Filed 7/2/14 In re Ivan Z. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re Ivan Z., a Person Coming Under the
Juvenile Court Law.

NAPA COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                     A140042
         Plaintiff and Respondent,
v.                                                                   (Napa County
                                                                     Super. Ct. No. JV16892)
Teresa S. et al.,
         Defendants and Appellants.


         The juvenile court terminated the parental rights of Teresa S. (mother) and R.Z.
(father) with respect to their son, Ivan Z., who was not yet three years old. (Welf. & Inst.
Code, § 366.26.)1 Father and mother appeal from that order, arguing (1) that both the
court and the Napa County Health and Human Services Agency (Agency) failed in their
duty, under section 361.3, to give preference to relative placement; and (2) that the court
erred in determining the beneficial relationship exception inapplicable. We affirm.
                         I.        FACTUAL AND PROCEDURAL BACKGROUND
                                Section 300 Petition and Detention Report
         In August 2011, when Ivan was 10 months old, the Agency filed a juvenile
dependency petition, which alleged that Ivan had suffered, or was at substantial risk of

         1   All further undesignated statutory references are to the Welfare and Institutions
Code.


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suffering, serious physical harm (§ 300, subd. (b)) as a result of his parents’ domestic
violence and substance abuse. Specifically, it was alleged that, on August 18, 2011,
father had hit mother in the head with a beer bottle and had shoved her while she was
holding Ivan. The petition also alleged that mother was frequently intoxicated while
caring for Ivan and that father had been diagnosed with bipolar disorder but had been
self-medicating with marijuana instead of taking his psychotropic medication. At the
detention hearing, father was declared Ivan’s presumed father and Ivan was detained in
foster care.
                          Jurisdiction Report and Determination
       The jurisdiction report indicated that both mother and father admitted an extensive
history of domestic violence in Ivan’s presence. Mother also admitted she had a drinking
problem. Mother had, however, recently obtained a restraining order against father. At
the jurisdiction hearing, both parents submitted on the allegations. Accordingly, the court
sustained the petition and adjudged Ivan “a person as described under [section 300,
subdivision (b)].”
                             Disposition Report and Hearing
       The disposition report, filed by the Agency on November 1, 2011, indicated that
mother was sober and engaging in substance abuse treatment services. She also reported
a desire to end her relationship with father and independently support herself and Ivan.
To that end, she was living in a shelter and had begun working. Father had not
participated in his disposition interview, as he was incarcerated, but had indicated a
willingness to begin psychotropic medication and stop smoking marijuana.
       Ivan was reported to be developmentally on target and doing well in foster care.
With respect to visitation, it was observed that “mother loves and cares for [Ivan] and
demonstrates developmentally appropriate parenting.” It was also observed that “[Ivan]
seems to be excited every time he sees his mom,” and that father was loving and
appropriate. However, since September 23, 2011, father had missed 10 visits.
       The social worker also wrote: “Since the beginning of the case, a paternal great
aunt, [Debbie Z.], and a paternal aunt, [A.Z.], have stepped forward to take care of [Ivan].


                                             2
The [Agency] is currently assessing the home of [Debbie Z.] in Napa. [A.Z.] . . . was
determined to be not appropriate at this point because she resides in Los Angeles and will
be moving to Sacramento, which is far in distance for [an] 11 month old minor to travel
weekly to comply with his reunification services. The mother had stated that her sister
. . . would like to be assessed for possible relative placement. The undersigned has left
multiple messages with [the maternal aunt and] is waiting to hear back from her . . . . ”
       At the uncontested disposition hearing, on November 10, 2011, the court declared
Ivan a dependent of the court and found that removal from mother’s and father’s custody
was required. With respect to reunification, the court ordered mother to participate in
counseling or therapy related to domestic violence and substance abuse, complete a drug
and alcohol assessment and comply with all recommendations, attend a minimum of
three Narcotics Anonymous or Alcoholics Anonymous (NA/AA) meetings per week, and
submit to random drug testing. The court also ordered father to comply with mental
health treatment plans and medication recommendations, participate in counseling or
therapy addressing anger management and domestic violence, complete a drug and
alcohol assessment and comply with all recommendations, attend a minimum of three
NA/AA meetings per week, and submit to random drug testing.
                                Six-Month Review Hearing
       In the six-month review report, filed on April 16, 2012, the social worker wrote:
“[F]ather was incarcerated during the majority of this reporting period and therefore was
unable to participate in most of his case plan services.” However, mother had been sober
for over four months, had completed an outpatient substance abuse treatment program,
and was regularly attending both domestic violence support groups and individual
therapy. Accordingly, Ivan was returned to his mother’s care with family maintenance
services.
                                    Section 387 Petition
       On September 13, 2012, the Agency filed a supplemental dependency petition
(§ 387). Therein, it was alleged that mother and father had repeatedly been in contact
since his release, in violation of a restraining order. Specifically, mother admitted


