In re J.Z.

Filed 12/23/09 In re J.Z. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The minor, J.Z., challenges the juvenile court order selecting guardianship as the permanent plan. He argues that respondents C.W. (mother) and Frederick Z. (father) failed to meet their burden to show that the exception to termination of parental rights for parents who have continuing beneficial relationships with their dependent children applied here. (Welf. & Inst. Code,  366.26, subd. (c)(1)(B)(i).)[1] We conclude that substantial evidence supports the juvenile courts order.

I.
Factual and Procedural
Background

In October 2005, the Alameda County Social Services Agency (Agency) filed a petition under section 300, subdivision (b) [failure to protect], alleging that mother and the minor tested positive for drugs when the minor was born the previous week. The petition further alleged that mother had struggled with a substance abuse problem for 14 years. An amended petition was filed the next day stating that father was the alleged father, but that his whereabouts were unknown.[2] The minor was ordered detained. The juvenile court granted the Agencys motion to amend the petition to add an allegation under section 300, subdivision (g) [no provision for support], and the minor was adjudged a dependent child.

The Agency later recommended that the minor be returned to mothers care and that they receive family maintenance services. The minor was placed with mother for five months, from November 17, 2005 to April 21, 2006, and they received family maintenance services. The mother relapsed, however, and the minor was again taken into protective custody.

The Agency filed a supplemental petition on April 24, 2006, alleging that mother had admitted that she had relapsed into her cocaine addiction, that she had not participated in parenting classes or individual counseling, and that father had a history of substance abuse that may periodically interfere with his ability to parent. The minor was again ordered detained.

A combined jurisdictional and disposition hearing was held on May 18, 2006. The juvenile court found true the allegation in the supplemental petition that mother was not in compliance with her case plan, found that the minor continued to be a dependent child as described by section 300, subdivisions (b) and (g), and ordered visitation and reunification services.

In its status review report dated October 19, 2006, the Agency reported that mother visited consistently with the minor but had not participated in substance abuse programs or addressed her recovery. At that time, father was not in contact with the social worker. Neither parent was in compliance with the case plan, and their efforts to address the causes necessitating placement were minimal, according to the social worker. The social worker also reported that mother had been arrested for slapping father while he was driving, an incident that occurred while the minor was with them during an unauthorized visit.

At a review hearing on November 1, 2006, the juvenile court terminated reunification services and scheduled a permanency planning hearing ( 366.26). The court also ordered that visitation between the minor and his parents be continued as frequently as possible consistent with the minors well-being.

On January 12, 2007, the juvenile court ordered that the minor be placed in a foster home with people willing to adopt him, after the foster mother who had been caring for the minor was diagnosed with a serious illness. The minor was placed in a new foster home immediately, and at the time of the permanency planning hearing his foster parents were able and willing to adopt him.

Mother and father had weekly supervised visits with the minor after he was placed with his new foster family. Both parents reportedly interacted positively with the minor, and they changed his diapers and fed him. Father was always attentive, joking and playing with the minor. Mother was happy and bubbly during visits, but she also could appear  scattered,  and she was in and out of the room a lot during visits. The social worker reported that the minor also had contact with some of his other relatives, including an adult half-brother and two maternal aunts.

The scheduled permanency planning hearing was continued from February 2007, first to allow time to investigate the parents claims that they had Indian ancestry, then to permit the Agency to respond to petitions filed in May 2007 by mother and father requesting changes to a previous court order because of changed circumstances ( 388, section 388 petitions).[3] The juvenile court held a contested hearing on the section 388 petitions over seven days, on June 28, September 21, and November 27, 2007, and January 14, February 13, March 10, and April 14, 2008. The juvenile court denied both petitions on April 14, 2008.[4]

The juvenile court held a contested permanency planning hearing over three days, on May 9, June 6, and August 4, 2008. The juvenile court admitted into evidence a series of Agency reports, which consistently stated that mother and father regularly visited with the minor. One report stated that weekly visits with mother and father were generally positive, but that the parents frequently were late, and that it was often difficult to end visits in a timely and appropriate manner. A subsequent report stated that the most [mother and father] have accomplished in almost two years has been to become friendly visitors to their son. While [the minor] may enjoy the visits with his parents he does not rely on his parents to meet his needs for safety, security, and nurturance. Instead [the minor] looks to his caretakers to meet those needs. Yet another report stated that the minor enjoyed interacting with mother and father, but that he did not have difficulty ending visits and returning to his foster home.

