Filed 7/21/15 In re D.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.P., a Person Coming Under the 

Juvenile Court Law.

 D067597

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.K.,

Defendant and Appellant.

 (Super. Ct. No. EJ3065)

APPEAL from a judgment of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
2

INTRODUCTION

Mother appeals from a juvenile court judgment terminating her parental rights and 

choosing adoption as the appropriate permanent plan for her child. (Welf. & Inst. Code, 

§ 366.26.)1 She contends the court erred in determining the beneficial parent-child 

relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) is inapplicable. We

disagree and affirm the judgment.

BACKGROUND

The San Diego County Health and Human Services Agency (Agency) filed a 

petition alleging mother failed to protect her then five-year-old child.2 (§ 300, subd. (b).) 

According to the petition, mother has a history of methamphetamine use, the child had 

previously been a dependent of the court because of mother's drug use, mother had 

recently been arrested for possession of drugs and drug paraphernalia, and law 

enforcement officers conducting a lawful search of mother's home found drugs and drug 

paraphernalia within the child's reach. 

The court detained the child in a relative's home and ordered reunification services

for mother as well as liberal, supervised visitation between mother and the child. 

Following a contested jurisdiction and disposition hearing, the court declared the child to 

 

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

otherwise indicated.

2 The petition made the same allegation as to the presumed father. We do not 

discuss the presumed father's role in the proceedings below because his role was 

insubstantial and he did not appeal the court's judgment.
3

be a dependent child, removed the child from mother's custody, and continued the child's 

placement in the relative's home. The court further ordered mother to comply with her 

case plan and the Agency to provide mother with reunification services consistent with 

her case plan. 

In conjunction with the six-month review hearing, minor's counsel filed a request 

for an order terminating mother's reunification services, and the court set the matter for a 

contested hearing. At that point, mother's visits with the child had been inconsistent. 

Mother delayed her first visit with the child until approximately a month after the 

dependency proceeding commenced. Her next visit did not occur until two months later 

and, by then, the child was resistant to visits. Of 11 visits scheduled in the three months 

preceding the hearing on the termination of reunification services, the child refused one 

and mother failed to show up for four of them. 

By the time of the hearing on the termination of reunification services, the child 

rarely wanted to visit mother, barely talked to her on the phone, and expressed a great 

deal of fear and anger toward mother during therapy. According to the child's therapist, 

the child did not want to visit with mother because the child was afraid the visits would 

lead to the child once again living with mother, which the child did not want to do. The 

therapist explained, the child "[m]isses mom, loves mom, but doesn't feel safe with mom"

and "does not want to live with her." Nonetheless, when visits occurred, they were 

generally positive, although the child typically required 15 to 20 minutes to warm up to 

mother.
4

After the hearing on the termination of reunification services, the court granted 

minor's counsel request and terminated services, finding mother had failed "to participate 

regularly and make substantive progress in a court-ordered treatment program," which 

created "a substantial likelihood that reunification will not occur." The court then set a 

hearing under section 366.26 (.26 hearing) to select and implement a permanent plan for 

the child. 

After the termination of reunification services, mother's visits with the child 

initially remained inconsistent with mother visiting the child just four times in a threemonth period. The visits became more consistent about three months before the .26 

hearing, when mother entered an inpatient substance abuse treatment program. However, 

mother self-discharged from the program a few weeks before the .26 hearing and missed 

the next scheduled visit with the child. 

While mother's visits with the child continued to have positive aspects, there were 

several instances during the visits where the child rejected mother's bonding efforts, 

demonstrated affection to mother only when solicited, and was physically aggressive with 

mother. In addition, the child had little difficulty leaving mother when the visits 

concluded and displayed anxiety before, during, and after the visits.

In reports prepared for the .26 hearing, the Agency recommended the court 

terminate mother's parental rights and select adoption as the child's permanent plan. 

Meanwhile, because the child's relative caregiver did not want to adopt the child, the 

Agency placed the child with a foster family approved to and desiring to become the 

child's adoptive family. 
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By the time of the .26 hearing, the child had resided with the foster family for a 

little over two months. According to a report prepared by the child's court-appointed 

special advocate, the foster family was very welcoming to the child, the child was 

comfortable with the foster family, and the child was beginning to consider the foster 

family as her own. The child's former relative caregiver similarly reported the child 

loved living with the foster family and was thriving in their home.

At the .26 hearing, mother testified she did not believe the court should terminate 

her parental rights because the child needs mother, the child would suffer emotionally 

without mother, and it was in the child's best interest for mother to be in her life. In 

addition, she testified the child referred to her as "mommy," and they had a loving, 

affectionate relationship. She described her visits with the child, indicating they would 

play with toys, play games, draw, "try" to talk, and "try" to bond. Although she verbally 

expressed her love to the child, the child did not reciprocate. Nonetheless, she believed

the child loves her.

At the conclusion of the .26 hearing, the court found by clear and convincing 

evidence the child was adoptable and none of the statutory exceptions to adoption 

applied. Consequently, the court terminated mother's parental rights and selected 

adoption as the child's permanent plan.

