In re Katrina G.

Filed 8/1/07 In re Katrina G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joe Littlejohn, Judge. Affirmed.

Isis G. appeals a judgment terminating her parental rights to her minor daughter, Katrina G., under Welfare and Institutions Code section 366.26.^[1] Isis 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 December 2004 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of 16-month-old Katrina under section 300, subdivisions (b) and (g). Police officers discovered Isis living with Katrina in a shed. The officers searched the shed and found a diaper bag that contained methamphetamines, a used glass pipe, a marijuana pipe, and a baby bottle filled with marijuana. The officers arrested Isis, and Katrina was taken into protective custody. Katrina became a dependent of the juvenile court and was removed from parental custody. The court placed Katrina with her maternal step-grandfather (grandfather) and ordered Isis to participate in therapy, parenting classes, and substance abuse treatment.

During the next six months, Isis remained sober and compliant with her services. She regularly visited Katrina and showed a strong desire to reunite with Katrina. However, Isis had yet to show she was able to safely parent Katrina. Isis had not started therapy or secured a safe home for Katrina to live in. At the six-month review hearing, the court continued services for an additional six months.

After the review hearing, Isis's progress began to fluctuate. Isis visited Katrina along with Britton C., Katrina's father, against the Agency's instructions. During one visit, Britton became abusive toward Katrina's grandfather. The grandfather suffered injury to his hand. After the physical altercation, the police arrested Isis and charged her with being in possession of a controlled substance, possessing drug paraphernalia, and being under the influence. Katrina's grandfather reported that since Isis had resumed a relationship with Britton, there was a noticeable change in her attitude and behavior. In addition to the arrest, Isis's participation in services was sporadic. She did not stay in contact with the Agency and Isis provided no evidence that she completed a parenting class. She did complete a drug treatment program and was participating in aftercare. However, she stopped contacting her Substance Abuse Recovery Management System advisor and her last drug test returned as a diluted urine test. At the 12-month review hearing, the court terminated reunification services and scheduled a section 366.26 selection and implementation hearing.

The social worker assessed Katrina as adoptable based on her age, good health, and engaging personality. Her grandfather was committed to adopting her and there were numerous families interested in adopting a child like Katrina in the event the grandfather became unable to adopt. The social worker reported that Isis continued to visit Katrina, and her grandfather welcomed Isis to visit anytime. However, the visits did not happen frequently enough and the grandfather noted the lack of visitation adversely affected Katrina. The grandfather remained committed to Katrina and provided her with a healthy, loving home. Katrina had come to see her grandfather as her primary parent and was bonded to him.

At the section 366.26 hearing, the grandfather testified as to the irregularity of Isis's visits with Katrina. When visits did take place, he believed Katrina was happy to see Isis and sometimes would get sad or cry at the end of the visits.

The court received Dr. Robert Klein's bonding study in evidence. The bonding study indicated Katrina and Isis shared a moderate bond and that the bond could be categorized as a parental one. He believed that if the relationship between Katrina and Isis ended, there was the potential Katrina could feel hurt and damaged. This could result in Katrina having difficulty with future relationships.

The social worker testified that Isis did not have a parental relationship with Katrina because Katrina received all her daily care from the grandfather. The social worker believed the benefits of adoption outweighed the detriment to Katrina should parental rights be terminated. She further believed Isis's inconsistent visits caused Katrina confusion and anxiety which gave a reason as to why Katrina showed signs of some distress at the end of visits.

After considering the evidence, the court found Katrina was likely to be adopted and none of the exceptions to section 366.26, subdivision (c)(1)(A) applied to preclude terminating parental rights. The court terminated parental rights and referred Katrina for adoption.

DISCUSSION

Isis contends the evidence is insufficient to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating her parental rights. Isis asserts Katrina would benefit from continuing the parent-child relationship because she maintained regular visitation with Katrina and Katrina was bonded to her.

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 pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant 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; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"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 six specified exceptions. ( 366.26, subd. (c)(1) (A)-(F); 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

The court found Isis regularly visited Katrina. Thus, we examine only whether substantial evidence supports the court's finding Isis did not show she had a beneficial relationship with Katrina. Admittedly, the evidence shows Isis has a relationship with Katrina, but it was not shown to be a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Dr. Robert Klein conducted a bonding study between Isis and Katrina and observed they interacted well together and were affectionate toward each other. Dr. Klein concluded Katrina and Isis shared a moderate bond and the bond was seen as parental in nature. At times, Katrina became upset when separated from Isis and would cry. He believed there was a potential for Katrina to feel "hurt" if the relationship were terminated. This could result in Katrina having some long-term detriment in maintaining future relationships. However, Dr. Klein did not observe Katrina's relationship with her grandfather and did not conclude whether Isis and Katrina's bond was primary. He further did not state whether Katrina would benefit more from maintaining a relationship with Isis than she would by being adopted.

The social worker acknowledged that there are positive aspects of the relationship between Isis and Katrina. However, the social worker opined the relationship was not parental in nature and it was not a beneficial one. Any benefit Katrina might have derived from the relationship was outweighed by the stability and security she would gain from being adopted by her grandfather. The social worker observed several visits between Isis and Katrina. Katrina was happy to see her mother and they interacted well together. However, the social worker believed Isis appeared to relate to Katrina as her peer and not as a parent. Further, Isis's inability to remain sober during the proceedings raises concerns as to whether she can safely parent Katrina. The grandfather instead was the primary caregiver and provided Katrina with a safe, drug-free home and Katrina is extremely bonded to him. The court was entitled to find the social worker's expert opinion credible and give greater weight to her assessment and testimony than to the opinions of other service providers. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)

In addition, to establish the section 366.26, subdivision (c)(1)(A) exception, Isis needed to show Katrina would suffer detriment if their relationship was terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The evidence, however, did not show terminating parental rights would likely cause Katrina great harm and deprive her of a substantial, positive emotional attachment. (Ibid.) Dr. Kelin's bonding study noted that there was the possibility Katrina would suffer some detriment if the relationship was terminated. However, the report did not find that this "potential" harm would outweigh the benefits of adoption. Although Katrina may feel a sense of loss if she no longer had contact with Isis, there was no showing Katrina would be greatly harmed. To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law . . . ." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that an adoptive placement would give Katrina after spending more than half her life as a dependent, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the section 366.26, subdivision (c)(1)(A) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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