In re T.H.

Filed 7/19/06 In re T.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Cynthia Bashant, Judge. Affirmed.

Amelia H. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter T.H. under Welfare and Institutions Code section 366.26.^[1] Amelia challenges the sufficiency of the evidence to support the court's findings: (1) T.H. was likely to be adopted; and (2) there was no beneficial parent-child relationship to preclude terminating her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

T.H. was born in February 2005, the seventh of Amelia's children. Amelia has a history of mental illness, including paranoid schizophrenia, resulting in her inability to care for any of her children. Before T.H. was born, dependency petitions were filed on behalf of four of Amelia's children. Despite being offered reunification services, Amelia was unable to reunify with any of them.

T.H. was considered a high-risk newborn due to her premature birth, requiring placement in the hospital's special care unit. Because Amelia's paranoid schizophrenia persisted, the special care unit's medical director believed Amelia could not provide a safe environment for T.H.

The San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) alleging Amelia's mental illness rendered her unable to provide regular care for T.H. The court detained T.H. in out of home care and ordered liberal, supervised visits for Amelia. An amended petition named Tony B., whose whereabouts were unknown, as T.H.'s alleged father.^[2]

Amelia attended two parenting classes and two psychotherapy sessions. At the request of Amelia's counsel, Robert Kelin, Psy.D., conducted a psychological evaluation of Amelia, finding she had a cognitive disorder, which impaired her ability to communicate and function consistently. In Dr. Kelin's opinion, Amelia lacked adequate parenting skills and would not be able to benefit from reunification services. He suggested, however, that Amelia could possibly benefit from reunification services in the future if her medication were changed.

Rahn Minagawa, Ph.D., also conducted a psychological evaluation of Amelia. He found Amelia's primary diagnosis was schizophrenia, paranoid type. Although Amelia's condition appeared to be managed by her current medication regimen, it was unclear to Dr. Minagawa whether she would remain compliant with her medication and whether she would continue therapy. Given Amelia's transient lifestyle, Dr. Minagawa noted it would be difficult to monitor her progress. Amelia showed little insight into her mental illness and attributed most of her problems to family members and her social workers.

Dr. Minagawa reported Amelia continued to suffer from delusional thinking and appeared to be responding to auditory hallucinations. He recommended individual therapy for Amelia, regular evaluation by a psychiatrist and closely supervised visits with T.H. Although Dr. Minagawa recommended services for Amelia, he believed the prognosis for reunification was poor.

At a contested jurisdiction hearing, the court sustained the allegations of the petition under section 300, subdivision (b) and set the matter for disposition.

According to an addendum report, Amelia had not returned to counseling after the first two sessions. Amelia's psychiatrist told the social worker that changing Amelia's medication would not improve her current level of functioning. The social worker recommended the court deny services and set a section 366.26 selection and implementation hearing.

At a contested disposition hearing, the court took judicial notice of the findings and orders in the cases of T.H.'s two older siblings. The court declared T.H. a dependent and removed her from Amelia's custody. It denied Amelia reunification services under section 361.5, subdivision (b)(10) and set a selection and implementation hearing under section 366.26.^[3]

In an assessment report, social worker Cotrese Stovall noted T.H. had been living with the same caregiver since her release from the hospital at birth. Stovall described T.H. as a happy, loveable, alert and responsive baby. T.H. had no emotional problems and no health concerns despite having been born prematurely. Tony B.'s parents expressed an interest in adopting T.H. if paternity tests showed their son was T.H.'s biological father. If Tony B.'s parents did not adopt T.H., her current caregiver wanted to be considered for adoptive placement. Additionally, there were two approved adoptive families in San Diego County who were interested in adopting a child like T.H.

Stovall reported Amelia canceled some visits with T.H. and failed to show up for others. When visits occurred, Amelia held T.H. and was attentive to her needs, but not nurturing. T.H. was happy, comfortable and quiet during her time with Amelia, but separated easily when visits ended. During one visit, Stovall had to instruct Amelia not to give T.H. baby food or water. Amelia was unaware of age-appropriate parenting and T.H.'s developmental needs. In Stovall's opinion, there was no beneficial parent-child relationship between Amelia and T.H. Stovall recommended adoption as T.H.'s permanent plan.

Amelia filed a section 388 petition for modification, seeking to have T.H. placed with her. Following an evidentiary hearing, the court denied the petition.

Agency filed an ex parte application seeking the court's permission to include T.H. in adoption recruitment activities. The application contained boilerplate language that recruitment efforts "will benefit the child's permanency planning as this child is considered to be a difficult to place child for one or more reasons." However, within a few months, Agency reported T.H.'s current caregiver had been identified as a prospective adoptive parent. The caregiver had no criminal history and was committed to adopting T.H. Agency had no concerns about the caregiver's ability to be approved.

