In re R.M.

Filed 5/2/07 In re R.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Joan C. appeals a juvenile court judgment terminating her parental rights over R.M. and Nikki M. and choosing adoption as the preferred permanent plan. (Welf. & Inst. Code,  366.26.)^[1] Joan contends the children received ineffective assistance of

counsel, which resulted in a plan of adoption for R.M., a teenager, over her objection; the court abused its discretion by denying her petition for modification ( 388) and not returning the children to her custody; and insufficient evidence supports the court's findings the beneficial parent-child relationship, child-objection and sibling relationship exceptions to adoption are inapplicable ( 366.26, subd. (c)(1)(A), (B) & (E)). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Joan has six children: Anthony, born in 1986; A.C., born in 1988; Christopher, born in 1990; Noah, born in 1992; R.M., born in 1993; and Nikki, born in 1997. Joan is developmentally disabled and has difficulty coping, problem solving and making appropriate parenting decisions. The San Diego County Health and Human Services Agency (the Agency) has been involved with the family since Anthony was born.

In mid-November 2001 the Agency opened a voluntary contract with the family. In late November the Agency removed the children from the custody of Joan and Joseph M., the father of the five youngest children. The Agency filed petitions on behalf of the children, which alleged that in September they were exposed to violent confrontations during which Joseph punched Anthony in the head, slapped his face and body and threatened to stab and kill him. Police found Joseph with a folding buck knife and arrested him. He later pleaded guilty to child abuse and was sentenced to prison for several years.^[2]

The Agency's detention report shows a family in crisis. Anthony and Noah pulled knives on babysitters; Anthony was admitted to psychiatric hospitals after threatening suicide, choking Christopher, who is disabled, and assaulting Joan; police took Noah to a psychiatric hospital after he placed R.M. in a choke hold and kicked Joan; police were called when Anthony cut Noah's neck with a butter knife; Noah reported that Joan sometimes hit him with the heel of a shoe; and Anthony attempted sexual contact with R.M. Anthony and Noah were diagnosed with depression and treated with medication, and Anthony was terminated from a residential program because of bad behavior. The family was living in two motel rooms that were in "complete disarray," with broken windows, and dirty clothing, food and trash covering the floors. The bathrooms were filthy, there was rotten food in the refrigerator and the rooms had a noxious odor. Joan asked the Agency to take the children away because "she was at her wit's end" and wanted them to receive proper care.

Joan was given reunification services, but by the time of the six-month review hearing in July 2002 the Agency doubted she would be able to reunify with the children. The court ordered six additional months of services. From shortly after removal, R.M. had been in the same foster home, and Nikki joined her there in the summer of 2002.

At the 12-month review hearing in January 2003, the Agency recommended termination of reunification services and the scheduling of a permanency planning hearing under section 366.26. The social worker reported that because of Joan's mental disability she is unable to manage her children's unique challenges, and she denied Joseph's role in the removal of the children, "which calls into question, after 12 months of services, whether she will be able to protect her children from future abusive situations." After finding Joan's progress with her case plan was minimal, the court terminated reunification services and scheduled a section 366.26 hearing.

At the June 3 hearing, the Agency submitted an assessment report that recommended planned permanent living arrangements for R.M. and Nikki. The report stated the girls were not likely to be adopted because of their ages and the lack of prospective adoptive families, and their foster parents were unwilling to take legal guardianship of them. The court accepted the recommendation as appropriate. R.M. and Nikki continued to thrive in the same foster home, and during post-permanency planning hearings in January and June 2004, the court found no compelling reason to schedule a section 366.26 hearing and continued them in foster care.

In January 2005 the Agency again recommended that R.M. and Nikki continue in their current placement. The Agency advised, however, that because of the foster parents' ages, and R.M.'s approaching 13th birthday, "which is often viewed as a cut off date for adoption," another "request will be sent to the adoption unit for a new assessment evaluation."

In February, the Agency recommended that a section 366.26 hearing be pursued because of the foster parents' ages, health and their inability to commit any longer to planned permanent living arrangements. In March, however, the court ordered the continuation of foster care after the Agency advised that the foster parents believed they could care for the girls another five years.

In September and December 2005, however, the Agency recommended that a section 366.26 hearing be set to select a new permanent plan of adoption. Because of the foster parents' ages, in July the girls were removed from their home to the home of new foster parents, Dan and Mary B., with whom they were familiar through respite care. The girls "transitioned to their new living situation quite well," but the social worker believed a permanent plan of adoption was in their best interests.

