Filed 2/14/14 In re Armani M. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


In re Armani M., et al, Persons Coming
Under the Juvenile Court Law.

NAPA COUNTY HEALTH AND
HUMAN SERVICES,
         Petitioner and Respondent,
                                                                    A138646
v.
Ashley C. et al.,                                                   (Napa County
                                                                    Super. Ct. No. JV16754; JV17009)
         Defendants and Appellants.



                                              I. INTRODUCTION
         Armani M. and his brother J.M. each became juvenile court dependents shortly
after they were born. In April 2013, when Armani M. was two and J.M. was one, the
juvenile court terminated parental rights over both children and ordered a permanent plan
of adoption. (Welf. & Inst. Code, § 366.26.) 1 On appeal, the boys’ mother Ashley C.
(Mother) contends that the court erred by terminating her parental rights and refusing to
appoint the boys’ maternal great grandmother as their guardian. The boys’ father Rodney
M. (Father) joins Mother’s arguments but adds nothing to them. We affirm.




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


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                              II. STATEMENT OF FACTS
A.     Proceedings in 2011
       In March, the Napa County Department of Health and Human Services (the
Department) filed a juvenile dependency petition on behalf of Armani, who was born
earlier that month. The petition alleged Armani came within the court’s jurisdiction
under section 300 subdivision (b) (section 300(b)) because of his parents’ failure or
inability to protect him from physical harm or to provide regular care for him.2
       Factual allegations against Mother included that she tested positive for marijuana
when Armani was born; she left her one-day-old son unattended in their hospital room for
10 minutes while she went to meet Father; and, when Armani was less than two weeks
old and still nursing, Mother left him with his maternal great grandmother for 16 hours
without making arrangements for his food or giving any indication when she would
return. Factual allegations against Father included that he had an extensive criminal
history; he failed to reunify with an older child; the mother of one of his children
obtained a restraining order against him for domestic violence; he had a prior arrest for
domestic violence against Mother; and he was homeless.
       A contested detention hearing was conducted on March 16. The Department’s
initial plan had been to detain Armani from Father only and to place him with Mother in
protective custody in the home of the maternal great grandmother, Carolyn B. However,
at the hearing, the Department requested that the court detain Armani from both parents


       2
          Section 300(b) states in relevant part: “Any child who comes within any of the
following descriptions is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court: . . . [¶] (b) The child has suffered, or
there is a substantial risk that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian to adequately supervise or
protect the child, or the willful or negligent failure of the child’s parent or guardian to
adequately supervise or protect the child from the conduct of the custodian with whom
the child has been left, or by the willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical treatment, or by the
inability of the parent or guardian to provide regular care for the child due to the parent’s
or guardian’s mental illness, developmental disability, or substance abuse. . . .”


                                              2
pursuant to an amended petition that alleged that the Department social worker observed
both parents engage in “volatile and threatening” behavior toward Carolyn B. in the
presence of the baby. The Department had also discovered that, a few months before
Armani was born, Father tested positive for methamphetamine and had been placed on a
psychiatric hold because he was hallucinating. At the conclusion of the contested
hearing, Armani was removed from the custody of both parents.
      On April 21, the juvenile court exercised jurisdiction over Armani. Father was in
custody at the time and submitted the matter. Mother also submitted to the allegations in
the petition. However, she advised the court that she had a job, had completed two
different parenting programs, had an appointment with a safe-housing program, and had
started a drug court program.
      A disposition hearing was held on May 10. The Department reported that Armani
had adjusted well to a foster care placement. Mother’s drug tests were negative, she had
completed some parenting programs, and she was attending her appointments. Mother
had twice weekly visits, though some were cut short because of her work schedule. The
Department had obtained additional information about Father’s history of domestic
violence against at least three women and was also very concerned about public verbally
abusive altercations between Mother and Father. The court found Mother had made
“moderate” progress toward alleviating or mitigating the causes necessitating the out of
home placement, while Father’s progress was “minimal.” It ordered reunification
services to both parents and adopted case plans proposed by the Department.
      In October, the Department filed a six-month review report in which it
recommended that services to Father be terminated because of his erratic, unstable
behavior and noncompliance with his case plan. Mother was pregnant with Father’s child
and was due in January. However, she had obtained a restraining order against Father,
was working full time and had complied with her case plan. Furthermore, Armani had
been living with Mother since October 4 on a trial home visit which was going well.
Therefore, the Department recommended that Armani be returned to Mother’s care with
family maintenance services.


