Filed 3/14/14 In re R.A. 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



In re R.A. et al., Persons Coming Under the Juvenile                                         C074489
Court Law.

YOLO COUNTY DEPARTMENT OF                                                         (Super. Ct. Nos. JV11340,
EMPLOYMENT AND SOCIAL SERVICES,                                                           JV11341)

                   Plaintiff and Respondent,

         v.

M.C.,

                   Defendant and Appellant.




         Appellant M.C., the mother of the minors R.A. and J.C., appeals from the juvenile
court’s orders terminating parental rights. (Welf. & Inst. Code, §§ 395, 366.26.)1
Mother contends the juvenile court erred in failing to apply the beneficial parent/child
relationship exception to adoption. We affirm.



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

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                  FACTUAL AND PROCEDURAL BACKGROUND
       In August 2011 the Yolo County Department of Employment and Social Services
(DESS) filed dependency petitions (§ 300) on behalf of three-year-old R.A. and newborn
J.C., alleging that mother and J.C. tested positive for methamphetamine at birth, mother
had a history of substance abuse and substance abuse related crimes, and she failed to
follow through with medical appointments for J.C., who had to be hospitalized after
losing 15 ounces in the four days since his birth. The minors were detained later that
month.
       The juvenile court modified and sustained the petitions in September 2011. It also
directed DESS to file an amended petition reflecting a stipulation that R.A.’s father could
not care for him because he was incarcerated and had a history of drug use. In
October 2011 DESS filed a subsequent petition (§ 342) regarding R.A.’s father consistent
with the juvenile court’s orders at the jurisdiction hearing. The juvenile court ordered
reunification services for both parents later that month.
       A March 2012 report noted the minors were developing appropriately in their
Sacramento foster placement. Mother had three supervised visits per week but
consistently missed one to two visits each week after the minors were moved to
Sacramento. A social worker offered bus passes to mother but she did not express a need
for or interest in them.
       The juvenile court continued services for both parents in May 2012.
       In September 2012 DESS reported that R.A. sometimes yelled, kicked, and
screamed when the foster parents tried to give him direction. He also hit mother during
visitation, but this had stopped recently. He participated in weekly therapy to learn how
to manage his anger more effectively. Mother had two one-hour visits each week but
missed two consecutive visits at the end of August 2012.
       The juvenile court continued services at the November 2012 12-month hearing.
The juvenile court stated it would revisit its ruling later that month if mother did not take

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a drug test after the hearing. Later that month, the court suspended mother’s visitation
until it resolved whether she had tested clean for drugs. In December 2012 the juvenile
court ruled it would reinstate visits after two clean tests from mother.
       The January 2013 report recommended terminating reunification services. Mother
tested positive for methamphetamine in November 2012. Visitation had not yet been
resumed as she had failed to submit two clean drug tests as per the juvenile court’s order.
       The juvenile court terminated reunification services in February 2013. R.A. was
meeting his developmental milestones and was doing much better in anger management
therapy. J.C. was developing on track and DESS had no concerns about his mental or
emotional status.
       The June 2013 section 366.26 report stated the minors had been in their current
foster home since February 2012. J.C. was a typical two year old with no mental health
issues. R.A., a five-year-old boy, preferred to dress like a girl and chose a female name
for himself. The boy’s therapist and foster mother reported his struggles seemed to
include internal conflict surrounding the unexplained absence of his mother and his
affection for his prospective adoptive family. R.A. was characterized as a strong-willed
boy who periodically inquired about his mother.
       R.A. was given a mental health assessment by a clinical psychologist in
April 2013. The psychologist concluded there was a good possibility that R.A. was a
transgender child. The psychologist also stated, “At the same time, [R.A.] is a child in
the foster care system who was abruptly removed from his mother’s care and finally
placed in a loving fost-adopt situation in which he may very well be adopted, with his
birth mother losing her parental rights.” While the new family was “a very good one” for
R.A., the psychologist concluded “at the same time it leaves him in a gender bind.” R.A.
reported that he misses his mother and that he “gets crazy and wild when he thinks about
her.” The psychologist strongly recommended that R.A. “be allowed to continue to
explore gender so that [he] can move beyond the gender bind he is in, associated in his

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mind with returning home to his birth mother vs. staying with his new family.” The
prospective adoptive parents were doing an excellent job of supporting the minor; and
“without that support [R.A.] would be at risk for several psychological problems.”
       The adoption assessment reported that R.A. viewed the prospective adoptive
parents as his psychological parents. He sought them out to have his needs met. R.A.
also initiated and received affection from them. The prospective adoptive parents had
been the boys’ foster parents since February 2012 and expressed a desire to adopt. The
prospective adoptive family was against a postadoption contact agreement because R.A.’s
father had made threats of physical violence against the family. The report concluded the
minors were likely to be adopted and recommended terminating parental rights.
       DESS submitted on the reports at the July 2013 section 366.26 hearing. The
juvenile court granted counsel for mother’s motion to take judicial notice of prior
testimony from a social worker that mother’s visits were positive. The court also took
judicial notice of its prior ruling that mother had to test clean twice before visits would be
reinstated and took testimony on mother’s drug testing. No further argument was
presented, and the juvenile court terminated parental rights.
                                       DISCUSSION
       Mother’s sole contention is that the juvenile court erred in failing to apply the
beneficial parent/child exception to adoption.
       “ ‘At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a minor
child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] If the court finds the child is adoptable, it must terminate parental rights
absent circumstances under which it would be detrimental to the child.” (In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368.)
       There are only limited circumstances permitting the court to find a “compelling
reason for determining that termination [of parental rights] would be detrimental to the