At a December 9 hearing, the court scheduled a section 366.26 hearing for April 6, 2006. The Agency later requested a continuance to locate an adoptive home, and the court rescheduled the hearing for July 11. The Agency advised that R.M. and Nikki were adoptable because of their ethnicity, gender, and good health.

In April the B.'s wrote a letter to the court explaining they "have a personal bias against adoption and/or guardianship," but wanted R.M. and Nikki to remain in their home. The same month, the Agency reported that it was unable to find an adoptive family for the girls and planned to broaden its search through various recruitment activities. In June the B.'s requested de facto parent status and advised the court R.M. objected to adoption.

The social worker requested that R.M.'s therapist, Christina Sayler, give "therapeutic input regarding consideration of [R.M.] for possible adoption." Sayler advised that she met with R.M. on March 6 to discuss adoption. Sayler knew R.M. previously hoped for adoption by a classmate's family "to ensure long term stability and the safety of permanence, including a family structure to depend on past her eighteenth birthday." R.M., however, wanted to remain with the B.'s, and Sayler recommended that she and Nikki remain with the B.'s.

In a July report, the social worker advised that adoptive parents, Michael and Virginia R., were selected for R.M. and Nikki and visits with them began July 5. The visits were going well and the girls enjoyed the family's outdoor activities such as hiking, sailing and going to the beach.

On July 25, Joan filed a petition under section 388 seeking custody of R.M. and Nikki and modification of the court's order scheduling a section 366.26 hearing. Joan alleged she had obtained suitable housing and was receiving therapy and treatment, taking medication, attending a parenting class and regularly visiting the girls. The court had continued the section 366.26 hearing to July 27, but it rescheduled it for September 27 and deferred consideration of the section 388 petition to that time.

In a July 27 report, the Agency advised that on July 22 R.M. and Nikki were placed with the R.'s. The girls told the social worker they liked the R.'s and enjoyed outdoor activities with them. R.M., however, had a much more difficult time than Nikki adjusting to the new home and seemed depressed the first couple of days. R.M. became tearful and withdrawn after speaking with the B.'s on the telephone, and after one lengthy conversation R.M. told the R.'s she did not even know them and wanted the B.'s to adopt her. She also told the social worker she wanted the B.'s to adopt her.

The social worker spoke with Dan B., who had asked R.M. to stop calling the B.'s and move on with her life. The social worker put Dan on the speakerphone and he explained to R.M. that he and his wife loved her, but adoption was not an option. Dan reminded R.M. that when she was first placed with him, she did not talk to him for a month and wanted to return to her previous foster home. The R.'s notified the social worker that later that day R.M. "made a complete turn around and that they had the best dinner with the girls yet." Nikki had bonded very quickly with her new family and wanted to be adopted, and the social worker believed R.M. would adjust if she were not receiving mixed messages from the B.'s. The social worker intended to allow R.M. "the time she needs to grieve the loss of her previous foster parents and adjust to her new home before moving forward with the adoption." The B.'s withdrew their request for de facto parent status.

On September 27, the attorney and guardian ad litem for R.M. and Nikki, Amy Stoll, advised the court that R.M. did not want to be adopted, but she believed adoption was in R.M.'s best interest. Stoll explained that R.M. "still wants to go back to her old placement." The social worker recommended that "[i]f at the end of six months [R.M.] still does not want to be adopted then the most appropriate permanent plan should be determined." The court, however, continued the section 366.26 hearing only to November 3.

In an October 25 report, the social worker advised that R.M. remained opposed to adoption. R.M.'s therapist, however, believed that given time she would develop an attachment to the R.'s and change her mind. The social worker recommended adoption for Nikki and a continuance of the matter for R.M.

On November 3, however, the Agency recommended the termination of parental rights and adoption for both R.M. and Nikki. Two days earlier, R.M. called the social worker and left the message that she wanted to be adopted. The social worker spoke with R.M. the day before the hearing and she "maintained that she wanted to be adopted." The social worker also spoke with R.M.'s therapist as to whether she "felt pushed to come to that decision." The therapist believed she was not pushed, and R.M. "has become more relaxed around the prospective adoptive parents and has begun seeking contact with them."