The minors adult half-brother, J.F., who had known the minor since he was born and who had attended visits between the minor and his parents, testified at the permanency planning hearing that the minor appeared to enjoy visits with mother and father and wanted to be with them. J.F. testified that when the minor was with mother, its just like hes a total different person. Hes very happy and hes just full of life. J.F. also testified that the minor appeared to be attached to his parents, and that I know deep down inside that [the minor] want[s] to be with [father] and my mom. When asked how he knew that the minor knew who his real mother and father were, J.F. testified, Because I can just see it. Its my little brother. . . . I can look in his eye and tell that hes happy to see his mom and his dad.

Mother testified that over the previous year, she had missed only one of her weekly visits with the minor because she was on crutches at the time. She acknowledged that she had been late to two or three visits, but she explained that she rearranged her schedule once she realized that obligations for her recovery program would conflict with her visitation time. Mother testified that the minor recognized her, called her Mommy,[5] and was excited about their visits. She said she and father brought the minor food, and they ate together, read books, and played. She also bought clothing, diapers, and other supplies for the minor, because those were the things that mother instinct, I know that he has to have. She also attended a birthday party for the minor that was organized by his foster parents. Mother opined that it would be [v]ery difficult for the minor if their visits ended, because they had a special bond. Father testified that when mother was late for a visit, the minor would ask,  Wheres Mommy? 

Father also testified that the minor and he enjoyed their visits, and that the minor was affectionate with him and called him Daddy. During visits, father changed the minors diapers, read to the minor, sang with him, and played ball and other games with him. He also brought food that he prepared in advance as well as toys for the minor. Father described visits with the minor as very positive. He helped feed the minor, took him to the bathroom to clean up afterward, and comforted him when he hurt himself.

The social worker testified that the minor smiled when he saw his parents, and their visits were friendly. The minor did not show distress when visits ended, and transitions back to his foster mother generally went well. The social worker opined that for the minor, visits were like a fun place. Hes coming to have some food, some cake, some soda, and hes going to play around. The minor also had just like [a] family bond with his foster parents, and he had a good relationship with his foster parents biological son.

The juvenile court also received into evidence an Agency report dated August 4, 2008, which reported that the minor continued to visit weekly with his parents, but that at the end of each visit he goes home to the people he knows as family.

At the close of evidence, the minors counsel and county counsel argued that the juvenile court should terminate parental rights and free the minor for adoption. Mother and father argued that they had established that the beneficial relationship exception to termination of parental rights applied. ( 366.26, subd. (c)(1)(B)(i), formerly  366.26, subd. (c)(1)(A).) The juvenile court took the matter under submission, and a decision was scheduled for August 21, 2008. Instead of rendering a decision, however, the juvenile court on September 12, 2008, vacated submission and ordered a bonding study to determine the bond between the minor and his parents.

Patricia Weiss, Ph.D., a licensed psychologist, submitted a bonding study dated February 5, 2009, to the juvenile court. She concluded that the minor was attached to his biological parents, and recommended that he should continue to have supervised visits with them.

The permanency planning hearing continued on February 9, 2009. Dr. Weiss testified that she was able to observe the minor with his biological parents once, and that it was obvious that mother and father loved the minor very much. They had good interaction with the minor, and there seemed to be a very good relationship. Although it is sometimes difficult for parents to set appropriate limits during supervised visits, mother and father were able to do so with the minor, according to Dr. Weiss. The minor also felt comfortable asking mother for help when he was hungry or thirsty.

Dr. Weiss testified that the minors relationship with his parents was a beneficial one, because the minor knew that this is his mother and father, mommy-daddy [the term the minor used to refer to his parents together] and theyhe is definitely very attached andI mean, very attached. Hes attached. And, again, with one hour, its not a lot of time, but in trying to get as much background information as I can reading the reports and talking to collateral people, you know, that I do feel that this is a very important relationship and it should definitely continue. She considered it very important that the minor continue visits with mother and father.

