Filed 3/25/15 In re W.D. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re W.D., a Person Coming Under the
Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                                      D066601
HUMAN SERVICES AGENCY,

         Plaintiff and Respondent,                               (Super. Ct. No. CJ1132)

         v.

COLLEEN D. et al.,

         Defendants and Appellants.


         APPEAL from an order of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.



         Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and

Appellant Colleen D.

         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

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

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

       Mark S. appeals from an order of the juvenile court terminating his parental rights

to William D. Mark's sole contention on appeal is that the juvenile court erred in

concluding that the beneficial relationship exception to termination of parental rights and

adoption found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)

is not applicable here.1 Further, Colleen D., William's mother (Mother), has filed an

appeal from the order terminating her parental rights, with the substance of her appeal

limited to incorporating by reference the arguments in Mark's brief and arguing that if

Mark's parental rights are restored, her parental rights should be as well.2

       We conclude the juvenile court did not err in concluding that Mark failed to

establish that the beneficial parent-child relationship exception to adoption applies to

him. We accordingly affirm the order terminating Mark's parental rights. As Mother's

argument is wholly dependent on Mark's argument, we also affirm the order terminating

Mother's parental rights.




1       Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.

2      Mother's notice of appeal indicates she is appealing from the denial of her section
388 petition, which sought to place William with a maternal aunt in Illinois. As Mother
has not presented any argument in her appellate briefing on that issue, she has abandoned
any claim of error on the section 388 petition, and we do not further discuss the section
388 petition. (See In re S.C. (2006) 138 Cal.App.4th 396, 408.)
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                                            I

                  FACTUAL AND PROCEDURAL BACKGROUND

      William was born in November 2012. When William was seven months old, the

San Diego County Health and Human Services Agency (the Agency) filed a petition

under section 300 alleging that Mother had failed to protect William due to her

methamphetamine use. At the June 20, 2013 detention hearing, the juvenile court

ordered that William be detained in foster care. Further, as Mother identified Carlos M.

as William's biological father, the juvenile court ordered the Agency to conduct a search

for him.

      The juvenile court made a true finding on the section 300 petition on August 5,

2013, with an order that William be placed in foster care and that the Agency provide

Mother with reunification services. At the same hearing, Mark, who was Mother's

boyfriend, appeared and requested presumed father status.

      Based on paternity testing, it was determined that Carlos is William's biological

father. Subsequently, however, Carlos requested that he be stricken from the section 300

petition as William's alleged father. On November 20, 2013, the juvenile court granted

Carlos's request and designated Mark as the presumed father pursuant to Family Code

section 7611, subdivision (d). The Agency submitted a case plan for Mark, including

parenting education and substance abuse services, which the juvenile court approved on

December 9, 2013.

      At the contested six-month review hearing on April 8, 2014, the juvenile court

terminated reunification services for Mother and Mark, finding that neither of them had

                                            3
made substantive progress with their case plans. In the addendum report for the hearing,

the Agency noted that substance abuse continued to be a problem for both Mother and

Mark. Mother failed to show up for drug tests on multiple occasions; and since being

designated a presumed father, Mark had not made himself available for drug testing and

"no-showed" for all of the on-demand drug tests. Further, Mark had two pending

criminal proceedings for drug-related crimes, with arrests on January 28 and February 6,

2014. Both Mother and Mark also had unstable housing situations, with the Agency's

February 4, 2014 report describing them as homeless. As for visitation, Mother and

Mark had failed to attend multiple scheduled visits with William, and when Mark did

attend the visits he did not demonstrate interest in supervising William. Earlier reports

from the Agency stated that Mark had fallen asleep during several visits with William,

was often late to visits, and rarely interacted with William.

       On August 22, 2014, the juvenile court conducted a permanency planning hearing

pursuant to section 366.26. Both Mother and Mark were in custody, but appeared at the

hearing. Mark and Mother both argued that the beneficial relationship exception in

section 366.26, subdivision (c)(1)(B)(i) applied, and a permanent plan not involving

termination of parental rights, such as long-term foster care or guardianship, should be

adopted.

       As relevant to whether the beneficial relationship exception applied to Mark, the

Agency's report for the section 366.26 hearing described Mark's recent interactions with

William. Neither Mother nor Mark had any visits with William between April 2014 and

June 16, 2014. Although the Agency's report described a few instances of Mark and

                                              4
William playing side by side during visits, many of their interactions were strained or

negative. During the June 16 visit, William "struggled to engage with his parents" and

separated easily. On the June 24 visit, Mark left the visiting room because of a bad

toothache and then was asked by security to leave the building because he was shaking.

