Filed 9/8/17 In re J.B. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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B.B., mother, and K.S., father of the minor J.B. appeal from the juvenile court’s orders terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)[1] They contend the court erred in failing to apply the beneficial parent-child relationship exception to adoption. Finding the burden of proving the exception was not met, we shall affirm the orders terminating parental rights.

BACKGROUND

B.B. was born in January 2015. Mother tested positive for methamphetamine and opiates when she gave birth. Father was incarcerated during the pregnancy. The minor began to show severe symptoms of withdrawal from controlled substances within 48 hours of birth and spent a significant amount of time in the neonatal intensive care unit. Mother admitted using heroin and methamphetamine one and a half weeks before the minor was born. She voluntarily entered substance abuse treatment in February 2015.

The minor was released from intensive care in March 2015. After mother admitted using methamphetamine again, Placer County Health and Human Services (the Department) filed a dependency petition (§ 300) in June 2015. The minor was detained by the juvenile court later that month.

The August 2015 jurisdiction and disposition report related both parents’ history of drug abuse. Father lived with mother when he was released from prison in May 2015. According to father, their relationship ended after she started using drugs again.

The juvenile court sustained the petition and ordered services for the parents at the August 2015 combined jurisdiction and disposition hearing.

Mother, who was incarcerated during most of the dependency proceedings, did not participate in services or visit the minor. Her services were terminated at the March 2016 six-month hearing. Services were continued for father at the same hearing.

The Department recommended terminating father’s services in an August 2016 report. Father repeatedly failed to drug test, claiming a busy work and school schedule, plus kidney dysfunction that led to an inability to urinate. The Department was not given any medical documentation of father’s alleged kidney problems. Father was active in his recovery group and was making excellent progress in individual therapy. He regularly visited the minor and acted appropriately with her during the visits. The minor responded well to father and there was a recognizable bond between them.

An October 2016 report from the Department noted the minor was placed with her current foster parents when she was five months old. Her medical, emotional, social, and physical needs were met there.

The juvenile court terminated services, set a section 366.26 hearing, and ordered a bonding study at the October 2016, 12-month hearing.

The psychologist who conducted the bonding study interviewed father and the foster parents, and observed the minor’s interactions with them. He found father maintained regular visits with the minor. The minor was 24 months old and the foster parents were “the only day-to-day parents/caretakers she can remember.” The minor would benefit from an ongoing relationship with father. Although she was nonresponsive in the first observed visit with father, the minor presented very differently in the second session, which demonstrated “a consistent pattern of varied/positive [e]ffect, laughter, etc.” The psychologist “did not see that much indication of a ‘parent-child’ relationship from the sample of behavior provided in this relationship evaluation methodology.” He “found it noteworthy” the minor “did not refer to her father by the term ‘daddy’ until toward the end of the second observation session, and did not interact with her father at all during the first observation session.” The psychologist also found the minor “would clearly benefit” from maintaining the relationship with her foster parents. She demonstrated “healthy development across the board” that was “associated with secure attachment relationships” with the foster parents.

The psychologist concluded the minor would be greatly harmed if her relationship with the foster parents was terminated at the time. The record was “mixed” regarding her relationship with father. While she “genuinely enjoyed interacting with her father,” the minor did not relate to father as a parent figure. The minor did not “appear to have a well-developed attachment relationship with her father, again referring to a parent-type figure that a child seeks out for safety and support, in particular when feeling anxious and/or under stress.” Finding there was data on both sides of the question, the psychologist did not believe the minor would “experience ‘great harm’ ” if her relationship with father was terminated at the time. Finally, the psychologist found the advantages to the minor of long-term placement with father would not outweigh the detriment she would experience if her relationship with the foster parents was terminated.

A January 2017 report related that the foster parents wanted to adopt the minor.

Father did not present evidence at the contested section 366.26 hearing, but counsel argued the juvenile court should apply the beneficial parental relationship exception to adoption. The juvenile court found father did not carry his burden of proving the exception and terminated parental rights.

DISCUSSION

Father contends the juvenile court erred in failing to apply the beneficial parent-child relationship exception to adoption. Mother joins father’s arguments “to the extent they are relevant” and asserts if the order terminating father’s parental rights is reversed, then the order terminating mother’s parental rights must also be reversed.

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.]’ [Citation.] 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, italics omitted.) There are only limited circumstances that 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).) The party claiming the exception has the burden of establishing an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(2).)

Termination of parental rights may be detrimental to the minor 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).) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We review with deference a juvenile court’s rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; In re Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)

To prove the beneficial parental relationship exception applies, “the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits--the parent must show that he or she occupies a parental role in the life of the child. [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “[T]he parent must show that severing the natural parental relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466, italics omitted.)

While father maintained consistent visits with the minor and the minor enjoys her relationship with him, this interaction does not support applying the beneficial parental relationship exception. The minor was removed from the parents when she was five months old and viewed the potential adoptive parents, who cared for her since then, as her parents. The psychologist found in the bonding study that the minor’s relationship with father, while beneficial, was not that of a parent and child, and the minor would not be greatly harmed if that relationship was terminated. Based on this record, we conclude the trial court did not err in finding the beneficial parent-child exception to adoption did not apply.

DISPOSITION

The juvenile court’s orders are affirmed.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

RENNER, J.