Opinion
D042432.
11-21-2003
In re JEREMY C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.M., Defendant and Appellant.
T.M. appeals the judgment terminating her parental rights to her son, Jeremy C., under Welfare and Institutions Code section 366.26. T.M. asserts the court abused its discretion by denying her section 388 modification petition because she established her circumstances have changed and it is in Jeremys best interests for the order scheduling the section 366.26 hearing to be vacated. She also challenges the sufficiency of the evidence to support the courts findings that Jeremy is likely to be adopted if parental rights are terminated and the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) is inapplicable. We affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2001 the San Diego County Health and Human Services Agency (the Agency) removed three-year-old Jeremy from T.M.s custody and filed a section 300 petition on his behalf. The petition alleged T.M. struck Jeremy with excessive force, had fits of rage in his presence, inadequately supervised and protected him, used drugs to excess, and had a mental illness. That month, the court made a true finding on the petition and the next month it declared Jeremy to be a dependent, and removed him from T.M.s care. The following month, it ordered reunification services.
Two psychologists who evaluated T.M. in March and July 2002, respectively, advised in reports that her mental problems prevent her from successfully parenting Jeremy or reunifying with him. One of the psychologists recommended that the court terminate her parental rights. Based on these evaluations, the social worker recommended the termination of reunification services and scheduling of a selection and implementation hearing under section 366.26. At the December 2002 12-month review hearing, the court followed the social workers recommendations, finding T.M. made only minimal progress in alleviating or mitigating the circumstances that led to the dependency.
In May 2003 T.M. filed a section 388 modification petition seeking vacation of the section 366.26 hearing, additional reunification services, increased visitation, and Jeremys return to her custody. T.M. asserted she had stabilized on her medication and maintained sobriety. The next month, the court denied the petition on its merits, finding T.M. did not establish it is in Jeremys best interests to modify the previous order. Contemporaneously, the court held the section 366.26 hearing. After finding Jeremy is adoptable and none of the section 366.26, subdivision (c)(1) exceptions applies, the court terminated T. M.s parental rights.
DISCUSSION
I
T.M. asserts the court abused its discretion by denying her section 388 modification petition. Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the childs best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
"The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415.) "`"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, because the court found T.M. established changed circumstances, we focus on whether the court abused its discretion by determining she did not establish it is in Jeremys best interests to vacate the prior order. T.M. asserted the requested change is in Jeremys best interests because she regularly visits him, there is a positive parent-child relationship, and she will love and protect him.
The basis for the courts finding that T. M. established changed circumstances is not apparent from the record.
To meet the best interests test, the parent must show he or she has eliminated the factors that led to the childs placement outside of the home. (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) Here, Jeremy was removed from T.M.s custody because, among other reasons, she is mentally ill. The evidence shows she is bipolar, has seizures, and suffers from chronic depression and a "neurological dysfunction." Further, "her personality structure is regressive (immature), impulsive, guarded, primitive, needy and dependent," and she has poor social skills and difficulty handling stress. The psychologists who evaluated her do not support her reunification with Jeremy, and one of them explained she needs many years of therapy, but it would likely produce "very limited results." T.M. introduced no expert evidence showing her mental condition has improved, or that she can safely parent Jeremy.
The court may also consider the bond between the parent and child and the bond between the child and his or her current caretakers when determining whether modification of a prior order is in the childs best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) According to the social worker, Jeremy does not have a reciprocal loving relationship with T.M. or view her in a parental role. He did not enjoy talking on the telephone with T.M., and during visits he did not listen to her directions, was disrespectable to and demanding of her, and screamed at her, slapped her, and spit in her face. Further, he did not respond when T.M. told him she loved him, and he was not distressed at the end of visits. After visits, Jeremy became aggressive and domineering.
In contrast, Jeremy considers his relative caretakers to be his family. He behaves well in their home and follows their directions. Because T.M. introduced no expert evidence showing she has resolved her psychological issues so she can safely parent, and Jeremy does not have a positive bond with her, but has a positive bond with his caretakers, the court did not abuse its discretion by denying T.M.s petition under section 388.
