Filed 8/27/14 In re Christopher V. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


In re CHRISTOPHER V., A Person                                             B254496
Coming Under the Juvenile Court Law.
                                                                           (Los Angeles County
LOS ANGELES COUNTY                                                         Super. Ct. No. CK86730)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

BRENDA N.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Teresa Sullivan, Judge. Affirmed.
         Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the County Counsel, John F. Krattli, County Counsel,
Dawyn R. Harrison, Assistant County Counsel, William D. Thetford, Principal Deputy
County Counsel, for Plaintiff and Respondent.
                        ___________________________________________
       Christopher V.’s mother Brenda N. (mother) appeals from the termination of her

parental rights and argues that the juvenile court should have applied the

“beneficial-relationship exception” to adoption. We disagree and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       1.       2011

       In February 2011, police officers found four-year-old Christopher and mother at

a motel. The officers observed mother smoking methamphetamine, and found

marijuana and methamphetamines in the motel room within “easy access” of

Christopher. The Department of Children and Family Services (Department) filed

a petition alleging that mother’s substance abuse placed Christopher at risk of harm.

The juvenile court detained Christopher, and the Department placed him in foster care.

The court ordered that mother have monitored three-hour visits with Christopher three

times a week.

       Christopher’s father lived in Mexico and sought to have Christopher placed with

his parents. He said that Christopher “was most of the time with my parents, because

[mother] likes to go out and party.” Paternal grandmother also sought to have

Christopher placed with her and paternal grandfather, and said that mother had

previously left Christopher with paternal grandparents for “months at a time” and that

both mother and Christopher had lived with them for one year.

       At the jurisdiction/disposition hearing on June 15, 2011, the court sustained the

petition’s allegations, removed Christopher from his parents’ custody, and ordered the




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Department to provide the parents with reunification services.1 Mother was ordered to

attend a drug treatment program and parenting classes, and to participate in random

drug testing and individual counseling. With respect to visitation, the Department

informed the court that mother was visiting with Christopher three times a week, and

that Christopher’s foster mother was monitoring the visits. The court ordered that

mother continue to have monitored visitation for a minimum of three hours per week.

       In July 2011, Christopher said he enjoyed visiting with mother but that mother

“spends a lot of the time on the phone” during visits. He further said that he “would

like to go home with [mother]” but also that he did not want to leave his foster mother

because he “liked living with [her].” Christopher’s foster mother, who monitored visits

between mother and Christopher, said that mother was generally “15 to 45 minutes

late,” was “not [] completely focused on [the] child,” and “would sometimes be on the

phone.”

       In September 2011, Christopher started having overnight weekend visits with his

paternal grandparents. The following month, Christopher said he liked spending time

with his paternal grandparents and would prefer to live with them. In December 2011,

Christopher again said he liked having visits with his paternal grandparents and wanted

to stay with them. He also said he had “not really seen [mother] or spoken to her on the

phone.”



1
       The record indicates that father did not participate in reunification services, and
has not contested the termination of his parental rights with respect to Christopher.


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       The six-month review hearing was held on December 14, 2011. The Department

reported that Christopher was displaying behavioral problems: he “scream[ed] and

crie[d]” when asked to do his homework and engaged in “disruptive behavior in class.”

Paternal grandparents were now monitoring Christopher’s visits with mother and

reported that mother often cancelled visits at the “last minute” which upset Christopher.

However, Christopher was generally “excited” to see mother when she did come, and he

would tell her “about his day and [the] toys he had brought along.”

       The court found that mother was not in compliance with her case plan based on

evidence that she had stopped attending a drug treatment program, had failed several

drug tests, had not enrolled in individual counseling, had not completed parenting

classes, and had not shown up to scheduled visits with her social worker. The court

ordered the Department to provide mother with further reunification services.

       2.     2012

       In January 2012, Christopher was placed in the home of paternal grandparents.

By June 2012, the paternal grandparents reported that Christopher had “adjusted well”

to their home and now did his homework without tantrums. In addition, a child

counselor who evaluated Christopher said that his behavior and anxiety had improved

since being placed with paternal grandparents. With respect to visitation, paternal

grandparents stated that mother continued to cancel visits at the last minute.

       Christopher told the social worker that “he would cry and hide from mother,” and

that, on one occasion, he did not want to attend a birthday party with mother because

her friends were “ ‘crazy.’ ” Christopher also said that he would “like to return home to


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[] mother because she buys him toys,” but that “if mother did not buy him toys

anymore . . . he would want to continue residing with [paternal grandparents] because

they are ‘nice’ to him.” At the 12-month review hearing on June 13, 2012, the court

found that mother was in partial compliance with her case plan and ordered the

Department to continue to provide her with reunification services.

