In re H.G.
In re H
In re H.G.
Filed 1/25/13 In
re H.G. CA4/1
NOT TO BE PUBLISHED IN
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
In re H.G. et
al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
Defendant and Appellant.
(Super. Ct. No.
from a judgment of the Superior Court of San Diego
County, Laura J. Birkmeyer, Judge. Affirmed.
D. appeals the judgment terminating her parental
rights to her sons, H.G. and B.G (together, the boys), and her daughter,
A.G. (we refer to the boys and A.G. collectively as the children). Mayra contends the juvenile erred by
declining to apply the beneficial relationship exception. (Welf. & Inst. Code, § 366.26, subd.
(c)(1)(B)(i); all further statutory references are to this Code.) We affirm.
In September 2009,
the San Diego County Health and Human
Services Agency (the Agency) filed a dependency petition for newborn A.D.
because she and Mayra tested positive for methamphetamine. Mayra had a history of drug use and never
participated in treatment. She admitted
using methamphetamine the day before A.D. was born. Mayra had had no prenatal care since July.
A.D. was detained
in a foster home.
Three-and-one-half-year-old H.G. and two-and-one-half-year-old B.G.
remained in their maternal grandmother's home, where Mayra had left them, under
a voluntary case plan. In October 2009,
the court entered a true finding on A.D.'s dependency petition, ordered her
placed in foster care and ordered reunification services.
The Agency gave
Mayra referrals to domestic violence
shelters, but she was turned away because she did not follow safety
instructions. In February 2010, the
Agency learned the maternal grandmother had returned the boys to Mayra. Mayra and the boys were staying with the
boys' father, Hector G., despite the fact that Hector had recently beaten Mayra
and hit H.G. with a stick. The Agency
filed dependency petitions for the boys based on Mayra's homelessness and the
boys' exposure to domestic violence. The
boys were detained in a foster home for eight days, and then moved to A.D.'s
foster home. In June, the court entered
true findings on the boys' dependency petitions, ordered them placed in foster
care and ordered reunification services.
In September 2011,
at the 18-month review hearing in the boys' case, the court terminated services
and set a section 366.26 hearing. In
October, following the 18-month review hearing in A.D.'s case, the court did
the same. In August 2012, the court
terminated parental rights.
does not contest the finding the children were adoptable. If a dependent child is adoptable, the court
must terminate parental rights at the section 366.26 hearing unless the parent
proves the existence of a statutory exception.
(§ 366.26, subd. (c)(1); In
re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) One such exception exists if "[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).) A beneficial 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 re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
If terminating parental rights "would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial 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 . . .
." (Id. at p. 576.) Examining
the evidence in the light most favorable to the judgment (ibid.), we conclude substantial evidence supports the court's finding
that although there had been regular and consistent visitation, "there
[was] no evidence . . . that the children would be greatly
harmed . . . if their relationship with [Mayra] were
displayed a pattern of being attentive to the children during supervised
visits, then mistreating them once she obtained unsupervised visits, resulting
in a return to supervised visits. At an
unsupervised visit in June 2011, for example, Mayra left the boys in a dark
room and wrapped A.D.'s head in a blanket.
After the visit, the boys reported Mayra often hit them and A.D. Visits again became supervised and remained
so for the rest of the case.
the time of the section 366.26 hearing, H.G. was six and one-half years old,
B.G. was five years old and A.D. was nearly three years old. A.D. had never been in Mayra's care, and the
boys had been out of her care for more than two and one-half years. A.D. had lived in the foster home virtually
all her life, and the boys had lived there for more than one and one-half
years. The children were happy and
stable in the foster home and the foster parents wished to adopt them. A.D. was strongly attached to the foster
mother. The boys called the foster
parents "mom" and "dad."
children were affectionate with Mayra and enjoyed supervised visits, but ran
toward the foster mother when she arrived at the end of visits. The children varied in their attachment to
Mayra. A.D. had a minimal attachment,
and H.G. was the most responsive to Mayra.
None of the children behaved as if they were strongly attached to
her. They viewed her as a playmate. Mayra brought food to supervised visits and
was attentive to the children, but sometimes was overwhelmed with the task of
caring for them.
relies on In re S.B. (2008) 164
Cal.App.4th 289, in which this court concluded the juvenile court erred by
declining to apply the beneficial relationship exception. (Id.
at p. 301.) There, the appellant father
"complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs
above his own (id. at p. 298). In re
S.B. is therefore distinguishable from the instant case. Here, the children needed stability, and the
social worker believed the benefit they would realize in a permanent home
outweighed any detriment they would suffer if parental rights were
judgment is affirmed.