Filed 6/4/13 In re F.G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

In re F.G. et al., a Person Coming Under                             H038919
the Juvenile Court Law.                                             (Santa Cruz County
                                                                     Super. Ct. Nos. DP002612, DP002613)
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,

         Plaintiff and Respondent,

         v.

C.G. et al.,

         Defendants and Appellants.
         F.G. (father) and C.G. (mother) appeal from a juvenile court judgment terminating
their parental rights and selecting adoption as the permanent plan (Welf. & Inst. Code, §
366.26)1 concerning their son, F.G. (born 2001), and daughter, S.G. (born 2003). Father
challenges the evidence supporting the juvenile court‟s rejection of his evidence and
argument that the case came with the exception to termination described by section
366.26, subdivision (c)(1)(B)(i) (no termination if termination would be detrimental to
the child because the parents maintained regular visitation and the child could benefit
from continuing the relationship). Mother agrees with father‟s argument and asserts that
we must reverse the judgment as to her if we reverse the judgment as to father. We
affirm the judgment.


         1
             Further unspecified statutory references are to the Welfare and Institutions Code.
                                  LEGAL BACKGROUND
       Section 366.26 sets forth the procedure for permanently terminating parental rights
concerning a child who has been removed from parental custody and declared a
dependent child of the juvenile court. The statute states that the court shall terminate
parental rights if it “determines . . . by a clear and convincing standard, that it is likely the
child will be adopted.” (§ 366.26, subd. (c)(1).) If the court determines it is likely the
child will be adopted, certain prior findings by the juvenile court (e.g., that returning the
child to the physical custody of the parent would create a substantial risk of detriment to
the physical or emotional well-being of the child) shall constitute a sufficient basis for the
termination of parental rights unless the juvenile court finds one of six specified
circumstances in which termination would be detrimental. (Ibid.) The first of these
circumstances states: “The parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.” (Id. subd.
(c)(1)(B)(i).)
                                FACTUAL BACKGROUND
       In 1996, four older children had been removed from father and mother‟s custody
and adopted. The children at issue were born in Mexico, and, after bringing them to the
United States, father and mother hid the children from the Santa Cruz County Human
Services Department (Department), did not enroll them in school, and later lied to the
Department about the children‟s whereabouts. The Department ultimately placed the
children in protective custody because “the children had suffered medical and dental
neglect, emotional damage, lack of educational opportunities and they were not protected
by the parents from physical harm, neglect and domestic violence.” The juvenile court
declared the children dependents and bypassed reunification services. The Department
placed the children with a paternal aunt and uncle. Father had regular visitation; mother
could not have contact because she was incarcerated. The Department ultimately
reported that the aunt and uncle were committed to adopting the children. It

                                               2
recommended that the juvenile court terminate parental rights and order adoption as the
children‟s permanent plan. Father and mother contested the recommendation at a section
366.26 hearing in which father, mother, and the social worker testified. We rely on and
appreciate the juvenile court‟s lengthy oral decision, which includes a succinct summary
of the evidence that is relevant at this stage of the proceedings.
       “They needed everything. Their basic needs were not being met. Their basic
educational needs, medical needs, dental needs, and their need for safety and stability
were not being met, sadly. And while the parents love them and that drove them to keep
them from the world, and also drove the children into exile and an existence where
initially [son] was pre 1st grade as a ten-year-old in his development. The children were
really pre, preschool in their development and their basic learning skills. [¶] They‟ve
taken off. They‟re doing really well. [¶] In this case the parents are asking me to evaluate
the bond with the parents in order to halt or hold back the stability that an adoptive home
would provide. If the Court finds the children to be adoptable, which is the highest order
of preference for permanency, the Court must, must, not may, but must terminate the
parental rights in order to provide the children that highest level of permanency unless
there is a compelling reason for determining that termination of parental rights would be
detrimental to the children. [¶] And while the parents have through the facilitation of
other maintained regular contact with the parents [sic], those visitations are limited. And
the visitation--and while the natural interaction between a natural parent and a child will
always confer some incidental benefit to a child . . . the relationship really arises from a
day-to-day interaction, companionship and shared experience . . . . [¶] And so that
relationship of a day-to-day interaction, companionship and shared experience was a very
narrow one with parents, as I said, living in an isolated experience, hiding away from
anybody that might take the children away. [¶] The parent, either parent--neither parent, I
should say, today has been able to show a compelling reason to show the Court that they
occupy such a parental role that the emotional attachment is both positive and significant,

