In re I.T.

Filed 8/14/09 In re I.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.

C.T. appeals a judgment terminating her parental rights to her minor daughters, I.T. and D.H. (the minors), under Welfare and Institutions Code[1] section 366.26. C.T. argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2006 1-year-old I.T. and six-month-old D.H. became dependents of the juvenile court under section 300, subdivision (b) and were removed from C.T.'s custody based on findings that C.T. suffered from chronic drug use. I.T. and D.H. came to the attention of the San Diego County Health and Human Services Agency (the Agency) after C.T. left the minors in the care of a drug addict, and did not return to pick them up. In addition, C.T. had a history of suffering from psychiatric illnesses, including schizophrenia. The Agency's detention report detailed C.T.'s extensive history with child welfare services. C.T. had two older children that had been removed from her care in 1999 due to her drug use. C.T. did not reunify with them. The Agency recommended that the court deny reunification services to C.T. and schedule a section 366.26 selection and implementation hearing. The court followed the recommendation and scheduled the section 366.26 hearing.

An Agency social worker prepared an assessment report indicating the minors had been placed in a foster home and were doing well in the placement. The social worker assessed the minors as adoptable based on their good health and normal development. Before the start of the section 366.26 hearing, C.T. filed a section 388 modification petition. C.T. alleged that she had been participating in a substance abuse program and had obtained psychiatric treatment. Based on her progress with these services, the court granted C.T.'s petition and ordered that she participate in six months of services.

C.T. successfully participated in services during the next 12 months. She attended a drug treatment program and worked closely with a psychiatrist. C.T. visited the minors once a week for the first six months of the dependency. After six months of services, the Agency recommended that C.T. receive two visits a week with the minors, one supervised and the other unsupervised. The minors remained placed with the same caregiver throughout the reunification period. In March 2008 C.T. tested positive for cocaine. She stopped attending her 12-step program meetings and she did not have a sponsor. Although C.T. had permission to see the girls twice a week, on average, she only saw the girls once a week. The Agency recommended that all visits between C.T. and the minors become supervised. At the 18-month review hearing, the court terminated services for C.T. and scheduled a section 366.26 hearing.

In an assessment report, social worker Jessica Schmidt reported that C.T.'s participation with services was not satisfactory. C.T. was no longer in compliance with her drug treatment program, she did not complete a parenting class and she stopped seeing her therapist.

Schmidt assessed the minors as adoptable. The minors were young, attractive and in good health. The minors had lived with their current caregiver for two years and the caregiver was committed to adopting them. In addition, the Agency identified numerous other families interested in adopting a sibling set like I.T. and D.H.

Schimdt observed several visits between C.T. and the minors. C.T. showed affection toward the minors and participated in some parenting tasks, such as changing diapers. The minors called C.T. "mom" but they also called their foster mother "mom." I.T. also referred to C.T. as her "foster mom" and C.T. sometimes referred to the minors' foster mother as their mother.

Schmidt noted the visits generally were appropriate but there were many times when C.T. became frustrated with the girls, or she would have difficulty controlling them. In one instance, C.T. became frustrated when D.H. drank her water too fast and when I.T. wanted to engage in an activity that C.T. did not want to play. C.T. would sigh, raise her voice and make inappropriate comments to the girls, such as, "you're getting on my nerves, get your butt over here." On one occasion, D.H. ran out of the visitation room. Schmidt had to instruct C.T. to go and get D.H. Schmidt reported that she often intervened to help model appropriate behavior for C.T., or to reengage the minors with C.T. during visits.

D.H. sometimes refused to visit with C.T. Instead, D.H. would hold on tightly to Schmidt or seek out Schmidt's attention. At the end of visits, D.H. did not cry or show signs of distress. I.T. occasionally cried at the end of visits but I.T. could be easily comforted by her caregiver or Schmidt. Schmidt reported it was not unusual for I.T. to cry several times during the course of a visit, especially when I.T. wanted something from C.T.

