In re Aryanna W.

 

 

 

 

 

 

 

 

 

 

Filed 7/11/13  In re Aryanna W. CA4/1

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 
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In re ARYANNA W., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,               Plaintiff and Respondent,               v.   ANGELICA W.,               Defendant and Appellant.	D063521       (Super. Ct. No. J518191)

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Kenneth J. Medel, Judge.  Affirmed.

 

            Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

 

            Angelica W.
appeals a juvenile court order terminating her href="http://www.fearnotlaw.com/">parental rights to her minor daughter,
Aryanna W., under Welfare and Institutions Code section 366.26.href="#_ftn1" name="_ftnref1" title="">[1]  Angelica challenges the sufficiency of the
evidence to support the court's finding the beneficial parent-child
relationship exception to adoption did not apply to preclude terminating her
parental rights.  We affirm the order.

FACTUAL AND
PROCEDURAL BACKGROUND

            In August
2011, the court declared three-year-old Aryanna a dependent under section 300,
subdivision (b) and removed her from Angelica's custody based on findings
Angelica had a mental illness that rendered her unable to provide adequate care
for Aryanna.  Earlier that month,
Angelica had called the child welfare hotline to say she could no longer care
for Aryanna and had considered killing herself. 
She said she regularly self-medicated with marijuana and alcohol and had
a history of depression and suicidal thoughts for which she had previously been
hospitalized.  The court placed Aryanna
in out-of-home care and ordered Angelica to participate in reunification
services, including counseling, therapy, parenting education, substance abuse
testing and treatment and supervised visits with Aryanna.

            During the
next six months, Angelica did not avail herself of services.  She was terminated from therapy because she
had been absent for six consecutive weeks, and completed only two parenting
classes.  Angelica consistently failed to
show up for visits, which caused Aryanna to be disappointed and angry, and
exacerbated Aryanna's symptoms of depression. 
Consequently, the San Diego County
Health and Human Services Agency (Agency) filed a petition for modification
under section 388 to have the court terminate Angelica's services before the
12-month date.  The court found the Agency
made a prima facie showing and ordered a hearing on the petition.

            Angelica's
visits with Aryanna continued to be inconsistent.  During one visit she did attend, Angelica
became outraged about the way Aryanna's caregiver had cut her hair.  Angelica began yelling and threatened to
report the caregiver for child abuse. 
This upset Aryanna, who began to scream and cry.  Aryanna told the social worker she did not
want to see Angelica and wanted to go home to her caregiver.  Angelica refused to apologize.  In the social worker's opinion, Angelica did
not understand how her actions affected Aryanna, who was emotionally fragile,
and Angelica was not able to provide Aryanna with the emotional support she
needed to form a secure bond.

            Angelica
was on step 2 of her 12-step program. 
She had not attended her support group at the Veterans Administration
hospital in more than a month, and still did not have a sponsor.  She attended seven therapy sessions and
missed three.

            At the
combined six-month review and section 388 hearing, the court granted Agency's
modification petition.  The court found
there was a substantial likelihood reunification would not occur because
Angelica had not regularly visited Aryanna, participated in services or made
substantive progress with her case plan. 
The court terminated services and set a section 366.26 selection and
implementation hearing.

            According
to an assessment report, Aryanna had a diagnosis of adjustment disorder and had
emotional issues related to her separation from her mother.  Angelica was now visiting Aryanna once a
week.  Aryanna was excited to see
Angelica, and talked about her on the way to visits.  She also talked about her dad, her caregiver
and her therapist.  During most of the
visits, Angelica was energetic and positive, but on three occasions, she was
depressed and watched Aryanna with a blank stare.  Angelica either ignored Aryanna or declined
her invitation to play, which left Aryanna feeling unloved and confused.  Aryanna had difficulty leaving visits, but
would cheer up when she arrived at the caregiver's home.  Angelica began missing service appointments
again, failed to attend a bonding study and became difficult to contact by
telephone.

            Aryanna
said she had two moms:  Angelica and her
caregiver.  Aryanna's therapist reported
that Aryanna proudly told other children in the waiting room that the caregiver
is her mom.  Aryanna was generally
adoptable and the caregiver wanted to adopt her.

            In January
2013, Angelica filed a section 388 petition seeking to have the court place
Aryanna with her and vacate the selection and implementation hearing.  The petition alleged Angelica's circumstances
had changed and it was in Aryanna's best interests to grant the petition.  The court ordered an evidentiary hearing on
the petition, to be combined with the selection and implementation hearing.

            In an
addendum report, the social worker noted Angelica had not attended her group
therapy meetings for three months and had not attended any Alcoholics Anonymous
meetings for four months.  She did attend
therapy for a few months before quitting. 
The therapist believed that although Angelica had made some progress,
she needed continued therapy to meet her treatment goals.  She refused to consider taking prescription
medications.  Angelica was recently
arrested for a domestic dispute with her husband, who obtained a restraining
order against her.

            At the
combined hearing, Angelica's therapist testified Angelica had attended 13
therapy sessions but stopped treatment before reaching her goals.  The therapist could not evaluate Angelica's
progress because she had not seen her for six months.