                                             3
spending time with father a few days per week, when Ivan was present, and spending the
night at father’s home. She also admitted drinking alcohol with father when Ivan was
present. The police had recently been called after father banged on mother’s door, at
11:30 p.m., when Ivan was sleeping. Mother let father in and he yelled and cursed at her.
Ivan was again detained and placed in foster care pending approval of placement with a
maternal aunt and her husband.
       In its jurisdiction/disposition report, filed on October 9, 2012, the Agency
recommended that reunification services be terminated and a section 366.26 hearing be
set. The report stated: “The mother and father placed Ivan at risk by engaging in
drinking alcohol in the presence of Ivan and engaging in verbal arguments that could lead
to further domestic violence. . . . [¶] . . . [¶] . . . [Mother] placed Ivan at additional risk by
driving under the influence of alcohol on multiple occasions to be with the father. . . . [¶]
. . . Although [mother] has shown the ability to complete services in the past [she] is
clearly not able to distance herself from [father] and focus on creating a healthy stable
environment for Ivan. Additionally, although [mother] completed services in the past and
even graduated from a drug and alcohol program, the mother has not made changes to her
life which would allow her to safely parent [Ivan].”
       With respect to visitation, the report provided: “[Mother] is attentive and
interactive with Ivan. [He] looks to [mother] for affection and comfort. [Mother] sings
songs with Ivan and engages him in learning activities. [¶] . . . [Father also] plays with
Ivan and is attentive to his needs. Ivan says ‘Da Da’ when he sees [father] and enjoys
visiting with him.”
       At the uncontested jurisdiction and disposition hearing, the court sustained the
section 387 petition, denied further reunification services to both parents because over
12 months of services had already been completed (§ 361.5, subd. (a)(1)(A)), and set a
hearing under section 366.26. The court placed “the care, custody and control of the
child with the Director of [the Agency] for supervision, planning and placement as he
sees fit . . . .” Visitation with parents was reduced to once a month.



                                                4
                                   Section 366.26 Hearing
       The Agency’s section 366.26 report indicated that Ivan had transitioned to the
maternal aunt’s home in November. He was reported to be meeting developmental
milestones, but also hitting, biting, and choking his cousins. It was also noted that father
had been recently arrested after police responded to a report of two females involved in a
physical fight at his home.2 Father was found hiding in a closet with two rifles and a
shotgun.
       With respect to visitation, it was observed: “Ivan demonstrates happiness when he
sees either parent. Ivan will run to each parent and displays affection. Both parents play
interactively with Ivan by reading, singing, and playing with him. Both parents usually
bring a snack for Ivan to enjoy during the visit. Visitation notes report that both parents
verbally express that they miss and love Ivan.” It was also reported that “Ivan has visited
with [mother] at the [maternal aunt’s] home and spends a majority of his visitation time
clinging to [mother] and crying.” Ivan was sad after mother’s visits.
       The social worker wrote: “Ivan is a cute and energetic toddler who does not
appear to have an issue forming secure attachments to his caregivers. Ivan has benefited
from his relationship with [mother] because it formed [his] foundation for building
successive attachments in the future, but this initial attachment does not outweigh Ivan’s
need for a safe and stable home that will nurture his development for the next 16 years
and beyond. [¶] . . . [¶] . . . There are no impediments to Ivan developing a secure and
lasting attachment to his primary care givers.” The Agency recommended adoption as
the permanent plan and indicated that the maternal aunt was interested in adopting Ivan.
       By the time of the February 20, 2013 section 366.26 hearing, adoption specialist
Gusto Curtis testified that the maternal aunt had decided, “due to some mild behavior
issues in the home they’re no longer interested in being a permanency resource for Ivan.”
Nonetheless, Curtis opined: “I find [Ivan] to be very adoptable considering he’s two
years old. He has no serious medical issues. He has some mild behavioral issues, but it


