In re Ezra S.

Filed 8/8/08 In re Ezra S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an orders of the Superior Court of Los Angeles County, Jan G. Levine, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Objector and Appellant Trisha T.

Lori A. Fields, under appointment by the Court of Appeal, for Objector and Appellant Christopher S.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Senior Associate County Counsel for Plaintiff and Respondent.

INTRODUCTION

Trisha T. (mother) and Christopher S. (father) (together parents), parents of six-year-old Ezra S. and four-year-old Ezekiel S., appeal from the juvenile courts order terminating their parental rights to Ezra[1]under Welfare and Institutions Code section 366.26.[2] Mother and father contend that the juvenile court erred in failing to find the section 366.26, subdivision (c)(1)(B)(i) (section 366.26(c)(1)(B)(i)) parental visitation exception to the termination of parental rights.[3] We affirm the juvenile courts order.

BACKGROUND

On January 10, 2005, the Department of Children and Family Services (Department) filed a petition under section 300 alleging, among other things, that then two-and-a-half-year-old Ezra came within the juvenile courts jurisdiction because his parents had longstanding histories of substance abuse (mother four years, father seven years) and were frequent users of amphetamine and methamphetamine, which use rendered them incapable of caring for and supervising Ezra, placed Ezra at risk of physical and emotional harm, and created a detrimental home environment. The petition further alleged that mother and father tested positive for amphetamine and methamphetamine on December 30, 2004, and that they had resumed drug use after participating in a court ordered substance abuse rehabilitation program. Mother was alleged to have a criminal history of having been convicted of possession of a controlled substance. Father was alleged to have a criminal history of felony convictions for possession of a controlled substance and possession of a controlled substance paraphernalia, and misdemeanor convictions for using and being under the influence of a controlled substance.

The Departments January 10, 2005, Detention Report states that when an investigator interviewed mother and father in late December and early January, each denied current drug use. Both parents agreed to drug tests and tested positive for amphetamine and methamphetamine. When confronted with the positive test results, mother, after initial denials, and father admitted to using drugs. At the detention hearing, the juvenile court ordered Ezra detained with his paternal grandfather. The Department was ordered to provide the parents with family reunification services and the parents were granted monitored visits.

On January 13, 2005, mother enrolled in Prototypes for treatment that included Recovery Support, Step Study, Recovery Education, Just 4 Today, Parenting Education and Family Time. One individual counseling sessions [sic] and random drug testing weekly. On January 19, 2005, father enrolled in a six month counseling program at the Twin Palms Recovery Center. As part of the program, father was required to participate in individual counseling sessions, recovery discussion groups, self-help meetings, and random drug testing.

On January 31, 2005, the Department filed a first amended section 300 petition that added the allegation that Ezra was exposed to violent physical altercations between mother and father. According to the January 31, 2005, Jurisdiction/Disposition Report mother claimed to have completed an outpatient drug treatment program at Prototypes on September 13, 2004, but she admitted that she used methamphetamine once or twice in October 2004 and again on December 25, 2004. Father also claimed to have participated in a drug treatment program, but admitted that he and mother relapsed together by smoking methamphetamine on December 26, 2004. Mother and father agreed that their relationship was over.

The Department dismissed the allegation in the amended petition concerning the violent physical confrontations between mother and father, and the juvenile court sustained the amended petition, with further amendments not relevant here, and declared Ezra a dependent child under section 300. Pursuant to section 361.5, subdivision (b), the juvenile court denied the parents family reunification services. The juvenile court set a section 366.26 hearing for June 27, 2005.

The June 27, 2005, section 366.26 Report states that Ezra had frequent contact with mother, knew who she was, and appeared to be comfortable with her. Ezra saw father when father was able to obtain transportation. Father was reported to have made very little progress in his drug rehabilitation program or in stabilizing his life. Father reportedly had lost his job and his housing. Mother reportedly had completed 15 hours in a parenting course and 15 hours in an anger management course. Mother reportedly had been testing clean and participating in an outpatient 12-step rehabilitation program. Father visited Ezra when he could and mother visited on a regular basis. The hearing was continued to December 22, 2005, for completion of a home study.

