Filed 8/1/16 In re Y.G. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Y.G., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G052993
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP024645)
         v.
                                                                       OPINION
R.G.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dennis J.
Keough, Judge. Affirmed.
                   Donna P. Chirco, under appointment by the Court of Appeal, for Defendant
and Appellant.
               Leon J. Page, County Counsel, and Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
               No appearance for the Minor.
                                         *    *       *
               R.G. (Mother) appeals from the juvenile court’s termination of her parental
                                                  1
rights to her now five-year-old daughter, Y.G., at the permanency placement hearing.
(Welf. & Inst. Code, § 366.26, all further statutory references are to the Welfare and
Institutions Code.) Mother maintains the court erred by finding the section 366.26,
subdivision (c)(1)(B)(i), parental bond exception did not apply to avoid termination of
parental rights. After failing to reunify with Y.G. after 18 months, Mother maintains
Y.G.’s “primary attachment is to her” and the minor should not be adopted by the family
she has also bonded with. She suggests a permanent plan of legal guardianship would be
appropriate.
               On November 23, 2015, this Court denied Father’s writ petition challenging
the denial of his section 388 petition. (S.S. v. Superior Court (Nov. 23, 2015, G052432)
[nonpub. opn.].) He is not a party to this appeal. We find Mother’s contentions on
appeal lack merit, and we affirm the judgment.
                                              I
               We incorporate by reference our prior summary of facts through the
18-month review hearing ending on August 12, 2015, at which the juvenile court
terminated reunification services and set a permanency hearing. (S.S. v. Superior Court,
supra, G052432.) We will highlight below only the facts relevant to the single issue
raised in this appeal.
               In February 2014, then four-year-old Y.G. was taken into protective
custody due to Mother’s mental health problems, substance abuse, and neglect. Mother
1
             In the record and briefing, Y.G. is sometimes referred to as Y.S. For
consistency and clarity, we will refer to the minor as Y.G. in this opinion.

                                              2
suffered from panic attacks in which she would hit and cut herself. When she became
angry and jealous of Y.G., she gave the child twice the recommended dosage of
ibuprofen. She hit and neglected Y.G., and claimed she had once tried to give Y.G.
bleach to drink. Mother suffered from depression, had multiple suicide attempts, and had
a history of substance abuse, including alcohol, methamphetamine, and cocaine. Mother
did not want to care for Y.G. and said she feared she would hurt the child. Mother said
she did not know why she hit Y.G., but she also stated that sometimes when she was
having a bad day she did not want Y.G. to make noise or talk and she would hit or yell at
the child when she made sounds. One morning, Y.G. tried to wake up Mother, and
Mother responded by slapping Y.G.’s face, causing her nose to bleed. Mother admitted
she needed help, she would keep on hurting Y.G., and she could no longer take care of
Y.G.
             Y.G. was afraid of Mother. Mother said she knew Y.G. feared her because
whenever she called for Y.G., she would start crying and pull away from her. Mother
stated this occurred three to four times a week. Mother stated she “‘gave up’” Y.G. and
asked for help because “she was being abused emotionally by me, because I was taking
the medications. I know she is hurt emotionally.”
             Y.G. was placed in a foster home, where she has remained throughout these
proceedings. In the March 2014 reports for the jurisdiction and disposition hearing, the
social worker reported Y.G. was adjusting to her placement but was very shy and would
withdraw from anyone she did not know. She refused to communicate with the social
worker, or even with the foster parents in the social worker’s presence, and when she did
communicate, it was only with “pure sounds” instead of verbal communication. The
foster parents were concerned Y.G. would “‘shut[] down’ when redirected.” They
reported that once Y.G. took a plastic toy knife and simulated cutting herself. Another
time, when another child was upset, Y.G. asked the child if he was going to kill himself.



