Filed 3/16/16 In re A.A. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re A.A., et al., Persons Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                                                F072126
SOCIAL SERVICES,
                                                                            (Super. Ct. No. 13CEJ300177)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
M.A.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Fresno County. Mary Dolas,
Judge.
         Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Detjen, J. and Franson, J.
       M.A. (mother) appeals from a juvenile court order terminating her parental rights
and selecting adoption as the permanent plan (Welf. & Inst. Code, § 366.26)1 for her two-
and one-year-old daughters. Mother contends the juvenile court erred in not applying the
exception to adoption found in section 366.26, subdivision (c)(1)(B)(i), (hereafter “the
beneficial relationship exception”). The beneficial relationship exception pertains where
the evidence supports “a compelling reason for determining that termination would be
detrimental to the child [because] [t]he parents maintained regular visitation and contact
with the child and the child would benefit from continuing the relationship.” (§ 366.26,
subd. (c)(1)(B)(i).) We affirm.
                       PROCEDURAL AND FACTUAL SUMMARY
       These dependency proceedings were initiated in June 2013, when the Fresno
County Department of Social Services (department) took then three-month-old A.A. into
protective custody after mother, then 15 years old and a juvenile dependent, broke her
mother’s window and left with A.A. The reporting party stated that mother was “rough”
with A.A. and was receiving mental health services but was out of control and
aggressive, and repeatedly ran away from home. Mother had been removed from her
parents because of her out of control behavior and placed with her mother on family
maintenance services. At the time, mother was being treated for bipolar disorder.
       The juvenile court ordered A.A. detained pursuant to a dependency petition filed
by the department, and ordered the department to offer mother parenting classes,
substance abuse and mental health evaluations, and random drug testing. The court also
ordered supervised visits to occur a minimum of twice a week. The department placed
A.A. in foster care.




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


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       In September 2013, the juvenile court sustained the petition and adjudged A.A. a
dependent child. (§ 300, subd. (b).) In October 2013, the department filed a section 388
petition asking the juvenile court to order unsupervised visits and grant it discretion to
increase visitation so that mother could bond with A.A. Mother’s ability to control her
temper and engage A.A. had improved significantly. The court granted the petition.
       In November 2013, the juvenile court exercised its dependency jurisdiction over
A.A. and ordered the department to provide mother the services previously offered plus a
domestic violence evaluation. As a result of the domestic violence evaluation, mother
was referred for an anger management program. The court also found Terrance H. to be
A.A.’s biological father and denied him reunification services. The court set the six-
month review hearing for May 2014.
       Meanwhile, in February 2014, mother gave birth to another daughter whose
initials are also A.A. We will refer to this child as “the baby.” The department took the
baby into protective custody because mother was not taking her psychotropic medication
and continued to act out aggressively. The department placed the baby with A.A. in
foster care. The identity of the baby’s father was unknown.
       The juvenile court exercised its dependency jurisdiction over the baby and ordered
mother to complete the same services it ordered in A.A.’s case.
       In June 2014, the juvenile court granted a section 388 petition filed by the
department asking the court to limit mother’s visitation to supervised visits. The
department’s request was prompted by an incident in late May 2014, when mother
became upset and left school. She had not returned or made contact with the social
worker.
       Mother received reunification services for both children until May 2015. During
that time, she completed most of her court-ordered services. In addition, she was
evaluated by a psychologist who opined that she did not pose an insurmountable risk to
the children, and her therapist questioned whether she had bipolar disorder. Mother’s

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parenting skills had improved and she was loving toward the children. However, she
struggled to parent both children during her four-hour supervised visits and expressed
concern about her ability to handle them. At the same time, the children’s foster mother
was interested in adopting them.
          In January 2015, the juvenile court conducted a combined 12- and 18-month
review hearing on the department’s recommendation to terminate mother’s reunification
services. Mother appeared with her attorney and submitted the matter on the
department’s reports. The court terminated reunification services and set a section
366.26 hearing for May 2015.
          In its report for the section 366.26 hearing, the department recommended the
juvenile court terminate mother’s parental rights and order adoption as the children’s
permanent plan. The department reported that the children were doing well in the care of
their prospective adoptive mother and appeared to share a parent/child relationship with
her. In contrast, they enjoyed seeing mother but had only minimal parent/child
interactions with her. Most of their interactions consisted of playtime. In addition,
mother had not demonstrated the ability to provide them structure, nurturance or safety
and often directed them to their “mommy,” referring to the prospective adoptive mother,
when she was unable to control them.
          The juvenile court continued the section 366.26 hearing and conducted it in
August 2015 as a contested hearing. In July 2015, Jerrell R. appeared for the first time,
claiming to be the baby’s father. At that point, the court determined him an alleged
father.
          Mother testified she had been visiting her daughters once a month for an hour
since May 2015. Prior to that, she visited them twice a week for four hours. The
children were happy to see her and followed her whenever she left the room. During
their visits, mother took them out or stayed in and watched movies or played games with
them. She also changed their diapers and fed them. Mother wanted the court to know

