In re E.W.

Filed 3/13/07 In re E.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from a judgment of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired judge of the Imperial County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed.

Vicky B. and Roland W., the parents of E.W., appeal the judgment terminating their parental rights under Welfare and Institutions Code^[1]section 366.26. Vicky contends that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)). Roland joins in Vicky's argument. (Cal. Rules of Court, rule 8.200(5).)

FACTS

The San Diego County Health and Human Services Agency (Agency) took E., then four years old, into protective custody in December 2003. The previous month, Vicky had been taken to jail and then to a mental health facility after displaying bizarre behavior, such as hearing voices that told her to harm E. Paternal relatives sought unsuccessfully to obtain a guardianship order through the probate court, and the situation was brought to the attention of Agency, which intervened.

Roland and E.'s 16-year-old half-sister told the social worker that Vicky was not taking her prescribed medication. E., who indicated she was afraid of Vicky, said she did not want to see Vicky or visit her. E. related that Vicky had spanked her on her buttocks very hard, screamed at her, and locked her in her room. Roland said he was not able to care for E. because he suffered from depression and chronic arthritis in his hands.

On December 10, 2003, Agency filed a dependency petition on behalf of E., alleging that she was at substantial risk of harm because Vicky's mental illness rendered her incapable of providing regular care to the child and Roland was unable to protect and supervise the child. ( 300, subd. (b).) E. was detained with her paternal cousin, D.K.

In February 2004, the juvenile court sustained the dependency petition, declared E. a dependent of the court, removed her from her parents' custody, and placed her with D.K. The court ordered the parents to comply with their case plans. Vicky was also ordered to participate in the Substance Abuse Recovery Management Systems program (SARMS).

Vicky initially did poorly in her SARMS evaluations. However, by the six-month review date, she was in compliance with SARMS, and was attending therapy and a parenting course. Vicky also underwent a psychological evaluation, which indicated that she did not have any mental illness or mood disorder and that her bizarre behavior could have been caused by her abuse of crystal methamphetamine. The evaluator opined that Vicky was capable of benefiting from services as long as her substance abuse is properly dealt with. In the meantime, Vicky continued to deny that she had a drug abuse problem and continued to insist that her previous positive tests were the result of someone contaminating her water or coffee.

E. was enjoying her weekly supervised visits with Vicky, but did not want to live with Vicky.

At the six-month review hearing on August 5, 2004, the court found that the parents had made substantive progress with their case plans and that their progress in alleviating the problems that led to E.'s dependency had been moderate. The court ordered six more months of services.

During the next six months, Vicky was compliant with SARMS, and all of her drug tests were negative. In addition to her individual therapy sessions, Vicky was attending conjoint therapy sessions with E.'s therapist. During visits, E. was affectionate toward Vicky, according to the visitation monitors. The monitors reported that E. often said that she wanted to be with Vicky and that she did not want the visit to end. E. told the social worker that she wanted to continue to have visits with Vicky, but that she did not want to live with Vicky because she feared her mother "will lock [her] in a closet." E.'s therapist said that E. also was afraid that if she lived with Vicky, she would not be allowed to have contact with her paternal relatives.

At the 12-month review hearing on February 3, 2005, the court found that Vicky had made substantive progress with her case plan and substantial progress in alleviating the problems that had led to E.'s dependency. The court ordered six more months of services.

On March 22, 2005, the court granted de facto parent status to D.K.

Vicky continued to be in compliance with SARMS. On April 7, 2005, Vicky began unsupervised visits with E. The visits went well. In May, Vicky expressed concern that Roland had molested E.^[2] Although E. had told her therapist that she was excited about the prospect of spending the night with Vicky, the therapist opined that it was too early to start overnight visits. The therapist was concerned about Vicky's judgment because Vicky had brought a male friend to one of the conjoint therapy sessions. E. told the social worker that she wanted to start overnight visits, but also said that she did not want to live with Vicky "because I still remember bad things that happened."

For the upcoming 18-month review hearing, Agency originally recommended that services be terminated and that a section 366.26 be set to select a permanent plan. Agency was recommending that the court implement another planned permanent living arrangement (APPLA).^[3] Agency told the court that it could not recommend that E. be returned to Vicky's custody because (1) the recent accusations that Roland had molested E. showed that Vicky continued to have delusions, and (2) E. was afraid to live with Vicky.

In late June 2005, E. told the social worker that she watched a "scary movie" during her previous visit with Vicky. D.K. said that since the last visit, E. had not been able to sleep and that she was afraid to sleep alone because she was having nightmares. E. continued to tell the social worker that she wanted to visit with Vicky but that she did not want to live with her. In July, Agency requested that the 18-month hearing be continued to provide more time for it to evaluate the situation and to make a responsible recommendation.

In September 2005, E. told the social worker that she wanted to start having overnight visits with Vicky and that she was not afraid of Vicky. Overnight visits began on October 23.