                                            3
Y.G. would cry when Mother would leave after their initial visits. Y.G. was referred to
counseling.
              On March 26, 2014, Mother pleaded no contest to the petition that alleged
jurisdiction due to her failure to protect. (§ 300, subd. (b).) The juvenile court sustained
the allegations of the petition, declared Y.G. a dependent child, removed her from
parental custody, ordered reunification services for Mother, and set a six-month review
hearing.
              During the first six months of these dependency proceedings, Y.G. was
doing well in therapy and thriving in her foster home. Y.G.’s initial developmental
screening showed her to be “close to the cut-off on gross motor, fine motor, and personal
social areas.” The foster parents were interested in adopting Y.G. Mother made
moderate progress with her case plan, and the social worker recommended she continue
to receive reunification services. The parties stipulated to the juvenile court’s order that
services continue. The court set the 12-month review hearing for March 2015.
              Mother’s progress with her case plan was minimal over the next six
months, and the social worker recommended terminating reunification services and
setting a permanency hearing. Mother was terminated from therapy with a guarded
prognosis because of missed appointments. She missed several drug tests, or tested
positive for opiates and amphetamines. She frequently missed, or arrived late, for visits
with Y.G. Y.G. resisted going to visits with Mother and said she wanted to stay with the
foster parents.
              Y.G. was thriving with her foster parents and she described her happiness
on a scale of one to 10—with 10 being highest—as a 10. She referred to the foster
parents as “Mommy and Daddy.” Although she was still very shy, Y.G. was meeting all
her goals in therapy, had greatly reduced her “shutdown” episodes, was doing very well
in prekindergarten, and had made great improvements in her verbal skills. The foster
parents were committed to caring for Y.G. and providing her a stable and loving home.

                                              4
              The 12-month review hearing was continued to April 15, 2015. The social
worker’s addendum report continued to recommend terminating Mother’s services.
Mother continued to visit Y.G., but was almost always late. She missed more drug tests
and more therapy appointments. The 12-month review hearing was continued to May 6,
2015. The social worker’s report for that hearing stated Mother’s compliance with her
case plan remained the same. Y.G. was attached to the foster parents, expressed her
desire to remain with them, and became upset after visits with Mother. Nguyen reported
that when she asked Y.G. if she had any concerns, Y.G. replied, “‘I am worried I have to
live with my Mom.’” She added, “‘I want to stay with Mommy and Daddy [and the other
members of the foster family].’” Nguyen and the foster mother “exchanged strategies to
help [Y.G.] cope with her anxiety” about returning to Mother’s care.
              Up to this point in the proceedings, Father’s whereabouts were unknown.
At the 12-month review hearing on May 6, 2015, Mother provided contact information
for Father, who was living in Mexico. The parties stipulated to Mother receiving further
services, and an 18-month review hearing was set for August 6, 2015. The juvenile court
ordered SSA to use its best efforts to contact Father.
              In its report for the 18-month review hearing, the social worker again
recommended terminating services and setting a permanency placement hearing.
Mother’s participation in services was only moderate. Y.G. remained firmly bonded with
the foster parents. Y.G. was “happy and healthy” in her placement, continued to express
that she wanted to remain with the foster parents and be adopted by them. Mother had
little interaction with Y.G. during visits, and Y.G. would remain in close proximity to the
foster parents. Y.G. was doing well in school and in extracurricular activities. Y.G. had
no recollection of Father. The 18-month review hearing was continued to August 10,
2015.
              On August 10, 2015, Father filed a section 388 petition asking the court to
return Y.G. to his care in Mexico, or to grant him reunification services, and asked for

