In re Miranda V.
Filed 9/14/10 In re Miranda V. 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 MIRANDA V., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
D.H.,
Defendant and Appellant.
D057144
(Super. Ct.
No. J515869)
APPEAL from
an order of the Superior Court
of San Diego
County, Ronald F. Frazier, Judge. Affirmed.
D.H.
appeals a juvenile court order terminating her parental rights to her minor
daughter, Miranda V., under Welfare and Institutions Code[1] section
366.26. D.H. challenges the sufficiency
of the evidence to support the court's finding that the beneficial parent-child
relationship exception did not apply to preclude terminating her parental
rights. We affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
In July
2007 seven-year-old Miranda became a dependent of the juvenile court under section 300,
subdivision (b), and was removed from D.H.'s custody based on the court's findings
that D.H. left Miranda without adequate support or supervision, D.H. had
relapsed into alcohol abuse, and Miranda had previously been a dependent as a
result of D.H.'s substance abuse and her prior abandonment of Miranda. The court placed Miranda in foster care and
ordered reunification services for D.H., including participation in drug
treatment and supervised visitation with Miranda.[2]
During the
initial review period D.H. participated in some services, but did not visit
Miranda for the first three months. Once
D.H. began visiting, she was appropriate and affectionate with Miranda during
visits. At the six-month review hearing,
the court ordered six more months of services for D.H., with visits to be
unsupervised. By the 12-month review
hearing, D.H. was in sober living, and was complying with reunification
services and having unsupervised visits with Miranda twice a week. The court continued services for another six
months.
In April
2009 the San Diego County Health and Human Services Agency (Agency) filed a
section 388 modification petition, seeking to have D.H.'s visits revert to
supervised. Agency had learned that D.H.
and Miranda had been in a car accident, which D.H. failed to report to Agency. D.H. had also failed to inform Agency that
she had moved to a different home where she was having overnight visits with
Miranda. Additionally, D.H. was not
helping Miranda with her homework, and sometimes completed Miranda's homework
for her.
Agency
reported that during unsupervised visits with Miranda, D.H. spent the majority
of the time with the adults in her drug treatment program, leaving Miranda
alone to entertain herself. D.H. was not
meeting Miranda's medical needs, and was causing Miranda stress by asking her
to lie about events that occurred during their visits. D.H. continued to struggle with having
empathy for Miranda and she did not put Miranda's needs before her own. D.H. began missing visits with Miranda and
then stopped communicating with her.
Miranda said this was an indication that her mother was using drugs.
At the
18-month hearing, the court terminated D.H.'s reunification services and set a
section 366.26 selection and implementation hearing. The court granted Agency's request, under
section 388, that D.H.'s visits with Miranda be supervised.
The social
worker assessed Miranda as both generally and specifically adoptable. Miranda's maternal great-aunt, who lived in South
Dakota and had never met Miranda, expressed an
interest in adopting her. When asked
with whom she wanted to live, Miranda said her first choice was D.H. and her
second choice was her current caregiver.
In the social worker's opinion, D.H. had not maintained consistent
contact with Miranda, and there was no beneficial parent-child relationship
that would outweigh the benefits of adoption for Miranda.
According
to an addendum report, D.H. had not visited or contacted Miranda for 10
months. Miranda's caregiver, with whom
Miranda had lived for more than two years, wanted to adopt her. The caregiver was an enrolled member of the
Santa Ysabel Band of Diegueno Indians, had a designated ICWA foster home and
provided Miranda with information about the Rosebud Sioux Tribe. When options for a permanent plan were
explained to Miranda, she seemed to understand the concept of adoption and said
that she wanted to stay in her current home and have her caregiver adopt her.
At a
contested selection and implementation hearing, the court received in evidence
Agency's reports and a declaration from a qualified Indian expert. The court accepted the stipulated testimony
of the maternal great-aunt, Miranda and D.H.
The
maternal great-aunt's stipulated testimony provided that she wanted Miranda to
live with her on the Rosebud Sioux Reservation.