The December 22, 2005, section 366.26 Report states that father had dropped out of his drug rehabilitation program and that he was not visiting Ezra very often. The report characterizes the frequency of fathers visits as sporadic. The report observes that it did not appear that father could complete his rehabilitation programs in a timely manner to have Ezra returned to him. All of the recent drug tests for mother reportedly were dirty. Mother reportedly had been visiting Ezra on a regular basis, but stopped visiting as often when she started testing dirty. Ezra was reported to know who mother was and to be comfortable with her. The report observes that mother appears unwilling or unable to maintain sobriety long enough to allow Ezra to be safely returned to her.

The Departments December 22, 2005, Status Review Report states that mother was doing well up until October 2005. Thereafter, mother could not maintain her sobriety and started testing dirty. All of mothers tests for the prior few months had been dirty or mother had failed to show up for the tests. Father reportedly was homeless. The report states that neither parent had demonstrated the motivation to make a lasting change in their lifestyle that would allow Ezra to be returned safely to the parents care. The Department recommended that all visits between Ezra and his parents be suspended to prepare Ezra, his parents, and his extended family members for Ezras adoption. The Department also requested that it provide permanent placement services for an additional six months because it needed more time to complete home studies and to process the documents necessary to proceed with adoptive planning. The juvenile court continued the section 366.26 hearing to April 20, 2006.

The April 20, 2006, section 366.26 Report states that mother had visited Ezra a few times after the last hearing. Ezra knew who mother was and appeared to be comfortable with her. Father had not visited Ezra very often. Father lived farther away (apparently farther than mother) and had transportation problems. Father apparently remained homeless. The report again recommends that visitation between Ezra and his parents be suspended to facilitate the adoption process. At the April 20, 2006, hearing, the juvenile court continued the hearing to June 21, 2006, because the home study had not been completed. The report notes that the paternal grandfather decided he did not want to adopt Ezra.

The June 21, 2006, Status Review Report does not report any change in mothers or fathers visitation with Ezra. The report states that Ezras caretaker was so uncooperative with the home studies that the adoption social worker was dropped and assignment of a different social worker was pending. Father was no longer homeless, and was living in a residential drug rehabilitation program run by Grandview Foundation, Inc. The report repeats the recommendation of suspended visitation between Ezra and his parents. The section 366.26 hearing was continued to October 23, 2006.

The October 23, 2006, Interim Review Report states that a social worker interviewed Ezra on July 27, 2006 and asked him if there was anything he wanted to say. Ezra said that he missed mother and father. The social worker asked Ezra if he had seen his parent. Ezra responded, No, not for a long time. Asked if he would like to see his parents and his brother Ezekiel, a tearful Ezra responded, Yes. The report states that in mid-August 2006, paternal grandfather apparently left Ezra and Ezras belongings with Ezras paternal great aunt and uncle, Emily and Javier C. After a subsequent inspection, Emilys and Javiers home was approved for Ezras placement.

According to the report, father had called the social worker several times to ask about Ezra. Father provided the social worker with 34 negative random drug tests for the period from April 20, 2006 to October 2, 2006, and with a letter from Grandview Foundation, Inc. that attested to his enrollment in, and full compliance with, all of the facilitys rules and guidelines. Father was scheduled to finish his program at Grandview Foundation, Inc. in October 2006. Father reportedly also was employed. Father reported that he had made several attempts to arrange with Emily to set up visits with Ezra, but Emily would not permit any visits. The social worker attempted to set up a visit but received a written response from Emily that essentially said that she would never permit Ezra to visit either of his parents. At the October 23, 2006 hearing, the juvenile court continued the section 366.26 hearing to February 20, 2007. The juvenile court set a hearing to review the permanent plan for December 20, 2006.

