Filed 8/19/14 In re E.G. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re E.G. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E060865

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J245983 & J245984)

v.                                                                       OPINION

T.G. et al.,

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

         Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and

Appellant T.G.

         Nicole Williams, under appointment by the Court of Appeal, for Defendant and

Appellant J.C.

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       Jean-Rene Basle, County Counsel, and Regina A. Coleman, Deputy County

Counsel, for Plaintiff and Respondent.

       On October 29, 2013, after 13 months of reunification services, the juvenile court

terminated defendants and appellants’ (collectively parents) reunification services with

respect to minors E.G. (born in 2012) and T.G. (born in 2010). On March 3, 2014, the

juvenile court terminated parents’ parental rights and found minors adoptable. On

appeal, parents contend the court erred in finding the parental benefit exception to

termination of parental rights did not apply. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiff and respondent San Bernardino County Children and Family Services

(CFS) detained minors E.G. and T.G. when mother and E.G. both tested positive for

methamphetamine at E.G’s birth. Mother admitted smoking methamphetamine right

before E.G. was born, but said this was her only use of methamphetamine and that she

had no previous history of substance abuse. However, mother had 16 prior CFS referrals

going back to 2003, almost all of which related to substance abuse. T.G. had tested

positive for methamphetamine and marijuana at her birth in 2010. Mother had a prior

conviction for possession of controlled substances. Father had two convictions for

possession of controlled substances.

       The juvenile court detained minors on September 18, 2012, ordered parents

reunification services, and granted visitation of three hours, one day a week. In the

jurisdictional and dispositional report dated October 5, 2012, the social worker reported

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parents indicated they had been clean for a month, the longest they had ever been sober

since their relationship began three years earlier. Parents had supervised visitation with

minors several times a week.

       On October 9, 2012, the juvenile court removed minors and ordered visitation of

two hours, three times weekly. In a status review report dated April 5, 2013, the social

worker observed mother had tested negative for drugs. Mother was receiving individual

counseling; however, the therapist “expressed concern about the mother’s lack of

participation in therapy. He reports that [mother] has stated that she has no problems

with anyone in her family and does not know why her children are in foster care because

she no longer uses drugs, everything is fine.” The therapist was contemplating

terminating mother’s therapy due to her lack of participation, but the social worker

convinced the therapist to hold off until the social worker could speak with mother

regarding the issue.

       Father tested negative for drugs, but missed “numerous” tests due to classes,

illness, and time spent seeking employment. Parents visited minors twice a week

together; mother visited minors alone one morning once a week. The visits reportedly

went well. Parents took turns caring for minors including feeding and bathing them. At

the six month review hearing on April 9, 2013, the juvenile court found parents’ progress

“substantial” and continued reunification services.

       On June 27, 2013, CFS filed a supplemental juvenile petition alleging the relatives

with whom minors had been placed had been emotionally abusing minors’ sibling, had

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pushed minors’ sibling down, and had been physically disciplining minors. Additional

allegations against parents were made that they had been involved in incidents of

domestic violence. On June 28, 2013, the juvenile court detained minors from the

relative placement.

       In a July 16, 2013, report, the social worker noted mother had reported using

methamphetamine since she was 17 years old. Father reported using marijuana

beginning at the age of 15 and methamphetamine at the age of 16. On August 26, 2013,

the social worker reported that both parents had incurred one positive and one negative

drug test in July 2013. Parents had attended only one of six therapy sessions scheduled

between July 1, and August 13, 2013. Nevertheless, it was reported parents had made

some forward progress in individual therapy by recognizing their responsibility for the

current circumstances.

       At a contested jurisdiction and disposition hearing on the supplemental petition on

August 26, 2013, the juvenile court removed minors from the relative caregiver

placement. Parents were granted two-hour, once-weekly, supervised visitation with

minors. CFS had authority to liberalize visitation once parents completed the drug

component of their services.

