Filed 5/17/17 In re M.W. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
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In re M.W. et al., Persons Coming Under the Juvenile Court Law. C083276


PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

C.R.,

Defendant and Appellant.

(Super. Ct. Nos. 53004207, 53004208)




C.R. (mother) appeals from the juvenile court’s order terminating parental rights for her two children, M.W. and B.W. (the minors). (Welf. & Inst. Code, § 366.26.) She contends the juvenile court erred in failing to find the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) Disagreeing, we will affirm.
BACKGROUND
In November 2014, mother was incarcerated in county jail on drug-related charges and the minors (then ages four and two) had been living with father for one year. When father was arrested on drug-related charges, the minors were detained and placed with a maternal aunt and uncle. Methamphetamine and drug paraphernalia were found in the house in areas accessible to the minors. The Placer County Department of Health and Human Services (Department) filed a section 300 petition on behalf of the minors, alleging failure to protect and no provision for support. (§ 300, subds. (b) & (g).)
In December 2014, the juvenile court authorized visits for mother, supervised by a relative. In May 2015, the juvenile court authorized contact visits for mother pursuant to jail protocol and policy. In June 2015, the juvenile court sustained the section 300, subdivision (g) allegation against mother, who was still incarcerated, and dismissed the section 300, subdivision (g) allegation against father because he had been released from jail. In addition, the juvenile court sustained the petition as to section 300, subdivision (b). Father waived reunification services. Services and visitation were ordered for mother.
In August 2015, mother remained incarcerated and awaited sentencing. The Department filed a memorandum informing the court that mother was engaged in individual therapy, was attending an addiction group and was reading a parenting book. Mother’s therapist reported she was showing “great progress and ability to change.” The maternal uncle reported he took the minors to visit mother at least twice monthly with “no issues.” In September 2015, the juvenile court ordered visitation and services to continue for mother.
In November 2015, the Department filed a report stating the minors had incorporated well into the maternal aunt and uncle’s family. The maternal uncle’s supervision and direction were appropriate and the minors responded well. Their household was clean and orderly and the environment was “healthy.” In addition, the minors benefitted from living with their older cousins, who are “role models for behavior and skill development.” Although the Department representative was unable to observe visits with mother, who was still incarcerated, the maternal uncle reported the minors visited mother “on a fairly regular basis.” However, jail rules limited the visits to only 20 to 30 minutes each time. The Department representative tried to talk to the minors about their visits with mother but indicated “they don’t have anything to say.”
The December 2015 status review report recommended terminating services for mother and scheduling a section 366.26 hearing. Mother remained incarcerated in Nevada County jail awaiting sentencing in her criminal case. According to the maternal aunt, the minors visited mother at least twice a month, with the visits “appear[ing] to go well.” Although mother had “done well” on her services plan, including participating in therapy and a 12-step program, she was unable to demonstrate certain behaviors due to her incarceration, such as drug testing upon release from incarceration. Given that the earliest mother would be released was February 2016, there was no real possibility mother could complete the plan by the January 2016 reunification deadline. (§ 366.21, subds. (e)(3) & (f); Cal. Rules of Court, rule 5.715(a).) While the minors had a good relationship with their parents, they were also “bonded” and had a “strong relationship” with the maternal aunt and uncle and their family. These findings and recommendations were repeated in the January 2016 status review report, with mother still incarcerated and the minors still visiting at least twice a month.
During the combined six- and 12-month reviews in January 2016, counsel for the Department informed the juvenile court that mother was likely to be sentenced in February 2016, with the earliest possible release date in May 2016. Per the parties’ agreement, the juvenile court ordered continued services for mother until the 18-month review, scheduled for May 2016. The juvenile court found that mother’s progress in alleviating the causes necessitating placement had been “fair.”
The May 2016 status review report recommended terminating services for mother and calendaring a section 366.26 hearing. B.W. “appeared much brighter and active” than before, and appeared to “have a strong secure attachment” with the maternal aunt and uncle. She was also “well connected to her cousins.” M.W. had “a strong relationship” with the maternal aunt and uncle and was “connected” with the extended family. Mother remained incarcerated, still awaiting sentencing and unable to complete her services plan, although she visited with the minors at least twice a month. Father was also incarcerated on drug-related charges.
A follow-up report dated April 26, 2016 indicated mother had been sentenced to an additional 22 months beyond time already served. Mother would be transferred to a different facility and visits might become more difficult, depending on the location. The report concluded family reunification was not an option due to the parents’ incarceration, and recommended a permanent plan of guardianship or adoption by the maternal aunt and uncle.
At the 18-month review hearing in May 2016, the juvenile court was unable to contact mother and the hearing proceeded without her. Mother’s counsel informed the court that mother’s sentence was actually 13 months but acknowledged that was still “longer than we can go.” In addition, he had spoken to mother about the different options for the permanent plan and understood the recommendation was going to be guardianship, rather than adoption. Mother supported guardianship and “would not be opposed to the termination of services today.” The juvenile court terminated services for mother and set a section 366.26 hearing for August 2016. The court also issued an order to produce mother for the hearing.
