Filed 9/17/14 In re K.G. CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

In re K.G. et al., Persons Coming Under the 

Juvenile Court Law. 

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY, 

 Plaintiff and Respondent, 

 v. 

ASHLEY H., 

 Defendant and Appellant. 

 D066010 

 (Super. Ct. No. SJ012119A-B) 

 APPEAL from orders of the Superior Court of San Diego County, Kimberlee A. 

Lagotta, Judge. Affirmed. 

 Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and 

Appellant Ashley H. 

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

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and 

Respondent. 
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 Ashley H. appeals from orders terminating parental rights to her children, K.G. 

(born 2008) and K.J.G. (born 2009, together the children). She argues the juvenile court 

erred in not applying the beneficial relationship exception to termination of parental 

rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); undesignated statutory 

references are to this code.) We find no error and affirm the orders. 

FACTUAL AND PROCEDURAL BACKGROUND 

A. First Dependency Proceeding (January 2009 to August 2010) 

 Ashley has a long history of substance abuse, beginning at the age of 12 when she 

started smoking marijuana. At age 16, she began using methamphetamine with the 

children's father, Bruce G. At age 18, she gave birth to K.G. When K.G. was six months 

old, the San Diego County Health and Human Services Agency (the Agency) filed a 

petition on her behalf alleging the parents were unable to provide regular care due to 

excessive use of methamphetamine and marijuana. The juvenile court detained K.G. in 

the licensed foster home of Maricela and Rueben C. (the Cs). 

 In late 2009, Ashley gave birth to K.J.G. The Agency opened a voluntary services 

case for K.J.G. so she could remain with Ashley while Ashley completed reunification 

services. In August 2010, K.G.'s first dependency case was closed with sole physical 

custody granted to Ashley. By that time, Ashley had achieved at least a year of sobriety 

and completed therapy, parenting and anger management classes. 

B. The Second Dependency Proceeding (June 2012 to Present) 

 By August 2011, the parents were no longer drug free. In June 2012, the Agency 

filed petitions on behalf of the children alleging the parents were unable to provide 
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regular care due to substance abuse, Ashley's whereabouts were unknown and she had 

been leaving the children at various homes, including with the Cs. The children were 

detained together with the Cs. 

 In July 2012, the juvenile court sustained the petitions, declared the children 

dependents and ordered the parents to comply with the requirements of the case plan. At 

the six-month review hearing in February 2013, the court terminated court-mandated 

reunification services for Bruce, but continued services for Ashley. At an uncontested 

12-month review hearing in July 2013, the juvenile court followed the social worker's 

recommendations and continued Ashley's services to the 18-month review date. At the 

18-month review hearing in January 2014, the juvenile court terminated court-mandated 

reunification services for Ashley, continued the children in foster care, and set a hearing 

under section 366.26. 

 At the contested section 366.26 hearing in May 2014, the court heard testimony 

from Ashley, Bruce, a maternal aunt, the foster mother, two social workers and a 

therapist that worked with the children and Ashley. The court also received stipulated 

testimony from the children. The court found the children adoptable, determined none of 

the exceptions to adoption contained in section 366.26, subdivision (c)(1) existed, 

terminated parental rights and declared the children freed for adoption. It also granted 

the Cs' request for prospective adoptive parent status. Ashley timely appealed. 
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DISCUSSION 

 Parental rights may be terminated if there is clear and convincing evidence of 

adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where a parent has 

"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 is 

one that promotes the well-being of the child to such a degree as to outweigh the wellbeing the child would gain in a permanent home with adoptive parents. (In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) The parent must show that the parent-child 

relationship is such that the child will be greatly harmed by the termination of parental 

rights, so that the presumption in favor of adoption is overcome. (In re Brittany C.

(1999) 76 Cal.App.4th 847, 853-854.) 

 Implicit in this standard is that "a parental relationship is necessary for the 

exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000) 

78 Cal.App.4th 1339, 1350.) The existence of this relationship is determined by taking 

into consideration "[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. . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) 

There is a split of authority regarding whether an appellate court reviews a challenge 

involving the beneficial relationship exception for substantial evidence, abuse of 

discretion, or a combination of the two. (See In re K.P. (2012) 203 Cal.App.4th 614, 

621-622.) We need not weigh in on this debate as our conclusion is the same under any 

of these standards. 
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 Ashley impliedly concedes that the children are adoptable, but asserts her parental 

rights should not have been terminated given the beneficial nature of her ongoing 

relationship with the children. In making this argument, she focuses on the fact that she 

continued unsupervised visitation with the children until the time of the section 366.26 

hearing. 

