In re T.T.

Filed 2/6/09 In re T.T. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of Kings County. George L. Orndoff, Judge.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

F.S. (father) appeals from orders terminating his parental rights (Welf. & Inst. Code, 366.26)^[1]to his two sons. He contends the juvenile court erred in reaching its decision because there was insufficient evidence of the boys adoptability and, based on their parent/child relationship, termination would be detrimental. He also joins in arguments made by his sons mother in her separate appeal, In re T.T., et.al. (F055814), in which she also challenges the courts adoptability finding. We affirmed in mothers case, in which we rejected mothers challenges to that finding and concluded the finding is supported by substantial evidence. On review of fathers appeal, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

Summary of Prior Proceedings

Dependency proceedings in this case have been ongoing since December 2003 when the juvenile court exercised jurisdiction over then four-year-old T. and four-month-old F. due in large part to their mothers drug use. Although the boys were placed in foster care, by October 2004 mother was sufficiently compliant with reunification services that she regained custody of the boys under a plan of family maintenance.

In February 2005, however, the Kings County Human Services Agency (agency) detained the boys and filed a supplemental petition alleging mother failed to comply with her court-ordered case plan requirements as she did not participate in mental health counseling and drug testing, did not take T. for a mental health assessment, and negligently failed to seek medical care for F., placing him at significant risk of harm. Neither mother nor father appeared at the April 2005 combined detention and jurisdiction hearing, at which the court found the allegations true. At the disposition hearing held the same month, the court removed the boys from their parents and denied further reunification services.

At the initial section 366.26 hearing held in August 2005, the juvenile court ordered a plan of adoption for the boys without terminating parental rights, and that efforts be made to locate an appropriate adoptive family within 180 days. In March 2006 the juvenile court ordered the boys into long-term foster care after the boys non-relative care-providers were no longer interested in adopting them and no other adoptive families were identified. On August 23, 2006, the boys were placed in a prospective adoptive home, where they remained throughout the remainder of the proceedings.

In May 2007, mother filed a section 388 petition asking the court to place the children with her under family maintenance. A contested hearing was held over four separate court sessions that concluded in October 2007. At the first court session, held on August 23, 2007, the issue of whether T. would testify was addressed. T.s therapist, Debora Hughes McManus, testified she had been providing therapy for T. since November 2006, and had diagnosed him with generalized anxiety with depressed mood and oppositional conduct, and dysthymia with early onset. MacManus opined that requiring T. to testify would be damaging to him and amount to another trauma in his life; T. finally had settled into his new placement and was stabilized, and having him testify would be a major disruption. McManus explained that at that point in time, T. had control and enough structure where he felt capable, and if forced to testify, T.s sense of control would be affected because she thought T. has finally accepted that he is going to be living in foster care, that he is still going to have his family, but he has a foster family, and that idea is implanted in his brain and he has accepted that. And I think if you were even to introduce the idea that its possible for him to go home, his whole world is going to be turned over. McManus stated she had been approaching therapy from the presumption that T. was in a fost-adopt situation. The court found it was in T.s best interest not to testify and accepted the parties stipulation that if called to testify, T. would state he wanted to go home and live with his mother.

After testimony from mother, a social worker, T.s de facto parent, and mothers therapist, the court denied the section 388 petition. Mother appealed from the courts order, which we affirmed in an unpublished decision. (In re T.T., et al. (June 18, 2008, F054179) [nonpub. opn.].)

In February 2008, the juvenile court conducted a continued and contested post-permanency plan review hearing on the agencys request to set a section 366.26 hearing to change the boys permanent plan to adoption. At the conclusion of the hearing, the court followed the agencys recommendation and set a section 366.26 hearing. Mother challenged the courts order by extraordinary writ petition, which this court denied in our case No. F054737 filed on May 23, 2008.

