Opinion
D060111
01-23-2012
In re SAVANNAH G. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TRACY G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SJ12296B - D)
APPEAL from orders of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.
Tracy G. and Edward H. (together, the parents) appeal orders terminating their parental rights to their minor children, Savannah G., Edward G. and Madison G. (collectively, the minors) under Welfare and Institutions Code section 366.26. The parents challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption does not apply to preclude terminating their parental rights. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2010, two-year-old Savannah and one-year-old twins Edward and Madison (together, the twins) became dependents of the juvenile court under section 300, subdivisions (b) and (j) and were removed from parental custody based on findings the parents failed to provide them with an adequate home; the parents exposed the minors to ongoing domestic violence; the parents neglected Savannah's medical needs; and Edward had physically abused the minors' half-sibling, Nicholas G. The court placed the minors with relatives and ordered the parents to participate in reunification services.
The family came to the attention of the San Diego County Health and Human Services Agency (Agency) because the police were frequently responding to calls of domestic violence between the parents, and the house was filthy, cluttered and unsafe. On one occasion, Tracy's 14-year-old son Nicholas got into a physical altercation with Edward while Edward was holding Savannah. Edward broke windows in the house during outbursts of anger. He had a prior conviction for domestic violence and had completed a 52-week domestic violence treatment program. The parents failed to comply with a prior safety plan by which they agreed to maintain the home in a safe condition.
Although the parents denied using drugs, they both tested positive for amphetamine and methamphetamine in February 2010, and Edward again tested positive the following month. Consequently, the social worker required the parents to participate in substance abuse treatment.
The minors began to flourish once they were removed from the parents' care. Savannah was thriving in her placement with maternal relatives, who were addressing her many medical and dental needs. Savannah had bonded with her caregivers and had responded well to the structure and stability in the home. The twins were active and playful, and had adjusted well to their placement with paternal relatives.
Savannah had a diagnosis of morbid obesity. She also had severe tooth decay.
The parents were visiting the minors, but some visits did not go well. During one visit with the twins, Edward became angry at the social worker, who felt threatened by his aggressive tone. The visitation monitor reported the parents did not respond well to suggestions or redirection. They undermined efforts to create a healthy lifestyle for Savannah by bringing her unhealthy snacks after being told not to do so. The parents missed two visits in February 2010 as a result of being late.
By the six-month review hearing, the parents had not made progress with their case plans. They did not participate in therapy, parenting education, anger management or substance abuse treatment, claiming they did not need these services. Edward had been arrested recently for possessing methamphetamine, and Tracy had just given birth to a child with a positive toxicology for drugs. The parents did not understand how their actions placed the minors at risk or led to their removal, and they continued to blame others for their predicament.
Edward missed five visits with the minors, and the quality of Tracy's visits began to decline. The visitation monitor at Crisis House canceled visits at that location because the parents' negative behaviors had escalated, the parents had become more defiant and hostile, and they were arguing during visits, requiring the visitation monitor to intervene. The parents also lost the privilege to telephone Savannah because they were inappropriate during calls and because Edward was verbally abusive to Savannah's caregivers and threatened them.
The minors remained stable in their placements. The twins had bonded with their caregivers. Savannah was affectionate toward her caregivers, and reached out to them for comfort. She continued to have sleep disturbances, which increased after visits with the parents.
At a six-month review hearing, the court found the parents had not made substantive progress with their case plans, terminated reunification services and set a selection and implementation hearing under section 366.26.
Social worker Tami Bettilyon assessed the minors as both generally and specifically adoptable. Their caregivers had begun the home study process, and there was no reason to believe they would not be approved to adopt.
According to Bettilyon, the parents' visits with the minors had become increasingly chaotic and the parents were consistently late for a six-week period. Bettilyon observed three visits between the parents and Savannah, and two visits between the parents and the twins. During visits with the twins, the parents were playful and loving, and fed them snacks they brought. The twins enjoyed the visits, but did not react negatively when visits ended.
Bettilyon reported the parents' visits with Savannah were not as positive as visits with the twins. The parents consistently brought inappropriate food, despite being told they could bring only food on the nutritionist's list. Even after completing a 52-week domestic violence program and anger management course, Edward continued to have angry outbursts, yell at the visitation monitors and social worker, make threatening remarks and refuse to follow the rules. Consequently, visits were no longer allowed at two visitation facilities.
The parents played with Savannah during visits, asked her questions and were affectionate with her. Savannah enjoyed visits, knew who her parents were and told Tracy she loved her. Savannah did not want to stay with Edward during his outbursts, and was afraid of him because she believed he was angry with her. Numerous times, Savannah refused to visit the parents, saying she did not want to see them. Savannah did not react negatively when visits ended.