       In August 2012, the Department reported that mother was consistently visiting

Christopher. Christopher said he enjoyed spending time with mother and that he wanted

to go home with her. However, the following month, paternal grandmother said that

mother had cancelled visits with Christopher, and that Christopher cried and

“bec[a]me[] upset” “[w]hen []mother d[id] not visit.” Christopher said that “he wanted

to return home with mother because he was excited mother was going to ‘buy him a Wii

and lead pencils,’ ” but when asked if he wanted to live with mother forever, said

“ ‘sometimes, but [I] would also like to live with [paternal] grandparents.’ ”

Christopher often did not want to talk to mother on the phone and, when asked why,

said “I’m mad at her.”

       In October 2012, mother had scheduled a visit with Christopher, and Christopher

cried because “he did not want to visit.” Mother was then 30 minutes late to the visit

which caused Christopher to become concerned she would not come. On November 6,

2012, the court found that mother had not complied with her case plan. The court

terminated her reunification services and scheduled a Welfare and Institutions Code2

section 366.26 hearing on the termination of parental rights. The prior visitation order

2
       All other statutory references are to the Welfare & Institutions Code.

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remained in effect. The following month, the paternal grandmother reported that

mother had not been consistent with visits: visits sometimes did not take place because

mother called the day of to schedule a visit, and mother was frequently late to visits.

       3.     2013

       In April 2013, the paternal grandmother reported that, in the past month, mother

had more consistently attended visits with Christopher, had arrived on time, and had

“displayed good interaction” with him. As for Christopher, he had “good and bad

days,” and there was a recent incident when he did not want to go to a visit with mother.

Paternal grandmother also reported that sometimes Christopher did not want to speak

with mother on the phone, but that Christopher would engage in conversation with

mother if mother promised to give him a present.

       In May 2013, the social worker reported that mother’s visitation had become

inconsistent again. Christopher said he enjoyed having visits with mother but did not

see her “much.” He also said, “ ‘I don’t want to go back with my mom because

I remember a lot of things’ ” and that he did not want to be “ ‘around bad people.’ ” He

told the social worker he was scared he might not be able to stay with paternal

grandparents. Paternal grandparents said they wanted to adopt Christopher.

       In June 2013, Christopher said that he enjoyed visits with mother, and also that

“ ‘I think I want to go back with [mother] as long as I can see my grandparents.’ ”

Paternal grandparents reported that mother’s weekly visits had become more consistent

again and that mother was now giving Christopher her full attention during visits.




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       In August 2013, Christopher told the social worker “[s]ometimes, I don’t want to

see her (mother) . . . . ’ ” After the social worker finished speaking to Christopher,

mother called Christopher and he “hung up soon after.” Mother called back and

Christopher hung up on her again. Mother called a third time, and Christopher told

paternal grandmother to tell mother that he was in the shower. Paternal grandmother

said that mother had not visited Christopher for two weeks, and that Christopher did not

want to see mother and cried when they took him to visits.

       In September 2013, the Department reported that Christopher said he did not

know whether he wanted to live with mother. When asked whether he would like

unmonitored visits with mother, he said “yes, cuz sometimes she (mother) buys me

stuff . . . . ” When asked if he would like unmonitored visits if mother did not buy him

anything, he said “I don’t know.”

       In November 2013, the Department reported that mother had consistently

attended weekly visits with Christopher and that Christopher no longer cried when he

was dropped off at the visits. Christopher said he enjoyed the visits. Christopher had

started participating in mental health services through the Wraparound program, and

had shown improved behavior.

       A section 366.26 hearing was held on December 3 and 9, 2013. Mother testified

that she spoke with Christopher by phone every day, and that he called her “mom” or

“mommy.” She said she attended monitored visits with Christopher once or twice

a week during which she played and read with him. Mother also said that although

Christopher was bonded with his paternal grandparents, he is sad and wants to live with


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her. Upon cross-examination, mother acknowledged that she did not know the names of

the school where Christopher attended kindergarten or his teacher there, and had never

been to a parent-teacher conference. Mother also said she knew Christopher was

participating in therapy through the Wraparound program, but did not know what

“issues” he was addressing in therapy.

       Mother argued for the application of the beneficial-relationship exception to the

termination of parental rights. However, the court found that mother had not shown it

would be detrimental to Christopher to terminate parental rights as he had lived with

paternal grandparents for most of his life and they had parented him during that time. In

addition, the court stated that, “based on mother’s testimony, she didn’t know the school

where [Christopher] had gone to kindergarten, didn’t know his teacher, had just now

understood some of the basic threshold levels of his daily life, [] had never been to

a parent conference, had not participated in the Wrap[around] services that are

sustaining this child’s stability, and the report was that Christopher is conflicted and

often doesn’t want to see her at this time.” The court found that Christopher was

adoptable and there was no legal exception to his adoption, and terminated parental

rights. Mother timely appealed.

                                     CONTENTIONS

       Mother contends that her parental rights were improperly terminated because she

established that Christopher would benefit from continuing his relationship with her

under the beneficial-relationship exception.




