Opinion
D041808.
10-31-2003
In re SAVANNAH N. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GREG N. et al., Defendants and Appellants.
Kimberly N. and Greg N. separately appeal judgments terminating their parental rights to their daughter, Savannah N., under Welfare and Institutions Code section 366.26.[] Kimberly also appeals the judgment terminating her parental rights to her daughter, Courtnee G. Greg asserts the court erred in terminating his parental rights to Savannah because he had a beneficial relationship with her within the meaning of section 366.26, subdivision (c)(1)(A). Kimberly asserts the judgments should be reversed because she had a beneficial relationship with both children. We affirm the judgments.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2001, Greg was arrested twice on domestic violence charges. He pushed Kimberly down, held her down by her neck, and prevented her from calling the police. He also hit her in the chest with a plastic hanger, causing visible scratches. As a result of these incidents, the San Diego County Health and Human Services Agency (the Agency) removed seven-year-old Courtnee and two-year-old Savannah from Kimberly and Gregs custody and filed section 300 petitions on each childs behalf because the children had witnessed violent altercations between Greg and Kimberly in the family home. In August, the court made true findings on the petitions and ordered reunification services.
At the September 2002 12-month review hearing, the court terminated reunification services and scheduled a section 366.26 hearing because neither Greg nor Kimberly had made any progress with their respective case plans. At the March 2003 section 366.26 hearing, the court found the children were adoptable and that none of the section 366.26, subdivision (c)(1) exceptions applied. The court terminated parental rights.
DISCUSSION
I
Substantial Evidence Supports Termination of Kimberlys Parental Rights
Kimberly argues the court erred when it terminated her parental rights because she had a beneficial relationship with the children within the meaning of section 366.26, subdivision (c)(1)(A).
A. Standard of review
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, consider the record most favorably to the juvenile courts order and 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 finding or order is not supported by substantial evidence. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. The exception to adoption, set forth in 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).) Kimberly maintains that the trial court erred in terminating her parental rights because the evidence established that she had a beneficial parental relationship with the children within the meaning of section 366.26, subdivision (c)(1)(A). This 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."
1. Kimberly did not Maintain Regular Visitation with the Children
Kimberly could not establish the first prong of the section 366.26, subdivision (c)(1)(A) exception because her visits were not regular. She had not visited with, written to, or telephoned the children for a period of six months preceding the section 366.26 hearing. This does not constitute regular visitation within the meaning of the statute. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Kimberly asserts we should find her visitation was regular because she visited when she could, prior to her incarceration in October 2002. Even if Kimberly was not required to regularly visit the children, in view of her incarceration, she still could have written to them. She did not do so. However, Greg received a letter from Kimberly every other day. The court correctly found Kimberly did not regularly visit the children.
2. Kimberly did not have a Beneficial Parental Relationship with the Children
Even if Kimberly had regularly visited with the children, she did not demonstrate she had a beneficial relationship with them. 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 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.)[]
We decline to follow Kimberlys suggestion to disregard In re Autumn H., supra, 27 Cal.App.4th 567. (See In re Casey D. (1999) 70 Cal.App.4th 38, 51-52.) Despite her argument to the contrary, a parent may establish that a beneficial relationship exists under the In re Autumn H. analysis, as is evidenced by our decision in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact or pleasant visits with the children. (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., supra, 52 Cal.App.4th at p. 324.)
There is no evidence either child regarded Kimberly in a parental role. Savannahs primary parental relationship was with her caretaker. Savannah sought out the caretaker to meet her physical, emotional, and social needs. Similarly, Courtnee saw her caretaker as her mother, sought her out for guidance, and depended on her. She called her "mother."
Kimberly asserts she acted in a parental role with the respect to children because she did not let them do anything dangerous, and because she interacted with them during visits. However, Kimberlys other behavior during visits was not parental. She belittled Courtnee, cursed at the social worker, and argued with Greg. She encouraged Savannah to be mean to Courtnee. She blamed Courtnee for the dependency proceedings. She discussed the case and other inappropriate topics during visits. She made inappropriate promises to the children. She insulted family members, yelled, cursed, and was argumentative. She made the children uncomfortable.
In addition, Kimberly has a criminal history dating back to 1989. She was arrested twice since the children were declared dependents, and was sentenced to serve three years in prison in November 2002. During the reunification period, she made minimal progress in therapy and did not take responsibility for her actions. She intended to continue her relationship with Greg after her release from prison even though he had made no progress in treating his problem with domestic violence. The court could correctly conclude it was in the childrens best interests to be adopted rather than maintain a relationship with a person who could not stay out of prison, had not treated her domestic violence issues, and was maintaining a relationship with the person who abused her.