DISCUSSION

Following a .26 hearing, if the court determines by clear and convincing evidence 

the child will likely be adopted, the court must terminate parental rights and order the 

child placed for adoption. (§ 366.26, subd. (c)(1).) However, the court may find there is 
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a compelling reason for determining termination of parental rights would be detrimental 

to the child if: (1) the parent has maintained regular visitation and contact with the child, 

and (2) the child would benefit from continuing the relationship. (§ 366.26, 

subd. (c)(1)(B)(i).) The parent opposing termination of his or her rights bears the burden 

of establishing both prongs of the beneficial parent-child relationship exception by a 

preponderance of the evidence. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re C.F.

(2011) 193 Cal.App.4th 549, 553 (C.F.).) 

We review the court's determination regarding each prong of the exception for 

substantial evidence.3 (C.F., supra, 193 Cal.App.4th at p. 553.) "On review of the 

sufficiency of the evidence, we presume in favor of the [judgment], considering the 

evidence 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 

[judgment]." (In re Autumn H. (1994) 27 Cal.App.4th, 567, 576.)

 

3 A few appellate courts have adopted a hybrid standard of review for cases 

involving the beneficial parent-child relationship exception. Like us, these courts review 

for substantial evidence whether the parent and child regularly visited and whether they 

have a beneficial relationship. The courts then review for abuse of discretion whether the 

visitation and relationship constitute a compelling reason for finding the termination of 

parental rights would be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at 

pp. 530-531; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 

Cal.App.4th 1308, 1314-1315.) As we explain post, the evidence in this case does not 

support findings the mother regularly visited the child or had a beneficial relationship 

with the child. We, therefore, have no occasion to consider whether the visitation and 

relationship constitute a compelling reason to decline to terminate mother's parental 

rights or what standard of review we should apply to this determination.
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I

Regarding the visitation prong of the exception, the parties agree mother visited 

with the child during the dependency proceeding, but they dispute whether the visitation

was regular. The Agency bases its position on mother's visitation history for the entire

proceeding. Mother bases her position largely on her visitation history for the last three 

months of the proceeding. As the Agency asserts and mother acknowledges, her visits 

with the child were sporadic for most of the proceeding. Her visits did not become 

consistent until about three months before the .26 hearing, when she was confined to an 

in-patient substance abuse treatment program. Notably, after mother self-discharged 

from the program, a few weeks before the .26 hearing, she missed her very next 

scheduled visit with the child. As we must view the record as a whole and in the light 

most favorable to the judgment, we conclude there is substantial evidence to support a 

finding mother's visits and contacts with the child were not regular. (C.F., supra, 193 

Cal.App.4th at p. 554 [visitation consistent near the .26 hearing, but sporadic overall, is 

insufficient to meet the first prong of the beneficial parent-child relationship exception].)

II

Even if mother's visitation history was sufficient to establish she regularly visited 

the child, the record does not show she had a beneficial relationship with the child. 

Because any interaction between a parent and child will confer some incidental benefit to 

the child (In re Autumn H., supra, 27 Cal.App.4th at p. 575), to satisfy the beneficial 

relationship prong of the beneficial parent-child relationship exception, "[t]he parent must 

show he or she occupies a parental role in the child's life, resulting in a significant, 
8

positive, emotional attachment between child and parent." (C.F., supra, 193 Cal.App.4th 

at p. 555.) " 'The factors to be considered when looking for whether a relationship is 

important and beneficial are: (1) the age of the child, (2) the portion of the child's life 

spent in the parent's custody, (3) the positive or negative effect of interaction between the 

parent and the child, and (4) the child's particular needs.' " (In re Bailey J., supra, 189 

Cal.App.4th at p. 1315.) Additionally, "the parent must show the child would suffer 

detriment if his or her relationship with the parent were terminated." (C.F., at p. 555.)

Mother did not meet her burden in this case. This is the child's second dependency 

case. At the time of the .26 hearing, the child was six years old and had spent almost 

three of those years as a dependent of the court. The child's visits with mother, while not 

wholly unpleasant, never revealed a significant, positive, emotional attachment between 

the two, parental or otherwise. To the contrary, the visits invariably prompted 

indifferent, aggressive, and anxious behavior from the child toward the mother. Mother 

tacitly recognized her lack of a strong parental connection with the child when she 

admitted at the .26 hearing the child could not express love for her and when she 

hedgingly characterized her efforts during their visits as "try[ing]" to talk with and 

"try[ing]" to bond with the child. 

Moreover, the child had little difficulty separating from mother after their visits, 

and the child was afraid and unwilling to live with mother again, or even to visit with her 

alone. Conversely, the child is happily residing with and bonding with a foster family 

approved to and desiring to become the child's adoptive family. The child is entitled to 

bond with individuals who will assume the role of parents in the child's life. (In re 
9

Brittany C. (1999) 76 Cal.App.4th 847, 854; see C.F., supra, 193 Cal.App.4th at p. 557 

["[C]hildren are entitled to stability and permanence through adoption."].) Accordingly, 

we conclude there is substantial evidence in the record to support a finding mother did 

not have a beneficial relationship with the child and the court did not err in determining 

the beneficial parent-child relationship exception did not apply. 

DISPOSITION

The judgment affirmed.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.