Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224346
NICHOLSON, J.
Appellants S.M. (mother) and A.S. (father), the parents of J.S. (the minor), appeal from an order of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further statutory references to sections of an undesignated code are to the Welfare and Institutions Code.) Appellants contend the juvenile court committed reversible error in finding two statutory exceptions to termination of parental rights did not apply to these dependency proceedings. Disagreeing with those claims, we affirm the order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2006, Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the 15-month-old minor. That petition alleged in part that mother and father had a substance abuse problem that impaired their ability to provide adequate care for the minor. DHHS also alleged mother and father engaged in domestic violence with the minor present.
The juvenile court sustained the petition as amended, adjudged the minor a dependent child, and ordered the minor removed from parental custody. The court also ordered mother and father to comply with a reunification case plan, which included counseling and alcohol and drug treatment. Mother and father were granted regular visitation with the minor.
The minor has two older half siblings: A.M. and K.M. Initially, DHHS placed the minor and her half siblings together in foster care. The minor appeared to have a “close bond” with A.M. and K.M.
Mother and father visited the minor regularly, on a weekly, supervised basis. Thereafter, visits became unsupervised. Those visits went well, and the minor appeared to be bonded closely both with mother and father.
On January 29, 2008, the juvenile court terminated mother and father’s reunification services. Thereafter, DHHS reduced visitation with the minors to twice monthly. K.M. had been placed in the Utah home of her father. However, the minor and A.M. continued to be placed together.
DHHS recommended that the juvenile court select adoption as the permanent plan for the minor. On July 18, 2008, the minor was placed in a prospective adoptive home. According to DHHS, the minor made an “excellent transition” to that home. She was “getting along well” with a foster sister who was close in age to A.M. Moreover, the minor’s prospective adoptive parents were committed to maintaining contact on behalf of the minor with both A.M. and K.M.
Both mother and father testified at the August 27, 2008, section 366.26 hearing about their visits with the minor. During their testimony, mother objected to the proposed adoption of the minor, and father wanted the opportunity to regain custody of the minor. At the conclusion of the hearing, counsel for mother and father each argued for the application of two statutory exceptions to adoption to the proceedings. Moreover, mother’s counsel urged the juvenile court to select guardianship, rather than adoption, as the permanent plan for the minor.
The juvenile court found it likely the minor would be adopted, and also determined the benefit of permanency for the minor outweighed the benefits of continuing her relationships with mother and father and with A.M. In making its ruling, the court stated in part as follows: “At the selection and implementation hearing, such as this we are holding today, a juvenile court must make one of four possible alternative permanent plan[s] for a minor child, and the permanent plan prepared by the [L]egislature is that of adoption. So that if the Court finds the child is adoptable, which I stated just now I do so find by clear and convincing evidence, then the Court must terminate parental rights -- must terminate parental rights absent circumstances under which it would be detrimental to the child. And these are the exceptions that we were discussing. [¶] [County counsel] in her closing argument rightly states that it is the parents’ burden to establish these exceptions. The exception, as set forth in the old (c)(1)(A), [is] the parental bond exception. [Counsel] also rightly states is [sic] that if the Court determines that termination would be detrimental to the minor because the parents have maintained regular visitation and contact with the child and the child would benefit from continuing relationship. [¶] The evidence is clear that the parents have maintained regular visitation and contact. The evidence in the reports convey that. The testimony of the parents convey that. That part of their burden is met. [¶] The real question as to the parental bond issue rests in the second prong, which is the analysis of benefit from continuing the relationship. A parent cannot simply claim entitlement to the exception provided by this, the old (c)(1)(A), exception simply by demonstrating some benefit to the child from a continued relationship with the parent or some detriment from termination of parental rights. [¶] [Counsel for father] cited the same case. It’s the In re: Jasmine D. case, it is a 2000 case, 78 Cal.App.4th 1339, 1349. The parents can’t just say, well, there’s got to be some benefit to the child to maintain contact. Counsel -- [county counsel] and I believe [counsel for the minor] both would agree with that, that there would be some benefit. [County counsel] even cited a case with that proposition. And the parent can’t simply come in and say, oh, there’s going to be some detriment from termination of parental rights. Those are obvious things. Those are obvious things. The question is, the benefit to the child 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. [¶] So in other words, the Court balances the strength and quality of the natural parent/child relationship in a tenuous relationship against the security and sense of belonging a new family would confer so that 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. That’s the In Re: Autumn H. case. That’s what it says. [¶] And the exception must be analyzed on a case-by-case basis taking into account many different variables which would affect parent-child bond. Age of the child, portion of the child’s life spent in the parents’ 