In re Joshua B.
Filed
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
In re JOSHUA B. et al., Persons Coming Under the Juvenile Court Law. | |
Plaintiff and Respondent, v. TINA B., Defendant and Appellant. | D049267 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.
Tina B. appeals a judgment of the juvenile court terminating her parental rights to her minor children Joshua B. and Justina B. (together the minors) under Welfare and Institutions Code section 366.26. (Statutory references are to the Welfare and Institutions Code.) Tina 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. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2005, three-year-old Joshua and one-year-old Justina became dependents of the juvenile court under section 300, subdivision (b) and were removed from parental custody based on findings their parents, Tina and Steve H., exposed them to domestic violence. The parents had a history of neglecting and emotionally abusing the minors. Tina's parental rights to two other children had been terminated.
During the next six months, Tina did not participate in services or regularly communicate with the social worker. At a six-month review hearing, the court terminated reunification services and set a section 366.26 selection and implementation hearing.
The social worker assessed both minors as adoptable based on their good health, young ages and lack of developmental problems. The minors' caregivers wanted to adopt them and had an approved home study. There were numerous other families interested in adopting children like Joshua and Justina, either separately or as a sibling set.
Although Tina's visits with the minors were initially consistent, she did not visit for a three-week period and then missed three of nine visits. In the month before the selection and implementation hearing, Tina missed half of her scheduled visits. When Tina did visit, the minors were happy to see her. Tina and the minors were affectionate with each other and played together. Tina sometimes changed Justina's diaper. During one visit, Joshua spontaneously told Tina he loved her. However, the minors separated easily from Tina, showed no distress at the end of visits and did not ask that visits be extended. The minors had begun to bond with their caregiver and called her " mommy." In the social worker's opinion, Tina and the minors did not have a beneficial parent-child relationship.
At a selection and implementation hearing, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. Tina did not testify at the hearing, but the parties stipulated to her testimony that the minors enjoyed visits with her and Joshua spontaneously said, " I love you." The court made no finding as to whether Tina had regular visits with the minors.
DISCUSSION
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 consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of 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 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.)
" 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 five specified exceptions. (§ 366.26, subd. (c)(1) (A)-(E); 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
During the 17 months of this dependency proceeding, Tina did not visit the minors for three weeks, then missed three of the next nine visits, and missed half of her visits just before the selection and implementation hearing. Even if Tina's visitation is considered to be regular, Tina did not meet her burden of showing her relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. Although Tina and the minors were affectionate with each other and their visits were appropriate and pleasant, Tina did not have a parental role in the minors' lives. The minors were happy to see and play with Tina, but they were not adversely affected when visits ended, and were excited to return to their caregivers. There was no evidence of a " significant, positive, emotional attachment" from the minors to Tina such that 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.) Rather, the evidence showed the minors' need for permanence and stability through adoption outweighed any interest in preserving parental ties.
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 the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Tina's parental rights.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
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