In re I.H.

Filed 8/30/06 In re I.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

APPEALS from judgments of the Superior Court of San Diego County, Gary Bubis, Juvenile Court Referee. Affirmed.

M.H. (Mother), the mother of I.H. and Anthony R., Jr. (Anthony), and Anthony R., Sr. (Father), the father of Anthony, appeal the judgments terminating their parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Each parent contends the juvenile court erred by not applying the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) and should have ordered a permanent plan of legal guardianship or long-term foster care.

FACTUAL AND PROCEDURAL BACKGROUND

On January 7, 2005, Anthony, then three weeks old, was taken to Children's Hospital with seizures. The hospital placed a hold on Anthony because his parents did not provide an explanation consistent with his injuries. Father said he was holding Anthony over the kitchen counter while making baby formula and Anthony's head hit the counter when Father moved his hand.

Doctors concluded Anthony's injuries--a skull fracture, multiple hematomas, extensive intracranial hemorrhaging, retinal hemorrhaging and bruising on his buttocks--were nonaccidental. Anthony had a decreased level of consciousness, high brain pressure and seizures; he was placed on life support. Doctors inserted an intracranial bolt into Anthony's skull to relieve the pressure in his brain.

Because of the extent of Anthony's injuries and the parents' inconsistent explanations of how he sustained his injuries, the San Diego County Health and Human Services Agency (Agency) took three-year-old I.H. into protective custody and detained him with his maternal grandparents.

On January 12, 2005, Agency filed a dependency petition on behalf of Anthony, alleging he was a child under the age of five and had suffered severe physical abuse by a parent, who knew or reasonably should have known that he was physically abusing the child. (§ 300, subd. (e).) Agency also filed a dependency petition on behalf of I.H., alleging he was at substantial risk of harm because his half-sibling suffered severe physical abuse by his parent. (§ 300, subd. (j).)

On January 18, 2005, Mother. told the social worker that she had questioned Father about how Anthony was injured. Father replied that he did not want to say anything because he feared losing Mother and Anthony. Father told Mother that he became frustrated when Anthony would not stop crying and he dropped the baby on the living room floor. However, the police believed Father had slammed Anthony into a coffee table.

Anthony spent two weeks in the intensive care unit and four days in the hospital's rehabilitation unit before he was released. Anthony's doctors concluded he suffered severe brain damage and would probably have serious developmental delays. Anthony was also detained in the maternal grandparents' home.

Agency recommended that Mother receive six months of reunification services and Father not receive services. Agency also recommended that Father have no contact with either I.H. or Anthony.

On February 1, 2005, police arrested Father for felony child abuse. Two days later, the court suspended visitation between Anthony and Father while Father was in custody.

On March 1, 2005, I.H. was moved to the home of the maternal aunt because the grandparents found it too difficult to have two young children in their home and believed I.H. would do better if placed with his cousins.

On March 14, 2005, Mother submitted to the allegations of the petitions. Father pleaded nolo contendere to Anthony's petition. The court sustained both petitions, finding the allegations to be true by clear and convincing evidence. The court declared Anthony a dependent child, removed him from parental custody, and ordered Mother to comply with her case plan, which required her to undergo a psychological evaluation, participate in individual therapy, and complete a parenting class. Pursuant to section 361.5, subdivision (b)(5), the court ordered no reunification services be provided to Father. The court continued I.H.'s dispositional hearing to give notice to his biological father, who lived in Texas and whose whereabouts had recently become known to Agency.

On April 1, 2005, I.H.'s dispositional hearing was held; the court declared him a dependent child, removed him from Mother's custody and ordered her to comply with her case plan. The court also authorized services, including a visitation schedule and parenting classes, to I.H.'s biological father.

At first, Mother actively worked on her reunification services, participating in individual therapy and a parenting class for the deaf.^[2] She completed a psychological evaluation at the end of May 2005 after missing two appointments, one because she visited Father in jail instead. Mother also missed two therapy appointments in May, opting to visit Father in jail.

Mother became homeless in July 2005. In August she told the social worker she was sleeping in her car. Father was released from custody on August 22. On September 1, Mother and Father were living together in an apartment. Stacy Gainok, Mother's therapist, reported she "has not shown any desire or inclination to terminate her relationship with [Father] . . . ." Gainok also said, "In my professional opinion, it is clear [Mother] cares about her two children, but her desire to remain with [Father] is greater."

