Filed 4/3/14 In re Cassidy M. CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                     (El Dorado)
                                                            ----




In re CASSIDY M., a Person Coming Under                                                C074898
the Juvenile Court Law.
                                                                       (Super. Ct. No. PDP2012-0134)
EL DORADO COUNTY DEPARTMENT
OF HUMAN SERVICES,

                   Plaintiff and Respondent,

         v.

CRAIG M.,

                   Defendant and Appellant.



         Craig M., father of the minor, appeals from orders of the juvenile court
terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 Father contends
the court erred in failing to find he established the beneficial parental relationship
exception to termination of parental rights. We shall affirm.


1 Undesignated statutory references are to the Welfare and Institutions Code.


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                 FACTUAL AND PROCEDURAL BACKGROUND

       The four-year-old minor was removed from parental custody in November 2012
due to her mother’s increasingly serious alcohol abuse and her father’s failure to protect
her from mother’s neglect. The minor was developmentally on track but very aggressive
with other children, had difficulty with sleeping schedules, suffered from nightmares and
showed extreme fear of medical and dental professionals, although she was showing
some improvement in foster care. After placement, the minor began therapy. The
minor’s teeth were in very poor condition and she was scheduled for evaluation of
reconstructive surgery to correct a cleft palate. The minor had supervised visits and was
excited to see father, who visited sporadically due to his employment. The minor was
less happy to see mother but enjoyed the crafts and games mother brought to visits. The
court sustained the petition, denied services to both parents and set a selection and
implementation hearing.

       The court granted the parents’ request to appoint an expert to perform a bonding
study. The study, conducted in July 2013, concluded that the minor had a strong positive
bond to father and was less bonded to mother. The study further concluded that it would
not be detrimental to terminate the minor’s relationship with mother. However, because
the minor’s bond with father was more positive, it would more likely be harmful to
terminate that relationship, although it was not clear that it would be detrimental to do so.
Termination of the minor’s relationship with father was likely to cause her some lasting
and potentially irreparable harm. The study noted that father was unlikely to be able to
be the minor’s primary custodian and the court had to weigh the benefits of permanence
against the harm to the minor from severing the relationship.

       The report for the selection and implementation hearing stated the minor
continued to be developmentally on target and confirmed the need for reconstructive and
oral surgery to deal with her cleft palate and severely decayed teeth. The minor remained



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in therapy for anger control and needed clear limits and boundaries. Although both
parents visited sporadically at the beginning of the case, after the frequency of visits was
reduced at disposition, mother attended all visits and father attended most of them. Visits
were generally positive and the minor appeared to enjoy them. The minor’s sleeping
patterns had stabilized and she no longer had nightmares. The minor expressed a desire
to remain as placed. The current foster parents were interested in adopting the minor who
was beginning to establish a positive attachment to them. The report recommended
termination of parental rights with a permanent plan of adoption to provide the
permanence and stability the minor needed.

       An addendum, filed in August 2013, stated the minor continued to do well in the
current prospective adoptive home. The report stated that termination of contact with the
parents would not be detrimental, but would serve the minor’s best interests because the
advantages of adoption outweighed the loss the minor would suffer from termination.

       Eugene Roeder, Ph.D., who conducted the bonding assessment, testified at the
selection and implementation hearing. He confirmed his findings that there was a strong
positive relationship between the minor and father and that the minor’s relationship with
mother was not as strong. He further testified “it would likely be harmful” to terminate
the relationship between the minor and father; that is, it would be likely to cause the
minor some lasting and potentially irreparable damage. Dr. Roeder stated that while
there was a preponderance of evidence that termination of the relationship would be
detrimental to the minor, he could not say that the evidence rose to the level of clear and
convincing. Roeder explained that the difference between detriment and harm was
reparability, thus, while there would be some harm in terminating a positive relationship,
detriment would occur only if the harm never went away even with a stable home and
counseling. Consistency, security, and developing an alternative positive attachment
were factors that helped overcome the harm. In Roeder’s opinion, it was clearly better to


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allow the minor to establish permanent bonds with a family and have permanency than to
be in an indeterminate status in order to continue a relationship with her father. Roeder
testified that it was always better for a child to have permanence and security.

       The adoption worker testified that father had attended all visits available since July
2013 and the minor was very excited to see him. She agreed with Dr. Roeder that the
minor had a strong positive bond to father but did not agree that severing the bond would
be detrimental. The adoption worker said the minor was doing extremely well in the
current foster home and had a positive bond to the foster parents. The adoption worker
acknowledged that the minor would suffer some harm from termination of parental rights
but was able to attach to new parents and would be able to overcome the harm. The
adoption worker testified that the minor’s therapist said the minor needed structure and
boundaries. In the adoption worker’s opinion, permanency was more important for the
minor than maintaining a relationship with father.

       The court terminated mother’s parental rights. As to father, the court was aware of
the need to balance the benefit of adoption against the benefit to the minor of continued
contact and noted Dr. Roeder was equivocal as to whether harm to the minor from
termination of parental rights rose to the level of detriment. After considering the
evidence, the court concluded it was clear that father’s parental rights should be
terminated and ordered a final visit.

                                        DISCUSSION

       Father contends the court erred in terminating his parental rights because the
beneficial parental relationship exception was shown by Dr. Roeder’s bonding study and
testimony that there would be detriment to the minor in terminating parental rights.

       At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for



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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.) There are only limited
circumstances that 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 that constitute an exception to termination of parental rights. (In re
Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; In re Melvin A. (2000)
82 Cal.App.4th 1243, 1252; Evid. Code, § 500; Cal. Rules of Court, rule 5.725(d)(4).)

       Termination of parental rights may be detrimental to the minor when “[t]he
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).) However, 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. 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.)
Even frequent and loving contact is not sufficient to establish this benefit absent a
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; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)




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       Assuming regular visitation occurred, the question is whether the evidence
established that the minor would benefit from continuing the parental relationship. It is
apparent that the minor’s bond with mother was not strong enough to outweigh the
benefit to the minor of adoption. However, there was evidence of a strong positive bond
between the minor and father. Other evidence showed the minor had behavioral and
emotional issues that were beginning to resolve in her foster placement and with therapy.
The therapist said the minor needed structure and boundaries. Both the adoption worker
and Dr. Roeder stated that permanence and stability were best for the minor. Roeder did
testify that it was more likely than not that the minor would suffer detriment from
severing the parent-child relationship, however, he was unable to say that there was
compelling evidence detriment would result from termination of parental rights. There
was also evidence the minor was able to make a positive attachment to her foster family,
a factor Roeder suggested would mitigate the harm from termination of parental rights.
Further, the minor was doing very well in the placement and expressed a desire to remain
there. The court weighed all the factors and the evidence and concluded the exception to
termination had not been established and that termination of parental rights was
appropriate. While there is some evidence to support the existence of a beneficial
parental relationship, substantial evidence supports the juvenile court’s conclusion that
the benefits of permanence and stability outweighed the benefits to the minor of
continued contact with father. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) We
may not reweigh the evidence to reach a different conclusion. (In re Stephanie M. (1994)
7 Cal.4th 295, 318-319.)




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                                    DISPOSITION

     The orders of the juvenile court are affirmed.




                                                      BUTZ   , J.



We concur:



     RAYE                 , P. J.



     ROBIE                , J.




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