In re Amy L.

Filed 10/20/06 In re Amy L. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from orders of the Los Angeles County Superior Court, Juvenile Division. Margaret S. Henry, Judge. Affirmed.

Harry Zimmerman, by appointment of the Court of Appeal, for Appellant Lisa C.

Michael A. Salazar, by appointment of the Court of Appeal, for Appellant Magdeleno C.

Ernesto Paz Rey, by appointment of the Court of Appeal, for Appellant Maria P.

Janette Freeman Cochran, by appointment of the Court of Appeal, for Appellant children Amy L., Rosario and Maria C.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Respondent.

SUMMARY

A mother and father, each of whom was found to have physically abused one of their three children, challenge a juvenile court order terminating their parental rights. The parents contend the court erred because (1) the children were members of a sibling group and, therefore, not likely to be adopted and (2) they established the “beneficial contact” exception to termination of parental rights. The parents also challenge court orders denying their petitions seeking family reunification services or the return of the children to their custody. The parents insist they are rehabilitated, and it is in their children’s best interest to give them another chance to permit the parent-child bond to grow. The children’s grandmother also appeals, claiming the court erroneously found the children adoptable and failed to consider her as an adoptive placement resource. We find no merit in any assertion, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In early October 2004, Amy L. and her sisters, Rosario and Maria C., then ages four, two and one, were removed from the care of their parents, Lisa (mother) and Magdaleno C. (father),[1] after the Department of Children and Family Services (DCFS) received a report father had physically abused Amy. Examinations revealed that Amy had swollen cheeks, a purple lump on her forehead, dried blood behind her ear, abrasions on her neck, and multiple fresh, and aged bruises over her body, including a linear 10 inch bruise on her lower back. Rosario said the injuries on Amy’s cheeks and ear were caused by mother. Mother, Amy and Rosario said father had beaten Amy with a belt. Mother told the social worker Amy vomited whenever she saw father. Amy had vomited for a week, but mother had not sought any medical attention. Mother said her husband got angry and hit her. She said he would kill her if she came home without the children, but refused DCFS’s offer to help her secure housing or to obtain a protective order.[2] Based upon the information, the children were placed in foster care.

Mother’s story changed a few days later. She told DCFS she had hit Amy with a belt because she resented Amy and was angry at her own mother, Maria P. (grandmother), because grandmother favored Amy and paid more attention to Amy than to mother. Mother told DCFS she “[didn’t] want Amy” anymore. Mother admitted treating Amy differently than her other daughters. She was affectionate with Rosario and Maria, and attentive to them, but was not as to Amy. When Rosario and Maria were in the car, they traveled in car seats; Amy did not. In fact, Amy was never even secured in a seat belt. When grandmother offered to give mother a car seat for Amy, mother refused the offer saying “there wasn’t enough room for Amy.” The other children’s immunizations were up-to-date; Amy’s were not. Father admitted to DCFS he and mother yelled and screamed at one another, but denied beating her. And, apart from one incident several months before when he struck her on the buttocks with a belt, father also denied doing anything other than occasionally spanking Amy.

Grandmother reported she long suspected father beat Amy and mother, but mother had insisted nothing was wrong. Mother began her relationship with father when Amy was approximately six months old. Mother decided to put Amy up for adoption to enable mother to be with father. For the first two months of Amy’s life, Grandmother raised her. Grandmother was willing to do so again. Grandmother said father was very controlling, and would not allow mother or the children to have any relationship with her, and she and mother kept their contact secret. Grandmother knew mother and Amy feared father. For example, when father once approached her in grandmother’s presence, Amy became so afraid she urinated on herself. Grandmother noticed suspicious bruises on mother and Amy as early as September 2002, and kept a journal about her suspicions. In August 2004, a child care provider told grandmother about a large bruise she had observed outside Amy’s vagina. Mother told the caretaker Amy had fallen on a bed frame. However, grandmother knew there were no bed frames in mother’s house. Grandmother never reported her suspicions to any authorities, because mother said the injuries were accidental. In August 2004, mother finally admitted she was a victim of domestic violence. At that time, she left father to live in a shelter. She went back to father shortly afterward because she “still loved him.” In October 2004, mother told grandmother father had beaten Amy regularly since she began living with them in December 2001. Father did not like Amy because she was the child of another man. However, father would not allow Amy to live with grandmother “because he [did] not like [her].”