At the hearing, the court granted an evidentiary hearing on Joan's section 388 petition. Joan testified she was living in a townhouse with her boyfriend, she was seeing a psychiatrist monthly and a psychologist weekly, and she was taking prescribed medications to keep her mental illness under control. She had also recently completed a parenting class. She had not seen R.M. for several months, but had seen Nikki recently around her birthday. Joan conceded that R.M. had told her she did not want to visit her. R.M.'s attorney, Stoll, offered stipulated testimony that R.M. did not want to live with or visit Joan, but Nikki was open to visitation. The court asked the girls if that information was correct, and they nodded their heads.

The social worker, Stephanie Gross, testified Joan truly loves her children, but it would be inappropriate to return them to her custody because of her inability to provide them with daily care, and because her home was unclean. The girls had been out of Joan's care for five years and R.M. did not feel comfortable even visiting her. Nikki enjoyed visiting Joan, but they had a peer relationship rather than a parent-child relationship.

Stoll asked Gross whether she was concerned about R.M.'s change of mind on adoption. Gross said she was initially concerned because she knew the adoptive parents spoke with R.M. and Nikki a couple of weeks earlier about adoption and being committed to them, and Gross "worried that conversation would have [a]ffected" R.M. Gross was also worried that the adoptive parents may have given R.M. an ultimatum "that if she doesn't want to be adopted they wouldn't be able to continue to have her in the home." After Gross discussed the matter with R.M., her therapist and the adoptive parents, however, she "felt a little more relieved that she wasn't necessarily pushed."

The court denied the section 388 petition. It found some change in circumstances, but it would not be in the girls' best interests to be returned to Joan's custody.

During the section 366.26 portion of the hearing, Michael R. testified that about three weeks earlier he had the first of three discussions with R.M. about adoption. He explained that he and his wife entered the process expecting they would adopt R.M. and Nikki, but when R.M. objected to adoption they believed they could provide a legal guardianship or permanent foster care. After caring for the girls for several months, however, the R.'s concluded any arrangement but adoption "would be totally unacceptable to us as parents and would not benefit the girls as a family." If adoption was impossible, "she would have to go, and so Nikki would too." R.M. cried.

About a week later, Michael spoke with R.M. again to make sure she "understood what I had said to her." R.M. listened quietly and said little. The third conversation occurred the weekend before the hearing and included Nikki and Virginia R. Michael testified that R.M. essentially said to Nikki, "if I want to be adopted . . . does that mean that you would want to be adopted?" Michael said he told R.M. "it was important that within the next day or two she would relay her decision to her attorney and to . . . the caseworker" since the hearing was coming up. Michael testified he loved the girls and he and his wife were committed to adopting them. He said that after his conversations with R.M. "much of that barrier" with her had disappeared. He also testified R.M. told him she wanted the R.'s to adopt her and she did not feel forced into the decision or threatened by his conversations with her.

Stoll then made the following comments about R.M.: "I spoke to her today . . . and I asked her many different ways regarding her position on being adopted. And she indicates she clearly in every way I asked her she wants to be adopted. And I . . . tried to get through to her if she's saying that because she felt pressured in any way. I asked her. She indicates she wants to be adopted. I also offered her to let the court know that, but she indicated she wanted me to tell the court. So we have spoken and we were alone in a room . . . so she had every opportunity to tell me otherwise, if that was the case. [] I'm convinced this is what she wants. Although, I'm concerned her act is not really one of excitement. But I don't know what else to do except give her the opportunity to tell me otherwise which didn't happen. And I still stand by that." Stoll added, "I don't think Nikki understands adoption but . . . I think she's happy where she is, and I think she should stay there."

The court also spoke with R.M. and she expressed the desire to be adopted. It found R.M. to be "smart enough to understand everything that's been said and understand what's going on." The court determined R.M. knowingly and voluntarily decided to be adopted, both girls are adoptable, it was likely they would be adopted and no exception to the adoption preference applied. The court terminated parental rights, selected adoption as the permanent plan and designated the R.'s as prospective adoptive parents. The court noted that with several placements over many years, "we haven't done a very good job" for R.M. and Nikki.^[3]