       2   Mother was one of the females involved in the fight.


                                              5
does not appear that he has issues forming secure attachments to caregivers.” Curtis also
testified: “I’m not an attachment expert, but the child carries a secure attachment [to his
parents.]”
       Curtis reported that “[father’s] sister” was being considered as a prospective
adoptive parent.3 However, in February 2013, she declined because she “[didn’t] feel
like she would be an appropriate adoptive parent for [Ivan].” Curtis testified: “I don’t
believe that there are [any other relatives available to adopt [Ivan]. The father’s sister
said she would check with that side of the family to see if there [were] any appropriate
relatives, but again she expressed concern about any of the family being able to maintain
the boundaries with the parents, and the fact that the parents would assume that a relative
adopting the child would just give the child back to the parents. [¶] . . . [¶] . . . [W]e
assessed the current relatives where the child is placed. Then we were pursuing
assessment of the father’s sister, but she’s decided that she’s . . . not a good candidate.
And then nobody else has come forward in the last two years.”
       At the hearing’s conclusion, the court found that “terminating the parental rights
would not be detrimental and [Ivan] is a probable candidate for adoption; however [Ivan]
is difficult to place at this time due to recent violent behavior. At this time there are no
prospective adoptive parents.” Concerned that Ivan might become a legal orphan if an
anticipated adoption did not occur, the court referred Ivan for adoptive placement but did
not terminate parental rights. Instead, the court selected adoption as the permanent
placement goal and the matter was continued.4 The court explained: “I don’t think it is a
normal thing for kids to bite other children. Certainly there may be some hitting, but
apparently it’s excessive at least for these former prospective adoptive parents. So it’s
obviously more [than] what would be normal, or it could be . . . that the parents are
putting pressure on these persons because they can because they’re family members that


       3   The record does not further identify the sister.
       4The Agency filed an appeal from this order. That appeal was subsequently
dismissed.


                                                6
they know. And perhaps if this child is placed somewhere else they won’t be able to put
on that pressure and maybe you would see that the child will thrive somewhere else. But
I don’t think that I know enough . . . right now . . . given this recent change here.”
       In advance of the continued hearing, the Agency filed an updated section 366.26
report, which advised that Ivan had been placed, as of May 2013, in a nonrelative
prospective adoptive home. The social worker wrote: “Ivan is thriving in his new
placement. Ivan no longer exhibits the physically aggressive behaviors that he displayed
in relative placement. Ivan is communicating verbally and he is more outgoing. . . . Ivan
is building a loving relationship with the prospective adoptive parents and he refers to
them as ‘mommy and daddy.’ . . . The [Agency] believes that Ivan’s reported behaviors
in the relative home were a reaction to the living environment. . . . [¶] . . . [¶] Ivan’s
likelihood of [a]doption is high. . . . [¶] . . . [¶] The prospective adoptive parents met Ivan
in March 2013. They had a series of day visits with Ivan that transitioned to overnight
visits in their home. Ivan was placed in their home in May 2013. . . . Ivan is observed to
be affectionate and comfortable with the prospective adoptive parents and in the home.
[¶] . . . [¶] The prospective [a]doptive parents are capable of meeting Ivan’s needs and
providing an appropriate and loving home environment for [him].”
       With respect to monthly visitation, the social worker noted that one of mother’s
visits was cancelled when she failed to confirm, but that “[she] continues to be attentive
and interactive with Ivan during visits.” Ivan had become visibly upset when told he
would not be seeing mother at a scheduled visit. Father had missed three of the last five
visits. But, when he did visit, “he was attentive and interactive . . . .”
       At the contested hearing, Curtis testified that Ivan had been placed with the
prospective adoptive parents, as of May 3, 2013, but first began transition visits with
them in March 2013. The prospective adoptive parents had seen no evidence of
aggression. No evidence of developmental disability was found during a recent
assessment.
       Ivan’s counsel and the Agency recommended that parental rights be terminated.
Father’s and mother’s counsel both argued that the Agency had not met its burden of


