Filed 6/10/16 In re U.M. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Sutter)
                                                            ----




In re U. M. et al., Persons Coming Under the Juvenile                                        C080797
Court Law.

SUTTER COUNTY DEPARTMENT OF HUMAN                                                      (Super. Ct. Nos.
SERVICES,                                                                             DPSQ100006589,
                                                                                      DFPSQ100006590,
                   Plaintiff and Respondent,                                          DPSQ140006976)

         v.

M. M.,

                   Defendant and Appellant.




         Marian M., mother of the minors, appeals from orders of the juvenile court
terminating her parental rights. (Welf. & Inst. Code,1 §§ 366.26, 395.) Mother argues




1        Further undesignated statutory references are to the Welfare and Institutions Code.

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the court erred in failing to find she had established the beneficial parental relationship
exception to the preference for adoption. We affirm.
                                            FACTS
         In December 2014, the Sutter County Department of Human Services
(Department) filed a petition to detain the minors, U. M., age 10; A. M., age 6; and M. M.
age 3, alleging neglect, mother’s substance abuse, and mother’s arrest for possession of
drugs.
         The evidence showed U. M. had been in guardianship with the maternal
grandmother from 2006 to 2009 when she agreed to terminate the guardianship because
mother had stopped using drugs. When mother relapsed in 2009, the maternal
grandmother again sought guardianship several months after the minors were returned to
her care. The maternal grandmother told the probate investigator that mother “comes and
goes and really upsets the kids.” Mother also verbally abused U. M. The investigator
spoke to U. M., who said his grandmother took care of him and did not hit or spank him.
U. M. told the investigator that mother made him “ ‘do everything’ ” including cooking.
Ultimately, the probate investigator found the maternal grandmother was not capable of
acting as guardian for both U. M. and A. M. and referred the matter to the Department.
         In April 2010, as a result of the referral from the probate court, the Department
filed a petition to remove the minors U. M., age 6, and A. M., age 2, from mother’s
custody due to neglect and substance abuse. Mother participated in reunification services
for 18 months and family maintenance services for an additional 12 months. In August
2012, the court dismissed the case, awarding sole custody of the minors to mother.
         In the summer and fall of 2014, there were ongoing reports of mother leaving the
minors in the maternal grandmother’s care for extended periods. By December 2014, the
home was filthy, mother was arrested on drug charges, and the three minors were
removed under the current petition. At the detention hearing, the court ordered the
minors detained and conditioned visits on mother testing clean.

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       The jurisdiction report stated mother abandoned the minors when she was using
methamphetamine and failed to treat her mental health issues. Mother continued to use
drugs while pregnant with M. M. All three minors had behavioral issues when they
entered foster care. The juvenile court sustained the petition.
       The disposition report, filed in February 2015, recommended offering
reunification services to mother. The minors had been moved to new foster homes due to
serious behavioral issues which were beginning to resolve. Mother was released from jail
but tested positive and was not allowed to visit. Thereafter, mother did not comply with
the previsit testing protocol and thus had no visits with the minors. The minors each had
emotional and behavioral issues and M. M. was referred for therapy. The juvenile court
adopted the reunification plan which included substance abuse treatment and drug testing.
       An interim review report in May 2015 stated the minors were doing reasonably
well in foster care and were waiting for mother to meet the case plan objectives and take
them home again. The social worker made numerous unsuccessful attempts to contact
mother from February 2015 to April 2015. Mother was again in custody during part of
the review period. After her release, mother did call the social worker wanting to see the
minors but did not test and no visit occurred. At the interim review hearing, the
Department reported mother was in a residential drug treatment program but was not
compliant with the case plan.
       The six-month review report, filed in August 2015, recommended termination of
mother’s services. The social worker had only minimal contact with mother, who had not
complied with the case plan and had left the residential drug treatment program after two
weeks. In July 2015, mother contacted the social worker, provided a clean drug test, and
had one visit. At the review hearing, mother asked the court to order further services.
The court declined to do so, terminated mother’s services, and set a section 366.26
hearing.



