Filed 7/29/14 In re Sally L. CA1/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re SALLY L., a Person Coming
Under the Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU,
         Plaintiff and Respondent,
                                                                     A139891
v.
KIMBERLY L. et al.,                                                  (Contra Costa County
                                                                     Super. Ct. No. J12-01442)
         Defendants and Appellants.


In re BRIANNA S., a Person Coming
Under the Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU,
         Plaintiff and Respondent,
                                                                     A140214
v.
KIMBERLY L.,                                                         (Contra Costa County
                                                                     Super. Ct. No. J12-00354)
         Defendant and Appellant.


         In these consolidated appeals, Kimberly L. (Mother), the mother of Brianna S.
(born August 2009) and Sally L. (born October 2012), and Marc L. (Father), Sally’s




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father, appeal orders terminating their parental rights.1 They contend the juvenile court
erred in failing to apply the continuing beneficial relationship exception to parental
termination. We affirm.
                                     BACKGROUND
       In March 2012, Brianna was detained by the juvenile court. Mother pled no
contest to allegations that she has a substance abuse problem impairing her ability to care
for and protect Brianna and that she left Brianna in the care of her step-grandfather, who
had sexually molested Mother when she was a child. Mother was in a residential
treatment program at the time of Brianna’s detention but then left the program. She
entered a detoxification program but tested positive for amphetamine use in April. At the
time of the disposition hearing in May, Mother was attempting to enter another
residential treatment program. The juvenile court declared Brianna a dependent of the
juvenile court and ordered reunification services, including supervised visits.
       In October 2012, Sally was born. A few days later, she was detained by the
juvenile court. Mother pled no contest to the allegations that she tested positive for
methamphetamine at least four times during her pregnancy and that she was abusing
methamphetamine and not able to provide housing for Sally’s sibling. Father pled no
contest to the allegation that he has a past history of methamphetamine abuse. The
juvenile court declared Sally a dependent of the juvenile court and ordered reunification
services, including visitations.
       Mother had begun a new residential treatment program in October and remained in
this program. In December, the juvenile court ordered an additional six months of
reunification services for Brianna. The court also authorized Sally’s placement with
Mother until she completed the program and with Mother and Father afterward. Mother
completed the program and began outpatient treatment in January 2013. In February,
Father began an outpatient treatment program.


1
 The parental rights of Brianna’s father were also terminated. He is not a party to this
appeal.


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         In February and March 2013, Mother missed several sessions at her outpatient
program and in March she admitted using methamphetamine. In April, Mother missed
additional sessions, yet denied missing these sessions to the Contra Costa County
Children and Family Services Bureau (Bureau). In February, Father tested positive for
THC and also missed meetings with his outpatient program.
         The Bureau removed Sally from her placement with Mother and Father and
recommended termination of services with respect to both minors. Neither Mother nor
Father appeared at the combined review hearing to contest this recommendation. The
juvenile court terminated reunification services and set a Welfare and Institutions Code
section 366.262 hearing date. Mother and Father were notified by mail of their right to
petition for extraordinary writ relief.
         The Bureau recommended parental rights be terminated for both Brianna and
Sally. The Bureau’s section 366.26 hearing report on Brianna stated she “thrives on
stability and security” and was doing very well in her current foster home. The foster
family wanted to adopt her and the adoption was “highly likely.” Mother was loving and
appropriate during supervised visits and some of the visits were reported to be positive.
However, in connection with more recent visits Brianna was upset and needed
reassurance that she would be returning to her foster family after the visit. The social
worker wrote, “Although Brianna appears to love/like her mother, there is something
about contact with her mother that is disturbing and fearful for Brianna. During
supervised visits, she consistently needs to know that she will be returning back to safety
with her foster parents.” During visits taking place after her placement with her current
foster family, Brianna asked to go home to her “mommy,” by which she meant her foster
mother.
         The Bureau’s report on Sally stated she was in the same foster home as Brianna.
The placement had gone “very well,” Sally appeared to be happy in the home, and the
foster family was ensuring her emotional and physical needs were met. The foster family

2
    All undesignated section references are to the Welfare and Institutions Code.


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was committed to adopting Sally as well as Brianna. The report noted Sally’s parents
acted affectionately and appropriately during visitations. Before Sally was removed from
the placement with mother and father, a Bureau visit found her “well cared for, clean,
[and] in cute clothes.”
       Neither Mother nor Father presented any evidence at the section 366.26 hearings.
The juvenile court terminated Mother’s parental rights with respect to both minors, and
Father’s with respect to Sally.
                                       DISCUSSION
       Mother and Father’s only contention on appeal is the juvenile court erred in failing
to conclude the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i))
applies to prevent termination of their parental rights.
       “At a hearing under section 366.26, the court must select and implement a
permanent plan for a dependent child. Where there is no probability of reunification with
a parent, adoption is the preferred permanent plan. [Citation.]” (In re K.P. (2012) 203
Cal.App.4th 614, 620.) Section 366.26, subdivision (c)(1), provides that if the juvenile
court finds the child adoptable, “the court shall terminate parental rights and order the
child placed for adoption” unless: “(B) The court finds a compelling reason for
determining that termination would be detrimental to the child [because] . . . [¶] (i) The
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.”
       To establish the beneficial relationship exception, a parent must demonstrate “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
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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The exception does not


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require “proof that the child has a ‘primary attachment’ to a parent or that the
noncustodial parent has maintained day-to-day contact with the child. [Citations.]” (In
re S.B. (2008) 164 Cal.App.4th 289, 300.) However, “the parent must show more than
‘frequent and loving contact’ [citation], and be more to the child than a mere ‘friendly
visitor or friendly nonparent relative.’ [Citation.]” (In re Helen W. (2007) 150
Cal.App.4th 71, 81.)
       There is a split of authority regarding whether an appellate court reviews a
challenge involving the beneficial relationship exception for substantial evidence, abuse
of discretion, or a combination of the two. (See In re K.P., supra, 203 Cal.App.4th at
pp. 621-622.) We need not weigh in on this debate as our conclusion is the same under
any of these standards.
       The only evidence presented at the section 366.26 hearing for each minor — the
Bureau’s reports — demonstrated both Brianna and Sally were thriving with their foster
family and would likely be adopted by that family if parental rights were terminated.
Reunification services were terminated because both Mother and Father recently tested
positive for drugs and had failed to consistently attend outpatient programs.
       With respect to Brianna, while Mother was loving and appropriate during
visitations, the more recent visitations were not positive for Brianna and she asked to be
returned to her foster mother, whom she called “mommy.” Although Mother argues such
behavior is not evidence of the absence of a strong bond between Mother and Brianna,
the beneficial relationship exception requires affirmative evidence of such a bond, which
Mother did not provide. Instead, the evidence shows Brianna looked to her foster parents
for security and comfort. Substantial evidence supports the juvenile court’s finding that
Mother failed to establish the beneficial relationship exception with respect to Brianna,
and this finding was not an abuse of discretion.
       The findings with respect to Sally are also supported by substantial evidence and
are not an abuse of discretion. At the time of the hearing, Sally had spent the majority of
her young life out of her parents’ custody. Although the Bureau’s report stated Mother
and Father were loving and appropriate with Sally during visitations, there was no


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evidence either parental relationship was so beneficial to Sally as to outweigh the
permanency and stability she would gain in an adoptive home. (See In re Angel B.
(2002) 97 Cal.App.4th 454, 466 [“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.”].)
                                      DISPOSITION
       The orders are affirmed.




                                                        _________________________
                                                        SIMONS, J.




We concur.




_________________________
JONES, P.J.


_________________________
NEEDHAM, J.




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