In re E.P.

Filed 10/18/07 In re E.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of San Diego County, Gary M. Bubis, Commissioner. Affirmed in part; reversed in part, and remanded with directions.

Amber P. appeals judgments terminating parental rights to her children, E.P., A.P., and Edward P. She also appeals an order denying a hearing on her petition for modification under Welfare and Institutions Code section 388. (Unless specified, all statutory references are to the Welfare and Institutions Code. Rule references are to the California Rules of Court.)

We affirm the order denying a hearing under section 388 and the judgments terminating parental rights to A.P. and Edward P. We conclude substantial evidence does not support a finding that E.P. is likely to be adopted within a reasonable time, and reverse the judgment terminating parental rights to E.P.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2005, E.P., A.P., and Edward P. (children), then ages four, three, and one, became dependents of the juvenile court because of constant exposure to homelessness, neglect, substance abuse and parental absence. Their mother, Amber P., had a lengthy history of criminal activity, drug use and recidivism. The children's alleged fathers were drug dependent, incarcerated or unidentified; none was involved with the children. The San Diego Health and Human Services Agency (Agency) had received at least 20 prior child welfare referrals on behalf of the children, and E.P. and A.P. had been dependents of the juvenile court in 2004.

The children were placed together in foster care. A.P. and Edward adjusted well, and were happy and well behaved. E.P. had significant behavior problems. He hit his siblings, became uncontrollably angry, and displayed aggressive behaviors toward himself and others.E.P. was diagnosed with Attention Deficit Hyperactivity Disorder, Posttraumatic Stress Syndrome and Major Depressive Disorder (rule out), and placed on a number of psychotropic medications. The record also indicates E.P. was treated for an attachment disorder.

Amber was incarcerated on probation violations from May to November 2005. At the six-month review hearing in January 2006, the court found she made no progress in mitigating or alleviating the causes of the dependencies, and terminated reunification services.

In May 2006, E.P.'s behavior deteriorated and he became uncontrollable. The foster parents asked the Agency to remove him from their home.They acknowledged they did not have the skills to meet E.P.'s therapeutic needs at that time.The Agency could not locate a foster care placement for E.P. and he was placed at Polinsky Center with one-to-one supervision. In August, he was moved to a therapeutic group home.

The foster parents wanted to adopt A.P. and Edward. They expressed their commitment to work with E.P. and to provide him a permanent home if he received treatment. They visited him weekly at the group home. Amber also visited E.P. and he enjoyed their visits.

On May 30, 2006, the Agency reported it had not located a prospective adoptive home willing to take all three children. The social worker believed it was in the best interests of A.P. and Edward to live with the foster family permanently butacknowledged E.P.'s future with them was uncertain. At the Agency's request, the court continued the section 366.26 hearing for 90 days to allow the Agency to assess permanency placement options.

In August 2006, the foster parents informed the Agency their circumstances had changed and they were willing to have E.P. return to their care. In September, E.P. was detained for 72-hours after he threatened to kill another child and staff at his group home. The foster parents reiterated their commitment to E.P. In early October, E.P. began spending weekends at the foster home. The Agency expected his transition back to the foster home would be completed by October 26, 2006.

The contested section 366.26 hearing was heard on October 24, 2006. Amber filed a modification petition asking the court to return the children to her care. The court found that the modification petition did not state a prima facie case for relief, and denied an evidentiary hearing on the petition. ( 388.)

At the section 366.26 hearing, Dr. Raymond Murphy, a forensic psychologist, testified he observed the interactions between Amber and the children in September 2006. Amber was appropriate and affectionate with the children. The children responded positively to her. E.P.'s behaviors were difficult, but Amber appeared to deal with him appropriately. Dr. Murphy concluded that Amber met the emotional needs of the children, and appropriately and affectionately redirected and disciplined them. He opined that "all three [] children are well bonded to their mother. . . . There is little doubt that total separation of the children from their mother will result in emotional disruption and difficulties in the future."

Social worker Paula Thomas opined that each of the children was adoptable. Although E.P. had problems, he was only six years old, spirited, healthy and outgoing. The foster parentswere aware of E.P.'s problems. They made extensive arrangements to meet his needs and expressed a desire to adopt him. He was scheduled to return to the foster home the next day.

Thomas observed approximately 22 visits between Amber and the children. Amber was attentive to the children's needs during visitation. Her parenting skills improved during the course of visitation. Amber still did not understand the impact of her drug use on the children. Thomas opined there was a "slight emotional bond" between the children and their mother, but it was not a significant parent-child bond.

