Filed 6/16/15 In re Mo. N. CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


In re Mo. N., a Person Coming Under the                                        2d Juv. No. B260053
Juvenile Court Law.                                                          (Super. Ct. No. J069030)
                                                                                 (Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
      Petitioner and Respondent,
v.
MATEO N. and M. N.,
       Defendants and Appellants.



                   Mateo N. (father) and M. N. (mother) appeal from the juvenile court's order
terminating parental rights to their daughter, Mo. N., and freeing Mo. for adoption.
(Welf. & Inst. Code, § 366.26.)1 Appellants contend that Mo. is not adoptable and that
the beneficial parent-child relationship exception bars the child's adoption. (§ 366.26,
subd. (c)(1)(B)(i).) We affirm.
                                         Facts and Procedural History
                   On August 30, 2012, Mo. (age 22 months) and three older siblings were
placed in protective custody due to appellants' substance abuse, domestic violence, and
reports that father was selling cocaine out of the home. Mo. was anemic, had a bladder
infection, suffered development delays, and her body weight and height was below the

1
    All statutory references are to the Welfare & Institutions Code.
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one percentile for infants her age. Mo. also exhibited aggressive behavior, hitting people,
and pulling hair.
              The trial court sustained a dependency petition for general neglect (§ 300,
subd. (b)), ordered reunification services, and placed Mo. in foster care. In March 2013,
Ventura County Human Services Agency (HSA) returned Mo. to mother's care for a 60-
day extended visit. Services were extended but mother struggled with depression, was
not taking her prescribed medication, was afraid to be on her own, and feared she would
"self- sabotage" the case plan. Mother completed a drug rehabilitation program and a
parenting program, but missed four random drug tests, stopped attending 12-step program
meetings, and did not follow up on in-home therapeutic support services and a domestic
violence program.
              HSA removed Mo. a second time in January 2014, after mother tested
positive for methamphetamine on two occasions (January 29, 2014 and January 31, 2014)
and was arrested for being under the influence of a controlled substance. Mother
admitted that she had been using methamphetamine since October 2013 and claimed that
she suffered a relapse "due to stress" and "too much time on her hands." During a
January 29, 2014 home visit, the social worker observed trash on the floor, dirty dishes
and pans on the kitchen counter and stove top, and piles of laundry on the floor.
              Father declined HSA's offer to take custody of Mo. and claimed that he was
unable to care for Mo. due to his work schedule. When Mo. was placed in foster care,
father was offered unsupervised visits but opted for supervised, one-day-a-week visits.
              The trial court terminated mother's services on February 27, 2014, and
continued services for father. (§ 387.) At the 18-month review hearing, the trial court
terminated services for father and set the matter for a permanent placement hearing.
Following a contested section 366.26 hearing, the court found that Mo. was adoptable
and that the parent-child and sibling relationship exceptions did not apply. (§ 366.26,
subd. (c)(1)(B)(i) & (v).)
                                       Adoptability

                                             2
              Appellants contend that the evidence does not support the finding that Mo.
is adoptable. Before terminating parental rights, the juvenile court must find by clear and
convincing evidence that the child is likely to be adopted within a reasonable time. (§
366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) In assessing a child's
adoptability, " 'the juvenile court must focus on the child, and whether the child's age,
physical condition, and emotional state may make it difficult to find an adoptive family.
[Citations.] In reviewing the juvenile court's order, we determine whether the record
contains substantial evidence from which a reasonable trier of fact could find clear and
convincing evidence that [the child] was likely to be adopted within a reasonable time.
[Citations.]' [Citations.] We give the court's finding of adoptability the benefit of every
reasonable inference and resolve any evidentiary conflicts in favor of affirming.
[Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
`             The section 366.26 report states that the prospective adoptive parents love
Mo. and want to adopt and make her a permanent member of the family. Mo. is an
adorable toddler, has become more socialized in her behavior, and responded well to
therapy. Appellants argue, for the first time on appeal, that Mo. suffers from reactive
attachment disorder, i.e., attachment difficulties with her caregivers.2 Although no one
reported that Mo. suffered from reactive attachment disorder, the social worker did testify
that Mo. had attachment problems in the past.
              Father argues that the bonding problem is significant and that Mo. will need
lifelong therapy. That misstates the evidence. Social worker Davi Barroso testified that
Mo. will have phases in her life where "she's going to need support around issues of


