In re Anthony S.

Filed 7/19/07 In re Anthony S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Julia C. Kelety, Judge. Affirmed.

Norris H.^[1] and Lori S. (together parents) appeal a judgment terminating their parental rights to their minor children, Anthony S., Andre S., and Tatiana S. (collectively the minors) under Welfare and Institutions Code section 366.26.^[2] Norris challenges the sufficiency of the evidence to support the court's finding that the minors are adoptable. Lori joins in Norris's argument and challenges 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 her parental rights. Norris joins in Lori's argument.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2004 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of two-year-old Anthony and one-year-old Andre under section 300, subdivision (b). The petition alleged parents engaged in violent, physical altercations in the home and placed the boys at substantial risk of serious harm. Tatiana was born in December 2004 and the Agency filed a petition on her behalf under section 300, subdivision (b) asserting Tatiana was at risk because her siblings had been exposed to violence in the home.

According to the Agency's reports, Norris choked, pushed and lay on top of Lori when she was eight months pregnant. Parents admitted to using drugs in the past but claimed they had overcome their addictions and were now sober. At the jurisdiction and disposition hearing, parents submitted to the allegations of the petition. The court declared the minors dependents and removed them from parents' custody. The court ordered parents to submit to psychological evaluations and participate in therapy, parenting classes and domestic violence education.

During the next six months, Lori participated in some drug treatment and attended therapy sessions. She continued to have contact with Norris and minimized the severity of the domestic violence incidents. In June 2005 parents had another physical altercation during which Lori suffered a fractured cheekbone. Norris was incarcerated, but Lori visited him in jail. The social worker recommended the court terminate services and schedule a section 366.26 selection and implementation hearing. At the six-month review hearing, the court terminated Norris's services but ordered an additional six months of services for Lori.

During the next 12 months, Lori continued to participate in services and regularly visited the minors. She successfully completed a domestic violence program. Before the 18-month review hearing, however, Lori tested positive for alcohol use and was suspended from a substance abuse program. Social workers reported Lori had sustained injuries to her head and had a swollen lip. Lori claimed she received the injuries from a fall. Lori later admitted abusing drugs and planned to enter a detoxification program. The Agency believed Lori had not made substantive progress with her treatment plan. The court terminated reunification services and scheduled a section 366.26 hearing.

The social worker prepared an assessment report concluding the minors were adoptable because of their young age and good physical health. All three minors exhibited signs of developmental delays and were receiving treatment to address their needs. Anthony and Andre had been placed in the same home. Their caregivers received an approved adoptive home study and were committed to adopting both boys.

Tatiana's evaluation reports concluded she suffers from hip dysplasia and is required to wear corrective shoes. She is to be assessed by a neurologist for observed behavioral abnormalities. Tatiana will also undergo an evaluation to determine whether her abnormalities are related to a genetic disorder of Fetal Alcohol Syndrome. Tatiana remains placed in the home of a nonrelative extended family member caregiver with whom she has lived since she was two weeks old. The caregiver is not able to adopt Tatiana but the social worker identified numerous other families willing to adopt her.

The social worker believed Lori did not have a beneficial relationship with the minors that outweighed the benefits of adoption. Visits between Lori and the minors regularly took place, were generally positive and the minors were happy to see her. However, Lori had difficulty meeting their needs and supervising all three minors at the same time. The minors did not show any signs of distress at the end of visits. The minors visited Norris at the jail. Anthony exhibited anxiety before his visits with Norris and had difficulty readjusting after returning home. He suffered tantrums, was afraid to go to school, and appeared anxious when he was out of his caregivers' presence.

Social worker Chrissey Barnes testified at the section 366.26 hearing. She considered the minors adoptable based on her assessment of the minors' characteristics, including ages, behavioral development and medical status, and whether families existed that were interested in adopting children like minors. Barnes observed Anthony and Andre in their foster homes and noticed they called their caregiver "mommy." Barnes did not have concerns about the caregivers' ability to care for them or their commitment to adopting them.

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)(A) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoption.