                                            3
       The six-month review hearing was held on October 27. The juvenile court
terminated services to Father because of noncompliance with his case plan and then
continued the hearing so the Department could amend its recommendations pertaining to
Mother. Thereafter, the Department filed an addendum report recommending that the out
of home placement continue with reunification services to Mother. Mother had recently
admitted that she spent “significant” time with Father while Armani was in her care for a
trial home visit notwithstanding that she had a restraining order against him. Then, on
October 20, she told the social worker that bruises on her arm were the result of her
running into light switches. From October 20 to 24, Mother left Armani with Carolyn B.
while she spent more time with Father. During this period she also missed at least two
program appointments because of illness. After Mother left Armani with Carolyn B. for
another entire day on October 25, the Department terminated the trial home visit.
       Armani’s six-month review hearing was completed on November 3. Mother
acknowledged she had gone off track and expressed an intention to “do the things that are
important for her to get back to a place of family maintenance.” Mother and the court
agreed that interactions with Father were a primary concern. The court advised her to
call the police if Father came to her house. The court adopted the Department’s
recommendations, finding, among other things, that reasonable services had been
provided and moderate progress had been made, but that Armani could not be safely
returned to Mother’s care.
B.     Proceedings in 2012
       In January 2012, Mother gave birth to her second son, J.M. Shortly thereafter, the
Department filed a section 300(b) petition on behalf of J.M., who showed signs of opiate
withdrawal when he was born. The Department alleged that J.M. faced a risk of harm
because of the circumstances relating to the failed October 2011 trial home visit between
Mother and Armani, and the domestic violence relationship and ongoing contact between
Mother and Father. When J.M. was released from the hospital, he was taken into
protective custody and placed in the home of his maternal great grandmother, Carolyn B.




                                             4
       J.M.’s detention hearing was held on January 31. The Department reported that
both parents posed a risk of harm to J.M. because of their unsafe and unstable
relationship, Mother’s inability to maintain boundaries with Father, Father’s emotional
control over Mother, and both parents failure to address the problems that led to
Armani’s dependency. At the conclusion of the hearing, J.M. was detained from both
parents.
       On March 6, the court held a jurisdiction hearing for J.M. The Department
reported that, on December 31, 2011, the police had found Father hiding in Mother’s
closet and arrested him for violating the restraining order. On January 1 0, Mother went
to court and terminated the restraining order notwithstanding that she was advised such
action could jeopardize her reunification efforts. Mother denied there were domestic
violence problems with Father and was angry about J.M.’s dependency case because she
felt that she had “done everything [she] was supposed to” in Armani’s case.
Nevertheless, both Mother and Father submitted on the Department’s report and the court
sustained the allegations in J.M.’s petition.
       On March 27, the court conducted a disposition hearing for J.M. The Department
recommended that the court order reunification services for Mother but deny services to
Father. Mother had obtained housing, Father was in a 60-day inpatient substance abuse
treatment program, and the social worker did not know if the parents were still a
“romantic couple.” J.M. and Armani were both living with Carolyn B. Mother visited
the children four days per week, supervised by Carolyn B. She also had an additional
visit per week supervised by the Department. The court adopted the Department’s
recommendations for Mother and continued the matter for Father who contested the
Department’s recommendation and requested a hearing. At the continued hearing, Father
failed to appear and the court denied him reunification services.
       On April 10, the court conducted a 12-month review hearing in Armani’s case.
The Department recommended that Armani be returned to Mother based on evidence that
she had complied with her service plan, participated in regular visits and was responsive
to her child’s needs. The court found that Mother had made “substantive” progress


