Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner, Super. Ct. No. NJ12451.
McINTYRE, J.
Melissa M. appeals a judgment terminating her parental rights to her daughter, Trinity M., under Welfare and Institutions Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Trinity M. was born in July 2004 to Melissa M. Melissa had a history of methamphetamine use and drug-related criminal activity. In two other dependency proceedings, Melissa did not participate in offered services. At birth, Trinity tested presumptively positive for amphetamine. (The test did not meet forensic standards and the San Diego County Health and Human Services Agency (Agency) did not detain Trinity.) In September the court sustained a section 300 petition based on Melissa's history of substance abuse and resistance to treatment.
Melissa and Trinity lived with the maternal grandmother (Grandmother). At the December 2004 disposition hearing, the court allowed Melissa to retain physical custody of Trinity under a plan of family maintenance services.
In January 2005 Melissa missed several drug treatment and group therapy sessions. In March she did not comply with drug testing. In April Melissa tested positive for methamphetamine, was arrested for drug possession and incarcerated for one week. In May Melissa entered a residential drug treatment program.
At the six-month review hearing in June 2005, the Agency reported that Trinity was a happy baby who was well-bonded to Melissa and Grandmother. The court authorized Trinity's placement with Melissa at the residential treatment program.
In October 2005 Melissa tested positive for methamphetamine and was asked to leave the residential program. She was incarcerated for a short time. The court found that Melissa was not able to adequately care for Trinity, placed Trinity with Grandmother and ordered Melissa to comply with services. Melissa entered an intensive drug rehabilitation program and completed the program in April 2006.
In May 2006 after achieving more than 180 days sobriety, Melissa submitted a diluted test and did not comply with other drug court requirements. In June Melissa tested positive for methamphetamine and was incarcerated on drug-related criminal charges. The court terminated reunification services at the six-month review hearing.
Melissa was released from jail in January 2007. As a condition of probation, Melissa was required to enroll in a drug rehabilitation program. She did not do so. In May Melissa was arrested for being under the influence of a controlled substance and was incarcerated.
The section 366.26 hearing was held on July 9, 2007. (The hearing was delayed to allow the Agency to search for Trinity's alleged father and to publish notice.) The social worker testified that at visits, Trinity was happy to see Melissa and they shared an affectionate and loving relationship. Melissa protected and redirected Trinity, and Trinity responded to her directions. However, Melissa had been unable to see Trinity for extended periods. The social worker opined that Melissa was not a parental figure to Trinity. Trinity looked to Grandmother for comfort and affection, and Grandmother was committed to adopting Trinity.
Melissa testified that she regularly telephoned Trinity when incarcerated. After her release from jail in January 2007, Melissa visited Trinity three times each week and when the visits ended, Trinity cried.
The court found that Trinity had spent a significant portion of her life with Grandmother and concluded that termination of parental rights would not be detrimental to Trinity. Although Trinity recognized Melissa as her mother, the benefit of continuing the parent-child relationship was "greatly outweighed" by Trinity's need for the stability provided by adoption. The court terminated parental rights.
DISCUSSION
Melissa asserts the court erred when it determined the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply and terminated parental rights. Melissa argues insufficient evidence supports the court's finding that the benefits of adoption outweigh the benefits of continuing the parent-child relationship. She contends the evidence shows she diligently visited and nurtured Trinity, and argues the lack of daily contact with her daughter is not determinative of the nature and bond of the parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38; In re Brandon C. (1999) 71 Cal.App.4th 1530; In re Amber M. (2002) 103 Cal.App.4th 681.) Melissa also asserts that adoption is not beneficial to Trinity because her older siblings are in family guardianships, and the divergence in the siblings' permanency plans will lead Trinity to feel left out and distanced from Melissa.
The Agency contends substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude termination of parental rights. (§ 366.26, subd. (c)(1)(A).) The Agency acknowledges the court found that Melissa maintained regular visitation and contact with Trinity. The Agency argues Melissa did not meet her burden, at trial or on appeal, to show the benefits of the parent-child relationship outweighed the benefits of stability and permanence provided by adoption.