                                             5
presumed father status. The juvenile court granted Father’s request for presumed father
status but denied the section 388 petition without a hearing, finding he had not
established a prima facie case. The court observed Father had not demonstrated a change
of circumstances or that changing the prior orders was in Y.G.’s best interests. (This
ruling was affirmed in our prior opinion S.S. v. Superior Court, supra, G052432.) The
trial court proceeded to the 18-month review hearing, terminated reunification services,
and scheduled a permanency hearing.
              Social worker, Khac Quy T Nguyen, prepared a report for the permanency
hearing and recommended the court terminate parental rights and free now six-year-old
Y.G. for adoption. Nguyen opined Y.G. was likely to be adopted based on her
characteristics and attributes. “[Y.G.] is a happy, athletic, loveable, girl who is
developmentally on track. [She] is currently placed in a concurrent planning home that
wishes to adopt her. The caregivers and the child have developed a warm, loving bond
[and she has lived with them nearly two years, since February 8, 2014]. [She] has
adjusted, adapted, and assimilated well with the adoptive family.”
              Nguyen reported the prospective adoptive parents were providing Y.G. a
loving and stable home. Y.G.’s caregivers had “developed a strong attachment to and an
unwavering love” for her, and they have “worked diligently to integrate [Y.G.] into their
lives by modifying their daily schedules to meet her needs and include her in various
extended family functions and activities.” After being in their care for nearly two years,
Y.G. called the caregivers “Mommy” and “Daddy.”
              During a home study visit, Y.G. appeared happy and comfortable with her
caregivers, and she looked to them for her needs to be met, for guidance, and for
reassurance. Y.G. was very shy and soft spoken. Although Y.G. did not understand what
the term “adoption” meant, she said “I like it” when asked how she felt about living with
the prospective adoptive parents. She indicated there was nothing she did not like about
living with them. The prospective adoptive mother reported she had been discussing the

                                              6
idea of adoption with Y.G. and believed Y.G. would benefit from counseling services to
address adoption related issues. Y.G. asked when her name could be changed to match
the last name of the prospective adoptive parents.
              With respect to the parent-bond exception, Nguyen reported the quality and
nature of Mother’s visits had declined over the course of the dependency proceedings.
Mother never advanced beyond supervised visits, twice a week for three hours per visit.
She frequently arrived late, and cancelled and rescheduled visits.
              Nguyen stated Y.G. appeared comfortable with Mother early in the
proceedings. She called out for her attention and would cry at the end of visits. Mother
sometimes brought food and gifts. She played and interacted appropriately with Y.G.
              However, over time, Nguyen observed there was less verbal interaction
between Y.G. and Mother, and Y.G. sought “close proximity” with her caregivers during
visits. It was reported, “[Mother] often expresse[d] feeling tired and does not generally
initiate play activities with [Y.G.] during the visit.” Consequently, Y.G. “often brings
coloring [or] activity book[s] or plays on her tablet during the visits.” Y.G. sometimes
refused to speak with Mother over the telephone.
              In late August 2014, Y.G. got emotional toward the end of a visit, stating
she wanted to go home to her foster mother. In April 2015, her caregiver reported Y.G.
did not want to go to visits, asking, “‘Do I have to go, Mommy?’” The caretaker
explained that although she brings puzzles or a tablet, and Mother brings items for Y.G.,
the “verbal engagement” between Y.G. and Mother was limited and Y.G. appeared bored
during visits. Y.G. appeared to prefer speaking with her foster mother during visits than
with Mother. During one visit Mother made an inappropriate comment, questioning Y.G.
if she would rather go home with her. Y.G. became “anxious and worried” she could no
longer live with her caregivers. Nguyen opined that although Mother continued to visit
Y.G., there “has been limited parent/child bonding and [Y.G.] has not displayed any