On June 26, Mark did not attend a scheduled visit. On July 3, Mark started falling asleep

during the visit, and William began to cry while Mark was sitting next to him. At a

July 8 visit, William did not like being held by Mark and would whimper when Mark

tried to carry him. As the Agency summarized the relationship between Mark and

William, "[Mark] has demonstrated that it appears to be a challenge to engage in a

father[-]son interaction with William. [Mark] slept on many of the visits and displayed a

disinterested attitude when having contact with William. . . . [Mark] did not complete a

drug treatment program and was suspected to be under the influence of drugs during

several of his visits with William. . . . The relationship that [Mark] has with William

does not rise to the level of a parent-child relationship as he has essentially failed to

maintain his role as a parent."

       After finding that William would likely be adopted, the juvenile court concluded

that the beneficial relationship exception to adoption did not apply to Mark or Mother.

Neither parent had engaged in regular and consistent visitation, and even if they had,

severing the parent-child relationship would not deprive William of a substantial positive

emotional attachment such that he would be greatly harmed. The juvenile court found

by clear and convincing evidence that adoption was in William's best interests, and it



                                               5
terminated the parental rights of Mother and Mark, ordering that William be placed for

adoption.

                                             II

                                      DISCUSSION

A.      The Juvenile Court Did Not Err in Concluding That the Beneficial Relationship
        Exception to Adoption Does Not Apply to Mark

       The sole issue presented in Mark's appeal is whether the juvenile court erred in

concluding that the beneficial relationship exception to adoption was not established.

       1.     Applicable Law

       At a permanency planning hearing, once the juvenile court finds by clear and

convincing evidence that the child is likely to be adopted within a reasonable time, the

court is required to terminate parental rights and select adoption as the permanent plan,

unless the parent shows that termination of parental rights would be detrimental to the

child under one of several statutory exceptions. (In re Michael G. (2012) 203

Cal.App.4th 580, 589.) One of these statutory exceptions is the beneficial relationship

exception to adoption, which applies when it would be detrimental to the child to

terminate parental rights in that "[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).) The burden is on the party seeking to establish the

beneficial relationship exception to produce evidence establishing the exception is

applicable. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Once the

juvenile court finds that a parent has met his or her burden to establish the requirements


                                             6
of the beneficial relationship exception are present, the juvenile court may chose a

permanent plan other than adoption if it finds the beneficial relationship to be "a

compelling reason for determining that termination would be detrimental to the child."

(§ 366.26, subd. (c)(1)(B); see Bailey J., at p. 1315.)

       We apply a substantial evidence standard of review to a juvenile court's findings

on whether the requirements for the beneficial relationship exception have been

established. (Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)3

       "Overcoming the statutory preference for adoption and avoiding the termination of

parental rights requires the parent to show both that he or she has maintained regular

visitation with the child and that the child would benefit from continuing the

relationship." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643, italics added.) In this

case, the juvenile court found that Mark did not establish either requirement. As we will

explain, we agree.




3       As the Agency notes, there is some debate in recent case law on the proper
standard of review regarding the beneficial relationship exception. In In re J.C. (2014)
226 Cal.App.4th 503, the court applied the substantial evidence standard of review to the
factual issues of whether the parent maintained regular visitation and contact with the
child and whether the parent proved he or she had a beneficial parental relationship with
the child. However, as to the weighing test, in which the juvenile court balances the
parent-child relationship against the benefits the child would derive from adoption to
decide whether the relationship is a compelling reason to chose a permanent plan other
than adoption, the abuse of discretion test applied to "[t]his ' ". . . quintessentially"
discretionary decision.' " (Id. at p. 531; see Bailey J., supra, 189 Cal.App.4th at
pp. 1314-1315.) We need not take a position on that issue, as the juvenile court here did
not find a beneficial parental relationship and thus did not proceed to weighing whether
that relationship was a compelling reason to chose a permanent plan other than adoption.

                                              7
        2.     Substantial Evidence Supports a Finding That Mark Did Not Maintain
               Regular Visitation

        The first requirement for the application of the beneficial relationship exception is

regular visitation by the parent. "Regular visitation exists where the parents visit

consistently and to the extent permitted by court orders." (In re I.R. (2014) 226

Cal.App.4th 201, 212.) "Sporadic visitation is insufficient to satisfy the first prong of the

parent-child relationship exception to adoption." (In re C.F. (2011) 193 Cal.App.4th 549,

554.)

