In re Nicholas P.

Filed 9/7/06 In re Nicholas P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, Julia Craig Kelety, Judge. Affirmed.

Joseph P. appeals a judgment terminating his parental rights to minor Nicholas P. under Welfare and Institutions Code^[1] section 366.26. Joseph challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(A)) and the sibling relationship exception (§ 366.26, subd. (c)(1)(E)) do not apply to preclude termination of parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Nicholas P. was born in May 2003. When he was three days old, the San Diego County Health and Human Services Agency (the Agency) filed a petition in the juvenile court on Nicholas's behalf under section 300, subdivision (b). The petition alleged Nicholas was at substantial risk of serious physical harm because Nicholas tested positive at birth for methamphetamines and marijuana and Joseph was unable to protect and supervise Nicholas.

In its detention report, the Agency indicated Nicholas tested positive for drugs at his birth. Nicholas's mother, Kimberly P., admitted to having a drug history but stated she had been clean for several years. The Agency listed Kimberly and Joseph's prior child welfare history. In December 1998, Kimberly admitted using drugs while pregnant with Jacob P., Nicholas's brother. In addition, she reported Joseph was an alcoholic and received treatment in the past. The Agency also had received a referral in June 1999 alleging a domestic violence altercation between Joseph and Kimberly that arose while Joseph was drunk. Joseph became angry and pushed Kimberly into a wall, hit her head with his fist, grabbed her throat and then choked her. Kimberly sustained injuries as a result of the violence. Robert, Nicholas's half-brother, also reported Joseph had hit Kimberly in the head. Joseph was subsequently arrested for spousal battery.

A social worker interviewed Kimberly concerning her drug addiction and Joseph's history of alcohol abuse. Kimberly believed Joseph was an alcoholic and stated he often would leave their house and not return until the next day. He would sometimes go on a drinking binge in order to avoid arguing with her. When questioned about his drinking, Joseph denied having a problem. He further stated he did not know Kimberly had been taking drugs while pregnant, but that she had a drug problem four or five years before Nicholas was born. In June 2003, the court held a detention hearing, made a prima facie showing on the petition, and detained Nicholas in out-of-home care.

In the jurisdiction/disposition report, the Agency reported Joseph's criminal history that included arrests for infliction of injury to a spouse, burglary and convictions for receiving stolen property and vandalism. The report indicated Joseph had submitted to a Substance Abuse Recovery Management System (SARMS) evaluation and it was determined he needed to attend an out-patient alcohol program. At the jurisdiction/disposition hearing, Joseph submitted to the allegations of the petition. The court declared Nicholas a dependent under section 300, subdivision (b), removed him from Joseph's custody under section 361, subdivision (c), and placed him with relatives. The court ordered Joseph to participate in services and the SARMS program.

During the next six months, Joseph participated in the out-patient program and remained free from alcohol abuse for more than six months. He also participated in and completed anger management and domestic violence classes. In addition, Joseph was allowed to visit with Nicholas in an unsupervised setting for eight hours a week. At the December 2003 six-month hearing, the court found Joseph had made substantive progress with his case plan. The court continued the dependency and reunification services. Nicholas remained with his maternal grandparents.

The 12-month report indicated Joseph had completed the out-patient treatment program. He continued to participate in therapy sessions, Alcoholics Anonymous (AA), and drug testing with SARMS. Joseph also continued to have some unsupervised visits with Nicholas. The court found Joseph had made substantive progress with his case plan and noted there was a substantial probability Nicholas would be returned to his custody by the 18-month date. The court continued the dependency and Nicholas remained in the care of his maternal grandparents.

At the 18-month review hearing in December 2004, the court found Joseph had made substantive progress with the case plan and placed Nicholas with him. The Agency noted in its report that Joseph had progressed in individual therapy, completed parenting classes and was employed.

During the next six months, the Agency recommended Nicholas remain in Joseph's care and that he be provided six more months of services. The Agency noted Nicholas had been living with his brother, Jacob. Joseph's therapist reported he had made significant progress toward understanding the importance of remaining sober, the risks of domestic violence, and of keeping Nicholas and Jacob free from exposure to substance abuse. The therapist noted Joseph was able to recognize the "red flags" relating to Kimberly's relapses with drugs. However, Joseph still wished to continue a relationship with Kimberly even though she was still using drugs. The social worker recommended Joseph continue to receive counseling as related to Kimberly and why he allowed her to have contact with Nicholas and his siblings even though she has a drug problem. Joseph needed to show his ability to protect Nicholas from being exposed to Kimberly's drug use. The court continued services for Joseph.

