Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SJ10644D, Gary G. Haehnle, Judge.
HUFFMAN, Acting P. J.
Rosa G. appeals a judgment terminating her parental rights to her minor son, Cesar G., under Welfare and Institutions Code section 366.26. Rosa argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005 two-year-old Cesar became a dependent of the juvenile court under section 300, subdivisions (b) and (g), and was removed from parental custody based on findings Rosa had an ongoing methamphetamine and heroin addiction causing her to be unable to provide regular care for Cesar. Rosa had a five-year history with the San Diego County Health and Human Services Agency (Agency) consisting of numerous referrals as to Cesar's older siblings. Rosa lost custody of Cesar's three older siblings after she failed to reunify with them. Rosa admitted to abusing drugs for about 20 years. The court placed Cesar with his paternal grandmother and scheduled a section 366.26 selection and implementation hearing after finding Rosa would not benefit from reunification services. The court ordered the Agency to submit an assessment report.
In February 2006 Rosa and Cesar participated in a study conducted by Raymond G. Murphy, Ph.D., in order to assess the degree of attachment and bonding between the two. The evaluator noted a great deal of affection between Rosa and Cesar. Cesar appeared eager to play with Rosa, and Rosa attended to Cesar's needs. Cesar held Rosa's hands and spontaneously hugged her and sat in her lap. Dr. Murphy opined Cesar had a primary attachment to Rosa and would "probably" suffer difficulty and emotional disruption if a court severed the relationship.
Rosa filed a section 388 modification petition with the court requesting the court vacate the section 366.26 hearing and order reunification services. Rosa asserted she had participated in therapy and made progress with her substance abuse treatment program. The court granted Rosa's petition and ordered reunification services for her.
During the next year, Rosa participated in drug court, remained in good compliance with her drug treatment program and tested negative for drugs. Rosa also participated in therapy and parenting education courses. By the 18-month review hearing, Rosa had moved into a sober living facility and participated in a drug aftercare program. In February 2007 the court ordered Cesar's return to Rosa and ordered that Rosa participate in family reunification services.
The Agency filed a section 387 petition about one year later. The petition alleged drugs were found in Rosa's home and she was involved with selling drugs. Rosa would no longer be able to provide adequate care for five-year-old Cesar. Before the detention hearing, the Agency received reports showing Rosa submitted two drug tests that were both returned positive for methamphetamine. The court placed Cesar in out-of-home care, denied services for Rosa and scheduled a section 366.26 hearing.
Social worker Cynthia Vasquez assessed Cesar as adoptable based on his excellent health, appropriate development and absence of emotional problems. Cesar's grandmother wanted to adopt him. Cesar was bonded to his grandmother, and he expressed his love for her.
Ms. Vasquez observed several visits between Cesar and Rosa. During visits, Rosa and Cesar played together. Rosa would bring Cesar gifts, food and toys. Cesar would kiss and hug Rosa and Rosa displayed affection toward Cesar. When Rosa was late to visits, Cesar would wait for her and sometimes he would look out the door or window to see if Rosa was there. After one visit, Cesar asked why Rosa had to leave as she prepared to go home and Cesar had to be told a few times to let go of Rosa because she was leaving. However, Cesar did not cry when Rosa would leave him at the end of the visits.
The grandmother reported Cesar appeared upset on one occasion after Rosa left a visit. He became defiant with the grandmother, and he appeared angry with her. He talked back to the grandmother when she asked him questions. The following morning, Cesar became angry and cried. Cesar would not tell his grandmother what was wrong. The grandmother reported the behavior to the social worker.
In early September 2008 Rosa missed a visit with Cesar. Ms. Vasquez told Cesar that Rosa was not going to be there, and he appeared a little disappointed. The social worker asked him how he felt about Rosa not making the visit and he stated he was "happy, because [he] could play with [his] game." Ms. Vasquez played with Cesar and later asked him whether he wanted to live with his grandmother or Rosa and Cesar replied with the grandmother. Ms. Vasquez explained adoption to Cesar and when she asked him if he wanted to be adopted by his grandmother, he replied yes. Ms. Vasquez reported she spoke with Rosa, and Rosa admitted Cesar had everything he needed with his grandmother.
