Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ3036A, Carol Isackson, Judge.
IRION, J.
Victoria A. appeals a juvenile court order terminating her parental rights to her minor son, Noel R., under Welfare and Institutions Code section 366.26. Victoria challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating her parental rights. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2009, two-year-old Noel became a dependent of the juvenile court under section 300, subdivision (b), and was removed from parental custody based on findings Victoria had a mental illness and was unable to provide regular care for him. Victoria had previously failed to comply with a voluntary case plan. The court placed Noel in foster care and ordered Victoria to participate in reunification services.
Victoria had been a dependent child of the court and had lived in a group home due to her out-of-control and violent behavior toward her mother, sister and others. She never reunified with her parents and eventually aged out of the foster care system.
Victoria began making progress with services and the court ordered Noel placed with her for a 60-day trial visit. However, the San Diego County Health and Human Services Agency (Agency) continued to have concerns about Victoria's ability to adequately provide for and protect Noel. Victoria chose to have Noel live with his former foster family so that her boyfriend could live with her while his background check was completed. She was no longer regularly participating in therapy, and her therapist questioned her ability to understand the severity of the problems she faced and how her behavior harmed Noel. Another service provider was concerned about Victoria's aggressive interaction with Noel, noting he had a bruise on his cheek.
Five months after Noel was returned to Victoria's care, Agency filed a supplemental petition under section 387, alleging physical and emotional abuse. Agency also filed a section 388 modification petition, requesting the court terminate services and set a section 366.26 hearing to select and implement a permanent plan for Noel. Agency alleged Victoria had received services for more than two years but made only minimal progress, and her behavior and lack of insight continued to place Noel at risk of harm. Further, Victoria had recently moved to Wisconsin to live with a new man she met on the internet.
The court sustained the allegations of the section 387 petition, removed Noel from Victoria's custody and placed him with his former foster family. The court also granted Agency's section 388 modification petition, finding it was not in Noel's best interests to be parented by Victoria. Specifically, the court noted Noel displayed anxious and fearful behaviors, "hissed and yelled" at Victoria, and refused to interact with her or allow her to touch him. The court terminated services and set a section 366.26 selection and implementation hearing.
Social worker Lisa Salsbury assessed Noel as generally and specifically adoptable. Noel had many positive attributes. His current caregivers wanted to adopt him, and there were 24 other families interested in adopting a child like Noel.
Victoria did not visit Noel during the five months she lived in Wisconsin. She telephoned Noel a few times, and on one occasion, he refused to talk to her. In Salsbury's opinion, Noel and Victoria did not have a parent-child relationship, and it would not be detrimental to Noel to terminate parental rights. Salsbury noted Victoria had been unable to implement what she learned while participating in services for more than 24 months. She continued to make poor decisions and she placed her own needs above those of Noel. Victoria was unable to consistently provide Noel with a minimum level of care without assistance or advice from others.
Further, Noel had formed a secure and positive attachment to his caregivers, and had made great developmental strides while living in the safe and nurturing environment they provided. Noel's memories of his mother did not outweigh his need for a sense of belonging, security and stability, which would enable him to grow and flourish.
According to an addendum report, Victoria had recently returned to California and had four supervised visits with Noel. The first visit was positive. Victoria appropriately and affectionately interacted with Noel, and he had difficulty letting go of Victoria's arm when the visit ended. During the next three visits, Victoria was again appropriate and affectionate with Noel, and engaged him in a variety of activities. Noel separated easily from Victoria after these visits.
Victoria was in California for 11 days before requesting a visit with Noel.
Salsbury noted that since resuming visits with Victoria, Noel again became fearful and his aggressive behaviors increased. Noel was hesitant to go to the first visit, and wanted assurances from his caregivers that he would be returning to their home. Before the visit, he was physically aggressive toward his foster sister. He refused to go into the visitation room, and had his caregiver go in first. After the visit, Noel had difficulty following directions and cried himself to sleep. Before another visit, Noel said he did not want to attend, and he was aggressive with the caregivers' dog.
