In re A.C.

Filed 10/24/06 In re A.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Lindsay G. and Michael C. appeal a judgment of the juvenile court terminating their parental rights to their minor daughter A.C. under Welfare and Institutions Code^[1] section 366.26. Lindsay and Michael challenge the sufficiency of the evidence to support the court's findings: (1) A.C. was likely to be adopted; and (2) the beneficial parent-child relationship exception did not apply to preclude terminating parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, four-year-old A.C. became a dependent of the juvenile court under section 300, subdivision (b) based on findings Lindsay and Michael repeatedly left her without adequate supervision and they lost custody of A.C.'s two older siblings due to substance abuse and parental neglect. The court removed A.C. from their custody and placed her in the home of a nonrelative extended family member.

Lindsay had been using crystal methamphetamine for nine years, beginning at the age of 14. She was pregnant with her fourth child and currently living at Serenity House, a residential drug treatment program. Lindsay had relapsed after previously participating in another residential drug treatment program. The court noted Lindsay was repeating a pattern of leaving her children with others, drifting in and out of the children's lives and entering a substance abuse program when faced with the prospect of losing custody of them. The court denied reunification services and set a selection and implementation hearing under section 366.26.

According to an assessment report prepared by the San Diego County Health and Human Services Agency (Agency), A.C. was physically healthy and developmentally on target. The social worker described her as a bright, sociable, warm and friendly child who was highly verbal and inquisitive and who attached readily to those around her. A.C. was enuretic and encopretic, which the social worker attributed to the emotional turmoil in her life. A.C. also exhibited negative behaviors such as hitting other children and having tantrums. The social worker believed these behaviors would decrease once A.C. was in a stable environment where she could form attachments.

Michael, who was incarcerated on burglary charges with an expected release date of April 2008, had not visited A.C. and expressed no interest in her. Lindsay's visits with A.C. were initially sporadic, but then became consistent. During visits, Lindsay and A.C. were appropriate and affectionate with each other and verbally expressed their love.

The social worker believed A.C. was likely to be adopted based on her age, good health and lack of developmental delays. There were 25 approved adoptive families willing to adopt a child like A.C. A.C.'s current caregiver, who originally intended to adopt her, could no longer make that commitment due to a pending divorce. In February 2006, A.C. was placed in an approved adoptive home.

Agency recommended adoption as A.C.'s permanent plan. Although A.C. enjoyed visits with Lindsay and had a parent-child relationship with her, the visits seemed to provoke negative feelings and behaviors in A.C. Lindsay had a history of participating in drug treatment followed by relapse. During this time, A.C. had attached to multiple caregivers and was required to endure many losses. In the social worker's opinion, A.C.'s need for permanence outweighed the benefit she would receive from maintaining a relationship with Lindsay.

In March 2006, Lindsay filed a section 388 petition for modification, seeking to have A.C. placed in her care with family maintenance services. As changed circumstances, Lindsay alleged she had been living at Serenity House for five months and testing negative for drugs. She further alleged she was bonded to A.C., with whom she maintained consistent, appropriate visitation.

Yanon Volcani, Ph.D., performed a bonding study of Lindsay and A.C. He noted Lindsay's history of parental neglect, including the removal of her infant daughter Riley, born three weeks earlier.^[2] Dr. Volcani described how A.C. greeted Lindsay by bounding into her lap, and how A.C. actively and eagerly sought contact with Lindsay throughout the study. A series of tests and techniques related to A.C.'s perceptions and attachments to significant people in her life showed Lindsay as A.C.'s primary parental figure.

Dr. Volcani acknowledged A.C. had referred to various caregivers as "mom" and "dad." It was clear to him that A.C. longed for family and was "quick to fill the template of parental roles by whoever functions as [a parent]." Nevertheless, Lindsay was the most consistent and developed parental figure in A.C.'s internal life. Referring to a body of literature emphasizing the importance of maintaining parent-child relationships, Dr. Volcani stated that severing contact between Lindsay and A.C. could have long-term dire consequences. He noted he did not have sufficient data to meaningfully comment on Lindsay's general functioning or ability to adequately parent A.C., and he acknowledged a child's need for stability and predictability.

