Filed 1/23/14 In re Alexis M. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 In The Matter of ALEXIS M., a Person Coming Under the Juvenile Court Law. 2d Juv. No. B248966 (Super. Ct. No. J1395693)

(Santa Barbara County)

SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES,
Petitioner and Respondent,

v.
CHRISTINA D.,
Respondent and Appellant.

Christina D. (mother) appeals from an orde r terminating her parental rights to her child, Alexis M. (child), now five years ol d, and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) 1 Mother argues that he r counsel was ineffective because he failed to present an offer of proof as to the bene ficial relationship exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.

1 Unless otherwise stated, all statutory refe rences are to the Welfare and Institutions Code.2 Factual and Procedural Background "[M]other has a long history of addictio n to pain medications dating back to 2004 . . . ." In February 2011 mother "w as admitted to the hospital with an acute overdose" of various drugs. She had been found "passed ou t on the floor." Mother's probation officer ordered her to enter a resi dential drug treatment program. She entered the program but failed to complete it. In November 2011 child was found wandering in the street outside her home while mother was asleep inside under the influenc e of prescription drugs. A social worker inspected the home, which was in a state of "d isarray." The social worker concluded that the home "was hazardous for an active three ye ar old." The juvenile court ordered that
child be detained and removed from mother's hom e. Mother was granted the right to visit child three times a week provi ded that she submitted to rand om drug testi ng and did not test positive. Mother "relapsed . . . [on] Januar y 4, 2012, and spent close to thirty days in custody . . . ." On January 26, 2012, child wa s declared a dependent of the juvenile court. Santa Barbara Child Welfare Services (CWS) was orde red to provide reunif ication services to
mother. On January 30, 2012 , mother entered Project Pree mie, a residential treatment program. She was discharged from the program in June 2012 because of medical problems related to "Pseudo Seizures." Afte r her discharge, she enrolled in an outpatient treatment program. According to a status re view report signed on June 27, 2012, during the review period mother ha d "consistently tested clean for all illegal substances." Mother had also "consistently visited with her daughter twice a week." In July 2012 mo ther relapsed. An addendum repor t signed on July 17, 2012, notes that "mother has consistently tested positive for opiates since July 5, 2012, although she denies any abuse." Mother missed a drug te st scheduled for July 15, 2012. She was discharged from the Family Drug Treatment program for "failure to make progress during the past six months in addressing her addiction to pa in medications."3 On July 31, 2012, mother was admitted to the An other Road Detox treatment program. "She was discharged on August 2, 2012 and did not return to treatment until August 14, 2012." On September 3, 2012, she missed a drug test. On September 27, 2012, the juvenile court gran ted CWS's request to "change the case plan visitation section" to provide that, if "mother tests pos itive or misses a drug test, visitations will be suspended until the mother can provide two consec utive clean test[s]." In a status review report signed on January 2, 2013, CWS observed that during the review period mother had missed 25 group meetings, had tested positive for drugs on four occasions, and had missed four drug tests. She was "unsuccessfully discharged" from the Recovery Way treatment program. On December 12, 2012, mo ther's visits with child were suspended because she had tested positive for morphine. CWS requested that the juvenile court terminate mother's reuni fication services and set a selection and implementation hearing pursuant to section 366.26. The court granted the request. In the section 366.26 report signed on April 22, 2013, CWS recommended that mother's parental rights be terminated. CW S noted that, since November 2011, child has been living with her maternal grandmother, who is committed to adopting her. Except for a 15-minute visit on Easter Sunday, moth er "has not visited with [child] since December of 2012, due to not being enrolled in a treatment program, failure to provide a clean drug test, and her non-compliance with the terms and conditions of her probation,
which has resulted in a warrant for her arrest." The section 366.26 hearing was set for Ma y 2, 2013. On that date mother's
counsel stated that his client had asked him to calendar the matter for a contested hearing.
But counsel informed the cour t that "none of the exceptio ns that would defeat the preference for adoption apply, based on my review of the case." Counsel said that he had "advised the mother that the only option available to us at this point is to rest." The court continued the hearing to May 16 , 2013, and told mother's counsel that he was "required to file an offer of pr oof" by May 9.4 At the hearing on May 16, 2 013, mother's counsel declared , "I've reviewed the file and I'm unable to file an offer of proof. We would be resting." The juvenile court terminated mother's parental rights and se lected adoption as th e permanent plan. Beneficial Relatio nship Exception "If the court finds [at a section 366.26 hear ing] that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental ri ghts would be detrimenta l to the child under one of [several] specified ex ceptions. [Citations.]" ( In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The co urt may "require an offer of proof before conducting a contested hearing on one of the statutory exce ptions to termination of parental rights." ( In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) Mother contends that her counsel was ineffective for failing to present an offer of proof as to the beneficial relationship exception, which applies if "[t]he parents ha ve maintained regular visitation and contact
with the child and the child would benefit fro m continuing the relationship." (§ 336.26, 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 well-being the child would gain in a permanent home with new, adoptive parents." [Citation.]' " ( In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) Ineffective Assistance of Counse l in Dependency Proceedings A parent in a dependency proceeding has a statutory right to "competent counsel." (§ 317.5, subd. (a).) At the te rmination of parental rights stag e, a parent may also have a constitutional right to the effective assistance of counsel. ( In re O.S. (2002) 102 Cal.App.4th 1402, 1407.) To establish that counsel was in competent or ineffective, a parent must show that counsel's performan ce was deficient because it "fell below an objective standard of reasonableness under pr evailing professional norms [citation]." ( In
re Dennis H. (2001) 88 Cal.App.4th 94, 102.) The pa rent must also show that counsel's deficient performance "made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such [deficiency], a determination more favorable for [the parent's] interests would have5 resulted.' [Citations.] In s hort, [mother] has the burden of proving both that [her] attorney's representation was de ficient and that this deficiency resulted in prejudice. [Citation.]" ( Id ., at p. 98; see also Strickland v. Washington (1984) 466 U.S. 668, 696 [104 S.Ct. 2052, 80 L.Ed.2d 6 74] ["A court making the prejudice inquiry must ask if the defendant has met the burden of showing th at the decision reac hed would reasonably likely have been different absent the errors"].) 2
Mother Was Not Denied the E ffective Assistance of Counsel
We need not determine whet her counsel performed defi ciently by not presenting an offer of proof as to the beneficial re lationship exception. Even if counsel's performance were deficient, it would not ha ve prejudiced mother because she has failed
to show there is a reasonabl e probability that, but for couns el's deficiency, the outcome
would have been different. The outcome woul d have been different only if mother had succeeded in proving the beneficial relationship exception. (See In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 ["The party claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the ex ception applies"].)
The evidence does not establish the ex ception's first prong: that mother "maintained regular visitation and contact with the child." (§ 336.26, subd. (c)(1)(B)(i).) In December 2012 her visitation rights were suspended because she had tested positive for morphine. At the time of the section 3 66.26 hearing in May 2013 , mother had visited child only once in the previous five months, and that one visit last ed only 15 minutes. We reject mother's contention that the suspension of her visitation rights was unreasonable. Mother had fair warning that a positive test would resu lt in a suspension. On September 27, 2012, the juvenile court ordered that, if "mother tests positive or misses a drug test, visitations will be su spended until the moth er can provide two

