In re J.H.
Filed 1/29/13 In re J.H. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re J.H., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
N.S.,
Defendant and Appellant.
D062518
(Super. Ct.
No. J517995)
APPEAL from
an order of the Superior Court
of
County, Ronald F. Frazier, Judge. Affirmed.
N.S.
appeals a juvenile court order terminating her
pursuant to Welfare and Institutions Code section 366.26.
evidence to support the court's finding that the parent-child relationship
exception to termination of parental rights did not apply. We affirm the order.
Factual and Procedural History
On December
14, 2010, the Narcotics Task Force (NTF) served a warrant on the home of Mark
H. and N.S., parents of eight-year-old J.H.
long-standing investigation by the Drug Enforcement Administration and Postal
Inspector into the activities of Jamaican nationals and their Mexican suppliers
alleged to be mailing packages of marijuana from San Diego to the East
Coast. The NTF arrested both parents and
they were taken into custody. Agents
found evidence of a marijuana packaging operation in the home and a half pound
of marijuana on top of a three-foot shelf in an unlocked garage accessible to
J.H. A child protective services worker
was called to the scene and J.H. was taken into protective custody and
transported to Polinsky Children's Center.
Mark and
N.S. were charged with possession of marijuana for sale and related crimes, as
well as willful child cruelty. Both
parents were subject to immigration holds on the basis they were in the United
States illegally from Jamaica
and, as a result, were not eligible for release on bail. On December
16, 2012, the San Diego County Health and Human Services Agency
(Agency) filed a petition in the juvenile court on behalf of J.H. under section
300, subdivisions (b) and (g). The
petition alleged J.H. was at substantial risk of harm because marijuana was
found in the home and the parents' incarceration left J.H. without any
provision for support.
The Agency
reported J.H. was born in Jamaica
in 2002. In 2005, N.S. left J.H. with
the maternal grandmother and entered the United
States illegally to join Mark in San
Diego. Later
that year, Mark and N.S. successfully arranged for J.H. to be smuggled into the
United States. Once reunited in San
Diego, N.S. stayed at home with
J.H. They lived with, and were supported
financially by, Mark. Initially, Mark
did odd jobs as a carpenter and mechanic to support the family. Eventually, though, the family's income was
derived solely from the sale of marijuana and N.S. assisted in this illegal
business. At the time of his parents'
arrest, J.H. attended a private school and was in the second grade. He was described by the school's principal as
"an excellent student," was always appropriately dressed and on time,
and did not have any behavioral problems.
J.H. was also up to date with immunizations and had been to regular
health and dental check-ups.
At the time
of the jurisdiction hearing in January 2011 both parents, who remained in
custody, wanted J.H. placed with his paternal grandmother or paternal aunt in
Connecticut. The paternal grandmother
was willing and able to assume custody of J.H. immediately. To facilitate the placement, the Agency
requested expedited Interstate Compact on the Placement of Children (ICPC) home
evaluations for the grandmother and aunt.
The court sustained the allegations of the petition under section 300,
subdivision (b) and at the subsequent disposition hearing the court declared
J.H. a dependant, removed J.H. from parental custody and ordered reunification
services for both parents. In late
March, the ICPC for the paternal grandmother was approved and in April, J.H.
was transported to Connecticut to
live with her and her adult son and daughter.
At the time
of the six-month review hearing, J.H. was adjusting well to his grandmother's
home and doing well in school. A pro
bono immigration attorney was also assisting J.H. to obtain legal residency (a
green card). J.H. spoke to both parents
frequently and was sad about not seeing them, but was happy living with his
grandmother, aunt and uncle. In the
meantime, Mark was deported to Jamaica. N.S. remained in custody and was awaiting
potential deportation. Neither parent
was in contact with the Agency during the review period, and it was unclear if
they had participated in reunification services and wished to continue attempts
to reunify with J.H., or preferred J.H. remain with the paternal
grandmother. At the hearing, the court
ordered six additional months of services for the parents to determine their
intentions and to allow sufficient time for J.H.'s green card application to be
processed.
During the
subsequent review period, J.H. was approved for permanent resident status in
the United States
and continued to do well in Connecticut
with his grandmother. Although he missed
his parents and spoke to them regularly by telephone, he was happy living with
his grandmother. The Agency received a
letter from N.S. stating she was still in custody in San
Diego and was continuing to fight deportation. N.S. stated she wanted J.H. to complete the
immigration process and remain in the United
States, but she did not want to lose her
parental rights.
At the
12-month review hearing, N.S.'s counsel stated she was in weekly contact with
N.S. and confirmed N.S. remained in custody.
N.S.'s counsel also reported that she had tried unsuccessfully to
produce N.S. for hearings. The Agency
stated that N.S. had not had any reunification services because she was in
custody. The court found that N.S. and
Mark had not made substantive progress with their case plans, terminated
reunification services and set a section 366.26 selection and implementation
hearing.