Although she did not want to adopt Miranda, she was willing to be her
legal guardian and would assist Miranda in maintaining her cultural ties to the
tribe.
In
Miranda's stipulated testimony, she said that she wanted her caregiver to adopt
her, and did not want to live with the maternal great-aunt, whom she had never
met. Miranda wanted to have contact with
D.H., and she trusted her caregiver to make decisions regarding contact.
D.H.'s
stipulated testimony provided that she loved Miranda very much, wanted to see
her and did not want the court to terminate her parental rights. D.H. did not want Miranda to be adopted. She preferred a plan for Miranda that would
enable her to preserve her parental rights, such as guardianship. She was concerned that Miranda would lose her
ties with the Rosebud Sioux Tribe, and believed that guardianship, rather than
adoption, would allow those ties to be maintained.
Qualified
Indian Expert, Philip Powers, submitted a declaration stating that in his
opinion, returning Miranda to D.H.'s custody would present "a substantial
risk and danger of serious physical or emotional harm" to this Indian
child.
After
considering the evidence, stipulated testimony and argument of counsel, the
court found that Miranda was likely to be adopted and that none of the
exceptions to adoption applied. The
court terminated parental rights and referred Miranda for adoptive placement.
DISCUSSION
D.H.
contends that the juvenile court erred by terminating her parental rights. Conceding that she visited Miranda only sporadically
and at times not at all, D.H. nevertheless asserts that Miranda "has a
fully-formed, deeply internalized cognitive idea that [D.H.] is indeed
friendly visitor. Thus, she argues,
terminating parental rights would deny Miranda the opportunity to resolve the
parent-child relationship and would prevent her from forming healthy
relationships.
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 that 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 a compelling reason for
determining that termination of parental rights would be detrimental to the
child under one or more of the enumerated statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi);
In re A.A. (2008) 167 Cal.App.4th
1292, 1320.) "The parent has the
burden of establishing the existence of any circumstance that constitutes an
exception to termination of parental rights." (In re
T.S. (2009) 175 Cal.App.4th 1031, 1039.)
Because a selection and implementation hearing occurs "after the
court has repeatedly found the parent unable to meet the child's needs, it is
only in an extraordinary case that preservation of the parent's rights will
prevail over the Legislature's preference for adoptive placement." (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Section
366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption
preference if terminating 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
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.,
accord In re Zachary G. (1999)
77 Cal.App.4th 799, 811; In re Jason
J. (2009) 175 Cal.App.4th 922, 936-937.)
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 Jason J., supra,
175 Cal.App.4th at pp. 936-937; In re
Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show that 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 Derek W.,
We review
the juvenile court's finding regarding the applicability of a statutory
exception to adoption for substantial
evidence. (In re Autumn H., supra,
27 Cal.App.4th at p. 576.) In this
regard, 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 Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of
showing that there is no evidence of a sufficiently substantial nature to
support the court's finding or order. (
947.)
B
The record shows
that D.H. did not visit Miranda for the first three months of the dependency
proceedings. D.H. then began to have
regular and consistent visits with Miranda, and eventually progressed to
unsupervised visits. However, D.H.
ultimately developed a pattern of visiting Miranda only sporadically or not at
all. D.H. never inquired about Miranda's
well-being. During the 10 months leading
up to the selection and implementation hearing, D.H. neither visited nor
contacted Miranda, and made no other effort to reunify with her. In this regard, D.H. cannot be fairly
characterized as being even a "friendly visitor." The minimal visitation and contact that
occurred between D.H. and Miranda is not the type that the Legislature
envisioned in providing an exception to adoption based on a beneficial
parent-child relationship.
C
The lack of
regular visitation and contact contributed to the lack of a beneficial
parent-child relationship between D.H. and Miranda. Throughout the proceedings, D.H. did not play
a parental role in Miranda's life. Even
when D.H. did visit Miranda, D.H. put her own needs before Miranda's, choosing
to interact with other adults rather than with Miranda, and leaving Miranda to
entertain herself. D.H. lacked empathy
for Miranda, neglected Miranda's medical and academic needs and exploited her
relationship with Miranda by coaching her to lie about events that occurred
during visits. D.H. abdicated her
parental role when she missed visits with Miranda, stopped communicating with
her and abandoned her on numerous occasions.
