Filed 1/15/14 In re Amari E. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re AMARI E., et al., Persons Coming                               B250140
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK88576)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

JOANMELY M.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. D. Zeke
Zeidler, Judge. Affirmed.


         Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.


         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
John C. Savittieri, Deputy County Counsel for Plaintiff and Respondent.
         Appellant Joanmely M. (mother) appeals from the juvenile court’s order
terminating parental rights over her daughters Amari (born November 2006) and Amelia
(born July 2009). Mother contends the order must be reversed because the parental
exception to terminating parental rights set forth in Welfare and Institutions Code section
366.26, subdivision (c)(1)(B)(i) applies.1
         Substantial evidence supports the juvenile court’s finding that no exception to
terminating parental rights applied in this case. We therefore affirm the juvenile court’s
order.
                                       BACKGROUND
Detention and section 300 petition
         On June 30, 2011, the Los Angeles County Department of Children and Family
Services (the Department) received a referral stating that mother and Mark E. (father)2
had engaged in a physical altercation in the presence of the children the previous day.
Both parents were arrested, and a paternal uncle, Carlos E., was caring for the children.
         Four-year-old Amari told the Department’s social worker that she saw father hit
mother in the face and both parents throw objects at each other. Father told the social
worker that mother had gone camping without informing him and that when she returned,
an argument ensued and mother began throwing things at him. According to father,
mother had a pattern of leaving the home without informing him. He said that a similar
incident had occurred in August 2010 when mother became angry and starting hitting
him when he questioned her about her whereabouts. Father said he had found
methamphetamine among mother’s belongings and suggested that methamphetamine use
might be a reason for mother’s aggressive behavior.
         On July 6, 2011, the Department filed a section 300 petition on behalf of the
children alleging that mother and father engaged in physical altercations in the children’s



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

2        Father is not a party to this appeal.

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presence, that mother abused methamphetamine, and that father failed to protect the
children.
       Both parents appeared at the July 6, 2011 detention hearing at which the juvenile
court ordered the children detained and placed with paternal uncle Carlos E. The juvenile
court accorded both parents family reunification services and monitored visits at least two
times a week.
Jurisdiction and disposition
       In an August 2011 jurisdiction/disposition report, the Department summarized
interviews its dependency investigator had conducted with Amari, father, mother, and
other family members. Amari said that mother and father were fighting a lot. They
fought because mother took so long to come home and father hit her in the face. She said
she had written both parents a letter asking them to stop fighting.
       Carlos, with whom Amari and Amelia were placed, stated, “I’m here as long as
they need me. I will continue to take [care] of them and make sure that they are safe and
happy.” Carlos’s girlfriend Rachel stated, “I just want them to have a chance in life to
reach their full potential and be kids. I love them very much.” Carlos told the social
worker that when the children were initially placed with him, Amelia would wake up
with nightmares, but that she now sleeps through the night. Amari initially cried and
became anxious when separated from Rachel.
       Father told the social worker that he and mother had argued when she returned
from a week-long camping trip and father asked where she had been. Mother began
throwing things at him, screaming at him, and threatening to take the children from him.
The children were screaming and covering their ears. He called 911 and the police
responded and arrested him on an outstanding warrant for a previous domestic violence
incident in 2010. During the previous incident, father had pushed mother to the floor
after mother scratched and hit him. He was arrested after a neighbor called the police.
       Mother admitted throwing a cell phone at father and said father starting hitting her
in the face while the children were present. Mother reported that father had been arrested
in August 2010 for domestic violence after choking her and hitting her in the face and