The Section 366.26 Hearing

The court eventually conducted the section 366.26 hearing in July 2008. In May 2008, Jenny Young-Cortez, an adoption specialist with the California Department of Social Services (CDSS), filed a 366.26 WIC Report assessing the boys adoptability. According to her report, it was likely that the boys would be adopted if parental rights were terminated. Young-Cortez evaluated each child as follows.

Nine-year-old T. was in good medical and physical health. At his last physical examination in October 2007, T. was prescribed a nasal spray for allergies and two inhalers for asthma. His physicians notes indicated his asthma was controlled, as were his behavioral problems; no other problems were noted. T. was developmentally age-appropriate in most areas, and while he was working on improving his social skills, the prospective adoptive parent reported T. had a more positive, respectful attitude towards his peers compared to the last academic year, and she had no concerns that would warrant a referral for further assessment. T., who was in the third grade, was performing above grade-level. His behavior at school had improved substantially as he was able to stay focused, successfully complete his deskwork and homework, and encountered fewer fights with his peers during recess.

After a January 2007 psychological evaluation, T. was diagnosed as an emotionally disturbed child with the following disorders: severe disruptive behavior disorder, not otherwise specified (NOS), moderate anxiety disorder NOS, and early onset dysthymic disorder. In January 2008, a psychiatrist diagnosed T. with attention deficit hyperactivity disorder (ADHD). T. was attending once weekly therapy with Debora McManus, and had been prescribed psychotropic medication since June 2007. According to his psychiatrist, T. did not have any side effects from the medication and her clinical impression of T.s behavior has been stable; T. had improved his judgment and his prognosis was good. T. had also received therapueutic behavioral services (TBS) in the placement home and sometimes at school, where a therapist provides the child and prospective adoptive parent intervention tools, therapeutic services, and behavior modification on a one-on-one basis. The prospective adoptive parents use of TBS had decreased over the last six months, which was a significant improvement in T.s behavior, and TBS services were terminated in April 2008.

Four-year-old F. was also in good health, although he had allergies and asthma, which was controlled by inhalers. In December 2007, F. began attending once-weekly speech therapy sessions through the school district because he required additional work with articulation of sounds and enunciation of certain letters. He continued to show large improvements with his speech. Other than his speech, F. appeared to be developmentally age-appropriate in all areas and was reported to be a bright and clever child who was academically on-target in his preschool program. F. began exhibiting challenging behaviors the year before, such as throwing extended tantrums, refusing to comply with or pretending not to hear directives, refusing to listen to the babysitter, being disruptive in the classroom and showing aggression and antagonism towards other children as well as his brother. To address these behaviors, F. began attending one-hour weekly therapy in November 2007. Since attending the therapy, F. had learned there are consequences for his actions and was more accountable for his behaviors.

The boys each had lived in eight placements over the course of their dependency. Although Young-Cortez did not discuss their placement history, authors of earlier reports did. When the boys initially were detained in August 2003, they were placed in foster care. Between their initial detention and their return to mothers custody a year later, T. lived in four placements while F. lived in two. By April 2004, they were living together with their maternal grandmother, where they remained until their return to mothers custody in August 2004. After the boys were removed once again from mothers custody in February 2005, they were placed together in a foster home. The foster parent at first considered adoption, but eventually decided not to adopt the boys due to T.s continual behavioral issues, which included failing to respond to authority figures, lying, stealing, being stubborn/oppositional/defiant and aggressive/assaultive, having tantrums, and poor sibling and peer relationships. The foster parent agreed to retain custody of the boys until a permanent home could be found. On January 6, 2006, the boys were placed with a second prospective adoptive family, who had been visiting with the boys since November 2005. By March 2006, however, the family had decided not to adopt after expressing concerns over T.s behavior at home and in school.

On August 23, 2006, the boys were placed in a third prospective adoptive home. The prospective adoptive mother said she was interested in adopting the boys. In January 2007, the prospective adoptive mother reported she had been working on T.s behaviors, which were manageable at home but had worsened at school and with the babysitter. Consequently, the prospective adoptive mother requested additional support and services. She stated that while she loved the boys, if T.s behavior did not improve with additional services, she would no longer support his continued placement in her home.

