In re Toni B.

In re Toni B.

Filed 8/7/08 In re Toni B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re TONI B. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TONY B. et al., Defendants and Appellants.	D051861 (Super. Ct. No. J515708A-C )

APPEALS from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

Tony B. and Myra B. (together the parents) appeal a juvenile court judgment terminating their parental rights to their minor children Toni B., Mason B. and Isaiah B. (collectively the minors) under Welfare and Institutions Code section 366.26.^[1] The parents challenge the sufficiency of the evidence to support the court's findings the minors are adoptable and the beneficial parent-child relationship exception of former section 366.26, subdivision (c)(1)(A)^[2]did not apply to preclude terminating their parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005 then nine-year-old Toni, four-year-old Mason and two-year-old Isaiah became dependents of the juvenile court and were removed from parental custody based on findings their home was unsanitary and in severe disrepair, and Mason and Isaiah had been inadequately supervised. ( 300, subds. (b), (j).) The court placed the minors with their maternal aunt. Toni and Mason were later placed in a licensed foster home.

The minors have a genetic condition that negatively affects their physical health and has caused significant developmental delays and psychiatric disturbances. Myra also suffers from this syndrome. For several years before the dependency petitions were filed, the parents received assistance from a public health nurse, in-home services and San Diego Regional Center services because they had difficulty caring for the minors. Despite having received services, the parents were unable to maintain a sanitary home or provide the minors with adequate supervision.

The parents participated in psychological evaluations and individual therapy as part of their case plans. Myra admitted she did not know how to parent the children and was overwhelmed by having to care for them. Tests showed Myra was in the borderline range of intellectual functioning. She was mildly depressed and experienced significant anxiety from stress. She admitted having a problem with alcohol in the past. The evaluator concluded Myra lacked "the psychological resources necessary to cope with the demands of her everyday life raising her children." Myra's therapist recommended Myra participate in the Substance Abuse Recovery Management System (SARMS) to address her alcoholism.

According to a psychological evaluation, Tony was unaware of the family's problems and his denial prevented him from addressing crucial issues. Tony's therapist reported Tony minimized the events leading to the minors' dependencies and it was unlikely he was capable of implementing significant change.

After 18 months of services, the parents had not made substantive progress with their case plans. The social worker noted the minors have special needs and require constant supervision and assistance in their daily lives. Myra's own limitations make it difficult for her to parent the minors, and she continues to deny having an alcohol problem. Tony works full time and cannot be home to help with the minors' care. The court terminated reunification services and set a section 366.26 selection and implementation hearing.

According to an assessment report, Toni and Mason remained in their foster care placement where they had made significant progress. They continued to receive services for their special needs. Isaiah, who had mild developmental delays, was doing well in the home of the maternal aunt. He asked for his parents every day. The minors' caregivers initially were not interested in adopting them.

The parents consistently visited the minors but lacked the understanding and capacity to appropriately interact with them. The parents were unable to engage the minors and needed constant redirection during visits. Tony appeared to defer to Myra, who was clearly overwhelmed by caring for the minors. Unsupervised and overnight visits were canceled after Myra had several positive tests for alcohol.

The minors separated easily from the parents when visits ended. They often returned from visits hungry and with a strong odor of cigarettes, urine and feces. In the social worker's opinion, the minors' significant disabilities and delays required them to have a highly structured, stable environment, which the parents were unable to provide.

The social worker recommended adoption as the minors' permanent plans. The minors had been in their respective placements for more than a year and their caregivers were now committed to adopting them. The caregivers had begun the adoptive home study process and Agency had no concerns about their qualifications to adopt. If the caregivers were unable to adopt, there were several families willing to adopt children with disabilities similar to those of the minors.

At a contested selection and implementation hearing, Robert Kelin, Psy.D., testified about a bonding study he conducted between Tony and the minors. Dr. Kelin concluded Toni and Mason had no bond with Tony. However, Isaiah had a mild to moderate bond with Tony and Isaiah possibly could be harmed if this bond were severed.

Social worker Cathy Reed testified the minors' caregivers remained committed to adopting them. Reed believed adoption, not guardianship, was the appropriate permanent plan because the minors had long-term disabilities and needed caregivers who were committed to them for life. In Reed's opinion, it would not be detrimental to the minors to terminate parental rights. The frequency of the parents' visits with the minors had decreased and the parents' relationship with the minors was similar to that of playmates or extended family members.

