Filed 7/7/17 In re Evan M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re EVAN M. et al., Persons Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,

Plaintiff and Respondent,

v.

ROBIN B. et al.,

Defendants and Appellants.

F074510

(Super. Ct. Nos. JD134903 & JD134904)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Robin B.
Monica Vogelmann, under appoint by the Court of Appeal, for Defendant and Appellant Michael M.
Mark Nations, Interim County Counsel, and Amanda LeBaron, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellants Michael M. (father) and Robin B. (mother) appeal from the juvenile court’s orders terminating their parental rights pursuant to Welfare and Institutions Code section 366.26 as to their two minor sons, two-year-old Evan and one-year-old Jacob. Appellants contend the juvenile court erred in failing to apply the exception to adoption set forth in section 366.26, subdivision (c)(1)(B)(i) (“beneficial relationship exception”). We affirm.
PROCEDURAL AND FACTUAL SUMMARY
In June 2015, Catherine Santerre, an emergency response social worker with the Kern County Department of Human Services (department), responded to a report that mother and her newborn son, Jacob, tested positive for methamphetamine. The hospital staff reported that mother and father were sleeping and not caring for the baby.
Mother told Santerre she did not realize she was pregnant with Jacob until she was six months along and that she used methamphetamine during her pregnancy. Evan, then 11 months old, was staying with his paternal grandparents while mother and father were in the hospital. Santerre asked mother about her two older children who were not in her care. Mother explained that she relinquished custody of them to relatives under a legal guardianship because she was abusing alcohol and had nowhere to live.
The parents told Santerre mother used methamphetamine during her pregnancy because they were having “issues” and mother was stressed about being pregnant again. Santerre asked how they were going to handle the stress when they had to care for two young children. Mother did not anticipate a problem because she would have father’s support. They planned to live with the paternal grandparents until the end of the month.
Santerre spoke to the paternal grandmother, Mrs. M., who said the parents had been living in her home since mother was pregnant with Evan. She said mother was verbally and emotionally abusive to father and had been diagnosed with borderline personality disorder. Mother later confirmed her diagnosis, explaining it was made in 2013 after a suicide attempt. Mrs. M. also told Santerre mother was verbally abusive to Evan and cursed at him. Mrs. M. heard mother tell Evan, “Shut the f*** up, I can’t even cough without you crying.” She also said Evan was always excited to see his father or grandparents, but showed little attachment to mother. When mother entered a room, he looked at her, then away and resumed his activity.
The hospital staff discharged Jacob to mother’s care despite their concerns he was lethargic and mother was not making sufficient effort to feed him. However, approximately a week later, after the department was unable to get in contact with the family, the department took the children into protective custody and filed a dependency petition on their behalf under section 300, subdivision (b) (failure to protect).
The juvenile court sustained the dependency petition and adjudged the children dependents described by section 300, subdivision (b) after finding true allegations that mother’s substance abuse and mental illness placed the children at a substantial risk of harm and that father failed to protect them from it. The court appointed Dr. Michael Musacco, a psychologist, to evaluate mother and determine if she was able to benefit from reunification services. The department placed the children with a paternal cousin.
Dr. Musacco completed mother’s psychological evaluation in October 2015. He diagnosed her with several mental health disorders, none of which prevented her from benefitting from reunification services. He recommended the juvenile court order her to drug test and require her to participate in substance abuse treatment if she tested positive. Once mother established her sobriety, Dr. Musacco recommended the department refer her to a psychiatrist for a psychotropic medication evaluation. He also recommended individual counseling for her because she was overwhelmed and parenting classes to address child neglect.
In October 2015, the juvenile court removed the children from parental custody at the dispositional hearing and ordered mother to participate in parenting, substance abuse and mental health services. The court also ordered father to participate in parenting services and ordered both parents to submit to random drug testing and visit the children twice a week for two hours under the department’s supervision. In November 2015, the department placed the children with a nonrelative extended family member where they would remain.
Over the ensuing six months, the parents regularly visited the children and the visits were described as “strong” in quality. However, the parents were otherwise noncompliant with their reunification services. Mother completed the parenting component of her services plan, but did not enroll in substance abuse or mental health counseling. In addition, she failed to drug test, resulting in presumed positive test results. Father did not enroll in his parenting services and failed to drug test. Consequently, the department asked him to complete a substance abuse assessment, but he failed to do so. In light of the parents’ noncompliance, the department recommended the juvenile court terminate their reunification services at the six-month review hearing and set a section 366.26 hearing.
In May 2016, following an uncontested six-month review hearing, the juvenile court followed the department’s recommendations and set a section 366.26 hearing for August 2016. Neither parent challenged the setting order by filing a petition for extraordinary writ. (Cal. Rules of Court, rules 8.450–8.452.)
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and free the children for adoption by their caretakers. The children appeared happy and bonded to their caretakers. In addition, they were meeting their developmental milestones and did not have any physical or mental health problems.