2 We reject mother's contention that "the Chapman standard of harmless beyond a reasonable doubt, should a pply in this case." ( Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)6 consecutive clean test[s]." If mother wanted visitation to resume, she should have provided the required two clean tests.
The evidence also does not establish the exception's second prong: that "the child would benefit from continuing the relati onship." (§ 336.26, subd. (c)(1)(B)(i).) "Satisfying the second prong re quires the parent to prove that 'severing the natural parentchild relationship would deprive the child of a substantial, positive emotional attachment
such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an ad optable child may not derail an adoption merely by showing
the child would derive some benefit from continuing a re lationship maintained during periods of visitation with the parent.' [Citati on.] Evidence that a pa rent has maintained ' "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" ( In re Marcelo B.
, supra , 209 Cal.App.4th at p. 643.) "[A] child should not be depr ived of an adoptive parent when the natural parent has maintained a relationship that may be benefi cial to some degree but does not meet the child's need for a parent." ( In re Jasmine D. (2000) 78 Cal.App. 4th 1339, 1350.)
The evidence does not show " 'a substantial, positive emotional attachment [to mother] such that the child would be greatly harmed' " if the relationship were terminated. ( In re Marcelo B.
, supra , 209 Cal.App.4th at p. 643.) The evidence shows only that mother had a friendly or familiar relationship with child. The maternal grandmother reported that child "looks forward to visits with the mother." During visits, mother "would play game s, read, and or complete crafts." Until visits were suspended in December 2012, mother visited child every Satu rday. Mother told social workers that child referred to Saturday as "mommy da y." April Jackson, who works for Hope Services, "reported that [child] occasionally . . . says she misses her mother, although her main attachment figure is the [maternal] grandmother." "[A] parental relationship is necessary for the exception to apply, not merely a friendly or familiar one. [Citatio ns.] . . . [A] child should not be deprived of an adoptive parent when[, as here,] the natural parent has maintained a relationship that may be beneficial to some degree but does not m eet the child's need for a parent." ( In re Jasmine7 D., supra, 78 Cal.App.4th at p. 1350.) Thus, it is not reasonably probable that mother
would have established the be neficial relationship excepti on but for counsel's allegedly unprofessional error in not presenting an offe r of proof. "This is not the extraordinary case where an adoption should have been foreclosed by th e exception provided in section 366.26, subdivision (c)(1)(A ) [now (c)(1)(B)(i) ]." ( Id ., at p. 1352.) Disposition The judgment (order terminating pare ntal rights and selecting adoption as the permanent plan) is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.8 Arthur A. Garcia, Judge
Superior Court County of Santa Barbara

________________ ______________

David A. Hamilton, under appointment by the Court of Appeal, for Appellant.

Dennis A. Marshall, County Counsel, County of Santa Barbara and Bo L. Bae, Deputy, for Respondent.