The court determined the children were likely to be adopted and no exceptions applied to preclude termination of parental rights. It found that adoption was in the children's best interests and terminated parental rights.

On June 26, 2007, this court asked the parties to submit simultaneous letter briefs on its proposal to take judicial notice of the court's order of April 23, 2007 continuing E.P.'s placement under a permanency plan goal of adoption. This court was later informed that the juvenile court, on June 22, authorized E.P.'s emergency placement in a group home after the foster parents had asked the Agency to remove him from their home.

This court asked the parties for further briefing on whether this case lies within the exception to the general rule prohibiting the reviewing court from considering postjudgment evidence in a juvenile appeal from an order terminating parental rights. (In re Zeth S. (2003) 31 Cal.4th 396, 399-400. (Zeth S.).) For reasons we will discuss below, on our own motion, we take judicial notice of the court's orders of April 23 and June 22, 2007, filed in E.P.'s dependency case. (Evid. Code  459, 452, subd. (d); Code Civ. Proc.  909.)

DISCUSSION

A

Amber contends the court erred when it did not comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C.  1901 et seq.; rule 5.664.) She asserts the court abused its discretion when it summarily denied her section 388 modification petition without a hearing. Amber asserts insufficient evidence supports the court's findings that each child was adoptable and the beneficial parent-child relationship exception to termination of parental rights did not apply. ( 366.26, subds. (c)(1), (c)(1)(A).)

B

Amber claims the Agency and the court did not meet their duty to inquire whether the children may be Indian children and to notice the Bureau of Indian Affairs (BIA). She argues she informed the Agency and the court that she may have Indian ancestry. In addition to her possible Indian ancestry, Amber asserts the Agency and the court did not inquire into the ancestry of the children's alleged fathers. Amber contends the information regarding ICWA applicability was uncertain, and the court erred when it found ICWA did not apply without additional inquiry.

Under ICWA, the Agency has an affirmative duty to inquire whether a child who is the subject of dependency proceedings "is or may be an Indian child" and, when appropriate, to provide notice to any tribe or potential tribes, the parent, any Indian custodian of the child and, under some circumstances, to the BIA. (25 U.S.C.  1912(a); rule 5.664(d), (f).) In California, the Agency is charged with obtaining "all possible information" about a dependent child's Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 630 (Louis S.).)

The parties do not consider the threshold issue whether any of the alleged fathers was a "parent" within the meaning of ICWA. ICWA expressly excludes from the definition of "parent" an "unwed father where paternity has not been acknowledged or established." (25 U.S.C.  1903(9); In re Daniel M. (2003) 110 Cal.App.4th 703, 708.) Under California law, a parent of an Indian child does not include "an unwed alleged father where paternity has not been determined or acknowledged." (Rule 5.664(a)(4).) This court has previously held that rule 5.664(a)(4) (then rule 1439(a)(4)) is substantively indistinguishable from title 25 United States Code section 1903(9). (In re Daniel M., supra, 110 Cal.App.4th at p. 708.)

There is no evidence in the record to show that any of the alleged fathers was or had been married to Amber. Amber filed a paternity declaration in which she stated she was never married to Edward's alleged father. There are no paternity declarations in the record for E.P. and A.P. Thus, under ICWA, the alleged fathers were "unwed fathers." (25 U.S.C.  1903(9); rule 5.664(a)(4); In re Daniel M., supra, 110 Cal.App.4th at p. 709.)

Without an acknowledgment or determination of paternity, an unwed father is not a parent of an Indian child, and the provisions of ICWA do not apply (at least through the paternal side). Amber does not assert on appeal that any of the alleged fathers "acknowledged or established" paternity. (25 U.S.C.  1903(9); In re Daniel M., supra, 110 Cal.App.4th at p. 708.) "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's ... issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) We conclude this issue has been forfeited on appeal.

With respect to inquiry into Amber's possible Indian ancestry, the record shows on May 4, 2005, Amber completed a Parental Notification of Indian Status form in which she indicated she may have Indian ancestry. However, on that date, her attorney (Counsel) informed the court, "the Indian Child Welfare Act . . . DOES NOT apply," and the court subsequently found that ICWA did not apply. On May 23, county counsel asked Counsel for permission to speak to Amber about the possibility ICWA might apply. Counsel responded, "I don't think it applies. She says her grandmother was adopted. She doesn't know if her mother had any Indian American heritage." The court stated that it had previously found ICWA did not apply, and again found that it did not apply.