The December 20, 2006, Status Review Report states that father had completed a rehabilitation program and was living with his grandmother. The report states that father was working full time and visiting Ezra whenever possible every month. According to the social worker, during a monitored visit on November 13, 2006, Ezra appeared to be very happy to see father and asked, Wheres mommy? Although Ezras grandmother was also present, Ezra focused all of his attention on father. Father interacted appropriately with Ezra and played with Ezra and his remote car. Ezra appeared to be bonded with father. Father was invited to Emilys home for Thanksgiving and spent the day with Ezra. Mother reportedly had not contacted the Department or the social worker to inquire about Ezras welfare. Mother had spoken with Ezra on the telephone in December 2006. Ezras caretaker asked mother to contact the social worker to set up a visit. Mother never called the social worker and did not further call the caretaker.

The February 20, 2007, section 366.26 Report stated that it is highly likely that Ezra would be adopted if parental rights were terminated. Ezra reportedly had received excellent care from his paternal great aunt and uncle and continued to thrive. Outstanding paperwork for the adoption home study remained to be completed. The report states that the C.s were clear that should they adopt, they would like to enter into post finalization contract agreement so that their adopted child will be able to retain ties with his/her birth family and other significant people from their past. The C.s were motivated to adopt Ezra out of a sense of responsibility to provide him with a permanent home and to keep him in the family. Ezra expressed that he would like to remain with the C.s and that he did not mind living with their family. The social worker reported that he had observed that Ezra was very attached to the C.s and that Ezra and his prospective adoptive family had a warm and affectionate relationship. The social worker apparently observed a strong parent/child bond between Ezra and the C.s. The juvenile court continued the hearing to May 1, 2007.

The June 20, 2007, Status Review Report states that father was incarcerated and would be serving about 18 months in jail or prison. Mother recently had been released from jail and was living in a sober living home with her father. Mother also recently contacted the Department to reestablish visitation with Ezra. Subsequently, mother had several monitored visits with Ezra. Mothers overall attitude concerning Ezras prospective adoption by the C.s reportedly was positive and supportive. The matter was continued September 19, 2007, for a completed home study.

The September 17, 2007, Addendum Report states that the C.s continued to provide a loving and nurturing environment for Ezra. Ezra appeared to be secure in his prospective adoptive home and his needs were being met. The C.s remained committed to adopting Ezra and adoption remained the Departments recommendation. The juvenile court continued the section 366.26 hearing to November 6, 2007.

On September 21, 2007, mother filed a section 388 petition. Mother sought a change in the juvenile courts orders concerning monitored visits and the termination of reunification services because she allegedly had been clean and sober for six months, she was living in a sober living home, she had been attending NA meetings two to three times a week for six months, she had attended drug counseling, and had been drug tested through her probation officer. Mother requested the juvenile court to grant her unmonitored visits and to reinstate reunification services. The changes would benefit Ezra, mother contended, because Ezra had a very strong bond with mother, he wanted to visit with her regularly, and he appeared very willing to live with her if that were an option.

In an attachment to the section 388 petition, mother states that in the prior four months she had made every effort to visit Ezra every weekend and to call him twice a week. Mother acknowledged, however that she missed a few weekends because she did not have transportation. According to mother, she and Ezra had a very close bond and he called her mommy. During visits, mother and Ezra played Hot Wheels, watched movies, or played outside. Mother would read Ezra a book at bedtime, and he would cry when she left. Mother claimed to have changed in the prior six months and was now reliable and dependable. Mother admitted that she could not fully care for Ezra, but wanted more visits with Ezra to develop a stronger bond with him. The juvenile court set the section 388 petition for hearing on November 6, 2007.

