Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 517266A, Martin W. Staven, Judge.
BENKE, Acting P. J.
Samantha W. appeals a juvenile court order terminating parental rights to her minor child, Michael W., under Welfare and Institutions Code section 366.26. Samantha challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply. We affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Michael was detained at birth due to Samantha's mental health. At the hospital Samantha experienced hallucinations, anxiety, depression, and sought assurance that Michael would go to a good home if something were to happen to her. Samantha reported past drug and alcohol abuse, homelessness, and a history of panic attacks and depression. At the time of Michael's birth Samantha was living in a shed behind her father's home. Samantha had attended three drug treatment programs, none of which she completed. Samantha declined to take medication previously prescribed by a psychiatrist.
Michael's father, Duane W., was incarcerated at the time of Michael's birth. Duane has a criminal history beginning in 1987, for various crimes including those involving controlled substances, as well as robbery, battery, and parole violations.
Following his release, Duane had the opportunity to participate in reunification services, but failed to comply and his whereabouts were unknown for several months. Duane eventually visited Michael a few times before disappearing once more. In December 2009, he was arrested for possession of controlled substances and parole violations, released again on probation, and in January 2010 rearrested for failure to comply with the terms of his probation. At the pretrial status conference the attorney for Duane stated Duane was supporting Michael's adoption and would not appeal a decision terminating his parental rights.
Upon his release from the hospital, Michael was moved to the licensed foster home of Ian and Nicole G. (together the G.s), and the San Diego County Health and Human Services Agency (the Agency) filed a section 300 petition on his behalf. Samantha was in agreement with Michael remaining in foster care, and interested in addressing her mental health issues. Michael was thriving in the G.s' foster home.
In January 2009, the court sustained the allegations of the petition under section 300, subdivision (b), declared Michael a dependent of the court, removed him from Samantha's custody in accordance with section 361, subdivision (c)(1), and placed him in foster care. The court ordered reunification services for Samantha. The case plan provided that Samantha would submit to a psychological evaluation, complete a court-approved parent education program, and take any medications prescribed by and follow all recommendations of her therapist.
Samantha's psychological evaluation reported she suffered from a major depressive disorder, panic disorder with agoraphobia, and personality disorder with borderline and antisocial traits. The evaluating psychiatrist expressed concern that Samantha could relapse on substance abuse, and questioned her ability to follow through with services.
It was subsequently discovered that there had been four Child Protective Service referrals on behalf of Samantha as a child, for both physical and sexual abuse.
By the six-month-review hearing, Samantha was attending parenting classes and participating in supervised biweekly visits with Michael, during which she showed him physical affection, and interacted appropriately with him. Samantha was attending therapy sessions, and had been taking her medication until her insurance was discontinued in April 2009. The court determined Samantha had made moderate progress on the case plan, continued Michael's status as a dependent, and concluded that Michael was likely to be returned home by the 12-month-review hearing. The G.s had filed a de facto parent application, which the court deferred to the next review hearing.
The Agency's 12-month status review report recommended Samantha's parental rights be terminated and Michael's case set for a section 366.26 hearing. The Agency did not believe Michael could be reunified with Samantha by the 18-month date. Samantha's progress was "slow and incremental." The G.s were interested in adopting him. Samantha was without a stable residence or employment, and had been living with the boyfriend she had previously described as being "emotionally abusive" and not "stable minded." Samantha also had been in a "dependent" relationship for the past year with another man who "was both emotionally abusive and a methamphetamine user." The Agency believed these facts evidenced Samantha's "poor judgment, " and "the minimization of a potentially dangerous situation for the child." The Agency was concerned Samantha could not provide long-term care to Michael "without supervision or substantial support." Samantha was just beginning to care for herself, and was not "ready to or able" to care for a one-year-old child. Samantha was not taking her medication, despite referrals for psychiatric services and medication. Samantha was attending three hours per week of supervised visits with Michael, and although she had a bond with him, he sought the attention of Mrs. G., becoming anxious and fussy when separated from her during visits with Samantha. Samantha had not completed her last parenting class and seemed unable to apply what she had learned in those classes to her interactions with Michael.
Samantha lived with this man for a year before informing the Agency, at which time she reported he was "both emotionally abusive to her, [and] would go into fits of anger, throw and break objects in the home, is an alcoholic and had different people coming in and out of the house." Samantha withheld this information "because she did not want it to negatively affect her reunifying with her son." This is especially troublesome because this was the home into which Samantha proposed to bring Michael, if she regained custody.
At the 12-month-review hearing, the court granted the G.s' de facto parent application, and scheduled a contested 366.21 review hearing. The Agency concluded that Michael's relationship with his mother was not essential to his well-being, returning Michael to his mother's custody would be detrimental to him, and the benefit of adoption outweighed any benefit derived from his relationship with Samantha. The Agency assessed Michael as both generally and specifically adoptable; there were 19 local families approved to adopt a child like Michael. At the contested review hearing the court terminated reunification services and set the matter for a section 366.26 hearing.