The record shows that the Agency and the court fulfilled their duty to inquire whether the children were or may be Indian children. (25 U.S.C.  1912(a); rule 5.664(d).) Although Amber at one point believed she might have Indian heritage, she informed the court she did not know whether she had Indian heritage. The court did not know or have any reason to know an Indian child was involved in the dependency proceedings. (25 U.S.C.  1912(a).) In the absence of any evidence giving the court probable cause to believe the children were Indian children, the notice provisions of ICWA were not triggered. (Rule 5.664(d)(4).) There was no error.

C

Amber contends the court abused its discretion when it arbitrarily denied a hearing on the merits of her petition seeking the children's return to her care. She asserts she established a prima facie case of changed circumstances in that she was employed full-time and could support the children, and recently completed a 10-week parenting class. In August 2006, she gave birth to a healthy baby who remained in her custody. Amber also stated the children's best interests would be served by a continuation of the parent/child relationships, citing Dr. Murphy's favorable bonding study.

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioner has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) A court need not grant an evidentiary hearing on the modification petition if the facts alleged in the petition do not state a prima facie case. ( 388, subds. (a), (c).)

The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.)

We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G., (1999) 77 Cal.App.4th at p. 808.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action. . . .' " (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (Ibid.)

The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Here, the court read and considered the modification petition. The court also considered the section 366.26 report and addendum, and took judicial notice of the findings, orders and the terms of the reunification plan.

In view of Amber's extensive criminal history and substance abuse, the court stated the alleged facts, if proved, would not allow a finding of changed circumstances. The court reasoned that Amber did not participate in therapy and did not complete a drug rehabilitation program. The only evidence Amber could present concerning her sobriety was her assertion she had been clean since January 2006. In view of her past instability, it was not in the children's best interests to return to her custody. E.P., in particular, had enormous needs and required "a very competent and a very responsible caretaker."

The court properly exercised its legal discretion when it denied an evidentiary hearing on Amber's petition for modification. The record shows Amber was resistant to drug treatment programs and had absconded from a court-ordered program in violation of the terms and conditions of probation. She did not complete a drug treatment program. Amber tested positive for methamphetamine in January 2006, and claimed a Narcotics Anonymous meeting had triggered her drug use. She could not produce a urine sample for a drug test in May 2006, when she was approximately six months pregnant.

Amber had a 10-year history of recidivist criminal activity and had been incarcerated on probation violations. She was currently on parole. Further, Amber did not show she had suitable and stable housing for herself and the children. She lived with the children's maternal grandmother, who tested positive for methamphetamine when the children were in her care and physically abused E.P.

The record clearly establishes the court did not abuse its discretion when it denied a hearing on the merits of Amber's petition for the children's return to her care. ( 388, subs. (a), (c); rule 5.570(b).)

D

Amber contends the court's finding the children were likely to be adopted (adoptability finding) is not supported by substantial evidence. She asserts E.P. exhibited emotional and behavior problems that made his adoption unlikely. She further contends the children were part of a sibling group and argues that if E.P. was not likely to be adopted, A.P. and Edward were not likely to be adopted.

The Agency contends Amber did not challenge the children's adoptability at the section 366.26 hearing and forfeited the issue on appeal. On the merits, the Agency asserts the court's adoptability findings are supported by substantial evidence.

We reject the Agency's assertion that Amber forfeited the issue of adoptability on appeal. Generally, issues not raised in the trial court cannot be raised on appeal. The assertion a judgment is not supported by substantial evidence is an " 'obvious exception to the rule.' " (In re Javier G. (2006) 137 Cal.App.4th 453, 464 quoting Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23 fn. 17.) "In other words, when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof. (Citations.)" (In re Javier G., supra, 137 Cal.App.4th at p. 464) Here, before the court could terminate parental rights, the Agency was required to show by clear and convincing evidence the children were likely to be adopted. ( 366.26, subd. (c)(1); see also  366.26, subd. (c)(3); In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) Amber contested the Agency's recommendation to terminate parental rights. ( 366.26, subd. (c)(1).) The issue of adoptability is not forfeited on appeal. (In re Gregory A., supra, 126 Cal.App.4th at p. 1561.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions, the court must terminate parental rights if it finds by clear and convincing evidence the child is likely to be adopted. ( 366.26, subd. (c)(1).)

On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562; see also In re Zeth S., supra, 31 Cal.4th at p. 406.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re Autumn H.,supra, 27 Cal.App.4th at p. 576.)

"It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' " (In re Zeth S., supra, 31 Cal.4th at p. 405 quoting In re James V. (1979) 90 Cal.App.3d 300, 304.) There is no blanket exception to the general rule for juvenile dependency appeals rule, "although in the rare and compelling case an exception may be warranted." (Id. at p. 399-400.)

