Filed 12/19/13 In re Nicole V. CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

In re NICOLE V., a Person Coming Under 

the Juvenile Court Law. 

ORANGE COUNTY SOCIAL SERVICES 

AGENCY, 

 Plaintiff and Respondent, 

 v. 

B.P., 

 Defendant and Appellant. 

 G048405 

 (Super. Ct. No. DP019575) 

 O P I N I O N 

 Appeal from an order of the Superior Court of Orange County, Jacki C. 

Brown, Judge. Affirmed. 

 Michele Anne Cella, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Nicholas S. Chrisos, County Counsel, and Karen L. Christensen and Julie J. 

Agin, Deputy County Counsel, for Plaintiff and Respondent. 

 No appearance for the Minor. 

* * * 
2

 Nicole is three years old and was removed from her parents’ custody within 

days of her birth. She has lived with her foster parents since she was less than a month 

old. After 18 months of reunification services proved unsuccessful, the juvenile court 

terminated the services and ultimately terminated the parents’ parental rights. Her 

mother appeals,1 arguing the court should have found the exception listed in Welfare and 

Institutions Code section 366.26, subdivision (c)(1)(B)(i) applies in this case. We affirm. 

I 

FACTS 

 In June 2007, B. P. (Mother), who has had an ongoing drug problem since 

she was 13 years old, gave birth to Victor. She and Victor each tested positive for the 

presence of methamphetamine. Victor, his brothers Antonio and Jonathan, and his sister 

Samantha were taken into protective custody and eventually declared dependent children 

of the juvenile court. The whereabouts of Samantha’s father and the father of Antonio 

and Jonathan were unknown. Victor’s father was incarcerated at the time. Mother 

received over two years of reunification services. 

 In late July 2009, the four children were sent home to Mother for a 60-day 

trial visit. That visit was cut short in the middle of August because while they were 

solely in Mother’s care, Jonathan and Victor sustained multiple nonaccidental injuries 

which need not be detailed here. Additionally, Victor was suffering from recent 

malnutrition. Mother failed to successfully reunify with her children. 

 In March 2010, Nicole was born to Mother and Enrique V. (Father). 

Within days of her birth, a petition was filed in the juvenile court pursuant to Welfare and 

 1 Father did not appeal. Because Father is not a party to this appeal, we do 

not focus on his efforts at reunification. 
3

Institutions Code2 section 300, alleging a substantial risk of harm to Nicole if she 

remained with Mother and Father based on the injuries her siblings sustained while in 

Mother’s care. The court temporarily placed Nicole with child welfare services. She 

resided at Orangewood Children’s Home until the middle of April. She was then placed 

in a foster home. 

 Mother and Father submitted on the petition and stipulated to a factual basis 

for the petition on May 18, 2010. The court declared Nicole a dependent child of the 

court and found clear and convincing evidence there was a substantial danger to Nicole’s 

physical health, safety, or physical or emotional well-being if custody was vested in 

Mother and Father. (§ 361, subd. (c)(1).) Reunification services, including therapy, 

parenting classes, drug treatment, random alcohol and drug testing, and visitation were 

ordered. 

 The court eventually conducted an 18-month review on November 14, 

2011. The court found clear and convincing evidence that returning Nicole to her parents 

would create a substantial risk to her safety, protection, or physical or emotional wellbeing, and that Mother’s progress in alleviating the causes that necessitated placement 

has been minimal to moderate. As a result, the court terminated reunification services 

and ordered a hearing pursuant to section 366.26, subdivision (a) be held within 120 

days. (§ 366.22, subd. (a).) 

 After a number of continuances, the permanency hearing was eventually 

held on April 18 and April 30, 2013. Nicole was then three years old. Although 

reunification services had been terminated, Mother continued in random drug testing and 

counseling, although the initial section 366.26 report—there were 17 addendum reports—

stated Mother had been discharged from counseling services because she had three 

 2 All undesignated statutory references are to the Welfare and Institutions 

Code. 
4

consecutive no-shows, and a subsequent report stated Mother failed to complete the child 

abuse treatment program. Although she generally presented negative drug tests, Mother 

missed a number of random tests and tested positive for opiates in January 2012. She 

obtained the drug by using a fake name and birth date. That same month she was arrested 

for sexual abuse with a minor. She was released from custody and the investigation was 

ongoing. 

 Mother consistently visited Nicole, but she missed a number of the visits 

and was routinely 15 to 45 minutes late when she did appear. Mother customarily 

brought meals for Nicole and her siblings, but Nicole rarely ate with her siblings and 

Mother. Mother did not closely supervise Nicole during the visits. On one occasion she 

left Nicole unattended in one room while she charged her cell phone in another room. 

