Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD221730
ROBIE, J.
Appellants Scott G. (father) and Tamera G. (mother) appeal from an order of the juvenile court terminating parental rights over the minor, J. G. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants contend the juvenile court erred when it declined to apply the beneficial parent-child relationship exception for adoption. (§ 366.26, subd. (c)(1)(B)(i).) We will affirm the orders of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2005, the minor and his 16-year-old sibling, A. G., were removed from appellants’ home and placed into protective custody after A. G. called 911 to report domestic violence by father against mother in front of A. G. Father was arrested and released. He returned to mother’s home the next day, where he was rearrested for possession of stolen property. Mother, who denied having a problem with drugs despite testing positive for amphetamines, methamphetamine and cocaine, had been arrested in the past for drug-related charges. A juvenile dependency petition was filed alleging appellants’ failure to protect the minor due to ongoing domestic violence and the failure and refusal of appellants to rehabilitate from substance abuse problems.
The minor was approximately three years old when detained.
Due to previous incidents of domestic violence, mother obtained a restraining order against father, but nonetheless allowed father back into the home.
The juvenile court sustained the allegations in the petition, adjudged the minor and A. G. dependent children of the court (§ 300, subd. (b)), and ordered continued removal of both children from appellants’ custody. The minor was placed with his maternal great-uncle, Burton R. (uncle), and appellants were ordered to participate in reunification services.
According to the September 2005 permanency report, the minor adjusted well to placement with his uncle.
Mother had supervised visits with the minor three times per week. Mother was engaged in services, participating in domestic violence counseling, parenting education, and substance abuse services. However, the social worker had concerns that mother was not taking her recovery seriously and was noncompliant with drug treatment: failing to test, testing positive for alcohol and illegal substances, failing to verify treatment, and failing to attend required group meetings. Mother also denied alcohol use and minimized the domestic violence in her relationship with father, initially vowing to stay with him and have another child with him, but later committing to separate from him and focus on herself and her children.
Visits with father, who was incarcerated in county jail at the time, occurred twice a month and reportedly went well. While in jail, father failed to avail himself of services.
Following trial on October 25, 2006, the minor was returned to appellants’ care. Pursuant to the parenting plan, the minor was to spend time with each parent on alternate weeks.
In December 2006, mother was arrested for various crimes. She was convicted and remained incarcerated until February 28, 2007.
In April 2007, father obtained sole custody of the minor. Continued services were offered to mother. The minor remained in father’s custody until July 2007, when father was arrested after a traffic stop revealed two ounces of methamphetamine hidden in a child’s booster seat in his truck. A subsequent probation search of father’s apartment revealed more methamphetamine hidden in another booster seat. The minor was detained on July 12, 2007, and again placed in the home of his uncle.
The court terminated reunification services to both parents in December 2007.
The minor continued to visit his father, who was incarcerated in county jail, once a week for four months (from July 10, 2007, to October 1, 2007). Those visits went well. When father was subsequently incarcerated in state prison, he regularly sent letters and cards to the minor and called him on the telephone at least once a month. The minor was happy to hear from his father, calling him “dad” and telling him what he has been doing. At the end of telephone conversations, the minor asked his father to “call back.” The minor testified he liked visiting his father, and would feel “Bad” if he were unable to do so. The minor’s strong desire to see his father was tempered only by his uncle’s opposition to the minor having to go to the prison for visits. When asked where he would live if he could live anywhere, the minor said he would live with his father. Although he testified he did not know what adoption means, the minor stated he would feel “Weird” if his uncle became his dad, and he would feel “Bad” if he could never see his father again.
The minor had supervised visits with his mother twice a week, with no reported concerns or issues. Once she was incarcerated in state prison, mother sent just one letter to the minor (in February 2008) and made no telephone calls. According to the minor’s uncle, the minor rarely mentions his mother and expresses little desire to see her. However, the minor testified he does like talking to his mother on the telephone and would like to visit her, but that his uncle tells him, “I don’t know” every time he asks to visit her. The minor also testified that he does not write letters to his mother because it is “too much work.”
The maternal uncle reported that his telephone “does not accept collect calls.”
The minor’s therapist reported the minor is “‘very well adjusted and has a better understanding of his circumstance and families than most five-year-olds I have seen. His uncle has been a strong support for [the minor] and his involvement has aided in [the minor]’s ability to adjust to his current situation.’” The therapist found him to be “‘very happy and well adjusted despite the difficulties his family has encountered.’” She noted the “apparent bond” between the minor and his uncle and the fact that the minor had expressed a desire to be adopted by him while still maintaining a relationship with his father. The report concluded it would not be detrimental to terminate parental rights.
The juvenile court agreed, terminating appellants’ parental rights on April 30, 2008, and identifying adoption as the permanent plan. In so doing, the court rejected the parent-child bond exception, finding that although the minor was clearly bonded to his father, there was “no proof, certainly not by a preponderance of the evidence, that the [minor] would be greatly harmed if that relationship is severed.”
Appellants filed timely appeals.
DISCUSSION
Appellants contend they shared a relationship with the minor, the termination of which would result in detriment to the minor greatly outweighing any benefit to be gained from adoption.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
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)(i).)
