Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD16348
Premo, J.
Three-year-old Hannah M.’s siblings and their mother, Susan K., appeal the February 6, 2007 order of the Santa Clara County juvenile dependency court terminating Susan’s parental rights to Hannah and selecting adoption as the permanent plan. Susan and her children Melanie K., Scott K., and Izayah K., now 14, 12, and five years old respectively, claim that the court erred in finding that the benefits of adoption outweighed its interference with sibling relationships important to Hannah, and that it would not cause Hannah detriment outweighing the benefit of legal permanence.
FACTS
Hannah came to the notice of the Gilroy police and plaintiff Santa Clara County Department of Family and Children’s Services (Department) on August 9, 2005, when Susan, homeless and staying in a recreational vehicle (RV), refused to allow Scott K., Sr. (Scott Sr.), the father and temporary caretaker of the K. children, and Hannah, to return Hannah to her care. According to Scott Sr., Susan said she did not want Hannah and ran from the RV to her car and started to drive away. California Highway Patrol officers driving by saw the tires spinning on the rocky driveway, stopped Susan, and called the Gilroy police for assistance. A Gilroy officer took Hannah, who was “filthy and dirty,” into protective custody.
The Department filed a dependency petition under Welfare and Institutions Code section 300, subdivision (b), on August 12, 2005 (amended September 29, 2005, after Susan was arrested for check fraud on September 19). The petition alleged Susan failed to protect Hannah because of mental illness, developmental disability, or substance abuse, in that she failed to provide adequate food, clothing, shelter, medical treatment, and supervision of the conduct of the custodian with whom the child was left. Hannah was detained on August 15, 2005. Susan refused to reveal the location of Hannah’s siblings, whom she had sent out of state to be cared for by friends. On October 20, 2005, in Susan’s absence, the court found the amended petition true, made Hannah a ward of the court, and ordered reunification services and a psychological evaluation of Susan.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Susan, a bright and resourceful woman who was afflicted with bipolar disorder and substance abuse problems, was the mother of five children, four of whom were dependents of the court at one time or another and two of whom (Izayah and Hannah) had health problems. During Susan’s pregnancies with Izayah and Hannah, she had not been able to take the medication for her bipolar disorder and went through periods of depression. She was also working on recovery from past substance abuse.
Kevin, the oldest, lived with his father, stepmother, and half siblings and was not involved in this case.
Neither child’s health problems were described in the reports. When Hannah was taken into custody, she was described as “healthy and pleasant” with “healthy eating and sleeping habits.” She “babbled a lot and did well with playing independently.”
A clinical psychologist observed that “the essential keys to [Susan’s] ability to parent adequately lie in her ability to continue in her psychiatric treatment and in her comprehensive substance abuse program as well as to steer clear from romantic entanglements for the next year or two, especially ones that have the potential for becoming self-defeating and even physically abusive.” This evaluation was completed before Izayah was born in May 2002 and Hannah in January 2004.
The older children, Melanie and Scott, had been dependants of the court from April 1998 to August 2001, during which time Susan participated in reunification services, including drug counseling and testing and a domestic violence group. After Melanie’s and Scott’s dependencies were terminated, Chamberlain’s Mental Health Services continued to provide family therapy, collateral therapy, and day treatment until 2004 when Gardner Family Care Corporation (Gardner) took over. Melanie and Scott were defiant and not doing well in school, and medication support services were needed for Susan and the children. The needs of Izayah, who was born during this time, made it impossible for Susan to give the other children the attention they needed. Susan had no help and lacked a strong, consistent support system.
Gardner provided services until August 2005. Susan received individual counseling, tailored parenting courses, financial assistance, and weekly child safety assessments, and Melanie and Scott received clinical case management services at school. Therapy sessions for Susan and Melanie were eventually terminated because they did not attend. The therapist stated that Susan “[h]ad a good relationship with all her children, but resentment and anger overshadow these good traits.” Mental health counseling continued after May 2005, ending only when Susan failed to keep several appointments.