Mother disagreed with Agency's recommendation that Father have no contact with Anthony. She told the social worker: "[W]hat happened was only a one time thing, [Father] won't do it again." The social worker reported that Mother continued to minimize the seriousness of the situation.

Mother visited I.H. on Tuesdays and Sundays at the maternal aunt's home. The aunt reported Mother played with I.H. for part of the visits and spent time lying around and having to be reminded to clean up after herself and I.H. Mother visited Anthony at the maternal grandparents' home, often arriving early in the morning and staying for most of the day to help with diaper changes and feedings. However, the grandmother reported that after spending an intensive hour playing with the child, Mother would focus on other things. Mother did not display a nurturing maternal behavior.

On September 12, 2005, Mother told the social worker she had decided to continue her relationship with father, and knew it would negatively affect reunification with I.H. and Anthony.

At the six-month review hearing on October 18, 2005, the court terminated Mother's reunification services for both children. The court ordered Father to have no contact with I.H. and supervised visits with Anthony at the Family Visitation Center. The court set a section 366.26 hearing for I.H. and Anthony.

On December 7, 2005, Anthony was moved to a licensed foster home; the maternal grandparents could no longer care for him because of their health problems. Agency initiated an Interstate Compact on the Placement of Children (ICPC) evaluation for relatives in Illinois who were willing to adopt Anthony. I.H.'s aunt, with whom he had been residing since March 1, was willing to adopt him or be appointed his guardian.

In its adoption assessment, Agency assessed I.H. and Anthony as adoptable because of their young age, ethnicity, and good behavior. In addition to the relatives willing to adopt, Agency identified 37 families willing to adopt a child with Anthony's characteristics, 29 families willing to adopt a child with I.H.'s characteristics, and 12 families willing to adopt both children.

The social worker observed three visits between Mother and I.H. On January 29, 2005, Mother initially watched I.H. playing. She did not greet him with a hug. After playing ball with I.H., Mother held her arms out to him and they hugged. I.H. addressed her as "mama." Mother ate lunch with I.H. and took him to the bathroom. She was responsive to I.H's need when they were able to communicate by pointing, gesturing and the limited sign language I.H. knew. Mother hugged I.H. before the visit ended. I.H. departed without crying or other signs of separation anxiety.

On March 2, 2005, I.H. was happy to see Mother and smiled. They played together and interacted well. I.H. enjoyed the visit and did not want to return to daycare; he wanted to continue playing with Mother. On March 21, I.H. was happy to see Mother and smiled. After eating a snack that Mother brought, he went outside to play and she followed him. They played together. At the end of the visit, I.H. said, " 'let's do this every day.' "

The social worker observed four visits Mother and Father had with Anthony. In a December 2005 visit, Father held Anthony for most of the visit. Father was gentle and invited Anthony to play with toys. Father placed Anthony on the floor and watched him play. After 35 minutes, Mother offered Anthony a snack and checked his diaper. Anthony kicked and screamed while Mother unsuccessfully attempted to change his diaper. Mother moved Anthony from the changing table to the floor, and Father put on a new diaper. Father also fed Anthony a bottle while sitting on the floor with Mother at his side. Anthony did not smile during the visit. Anthony had eye contact with Mother, but did not reach out to be held by her.

At a January 2006 visit, Anthony initially cried when Father held him, but then settled down and eventually fell asleep in Father's arms. Mother held Anthony for 10 minutes and then placed him on the couch with a pillow. When Anthony began to wake up, Mother shook a rattle and reached down to pick him up. Anthony reached out for Father to hold him instead. Anthony laid his head on Father's shoulder as Father rubbed his back. Anthony went back to sleep.

On March 2, 2006, Anthony reached for Father to pick him up, but cried when Father held him. Anthony looked at his caregiver and cried when she left. When Mother tried to comfort Anthony by giving him a bottle, Anthony refused. Throughout the visit, Anthony rebuffed efforts by Mother to socialize with him and change his diapers; Anthony went to Father instead. On March 16, Anthony cried when transferred from the caregiver to Father, but calmed after entering the visitation room. When Father went to the bathroom, he gave Anthony to Mother to hold. Anthony cried and looked away from her, keeping his eyes on Father. Later, Mother was able to calm Anthony; she fed Anthony and changed his diapers.

