Filed 8/11/17 In re M.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
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In re M.F et al., Persons Coming Under the Juvenile Court Law. C083827


SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

H.G.,

Defendant and Appellant.

(Super. Ct. No. STKJVDP20140000017, J06660)



Harold G., father of minors M.F. and S.F., appeals from the juvenile court’s order terminating his parental rights and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) He contends 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 affirm the juvenile court’s order.
I. BACKGROUND
On January 20, 2014, the San Joaquin County Human Services Agency (Agency) received a report that S.F.’s mother tested positive for amphetamines at the time S.F. was born. Two days later, a juvenile dependency petition was filed, alleging that M.F., then 22 months old, and S.F., newborn, came within section 300 for various reasons, including, but not limited to, the following: mother tested positive for amphetamines at the time S.F. was born; mother admitted to using methamphetamine while pregnant with S.F.; mother did not receive prenatal care while pregnant with S.F.; mother and father have a history of drug use, including using drugs in the presence of their children; mother and father associate with other drug users; mother and father did not have stable housing; and father has an extensive criminal history involving violent and drug-related crimes.
At the detention hearing, the juvenile court ordered the minors detained and mother submitted to jurisdiction. Father subsequently appeared and was declared the presumed father of the minors. Following minor amendments to the juvenile dependency petition, father submitted to jurisdiction and the juvenile court scheduled a disposition hearing.
The Agency’s disposition report recommended the minors be adjudged dependent children of the court and committed to the care, custody, and control of the Agency for appropriate placement. The report also recommended reunification services for mother and father. In support of these recommendations, the report noted that the minors were removed from the custody of their parents due to, among other things, the parents’ ongoing substance abuse issues and father’s criminal record and related associations. The report explained that father was participating in an intensive outpatient drug treatment program, had been cooperative and compliant with the social worker, had been clean and sober for 30 days, and had made adequate progress toward alleviating or mitigating the causes necessitating placement of the minors outside the family home. The report also noted that father was required to serve a 30-day sentence for his failure to comply with an alternative work program, and that father and mother were visiting the minors once a week.
The six-month status review report recommended continuing out-of-home placement and reunification services. The report indicated that father and mother had obtained housing, continued to maintain their respective sobriety, had a strong desire to be together, were committed to raising their children, and were adequately addressing the causes necessitating out-of-home placement. The report further indicated that father continued to participate in drug treatment, father and mother were seeking employment and desired to reunify with the minors, father completed parenting classes, father began counseling services, and father had not had any new criminal convictions. In addition, the report indicated that the minors and their siblings had been placed in the home of their paternal cousin and appeared to be adjusting well to the placement. The social worker reported that father and mother had consistently visited the minors and the current caretaker reported that the parents had a good relationship with them. However, the social worker indicated that the minors were receiving counseling services for behavioral issues, and that she was concerned with the parents’ ability to master and effectively use all learned parenting skills, including setting appropriate limits and boundaries for the minors. The social worker also indicated that she was concerned about whether father and mother could maintain their respective sobriety if they spent unstructured time together. In highlighting this concern, the social worker noted that mother and father’s new residence was located in an area known for drug activity.
At the six-month status review hearing, the juvenile court adopted the findings and recommendations in the six-month review report. The court also granted increased visitation for the parents and scheduled a 12-month review hearing.
The 12-month status review report recommended continuing out-of-home placement and reunification services. The social worker reported that the minors had a strong bond with their parents, and that mother and father were working hard on their case plans, consistently visiting the minors, and were committed to raising the minors. The social worker, however, reported that mother tested positive for methamphetamine and was terminated from her drug treatment aftercare program, and that both mother and father failed to appear for testing on another occasion, which the Agency considered a positive test. The social worker also reported that visits had been going well, except for an incident in which mother and father got into an argument and mother hit and threw items at father in front of the minors. The report indicated that father had completed outpatient substance abuse treatment, parenting classes, and counseling. The report also indicated that the new visitation schedule with the minors consisted of visits three times a week. The report, however, noted that the Agency remained concerned about whether father and mother could maintain their respective sobriety.
