Filed 4/9/15 In re O.H. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 O.H., a Person Coming Under the
Juvenile Court Law.

SAN DIEGO HEALTH AND HUMAN                                       D066830
SERVICES AGENCY,

         Plaintiff and Respondent,                               (Super. Ct. No. J514896D)

         v.

EMMETT W. et al.,

         Defendants and Appellants.


         APPEALS from an order of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.



         Linda Rehm, under appointment by the Court of Appeal, for Defendant and

Appellant Emmett W.

         Suzanne Davison, under appointment by the Court of Appeal, for Defendant and

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

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



          This is an appeal following the juvenile court's order terminating the parental

rights of Kellie B., O.H.'s mother, and Emmett W., O.H.'s biological father. Kellie

contends that the trial court erred in concluding that the beneficial relationship exception

to adoption did not apply here.1 Emmett contends that the trial court erred in denying his

petition under Welfare & Institutions Code section 388 seeking reversal of the order

terminating the reunification period so that he could be provided with reunification

services, or alternatively have O.H. placed with him.2 We conclude that appellants'

contentions are without merit, and we accordingly affirm the order terminating parental

rights.

                                                I

                     FACTUAL AND PROCEDURAL BACKGROUND

          In June 2013, shortly after O.H.'s premature birth, the San Diego County Health

and Human Services Agency (the Agency) filed a petition under section 300 alleging that

O.H. and Kellie both tested positive for methamphetamine or amphetamine at the time of

O.H.'s birth and that Kellie tested positive for drugs during prenatal visits and admitted to

1      We refer to the parties by their first names to preserve confidentiality, and we
intend no disrespect in doing so.

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

                                                2
using alcohol while pregnant. O.H was in the neonatal unit at the hospital, and the

Agency recommended that he be detained in a foster home when released. Kellie

reported that O.H., Sr., was O.H.'s father. At the June 21, 2013 detention hearing, the

juvenile court ordered that O.H. be detained in out-of-home care.

       A paternity test showed that O.H., Sr., was not the biological father, and on

August 8, 2013, the juvenile court struck O.H., Sr., from the petition and entered a

judgment of nonpaternity. Kellie identified " 'Jay' " to the juvenile court as the possible

biological father of O.H.

       At the September 4, 2013 disposition hearing, the juvenile court declared O.H. to

be a dependent of the court and ordered that he be placed in the home of a nonrelative

extended family member, where he had resided since August 29, 2013. The Agency was

ordered to provide reunification services to Kellie. On February 24, 2014, O.H.'s

caregivers were granted de facto parent status.3

       At the six-month review hearing on March 28, the juvenile court terminated

reunification services for Kellie, finding that she had not made substantive progress with

her case plan, and set a date for a permanency planning hearing. As the Agency's report

stated, Kellie delayed in entering a substance abuse program, and once enrolled had not

been successful because she suffered several relapses. However, Kellie did engage in

regular and positive visitation with O.H.




3      All further year references are to calendar year 2014 unless otherwise indicated.

                                              3
       On June 16, Emmett contacted the Agency and stated that based on a recent

conversation with Kellie, he might be O.H.'s biological father. Emmett told the Agency

that if he was determined to be the father, he wanted to do what was required to have

O.H. placed with him. Emmett explained that he was planning to enter an alcohol

treatment program because of a recent arrest for driving under the influence, and that he

had a criminal history of possession and being under the influence of cocaine, but

claimed to have last used cocaine in 2010.

       The juvenile court held a special hearing on June 30 to address Emmett's paternity

and ordered DNA testing. Because Emmett was in a residential rehabilitation program at

the Salvation Army that he could not physically leave for 30 days, Emmett requested that

the paternity test be put off for 30 days. The juvenile court accordingly ordered that

paternity testing take place on July 31. At a later hearing, the date of the permanency

planning hearing was continued to allow paternity testing to be completed.

       Paternity testing was conducted on August 8,4 and test results were received by

Agency on August 29, showing that Emmett is O.H.'s biological father.