The Department adamantly opposed mothers section 388 petition. In its response, the Department noted that mother had failed to provide it with evidence of clean drug testing or of drug counseling or parenting programs. Mother had not shown up at the lab to be tested on about seven occasions. Mother had not kept in contact with the Department and her whereabouts were unknown to the Department until October 2007. The Department opined that monitored visits remained appropriate, but noted that Emily expressed concerns even about monitored visits. According to Emily, Ezra seemed bonded with father, and she asked mother not to tell Ezra that father was incarcerated. Nevertheless, mother told Ezra that father was in jail causing Ezra some emotional disturbance. The response stated that Ezra appeared to have a much stronger bond with the C.s and a more stable environment than he had with mother. Ezra appeared to be happy and content. When interviewed, Ezra never mentioned his mother. On November 6, 2007, the juvenile court denied mothers petition. The section 366.26 hearing ultimately was continued to February 26, 2008.

Mother filed another section 388 petition on December 11, 2007, seeking to change the juvenile courts February 23, 2005 order denying family reunification services. Mother based her petition on the ground that tests confirmed that she had been clean and sober for about six months and that she had participated in regular drug counseling at the Acacia Center for about the same time. Mother sought a home of parent order or family reunification services so she could begin to bond with Ezra and bring him home through liberalized visitation. The changes, she said, would benefit Ezra because adoption is an extreme measure. The juvenile court denied mothers petition as duplicative of mothers prior section 388 petition. The juvenile court held that circumstances had not changed sufficiently to warrant a new hearing.

Father filed his own section 388 petition on December 12, 2007, apparently seeking to overturn the denial of family reunification services. Father claimed to have completed a drug rehabilitation program, to have been attending parenting classes, to be employed, and to be visiting Ezra very often. The juvenile court denied the petition.

The December 12, 2007, Status Review Report states that father was released from prison on November 14, 2007. Ezra was reported to be doing well with the C.s, in school, and in the after school program. Mother and father were reported to be having regular, monitored visits with Ezra. The hearing was continued to January 16, 2008.

The Departments January 16, 2008, Interim Review Report states that in an interview on December 28, 2007, Ezra said he liked the visits with his parents and wanted them to continue, but that he wanted to be adopted by the C.s. According to Emily, the parents visited Ezra at least once a week. The visits were monitored. Emily considered the visits ok, but commented that both parents smoked, which sometimes caused Ezras asthma to flair up. Emily stated that she would continue to allow the parents to visit Ezra in the future.

On February 19, 2008, father filed a second section 388 petition challenging the juvenile courts November 6, 2007 order setting a section 366.26 hearing. Father alleged that he was close to finishing a parenting class, he visited Ezra several times a week, which strengthened their already strong bond; he had participated in NA meetings, AA meetings, and aftercare; and he was making a stronger committment [sic] to relapse prevention. Father sought reunification services, unmonitored day, overnight, and weekend visits, and the return of Ezra to fathers care and custody. The change would allow father to be a significant person in Ezras life. Father claimed that he and mother had reconciled. In a letter attached to the petition, father stated that his relationship with Ezra was great. Father claimed never to miss a visit. Ezra seemed to get a lot out of the visits which were very fulfilling.

In its response to fathers section 388 petition, the Department stated that it was adamant about the termination of parental rights. The Department attached to its response a letter from the National Council On Alcoholism And Drug Dependence that stated that father was non-compliant with the programs requirements due to absences. The response states that although father had been released from prison in November 2007, he had not provided the Department with any information concerning drug testing or results or fathers participation in relapse prevention. The Department was concerned about fathers reconciliation with mother as mother had not complied with the Departments recommendations of random drug testing and parenting classes. The Department described fathers monitored visits with Ezra as sporadic at best. The Department also noted fathers admission that he did not presently have a stable home, only the expectation of living in paternal grandfathers house once it was made habitable. The juvenile court denied fathers petition.

On March 20, 2008, father filed a third section 388 petition. In the petition, among other things, father alleged that he had visited Ezra regularly which has preserved the stronge [sic] bonded relationship between father and Ezra. Father claimed to have been drug-free since May 2007. Attached to the petition was evidence in support of fathers claim to have been drug free. The juvenile court denied fathers petition because it did not state new evidence or a change of circumstances and because it was untimely.