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 the parent-child bond. That’s In Re: Autumn H. as well. [¶] This is a young child. We’re talking about at the time of the.26 report filed May 8th, the child was 3.2 years. So we’ve -- it looks like we’re about 3 years and 5 months, almost 3 1/2 years old. We have a very young child who, from the evidence before me, has been out of the home for 2.3 years. Substantial and majority of the child’s life has not been in the parents’ care. [¶] Is there a positive or negative effects [sic] of interaction between parent and child? Clearly there were negative aspects for which dependency was necessary, but since that time, from what I can tell from the visitation, visitation has been positive. The evidence is clear that the visitation with the parents has been positive. The child’s particular needs, this child needs stability, does not need uncertainty. [¶] I found it troubling in mother’s testimony that once again she is asking this child to be in long-term placement while she gets her life in order. That’s what her testimony suggested, give me more time. She didn’t even ask for the child back now. She simply said, we need more time. And she is shaking her head yes even now. [¶] I have to look at the child’s best interest, the child’s rights to stability and permanence. [¶] Because a Section.26 hearing occurs only after the Court has repeatedly found that the parents are unable to meet the child’s needs, it is only, and this Court notes, in extraordinary cases that preservation of parental rights will prevail over the Legislature’s preferences for adoptive placement. That’s the Jasmine D. case once again. [¶] Even frequent and loving contact -- and I believe from the evidence clearly and convincingly that the visitation between the parents and this child has been frequent and loving. Even that is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between a parent and child. [¶] The juvenile court is not required to find the exception to adoption unless the benefit to the child of maintaining the relationship with the parents outweighs the well-being the child would gain in a permanent home of new, adoptive parents. And the parents have simply not met their burden in proving to me beyond -- by clear and convincing evidence that the benefit to maintaining that relationship outweighs the benefit in a permanent new home, in a permanent adoptive placement, that stability and permanence that she can have. [¶] That is not the same thing to say that the visitation has not been good for the child or that the parents and the -- that the visits have not been positive or that -- that even within the context of the visitation, it’s not a -- more of a parental-type role during visits. Of course, it’s a far cry from parenting a child to say that you go to a visit and give them a meal and read to them. It’s not the same thing as saying you’re a friendly visitor. I think that the visits that I understand took place in this case are more than just friendly visitors. The child sees [these] as parental-type figures as far as the visitation is concerned. But it’s not sufficient to outweigh the benefit this child can gain in a permanent home that can only be afforded through adoption here. [¶] In looking at the sibling exception, once again, the Court notes that it is the parents’ burden. When it would be substantial interference with a child’s sibling relationship, taking in consideration the nature and extent of the relationship which includes, but is not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences, or has an existing close and strong bond with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption. Once again, the Court has to balance. [¶]... [¶] So let’s look at the nature and extent of that relationship. They were raised in the same home. That’s clear from the evidence. They have shared significant common experiences. How could they not? They’ve lived in the same home. They do have a close, strong bond it seems to me. The counsel for the parents both raised the issue, which I find rather interesting, regarding the prospect that the relationship had already been interfered with. That argument in my mind carries with it a two-edged sword. [¶] As evidence of that interference, the testimony is viewed regarding the first visit to the second visit, and the fact that at the first, she’s normal; that is, [the minor], and at the second, she is more sad. Although, the evidence also goes on to say they had a good visit. They played and did a bunch of different things together, but there was a difference -- more sadness [at] leaving, for example, those kinds of things. [¶] “The interesting thing about that argument is that while one might concur that the interference already exists, the law requires me to compare all of those things about this relationship, the extent of this relationship, the ones we just went over. Raised together, common experiences, close bond as compared to the benefit of legal permanence through adoption. Well, what that means is you could have all those things and yet still say adoption needs to happen. In other words, the scale comes down on the benefit of adoption rather than these other things because there’s a more of a benefit to the permanence. [¶] Well, what’s interesting to me about the argument that there’s already been an interference is that if you view the facts that way, then you’d have to say, what does that interference mean? [¶] Interference -- interference, according to the exception, would be signi- -- detrimental interference. It’s one that causes detriment; that is, substantial interference with a sibling relationship that outweighs the benefit of permanence. Well, the evidence before me is clear that even since that visit, this child continues to thrive in the home of her current caregivers. She’s continuing to have emerging speech. She has a -- from what I understand, a possible adoptive sibling in the home that is, I think, similar in age to [A.M.] who she’s becoming close with. In other words, any interference that’s purported already clearly hasn’t affected