Filed 4/5/18 In re A.C. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
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In re A.C. et al., Persons Coming Under the Juvenile Court Law. C085413


EL DORADO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

ANDREW C.,

Defendant and Appellant.

(Super. Ct. Nos. SDP20160034 & SDP20160035)



Appellant Andrew C., father of the minors A.C. and S.C., appeals from the juvenile court’s orders terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) He contends the juvenile court erred in failing to find the beneficial parental relationship exception to adoption applied and that the juvenile court failed to properly consider the minors’ wishes. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother have a significant history with child protective services, including 31 prior referrals and multiple prior dependency cases. In 2006, the juvenile court declared A.C. (born May 2005) a dependent due to parents’ domestic violence and substance abuse, and filthy and unsafe living conditions. After over a year of services, the case was closed. In 2011, the juvenile court declared both A.C. and S.C. (born December 2009) dependents and removed them from parents’ custody for the same reasons. Parents received almost two years of services and the case was closed.
The current case commenced in September 2016. The El Dorado County Health and Human Services Agency (the Agency) filed a section 300 petition on behalf of the minors based, again, on parents’ domestic violence and substance abuse. Mother reported that father’s physical and verbal abuse had been occurring daily for 17 years, and included threats and attempts on her life. The minors were witnesses to the ongoing domestic violence and A.C. had audiotaped the domestic violence so he could provide evidence of the abuse. The minors reported that father drank daily and was more verbally and physically abusive when he was drunk. Father’s verbal and physical abuse toward mother made them sad and afraid. S.C. described father as “mean” and A.C. said he wanted father out of the home. The minors were detained. At the time of the detention hearing, the minors indicated they wished to be in their parents’ custody but, if that could not occur, have as much visitation as possible. The juvenile court initially ordered supervised visits between the minors and each parent three times per week, for up to two hours per visit. The following week, the juvenile court reduced father’s visits to once a week for a minimum of one hour per visit.
The minors adjusted well to placement. The only issues reported were normal, age-related issues, although A.C. appeared parentified. The Agency and social worker recommended denial of services. The minors stated they wanted to go home and A.C. asked the juvenile court to provide services for his parents. The minors said, however, that if they were not able to go home, they wanted to stay in their current foster home.
On December 1, 2016, the juvenile court sustained the allegations in the section 300 petition and denied parents’ reunification services under section 361.5, subdivision (b)(13). The section 366.26 hearing was set for March 29, 2017, but continued to June 13, 2017.
The minors were in good health, developmentally on target, and doing well in school. They both attended weekly therapy. They had developed a strong bond with their potential adoptive father, with whom they had been placed since their September 2, 2016, detention. The minors’ potential adoptive father fully committed to adopting the minors and there did not appear to be any barriers to adoption. He was open to permitting ongoing contact with the birth family and acknowledged the minors had “expressed an interest in not wanting to completely lose contact with their birth family.”
Father had been visiting the minors regularly, seeing them five times in October 2016, seven times in November 2016, and twice a month after that. Father’s visits were appropriate. Father brought the minors food and drinks, and they watched videos, played games, or played with toys during visits. Father testified that when the minors lived with him, they did many activities together, such as go on bike rides, shoot baskets, play Frisbee, go to the park, skate, ride motorcycles and go-karts, and tinker on cars. Father believed the minors love him. Father also claimed the minors did not want to leave at the end of visits and he had to talk to them about being polite and “doing what we have to do” so they could be together again.
The social worker, however, spoke with each of the minors about their feelings and hopes for being adopted by the potential adoptive father and both minors said they would rather remain with their foster father than return to living with father. There seemed to be no hesitation in how they felt. They explained they preferred to live with their foster father because he is nice in all ways, gives them an allowance for doing chores, and feeds them healthier food. The minors’ counsel submitted a letter from A.C. to the juvenile court stating he wanted to be adopted by his foster father because the foster father does not smoke like his parents, A.C. now ate much healthier food, the foster father helps him with his homework and makes sure he gets good grades, and his living conditions are better in the foster father’s home. Although the minors said that visits with father were “ ‘[g]oing pretty well,’ ” and consisted of “ ‘hang[ing] out and play[ing],’ ” they said father did not appear to be doing very much better, they did not trust him, and they were scared of him.
The juvenile court found the minors were likely to be adopted, that no exception to adoption applied, and terminated parental rights.
DISCUSSION
I
Beneficial Parental Relationship Exception
Father contends the juvenile court erred by failing to find he established the requirements for the beneficial parental relationship exception to adoption. We disagree.
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.]’ [Citations.] 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.)
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).) Such circumstances include 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) [beneficial parental relationship exception]) and when “there would be substantial interference with a child’s sibling relationship” (§ 366.26, subd. (c)(1)(B)(v) [sibling relationship exception]).
