Filed 2/28/14 In re Andrea G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


In re ANDREA G. et al., Persons Coming                               H040071
Under the Juvenile Court Law.                                       (San Benito County
                                                                     Super. Ct. No. JV0800035)

SAN BENITO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,

         Plaintiff and Respondent,

         v.

I.P.,

         Defendant and Appellant.



         Appellant I.P. (mother) appeals from the juvenile court’s orders terminating her
parental rights to her daughters Andrea G. and Jasmine P. She contends that the juvenile
court should have concluded that the parental relationship exception applied here and
precluded termination of parental rights. We reject her contention and affirm the juvenile
court’s orders.


                                                   I. Background
         In 2008, eight-year-old Jasmine was detained after she reported that mother had
physically abused her on two separate occasions. On one occasion, mother slapped her
on the cheek. On the other occasion, mother threw Jasmine on a bed, causing her head to
hit the headboard. Jasmine suffered a large bump on her head from this incident. The
court took jurisdiction over Jasmine based on mother’s substance abuse and anger
management problems, removed Jasmine from parental custody, placed her in foster care,
                                             1
and granted mother reunification services.
       Mother had supervised visits with Jasmine twice a week, and she was attentive to
and appropriate with Jasmine during these visits. Jasmine was happy in her foster home,
and she “blossomed” after being placed there. Mother initially made little progress on
her case plan, but the court continued her reunification services for a second six-month
period. In late 2009, the court ordered that mother be allowed longer, unsupervised visits
                                                     2
after she made additional progress on her case plan. These unsupervised visits went
well. Reunification services were continued for a third six-month period with the hope
that Jasmine would soon be returned to mother’s care. In April 2010, mother was granted
a 10-day extended visit with Jasmine. In May 2010, Jasmine was returned to mother’s
care with family maintenance services. In October 2010, mother gave birth to Andrea.
In November 2010, Jasmine’s 2008 dependency case was dismissed.
       In July 2011, Andrea was found unsupervised under a bed crying, with bags tied
around her body, in a residence where the only adult was unconscious and under the
influence. Mother was not present and could not be found. Jasmine was found at
Andrea’s father’s parents’ home. Andrea and Jasmine were detained. Both mother and
Andrea’s father were arrested for child endangerment. Mother subsequently told the
social worker that she had left Andrea with her brother’s girlfriend overnight so that she



1
       The identity and whereabouts of Jasmine’s biological father are unknown.
2
       Shortly thereafter, mother’s infant son died of “monoxide poisoning” from a gas
leak in her home. Mother engaged in grief counseling and seemed to be dealing with her
loss.

                                                 2
and her boyfriend, Andrea’s father, could go to the beach. Mother admitted that she had
been drinking and knew that her brother’s girlfriend had also been drinking, but mother
denied that she had used any drugs. A drug test revealed that mother had been using
methamphetamine. Mother subsequently admitted that she had begun using
methamphetamine after the dismissal of Jasmine’s 2008 dependency case. Andrea’s
father reported that mother had substance abuse and anger management problems.
Jasmine reported that both mother and Andrea’s father drank routinely. The court took
jurisdiction over both Andrea and Jasmine, removed them from parental custody, placed
them in foster care, and granted mother reunification services including supervised
visitation.
       Mother had two-hour visits once a week with Jasmine and Andrea, and these visits
were appropriate. In December 2011, mother was allowed a five-hour supervised visit
with the children to have a birthday party for Jasmine. Mother made progress on her case
plan, and her reunification services were extended in February 2012 for another six
months with visitation moving to unsupervised. In June 2012, mother briefly relapsed,
but she acknowledged her lapse and reengaged in her services. Mother was being
allowed unsupervised visits of between four and 72 hours per week. Jasmine was
reported to have “mixed feelings” about the possibility of reunifying with mother because
she did not want to leave Hollister. In September 2012, the court extended mother’s
                                              3
reunification services for another six months. Mother continued to be allowed
unsupervised visits, and the maximum was increased to 96 hours per week.
       In late September 2012, mother was arrested for battery on a police officer, and it
became apparent that she had relapsed again. Her visits were changed back to supervised
for one to three hours per week. Mother was incarcerated until late October 2012, and
she ceased contact with the social worker after her release. She also ceased engaging in