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       The Department’s report for the section 366.26 hearing stated the minors were
likely to be adopted. While mother had not visited the minors for over seven months
following their detentions, she currently had weekly visits facilitated by transporting the
minors to her residential drug treatment program. Both U. M. and A. M. had behavioral
issues following visits with mother although neither minor had displayed these difficult
behaviors before mother began visits. M. M.’s caretakers told the social worker he had
been asking when his name would change to match their name and when he would know
he was staying in that home. Both U. M. and A. M. were more ambivalent about
adoption and wanted to be reunified with mother. While both liked the foster home,
U. M. wanted to live where he could do what he wanted to and he did not want to be
adopted. A. M. wanted to be placed with M. M.’s foster parents because it was closer to
mother’s treatment center. The social worker’s assessment was that the minors needed
and deserved a safe, stable home.
       The California Department of Social Services (Social Services) adoption
assessment recommended termination of parental rights as to M. M. and A. M. but to
postpone the decision as to U. M. to give him more time to consider adoption. Social
Services concluded that weekly visits with mother appeared to be detrimental to the
minors because it was confusing to them and not helpful in preparing them for a future
without her. Social Services further concluded there was no evidence that the benefit of
continued contact between mother and the minors outweighed the benefit to the minors of
legal permanence.
       At the section 366.26 hearing, the Department took the position that termination of
parental rights as to all three minors was the best permanent plan. Mother’s counsel
objected to termination of parental rights but presented no evidence or argument as to any
exception to termination of parental rights. The court stated it could not find that it was
in U. M.’s best interest to continue the termination decision and that a continuance would



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be inconsistent with the plan of permanency for the minor. The court terminated parental
rights and ordered a permanent plan of adoption for all three minors.
                                       DISCUSSION
       Mother challenges the orders terminating her parental rights as to the minors
arguing she established the beneficial relationship exception to the preference for
adoption. We disagree.
       Mother had the burden of establishing the existence of any circumstances which
constituted an exception to termination of parental rights. (In re Cristella C. (1992)
6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules
of Court, rule 5.725(d)(4); Evid. Code, § 500.) However, at the hearing she neither
presented evidence nor argued that any such circumstances existed. By failing to raise
the issue in the trial court, she has forfeited the issue on appeal. (In re Christopher B.
(1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
       Assuming arguendo that the reference in the Social Services report to the
beneficial parental relationship exception was enough to place that exception to
termination at issue, mother still cannot prevail.
       At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances
which permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)




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       Termination of parental rights may be detrimental to the minor when: “The
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).) However, the
benefit to the child must promote “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;
In re C.F. (2011) 193 Cal.App.4th 549, 555.) Even frequent and loving contact is not
sufficient to establish this benefit absent a significant positive emotional attachment
between parent and child. (In re I.R. (2014) 226 Cal.App.4th 201, 213.)
       Mother could not establish the first prong of the beneficial parental relationship
exception because she had not maintained regular visitation and contact with the minors.
Mother had not visited at all for over seven months after the minors were detained. This
behavior was consistent with her previous pattern of leaving the minors with the maternal
grandmother for extended periods. As to the second prong, while there appeared to be
some bond between mother and the two older minors, the nature and quality of the
relationship was not positive, as shown by U. M.’s and the maternal grandmother’s
statements as early as 2009 and the minors’ serious behavior problems on entering foster
care which had largely resolved but resurfaced when contact with mother resumed. Thus,
the relationship did not outweigh the benefits to the minors of a secure and stable
placement. The juvenile court could not have found, on the evidence before it, that
mother had established the beneficial parental relationship. There is no error.



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                                     DISPOSITION
       The orders of the juvenile court are affirmed.



                                                 /s/
                                                 Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Butz, J.




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