Based on Salsbury's observations of visits between Noel and Victoria, as well as Noel's increased negative behaviors, Salsbury maintained that terminating parental rights would not be detrimental to Noel. She stated Noel had been traumatized by Victoria's inconsistent involvement in his life, and he struggled with his emotions after her return from Wisconsin. In Salsbury's opinion, Noel viewed Victoria as a friendly visitor, and he looked to his caregivers for support, reassurance and stability. Continued contact between Noel and Victoria was outweighed by the benefits of Noel's adoption by loving caregivers who provided him with a sense of belonging, security and permanence. Additionally, adoption would end Noel's feelings of confusion and allow him to embrace the attachment he formed with his caregivers.
At a contested selection and implementation hearing, the court found Noel was likely to be adopted and none of the exceptions to adoption applied. The court terminated parental rights and referred Noel for adoptive placement.
DISCUSSION
Victoria 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)(B)(i), did not apply to preclude terminating her parental rights. She asserts she maintained regular visitation and contact with Noel, who would benefit from continuing the relationship with her.
A
After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the selection and implementation hearing, the court has three options: (1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"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 that 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 the specified exceptions. (§ 366.26, subd. (c)(1)(A), (c)(1)(B)(i)-(vi); In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) "The parent has the burden of establishing the existence of any circumstance that constitutes an exception to termination of parental rights." (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a 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.)
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if terminating 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 pp. 574-575; accord In re Jason J. (2009) 175 Cal.App.4th 922, 936-937.)
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 Jason J., supra, 175 Cal.App.4th at pp. 936-937; 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. (In re Derek W., supra, at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We review the court's finding regarding the applicability of a statutory exception to adoption for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this regard, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh 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 to support a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the evidence showed Victoria regularly visited Noel twice a week for a one-month period. She then moved to Wisconsin, and for five months, had little or no contact with him. When Victoria returned to San Diego, she waited almost two weeks before requesting a visit with Noel. She then had four visits with him. Even were we to consider this "regular visitation and contact, " Victoria did not meet her burden of showing her relationship with Noel was sufficiently beneficial to outweigh the benefits of adoption for him.
Noel did not view Victoria as a parent. Victoria did not assume a parental role when she visited Noel, instead relying on others to tend to his needs. She was unable to provide Noel with a safe, stable and nurturing home environment, or with consistent care and guidance. On two occasions, she chose new boyfriends over Noel. Any relationship Noel had with Victoria impacted him negatively. He yelled at her to "leave [him] alone, " and would not allow her to touch him or sit close to him. He became anxious, fearful and aggressive before and after visits. Although Victoria was appropriate during visits and Noel was sometimes receptive to her affection, he related to her as a friendly visitor, and looked instead to his caregivers for support, reassurance and stability. In this regard, Victoria did not show Noel had a substantial, positive emotional attachment to her such that he would be greatly harmed if parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jason J., supra, 175 Cal.App.4th at p. 938.) "A biological parent who has failed to reunify with an adoptable child may not derail 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.)
Further, Victoria did not show that maintaining a relationship with Noel outweighed the benefits of adoption for him. Noel was thriving in the home of his caregivers, with whom he had a strong and secure attachment. Noel had made great developmental strides while living in this safe and nurturing environment. He had been traumatized by Victoria's lifestyle and behaviors, and needed a sense of belonging, security and stability, which his caregivers could provide through adoption. Moreover, adoption would end Noel's feelings of confusion and allow him to embrace the attachment he formed with his caregivers. "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." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
C
Victoria relies on In re S.B. (2008) 164 Cal.App.4th 289, 298-300, to support her argument she had a beneficial parent-child relationship with Noel even if he does not have a "primary attachment" to her. However, the facts in S.B. are readily distinguishable from the facts here. (See In re C.F. (2011) 193 Cal.App.4th 549, 558-559 [S.B. is confined to its extraordinary facts, and counsel should not place unwarranted burden on courts by relying on it when the facts are not even arguably similar].) Victoria points to no evidence that Noel would be greatly harmed by severance of his relationship with her. On the particular facts here, the court was required to, and did, weigh the quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for Noel. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating Victoria's parental rights.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.