Young-Cortez reported that through therapy and the patience of the prospective adoptive parent, the boys behaviors had improved significantly, the placement had stabilized, and the prospective adoptive parent was prepared to proceed with adopting the boys. Young-Cortez explained the prospective adoptive parent had been approved for adoption since March 10, 2006, and requested placement of the boys with the goal of adoption in the future. The prospective adoptive parent had been the boys care-provider for one year and nine months, had developed a close, loving relationship with them, was prepared to move forward with a more permanent plan of adoption, and it appear[ed] likely [the boys] will be adopted by the prospective adoptive parent if parental rights were terminated.

Young-Cortez had not observed any visits between mother, father and the boys, which visits were arranged and supervised by the agency. According to agency records, since long term foster care had been ordered in March 2006, father and mother had been allowed once-monthly supervised visits at the agency office. The boys two younger siblings, who were not dependent minors, as well as their maternal grandmother, were also present at a majority of the visits. The parents had been consistent in keeping their scheduled visits, having cancelled only two visits in June 2006 and August 2007, one due to pregnancy complications and the other due to difficulties traveling with the boys sibling. No problems or concerns were reported at the visits. The parents usually brought food, toys and clothing and interacted appropriately with the boys. The parents and maternal grandmother hug and kiss the boys, but the boys do not appear to reciprocate these feelings.

The agency assistant who supervised a majority of the visits since June 20, 2005, reported that T. did not appear to be very close to or affectionate with his parents, but T. was close to his maternal grandmother. F. did not appear to be very close to or affectionate with either his parents or his maternal grandmother, and he readily left to go home to the prospective adoptive parent, who was the only person F. was affectionate toward. The assistant believed both boys were securely attached to their prospective adoptive parent and considered her to be their primary care-provider. The assistant stated that the parents were generally appropriate towards the boys. The assistants impressions were that the boys had fun during visits, but when visits ended they readily left to go home to the prospective adoptive parent, who they viewed as a mother figure.

A preliminary adoption assessment of the identified prospective adoptive parent indicated she appeared suitable for adoption of the boys. The prospective adoptive parent had always wanted to adopt children and when presented with the boys special needs, she made a commitment to provide them a permanent home and be a responsible and loving parent. Since the boys were placed in her home, she has realized she cannot live without them and wishes to adopt them. The prospective adoptive parent was willing to provide a home for the boys despite being aware they presented with behavioral and emotional challenges. She followed through with medical, developmental, educational and therapeutic appointments as recommended, and had developed a better understanding of their special needs, striving to ensure she is able to find available resources to meet them. Young-Cortez reported the prospective adoptive parent appeared committed to the permanent care and support of the boys and had stated she was anxious to complete the adoptive placement and finalization process so they could become permanent members of her family.

F. was too young to communicate his opinion regarding the placement and prospective adoption. T. stated he enjoyed his placement and was fine and happy living with the prospective adoptive parent. T. called the prospective adoptive parent Mom and stated her daughter was a good sister to him. When informed his prospective adoptive parent was interested in adopting him, T. indicated he would like to continue to see his birth family once in awhile after his adoption. T. reported he was cool with being adopted and indicated he knew the best place for him was to remain with the prospective adoptive parent. T. did state he wished to return to his birth family when he turns 18 years old. T. understood his prospective adoptive parent wished to adopt him and F., and he reported he accepted the idea.

Young-Cortez reported that future visitation between father, mother and the boys would be at the prospective adoptive parents discretion. The prospective adoptive parent stated that she felt it was best for T. to have continued contact with his birth family once the adoptions are finalized. To that end, she would allow the boys to have face-to-face contact with their birth parents and maternal grandmother, but only during special events such as the boys birthdays and Christmas, and was willing to transport the boys for visits as long as the birth family was willing to reciprocate by traveling to her area to meet with the boys. She also would continue to welcome written correspondence, cards, telephone calls and photographs between the boys and their birth family.