The Welfare and Institutions Code[3] section 300 petition filed October 6, 2004, alleged the children were at risk of harm based on the physical abuse inflicted upon Amy by her parents. (§ 300, subds. (a), (b), (e), (i) and (j).) At the detention hearing, grandmother requested placement of all three children with her. Mother objected to the placement. DCFS was concerned that the volatile relationship between grandmother, mother and father could impede reunification efforts. The juvenile court ordered DCFS to investigate the feasibility of placing the children with grandmother, and to provide the parents reunification services.

In preparation for the jurisdictional hearing, DCFS submitted reports with additional accounts of Amy’s abuse, which began in December 2001 when mother was pregnant with Rosario. Those reports further demonstrated father’s strong dislike of Amy whom, according to mother, he “treated like a dog.” Father was jealous of mother’s relationship with Amy and with grandmother. He became angry if mother displayed any affection toward Amy. Father beat Amy with closed fists, a belt and shoes, and threw her across the room, causing her to continuously vomit. The beatings occurred once or twice each week. While beating Amy, father covered her mouth so she could not scream. Mother stood by and watched father “kick and whip” her daughter. She did not seek medical attention for Amy or protect her because, if she did, father would physically abuse her. On many occasions, mother also participated in inflicting the abuse. Mother hit Amy with a belt and repeatedly slapped her on the face and mouth. When mother was upset by an argument with father or grandmother, she retaliated by hitting Amy. Father continued to deny he had committed any physical abuse.

At the jurisdictional hearing, mother signed a waiver of reunification services. The juvenile court questioned mother regarding the authenticity of her signature, her wish to waive reunification services, and her understanding of the consequences of a waiver. Mother responded affirmatively. The court found mother understood the consequences of her actions and knowingly and intelligently waived her right to reunification services. Later, when mother had an opportunity to reconsider and withdraw the waiver, she did not do so. The remaining allegations in the petition were sustained, and the matter continued for disposition.

At the disposition hearing in early January 2005, the juvenile court declared all three children dependents of the juvenile court, and removed them from parental custody. Both parents were denied reunification services; father because of his severe physical abuse (§ 361.5, subd. (b)(6)), and mother based on her earlier waiver of services. (§ 361.5, subd. (b)(14).) The children were placed in a prospective adoptive home. DCFS was ordered to initiate an adoptive home study, and to evaluate grandmother for placement in the event the children’s caretakers decided against adoption. A selection and implementation hearing (§ 366.26) was scheduled for early May 2005. In early February, DCFS reported the children were adoptable and the caretakers, with whom the children had been placed since October 2004, wanted to adopt them. In that report, DCFS noted grandmother was denied placement because she had failed to protect the children from their parents’ abuse, even though she was aware it was occurring, and because of a previous child abuse referral against her.

In April and May 2005, mother and father each filed section 388 petitions. Mother sought reunification services, child custody, or increased and unmonitored visitation with the children. Mother also sought to withdraw her waiver of reunification services, claiming she was coerced into signing it and did not understand the consequences of her action. Father sought reunification services as to Rosario and Maria. Both parents claimed they had taken classes on their own, had begun making positive personal changes, and were separating from one another. Grandmother also filed a section 388 petition requesting the children’s placement with her or, alternatively, she receive unmonitored visitation. The petitions were set for hearing.

In February 2005, Mother called the child abuse hotline, claiming the children’s caretaker had physically abused the children. DCFS investigated and found the allegations unfounded. However, when a foster family agency later substantiated mother’s claim, the caretakers were decertified. The children were moved to a new prospective adoptive home in early May 2005, but were re-placed three weeks later after their new caretaker became pregnant and decided against adoption. By July 2005, DCFS located a third prospective adoptive home for the children. However, the agency later reported the prospective parents decided not to adopt the children when they learned mother had made allegations of abuse against the children’s first caretakers. In response to that report, the juvenile court surmised an adoptive family would not be found unless parental rights were terminated, and announced its intent to proceed with the scheduled section 366.26 hearing, even if a specific adoptive family was not found by then. By the time the section 366.26 hearing was conducted, DCFS had located a fourth prospective adoptive home, but the children had not yet met the prospective caretakers.

The section 388 and section 366.26 hearings were conducted in early October 2005. In preparation for those hearings, DCFS reported mother visited the children weekly in a monitored setting, and her behavior was appropriate. Mother was involved in individual counseling, and regularly attended and participated in parenting and domestic violence classes. By July, mother moved to a new apartment, and told DCFS she planned to divorce father and obtain a restraining order. Mother’s psychologist told DCFS mother continued to address issues of conflict with grandmother, whom mother believed wanted to take the children from her, as well as issues arising from her father and stepfather’s physical and sexual abuse of her as a child.

