Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 515985 of San Diego County, Carol Isackson, Judge. Affirmed.
OPINION
HALLER, J.
Candace G., the mother of Edward K., appeals the judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Candace contends the juvenile court erred by finding Edward was likely to be adopted and by not applying the parent-child beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).
All statutory references are to the Welfare and Institutions Code.
FACTS
On September 1, 2005, the San Diego County Health and Human Services Agency (Agency) took Edward, then four years old, into protective custody because he was exposed to domestic violence between Candace and her live-in boyfriend, Reginald B. Candace's relationship with Reginald was marked by violent arguments; there were 10 incidents of domestic violence between them, and both she and Reginald had been arrested on various occasions as the aggressor. Candace also admitted she had a violent relationship with Edward's father, William K.
William K. is not a party to this appeal.
On September 6 Agency filed a dependency petition on behalf of Edward, alleging there was a substantial risk he would suffer serious physical harm as the result of Candace's failure or inability to supervise or protect him adequately. The petition alleged Edward was periodically exposed to domestic violence.
On September 27 the juvenile court sustained the petition, declared Edward a dependent child, removed custody from Candace, placed the child in a licensed foster home, and ordered services for Candace.
Edward exhibited behavior associated with Attention Deficit Hyperactivity Disorder (ADHD). Edward often was extremely impulsive, often disruptive, and difficult to redirect; he required a high degree of structure and supervision. Edward also suffered significant speech and language delays, and his overall intellectual functioning was borderline. In early January 2006 Edward was removed from his first foster care home because the foster mother could not handle his aggressive behaviors.
Within the month, Edward was placed in another foster home, and these foster parents were able to provide more structure and one-on-one attention. Edward's behavior at home and school improved.
Throughout the dependency, Candace regularly visited Edward and, for the most part, acted appropriately. During the first six months, Candace participated in her services. However, during the second six months, she tested positive for marijuana and was involved in another domestic violence incident, in which she stabbed Reginald in the lower back with a knife. For the upcoming 12-month review hearing, Agency recommended termination of services and the setting of a section 366.26 hearing. On December 11, 2006, the court followed Agency's recommendation.
The adoption social worker opined that Edward was adoptable even though he was a special needs child. Edward was healthy and his foster parents expressed an interest in adopting him. There were six other prospective families who wanted to adopt a child with similar characteristics. The social worker also opined that it would not be detrimental to Edward if his relationship with Candace was severed. The social worker noted that Edward enjoyed visits with Candace, but he preferred living with the foster parents.
Psychologist Beatriz Heller, who performed a bonding study between Candace and Edward, reported that Edward has "a meaningful relationship with his mother; [Candace] appears to be a part of this boy's emotional world. But it is not clear that he perceives her as the primary caregiver in his life." Heller continued: "The disruption of the relationship with his mother can be emotionally and psychologically very difficult for him. Edward appears to have difficulty dealing with transitions, which, coupled with the behavioral problems that he has exhibited . . . points to the need to maintain routine and stability not only in his physical world but also in the social and emotional domains." At trial, Heller recommended that Candace and Edward continue to have contact with each other, but every two weeks rather than once a week.
On June 14, 2007, the court found it was likely that Edward would be adopted if parental rights were terminated and none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as Edward's permanent plan.
DISCUSSION
I. Adoptability Finding
Candace contends there was insufficient evidence that Edward was likely to be adopted in a reasonable time. The contention is without merit.
The juvenile court may terminate parental rights only if it finds by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T., supra, 3 Cal.App.4th at p. 225.) The court may consider the existence of a prospective adoptive family because such existence "generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics omitted.) On review from an adoptability finding, we determine whether the record contains substantial evidence from which the court could make its ruling by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.)
Here, substantial evidence supports the court's finding that Edward was likely to be adopted within a reasonable time. At the time of the section 366.26 hearing, Edward had been doing well in the foster parents' home, where he had lived for 14 months. The foster parents wanted to adopt him. The foster parents were fully aware that Edward had behavioral problems and speech delays and were providing him with the structure he desperately needs. Edward had made tremendous progress since he had been in the care of the foster parents. In short, Edward's placement with the foster parents was a success. The foster parents remained committed to adopting Edward and were undergoing a home study.
Although it is not determinative (In re David H. (1995) 33 Cal.App.4th 368, 378), the fact that Edward was living with adoptive parents who remained steadfast in their desire to adopt him is an important consideration in support of the court's adoptability finding. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) The court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt the child. (Ibid.) Simply put, the behavioral problems and speech delays of Edward did not make it difficult to locate adoptive parents because Agency had located a couple who wanted to adopt him. (Ibid.) The fact that Edward was living with the prospective adoptive parents who continued to desire to adopt him is evidence that his age, physical condition, mental state, and other issues "are not likely to dissuade individuals from adopting the minor." (Ibid.) We find the evidence sufficiently demonstrated Edward was likely to be adopted within a reasonable time.
II. Beneficial Parent-Child Relationship Exception to Adoption
Candace contends the juvenile court erred by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption (§ 366.26, subd. (c)(1)(A)). The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the five statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides that once the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination 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." (Italics added.) The exception applies only if both prongs are met.
It is undisputed that Candace regularly visited Edward. At issue, therefore, is whether Candace satisfied the second prong of the statute — namely, whether Edward would benefit from continuing his legal relationship with Candace.
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the "relationship 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." (Italics added.) "The parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) "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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "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." (Ibid.)
The juvenile court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In balancing these interests, relevant factors include the "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 . . . ." (Id. at p. 576.) We affirmed this balancing test, explaining that the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) The judgment will be upheld if supported by substantial evidence, "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (Ibid.)
Substantial evidence supported the court's finding that section 366.26, subdivision (c)(1)(A) did not apply. Even though Candace raised Edward for the first four years of his life, she no longer occupied a parental role for Edward. Psychologist Heller did not believe that Edward perceived Candace as his primary caregiver, noting that Edward did not acknowledge Candace when she entered Heller's office and did not ask when he would see Candace again when she left. The social worker who wrote the adoption assessment characterized Candace's relationship with Edward as a friendly visitor.
Further, Edward made it clear he wanted to live with the foster parents. By the time of the contested section 366.26 hearing, Edward had been in the dependency system for 21 months. For 14 of those months, Edward had done well and shown a great deal of progress while living in the home of the foster parents, who wanted to adopt him. The foster parents — not Candace — provided Edward with food, shelter, protection and guidance on a daily basis. They had assumed the parental role for Edward.
We recognize that Candace and Edward had a meaningful relationship; there was no doubt that they shared a bond, but their relationship was no longer one of parent and child within the meaning of section 366.26, subdivision (c)(1)(A).
Moreover, substantial evidence supported the court's finding that Candace did not meet her burden of showing that the benefits of continuing her legal relationship with Edward would outweigh the well-being he would gain in a permanent adoptive home. Edward needed permanence and stability after 21 months of experiencing the uncertainty of the dependency system. "A child who has been adjudged a dependent of the juvenile court 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." (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
The court did not err in finding that the exception to termination of parental rights and adoption under section 366.26, subdivision (c)(1)(A) did not apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.