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that she objected to having her parental rights terminated and that she could provide for
the children. She had a full-time job and would have her own apartment within six
weeks.
         Social worker Miranda Martinez testified she observed three visits between
mother and the children, the last one in early May 2015. She said the children viewed
mother as a friendly visitor, explaining that they smiled and greeted her but then played
on their own. She did not observe a strong parent/child attachment. Mother told
Martinez the baby did not know her and her time spent with A.A. was more play than
nurturing. Martinez disagreed that mother visited the children twice a week, stating that
mother missed half of the visits. She also said that mother became frustrated after an
hour into the two visits she supervised and, according to the visitation logs, mother was
often frustrated. When the children acted up, she called the foster mother to come get
them early. Even when the children were behaving in an age-appropriate manner, mother
got “really flustered” and asked what time it was.
         Martinez further testified that she was concerned about mother’s mental health.
She explained that another social worker oversaw mother’s medications so she did not
know what medications mother was prescribed. She was aware, however, that mother
had been diagnosed with posttraumatic stress disorder and general depression. She
testified the children were doing wonderfully with their prospective adoptive mother and
shared a close sibling relationship. She did not believe it would be detrimental to them to
terminate mother’s parental rights. Rather, she believed it would be detrimental to them
not to terminate her rights.
         Mother, recalled to the stand, denied being frustrated and wanting to leave visits
early. She said she only asked to leave visits early when she had somewhere to be
afterwards and needed to catch the bus. On those occasions, she only asked to leave five
minutes early. She disagreed that she did not fill a parental role in her daughters’ lives.



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       At the conclusion of the hearing, the juvenile court found that the children were
adoptable and that mother failed to meet her burden of proving that the beneficial
relationship exception applied. The court found that adoption was the appropriate
permanent plan for the children and terminated mother’s parental rights, as well as those
of Terrance and Jerrell.
       This appeal ensued.
                                           DISCUSSION
       Section 366.26 governs the proceedings at which the juvenile court must select a
permanent placement for a child adjudged its dependent. If the court determines it is
likely the child will be adopted, the statute requires the court to terminate parental rights.
(§ 366.26, subd. (c)(1).) The court’s prior finding that it would be detrimental to return
the child to parental custody, and its order terminating reunification services, constitute a
sufficient basis for terminating parental rights unless the court finds that one of the six
exceptions specified in section 366.26, subdivision (c)(1)(B) would render termination of
parental rights detrimental to the child. The party seeking to establish the existence of
one of the section 366.26, subdivision (c)(1) exceptions bears the burden of producing the
evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
       When a juvenile court concludes that the party with the burden of proof did not
carry the burden and the court rejects a detriment claim and terminates parental rights, the
first issue on appeal is whether the evidence compels a finding for appellant as a matter
of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.) “Specifically, the question
becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and
(2) ‘of such a character and weight as to leave no room for a judicial determination that it
was insufficient to support a finding.’” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
If appellant prevails, then the next question is whether the existence of that relationship
constituted a “compelling reason for determining that termination would be detrimental”
(§ 366.26, subd. (c)(1)(B)), thus rendering the juvenile court’s termination order an abuse

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of discretion. (In re Bailey J. (2010) 189 Cal.App.4th 1308.) We conclude mother failed
to establish the existence of a beneficial relationship as a matter of law.
       Mother contends the beneficial relationship exception applied because she
maintained regular visitation and contact with the children and because she shared an
emotional bond with them and occupied a parental role in their lives. She points to
evidence that she and the children hugged and kissed throughout their visits and that she
cared for them in a way that a parent would by changing their diapers and feeding them.
       The juvenile court did not make an express finding as to whether mother
maintained regular visitation and contact with the children.2 However, even if it had
found that she did, mother failed to prove the second prong of the exception; i.e., that the
children would benefit from continuing their relationship with her. “To meet the burden
of proving the section 366.26, subdivision (c)(1)(B)(i) exception 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., supra, 180 Cal.App.4th at p. 1527.)
       A.A. was removed from mother’s physical custody in June 2013 at the age of three
months and the baby was removed in February 2014 at birth. By the time of the section
366.26 hearing in August 2015, both children had spent their entire lives, for all practical
purposes, in the care of their prospective adoptive mother. Their only contact with
mother was during visitation which had been supervised for over a year. Further, though
mother and the children were very affectionate and loving together, there is no evidence
that they viewed her as a parental figure.




2       The juvenile court acknowledged that mother maintained “somewhat regular”
visitation and, at times, “more consistent” contact. However, the court’s focus in finding
the beneficial relationship exception did not apply was on the absence of a parental role
or strong emotional attachment.


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       Even if mother had established a beneficial relationship, she would be
hard-pressed on this evidence to show that terminating her parental rights would be
detrimental to the children. There was indisputable evidence that the children were
adoptable and that their prospective adoptive mother wanted to adopt them. Further,
there was no evidence that terminating parental rights would be detrimental to the
children. Mother did not, for example, offer a bonding study or other evidence showing
that severing her parental rights would have a deleterious effect on the children. And
Martinez told the court not only that terminating parental rights would not be detrimental
to the children, but that not terminating them would be.
       Mother relies on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) to
support her contention that she established the beneficial relationship exception. But the
following brief description of Amber M. demonstrates that Amber M. offers no support
for mother’s claim of error. “In [Amber M.], the court reversed termination of parental
rights where a psychologist, therapists, and the court-appointed special advocate
uniformly concluded ‘a beneficial parental relationship … clearly outweigh[ed] the
benefit of adoption.’ Additionally, two older children had a ‘strong primary bond’ with
their mother, and the younger child was ‘very strongly attached to her.’” (In re J.C.
(2014) 226 Cal.App.4th 503, 533.) No such evidence of a bond or the existence of a
beneficial relationship was presented in this case.
       We conclude the evidence in this case does not compel a finding as a matter of law
that mother had a beneficial relationship with the children. Consequently, the beneficial
relationship exception to adoption does not apply and the juvenile court did not err in
terminating mother’s parental rights. Thus, we affirm.
                                      DISPOSITION
       The August 7, 2015 order approving adoption as the permanent plan for A.A. and
the baby and terminating mother’s parental rights is affirmed.



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