The Department’s 366.26 report recommended a permanent plan of adoption. The report noted the minors were placed with the maternal aunt and uncle, who wanted to “keep the minors in the family and provide them with stability, love[,] and security.” The minors felt “safe, comfortable, and secure” in the home. M.W. gave a “thumbs-up” when asked if he wanted to continue living with his maternal aunt and uncle. The maternal aunt and uncle understood the differences between guardianship and adoption and preferred adoption, given the minors’ young ages.
The report noted that, for the past two and a half years, the minors’ only contact with mother was their twice monthly visits and periodic phone calls from jail. This contact stopped in May 2016 when mother was moved to a different facility. She was able to resume calling the minors in July 2016, but visits were still not possible because the only family member who had been approved as a visitor was the maternal grandmother. The report acknowledged that mother “may love and care about her children” but her “poor choices” had prevented her from being with them or providing a home for them. Mother “has not acted in a parental role to them for a very long time” and the minors had “learned to rely on” other caregivers for their daily needs. In addition, it would not be detrimental to terminate mother’s parental rights because the maternal aunt and uncle have stated mother can continue to visit and be a part of the minors’ lives.
During the section 366.26 hearing in September 2016, mother testified she had been incarcerated 34 months for conspiracy to distribute methamphetamine. She had been attending parenting classes and addiction services and had been sober for six years. Although her “worst case scenario” release date from prison was in July 2017, she hoped to be released to a halfway house by October 2016. She hoped to spend six to eight weeks at the halfway house and then be released. After her release, she planned to live with the maternal grandmother and had a potential job opportunity.
Mother also testified that, since being incarcerated, she had visited with the minors weekly (when possible) when the minors were with father, and twice a month once the minors were placed with the maternal aunt and uncle. Since being transferred to two different facilities in May 2016, mother had seen the minors one time on a video visit and one time in person. She also talked with them on the telephone at least twice a week after they were placed with the maternal aunt and uncle. Mother testified that during her visits with the minors, they would run up when they first saw her, hug her, and “get really happy. . . .” She said they would tell her they love her and they would talk about school, home life and everything. She described her relationship with the minors as close and testified the minors knew her as their mother and said they wished she could come home. She loved her kids and wanted to raise them. Because she would be released within two months, she asked the court to start services again.
Counsel for the Department argued in favor of adoption as the permanent plan. He argued the children were likely to be adopted and the beneficial parental relationship exception did not apply because even though mother had visited regularly with the minors, she had not acted in a parental role with them for three years. Mother’s counsel stated mother’s position was to ask the court not to terminate her parental rights and argued the court should consider mother’s impending release from prison and participation in services and visits. While mother’s counsel was making her argument, the prison required mother to get off the phone, but mother’s counsel agreed the court could proceed. The minors’ counsel argued the court should terminate parental rights because, even though mother maintained consistent contact with the minors, the nature of her relationship was that of a “friendly loving visitor,” not a parent.
The matter was submitted and the juvenile court issued a written decision, finding clear and convincing evidence that the minors would be adopted. The juvenile court terminated the parental rights of mother and father and ordered adoption as the permanent plan. It did not find that the beneficial parental relationship exception applied.
DISCUSSION
Mother contends the juvenile court erred by failing to find that a beneficial parental relationship existed and that it constituted an exception to adoption as a permanent plan. According to mother, she maintained regular contact with the minors via twice-monthly visits and twice-weekly telephone calls. She adds that the minors would benefit from continuing the relationship because she loved and cared for them and had a very close relationship with them. She notes the minors knew her as mother and had regular contact with her.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(2); Evid. Code, § 500.)
Termination of parental rights may be detrimental to the minor when “[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)(B)(i).) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) We review with deference a juvenile court’s rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)
To prove that the beneficial parental relationship exception applies, “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.) Moreover, it is not enough simply to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “[T]he 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, italics omitted.)
Here, mother can show neither a substantial attachment nor great harm. Although mother visited regularly with the minors and the visits went well, she failed to show the minors had a significant, positive, emotional attachment to her that would outweigh the well-being the minors would gain in a permanent home with adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) Both minors were adjusting well in their new home and felt safe, comfortable, and secure. Although the minors knew mother as mother, they had learned to rely on the maternal aunt and uncle for their needs and had a strong relationship with them. Both minors had bonded with the maternal aunt and uncle, and M.W. gave a thumbs-up when asked if he wanted to continue living with them. Due to mother’s incarceration, they had not lived with mother for 34 months, i.e., since they were one and three years old. The trial court did not err in its implicit finding that the beneficial parental relationship exception did not apply in this case.
DISPOSITION
The orders of the juvenile court are affirmed.



/S/
MAURO, Acting P. J.



We concur:



/S/
HOCH, J.



/S/
RENNER, J.