       In the October 1, 2013, status review report, the social worker recommended the

juvenile court terminate parents’ reunification services. Parents had twice relapsed

during the reporting period. Mother admitted using methamphetamine on May 15, 2013,

tested positive for alcohol on May 16, 2013, and tested positive for methamphetamine

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again on July 22, 2013. Father tested positive for methamphetamine on May 20, and July

30, 2013. Parents admitted to their therapist they had domestic violence issues.

       Parents had been evicted from their apartment, had broken up, and were looking

for separate places to live. Father had found employment, but was fired after a month.

Mother had been unemployed during the entirety of the juvenile proceedings until she

began working at McDonald’s one and a half months earlier. Mother completed 45

weeks of a parenting program. Father completed 39 weeks of the parenting program.

Mother had several unexcused absences from individual counseling. Father’s

participation in individual counseling had lapsed recently. The social worker noted

“parents love their children but seem unable at this time to provide a stable home

environment that is void of domestic violence and relapses in substance abuse.”

       Twice weekly visitation between parents and minors had gone well: “The parents

have for the most part been consistent with visits with the minors and seem to enjoy

playing with their young children. The mother often brings food for the children and

both parents are able to spend equal time with them. The parents have missed very few

visits during this reporting period.” Nevertheless, the social worker opined, “It appears

that to return the children to their parents would create a substantial risk of detriment to

the physical and/or emotional well-being of the children, because the parents have failed

to participate regularly in the court-ordered treatment plan.”

       In a subsequent report, the social worker informed the juvenile court mother had

been arrested on September 19, 2013, for copying credit card numbers while working at

                                              5
McDonalds; Mother purchased food at another restaurant with one of the credit card

numbers. Mother missed visits with minors on October 8, and 18, 2013. Parents missed

a number of individual counseling sessions in September and October 2013. Mother

tested positive for methamphetamine on October 14, and 28, 2013. Father “was not able

to produce for” two drug tests, but tested negative on October 16, 2018. Parents had

failed to turn in Narcotics Anonymous and Alcoholics Anonymous (NA/AA) attendance

sheets for the preceding three weeks.

       At the 12-month hearing on October 29, 2013, father testified he had completed a

drug program and two parenting programs. Father attended the three weeks of NA/AA

meetings, but the attendance sheets were missing. Although he was required to attend

two NA/AA meetings a week, he would miss “a week here and there.” Father was unable

to give a urine sample for drug testing on October 15, 2013. Father admitted he is a drug

addict who has been using drugs since he was a teenager. He missed six counseling

sessions in August 2013. The juvenile court terminated parents’ reunification services,

scheduled the Welfare and Institutions Code section 366.26 hearing,1 and limited

visitation to once monthly, giving CFS authority to liberalize visitation if parents became

sober and were participating in services.




       1   All further statutory references are to the Welfare and Institutions Code.




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       In a subsequent report, the social worker noted minors had been placed with the

current foster parents on June 24, 2013.2 The social worker observed, “The foster parents

appear genuinely bonded to [minors] and have stated several times, they would like to be

considered if [minors] were eligible for adoption.” On January 8, 2014, the juvenile

court granted the foster parents request for de facto parent status.

       In the section 366.26 report dated February 14, 2014, the social worker

recommended parents’ parental rights be terminated. Parents had visited with minors on

November 12, December 17, 2013, and January 28, 2014. The visits were deemed

appropriate. The social worker noted minors have a secure bond and attachment with the

foster parents whom they see as parental figures.

       At the section 366.26 hearing on March 3, 2014, father testified that before minors

had been taken into protective custody, parents took care of them. They fed, bathed,

dressed, loved, and played with them. T.G. loves him, tells him she loves him, calls him

dad, and asks when she can return home to him. Father testified he “made all my visits.”

       Mother testified she fed, loved, and cared for T.G. T.G. calls her “mommy.”

T.G.’s face lights up and she goes directly to father when she sees him as she favors him.