this child in such a detrimental way that she can’t go on day-to-day life in her current foster home. [¶] So that’s why I say the argument is kind of double-edged because if I agree that that interference has already taken place, then looking at the child’s current situation, then the evidence smacks me in the face to say child hasn’t suffered from this so detrimentally that we need to -- we need to not do adoption and go back to having the child in the same home. [¶] The Court has to consider the interest of this child, not [A.M.], but [the minor] in determining whether termination would be detrimental to the adopted child. That’s the Celine R. case and the Daniel H. case. [¶]... [¶] To show a substantial interference with sibling relationship, the parent must show the existence of a significant sibling relationship. What I heard [county counsel] to concede is that it’s very likely that [A.M.] has such a bond but that she wasn’t sure whether or not [the minor] had such a bond with [A.M.]. [¶] It appears to me that there is a significant bond. The evidence is clear that there is a significant sibling bond that works both ways in this case. It’s not just one that belongs to [A.M.]. I think they both have a significant sibling bond. [¶] The question is whether the relationship is sufficiently significant to cause detriment on termination. And if there’s not, then there’s no substantial interference with this relationship. And as I’ve indicated, the evidence seems to suggest, since the interference has already taken place, as counsel has stated -- or argued, the severance of that is not viewed as detrimental by this Court, so detrimental that it’s not outweighed -- that it outweighs the benefit of adoption. [¶] Quite frankly, that doesn’t even take into consideration the fact that these families are apparently committed to future contact. That’s clear as well. It cannot be said in this case that the possible detriment to [the minor] would be so significant as to outweigh the benefits of her stable permanent home.”
DISCUSSION
I
Mother and father contend the juvenile court committed reversible error in finding that the minor would not benefit from continuing her relationship with them. Noting evidence suggesting the minor’s prospects for permanency were uncertain, regular visits went well, and a strong parental-type bond existed between them, mother and father argue the benefits for the minor of continued contact with them outweighed the benefit of adoption, and that severing their relationship with the minor would cause great harm to her.
Mother and father join in the arguments made by each other both in parts I and II.
“‘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. [Citations.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.)
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 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. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).)
In this case, it is true that, as the juvenile court acknowledged, mother and father had regular contact with the minor, and a strong bond existed between them. But it also is true that the minor has been out of parental custody for most of her life. At the August 2008 section 366.26 hearing, mother testified the minor had not been in her custody since May 2006. Moreover, the minor was thriving in her new prospective adoptive home, where it appeared she was receiving the stability and support she needed.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both Autumn H. and Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support the suggestion of mother and father that the minor would benefit from continuing her relationship with them simply because of the attachment existing between them due to their regular visitation with the minor. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Mother and father suggest the record establishes the existence of a beneficial relationship between the minor and themselves, precluding a finding of adoptability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that the detrimental effect of termination of parental rights would outweigh the benefit of adoption to the minor. Here, as the court determined, the record was bereft of such a showing. In fact, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement which, as we have seen, the record shows she was receiving in foster care.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534, 1537, 1538.)
In re Brandon C., supra, 71 Cal.App.4th 1530 is distinguishable from the proceedings here. The Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to the minor if her relationship with mother and father were continued. Moreover, as the record also suggests, the minor had a need for stability and security, a need which only adoption could satisfy.
Mother and father suggest that because they had maintained a significant parent-child relationship with the minor, which included regular contact while in placement, the circumstances of their case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, the Court of Appeal did not find an “exceptional case” where a beneficial relationship existed that would preclude adoption. Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for mother and father here, as the juvenile court found, is that they failed to establish the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s adoptability, would a continued relationship with mother and father benefit the minor to such a degree that it would outweigh the benefits she would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including social worker’s reports and the testimony of various witnesses, including the mother and father.
It is true that the minor had been in six placements during her lengthy sojourn through the dependency system. But we reject as speculative father’s suggestion that the minor’s prospects for permanency were far from certain. The record reflects the minor was determined to be generally adoptable, a status which neither mother nor father has challenged. Moreover, evidence also was adduced that the minor was thriving in her new home.
