In re Angelina G.

Filed 7/17/06 In re Angelina G. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Maria V. (Mother) appeals the judgments terminating her parental rights to her three minor daughters, Angelina, Maria, and Rebecca G. (together minors) under Welfare and Institutions Code^[1] section 366.26. Mother contends the court erred by failing to find she had a beneficial parent-child relationship with the minors so as to preclude terminating her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2002, the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b) alleging Mother had failed to protect six-year-old Angelina, four-year-old Maria, and one-year-old Rebecca from exposure to violent confrontations involving the use of physical force. Specifically, the petition alleged that in September 2002, the minors' father, Ruben G., hit Mother on the forehead causing it to bleed. He then choked and punched her in the chin. The petition stated the parents had a prior history of domestic violence and that Mother allowed a restraining order against Ruben to lapse.

According to the detention report, Mother had completed a 52-week domestic violence program in 1996 following a previous domestic violence incident. The Agency, in an effort to avoid removing the minors from the home after the most recent incident, provided Mother with a list of services and domestic violence shelters. The Agency interviewed the minors about the incident. Angelina stated she would not talk about her mom and dad because, "it ain't anyone's business." However, when asked if she had seen her mom and dad fight before, she said yes. When the social worker asked Maria why her father was in jail, Maria said it was because he hit her mother for no reason. She told the social worker her father tried to "break my mom's head off" and that she and Angelina cried when it happened. Maria stated her dad "socks [mother] everytime and he tries to kill my mom." Mother told social workers the minors never witnessed the domestic violence incident. However, Mother admitted Rebecca would whimper and cry a lot when voices were raised and that this started after the domestic violence incident.

At the jurisdiction hearing, the court declared the minors dependents under section 300, subdivision (b) and placed the minors with Mother. The court ordered Mother to participate in services, including domestic violence counseling, individual therapy and parenting classes.

During the next six months, Mother lived with the minors in their maternal grandfather's house. Mother found a job, and started parenting classes and domestic violence treatment. The Agency requested an additional six months of services. At the June 2003 six-month hearing, the court continued dependency, reunification services and placement of the minors with Mother.

In August 2003, the Agency filed petitions under section 387. The petitions alleged Mother no longer lived with minors' maternal grandfather and she had asked the Agency to place the minors with relatives. She said she was unable to provide a safe home for the minors at this time and needed time to find a job and a place to live. The social worker noted Mother had not been compliant with court ordered services. The court sustained the section 387 petitions, placed the minors with their aunt and ordered Mother to comply with her case plan. In March 2004, however, the minors' aunt stated that due to a family emergency, she would be unable to take care of the minors. The minors were removed from their aunt's care and placed in a foster home.

The status review report prepared in May 2004 noted Mother had obtained an apartment and was in the process of furnishing the home and securing daycare for the children. The social worker noted in the months after the filing of the section 387 petitions, Mother had not participated in the court ordered services. Mother had since started participating in a parenting class and a weekly domestic violence group. Mother had unsupervised visits with the minors three or four times a week. The minors enjoyed their time with Mother. The Agency recommended an additional six months of services. The court continued reunification services for six more months.

In November 2004, the social worker reported that two women turned Rebecca into the police after they found her wandering on the street by herself, naked and filthy. Mother stated she had taken the minors to the dentist and after returning home, she fell asleep. She stated a family friend had left the door open thereby allowing Rebecca to leave the house. The social worker noted Mother did not seem to understand the seriousness of the event. As a result, the minors' visits with Mother were changed to supervised visits.

The report further noted Mother had moved to a new apartment and lived with roommates. When the social worker attempted to visit the new home, the address Mother provided did not exist. The social worker stated Mother still had not completed a parenting course, domestic violence group, or individual therapy. The report noted Angelina and Maria said they loved their mother and hoped to be with her soon. However, the report also noted the girls loved living with their foster mother and they felt comfortable and safe in their current home.