DISCUSSION

I

Norris contends the court erred by finding that the minors were likely to be adopted within a reasonable time because the evidence showed the minors suffered from significant behavioral, emotional and physical problems. Lori joins in Norris's assertions.

A

When reviewing a court's finding that 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 finding of the juvenile court, we uphold the finding. 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. (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 some evidence supports a contrary conclusion. (Id. at pp. 52-53.) The parent 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 within a reasonable time. ( 366.26, subd. (c)(1); 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 omitted.)

B

The social worker's assessment report concluded the minors were adoptable.

Anthony and Andre are physically in good health. Andre shows signs of developmental delays and may require special education services. Anthony exhibits some behavioral problems and has struggled with toilet training. He requires consistent supervision but goes to preschool every day and is doing extremely well in the program. Despite their problems, the record shows the boys currently live with caregivers willing to adopt them. The caregivers are aware of the boys' needs and have experience in handling children that suffer from developmental disabilities. The social worker reported Andre's and Anthony's behavioral problems had improved while in the custody of their caregivers. The social worker testified at the section 366.26 hearing that the caregivers remain committed to adopting the boys and the record shows they obtained an approved adoptive home study. In the event the caregivers cannot adopt the boys, there are 12 families interested in adopting a boy like Anthony and 18 families available for Andre. The evidence of the additional families "willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of a child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.)

The record shows Tatiana is likely to be adopted within a reasonable time.

She is young, adorable and gets along well with other children. Tatiana does suffer from hip dysplasia and a foot deformity, requiring physical therapy. It is possible these conditions may require surgery in the future. Tatiana also has exhibited behavioral problems and a neurological evaluation is scheduled to assess the extent of her problems. Tatiana's behavior, however, showed some signs of improvement after her caregiver began spending more time with her. Further, the social worker believed that Tatiana's age, health concerns and upcoming neurological evaluation would not preclude a finding of adoptability even though Tatiana is not currently living with a prospective adoptive family. This is particularly true considering that 14 families in San Diego and 57 families outside of San Diego are willing to adopt a child like Tatiana. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) The court was entitled to find the social worker credible and give great weight to her assessment and testimony. The evidence of Tatiana's adoptability is not based on the existence of a prospective adoptive parent willing to adopt her. (Id. at p. 1651.) Substantial evidence supports the court's finding the minors were likely to be adopted within a reasonable time.

II

Lori contends the evidence is insufficient to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating her parental rights. She asserts she regularly visited the minors, had unsupervised visits with them, and they would benefit from continuing the parent-child relationship because they are all strongly attached to her. Norris joins in Lori's assertions.

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 pass on 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, 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., supra, 101 Cal.App.4th at p. 947; In re Geoffrey G., supra, 98 Cal.App.3d 412, 420.)

"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)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26, subdivision (c)(1)(A) 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 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. (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 significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Norris had been in prison for most of the dependency. He did not have regular contact with the minors or participate in his case plan. The visits that did take place produced fear and anxiety in Anthony. Although Lori regularly visited the minors, she did not meet her burden of showing her relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption. During visits Lori played with the minors and brought them gifts. Anthony and Andre were happy to see Lori and sometimes displayed affection. However, Tatiana did not show signs of a strong attachment with Lori and none of the minors showed signs of distress at the conclusion of visits. In essence, there was no evidence of a "significant, positive, emotional attachment" from the minors to Lori to conclude terminating the parent-child relationship would result in great detriment to the minors. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The evidence instead showed that after more than 18 months of dependency proceedings, the minors' need for permanence and stability through adoption outweighed any interest in preserving parental ties.

Further, the problems leading to dependency were serious. Lori continued to struggle with drug abuse and remained in contact with Norris even after months of services. Lori also had difficulty caring for each child at the same time and the social worker believed Lori did not have a parental role in the minors' lives and lacked the ability to provide for the minors' daily care. The court was entitled to find the social worker's opinion and assessment credible and persuasive. 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; cf. In re Amber M. (2002) 103 Cal.App.4th 681.) Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding that the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] Norris is the father of Anthony S. and Andre S. and the alleged father of Tatiana S.

^[2] All statutory references are to the Welfare and Institutions Code.