Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J516857A-C, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
McCONNELL, P. J.
Carolyn D. appeals a judgment terminating her parental rights to her minor children, Terrance D., Jayden W. and Shaun D. (collectively, the minors), under Welfare and Institutions Code section 366.26. Carolyn argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Two-year-old Terrance and one-year-old Jayden came to the attention of the San Diego County Health and Human Services Agency (the Agency) in September 2007 after social workers found the boys living with Carolyn in unsanitary conditions. The Agency previously provided Carolyn with the opportunity to comply with voluntary services but she had not done so. Carolyn recently was arrested for prostitution and had failed to submit to drug tests. In addition, the Agency reported incidents of domestic violence between Carolyn and the boys' father. The court held a jurisdiction hearing, detained the boys in out-of-home care and offered Carolyn six months of reunification services.
Shaun D. was born in October 2007. He initially remained in Carolyn's care under a voluntary services contract. The Agency later filed a petition on behalf of Shaun in March 2008. The petition alleged Shaun had been exposed to violent confrontations in the home between Carolyn and her ex-boyfriend. The ex-boyfriend struck Carolyn multiple times while Shaun was in the home. The petition further alleged Carolyn had a history of domestic violence and had failed to comply with services.
In the reports leading up to the six-month review hearing for Terrance and Jayden, the Agency recommended the termination of reunification services and the scheduling of a selection and implementation hearing under section 366.26. Carolyn did not participate in parenting or homemaker services. She missed six out of eight therapy sessions. The Agency social worker reported that Carolyn visited Terrance and Jayden and that the visits were appropriate. Carolyn displayed affection toward the boys. Terrance would greet Carolyn, call her "mommy" and at the end of visits, Carolyn would kiss the boys goodbye.
The minors' maternal grandmother reported messages had been left for Carolyn by men wanting sex, and the grandmother believed Carolyn once again was involved in prostitution. Before the six-month hearing took place, the Agency filed an addendum report stating Carolyn had not participated in services for about three months. Carolyn also misrepresented to the Agency about the services she was participating in. The Agency recommended that Shaun be declared a dependent and placed in the same home as his brothers.
The court held a six-month review hearing for Terrance and Jayden in May 2008. The court terminated reunification services after finding Carolyn had not made substantive progress with her case plan and that it would be detrimental to return the boys to Carolyn's care.
Two weeks later, the Agency filed a section 388 modification petition in Shaun's case seeking to terminate Carolyn's reunification services. The Agency argued that because services in Terrance's and Jayden's cases had been terminated, services should also be terminated in Shaun's case. Carolyn had only attended two out of 12 visits between March and June 2008. During one visit, Terrance and Jayden ran up to Carolyn but she did not display affection toward them. She instead pushed them away and proceeded to talk with the boys' father, in violation of a court order. The visit ended and Carolyn did not inquire about the boys' well-being or express concerns over her lack of participation during the visits.
The Agency further reported Carolyn had not participated in services since February 2008. Carolyn did not participate in drug tests, and although Carolyn was instructed to participate in parenting classes, therapy and domestic violence counseling, she had not verified her participation in these services. Carolyn claimed she had been participating in therapy but her therapist informed the Agency that Carolyn had not attended a session since February 2008.
In August 2008 the court granted the section 388 petition, terminated services as to Shaun and scheduled a section 366.26 hearing for Shaun to coincide with the same hearing for his siblings.
In an assessment report, social worker Linda Johanesen assessed all three boys as being adoptable. The boys were in good health and lacked significant developmental problems. The current caregiver wanted to adopt the boys and there were many other approved families willing to adopt the boys individually and as a sibling set in the event the caregivers could not adopt.
Concerning visits between the minors, between June 2008 and July 2008, Carolyn attended two visits, missed two visits and was late to another visit. Johanesen observed that Jayden sometimes acted in a negative manner toward Carolyn. During one visit, Jayden pulled away from Carolyn and sat with his back turned away from her. He later played with a ball but ignored Carolyn and instead engaged the social worker and the visitation monitor while he played. Johanesen noted that Terrance told Carolyn he loved her and he enjoyed playing with her. However, Terrance and Jayden had started to refer to their caregiver as "mama." Johanesen opined that Jayden did not have a parent-child relationship with Carolyn. Concerning Terrance, he did seek out Carolyn's attention during visits but he did not cry or show signs of anxiety at the end of visits. Johanesen believed Terrence knew Carolyn was his mother. However, he did not depend on her to meet his needs. The bond Terrance shared with Carolyn was not secure and Johanesen believed adoption outweighed maintaining any parent-child relationship.