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) In this context, "benefit" means the parent-child relationship "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." The parent must show that severing the natural parent-child relationship would deprive the child of "a substantial, positive emotional attachment such that the child would be greatly harmed . . . ." (Ibid.)
We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). (Autumn H., supra, 27 Cal.App.4th at p. 576.)
We recognize that the record shows Melissa has many positive parenting skills and maintained an affectionate and loving relationship with Trinity. As the Agency acknowledges, Trinity loves Melissa and enjoys their visits. Were it not for Melissa's drug use and her frequent separations from Trinity, the trial court may have reached a different conclusion concerning the beneficial parent-child exception. (§ 366.26, subd. (c)(1)(A).) "A judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 230.)
Melissa argues she established a beneficial parent-child relationship with Trinity during the first 15 months of the dependency and maintained that relationship through appropriate and loving visitation. She relies on case law holding that the lack of day-to-day interaction, companionship and shared experiences, particularly in the case of an older child, may not necessarily erode a strong and beneficial parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51; see also In re Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538; In re Amber M., supra, 103 Cal.App.4th at pp. 690-691.)
To overcome the statutory preference for adoption, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Here, substantial evidence supports the inference that when Melissa had physical custody of Trinity, she ceded her parental responsibilities to Grandmother. In April 2005 she left Trinity in Grandmother's care when she was jailed on drug violations. On or about the day she was released, Melissa left Trinity with Grandmother "to go to the store," and did not return for five days. In October after testing positive for methamphetamine, Melissa left the residential treatment facility at 11:50 p.m., telling the staff that Grandmother would come for Trinity. During the first 15 months of Trinity's life, Trinity was as bonded to Grandmother as she was to Melissa.
During the 21-month period that began when Trinity was 15 months old, Melissa was unavailable or had only incidental contact with Trinity for approximately 16 months. Melissa was in an intensive drug treatment program from October 2005 to April 2006. She was incarcerated from June 2006 to January 2007, during which time she had no contact with Trinity for four months, and from May 2007 to the time of the section 366.26 hearing. The social worker opined that as a result of Melissa's protracted absences from Trinity's life, despite their emotional bonds and pleasant visits, Melissa was not a parental figure to Trinity.
While the lack of day-to-day interactions may not necessarily erode an older child's established beneficial relationship with his or her parent, the principle is less applicable to a toddler. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Here, it is reasonable to infer that in Melissa's absence, Trinity looked to Grandmother for the hallmarks of a truly beneficial parent-child relationship—care, comfort, protection, stability and the ability to recognize and meet the child's needs first.
Relying on the social worker's opinion and the factual circumstances of the case, the court could reasonably conclude Trinity did not have a substantial, positive emotional attachment to Melissa that would outweigh the benefit she would derive from a permanent, stable home with Grandmother. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In addition, Melissa's long-standing pattern of treatment, relapse and incarceration allows the court to draw the reasonable inference that Melissa's repeated absences from Trinity's life are likely to continue, and the parent-child relationship will continue to erode. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [Evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future].)
Finally, we reject as mere speculation Melissa's argument that guardianship is the more appropriate permanency plan because Trinity will be traumatized by the difference between her and her siblings' legal relationships with their mother. The record shows Trinity is clearly bonded and attached to Grandmother, who provides her with a stable, secure and loving home, and nurtures her relationships with family members, including Melissa. In view of Melissa's intractable drug use, the court reasonably concluded Trinity required the greatest protection the dependency system could offer her—the safety, stability and permanence provided by a committed adoptive parent. Substantial evidence supports the court's findings that the continuation of the parent-child relationship is greatly outweighed by the benefits Trinity will receive from adoption by her grandmother, and the beneficial parent-child exception does not apply to preclude termination of parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, Acting P. J., IRION, J.