The maternal aunt testified she had been caring for Isaiah for almost two years and wanted to adopt him. Isaiah seemed excited to see his parents when they visited and enjoyed talking to them on the telephone. If parental rights were terminated, the maternal aunt would continue to facilitate parental and sibling visits for Isaiah.

Tony testified he visited the minors at least every two weeks. Isaiah ran to him and called him "Daddy." Tony said the minors did not want to leave at the end of visits.

After considering the evidence and hearing argument of counsel, the court found the minors were likely to be adopted and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.

DISCUSSION

I

The parents challenge the sufficiency of the evidence to support the court's finding the minors are adoptable. They assert the minors were not generally adoptable and there was no showing the minors' prospective adoptive families would remain committed to adopting them.

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 weigh the evidence. (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 there is substantial evidence supporting 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 ordinarily 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, 378.) If the child is generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, "[w]hen a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)

B

Here, the evidence showed the minors were not generally adoptable because they have significant developmental and psychological problems, which present daunting obstacles to adoption. However, the minors are specifically adoptable because their caregivers want to adopt them and there was no evidence of any legal impediment to adoption. Both sets of caregivers have begun the adoptive home study process and Agency has no concerns about their parenting skills or their ability to meet the minors' many needs. The caregivers for Toni and Mason are licensed Regional Center foster parents who are highly trained and have many years of experience caring for severely developmentally delayed children. Isaiah's caregivers have an approved relative home study that is renewed yearly. The minors have been in their prospective adoptive homes for more than a year and have benefitted from the specialized individual care they receive. The caregivers remain committed to adopting the minors, and have expressed their joy in being able to provide these children with a better quality of life. Substantial evidence supports the court's findings the minors are adoptable. (In re Helen W., supra, 150 Cal.App.4th at p. 80.)

II

The parents challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of former section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating their parental rights. They assert they had a parental role in the minors' lives and the minors had a significant, positive, emotional attachment to them. They further assert the minors' exceptional needs required continuing the parent-child relationship and guardianship was the appropriate permanent plan. Alternatively, the parents assert their parental rights should not have been terminated as to Isaiah because his needs are not exceptional, he has a bond with Tony and it would be detrimental to Isaiah to terminate parental rights.

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.)

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 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. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she has 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.) We review the finding section 366.26, subdivision (c)(1)(A) was inapplicable for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

B

Here, the parents regularly visited the minors but they did not meet their burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Myra's own limitations prevented her from adequately parenting the minors. She was overwhelmed by having to care for the minors and lacked the psychological resources necessary to cope with their disabilities and resulting demands. Tony did not help with childcare and deferred to Myra despite her inability to provide the minors with basic care.

Although the minors enjoyed visits with the parents, they were not sad when visits ended and did not want to stay with them. For almost two years, the minors have looked to their caregivers to meet their needs. The parents' relationship with the minors was not parental, but was more like that of playmates or extended family members. There was no showing the minors would be "greatly harmed" if they no longer had contact with the parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, the parents did not show that maintaining their relationship with the minors outweighed the benefits of adoption. Because the minors have significant disabilities and delays, they need a highly structured, stable environment, which the parents are unable to provide. The minors are in stable, nurturing homes with caregivers who are committed to adopting them and where they are thriving.

Although the parents prefer guardianship rather than adoption as the minors' permanent plans, the Legislature has decreed that a permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating parental rights.

C

The parents claim their parental rights should not be terminated as to Isaiah because he has a bond with Tony and, unlike his siblings, his needs are not exceptional. However, Isaiah's bond with Tony was described as only mild to moderate. Tony did not have a parental role in Isaiah's life and was unable to provide Isaiah with a stable, safe and nurturing home. There was no evidence that terminating the parent-child relationship would result in great detriment to Isaiah.

Further, Isaiah's developmental delays require that he receive a great deal of assistance and supervision. Isaiah was beginning to manifest symptoms similar to those of his siblings. His caregiver, the maternal aunt, was able to meet his needs on a daily basis and was committed to adopting him. She was also willing to maintain parental and sibling visits. Substantial evidence supports a finding the benefits of adoption for Isaiahpermanence, stability and consistencyfar outweighed any benefit he would derive from maintaining his legal relationship with the parents.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.

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

^[2] Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838,  52.) Former subdivision (c)(1)(A) is now found at subdivision (c)(1)(B)(i). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.