                                              3
and that they are maintaining a parental role and taking care of the children‟s needs in
this case. The Court must under the cases cited by County Counsel look at whether or
not the benefit from continuing the relationship promotes 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. The Court therefore is balancing the strength and quality of
the natural parent relationship in a tenuous placement, meaning with legal guardianship
with parents, I‟m not exactly sure what role they would even have. [¶] So looking at
balancing an ongoing relationship with the parents in a tenuous placement under a legal
guardianship against the security and sense of belonging in an adoptive family is, in my
opinion, unfortunately a simple choice for this Court to make. [¶] The children need to
look to the parents for physical care, nourishment, comfort, affection, stimulation, safety.
They aren‟t able to. They haven‟t been able to. [¶] . . . [¶] So, therefore, the Court is
unable to find that the burden has been proven by either parent that would justify a
finding of a compelling reason to set aside a stability that the adoption would provide for
the children.”
                                       DISCUSSION
       Father contends that “the findings and orders . . . was [sic] unsupported by
substantial evidence” because he “established, with each child, a parent/child relationship
warranting preservation.” Father‟s analysis is erroneous.
       “[T]he burden [of proof] is on the party seeking to establish the existence of one of
the section 366.26, subdivision (c)(1) exceptions to produce that evidence.” (In re Megan
S. (2002) 104 Cal.App.4th 247, 252.)
       To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i)
exception the parent must show more than frequent and loving contact, an emotional
bond with the child, or pleasant visits--the parent must show that he or she occupies a
parental role in the life of the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)



                                              4
       As is apparent from the way father frames his contention, father is essentially
urging that there was insufficient evidence to support the juvenile court‟s finding against
his position because evidence supports his position. We see this type of presentation in
dependency cases too frequently and are constrained to offer the following.
       “We generally apply the familiar substantial evidence test when the sufficiency of
the evidence is at issue on appeal. Under this test, „ “we are bound by the established
rules of appellate review that all factual matters will be viewed most favorably to the
prevailing party [citations] and in support of the judgment . . . . „In brief, the appellate
court ordinarily looks only at the evidence supporting the successful party, and
disregards the contrary showing.‟ [Citation.] All conflicts, therefore, must be resolved
in favor of the respondent.” ‟ [Citation.]
       “But this test is typically implicated when a defendant contends that the plaintiff
succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has
expressly or implicitly concluded that the party with the burden of proof did not carry the
burden and that party appeals, it is misleading to characterize the failure-of-proof issue as
whether substantial evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1) the evidence supporting
the party who had no burden of proof, and (2) the trier of fact‟s unassailable conclusion
that the party with the burden did not prove one or more elements of the case (Oldenburg
v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive
judge of the credibility of the evidence and can reject evidence as unworthy of credence];
Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the
testimony of a witness, even if that testimony is uncontradicted]).
       “Thus, where the issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant‟s evidence was (1) „uncontradicted and unimpeached‟ and (2) „of such a

                                               5
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.‟ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-
1528.)
         Here, as in many dependency cases, the case posed evidentiary conflicts. And, as
is common in many dependency cases, this case obligated the juvenile court to make
highly subjective evaluations about competing, not necessarily conflicting, evidence. As
reflected in the juvenile court‟s ruling, the juvenile court considered the conflicting,
competing evidence and essentially discounted father‟s evidence in concluding that father
had failed to carry his burden of proof. It is not our function to retry the case. We
therefore decline father‟s implicit invitation to review the record so as to recount
evidence that supports his position with the object of reevaluating the conflicting,
competing evidence and revisiting the juvenile court‟s failure-of-proof conclusion. This
is simply not a case where undisputed facts lead to only one conclusion.
         In short, where, as here, the juvenile court‟s ruling is against the party who had the
burden of proof, it is almost impossible for the party to prevail on appeal by arguing that
the evidence compels a ruling in his or her favor.
                                        DISPOSITION
         The judgment is affirmed.




                                               6
                        Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




                    7