Ms. Vasquez acknowledged Cesar referred to Rosa as his "mom" and he looked forward to spending time with his mother. Ms. Vasquez opined Cesar and Rosa shared a parent-child relationship but that it was not a significant one. Cesar looked to his grandmother to meet his physical and emotional needs, not his mother.
In an addendum report, Ms. Vasquez reported that Rosa did not appear for three visits in the month of October 2008. At a scheduled visit, Rosa did not show up and Ms. Vasquez telephoned Rosa to remind her about the visit. Rosa said she had forgotten about the visit. Ms. Vasquez told Cesar that Rosa would not be coming and he acted indifferently upon hearing the news. He continued playing a game. He later ate a snack and then wanted to put on his Halloween costume. Cesar had trouble putting on his costume and started to cry. He went to his room and cried some more. The grandmother attempted to calm Cesar down. A few minutes later, he came out of his room and was calm.
One month before the section 366.26 hearing, Robert Kelin, Psy.D., conducted an interaction study between Cesar and Rosa. Dr. Kelin noted Rosa arrived early for the appointment and Cesar was happy to see her. Cesar proceeded to play with toys in the office. Rosa left the office at one point, and Cesar did not show any reaction to the separation from Rosa. Rosa came back into the room to get Cesar and he readily went to her. Cesar and Rosa started to play a game together. Rosa explained the instructions for the game to Cesar and he listened to her. Cesar became bored a few minutes later and started to play a different game. Dr. Kelin noted Cesar mostly played independently.
Rosa left the room again and Cesar did not show any reaction to her leaving and he continued to play with the toys. Dr. Kelin then observed Cesar playing with his grandmother. Cesar eagerly went to his grandmother and they played together for a while. Most of the time, Cesar played independently. The grandmother left the room and Cesar did not show any reaction to her leaving him. Rosa returned to play with Cesar and she later asked Cesar to clean up. Cesar followed Rosa's instructions and then he spontaneously hugged her before he left for another room. Dr. Kelin asked Rosa to say goodbye to Cesar. Rosa and Cesar hugged each other and she told Cesar she loved him. Cesar did not show any type of emotional reaction to Rosa leaving and he went back to playing with the toys.
Dr. Kelin asked Cesar to draw a picture of his family. Cesar drew three people. He named himself and his grandmother as being two of the people. When asked about the third person, he said it was "nobody" and erased the person. Dr. Kelin opined Cesar showed bonding with his grandmother. Dr. Kelin was unsure about the third person that had been in the drawing and opined Cesar may have ambivalent feelings about that person.
Dr. Kelin further opined Cesar was comfortable with Rosa and was happy to see her. He followed Rosa's instructions and that indicated Cesar viewed Rosa in a parental or authority role. He emphasized Cesar did not show any negative reaction to being separated from Rosa and, as a result, he described the bond between them as mild. Dr. Kelin could not determine if the bond was a primary one because Cesar did not show much difference between Rosa, the grandmother or the evaluator. He noted that because Cesar is a very independent child, it was difficult to assess the bonds of a child like Cesar.
Ms. Vasquez reviewed the bonding study and believed the study showed the relationship between Cesar and Rosa was not a significant one. Cesar knows Rosa is his mother, he loves her and is happy to see her. However, Cesar is not upset when separated from her and he does not appear sad when she is not with him. Ms. Vasquez further believed the absence of Rosa from the family picture showed Cesar did not share a primary bond with Rosa.