Young-Cortez stated it would not be detrimental to terminate fathers and mothers parental rights in order to provide permanency for T. and F. through a plan of adoption. Although case records and discussions with the agency assistant indicated there was some bond and attachment between T[] and [his] birthparents, it is not a significant bond to warrant maintaining parental rights and keeping T[]in foster care until the age of majority. Those records and discussions also showed that F. did not appear to share a significant bond and attachment to anyone other than the prospective adoptive parent.

At the July 2008 hearing, county counsel, on the agencys behalf, submitted its case on Young-Cortezs report, an addendum report that listed additional findings requested of the juvenile court, and the case file, of which the court took judicial notice. The agency also called Young-Cortez as a witness. Young-Cortez testified she was an adoption specialist who had been employed with the CDSS for eight years. She also had worked as a social worker for four years with social services in Tulare, Madera and Fresno counties, and nine years with the CDSS.

Young-Cortez testified the boys were in very good physical condition and health, and there was no concern their physical condition would preclude them from adoption. F. was emotionally delayed and functioning at a two-year old level, while T. was diagnosed as emotionally disturbed. In Young-Cortezs opinion, these emotional conditions would not preclude the boys from adoption. When asked if it was likely the boys were to be adopted in this case, she responded, In this family, yes. When asked if she had an adopted family in mind, she responded, Yes, I do. Young-Cortez had been involved in this case from three to five years, had been familiar with the boys for awhile, and reported the boys were doing very well in their placement and had made significant progress since placed there in August 2006.

Young-Cortezs initial assessment of the boys when they were placed into long-term foster care found them not adoptable due to their emotional problems. Young-Cortez explained the current foster mother was always committed to adoption, but she wanted to stabilize them due to their emotional problems. Young-Cortez agreed that the agency had reported the birth parents interaction with the boys generally had been favorable and therefore she did not have any reason to believe there would be a problem between the birth parents and the boys. At the beginning she considered whether it would be in the boys best interests to return them to their birth parents, but she had not reconsidered that option. She had considered placement with the maternal grandmother, but determined it was not in the boys best interests and would be detrimental to them.

There was no question in Young-Cortezs mind that the current adoptive family would go through with the adoption. Young-Cortez believed the boys referred to their birth parents as mom and dad, thereby appearing to recognize them in a parental role. While T. was a nine-year-old emotionally disturbed child, in Young-Cortezs opinion he was still an adoptable child, as she would be able to locate a family for him even if his current caregiver did not want to adopt him. While four-year-old F. was functioning emotionally at a two-year-old level, Young-Cortez opined he would still be an adoptable child even if his current caregiver did not want to adopt him and she would be able to find an adoptive family for him because he was making improvements.

Although Young-Cortez believed there was a relationship between the boys and their birth parents, she did not believe there was a significant attachment. She characterized the relationship as someone the boys come to see once a month, and they play with, and they get to go home. When it is time to go home, the boys are not upset or disturbed by leaving. From April 2006 to the time of the hearing, father had not missed a visit. Young-Cortez discussed with the prospective adoptive parent the idea of the birth parents having continued contact with the boys after the adoption and she was open to it, although she was not willing to enter into a post-adoptive contract. Young-Cortez did not discuss legal guardianship with the prospective adoptive parent because she had completed an adoption home study with the intent to adopt, and went through the entire adoption program and training with the adoption agency.

Young-Cortez had discussed with T. what would happen when he is adopted, but did not tell him he might not see his birth parents ever again because the prospective adoptive parent had entertained a thought of keeping contact open. Young-Cortez agreed T. had [a] history with his birth parents and knows them, and that F. knows his birth parents are people that love him. Young-Cortez spoke with the prospective adoptive parent about discussing the adoption with the boys and asked her to discuss with T. the possibility he would see his parents after the adoption, and they are a very important part of his life. Young-Cortez asked T. questions about how he feels about his birth parents, and T. says he does miss them.