        Here, Mark missed numerous visits with William. For example, in the six months

prior to the August 22, 2014 permanency planning hearing, Mark failed to attend

scheduled visits on March 18 and 25, April 1, and June 26, 2014, and no visits were

scheduled between sometime in April 2014 and June 16, 2014. In prior periods, Mark

had failed to attend several other visitation appointments, including, most recently,

January 21 and 28, and March 11, 2014.

        In light of the above, substantial evidence supports the juvenile court's finding that

Mark did not engage in regular visitation with William. (See In re J.C., supra, 226

Cal.App.4th at p. 531 [substantial evidence supported the juvenile court's finding that the

mother did not maintain consistent visitation when she missed five visits, cancelled and

changed plans at the last minute, and missed other visits during the last weeks of the

dependency case].)




                                              8
       3.     The Evidence Supports the Juvenile Court's Determination That Mark Did
              Not Have a Beneficial Relationship with William

       Mark also failed to meet his burden to establish that he had a relationship with

William that William would benefit from continuing.

       The statutory phrase "benefit from continuing the relationship" (§ 366.26, subd.

(c)(1)(B)(i)) refers to a parent-child relationship 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 other words, the court balances the strength and

quality of the natural parent[-]child relationship in a tenuous placement against the

security and the sense of belonging a new family would confer. 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." (Autumn H., supra, 27

Cal.App.4th at p. 575.)

       To meet the burden of proof to establish a beneficial relationship, "the parent must

show more than frequent and loving contact, an emotional bond with the child, or

pleasant visits — the parent must show that he or she occupies a parental role in the life

of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527; see In re Jason J. (2009)

175 Cal.App.4th 922, 936-937 (Jason J.); In re Derek W. (1999) 73 Cal.App.4th 823, 827

(Derek W.).) The evidence must establish more than merely "a loving and happy

relationship" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419), and the parent must

be more than " 'a friendly visitor.' " (Jason J., at p. 938.) "A child who has been


                                              9
adjudged a dependent of the juvenile court should not be deprived of an adoptive parent

when the natural parent has maintained a relationship that may be beneficial to some

degree, but that does not meet the child's need for a parent." (In re Angel B. (2002) 97

Cal.App.4th 454, 466.) "It is only in an extraordinary case that preservation of the

parent's rights will prevail over the Legislature's preference for adoptive placement." (In

re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

       Here, Mark did not have a close parental relationship with William. As the

evidence showed, when Mark visited William, there was little interaction between them.

Mark often slept or appeared disinterested in the visit. On recent visits, William reacted

negatively to Mark, whimpering or crying when Mark approached him, and separated

easily at the end of the visits. Based on the social worker's observation of the visits

between Mark and William, the Agency's report observed that it "appears to be a

challenge" for Mark "to engage in a father[-]son interaction with William."

       Based on this evidence, the juvenile court reasonably could conclude that Mark

did not establish that he "occupies a parental role in the life of the child" (In re I.W.,

supra, 180 Cal.App.4th at p. 1527), and that Mark's relationship to William "bears no

resemblance to the sort of consistent, daily nurturing that marks a parental relationship."

(Derek W., supra, 73 Cal.App.4th at p. 827.) The beneficial relationship exception does

not apply, as "[t]here is no evidence [William] had any needs only [Mark] can satisfy, or

that he has the type of emotional attachment to [Mark] that would cause [William] to be

greatly harmed if parental rights were terminated." (Jason J., supra, 175 Cal.App.4th at

p. 938.)

                                              10
       We accordingly conclude that there is no merit to Mark's challenge to the juvenile

court's determination that the beneficial relationship to adoption is inapplicable to Mark

B.     Mother's Appeal Lacks Merit

       As we have explained, Mother's appeal is limited to incorporating by reference

Mark's briefing, and arguing that if Mark succeeds in restoring his parental rights, her

rights should be restored as well. As we have determined that Mark's appeal lacks merit,

we conclude that Mother's appeal also lacks merit.

                                      DISPOSITION

       The order terminating Mark and Mother's parental rights is affirmed.



                                                                                  IRION, J.

WE CONCUR:



MCINTYRE, Acting P. J.



O'ROURKE, J.




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