At the section 366.26 hearing, father characterized his relationship with Ezra as very connected like no other relationship [hed] ever had. According to father, when Ezra saw father at the beginning of a visit, Ezra had an ear-to-ear smile, charged father like a bull, and ran into fathers arms. Father testified that, on average, he saw Ezra once a week. For more recent visits, Ezra had been brought to father. However, if it had been a while since father had seen Ezra, father would make the extra effort to go see him. Fathers visits with Ezra lasted between three hours and all day. During fathers last all-day visit with Ezra they watched movies most of the day, they watched some sports, they ate, and they played. Father did not believe that anything made Ezra happier than being with father. Ezra became serious when visits were over and was not happy to leave father.

During fathers visits with Ezra, father also talked with and listened to Ezra. Father watched Ezras behavior to see if Ezra was developing in a way where its healthy, where its moral and right. Father had recently attended church with Ezra and explained to Ezra what was taking place. That was the only time that father attended church with Ezra. Ezra asked father about fathers job, and father explained that he cleaned swimming pools.

Father did not know how many times he had seen Ezra during the preceding 12 months. Father admitted that he had been incarcerated for about nine of those months. Father financially supported Ezra, apparently for the first time, the first week of February 2008. Father had not attended any of Ezras medical appointments he had not been told about any appointments, but he had asked about Ezras teeth. Father was unaware of any medical issues Ezra might have or any behavior issues Ezra might have at school.

Mother testified that Ezras favorite food is macaroni and cheese, he attends the Lincoln school, his teacher is Ms. Arroyo, his favorite book is Goodnight Moon, and his favorite colors are white and blue. According to mother, Ezra is musically talented and suffers from asthma. Mother attended a parent/teacher conference the prior Wednesday during which she learned that Ezra has difficulty dealing with conflicts with other students. Mother spoke with Ezra about that difficulty and believed that talking to him had helped because the frequency of the events had decreased a lot.

Amy Endo, a social worker for Los Angeles Dependency Lawyers (LADL), the firm representing mother, testified that she was assigned to observe mother visit with Ezra on three occasions to determine whether there was a bond between mother and Ezra. On February 11, 2008, in the first visit, Endo observed mother and Ezra interact for two hours. During that time, mother assisted Ezra in addressing Valentines Day cards to his classmates. If Ezra spelled a classmates name correctly, mother would say, Good job, pat Ezra on the back, and smile at him. Mother also hugged and kissed Ezra on the head. Ezra smiled and returned the hug. Ezra appeared to be happy throughout the visit and to be sad at the visits conclusion. It appeared to Endo that there was a strong relationship between mother and Ezra.

Endo observed mother and Ezra share a lot of appropriate affection. Ezra addressed mother as mommy or mom. Ezra was responsive to mothers requests, asked mother questions, and shared school experiences with mother. Endo suspected that mother and Ezra shard a bond during the visit. Endos observations during the second and third visits only solidified her impression that mother and Ezra shared a bond.

During one of the visits, Ezra stated that he loved mother more than peanut butter. During the visits, mother read two books with Ezra, played a board game with him, and helped him clean his room. According to Endo, mother engaged in a parenting role with respect to Ezra by asking him questions about school, speaking with Emily about behavior problems Ezra was dealing with at school, and speaking with Ezra about those behavior problems telling him that they might not go to Chucky Cheese if his behavior did not improve.

Emily testified that when Ezra did his homework, [t]he drawings, the words he uses to promote his own sentences are usually related to his mom and dad and his brother. I love my mom. I love my brother. I want to live with my mom and dad. He colors houses, pictures with his parents. According to Emily, Ezra cried and was very emotional when his visits with mother and father were over. Ezra sometimes cried in the middle of the night. Emily opined that He misses them, I know that he does. Mother and father attended a recent parent/teacher conference.

Emily absolutely saw Ezra as being close to mother and father. Emily described Ezras relationship with mother as loving. Ezra always talks about wanting to be back with his mom and his dad. I mean, again, in my own opinion, a child at his age who knows who his parents are going to want to be with their mom and dad.

