Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J510673E Carol Isackson, Judge.
AARON, J.
Tiffany L. appeals a juvenile court judgment terminating her parental rights to D.P., under Welfare and Institutions Code section 366.26. Tiffany challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
FACTS
The San Diego County Health and Human Services Agency (the Agency) detained 15-month-old D.P. in September 2009, after law enforcement officers responded to a domestic violence incident between Tiffany and Billy P., D.P.'s father (together, parents). Tiffany was arrested for assault. D.P. tested presumptively positive for cocaine, but the parents denied using controlled substances. The Agency filed a petition under section 300, subdivisions (a) and (b), alleging that unreasonable or neglectful acts of, and domestic violence between, Tiffany and Billy, placed D.P. at substantial risk of serious physical harm. Tiffany's parental rights to D.P.'s four older siblings had been terminated due to the parents' history of domestic violence and substance abuse. The juvenile court detained D.P. in the approved home of his maternal aunt.
Billy is not a party to this appeal and will be mentioned only when relevant.
Billy is the father of the two oldest siblings, who were placed in long-term foster care with a relative. He is not the father of the younger two siblings, for whom the court ordered a permanent plan of adoption.
In its jurisdiction and disposition reports, the Agency requested that the court take judicial notice of the dependency files of D.P.'s four older siblings. The Agency recommended that reunification services not be offered to the parents because the parents had previously received services for the same protective issues that necessitated D.P.'s removal. Tiffany had an extensive criminal record, which included convictions for possession of controlled substances and parole violations, as well as arrests for domestic violence, driving with a suspended license, forgery, disorderly conduct and prostitution. Tiffany violated her probation and was reincarcerated several times for possession and use of controlled substances. The police report for the September 2009 domestic violence incident identified Tiffany as the aggressor, and described her as rambling, confused, enraged, cursing, yelling and resistant. The Agency later discovered that Tiffany was not enrolled in a domestic violence program, as she had claimed, and learned that she had been incarcerated again in December 2009 for assault with a deadly weapon.
At the contested jurisdiction and disposition hearing, the court found the allegations of the petition true by clear and convincing evidence, declared D.P. a dependent of the court under section 300, subdivisions (a) and (b), removed him from parental custody and placed him in the approved home of his maternal aunt. The court denied reunification services for the parents under section 361.5, subdivision (b)(10) and (b)(11), and scheduled a section 366.26 hearing to select a permanent plan for D.P.
Section 361.5, subdivision (b), provides that reunification services need not be provided when the court finds that there has been "court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361... and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian, " (§ 300, subd. (b)(10)); or when "parental rights of a parent over any sibling or half sibling of the child had been permanently severed... and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." (§ 300, subd. (b)(11).)
The Agency assessed D.P. as adoptable because he was a healthy, sweet, attractive two-year-old, and was developmentally on track. D.P. had a significant bond with the maternal aunt, who wanted to adopt him if parental rights were terminated. The aunt had known D.P. since his birth and her family supported her decision to adopt D.P. In order to avoid violence between the parents, the aunt arranged for the parents to visit D.P. separately. D.P. cried only briefly when the visits ended. In addition to the maternal aunt, there were 33 other families with approved home studies that were interested in adopting a child with D.P.'s characteristics.
Tiffany had visited D.P. regularly, except when she was incarcerated in September 2009 and again beginning in December 2009. At D.P.'s first visit to Tiffany's place of incarceration, D.P. recognized her. Tiffany interacted positively with him during the visit, and he cried when the visit ended. The next visit was cancelled because D.P. refused to get into the social worker's car. Subsequent visits all went well, but D.P. no longer cried when he separated from Tiffany.
The Agency believed that termination of parental rights would not be detrimental to D.P. Tiffany had a long history of substance abuse, domestic violence and incarceration, and was serving a two-year prison sentence for assault with a deadly weapon. The social worker expressed the view that D.P. would benefit more from a permanent plan of adoption than he would from continuing his relationship with Tiffany.
The court continued the section 366.26 hearing pending the results of a neurological exam, because D.P. had been exhibiting head-jerking motions. The neurological exam revealed that D.P. had epilepsy, which was controllable with medication. Despite D.P.'s epilepsy diagnosis, the aunt remained committed to adoption, stressing that D.P. was part of the family and that she would not give him away. Even with the epilepsy diagnosis, there were still 19 families in San Diego County that were interested in adopting a child with D.P.'s characteristics.
The court found by clear and convincing evidence that D.P. was likely to be adopted if parental rights were terminated, and that the parents had not met their burden to establish that any of the section 366.26, subdivision (c)(1), exceptions to adoption applied. The court therefore terminated all parental rights. Tiffany appeals, arguing that the court erred when it terminated her parental rights because there was substantial evidence that she had a beneficial relationship with D.P. within the meaning of section 366.26, subdivision (c)(1)(B)(i).
