In re Aaliyah R.

Filed 3/6/07 In re Aaliyah R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Juvenile Court Referee.

Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant Luther R.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Anita L.

Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Konstantine Demiris, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

The parents of Aaliyah R. appeal from the order of the juvenile court at the selection-and-implementation hearing (Welf. & Inst. Code,^[1] 366.26). Anita L. and Luther R. are challenging the setting of adoption as the permanent plan, the termination of their parental rights, and the courts denial of Luthers section 388 petition, which alleged changed circumstances. Aaliyah was born on October 6, 2003.

Procedural and Factual HistorIES

Dependency proceedings were initiated in this case when the Tulare County Health and Human Services Agency (agency) filed a petition alleging that then four-month-old Aaliyah, and Aaliyahs seven-year-old half-sibling Roman, were at risk of substantial physical harm because their mother, Anita L., had hit Roman with a belt for misbehaving at school. The belt left bruises and significant markings on Romans buttocks. Roman also reported that Anita stuffed his mouth with socks to keep him from screaming and that she hit him with a belt on more than one occasion.

Roman said that Luther had, in the past, hit him in the head, hit him with a stick, kicked him, and made him sit on the floor for lengthy periods of time. Luther is Romans stepfather and Aaliyahs presumed father. Roman also reported that Anitas older daughter, Rayna, would hit Roman hard with her fist on his legs. Roman had 10 bruises on his right leg and seven to eight bruises on his left leg.

Petitions had been filed and sustained as to Anita for similar acts of physical abuse involving another child, Robert G. Anita admitted spanking Roman and threatening to put socks in his mouth, but denied actually doing so. Luther denied using physical force to punish Roman but admitted disciplining Roman by having him sit on the floor in one spot. According to Luther, Roman is always in trouble. Luther also admitted that he would pop Roman in the head in the hopes of knocking some sense into him. He said Roman is a liar.

At the jurisdictional hearing on the original petition, the court sustained the allegations of the petition, made the necessary findings, and declared the children dependents of the juvenile court. Aaliyah was placed with Luther, who was reportedly living separate from Anita even though they were married. Anita was allowed supervised visitation with Aaliyah. Roman was placed in foster care. Both Anita and Luther were provided reunification services. The case plan goals for Anita were to (1) not use physical punishment; (2) take appropriate action to avoid being a victim of further domestic violence; (3) show that she would not permit others to physically abuse her children; and (4) consistently parent the children appropriately and adequately. She was ordered to attend counseling to address issues related to her victimization, domestic violence, and physical abuse, including conjoint sessions with Luther, Roman, and Romans father, who is not a party to this appeal. She was also required to enroll in and complete parenting classes.

Luthers plan goals were to (1) express anger appropriately and not act negatively on his impulses; (2) show that he knew age-appropriate behavior for the children; (3) not use physical punishment; and (4) accept responsibility for his actions. He was to be assessed for parenting skills and to attend counseling related to inappropriate anger, physical punishment, and taking responsibility for his actions, including conjoint counseling sessions with Anita and Roman.

At the six-month status review hearing, the court reviewed the familys progress. There were still substantial concerns about returning Roman to his parents care because Romans behavioral problems had increased. Luther had been assessed for parenting skills and the therapist concluded there was no need for him to complete parenting education. He had not yet been assessed regarding how he would address issues related to inappropriate anger and physical punishment or participated in the conjoint session because Romans therapist believed Roman was not ready for Luthers involvement. Meanwhile, Aaliyah remained in Luthers care, appearing to be a well-adjusted, well-cared for baby.

On March 2, 2005, the agency filed a subsequent petition alleging that Aaliyah was at substantial risk because Luther had used a belt to punish nine-year-old Lizzianne, his daughter from a former relationship, for failing to do a math division problem correctly. Lizzianne had significant marks on her buttocks from the belt. She reported that she had been punished with a belt on prior occasions. Luther was arrested and charged with corporal injury to a child. After Luthers arrest, the agency tried to find Aaliyah to take her into custody, but Luther refused to reveal her location. When the agency found Aaliyah at a relatives house, it was told that she had been in the relatives care for about a month, during a time when she was supposed to be with Luther. During that month, Luther lied to a social worker on two occasions concerning Aaliyahs whereabouts, saying she was visiting a friend. Lizzianne reported that, contrary to the courts order, Luther and Anita were living together with Aaliyah. Aaliyah was removed from the relatives home and placed in foster care. Luther denied hitting Lizzianne with a belt, accusing her of lying.