The psychologist said mother was addressing issues related to father’s physical abuse of her. However, she remained ambivalent about her relationship with father. At times, she wanted to divorce him. However, she did not appear to fear father or feel a need for a restraining order, and mother and father accompanied one another on trips to their respective counseling sessions. In addition, father still provided most of mother’s financial support. In the psychologist’s opinion, mother and father maintained a “caring relationship,” and mother’s behavior did not indicate a readiness to separate from father. The psychologist also said it was difficult for mother to bond with her children because she was focused on her own childhood and relationships, was unable to relate to her children as a parent, had not learned from her mistakes, was unable to live independently, did not understand the issues that put them at risk, and lacked parenting skills. The psychologist told DCFS that, although mother had not wanted Amy back at first, she since acknowledged the injuries she caused and expressed a desire to learn and change her abusive behavior. Mother now wanted all her children returned to her.

DCFS reported father visited Rosario and Maria weekly on a monitored basis. He was consistently on time and behaved appropriately, and the children appeared to enjoy his visits.

DCFS recommended termination of parental rights and adoption as the children’s permanent plan. Notwithstanding the parents’ compliance, DCFS continued to believe they still lacked parenting skills and were unable to express their feelings toward their children. The agency opined the children would be placed at risk if reunified with their parents, who appeared unconcerned about their children’s well-being.

Several social workers and counselors testified at the hearing. They agreed the children were in good health, developmentally on target, and emotionally stable. They also agreed that the weekly monitored visits between the children and their parents and grandmother were largely consistent. The adults were punctual, appropriate and positive at the visits and the children were affectionate, interacted well with the adults, and seemed to enjoy the visits.

John Villalobos, a social worker who monitored the parents’ and grandmother’s weekly visits for about five months, said father was affectionate with Rosario and Maria, and the interactions among the three of them were positive. Father handled himself “like a parent” when issues arose between Rosario and Maria. Villalobos observed no emotional instability in any of the children who appeared to be healthy and developing physically and cognitively in an age-appropriate manner. Villalobos said mother’s interactions with all three children were positive, loving and affectionate. From a cultural perspective, he believed the children would benefit from an ongoing relationship with a biological parent. Villalobos also noticed grandmother was more affectionate and involved with the children during her visits, than mother or father were during their visits.

A therapist and a facilitator from a counseling agency also testified. The therapist, who taught a domestic violence class father attended for about 40 weeks, said father was attentive in class, understood use of violence was wrong, and was genuinely trying to learn from the information provided. While father admitted he had been rude to Amy, he denied ever hurting her. The facilitator, who taught a weekly parenting course, said father was motivated and had not missed a session since November 2004. At the outset of the course, father “repented for mistakes made in the past” and made great progress over the course of the past year. The facilitator’s information was based on her observations of father and statements he made. Father denied physically disciplining his children, but admitted once hitting Amy. However, he never admitted regularly beating Amy or being violent with mother. The facilitator indicated she would be surprised to learn father physically abused his wife or children.

Father testified he loved all three children and thought of Amy as his own child. He learned many things from programs in which he was involved, including improved parenting skills and appropriate discipline methods. Father denied ever hitting his wife, or using physical discipline against any child except the one occasion when he hit Amy with a sandal. Father said that, other than not spending enough time with the children, he had done “nothing” wrong as a parent. He said Amy lied when she said she was beaten by him, and mother’s facial bruises were self-inflicted. He claimed he was not living with mother at the time of the hearing, and would separate from her if it was in the children’s best interest.

Mother testified father yelled at her and hit her. While she once feared him, she no longer did. She had decided -- the day before the hearing -- to divorce him. However, father helped pay her rent and paid for her therapy. He also had keys to her apartment. Mother admitted she hurt her children and hit Amy. Mother told her therapist father was a good person and she was to blame for yelling at the children. Mother denied physically abusing Amy, but admitted telling her daughter she did not love her and taking her anger out on Amy. Mother testified she knew father was hitting Amy two or three times each week with a belt since Amy came to live with them three or four years before. Amy was afraid of father and vomited every time she saw him. Neither mother nor father ever hit Rosario or Maria.