                                               7
showing that Ivan was adoptable and that, in any case, the beneficial relationship
exception to termination had been proved.
       The court concluded notice had been given as required by law, found that Ivan
likely would be adopted, found “little to no evidence to support the beneficial relationship
exception,” and terminated mother’s and father’s parental rights. The court explained:
“I’m sort of troubled that the parents did not make every visit. It’s only once a month.
And if you’re really concerned about establishing that bond or keeping that bond that you
say you have you’ll make every visit. You’ll reschedule. There are lots of days in a
month where you can make that happen. And when what I hear is that mother missed
two of the six and father missed three of the six, and they had whatever excuses they had,
but there [were] no makeup sessions, that’s troubling. So I don’t believe the parents have
even established that they had regular visits. [¶] . . . [A]ll I heard is that . . . [Ivan] calls
his biological parents mommy and daddy. I also heard that he calls the prospective
adoptive parents the same. So I don’t see that, quote, unquote, beneficial relationship or
that bond that has been talked about.” Mother and father filed timely notices of appeal.
                                       II.     DISCUSSION
       “Adoption, where possible, is the permanent plan preferred by the Legislature.
[Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) “[I]n order
to terminate parental rights, the court need only make two findings: (1) that there is clear
and convincing evidence that the minor will be adopted; and (2) that there has been a
previous determination that reunification services shall be terminated. . . . ‘[T]he critical
decision regarding parental rights will be made at the dispositional or review hearing, that
is, that the minor cannot be returned home and that reunification efforts should not be
pursued. In such cases, the decision to terminate parental rights will be relatively
automatic if the minor is going to be adopted.’ [Citation.]” (Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 249–250; accord, § 366.26, subd. (c).)
       Thus, at a section 366.26 hearing, “[a] finding . . . under Section 366.21 or 366.22,
that the court has continued to remove the child from the custody of the parent . . . and
has terminated reunification services, shall constitute a sufficient basis for termination of


                                                 8
parental rights. Under these circumstances, the court shall terminate parental rights
unless . . . : [¶] . . . [¶] (B) The court finds a compelling reason for determining that
termination would be detrimental to the child due to one or more of the following
circumstances: [¶] (i) 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).) “[T]he burden is on the party seeking to establish the existence of one
of the section 366.26, subdivision (c)(1) exceptions to produce that evidence. [Citation.]”
(In re Megan S. (2002) 104 Cal.App.4th 247, 252.) “Because a parent’s claim to such an
exception is evaluated in light of the Legislature’s preference for adoption, it is only in
exceptional circumstances that a court will choose a permanent plan other than adoption.”
(In re Scott B. (2010) 188 Cal.App.4th 452, 469; accord, In re Celine R. (2003)
31 Cal.4th 45, 53.)
       Mother and father do not challenge the juvenile court’s finding that Ivan is likely
to be adopted. Rather, they contend that the order terminating parental rights must be
reversed because: (1) both the court and the Agency failed in their duty, under
section 361.3, to give preference to relative placement; and (2) the juvenile court erred in
finding the beneficial relationship exception inapplicable. Neither argument has merit.
A.     Relative Placement
       First, father argues that both the court and Agency failed in their duty, under
section 361.3, to give preference to relative placement when Ivan was moved from the
maternal aunt’s home.5 He contends: “[H]ad the child been placed with the paternal


       5  Section 361.3 provides, in relevant part: “(a) In any case in which a child is
removed from the physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative of the child for
placement of the child with the relative . . . . In determining whether placement with a
relative is appropriate, the county social worker and court shall consider, but shall not be
limited to, consideration of the following factors: [¶] (1) The best interest of the child,
including special physical, psychological, educational, medical, or emotional needs.
[¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] . . . [¶] (6) The
nature and duration of the relationship between the child and the relative, and the
relative’s desire to care for, and to provide legal permanency for, the child if reunification

                                               9
aunt, it is likely that one or both parents could have benefited from . . . more liberal
visitation conditions,” giving them the opportunity to provide physical care, nourishment,
comfort, and affection to Ivan and be in a better position to establish the beneficial
relationship exception. Mother joins in father’s argument. We review the juvenile
court’s determinations regarding both placement and the admissibility of evidence for
abuse of discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35; In re Sabrina H. (2007)
149 Cal.App.4th 1403, 1420.)
       1.     Background
       Before the continued section 366.26 hearing, the Agency requested an offer of
proof from mother and father on any exceptions to adoptive placement they intended to