To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is such a bond, the parent must prove that the parental 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.’ ” (In re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1345 (Jasmine D.).) “In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H., at p. 575.) On the other hand, “ ‘[w]hen the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’ ” (Jasmine D., at p. 1350; In re Autumn H., at p. 575.)
“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.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “ ‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53, quoting Jasmine D., at p. 1348.) The beneficial parental relationship exception is an exception to the general rule that the court must choose adoption where possible, and it “ ‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ ” (In re Celine R., at p. 53.)
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.)
Here, it was undisputed that father maintained regular visitation and contact with the minors. The juvenile court determined the benefit of maintaining the parent-child relationship was outweighed by the benefit of adoption. We find no error.
By the time of the section 366.26 hearing, A.C. was 12 years old and had been placed in foster care three times, and S.C. was seven years old and had been placed in foster care twice. They had spent their childhood in and out of foster care due to their parents’ substance abuse and domestic violence, and their filthy living conditions. Since their most recent removal, they had formed close positive attachments to their potential adoptive parent. Although initially they had been worried and cautious, over time, they felt safe, secure, and comfortable expressing their needs with the current caretaker and their needs were being met. They had learned to trust adults, especially their foster father, and turned to them when they needed help. Both minors expressed a desire to stay in their current home. They especially liked eating healthier food and the improved living conditions. A.C. stated that, no matter what happened, he wanted his relationship with the caretaker to continue.
Father emphasizes that the minors told their caretaker that they did not want to completely lose contact with their birth family and argues that his visits were “a continuation of the significant, positive, emotional attachment that had already been developed when [the minors] were living with and being raised by father.” The juvenile court, however, reasonably concluded that the minors’ relationship with father was not sufficiently significant or positive so as to outweigh the benefits of adoption.
During the years the minors spent in parents’ custody, father was the primary income producer and mother was the primary caregiver. The minors spent time doing father-son activities with father, but the years were fraught with instability, exposure to substance abuse, domestic violence, and filthy living conditions. Although father’s visits were described as “appropriate,” there were no reports by visitation supervisors or the foster father that the minors were having difficulty separating at the end of visits or appeared upset that the visits were ending. The visits were described by the minors as “ ‘hang[ing] out and play[ing].’ ” Both minors expressed that they did not think father was any better than he used to be, and that they did not trust him and were scared of him. So, while the minors had shared experiences and playtime with father, their relationship with father was not the close, positive one the statutory exception contemplates.
Additionally, as the juvenile court noted, there was no bonding study, no evidence that the minors’ bond with father was positive or significant, and no evidence that severance of the bond would cause the minors to suffer any detriment. In sum, father failed to prove that his relationship promoted the well-being of the minors to such a degree as to outweigh the well-being they would gain in a permanent home.
II
Consideration of Minors’ Wishes
Father also contends the juvenile court erred in failing to consider the minors’ wishes. Father, however, did not raise this issue in the juvenile court and has, therefore, forfeited the argument on appeal. (In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820; In re Asia L. (2003) 107 Cal.App.4th 498, 513.) In any event, we also find the record contains ample evidence the juvenile court considered the minors’ wishes.
“At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.” (§ 366.26, subd. (h)(1).) The statute imposes “a mandatory duty on the courts to ‘consider the child’s wishes to the extent ascertainable’ prior to entering an order terminating parental rights.” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) A statement from the minor need not be testimony in court; informal communication on or off the record, reports prepared for the hearing, or other methods may suffice. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.)
Here, the juvenile court had the minors’ statements, contained in the social worker’s report, and a letter from A.C. to the court was accepted into evidence. In their statements, both minors said they would like to stay with their potential adoptive parent and the social worker stated “there seemed to be no hesitation in the way they felt.” In his letter, A.C. directly stated that he wanted to be adopted. He outlined his reasons and was unequivocal about his desires. Prior to its ruling, the juvenile court expressly stated it had considered A.C.’s letter and the minor’s wishes.
Father now complains that the court mischaracterized A.C.’s letter stating he wanted to be adopted when the court stated it expressed the desire not to have continued contact with father. He argues the minors did not understand that adoption meant they may no longer be able to visit father. Whether A.C. understood that adoption might result in no continued contact does not significantly impact whether the court considered his wishes regarding the permanent plan. The record contained ample evidence of the minors’ feelings toward father and their preferences about their living situation. Moreover, the court is not required to ask the child how he or she feels about the termination of parental rights--that is, ending the parent-child relationship. (In re Amanda D., supra, 55 Cal.App.4th at p. 820; In re Leo M., supra, 19 Cal.App.4th at pp. 1591-1592.) As the Court of Appeal held in Leo M.: “[I]n honoring [the minors’] human dignity . . . we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. . . . [W]e conclude that in considering the child’s expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.” (In re Leo M., at p. 1593.)
DISPOSITION
The orders of the juvenile court terminating parental rights are affirmed.


/s/
Blease, J.

We concur:


/s/
Raye, P. J.


/s/
Murray, J.