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child.” (§ 366.26, subd. (c)(1)(B).) One of these is where the parent has maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship, often referred to as the beneficial parental relationship exception.
(§ 366.26, subd. (c)(1)(B)(i).) 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 (Autumn H.); see In re C.F. (2011)
193 Cal.App.4th 549, 555 (C.F.).) Even frequent and loving contact is not sufficient to
establish this benefit absent a substantial, positive emotional attachment between parent
and child. (C.F. at p. 555; Autumn H. at p. 575.)
       “Because a section 366.26 hearing occurs only after the court has repeatedly found
the parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350
(Jasmine D.).)
       The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights. (C.F.,
supra, 193 Cal.App.4th at p. 553.)
       The parent must establish the existence of the factual predicate of the exception—
that is, evidence of the claimed beneficial parental relationship—and the juvenile court
must then weigh the evidence and determine whether it constitutes a compelling reason
for determining detriment. Substantial evidence must support the factual predicate of the

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exception, but the juvenile court exercises its discretion in weighing that evidence and
determining detriment. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) “On
review of the sufficiency of the evidence, we presume in favor of the order, considering
the evidence in the light most favorable to the prevailing party, giving the prevailing
party the benefit of every reasonable inference and resolving all conflicts in support of
the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) “ ‘[E]valuating the factual
basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence
for the ruling. . . . Broad deference must be shown to the trial judge.’ ” (Jasmine D.,
supra, 78 Cal.App.4th at p. 1351.)2
       It was mother’s burden to raise this exception at the section 366.26 hearing and
she failed to do so. Failure to raise this statutory exception to adoption forfeits the issue
for purposes of appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Daisy D.
(2006) 144 Cal.App.4th 287, 291-292.)
       Mother’s claim that the juvenile court did not allow her to raise the exception is
wrong. The juvenile court allowed mother’s counsel to present evidence of recent clean
drug tests and to persuade the court to take judicial notice of prior testimony that
mother’s visits were positive. While the juvenile court rendered its decision immediately
after the parties stated they had no further evidence to submit, there is no reason to
believe it would have refused to entertain argument on the parent/child exception to
adoption. It was not the juvenile court’s duty to ask for arguments on the parent/child
exception as mother had the burden of raising and proving that exception.




2  We acknowledge the parties’ discussion in their respective briefing regarding the split
of authority as to whether the substantial evidence standard, the abuse of discretion
standard, or a hybrid standard applies in reviewing the juvenile court’s rejection of
exceptions to adoption. We shall apply the hybrid standard but note that “[t]he practical
differences between the two standards of review are not significant” in this context.
(Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

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       Mother’s claim that counsel raised the exception by moving for judicial notice
regarding the beneficial nature of the visits is equally unavailing. This evidence was
tangentially related to the strength of the parent/child bond and established that at least
some visits took place. However, it does not present the court with any argument that
visitation was consistent or that severing the parent/child bond would be detrimental to
the minor. Presenting some evidence that could provide partial support for part of an
exception to adoption is not the same as raising the exception in the juvenile court.
       Since mother’s counsel neither mentioned nor argued for the exception, we
conclude it was not raised in the juvenile court and mother’s contention is forfeited.
       Even had the contention been timely and effectively raised, mother would not
prevail on the merits. The six-month report noted that every week, after visits were
moved to Sacramento, mother missed one or two of her thrice weekly visits, and she did
not accept DESS’s offers for transportation. While she had missed only a few recent
visits at the time of the September 2012 12-month report, her visits were suspended in
November 2012 until she gave two clean drug tests, which she never did. Thus, mother
did not maintain regular contact with the minors. Moreover, there is substantial evidence
that severing the parent/child bond would not greatly harm the minors. J.A. had spent all
of his life away from mother, and R.A. had spent nearly half his young life in another’s
care. While R.A.’s gender issues might be related to separation from his mother, the
psychologist concluded that if this issue existed, it was related to his reconciling a desire
to return to the mother with his bond with the prospective adoptive parents. Applying the
exception and putting R.A. in guardianship would not alleviate this issue, as it would not
return him to his parents. It would, however, deprive him of a more permanent
relationship with the family identified by the psychologist as best able to help him
address his gender issues. We therefore conclude it was not an abuse of discretion to
decline to apply an exception to adoption and terminate parental rights.



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                                   DISPOSITION
     The juvenile court’s orders are affirmed.



                                                 RAYE   , P. J.



We concur:



        ROBIE             , J.



        MAURO             , J.




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