About one month later, in July 2005, the Agency filed a section 387 petition alleging that contrary to court orders, Joseph had allowed Kimberly to have unsupervised visits with Nicholas and that she had been living in the house. The petition further alleged Kimberly remained untreated for drug use and Joseph had consumed alcohol in violation of his case plan. The Agency reported it received a referral in June 2005 alleging Robert, Nicholas's half-brother, appeared intoxicated when he went to school. Robert reported Joseph had taken him to Tijuana to get him drunk. They left home late at night while Kimberly, Nicholas and Jacob were asleep. Once in Tijuana, Joseph "got a hooker" for Robert. Robert stated Kimberly watched Nicholas and Jacob while they were away. When social workers questioned Jacob, he said "mommy" lived at his house, slept there, and had a room next to his.

The Agency noted a court order was in place disallowing Kimberly from having unsupervised contact with Nicholas and from living at the house. Further, she continued to test positive for drugs as late as her 18-month review hearing and her services had been terminated. Joseph denied Kimberly was alone with Nicholas or that she picked up Nicholas from the maternal grandparents' home on her own. He further denied taking Robert drinking in Tijuana or buying him the services of a prostitute. Joseph claimed he had been sober since May 2003. At the detention hearing for the section 387 petition, the court ordered Nicholas detained in out-of-home care and granted Joseph liberal supervised visitation.

The court held a contested hearing on the section 387 petition. After reviewing the Agency's reports and considering testimony from witnesses and social workers, the court sustained the petition and found the allegations to be true. The court removed Nicholas from Joseph's custody and ordered supervised visits, terminated reunification services and set a selection and implementation hearing under section 366.26.

In April 2006, the court held a contested section 366.26 hearing. The court considered the Agency's reports and heard testimony from social workers and Joseph. In the February 2006 addendum report, social worker Ann Potter reported that Nicholas had lived with his maternal grandparents for the first 18 months of his life. At that time, the court placed Nicholas with Joseph for approximately six months until the filing of the section 387 petition. In July 2005, around the time the Agency filed the section 387 petition, Joseph and Kimberly fled to Mexico. They did not visit or contact Nicholas until November 2005, when Joseph contacted the Agency. Weekly visitation recommenced in January 2006.

During these visits, Potter observed that Nicholas recognized Joseph, was excited to see him and displayed affection. At the end of visits, however, Nicholas did not cry, show signs of distress, or attempt to delay the end of the visit. Potter believed Nicholas did not depend on Joseph for his daily care or basic needs. In her assessment, Potter reported Nicholas is very adoptable primarily because he is a very healthy and beautiful two-year-old child with no behavioral or medical issues.

In an April 2006 addendum report, social worker Lizann Camacho reported details surrounding four additional visits between Joseph and Nicholas that occurred two months before the section 366.26 hearing. Camacho noted Nicholas was excited to see Joseph and gave him lots of hugs and kisses. Joseph played with Nicholas, ate with him, and washed his face. At the end of one visit, Nicholas did not want the visit to end and cried. At another visit, Nicholas stated he wanted to stay with his Joseph. In March 2006, Camacho noted Nicholas's affection to Joseph continued and he told Joseph that he loved him. At that end of this visit, Nicholas separated easily from Joseph and was not distressed. In the last reported visit, Camacho noted Nicholas did not want to leave his maternal grandmother and cried when he was told he was going to visit with Joseph.

At the section 366.26 hearing, the court heard testimony from social workers Camacho and Potter. Camacho testified she observed an additional visit between Joseph and Nicholas. Nicholas was happy to see Joseph but was calm and did not cry at the end of the visit. Further, there were no reports from Nicholas's caregivers that Nicholas exhibited any negative behaviors after the visits. Camacho believed Nicholas had a parental relationship not with Joseph, but with his maternal grandparents because they had been caring for Nicholas for most of his life. Camacho further testified she had not seen Nicholas interact with Jacob although she was aware they visited each other on weekends for a couple of hours at the maternal grandparents' house. In between visits, the grandparents reported Nicholas did not ask about Jacob. The court took judicial notice that Nicholas lived with Joseph and Jacob for approximately six months. However, Camacho believed it would not be detrimental for Nicholas to be adopted and not see Jacob anymore.

Social worker Potter testified Nicholas was excited to see Joseph during visits but she did not observe a parent-child relationship between the two. Nicholas did not look to Joseph for his daily needs and, at the end of the visits, she observed, Nicholas had no trouble separating from Joseph. Potter opined that a child who had a relationship with a parent would be distressed if not able to immediately see the parent again. In this case, Nicholas showed no signs of anxiety when leaving Joseph even though he knew he would not see Joseph for quite some time. Potter further testified she had not observed visits between Nicholas and Jacob but was told by the grandparents that the siblings visited each other on weekends.