II
Alternately, T.M. asserts the court erred by terminating parental rights because there is no substantial evidence of Jeremys adoptability. 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. Rather, we draw all reasonable inferences in support of the findings and consider the record most favorably to the juvenile courts order. We affirm the order if it is supported by substantial evidence, even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing the order is not supported by substantial evidence. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
When there is no probability a child will reunify with his or her parents, adoption is the Legislatures preferred plan. (In re Heather B. (1992) 9 Cal.App.4th 535, 546.) To select and implement adoption as a childs permanent plan, the court must first find, by clear and convincing evidence, it is likely the child will be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) To determine whether a child is adoptable, the court focuses on whether the childs age, physical condition, and emotional state will create difficulty in locating a family willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
The record shows the social worker believes Jeremy is adoptable because he is young, adorable, bright, social, and healthy. He is living with a prospective adoptive family and there are approximately 15 to 20 other adoptive families interested in a child like him. The evidence amply supports the courts finding that Jeremy is adoptable.
T.M. asserts the court should not have considered the social workers testimony about the 15 to 20 families because that information is not in the assessment report. She provides no authority for this proposition, and in any event, she waived the issue by not objecting to the evidence at the juvenile court.
T.M. complains there is no evidence the prospective adoptive parents adoption application will be approved. However, for a child who is adoptable, as the evidence shows Jeremy is, neither a childs placement in a potential adoptive home nor the availability of prospective adoptive parents "`waiting in the wings " is a prerequisite to finding adoptability. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) All that is required is clear and convincing evidence of the likelihood the child will be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.)
Additionally, T.M. asserts Jeremy is not adoptable because he has behavioral problems. However, when the social worker is aware of the childs medical, developmental or mental problem, but believes the problem does not impede the childs chances for adoption, the problem does not render the child unadoptable. (See, In re Jeremy S. (2001) 89 Cal.App.4th 514, 523-525, overruled on other grounds In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Here, the social worker does not believe Jeremys behavior problems and need for medication affect his adoptability. Further, his prospective adoptive parents are aware of his condition and special needs and are able to accommodate them.
In May 2003 Jeremys psychiatrist prescribed a psychotropic medication for him because he had a short attention span, acted impulsively, defiantly and violently, had not responded to psychotherapy and was at risk of being expelled from preschool. The court approved the Agencys request for permission to administer the drug.
T.M. also points out there is no evidence the other prospective adoptive homes know about Jeremys problems. However, immediately after testifying regarding Jeremys behavioral problems, the social worker testified there are other families available to adopt a child like Jeremy. Thus, we may infer these families are willing to adopt a child with the types of behavioral problems Jeremy has.
III
Lastly, T.M. submits the court erred by terminating parental rights because she established she has a beneficial relationship with Jeremy within the meaning of section 366.26, subdivision (c)(1)(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 would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1).)
The section 366.26, subdivision (c)(1)(A) exception to the adoption preference applies 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."
The Agency concedes T.M. regularly visited Jeremy, and thus, we examine only whether substantial evidence supports the courts finding she did not demonstrate she has a beneficial relationship with the child. This court has 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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact 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 the 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 childs life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Here, the social worker believes Jeremy does not have a beneficial parent-child relationship with T.M. that outweighs the permanence and stability adoption offers. As discussed above, Jeremy does not view T.M. in a parental role.
However, as we clarified in In re Casey D. (1999) 70 Cal.App.4th 38, 51, "[d]ay-to-day contact is not necessarily required, although it is typical in a parent-child relationship."
Further, to establish the section 366.26, subdivision (c)(1)(A) exception, T.M. was required to show Jeremy would suffer detriment if his relationship with her were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, she did not do so. Moreover, the social worker testified Jeremy would not suffer detriment if parental rights were terminated. Substantial evidence supports the courts finding that the section 366.26, subdivision (c)(1)(A) exception is inapplicable.
In her reply brief, T.M. asserts the court should have applied the section 366.26, subdivision (c)(1)(D) exception to terminating parental rights. However, because T.M. did not raise this argument in her opening brief, we do not consider it. (People v. Athar (2003) 112 Cal.App.4th 73, 85.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., IRION, J.