The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.); see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) “[A] parent may not claim entitlement to the exception provided by [section 366.26,] [former] subdivision (c)(1)(A) [now subdivision (c)(1)(B)(i)] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th at 1339, 1349 (Jasmine D.).) Similarly, “frequent and loving” contact is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even a strong positive bond with a parent has been held insufficient to defeat adoption when a child looks to a prospective adoptive parent to meet his needs. (Zachary G.,at p. 811.) “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 adoption.” (Jasmine D., at p. 1350.)
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 Autumn H. (1994) 27 Cal.App.4th 567, 576; Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. Jasmine D., supra, 78 Cal.App.4th at pp. 1342, 1351 [applying abuse of discretion standard].)
Here, the court found father maintained regular visitation and contact with the minor. There is sufficient evidence to support that finding. The court did not, however, reach the same conclusion with respect to mother. The minor spent alternate weeks with his mother until she was arrested in December 2006. Mother was incarcerated for the next two months, and the minor remained in father’s sole custody until father’s arrest and incarceration in July 2007. From that point forward, the minor was placed with his uncle. Mother visited the minor twice a week until October 2007 when she was again incarcerated, this time in state prison, for an 18-month term for charges related to possession of controlled substances and being intoxicated and urinating in public. The visits between mother and the minor were reportedly unremarkable. While the social worker observed “a definite bond” between mother and the minor during those visits, contact outside of those visits was almost nonexistent. Mother did not speak with the minor by telephone during her incarceration, and sent just one letter to him in February 2008. As a consequence, there was little, if any, bond between mother and the minor, who never requested to see his mother and rarely talked about her.
In any event, assuming both parents met the burden of maintaining regular visitation, the trial court concluded that neither met the burden of showing the minor would benefit from continuing the relationship. The benefit to the child must promote “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 parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, the court acknowledged both parents, particularly father, shared a bond with the minor. Although it was clear the minor would be unhappy were he prohibited from ever seeing his father again, the court found there was no evidence to demonstrate the minor would be greatly harmed if the relationship were severed. Substantial evidence supports that finding. Since July 2007, the minor has lived with his uncle, with whom he has “an extremely close relationship.” Although the minor clearly enjoyed his regular visits with his father and stated he would feel “Bad” if they could not see each other, there is nothing in the record to suggest the minor would be greatly harmed if his relationship with his father were severed. The same is true as to mother, with whom the minor has even less of a connection. “[F]requent and loving” contact is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) And even a strong positive bond with a parent has been held insufficient to defeat adoption when a child looks to a prospective adoptive parent to meet his needs. (Zachary G., supra, 77 Cal.App.4th at p. 811.) Here, the minor has looked to his uncle to meet his needs since July 2007 and, by all accounts, his uncle has provided for those needs. While father has maintained consistent visits and communication with the minor, father admitted he does not know the name of the minor’s teacher and does not participate in the minor’s day-to-day school activities during their time talking on the phone. The minor’s needs clearly are not met by mother, whose communication with the minor is nearly nonexistent. This case is not so extraordinary that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Appellants cite In re S.B. (2008) 164 Cal.App.4th 289, urging a parent is not required to show a “primary attachment” to the child or a “parental” relationship with the child, only that the child form “a strong ‘emotional’ attachment to a parent, who filled the primary caregiver role for a period of the child’s life, and that attachment was sustained through regular visitation and remained ‘substantial [and] positive[,]’ even in the absence of day-to-day contact.” (See id. at pp. 296-301.) Father points to the fact that the court acknowledged the minor would feel “Bad” if he never saw his father again and would suffer “pain, discomfort, whatever you want to call it,” urging that fact, in conjunction with a finding that the minor and his father were bonded, is sufficient to show detriment. S.B. is distinguishable on several grounds. First, “[w]hen S.B. was removed from [her father’s] care, [her father] immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services and maintained consistent and regular visitation with S.B. He complied with ‘every aspect’ of his case plan.” (In re S.B., at p. 298.) The same cannot be said of father’s compliance with his case plan here. While incarcerated in county jail, father was noncompliant with services. When the minor was returned to father after mother was incarcerated, father had an opportunity to change the course of his own life and give the minor appropriate care. Instead, he was arrested when illegal substances were found hidden in his truck and in his home. As a result, he was incarcerated and the minor placed with his uncle. As reflected in the record, father’s reunification services were ultimately terminated because of his demonstrated “inability or unwillingness to benefit from rehabilitative services.” Father’s ability to maintain consistent visitation, alone, is not sufficient evidence of a beneficial relationship outweighing the stability and permanency afforded by the prospective adoptive parent.
We note, too, that in S.B., the child “was unhappy when visits ended and tried to leave with [her father] when the visits were over.” (In re S.B., supra, 164 Cal.App.4th at p. 298 .) Here, the minor responded well to calls from his father, and told his father to “call back” at the end of their conversations. However, while the minor clearly enjoyed talking with his father, there is no evidence he suffered sadness or trauma when those visits or telephone conversations ended. The minor’s comment that he would feel “Bad” if he were unable to visit his father and that it would be “Weird” if his uncle adopted him and became his dad demonstrate a bond between the minor and father; they are not sufficient evidence the minor would be “greatly harmed” by severing the relationship with his father. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There is substantial evidence to support the juvenile court’s rejection of the beneficial parent-child relationship exception.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: BLEASE, Acting P. J., RAYE, J.