The court held a section 366.26 hearing. Rosa testified Cesar lived with his grandmother after his initial removal. He returned to live with Rosa in February 2007. Cesar continued to have a relationship with his grandmother after returning to Rosa's care. Cesar returned to his grandmother's care after his second removal. Rosa visited Cesar once or twice a week between March 2008 and August 2008. Rosa also called Cesar in the evenings. Rosa testified Cesar referred to her as "mom." Rosa acknowledged Cesar did not cry when she left him. She claimed Cesar always hugged her and kissed her when visits ended and that Cesar would ask her to come back into the house to be with him. Rosa wanted to regain custody of Cesar and did not want him to be adopted.
After considering the evidence, the court found Cesar was adoptable and none of the exceptions to adoption applied to preclude terminating parental rights. The court found Rosa had regular visits with Cesar. The court considered Dr. Kelin's report and the observations by Dr. Kelin that Cesar was independent. The court believed Rosa's instability resulted in the absence of a bond being created between her and Cesar and that Cesar needed permanence in his life. The court did not believe the relationship between Rosa and Cesar outweighed the benefit of permanence that adoption would provide. Rosa filed a timely notice of appeal.
DISCUSSION
Rosa challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating her parental rights. She asserts she shared a strong parental bond with Cesar because he had spent the majority of his life in her care and that she had maintained regular contact with him during their time apart.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if termination of parental rights 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." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "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. 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., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999)70 Cal.App.4th 38, 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a positive and emotional attachment from child to parent. (In re Autumn H., supra, at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
The court found Rosa regularly visited Cesar. Thus, we examine only whether substantial evidence supports the court's finding Rosa did not have a beneficial relationship with Cesar. Admittedly, the evidence shows Rosa and Cesar share a relationship but it was not shown to be a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(B). Dr. Kelin conducted a bonding study between Rosa and Cesar and observed that although Cesar was happy to see Rosa, and displayed affection toward her, he did not show any negative reactions when visits ended. Dr. Kelin noted Cesar's drawing of his family and that Cesar did not include Rosa in the picture. Cesar included his grandmother, and Dr. Kelin opined this showed some bonding with the grandmother. Dr. Kelin further opined Cesar's interactions with Rosa showed he did see Rosa in a parental or authority role. Dr. Kelin concluded Rosa and Cesar shared a "mild bond." Dr. Kelin could not determine whether this mild bond was a primary bond. Dr. Kelin, however, did not state Cesar would benefit more from maintaining a relationship with Rosa than he would by being adopted.
There was no evidence Cesar had a substantial, positive emotional attachment to Rosa to permit the conclusion that terminating parental rights would result in great detriment to Cesar. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; compare In re S.B. (2008) 164 Cal.App.4th 289, 294-295, 298-300 [minor would be greatly harmed by loss of significant, positive relationship she had with father, who complied with every aspect of his case plan].) Ms. Vasquez acknowledged Cesar and Rosa had a relationship but that it was not a significant one. Ms. Vasquez observed visits between Cesar and Rosa and the visits were appropriate. Cesar was not upset after being separated from Rosa and he did not appear sad when she was not around. Cesar instead looked to his grandmother to meet his everyday needs and Cesar told Ms. Vasquez that he wanted to be adopted by his grandmother. Ms. Vasquez believed any benefit Cesar derived from the relationship was outweighed by the stability and security he would gain from being adopted. Although Rosa loves Cesar, "this is simply not enough to outweigh the sense of security and belonging an adoptive home would provide." (In re Helen W. (2007)150 Cal.App.4th 71, 81.)
Rosa asserts Cesar suffered anxiety with the prospect of separation and that he had episodes of acting out when separated from Rosa. The evidence does show Cesar sometimes appeared disappointed when Rosa did not appear for visits. Cesar also showed affection toward Rosa and at the end of one visit, he didn't want to let her go. We do not deny that Cesar may grieve and feel a sense of loss if he no longer had contact with Rosa. However, there was no showing Cesar would be greatly harmed by terminating Rosa's parental rights. To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)
After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that an adoptive placement would give Cesar, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the section 366.26, subdivision (c)(1)(B) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J. O'ROURKE, J.