In re Evelyn J.

Filed 5/11/07 In re Evelyn J. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William Watson, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for the Minor.

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Joylin J. appeals from the termination of parental rights to her child, Evelyn. She claims the juvenile court should have found adoption is not in the childs best interest because of the benefit Evelyn derives from her relationship with her mother and caregiver. We find no error and affirm.

FACTS

Evelyn was nine months old when the police responded to a domestic battery call between the mother and her live-in boyfriend. The couple had a history of domestic violence, and the mother admitted using methamphetamine occasionally. The mother was arrested for an outstanding bench warrant, and Evelyn was detained and placed in foster care.

The investigation by the Orange County Social Services Agency (SSA) revealed the mother had a criminal history of drug-related charges and had failed to complete a court-ordered substance abuse rehabilitation program. SSA filed a petition alleging Evelyn was subject to the jurisdiction of the juvenile court due to the mothers failure to supervise and protect her. (Welf. & Inst. Code,  300, subd. (b).)[1] After the petition was amended, the mother pled no contest and the amended petition was sustained. The mother was provided with reunification services and twice-weekly monitored visits. The court warned she would receive only six months of reunification services because Evelyn was under the age of three years when she was detained. ( 361.5, subd. (a)(2).)

The mother failed to comply with her case plan. At the six-month review hearing, she stipulated to the termination of reunification services and referral to a permanent plan selection hearing. The foster mother stated she was financially unable to adopt, but expressed an interest in becoming Evelyns legal guardian as she would then remain eligible for childcare assistance. A maternal cousin residing out of state contacted the social worker requesting adoptive placement of Evelyn.

At the permanent plan selection hearing, SSA recommended the termination of parental rights and a permanent plan of adoption. Evelyn was doing well in the care of the foster mother, but SSA opined, Due to the young age of the child and her ability to bond, she deserves an adoptive home that can offer her the highest degree of permanency. The social worker testified that having a permanent home was in Evelyns best interest, notwithstanding a possible bond between her and the mother.

The mother visited Evelyn at the foster mothers home. The visits were typically once a week and lasted approximately an hour and a half. Both the foster mother and the social worker repeatedly reported the mother interacted with Evelyn lovingly and appropriately. SSA reported the mother was caring, focused, and positive during the visits. The mother testified that she comforted, fed, washed, dressed, and changed Evelyn during the monitored visits. She showed the child affection by repeatedly praising, hugging, and kissing her. The mother would engage the child in play with learning toys and physical activities. Evelyn referred to the mother as mom or mommy. The foster mother consulted with the mother about Evelyns speech problems and medical care. According to the mothers testimony, Evelyn would run to the door when she arrived and cling to her. When the mother left the visits, Evelyn would become hysterical and run after her. The foster mother told the mother that Evelyn sometimes remained upset after the mother left.

The mother disagreed with SSAs recommendation that Evelyn be placed for adoption. She testified she believed terminating her relationship with Evelyn would be emotionally traumatizing and affect the child greatly. When asked why it was in the childs best interest to continue visits with her, the mother answered, Because Im her mother . . . .  I dont think bond is a strong enough word. I think that shes attached . . . . The mother stated she would like the child to remain with the foster mother to avoid another transition in the childs life and to provide the child with the structure and . . . stability she needs.

On cross-examination, SSA questioned the mother about her unsatisfactory performance under her case plan. She admitted it took her a year and a half to complete eight parenting classes, she submitted to only one or two drug tests, and she never completed a drug treatment program. The mothers counsel repeatedly objected to the line of questioning as irrelevant, but the court allowed the questions. It stated the questions were relevant for it to balance the bond between the mother and child and all the sincerity of her relationship with the child against the benefits of adoption.

The court found by clear and convincing evidence Evelyn was adoptable and her bond with the mother did not make adoption detrimental to her. The court acknowledged the mothers sincere love for her daughter, but when I measure the real benefit that I think your daughter needs, the only conclusion I can come to is that we need to terminate your parental rights. [] [W]hile I cannot say 100 percent she would not benefit at all from some relationship with you, the bigger benefit is that shes only two, shes a sweet girl who will bond. The court terminated the mothers parental rights and ordered Evelyn placed for adoption.

