Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge, Super. Ct. No. NJ12682D
HUFFMAN, Acting P. J.
Michelle T. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter Leilani T. under Welfare and Institutions Code section 366.26. Michelle challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Todd T., Leilani's father, joins Michelle's arguments. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship exception, formerly section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of newborn Leilani under section 300, subdivision (b). Leilani became a dependent of the juvenile court and was removed from parental custody based on findings her parents would place her at risk of serious physical harm because of their inability to adequately protect her. The parents had a long history of domestic violence often resulting in injury to one another. Michelle's criminal history showed she was arrested for inflicting bodily injury on Todd and it appeared she was the primary aggressor.
During the next six months, Michelle regularly visited Leilani but did not consistently participate in services. Todd did not consistently visit Leilani. The parents submitted to psychological testing and the psychologist opined the parents were at risk for repeating physical violence and believed a child in their care would remain at risk of harm. At the six-month review hearing, the court terminated reunification services for Todd but continued services for Michelle based on her visits with Leilani. Leilani remained placed in foster care with the same caregiver she had lived with since her birth.
Michelle continued to receive services during the next 12 months. She regularly visited Leilani and participated in therapy. In its 18-month review report, the Agency indicated Michelle and Leilani had been participating in unsupervised, overnight visits. At the 18-month review hearing, the court ordered Leilani placed in Michelle's care. Michelle lived in Riverside County and the court ordered the case transferred to that jurisdiction.
About one month after the case was transferred, Michelle's whereabouts became unknown. She had been evicted from her residence and had not updated social workers on her current living situation. Michelle later contacted a social worker stating she had been living with friends but did not provide an address or phone number. She admitted to living out of her car with Leilani for two days in December 2006. The Agency regained custody of Leilani and filed a petition requesting Leilani be removed from Michelle's care and placed back with her original foster mother. The court later terminated reunification services and set a section 366.26 selection and implementation hearing.
The social worker assessed Leilani as adoptable because of her good health and lack of significant developmental problems. In the event the foster mother could not adopt Leilani, numerous other families would be interested in a child like Leilani. Leilani was living with her foster mother and this caregiver remained committed to adopting Leilani. Concerning visitation, Michelle visited Leilani in the months before the selection and implementation hearing. Michelle was affectionate toward Leilani and the visits were appropriate. However, Leilani separated easily from Michelle, showed no signs of distress and sometimes left the room during visits. Instead, the social worker observed Leilani showed signs of anger toward Michelle. The social worker reported Michelle claimed she supported open adoption for Leilani. In the social worker's opinion, Michelle and Leilani did not have a beneficial parent-child relationship and the social worker believed that Leilani viewed Michelle as a playmate instead of a parent.
At the selection and implementation hearing, the court found Leilani was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
Michelle challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited Leilani and the two shared a beneficial parent-child relationship. Todd joins in Michelle's argument.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 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 of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1) (A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference 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." We have 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 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Todd did not maintain regular visits with Leilani. The court found Michelle maintained regular and consistent contact with Leilani throughout the dependency proceedings. Admittedly, Michelle made progress during the dependency and had regained custody of Leilani for a short time during a more than two-year period. It is reasonable to infer the two shared some degree of a relationship but it was not shown to be a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Michelle was affectionate toward Leilani and their visits were appropriate, but Leilani did not have difficulty separating from Michelle when visits ended. Leilani instead showed signs of distress during visits. She kicked and threw things at Michelle, became angry and sometimes ignored Michelle. There was no indication Leilani exhibited this same behavior with her foster mother. In the social worker's opinion, Leilani did not view Michelle as a parental figure and instead saw her more like a playmate or a friend who visits on occasion. There was no evidence of a "substantial, positive, emotional attachment" from Leilani to Michelle such that terminating the parent-child relationship would result in great detriment to Leilani. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
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.) Leilani, whose needs Michelle could not meet after more than two years in the dependency system, deserves to have her custody status promptly resolved and placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.