Filed 6/23/17 In re A.A. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
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In re A.A. et al., Persons Coming Under the Juvenile Court Law. C083521


SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

C.Q. et al.,

Defendants and Appellants.

(Super. Ct. Nos. JD230765, JD230766)




M.A. (mother) and C.Q., Sr. (father), parents of a minor daughter and son, appeal from the juvenile court’s order terminating their parental rights and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) Mother and father contend the juvenile court erred in determining that the beneficial parent-child relationship exception to adoption does not apply. (§ 366.26, subd. (c)(1)(B)(i).) We will affirm the juvenile court’s orders.
BACKGROUND
In June 2010, the Sacramento County Department of Health and Human Services (the Department) initiated dependency proceedings for the son, then 20 months old, and the daughter, then 3 years 11 months old. The petition alleged that the minors came within section 300, subdivisions (b), (d), and (j), because their home did not meet basic health and safety standards and because the daughter had been sexually abused by father. The minors were detained from their parents’ custody and the juvenile court subsequently sustained the petition as amended. The minors were committed to the Department for suitable placement and reunification services were ordered.
Over the next year, the Department provided reunification services to the parents while the minors were in out-of-home placement. At the 12-month review hearing, the minors were returned to the custody of their parents under court supervision. The minors remained in their parents’ home under court supervision until their dependency status was terminated in June 2013.
In December 2013, the Department initiated new dependency proceedings for the minors, then five and seven years old. The petition alleged that the minors came within section 300, subdivision (b), because their home did not meet basic health and safety standards and because their parents failed to provide adequate care and protection in that they allowed a friend to move into the family home who had been identified by Oregon’s child welfare department as a person at high risk to perpetrate sexual abuse against minor females. The minors were detained from their parents’ custody.
In January 2014, the juvenile court sustained the allegations in the petition, committed the minors to the Department for placement, and ordered reunification services.
At the six-month review hearing in June 2014, the juvenile court found that the parents had only made fair progress toward alleviating or mitigating the causes necessitating out-of-home placement. The minors were continued as dependents and remained in out-of-home placement under the supervision of the Department. The court continued reunification services and scheduled a 12-month review hearing.
At the 12-month review hearing in March 2015, the juvenile court again found that the parents had only made fair progress toward alleviating or mitigating the causes necessitating out-of-home placement. The minors were continued as dependents and remained in out-of-home placement under the supervision of the Department. The court continued reunification services and scheduled a permanency review hearing.
Prior to the permanency review hearing, the foster mother filed a de facto parent request for each minor. In support of her requests, the foster mother noted that the minors had lived with her from July 19, 2010 to the end of February 2011 and from August 2014 to June 16, 2015. On July 15, 2015, the juvenile court granted the foster mother’s requests.
At the permanency review hearing in August 2015, the minors were continued as dependents, reunification services were terminated, and a selection and implementation hearing was scheduled to determine the appropriate permanent plan for the minors.
The Department’s November 2015 selection and implementation report recommended termination of parental rights and adoption as the permanent plan for the minors, concluding that it would not be detrimental to terminate parental rights in order to allow the minors to have permanency through adoption. In support of the Department’s recommendations, the report noted that the minors’ foster parents had assumed a parental role on a daily basis since August 2014, fulfilled the children’s psychological needs for care and affection, and were committed to adoption. The report observed that although the parents had consistently visited the minors, the visits were “chaotic” most of the time. In addition, the foster parents reported that the son “displayed behaviors of concern” following the visits.
In December 2015, father filed two section 388 modification petitions seeking to undo the juvenile court’s order terminating reunification services. Alternatively, father requested that the minors be returned home. Father said he and mother had participated in individual therapy and codependency counseling following the termination of reunification services. He asserted therapy helped him manage his emotions and parenting abilities and counseling taught him he must learn to ask for help. Father argued it would be better for the minors to be returned home because they had enjoyed family visits since the termination of reunification services and had maintained a close bond with their parents. Father also argued he and mother had gained insight into the issues leading to removal and could provide a stable and loving environment for the minors.
In a written order, the juvenile court denied the petitions, finding that father failed to provide evidence demonstrating he or mother had successfully addressed the issues leading to the removal of the minors and the need for out-of-home placement. In addition to explaining why there had not been a change in circumstances, the juvenile court noted there was no evidence reunification services were in the best interests of the minors. The juvenile court explained that the visits were still supervised and the children were thriving during the reduction of contact with the parents. The juvenile court said while the children and parents enjoyed each other and their visits, the children were in need of a permanent home, and in light of the parents’ failure to benefit from the provision of services, at best the juvenile court would need to delay permanency to make further efforts at reunification, but that would not be in the best interests of the children who had been waiting years for a permanent home.