                                                5
toward alleviating or mitigating the causes necessitating jurisdiction, and returned
Armani to her care with family maintenance services.
       On August 31, 2012, the Department prepared a report and recommendation in
anticipation of J.M.’s six-month review which was scheduled for September 13. The
Department recommended returning J.M. to Mother with family maintenance services.
The Department reported that J.M. had been staying with Mother and Armani on an
extended home visit which was going well. Furthermore, although there was a recent
concern about the stability of Mother’s housing, she had complied with most of her case
plan, especially the provisions requiring her to stay away from Father.
       On September 3, Mother called the police and reported that Father had assaulted
her and stolen her cell phone and keys. When police arrived, two people were “passed
out” in Mother’s living room and the apartment “was cluttered with alcohol containers.”
The police did not observe visible injuries on Mother, who said she would press charges
but did not want to testify in court. Later that day, Father contacted the police and denied
that he assaulted Mother. Father reported that he had been living with Mother for three
months and that she was his SSI payee.
       On September 3, Mother reported the domestic violence incident to the
Department and told the social worker she was worried for her safety because Father still
had her keys. The social worker told Mother to take Armani and J.M. to a safe place.
During an interview the following day, Mother denied that Father had been living with
her but admitted he had spent time there and had unauthorized access to the children.
Mother had bruises on her shoulder and back which she did not show to the police
because she did not want to get Father in trouble. Mother also admitted that she was
Father’s SSI payee and told the social worker that he is “a really nice guy when he is not
on drugs.”
       On September 7, the Department filed a supplemental petition on behalf of
Armani, seeking to remove him from Mother’s home in light of the September 3 incident.
By that time, the Department had already terminated J.M.’s home visit and returned him
to the care of Carolyn B. According to the allegations in the supplemental petition,


                                             6
Father entered Mother’s apartment, grabbed her by the hair and punched her in the face
with a closed fist in front of Armani and J.M; Mother left the children in the apartment
with Father when she ran out to call police; Mother declined an offer by police to file an
emergency protective order and hid her injuries from the officer because she did not want
Father to go to jail. The Department also alleged that Father had admitted he had been
living with Mother for several months; Mother admitted she let Father visit and have
unauthorized contact with the children; Mother’s landlord had received multiple
complaints of noise and arguing in Mother’s apartment and intended to evict her; and
Mother allowed friends who were under the influence to stay at her home while the
children were present.
       On September 11, the court held a contested detention hearing for Armani.
Mother denied that Father had been living with her; she claimed that she had a friend who
looked similar to father. According to Mother, the reason Father had access to her home
was that her friend accidentally left the front door unlocked the night before because she
was intoxicated. Mother also stated that the children slept through the entire incident and
that the reason she did not show the police her injuries was that she was insecure about
her body. The juvenile court detained Armani from Mother and the Department placed
him with Carolyn B., who was already caring for J.M.
       On October 1 and 2, the court conducted its six-month review in J.M.’s case.
Pursuant to an addendum report prepared after the domestic violence incident, the
Department recommended that the court terminate services to Mother and schedule a
section 366.26 hearing for J.M. After a contested hearing, the court terminated services
to Mother and ordered a section 366.26 hearing.
       On October 31, and November 30, the court conducted a jurisdiction hearing on
Armani’s supplemental petition. The Department recommended that the court deny
Mother services and schedule a section 366.26 hearing. After a contested hearing, the
court found that all of the allegations in the supplemental petition were proven true
except for the allegation that Father lived with Mother for several months. The court also
found the prior disposition of returning Armani to Mother with maintenance service was


                                             7
ineffective, and that Mother had made only “moderate” progress toward alleviating or
mitigating the causes necessitating placement. Accordingly, the court terminate d
reunification services with Armani and ordered a section 366.26 hearing.
       After the boys’ cases were referred for a section 366.26 hearing, Mother’s counsel
filed a request for appointment of an expert witness to assist Mother in establishing that
terminating her parental rights would be detrimental to the children because she had
formed a beneficial parent-child relationship with them. On December 21, the juvenile
court granted Mother’s request and appointed Dr. Valerie Fox to perform an evaluation
regarding the attachment between Mother and the boys.
C.     Proceedings in 2013
       1.     Events Prior to the Section 366.26 Hearing
       In March, the Department filed a section 366.26 report recommending that the
court terminate Mother’s and Father’s parental rights and approve a permanent plan of
adoption for both Armani and J.M. It advised the court that the boys had a good
relationship with each other and that it “would be detrimental if sibling ties are not
maintained.” Furthermore, the Department had determined that both boys were
adoptable and prospective adoptive parents had been identified.
       In its report, the Department opined that ongoing “minimal” contact with both
parents would be in the children’s best interest, but it did not recommend visitation with
Father. Furthermore, the Department was concerned that physical visits with Mother
during the transition into the adoptive home would be counterproductive. The
Department also believed that future visits with Carolyn B. would be “appropriate” since
the boys had lived the majority of their lives with her. However, again there was concern
about visits during the transition period because the Department was concerned that
Carolyn B. would allow Mother to see the children during her visits.
       Adoption assessment reports for each boy were attached to the Department’s
section 366.26 report. Those reports summarize the history of the dependency cases, the
Department’s efforts to identify alternative placements for the children, and the