In a November 2004 addendum report, the social worker stated the minors' foster mother of about eight months gave notice to the Agency stating she feared Mother and was having difficulty working with her. The social worker recommended Mother submit to a psychological evaluation. Mother had only attended three therapy sessions and had missed 10 sessions. She had not complied with visitation guidelines and had taken the minors to her house, which had not been approved. The court ordered additional services and scheduled an 18-month review hearing.

In February 2005, the Agency recommended the court terminate services and set a selection and implementation hearing under section 366.26. The social worker noted Mother had moved again and was living with a friend. Mother was not attending county-approved programs. She also had not attended her psychological evaluation and never addressed drug testing. Her visits with the minors were to remain supervised until she provided the Agency with a clean drug test. At the March 2005 review hearing, the court considered the Agency's review reports and found Mother had not made substantive progress with the provisions of her case plan. Specifically, she had not submitted to a psychological evaluation, failed to drug test and had not secured an approved residence. The court terminated services and set a section 366.26 hearing.

Mother filed a writ petition in May 2005, which this court granted on one issue, finding that notice under the Indian Child and Welfare Act (ICWA) was insufficient. (Maria V. v. Superior Court (June 22, 2005, D046133) [nonpub. opn.].) In July 2005, the juvenile court continued the matter to allow the Agency to comply with the ICWA.

In a July 2005 addendum report, social worker Sunny Schade reported the minors had lived in their current foster home for the last eight months and were doing well in this placement. However, the foster parent was having difficulty with Mother during the supervised visits. The minors had already been removed from their prior foster placement because of Mother's behavior. Mother supposedly had participated in two counseling sessions and she was participating in a domestic violence support group. Mother was not participating in drug testing and was not employed. Instead, she was depending on her boyfriend for financial support and expecting another child.

In her section 366.26 assessment report, Schade noted the minors were in excellent health and developmentally on target. The girls were doing well in school and were doing well in therapy. Schade believed the minors were very adoptable. Schade noted the relationship between the minors and Mother was a loving and affectionate one. The minors enjoyed visiting with Mother but she had been unable to meet their physical, mental, or emotional needs for quite some time. Even though the minors loved their mother, the benefit of continued contact did not outweigh the benefit the minors would receive from placement in a stable, loving and safe home. The minors told Schade they would like to live with their mother but Schade believed the minors understood that was unlikely to happen. In therapy, Angelina stated that her mother's new baby would probably enter foster care "because that is just the way her mother is."

In September 2005, Schade provided the court with information supporting a finding that the ICWA did not apply. The court then scheduled a section 366.26 hearing.

At the section 366.26 hearing Angelina and Maria's therapist, Dwayne Kruse, testified as to their progress in therapy and issues associated with the dependency proceedings. Kruse noted the girls stated they did not want to be adopted and hoped to be with their mother. Kruse, however, further noted the girls had the ability to positively attach to other caregivers and expressed to him that they wanted to have a final resolution of their case.

Psychologist Thomas Barnes conducted bonding studies in this case to determine Mother's relationship with the minors. The purpose of the studies was to assess if there was an emotional attachment between Mother and the minors. Barnes noted Angelina ran to Mother and was very happy to be with Mother. Barnes believed there was a strong emotional attachment between the two. He further believed Angelina would suffer detriment if she were no longer allowed to see her mother. Barnes found the same to be true between Maria and Mother. With respect to Rebecca, she appeared happy to play with the toys Mother brought her but she was not emotionally upset when the visit ended. Barnes did not give an opinion as to how the minors would react to the termination of parental rights because he was not familiar with the minors' psychological backgrounds. He also did not provide an opinion as to whether adoption was in the minors' best interests. He did state the minors were attached to each other and if placed together, it would be less difficult for them than if adopted individually. Barnes further testified if the girls lived in a stable home instead of being in and out of different placements, that would be a more ideal situation even assuming they would still have to go through the detriment of Mother losing her parental rights.