                                             7
affection toward [Mother] and it has been typical of [Y.G.] not to respond to [Mother]
with physical gestures.”
              At the hearing, the court considered Mother’s testimony. She stated she
visited Y.G. regularly and tried to call, text, and FaceTime with Y.G. several times a
week. She maintained Y.G. was affectionate with her, and would hug her at the start and
end of visits. She recalled when Y.G. would cry at the end of visits and ask if she could
go home with Mother. Mother explained she cancelled some visits when she was sick to
make sure Y.G. would not get sick. She admitted cancelling other visits due to work or
lack of finances. She stated she always made up the visits.
              Mother stated she brought educational books and games during visits, and
during visits they would often eat, play, do homework, and read books together. Y.G.
called her “Mom,” and they frequently talked about what was going on in Y.G.’s life.
Mother believed Y.G. looked to her as a parent and not just a visitor. Y.G. sought
Mother’s comfort when she was feeling sick or when they read a book together. Mother
stated it would be detrimental to Y.G.’s emotional health if they no longer spent time
together.
              The court terminated Mother’s parental rights. It noted, “[I]f the test were
one of Mother’s—solely [Mother’s] love for the child, the issue would be easy—easily
resolved in Mother’s favor.” However, the court recognized the law required more than
evidence of motherly love and sacrifice. It noted a court must determine the extent “the
relationship promotes the child’s well-being” and balance the quality of the parent-child
“relationship in a tenuous placement against the security and sense of belonging a new
family would confer.” The court determined the parental bond exception to terminating
parental rights did not apply in this case, and because the child was adoptable and likely
to be adopted, the court terminated Mother’s parental rights. It deemed adoption to be
Y.G.’s permanent plan.



                                             8
                                              II
              Mother contends the court erred in finding the benefits of continuing the
parent child relationship did not outweigh the benefits of adoption. (See In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.) We apply a hybrid standard of review to the
juvenile court’s determination. We review for substantial evidence and determine
                                             2
whether the trial court abused its discretion. (Ibid.) “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 choose a permanent plan other than adoption.
[Citation.]” (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
              To establish the parental bond exception, Mother first had to demonstrate
she maintained regular contact with Y.G. (§ 366.26, subd. (c)(1)(B)(i).) Once that was
established, she had the burden of demonstrating Y.G. would benefit from continuing the
relationship to an extent that outweighed the benefits of adoption. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575.) She had to show that severing “the natural parent-child
relationship would deprive [Y.G.] 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.)
              The Orange County Social Services Agency (SSA) did not contest Mother
met the first prong and the juvenile court did not discuss it. Indeed, the evidence supports
the conclusion Mother maintained regular contact with Y.G. However, it was the limited
nature of, and sometimes poor quality of, these visits that was relevant to the second


2
               “The practical differences between the two standards of review are not
significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to
analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be
shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that
under all the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he did.’ . . .”’ [Citations.]” (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)

                                              9
prong. Although early in the proceedings Y.G. was excited and happy to see Mother, this
changed over time. Their verbal and physical interactions became limited, and it
appeared Y.G. preferred to speak with and interact with her caregivers. Mother often
shortened visits and they never progressed past supervised visitation.
              Y.G. referred to Mother as “mom,” but she also referred to her caretakers as
“mommy” and “daddy,” and actively sought out their affection and support. She stated it
was her preference to live permanently with them and she wished to change her last name
to match theirs. There was evidence Y.G. no longer wanted to go to visits with Mother,
asked to end a visit early, and had strained interactions with Mother during visits. She
became anxious when Mother jokingly suggested Y.G. come home with her. It cannot be
overlooked that Y.G. had been verbally and physically abused by Mother in the past, and
the evidence clearly suggests she no longer wanted Mother as her primary caregiver. All
the above is strong evidence from which it can reasonably be inferred terminating
parental rights would not be detrimental to Y.G.
              Mother failed to meet her burden of showing Y.G. would benefit from
continuing the relationship such that her adoption was precluded. Mother’s relationship
with Y.G. did not establish the sort of consistent, daily nurturing that marks a parental
relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 827 (Derek W.).) The
beneficial relationship exception requires more than a showing that the parent has
maintained frequent and loving contact with the child, that the two share an emotional
bond, or that the parent was more than a friendly adult visitor. (See, e.g., Jasmine D.,
supra, 78 Cal.App.4th at p. 1350; Derek W., supra, 73 Cal.App.4th at pp. 826-827.) A
parent cannot “derail an adoption merely by showing the child would derive some benefit
from continuing a relationship.” (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Indeed,
“continued interaction between the biological parent and child will almost always confer
some benefit on the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)