            Robert
Kelin, Ph.D., testified he conducted a 60- to 90-minute bonding study involving
Angelica and Aryanna and concluded they had a moderate bond.  In Dr. Kelin's opinion, there was
"potential" for harm to Aryanna if that bond were severed, but he
could not predict what the effect would be, and he had no opinion as to what
would be best for Aryanna's long-term care.

            Social
worker Jessica Ahlberg testified the quality of Angelica's visits had improved,
but her circumstances had not otherwise changed because she had not completed
the requirements of her case plan. 
Angelica had not ameliorated the risks that caused Aryanna to become a
dependent.  Ahlberg recommended adoption
as Aryanna's permanent plan.  Although
there was a relationship between Angelica and Aryanna, it did not outweigh the
benefits Aryanna would gain from being adopted.

            Angelica
testified she knew what the Agency expected of her with respect to her case
plan, but she did not start participating in services until January 2012.  She had a diagnosis of clinical depression
but stopped taking her prescription medication. 
Angelica attended nine of 28 drug treatment sessions.  She attended 13 of 24 therapy sessions,
stopped going, and started again in February 2013.

            After
considering the evidence and arguments of counsel, the court denied the section
388 petition, finding Angelica had not met her burden of showing changed
circumstances or that it would be in Aryanna's best interests to be returned to
Angelica's custody.  The court further
found Aryanna was likely to be adopted and none of the exceptions to adoption
applied.  The court terminated parental
rights and referred Aryanna for adoptive placement.

DISCUSSION

            Angelica
challenges the sufficiency of the evidence to support the court's finding the
beneficial parent-child relationship exception to adoption did not apply to
preclude terminating her parental rights. 
She asserts she regularly and consistently visited Aryanna.  Angelica further asserts she had an
emotionally significant and positive relationship with Aryanna and the benefits
of continuing the relationship were not outweighed by the benefits of adoption.

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 termination of parental rights would be
detrimental to the child under
one of the specified statutory exceptions. 
(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P.
(2002) 104 Cal.App.4th 395, 401.)

            Section
366.26, subdivision (c)(1)(B)(i) 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 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 Jason J. (2009) 175
Cal.App.4th 922, 936.)

            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.)

            We review
an order terminating parental rights for substantial
evidence.  (In re Autumn H.,
supra, 27 Cal.App.4th at p. 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 consider the credibility of
witnesses, attempt to 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 Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby
Boy L. (1994) 24 Cal.App.4th 596, 610.) 
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.)

B

            Here,
Angelica's visits with Aryanna were initially inconsistent, but eventually
became consistent.  Nevertheless,
Angelica 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)(B)(i).

            Angelica
did not avail herself of services in order to ameliorate the risks that caused
Aryanna to become a dependent child.  She
knew what was necessary in order to reunify with Aryanna, but was unwilling or
unable to put Aryanna's needs before her own. 
Indeed, shortly before the selection and implementation hearing,
Angelica was arrested for a domestic dispute and became the subject of a
restraining order.  In this regard,
Angelica did not act in a parental role.

            Although
Aryanna was generally excited to see Angelica at visits, she was occasionally
frightened by Angelica's demeanor, inappropriate statements and angry
outbursts.  At times, Angelica ignored
Aryanna or failed to engage her, which exacerbated Aryanna's emotional
problems.  Angelica did not understand
how her actions negatively affected Aryanna and did not provide her with
emotional support.  Despite having
difficulty separating from Angelica after visits, Aryanna fully recovered once
she returned home to her caregiver. 
There was no evidence Aryanna asked for Angelica between visits or was
otherwise adversely affected by Angelica's absence from her daily life.  "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.)  The love and affection Angelica shared with
Aryanna during visits was not enough to show Aryanna had a
" 'significant, positive, emotional attachment' " to
Angelica such that terminating the parent-child relationship would result in
great harm to Aryanna.href="#_ftn2"
name="_ftnref2" title="">[2]  (In re
Jason J., supra, 175 Cal.App.4th
at pp. 936-938; In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.)

            Further,
Angelica did not show that maintaining the parent-child relationship outweighed
the benefits of adoption for Aryanna.  In
the social worker's opinion, Aryanna's need for stability, safety and
permanency outweighed any possible detriment that would be caused by severing
the parental relationship.  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 Aryanna.  We do not reweigh the evidence or substitute
our judgment for that of the juvenile court. 
(In re Casey D., >supra, 70 Cal.App.4th at pp. 52-53.)

            Contrary to
Angelica's position, a permanent plan other than adoption would not serve
Aryanna's best interests because adoption is the only option that would provide
her with the stability and permanence she so desperately needs.  (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].)  Substantial evidence
supports the court's finding the beneficial parent-child relationship exception
did not apply to preclude terminating parental rights.

DISPOSITION

            The order
is affirmed.

 

                                                           

HUFFMAN, J.

 

WE CONCUR:

 

 

                                                           

BENKE, Acting P. J.

 

 

                                                           

McDONALD, J.