       On September 17, the juvenile court held a special hearing at which it found that

Emmett was O.H.'s biological father. At the special hearing, Emmett filed a section 388

petition requesting that O.H. be placed with him or that reunification services be provided

to him so that he could obtain custody of O.H. The juvenile court found that Emmett had



4     Through no fault of Emmett, the testing was delayed until August 8 because of
problems at the testing laboratory.

                                             4
made a prima facie showing on the necessary elements for his section 388 petition, and it

set the petition for hearing on the same date as the permanency planning hearing.

       At the October 16 permanency planning hearing, the juvenile court took testimony

on Emmett's section 388 petition and considered the Agency's reports. Emmett testified

that he only recently discovered that O.H. was his son. Although he noticed that Kellie

was pregnant after they had sexual relations one time, Kellie said the baby was not his.

Emmett testified that he had raised his three adult children, and he wanted O.H. to come

live with him. According to Emmett, he recently had entered the Salvation Army

substance abuse treatment program because he had a problem with drugs and alcohol. He

had been drinking every day and his girlfriend thought the drinking was a problem.

Emmett testified that he left the Salvation Army program because it was interfering with

being able to visit with O.H. According to Emmett, he "sabotaged so they would kick me

out," but he was attending 12-step program meetings regularly, had a sponsor, and had

been sober for 132 days.

       According to the Agency reports considered by the juvenile court in connection

with the section 388 petition, since being recognized by the court as O.H.'s biological

father on September 17, Emmett had visited with O.H. on September 18, September 25,

and October 10, and all of the visits reflected positive and appropriate interactions

between O.H. and Emmett. Emmett also made several telephone calls to the caregivers

to check on O.H. A letter from the Salvation Army confirms that Emmett entered a six-

to 12-month treatment program on June 30, but was discharged for noncompliance on

September 12. Although Emmett had planned to enroll in outpatient substance abuse

                                             5
treatment after leaving the Salvation Army, he did not attend the intake appointment.

The Agency provided information that Emmett recently started working again and was

living in a two-bedroom apartment belonging to his girlfriend.

       The Agency conceded at the section 388 hearing that Emmett's recent

confirmation as O.H.'s biological father constituted changed circumstances for the

purpose of the section 388 petition. However, the Agency argued that it would not be in

O.H.'s best interests to grant the section 388 petition. The Agency pointed out that O.H.

had lived with his current caregivers for 14 months of his 16 months of life, and that

those caregivers wanted to adopt O.H. Counsel for O.H. concurred with the Agency's

view that granting the section 388 petition would not be in O.H.'s best interests.

       The juvenile court denied the section 388 petition, explaining that Emmett did not

meet his burden of proof to establish that it would be in the best interests of O.H. to place

him with Emmett or to provide Emmett with reunification services. The juvenile court

explained that O.H. was bonded to his caregivers and had become part of their family.

Further, it was uncertain whether Emmett would be able to care for O.H. and

satisfactorily complete any substance abuse treatment that would be required as part of

the reunification services.

       The juvenile court then terminated the parental rights of both Emmett and Kellie,

ordering that O.H. be placed for adoption. The juvenile court specifically found that

O.H. was likely to be adopted if parental rights were terminated, and it rejected Kellie's

argument that the beneficial relationship exception to adoption applied.

       Both Emmett and Kellie filed notices of appeal.

                                              6
                                              II

                                       DISCUSSION

A.     The Trial Court Did Not Err in Denying Emmett's Section 388 Petition

       We first consider Emmett's contention that the trial court erred in denying his

section 388 petition requesting that O.H. be placed with him or that he receive

reunification services.

       Under section 388, "[a]ny parent or other person having an interest in a child who

is a dependent child of the juvenile court . . . may, upon grounds of change of

circumstance or new evidence, petition the court . . . for a hearing to change, modify, or

set aside any order of court previously made . . . ." (§ 388, subd. (a)(1).) "If the petition

filed under section 388[, subdivision ](a) . . . states a change of circumstance or new

evidence and it appears that the best interest of the child . . . may be promoted by the

proposed change of order or termination of jurisdiction, the court may grant the petition."

(Cal. Rules of Court, rule 5.570(e)(1); see In re Amber M. (2002) 103 Cal.App.4th 681,

685.) "The petitioning party has the burden of showing, by a preponderance of the

evidence, that there is a change of circumstances or new evidence, and the proposed

modification is in the child's best interest." (In re Daniel C. (2006) 141 Cal.App.4th

1438, 1445.)