The Agency recommended a permanent plan of adoption be implemented for Michael. Although Samantha's biweekly visits were "nice, " Michael sought Mrs. G. for comfort, referred to her as "mama, " and easily separated from Samantha. Samantha had difficulty addressing Michael's needs appropriately, still needed help with parenting skills, and her efforts to interact with Michael were "minimal and inconsistent." Samantha came unprepared to the visits with supplies for Michael, although she had been reminded to do so on numerous occasions. Samantha had missed or cancelled several visits, and more recently seemed lethargic, easily agitated, and was frequently late or left early. The Agency concluded that although Samantha and Michael shared a positive relationship, it was not like a parent with her child, but more like that of a "child with an extended relative." Samantha loved Michael, but continued to struggle with her own stability, and had left her most recent treatment program which she had entered into just a few months before. There was continued concern about her living arrangements; a call to Samantha's last known residence was answered by a man who said "I don't see her except when she stops by to take a shower or something." The Agency concluded that adoption was in Michael's best interests and recommended parental rights be terminated.
At the contested section 366.26 hearing, after considering the evidence and hearing the arguments of counsel, the court terminated parental rights of both Samantha and Duane, and implemented a permanent plan of adoption for Michael. The court found that the Agency had met its burden of showing Michael was likely to be adopted, and that Samantha had not established "a sufficient parent-child relationship that would outweigh the permanency of Michael being adopted." The G.s were designated Michael's prospective adoptive parents.
DISCUSSION
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Because a section 366.26 selection and implementation hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) "At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable, and none of the seven exceptions listed in section 366.26, subdivision (c)(1)(A) and (B) applies to make termination of parental rights detrimental to the child." (In re Jason J. (2009) 175 Cal.App.4th 922, 936, citing § 366.26, subd. (c)(1).) If the child is found to be adoptable, the focus of the inquiry shifts to the best interests of the child, and it is the parent's burden to prove the existence of an exception under section 366.26, subdivision (c)(1). (In re Jason J., supra, 175 Cal.App.4th at p. 935.)
Samantha argues that her situation falls within the section 366.26, subdivision (c)(1)(B)(i) exception to the adoption preference, which applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Samantha reasons that a beneficial parent-child relationship existed because she maintained regular visitation with Michael, and she and Michael "shared" a relationship which was "beneficial to Michael to preserve...." Samantha challenges the sufficiency of the evidence to support the court's finding that a beneficial parent-child relationship did not exist.
A. Standard of Review
We use the substantial evidence standard to review the trial court's finding regarding the applicability of a statutory exception to adoption. (In re L.Y.L. (2002)101 Cal.App.4th 942, 947.) We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence. (Ibid.) 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 Casey D. (1999) 70 Cal.App.4th 38, 52-53.) In order to prevail on appeal, Samantha must show there was no evidence of a sufficiently substantial nature to support the court's finding that no beneficial parent-child relationship existed. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
B. The Court's Findings Were Supported By Substantial Evidence
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 pp. 574-575; accord, In re Jason J., supra, 175 Cal.App.4th at 936-937, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, Samantha must have shown more than frequent and loving contact, an emotional bond with Michael, or pleasant visits. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937; In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Samantha was required to show she occupied a parental role in Michael's life, resulting in a significant, positive emotional attachment from Michael to Samantha. (In re Derek W., supra, at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Samantha must additionally have shown that maintaining her relationship with Michael outweighed the benefits of adoption for him. (In re Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in a stable and permanent home is paramount once a parent's interest in reunification is no longer at issue].
Samantha and Michael shared a positive relationship, but it was not a parent-child relationship. Although Samantha regularly visited Michael and showed him warmth and affection, Michael did not reciprocate those feelings. Michael has resided with the G.s since shortly after his birth, is strongly bonded to the G.s, and looks to them to meet his physical, emotional, and psychological needs. Michael sought Mrs. G. for comfort, referred to Mrs. G. as "mama, " became anxious and fussy when separated from her during visits with Samantha, and had no difficulty separating from Samantha at the end of their visits. There was no evidence Michael was negatively impacted by Samantha's absence from his daily life. Samantha did not show Michael had a "significant, positive, emotional attachment" to her such that terminating the parent-child relationship would result in great harm to him. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jason J., supra, 175 Cal.App.4th at p. 938.)
Substantial evidence supports the juvenile court's determination that the benefits of his adoption outweighed maintenance of Samantha's relationship with Michael. "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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Although Samantha loves Michael, her continued instability, failure to develop the necessary parenting skills, and noncompliance with other aspects of the case plan, prevented her from developing a relationship with Michael which outweighed the security and stability of an adoptive home. "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (Inre Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The court selected adoption for Michael based on the evidence and on the statutory preference for adoption as the most permanent plan, and thus the plan that served his best interests. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) Michael deserves to have his custody status promptly resolved and his placement with the G.s made permanent and secure. Substantial evidence supported the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating Samantha's parental rights. There is no reason, supported by policy or the law, to deviate from the Legislature's preference for adoption in this case.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, J., IRION, J.