Although C.T. regularly visited the minors, Schmidt opined it would not be detrimental to terminate parental rights. C.T.'s relationship with D.H. was comparable to a friendly visitor and with I.T. the relationship was more like an extended family member. Schmidt believed C.T. had not maintained a parental role in the minors' lives, mainly because of C.T.'s ongoing drug addiction. Schmidt acknowledged that C.T. cared for the girls, but she needed a substantial amount of intervention and support in order to appropriately interact with the children.[2]

The court held a section 366.26 hearing in December 2008. After considering the evidence, the court found the minors were likely to be adopted and none of the exceptions to section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court noted the minors would not benefit more from maintaining the relationship with C.T. than they would receive from placement in a stable, loving home. The court terminated parental rights and referred the minors for adoption.

DISCUSSION

C.T. challenges the sufficiency of the evidence to support the court's findings the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating her parental rights. C.T. asserts she regularly visited the minors as much as possible and that the minors would be greatly harmed by the loss of their relationship. In support of her assertion, C.T. points to evidence that I.T. would sometimes cry at the end of visits.

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 six specified exceptions. ( 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26, subdivision (c)(1)(B)(i) 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.) "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. (1999)70 Cal.App.4th 38, 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a positive and 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 evidence showed C.T. maintained regular contact with the minors, but she did not meet her burden of showing her relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption. Although the minors knew C.T. was their mother and enjoyed visiting with her, C.T. did not occupy a parental role in the minors' lives. Despite receiving a multitude of services to address her drug addiction and mental illness, C.T. never secured overnight visits or unsupervised visits with the minors for long periods of time. C.T. had difficultly controlling the minors and became frustrated with them. Schmidt often had to intervene and instruct C.T. on how to interact with the girls in an appropriate manner. Further, the minors had not lived with C.T. for more than two years. The minors did not consider C.T. to be their psychological caregiver, and they did not look to her to meet their everyday needs. In Schmidt's opinion, the relationship between the minors and C.T. was that of a friendly visitor or an extended relative. Schmidt believed any benefit the minors derived from the relationship was outweighed by the stability and security they would gain from being adopted. (In re Helen W. (2007)150 Cal.App.4th 71, 81.)

There was no evidence the minors had a substantial, positive emotional attachment to C.T. to permit the conclusion 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.) The minors were thriving in their placement without C.T. being in their lives. They did not ask for C.T. between visits and the lack of contact did not adversely affect them. The minors looked to their caregiver to meet their needs and referred to her as "mom." We do not deny that I.T. showed signs of sadness at the end of visits and sometimes, she cried. However, she easily recovered after a few minutes or after returning to her caregiver. I.T. may grieve and feel a sense of loss if she no longer had contact with C.T. However, there was no showing I.T. would be greatly harmed by terminating C.T.'s parental rights. 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.)

C.T. relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) to support her argument that parents need not show a "primary attachment" for the beneficial parent-child relationship exception to apply. She argues the facts of her case are similar to the facts in S.B. because, like the father in that case, she regularly visited the minors and shared affection with them. In S.B., this court reversed an order terminating the father's parental rights over his daughter, S.B., under the parent-child beneficial relationship exception to adoption. In that case, the father complied with every aspect of his case plan, frequently visited the minor and was devoted to her. Further, the minor loved her father and wanted to live with him. (Id. at p. 294-295.) This court concluded the minor would be greatly harmed by loss of the significant, positive relationship the minor shared with her father. While factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case, the trial court had sufficient evidence to support its findings. Further, S.B. "does not . . . stand for the proposition that a termination order is subject to reversal whenever there is "some measure of benefit" in continued contact between parent and child." (In re Jason J. (July 9, 2009, D054188) ___Cal.App.4th___ [2009 WL 1958733].)

After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that an adoptive placement would give the minors, 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)(B)(i) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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

[2] Schmidt reports the girls participated in a bonding study with Dr. Carbonell. Schmidt represented in an addendum report that she followed up with Dr. Carbonell and learned that a report concerning the study was not going to be generated. C.T. does not raise any arguments in her opening brief about the contents or propriety of the bonding study.