To the
extent that D.H. was ever a parent to Miranda, their relationship impacted
Miranda negatively and thus was not beneficial.
There was absolutely no showing that Miranda had a "significant,
positive, emotional attachment" to D.H. such that terminating parental
rights would result in "great harm" to Miranda. (In re
Autumn H., supra,
27 Cal.App.4th at p. 575; In re
Jason J., supra, 175 Cal.App.4th
at p. 936.) "A biological parent
who has failed to reunify with an adoptable child may not derail an adoption
merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent." (
97 Cal.App.4th 454, 466.)
Further,
D.H. did not show that maintaining a relationship with Miranda outweighed the
benefits of adoption for her. At the
time of the selection and implementation hearing, Miranda was 10 years old and
had experienced turmoil and instability for most of her life. Although Miranda initially said that D.H. was
her first choice for placement, her stipulated testimony provided that she
wanted her caregiver to adopt her. The
caregiver was providing Miranda with the safety and stability that Miranda
desperately needed. Even if severing the
parent-child relationship might cause Miranda to experience some sense of loss,
the relationship is "simply not enough to outweigh the sense of security
and belonging an adoptive home would provide." (In re
Helen W. (2007) 150 Cal.App.4th 71, 81.)[3] The court was required to, and did, weigh the
strength and quality of the parent-child relationship, and the detriment
involved in terminating it, against the potential benefits to Miranda of being
in an adoptive home. We cannot reweigh
the evidence or substitute our judgment for that of the juvenile court. (In re
Casey D. (1999) 70 Cal.App.4th 38, 53.)
D.H.
contends that maintaining the parent-child relationship is particularly
important in this case because Miranda's only contact with the Rosebud Sioux
Tribe is through D.H. However, there was
no evidence before the juvenile court that terminating parental rights would
substantially interfere with Miranda's connection to her tribal community or
with her tribal membership rights. (See
§ 366.26, subd. (c)(1)(B)(vi)(I).)
Indeed, the evidence showed that both the social worker and Miranda's
caregiver were encouraging and protecting Miranda's connection to the Rosebud
Sioux Tribe.
D.H.'s
reliance on this court's opinion in In re
S.B. (2008) 164 Cal.App.4th 289, 298-300, to support her argument that she
had a beneficial parent-child relationship with Miranda, is misplaced. The father in S.B. was devoted to his child, visited her regularly, and had
complied with every aspect of his case plan.
The evidence in that case showed that despite the child's strong,
positive, significant relationship with her caregiver, she would be
"greatly harmed" by the loss of the equally significant, positive
relationship that she shared with her father.
(Id. at pp. 300-301.)
Here, in
contrast, D.H. had not made Miranda a priority in her life and had taken no
steps to reunify with her, including visiting or communicating with her. There was no evidence, direct or inferential,
that Miranda would be greatly harmed if parental rights were terminated. (See In
re Jason J., supra, 175
Cal.App.4th at p. 937 [In re S.B.
does not stand for the proposition that an order terminating parental rights
must be reversed whenever there is some measure of benefit in continued contact
between parent and child].)
The court
selected adoption for Miranda based on its determination that the particular
facts presented and the statutory preference for adoption as the most permanent
plan, rendered adoption the plan that served Miranda's best interests. (In re
Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
There is substantial evidence in the record to support the court's
determination. Miranda, whose needs D.H.
did not and could not meet, deserves to have her custody status promptly
resolved and her placement made permanent and secure. D.H. has shown no reason, supported by policy
or the law, to deviate from the Legislature's preference for adoption here.
DISPOSITION
The order
is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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[1]
Statutory references are to the
Welfare and Institutions Code unless otherwise specified.
[2] Miranda is an Indian child within the
meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
because D.H. is an enrolled member of the Rosebud Sioux Tribe.