At the 12-month status review hearing, the juvenile court adopted the findings and recommendations in the 12-month status review report. The court also ordered the parents to participate in couples counseling and scheduled an 18-month status review hearing.
Prior to the 18-month status review hearing, a supplemental juvenile dependency petition was filed (§ 387), alleging that the paternal cousin was emotionally abusing the minors and their siblings, and that M.F. and two of her siblings had been physically abused. The paternal cousin denied the allegations, but agreed the children could be removed from her home. The minors were subsequently removed from the paternal cousin’s home and temporary care and placement of the minors was vested with the Agency.
The 18-month status review report recommended terminating reunification services and reducing visits from three days a week to once a month. In support of these recommendations, the report stated that mother’s and father’s progress toward alleviating or mitigating the causes necessitating out-of-home placement had been minimal. The report explained that mother was homeless, had failed to maintain her sobriety, and had made no effort to be reinstated in drug court. The report further explained that while father completed outpatient drug treatment, drug court, and parenting and individual counseling, there were concerns he had relapsed and could not parent the minors effectively. During visits, father appeared to be under the influence of a controlled substance, slurred his speech, and fell asleep. In addition, at a meeting with Agency staff, he struggled to keep his eyes open and “ ‘nodded off.’ ” Father was also homeless and, like mother, appeared not to understand how to positively parent his children and defuse their behavior. During visits, agency staff observed father and mother making degrading comments/statements to the minors and yelling at them in an intimidating manner. According to the social worker, neither parent could control their children’s behavior unless someone else intervened. The social worker also received reports from the minors’ caretakers that the minors were upset after visits due to their father’s “mean” behavior.
At the 18-month status review hearing, the juvenile court ordered father to submit to random drug testing and scheduled a contested review hearing. Prior to this hearing, the Agency received a report that father had hit mother during a visit. It was also reported that both mother and father had yelled at their children, swore in their presence, the children cried throughout the visit, and father left the visit early. The juvenile court subsequently ordered separate visits for the parents and reduced the frequency of the visits.
Following testimony at the contested review hearing, the juvenile court ordered father to immediately submit to a drug test and continued the hearing. At the continued hearing, the court was informed that father refused to submit to the drug test as ordered. After receiving evidence showing that father had positive drug tests, the court reduced visits to once every other week for one hour, terminated family reunification services, adopted the other recommendations set forth in the 18-month status review report, and scheduled a selection and implementation hearing.
The selection and implementation report recommended termination of parental rights and selection of adoption as the permanent plan. The report also requested the court order that visits be supervised. The juvenile court subsequently ordered visitation supervised and continued the selection and implementation hearing.
After several continuances, a supplemental selection and implementation report was filed on August 15, 2016. The supplemental report continued to recommend termination of parental rights and selection of adoption as the permanent plan. The report also requested the court eliminate visits or reduce visits to once a month. The report explained that the minors had been placed with their current caretaker for approximately four months and that the minors responded to her and looked at her in a parental role. The report further explained that the caretaker was very bonded and committed to the minors, had the capability to meet all their needs, and was committed to providing them with a permanent home. The report noted that the minors had been heard calling their caretaker “ ‘Momma.’ ” In recommending the elimination or reduction of visits, the report stated that visits were disrupting the adjustment/bonding process. The report explained that the minors acted angry, excited, anxious, defiant, and disappointed with a great deal of emotional stress before and after visits. The report noted that it took several days for the minors to settle down after visits. In addition, the report noted that the parents had been inconsistent in attending visits, and that their failure to attend visits created “much emotional distress.”
In January 2017, at the contested selection and implementation hearing, father and the social worker testified. Father claimed that he and mother were the primary caretakers of M.F. for the first two years of her life. He explained that he fed M.F., bathed her, and changed her diapers. However, he later clarified that he was only in the family home 65 to 75 percent of the time due to his drug use. Father also admitted that he did not get to know M.F. until he entered a drug program and gained sobriety after M.F. was detained. Father said that he visited the minors every week during the first year of dependency but visited less often thereafter because the court reduced visits. During visits, father would read to M.F., watch movies with her, and do puzzles. According to father, M.F. and S.F. referred to him as “daddy.” He claimed that M.F. enjoyed visits and would be hurt if parental rights were terminated. He also claimed that S.F. would have the same reaction as M.F., but probably would not understand. He stated that it would be better for the minors to see their parents during their childhood so that they could continue to have a bond.