With respect to E.P., for the reasons discussed below, we conclude this is a rare and compelling case that lies within the exception prohibiting the reviewing court from considering postjudgment evidence in an appeal from an order terminating parental rights. (In re Zeth S., supra, 31 Cal.4th at pp. 399-400.) In determining whether there is substantial evidence to support a finding that E.P. is likely to be adopted within a reasonable time, we consider the trial court's order of June 22, 2007, authorizing E.P.'s emergency removal from the home of his specifically identified prospective adoptive parent.

The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) The juvenile court should also explore a child's feelings toward his or her parents, foster parents and prospective adoptive family. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334.)

Here, the record leaves no doubt A.P. and Edward are adoptable, both individually and as a sibling pair. The social worker opined that more than 50 adoptive families were available to each child individually.The foster parents continuously demonstrated their specificinterest, in and commitment to, adopting A.P. and Edward as a sibling pair. The record supports the finding there were no legal impediments to the foster parent's adoption of A.P. and Edward. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) The foster parents had an approved home study, took excellent care of the children, and had previously adopted other children. They "came to love the children very much." The record also contains clear evidence of the children's feelings toward the foster parents. (In re Amanda D., supra, 55 Cal.App.4th at p. 820; In re Christopher L., supra, 143 Cal.App.4th at p. 1334.) A.P. turned to "mom and dad" to meet her day-to-day and emotional needs. To Edward, the foster parents were "mama and daddy," and their home was his home.

In contrast to the substantial evidence that supports findings that E.P. and Edward were each generally adoptable, there is insufficient evidence to support a finding, by clear and convincing evidence, that E.P. was generally adoptable. The court stated E.P. had "a huge amount of specific needs that is going to require a very competent and very responsible caretaker . . . ."The social worker acknowledged E.P.'s diagnoses and therapeutic needs put a "little kink" into his adoptability. Her opinion that E.P. was likely to be adopted within a reasonable time was conditioned onfinding the proper therapy, medication, and support of "the right people in his life." The social worker opined that, in addition to the foster parents, three families were interested in adopting a child like E.P. However, there is nothing in the record to indicate those three families were aware of E.P.'s "huge amount of specific needs," and had the capacity and ability to meet those needs. We also note the court had postponed the section 366.26 hearing for 90 days and in that time, the Agency did not identify another family in the general pool of prospective adoptive parents available to E.P. (See 366.26, subd. (c)(3).) We conclude there is no evidence of solid value to allow the juvenile court to find, by clear and convincing evidence, that E.P. was generally adoptable. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.)

The children's foster parents, who were committed and experienced foster and adoptive parents, expressed a willingness to adopt E.P. In the months preceding the section 366.26 hearing, the foster parents had not been able to meet E.P.'s therapeutic needs or moderate his unpredictable behaviors. At the time of the hearing, after exploring therapeutic, behavioral and educational resources, the foster parents believed they had found the community-based services that would allow them to provide E.P. a permanent home with his siblings.

On June 7, 2007, the foster parents gave the Agency a seven-day notice to remove E.P. from their home. When the Agency asked them to allow E.P. to remain in their home until another placement could be found, the foster parents stated it was in the best interest of his siblings and the family for the Agency to remove E.P. from their home on June 14, as scheduled. The Agency informed the court, and the court authorized E.P.'s emergency removal on June 22. The Agency placed E.P. in a group home.

We note the postjudgment evidence we consider here is not an unsworn statement of appellate counsel, understandably rejected as improper in Zeth S., but this court's judicial notice of an order of the trial court, as authorized by statute. (Evid. Code  459 and 452, subd. (d); Code Civ. Proc.  909.) The postjudgment evidence in this case undermines the foundation of the judgment. As a consequence, there is no evidence to support the finding E.P. is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1).)

In addition, the child's circumstances in Zeth S. were significantly different than E.P.'s circumstances. Zeth was a young, healthy child who thrived in the out-of-home care of his maternal grandfather. (Zeth S., supra, 31 Cal.4th at p. 406.) The Supreme Court noted his circumstances were "tragic but unexceptional." (Ibid.) Here, the trial court concluded E.P.'s tremendous needs require a caregiver with exceptional levels of skills and responsibility. Despite residential treatment, medication, therapy, behavioral management, special education programs and committed family foster care for more than two years, E.P.'s behaviors are not stabilized. In view of his age, E.P.'s circumstances are both tragic and exceptional.