On March 18, 2006, psychologist Raymond Murphy conducted a bonding study between Mother and I.H. at the home of the maternal aunt. Murphy noted that Mother was involved with I.H. throughout his two-hour observation. She was caring and affectionate, and I.H. responded well. Both Mother and I.H. initiated physical contact with each other, which Murphy opined was important considering the communication problems presented by Mother being deaf. At the end of the visit, I.H. said, " 'I don't want my mom to go.' " I.H. held onto her hand and wrapped his arms around her leg. Mother needed the aunt's assistance to physically separate herself from I.H. After Mother left, I.H. began to cry. Murphy concluded:

"This observation offered clear evidence of a significant attachment for [I.H.] and [Mother]. His expressive emotions regarding his relationship with his mother is certainly of significant concern, and indicates that this young man has a mixed attachment with considerable anxiety over his relationship with his mother. Continued separation or termination of the relationship will certainly result in considerable emotional disruption for [I.H.] and his general functioning."

On March 23, 2006, the day of the contested section 366.26 hearing, Father made an oral section 388 motion, seeking custody of Anthony. As changed circumstances, Father alleged he was participating in domestic violence treatment and parenting groups, and had enrolled in them on his own. The court denied the motion without a hearing, finding Father had not made a prima facie showing. The court then proceeded with the section 366.26 hearing.

Social worker Linda Johanesen testified that Mother had not visited Anthony on a consistent basis. Anthony preferred to be held by Father rather than Mother; Father was gentler and more nurturing than Mother. Johanesen testified that neither Mother nor Father had spent enough time with Anthony, who had been removed from their home when he was three weeks old, to have established a parent-child relationship.

Based on her observations, Johanesen disagreed with Murphy's opinion that I.H. exhibited separation anxiety at the end of visits with Mother. Johanesen also testified that Mother "doesn't display the physical affection that I would normally expect a mother to display to the child. In the visits [I have] seen there is minimal touching, minimal holding." Johanesen described the relationship between Mother and I.H. as "reciprocal but not parental" because although I.H. enjoyed playing with her, he did not look to her to meet his daily needs. Johanesen stated that Mother had more of a relationship with I.H. than with Anthony because I.H. had lived with her for three years. Nonetheless, the social worker stated the relationship between Mother and both of her children was more like an "extended family member, rather than a primary parent-child relationship." Another factor supporting Johanesen's recommendation for adoption was her opinion that Mother placed her own needs above those of her children.

Murphy testified that I.H. and Mother shared a strong primary parent attachment. Murphy testified that I.H. would suffer "some degree of disruption emotionally" if he were to lose all contact with Mother. Murphy said I.H. had both "positive and negative" emotions toward Mother, which was "not a stable, secure attachment." Murphy testified I.H. was "ambivalent" about his relationship with Mother, something that often results because of "separations that children experience with attachment figures." Murphy conceded it was important for I.H. to maintain "a relatively stable attachment figure that he can predict the future and have stable emotional contact with."

The maternal grandfather testified that Mother visited Anthony regularly during the 10 months the child lived in the grandparents' home. After Anthony was placed in foster care, the grandfather and Mother would visit him. The grandfather said Anthony did not react adversely when Mother left the visits, but Anthony would go "ballistic" when the grandparents left the visits. The grandfather explained he and his wife had raised Anthony for the first year of his life, and "as far as he knew we were his parent[s]."

The aunt testified that I.H. became upset when his visits with Mother ended and he tried to stop her from leaving. The aunt was willing to adopt I.H. or be appointed his guardian; she wanted to assume the role that would be in I.H.'s bests interests.

Mother testified that she loved both I.H. and Anthony and believed they were attached to her. She visited each once or twice a week. She played with Anthony, fed him and changed his diaper. When she visited I.H., he would run up to her and give her a hug. I.H. told her when he was hungry or had to use the bathroom.

Father testified that for the previous four or five months, he had visited Anthony every week. When Father held Anthony, he made sure the baby felt comfortable with him. Father played with Anthony, changed his diaper, and fed him. Anthony came to Father easily and touched him and hugged him.

The court found by clear and convincing evidence that it was likely I.H. and Anthony would be adopted within a reasonable time and none of the statutory exceptions to termination of parental rights (§ 366.26, subd. (c)) applied. The court terminated parental rights and identified adoption as the permanent plan for I.H. and Anthony.

DISCUSSION

I. The Beneficial Parent-child Relationship Exception

Mother contends the juvenile court erred by not applying the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) with respect to her and the two children.^[3] Father contends the court erred by not applying section 366.26, subdivision (c)(1)(A) to him and Anthony.^[4]

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination 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." The exception applies only if both prongs are met.