At the March 25, 2005, jurisdictional hearing on the subsequent petition, the court sustained the allegations and ordered Luther into individual counseling. All earlier orders remained in effect. At the 12-month review hearing in May 2005, the court assessed the familys progress, noting the filing of the new petition. Services continued for Anita and Luther, but were terminated for Romans father.

At the section 366.22 status hearing on September 6, 2005, the agency initially recommended continuation of services, anticipating that the children would return home. However, the agency abruptly changed its position at the hearing, recommending that services to Luther be terminated. As a result, the matter was continued until October 5. At this hearing, the agency reported that Luther continued to deny any responsibility for the familys problems. The agency took the position that until Luther acknowledged his responsibility and demonstrated the ability to use appropriate discipline, Aaliyah would be at risk of harm. The agency offered evidence of the therapist who had seen Luther, who opined that Luther understands the problem, and shows insight, but behaves inconsistently with what he knows he should be doing. The social worker reported that although Luther had complied with counseling he was not getting it. The court found by clear and convincing evidence that Luther had failed to participate regularly and make substantial progress in the court-ordered treatment plan, and that reasonable services had been provided. It also concluded that there were no additional services available to help facilitate the return of the children. It determined that Luther had not acknowledged the reasons Aaliyah was detained and has not benefited from counseling. As a result, the court terminated services to Luther. Services were terminated for Anita because the time had lapsed. The court stated that Anita chooses to remain with [Luther], although [she] has participated in her case planthe court cannot place children with [the] mother. Adoption was identified as the anticipated permanent plan, and the matter was referred to a selection-and-implementation hearing. ( 366.26.)

In September 2005, Aaliyah, after several prior placements, was placed with a foster mother who was willing to adopt her. Aaliyah was nearly two. She called her foster mother mommy and was well-adjusted in that family. Although Aaliyah met weekly with her biological parents, enjoyed her visits and engaged with them happily, Aaliyah did not have separation anxiety when the visits ended. She knew she visited her parents and recognized the building where the visits occurred, but did not cry or ask for her biological parents between visits. Luther and Anita claimed that during visits Aaliyah would ask to come home with them. They also said when visits ended, Aaliyah would cry, testimony that both the social worker and prospective adoptive mother refuted.

On May 24, 2006, Luther filed a section 388 petition alleging changed circumstances because his criminal charge had been dismissed, he had admitted spanking Lizzianne, and had completed a 14-week batterers class. (More precisely, Luther pled no contest to misdemeanor battery. The case was dismissed after Luther successfully completed the 14-week batterers program.) The court denied the petition at the June 13, 2006, selection-and-implementation hearing. ( 366.26.) The court stated it was not convinced a change in circumstances had occurred or that it would be in the best interests of the child to grant the petition. The court also terminated parental rights as to Aaliyah, finding that termination was in her best interests and that she was likely to be adopted by her current caretaker, with whom she had developed a primary attachment. The court found that, even though Aaliyah had a good relationship with her parents and seemed to enjoy their visits, it would not be detrimental to Aaliyah to terminate parental rights. ( 366.26, subd. (c)(1)(A).) The court indicated that it was not terminating services based solely on the providers statements concerning Luthers progress, but on his conduct with others.

Discussion

I. ICWA challenge

On appeal from the termination order, the parents challenge for the first time the courts February 23, 2004, finding and order that the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) does not apply. They contend (1) they were not asked to fill out Judicial Council form JV-130, which seeks information about Indian heritage, and (2) the social worker reported in connection with the subsequent petition that it does not appear as though a finding was made by the Court. As a result, they argue there was doubt about Aaliyahs status and the agency failed to fulfill its ongoing duty to inquire into her Indian heritage. The argument lacks merit and is untimely.