The social worker reported A.C. had fewer incidents of enuresis and encopresis and had become less aggressive since being placed in her prospective adoptive home. However, A.C.'s aggression increased following visits with Lindsay. A.C. had shown she was able to attach to her current caregivers. The caregivers were willing to continue contact with Lindsay as long as it was beneficial to A.C.

At a contested hearing on Lindsay's section 388 petition, the court considered Agency's reports, Dr. Volcani's bonding study and his testimony. The court denied the modification petition and indicated it would consider all the evidence presented at the section 388 hearing in selecting and implementing a permanent plan for A.C. The court continued the selection and implementation hearing for proper notice under the Indian Child Welfare Act.

At the continued selection and implementation hearing two months later, the social worker informed the court A.C. had transitioned well to her prospective adoptive placement, was attaching to that family and participating in therapy. The prospective adoptive parents remained open to maintaining contact with A.C.'s biological family. The court found by clear and convincing evidence A.C. was likely to be adopted and none of the statutory exceptions to terminating parental rights applied. The court terminated parental rights and referred A.C. for adoptive placement.

DISCUSSION

I

Lindsay and Michael challenge the sufficiency of the evidence to support the court's finding A.C. was adoptable. They assert A.C., although bright, sociable and healthy, had behavior problems and no family seemed committed to adopting her.

A

When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if substantial evidence supports a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics ommitted.)

B

Here, the evidence showed A.C. was generally adoptable because she was a bright, sociable, warm and friendly four year old who was extremely verbal and inquisitive and who attached readily to those around her. There were 25 approved adoptive families willing to adopt a child like A.C. Although A.C. exhibited some aggression and experienced enuresis and encopresis, these problems were likely attributable to the emotional turmoil in her life. Indeed, once A.C. was placed in a prospective adoptive home, her aggression and other negative behaviors decreased. Even if, as Lindsay claims, A.C. is "rambunctious and difficult to manage," there is no showing she needed any type of specialized care or is otherwise unadoptable. (Cf. In re Asia L. (2003) 107 Cal.App.4th 498, 510-512 [Agency was unable to locate any families firmly committed to adopting minors who had many behavior problems and required specialized care].)

Further, at the time of the selection and implementation hearing, A.C. had been in a prospective adoptive home for three months, where she was doing well. She was able to attach to her prospective adoptive parents and called them "Mommy" and "Daddy." Substantial evidence supports the court's finding A.C. was likely to be adopted.

II

Lindsay and Michael challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights. They assert the evidence showed A.C. was strongly bonded to Lindsay, Lindsay was A.C.'s primary parental figure and terminating the parent-child relationship would be detrimental to A.C. We review the court's finding for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

A

"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 five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is 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.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

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., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) 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 Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, Lindsay regularly visited A.C., but she did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). The undisputed evidence showed Lindsay and A.C. love each other very much, have an emotional bond and pleasant weekly visits. However, the evidence also showed A.C.'s need for permanency through adoption outweighed any interest in preserving parental ties. Although A.C. viewed Lindsay as her primary parental figure, Lindsay could not meet A.C.'s day-to-day parenting needs. As Dr. Volcani admitted, even a child's psychological parent may be incapable of providing the child with stability. A.C.'s best interests required she have her custody status promptly resolved and her placement made permanent and secure.

Further, at the time of the selection and implementation hearing, A.C. had been in five different placements in a nine-month period after being moved frequently among her parents' friends and acquaintances her entire life. A.C. desperately needed a permanent, stable and nurturing environment with a family who is committed to adopting her and will allow her to develop and maintain her emotional security. Despite Lindsay's preference for a permanent plan other than adoption for A.C., the Legislature has decreed that a permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)

The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for A.C. based on her particular needs.^[3] The evidence before the court supported a finding the preference for adoption had not been overcome. (See In re Alexis M. (1997) 54 Cal.App.4th 848, 852 [decision must be viewed in context of specific facts of case].) We apply a deferential standard of review and conclude substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Lindsay's and Michael's parental rights. (In re Clifton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Lindsay was receiving reunification services in Riley's case.

^[3] Although Dr. Volcani believed that discontinuing contact between Lindsay and A.C. could have long-term dire consequences, the evidence showed A.C.'s prospective adoptive parents understood the importance of allowing A.C. to maintain contact with Lindsay, and they intend to do so.