                                              8
circumstances supporting the Department’s ultimate conclusions that there were no
impediments to adoption and that it was likely the boys would be adopted.
       According to the adoption assessment reports, Carolyn B. was committed to
providing care for both boys as “a substitute care provider.” But, because of her age, she
did “not feel that she would be the best permanency resource” for them. The reports
acknowledged that Carolyn B. had expressed a desire to adopt Armani and J.M. But she
ultimately concluded that adoption was a better option: “The caregiver believes that
Armani and [J.M.] need a safe place to grow up considering the violence they have
already witnessed between their parents. However, there are concerns by both the
caregiver and the Department as to the caregiver’s ability to continue to care for the
siblings as the family grows older. The caregiver stated that she has excellent health and
a family history of longevity; however, she acknowledges that as her age advances she
will be less able to meet the challenges of raising Armani and [J.M.] as they eventually
develop into adults. This has been a difficult decision for the relative caregiver, but she
believes that there is a family better able to meet [the boys’] needs as they grow older.”
       On March 12, the boys’ Court Appointed Special Advocate (CASA) filed a report
in anticipation of the section 366.26 hearing. The CASA had been working with the
family since November 2011 and had weekly visits with the boys at the home of Carolyn
B. The CASA reported that the boys share a close sibling relationship and are both
attached to Carolyn B. The CASA also reported that Carolyn B. told her that she was
often tired because the boys did not sleep through the night. Carolyn B. described the
boys as very active and acknowledged that caring for them was “challenging.” The
CASA advised that the permanency of an adoption would be in the best interests of the
children and recommended that the “planned permanent living arrangement of adoption
for Armani and [J.M.] be ordered.”
       On March 14, Carolyn B. filed a request to be declared the de facto parent of both
Armani and J.M. Her uncontested requests were granted on March 21.
       In April, the Department filed an addendum report in which it advised the court
that Mother and Father continued to have contact with each other in violation of a


                                              9
restraining order. On one occasion, Mother and Father were seen socializing together.
On another occasion, Father showed up at Mother’s supervised visit with the boys
notwithstanding that the social worker told him not to. According to the report, “mother
appeared pleased with the father’s presence and in fact took pictures of him with the
children” before Father was asked to leave.
       2.     The Section 366.26 Hearing
       On April 29, a contested section 366.26 hearing was held for both Armani and
J.M. Gusto Curtis, the Department social worker who prepared the adoptions
assessments, testified at the hearing. Curtis reiterated his conclusions that both Armani
and J.M. are adoptable. As he explained, the primary factors for determining adoptability
are the age of the child, his physical health and his emotional, psychological and social
health. Curtis concluded that all of these factors indicated that both boys are likely to be
adopted.
       Curtis testified that Carolyn B. had told him that she wanted to adopt the boys but
that she felt there was “a more appropriate home” for them. Curtis recalled that during
the adoption assessment process Carolyn B. “wavered back and forth many times” about
whether she wanted to adopt the children. During one conversation, Curtis and Carolyn
B. discussed what it would be like when the boys were teenagers and she was older and
Carolyn B. said she had younger relatives who could help her care for the boys.
Ultimately, Carolyn B. decided to “withdraw her participation” from the home study
process.
       Curtis testified that Armani and J.M. had a positive bond with Carolyn B. who was
their primary caregiver and that there was evidence that Mother had been affectionate and
attentive to the children during her visits with them. But, he believed that maintaining an
ongoing relationship with Mother would be detrimental to the boys because of her history
of making poor choices regarding her relationship with Father, and of exposing them to
“domestic violence, substance abuse, and people with questionable mental health.”
       Curtis testified that the Department had reviewed and agreed with the conclusions
of Mother’s expert, Dr. Valerie Fox. Dr. Fox summarized the results of her