Mother said she was sexually abused as a teenager by her stepfather. After it occurred, she told grandmother about the abuse, but grandmother did not believe her. Grandmother also did not believe her when she told her about the abuse occurring at a later time, which DCFS substantiated.

Mother said she did not understand what she was doing when she waived reunification services. Her first attorney did not read the court papers to her or explain their meaning. He only indicated a waiver would help her get her children back. Mother believed she deserved a second chance at parenting because she was “better now.” Her life felt empty with her children living with another person, and she and the children wanted to be together. The counseling and parenting classes helped her understand her children, and taught her parenting skills.

Grandmother testified she saw many suspicious bruises on Amy and believed the child was being abused the entire time she lived in mother and father’s home. Grandmother claimed she changed after learning of mother’s sexual abuse. She now admitted her mistakes and apologized to mother. She wanted the girls placed with her.

The section 388 petitions were denied. The juvenile court found by clear and convincing evidence the children were adoptable, determined no statutory exception applied, and terminated parental rights. Father, mother and grandmother appeal.[4]

^DISCUSSION

1. The juvenile court acted within its discretion when it denied the petitions.

Both parents and grandmother insist the juvenile court abused its discretion in denying their section 388 petitions. We conclude otherwise.

To prevail on a petition that seeks to change, modify or set aside a prior juvenile court order, the petitioner must prove, by a preponderance of evidence, that (1) substantial new evidence exists or a significant change of circumstances occurred, and (2) the proposed modification is in the child’s best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) None of the petitions satisfy this test.

a. Father failed to show significantly changed circumstances.

By his petition, father sought to change the order denying him reunification services, end the effort to find an adoptive placement for Rosario and Maria, and require DCFS to make reasonable efforts to effect his children’s return to his care. Father asserted his circumstances were significantly changed because he regularly attended and actively participated in counseling as well as parenting, domestic violence and anger management classes. He regretted his past mistakes, learned to deal more constructively with his anger and frustration at mother and the children, and improved his ability to control his impulses and emotions. The father’s sentiments were echoed by the professionals with whom father worked. However, as the juvenile court noted, the favorable testimony about the changes father made were based on father’s unabashed denial of and dishonesty about his violent and abusive behavior toward Amy. In fact, according to his own testimony, father believed he had done nothing wrong as a parent. On these facts, the court acted within its discretion in finding father failed to satisfy the first prong of the section 388 test, requiring a significant change of circumstances.

b. Mother’s petition evidenced circumstances that were “changing” but had not significantly changed.

Mother’s petition sought reunification services and unmonitored, increased visitation with the children.[5] Unlike father, she admitted and regretted her role in Amy’s abuse which at first she blamed on father. Mother claimed that, as a result of her participation in programs and counseling, she was better able to understand her children and was aware that she could not abuse them when she is angry. She also was addressing issues of domestic violence, no longer lived with father, and planned to divorce him.

The juvenile court found mother was not credible. While she made progress by taking responsibility for abusing Amy and failing to protect her from father, was living apart from father and was planning to divorce him, mother had decided on divorce only the day before the hearing. In addition, mother and father still had a “caring” relationship. Mother continued to insist father was a good person and “beam[ed]” in court when anything positive was said about him. Moreover, father still provided mother significant financial assistance and had keys to her apartment. Based on this evidence, the court concluded that mother’s positive changes were “nowhere near the progress she needs to make” to prevail on her petition. Notwithstanding mother’s representations, the court concluded she was “still very much more involved with [father] . . . than with her children,” and had “absolutely no faith that [mother] wouldn’t abuse the children herself if that was the inclination of the father.”

The parents’ petitions established evolving but not “significantly changed” circumstances. Accordingly, the juvenile court did not abuse its discretion in finding an inadequate change in the parents’ circumstances.

c. Concluding the parents’ proposed modifications were not in the children’s best interest was not an abuse of discretion.

In addition to a significant change of circumstances, a petitioner must show that undoing the juvenile court’s prior order was in the child’s best interest. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) In making this determination, the court is required to consider: (1) the seriousness of the problem that led to the children’s dependent status; (2) the strength of the relative bonds between the children and their current caretakers; and (3) the degree to which the problem which led to the filing of a dependency petition may be easily removed or ameliorated, and the extent to which it has been. (Id. at pp. 530-532.)