DISCUSSION

The mother argues the court erred in finding adoption to be the permanent plan because the child would benefit more from maintaining her relationship with the mother than she would from being adopted. ( 366.26, subd. (c)(1)(A).) We disagree.

The Legislature has mandated that after a child is found adoptable, the termination of parental rights and adoption is the best plan to ensure the child has a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citations.] (In re Marilyn H. (1993) 5 Cal.4th 295, 306; see also In re Cory M. (1992) 2 Cal.App.4th 935, 952.) The juvenile court can avoid terminating parental rights to an adoptable child only if it finds a compelling reason to conclude that termination would be detrimental to the child due to one of several statutorily described circumstances. ( 366.26, subd. (c)(1)(A) (F).) The mother argues adoption would be detrimental to the child because she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

The parent contesting the termination of parental rights bears the burden of showing both regular visits and the benefit to the child from maintaining the parent-child relationship. (In re Angel B. (2002)97 Cal.App.4th 454, 466; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; In re Autumn H. (1994)27 Cal.App.4th 567, 574.) To overcome the strong policy in favor of adoption, the parent must show more than frequent and loving contact (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), and be more to the child than a mere friendly visitor or friendly nonparent relative (In re Angel B., supra, 97 Cal.App.4th at p. 468). The parent must show the parent-child bond is a substantial, positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

When deciding whether the exception applies, the juvenile court must balance the strength and quality of the natural parent/child relationship against the security and the sense of belonging a new family would confer. (In re Autumn H., supra,27 Cal.App.4th at p. 575.) The factors to be considered include: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of the interaction between the parent and the child, and (4) the childs particular needs. (In re Angel B., supra,97 Cal.App.4th at p. 467, footnote omitted.)

It is undisputed that the mother maintained regular visits with Evelyn. But substantial evidence supports the juvenile courts conclusion that the parent-child relationship did not rise to the level required under the benefit exception. Although the mother nurtured Evelyn during her visits, the visits typically occurred only once a week for less than two hours. Although Evelyn may have enjoyed the visits with the mother and sometimes was upset after the mother left, her day-to-day parenting needs were met by the foster mother. At the time of the hearing, Evelyn was almost 28 months old and had spent the majority of her life out of her mothers care.

The mother points to In re Brandon C. (1999) 71 Cal.App.4th 1530 in support of her argument. There, twin boys were removed from their mothers care at the age of four months and placed with the paternal grandmother. The mother received reunification services for 18 months, but did not complete her case plan. Reunification services were terminated and a permanent plan selection hearing was set, but was not held until more than two years later. By the time of the hearing, the evidence was that the mother had been visiting the boys weekly for three years, they enjoyed the visits and were happy to see her, and they called her mommy. Although the paternal grandmother was willing to adopt, she was also agreeable to a legal guardianship. The grandmother did not think it would be in the boys best interest to terminate their relationship with mother and father, explaining that they still have a good relationship with their parents, and I think that should continue. (Id. at p. 1533.)

The juvenile court found it would be in the boys best interests to maintain their relationship with their mother, and ordered legal guardianship as the permanent plan. (In re Brandon C., supra, 71 Cal.App.4th at p. 1533.) The appellate court found substantial evidence to support the juvenile courts finding, noting that [t]he benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have. In this case, mother was not the boys primary caretaker, and a quantitative measurement of the specific amount of comfort, nourishment or physical care she provided during her weekly visits is not necessary. (Id. at pp. 1538-1539.)

The procedural posture of Brandon C. renders it unhelpful to the mother in this case. There, the juvenile court, to whom the law has entrusted the balancing of a childs interest in long-term stability through adoption versus his interest in maintaining a parental bond, found the bond outweighed adoption. Here, the juvenile court found otherwise. In both cases, the role of the appellate court is the same: We review the trial courts findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.] (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

The mother also argues the juvenile court impermissibly considered her failure to reunify when determining whether the benefit exception applied to obviate adoption. But this evidence was relevant for the juvenile court to obtain the entire picture of the mother, including her credibility and commitment to maintaining the bond with Evelyn. The juvenile court properly focused on Evelyns best interest when evaluating the evidence: [T]his is about Evelyn and it is not about the mother or about the system or about anything else. . . .  [T]he issue I have to consider now is . . . your daughter and whats in her best interest.

DISPOSITION

The judgment terminating parental rights is affirmed.

SILLS, P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

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