Mother testified she was opposed to termination of her parental rights because she didnt think the agency gave she and father the chance to get the boys back the right way and did not try to let father get them. Mother believed she had done everything she had been asked to do and complied with her case plan. Mother felt it was in the boys best interests to be returned to either her or father because they are their kids, she loves them, and she can take care of them.

Father testified he visited the boys once a month for an hour and had never missed a visit. There was a time when his visits were more frequent. During his once-a-month visits, which are supervised, father and the boys played baseball, ate sweets and had conversations about school and types of stuff. The boys call him Dad and mother Mom. When visits are over, T. cries a little, while F. just leaves because he is young still he didnt really know. Father did not think the boys wanted their visits to end because they have so much fun at the visit, but they know when it is time to go. Father testified the boys used to cry when visits ended, but they now were comfortable with the routine and used to it.

The last time father lived with the boys was for four months when they were under family maintenance, but he didnt remember what year that was. During that time, father was the man of the house and did things like help T. with his homework. Father did not talk to the boys about the adoption, but he knew T. didnt want to be adopted and claimed [t]hey are putting it in his head. When asked how he knew T. didnt want to be adopted, father responded [b]ecause I know he loves his parents more than anybody in this world so I already know. Father said both T. and F. give both he and mother hugs and kisses during visits, although sometimes F. is stubborn and doesnt want to do it. Father did not want the boys to be adopted because he loves them and if they are adopted, theres no telling what I am going to be at in this world. Father wanted to continue to have contact with the boys if they were adopted.

During closing arguments, the agencys counsel requested the court terminate parental rights with the goal of adoption. Agency counsel asserted the agency had met its burden of showing the boys were likely to be adopted, as they were relatively young and in good physical condition, and the boys emotional problems were improving, especially since being placed with the current prospective adoptive parent who was willing and committed to adopting them. The childrens counsel asked the court to follow the agencys recommendation. Mothers counsel argued the evidence was clear that this was not a guaranteed adoption, as the boys previously had been found to be non-adoptable and although they were placed in a household that was able to deal with their special needs, that household had asked for an extension of time so the boys could be stabilized. Mothers counsel also argued that because the adoption was not guaranteed to occur, it was not in the boys best interests to terminate parental rights since the boys had a relationship with their birth parents. Mothers counsel asked the court to not terminate parental rights and to continue the boys in foster care until it could be determined whether the adoption would really occur. Fathers counsel joined in mothers counsels argument, agreeing that the adoption was not certain to go through, and argued that guardianship should be discussed first with the prospective adoptive parent. Fathers counsel also argued there was a close bond between the parents and the boys which would be detrimental to sever, and urged the court to order either guardianship or long-term foster care.

Upon submission, the court found the boys were likely to be adopted and made the requisite findings to terminate parental rights.

DISCUSSION

Adoptability

Father argues the juvenile court erred in concluding the boys are adoptable. Relying primarily on testimony by T.s therapist at the hearing on mothers section 388 petition nearly a year before the section 366.26 hearing, he asserts that T. is not adoptable because his emotional health requires maintenance of ongoing parental contact that the prospective adoptive parent did not guarantee to provide. He further asserts that if we conclude T. is not adoptable, F. also should not be adopted in order to maintain the sibling relationship.

Before a juvenile court may terminate parental rights at the section 366.26 hearing, it must find by clear and convincing evidence that it is likely the child will be adopted. ( 366.26, subd. (c)(1).) The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) [] Conversely, the existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the childs age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parents willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) (In re A.A. (2008) 167 Cal.App.4th 1292, 1311-1312 (A.A.).)