is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a
safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective
care and control of the child. [¶] (C) Provide a home and the necessities of life for the
child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered
reunification efforts with the parents. [¶] (F) Facilitate visitation with the child’s other
relatives. [¶] (G) Facilitate implementation of all elements of the case plan.
[¶] (H) Provide legal permanence for the child if reunification fails. [¶] . . . [¶] . . . The
court shall order the parent to disclose . . . known identifying information of any maternal
or paternal relatives of the child. This inquiry shall not be construed, however, to
guarantee that the child will be placed with any person so identified. The county social
worker shall initially contact the relatives given preferential consideration for placement
to determine if they desire the child to be placed with them. . . . [¶] . . . [¶] (c) For
purposes of this section: [¶] (1) ‘Preferential consideration’ means that the relative
seeking placement shall be the first placement to be considered and investigated.
[¶] (2) ‘Relative’ means an adult who is related to the child by blood, adoption, or affinity
within the fifth degree of kinship . . . . However, only the following relatives shall be
given preferential consideration for the placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling. [¶] (d) Subsequent to the hearing conducted pursuant
to Section 358, whenever a new placement of the child must be made, consideration for
placement shall again be given as described in this section to relatives who have not been
found to be unsuitable and who will fulfill the child’s reunification or permanent plan
requirements. In addition to the factors described in subdivision (a), the county social
worker shall consider whether the relative has established and maintained a relationship
with the child. [¶] (e) If the court does not place the child with a relative who has been
considered for placement pursuant to this section, the court shall state for the record the
reasons placement with that relative was denied.” (Italics added.)


                                              10
argue. Written offers of proof were to be submitted by August 9, 2013, but none were
provided. At the hearing itself, mother’s counsel and father’s counsel requested an
opportunity to cross-examine the social worker regarding adoptability and the beneficial
relationship exception.
          Father’s counsel also indicated that another paternal aunt of Ivan, Rachel Z., who
was present at the hearing, “[had] been attempting to be cleared by the [Agency] for
placement so that family could have this child and they met nothing but frustration.”
However, father’s counsel did not indicate he wanted to present any evidence on relative
placement. He merely argued: “[Rachel Z.] has done everything asked of her, and
finally just a week or so ago was given her first visit with the child . . . . I know I’m
going to hear all kinds of objections, but I just think that nobody in the [Agency] thinks
much of my client, and I think that that attitude has permeated this case, and they
discriminated against him based on their belief that he’s some kind of violent
troublemaker.”
          After hearing argument, the court concluded: “It is true that there was [no offer of
proof] provided in writing to the court or [the Agency] in any detail, but we have been
told here in court what it will be about. . . . So while it is unfortunate that nothing was
given in writing I don’t think it creates too big of an issue . . . because they’ll be cross-
examining the [s]ocial worker, and that usually happens at every hearing. So I will allow
the attorneys for the parents . . . to ask questions in that regard.”
          On cross-examination, Curtis testified that he was contacted by Rachel Z. “in
April sometime [after] we started . . . transitioning Ivan to his current placement.”
Regarding Ivan’s recent visit with Rachel Z., he explained: “The purpose of that visit
was to connect [Rachel Z.] with prospective adoptive parents to maintain that paternal
connection in the event that rights are terminated. [¶] . . . [¶] . . . We made it clear to
[Rachel Z.] we have no intention of moving Ivan, but in good faith she wanted to be
considered if something was to happen that we started to develop the assessment
process.” Thereafter, the following exchange occurred between father’s counsel and
Curtis:


                                               11
       “Q. Is it not true that [father] had contacted the [Agency] in various manners at
least two months previous to that requesting that his paternal aunt be considered?
       “[AGENCY’S COUNSEL]: I object as to relevance. Mr. Curtis is being offered
for adoptability. It appears that [father’s counsel] is asking questions about various
assessments of relatives.
       “[FATHER’S COUNSEL]: I do believe the law prefers that a child be adopted by
a relative over a stranger whenever possible.
       “THE COURT: All right. But how does that relate to the child’s adoptability?
       “[FATHER’S COUNSEL]: I think that relatives are more likely to want to deal
with a child who has problems because they are blood relatives because they’re family
than strangers who adopt a child.
       “THE COURT: Okay. I’m going to sustain the objection. I don’t find it to be
relevant.”
       2.     Analysis
       In his opening brief, father argues that both the court and Agency failed in their
duty, under section 361.3, to give preference to any of the paternal aunts, Debbie Z.,
A.Z., or Rachel Z., with respect to Ivan’s placement. However, in his reply brief, father
narrows his argument to challenge only the Agency’s and court’s failure to consider
placement with Rachel Z., in 2013, when Ivan was moved from the maternal aunt’s home
to a nonrelative. Father argues: “[H]ad the Agency properly considered the relative
placement (1) the parents may have been able to argue the relative guardianship
exception under [section] 366.26, subdivision (c)(1), and (2) visitation while the child
was placed with the relative may have been more liberal in terms of amount, place, and
. . . thus allowing the parents to better be able to establish the beneficial relationship
exception under section 366.26, subd. (c)(1)(B)(i).” Mother joins in his argument.
       We will assume without deciding that mother and father have standing to raise the
issue on appeal. (See In re K.C. (2011) 52 Cal.4th 231, 236–239; In re Esperanza C.
(2008) 165 Cal.App.4th 1042, 1053–1054; In re H.G. (2006) 146 Cal.App.4th 1, 10;
Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034–1035 (Cesar V.).)