Emily loved Ezra as if he was one of her own children and wanted to do what was best for him. Emily would adopt Ezra or accept legal guardianship over him depending on the juvenile courts findings. If the juvenile court determined that adoption was best, Ezras parents would still be in Ezras life.

At the conclusion of the hearing, the Departments and Ezras attorneys argued for termination of mothers and fathers parental rights, arguing that neither parent had met their burden of establishing the section 366.26(c)(1)(B)(i) exception to the termination of parental rights. Mother and father argued that they had established the exception and requested that the juvenile court establish a legal guardianship over Ezra in Emily. The juvenile court found that father had maintained regular visitation with Ezra, but that mother had not. The juvenile court also found that neither parent had occupied a parental role in Ezras life. The juvenile court held that mother and father failed to establish the section 366.26(c)(1)(B)(i) exception and terminated mothers and fathers parental rights.

DISCUSSION

The Juvenile Court Properly Terminated Mothers And Fathers Parental Rights

Mother and father contend that the juvenile court erred in failing to find the section 366.26(c)(1)(B)(i) parental visitation exception to the termination of parental rights. The juvenile court did not err.

A. Standard of Review

Some courts have held that challenges on appeal to a juvenile courts determination under section 366.26(c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A))[4]are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 & fn. 4.) Under a substantial evidence standard of review the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Other courts have applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of review, we will not disturb the juvenile courts decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile courts ruling on the section 366.26(c)(1)(B)(i) exception is reviewed for substantial evidence or abuse of discretion, because, under either standard we affirm the juvenile courts decision. It is important to recognize that even though there may be evidence supporting the positions of mother and father, that is not dispositive. Our role is to determine if there is at least substantial evidence supporting the Departments position.

B. The Parental Visitation Exception

Once a juvenile court finds that a child is likely to be adopted after removing the child from parental custody and has terminated reunification services, parental rights may be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under certain exceptions set forth in section 366.26, section (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (Id. at p. 53.)

The parental visitation exception in section 366.26(c)(1)(B)(i) provides that parental rights will not be terminated and a child freed for adoption if the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Italics added.) Application of the parental visitation exception consists of a two-prong analysis. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The first is whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second is whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. (Ibid.) The parent/child relationship must 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. 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 parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

The visitation exception does not apply when a parent fails to occupy a parental role in his or her childs life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the former section 366.26(c)(1)(A) exception].) [T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception aris[es] from day-to-day interaction, companionship and shared experiences. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined 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 childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)

Determinations of such issues as whether a parent is fulfilling a parental role and whether there is a benefit to a child, are not based on factors that can be identified with precision. These are determinations that are made by the juvenile court. We can only intervene if there is not at least substantial evidence to support the juvenile courts determination.

1. Mother

The record shows that as of June 2005, mother had been participating in various programs including a drug rehabilitation program. Mother was testing clean, doing well, and having frequent contact with Ezra. As of October 2005, mother had been testing dirty and had stopped visiting Ezra as often. In April 2006, the Department reported that mother had visited Ezra a few times since the December 22, 2005 hearing. In July 2006, Ezra told a social worker that he missed mother, that he would like to see her, and that he had not seen her for a long time. The next reported contact between mother and Ezra is a December 2006 telephone call. At that time, Emily asked mother to contact a social worker to set up a visit. Mother did not call the social worker. In June 2007, mother was reported to have been released from jail recently after which she contacted the Department and made arrangements to have several monitored visits with Ezra. As of December 2007, mother was having regular, monitored visits with Ezra. In January 2008, mother reportedly had been having monitored visits with Ezra at least once a week.

The record also shows that Ezra knew mother as mommy, he loved and missed her, he was happy to see her, and he interacted well with her. Mother knew Ezras favorite food, book, and colors, and she knew that he is musically inclined and suffers from asthma. Mother also knew the school Ezra attended and his teachers name. Mother had attended a single parent/teacher conference. Mother knew that Ezra was having a problem at school and she discussed that problem with Ezra and his teacher. During observed visits, mother helped Ezra address Valentines Day cards, read books with him, played a board game with him, and helped him clean his room.