                                             10
                Mother argues her case is like that of In re Amber M. (2002)
103 Cal.App.4th 681, 690 (Amber M.), in which the appellate court held the juvenile
court erred in failing to apply the exception. In that case, application of the exception
was supported by substantial and specific testimony. “The common theme running
through the evidence from the bonding study psychologist, the therapists, and the CASA
is a beneficial parental relationship that clearly outweighs the benefit of adoption.”
(Ibid.) In the case before us, there is no comparable testimony, bonding study, or
circumstantial evidence, other than Mother’s self-serving statements. Very telling is
Y.G.’s expressed desire to end visits with Mother and be adopted. The Amber M. case is
inapplicable.
                Mother also contends that the present case is similar to In re S.B. (2008)
164 Cal.App.4th 289 (S.B.). There, although S.B.’s father had “‘complied with every
aspect of his case plan,’” physical and emotional health issues prevented him from
reunifying with her. (Id. at pp. 293-294.) The juvenile court terminated his parental
rights, finding that although father maintained frequent and loving contact with S.B. and
they shared an emotionally significant relationship, there was no evidence to suggest that
the relationship was parental in nature or that it would be greatly detrimental to S.B. to
terminate her relationship with her father. (Id. at p. 296.) The appellate court reversed,
noting a bonding study described the bond between father and child as “‘fairly strong’”
and opined there was a potential for harm to the child if she were to lose the parent child
relationship. (Id. at p. 295.) Father was S.B.’s primary caregiver for three years and after
her removal, she continued to display a strong attachment to him. They shared an
affectionate relationship, and S.B. said she loved and missed Father. She wanted their
relationship to continue and she wished they could live together. Based on this record,
the court concluded the only reasonable inference was that S.B. would be greatly harmed
by the loss of her significant, positive relationship with her father. (Id. at p. 301.)



                                              11
              Unlike the father in the S.B. case, Mother physically and emotionally
abused Y.G. and she had not complied with her case plan. And as stated above, there
was no evidence of a strong primary attachment or a potential for harm if Y.G. were to
lose the parent child relationship. Y.G. was thriving and happy living with the
prospective adoptive parents. She wanted to be adopted and exhibited anxiety about
having to leave them. During visits with Mother, Y.G. appeared board and she often
wanted to go home. She sought close proximity to her caregivers during visits and asked
if she had to attend future visits. This conduct is not indicative of a six-year-old child
who would suffer any detriment if the visits were to stop.
              The juvenile court could reasonably conclude the permanency of adoption
outweighed any benefit Y.G. might gain from continuing her relationship with Mother.
(Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Guardianship, the plan Mother
advocates on appeal, “‘is not irrevocable and thus falls short of the secure and permanent
future’” intended by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
“Adoption is the Legislature’s first choice because it gives the child the best chance at [a
full] commitment from a responsible caretaker.” (Jasmine D., supra, 78 Cal.App.4th at
p. 1348.)
              On a final note, we are not persuaded by Mother’s argument it would be
somehow unfair to terminate her parental rights because she willingly reached out for
help from SSA. She argues it was a “courageous act of love” to give up Y.G. for the
child’s protection. And this selfless act “is the true meaning of motherhood.” Apparently
she seeks to factually distinguish an abused and neglected child detained due to “love and
concern” of the abuser from one detained over the parent’s objections. As the trial court
stated, if the test was related to the degree of motherly love, the outcome of this case
would be different. However, the objective of the dependency scheme is not to reward
parents for loving their child. “The objective of the dependency scheme is to protect
abused or neglected children and those at substantial risk thereof and to provide

                                             12
permanent, stable homes if those children cannot be returned home within a prescribed
period of time.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) When reunification
efforts have failed, “the focus shifts to the needs of the child.” (Id. at p. 309, italics
added.) The record discloses no basis for the court to suspect Y.G. had needs that could
only be met by Mother or, that the relationship outweighed the security, belonging, and
love offered by the family who wished to adopt her. We conclude the juvenile court did
not error in concluding the parent child beneficial relationship exception inapplicable.
                                               III
               The judgment is affirmed.




                                                     O’LEARY, P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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