In December 2015, the Department prepared an addendum to the selection and implementation report. The addendum noted there had been some concerns with the interaction of the minors with their foster parents that could affect the foster parents passing an adoption homestudy, including allegations the foster father had threatened to harm the male child. In light of its concerns, the Department recommended parental rights not be terminated. Instead, the Department recommended long-term foster care with the goal of adoption by the foster parents. The report said a 10-day referral was opened to investigate the allegations of a threat of physical abuse.
At the original selection and implementation hearing in December 2015, the juvenile court did not terminate parental rights but continued the matter for a review hearing. The juvenile court identified the permanent plan for the children as adoption by the foster parents and ordered visitation for the parents. A review hearing was scheduled for June 2016.
The Department’s post-permanency review report recommended that parental rights be terminated and adoption be ordered as the permanent plan. In recommending that the case be moved back to adoption, the Department explained the foster father had completed the corrective action participation plan assigned to him and the foster parents were looking forward to completing the adoption homestudy process. The report said the foster parents had completed parent-child therapy, were willing to undergo any necessary training deemed appropriate by the Department, and demonstrated an understanding of basic child development principles, adding that the foster mother was actively engaged in the minors’ lives, the minors had formed a bond with their foster parents, and the foster parents provided the minors with a safe and loving living environment.
At the review hearing in June 2016, the juvenile court scheduled a selection and implementation hearing in October 2016. Prior to that hearing, the Department submitted a report recommending that parental rights be terminated and adoption be ordered as the permanent plan. In support of these recommendations, the report said the minors were adoptable and the foster parents had taken care of the minors for two years and were committed to adoption. The report observed that the foster parents had attended trainings, participated in the minors’ therapy, and taken steps toward the adoption process by beginning the adoption homestudy. The report also said the minors expressed a desire for their foster parents to adopt them. The daughter told the Department she likes living with her foster parents. She said they make her feel welcome and safe and her foster father spoils her and her brother. According to the report, although the parents had consistently visited the minors, the foster parents said the minors displayed negative behaviors in the home and at school around the time of the visits. The son’s teacher also noticed that the son had negative behavioral changes around the time of the visits. The foster parents said the son asked a few times whether he had to attend visits with his parents, and the daughter seemed to display some anxiety around the time of the visits.
In an addendum to the report, the Department said the son did not attend the October 2016 visit with his parents and might not attend the next scheduled visit, adding that the foster mother reported the son was afraid of his father and overheard father call his mother a “mother fucker” at the last visit. According to the foster mother, the son told his therapist he only attended visits to make his sister happy. The addendum explained that a social worker observed two of the visits, including the October 2016 visit, and reported that the parents appeared to be “overall appropriate” and engaged with the daughter during the visits. The social worker observed that the daughter appeared to be comfortable; she smiled at her parents, played a game with them, and referred to them as mommy and daddy. But the social worker said the daughter appeared to engage in attention-seeking behavior; she told her parents she punched another child at school. The addendum noted that the children did not have difficulty transitioning back to their foster parents after visits. They did not cry or show any emotion after the visits. In continuing to recommend adoption, the addendum explained, “Although the Department feels the parents love their children, the Department does not feel the bond between the children and the parents [is] significant enough to change the permanent plan of adoption. The [son] has displayed some hesitation in attending some of the visits with his mother and father. During the visit, the social worker observed what appeared to be friendly visitors playing with [the daughter] during the visit. The children have their day to day care and needs met by the caregivers whom they have been placed with since August 20, 2014.”
At the outset of the contested selection and implementation hearing in November 2016, mother objected to the termination of parental rights and adoption as the permanent plan. Mother claimed she would be presenting evidence regarding the beneficial parent-child relationship exception to adoption. The Department submitted on the reports.
Mother testified that she consistently visited the minors. She and father would play games with the minors during the visits, ask them about school, help them with their homework, and give them advice if they expressed concerns. Mother also described how she handled the minors if they misbehaved, explaining that she placed them in time outs, asked them to explain what they did wrong, and then had them apologize and give a hug before rejoining the group. Mother claimed that the minors were happy and upbeat during visits. According to mother, they expressed affection toward her, including giving hugs and kisses. Mother also claimed that she was involved with issues related to the health of the minors. She explained that she researched the medications prescribed to the minors and communicated with the medical professionals treating them. Mother said her relationship with the minors gave them comfort because it let them know there were people in addition to the foster parents who loved and supported them.
Father testified that he consistently visited the minors and that his son never expressed any reluctance to visit with him. Father said the son would run to him immediately to give him a hug and kiss and the minors would call him daddy or dad and did not want to leave at the end of visits. He claimed he had a strong bond with the minors but later conceded he did not get enough time with them to “form a good bond.” He said that for the last year and a half his visits with the minors were supervised and only took place once a month for two hours.