                                              10
psychological evaluation of Mother in a report dated April 15, 2013, which was admitted
into evidence at the hearing over Mother’s objection. Mother’s psychological testing
revealed that she had a “histrionic personality disorder, emotionally unstable with passive
aggressive and depressive traits.” Consequences of this disorder included that Mother
became overconfident when things appeared to be going her way and felt sorry for herself
when things did not go well. In addition, “[w]ith respect to authorities, [Mother] is
superficially compliant but inwardly very resentful of being told what she can or cannot
do. Thus, she may readily agree to something and then do the opposite and feel no guilt
about it.”
       Other conclusions by Dr. Fox included that (1) Mother has a strong need for
immediate gratification which makes it difficult for her to foresee long term
consequences, and (2) Mother has an anxiety disorder which when combined with her
personality disorder makes it difficult for her to benefit from therapy. Regarding
Mother’s attitude toward parenting and her children, Dr. Fox opined that Mother
perceives parenting responsibilities as burdensome, that she receives some pleasure from
being a parent but not a lot, that she perceives herself as very involved in her children’s
activities, and that she experiences frustration trying to communicate with the boys but
also feels she has some control over them and has established guidelines for their
behavior.
       In her report, Dr. Fox recommended that the boys be placed in a “stable, two
parent home.” Based on her testing and observations of Mother and the boys, Dr. Fox
concluded that the boys had formed a moderate bond with Mother but that their primary
emotional bond was with Carolyn B., who was not a candidate for adoption because she
was 69 years old and could not provide a stable two parent home with a positive male
role model. Dr. Fox also opined that the fact that the boys had demonstrated their ability
to bond with a person who would provide them with “quality caregiving,” as Carolyn B.
had, meant that it was important to give them the opportunity to “develop a healthy
attachment to their future parents as soon as possible.”




                                             11
       Carolyn B. testified at the hearing that she is committed to providing a stable and
loving home for the boys and that she would “prefer” to be the adoptive parent for them.
Carolyn B. denied ever telling anyone at the Department that she believed she was too
old to take care of the boys. However, she testified that the Department social worker
Gusto Curtis told her she was too old to adopt when Armani was “just a baby” and that
later an employee from the state adoption service also told her she was too old. After
that, Carolyn B. “kind of gave up the hope of being able to take care” of the boys until
several months before the section 366.26 hearing when she was told that it would be
discrimination to prevent her from adopting the boys because of her age. At that point,
Carolyn B. submitted her application to adopt the boys.
       Carolyn B. testified that, after she completed the adoption paperwork, Gusto
Curtis came to her home to discuss the adoption process. Curtis expressed concerns
about her age. Those concerns made Carolyn B. feel “guilty” about wanting to adopt the
boys and also made her feel “that I was too old.” That was why she told Curtis to
withdraw her request to adopt the boys. After her conversation with Curtis, Carolyn B.
did not consider adopting again until after the prospective adoptive parents had been
identified. Carolyn B. did not think that the prospective adoptive parents were the right
people to adopt Armani and J.M. She objected to the fact that the prospective adoptive
father was in law enforcement, to the way the prospective adoptive mother interacted
with the boys, and especially to the fact that they did not want an open adoption.
       Carolyn B. testified that she believed that Armani had bonded with Mother and
that J.M. had bonded with her. She opined that transitioning Armani to the adoptive
parents would “destroy him.” However, she also testified that she believed the boys were
“adoptable” if by the “right people.” She explained: “It’s a lot. These babies take a lot
of time, a lot of patience. It cannot be anyone that’s, you know, has anger management
issues or a short temper, you know. They have to have a lot of patience. They’d have to
want to love these children. . . . [a]nd care about them.”
       Kimberly Smith, the Department social worker for both Armani and J.M., testified
she did not believe Mother had a beneficial parental relationship with the children. In her