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body while she held Amelia. Mother admitted trying methamphetamine once or twice
but denied using it on a daily basis. She admitted using “crystal meth on the second day
of [my] camping trip [on] June 27, 2011.” Mother enrolled in a domestic violence
program on August 1, 2011. Mother produced a negative drug test on July 11, 2011, but
failed to appear for testing on July 19 and August 1, 2011.
       At the August 11, 2011 jurisdiction/disposition hearing, both parents pleaded no
contest to an amended section 300 petition, which the juvenile court sustained. The court
declared the children to be dependents of the juvenile court and ordered them removed
from their parents’ custody. The court ordered mother to participate in a drug and
alcohol program with aftercare, drug and alcohol testing, parent education, domestic
violence counseling, and individual counseling to address all case issues. Both parents
were accorded family reunification services and monitored visits.
Six-month review proceedings
       In February 2012, the Department reported that Amari and Amelia remained
placed with Carlos and Rachel, who provided the children with a safe and stable home
and ensured the children’s needs were met on a consistent basis. The children were
thriving in their current placement. The caregivers reported that the children were happy,
interactive, and liked to play with other children. Amari was enrolled in kindergarten and
doing well in school. She was recognized as student of the month in January. Between
July and December, Amari had attended weekly counseling sessions that had been
terminated successfully. The caregivers reported, however, that Amari missed mother
and often woke in the middle of the night asking for her. Amari also isolated herself or
became quiet after visits with mother. In light of these issues, the caregivers requested
that Amari continue in individual counseling.
       Mother had enrolled in parenting, domestic violence, and individual counseling at
Prototypes Center and had completed six hours of domestic violence education, four
hours of parenting, two hours of self esteem support groups, 12 hours of group therapy
and one hour of individual therapy. She had not enrolled in any drug or alcohol program
and had failed to produce weekly random drug tests. Mother said she appeared at the


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testing center but was unable to produce a urine sample while another person was present
in the room and watching her. She said she would discuss the issue with her attorney to
determine whether there was an alternative means for producing a testing sample.
       Mother visited regularly with the children and communicated well with them. Her
visits took place at the caregivers’ home for four hours on Fridays and Sundays. During
the visits, mother’s activities with the children included cooking, playing, dancing,
singing, reading, and going to the park. She also bathed the children and helped Amari
with homework. Mother always brought food and clothes for the children. In November,
she took the children, accompanied by their caregivers, to Disneyland to celebrate
Amari’s birthday.
       At the February 9, 2012 hearing, the juvenile court found mother and father to be
in partial compliance with their case plans and continued their reunification services.
Twelve-month review proceedings
       In August 2012, the Department reported that Amari and Amelia were thriving
under the care of Carlos and Rachel, who ensured the children’s needs were met on a
consistent basis and provided the children with a safe and stable home. Carlos was
willing to provide a permanent home for the children by becoming their legal guardian.
       Amari continued to do well in school and her teacher reported that she was a
pleasure to have in class. She still missed mother but no longer woke during the night to
ask for her. Amari’s behavioral changes after visits with mother had also diminished.
       Mother had had very limited contact with the Department since the last hearing
date. She was no longer participating in services and had not produced any random drug
and alcohol test results. Her file at Prototypes was closed in November 2011 for lack of
attendance. When the social worker was finally able to contact mother in July 2012,
mother disclosed that she was living in a friend’s garage because her parents were no
longer willing to help her. Mother admitted she had been avoiding contact with the
Department because she was struggling and she did not want the Department to question
her ability to care for the children. She said she loved the children and wanted them
returned to her custody. Mother continued to visit the children at the caregivers’ home


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for four hours on Fridays and Sundays. She shared a strong bond with the children and
interacted appropriately with them.
       Both parents appeared at the September 6, 2012 hearing at which the juvenile
court found them to be in partial compliance with their respective case plans, terminated
family reunification services, and set a section 366.26 hearing.
       At an October 3, 2012 progress hearing, the Department informed the juvenile
court that Carlos and Rachel were willing to adopt the children. The caregivers had
previously requested legal guardianship rather than adoption because they did not want
mother and father to think they were trying to take the children away from the parents.
Section 366.26 proceedings
       In reports submitted to the juvenile court for the January 2, 2013 section 366.26
hearing, the Department reported that Carlos and Rachel continued to express their
commitment to adopting the children and providing a permanent home for them. The
caregivers explained they had previously considered legal guardianship because they had
seen the parents making an effort to take a more active role in the children’s lives and did
not want the parents to lose the opportunity to reunify with the children.
       The adoption social worker informed the juvenile court that Carlos and Rachel
were in the process of submitting the required documentation for the adoption home
study. The couple was engaged to be married, and according to the adoption social
worker, “very capable of meeting the needs of Amelia and Amari both emotionally and
financially.” The adoption social worker further reported that during the 18 months
Amari and Amelia had been placed with Carlos and Rachel the children had become
strongly attached to them and were an integral part of their family. Both children
demonstrated a strong emotional attachment to Carlos and Rachel and regularly sought
them out for reassurance.
Section 388 petition
       On January 2, 2013, mother filed a section 388 petition seeking return of the
children to her custody, or alternatively, reinstatement of reunification services. She
alleged she had completed parenting classes and a substance abuse program, as well as


