In re Kalia

Filed 2/17/06 In re Kalia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Thomas M. Fiorello, Referee. Affirmed.

K. K. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter Kalia J. under Welfare and Institutions Code^[1] section 366.26. K.K. challenges the sufficiency of the evidence to support the court's finding there was no beneficial parent-child relationship to preclude terminating her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2002, eight-month-old Kalia became a dependent of the juvenile court and was removed from parental custody based on a finding there was domestic violence between her parents, K.K. and Rafael J. During the next six months, K.K. participated in services and had a successful 60-day visit with Kalia. At the six-month review hearing, the court placed Kalia with K.K. with continued services.

By January 2004, K.K. and Kalia were living with the paternal grandparents. They later moved in with the maternal grandparents. K.K. struggled with the challenges of being a 19-year-old single parent, but had a good support network and was able to seek assistance through service providers. She claimed she had had no contact with Rafael and did not know his whereabouts. The San Diego County Health and Human Services Agency (Agency) recommended the court terminate its dependency jurisdiction.

In February 2005, Agency filed a section 387 petition requesting Kalia be removed from K.K. and placed in out of home care. The petition alleged K.K. continued to have contact with Rafael, with whom she had a history of violent confrontations. The petition further alleged K.K. and Rafael had recently checked into a motel where an argument ensued. K.K. pulled out a knife and chased after Rafael. K.K. sustained a stab wound to her leg.

Rafael had moved back into the paternal grandparents' home. The paternal grandmother reported K.K. broke into her home and stole property. The grandmother also reported K.K. left Kalia with her for more than a month without calling or visiting the child. The court detained Kalia out of home and ordered the parents to have separate supervised visits with her.

The court sustained the allegations of the section 387 petition, removed Kalia from K.K.'s custody, and placed her in relative care. The court terminated reunification services and set a section 366.26 selection and implementation hearing.

According to an assessment report prepared by social worker Maryann Valdivia, Kalia remained with the paternal grandparents who were committed to adopting her. Valdivia observed several visits between K.K. and Kalia, noting Kalia seemed to enjoy them. K.K. did not always show appropriate parenting skills. During one visit, when Kalia became upset, K.K. left her alone and looked for the paternal grandmother to handle the situation. When the paternal grandmother arrived at the end of another visit, Kalia yelled out to her, "Mommy, Mommy." At the next visit, Kalia went to K.K. without comment and had no difficulty separating from her.

The paternal grandmother supervised a visit between K.K. and Kalia at a restaurant. K.K. brought three "strange-looking young men" with her. While two of the men appeared to be watching the door, the third man approached K.K. and gave her a small plastic package. K.K. claimed it was a note with a telephone number.

At the next visit, Kalia said, "Hi Mommy" to K.K. and they hugged and kissed. Kalia seemed happy to see K.K. and they interacted well during the visit. Valdivia described the relationship between K.K. and Kalia as "a mother needing the child rather than a child attached to the mother."

Valdivia recommended a permanent plan of adoption for Kalia. In Valdivia's opinion, Kalia was likely to be adopted because she was young, healthy, developing normally and sociable. Valdivia anticipated the paternal grandparents would be approved to adopt Kalia. Nothing in the grandparents' evaluation process caused Valdivia any concern. Additionally, there were 12 approved homes willing to adopt a child with Kalia's characteristics.

At a contested selection and implementation hearing, Valdivia testified K.K. recently pleaded guilty to burglary. K.K.'s probation officer was recommending K.K. serve 180 days in jail and be placed on three years' probation.

Valdivia further testified K.K. had missed three visits with Kalia in the past month. Kalia showed little reaction when K.K. did not come to visits, and simply asked, "Is [K.K.] not coming?" According to the paternal grandmother, Kalia did not ask for K.K. between visits. Although Kalia viewed K.K. as a parental figure, she also had a parental relationship with the paternal grandmother, whom she called "mommy" and went to for attention and affection.