       "The determination of whether to change an existing order is 'committed to the

sound discretion of the juvenile court, and [its] ruling should not be disturbed on appeal

unless an abuse of discretion is clearly established.' " (In re Marcelo B. (2012) 209

Cal.App.4th 635, 642.)

                                              7
       "While a biological father is not entitled to custody under section 361.2, or

reunification services under section 361.5 if he does not attain presumed father status

prior to the termination of any reunification period, he may move under section 388 for a

hearing to reconsider the juvenile court's earlier rulings based on new evidence or

changed circumstances." (In re Zacharia D. (1993) 6 Cal.4th 435, 454, fn. omitted.) As

Emmett's section 388 petition came very late in the juvenile dependency process, after

the reunification period had ended and the permanency planning hearing was scheduled,

the juvenile court was required to focus on whether it would promote O.H.'s need for

stability and permanency if the section 388 petition were granted. Only "up until the time

the section 366.26 [permanency planning] hearing is set, [is] the parent's interest in

reunification . . . given precedence over the child's need for stability and permanency."

(In re Marilyn H. (1993) 5 Cal.4th 295, 310.) "After the termination of reunification

services, the parents' interest in the care, custody and companionship of the child are no

longer paramount. Rather, at this point 'the focus shifts to the needs of the child for

permanency and stability . . . .' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317

(Stephanie M.).) "[T]he interests of the parent and the child have diverged by the point of

a [section 366].26 hearing to select and implement a child's permanent plan." (In re J.C.

(2014) 226 Cal.App.4th 503, 527.)

       Here, the trial court was within its discretion to conclude that Emmett had not met

his burden to establish that it would be in O.H.'s best interests to remove him from his

caregivers, with whom he had been placed when he was two months old and had

developed a strong bond, or, in the alternative, to delay permanency with the goal of

                                              8
possibility removing O.H. from his caregivers in the future and placing him with Emmett.

The juvenile court reasonably could conclude that taking O.H. from the only home that

he had known since he was two months old, would upset his need for stability and

security. (See In re J.C., supra, 226 Cal.App.4th at p. 528 ["[T]here was ample evidence

[O.H.] would be devastated and suffer great detriment if [he] were removed from [his

caregiver's] home after two and one-half years. It is the only loving, safe, and stable

home [he] has ever known."].) Further, the juvenile court reasonably could conclude that

the prospect of an additional reunification period during which Emmett would receive

services to establish that he could care for O.H., "would not have promoted stability for

[O.H.] and thus would not have promoted [his] best interests." (In re Edward H. (1996)

43 Cal.App.4th 584, 594.) As the juvenile court observed, based on Emmett's history of

substance abuse and his recent failure for noncompliance at the Salvation Army treatment

program, there was no guarantee that Emmett would be able to successfully complete the

substance abuse component of reunification services. Based on this uncertainty, the goal

of providing O.H. with stability would not be served by delaying permanency to allow

Emmett to try to complete reunification services.5

       Emmett argues that in determining whether the juvenile court erred in granting his

section 388 petition, we should look to the factors set forth in Kimberly F. (1997) 56


5      Although we are sympathetic to Emmett's situation and commend him for
immediately taking steps to become part of O.H.'s life as soon as he discovered he was
the biological father, the abuse of discretion standard of review and the required focus on
the best interests of O.H. lead us to conclude that the juvenile court did not err in denying
the section 388 petition.

                                              9
Cal.App.4th 519, 531-532 (Kimberly F.). As set forth in Kimberly F., factors that a court

may consider in determining whether to grant a section 388 petition include: "(1) the

seriousness of the problem which led to the dependency, and the reason for any

continuation of that problem; (2) the strength of relative bonds between the dependent

children to both parent and caretakers; and (3) the degree to which the problem may be

easily removed or ameliorated, and the degree to which it actually has been."

(Kimberly F., at p. 532.)6 Kimberly F. dealt with the more common situation in which a

parent who has failed in successfully completing reunification services files a section 388

petition to delay permanency and obtain additional reunification services. (Id. at p. 525.)

