In re M.G.

















Filed 9/18/12 In re M.G. CA4/1

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



DIVISION
ONE



STATE
OF CALIFORNIA


>

In re M.G., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.G., Defendant and Appellant.	D061841 (Super. Ct. No. EJ003183)

APPEAL from
orders of the Superior Court
of San Diego
County, Laura J. Birkmeyer, Judge. Affirmed.



T.G.
appeals orders terminating her parental rights to her daughter M.G. and
referring M.G. for adoption. She
contends the court erred by not applying the beneficial parent-child
relationship exception to termination of parental
rights and adoption of Welfare and Institutions Code section 366.26,
subdivision (c)(1)(B)(i).[1] We affirm the orders.



FACTUAL AND
PROCEDURAL BACKGROUND

On January 26, 2010, the San Diego County Health and Human Services
Agency (the Agency) petitioned on behalf of three-month-old M.G. under
section 300, subdivision (b) based on T.G.'s drug use. It had been reported that T.G. and her
roommate were selling methamphetamine and marijuana from their home and T.G.
had left M.G. alone when she visited neighbors.
Drug screens of T.G. and M.G. showed evidence of methamphetamine. T.G. had lost custody of two other
children. She said she had completed the
KIVA substance abuse program in 2007.
The court ordered M.G. detained in out-of-home care and ordered liberal supervised visitation.

On March 22, 2010, the court found the
allegations true, declared M.G. a dependent child, ordered her placed in foster
care and ordered services for T.G.

T.G. began
participating in services. She entered
KIVA, left, then returned and attended parenting education, 12-step meetings
and workshops. She visited M.G. on a
regular basis. At the six-month review
hearing on November 8, 2010,
the court continued services. The social
worker observed T.G.'s parenting skills were improving and that during visits
she took on an appropriate parental role, set limits and was affectionate with
M.G.

In May
2011, T.G. began daily, unsupervised visits with M.G., and then started Monday
to Friday visits, including overnights.
At the 12-month hearing in May, the court continued services. In June, the court ordered a 60-day trial
visit.

For the
18-month hearing in July 2011, the social worker recommended M.G. be placed
with T.G. with family maintenance
services. T.G. improved in her ability
to care for M.G. and to provide appropriate discipline, but she had difficulty
managing child care responsibilities, work, housing issues and her case plan
requirements. She learned her roommate
had not been paying her portion of the rent and they faced potential eviction.

On August
29, 2011, the Agency filed a supplemental petition under section 387, alleging
T.G. was no longer able to provide appropriate care and supervision of M.G. in
that she had tested positive for methamphetamine, had been discharged from
substance abuse treatment and had not kept the Agency informed of her living
arrangements. T.G.'s drug treatment
program had discharged her from treatment, she had a positive test for
amphetamine/methamphetamine and she did not return to drug court as
ordered. The court made a prima facie
finding on the petition and ordered M.G. detained.

On October 17, 2011, the court found
the allegations of the petition true and ordered M.G. placed in relative
care. It found T.G. had been offered
reasonable services, terminated her services and set a section 366.26 hearing.

The social
worker reported M.G. had been placed with her maternal aunt and uncle. After T.G. returned to KIVA, she and M.G. had
visits there. M.G. took some time to be
comfortable with T.G., and T.G. sometimes had difficulty having M.G. follow her
directions, but visits were appropriate and affectionate. M.G. separated easily from T.G. at the end of
visits. The aunt and uncle wanted to
adopt M.G. and there were 71 families with approved adoptive home studies who
wanted to adopt a child with her characteristics.

At the
section 366.26 hearing on April 19,
2012, the court considered T.G.'s testimony, other evidence and
argument by counsel. It concluded M.G.
was an adoptable child, that the exception to adoption and termination of
parental rights of section 366.26, subdivision (c)(1)(B)(i) was not present and
there was no evidence M.G. would be greatly harmed by termination of parental
rights. The court terminated parental
rights and set the matter for adoption.

DISCUSSION

T.G.
contends the court erred by terminating her parental rights because the
evidence showed she and M.G. have a close and loving relationship worthy of
preserving under the beneficial parent-child relationship exception to adoption
and termination of parental rights of section 366.26, subdivision (c)(1)(B)(i).

Adoption is
the permanent plan favored by the Legislature. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and
convincing evidence that a child
is adoptable, it becomes the parent's
burden to show that termination of parental rights would be detrimental to the child because of a specified statutory
exception to termination of parental rights and adoption. (Id. at
p. 574.) Under the exception found in section 366.26, subdivision
(c)(1)(B)(i), the parent is
required to show termination would be detrimental in that "[t]he parents
have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship."
In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted
"[c]ourts have required more than just 'frequent and loving contact' to
establish the requisite benefit for [the] exception."

In In re
Autumn H., supra, 27 Cal.App.4th at pages 575-577, this court found
substantial evidence to support an order terminating parental rights. This court stated:

"In the context of the dependency scheme prescribed
by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship'
exception to mean the 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." (Id. at p. 575.)



In
reviewing whether there is sufficient evidence to support the trial court's
finding, the appellate court reviews the evidence in the light most favorable
to the court's order, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27
Cal.App.4th at p. 576.)

Substantial
evidence supports the court's finding the beneficial parent-child relationship
exception of section 366.26, subdivision (c)(1)(B)(i) did not apply. As the court found, T.G. had maintained
regular visitation and contact with M.G.
However, she did not show that their relationship was so beneficial that it would be
detrimental to M.G. to terminate parental rights. T.G. was not able to fulfill a parental
role. Although they had pleasant visits,
T.G. did not always respond to M.G.'s needs and sometimes put her own needs
first, such as taking smoke breaks during their limited time together. She attempted to instruct M.G., such as
telling her to sit quietly when they watched a movie, to eat her lunch and not
play and not to throw sand, but she was not always successful. She did not provide appropriate snacks, but
gave M.G. too much ice cream, soda and candy.

M.G. looked
to the aunt and uncle as her parents and called them "mommy" and
"daddy." At times it took M.G.
a while to warm up to T.G., but then the two played together and M.G. had a
good time. During some visits M.G.
played alone or with other children or preferred to stay with the aunt if the
aunt remained in sight. M.G. separated
easily from T.G. when visits ended. M.G.
was more attached to the aunt and uncle than she was to T.G. When she returned home after visits, she
appeared happy and excited and hugged the aunt and uncle and their
children. While they were driving to one
visit, the social worker noticed that M.G. was tearful. When the social worker told M.G. that after
playing with T.G. they would return to the aunt and uncle's home, M.G. relaxed
and returned to her usual cheerful demeanor.
As the social worker observed, the visits were like play dates, and
M.G.'s relationship with T.G. was more like a relationship with an extended
family member than a relationship with a parent.

The court
did not err by finding T.G. did not show the benefits of continuing their relationship would outweigh the
benefits M.G. would gain from being adopted into a permanent, stable home.

DISPOSITION

The orders
are affirmed.





BENKE, Acting P. J.



WE CONCUR:







McDONALD, J.







O'ROURKE, J.