DISCUSSION

I

Ineffective Assistance of Counsel

"The consent of a child, if over the age of 12 years, is necessary to the child's adoption." (Fam. Code,  8602.) Accordingly, in dependency law there is an exception to the preference for adoption when a child 12 years of age or older objects to the termination of parental rights. (Welf. & Inst. Code,  366.26, subd. (c)(1)(B); see also California Rules of Court,^[4]rule 5.730(f) [in dependency proceeding "each adoptive parent and the child, if 12 years of age or older, must execute Adoption Agreement (form

ADOPT-210) in the presence of and with the acknowledgment of the court"].)^[5]

Joan notes R.M. was initially opposed to adoption, and contends the assistance of R.M.'s attorney, Stoll, was ineffective because she did not advance R.M.'s wishes, but argued in her dual role as guardian ad litem that adoption is in R.M.'s best interests. Joan submits that because Stoll desired an outcome R.M. opposed, Stoll had a conflict of interest that required her to withdraw as guardian ad litem so she could competently fulfill her attorney role.

" 'To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. [Citations.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Jones (1996) 13 Cal.4th 552, 561.) A parent has standing to raise his or her child's right to effective assistance of counsel when the issue impacts the parent's interest in the parent-child relationship. (In re Clifton B. (2000) 81 Cal.App.4th 415, 428, fn. 6.)

The Agency contends Joan forfeited an ineffective assistance of counsel argument on behalf of her children by not raising it at the juvenile court. Generally, claims of ineffective assistance of counsel are forfeited in dependency proceedings if not timely raised. (In re Janee J. (1999) 74 Cal.App.4th 198, 206-208; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1159-1160.) Section 395, subdivision (a)(1) provides: "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." "A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (In re Meranda P., at p. 1150.)

Joan asserts the "first instance of deficient performance" occurred during review hearings on December 8 and 9, 2005, when the Agency first recommended a permanent plan of adoption and an attorney who specially appeared for Stoll raised no objection on R.M.'s behalf and said Stoll agreed with the scheduling of a section 366.26 hearing. By not appealing the orders from those hearings, however, Joan has forfeited any ineffective assistance of counsel claim arising from them. We conclude, though, that she may raise any ineffective assistance of counsel issue arising from the section 366.26 hearing.

To comply with the federal Child Abuse Prevention and Treatment Act (CAPTA), section 326.5 requires the appointment of a guardian ad litem for any child involved in juvenile dependency proceedings. In California, an attorney appointed to represent the child will also ordinarily serve as his or her CAPTA guardian ad litem. If the court finds, however, that the child would not benefit from the appointment of counsel, it must appoint a court-appointed special advocate (CASA) to serve as the child's CAPTA guardian ad litem. (Rule 5.662(c) [formerly rule 1448(c)].) "The general duties and responsibilities of a CAPTA guardian ad litem are: [] (1) To obtain firsthand a clear understanding of the situation and needs of the child, and [] (2) To make recommendations to the court concerning the best interest of the child as appropriate under (e) and (f)." (Rule 5.662(d) [formerly rule 1448(d)].) The general duties of counsel for a dependent child include representing the child's interests, assessing the child's well-being, and interviewing a child over the age of four to determine his or her wishes and advising the court of them. ( 317, subd. (e).)

It is established that "legal counsel can also act as a dependency guardian ad litem." (In re Charles T. (2002) 102 Cal.App.4th 869, 877.) "It is true that the nature of the duties and responsibilities in an adversarial proceeding of a guardian ad litem and legal counsel would dictate that legal counsel generally cannot also act as the guardian ad litem due to conflicts of interests. However, the function of a guardian ad litem in a dependency proceeding is different from that of a guardian ad litem in an adversarial proceeding and closer to the functions of minor's counsel as described in section 317. Minor's counsel advocates for the protection and safety of the child, investigates, participates in presenting evidence to the court, advises the court of the child's wishes, and investigates interests of the child beyond the dependency. [Citation.] These functions are both more and less than a traditional guardian ad litem in an adversarial proceeding, but are precisely those necessary to provide an independent voice for the child." (Id. at p. 878, fn. omitted.)

Joan asserts Stoll failed to advocate for R.M. at a July 27, 2006 hearing concerning the continuance of the section 366.26 hearing. Stoll, however, advised the court she had spoken with R.M. that day and she "doesn't want to hurt anybody's feeling[s] but she does not want to be adopted." Stoll added that she told R.M., "I think it's important [as] her guardian ad litem she have the opportunity to have a home[ s]he will have the rest of her life, and I think this new foster family can offer that, but she's very clear that she wanted to go back to the home she used to be at. I told her I would let the court know and also told her about the continuance so we're prepared for that." (Italics added.)