Mother cared for, fed, and changed E.G.’s diapers before he was taken into protective

custody. Mother had obtained another job “because I was working at McDonald’s, but

they weren’t giving me enough hours . . . .” Mother currently lives with and is in a

       2   Later reports indicate the date was one day later, June 25, 2013.



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relationship with father. Mother testified she and father stopped participating in

treatment when their reunification services were terminated. Nevertheless, mother

continued to attend NA/AA meetings two to three times weekly since her services were

terminated. The social worker testified parents were discharged from their substance

treatment program on October 31, 2013, due to nonattendance.

       The juvenile court found that, “Right now the only bond that the children have that

is significant is their significant relationship and bond with their current caregivers.” The

court further noted “the parents have been visiting, but that’s all I can say about the

parents’ contact with the [] minors, and the preference for their young age at the time of

removal is adoption, and they are with caretakers who prefer to adopt.” The court

terminated parents’ parental rights.

                                       DISCUSSION

       Parents contend the court erred in failing to apply the beneficial relationship

exception to termination of their parental rights. We disagree.

       Once reunification services have been terminated and a minor has been found

adoptable, “adoption should be ordered unless exceptional circumstances exist.” (In re

Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i),

one such exception exists where, “[t]he parents have maintained regular visitation and

contact with the child and the child would benefit from continuing the relationship.” A

beneficial relationship is established if it “‘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

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new, adoptive parents.’” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534 quoting In

re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent has the burden of proving

termination would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th

1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)

       “‘[T]he 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.’ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 555.)

       “[I]t is only in an extraordinary case that preservation of the parent’s rights will

prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D.,

supra, 78 Cal.App.4th at p. 1350; accord In re Casey D., supra, 70 Cal.App.4th at p. 51.)

“We determine whether there is substantial evidence to support the trial court’s ruling by

reviewing the evidence most favorably to the prevailing party and indulging in all

legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] If the

court’s ruling is supported by substantial evidence, the reviewing court must affirm the

court’s rejection of the exceptions to termination of parental rights . . . . [Citation.]” (In

re S.B. (2008) 164 Cal.App.4th 289, 297-298.)

       Here, substantial evidence supported the juvenile court’s conclusion that

termination of parents’ parental rights would not be detrimental to minors. First,

                                               9
although father testified he “made all [his] visits,” the record reflects parents did miss

some of their visits. Although parents’ visits were mostly consistent, it must be

considered in context of the visitation parents were granted. The visits parents missed

came toward the end of the proceedings when parents had only been granted once-weekly

visitation. Thus, missing visits at that juncture in the case was more serious than it would

have been earlier in the proceedings when parents had thrice-weekly visitation.

       Second, parents never progressed to unsupervised visits. Indeed, parents digressed

from thrice-weekly visits to once-monthly visits due to their failure to maintain sobriety

and participation in treatment programs. Third, minors had been out of parents’ custody

for nearly 15 months at the time the juvenile court terminated parents’ parental rights.

E.G. had been only about two weeks old when he was placed in protective custody.

Thus, he had spent the vast majority of his life out of the care and custody of parents.

Although T.G. was three years old when placed in protective custody, she had likewise

spent the last 15 months, more than a quarter of her life, out of parents’ custody.

       Fourth, minors had been placed with the current foster parents almost eight

months earlier; it was the foster parents who took care of minors’ daily needs. The social

worker noted, “The foster parents appear genuinely bonded to the children and have

stated several times, they would like to be considered if the children were eligible for

adoption.” Minors had a secure bond and attachment with the foster parents whom they

viewed as parental figures. The evidence supported the court’s determination that the

only significant bond the children had was with the foster parents. Thus, parents have

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failed to demonstrate any benefit minors derived from a continued relationship with

parents outweighed the benefit of gaining an adoptive home with the foster parents.

Therefore, the court properly terminated parents’ parental rights.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                      J.

We concur:


RAMIREZ
                       P. J.


KING
                          J.




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