Appointed counsel for D.P. has filed a brief in support of the Agency's position that the beneficial parent-child relationship exception to adoption is not applicable.
DISCUSSION
A. Standard of Review
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; if there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order, and affirm the order if it is supported by substantial evidence, even if there is conflicting evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing that there is not substantial evidence to support the finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. The Court Did Not Err in Determining that the Beneficial Parent-Child Relationship Exception Does Not Apply
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception is if the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
Tiffany does not contest the juvenile court's finding that D.P. is adoptable.
There was evidence from which the court could have found that Tiffany satisfied the first prong of the beneficial parent-child relationship exception, because she frequently visited D.P. However, Tiffany was required to show more than frequent and loving contact or pleasant visits with D.P. "[C]ontact between parent and child will always 'confer some incidental benefit to the child, ' but that is insufficient to meet the standard." (In re C.F. (2011) 193 Cal.App.4th 549, 559, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The second prong of the beneficial parent-child relationship exception required Tiffany to show that she shared a relationship with D.P. 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 re Autumn H., supra, at p. 575.)
The court did not make specific findings regarding Tiffany's visitation and contact with D.P., but found by clear and convincing evidence that none of the section 366.26, subdivision (c)(1), exceptions to adoption applied.
In determining whether the beneficial parent-child relationship exception applies, the court takes into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs...." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "[T]he 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." (Id. at p. 575.)
There was substantial evidence that D.P. would benefit more from the permanency of adoption than he would from maintaining a legal relationship with Tiffany. Although Tiffany was affectionate and appropriate with D.P. during visits, there was nothing to indicate that D.P. had "a substantial, positive emotional attachment" to Tiffany, or that he would be greatly harmed if his relationship with her were severed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
In an attempt to establish the existence of a beneficial relationship, Tiffany points to the strength of her relationship with D.P. at the time he was detained. However, the court must consider the strength of the parent-child relationship as it exists at the time of the section 366.26 hearing, not at the time of the initial detention. (In re C.F., supra, 193 Cal.App.4th at p. 557.) At the time of the section 366.26 hearing, D.P. was two and one-half years old and had lived with his maternal aunt for nearly half of his life, and had developed a significant bond with the aunt. D.P.'s aunt provided him with a stable and safe home, met all of his needs and was dedicated to including him in the family despite his recent diagnosis of epilepsy. In contrast, Tiffany appeared unable to stay out of prison, had not responded to previous domestic violence or substance abuse treatment, and was prone to violence. In addition, D.P. no longer cried when separated from Tiffany at the end of their visits. Because Tiffany could not meet D.P.'s needs, he deserved to have his custody status promptly resolved and his placement made permanent and secure. Where, as here, the biological parent does 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.)
Tiffany relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), in which this court concluded that the juvenile court erred in declining to apply the beneficial parent-child relationship exception. (Id. at pp. 300-301.) In that case, the child was five years old, the appellant father had been her primary caretaker for three years, she displayed a strong attachment to the father, and he had "complied with every aspect of his case plan." (Id. at pp. 293, 298, 300-301.) In S.B., this court explained: "The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]." (Id. at pp. 300-301, italics added.) Not one of these factors was present in the case before us.
The italicized language from S.B. has been cited repeatedly in unwarranted attempts"to diminish the otherwise heavy burden a parent must meet under Autumn H. in establishing the parent-child beneficial relationship exception." (In re C.F., supra, 193 Cal.App.4th at p. 558.) In In re Jason J. (2009) 175 Cal.App.4th 922, 937 (Jason J.), this court cautioned: "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child."
Despite the cautionary language in Jason J., dozens of unpublished opinions "have been required to distinguish S.B. on its facts and repeatedly reject the notion a parent can prevent termination of parental rights by merely showing there is some measure of benefit in maintaining parental contact." (In re C.F., supra, 193 Cal.App.4th at p. 558.)
In the present case, as noted above, none of the factors that the S.B. court found to be dispositive is present. "In light of these circumstances, we once again emphasize that S.B. is confined to its extraordinary facts. Itdoes not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact." (In re C.F., supra, 193 Cal.App.4th at pp. 558-559.)
In view of Tiffany's reliance on S.B., we reiterate that, "given the unwarranted burden placed on this court and other courts by appellate counsels' reliance on S.B. when the facts are not even arguably similar... '[c]ounsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding errorand in determining the cause in accordance with justice and the established rules of practice.' [Citation.]" (In re C.F., supra, 193 Cal.App.4that p. 559.)
Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the juvenile court's finding that the section 366.26, subdivision (c)(1)(B)(i), beneficial parent-child relationship exception does not apply to prevent termination of Tiffany's parental rights and D.P.'s adoption.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.