Financial assistance and subsidized rent had not been able to solve Susan’s housing woes. In February 2005, water service was terminated to her Morgan Hill home for lack of payment. However, between then and the end of May, the water meter was tampered with at least five times to restore water to the house. Susan did not pay for this service.
In June 2005, investigation of a fire at the home revealed that both the electric and gas meters had been tampered with after PG&E terminated service for nonpayment. The electric fuses had been replaced by two screwdrivers, bypassing the meter and allowing electricity to flow unmetered. Holes had been drilled in the gas line plug, restoring gas flow to the home. Morgan Hill police arrested Susan for theft of utility services.
After the fire, Susan was given permission to live in an RV behind a towing business. As stated above, she had arranged for Scott Sr., to take care of his children and Hannah. Scott Sr., tried to return Hannah to Susan on August 9, 2005, which brought Hannah into the juvenile court system.
On September 19, 2005, Susan was arrested for check fraud for trying to cash a fraudulent check at a store in Gilroy and a counterfeit check in Morgan Hill. By December 9, 2005, when the juvenile court held an interim review, Susan had drug tested once but missed three other appointments because her car broke down when she was returning from a visit to the children she had sent to Arizona. Susan entered the Mariposa drug treatment program, but left voluntarily after a week. Susan was hopeful that the criminal charges would be resolved with a referral to a Proposition 36 drug treatment program so that she could continue to participate in reunification services. She also needed to make provisions for her older children because the guardianship with the caretaker she chose was denied.
During this time, Hannah was in an emergency satellite home where she was thriving while a more permanent home for her was being sought. Susan visited her regularly and in early December 2005, the other children visited. Hannah was excited to see them.
By the next interim review on January 20, 2006, just after Hannah’s second birthday, a concurrent home had been identified for Hannah. She was becoming familiar with the new family and was “happy, healthy, and resilient.”
Susan had missed four drug tests in December 2005 and two other tests were “dilute.” She missed two appointments for her psychological evaluation, but attended the third. She had not been sentenced on the criminal charges yet, and she still hoped to avoid state prison time.
On January 25, Hannah moved to her new concurrent home. She was adjusting to the placement well when her siblings returned to the area on March 10, 2006. Susan had retrieved her three older children from Arizona when she found that the people with whom she left them had not provided adequate care. Susan requested that the children be placed in protective custody because she could not care for them. Susan wanted all the children together, but the social worker did not recommend moving Hannah again because of her ongoing adjustment to the new concurrent home.
On May 5, 2006, the six-month status review hearing was held. Susan had been visiting Hannah twice per week for two hours and Hannah seemed to enjoy the visits. However, Hannah’s new home was farther away and the travel was tiring for her, so in February 2006, visitation had been changed to four-hour visits once a week at a park, library, or other “family friendly” location.
Hannah was acquiring both English and Spanish rapidly. She got along well with her four-year-old foster sister whom she followed around. Hannah approached strangers more easily than her foster parents liked and they were working on discouraging this behavior.
Susan prepared for the six-month review by working on her reunification service plan. She began a parenting class in November 2005, but had to repeat the series because she missed more than two sessions. She had not been assigned an individual counselor because she had not been able to complete the necessary preliminary appointments. She provided five positive drug tests in January and one in February but there were many missed tests. She admitted using methamphetamine for an entire week in January. She claimed to have attended 12-step meetings three times per week but did not provide signed attendance sheets. She had not located a sponsor with whom she felt comfortable. She had not become involved with a formal substance abuse treatment program.
Susan completed a psychological evaluation with Dr. Aguilera in January 2006, about the same time she was relapsing on methamphetamine. He diagnosed her with the chronic conditions of amphetamine dependence in early partial remission, bipolar disorder, and post traumatic stress disorder, all of which contributed to her difficulties with her family. Dr. Aguilera thought Susan “would be marginally capable of protecting, providing for, and safely parenting her children, given adequate housing and with the continuance of her stabilized mental and emotional states.” Her main challenges were “gaining housing, maintaining her clean and sober lifestyle, remaining compliant with her psychiatric medications, and in developing nonabusive relationships where she is not being codependent.”
