Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD222462, JD222463
CANTIL-SAKAUYE, J.
Appellant, Jason S., the father of minors Carissa S. and Alyssa S., appeals from orders of the juvenile court terminating his parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, §§ 366.26, 395.) On appeal, appellant contends the juvenile court erred in failing to find he established an exception to adoption. We shall reject the contention and affirm.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
In July 2003, a dependency petition was filed in Yolo County Juvenile Court, alleging that two-year-old Alyssa S., 16-month-old Carissa S., and newborn Baby Girl H. (subsequently named Katlyn S.) came within section 300, subdivision (b), because their mother, Stephanie H., and the newborn both tested positive for methamphetamine, and Alyssa needed dental care.
Katlyn S. is not a subject of this appeal. Stephanie H. gave birth to a fourth daughter, Makayla, in June 2004, and that minor, who is not a subject of this appeal, also became a dependent child.
The juvenile court sustained the petition in late July 2003. At the August 2003 dispositional hearing, the minors were returned to their parents’ care with family maintenance services.
The six-month review report, filed in January 2004, recommended keeping the minors with their parents, noting the minors “appear to have a strong bond with their parents.” The court ordered the minors to remain at home in mid January 2004 and continued services.
In June 2004, the mother acknowledged having told a counselor she was afraid of appellant, who had spat on her in the past and often left town for days, leaving no money for the minors. Mother was subsequently instructed to have no contact with appellant.
In September 2004, the minors were detained and a supplemental petition was filed, alleging the appellant was found in the home after the mother had been told to have no contact with him. Appellant was discovered at the mother’s home during a surprise visit by the social worker. The police told the social worker they had been previously called to the residence after a third party reported domestic violence. The disposition report recommended the minors remain out of home and services to the parents be terminated.
In April 2005, the juvenile court ordered the minors returned to their mother under a family maintenance program. The court also terminated services for appellant, but allowed him to have supervised visits with the minors once he came forward and requested visitation.
The case was removed to Sacramento County Juvenile Court in May 2005, because the mother moved to Sacramento. The June 2005 jurisdiction report prepared in Sacramento County stated Alyssa had told a social worker appellant was a “scary person.” An in-home review report, prepared in November 2005, noted appellant had not visited the minors for six months.
A supplemental petition was filed in mid November 2005, alleging the mother had allowed the minors to reside with appellant at his residence. As described in the detention report, appellant had been convicted of domestic violence charges in September 2004 and sentenced to probation. He subsequently violated probation, leading to his arrest in November 2005. He was bailed out of jail by the mother, who then spent the weekend with him along with the minors. In May 2006, the court sustained the allegations and continued the case for disposition.
In August 2006, the court denied appellant’s section 388 request for reunification services, and in October 2006, terminated services for the mother and set a section 366.26 hearing.
The section 366.26 report stated the mother had missed four visits with the minors between October and December 2006, although her behavior was appropriate when she did visit. Appellant requested visitation in November 2006. While Alyssa wanted visits from her father, Carissa was very quiet when the subject was brought up and later cried. Carissa said she did not want to visit her father, reporting that he did mean things to her mother, like hitting her. Appellant eventually visited the girls, bringing gifts, and Carissa warmed to him. He behaved appropriately throughout the visit, and began to regularly visit the minors.
Alyssa and Carissa were adamant that they would not call appellant or the mother mom or dad, instead calling them by their first names. Both girls showed behavior problems before and after their parents’ visits. Alyssa was more likely to lie and act defiantly, while Carissa was irritable and whining. Although the minors had developed a strong bond to the foster family, they were removed from the family after an allegation of abuse. Removal from these foster parents, whom they called mom and dad, greatly upset the minors.
The report concluded Alyssa wanted to be adopted and was afraid of being removed to another placement. Carissa, who was needy after visitations with her parents, often told vivid stories of domestic violence between her parents.
In a bonding assessment, the psychologist observed Alyssa said “Mommy” and ran to hug the mother when she entered the room, with Carissa also exclaiming “Mommy.” Alyssa interacted very easily with the mother, while Carissa was very upset and pulled away from her. Carissa’s behavior continued in this manner, evidently because her mother had not brought lunch. Alyssa then told her mother not to bring candy, “Because our mother said,” apparently referring to her foster mother. Carissa became less withdrawn and did more with the mother shortly before the visit ended.