In December 2008 the Agency requested a change in placement for the minors. An Interstate Compact on Placement of Children evaluation had been approved for the minors' paternal grandmother's home in Alabama. The court granted the Agency's request for a change in placement.
In an addendum report, Johanesen reported the minors had been placed in the home of their paternal grandmother in Alabama. Before moving to Alabama, the boys continued to visit Carolyn. Johanesen reiterated that Jayden continued to show defiance toward Carolyn. Carolyn also had difficultly controlling Terrance and Jayden and she struggled to meet their needs. Terrance still sought out Carolyn's attention but at the end of visits, the minors did not cry or show signs of distress. At the end of the final visit, before the minors moved to Alabama, Carolyn cried but the minors did not cry. Johanesen believed Carolyn had never occupied a parental role with the minors and for those reasons, the social worker believed adoption was the most appropriate permanent plan for the minors.
The court conducted the section 366.26 hearing and found it likely the children will be adopted, and determined none of the exceptions to adoption is applicable. The court terminated parental rights and chose adoption as the preferred permanent plan.
DISCUSSION
Carolyn challenges the sufficiency of the evidence to support the court's findings 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 contact with the minors. She also argues she shared a strong relationship with the minors that outweighed the benefits of adoption.
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. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (Ibid.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders. (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)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) 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 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 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.)
"Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
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 positive and emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
The Agency does not argue that Carolyn failed to participate in regular visits with the minors. Thus, we examine only whether substantial evidence supports the court's finding that Carolyn did not show she had a beneficial relationship with the minors.
The record shows Terrance and Jayden had spent more than half of their lives as dependents, and that Shaun had been a dependent most of his life. Carolyn had not progressed beyond supervised visits and she did not regularly participate in services to ameliorate the problems that led to the dependency. Further, there was no evidence the minors had a substantial, positive emotional attachment to Carolyn to permit the conclusion that terminating parental rights would result in great detriment to the minors. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Admittedly, the evidence shows Terrance had a relationship with his mother but it was not a significant one. Terrance told her he loved her, showed affection and interacted with her during visits. However, Terrance was not upset after being separated from Carolyn and he was not sad when she was not around. Any benefit Terrance derived from the relationship was outweighed by the stability and security he would gain from being adopted.
Concerning Jayden, Carolyn had difficulty controlling him during visits. Jayden often turned away from Carolyn and refused to seek out her attention. Jayden did not show signs of distress at the end of visits with Carolyn.
The social worker opined there was no parent-child bond between Carolyn and Jayden and further, Jayden did not have a secure parent-child bond with Carolyn.
Concerning Shaun's relationship with Carolyn, Shaun had been a dependent most of his life and the two never shared a parent-child relationship. The court was entitled to find the social worker's expert opinion credible and give greater weight to her assessment and testimony than to the opinions of other service providers. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Carolyn relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) to support her argument that parents need not show a "primary attachment" for the beneficial parent-child relationship exception to apply. She argues the facts of her case are similar to the facts in S.B. because like the father in that case, she regularly visited the minors and shared affection with them. In S.B., this court reversed an order terminating the father's parental rights over his daughter, S.B., under the parent-child beneficial relationship exception to adoption. In that case, the father complied with every aspect of his case plan, frequently visited the minor and was devoted to her. Further, the minor loved her father and wanted to live with him. (Id. at p. 294-295.) This court concluded the minor would be greatly harmed by the loss of the significant, positive relationship the minor shared with her father. However, while factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case, the trial court had sufficient evidence to support its findings. Further, S.B. "does not... stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J. (July 9, 2009, D054188) ___Cal.App.4th___ [2009 WL 1958733].)
After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that an adoptive placement would give the minors after spending years as dependents, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's findings the section 366.26, subdivision (c)(1)(B)(i) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., HALLER, J.