Joseph testified he would see Nicholas every evening at the grandparents' home when Nicholas was first removed from his custody. He further testified Jacob would visit Nicholas every day at the grandparents' house. Joseph claimed Nicholas asked about Jacob when he saw Jacob's picture. Otherwise, Nicholas did not ask about Jacob.

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

DISCUSSION

I

Joseph 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 his parental rights. Joseph asserts Nicholas would benefit from continuing the parent-child relationship because he maintained regular visitation and contact with Nicholas and had custody of Nicholas for approximately six months.

A

We review the court's finding the beneficial relationship exception does not apply under the substantial evidence standard. (In re Casey D. (1999) 70 Cal.App.4th 38, 53; 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., supra, at p. 52.) 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 would be detrimental to the child under one of five specified exceptions. (§ 366.26,

subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is 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 the 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., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) 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. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

The court found Joseph regularly visited Nicholas. Thus, we examine only whether substantial evidence supports the court's finding he did not show he has a beneficial relationship with Nicholas. During visits, Joseph played with Nicholas, showed him affection, and watched over him while he played. Nicholas was excited to see Joseph and would greet him with hugs and kisses. However, although Nicholas appeared comfortable with Joseph during visits, he was equally or more comfortable with his relative caretakers. In addition, Nicholas showed little or no signs of distress when scheduled visits ended. Also, the grandparents did not report any signs of problems returning home from visits. The social workers acknowledged Nicholas had a positive relationship with Joseph. However, social worker Potter believed the Nicholas did not have a parental relationship with Joseph. The relationship had not "parentified" and Nicholas showed no signs of emotional distress when realizing he would not see Joseph for an extended period of time. Thus, their relationship did not outweigh the benefits that a stable, permanent home would provide Nicholas. The social workers instead believed Nicholas had a parental relationship with the maternal grandparents. The court was entitled to find the social workers' opinions credible and give great weight to their assessment and testimony. 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) evidence, Joseph needed to show evidence that termination of parental rights would likely cause Nicholas to suffer great harm and deprive him of substantial, positive emotional attachment to Joseph. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The record here shows Joseph continues to struggle with a long history of alcoholism and he has yet to acknowledge Kimberly's drug addiction and the risk she poses to Nicholas. Although Joseph was loving and affectionate toward Nicholas during visits, the relationship did not benefit Nicholas enough to outweigh his need for the permanence and stability of adoption. Because Nicholas's needs could not be met by Joseph, he deserves to have his custody status promptly resolved. After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that a new family would give Nicholas, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Joseph's parental rights.

II

Joseph contends the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E) applied to compel a permanent plan other than adoption. He asserts Nicholas's brother, Jacob, had a close and significant relationship with Nicholas and that ongoing contact with Jacob was in Nicholas's best interests.

A

Section 366.26, subdivision (c)(1)(E) provides an exception to terminating parental rights when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to the child due to substantial interference with a child's sibling relationship. Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home, and whether the child has strong bonds with a sibling. The court must also consider whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(E); see also In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children" whose lives are in turmoil. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)

The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The exception focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.) Similar to the beneficial parent-child relationship exception, application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) However, the parents have the burden to show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (Id. at p. 952.) Once the parent establishes that a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court then decides whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952-953.)

B

Here, there was evidence showing the brothers visited one another. Further, Nicholas lived in the same house as Jacob between December 2004 and June 2005. At the time of the section 366.26 hearing, the Agency's reports and the social workers' testimonies indicated Nicholas and Jacob visited each other on weekends for a couple of hours at a time. However, beyond the fact the brothers had lived together for about six months and had visited each other on weekends, there was little evidence that they "shared significant common experiences or [have] existing close and strong bonds." (§ 366.26, subd. (c)(1)(E).) There is no evidence Nicholas had difficulty separating from Jacob. The record instead shows Nicholas did not ask about Jacob unless Joseph showed a picture of Jacob to Nicholas. According to Nicholas's grandparents, Nicholas only asked about Jacob occasionally. Further, there was no showing it would be detrimental to Nicholas to sever the relationship with his sibling. In any event, the benefit of preserving their relationship would not outweigh the benefit to Nicholas of being adopted and having the security and stability of a permanent home after three years of dependency proceedings. Substantial evidence supports the court's finding the exception of section

366.26, subdivision (c)(1)(E) did not apply to preclude terminating Joseph's parental rights.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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