Social worker Schade testified that she agreed with Barnes concerning the grief and loss Angelina and Maria would suffer if parental rights were terminated. However, she considered it fairly common for minors like Angelina and Maria to express not wanting to be adopted. Schade noted the minors had been dependents of the court for over three years and had been in and out of several placements. Although she believed Mother acted as a parental figure for the girls, it was not always a positive relationship. Schade believed Angelina felt responsible for Mother and worried about her. Schade also believed the benefit of a permanent, stable home outweighed the benefits of having the girls maintain a relationship with Mother. She testified when she told Angelina and Maria she had identified an adoptive home for them, they became very excited about it and did not cry or protest.

The court further considered Schade's addendum report where she noted Dr. Warren O'Meara's psychological evaluation reports for each minor. Dr. O'Meara believed Angelina needed a stable family environment where she would feel safe. He also believed if she were separated from her mother, she would be able to work through the transition. Dr. O'Meara did have concerns Angelina might have some suicidal ideations although she had no plans in regard to suicide. Schade scheduled a psychiatric consultation with a psychiatrist who did not believe Angelina to be suicidal or that she needed medication. A few weeks later, the psychiatrist visited with Angelina again and he did not change his opinion of the situation. As to Maria, O'Meara noted she told him, "I want a family." He believed her best interests would be served by adoption.

After considering the evidence, the court found the minors were likely to be adopted and none of the exceptions to section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred the minors for adoption.

DISCUSSION

Mother contends the evidence was insufficient 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 her parental rights. Mother asserts she has a beneficial relationship with the minors and terminating parental rights would sever the close bond between them.

A

We review the court's finding the beneficial relationship exception does not apply under the substantial evidence standard. (In re Casey D. (1999) 70 Cal.App.4th 38, 53; 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 pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 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.)

If reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster case. (§§ 366.21, 366.22, 366.26.) Adoption 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 would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); see also 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.)

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

The court found Mother regularly visited the minors. Thus, we examine only whether substantial evidence supports the court's finding she did not show she has a beneficial relationship with the minors. Admittedly, the evidence shows Mother had a relationship with the minors, but it was not shown to be a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Mother first asserts the bonding studies show she has a beneficial relationship with the minors. Barnes conducted the bonding studies between the minors and concluded Mother, Angelina and Maria shared a strong emotional bond. Rebecca, on the other hand, was not upset when the visit ended. Barnes further stated Angelina and Maria would experience some emotional detriment if parental rights were terminated. However, Barnes did not state the minors would benefit more from maintaining a relationship with Mother than they would by being adopted. Further, the studies did not address whether there was a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).

The social worker acknowledged Mother had a relationship with the minors but believed there was no beneficial parent-child relationship with the minors and any benefits the minors derived from the relationship with Mother were outweighed by the stability and security the minors would gain from being adopted. When told a prospective adoptive home had been found that would adopt all three minors, the girls became excited. 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.)

In addition, to establish the section 366.26, subdivision (c)(1)(A) exception, Mother needed to show the minors would suffer detriment if her relationship was terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother asserts she satisfied this requirement because Barnes believed Angelina and Maria would experience emotional detriment when the relationship ended. Barnes, however, did not state this detriment outweighs the benefits the minors would gain from being placed together in a home for adoption. He instead testified that if the minors lived in a stable home environment versus an unstable environment such as the one they have been living in for the last three years, the stable environment would be the most ideal situation for the minors even though they would still have to go through the detriment of Mother losing her parental rights.

Moreover, the minors' psychological evaluation showed Angelina's need for a stable family environment. Dr. O'Meara believed if Angelina was in a stable home where she would feel safe, she would be able to work through the transition. Concerning Maria, Dr. O'Meara stated her best interests would be served by adoption and Maria herself expressed that she "want[s] a family." Although the minors would grieve and feel a sense of loss if they no longer had contact with Mother, there was no showing they would be "'"greatly harmed."'" To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law . . . ." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

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 three years of dependency proceedings, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the section 366.26, subdivision (c)(1)(A) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)

DISPOSITION

The judgments are affirmed.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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