At a September 27 hearing, which resulted in another continuance of the section 366.26 hearing, Stoll again advised the court that R.M. was opposed to adoption. Stoll added that she would like R.M. to have the opportunity to be adopted, "but she doesn't want to have it." Stoll also said, "As far as I am concerned, [R.M. and Nikki] will both remain in the same place they are at even though [R.M.] is actually opposed to that."

Joan asserts that since R.M. opposed adoption, Stoll violated her duty as an attorney by expressing an opinion in favor of adoption as a guardian ad litem, even though she also clearly advised the court R.M. opposed adoption. We are not required to determine the issue, however, because before the section 366.26 hearing on November 3, R.M. changed her mind and opted for adoption. Thus, even if Stoll had not acted in a dual role at hearings before the section 366.26 hearing, and the court had appointed a CASA as R.M.'s guardian ad litem, the outcome termination of parental rights and a permanent plan of adoption would have been the same.

Joan asserts R.M. did not act freely at the section 366.26 hearing, but was harassed and coerced into agreeing to adoption. The court was concerned with the wisdom of and manner in which Michael R. explained to R.M. that he and his wife were only interested in adoption, and not in guardianship or other type of plan. The court, however, found that R.M. knowingly and voluntarily changed her mind and wanted adoption. The court spoke with R.M. and found her intelligent and aware of the nature of the proceedings. Further, Stoll advised the court she questioned R.M. in an effort to determine whether she felt pressured in any way, and she responded that she wanted to be adopted. Additionally, the Agency has described R.M. as an "assertive, charismatic young lady" who is "very adept at communicating her needs and wishes to adults," and she advised the social worker she wanted adoption. Also, R.M. said nothing in open court to suggest she opposed adoption and her interests were not being represented.

"The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re Christopher L. (2006) 143 Cal.App.4th 1325, 1333-1334.) It was the juvenile court's task to determine whether the testimony accurately reflected R.M.'s state of mind regarding adoption and the evidence amply supports its ruling.

Because R.M. knowingly and voluntarily agreed to adoption at the section 366.26 hearing, there was no conflict between her wishes and Stoll's opinion that adoption is in her best interest. Thus, Joan's ineffective assistance of counsel theory lacks merit.

We also reject Joan's contention the judgment must be reversed because Stoll's simultaneous representation of R.M. and Nikki was a conflict of interest during the period they differed on adoption, since they are bonded siblings who should not be separated. Joan asserts the conflict prejudiced R.M. and Nikki as it led to the erroneous termination of parental rights. "If an appointed attorney is representing multiple minors in a dependency proceeding, and an actual conflict of interest between the minors arises, the attorney is obliged to withdraw from representing the clients [citation] and the court is required to relieve the attorney and appoint new counsel." (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428.) Again, however, Joan forfeited any claim of ineffective assistance of counsel unrelated to the section 366.26 hearing, and by the time of that hearing the girls' interests were aligned as they both wanted adoption.

II

Section 388 Petition for Modification

Joan contends the court improperly denied her petition for modification under section 388. "Any parent . . . may, upon grounds of change of circumstances or new evidence, petition the [juvenile] court . . . for a hearing to change, modify, or set aside any order of court previously made." ( 388, subd. (a).) "If it appears that the best interests of the child may be promoted by the proposed change of order . . .  the court shall order that a hearing be held and shall give prior notice . . . ." ( 388, subd. (c).) The appellate court " 'will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

Joan filed her petition well after the reunification period, when "the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift in focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

We find no abuse of discretion. At the onset of this case, the court ordered a psychological evaluation of Joan "to assess [her] current level of functioning to . . . provide consistent and safe care for her children on an ongoing basis." The evaluation explains Joan was within the borderline range of intellectual ability with a noticeable neuropsychological delay, but those findings "cannot by themselves account for her adaptational difficulties. [] Rather, the limitations in her cognitive endowment are seriously compromised by personality characteristics that render her ineffective to deal with situations or people when concerted effort and determination on her part is required. She is a self-focused woman with limited understanding of developmental issues and also no awareness of her limitations. She does not experience a sense of estrangement from her behavior and tends to blame others for any adaptational failures."