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                                        DISCUSSION

       “At a permanency plan hearing, the court may order one of three alternatives:

adoption, guardianship or long-term foster care. [Citation.] If the dependent child is

adoptable, there is a strong preference for adoption over the alternative permanency

plans.” (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) “After . . . the court has

found the child likely to be adopted, it is the parent’s burden to show exceptional

circumstances exist. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)

Section 366.26 provides an exception to the termination of parental rights when “[t]he

court finds a compelling reason for determining that termination would be detrimental

to the child due to . . . [¶] . . . [1] [the parent’s having] maintained regular visitation and

contact with the child and [2] the child would benefit from continuing the relationship.”

(Section 366.26, subd. (c)(1)(B)(i).)

       Here, mother contends, and the Department does not dispute, that she maintained

regular visitation and contact with Christopher. However, there were periods of time

when mother failed to regularly visit Christopher: she cancelled visits or failed to

contact his caregivers sufficiently in advance to schedule a visit. In addition, in order

for the beneficial-relationship exception to apply, mother also had to show that she

satisfied the second requirement of the exception: that Christopher would benefit from

continuing the relationship.

       The benefit prong of the exception requires that the parent prove that “the

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


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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. [¶] Interaction between natural parent and child will

always confer some incidental benefit to the child. The significant attachment from

child to parent results from the adult’s attention to the child’s needs for physical care,

nourishment, comfort, affection and stimulation. [Citation.] . . . [¶] The exception

must be examined on a case-by-case basis, taking into account the many variables

which affect a parent/child bond. [1] The age of the child, [2] the portion of the child’s

life spent in the parent’s custody, [3] the ‘positive’ or ‘negative’ effect of interaction

between parent and child, and [4] the child’s particular needs are some of the variables

which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at

pp. 575-576 (italics added).) We review the trial court’s ruling that the

beneficial-relationship exception did not apply under the substantial evidence test.

(Id. at pp. 576-577.)

       Mother argues that, pursuant to the factors identified in In re Autumn H., she

showed that the continuation of her relationship with Christopher would be more

beneficial to him than a permanent plan of adoption. Christopher was four years old

when he was removed from mother, and seven years old at the time of the

section 366.26 hearing. Although mother contends Christopher lived most of his life in


                                             10
her custody, the record indicates that he spent at least an equal amount of time living

with paternal grandparents. Paternal grandmother said that, prior to this case, both

mother and Christopher had lived with paternal grandparents for a year, and also that

mother had left Christopher with paternal grandparents for months at a time. At the

start of this case, father also said that Christopher had lived “most of the time with my

parents.” In addition, Christopher lived with paternal grandparents for the two years

leading up to the section 366.26 hearing.

       Mother also argues that “[i]nteractions between Mother and Christopher were

generally positive.” However, as the juvenile court found, the record showed that

Christopher had conflicted feelings about mother. Mother often called at the last minute

to schedule a visit, arrived late for visits, and cancelled visits. This behavior upset

Christopher, and, on multiple occasions, he cried when going to a visit with mother,

indicated that he did not want to speak with mother or see her, and said that he preferred

to live with paternal grandparents. Christopher also had bad memories from the time he

was in mother’s custody: he said that he was “ ‘around bad people’ ” when he lived

with mother and, on one occasion, he became upset at the prospect of seeing mother’s

friends who he said were “ ‘crazy.’ ”

       Mother also did not meet her burden of showing that she occupied a parental role

in Christopher’s life. She never progressed beyond monitored visits, was often

inattentive to Christopher when she did visit him, was not knowledgeable about his

schooling or his therapy, and did not provide for any of his physical needs other than

occasionally providing food for him during visits. Paternal grandparents provided


                                             11
Christopher with stability and, for much of his life, had taken care of his physical and

emotional needs. The record showed that paternal grandparents had successfully helped

Christopher improve his behavior and lessen his anxiety, and that Christopher primarily

desired to live with them.

       “[C]hildren are entitled to stability and permanence through adoption. ‘Where

a biological parent . . . is incapable of functioning in that role, the child should be given

every opportunity to bond with an individual who will assume the role of a parent.’

[Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 557.) Here, mother failed to show

that Christopher had “a substantial, positive emotional attachment” to her that

promoted his well-being to such a degree as to outweigh the well-being he would gain

in a stable home with paternal grandparents. (In re Autumn H., supra, 27 Cal.App.4th at

p. 575.) Accordingly, there was substantial evidence to support the court’s conclusion

that no beneficial relationship existed between mother and Christopher such that

termination of parental rights would be detrimental to him.




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                                   DISPOSITION

      The order is affirmed.



      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                             KITCHING, Acting P. J.

I CONCUR:




      ALDRICH, J.





       Due to the unavailability of the third member of the panel which heard this
matter, this opinion is being filed with the concurrence of the two remaining members
of the panel. (Cal. Const., art. VI, § 3 [“Concurrence of 2 judges present at the
argument is necessary for a judgment”]; see, e.g., People v. Castellano (1978)
79 Cal.App.3d 844, 862.)

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