At a contested selection and implementation hearing, Amelia testified she had been visiting T.H. regularly, about once a week. T.H. appeared happy to see her. Amelia acknowledged her diagnosis of schizophrenia, stating she was taking medication for it.

Stovall testified she had observed 15 visits between Amelia and T.H. When asked to explain her statement that Amelia was attentive to T.H. but not nurturing, Stovall said Amelia's interactions with T.H. were sometimes "flat." Also, T.H. was not as responsive to Amelia as she was to other people.

Stovall further testified T.H.'s current caregiver, with whom she had lived for the past 10 months, remained committed to adopting her but had not yet been approved to adopt. If the current caregiver were unable to adopt, there were seven other prospective adoptive families interested in adopting a child like T.H.

After considering the evidence and hearing argument of counsel, the court found by clear and convincing evidence T.H. was likely to be adopted and none of the statutory exceptions applied to preclude terminating parental rights. The court terminated Amelia's parental rights and referred T.H. for adoptive placement.

DISCUSSION

I

Amelia challenges the sufficiency of the evidence to support the court's finding T.H. was adoptable. She asserts Agency considered T.H. to be "difficult to place for adoption" and there was no preliminary assessment of the eligibility and commitment of any identified prospective adoptive parents.

A

When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) 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. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) 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.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

B

Here, the evidence showed T.H. was a happy, healthy one-year-old, alert and responsive, with no medical or emotional problems. At the time the social worker prepared the assessment report, the parents of Tony B., T.H.'s alleged father, expressed an interest in adopting her if paternity tests showed Tony B. was her biological father. T.H.'s caregiver said she would adopt T.H. and Agency had identified two other approved adoptive families willing to adopt a child like T.H. For reasons not apparent on this record, Agency wanted to broaden its search for a prospective adoptive home for T.H. and therefore requested the court's permission to recruit adoptive placements for T.H.^[4] However, by the time of the selection and implementation hearing, T.H.'s current caregiver, with whom she had lived since birth, was committed to adopting her. The social worker had no concerns about the caregiver's qualifications to adopt. In the event the caregiver could not adopt T.H., there were seven other families interested in adopting a child with her characteristics. Nothing in the record supports an inference T.H. was difficult to place for adoption. Rather, substantial evidence supports the court's finding T.H. was likely to be adopted within a reasonable time. (In re Zeth S., supra, 31 Cal.4th at p. 406; In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)

C

Amelia asserts the preliminary assessment contained no information about the eligibility and commitment of any prospective adoptive parents, particularly T.H.'s current caregiver, as required by section 366.21, subdivision (i)(4). However, to the extent Amelia is challenging the sufficiency of the assessment report, she has forfeited the issue by failing to raise it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)

In any event, an assessment report need not be entirely complete, as long as it is in substantial compliance with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1482.) When an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., supra, 27 Cal.App.4th at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.)

In the social worker's opinion, T.H. was adoptable because she was physically and emotionally healthy, developing normally and had a pleasant disposition. Her current caregiver was committed to adopting her. Although an adoptive home study had not yet been completed, the caregiver had no criminal or Child Protective Services history, and the social worker had no concerns about the caregiver's ability to adopt. There were seven other families interested in adopting a child like T.H. Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.)

In spite of any deficiencies, the assessment report contained substantial evidence of T.H.'s adoptability, including her general characteristics and the interest of several prospective adoptive families. The totality of circumstances shows the court had sufficient information to determine there were no impediments to T.H. being adopted, and that adoption was the appropriate permanent plan for her.

II

Amelia challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship did not apply to preclude terminating her parental rights. Amelia asserts she visited T.H. as much as possible and T.H. was comfortable with her. We review the court's finding for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

A

"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 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.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

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 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., supra, 70 Cal.App.4th at p. 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, Amelia regularly visited T.H., but 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). Although Amelia was attentive to T.H. during visits, she did not have a parental role in T.H.'s life, and lacked the skills and ability to parent an infant. T.H. was comfortable with Amelia, but transitioned well after visits and looked to her current caregiver to meet her daily needs. There was no showing T.H. would be "greatly harmed" if she no longer had contact with Amelia. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, Amelia did not show her relationship with T.H. was sufficiently beneficial to outweigh the benefits of adoption. In the social worker's assessment, adoption was in T.H.'s best interests. T.H. is in a stable, nurturing environment with a caregiver who is committed to adopting her. 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 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.)

The juvenile 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 benefit of an adoptive home for T.H. based on her particular needs. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Amelia's parental rights. (In re Clifton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The judgment is affirmed.

HALLER, Acting P.J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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

^[2] Tony B. was later found to be in prison. Paternity testing excluded him as T.H.'s biological father.

^[3] We denied Amelia's writ petition challenging the denial of reunification services. (Amelia H. v. Superior Court (Aug. 31, 2005, D046515) [nonpub. opn.].)

^[4] Although Agency characterized T.H. as a "difficult to place child for one or more reasons," its request appears to be generic and does not state why T.H. might be difficult to place.