Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County Super. Ct. No. SJ11442A-B, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
HUFFMAN, Acting P. J.
Jocelyn A. and L.H. appeal from judgments terminating parental rights to their children, Jonathan H. and Beverly H., under Welfare and Institutions Code section 366.26. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Jocelyn A. and L.H. are the parents of Jonathan, born February 2004, and Beverly, born March 2005 (together, children). In February 2005 Jocelyn tested positive for methamphetamine while pregnant with Beverly. She was counseled on the effects of methamphetamine use. At Beverly's birth about four weeks later, both Jocelyn and Beverly tested positive for methamphetamine.
L.H. joins Jocelyn's arguments and does not raise any additional claims of error on appeal. Therefore we do not detail L.H.'s involvement in the children's dependency proceedings. Briefly, L.H. was incarcerated on drug-related charges until May 2006. After his release, he participated in reunification services until November 2006, when he relapsed on methamphetamine.
The San Diego County Health and Human Services Agency (Agency) detained the children and initiated dependency proceedings under Welfare and Institutions Code section 300, subdivision (b). At hearings in April and May 2005, the court determined that the children required the protection of the juvenile court, removed the children from parental custody, and ordered a plan of family reunification services. The Agency placed the children in the care of non-relative extended family members (caregivers).
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
Jocelyn entered an inpatient drug treatment program and participated in all recommended services. She regularly visited the children twice each week and was in full compliance with her case plan. Jocelyn participated in the children's medical care and asked for expanded visitation. In November 2005 she progressed to unsupervised visits and in December to overnight visits. Jocelyn completed her inpatient substance abuse treatment program in January 2006. In February Jocelyn had two weekend visits with the children.
In March 2006 Jocelyn tested positive for cocaine. The court ordered her to participate in an aftercare drug treatment program. Jocelyn began a relationship with A.T., who was on parole for drug-related criminal offenses. Jocelyn lost her job. Jocelyn became pregnant with her third child. The court limited Jocelyn's unsupervised visitation with the children. The social worker reported Jocelyn appeared to be sober when she picked up the children, used positive parenting skills during visits, and participated in the children's medical appointments.
In May 2006 the court continued reunification services to the 18-month review date.
In August 2006 Jocelyn's third child was born 12 weeks prematurely. Jocelyn tested positive for methamphetamine and admitted that she had been using drugs since June. The Agency detained the baby. Jocelyn later testified that except for the last eight months of her pregnancy with Jonathan and a 10-month period from May 2005 to March 2006, she had used drugs, primarily methamphetamine or cocaine, every day for 13 years.
Jocelyn's visits with Jonathan and Beverly were supervised by her sister (Aunt). Jocelyn visited the children every Sunday for eight hours. Aunt reported the children hugged and kissed Jocelyn and yelled out "mommy" when they saw her. Jocelyn fed and changed the children, and played and talked with them. The children were affectionate with her. They ran to her if they were scared. If Jocelyn left the room, Beverly looked for her.
In January 2007, after a contested 18-month review hearing, the court terminated reunification services and set a section 366.26 hearing. The case was received by the adoptions unit in February and assigned to social worker Fatimah Abdullah.
In the report and addendum report prepared for the section 366.26 hearing (May 2 report), Abdullah stated that Aunt continued to visit the children every Sunday. On occasion Jocelyn accompanied her to pick up the children from the caregivers' home. Abdullah made numerous attempts to contact Jocelyn (and L.H.) by mail, telephone and by leaving messages with the caregivers and the previous social worker. Neither parent contacted her about the children or visitation. Abdullah was not able to observe any visits between Jocelyn and the children.
Abdullah opined that it was highly unlikely the children had strong relationships with their parents. Jonathan was one year old and Beverly was three days old when they were detained in protective custody. The children developed a strong attachment to their caregivers, who were their primary parental figures. Jonathan and Beverly called the caregivers "mama" and "papa" and sought comfort in their presence. The caregivers were willing to adopt the children or become their legal guardians. They had demonstrated a strong commitment to the children's well-being throughout the proceedings. The caregivers were participating in an adoption home study.
The section 366.26 hearing was held on June 11 and 13, 2007. Jocelyn did not appear on either date. She did not contact her attorney. The court received the May 2 report in evidence. Counsel did not cross-examine the social worker or present affirmative evidence. Jocelyn's attorney argued that the beneficial parent-child exception applied to preclude termination of parental rights.
The court delayed the conclusion of the section 366.26 hearing to receive a report concerning proper notice under the Indian Child Welfare Act. (25 U.S.C. § 1902 et seq.)
The court found that the children were likely to be adopted within a reasonable time and none of the exceptions listed in section 366.26, subdivision (c)(1) applied. The court determined that adoption was in the children's best interests and terminated parental rights.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
DISCUSSION
A
The Beneficial Parent-Child Relationship Exception
Jocelyn maintains the court erred when it did not find that termination of parental rights would be detrimental to Jonathan and Beverly under the beneficial parent-child relationship exception to termination of parental rights. Jocelyn contends the "overall evidence" shows that she shared a positive, beneficial parent-child relationship with both children sufficient for the exception to apply. L.H. joins Jocelyn's argument.
The Agency acknowledges that Jocelyn regularly visited and contacted the children during the dependency proceedings. The Agency contends Jocelyn did not meet her burden at trial to show the continuation of the parent-child relationship outweighed the benefits the children would receive from adoption. It asserts substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply. Minor's counsel joins the Agency's argument.