Valdivia stated K.K.'s visits had been inconsistent in the past four months. K.K. was approached by "unsavory characters" during visits with Kalia. In Valdivia's opinion, Kalia would benefit more from the stability and security of an adoptive home than she would from maintaining a relationship with K.K.

K.K. testified she had cared for Kalia for the first seven months of the child's life. During that time, and again throughout 2004, she and Kalia lived mostly with the paternal grandparents. K.K. moved with Kalia to the maternal grandparents' home, but K.K. sometimes argued with the maternal grandmother and took Kalia to stay with the paternal grandmother.

K.K. further testified she previously had weekly, supervised visits with Kalia for at least one hour per visit. Kalia called her "[K.]" and sometimes "Mom." K.K. said she played, ate and colored with Kalia. She missed visits because she was incarcerated, had transportation problems, or was confused about scheduling. Her last visit with Kalia was five weeks earlier. K.K. did not agree with a permanent plan of adoption for Kalia.

After considering the evidence and hearing argument of counsel, the court found by clear and convincing evidence Kalia was likely to be adopted and none of the exceptions to adoption in section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred Kalia for adoptive placement.

DISCUSSION

K.K. challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she maintained regular visitation and contact with Kalia who would benefit from continuing the relationship.

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 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. 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 other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) 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; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"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 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; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is 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., supra, 73 Cal.App.4th at p. 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 significant, positive, 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

Here, although K.K. regularly visited Kalia for most of the dependency period, she did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Kalia appeared to enjoy visits with K.K., but had no difficulty separating at the end of visits, did not ask for K.K. between visits and showed little reaction when K.K. did not come to visits. Kalia had a parental relationship with the paternal grandmother, called her "mommy" and went to her for attention and affection. K.K. did not consistently show adequate parenting skills, often relying on the social worker or the paternal grandmother to provide activities for Kalia. In the social worker's opinion, the relationship between K.K. and Kalia did not promote Kalia's welfare to such a degree as to outweigh the benefits of a permanent home. The court was entitled to find the social worker's opinion credible and give great weight to her assessment and testimony. 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 p. 53.)

Further, no evidence showed terminating parental rights would likely cause Kalia great harm and deprive her of a substantial, positive emotional attachment to K.K. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Any possible benefit to Kalia of continuing a relationship with K.K. was outweighed by the benefits of adoption. Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

C

K.K. asserts the standard for finding a beneficial parent-child relationship as articulated in In re Autumn H., supra, 27 Cal.App.4th 567 and its progeny creates an insurmountable burden for parents. Instead, she urges us to abandon that standard in favor of "current developmental neurobiology and psychology as to what constitutes beneficial relationships for children." However, as we stated in In re Casey D., supra, 70 Cal.App.4th at page 51, the beneficial relationship standard, while "setting the hurdle high," is not an impossible one and is consistent with a child's right to a safe, stable and permanent home. The holding in In re Autumn H. does not enlarge a parent's burden, but simply defines it. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)^[2] K.K.'s failure to prove the existence of a beneficial relationship did not result from an impossible burden or improper focus, but from her inability to make the progress necessary to care for Kalia and establish a consistent, loving parent-child relationship such that Kalia felt a significant, positive, emotional attachment to her.

D

K.K. asserts Kalia would benefit from preserving the parent-child relationship by a permanent plan of guardianship. However, 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.) Unlike adoption, guardianship is "not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature." (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251.) Kalia, whose needs could not be met by K.K., deserves to have her custody status promptly resolved and her placement made permanent and secure. After balancing the strength and quality of the parent-child relationship against the security and sense of belonging a new family would give Kalia, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating K.K.'s parental rights.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

Publication courtesy of San Diego Neighbor Law Attorney (http://www.mcmillanlaw.us/) And San Diego Lawyers Directory ( http://www.fearnotlaw.com/ )

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

^[2] We decline Kenosha's invitation to hold that courts must assess the nature of the parent-child relationship by applying a "reciprocal connectedness theory," that is, asking "to whom is this child connected," rather than "to whom is this child attached."