The foster father monitored visits and would have to remind Mother that she was 

responsible for controlling the children during visitation. When he did, Mother would 

become furious. On one occasion, apparently at the Eckhoff Children and Family 

Services office, where the visits were changed to in order to provide a more contained 

area, a deputy sheriff felt compelled to tell the children they could not run around the 

visitation area. Mother responded, “you can’t do anything.” The foster mother said 

Mother refuses to properly care for Nicole during the visits. Additionally it was observed 

Mother does not comply with monitored visitation regulations, often times leaving the 

area of the monitor. 

 In those visitations where Mother and Father were each present, Nicole 

interacted mostly with Father. In fact, Mother complained that Nicole only wanted to 

interact with Father, and not her. If Nicole became sleepy during the visit, she would 

seek out the foster parent who was present. One report indicated Nicole runs to her foster 

mother to hug her after a visit. As Nicole got older she spent her visitation time playing 
5

with other children, demonstrating “little to no interest in interacting with her mother.” 

The social worker observed that when a visit is over, Nicole immediately adjusts to her 

daily routine with her foster parents. 

 An addendum report stated Nicole was likely to be adopted by her foster 

parents who are adopting another of Nicole’s siblings and are legal guardians for her 

older siblings. She has a strong relationship with her siblings. Nicole refers to her foster 

parents as “mama” and “papa.” Nicole’s foster mother adores Nicole and Nicole tells her 

she loves her. The foster parents have demonstrated their ability to ensure Nicole’s 

health, safety, and welfare. According to a report submitted to the court, Nicole appears 

to be thriving in their home. 

 At the conclusion of the section 366.26 hearing, the court found it was 

likely Nicole would be adopted, ordered parental rights of Father and Mother terminated, 

and ordered adoption as the permanent plan. Mother filed a timely notice of appeal. 

II 

DISCUSSION 

Standard of Review 

 The juvenile court’s order terminating Mother’s parental rights is presumed 

to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We review the trial 

court’s order terminating parental rights for substantial evidence supporting the court’s 

decision, viewing the evidence in the light most favorable to the judgment. (In re Jasmon 

O. (1994) 8 Cal.4th 398, 423.) Thus, we do not reweigh the evidence. Rather, we only 

“‘“decide if the evidence [in support of the judgment] is reasonable, credible and of solid 

value—such that a reasonable trier of fact could find that termination of parental rights is 

appropriate based on clear and convincing evidence. [Citation.]”’ [Citations.]” (Ibid.) 
6

Reunification Services and Their Termination 

 When a child has been removed from the family home, services are 

generally supplied to the child and her parents in an effort to reunify the family (Welf. & 

Inst. Code, 361.5, subd. (a)), because the law prefers family relationships be maintained 

(In re Nolan W. (2009) 45 Cal.4th 1217, 1228) so long as the welfare of the child can be 

safeguarded (In re Marilyn H. (1993) 5 Cal.4th 295, 307). To that end, “the focus of 

reunification services is to remedy those problems which led to the removal of the 

children . . . .” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) 

 The Legislature generally requires reunification services be provided for 12 

months when the child was three years of age or older when removed from her parents’ 

physical custody. (§ 361.5, subd. (a)(1)(A).) However, when the child was under three 

years of age when initially removed from her parents’ physical custody, the court is 

limited to ordering reunification services “for a period of six months from the 

dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 

12 months from the date the child entered foster care as provided in Section 361.49 

unless the child is returned to the home of the parent or guardian” (§ 361.5, subd. 

(a)(1)(B)). The reason for the shortened period of authorized reunification services is 

because the needs of a child of such tender years “justifies a greater emphasis on 

establishing permanency and stability earlier in the dependency process . . . .” (M.V. v. 

Superior Court (2008) 167 Cal.App.4th 166, 175.) 

 Until the court terminates reunification services and sets a section 366.26 

hearing, a parent’s interest in the companionship of her child and preservation of the 

family unit prevails over the child’s interest in a permanent and stable placement.3 But 

 3 The goal of a section 366.22 hearing is to provide a dependent child of the 

juvenile court with a permanent, stable home. (§ 366.26, subd. (b).) The preferred 

method of doing so is to terminate the right of the parents and to place the child up for 

adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573; § 366.26, subd. (c)(1).) 
7

once reunification services have been terminated and the court sets a section 366.26 

hearing, the court’s focus shifts and the child’s need for permanency and stability prevails 

over the parent’s interests. (In re Zacharia D. (1993) 6 Cal.4th 435, 446-447.) 