Once the court determined Aaliyah was not an Indian child and ICWA did not apply, that finding applied to all subsequent hearings, even those following the filing of the subsequent petition. Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the act does not apply to the case . (Cal. Rules of Court, rule 5.664(f)(5), italics added.) The subsequent petition was filed in the ongoing dependency case. Jurisdiction over Aaliyah had already been established. The subsequent petition merely raised new allegations. Further, we are not bound by a social workers failure to recall that the finding had been made. The court found early in the case that ICWA did not apply and that determination is in the record. Neither parent claims that ICWA applies or that the children are Indian children. Both parents testified under oath that they were not members or eligible for membership, and that the children were not eligible for membership, in any Native American Indian tribe. This evidence sustains the courts finding that ICWA does not apply. (25 U.S.C.  1903(4) [Indian child is either (1) member of Indian tribe or (2) eligible for membership in Indian tribe and the biological child of member of Indian tribe].) The issue was determined early on; there was no reason to inquire further. The earlier finding was not invalidated by the failure to use JV-130 as the parents contend. The form was not required until after January 1, 2005, nearly a year after the court made its ICWA finding. (See Historical Notes, 23, pt. 2, Wests Ann. Codes, Rules (2006 ed.) foll. rule 5.664, pp. 61-63; see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 [no requirement to file form JV-130 in 2004 because form did not exist or become mandatory until after January 1, 2005].)

In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, we held that a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the courts ruling is final. Here, the parents challenge comes too late since the February 23, 2004, finding that ICWA does not apply has long been final.

II. Ineffective-assistance-of-counsel claim

Both parents claim they were denied effective assistance of counsel because their court-appointed attorneys failed to seek writ review after the October 5, 2005, review hearing when reunification services were terminated and the matter was referred to a selection-and-implementation hearing. They claim the writ should have been filed because the agency failed to provide reasonable services, the alleged risk to Aaliyah was not a present risk of harm, and the parents visited regularly and had substantially complied with the case plan.

To establish ineffective assistance of counsel in dependency proceedings, the parents must demonstrate (1) that appointed counsel has failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and (2) that the failure to act made a determinative difference in the outcome of the dependency case. The parents must show that, but for the failure, a determination more favorable to their interests would have resulted. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)

This claim fails because an attorney representing a parent in dependency has no professional duty to file a rule 39.1B writ petition challenging the termination of services and the setting of a selection-and-implementation hearing in the absence of the clients authorization. (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692; In re Cathina W. (1998) 68 Cal.App.4th 716, 724.) The burden to seek review is on the parent to pursue his or her appellate rights; trial counsel has no duty to do so without a parents directive. Appointed counsel acting in a manner expected of a reasonably competent attorney would not and could not file a rule 39.1B writ unless directed to do so by his or her client. (In re Cathina W., supra, at p. 724 [in the absence of specific direction from parent, attorney not obligated to take any steps to comply with section 366.26, subd. (l)].) Since the parents cannot establish on this record that this direction was given, we cannot conclude that counsel breached any duty in providing representation. There is evidence that Luther told a social worker he intended to appeal the termination of services, but there is no evidence he ever directed counsel to do so. The first prong of the test for establishing ineffective assistance of counsel has not been met.

Further, claims of ineffective assistance of counsel are generally waived in dependency proceedings if not timely raised. (In re Janee J. (1999) 74 Cal.App.4th 198, 206-208; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1159-1160.) Relaxation of the waiver rule is applicable where there has been some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole, such as lack of notice of California Rules of Court, rule 39.1B rights. (In re Janee J., supra, at pp. 208-209.) (See section III, infra, where we conclude proper notice was given.) However, to avoid waiver, the defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed. (In re Janee J., supra, at p. 209.) The claim that the parents were denied effective assistance of counsel during the dependency proceedings is limited to claims related to the section 366.26 order, and none have been made here. All other claims have been waived.

Lastly, in order to prove prejudice, the parents would have to show that, but for the attorneys performance, the juvenile court would have continued reunification services after the contested review hearing. The juvenile court can retain the minor child in out-of-home placement and terminate reunification services where the offending parent received reasonable services but failed to comply and there is no substantial probability the child will be returned to parental custody within the statutory allotted time. ( 366.21, subds. (f) & (g)(1).) In determining whether to return children to their parents, the juvenile court must consider whether the parents participated regularly in the treatment program set forth in the case plan, the efforts or progress of the parents, and the extent to which the parents availed himself or herself of services provided . ( 366.22, subd. (a); Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.)