The social worker testified that M.F. was two years old and S.F. was a newborn at the time of removal, and that neither child was ever returned to their father’s custody. The social worker said that father and the minors were very close and had a loving relationship. She also said that the minors would miss their parents if they were adopted. However, she noted that M.F. considered her current caretaker “mom” and was very comfortable in the caretaker’s home. The social worker explained that the minors had lived in their current placement for about nine months, and that there were no behavior issues displayed by the minors once their older sibling (who was more needy and demanding) was removed from the home. The social worker noted that father had missed “quite a few visits” and that there were times she had to contact him to see if he would attend a visit. She testified that the continuation of visits would be disruptive for the minors because it would make it difficult for them to settle down and move forward. She also testified that father did not occupy a parental role in M.F.’s life because he only saw her once a month for two hours. According to the social worker, the minors deserved the stability and permanence adoption would provide them.
At the conclusion of the selection and implementation hearing, the juvenile court noted that mother and father were offered reunification services for more than 18 months, and that the dependency had been ongoing for approximately three years. The court also noted that S.F. had never lived with father, and that while M.F. had lived with father for two years, he was struggling with addiction during that time and was in and out of the home. Although the court found that father loved the minors and had a bond with them, it determined that the relationship was more akin to a loving friendly relative, not a parent-child relationship. The court concluded that the minors were likely to be adopted, and that none of the exceptions to adoption under section 366.26, subdivision (c)(1) existed. The court terminated parental rights and selected adoption as the permanent plan. In doing so, the court found that termination of parental rights would not be detrimental to the minors, and that such a course would be in their best interests.
Father filed a timely notice of appeal.
II. DISCUSSION
Father contends the juvenile court erred in terminating his parental rights under section 366.26 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.) “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 exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)
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., supra, 27 Cal.App.4th at p. 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. The record discloses that father was inconsistent in attending visits with the minors. Further, father 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 two years 11 months and four years 10 months at the time of the January 12, 2017, selection and implementation hearing, had lived with their prospective adoptive mother for nearly nine months and had lived outside the family home for nearly three years. There was evidence that the current caretaker had assumed the role of parent to the minors, was very bonded and committed to them, had the capability to meet all their needs, and was committed to providing them with a permanent home. The record reflects that father had never cared for S.F. in the family home, as she was detained shortly after her birth. In addition, father admitted that he was only in the family home 65 to 75 percent of the time before M.F. was detained due to his drug use, and only got to know M.F. after she was detained and he entered a drug treatment program and gained sobriety.
While there was evidence supporting the juvenile court’s determination that the minors were bonded with their father, there was no evidence that the father occupied a parental role. Nor did father—who had not had a caretaker role in nearly three years and had only been visiting with the minors for two hours a month at the time of the selection and implementation hearing—present evidence showing that the minors would suffer detriment if his parental rights were terminated. There was evidence that father had relapsed and was under the influence during visits, visits caused the minors to suffer emotional distress, defiance and negativity on the part of the minors increased in anticipation of visits, and it took several days for the minors to settle down after visits. The record discloses that father made degrading comments/statements to the minors during visits, yelled at them in an intimidating manner, and lacked the ability to positively parent them and defuse their behavior. The record also discloses that the minors were upset after visits due to their father’s “mean” behavior.
The juvenile court’s ruling was supported by substantial evidence. The court did not err in finding father had not proven that the beneficial parent-child relationship exception applied.
III. DISPOSITION
The juvenile court’s order is affirmed.


/S/

RENNER, J.



We concur:


/S/

RAYE, P. J.


/S/

MAURO, J.