In November 2005, Agency reported that it was pursuing adoption as E.'s permanent plan after learning that Vicky had tested positive for cocaine on October 11. Agency explained that it was unaware of the positive drug test at the time it authorized overnight visits, and that if it had been aware of the test result, it would not have authorized the overnight visits.

In December 2005, Agency indicated that it was changing its recommendation and was proposing that E. be placed with Vicky, with services. Agency explained that (1) Vicky's teenage daughter and her three adult children would provide support to Vicky, (2) visits with E. had gone well, (3) Vicky had resumed therapy with a new therapist and was making progress, (4) while E.'s therapist had concerns about returning E. to Vicky, the therapist did not believe that doing so presented a risk to E., and (5) Agency believed that there was no current risk of detriment and that there were no protective issues.

E.'s counsel asked for a trial on the new recommendation. The contested 18-month review hearing was held over a two-day period, and concluded on February 3, 2006.^[4] The court terminated services and set a section 366.26 hearing.

Vicky's overnight visits with E. were suspended on April 14, 2006, after Agency learned that Vicky had forced E. to speak into a tape recorder and say that Roland had abused her three years earlier. (See footnote 2, ante.) E. denied the molestation allegations to her therapist, D.K. and the social worker. Vicky had stopped seeing her therapist in January.

Agency assessed E. as likely to be adopted because she was a healthy, well adjusted child with a pleasant demeanor. Agency reported that D.K., who had been E.'s caregiver since December 5, 2003, wanted to adopt E. Additionally, there were eight families who would be willing to adopt a child with characteristics similar to E.'s. The social worker opined that E. did not have a beneficial relationship with either Vicky or Roland.

At the section 366.26 hearing, E., who was then six years old, testified that she wanted to be adopted. When asked what it meant to be adopted, E. replied: "Adoption is when someone in your family or a stranger takes care of you and you could still see whoever you don't see." E. further explained that if she were adopted she would continue to see Vicky, Roland and her sisters. E. also testified that she saw Vicky every Tuesday and that she enjoyed it when her teenage sister also came to the visit. If she were to continue to live with D.K. until she was 18, E. still wanted to have frequent visits with Vicky. E. did not want to be adopted if it meant that she could not see Vicky or Roland again.

Social worker Anzette Shackelford testified that E. told her she wanted to be adopted. However, Shackelford did not discuss with E. whether she would be able to continue to see her parents if she were adopted. Shackelford opined that Vicky's relationship with E. was like that of an aunt. Shackelford characterized E. as "parentified" because E. asked if her parents were okay, and cheated at a board game to let Vicky win. According to Shackelford, E. had no problems separating from Vicky at the end of visits.

Shackelford testified that E. did not look to Vicky to meet her daily needs. The social worker acknowledged that Vicky had met all of E.'s daily needs during the six-month period of overnight visits. Shackelford also acknowledged that the monitor had reported that during Vicky's supervised visits, E. displayed and initiated affection to Vicky, displayed age appropriate concern for Vicky, went to Vicky easily and willingly, and did not want the visits to end. E. told Shackelford that she wanted to maintain contact with Vicky and Roland. The social worker believed that E. could experience some distress if she were not allowed to see her parents. Shackelford testified that E.'s therapist did not have an opinion about whether E. should be adopted.

D.K. testified that she had explained adoption to E. as "everything is pretty much going to stay the same, except she is permanently going to be with me and then she can still see her mom, her dad, grandma and everyone else."

Vicky testified that E. had lived with her during E.'s first four years of life and that Vicky had provided for all of E.'s needs. In addition, Vicky took care of all of E.'s needs during the unsupervised overnight visits, including preparing her for school and taking her to school. Vicky said she did not attend E.'s school activities or doctor appointments because she was under the impression that the only time she could have contact with E. was during authorized visits. Vicky had attended two meetings with E.'s schoolteacher.

Vicky also testified that E. ran toward her and gave her a hug at the beginning of visits. Vicky believed E. wanted the visits to last longer because E. was often concerned with how much time remained. E. also tried to fit as many activities as she could into the visit, knowing the time was limited. Vicky said E. always appeared sad and disappointed when the visits ended.

The parties stipulated that if Maribel Luna, the visitation monitor, were called as a witness, she would testify that Vicky was usually on time for visits, E. was excited when she saw Vicky and would run to her, Vicky was active and involved with E., Vicky brought snacks to the visits, Vicky and E. appeared to have a close relationship, and E. enjoyed seeing her mother.

At the conclusion of the two-day contested hearing on July 31, 2006, the court found that E. was likely to be adopted and that none of the statutory exceptions to adoption applied. The court terminated parental rights and selected a permanent plan of adoption for E.

DISCUSSION

Vicky, joined by Roland, contends that the juvenile court erred by failing to applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)). The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time, unless one of the five statutory exceptions applies. ( 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345;  366.26, subd. (c)(1).)

