In re Dakota D.

Filed 2/28/07 In re Dakota D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgments of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Glenna D. and Blaine D. appeal judgments of the juvenile court terminating their parental rights to their minor son Dakota D. under Welfare and Institutions Code section 366.26.^[1] Glenna and Blaine challenge the sufficiency of the evidence to support the court's findings Dakota is adoptable and the beneficial parent-child relationship exception of section 366.26 did not apply to preclude terminating their parental rights. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1999, two-year-old Dakota became a dependent of the juvenile court under section 300, subdivision (b) and was removed from his parents' care based on findings of parental neglect. Glenna and Blaine had lengthy histories of substance abuse. Glenna had neglected Dakota's medical and dental needs and failed to obtain services for his developmental delays. At the time Dakota was removed, Blaine was in a residential alcohol recovery program.

During the next 18 months, Glenna did not comply with court-ordered reunification services. Blaine completed his recovery program and the court placed Dakota with him in May 2001. However, Blaine relapsed into alcohol abuse and physically abused Dakota, resulting in Dakota's removal from Blaine's custody in November 2003.

Glenna and Blaine were offered additional services, but neither was able to make sufficient progress to reunify with Dakota. Dakota had special needs and behavior problems and no adoptive home had been found for him. In November 2005, the court ordered another planned permanent living arrangement (APPLA) for Dakota.

Glenna did not visit Dakota consistently and she interacted poorly with him because she did not seem to understand the complexity and severity of his special needs and developmental delays. Dakota greeted Glenna affectionately and they enjoyed playing together. However, Dakota became bored during visits and asked to leave early. Blaine's visits with Dakota were fairly consistent and went well. Dakota sometimes asked, "where is Blaine?"

In February 2006, Dakota was placed in a prospective adoptive home in San Bernardino County. During the next few months, his academic performance and behavior improved dramatically. Dakota was bonded to his caregivers, who were meeting all his needs, and he was thriving in their care. The caregivers completed their adoptive home study. The court granted Agency's section 388 petition for modification and set a section 366.26 selection and implementation hearing.

The social worker assessed Dakota as adoptable because he was in good physical health and had a pleasant personality. Dakota's caregivers were committed to adopting him. One of them had a Master's degree in behavioral science, was a special education teacher and had experience working with special needs children. Dakota was attached to his caregivers and said he loved them and wanted them to adopt him. The caregivers were open to facilitating future visits with Glenna and Blaine. In addition to these caregivers, there were two families in San Diego County and 12 families in other counties willing and able to adopt a child with Dakota's characteristics and family background.

Glenna and Blaine visited Dakota once a month in San Diego, but did not attend monthly visits arranged in San Bernardino County. Blaine came to one visit intoxicated and carrying a bottle of beer. Glenna asked Blaine to leave when he threatened to "snatch" Dakota. Glenna's visit with Dakota went well that day. Although Blaine visited consistently, he was under the influence of alcohol during several visits. Dakota did not ask to see or telephone his parents between visits. When Glenna telephoned Dakota on Easter, he talked to her for a few seconds and said he wanted to go play. In the social worker's opinion, Dakota did not have a parent-child relationship with either parent and did not look to them to meet his daily needs.

At a selection and implementation hearing, the social worker testified Glenna's visits with Dakota had been sporadic throughout the years. Dakota sometimes referred to her as "Glenna" and sometimes as "mom." Although Dakota appeared to enjoy his time with her, he looked to the social worker rather than Glenna for direction or assistance. Dakota did not initiate physical contact with Glenna, and she interacted with him from a distance. Dakota had a loving but not a parent-child relationship with his father, whom he referred to as "Blaine."

The social worker further testified Dakota's special needs made him difficult to adopt. His caregivers were particularly suitable for him and were working with the Regional Center to ensure Dakota's needs were met. They had an approved adoptive home. If these caregivers were unable to adopt, there were other families willing to adopt a child like Dakota. The social worker believed the benefits of adoption for Dakota outweighed any detriment of terminating parental rights.