The evaluator concluded Joan "is not likely to provide stability, safety and direction in taking care of her children. While she proclaims a great love for them, she will require another responsible adult to assume the role of the principle caretaker. . . . [] [Joan's] problems are chronic and well entrenched which, along with her lack of discomfort with her behavior, render them extremely resistant to intervention. Participation in parenting classes by itself is not likely to result in positive developments. Individual psychotherapy is not recommended, given her cognitive limitations and lack of motivation. Rather, strict supervision by another responsible adult appears to be necessary if reunification is considered an option."

Joan presented evidence she was attending therapy with a psychiatrist and a psychologist, complying with a medication regiment for her mental illness, and had completed a parenting class and successfully maintained housing for the previous year. In a July 2006 letter, Mental Health Systems, Inc., reported that Joan's case managers "both were in agreement that changing the living situation for [Joan's] children would disrupt their stability and cause a great deal of psychological trauma and adjustment problems to the children." The letter contained the following recommendation: "In light of [Joan's] good prognosis and the stability of [her] children's health and safety, it would be recommended that [the] children continue to live in their current foster home and continue to have weekend visitation with [Joan] in the best interest of the children and the mental health stability of [Joan]."

The letter, of course, does not support the return of R.M. and Nikki to Joan. Further, Joan presented no testimonial or documentary evidence from the professionals treating her or conducting the parenting class to show she had overcome the problems addressed in the 2001 psychological evaluation. Accordingly, she did not show either a change in circumstances or that a change in custody would be in the girls' best interests.

III

Beneficial Parent-Child Relationship

Additionally, Joan challenges the sufficiency of the evidence to support the court's finding that section 366.26, subdivision (c)(1)(A) is inapplicable. That exception to the adoption preference applies if termination of parental rights would be detrimental to the child because the " 'parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.' " (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent bears the burden of proving the exception applies. (Ibid.)

This court has interpreted the phrase "benefit from continuing the relationship" ( 366.26 (c)(1)(A)) to refer to a relationship 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)

The Agency agrees Joan regularly visited the girls until about six months before the section 366.26 hearing. In the Agency's September 27, 2006 report, the social worker noted R.M. and Nikki refused to visit Joan on August 11, stating they saw her at the last hearing in July "and they will call me to let me know when they would like to visit her again." The girls had not requested a further visit. A November 1 report states Nikki visited Joan on October 29, around the time of her birthday. Nikki appeared to enjoy the visit but at times seemed annoyed. R.M. had not wanted contact with Joan since July, and on October 23 she called Joan to say she would not attend the visit with Nikki.

At the section 366.26 hearing, the social worker advised the court that R.M. did not feel comfortable visiting Joan. She believed Nikki enjoyed visits with Joan, but "it's more of a peer relationship versus parent-child relationship. They enjoy playing and running together."

Even if Joan remained vigilant in pursing visitation, and the lack of visitation leading up to the section 366.26 hearing was beyond her control, the court properly denied her petition because she did not prove the termination of parental rights would be detrimental to R.M. or Nikki. The social worker noted that R.M. and Nikki were previously happy to see Joan for visits, but "after one hour the girls were eager to return home." A parent must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between parent and child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

By the time of the section 366.26 hearing R.M. appeared to have no attachment to Joan, as evidenced by her refusal to visit. While Nikki enjoyed one visit with Joan in the months before the hearing, there is no indication she was attached to Joan or that Joan fulfilled a parental role in her life. Accordingly, substantial evidence supports the court's ruling.^[6]

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

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^[1] Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Joseph was killed in another state in August 2006 when he fell from a moving car.

^[3] When removed from the home in November 2001, R.M. was eight years old and Nikki was four years old. We question why in June 2003 the Agency took the position the girls were not adoptable because of their ages, when in January 2005, when they were even older, it began recommending adoption.

^[4] All rule references are to the California Rules of Court.

^[5] "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specified exceptions. ( 366.26, subd. (c)(1).)

^[6] Joan also contends that because R.M. opposed adoption and she and Nikki were bonded siblings, the court's rulings that the child-objection and sibling relationship exceptions to adoption ( 366.26, subd. (c)(1)(A) & (E)) are inapplicable and unsupported by substantial evidence. The contentions are without merit given our conclusion the court's finding that R.M. knowingly and voluntarily agreed to adoption is supported by substantial evidence.