The minor also enjoyed a beneficial relationship with his foster mother, according to Dr. Weiss, and he was an integral part of his foster family and felt comfortable with family members. Although the minor related to both mother and his foster mother as parental figures, the primary parental relationship was with his foster parents because he was being raised in their home.[6]

Dr. Weiss testified that it would be detrimental to terminate parental rights because it would not be a good idea for visitation to end. When asked by the juvenile court whether she believed the strength and quality of the minors relationship with mother and father outweighed the security and sense of belonging that his foster family would offer him, Dr. Weiss testified, I cant say it would outweigh it. When asked whether she believed that the emotional attachment between the minor and his parents was so substantial that he would be greatly harmed if deprived of that relationship, Dr. Weiss testified, Yes, I do think he would be deprived. I mean, he would be harmed if he was deprived of that relationship.

After the close of evidence, the minor and the Agency again argued that the juvenile court should terminate parental rights. The juvenile court found by clear and convincing evidence that it was likely that the minor would be adopted. However, the court also concluded that mother and father had met their burden to show that termination of parental rights would be detrimental to the minor, because mother and father had maintained regular visitation and contact with the minor, and because the minor would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) Legal guardianship was selected as the permanent plan, and the minors foster parents were appointed as his legal guardians. The minor timely appealed.

II.
Discussion

The minors sole argument on appeal is that the juvenile court erred when it found that termination of parental rights would be detrimental to him.[7] At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citation.] (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.  (Id. at p. 297.)

There is no dispute here that the minor was adoptable, or that mother and father met their burden to show they maintained regular visitation with the minor. The minor focuses solely on the second prong of the exception to adoption, whether mother and father showed that the minor would benefit from continuing his relationship with them. We review the juvenile courts order on the beneficial relationship exception for substantial evidence.[8] (In re S.B., supra, 164 Cal.App.4th at pp. 297-298; In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, the court interpreted the beneficial relationship exception to mean the relationship 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 parents rights are not terminated. The Autumn H. court later clarified, in In re S.B., that Autumn H. does not narrowly define or specifically identify the type of relationship necessary to establish the exception. The exception may apply if the child has a substantial, positive emotional attachment to the parent. [Citation.] We do not believe it is reasonable to require the parent of a child removed from parental custody to prove the child has a primary attachment to the parent, or to show the parent and the child have maintained day-to-day contact. If that were the standard, the rule would swallow the exception. (In re S.B., supra, 164 Cal.App.4th at p. 299 [reversing termination of parental rights].) The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, at pp. 575-576.)

In ruling that the beneficial-relationship exception applied here, the juvenile court stated that the strength and quality of the parent-child relationship that exists in this case between [the minor] and his parents outweighs the security and sense of belonging the new family would offer in an adoption setting and I am finding that the emotional attachment between [the minor] and his parents is so substantial and positive that he would be greatly harmed if deprived of that relationship. The record adequately supports this conclusion. Mother, father, the minors adult half-brother, and the court-appointed expert all testified that the minor enjoyed his visits with his parents, that his parents behaved appropriately with him, and that their relationship was a positive one. Dr. Weiss also testified that it was very important that the minor continue visits with mother and father, and that he would be harmed if contact did not continue.

The minor claims that Dr. Weisss bonding study and testimony did not provide substantial evidence to support the juvenile courts ruling, because she did not specifically conclude that the minors relationship with his parents outweighed the benefits of adoption, and in fact testified that she could not say that the strength and quality of that relationship outweighed the security that the foster family would offer him. Although the bonding evidence presented by Dr. Weiss might not have been enough, standing alone, to support the juvenile courts order, the court never suggested that it was relying solely on this evidence. In making its ruling, the juvenile court stressed that Dr. Weisss bonding study was only one aspect of the case and did not necessarily add a lot to what the facts are, but that it was evidence that the court considered in addition to the facts and history of the case that the court had learned and observed throughout the course of the proceedings. This included evidence that the minor enjoyed time with his parents, that mother and father brought the minor food and presents and cared for his needs in an appropriate manner while in their care, and that the minor recognized mother and father as his parents. That the court-appointed expert also testified that the minor enjoyed a beneficial relationship with his parents and that the minor would be harmed if he was deprived of that relationship was additional support for the juvenile courts ruling.