Having reviewed the record as summarized above, we conclude there was substantial evidence to support the courts adoptability finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) At the time of the section 366.26 hearing, the boys were healthy and doing well in their adoptive home. T. was developmentally age-appropriate in most areas and his social skills were improving. Although T. had been diagnosed as emotionally disturbed and with ADHD, his behavior at home and school, as well as his judgment, had improved as a result of ongoing therapy and medication, and his prognosis was good. While F. was functioning emotionally at a two-year-old level, he was in therapy and had made improvements. F. was in speech therapy to address problems he was having with his expressive language skills, which were improving. Both boys were doing well academically; T., who was described as a smart child and a quick learner was performing above grade-level and F., who was described as a bright and clever child, was on-target at his preschool.

The prospective adoptive parent was well aware of the boys educational and therapeutic needs and was actively engaged in meeting them. Although five months after the boys were placed with her the prospective adoptive parent stated that unless she received additional services for T. she could not support his continued placement in her home, over the next 16 months additional services were provided, T.s behavior improved and stabilized, and the prospective adoptive parent, who realized she could not live without the boys, was committed to providing them with a permanent home.

Given the boys positive attributes, the progress they were making in overcoming their behavioral and emotional problems, along with the prospective adoptive parents willingness to adopt them, the court properly could find it was likely the boys would be adopted.

Father asserts the adoptability finding is not supported by substantial evidence. He contends it is an uncontroverted fact that T. requires on-going contact with his parents in order to maintain his fragile emotional health. Father reasons that since T. needs on-going parental contact and the prospective adoptive parent is unwilling to enter into a post-adoption contract that would guarantee such contact, the prospective adoptive parent is unlikely to adopt.^[2]

Fathers entire argument is based on the premise that the juvenile court was required to find that T. needed on-going parental contact to maintain his emotional health. We disagree, however, that this fact is uncontroverted or even established by the evidence. Although Young-Cortez testified at the section 366.26 hearing that T.s birth family was a very important part of his life, no evidence was presented at that hearing to show that T.s emotional health would be affected negatively if he did not have continued contact with his birth family. Instead, Young-Cortez opined that termination of parental rights would not be detrimental to T. and T.s bond with his parents was not significant enough to warrant keeping him in foster care until he was 18 years old. This opinion was supported by evidence that although the birth parents hugged and kissed the boys during visits, the boys did not appear to reciprocate these feelings. While T. told Young-Cortez he wanted to see his birth family once in awhile after the adoption and to return to them when he turned 18, there is nothing in his statements to support the conclusion his emotional health would be jeopardized if he did not have ongoing contact with his birth family.

The other evidence father relies on to support this premise, namely the testimony from T.s therapist at the August 2007 hearing held to determine whether T. should be compelled to testify at the hearing on mothers section 388 petition, was given 11 months before the section 366.26 hearing. Accordingly, it does not address T.s emotional health at the time the juvenile court was considering whether to terminate parental rights. For this reason alone, the juvenile court was not compelled to conclude that on-going parental contact is necessary to meet T.s special emotional needs.

The therapist, McManus, testified that she engaged in therapy from the presumption that T. was in a fost-adopt situation, which the social worker advised her of when T. was in crisis in April 2007, but McManus never explained what she meant by fost-adopt. She did testify that T. became more settled in his behavior after she discussed with him the possibility he would live with his foster mother until he was 18 and still see his parents, but she did not testify about how T. might be affected should he be adopted and contact with his birth parents possibly ended. When asked how forcing T. to testify would affect his sense of control, McManus explained, I think T[] has finally accepted that he is going to be living in foster care, that he is still going to have his family, but he has a foster family, and that idea is implanted in his brain and he has accepted that. And I think if you were even to introduce the idea that its possible for him to go home, his whole world is going to be turned over. This testimony says nothing about whether T.s emotional health would be negatively affected if he no longer had contact with his birth family after his adoption. Since McManuss testimony did not address T.s emotional health as of the July 2008 section 366.26 hearing, the juvenile court reasonably could conclude, based on the adoption assessment and Young-Cortezs testimony, that T. was stable in his placement and on-going contact with his parents was not integral to his emotional health.