The social worker’s assessment was that Susan was “frustrated, tired, hurt, and confused about her current life situation.” She was expecting a four-month jail term for each count of check fraud followed by probation. She had not entered a drug treatment program and had had a significant relapse in January. Her three older children had been placed in protective custody. As the social worker recommended, on May 5 the court terminated family reunification services and set a hearing to select a permanent plan for Hannah.
Hearing on the permanent plan was scheduled for August 18, 2006. However, on that day, Susan set the matter for trial and requested discovery; and Hannah’s father, Paul M., made his first appearance and was appointed counsel. On October 10, 2006, counsel for the children declared a conflict and separate attorneys were appointed for Hannah and her siblings. On November 21, Susan’s modification petition under section 388 requesting Hannah’s return to her was set for hearing and a section 388 petition requesting Hannah’s siblings be allowed to participate in the permanent plan proceedings was submitted. On November 30, the siblings’ petition was granted and further discovery was requested.
Trial on Hannah’s permanent plan took place on February 5, 2007. The assessment report prepared by social worker Tanisha Paige and submitted by the Department recommended adoption. It described Hannah as a child with positive personality traits who “love[d] to laugh and generally display[ed] a grin on her face.” She was sensitive, “adorable, mild mannered, loving, affectionate, and sweet” and a “joy to be around.” She had no medical or mental health needs. Hannah was able to distinguish the people she knew and identified them by name. She was affectionate with her foster parents and related to them as parental figures when she needed attention or consolation. In the social worker’s opinion, she was highly adoptable.
Susan withdrew her modification petition.
Susan had missed several weeks of visits due to incarceration and schedule conflicts. Weekly visits resumed in June 2006 and included the siblings. In July, two additional visitation hours between Susan and Hannah were added. Susan was nurturing, loving, and attentive during visits. Hannah seemed sad and clingy when the visits were over. When all the children were present, Susan tried to give equal attention to all, but when the children were upset with her or each other, she became overwhelmed.
The sibling visits were a benefit both to Hannah and the other children. Hannah had been visiting with her siblings for two hours per week with her mother since June 2006. The bond between them was strong. Sometimes after visits, Hannah would say she wanted to go home with Susan and the other children. Paige suggested that twice monthly sibling visits continue if adoption was the chosen plan. However, Paige also thought that Hannah was young enough to adjust to decreased visits. The foster parents were open to maintaining a relationship with the siblings with third party assistance. They wanted to do what was best for Hannah.
At the trial, Paige testified as an expert in permanency planning for dependant children. She stated that although Hannah had an affectionate and loving relationship with Susan, Hannah’s need for permanence and stability at this time in her life far outweighed the benefit of having a relationship with Susan or her siblings, even though they loved each other very much. Paige testified that she understood Hannah’s sister, Melanie, played a coparenting role during Hannah’s first year and a half and that the foster parents were open to having Hannah continue a relationship with Melanie, Scott, and Izayah in the future. She recommended continuing sibling visits twice a month because she liked to support any existing positive relationship.
Melanie, who was 13 years old, testified that she did not like the idea of her little sister being adopted. When Hannah was born, Melanie helped Susan by changing Hannah’s diapers, making bottles, putting her to bed, and performing other baby-sitting tasks. Melanie wanted the foster parents to know that she loved her sister and that her sister was really important to her. She had taken pictures, which were admitted into evidence, during visits with Hannah to remember the times they spent together. She did not think the foster parents understood the importance of her relationship with Hannah. She did not think Hannah would be happy if she were not able to see her siblings again.
Melanie’s foster mother, Denise M., also testified. She had met all the children about two years previously at the swimming pool at her condo. Melanie seemed to be in charge of the children, who were sometimes left there all day long. Denise observed some of the sibling visits after Melanie was placed with her, and she could see that the children all loved each other very much.