Relying on several cases where appellate courts affirmed lower court rulings that parents failed to meet their burden to demonstrate that the beneficial relationship exception applied, the minor argues that the juvenile court should have reached the same conclusion here. (In re Mary G. (2007) 151 Cal.App.4th 184, 207 [substantial evidence supported finding that mother did not show minor would suffer great harm without continued contact]; In re Angel B. (2002) 97 Cal.App.4th 454, 466-468 [parent must show terminating parental rights would deprive child of substantial, positive emotional attachment such that child would be greatly harmed]; In re Brittany C. (1999) 76 Cal.App.4th 847, 848, 853-854 [parent must show that termination of parental rights would greatly harm dependent child and that there is parent/child relationship with child instead of friendship]; In re Derek W. (1999) 73 Cal.App.4th 823, 825, 827 [although relationship pleasant and emotionally significant to minor, father failed to show he occupied  parental role  in childs life]; In re Casey D. (1999) 70 Cal.App.4th 38, 49-51 [exception applies only when exceptional circumstances shown]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1413, 1418-1420 [frequent and loving contact insufficient to show exception where parent does not stand in a parental role to child]; In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577.)

However, here we review an order finding that mother and father had met their burden. It is settled that when reviewing a juvenile courts order for sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) We affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. (Ibid., italics added.) Reviewing the juvenile courts order in this manner, we conclude that substantial evidence supports it. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1532-1533, 1537-1538 [upholding finding that beneficial relationship exception applied where twin boys, detained four months after birth, were affectionate with mother during visits and witnesses testified about good relationship between mother and children].) We recognize that there is evidence in the record, highlighted by the minor in his appellate briefs, that conflicts with the juvenile courts ruling. However, the minor effectively asks us to reweigh the evidence, which we decline to do. (In re Zachary G. (1999) 77 Cal.App.4th 799, 812 [affirming rejection of adoption exception despite expert testimony that child had a strong bond to mother and would suffer psychological distress if he were adopted].)

III.
Disposition

The juvenile courts order is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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

[2] After father was located, he at first denied paternity, but later acknowledged that he was the minors father. He was apparently at some point named the presumed father.

[3] Fathers section 388 petition alleged that he had completed a parenting class and continued to visit weekly with the minor; he requested an additional six months of reunification services. Mother also filed a section 388 petition, alleging that she had been attending outpatient substance abuse treatment; she requested the return of the minor to her custody. The juvenile court ordered an evidentiary hearing on both petitions.

[4] Mother and father appealed the denial of their petitions. Father also challenged the summary denial of an additional section 388 petition he filed on May 7, 2008. The appeals were assigned the same action number (A121776). This court dismissed the appeal as to both parties after mother and father filed abandonments of their appeals. On July 2, 2009, this court granted the minors request in this case to take judicial notice of the record in case No. A121776.

[5] The minor called both mother and his foster mother Mommy.

[6] The minors foster mother testified both at the hearing on the section 388 petitions and at the permanency planning hearing that she felt it was important for children to have relationships with members of their biological families. At the permanency planning hearing, the juvenile court took judicial notice of foster mothers testimony in connection with the section 388 petitions. The foster mother also testified that after his visits with his parents, the minor would say,  Play daddy fun. 

[7] Although the Agency did not appeal the juvenile courts order, it has filed a joinder in the minors opening brief. (Cf. Cal. Rules of Court, rule 8.200(a)(5) [party to appeal may join in appellate brief].)

[8] As mother notes, some courts apply an abuse of discretion standard of review. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) As the court observed in Jasmine D., the practical differences between these two standards of review are minor, and on this record, we would affirm under either standard. (Jasmine D., supra, at p. 1351.)