Since the premise upon which fathers argument regarding the juvenile courts adoptability finding is based, i.e. that ongoing contact is necessary for T.s emotional stability, is not supported by the evidence, his conclusion stemming from that premise, namely that the prospective adoptive parent is unlikely to adopt the boys if ongoing parental contact is required, is without merit and entirely speculative. Essentially, father approaches the question of T.s adoptability by picking and choosing evidence from the record in support of his argument, which is not an approach we may follow on review. Our power as an appellate court is to assess the sufficiency of the evidence, which begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (A.A., supra, 167 Cal.App.4th at p. 1313.) Simply put, there is sufficient evidence to support the juvenile courts finding that both boys are likely to be adopted.

Beneficial Relationship Exception to Adoption

Father contends the juvenile court erred when it declined to find termination would be detrimental to the boys best interests. He claims he was entitled to such a finding because he maintained regular visitation with the boys and they would benefit from continuing the relationship ( 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]). On review of the record, we find no abuse of discretion.

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.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) Instead, it is the parents burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351), not whether there was substantial evidence to support the courts decision, as father would prefer. On review of the record, we find no abuse of discretion.

We assume, for the sake of argument, father maintained regular visitation with the boys. Father, however, failed to establish his relationship with the boys was so strong that they would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a childs frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Fathers visits with the boys, which were very restricted in terms of time, place, contact and supervision, occurred only once a month and were supervised. While father testified the boys loved him, and kissed and hugged him, the agency reported that they did not reciprocate when their birth parents hugged and kissed them and did not appear very close to, or affectionate with, their birth parents. According to the agency, the boys readily left the visits when they ended.

Despite the lack of evidence of a strong relationship with the boys, father contends, as he did with respect to the adoptability finding, that T.s emotional health would be adversely affected if parental contact is not maintained. We reject this contention for the same reasons stated above.

We also reject fathers reliance on In re S.B. (2008) 164 Cal.App.4th 289, 298-301 (S.B.). In S.B., the court rejected the agencys argument that the beneficial relationship exception does not apply unless the child has a primary attachment to the parent. (Id. at p. 299.) S.B. found the juvenile court erred in failing to find the beneficial relationship applicable in that case.

Factually, S.B. bears only superficial similarity to the instant action. The father in S.B. maintained a parental relationship through consistent visitation, devotion to the child, full compliance to the case plan, and continued efforts to regain physical and psychological health. (S.B., supra, 164 Cal.App.4th at p. 300.) The record in S.B. showed that the child loved her father, wanted their relationship to continue, and benefited from his visits. The only inference the S.B. court could draw was that the child would benefit from a continuing relationship with her father. (Id. at pp. 300-301.)

Given the evidence that the boys did not have close relationships with father and fathers failure to comply with the requirements of his reunification plan, the juvenile court could draw very different inferences from this record concerning fathers assertion of a beneficial relationship. In contrast with the father in S.B.,who worked diligently to complete reunification services, father failed to participate in services offered to him. !(CT 411-412)!

There are few factors in the record other than fathers ability to consistently visit the boys and that T. lived with him for the first four years of T.s life, that would support a finding by the juvenile court of an important and beneficial relationship. (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Father ignores the fact that he had only once-a-month supervised visitation with the boys and, most importantly, the boys need for stability, continuity and permanence. Father lost reunification services long before the section 366.26 hearing. We conclude the trial court properly balanced those factors along with the positive interaction between father and the boys during their visits.

[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. [Citation.] 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. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, father failed to introduce any such evidence. Accordingly, we conclude the court did not abuse its discretion by rejecting his argument.

DISPOSITION

The juvenile courts orders terminating parental rights are affirmed.

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Gomes, J.

WE CONCUR:

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Cornell, Acting P.J.

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Hill, J.

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

^[2]The Agency asserts this is a new theory being raised for the first time on appeal and therefore we should decline to review it. Father responds that this is merely a question of substantial evidence of adoptability which cannot be waived. We will assume, without deciding, that this is a question of substantial evidence and address fathers contentions.