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individual counseling with Susan Winton, a marriage and family therapist. Mother
attached to her petition a letter dated December 14, 2012, from Susan Winton, who
opined that mother had “made remarkable progress” and was completing her court
mandated programs. Also attached to mother’s petition was a letter dated November 19,
2012, from Emily Chapa, a mental health services/substance abuse counselor at
Homeboy Industries stating that mother had enrolled in the mental health and substance
abuse program that same day.
       The juvenile court set mother’s section 388 petition for hearing and continued the
section 366.26 hearing for completion of the adoption home study. The court granted the
Department discretion to liberalize mother’s visits.
       In a January 29, 2013 report addressing mother’s section 388 petition, the
Department advised the juvenile court that it had been unable to verify mother’s
participation in services with Susan Winston and with Homeboy Industries because
neither service provider had responded to telephone messages left by the social worker.
The Department was also unable to verify mother’s completion of an online parenting
program, and mother had provided no evidence of participation in weekly random and on
demand drug and alcohol testing.
       At the February 5, 2013 hearing on mother’s section 388 petition, the juvenile
found that mother’s requested changes were not in the children’s best interests and denied
the petition.
Section 366.26 hearing and termination of mother’s parental rights
       In its April 2013 section 366.26 report, the Department informed the juvenile court
that Amari and Amelia had developed a “strong emotional attachment” to Carlos and
Rachel and that the children sought them out for reassurance. The adoption social worker
observed the caregivers to be warm, loving, and nurturing, and the children were thriving
in their care. Carlos and Rachel declined to participate in a post-adoption contract but
said they were willing to allow ongoing contact between the children and the parents as
long as the parents were appropriate.



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       Both parents continued to visit the children frequently several times a week and on
weekends. Mother had a “loving relationship” with the children, and the children looked
forward to her visits.
       In a last minute information for the court filed on April 30, 2013, the Department
informed the juvenile court that an adoption home study had been approved for Carlos
and Rachel and recommended that the court terminate parental rights. The juvenile court
continued the matter for a contested hearing.
       At the May 21, 2013 contested section 366.26 hearing, mother testified that she
had visited with the children two to three times a week for up to four hours a visit for the
past year. All of the visits took place at the caregivers’ home. She said the children were
happy to see her and “really sad” when the visits ended -- Amelia “cries a lot when I
leave.” Mother acknowledged that the children had been out of her care for nearly two
years and that all of her visits had been monitored.
       Mother testified that during visits she would talk to and play with the children, eat
meals with them, help Amari with her homework, and prepare the children for bed. She
cooked for them on special occasions and sometimes brought clothes and gifts. Mother
attended Amari’s school functions when invited by the caregivers but did not accompany
the children to their doctor’s appointments. She said the children called her “mommy” or
“momma” and referred to Rachel as “nina” and Carlos as “nino.”
       At the conclusion of mother’s testimony, her attorney asked the juvenile court to
order legal guardianship rather than adoption, arguing that mother’s visits might be
discontinued after the adoption and that it would be detrimental for the children to lose
contact with her.
       The juvenile court observed that during the two-year duration of the case, Amelia
had spent nearly as much time out of mother’s care as she had in mother’s care, and
mother had not progressed beyond monitored visits with the children. The court further
noted that while mother had some parental role during the visits, helping Amari with
homework, eating meals with the children, and preparing them for bed, she only saw the
children for three to five hours at a time. The court concluded that mother’s relationship


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with the children did not outweigh the benefits of permanence that adoption would
provide.
       The juvenile court found by clear and convincing evidence that Amelia and Amari
were likely to be adopted, identified adoption as the permanent plan, and terminated
parental rights. The court granted the caregivers discretion to permit ongoing contact
between the children and the parents. This appeal followed.
                                        DISCUSSION
I. Applicable law and standard of review
       Section 366.26, subdivision (c)(1), provides for the termination of parental rights
if family reunification services have been terminated and the juvenile court finds by clear
and convincing evidence that the child is likely to be adopted. Once reunification
services have been terminated, “‘[f]amily preservation ceases to be of overriding concern
. . . the focus shifts from the parent’s interest in reunification to the child’s interest in
permanency and stability. [Citations.]’” (In re Richard C. (1998) 68 Cal.App.4th 1191,
1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature.
[Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Although
the statutory preference is in favor of adoption, section 366.26 lists certain exceptions
that may preclude termination of parental rights, if the juvenile court finds “a compelling
reason for determining that termination would be detrimental to the child.” (§ 366.26,
subd. (c)(1)(B).)
       The juvenile court’s ruling on whether an exception applies to terminating parental
rights pursuant to section 366.26 is reviewed under the substantial evidence standard. (In
re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at
p. 576.) Under this standard, an appellate court must affirm the juvenile court’s order if
there is evidence that is reasonable, credible, and of solid value to support the order (In re
Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered
“in the light most favorable to the prevailing party, giving the prevailing party the benefit
of every reasonable inference and resolving all conflicts in support of the order.
[Citations.]” (Autumn H., at p. 576.)


