Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge., Super. Ct. No. NJ1288A, B.
BENKE, Acting P. J.
Austin H. appeals a judgment of the juvenile court terminating his parental rights to his minor children Christopher H. and Brianna H. (together the minors) under Welfare and Institutions Code section 366.26. Austin challenges the sufficiency of the evidence to support the court's findings the minors are adoptable and the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, eight-year-old Christopher and three-year-old Brianna became dependents of the juvenile court and were removed from parental custody based on findings their parents, Austin and Debra H., left them unsupervised in an area under construction, resulting in physical injuries to Christopher and risk of harm to Brianna. Further investigation showed the parents had histories of substance abuse and had been neglecting the minors, including their medical needs. The court ordered the parents to comply with their case plans, which included parenting classes and a psychological evaluation.
Debra has not appealed.
The minors had developmental delays and behavior problems. Brianna was unable to follow simple commands, required close supervision, did not speak, had frequent tantrums and exhibited self-destructive behaviors. She had exotropia, a condition causing one eye to deviate from the other, for which she received treatment. Christopher attended special education classes for his learning disabilities. He was physically aggressive, verbally abusive and threatened to harm people. Christopher was unable to tie his shoes or wash his hair unassisted. He took medications for his aggression, attention deficit and hyperactivity disorder, enuresis and encopresis.
Austin completed a parenting class and attended anger management. Psychological evaluations showed Austin had a neurological deficit, below average intelligence and a history of drug and alcohol abuse. He had significant difficulty coping with stress and controlling his hostile impulses. Austin was anxious, guarded and suspicious.
After not visiting the minors for five months, Austin resumed visits. Christopher reacted negatively to the visits, threatening to misbehave in school and hurt children. He tended to "shut down" during visits and sometimes said he did not want to visit his father. Austin lacked patience and judgment during visits and his behavior was inappropriate. The visitation monitor had to redirect Austin regarding his inappropriate choice of language and use of profanity. Austin was aggressive and competitive with Christopher when participating in sports and lacked safety concerns. During some visits, Austin had little interaction with the minors, choosing to sit in his car and not say goodbye to them. On one occasion, he laughed at Christopher when Christopher cried and said he wanted to die. Instead of helping Brianna develop language skills, Austin mimicked the noises she made in her effort to communicate.
At the time of the 18-month hearing, Austin still had little understanding of parenting skills and had made only minimal progress in therapy. He became stressed easily, and had no ability or desire to provide the minors with the care and supervision required to keep them safe and risk-free. The court found returning the minors to parental custody would be detrimental to them, terminated services and set a section 366.26 selection and implementation hearing.
According to an assessment report, the minors were living together in a Special Family Foster Agency home and receiving services through the Regional Center. Brianna, now five-years-old, was still in diapers, receiving speech therapy, communicating mostly with sign language and having behavior problems. Christopher, now 10-year-old, continued with special education, therapy and prescription medications.
Austin continued to have weekly supervised visits with the minors. During one visit, Austin played with the minors, who separated easily from him when the visit ended. During another visit, Austin initially sat alone while the minors played with Debra. At Christopher's request, Austin kicked the soccer ball, but soon left Christopher to play alone. Austin left the visit for 20 minutes and became upset, claiming he would never get his children back. When he returned to play soccer with Christopher, he kicked the soccer ball forcefully toward the social worker and Debra, causing the visit to be terminated. When the social worker questioned Austin about his inappropriate behavior, Austin said he did not care and did not want to speak to her. He did not kiss the minors or say goodbye to them.
The social worker recommended terminating parental rights and ordering adoption as the minors' permanent plans. Christopher had lived with the current caregiver for more than two years and Brianna had lived with her for more than a year. The minors had a bond with their caregiver who cared deeply for them. The caregiver expressed a strong interest in adopting the minors. She clearly understood the minors' daily physical and emotional needs, was able to provide the high level of care they needed and was open to maintaining contact with the parents. The caregiver's home was approved for adoption.
According to a bonding study, Christopher had a "mild" bond with Austin, which in some ways resembled a peer bond, rather than a parental one. Christopher had a considerably stronger bond with his caregiver.
At the selection and implementation hearing, the social worker testified the minors were likely to be adopted if parental rights were terminated. The social worker agreed with the results of the bonding study showing Christopher had a stronger bond with his caregiver than he did with either parent.
After considering the evidence and hearing argument of counsel, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
Austin challenges the sufficiency of the evidence to support the court's finding the minors were likely to be adopted if parental rights were terminated. He asserts the minors were not generally adoptable because they were mentally retarded, had significant developmental delays, considerable behavior problems and had been in multiple placements. Thus, he claims, these characteristics make it extremely difficult to find a person willing to adopt them either individually or as a sibling set.
A
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant 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; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
B
Although the minors have significant developmental and behavioral issues, the evidence showed they have made substantial progress since being placed in their prospective adoptive home. The minors' ongoing special needs are being addressed through services with the Regional Center, behavioral specialists, individual therapy and speech therapy. They are responding well to these services and benefiting from the structure and attention provided by their caregiver. Thus, the minors' characteristics, while challenging, did not preclude a finding of adoptability.
Even if the minors' developmental and behavioral problems meant they were not generally adoptable, the minors were likely to be adopted within a reasonable time by their caregiver. Christopher had lived with the caregiver for more than two years and Brianna had lived with her for more than a year. The minors were attached to the caregiver and called her "mom." She cared deeply for them and was aware of their developmental delays and behavior problems. She was able to provide them with the level of care they required and was committed to adopting them. The caregiver's home had been approved, showing there was no legal impediment to adoption. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [minor, who may have cerebral palsy, was likely to be adopted within reasonable time by prospective adoptive parent or some other family]; compare In re Asia L. (2003) 107 Cal.App.4th 498, 512 [sibling set of three was not adoptable because minors had emotional and psychological problems and there were no approved families willing to adopt children with similar problems].) Given this evidence, the social worker believed the minors were likely to be adopted if parental rights were terminated. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) We cannot reweigh the evidence or substitute our judgment for that of the trial court. (Id. at pp. 52-53.) Substantial evidence supports the court's finding the minors were adoptable.
II
Austin 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)(A) did not apply to preclude terminating his parental rights. He asserts he regularly visited the minors, who would benefit from continuing the parent-child relationship.
A
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 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)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.) We review the court's findings for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Section 366.26, subdivision (c)(1)(A) 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 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 Dakota H. (2005) 132 Cal.App.4th 212, 229.)
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.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Here, Austin regularly visited the minors, but he did not meet his burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Austin was often inappropriate during visits with the minors, requiring the visitation monitor to redirect his behavior and choice of language. Austin lacked patience and judgment and was insensitive to the minors' needs and feelings. He sometimes refused to participate during visits and left without saying goodbye. Despite having completed parenting classes and related services, his parenting skills were "negligible." According to his therapist, Austin had neither the ability nor the desire to provide the minors with the care and supervision required to keep them safe and risk-free. He did not occupy a parental role in the minors' lives.
The evidence also showed Christopher reacted negatively to some visits and tended to "shut down." He sometimes said he did not want to visit his father. Christopher had only a "mild" bond with Austin, more like that of a peer than a parent. In contrast, strong, loving parent-child bonds were developing between the minors and their caregiver. There was no showing the minors would be "greatly harmed" if they no longer had contact with Austin. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Further, Austin did not show maintaining his relationship with the minors outweighed the benefits of adoption for them. The minors are in a stable, nurturing environment with a caregiver who is particularly suited to meeting their needs and is committed to adopting them. Where, as here, the biological parents do not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors, whose needs could not be met by Austin, deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., IRION, J.