                                              12
However, we agree with the Agency that mother and father forfeited the relative
placement argument because they did not raise it below. (In re Sabrina H., supra, 149
Cal.App.4th at p. 1419; In re L. Y. L. (2002) 101 Cal.App.4th 942, 956, fn. 8; In re
Daniel D. (1994) 24 Cal.App.4th 1823, 1831.) There was a prior court order—the
court’s dispositional order—of which modification could have been sought, by way of a
section 388 petition.6 But no section 388 petition was ever filed. And, even when
specifically asked what evidence would be presented at the contested section 366.26
hearing, neither father’s nor mother’s counsel raised the issue of relative placement.
Father’s counsel did pose questions regarding relative assessments to Curtis. But, when
the Agency objected and the court inquired regarding relevance, father’s counsel did not
suggest the evidence was relevant, under section 361.3, subdivision (d), or otherwise
present the argument he presses before this court. Father was not wrongly precluded
from raising the issue as he suggests.
       Father’s argument is nonetheless without merit. Rachel Z. did not come forward
until after reunification efforts had failed, adoption had been selected as the permanent
placement goal, and Ivan had begun transitioning to placement with his prospective
adoptive parents. “It is well-established that the relative placement preference found in
section 361.3 does not apply after parental rights have been terminated and the child has
been freed for adoption.” (Cesar V., supra, 91 Cal.App.4th at p. 1031.) Furthermore, it
is established that, “[w]hen reunification has failed . . . and the juvenile court has before it
a proposed permanent plan for adoption, the only relative with a preference is a ‘relative
caretaker’ (if there is one seeking to adopt) and the only preference is that defined by
subdivision (k) of section 366.26 (that is, a preference to be first in line in the application




       6 Section 388, subdivision (a)(1), provides in relevant part: “Any parent . . . may,
upon grounds of change of circumstance or new evidence, petition the court . . . for a
hearing to change, modify, or set aside any order of court previously made or to terminate
the jurisdiction of the court.”


                                              13
process.)”7 (In re Sarah S. (1996) 43 Cal.App.4th 274, 285–286; see also In re Lauren R.
(2007) 148 Cal.App.4th 841, 855 [“[t]here is no relative placement preference for
adoption”].) Because there is nothing in the record that suggests Rachel Z. was ever
Ivan’s caretaker, mother and father cannot show any abuse of discretion.8
B.     Beneficial Relationship Exception
       Next, mother and father assert the juvenile court erred when it determined the
beneficial relationship exception, under section 366.26, subdivision (c)(1)(B)(i), did not
apply to preclude termination of parental rights.
       Appellate courts have routinely applied the substantial evidence rule when
reviewing a juvenile court’s determination that an exception to termination did not apply.
(See In re B.D. (2008) 159 Cal.App.4th 1218, 1235; In re Dakota H. (2005)
132 Cal.App.4th 212, 228; In re L. Y. L., supra, 101 Cal.App.4th at p. 947; Autumn H.,
supra, 27 Cal.App.4th at pp. 576–577.) However, Division Three of this court has held
that abuse of discretion is the proper standard. (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1351 (Jasmine D.).)



       7 Section 366.26, subdivision (k), provides: “Notwithstanding any other provision
of law, the application of any person who, as a relative caretaker or foster parent, has
cared for a dependent child for whom the court has approved a permanent plan for
adoption, or who has been freed for adoption, shall be given preference with respect to
that child over all other applications for adoptive placement if the agency making the
placement determines that the child has substantial emotional ties to the relative caretaker
or foster parent and removal from the relative caretaker or foster parent would be
seriously detrimental to the child’s emotional well-being.”
       8  Father’s reliance on Cesar V., supra, 91 Cal.App.4th 1023 is misplaced. In
Cesar V., the father raised the placement issue at an earlier juncture—reunification
services had been terminated and the children needed a temporary placement pending the
section 366.26 hearing. The social services agency was looking ahead to potential
adoptive placement, but the children had not yet been referred for adoptive placement.
(Id. at p. 1034.) Cesar V. simply did not hold that section 361.3’s relative placement
preference would apply when, as here, the placement issue is raised, at the earliest, at a
section 366.26 hearing, at which time adoption has already been selected as the
permanent placement goal.