The record contains evidence that Mother visited both children regularly and Father visited Anthony regularly. At issue, therefore, is whether Mother had a beneficial parent-child relationship with I.H. and Anthony, and whether Father had such a relationship with Anthony, within the meaning of section 366.26, subdivision (c)(1)(A).

To establish such a relationship, a parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection, and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at pp. 575-576.)

Further, the parent must show the benefit arises from a parental relationship rather than a caretaker, friendly visitor, or friendly nonparent relative relationship. (See In re Jason E. (1997) 53 Cal.App.4th 1540, 1548; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)

Substantial evidence supported the court's finding that neither Mother nor Father had established the parent-child beneficial relationship exception to termination of parental rights applied with respect to Anthony.

When he was three weeks old, Anthony was severely injured; he had not lived with his parents since then. Anthony spent the next two and one-half weeks in the hospital and then lived with the maternal grandparents for 11 months before another placement became necessary because the grandparents' health problems prevented them from taking care of him. Anthony hardly knew Mother and showed little interest in her. Anthony displayed more interest in Father even though he did not start visiting Anthony until after Father was released from custody. When left alone with Mother and Father, Anthony sought out Father and largely ignored Mother. Although Anthony was easily comforted by Father, whose approach was gentle and soothing, they did not have not have a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Rather, the maternal grandparents, not Father, assumed the parental role for Anthony by providing him with a safe, stable and nurturing home. Anthony depended on the grandparents--and later the foster parents--for his basic necessities of life and to give him the love and support a baby needs during his first year of life. It followed that Anthony was bonded to the grandparents. As the grandfather testified, Anthony went "ballistic" when the grandparents left after bringing him to a visit with his parents. Anthony had no problems separating from Father and Mother.

Relying on In re Casey D., supra, 70 Cal.App.4th at page 51, Father argues that daily contact is not required to establish a beneficial parent-child relationship. Father claims he developed such a relationship during his weekly visits with Anthony over a five-month period. Father points to the social worker's testimony that he was appropriate, caring, and nurturing during visits with Anthony. The social worker also testified that Father played with Anthony, brought toys for him, changed his diapers, fed him, caressed him and calmed him when he became upset.

However, in In re Casey D., supra, 70 Cal.App.4th at page 51, this court was responding to a parent's claim that it was unfair to require a parent to establish the section 366.26, subdivision (c)(1)(A) relationship based on day-to-day care and interaction. We noted the statute did not mandate day-to-day contact. We further observed that daily contact is typical of a beneficial parent-child relationship because it enables a parent and child to interact, fosters companionship, and leads to shared experiences. (Ibid.) "A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Ibid.) "That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation." (Ibid.) This case presents that "situation" as well. Over five months, Father was a friendly visitor to Anthony, but he had not assumed a parental role. (See In re Jason E., supra, 53 Cal.App.4th at p. 1548.)

The case of In re Brandon C., supra, 71 Cal.App.4th 1530 is unhelpful to Father because it was in a different posture than this case. In that case, the juvenile court found the beneficial relationship exception did apply, and the Court of Appeal declined to reweigh the evidence, holding there was substantial evidence to support the finding. (Id. at pp. 1537-1538.) Here, the juvenile court found the beneficial relationship did not apply. We, too, decline to reweigh the evidence and hold substantial evidence supports the court's finding that with respect to Anthony the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply.

Substantial evidence also supports the court's finding that Mother had not established that section 366.26, subdivision (c)(1)(A) applied to I.H. Although Mother had a positive and loving relationship with I.H., it was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). We note there was conflicting evidence concerning a bond between I.H. and Mother. Murphy, who conducted a bonding study, opined that I.H and Mother shared a strong primary parent attachment. The social worker disagreed with Murphy's opinion. It is the trial court's role to resolve conflicts in the evidence; we do not reweigh the evidence. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Even though I.H. had spent the bulk of his life living with Mother, there was ample evidence that during the year he lived with his maternal aunt, I.H. had bonded with the aunt and viewed her as his primary caregiver. The bond between I.H. and the aunt resulted because she assumed the role of parent. The aunt was the one who took I.H. to doctor appointments, fed him, bathed him, clothed him, and tucked him into bed every night. I.H. depended on the aunt for the basic necessities of life and to give him the love and support a young child needs.