Blaine testified that after Dakota's removal from his care in 2003, he visited Dakota weekly until Dakota was placed in San Bernardino. Blaine loved Dakota and wanted to remain involved in his life. Glenna testified she visited Dakota as often as she could and they enjoyed playing together. Dakota called her "mom" and said he loved her.

After considering the evidence and hearing argument of counsel, the court found Dakota was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred Dakota for adoptive placement.

DISCUSSION

I

Glenna and Blaine challenge the sufficiency of the evidence to support the court's finding Dakota was likely to be adopted. They assert Dakota's history of significant problems and challenging behavior, which caused his previous adoptive placements to fail, made him unadoptable.

A

When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if substantial evidence supports a contrary conclusion. (Id. at pp. 52-53.) 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.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. ( 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted [minor, who may have cerebral palsy, was likely to be adopted within reasonable time by prospective adoptive parent or some other family]; compare In re Asia L. (2003) 107 Cal.App.4th 498, 512 [sibling set of three was not adoptable because minors had emotional and psychological problems and there were no approved families willing to adopt children with similar problems].)

B

Here, the evidence showed Dakota was a cute, personable, generally healthy eight-year-old who had made tremendous progress in his academic performance and in overcoming his developmental delays and behavior problems. Any ongoing special needs were being addressed through services such as the Regional Center. There were several families, in San Diego County and elsewhere, willing to adopt a child with Dakota's characteristics. Thus, Dakota's past problems were no impediment to adoption.

Moreover, Dakota was in an approved adoptive home with caregivers who were particularly suited to meeting his needs and who were committed to adopting him.^[2] Dakota loved his caregivers, was thriving in their home and wanted to be adopted by them. Given this evidence, the social worker believed Dakota was adoptable. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421 [social worker may be expert in assessment and selection of permanent plan for dependent minor].) 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 pp. 52-53.) Substantial evidence supports the court's finding Dakota was likely to be adopted.

II

Glenna and Blaine challenge 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 their parental rights. They assert they regularly visited Dakota, who would benefit from continuing the parent-child relationship.

A

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 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.) We review the court's findings for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

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 right are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

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.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) 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

Here, Blaine maintained fairly regular contact with Dakota. Glenna visited him only sporadically. In any event, Blaine and Glenna did not meet their burdens of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A).

The evidence showed Glenna interacted poorly with Dakota and did not seem to understand the complexity and severity of his special needs and developmental delays. Although Dakota greeted Glenna affectionately and enjoyed playing with her, he did not initiate physical contact with her. He became bored during visits and asked to leave early. Dakota looked to the social worker rather than Glenna for direction or assistance.

Dakota had a loving relationship with Blaine and most of their visits were appropriate. However, Blaine relapsed into alcohol abuse and came to several visits intoxicated. Dakota did not look to Blaine to meet his daily needs.

Dakota did not ask to see or talk to his parents between visits. When Glenna telephoned Dakota, he preferred to play rather than speak to her. In the social worker's opinion, Dakota did not have a parent-child relationship with either parent. There was no showing Dakota would be "greatly harmed" if he no longer had contact with Glenna or Blaine. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, Blaine and Glenna did not show maintaining their relationship with Dakota outweighed the benefits of adoption for him. Dakota is in a stable, nurturing environment with caregivers who are particularly suited to meeting his needs and are committed to adopting him. Dakota wants to be adopted by them. Where, as here, the biological parents do 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.) Dakota, whose needs could not be met by either Glenna or Blaine, deserves to have his custody status promptly resolved and his placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.

DISPOSITION

The judgments are affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HALLER, J.

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

^[2] In a letter brief, minor's counsel informs us Dakota has been in this placement for one year and has made "truly remarkable progress," in part due to the continued commitment of the caregivers to adopt him. Thus, there is no merit to Blaine's assertion Dakota's adoptive placement has not withstood the test of time.