Substantial evidence supports the juvenile courts determination that mother neither visited Ezra regularly nor occupied a parental role in Ezras life. Ezra was two-and-a-half-years-old when he was detained in January 2005. The juvenile court terminated mothers parental rights some three years later in March 2008. During those intervening three years and mothers apparent struggle with drug abuse, mother did not have custody of Ezra, she visited Ezra irregularly, she did not progress beyond monitored visits, and she did not participate in Ezras life in any significant manner until the eve of the section 366.26 hearing, and then she did not participate in a manner that properly could be described as occupying a parental role. There was evidence that she did not deal extensively with Ezras doctor appointments or school. It was reported she attended one parent-teacher conference, but there was no indication of other interactions with Ezras school. She spent much of his life involved with drugs. Compared with his caretakers, she spent relatively little time with him. Thus, there was substantial evidence before the juvenile court that exceptional circumstances were not present to warrant the juvenile court to choose an option other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)

2. Father

Father contends that the juvenile court imposed a standard for application of the section 366.26(c)(1)(B)(i) exception that is impossible to meet by any parent who does not have custody of the child. Father finds this purported standard in the juvenile courts statement that Emily and not father had met Ezras parenting needs 24/7. The juvenile court, citing various cases, stated, all of those cases recognize the parents very often have a loving relationship with their child. Parents very often have maintained a relationship, but some relationship is not enough that the relationship needs too [sic] meet the childs need for parenting 24/7. And the person who has met those needs 24/7 is Emily. In context, it is clear that the juvenile court did not necessarily convey that a parent seeking application of the section 366.26(c)(1)(B)(i) exception has to be present for every minute of the childs life. Rather, the juvenile court was drawing a distinction between a parent who has loving contact with a child and a caretaker who occupies a parental role in a childs life.

Substantial evidence supports the juvenile courts determination that father did not occupy a parental role in Ezras life. Fathers testimony largely provided the evidence concerning whether father occupied a parental role in Ezras life. According to father, during his most recent all-day visit with Ezra, they watched movies most of the day, they watched some sports, they ate, and they played. Father testified that during visits, he talked with and listened to Ezra. Father watched Ezras behavior to see if Ezra was developing in a way where its healthy, where its moral and right. On one occasion, father attended church with Ezra and explained to Ezra what was taking place. But for the single visit to church and fathers observation of Ezras moral development, fathers relationship to Ezra has been in the nature of a playmate or a friendly visitor. There was evidence that father had spent much of Ezras life in and out of jail and involved with drugs. He did not take Ezra to doctors, and except for one reported instance, there is no indication he had any interaction with his school. Father was not aware that Ezra was having any behavior problems at school. Thus, there is substantial evidence that the relationship is insufficient to establish the type of parental role necessary to implicate the parental visitation exception. (In re Casey D., supra, 70 Cal.App.4th at p. 52; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

It may well be that both mother and father are now living appropriate lives and are interested in their child. But, it is important to recognize that the statutory exceptions to the termination of parental rights apply in exceptional circumstances and that it was mothers and fathers burden to prove the applicability of such an exception. The trial court has found that they did not meet that burden. Our role is only to ascertain whether there is sufficient evidence to support the trial courts finding. If there is, we cannot, under the applicable law, reverse the trial courts determination, even if there is contradicting evidence.

DISPOSITION

The order terminating mothers and fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] The order terminating mothers and fathers parental rights to Ezekiel is not in issue in this appeal. Accordingly, the recitation of facts below omits references to Ezekiel.

[2] All statutory citations are to the Welfare and Institutions Code unless otherwise noted.

[3] Pursuant to California Rules of Court, rule 8.200(a)(5), each parent joins the opening brief of the other parent.

[4] Section 366.26, subdivision (c)(1)(A) was renumbered 366.26(c)(1)(B)(i) effective January 1, 2008. (Stats. 2006, ch. 838, 52.)