The underlying problem in this dependency case was, according to the juvenile court, “horrific.” Beginning when she was two years old, and continuing for two or three years, Amy was beaten by father several times a week, simply because she was another man’s daughter. The child so feared father that when she saw him, she often shook and urinated and vomited on herself. Not only did mother allow the father’s abuse to occur, she actively hid the abuse from grandmother and others, lying about the source of Amy’s injuries. Moreover, mother also inflicted her own physical abuse on Amy, venting her own frustration and jealousy by beating Amy. The court concluded that little evidence demonstrated that the underlying problems had been or could be ameliorated. From the inception of this case, father consistently refused to admit ever hurting Amy, let alone regularly beating her or mother. While father spent many hours in counseling, parenting and anger management classes, he continued to lie about and deny his own acts of cruelty. The court was correct in determining that neither parent was credible and failed to demonstrate it would be safe to return the children to their care.[6] No discretion was abused by denying the parents’ petitions.

d. Grandmother’s petition failed to demonstrate DCFS did not adequately consider her as a relative placement or it was in the children’s best interest to be placed with her.

Grandmother contends the juvenile court abused its discretion by denying her petition because it was in her grandchildren’s best interest to place them in her care. We disagree.

At the outset of the dependency proceeding, DCFS assessed grandmother as a possible relative placement. (§361.3.) The placement was deemed inappropriate due to the volatile relationship between grandmother and the children’s parents. Later, when the children’s placements were disrupted, grandmother was again considered. DCFS determined placement with her remained inappropriate because she knew or suspected for a long time that Amy was being abused, but did nothing about it. In addition, grandmother did not believe mother when she first was told that mother’s father and stepfather abused and molested her, and as a result failed to protect mother. Finally, although grandmother was told on more than one occasion not to discuss the case during her visits with her grandchildren, she was unable to control herself or her emotions. During one visit, grandmother promised Amy she could live with her. When that promise went unfulfilled, Amy became distraught and called grandmother a liar. In sum, DCFS considered grandmother as a potential relative placement on several occasions, but determined that placement was neither appropriate nor in the children’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-326 [when section 388 petition requests change from foster home to relative placement, court is guided, among other things, by relative placement factors of section 361.3 in determining child’s best interest].) That determination was not made in error.

2. The juvenile court did not err in finding the children adoptable.

Grandmother asserts the juvenile court lacked sufficient evidence to support the finding the children were adoptable.[7] Mother and father echo those arguments with respect to Rosario and Maria.

The juvenile court may terminate parental rights only if it finds, by clear and convincing evidence, a child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Erik P. (2002) 104 Cal.App.4th 395, 400.) “ ‘The issue of adoptability . . . focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.’ [Citations.]” (In re Jeremy S. ( 2001) 89 Cal.App.4th 514, 523.) The parents and grandmother insist the court’s conclusion the children were adoptable was flawed and based solely on a social worker’s opinion. They claim the evidence was insufficient to establish adoptability, particularly where placement is difficult due to the children’s sibling group membership. This assertion in unavailing.

Subdivision (c)(1) of section 366.26 provides that if the juvenile court determines a child is likely to be adopted, parental rights must be terminated, even if the child is not placed in a preadoptive home or with a foster family prepared to adopt the child. However, under subdivision (c)(3), termination of parental rights is not necessary if the child is deemed “difficult to place” because no prospective adoptive parent is available or identifiable due to the child’s sibling group membership. However, Amy, Rosario and Maria cannot be categorized as difficult to place. At the time of the section 366.26 hearing, DCFS had identified prospective adoptive parents who were “100 percent committed” to the adoption of all three children and were awaiting only the conclusion of the proceedings. The fact that a prospective parent is willing to adopt a child is sufficient evidence of the likelihood of adoption. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Thus, the court lacked the discretion to delay terminating parental rights under section 366.26, subdivision (c)(3).

Moreover, the strong interest by other families in adopting all three children is evidence that the current prospective parents -- or some other family -- was likely to adopt the sibling group. When evaluating adoptability, the “present existence or nonexistence of a prospective adoptive parent -- that is, a person who has filed or intends to file a petition to adopt the child [citation] -- is a factor in determining whether the child is adoptable, but is not in itself determinative. ‘[I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” [Citation.]’ “ (In re David H. (1995) 33 Cal.App.4th 368, 378.) “[A] prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, emphasis omitted.) The law does not require that a child is already placed in a preadoptive home or with a foster family prepared to adopt. Section 366.26, subdivision (c)(1) states, in relevant part: “The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” The law requires “convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)

DCFS presented evidence that several families expressed serious interest in adopting all three children as well as evidence that the current prospective adoptive family was waiting, willing and committed to accepting the children into their home and adopting them which the section 366.26 hearing concluded. This evidence supports the juvenile court’s finding it was likely Amy, Rosario and Maria would be adopted.