3
       Andrea’s father’s services were terminated.

                                             3
services and visiting the children. Mother’s only further visits with the children were two
supervised visits in December 2012 and one in January 2013. Mother contacted the
foster parent in January 2013 to attempt to arrange a visit. The foster parent was
amenable, but mother never followed through. Mother also did not heed the foster
parent’s suggestion that she contact the social worker.
       By February 2013, a decision had been made to place Jasmine and Andrea in the
home of their half-siblings’ paternal grandmother where their half-siblings also resided.
The half-siblings’ paternal grandmother was committed to adopting Jasmine and Andrea.
Jasmine was “happy” about the prospect of being adopted by this woman, whom she
considered her grandmother, and was looking forward to spending more time with her
half-brothers. Jasmine and Andrea were placed in this prospective adoptive home at the
beginning of March 2013. Jasmine adjusted well to this placement, and her behavior and
schoolwork improved. Mother did not appear at the March 2013 uncontested 18-month
review hearing, and the court terminated services and set a Welfare and Institutions Code
                 4
section 366.26 hearing for July 1, 2013. Mother’s visitation was terminated pending
further order.
       Mother contacted the social worker on April 30, 2013 and requested visitation.
The social worker told her to talk to her attorney. On May 29, 2013, mother filed a
section 388 petition seeking placement of the children in her care with family
maintenance services or additional reunification services. She asserted that
circumstances had changed because she had been in a residential treatment program for
two months and had maintained her sobriety throughout that period. The court ordered
an evidentiary hearing on the petition, which was held just before the continued section




4
       Subsequent statutory references are to the Welfare and Institutions Code.

                                             4
                                5
366.26 hearing on July 8, 2013. The sole witness at the section 388 evidentiary hearing
was one of the directors of mother’s residential treatment program. The program was run
by a church, and neither the program nor any of the three women running it were licensed
or certified. The program did not involve any drug or alcohol testing. Mother was taking
anger management and substance abuse classes and engaging in counseling. The court
denied the petition.
       Thirteen-year-old Jasmine reported that she “would like to have contact with her
mother when possible, but would like the adoption . . . to go through.” Jasmine felt a
“close connection” to her “grandmother” and wanted to be adopted by her. Jasmine’s
court appointed special advocate (CASA) believed that Jasmine needed “stability and
permanence in her life.”
       Mother did not present any evidence at the section 366.26 hearing. Her trial
counsel asked the court not to terminate parental rights and argued that it was in the
children’s best interest to have continued contact with mother. The court terminated
parental rights and selected adoption as the permanent plan for Jasmine and Andrea.
Mother timely filed a notice of appeal from the court’s orders.


                                        II. Analysis
       Mother claims that the juvenile court erred in failing to find that the parental
relationship exception applied and precluded termination of parental rights.
       “Adoption must be selected as the permanent plan for an adoptable child and
parental rights terminated unless the court finds ‘a compelling reason for determining that
termination would be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular visitation and contact with


5
       The court allowed mother a brief visit with Jasmine and Andrea in court on
July 1, 2013 after the court continued the section 366.26 hearing to July 8.

                                              5
the child and the child would benefit from continuing the relationship.’ ” (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) This is known as the parental
relationship exception.
       The proponent of the parental relationship exception bears the burden of
producing evidence of the existence of a beneficial parental relationship. Because the
existence of such a relationship is a factual issue, the court’s finding on this point is
reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) “[A]
challenge to a juvenile court’s finding that there is no beneficial relationship amounts to a
contention that the ‘undisputed facts lead to only one conclusion.’ [Citation.] Unless the
undisputed facts established the existence of a beneficial parental or sibling relationship,
a substantial evidence challenge to this component of the juvenile court’s determination
cannot succeed.” (Ibid.)
       Even if the juvenile court finds a beneficial parental relationship, the parental
relationship exception does not apply unless the court also finds that the existence of that
relationship constitutes a “compelling reason for determining that termination would be
detrimental . . . .” (§ 366.26, subd. (c)(1)(B).) A juvenile court’s ruling on whether there
is a “compelling reason” is reviewed for abuse of discretion as the court must “determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and . . . weigh that against the benefit to the child of
adoption.” (Bailey J., supra, 189 Cal.App.4th at p. 1315.)
       “ ‘The factors to be considered when looking for whether a relationship is
important and beneficial are: (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 the
parent and the child, and (4) the child’s particular needs.’ [Citation.] ‘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.