In this case, the main component of the reunification plan was to stop the physically abusive discipline. Both Anita and Luther were well aware that this was the problem that caused removal of Robert, Roman, and ultimately Aaliyah. The case plan had from the beginning stated that the problem was the use of excessive discipline, lack of understanding of age-appropriate behavior, and controlling anger.^[2] Both parents had been provided individual counseling addressing their issues.^[3] Other services were offered, including parenting skills assessment and classes, and a batterers group for Anita and an anger-management program for Luther. Although both parents attended the counseling sessions and completed the classes, they were unwilling to make the appropriate choices required to change their abusive parenting style. Luther abused Lizzianne after Roman was removed from the home for the same behavior by Anita. Anita was in the house when Luther inflicted physically abusive discipline against Lizzianne for failing to get a math problem correct. Anita did nothing. Luther allowed Anita contact with Aaliyah and Anita allowed contact between Luther and Roman contrary to the courts orders. The parents both lied to the agency regarding their living arrangement. Luther lied about Aaliyahs whereabouts. These are not the actions of parents who are taking advantage of provided services with a goal of being reunified with their children.

The evidence supports the juvenile courts conclusion that, despite being provided adequate reunification services, further services would not assist the return of the children. Luthers therapist said that Luther knew the rules but did not follow them. While Luther participated regularly in treatment, he made little effort or progress toward change. Luther expressed his anger (whether justified or not) with the agency in front of the children in an inappropriate manner, without regard to the effect his behavior had on the children. He has expressed uncontrolled anger in other settings. His uncontrolled anger toward social workers and therapists, his disregard of court orders, and his refusal to acknowledge the abuse are all objectively measurable signs of his failure to internalize what he learned in counseling. These outward signs of the lack of inward change makes this case different from the cases cited by Luther, particularly Blanca P. v. Superior Court, supra, 45 Cal.App.4th at page 1751 (order refusing to return children to home where no clinical evaluation, no testing to indicate mental illness, but just opinion of social worker and therapist that parent has not internalized what was learned in parenting classes). In the line of cases cited, the problem was similar to the one here; the parent complied with the service plan, but for some reason did not convince a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). (Id. at p. 1748.) Here we have more than the therapists or social workers opinion; we have objective evidence that Luthers behavior has not changed despite completion of counseling and treatment programs.

The evidence also supports the courts finding that Aaliyah was in present danger of substantial harm. When a parent harms a sibling, the courts need not wait until the abuse is directed at a second (in this case a fourth) child before finding substantial harm is likely. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [evidence of past conduct may be probative of current conditions if there is reason to believe acts may continue in future].) When parents intentionally and continually harm their children by using excessively abusive discipline in response to perceived misbehavior, it is reasonable to conclude that a younger sibling will be treated the same way. Aaliyah is no longer an infant, but an active, verbal toddler. There is a present risk that Luther and Anita will respond with excessive discipline, just as they have so many times before, inflicting substantial harm to Aaliyah. Harm is particularly likely considering her young age and vulnerability.

Given the evidence in this case, it is highly unlikely that a review of the juvenile courts order terminating services and setting a section 366.26 hearing would have resulted in an outcome more favorable to the parents.

III. Adequate notice of right to seek writ review

Related to his claim of ineffective assistance of counsel, Luther contends he was not given adequate notice of his right to seek writ review. Anita joins in this claim.