Further, to establish the section 366.26, subdivision (c)(1)(A) exception, Kimberly had to demonstrate the children would suffer great harm if the parental relationship were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Kimberly asserts the children would suffer great harm because each child loved her and needed therapy after being separated from her. However, even assuming the record supports those assertions, neither the social worker nor the childrens therapist believed the children would suffer detriment if Kimberlys parental rights were terminated. Courtnees therapist believed Courtnee was "very ready to move on," even though terminating Kimberlys parental rights to Courtnee would be difficult for the child. Kimberly introduced no contrary expert evidence. Substantial evidence supports the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply to Kimberlys relationship with either child, since she did not maintain regular visitation and contact with them, and she did not have a beneficial relationship with them.
II
Substantial Evidence Supports Termination of Gregs Parental Rights
Greg argues the court erred when it terminated his parental rights because he had a beneficial relationship with Savannah within the meaning of section 366.26, subdivision (c)(1)(A). Here, because the court found Greg regularly visited, we examine the record to determine whether substantial evidence supported the finding that he did not have a beneficial relationship with the child.
The record shows Savannah told Greg she loved him and that her visits with him were pleasant. This evidence might have supported a finding that Greg had a beneficial relationship with Savannah. However, the court found there was not a beneficial relationship sufficient to apply the section 366.26, subdivision (c)(1)(A) exception. While we may have decided the matter differently, we may not substitute our deductions for those of the trier of fact. (In re Elijah R. (1998) 66 Cal.App.4th 965, 969.) We may not reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) "[W]e may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial courts determination. We must resolve all conflicts in support of the determination, and [draw] all legitimate inferences to uphold the courts order." (In re Elijah R., supra, 66 Cal.App.4th at p. 969.) We must view the record most favorably to the juvenile courts order, and affirm the order even if other evidence supports a contrary conclusion. (In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)
There is substantial evidence in the record to support the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply to Gregs relationship with Savannah. The social worker believed Savannah did not view Greg as a parent. Savannah seemed anxious and uneasy during her visits with Greg. She moved quickly from activity to activity without finishing the previous one, in contrast to her behavior at her foster home. During the visits, she frequently asked for her caretaker, wanted to know when the caretaker would arrive, and looked out the window for her. During two visits, she repeatedly asked for her caretaker and did not want to visit with Greg. During some visits, she did not follow Gregs directions. She did not want to give him a picture she had drawn. At the end of some visits, she had to be reminded to say goodbye to him. She did not cry at the end of visits or ask to extend visits. She had no trouble separating after visits. When the visits ended, she ran to her caretaker. She did not want to telephone Greg between visits. The social worker acknowledged Savannah had positive interactions with Greg, but believed the interactions were similar to those with the social worker. Savannah was no happier to see Greg than she was to see her social worker, therapist, or teacher.
The social worker believed Savannahs primary parental relationship was with her caretaker. Savannah sought out her caretaker to meet her physical, emotional, and social needs, and for direction and support. She looked for her caretaker during visits. She was excited to see her caretaker after visits, was comfortable with her, and gave her spontaneous love and affection. Savannahs therapist also believed the child was bonded with her caretaker. She looked to the caretaker for direction and approval and cared deeply for her. Greg introduced no contrary expert evidence.
In addition, although Greg acted appropriately during visits, he never went to Savannahs school, asked the social worker about her schooling, or attended one of her doctor appointments. He also engaged in inappropriate behavior during visits by discussing the case and other inappropriate topics in front of the child. He insulted family members, yelled, cursed, and was argumentative in front of the child.
Further, Greg made minimal progress in domestic violence treatment. He minimized the seriousness of the problem, had little insight into the issues, and did not integrate the material. He did not take responsibility for his actions and minimized the situation. He disregarded social standards, acted anti-socially, had poor impulse control, and blamed others for his problems. The social worker believed it was unlikely Greg would be able to provide Savannah with a safe, permanent home even though he was able to act appropriately during visits. The court could correctly concluded it would be more beneficial to Savannah to terminate parental rights than to maintain a relationship with a person who failed to treat his domestic violence problem.
Finally, to avoid termination of his parental rights, Greg had to demonstrate Savannah would be greatly harmed if the parental relationship were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The record shows both Savannahs therapist and the social worker believed the child would not suffer detriment if parental rights were terminated. Greg introduced no contrary expert evidence. Substantial evidence supports the finding that Greg did not establish the section 366.26, subdivision (c)(1)(A) exception.
DISPOSITION
The judgments are affirmed.
WE CONCUR: NARES, Acting P. J. and McDONALD, J.