                                             12
opinion, the children viewed Mother as a “friendly visitor,” and saw Carolyn B. as a
“maternal figure.” When asked whether the boys could transition from Carolyn B. to an
adoptive family, Smith responded: “I think if done with sensitivity, done properly,
absolutely.” Smith had seen comparable transitions in other cases that were successful.
       Mother testified that she disagreed with the social worker’s assessment of her
relationship with the boys; Mother believed the children viewed her as their mother.
During visits, they call her “mama,” they are happy to see her and sad when she leaves.
She feeds them, bathes them, plays with them, “just normal mom and kid things.”
Mother also testified that she disciplines the children and sets boundaries for them. She
believed her children were bonded to her and that it would be detrimental for them not to
have a relationship with their mother.
       At the conclusion of the hearing, the court found that it needed to resolve two
distinct issues (1) adoptability, and (2) whether there was a beneficial parental
relationship. Regarding the first issue, the court found that the Department met its burden
of establishing that Armani and J.M. are adoptable. Turning to the second issue, the
question was whether the parents had carried their burden of establishing a beneficial
parental relationship that should be preserved. The evidence regarding the Mother’s
relationship with the boys was mixed; some evidence portrayed her as a friendly visitor
and other evidence as a parent figure. However, the court found, even if it determined
there was a parental relationship, Mother had to show that the benefits of that relationship
outweighed the benefits of adoption. The court concluded that Mother could not make
that showing, particularly in light of the conclusions of Dr. Fox, which the court
characterized as both professional and unbiased.
       Ultimately, the court found that the boys were adoptable and the benefits of
maintaining a relationship with Mother (and with Carolyn B.) did not outweigh the
benefits of adoption. Thus, it rejected the parents’ proposal of a guardianship as an
alternative to adoption and ordered that the parental rights of both Mother and Father
were terminated.




                                             13
                                    III. DISCUSSION
A.     Overview of Statutory Framework
       “ ‘The objective of the dependency scheme is to protect abused or neglected
children and those at substantial risk thereof and to provide permanent, stable homes if
those children cannot be returned home within a prescribed period of time.’ [Citation.]
When the child is removed from the home, the court first attempts, for a specified period
of time, to reunify the family. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52
(Celine R.).) However, if reunification efforts have failed and reunification services are
terminated, “ ‘the focus shifts to the needs of the child for permanency and stability.’
[Citation.]” (Ibid.)
       “The section 366.26 hearing is a critical late stage in a dependency proceeding.
The child has been under juvenile court jurisdiction for an extended period following the
dispositional order, and the court has held one or more review hearings to consider a
return to parental custody. [Citation.] At the section 366.26 hearing, the focus shifts
away from family reunification and toward the selection and implementation of a
permanent plan for the child. [Citation.] Section 366.26 sets out ‘the exclusive
procedures for conducting these hearings.’ [Citation.] If adoption is likely, the court is
required to terminate parental rights, unless specified circumstances compel a finding that
termination would be detrimental to the child. [Citations.]” (In re S.B. (2009) 46 Cal.4th
529, 532-533, fn. omitted, emphasis added; see also Celine R., supra, 31 Cal.4th at pp.
52-53.)
       “By the time of the section 366.26 hearing, family preservation is not an object of
the statutory scheme. Family preservation is of critical importance from the time the
minor is removed from parental custody [citation] through the reunification period.
However, when reunification efforts cease, the scale tips away from the parent’s interest
in maintaining family ties and towards the child’s interest in permanence and stability.
[Citation.] At that point, adoption becomes the preferred permanent plan. [Citations.]
Guardianship, while a more stable placement than foster care, is not irrevocable and thus
falls short of the secure and permanent future the Legislature had in mind for the


                                             14
dependent child. [Citations.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344-
1345.)
         “Because adoption is more secure and permanent than a legal guardianship or
long-term foster care, adoption is the Legislature’s first choice for a permanent plan for a
dependent minor child who has not been returned to the custody of his or her parents and
who is found by the dependency court to be adoptable. [Citations.] To avoid termination
of parental rights and adoption, a parent must demonstrate that one or more of the section
366.26, subdivision (c)(1)(A) or (B) exceptions to termination of parental rights applies
to his or her child. The parent has the burden of proof on the issue. [Citation.] 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. [Citation.]” (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
B.       Issues Presented and Standard of Review
         In the present case, the juvenile court found that Armani and J.M. are adoptable.
Mother (and Father) do not challenge this finding on appeal. Thus, as reflected in the
authority summarized above, the juvenile court was required to terminate parental rights
and select the permanent plan of adoption unless a circumstance specified in section
366.26 compelled a finding that terminating parental rights would be detrimental to the
boys. (In re S.B., supra, 46 Cal.4th at pp. 532-533.)
         Here, Mother contends that two statutory exceptions set forth in section 366.26
precluded the juvenile court from terminating her parental rights to Armani and J.M.
         First, Mother invokes section 366.26 subdivision (c)(1)(A), the relative caregiver
exception, which states that the court is not required to terminate parental rights over an
adoptable child if: “(A) The child is living with a relative who is unable or unwilling to
adopt the child because of circumstances that do not include an unwillingness to accept
legal or financial responsibility for the child, but who is willing and capable of pr oviding
the child with a stable and permanent environment through legal guardianship, and the
removal of the child from the custody of his or her relative would be detrimental to the
emotional well-being of the child. . . .”