As we have already stated, it is a parents responsibility to seek writ review for the order setting a section 366.26 hearing. In recognition of that responsibility, and to ensure that a parent aggrieved by a setting order is made aware of the requirement to seek review at that stage of the proceeding, section 366.26, subdivision (l)(3)(A), directs the juvenile court to give appropriate notice to the parties. The court is required to advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order. ( 366.26, subd. (l)(3)(A).) California Rules of Court also require that the court advise all parties that, to preserve any right to review on appeal of the order setting the hearing, the party must seek extraordinary writ by filing a notice of intent to file writ petition and request for record (form JV-820) and a petition for extraordinary writ (form JV-825). (Cal. Rules of Court, rules 5.715(d)(3)(G) [12-month review hearing] and 5.720(c)(13) [18-month review hearing].) Consistent with section 366.26, subdivision (l)(3)(A), the Judicial Council Form JV-820 requires the clerk of the juvenile court to include on the face of the notice the date on which the court made its setting order, so that the party may calculate the deadline for filing the notice of intent and request for record. The form provides: If you want an appeals court to review the juvenile courts decision, you must first tell the juvenile court by filing a Notice of Intent. You may use this form as your Notice of Intent. In most cases, you have only 7 days from the courts decision to file a Notice of Intent. Item 6a of the form states: On (date):  _____ the juvenile court made an order setting a hearing under Welfare and Institutions Code section 366.26. Petitioner intends to file a writ petition to challenge the findings and orders made by the court on that date and requests that the clerk assemble the record. These requirements are intended to ensure that parents receive complete and adequate notice of their responsibility to seek writ review if they wish to preserve their appeal rights. (In re Cathina W., supra, 68 Cal.App.4th at pp. 721-722.)

The juvenile court complied with these requirements. It provided the parents with the Notice of Necessity to Seek Writ Review and forms JV-820 and JV-825. These forms contain all the necessary information. The court also said on the record, Parents are advised that if you intend to file you must file your Intent to File Writ Petition and Request for Record within seven days of todays date.

The case cited by Luther, In re Jessica G. (2001) 93 Cal.App.4th 1180, does not support his argument. There, a guardian ad litem was appointed for the mother in a dependency action at the request of her appointed counsel. The court held that the mother should have been given an opportunity to oppose the appointment but was not. Even though the appointment occurred in open court, the attorneys and the court talked in code, using the abbreviation G.A.L. for the term guardian ad litem. The court stated that the use of this shorthand was totally uninformative to the parent whose rights are at issue, (id. at pp. 1189-1190) concluding that the mother was unaware what was happening, and her rights were affected because she was denied the right to act on her own behalf. (Id. at p. 1190.)

There is no shorthand used here. The notice of the right to seek writ review was given in open court through a written form approved by the Judicial Council for this purpose. The forms state that parents have a right to seek appellate review of the order terminating reunification services and referring the matter to a selection-and-implementation hearing. It also provides parents notice of the applicable time frame within which to file. Although the forms are not in the record, the record identifies them and states that they were given to the parents. This is sufficient.

IV. Denial of section 388 petition

Luther argues that the court abused its discretion by denying his section 388 petition. We disagree. A parent may petition the court for a modification on grounds of change of circumstance or new evidence. ( 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. ( 388, subd. (b); Cal. Rules of Court, rule 5.570(e).)

Whether the juvenile court should modify a prior order rests within its discretion, and its determination may not be disturbed unless there has been an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Ibid.)

We reject Luthers argument for two reasons. First, we agree with the juvenile court that he did not show changed circumstances. As we have already stated, admitting that he spanked Lizzianne is not the same as accepting responsibility for physically abusing her or Roman, exhibiting remorse, and/or exhibiting a willingness to change his parenting style. The completion of a 14-week anger-management course at this late date also does not establish a change in circumstances. It only establishes that Luther successfully completed the course. Similarly, the letter from therapist Linda Reinhart states only that Luther has discussed and explored various parenting topics. It says nothing about his ability or desire to change his behavior. The problem in this case was never Luthers ability to understand the problems leading to dependency, but his willingness to change his behavior. He finally recognizes the consequences of failing to respond to the petition, both the original and the subsequent, in good faith. Now he is willing to do whatever the court orders, where before he routinely ignored the courts directions. Unfortunately, his cooperation has come too late.

Even if we were to accept that Luther had made a sufficient showing of changed circumstances, the juvenile court still could conclude that Luther has failed to show that renewed reunification efforts at this juncture would promote Aaliyahs best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) When a parent files a section 388 petition on the eve of a section 366.26 hearing, the parents interest in the care, custody, and companionship of the child are no longer paramount. Rather, the focus shifts to the needs of the child for permanency and stability, and there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M., supra, at p. 317.) Aaliyah was in Luthers care for the first 16 months of her life (Oct. 2003-Feb. 2005). At the time of the section 366.26 hearing, she had not lived with her father for nearly the same period of time, 14 months (Mar. 2005-Jun. 2006). There is a statutory recognition that children under the age of three years need stability and permanency as quickly as the dependency process can provide it. ( 366.21, subd. (e).) It is clear that Aaliyah, who had been in a stable home for eight months prior to the filing of the section 388 petition, was flourishing. She was attached to her foster mother; she was well-adjusted in her foster family. Luther has not established that Aaliyahs need for permanency and stability would be advanced by an order for continued services or a return to her volatile birth home.