At a permanency plan hearing, the court may order one of three alternatives — adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To overcome the statutory preference for adoption, the parent must prove, by a preponderance of the evidence, that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) In the context of section 366.26, subdivision (c)(1)(A), "benefit" means the parent-child 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." (Ibid.) "If severing the natural parent/child parental 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." (Ibid.)
We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Social worker Abdullah opined that there was no significant parent-child relationship between Jocelyn and the children that would cause termination of parental rights to be detrimental to the children. She observed that the children identified the caregivers as their primary parental figures and called them "mama" and "papa." Jocelyn argues that Abdullah's opinion was perfunctory because the social worker did not observe any interactions between Jocelyn and the children, and did not speak to her about the case. Jocelyn asserts that the record does not clearly show that Abdullah ever met with the children or caregivers.
We are not persuaded by Jocelyn's argument challenging the bases of the social worker's opinion. While these are fair arguments to raise before the trial court, it is not our function to reweigh the evidence or to draw new inferences. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Abdullah made numerous attempts to contact the parents before the section 366.26 hearing. Jocelyn chose not to respond to the social worker. Abdullah reviewed the record, identified prospective adoptive parents, and drew conclusions about the recommended permanency plan based on her assessment of the record and the children's current circumstances. The court was entitled to rely on the social worker's expert opinion. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
Jocelyn's argument on this issue is further undermined by her decision not to contact her trial attorney, attend the section 366.26 hearing, cross-examine the social worker, or present affirmative evidence or testify on her own behalf. All these options were fully available to her. As a result of Jocelyn's lack of participation in the proceedings, the Agency's evidence at the section 366.26 hearing was uncontroverted and the social worker's opinion was unchallenged.
Jocelyn argues that she had good relationships with Jonathan and Beverly, and established a parental relationship with the children by regularly visiting them, attending their medical appointments, and focusing on their needs. The Agency acknowledges that Jocelyn had "frequent and loving contact" with the children. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) We infer the children gained some benefit from visits with Jocelyn. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, for the exception to apply, the court was required to find that Jocelyn's relationship with the children promoted their well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Ibid.) There is substantial evidence in the record to support the court's determination the exception did not apply.
The court could reasonably conclude that Jocelyn's protracted use of methamphetamine and cocaine presented a risk to the children's safety, protection, and physical and emotional well-being; thus her relationships with the children were not beneficial in nature. Despite Jocelyn's initial positive response to intensive substance abuse treatment, she relapsed on cocaine and methamphetamine within two months after she completed the program. Jocelyn showed no more stability after more than a year of drug treatment than she did at the beginning of the dependency proceedings. Her circumstances were unchanged: She was in a relationship with a drug user and she was using drugs. Jocelyn's use of methamphetamine during two of her pregnancies underscores the seriousness of her addiction as well as her lack of appreciation and understanding of her parental role and responsibilities.
At the time of the section 366.26 hearing, the children were three and two years old. They had lived with their caregivers for more than two years. Beverly knew no other home. By their steadfast care of the children and attention to their needs, the caregivers assumed a parental role. The children called the caregivers "mama" and "papa" and identified them as primary parental figures.
We conclude that substantial evidence supports the court's finding that the beneficial parent-child exception did not apply to preclude termination of parental rights. (§ 366.26, subd. (c)(1)(A).) Jocelyn's relationship with the children was not parental in nature. To the extent the relationship was parental, the security, stability and loving care the children would receive in an adoptive placement outweighed the continuance of the parent-child relationship. (§ 366.26, subd. (c)(1)(A); In re Autumn H., supra, 27 Cal.App.4th 567, 575.)
C
The Sibling Relationship Exception
Jocelyn contends there is insufficient evidence to show that adoption would not substantially interfere with the relationship between Jonathan and Beverly, and therefore the court erred when it found that there were no section 366.26, subdivision (c)(1) exceptions to termination of parental rights. Jocelyn asserts that the children's placement was not certain because the caregivers might not be approved to adopt the children, or were only interested in adopting Beverly. L.H. joins Jocelyn's argument.
The Agency maintains the parents did not raise the issue of the sibling relationship exception at trial and have forfeited the issue on appeal. On the merits, the Agency contends Jocelyn's assertions are unsupported by fact. The Agency contends the record supports the conclusion both children would permanently remain in the home in which they had lived for more than two years.
To establish detriment under the section 366.26, subdivision (c)(1)(E) exception, sufficient to avoid termination of parental rights, the parent must show, by a preponderance of the evidence, "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Ibid.)
At the section 366.26 hearing, no party to the proceeding asserted that termination of parental rights would be detrimental to the children because it would substantially interfere with their sibling relationship. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221.) "Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (Id. at pp. 221-222.) Thus, the parents have forfeited this issue on appeal.
Even if the doctrine of forfeiture did not apply, we would reject Jocelyn's argument as mere conjecture. Throughout the lengthy dependency proceedings, the children were placed together in the home of non-relative extended family members. The caregivers demonstrated a strong commitment to the children's welfare and were participating in an adoption home study. The caregivers were attached to the children and had developed a parental relationship with them. The children called the caregivers "mama" and "papa." As a contingency plan, the Agency identified seven "waiting" families willing to provide a home to both children.
The record does not show that adoption interferes with the children's sibling relationship. We conclude the court did not err when it selected adoption as the children's permanent placement plan and terminated parental rights. (§ 366.26, subds. (b)(1), (c).)
DISPOSITION
The judgments are affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.