                                               6
[Citation.] The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court finds regular
visits and contact have continued or developed a significant, positive, emotional
attachment from child to parent.’ [Citation.] Evidence of ‘frequent and loving contact’ is
not sufficient to establish the existence of a beneficial parental relationship.” (Bailey J.,
supra, 189 Cal.App.4th at pp. 1315-1316.)
       Mother plainly failed to meet her burden of producing evidence of the existence of
a beneficial parental relationship. She produced no evidence whatsoever at the section
366.26 hearing. While her trial counsel argued that the children would benefit from
continued contact with mother, she never mentioned the parental relationship exception
to adoption or identified any evidence that could have supported a finding that mother
had maintained such a relationship. The undisputed facts in the record did not establish
the existence of a beneficial parental relationship. During the nine months preceding the
section 366.26 hearing, mother had just three supervised visits with the children. She
abandoned them for seven months (October and November 2012, and February through
June 2013). Mother’s absence from the children’s lives was not brief. This was a
significant portion of Andrea’s life, as she was just two years old when mother ceased
visiting her regularly in October 2012. And this was a critical time in Jasmine’s life, as
she was just becoming a teenager and dealing with all that goes along with such a critical
transformation in a young girl’s life. Mother clearly did not maintain “regular visitation
and contact” with Jasmine and Andrea. (§ 366.26, subd. (c)(1)(B)(i).) The juvenile
court’s implied finding that she failed to establish the existence of a beneficial parental
relationship is not only supported by substantial evidence but is the only finding that
could possibly be made on the evidence that was before the court.
       Mother’s reliance on In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.) is
misplaced. Eight-year-old Scott was placed in a foster home due to the mother’s neglect,
and the mother was denied reunification services. (Scott B., at pp. 456-457.) Scott was a

                                              7
special needs child with autism and other difficulties who had an “ ‘extremely close
bond’ ” with the mother. The mother maintained consistent weekly visitation during the
two years that Scott was in foster care, missing only one visit, and Scott enjoyed and
looked forward to the visits. (Scott B., at pp. 457-461, 463, 467.) Scott’s foster family
was interested in adopting him, but Scott was adamantly opposed to being adopted and
said he would run away if adoption occurred. (Scott B., at p. 462.) He insisted that he
wanted to live with the mother, and he even once attempted to run away from his foster
family. (Scott B., at pp. 462, 466.) Scott’s CASA believed that it was “imperative” that
Scott maintain contact with the mother and opined that it would be “detrimental” to him
for their relationship to be disrupted. (Scott B., at p. 465.) The juvenile court found that
the mother had established the existence of a beneficial parental relationship, but it
concluded that the benefit of this relationship did not outweigh the benefits of adoption.
(Scott B., at p. 468.) The Second District Court of Appeal reversed because it concluded
that the evidence indisputably established that it would be detrimental to Scott to
terminate his relationship with the mother. (Scott B., at p. 472.)
       The case before us is unlike Scott B. In Scott B., the juvenile court found that
there was a beneficial parental relationship, and the only issue was whether the benefit of
that relationship outweighed the benefits of adoption. Here, the juvenile court impliedly
found that there was no beneficial parental relationship, and the evidence provides no
support for the existence of such a relationship. Thus, there was no need to consider
whether the potential detriment from the termination of this relationship outweighed the
benefits of adoption. Where no beneficial parental relationship exists, the parental
relationship exception does not apply.


                                      III. Disposition
       The orders are affirmed.



                                              8
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




                                     9