The department reported the parents attended the majority of their visits and described the observations of several social workers who supervised the visits intermittently from July 2015 to July 2016. The parents were attentive to the children and very observant of them. They engaged them by holding them, feeding them snacks that they brought, playing with them on the floor and reading to them. Mother changed Jacob’s diapers and Evan’s clothes as needed. At a visit in November 2015, the children held their arms out to their parents and willingly and excitedly went to them. At the end of visits, the parents hugged and kissed the children. During a visit in May 2016, Evan cried for a few minutes when it was time to go, but immediately changed his attitude and was happy and smiling when he saw his caretaker. The adoption social service worker, David Nunlist, who supervised the visit, stated that Evan was “clearly anxious to leave and go home.” In June 2016, Nunlist recorded that the “boys appeared to get excited when the mother and father arrived for the visit. Both screamed and reached out for their parents as soon as they saw them.” “When it was time to go Evan did not appear to get as upset as he has in the past. He was ready to go and this showed by him running out the door towards the front.” “Both children again became very excited when they saw their caretaker at the front desk waiting to take them home.”
The department opined the children were likely to be adopted and advised the juvenile court that the caretakers were committed to adopting them. The department also opined that the benefit of an adoptive home outweighed any risk of detriment caused by terminating parental rights because the children looked to their caretakers as their primary parental figures and had more of a “visiting relationship” with their parents. Although the children recognized who their parents were, they had the same reaction to people they had seen before. However, when it came time for the visits to end, the children were often happy to see their caretakers.
On August 31, 2016, the juvenile court convened the section 366.26 hearing. The court also had a request by the children’s caretakers to be designated the prospective adoptive parents. Counsel for mother and father objected to the department’s recommendation to terminate parental rights, but offered no additional evidence or argument. Minors’ counsel asked the court to follow the department’s recommendations.
The juvenile court found the children were likely to be adopted and terminated mother and father’s parental rights. The court granted the caretakers’ request to be designated the children’s prospective adoptive parents.
DISCUSSION
Appellants’ sole contention is that the juvenile court erred in failing to apply the beneficial relationship exception to adoption. Respondent contends appellants forfeited the issue on appeal by failing to raise it at the section 366.26 hearing. We concur.
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court determines it is likely the child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B).) Thus, appellants had the burden of producing the evidence to establish the existence of the beneficial relationship exception. (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
Appellants contend the exception found in section 366.26, subdivision (c)(1)(B)(i), i.e., the beneficial relationship exception, applies in this case. The beneficial relationship exception pertains where the evidence supports “a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] … [¶] … regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “‘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.”’” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some “‘emotional bond’” with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) “To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception[,] the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
“To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The juvenile court’s decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)
When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion. (K.P., supra, 203 Cal.App.4th at pp. 621–622.)
Here, appellants presented no affirmative evidence that the beneficial relationship exception applied in their case. Nor did their attorneys argue its applicability. Appellants nevertheless urge this court to allow them to raise the issue for the first time on appeal because the department addressed the essential elements of the exception in its report for the section 366.26 hearing. In our view, the department’s analysis does not satisfy appellants’ burden to produce the evidence, especially under these circumstances. “The application of any of the exceptions enumerated in section 366.26, subdivision (c)(1) depends entirely on a detailed analysis of the relevant facts by the juvenile court. [Citation.] If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record” from which to review the juvenile court’s ruling. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Therefore, we conclude appellants forfeited their right to raise the beneficial relationship exception.
Notwithstanding our conclusion on forfeiture, we exercise our discretion to consider appellants’ issue. We do so in the interests of judicial economy in light of their alternative arguments that trial counsel was ineffective for failing to argue the exception and that the exception presents an important issue of public policy. (People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [appellate courts generally have discretion to address forfeited issues].)
Applying the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) (the statute) to these facts, it is undisputed that appellants “maintained regular visitation and contact” with Evan and Jacob. The question is whether the children “would benefit from continuing the relationship.” As we stated above, the “benefit” contemplated by the statute must be more than a positive experience between a parent and child who share an emotional bond. The evidence must show that the parent occupies a parental role in the child’s life.
We conclude the evidence fails to show the existence of a beneficial relationship as a matter of law because appellants did not occupy a parental role for their children. Although appellants were loving and playful with the children and attended to them personally by feeding and changing them, the children looked to their caretakers as their primary parental figures according to the department, and to appellants as visitors.
Our conclusion a beneficial relationship does not exist between appellants and their children obviates the need to review whether severing their parental rights would be detrimental to the children. Even so, we would not find an abuse of discretion were we to continue the analysis. If the juvenile court finds a beneficial relationship exists, it must weigh the detrimental effect of permanently severing the parent/child relationship against the benefit the child would receive from the permanency of adoption. Unless the detrimental effect outweighs the benefit of adoption, the juvenile court must terminate parental rights. In this case, there was no evidence that severing appellants’ parental rights would be detrimental to the children. Further, the department opined that the benefit of adoption outweighed any detriment that might result. Consequently, we would find no abuse of discretion in the juvenile court’s decision to terminate parental rights.
DISPOSITION
The August 31, 2016, orders terminating appellants’ parental rights are affirmed.




MEEHAN, J.
WE CONCUR:



HILL, P.J.



POOCHIGIAN, J.