We review the court's finding as to whether a statutory exception to adoption applies by determining whether there is substantial evidence to support the finding. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the juvenile court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Section 366.26, subdivision (c)(1)(A) provides that once the court finds that the child is likely to be adopted, the court shall not terminate parental rights if it finds that termination 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." (Italics added.) The exception applies only if both prongs are met.

Agency has acknowledged that Vicky maintained regular visitation, and that there is thus substantial evidence that she satisfied the first prong of section 366.26, subdivision (c)(1)(A).

At issue, is whether Vicky satisfied the second prong of the statute - namely, whether E. would benefit from continuing her legal relationship with Vicky. To establish a beneficial parent-child relationship, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove that 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. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show that the "relationship 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "the age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Further, the parent must show that the benefit arises from a parental relationship rather than that of a caregiver or friendly visitor. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [exception does not apply when a parent "has frequent contact with [dependent child] but does not stand in a parental role to the child"].) In In re Casey D.(1999) 70 Cal.App.4th 38, we affirmed this balancing test, explaining that the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (Id. at p. 51, italics added.)

Substantial evidence supports the juvenile court's finding that the parent-child beneficial relationship exception to adoption under section 366.26, subdivision (c)(1)(A) does not apply in this case. Social worker Shackelford opined that Vicky did not have a beneficial parent-child relationship with E., who was parentified. Shackelford further opined that E. did not look to Vicky to meet her daily needs. Vicky's relationship with E. was more like that of an aunt than a parent, in Shackelford's view. The juvenile court, sitting as trier of fact, was entitled to accept the social worker's expert opinion and to rely on it. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)

The record supports the juvenile court's determinations that Vicky and E. had a close and positive relationship, but that it was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Rather it was D.K. who for two years assumed the parental role for E. by providing her with food, shelter, protection and guidance on a daily basis. E. thrived in the care of D.K., with whom she had a safe, stable and nurturing home - something she desperately needed.

We acknowledge that for six months, Vicky provided for E.'s needs during the Sunday overnight visits; Vicky prepared E. for school on Monday mornings and took her to school. However, this was only one day and night of the week.

Vicky, who had not fulfilled a parental role for E. for two years, did not meet her burden of showing that her relationship with E. was sufficiently strong that E. would suffer detriment from its termination. The loss of "frequent and loving" contact with a parent is insufficient to show detriment. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Although E. recognized Vicky as her mother, Vicky did not fill a parental role within the meaning of section 366.26, subdivision (c)(1)(A).

Moreover, Vicky did not meet her burden of showing that the benefits of continuing her legal relationship with E. would outweigh the well-being the child would gain in a permanent adoptive home. Young children like E. need a sense of permanence. Although E. enjoyed her visits with Vicky, the visits largely constituted playtime.

The court did not err in finding that the exception to adoption under section 366.26, subdivision (c)(1)(A) did not apply.

Vicky's reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200 is misplaced. In In re Jerome D., this court reversed the judgment terminating parental rights because insufficient evidence supported the finding of adoptability, and we concluded that the child would benefit from continuing a relationship with his mother. (Id. at p. 1209.) This case is distinguishable from In re Jerome D., in which the eight-year-old child was unlikely to be adopted, the mother's unsupervised overnight visits with the child were not suspended, there was expert evidence that mother and son shared a strong and well-developed parent-child relationship, and the child, who had lived with the mother for the first six years of his life, wanted to live with her again. (Id. at pp. 1205-1207.) In contrast, here there was an abundance of evidence that E. was likely to be adopted, Vicky's overnight visits were eliminated and her other visits changed from unsupervised to supervised, there was no expert evidence that Vicky and E. shared a parent-child relationship, and while E. wanted to continue to be able to visit Vicky, she did not want to live with her.

We reject Vicky's argument that if D.K. were to adopt E., D.K. would not allow Vicky to maintain contact with the child. That contention is based on speculation. D.K. testified that she would continue to allow contact between E. and Vicky unless Vicky's behavior presented a protective issue.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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

^[2] Before these proceedings began, Vicky had made a similar complaint, which was investigated and found to be unsubstantiated.

^[3] Section 366 provides that at the periodic status review hearings held every six months, "[t]he court shall project a likely date by which the child may be returned to and safely maintained in the home or placed for adoption, legal guardianship, or in another planned permanent living arrangement." ( 366, subd. (a)(2).) Essentially, "another planned permanent living arrangement" refers to the court's choice of long-term foster care with mandated periodic status reviews by the court for a dependent child who cannot be returned to parental custody and who is not suitable for adoption or guardianship. For an excellent discussion of the derivation of the term "another planned permanent living arrangement," see In re Stuart S. (2002) 104 Cal.App.4th 203, 206-209.

^[4] This was eight months after the 18-month review date of June 7, 2005.