Susan testified about Hannah’s early life and Melanie’s helpfulness in raising her. She stated Izayah needed a lot of attention when he became ill and Melanie had to grow up fast. Susan described having regular visits with Hannah every week and they played and ate together during the visits. Hannah was affectionate and held hands with her throughout the visit. When the visits were over, Hannah would say she loved Susan and missed her and wanted to go home with her. Susan did not want the children to be torn apart because of her mistakes.
Hannah’s foster parents made an offer of proof that Hannah’s behavior in visiting her siblings was no different than in play groups with other children. Hannah was always eager to go anywhere with anyone and she was happy to get toys when she went places. The foster parents reaffirmed the social worker’s testimony that they were open to continuing sibling contact.
The court ruled that “the benefits of adoption outweigh any of the other considerations and all of the other evidence that I heard. And this is a very young child who has an opportunity to be adopted and to spend the rest of her life with two parents that will love her, and I do think that outweighs all other considerations. [¶] I do believe Mother has a relationship with this child but I do think that the day-to-day emotional and psychological parenting has been with the foster parents. I do think that there’s no doubt that Melanie and [Hannah’s] other siblings have a [significant] relationship with Hannah . . . . There is some interest[] in maintaining that relationship but I think it’s heavily outweighed by the long-term interests of having two parents for the rest of your life.” The court ordered a farewell visit for Susan and the siblings but refused to order ongoing visitation with the siblings until Hannah’s adoption although the foster parents could allow it if they wished. The court terminated parental rights and selected adoption as Hannah’s permanent plan. These appeals ensued.
ISSUES ON APPEAL
Both Susan and the siblings assert there was insufficient evidence to support the court’s finding that the beneficial relationship exception of section 366.26, subdivision (c)(1)(E), did not apply.
STANDARD OF REVIEW
The trial court’s finding that the beneficial relationship exception does not apply is reviewed under the substantial evidence standard. The reviewing court “must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” The reviewing court does not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
The appellant has the burden of showing that the challenged finding or order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) To meet the burden of proof, 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.) In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
SUFFICIENCY OF THE EVIDENCE
At the permanent plan selection hearing, the court may choose adoption, guardianship, or a permanent planned living arrangement. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) Adoption is the preferred permanent plan when parents fail to reunify with their children. (In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.).) The court must order adoption and termination of parental rights unless one of the circumstances listed in section 366.26, subdivision (c)(1)(A) through (E), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. These statutory exceptions “must be considered in view of the legislative preference for adoption when reunification efforts have failed.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) The “beneficial relationship exception” applies when 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)(A).)
A “beneficial relationship” is one which “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child’s life spent in the parent’s custody, the positive and negative effect of interaction between the parent and child, and the child’s particular needs. (Ibid.)
Hannah was about 18 months old when she was placed in protective custody. At that time, Susan needed help. The record shows that Susan was overwhelmed with problems caused by her bipolar condition, exacerbated by her inability to remain on her medication during her last two pregnancies and her substance abuse, the special needs of Izayah, the lack of help and support systems in her daily life, her inability to manage money and retain safe housing despite assistance, and the needs of Scott and Melanie, on the latter of whom much of the burden of caring for Hannah fell, and both of whom responded to the turmoil in their lives with defiance and failure to do well in school. Despite this, Susan, a bright and resourceful woman, was able to establish and maintain loving relationships with her children and promote and nourish strong bonds between them. Susan and the siblings gave Hannah her positive start. Even after the day-to-day separation of Susan and the siblings from Hannah during the dependency proceedings, they demonstrated love and attachment for Hannah which she reciprocated.
Nevertheless, Susan was not able to overcome her problems during the reunification period. Despite her love for Hannah and her other children and her desire to have them back with her, she was unable to benefit from counseling, therapy, or any of the other services offered to her. She was unable to stay off methamphetamine. She was unable to establish a home. If the trial court had returned Hannah to her, she had no place to take her. She had demonstrated no likelihood that she would be able to care for Hannah in the immediate future.