3. Parental rights were appropriately terminated.

Once the juvenile court concludes a likelihood of adoption, it must terminate parental rights and free the child for adoption unless it concludes, among other grounds, that doing so would be detrimental to the child because “[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)(A).) The parent bears the burden of proving the applicability of the exception. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

The parties do not dispute the first prong of the beneficial contact exception in section 366.26(c)(1)(A). Each parent maintained consistent visitation and contact with the children. Rather, the dispute lies with the second prong: whether “the child[ren] would benefit from continuing the relationship.”

Father contends his bond with Rosario and Maria was adequate to require application of the beneficial contact exception. He asserts the benefit of his children maintaining a relationship with him outweighs the benefits of adoption. He argues: (1) he has been a constant part of their lives since birth; (2) he and the children were affectionate with one another during their weekly monitored visits; (3) the children call him “Daddy,” and (4) the children will benefit from an involvement with a biological parent. The juvenile court found this evidence insufficient, as do we.

The beneficial contact exception does not apply when a parent fails to occupy a parental role in his children’s life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418- 1419.) “Parents who have . . . never . . . advanced beyond supervised visitation will have a difficult time establishing the section 366.26(c)(1)( A) exception.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) The relationship that gives rise to the visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)

Rosario and Maria enjoyed father’s weekly visits. However, evidence of pleasant hourly visits falls far short of the requirement that father prove he and his children share “a significant, positive emotional attachment . . . .” (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) The evidence fails to reflect that father, Rosario and Maria developed a parent-child relationship necessary to invoke the beneficial contact exception. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1420.) To the contrary, father’s beneficial contact argument is a bare assertion that children will always benefit from a relationship with a biological parent, even if the relationship amounts to no more than one toddler might have with an adult who visits regularly and usually brings toys. This record does not disclose the “exceptional circumstances“ necessary to warrant application of the beneficial contact exception.

For similar reasons, mother failed to assume a parental role during her monitored, weekly interactions with the children. Her own therapist believed she experienced difficulty bonding with her children or relating to them as a parent because of her focus on her own problematic relationships. When mother was able to focus on her children, she acted appropriately, talking, playing and displaying affection with them. Those interactions however, never progressed beyond weekly, monitored visitation, and did not fulfill either the children’s physical needs or emotional needs for a parent and a stable home. Frequent and loving contact alone does not place mother in a parental role. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) The juvenile court accordingly did not err in concluding mother failed to establish the applicability of the beneficial contact exception to termination of parental rights.

DISPOSITION

The orders denying the section 388 petitions filed by mother, father and grandmother and terminating parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

RUBIN, Acting P. J. FLIER, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] ^{Father is the presumed father of Rosario and Maria, and Amy’s stepfather. Amy’s alleged father is not a party to this appeal.}

[2] ^{The family had come to DCFS’s attention twice before. In 2002, Amy allegedly fell in the bathroom and broke her leg. A nurse highly suspected child abuse, but the treating physician did not share her suspicions. In mid-2003, a neighbor called DCFS because the children were crying “frantically.” She said mother hit the children, while covering their mouths to keep them quiet. Both allegations were investigated and deemed unfounded.}

[3] ^{All statutory references are to this code.}

[4] ^{This appeal was consolidated with an appeal filed by the children (B187984). Several months after filing their opening brief, the children notified us they had changed their position, and requested we affirm the juvenile court’s orders.}

[5] ^{Mother also sought to withdraw her waiver of reunification services, claiming she had not understood what she was giving up when she agreed to the waiver. We reject this contention. On multiple occasions, the juvenile court inquired and found mother made a knowing, intelligent waiver of reunification services. Because mother was present when father refused to waive reunification services, she was aware she had an alternative. Moreover, the court was convinced mother knew what she was doing because she appeared resolute that nothing the court said would sway her. The record fully supports these conclusions.}

[6] ^{The second Kimberly F. factor is not an issue. The children had not yet met -- let alone formed a bond with -- their potential caretakers.}

[7] ^{Grandmother adopted the arguments made in the children’s opening brief which adopted their now withdrawn arguments.}