We decline to apply the Kimberly F. factors (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532). These include the seriousness of the problem leading to dependency and the reason that problem was not overcome; the strength of relative bonds between the dependent children to both parents and caretakers; and the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. We do so because these factors do not take into account the Supreme Courts best-interests analysisin Stephanie M. At most, the Kimberly F. court reviewed the facts in Stephanie M. and compared them with the underlying facts in their case. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 533-534.)We agree that the existence of a successful relationship between a young child and a foster parent cannot be the sole basis for terminating parental rights. However, when a child has been placed in foster care because of parental abuse, after an extended period of foster care, it is within the juvenile courts discretion to decide that the childs interest in stability outweighs the biological parents interest in the care, custody, and companionship of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.) This is particularly true when the parents refusal to cooperate or acknowledge the reasons for dependency have exacerbated the situation. Children, too, have fundamental rightsincluding the fundamental right to be protected from neglect and to have a home that is stable and permanent. (Id. at p. 419.) Although there is affection between Aaliyah and Luther, we cannot say it was an abuse of discretion for the trial court to conclude that it was not in Aaliyahs best interests to reinstate reunification services to Luther.

V. Selection of adoption as permanent plan

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect childrens compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, at p. 306.) If, as in this case, a child is likely to be adopted, adoption is the norm. Further, the court must order adoption and termination of parental rights, unless one of the specified circumstances ( 366.26, subd. (c)(1)) provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529; In re Celine R. (2003) 31 Cal.4th 45, 53.)

The specified statutory circumstancesactually, exceptions to the general rule that the court must choose adoption where possiblemust be considered in view of the legislative preference for adoption when reunification efforts have failed. (In re Jasmine D. [2000] 78 Cal.App.4th [1339,] 1348.) At this stage of the dependency proceedings, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. (Cynthia D. v. Superior Court [1993] 5 Cal.4th [242], 256.) The statutory exceptions merely permit the court, in exceptional circumstances (In re Jasmine D., supra, at pp. 1348-1349), to choose an option other than the norm, which remains adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)

The parents claim that the court erred in setting adoption as the permanent plan because the evidence established that they maintained regular visitation with Aaliyah throughout the dependency, and Aaliyah had a beneficial relationship with both so that Aaliyah would suffer detriment if the relationship was terminated. ( 366.26, subd. (c)(1)(A).) However, proof that Aaliyah had a significant emotional relationship with her parents did not compel the juvenile court to find that termination would be detrimental to her. The parents have the burden of demonstrating that the termination of parental rights would be detrimental to Aaliyah. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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 parents rights are not terminated. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, no evidence of this nature was introduced. Although Aaliyah enjoyed visits with her parents, she did not call for them once visits ended and there was no separation anxiety. Despite being apart from her parents for much of her life, Aaliyah is happy and well-adjusted with her foster family. She is very young. There is no evidence to support the parents claim that termination of their relationship with Aaliyah would greatly harm her or outweigh her need for permanency and stability. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court did not err when it selected adoption as the permanent plan for Aaliyah.

DISPOSITION

The orders of the juvenile court are affirmed.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Kane, J.

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

^[2]The initial petition contained several allegations of physical abuse of Roman by Luther. These allegations were found to be true. It is not accurate to say that the initial proceedings and services were directed entirely at Anita. Luther blamed Anita for the dependency, but this is one more example of his inability to accept responsibility for his own part in the familys problems.

^[3]In March 2005, Luther was ordered to attend counseling for inappropriate anger and physical punishment. Despite undergoing counseling, his behavior has not changed, nor has he acknowledged that his physical discipline of the children is excessive and abusive. Pleading no contest to the criminal charges and admitting to spanking Lizzianne is not equivalent to accepting responsibility for physical abuse of the children. Further, Luther only marginally complied with the order that he engage in conjoint counseling with Roman. The social workers reported repeatedly that Luther made little effort to connect with Roman.