2
  " 'Reactive attachment disorder' " is a psychological condition that means an inability to
form loving attachments. It entails difficulty bonding, poor impulse control, and
insensitivity to the needs of others. [Citations.]" (In re Jayson T. (2002) 97 Cal.App.4th
75, 82.) The disorder, while related to having inadequate care and multiple caregivers
prior to placement in foster care, is further exacerbated by the lack of permanent
placement in a stable, nurturing and supporting home. (In re Krystle D. (1994) 30
Cal.App.4th 1778, 1792.)
                                              3
adoption and attachment . . . ." Mo. had difficulty adjusting to her foster home but was
doing much better and bonding to her fost-adopt parents. When Mo. started to "overly"
attach by befriending strangers, HSA referred Mo. and the fost-adopt parents to the
Ventura County Behavioral Health Subsystem for in-home therapeutic services.
              In an August 4, 2014 report, HSA reported that Mo. was responding to
therapy and able to transition between visitation and the prospective adoptive home.
"Mo. no longer cries, easily returns to the care of the prospective adoptive parents after
visits, and shows excitement when returning home. Mo. continues to demonstrate
increased attachment to her prospective adoptive family and is responsive to the stability
and structure in the home."
              The evidence clearly shows that Mo. is healthy and adoptable. Social
worker Barroso explained that Mo. "is having some adjustment issues, but those are in
progress . . . . She will have phases in her life where she's going to need support around
issues of adoption and attachment and -- but Mo. is not reactive attachment. She's not
behaviorally beyond the scope of adoption,"
              Appellants argue that Barroso, a social worker with 17 years experience,
was not qualified to opine on whether Mo. suffered from reactive attachment disorder.
Appellants, however, did not object and are precluded from challenging the testimony on
appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502; In re Jennilee T. (1992) 3
Cal.App.4th 212, 222.) Father argues that Barroso should have ascertained Mo.'s feelings
about adoption but Mo. was only three years old. The trial court credited Barroso's report
that Mo. "is too young to understand the concept of adoption. . . Mo. does demonstrate
positive connections with her prospective adoptive parents and siblings." Where, as here,
the child is too young to understand or express his/her wishes regarding adoption, there is
no requirement that the trial court obtain a statement from the child about placement and
adoption. (§ 366.21, subd. (i)(1)(E); In re Juan H. (1992) 11 Cal.App.4th 169, 173.)
              Substantial evidence supports the trial court's finding that Mo. is adoptable
and likely to be adopted within a reasonable time. The section 366.26 report states that

                                              4
Mo. is adoptable and "there is no reason to believe that the prospective adoptive parents
will not follow through with the adoption finalization of Mo.. . . There are families that
are also approved adoptive families that would accept a child of Mo.'s age, ethnicity,
parental background and similar individual traits."
              " ' "Usually, the fact that a prospective adoptive parent has expressed
interest in adopting the minor is evidence that the minor's age, physical condition, mental
state, and other matters relating to the child are not likely to dissuade individuals from
adopting the minor. In other words, a prospective adoptive parent's willingness to adopt
generally indicates the minor is likely to be adopted within a reasonable time either by
the prospective adoptive parent or by some other family." ' [Citation.]" (In re Gregory
A., supra, 126 Cal.App.4th at p. 1562; see also In re A.A. (2008) 167 Cal.App.4th 1292,
1313.)
                           Beneficial Parent-Child Relationship
              Appellants argue that the trial court erred in finding that that the benefits of
continuing the parent-child relationship do not outweigh the benefits of adoption. (See
e.g., In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) The parent-child
relationship exception to adoption is reviewed under a hybrid substantial evidence and
abuse of discretion standard. (Id., at p. 1314.) "Because a parent's claim to such an
exception is evaluated in light of the Legislature's preference for adoption, it is only in
exceptional circumstances that a court will chose a permanent plan other than adoption.
[Citation.]" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
              To establish the beneficial parent-child relationship exception, appellants
must show they maintained regular visitation with Mo.. (§ 366.26, subd. (c)(1)(B)(i).)
Once that has been established, the burden is on appellants to demonstrate that Mo.
would benefit from continuing the relationship and that it outweighs the benefits of
adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is a two prong test.
"The exception applies only where the [trial] court finds regular visits and contact have