 The juvenile court found that Ashley maintained regular and consistent visits with 

the children. The evidence supports this finding and the Agency does not challenge it. 

Regular visitation and contact, however, is only one prong of the analysis. The second 

prong involves examining whether the children would benefit from continuing the 

relationship. (§ 366.26, subd. (c)(1)(B)(i).) On this prong, Ashley must overcome the 

presumption in favor of adoption by showing her relationship with the children is such 

that the children will be greatly harmed by the termination of parental rights. 

(In re Brittany C., supra, 76 Cal.App.4th at pp. 853-854.) The juvenile court found 

Ashley did not occupy a parental role with the children and the benefits of adoption 

outweighed any detriment the children would incur in terminating the relationship. After 

carefully reviewing the record we conclude that the juvenile court's findings are 

supported by substantial evidence and are not an abuse of discretion. 

 We note that Ashley has abused drugs for much of her life. During the first 

dependency proceeding she obtained sobriety, only to relapse after she gained custody of 

the children. At the time of trial, Ashley had been sober for about 22 months. While 

Ashley's efforts in obtaining sobriety are commendable, this is only one step toward 

being a good parent. It does not appear that Ashley has ever held a job or provided 
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financial support to the children. Additionally, Ashley's housing situation remained 

unstable. As of November 2013, Ashley had resided at a confidential domestic shelter 

for a period of four months; however, there were ongoing concerns about her ability to 

remain there due to lack of compliance with the program rules requiring her to find 

employment or attend school. Ashley did enroll in a culinary skills class that was 

scheduled to begin in January 2014. In May 2014, however, the court appointed special 

advocate (CASA) reported that Ashley's housing was again in jeopardy based on her 

failure to comply with the rules of the shelter. At the time of trial, Ashley had been living 

with her brother for about a week. 

 This is not a case where Ashley presents a danger to her children. It is undisputed 

that the children loved Ashley, enjoyed their visits with her and would be sad if the visits 

ended. As Ashley noted, she had unsupervised time with the children every week. 

Namely, K.J.G. visited with Ashley two days a week for four hours and on Fridays for 

the entire day. Additionally, Ashley picked up K.G. on Friday afternoon and had both 

children on Fridays for five hours and on the weekends for seven hours each day. 

Despite these frequent contacts, the social worker concluded the children did not have a 

strong attachment to Ashley, the children did not view Ashley in a parental role and 

Ashley's relationship with them was more akin with that of a big sister or youthful aunt. 

 At the time of trial, the children were about six and four years old and had each 

lived with the Cs for about half of their lives. The CASA reported that the children 

appeared stable and to be thriving in their foster home. She also noted that the children 

were very attached to the Cs and viewed them as authority figures. The Cs had an 
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approved adoptive home study, expressed a commitment to adopting the children and 

indicated they would continue contact with the birth parents if they adopted the children. 

The foster mother reported that K.G. had expressed a lot of insecurity about leaving her 

foster home to live with Ashley, indicating K.G. wanted to stay with her and her husband 

as K.G. felt safer with them than with Ashley. 

 The social worker testified that the Cs' home was the only stable home the children 

have had and that the "security, comfort and permanency" provided by the Cs outweighed 

the detriment the children would incur if they lost contact with their birth parents. The 

CASA also stressed that the children needed permanency and stability, noting that after 

two years and despite the many resources provided to her, Ashley had not yet 

demonstrated that she could provide this for the children. "[D]elaying the selection of a 

permanent home for a child to see if a parent, who has repeatedly failed to reunify with 

the child, might be able to reunify at some future point, does not promote stability for the 

child or the child's best interests." (In re Casey D. (1999) 70 Cal App.4th 38, 47.) 

 While Ashley argues legal guardianship should have been selected as the 

children's permanent plan, the juvenile court is subject to the mandatory preference for 

adoption over legal guardianship. (§ 366.26, subd. (b)(1); In re Fernando M. (2006) 

138 Cal.App.4th 529, 536.) Significantly, guardianship is only the best possible 

permanent plan for children in circumstances where the exceptions to terminating 

parental rights in section 366.26, subdivision (c)(1) apply. (Fernando M., supra, 

at p. 536.) On this record, the juvenile court did not err when it determined that Ashley's 

relationship with the children did not place her within the beneficial relationship 
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exception. Accordingly, the juvenile court correctly determined that adoption was the 

appropriate permanent plan for the children. 

DISPOSITION 

The orders are affirmed. 

MCINTYRE, J. 

WE CONCUR: 

HALLER, Acting P. J. 

IRION, J.