Both minors hugged the mother when she left, but showed no emotional disturbance or upset at seeing her leave. They also gave a spontaneous hug to the evaluator. The report concluded that while there was a bond between the mother and the minors, maintaining the bond did not outweigh the benefits of providing a permanent home with stable parents.
A report from the foster family agency stated Carissa had bonded very closely with her new foster parents and wanted to remain in their home and family. Both of the minors had been in a stressful case plan, and exhibited signs of anxiety and confusion over being in foster care for so long without being told where they would be living permanently.
An addendum report stated Carissa repeatedly declared her desire to visit with appellant. She easily separated from her mother at the end of their visits, while Alyssa was sad and did not want her to leave. Appellant had consistently visited the minors since the last report. However, the minors referred to their foster parents as mom and dad and wished to stay there “forever.”
In a bonding assessment, appellant expressed regret for choosing to go to work rather than visit the minors. He also told the evaluator his incarceration on domestic violence charges was one reason he did not visit the minors between December 2004 and April 2006.
At the beginning of the visit, both kids exclaimed “Daddy” and briefly hugged appellant. He had brought them food -- fruit, sandwiches, string cheese, chocolate, and soda -- which the minors enjoyed. Alyssa was impressed that appellant, who brought food to their regularly scheduled visits, knew the food she liked. She told appellant she missed him, and he replied he missed her too. The minors kissed appellant at the end of the visit, as he had requested.
The evaluator concluded that since appellant “has not been involved with the children on a consistent basis, the children, while glad to see him, did not evidence any marked distress when he left at the end of the observation session.” While the minors were affectionate to appellant, their affection had a “nondiscriminatory quality,” extending to the social worker and the evaluator.
The depth of the minors’ feelings for appellant was neither markedly nor profoundly observed. While appellant had a bond with the minors, who in turn had affection for him in the opinion of the evaluator, this bond was not so profound as to outweigh the benefit of adoption.
At the section 366.26 hearing, appellant testified to having consistently visited the minors twice a month since September or October of 2006. On his visits he brought a game or something they could do together along with snacks.
The juvenile court terminated parental rights with adoption as the permanent plan.
DISCUSSION
Appellant contends the juvenile court abused its discretion by failing to apply the beneficial relationship exception to adoption contained in subdivision (c)(1)(B) of section 366.26. We disagree.
There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The 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).) The 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
On appeal, the juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
“The exception must be examined 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 child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Moreover, “[b]ecause 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 begin our analysis by recognizing that the first requirement of the subdivision (c)(1)(B) exception, maintaining regular visitation and contact with the children, is at best tenuously satisfied by appellant. Although the mother consistently visited the minors, appellant admitted to rarely visiting the minors between December 2004 and April of 2006 due to his desire not to miss work and a domestic violence conviction. He began to consistently make supervised visits on November 22, 2006, less than six months before the section 366.26 hearing on April 30, 2007.
Even if we were to conclude appellant satisfied the visitation requirement, neither parent has established a sufficiently close bond to the children to apply the beneficial relationship exception to adoption.
Although, as appellant points out, the minors have displayed affection for both parents, this does not justify invoking the exception to the preferred course of adoption. The minors appear to be generally affectionate, spontaneously displaying similar affection towards the social worker and bonding assessment evaluator. Even “frequent and loving” contact is not sufficient to establish the necessary benefit under the exception absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
The assessment report concluded the attachment between the minors and their parents, although real, was not so deep as to outweigh the benefits of adoption. This conclusion is supported by the minors’ behavior. The minors displayed no difficulty in being separated from either parent at the end of the assessments or scheduled visits. The minors for a time refused to call their parents mom or dad, referring to them by their first names instead. They have also referred to both the current and previous foster parents as their mother or father. Alyssa has expressed her desire to be adopted, and both minors indicated their preference to remain with their most recent foster home and family.
Weighed against the tenuous bonds with their parents is the minors’ considerable interest in having a permanent home with adoptive parents. The minors have unfortunately been shuttled back and forth between multiple foster families and their birth parents. They have naturally shown anxiety and confusion over being in foster care for so long without being told where they would permanently live. It would have been an abuse of discretion for the court to have deprived the minors of much needed stability on the basis of their birth parents’ bond with them.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.