567, 575 (Autumn H.).) "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." (Ibid.)

         "We apply the substantial evidence standard of review to the factual issue of the

existence of a beneficial parental relationship, and the abuse of discretion standard to the




                                              22
determination of whether there is a compelling reason for finding that termination would

be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)

                                            C

           The Beneficial Parent-child Relationship Exception Does Not Apply

       H.S. contends she cared for Collin for 13 months and established a significant

parent-child bond with him, and continued that bond through regular visitation and

contact. We are not persuaded by her argument Collin had a beneficial parent-child

relationship with her. The record shows that Collin became a dependent of the juvenile

court because his parents had long-standing, significant problems with narcotics abuse

that adversely affected Collin. When he was removed from his parents' care, Collin had

unaddressed issues, including anemia, respiratory problems, eczema and allergies,

hearing and speech deficiencies, hyperactivity, and sensory processing disorder. The

social worker said Collin's special needs required the parents to remain sober.

       Throughout the reunification period, H.S. did not demonstrate a commitment to

Collin by participating in reunification services to overcome her addiction. At the time of

the section 366.26 hearing, the parents had not made any significant changes to show

they were committed to sobriety and could safely care for Collin. James never tried to

stop using narcotics and did not participate in any treatment programs. H.S. continued to

obtain narcotic medication, claiming she was in pain for previously undiagnosed chronic

ailments. H.S. denied there were any protective issues that had necessitated Collin's

removal and his continuation in out-of-home care.




                                            23
       In addition, the "benefit" prong of section 366.26, subdivision (c)(1)(B)(i) requires

the juvenile court to assess whether the 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." (Autumn H., supra, 27

Cal.App.4th at p. 575.) The record shows the court did not abuse its discretion when it

concluded that the continuation of the parent-child relationship did not outweigh the well-

being Collin would receive from a permanent home with his Caregivers. At the time of

the section 366.26 hearing, Collin was three years and three months old. He had been in

the Caregivers' home for twenty-five months. Prior to his removal, Caregivers took care

of Collin three to four times a week, including weekends, and took him to baseball

games, the beach, the park, the zoo, Disneyland, and swimming. After Collin was

removed from the parents' care, Caregivers made a tremendous effort to provide Collin

with the services he required. The record shows that Collin displayed extremely

challenging behaviors. His occupational therapist said Collin might need five to ten more

years of therapy. Two years after Collin was removed from the parents' custody, H.S.'s

therapist reported that H.S. had not informed her about Collin's special needs and she was

therefore unable to fully assess whether H.S. was capable of caring for Collin and his

younger brother. Prior to the dependency, and during the 25-month dependency, H.S.

and James did not demonstrate an ability to regularly and consistently attend Collin's

extensive appointments for supportive and remedial services, nor did they display an

ongoing interest in his progress.




                                            24
       When a child is adoptable, there is a strong preference for adoption over less

secure and stable permanent plans. (In re J.C. (2014) 226 Cal.App.4th 503,528; Jones T.

v. Superior Court (1989) 215 Cal.App.3d 240, 251.) We reject James's argument that

termination of parental rights would be detrimental to Collin because adoption by

Grandfather would confuse him. The record shows Collin has an established relationship

with Grandfather, who has assumed full parental responsibility for him. While Collin

may not understand the changed legal status until he is older, we do not believe the

continuation of his relationship with Grandfather will confuse him. Their relationship is

already parental in nature.

       We conclude the juvenile court did not err in determining Collin would greatly

benefit from the security of a stable, permanent home with committed, capable adoptive

parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The record supports the findings

Collin will not be greatly harmed by the loss of the parent-child relationship and that no

exceptions to termination applied. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., at p. 575.)




                                            25
                                    DISPOSITION

      The findings and orders terminating parental rights are affirmed.



                                                                          O'ROURKE, J.

WE CONCUR:



NARES, Acting P. J.



DATO, J.




                                           26
Filed 7/27/18
                           CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA


In re COLLIN E., a Person Coming Under
the Juvenile Court Law.
                                                   D072988
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                   (Super. Ct. No. EJ3941)
        Plaintiff and Respondent,

        v.
                                                ORDER CERTIFYING OPINION FOR
H.S. et al.,                                    PUBLICATION

        Defendants and Appellants.


THE COURT:

        The opinion in this case filed July 2, 2018, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

        ORDERED that the words "Not to Be Published in the Official Reports" appearing




                                              27
on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.




                                                                     NARES, Acting P. J.

Copies to: All parties




                                            28