                                              15
         Second, Mother relies on section 366.26 subdivision (c)(1)(B)(i), the beneficial
parental relationship exception, which provides that parental rights need not be
terminated if: “(B) The court finds a compelling reason for determining that termination
would be detrimental to the child . . . [because]: [¶] (i) The parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.”
         Mother seeks reversal of the order terminating her parental rights on the ground
that substantial evidence does not support the juvenile court’s findings that these
exceptions do not apply. However, Mother’s framing of these issues fails to account for
the fact that she carried the burden of proof in the lower court. (See In re I.W. (2009) 180
Cal.App.4th 1517, 1528.) The substantial evidence 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 [citations].” (Ibid.)
         “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
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ [Citation.]” (In re I.W., supra, 180 Cal.App.4th at p.
1528.)
C.       The Relative Caregiver Exception
         Application of the relative caregiver exception requires three findings: (1) the
relative caregiver is unwilling or unable to adopt the child because of circumstances that


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do not include an unwillingness to accept legal or financial responsibility for the child;
(2) the relative caretaker is willing and capable of providing the child with a stable and
permanent environment through legal guardianship; and (3) removing the child from the
relative caretaker’s custody would be detrimental to the child’s emotional well-being. (In
re K.H. (2011) 201 Cal.App.4th 406, 415.)
       Mother’s first contention on appeal is that the juvenile court erred as a matter of
law because it applied the incorrect legal test for determining whether the relative
caregiver exception applies; according to Mother, the sole reason the court gave for
rejecting this exception was that the evidence shows that the boys are capable of forming
a new bond with an adoptive mom and dad.
       Mother mischaracterizes the juvenile court’s ruling. The record before us reflects
that the question whether the relative caregiver exception applies in this case was raised
for the first time during witness testimony at the section 366.26 hearing. The juvenile
court permitted Mother to elicit evidence relevant to the issue. Ultimately, the court
made an implicit finding that this exception does not apply by terminating parental rights
and ordering adoption as the permanent plan for the boys. However, the court did not
make any express finding regarding the relative caregiver exception. Thus we reject
Mother’s erroneous factual contention that the court applied the wrong test for
determining whether the relative caregiver exception applies.
       Mother’s second contention is that evidence presented at the section 366.26
hearing compels the conclusion that the relative caregiver exception applies in these
dependency cases. However, in crafting this argument, Mother overlooks conflicting and
competing evidence that is inconsistent with her claim of error.
       For example, Mother contends that Carolyn B. was ready and willing to provide
the boys with a stable permanent home but that she was unable to adopt them because the
Department told her she was too old. However, as reflected in our factual summary, the
Department social worker testified that Carolyn B. wavered back and forth about whether
she wanted to adopt and it was she who ultimately decided to withdraw from the home




