Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J509766D, William E. Lehnhardt, Judge. (Retired Judge of the Imperial County S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
O'ROURKE, J.
Judith M. appeals an order terminating her parental rights to her child, Moses L. She contends the beneficial parent-child relationship to termination of parental rights and adoption applied in this case, and the evidence was insufficient to show that Moses was adoptable. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2006, the San Diego County Health and Human Services Agency petitioned under Welfare and Institutions Code section 300, subdivision (b), on behalf of six-year-old Moses, alleging he was at risk because of domestic violence between Judith and her boyfriend, Jose M. On October 12 Jose kicked, punched and threw Judith to the ground, and Moses jumped on Jose's back and bit him. The petition additionally alleged Judith was suffering from depression and on November 17 asked police to take a knife from her, remove Moses from her care and take her to a hospital. The petition also alleged Judith had a history of abusing alcohol that had resulted in Child Protective Services removing Moses in 2000, removing two of Moses's siblings in 1999 and removing another sibling in 1994. The court ordered Moses detained.
Statutory references are to the Welfare and Institutions Code.
Judith reunified with Moses in March 2003.
Moses told the social worker his father, Jaime L., had attacked Judith and then moved far away. He said Judith and Jose fought constantly. Moses's foster mother said Moses had many problems in the foster home and fought with the other children and threatened them. Moses told the social worker he enjoyed the foster home, but he missed Judith.
On January 19, 2007, Moses was moved to the home of his maternal uncle, Daniel M. The social worker reported that during a visit with Judith on January 24, Moses did not engage with her and appeared to be more bonded with Daniel.
The psychologist who conducted a psychological evaluation of Judith opined Judith had a tendency to be in violent relationships and there was concern she would expose her children to emotional abuse. He said her drug use did not appear to be a current concern. He recommended a domestic violence program, therapy, parenting classes and substance abuse counseling and testing.
On February 5, 2007, Judith submitted to the allegations of the petition based on the social worker's reports. The court found the allegations of the petition were true and referred Judith to the Substance Abuse Recovery Management System and Dependency Drug Court.
At the dispositional hearing the court declared Moses a dependent child and placed him in relative care. It ordered reunification services would not be provided to Judith under section 361.5, subdivision (b)(10), (11) and (13), and referred the matter for a section 366.26 hearing.
In the assessment report, the social worker noted Moses had been diagnosed with mild cerebral palsy and a heart murmur, and his development and motor skills were somewhat delayed. In therapy he had drawn pictures of children being wounded and bleeding and expressed feelings of guilt and sadness, but his therapist said he had demonstrated some understanding of his feelings. The social worker said that during a visit in April 2007 Moses and Judith greeted each other affectionately. Judith initiated affection and Moses appeared to enjoy her hugs. At a visit in May, Moses ran to Judith's arms and hugged her. On June 22 Moses told the social worker he missed Judith and if Daniel did not adopt him, he would want Judith to adopt him. Judith did not appear for their visit that day and the social worker learned she had been admitted to a hospital following a visit with her psychiatrist. She was suffering from suicidal ideation, depression, auditory hallucinations and anxiety. She reported she had started drinking again. The social worker said Moses loved his uncle Daniel and Daniel's partner and wanted them to adopt him. Daniel and his partner were committed to adopting Moses and had begun the adoptive home study process. In addition, four other approved adoptive families in San Diego were interested in adopting a child like Moses.
At the section 366.26 hearing on November 13, 2007, after receiving the documentary evidence and hearing argument, the court terminated Judith's parental rights and referred Moses for adoption.
DISCUSSION
I
Judith contends the court erred by not finding that the beneficial relationship exception to termination of parental rights and adoption applied in this case.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Judith's contact and visits with Moses were sporadic throughout Moses's dependency. Because of her mental health issues and other problems she did not attend all of the scheduled weekly visits. Her first visit with Moses took place about six weeks after he was removed from her care. The social worker supervised a visit in February 2007 during which Moses played with Judith and with Daniel. Judith did not attend the next scheduled visit and did not notify the social worker she was not coming. The social worker observed a visit on April 20, but Judith did not come to the visit scheduled for the next week. She had visits with Moses in May and June, but then did not appear for the scheduled June 22 visit. She reported she had overslept, and then on June 26 was admitted to a psychiatric hospital. After Judith's release, she visited Moses on July 13, but then did not attend the next scheduled visit, and the social worker learned she had been arrested for battery due to a domestic violence incident. After her release from jail she visited Moses every week.
Even assuming that this record shows regular visitation and contact, Judith has not shown she and Moses had a beneficial parent-child relationship such that termination of parental rights would be detrimental to Moses.
Although Moses showed love for Judith, he repeatedly said he wanted to live with Daniel and Daniel's partner and called them his two dads. He said that he wanted to be adopted by them. They were strong advocates for him, had been meeting all of his needs and were committed to adopting him. Moses sometimes had to be prompted to greet Judith at the beginning of visits and did not demonstrate any distress when leaving her. Judith told the social worker she sometimes felt uncomfortable giving Moses direction or telling him what to do, and at times acted inappropriately by discussing aspects of the case in his presence. Judith has not shown that the court erred by not applying the beneficial relationship exception to termination of parental rights and adoption.
II
Judith also asserts the court based its selection of adoption as Moses's permanent plan on insufficient evidence. She argues the assessment report did not include a screening of the prospective adoptive parents for criminal activity or prior child abuse referrals and did not indicate whether they understood the legal and financial implications of adoption.
Before a court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child—whether his age [or her age], physical condition and emotional state make it difficult to find a person willing to adopt him [or her]." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) The fact children are with families who want to adopt them supports a finding they are generally adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) "On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The assessment report contained sufficient information. Daniel and his partner had been providing Moses with love, nurture and daily care since January 2007. They were strong advocates for him and had been very involved in his education and medical care and had been working with his therapist. They had met with the social worker, begun an adoptive home study and were committed to adopting him. It was not required that the home study be completed. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.) A preliminary criminal and child protective services background check had been conducted when the family was approved as a foster home. The social worker had discussed the legal and financial responsibilities involved in adoption, and Daniel and his partner indicated they understood and were committed to these responsibilities. There were no concerns this family would not be approved to adopt. In addition, the social worker reported there were four approved adoptive families in San Diego who were interested in adopting a child like Moses. Substantial evidence supported the finding that Moses was likely to be adopted.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.