 Nicole was taken into protective custody within days of her birth in March 

2010. The court provided Nicole’s parents reunification services for 18 months. The 

services were terminated and a section 366.26 hearing calendared only when the court 

found clear and convincing evidence to the effect that returning Nicole to her parents 

would create a substantial risk to her safety, protection, or physical or emotional wellbeing, and that Mother’s efforts to alleviate the causes that necessitated Nicole’s removal 

had been minimal to moderate. (In re Marilyn H., supra, 5 Cal.4th at p. 308; §§ 366.21, 

subd. (f), 366.22, subd. (a).) The issue of the propriety of those findings is not before us. 

(In re Michelle M. (1992) 4 Cal.App.4th 1024, 1030-1031 [issues related to decision to 

terminate reunification services must be reviewed by way of writ petition, not subsequent 

appeal from termination of parental rights].) 

The Trial Court did not err in Terminating Mother’s Parental Rights

 What is before us is the propriety of the juvenile court’s decision 

terminating Mother’s parental rights. Once the court terminated reunification services 

with an eye to adoption, the burden shifted to Mother to demonstrate termination of her 

parental rights and Nicole’s adoption would be detrimental to Nicole under one or more 

statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, 

subd. (c)(1)(B).) In the present case, Mother contends termination of her rights would be 

detrimental to Nicole under section 366.26, subdivision (c)(1)(B)(i). 

 That subdivision applies when “[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), italics added.) Mother exercised her 

visitation privileges during the 18-month reunification period as well as the 17 plus 
8

months between the termination of reunification services and the section 366.26 hearing. 

Although she missed visits from time to time and was routinely late to the visits she 

made, it cannot be said that she did not maintain regular visits with Nicole. But regular 

visits are not enough. There is a second component to this exception to the adoption 

preference—the child would benefit from continuing the relationship. 

 “‘To trigger the application of the parental relationship exception, the 

parent must show the parent-child relationship is sufficiently strong that the child would 

suffer detriment from its termination.’ [Citation.] 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.] The 

existence of this relationship is determined by “[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.” [Citation.]’ [Citation.]” (In 

re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) For Mother to meet her burden of 

proof, she must show more than pleasant visits or that she has loving contact with Nicole 

during visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229) “In order to overcome 

the statutory preference for adoption, the parent must prove he or she occupies a parental 

role in the child’s life, resulting in a significant, positive emotional attachment of the 

child to the parent. [Citations.]” (Ibid.) Put another way, “if severing the existing 

parental relationship would deprive the child of ‘a substantial, positive emotional 

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

overcome and the natural parent’s rights are not terminated.’ [Citation.] In other words, 

if an adoptable child will not suffer great detriment by terminating parental rights, the 

court must select adoption as the permanency plan. [Citation.]” (Ibid.) This is where 

Mother’s challenge fails. 

 Nicole was three years old at the time Mother’s parental rights were 

terminated. She had never lived with Mother, having been placed in protective custody 
9

while she was still in the hospital shortly after birth. Roughly a month after birth she was 

placed with the foster parents. Nicole has lived the rest of her life with her foster parents. 

Mother has never filled a parental role in Nicole’s life. Nicole’s foster parents have 

fulfilled that role. They continue to raise Nicole and hope to adopt her, keeping her with 

her siblings. Mother did not function in a parental role during visits either. She brought 

food to the visits so she, Nicole and Nicole’s siblings could have a meal together, but she 

routinely failed to change or delayed changing Nicole’s diaper, leading to repeated 

instances diaper rash. And Nicole rarely ate with her siblings and Mother. 

 As Nicole got older and more independent, Mother did not supervise 

Nicole’s activities during the visits. For example, Mother left Nicole unattended in one 

room while she (Mother) charged her cell phone in another room. Mother would 

reportedly become furious when the foster father, who was present to monitor the visits, 

informed her that she was responsible for controlling the children during the visits. On 

one such occasion when Mother was not controlling the children, a deputy sheriff who 

was present told the children they could not run around in the visitation area. Mother 

responded, “you can’t do anything.” Toward the end of the years of visits, Nicole spent 

her time running around and playing with other children during the visits, demonstrating 

“little to no interest in interacting with her mother.” Although Nicole enjoyed the visits, 

there is no evidence from which the court was required to conclude Nicole would be 

harmed by terminating Mother’s parental rights. 

 We conclude the trial court did not err in not concluding the exception set 

forth in section 366.26, subdivision (c)(1)(B)(i) applied, whether the decision is reviewed 

for substantial evidence (see In re Autumn H., supra, 27 Cal.App.4th at pp. 575-577), an 

abuse of discretion (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), or aspects 

of both (see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) Accordingly, we 

affirm the juvenile court’s order terminating Mother’s parental rights. 
10

III 

 The order of the juvenile court is affirmed. 

 MOORE, J. 

WE CONCUR: 

O’LEARY, P. J. 

RYLAARSDAM, J.