After it became apparent that mother and father would not reunify with the minor, the juvenile court had to find an “exceptional situation existed to forego adoption.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, after a thorough evaluation of all relevant factors, the court determined the minor would not benefit from continuing her relationship with mother and father to such a degree that termination of parental rights would be detrimental to her. Mother and father had the burden to demonstrate the statutory exception applied. We conclude that the juvenile court was correct in finding they failed to make such a showing. Therefore, the court did not err in terminating their parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
II
Mother and father claim the juvenile court committed reversible error in failing to apply the sibling relationship exception to adoption to the dependency proceedings. According to mother and father, the record contains evidence that the minor and A.M. shared a significant bond, as seen by their past residence together. Noting evidence of enjoyment by the minor of contact with A.M., mother and father suggest the minor’s sibling relationship was of great importance to her. Mother and father also assert the benefits obtained by the minor from maintenance of that relationship outweigh the benefits of adoption to her, and they imply that adoption would not be in the best interests of the minor.
The claim by mother and father is premised on the statutory exception to adoption contained in section 366.26, subdivision (c)(1)(B)(v). Under that provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interests, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
Pursuant to subdivision (c)(1)(B)(v) of section 366.26, the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. However, to make such a determination, the court must find a “compelling reason.” (§ 366.26, subd. (c)(1)(B)(v).) Moreover, the statute contains a number of criteria that the court may consider. But the court is not required by the statute even to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
In this case, after examining all of the circumstances, the juvenile court determined that termination of parental rights would not be detrimental to the minor based on the sibling relationship existing in this case. The record indicates the minor had regular contact with A.M., with whom admittedly she shared a close relationship. However, on this record, there was no showing of a “compelling reason” to apply the subdivision (c)(1)(B)(v) exception. (See § 366.26, subd. (c)(1)(B).)
The record supports the determination by the juvenile court that termination of parental rights would not be detrimental to the minor based on substantial interference with her sibling relationship. It is true that, as mother and father argue, there is no guarantee the minor and A.M. will continue to maintain contact. However, there is no indication that contact might be terminated, and the record reflects the visits between the minor and A.M. generally went well, with the minor returning afterward to her foster home routine. On this record, the court found no evidence to support a finding that termination of parental rights would result in a substantial interference with a sibling relationship.
On the record before us, we cannot say the juvenile court’s determination was an abuse of its discretion. Under the circumstances presented, although, as we have said, there is no guarantee, the record reflects it is likely that the minor and A.M. will remain in contact and continue to enjoy the emotional benefits of their relationship. Moreover, despite their recent separation, the minor was doing very well in her prospective adoptive home, where she was getting along with a foster sister who was close in age to A.M. We conclude there was no error in the court’s ruling that, under these conditions, termination of parental rights was not detrimental to the minor.
The California Supreme Court has held the juvenile court may reject adoption under the sibling relationship exception only if it determines adoption would be detrimental to the minor whose welfare is being considered. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Here, it is indisputable that a strong sibling relationship existed between the minor and A.M., as the juvenile court recognized. But, as we have seen, before adoption can be rejected, the statute requires something more: the showing of a substantial interference with a sibling relationship if adoption is chosen as the permanent plan. (§ 366.26, subd. (c)(1)(B)(v), italics added.)
As the juvenile court found, the record in this case does not demonstrate substantial interference with a significant sibling relationship due to the recommended adoption of the minor. Moreover, considering the history of the minor and A.M. seeing each other, the minor’s “excellent transition” to her new home, and the commitment of the prospective adoptive parents to the adoption of the minor and her post-adoption contact with A.M., there is little reason to expect that adoption necessarily will mean the prospect of interference with the relationship between the minor and A.M. in the future. Finally, as the court found and the record reflects, the minor would benefit greatly from adoption.
In this case, in considering the statutory exception, the record reflects the juvenile court had before it all of the facts and circumstances pertaining to the minor’s sibling relationships. After evaluating them, the court did not find a “compelling reason” under subdivision (c)(1)(B)(v) of section 366.26 to apply the exception. The explanation for that is, as the record suggests and the court found, there would be no substantial interference with sibling relationships, and no detriment to the minor. On the record before it, the court concluded that the minor’s need for permanency outweighed the benefits a continued relationship with A.M. would afford.
Here, as we have seen, the record suggests the benefits of adoption for the minor outweigh the benefits of continuing her sibling relationship with A.M., even assuming there would be some interference with that relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953.) Considering all pertinent factors, the record supports the juvenile court’s finding that adoption would not be detrimental to the minor or her sibling relationship. Accordingly, we reject the claim.
DISPOSITION
The order of the juvenile court terminating the parental rights of mother and father is affirmed.
We concur: BLEASE, Acting P. J. BUTZ, J.