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         Mother contends the juvenile court should have ordered legal guardianship rather
than adoption as the permanent plan because the exception to terminating parental rights
set forth in section 366.26, subdivision (c)(1)(B)(i) applies. That exception provides as
follows: “The parents have maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship.”
         The parent bears the burden of proving that this exception applies. (In re L. Y. L.
(2002) 101 Cal.App.4th 942, 952-954.) “[T]he exception does not permit a parent who
has failed to reunify with an adoptable child to derail an adoption merely by showing the
child would derive some benefit from continuing a relationship maintained during
periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1348.)
         For the exception to apply, the parent must have maintained regular visitation with
the child, and the juvenile court must determine that the parent/child 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 other words, the
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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more
than merely some benefit to the child by continuing the parent/child relationship. That
relationship must be “a substantial, positive emotional attachment such that the child
would be greatly harmed” if the relationship were severed. (Ibid.) To overcome the
benefits associated with a stable, adoptive family, the parent seeking to continue a
relationship with the child must prove that severing the relationship will cause not merely
some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847,
853.) Factors that the juvenile court should consider when determining the applicability
of the exception include “[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 child’s particular needs . . . .” (Autumn H., supra, at p. 576.)



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II. Substantial evidence supports the juvenile court’s findings
       Substantial evidence supports the juvenile court’s determination that the parental
exception to terminating parental rights did not apply. Amari was four years old and
Amelia 23 months old when the children were detained from mother’s custody. When
mother’s parental rights were terminated, Amari and Amelia were six and three years old,
respectively, and Amelia had spent half of her life in Carlos’s and Rachel’s care. The
caregivers were committed to adopting the children and to providing a loving, safe, and
stable home for them. Amari and Amelia thrived in their caregivers’ home. The children
demonstrated a strong emotional attachment to Carlos and Rachel and often sought them
out for reassurance. Although the children initially exhibited distress and anxiety during
the early months of their separation from mother, these issues diminished over time.
       It is undisputed that mother visited regularly with the children, and that she and
the children shared a substantial, positive relationship. Mother argues that section
366.26, subdivision (c)(1)(B)(i) requires only that she show that the children would
benefit from continuing that relationship and that “[t]he court is not to balance the
detrimental or beneficial consequences or look to whether there would be an additional
benefit from the decision to terminate parental rights.” Her argument misstates the
applicable standard. The existence of “[i]nteraction between natural parent and child will
always confer some incidental benefit to the child.” (In re Autumn H., supra, 27
Cal.App.4th at p. 575.) In determining whether the parent/child relationship gives rise to
an exception to terminating parental rights, the juvenile court must determine that the
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
other words, the 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.” (Ibid.) To demonstrate that the parent/child relationship exception
applies, “the parent must show more than that the relationship is ‘beneficial.’” (In re
Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.)



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       In the instant case, the juvenile court expressly found that the benefits of
continuing mother’s relationship with the children did not outweigh the benefits and
permanence of adoption. Before their placement with Carlos and Rachel, Amari and
Amelia witnessed incidents of domestic violence that were triggered by mother’s
absences from the home and that were exacerbated by mother’s drug use. During the
22-month duration of the case, mother lacked stable housing, failed to complete a
substance abuse treatment program, failed to participate in court ordered drug and alcohol
testing, failed to maintain regular contact with the Department’s social worker, and failed
to progress beyond supervised visits with the children. With their prospective adoptive
parents, Amari and Amelia were thriving in a safe, stable, loving, and nurturing home.
Substantial evidence supports the juvenile court’s determination that mother failed to
establish that the exception set forth in section 366.26, subdivision (c)(1)(B)(i) precluded
the termination of her parental rights.
                                      DISPOSITION
       The order terminating parental rights is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ___________________________, J.
                                                  CHAVEZ

We concur:


___________________________, P. J.
BOREN


___________________________, J.*
FERNS


________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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