The Agency
assessed J.H. as adoptable. He continued
to do well in school, was in good health and did not have any developmental
concerns. J.H. spoke with his parents on
the telephone regularly, but did not ask about them between calls and did not
have any adverse behavior or reaction after speaking with them. In an interview with the Agency's social
worker, J.H. stated his grandmother had explained adoption to him, he knew his
grandmother wanted to adopt him and he felt happy about it. J.H. also stated that he would feel sad if he
never got to see his parents again but he still wanted his grandmother to adopt
him. Throughout the proceeding, the
grandmother expressed her desire to adopt J.H. as well as her willingness to
foster the relationship between J.H. and his biological parents.
At the
N.S. argued against termination of her parental rights on the ground she had a
beneficial parent-child relationship with J.H. under section 366.26,
subdivision (c)(1)(B)(i).
name="_ftnref3" title="">[3] She argued guardianship with the paternal
grandmother, and not adoption, was the better option. The Agency's report, however, indicated N.S.
wanted J.H. to remain in the United States and that she was willing to have
J.H. adopted by the paternal grandmother if she were deported. After considering the evidence and arguments
of counsel, the court found the benefits of adoption outweighed the benefits of
maintaining the parent-child relationship between N.S. and J.H. and terminated
the parental rights of N.S. and Mark.
Discussion
N.S. challenges the sufficiency
of the evidence supporting the court's finding the beneficial parent-child
relationship exception to adoption did not apply. She asserts she shared a beneficial
relationship with J.H. such that J.H. would suffer detriment if that
relationship were terminated.
I
After
reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child,
including the child's interest in a stable, permanent placement that allows the
caregiver to make a full emotional commitment to the child. (In re
Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the selection and implementation hearing,
the court has three options: (1)
terminate parental rights and order adoption as the permanent plan; (2) appoint
a legal guardian for the child; or (3) order the child placed in long-term
foster care. (Ibid.)
"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 the specified statutory
exceptions. (§ 366.26, subd.
(c)(1)(A) & (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
922, 936.)
We review
an order terminating parental rights for substantial evidence. (In re
Autumn H., supra, 27 Cal.App.4th at p. 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 weigh
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 Casey D. (1999) 70
Cal.App.4th 38, 52-53; 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.)
II
Here, N.S.
and J.H. had a parent-child relationship.
N.S. raised J.H. for most of the first eight years of his life and
provided him with a relatively secure home.
N.S., however, failed to show the parent-child relationship was
sufficiently beneficial to apply the exception of section 366.26, subdivision
(c)(1)(B)(i).
At the time
of the selection and implementation hearing, N.S. and J.H. had been separated
for more than 18 months. With N.S.'s
consent, J.H. had lived with his paternal grandmother in Connecticut for more
than a year and was thriving in her home.
He was doing well in school and had no behavioral or emotional
problems. When J.H. did struggle at
school, the paternal grandmother strongly advocated on his behalf. Although J.H. missed his parents, he did not
cry or demonstrate other strong negative feelings as a result of the
separation. J.H. also understood what
adoption meant. Although he would be sad
if he never got to see his parents again, he knew this was a possibility if his
grandmother adopted him and he still wanted to be adopted. For her part, N.S. wanted to exercise her
parental rights only if she was not
deported to Jamaica. N.S. expressed her
desire for J.H. to remain in the United States and believed the paternal
grandmother was the best person to provide for J.H. if she were deported.
greatly harmed if parental rights were terminated.
Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Scott B., supra,
188 Cal.App.4th at p. 470.)
Further,
N.S. has not shown that maintaining her relationship with J.H. outweighed the
benefit of adoption for him. At the time
of the selection and implementation hearing, J.H. had been out of the parents'
care for more than 18 months. He
depended on his paternal grandmother to meet his daily physical, medical,
developmental and emotional needs. J.H.
bonded with his paternal grandmother, who wants to adopt him. "The reality is that childhood is brief;
it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by
someone, at the time the child needs it, not when the parent is ready to give
it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Although N.S. believes a guardianship would
serve J.H.'s interests, adoption is the only option that provides the stability
and permanence he needs. (See
1411, 1419 [Legislature has decreed guardianship is not in best interests of
children who cannot be returned to their parents; only adoption affords the
most permanent and secure alternative]; In
re Ronell A. (1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference to
preserve family unit does not override best interests of minors in stability
and security of adoptive home].) The
court was entitled to accept the social worker's opinion that the benefits of adoption
for J.H. outweighed the benefits of maintaining a relationship with N.S. We cannot reweigh the evidence or substitute
our judgment for that of the juvenile court.
(In re Casey D.,
While this
case is atypical in that J.H. had a relatively stable, comfortable life with
his parents prior to their arrest, adoption would not "deprive [J.H.] of a
substantial, positive emotional attachment such that [he] would be greatly
harmed . . . ."
(In re Autumn H., supra, 27
Cal.App.4th at p. 575.) The record
supported the trial court's finding that J.H.'s placement in a stable,
permanent home with his grandmother outweighed any potential benefit to J.H. of
maintaining N.S.'s parental rights.
Disposition
The order
is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Mark is not a party to this appeal.