Consequently, Susan has “maintained a relationship that may be beneficial [to the child] to some degree, but that does not meet the child’s need for a parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).) The natural parent-child relationship in which Susan was able to participate could not accommodate Hannah’s needs.
In addition, the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions has the burden of producing evidence that his or her relationship with the child was so beneficial that the child would be harmed by its termination. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Susan and the siblings have produced strong evidence of their love and attachment to Hannah and her feelings for them. Melanie testified to her feelings about Hannah and Hannah’s response to her. Melanie’s foster mother testified about the “very close” relationship among the siblings and her observations of “the joy in [Hannah’s] face” and the “love in her face and throwing her arms around them and, . . . all the things that have happened have not taken that away.” Even social worker Paige and the visitation worker believed that Hannah’s relationship with her siblings was important to her and that continuing it would be in her long term emotional interests. Paige recommended that visits continue to maintain the sibling relationship.
“[T]he ‘court must examine the relationship among all the siblings in considering’ the sibling relationship exception and ‘may not restrict its inquiry to the children at issue in the hearing before the court.’ In a way, this is correct. The sibling’s relationship with the child is not irrelevant. Certainly, evidence of the sibling’s relationship with the child and, if the sibling is articulate, perhaps of the sibling’s views of that relationship, might be relevant as indirect evidence of the effect the adoption may have on the adoptive child. A nonadoptive sibling’s emotional resistance towards the proposed adoption may also implicate the interests of the adoptive child. In an appropriate case, the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child. But the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else.’ ” (In re Naomi P. (2005) 132 Cal.App.4th 808, 823 (Naomi P.).)
There is ample evidence of Hannah’s and her natural family’s mutual love and attachment in the record for the trial court to have determined that the beneficial relationship exception applied. However, the trier of fact resolved the disputed issue in favor of Hannah’s adoption and in accordance with the legislative preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) It is clear that the court considered the detriment to Hannah from interference with the sibling relationship. Nevertheless, the court stated the long term benefit to Hannah from having two loving parents outweighed the detriment from failing to maintain the sibling relationship. (L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.)
The evidence of home visits established that Hannah was happy and content in her foster home. She thrived even in the absence of her siblings. When Hannah was detained, Susan gave the siblings to friends in Arizona to care for them for many months. Hannah was 18 months old when that happened and about 18 months later, when Hannah was three years old and before the court for selection of the permanent plan, after being unable to live with her siblings in the same home on a day-to-day basis, or visit with them consistently since the separation, Hannah’s development had not been stunted. She was a child who “love[d] to laugh and generally display[ed] a grin on her face” who was sensitive, “adorable, mild mannered, loving, affectionate, and sweet” and a “joy to be around.” Hannah was glad to see her siblings and mother and was sad when the visits were over, but her life was not blighted. There was no showing “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.” (Angel B., supra, 97 Cal.App.4th at p. 466.)
Susan, also, was incarcerated for three months in early 2006 and unable to visit.
Further, the prospective adoptive parents were committed to continuing the sibling relationship after adoption because they saw it to be in Hannah’s best interests. The siblings doubt the sincerity of their commitment and list evidence adduced at the hearing that supports their skepticism. The trial court may have had its own doubts since it expressed a fervent hope that the sibling bonds would be maintained. Nevertheless, in the court’s reasoned judgment, the decision was for adoption. The siblings would not be living with Hannah. Their lives would not be synchronous with Hannah’s. Melanie, 14, approaching adulthood, had her own life to develop. Susan had demonstrated that she was unable to resume the parental role, and it was not Melanie’s responsibility to coparent three-year-old Hannah. The trial court’s decision had to be and was in Hannah’s best interest. The possibility that the relationship of Melanie and the other siblings with Hannah would dwindle could not control the trial court’s determination on Hannah’s best interests. (Naomi P., supra, 132 Cal.App.4th at p. 822.) Substantial evidence supported the trial court’s decision.
DISPOSITION
The February 6, 2007 order is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.