                                            14
       A third standard of review was recently articulated by the Sixth District, in In re
I.W. (2009) 180 Cal.App.4th 1517, 1527–1528 (I.W.) and In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314–1317 (Bailey J.), and adopted by the Second District in In
re K.P. (2012) 203 Cal.App.4th 614, 622. The court undertakes a two prong analysis in
determining the application of the beneficial relationship exception. The first prong is
whether the parent has maintained regular visitation and contact with the child. The
second is whether a sufficiently strong bond exists between the two, such that the child
would suffer substantial detriment from its termination. (In re Aaliyah R. (2006)
136 Cal.App.4th 437, 449–450.) The Sixth District has said that the first determination
is, because of its factual nature, properly reviewed for substantial evidence. (Bailey J., at
p. 1314.) But, the second prong analysis “is based on the facts but is not primarily a
factual issue. It is, instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance of the relationship in terms of the detrimental
impact that its severance can be expected to have on the child and to weigh that against
the benefit to the child of adoption. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review applies.” (Id.
at p. 1315, italics omitted.) We believe the result would be the same in this case under an
abuse of discretion standard, a substantial evidence standard, or the standard articulated
in I.W. and Bailey J. The practical differences between the standards are “not
significant,” as all three give deference to the juvenile court’s judgment. (See
Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
       Despite evidence of spotty visitation, we will assume that the first prong of
section 366.26, subdivision (c)(1)(B)(i) has been met. Nonetheless, we conclude that the
juvenile court did not abuse its discretion, or make a finding unsupported by substantial
evidence, in determining the exception inapplicable. Ivan did not have a parental
relationship with mother or father that necessitated preservation at the expense of
depriving him of the permanency of adoption.
       “Under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be
terminated where the juvenile court ‘finds a compelling reason for determining that


                                              15
termination would be detrimental to the child’ because ‘[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.’ The exception does not require proof the child has a ‘primary
attachment’ to a parent or the parent has ‘maintained day-to-day contact’ with the child.
[Citation.] [¶] The exception’s second prong requiring that ‘the child would benefit from
continuing the [parent-child] relationship’ means that ‘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.’ [Citation.] The juvenile 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.’ [Citation.]
‘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.’
[Citation.] [¶] ‘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.’ [Citation.]” (In re C.B. (2010)
190 Cal.App.4th 102, 123–124 [relying on, inter alia, Autumn H., supra, 27 Cal.App.4th
at pp. 575–576].)
       “While the exact nature of the kind of parent/child relationship which must exist to
trigger the application of the statutory exception to terminating parental rights is not
defined in the statute, the relationship must be such that the child would suffer detriment
from its termination. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
“Interaction between natural parent and child will always confer some incidental benefit
to the child. The significant attachment from child to parent results from the adult’s
attention to the child’s needs for physical care, nourishment, comfort, affection and
stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation.] The exception applies only where the


                                             16
court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at
p. 575.) “[T]he Autumn H. language, while setting the hurdle high, does not set an
impossible standard nor mandate day-to-day contact. . . . A strong and beneficial parent-
child relationship might exist such that termination of parental rights would be
detrimental to the child, particularly in the case of an older child, despite a lack of day-to-
day contact and interaction.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The
exception “appl[ies] to situations where a dependent child benefits from a continuing
parental relationship; not one . . . when a parent has [loving and] frequent contact with
but does not stand in a parental role to the child.” (In re Beatrice M. (1994)
29 Cal.App.4th 1411, 1420.)
       There is evidence in the record of a positive attachment between Ivan and his
parents. Ivan looked to mother and father for affection and comfort during visits. Both
were attentive to Ivan’s needs. Ivan called them “mommy” and “daddy.” But at the time
parental rights had been terminated, Ivan was less than three years old and had lived
away from mother and father for approximately half his life. Mother and father had
continued their volatile relationship despite the threat it posed to Ivan. And mother
continued to abuse alcohol while caring for Ivan. On the other hand, the prospective
adoptive parents could provide Ivan with consistency, stability, affection, and
responsiveness to his emotional needs. Ivan progressed behaviorally in their care.
       Mother and father rely on In re S.B. (2008) 164 Cal.App.4th 289, in which an
order terminating parental rights was reversed because the juvenile court erroneously
determined that the beneficial relationship exception did not apply. The social services
agency in that case reported the father had “ ‘complied with every aspect of his case
plan,’ including maintaining his sobriety and consistently visiting S.B.” (Id. at p. 293.)
Nonetheless, the father’s reunification services were terminated because the social
worker opined that the father’s physical and emotional health prevented him from
reunifying with S.B. (Ibid.) The father had maintained supervised visits with S.B. three
times a week. S.B. became upset when the visits ended and wanted to leave with the