                                              5
continued or developed a significant, positive, emotional attachment from child to
parent.' " (In re Casey D. (1999) 70 Cal.App.4th 38, 50.)
              The trial court found that appellants met the first prong by maintaining
regular visitation but visitation was minimal after mother suffered a drug relapse. Father
was offered two to three unsupervised visits a week for six hours each, but opted for one-
hour per week supervised visits at the HSA office. Father claimed that he was too busy
with work and that no other family members were available to care for Mo.. Father was
given the chance to demonstrate day-to-day parenting but declined to take on the
responsibility of unsupervised visits.
              With respect to the second prong, the trial court found that appellants
maintained a "visiting relationship" but that appellants' love and affection did not
outweigh the benefits of adoption. Mo. lived with appellants for the first 22 months of
her life, was in foster care for eight months, and returned to live with mother and/or
father until mother suffered a drug relapse nine months later. Mo. lived with her fost-
adopt parents for the next 10 months and looked to them for comfort and support. By the
time of the section 366.26 hearing, Mo. had spent a quarter of her life outside of
appellants' care.
              Mother stated that Mo. enjoyed the visits and was happy but mother never
advanced beyond supervised visitation. While Mo. had a good relationship with mother,
it was more as a friend and playmate than as a parent. (See e.g., In re Brittany C. (1999)
76 Cal.App.4th 847, 854.) The parent must show "more than frequent and loving contact,
an emotional bond with the child, or pleasant visits. [Citation.]" (In re Dakota H., supra,
132 Cal.App.4th at p. 229.)
              The trial court found "there is evidence of a relationship for Mo. and her
father and some -- to some lesser degree, her mother, because of the regular contact and
parental work that father did during this case for an approximate nine-month period. But
then, unfortunately, it took substantial steps backwards back to a visiting relationship"
after mother suffered the drug relapse.

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              Mo.'s contact with father was limited to one hour a week supervised visits.
Social worker Barroso agreed "there's probably a bond" between Mo. and father but
stated that the "bond is questionable" because of father's history of domestic violence.
Children from domestic violence homes are not "able to trust that they're going to be
taken care of or that they're going to be safe." Mo. exhibited those problems when she
tantrumed, had difficulties sleeping, and hit and pulled hair. The behavioral problems
subsided after Mo. was placed with her prospective adoptive parents and received
therapy. Over time, Mo. viewed the supervised visits as play, easily transitioned, and
was excited to return home to her foster parents. When asked whether Mo. was sad at the
end of the visits, father conceded "[n]ot very much. At the beginning, yes, but not now --
not much." Appellants presented no evidence that "severing the natural parent-child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed. [Citations.]" In re Angel B. (2002) 97
Cal.App.4th 454, 466.)
              Father argues that the trial court erred in considering the fost-adopt family's
willingness to allow post-adoption visits with family members. Although the section
366.26 report indicated that the fost-adopt parents were open to visits, the trial court
stated: "It's not a factor that I'm basing my decision on . . . ." The court acknowledged
that appellants love Mo., but "[s]adly, this case cries out for the security, stability and
comfort that [only] permanency can afford this child."
              Based on Mo.'s age and needs, the trial court reasonably concluded that
Mo.'s long-term emotional interests would be better served by the permanency of
adoption. (See e.g., In re Valerie A. (2007) 152 Cal.App.4th 987, 1013.) It was "a
'quintessentially' discretionary decision" but not a close call. (In re Bailey J.¸ supra, 189
Cal.App.4th at p. 1315.) Adoption is the preferred permanent plan and is clearly in Mo.'s
best interests. It is not our function to retry the case. (In re I.W. (2009) 180 Cal.App.4th
1517, 1528.) "The reality is that childhood is brief; it does not wait while a parent
rehabilitates himself or herself. The nurturing required must be given by someone, at the

                                               7
time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987)
189 Cal.App.3d 1032, 1038.)
              The judgment (section 366.26 order terminating parental rights) is affirmed.
              NOT TO BE PUBLISHED.



                                                        YEGAN, J.

We concur:



              GILBERT, P.J.



              PERREN, J.




                                             8
                                 Bruce Young, Judge
                          Superior Court County of Ventura
                        ______________________________


             Aida Aslanian, under appointment by the Court of Appeal, for Mateo N.,
Appellant


             Maureen L. Kearney, under appointment by the Court of Appeal, for M.
M., Appellant.


             LeRoy Smith, County Counsel, County of Ventura and Joseph J. Randazzo,
Assistant County Counsel, for Respondent.




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