Here, because Emmett did not have O.H. removed from his care, two of the three

Kimberly F. factors are not pertinent: the seriousness of the parent's problems that led to

the dependency and whether they can be or have been ameliorated.7 However, the



6      As the Agency points out, some case law has declined to apply the Kimberly F.
factors because they do not sufficiently take into account the Supreme Court's statement
in Stephanie M., supra, 7 Cal.4th at page 317, that after termination of reunification
services, the focus must be on the child's need for permanency and stability. (In re J.C.,
supra, 226 Cal.App.4th at p. 527.) We need not address the extent to which the
Kimberly F. factors are appropriate in light of Stephanie M., as we conclude that even
applying those factors, the trial court did not abuse its discretion in denying Emmett's
section 388 petition.

7      We note, however, that substance abuse problems were the reason for O.H.'s
removal from Kellie's care, and the juvenile court observed that the Agency would also
likely have required that Emmett deal with his substance abuse problems before
recommending that O.H. be placed with Emmett. Because he failed to complete the
Salvation Army treatment program and did not enroll in an outpatient program, Emmett
had not yet demonstrated that the substance abuse problems could be "removed or
ameliorated." (Kimberly F., supra, 56 Cal.App.4th at p. 532.)

                                            10
remaining Kimberly F. factor, namely, the nature of the bond that O.H. has with Emmett

compared to his bond with his caregivers, is directly on point and strongly supports the

juvenile court's decision. Because O.H. only had a few visits with Emmett by the time of

the section 388 hearing, he did not have a parental bond with Emmett.

       In sum, we conclude that the juvenile court did not abuse its discretion in

determining that it was in O.H.'s best interests to deny Emmett's section 388 petition.

B.     The Juvenile Court Did Not Err in Concluding That Kellie Did Not Meet Her
       Burden to Establish the Beneficial Relationship Exception to Adoption

       We next consider Kellie's argument that the trial court erred in concluding that she

did not establish that the beneficial relationship exception to adoption applied here.

       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


                                             11
juvenile court finds that a parent has met his or her burden to establish that the

requirements 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.).)8

       There is no dispute that Kellie engaged in regular and consistent visitation with

O.H., which is the first requirement for the application of the beneficial relationship

exception. The disputed issue here is whether Kellie met her burden to establish the

second requirement, namely, that she had a relationship with O.H. that he would benefit

from continuing.




8       There is some debate in recent case law on the proper standard of review regarding
the beneficial relationship exception. In In re J.C., supra, 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.

                                               12
       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

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

                                             13
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, although Kellie had a positive and pleasant relationship with O.H., she did

not have a close parental relationship with him. O.H. never lived together with Kellie.

Instead, throughout his entire life O.H. had looked to someone else as his primary

caregiver, and he was strongly bonded to his current caregivers, who planned to adopt

him. In the Agency's July 8 report for the permanency planning hearing, the social

worker described Kellie's interaction with O.H. during visits as caring, attentive and

loving, and observed that O.H. was familiar and comfortable with Kellie, but concluded

that "the relationship appears to be one that resembles more of a friendly visitor

relationship rather than a parent[-]child relationship." The Agency's reports and

visitation logs showed that Kellie had positive and appropriate visits with O.H., but that

O.H. separated easily at the end of the visits and went enthusiastically to his caregiver.

       Based on this evidence, the juvenile court reasonably could find that Kellie did not

establish that she "occupies a parental role in the life of the child" (In re I.W., supra, 180

Cal.App.4th at p. 1527), and that Kellie's relationship to O.H. "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 [O.H.] had any needs only [Kellie] can satisfy, or that he has the

type of emotional attachment to [Kellie] that would cause [O.H.] to be greatly harmed if

parental rights were terminated." (Jason J., supra, 175 Cal.App.4th at p. 938.)



                                              14
       We accordingly conclude that there is no merit to Kellie's challenge to the juvenile

court's determination that Kellie did not establish that the beneficial relationship to

adoption applies here.

                                       DISPOSITION

       The order terminating parental rights is affirmed.



                                                                                    IRION, J.

WE CONCUR:



MCCONNELL, P. J.



HUFFMAN, J.




                                             15