Moreover, Mother's decision to continue her relationship with Father suggested she valued her own needs over her children's needs, which raises a protective issue and is also the antithesis of a healthy parent-child relationship. In balancing "the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new [adoptive] family would confer," the juvenile court could reasonably conclude termination of Mother's legal relationship with I.H. would not be detrimental to him. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Further, Mother did not meet her burden of showing the benefits of continuing her relationship with I.H. outweighed the well-being he would gain in a permanent adoptive home. It is true that I.H. very much enjoyed his visits with Mother; however, the visits were basically playtime for I.H. Although Mother also fed I.H., helped him go to the bathroom, and taught him various things during the visits, she no longer played a parental role in his life; she had become a friendly visitor. Even Murphy conceded it was important for I.H. to maintain "a relatively stable attachment figure," with whom he can have "a stable emotional contact," and not be anxious about his future. Murphy also stated that I.H. had a "mixed attachment with considerable anxiety over his relationship with [Mother]." Further, Murphy testified that I.H. was ambivalent about his relationship with Mother and displayed "positive and negative emotions" toward her, a sign of an unstable and insecure attachment with her.

Mother relies on In re Amber M. (2002) 103 Cal.App.4th 681 and In re Jerome D. (2000) 84 Cal.App.4th 1200. In In re Amber M., we determined insufficient evidence supported the court's finding that the section 366.26, subdivision (c)(1)(A) exception did not apply because three experts (the psychologist who conducted a bonding study, one child's therapist, and the court-appointed special advocate) believed the mother and the children had a primary beneficial relationship that "clearly outweigh[ed]" the benefit of adoption. (In re Amber M., at pp. 690-691.) Additionally, the social worker, who was "the only dissenting voice among the experts," had done a "perfunctory evaluation" of the mother's relationship with the children. (Id. at p. 690.) We also were concerned that the section 366.26 hearing occurred in 10 sessions over a period of several months. (Amber M., at p. 691.) Here, however, Murphy was the only expert who believed that I.H. and Mother shared a primary parental attachment. His opinion was equivocal. For example, Murphy said I.H. displayed "positive and negative" emotions toward Mother, and this ambivalence was a sign of an unstable and insecure attachment. We do not discern any perfunctory performance by the social worker of her duties. Further, all the evidence in the section 366.26 hearing was presented in one session.

In In re Jerome D., supra, 84 Cal.App.4th at page 1209, we reversed the judgment terminating parental rights because insufficient evidence supported the finding of adoptability, and we concluded the child would benefit from continuing a relationship with his mother. This case is distinguishable from In re Jerome D., in which the eight-year-old child was unlikely to be adopted, the mother was having unsupervised overnight visits with him in her home, there was expert evidence that the two shared a strong and well-developed parent-child relationship, and the boy, who had lived with the mother for the first six years of his life, wanted to live with her again. (Id. at pp. 1205-1207.) In contrast, there was no dispute that four-year-old I.H. and 15-month-old Anthony were likely to be adopted, the parents' visitation remained supervised, and although the children, especially Anthony, were too young to understand the proceedings and voice a preference, both viewed their caregivers as their primary parental figures.

II. Selection of Adoption as Permanent Plan

Rather Than Guardianship or Long-term Foster Care

Mother, joined by Father, contends that given the circumstances of the case (I.H. was placed with his aunt and Agency was finalizing plans to place Anthony with relatives in Illinois), the court should have ordered a permanent plan of legal guardianship or long-term foster care rather than adoption because it was in the best interests of I.H. and Anthony to remain within their family and preserve their biological ties.

The statutory mandate is that once the court finds by clear and convincing evidence that it is likely the minor will be adopted, the court must terminate parental rights unless one of five specified exceptions applies. (§ 366.26, subd. (c)(1)(A)-(E).) In In re Zeth S. (2003) 31 Cal.4th 396, 410, our Supreme Court observed: "The Legislature . . . has determined that what is in the child's best interests is best realized through implementation of the procedures, presumptions, and timelines written into the dependency statutes." When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Legal guardianship is not considered by the juvenile court unless and until adoption has been rejected. (In re Cody W. (1994) 31 Cal.App.4th 221, 230-231.)

To the extent that Mother and Father are advocating a generalized "best interests" exception to termination of parental rights, there is no generalized "best interests" exception under section 366.26, subdivision (c)(1). (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164-1165; see also In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.)

DISPOSITION

The judgments are affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Mother and Father are deaf.

^[3] Father joins in Mother's contention concerning the existence of a beneficial parent-child relationship between her and Anthony. (Cal. Rules of Court, rule 13(a)(5).)

^[4] Mother joins in Father's contention that he had a beneficial parent-child relationship with Anthony. (Cal. Rules of Court, Rule 13(a)(5).)