                                              17
father. The father “ ‘demonstrate[d] empathy and the ability to put himself in his
daughter’s place to recognize her needs.’ ” (Id. at p. 294.) A bonding study revealed that
the bond between father and daughter was “ ‘fairly strong.’ ” (Id. at p. 295.) During the
observed visits, S.B. sat in the father’s lap, played games, and colored. “In the middle of
coloring, S.B. [told the father], ‘I love you,’ and he responded in kind. S.B. whispered
and joked with [the father] and then spontaneously said, ‘I wish I lived with you and
Mommy and Nana.’ ” (Ibid.) The juvenile court found that the beneficial relationship
exception did not apply and terminated parental rights. (Id. at p. 296.)
       On appeal, the reviewing court concluded “there [was] no evidence to support the
court’s finding [the father] did not have some type of parental relationship with S.B.” (In
re S.B., supra, 164 Cal.App.4th at p. 298.) The appellate court observed: “As we
recognized in Autumn H., [a parental] relationship typically arises from day-to-day
interaction, companionship and shared experiences, and may be continued or developed
by consistent and regular visitation after the child has been removed from parental
custody. [Citation.] The record here fully supports the conclusion [the father] continued
the significant parent-child relationship despite the lack of day-to-day contact with S.B.
after she was removed from his care. [Citation.] [¶] . . . [¶] The [juvenile] court
recognized that S.B. would benefit from continuing her relationship with [the father] and
based its decision to terminate parental rights in part on the grandparents’ willingness to
allow [the father] to continue to visit S.B. We do not believe a parent should be deprived
of a legal relationship with his or her child on the basis of an unenforceable promise of
future visitation by the child’s prospective adoptive parents. This situation is not, as the
Agency contends, analogous to the sibling relationship exception under section 366.26,
subdivision (c)(1)(B)(v), in which the court considers future sibling contact and
visitation. [Citation.] Unlike the parent-child relationship, sibling relationships enjoy
legal recognition after termination of parental rights. [Citations.]” (In re S.B., at
pp. 299–300, italics omitted.) Because “the only reasonable inference [was] that S.B.
would be greatly harmed by the loss of her significant, positive relationship with [her



                                              18
father],” the juvenile court erred when it found the beneficial relationship exception did
not apply and terminated parental rights. (Id. at p. 301.)
       This case is distinguishable, in that neither mother nor father successfully
addressed the issues underlying the dependency. The facts of this case are more closely
analogous to those presented in Jasmine D., supra, 78 Cal.App.4th 1339. In that case, the
mother had visited consistently with Jasmine, who was three years old at the time of the
hearing. During visits, mother was nurturing and provided the child with food, guidance,
and discipline. However, the mother never progressed from supervised to unsupervised
visits and had complied with virtually none of the requirements of her reunification plan.
(Id. at pp. 1343–1344.) In considering whether the juvenile court had abused its
discretion, in finding the beneficial relationship exception inapplicable, the reviewing
court observed: “The exception . . . must be considered in view of the legislative
preference for adoption when reunification efforts have failed. [Citation.] So viewed, the
exception does not permit a parent who has failed to reunify with an adoptable child to
derail an adoption merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation with the parent. The
[beneficial relationship] exception is not a mechanism for the parent to escape the
consequences of having failed to reunify.” (Id. at p. 1348.) The reviewing court
concluded that the juvenile court had not abused its discretion, stating: “The benefit of a
stable, permanent adoptive home for Jasmine clearly outweighed the benefit of a
continued relationship with [the mother], who despite her successful visitation record had
made no steps toward overcoming the problems leading to Jasmine’s dependency . . . .”
(Id. at pp. 1351–1352.)
       The juvenile court’s determination, that the benefits Ivan would receive from a
continued relationship with either mother or father did not outweigh the benefits of
permanence and stability Ivan would gain through adoption, is supported by substantial
evidence and does not constitute an abuse of discretion. “[F]requent and loving contact”
between a parent and child simply is not enough. (In re Beatrice M., supra,
29 Cal.App.4th at pp. 1418–1419.)


                                             19
                                 III.   DISPOSITION
     The juvenile court’s order terminating parental rights is affirmed.




                                               _________________________
                                               Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Needham, J.




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