Filed 8/7/14 In re Elizabeth D. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ELIZABETH D., a Person Coming
Under the Juvenile Court Law.
                                                                 D065669
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. EJ3148)
         Plaintiff and Respondent,

         v.

RICK S.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

         Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
       Rick S. appeals the judgment terminating his parental rights to his daughter,

Elizabeth D. Rick contends the juvenile court erred by declining to apply the beneficial

relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i))1 to termination

of parental rights. We affirm.

                                     BACKGROUND

       Rick has a history of mental illness, substance abuse and domestic violence. Just

days before Elizabeth was born in December 2008, her mother, Jennifer D., reported that

Rick had slapped her. As a result, Jennifer obtained legal custody of Elizabeth and Rick

had supervised visitation.

       In September 2009, the San Diego County Health and Human Services Agency

(the Agency) detained nine-month-Elizabeth and filed a dependency petition because

Jennifer was unable to care for her due to mental illness and Rick had not protected

Elizabeth. The juvenile court declared Elizabeth a dependent and ordered her removed

from parental custody. During the dependency, Elizabeth lived with her maternal

grandmother and maternal uncle for more than one year. In February 2011, Elizabeth

began a 60-day trial visit with Rick. At the 18-month hearing in April, the court ordered

Elizabeth placed with Rick. In November, the court awarded Rick custody of Elizabeth,

with supervised visits for Jennifer, and terminated dependency jurisdiction.

       In February 2012, the Agency filed a new petition for three-year-old Elizabeth.

The petition alleged Rick had relapsed on alcohol and let Jennifer into his home in



1      All further statutory references are to the Welfare and Institutions Code.
                                             2
violation of custody orders. Elizabeth was detained with her maternal grandmother and

maternal uncle and remained there for the remainder of the case. In April, the court made

a true finding on the petition, ordered Elizabeth removed from parental care and ordered

reunification services for Rick. At the 18-month hearing in October 2013, the court

terminated Rick's services and set a section 366.26 hearing. The section 366.26 hearing

took place in March 2014.

                                        DISCUSSION

       If a dependent child is adoptable,2 the court must terminate parental rights at the

section 366.26 hearing unless the parent proves the existence of a statutory exception.

(§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) One

exception exists if "[t]he 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).) A beneficial 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If

terminating parental rights "would deprive the child of a substantial, positive emotional

attachment such that the child would be greatly harmed, the preference for adoption is

overcome. . . ." (Ibid.) The existence of a beneficial relationship is determined by

considering "[t]he age of the child, the portion of the child's life spent in the parent's

custody, the 'positive' or 'negative' effect of interaction between parent and child, and the



2      Rick does not contest the adoptability finding.
                                               3
child's particular needs . . . ." (Id. at p. 576.) Examining the evidence most favorably to

the judgment (ibid.), we conclude substantial evidence supports the court's conclusion

that the benefits of adoption outweighed "the potential uncertainty of a continued

relationship" between Elizabeth and Rick, "even if she does suffer from emotional pain

because she might not see" him. The court found Elizabeth and Rick loved each other

but their relationship was strained and Rick's role was that of a friendly visitor. He did

not show stability or consistency and "didn't occupy a parental relationship with

[Elizabeth] for any substantial period of time." This led Elizabeth to feel conflicted.3

       By March 2014, five-year-old Elizabeth had been out of Rick's care for more than

two years. She had lived with him for only about one year of her life. Elizabeth had

lived with the maternal grandmother and maternal uncle for a total of more than three

years: more than two years in this case and more than one year in the earlier case. The

maternal grandmother had also cared for Elizabeth at times when she was not a court

dependent. Elizabeth identified the maternal grandmother's home as her home. Elizabeth

was attached to her caregivers and sought them out to meet her needs. Elizabeth had a

parent-child relationship with her caregivers. The caregivers provided Elizabeth the

safety, stability and consistency she needed and wished to adopt her. Elizabeth called the

maternal grandmother "grandma" or "mom." In October 2013, Elizabeth asked the

maternal uncle, "Can you be my daddy?"




3     The court did not make an express finding regarding the regularity of visitation
and contact. Overall Rick visited inconsistently.
                                             4
       Rick's visits varied between supervised and unsupervised. Elizabeth sometimes

enjoyed visits and sometimes did not. Rick's inconsistency in visiting caused Elizabeth

emotional stress. Visits also caused her stress; after some visits she refused to eat, talked

about space aliens and had nightmares. Rick made inappropriate comments in Elizabeth's

presence, such as stating that while under the influence, he passed out and could have

died. When Elizabeth was climbing on a play structure, he told her not to fall or he

would laugh at her. Elizabeth reported that during one visit, she watched a movie about

AIDS and during another visit, she and Rick watched a show called "Murder Most

Horrible."

       In September 2013, when overnight visits began, Elizabeth began exhibiting

behavioral problems at school, including violence toward other children, touching her

"private area" and wetting her pants. Elizabeth said Rick had licked her hand. Rick did

not visit Elizabeth in October. He visited just twice in November and twice in December.

Beginning in December, Elizabeth refused to speak with Rick on the telephone. Between

late January and late February 2014, Rick visited just twice. At a visit in early February,

Elizabeth told Rick, "I don't like you. Leave me alone." Just after the visit, Elizabeth

expressed a desire to be adopted by her maternal grandmother. One week later, Elizabeth

said she wanted to live with her maternal grandmother and did not want to live with Rick

because he was mean and had broken her favorite compact disc. On other occasions,

Elizabeth said she wanted to live with Rick. Elizabeth felt torn.

       Elizabeth recognized Rick as her father, and he sometimes played a parental role

during visits. Elizabeth viewed Rick as a visitor. She sometimes called him by his first

                                              5
name and sometimes called him "dad" or "daddy." The social worker believed Elizabeth

would miss Rick if they had no further contact, but she would not be greatly harmed.

Elizabeth needed the sense of stability, permanence, safety and consistency that adoption

would provide.

                                     DISPOSITION

      The judgment is affirmed.




                                                                          O'ROURKE, J.

WE CONCUR:



MCCONNELL, P. J.



IRION, J.




                                            6