We are mindful that the determination of the child's permanency plan lies with the trial court. ( 366.26.) Were we to uphold a finding of adoptability based only on a particular family's willingness to adopt a child when that family is no longer available to the child, a miscarriage of justice would result. (In re Carl R., supra, 128 Cal.App.4th at p. 1062 ["Legal orphanage is a consequence the law abhors."].)

The Agency refuses to stipulate to reversal and suggests it has contacted out-of-state prospective adoptive families on behalf of E.P. Because E.P. requires an exceptional situation to meet his needs, we believe it is the role and responsibility of the juvenile court to select and implement an appropriate permanency plan for E.P. in view of his current circumstances. (Cf. In re Stephanie M. (2004) 7 Cal.4th 295, 322; In re S.D. (2002) 99 Cal.App.4th 1068, 1083.) If the Agency has identified a suitable potential adoptive family that has demonstrated the capacity, ability and commitment to meet E.P.'s needs, the court may consider whether E.P.'s interest in the permanency of adoption outweighs his interests in his relationships with his siblings and former foster parents. ( 366.26, subds. (c)(1) & (c)(1)(C), (D), (E).)

We conclude that E.P.'s exceptional circumstances require the trial court to make a comprehensive assessment of E.P.'s needs in view of his current circumstances. These critical findings are necessary to avoid another disrupted placement, with consequential impact to E.P., and to promote a final order and judgment in the juvenile court. (Zeth S., supra, 31 Cal.4th at pp. 412-413.)

E

Amber asserts the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights. She contends that the court's findings are not supported by substantial evidence. Because we conclude there is no substantial evidence to support a finding that E.P. is likely to be adopted within a reasonable time, we do not consider whether the beneficial parent-child exception applies to E.P.

At a permanency plan hearing, the court may order one of three alternatives adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dep't. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G., supra, 77 Cal.App.4th at pp. 808-809.) Once the court determines a child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)

Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confers some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

In support of her argument, Amber relies on Dr. Murphy's two-hour observation of her interactions with the children. She acknowledges the court took a "very dim" view of Dr. Murphy's opinion. We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. ( In re S.C. (2006) 138 Cal.App.4th 396, 415.) The court characterized Dr. Murphy's conclusion that the children would suffer detriment as "a generalized opinion" that amounted to "guess work." Dr. Murphy acknowledged it was possible the children might not suffer any detriment if parental rights were terminated, and characterized his prediction the children might have future emotional problems as "hypothetical." The trial court exercised its discretion to determine the weight of the evidence, and we will not interfere with the proper exercise of discretion on review.

Amber does not meet her burden on appeal to show there is insufficient evidence to support the finding she did not have a beneficial parent/child relationship with A.P. and Edward. ( 366.26, subd. (c)(1)(A); In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The record shows in Amber's care, the children were exposed to "a constant state" of homelessness, neglect, substance abuse and parental absence. E.P. was significantly emotionally traumatized by these conditions. When the children were detained, Edward was under the age of one year. A.P. said her mother was "gone" and did not ask for her.

During the first seven months of the proceedings, Amber was incarcerated and her contact with the children was extremely limited. A.P. and Edward thrived in foster care. The lack of contact with Amber did not appear to be detrimental to them. After visitation began in December 2005, the social worker observed 22 visits between Amber and the children. She opined Amber's relationships with the children were not parental in nature. A.P. had an emotional bond with Amber because she had lived with her for a significant period. Edward's relationship with Amber was friendly, but not bonded.

Amber's resistance to substance abuse treatment demonstrated she did not understand her responsibilities and role as a parent. Before the children were removed from her care, she constantly compromised the children's safety and physical and emotional well-being by exposing them to chronic neglect, homelessness, substance abuse and criminal activity. After her release from prison, Amber had no verifiable period of sobriety. The court could reasonably determine that continuing the attenuated parent-child relationship would not benefit A.P. and Edward. ( 366.26, subd. (c)(1)(A).)

Although the record shows A.P. and Edward enjoyed their limited visits with Amber, Amber did not show that termination of parental rights would be detrimental to them. ( 366.26, subd. (c)(1).) Substantial evidence supports the court's finding that the security of a stable, permanent home with committed, capable and loving adoptive parents outweighed A.P.'s and Edward's interest in a continued relationship with Amber. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)

DISPOSITION

The findings, orders and judgments of the trial court are affirmed as to A.P. and Edward. The judgment terminating parental rights as to E.P. is reversed, and the matter is remanded to the trial court to conduct a new hearing for E.P. under section 366.26.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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