                                             17
study process. The record also contains evidence that Carolyn B. regretted her decision
not to pursue adoption only because she did not like the prospective adoptive parents.
         Mother also contends that the record establishes that Carolyn B. was willing to
adopt the boys if necessary but that she preferred to serve as a legal guardian. As best we
can tell, Carolyn B. never expressed a preference for legal guardianship. Indeed, the
record citations upon which Mother relies includes Carolyn B.’s testimony that she would
“prefer to be the adoptive parent.” Furthermore, when read as whole, Carolyn B.’s
testimony indicates that her preference was to prevent the prospective adoptive parents
from adopting the boys and that she was willing to adopt them herself to avoid that from
happening.
         Indeed, the evidence and testimony about Carolyn B.’s commitment to providing
the boys with a permanent and stable home is ambiguous. Her wavering about whether
or not to adopt could be interpreted as hesitancy or misgivings about assuming the role of
a permanent caregiver for the boys, whether as a guardian or an adoptive parent. It
appears that it was this hesitancy which led the Department to look for non-relative
adoptive parents for the boys. In other words, the evidence in this record does not
compel the conclusion that Carolyn B. was unable or unwilling to adopt the boys but that
she had committed to providing them with a permanent stable home.
         Furthermore, the relative caregiver exception cannot be applied unless the parent
proves that removal from the relative caregiver’s home would be detrimental to the
emotional well-being of the child. (In re K.H., supra, 201 Cal.App.4th at p. 415.)
Mother appears to assume that evidence of the bond between Carolyn B. and the boys
conclusively establishes that removing them from her custody would be detrimental to
their emotional well being. However, that assumption is not supported by any evidence.
It is also inconsistent with the conclusions of both the Department and of Mother’s own
expert, whose reports support the juvenile court’s finding that transitioning the boys into
a stable two parent adoptive family would not be detrimental to their emotional well
being.




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       It is not our role on appeal to revisit the lower court’s resolution of conflicting and
competing evidence. (In re I.W., supra, 180 Cal.App.4th at p. 1529.) As the court
observed in In re I.W., many dependency cases pose evidentiary conflicts and obligate
“the juvenile court to make highly subjective evaluations about competing, not
necessarily conflicting, evidence.” (Id. at p. 1528.) When, as here, the juvenile court’s
ruling reflects that it considered conflicting, competing evidence and “essentially
discounted mother’s evidence in concluding that mother had failed to carry her burden of
proof,” it “is not our function to retry the case.” (Ibid.)
       Ultimately, “[t]his is simply not a case where undisputed facts lead to only one
conclusion.” (In re I.W., supra, 180 Cal.App.4th at p. 1529.) Therefore, we reject
Mother’s contention that the juvenile court was compelled to apply the relative caregiver
exception.
D.     The Beneficial Parental Relationship Exception
       “When contesting termination of parental rights under the statutory exception that
the parent has maintained regular visitation with the child and the child will benefit from
continuing the relationship, the parent has the burden of showing either that (1)
continuation of the parent-child relationship will 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 [citation] or (2) termination of the parental relationship would
be detrimental to the child. [Citation.] Put another way, DCFS is not required to produce
evidence demonstrating that a minor would not benefit from continued parental contact.
[Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
       “To overcome the preference for adoption and avoid termination of the natural
parent’s rights, the parent must show that severing the natural parent-child relationship
would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed. [Citations.] A biological parent who has failed to reunify with
an adoptable child may not derail an adoption merely by showing the child would derive
some benefit from continuing a relationship maintained during periods of visitation with
the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court


                                              19
should not be deprived of an adoptive parent when the natural parent has maintained a
relationship that may be beneficial to some degree, but that does not meet the child’s
need for a parent. [Citation.]” (In re Angel B. supra, 97 Cal.App.4th at p. 466.)
       On appeal, Mother contends that she satisfied the requirements of the parent-child
relationship exception through evidence of her consistent visitation and of the positive
interactions and bond she formed with the boys during those visits. Once again though,
Mother simply ignores the conflicting evidence on this issue which indicated that
Mother’s relationship with the boys was that of a friendly visitor, rather than a parent.
Furthermore, Mother does not identify any concrete evidence to support her claim that
the benefits of preserving her parental relationship with the boys outweighs the benefits
of adoption and the permanency and stability of that statutory preference.
       “The parent has the burden of proving that termination would be detrimental to the
child under section 366.26, subdivision (c)(1)(A). [Citations.] The juvenile court may
reject the parent’s claim simply by finding that the relationship maintained during
visitation does not benefit the child significantly enough to outweigh the strong
preference for adoption. . . . 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.) Mother fails to identify any extraordinary circumstance that
required the juvenile court to preserve her parental rights.
                                    IV. DISPOSITION
       The juvenile court orders terminating the parental rights of Mother and Father and
selecting adoption as the permanent plan for Armani M. and J.M. are affirmed.




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                                               _________________________
                                               Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




       * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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