Bettilyon noted Edward refused to drug test or otherwise cooperate with Agency. After Tracy gave birth to a child who tested positive for drugs, she began participating in an outpatient substance abuse program. However, she tested positive for amphetamine and methamphetamine six weeks before the selection and implementation hearing.
In Bettilyon's opinion, neither parent had a beneficial parent-child relationship with any of the minors. Although the parents loved the minors and traveled two hours each way by public transportation to visit them, they continued to make poor choices and act inappropriately during visits. They also refused to understand what was best for the minors, especially Savannah. During visits, Tracy allowed the minors to be exposed to Edward's aggressive and threatening behavior. Although the minors enjoyed visiting the parents, they looked to their caregivers to meet their needs. Bettilyon believed the benefits of adoption for the minors outweighed maintaining any parent-child relationship they had with the parents. Thus, she recommended adoption as the minors' permanent plans.
The selection and implementation hearing proceeded by way of a trial on the documents. After considering the evidence and arguments of counsel, the court found the minors were likely to be adopted and none of the exceptions to adoption applied. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
The parents challenge the sufficiency of the evidence to support the court's findings the beneficial parent-child relationship exception to adoption did not apply to preclude terminating their parental rights. The parents assert they maintained regular visitation and contact with the minors, and had a loving and beneficial relationship with them that should be allowed to continue.
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 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 a compelling reason for determining that termination of parental rights would be detrimental to the child under one or more of the enumerated statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (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 p. 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.) 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. (1999) 73 Cal.App.4th 823, 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, 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 supporting 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 the parents were committed to visiting the minors and traveled a great distance to see them. Nevertheless, Edward missed five visits and the parents missed other visits because they were late. It was only in the few months before the selection and implementation hearing that the parents' visits stabilized. Even if the visitation is considered regular, the parents did not meet their burdens of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
Although the parents love the minors, were attentive and affectionate during visits and brought snacks and toys, they failed to act in a parental manner by placing the minors' needs above their own. The parents refused to accept responsibility for the minors' removal from their care or participate in services. Edward was frequently angry and aggressive during visits, causing Savannah to fear him. Tracy enabled Edward's negative behaviors, and argued with him in the minors' presence. Two agencies refused to continue monitoring visits as a result of the parents' inability to act appropriately and control their emotions. Additionally, the parents lost the privilege of telephoning Savannah at her caregivers' home because their conversations were inappropriate and they verbally abused the caregivers. The parents ignored Savannah's needs when they refused to believe she had a diagnosis of morbid obesity, and they undermined her health by continuing to bring her food not approved by the nutritionist. The parents' lack of insight into how their lifestyle and behaviors negatively impacted the minors prevented them from developing the type of parent-child relationship that could be deemed "beneficial." In this regard, the minors' well-being was not promoted by their relationship with the parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Moreover, the affection the minors shared with the parents during visits was not enough to show that terminating the parent-child relationship would result in great harm to the minors. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Savannah refused to attend some visits, stating she did not want to see her parents. The minors were not sad when visits ended, and there was no evidence they were negatively impacted by the absence of the parents from their daily lives. "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; In re Jason J., supra, 175 Cal.App.4th at p. 937.)
Further, the parents have not shown that maintaining a relationship with the minors outweighed the benefits of adoption for them. At the time of the selection and implementation hearing, the minors had been out of the parents' care for 18 months, and had to depend on their caregivers to meet their daily physical, medical, developmental and emotional needs. Only after the minors were removed from parental custody did they begin to thrive. The minors are bonded to their caregivers, who want to adopt them. "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.)
Although the parents believe a permanent plan other than adoption would serve the minors' best interests, adoption is the only option that would provide these children with the stability and permanence they so desperately need. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [Legislature has decreed guardianship is not in best interests of children who cannot be returned to their parents; only adoption affords the most permanent and secure alternative]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference to preserve family unit does not override best interests of minors in stability and security of adoptive home].) The court was entitled to accept the social worker's opinion that the benefits of adoption for the minors outweighed the benefits of maintaining a relationship with the parents. 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 did not apply to preclude terminating parental rights.
The parents' reliance on In re S.B. (2008) 164 Cal.App.4th 289, 298-300, is misplaced. We are compelled to reiterate "S.B. is confined to its extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558.) In S.B., the evidence showed that despite the child's strong, positive, significant relationship with her caregiver, she would be "greatly harmed" by the loss of the equally significant, positive relationship she shared with her father. Additionally, the father in that case had complied with every aspect of his case plan and the child wanted to live with him. (In re S.B., supra, at pp. 300-301.) Here, in contrast, the parents made no such showing.
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DISPOSITION
The orders are affirmed.
IRION, J. WE CONCUR:
O'ROURKE, Acting P. J.
AARON, J.