Following the presentation of evidence, the Department asked the juvenile court to adopt its recommendations, arguing there was clear and convincing evidence the minors were likely to be adopted and although the parents were bonded with the minors, adoption was the best option for the minors. Counsel for the minors agreed the minors were likely to be adopted and argued the beneficial parent-child relationship exception did not apply because the minors’ bond with their parents was not strong enough to overcome the benefits of adoption. Counsel noted the minors had indicated several times that they wanted to be adopted by their foster parents. The parents countered that the beneficial parent-child relationship applied because (1) they regularly visited the children, and (2) termination of parental rights would be detrimental because the children would lose their bond with the parents. The parents claimed loss of the parental bond outweighed the benefits of adoption.
The juvenile court found the minors were likely to be adopted, determined termination of parental rights was appropriate, and selected adoption as the permanent plan. The juvenile court noted the minors had resided in a foster home for a considerable amount of time and the foster parents assumed the role of parents and were committed to adoption, taking steps to ensure that the minors received appropriate services and that their behavioral issues were addressed. The juvenile court concluded there was insufficient evidence to support the determination that termination of parental rights would be detrimental to the minors. The juvenile court acknowledged that the parents had maintained regular visitation but concluded they failed to establish the minors would suffer so significantly that termination of parental rights was inappropriate. In reaching this conclusion, the juvenile court noted the minors wanted to be adopted by their foster parents and the son had declined to attend the last visit with his parents and expressed a desire not to attend future visits. The juvenile court added that the daughter was engaging in attention-seeking behavior. The juvenile court adopted the proposed findings and orders set forth in the Department’s October 2016 selection and implementation report.
DISCUSSION
The parents contend the juvenile court erred in terminating their parental rights because the beneficial parent-child relationship exception to adoption applies. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) “Section 366.26 provides that if parents have failed to reunify with an adoptable child, the juvenile court must terminate their parental rights and select adoption as the permanent plan for the child. The juvenile court may choose a different permanent plan only if it ‘finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child [because]: [¶] (i) The 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).)” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) “ ‘Adoption, where possible, is the permanent plan preferred by the Legislature.’ ” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) “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.)
“When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
A parent seeking to overcome the statutory preference for adoption “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. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 466, original italics.) “Evidence that a parent has maintained ‘ “frequent and loving contact” is not sufficient to establish the existence of a beneficial parental relationship.’ [Citation.]” (In re Marcelo B., supra, 209 Cal.App.4th at p. 643.) “Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W., supra, 73 Cal.App.4th at p. 827.)
The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
“On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “ ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge.’ ” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
We conclude the trial court did not err in terminating parental rights and selecting adoption as the permanent plan. No extraordinary circumstances exist to preclude adoption. While the record indicates the parents regularly visited the minors, the parents failed to show that severing the parent-child relationship would deprive the minors of a substantial, positive emotional attachment such that they would be greatly harmed. The record reflects that the minors, ages 8 and 10 at the time of the November 2016 selection and implementation hearing, had lived with their foster parents for over two years during the current dependency proceeding and had lived with the foster parents for more than six months during the prior dependency proceeding. There is evidence the foster parents assumed the role of parents to the minors since August 2014, fulfilled the minors’ daily needs, including their psychological need for care and affection, provided a safe and loving living environment, attended training to assist the minors with their behavior, participated in the minors’ therapy, and were committed to adoption. There is also evidence the minors expressed a preference for adoption by the foster parents.
While some evidence was presented of the bond between the minors and their parents, there was no evidence the parents occupied a parental role. Nor did the parents, who had not had a caretaker role in over two years and only visited with the minors once a month for two hours, present evidence showing the children would suffer detriment if parental rights were terminated. The evidence did not show a strong positive emotional attachment between the minors and their parents. There was evidence that some of the visits between the minors and their parents were chaotic and that the minors displayed negative behavior around the time of the visits. There was also evidence that the daughter seemed to display anxiety around the time of visits, the son was afraid of his father, and the son did not want to attend visits and only did so to make his sister happy. The evidence also showed that the minors did not have difficulty transitioning back to the care of their foster parents after visits. They did not cry or show any difficulty when leaving from visits.
The juvenile court’s ruling was supported by substantial evidence. The juvenile court did not err in finding the parents had not proven the beneficial parent-child relationship exception applies.
DISPOSITION
The orders of the juvenile court are affirmed.




/S/
MAURO, J.



We concur:



/S/
RAYE, P. J.



/S/
RENNER, J.