In re Savannah K.
Filed 9/14/11 In re Savannah K. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re SAVANNAH K., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JESSE H. et al., Defendants and Appellants. | D059047 (Super. Ct. No. NJ14156) |
APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
Jesse H. and Tonya K. (together, the parents) appeal a juvenile court order terminating their parental rights to their minor daughter, Savannah K., under Welfare and Institutions Code[1] section 366.26. The parents challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating their parental rights. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2009, four-month-old Savannah became a dependent of the juvenile court under section 300, subdivision (b), and was removed from parental custody based on findings her parents had extensive histories of methamphetamine and marijuana abuse, and Tonya acknowledged she was on parole following a drug-related conviction. The court placed Savannah with a relative and ordered the parents to participate in reunification services, including the Substance Abuse Recovery Management System (SARMS) program.
By the six-month review hearing, Tonya had been released from parole and both she and Jesse were participating in services. The court placed Savannah with Tonya and ordered unsupervised visits for Jesse. Several months later, however, the San Diego County Health and Human Services Agency (Agency) requested the court order supervised visits for Jesse because he was no longer in compliance with SARMS, and he had been discharged from his substance abuse program for nonattendance. Agency also filed a supplemental petition under section 387, alleging Savannah's placement with Tonya was no longer effective because she was not in compliance with SARMS, had been discharged from her substance abuse program, and had admittedly used methamphetamine. The court detained Savannah in foster care and ordered supervised visits for the parents.
Agency reported the parents had not completed any component of their case plans and had not visited Savannah for two months. The court found the parents had not made substantive progress with the provisions of their case plans, terminated reunification services and set a hearing under section 366.26 to select and implement a permanent plan for Savannah.
Agency assessed Savannah as adoptable. There were 56 approved adoptive families in San Diego County willing to adopt a child like her. Relatives and nonrelative extended family members were also being assessed for placement. Jesse had not contacted the social worker to schedule visits with Savannah, and he did not show up for visits he knew about and was permitted to attend. Tonya loved Savannah "immensely" and was visiting her regularly. During one visit observed by social worker Kathleen Forbes, Savannah was content to sit with Tonya. Savannah started to follow Tonya to the restroom, but instead went to the maternal aunt. At another visit, Savannah smiled when she woke up and saw Tonya. They played together, and when Savannah fell, Tonya encouraged her to get up and continue playing after determining she was not hurt. Tonya changed Savannah's diaper. Savannah cried briefly when the visit ended. Forbes noted although Tonya and Savannah were fond of each other and shared a bond, Tonya was unable to show a commitment to parenting. Forbes believed Savannah's development and well-being required more than either Tonya or Jesse could offer, given their ongoing substance abuse and consequent arrests.
The social worker had difficulty assessing the relationship between Savannah and Jesse because Jesse did not respond to outreach efforts by several social workers. Relatives who supervised visits did not provide input on the quality of the contact between Jesse and Savannah. For the past six months, Jesse had not taken every opportunity to visit Savannah and did not telephone her caregiver to inquire about her well-being. He continued to use drugs instead of actively pursuing a stable and supportive lifestyle that would allow him to parent his daughter.
In Forbes's opinion, Savannah deserved continuity and permanency, and needed to be in a stable home with caregivers who would love her and meet her needs. Accordingly, Forbes recommended the court terminate parental rights and order adoption as Savannah's permanent plan.
Tonya made another attempt at drug rehabilitation, but was again unsuccessful. She was arrested on a felony warrant after she was caught shoplifting. A short time later, Tonya gave birth to another daughter. Forbes continued to recommend termination of parental rights and adoption as Savannah's permanent plan.
At a contested selection and implementation hearing, the maternal aunt, Shannon R., testified she and Tonya sometimes visited Savannah together. At first, Shannon provided most of Savannah's care, but eventually, Tonya took on the role of mother. Although Tonya initially put her own needs before those of Savannah, her attitude about parenting began to change. Savannah referred to Tonya as "mama." When visits with Tonya ended, Savannah kicked and screamed and did not want to go with the foster mother. Early in the dependency proceedings, Shannon observed many visits between Jesse and Savannah, noting Jesse interacted positively with her.
Social worker Forbes testified she observed Savannah become upset at the end of visits with Tonya. However, Forbes was able to console Savannah within one minute. Savannah was fine when she returned to her caregivers' home, and she did not ask for either of her parents between visits.
Forbes further testified Jesse maintained consistent visitation with Savannah while she was placed with the maternal aunt. Forbes observed a one-hour visit between Savannah and Jesse. When Savannah saw Jesse, she smiled and wanted him to pick her up. She cried when the visit ended, but was easily consoled.
Jesse testified he visited Savannah as frequently as he could and he took her to some medical appointments. When Jesse did visit, he and Savannah were inseparable. They loved each other and shared a strong bond. Savannah became hysterical at the end of visits. Jesse acknowledged he was currently in custody and had been in custody more than five times in the past two years on drug and other criminal charges.
After considering the evidence and arguments of counsel, the court found Savannah was likely to be adopted if parental rights were terminated, and none of the exceptions to adoption applied. Finding adoption was in Savannah's best interests, the court terminated parental rights and referred Savannah for adoptive placement.
DISCUSSION
The parents challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating their parental rights. They assert they maintained regular visitation and contact with Savannah, who would benefit from continuing the relationship with them.
A
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 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 termination of parental rights would be detrimental to the child under one of the specified exceptions. (§ 366.26, subd. (c)(1)(A), (c)(1)(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., supra, 27 Cal.App.4th at pp. 574-575; accord, 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 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., supra, at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We review the 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 to support a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the parents had regular visitation and contact with Savannah. They did not, however, meet their burdens of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
The record shows Savannah enjoyed seeing and interacting with her parents at visits. She smiled at them, played with them and was content to sit with them. She cried when visits ended. However, Savannah was easily consoled, and there was no evidence she was negatively impacted by the absence of her parents from her daily life. The positive bond, warmth and affection Savannah shared with her parents was not enough to show she has a "significant, positive, emotional attachment" to them such that terminating the parent-child relationship would result in great harm to her. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Moreover, although the parents' relationship with Savannah was loving and pleasant, it was not parental. As social worker Forbes noted, a parent takes on a parental role by spending quality time with a child in addition to making choices that put the child's needs ahead of the parent's needs. The parents have not been able to show their commitment to parenting. "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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Further, the parents have not shown that maintaining a relationship with Savannah outweighed the benefits of adoption for her. Savannah was removed from parental custody when she was two months old. She has never lived with Jesse, and she lived with Tonya only for a few months. At age two, Savannah has had a chaotic life, and has had to depend on caregivers other than her parents to meet her daily physical, medical, developmental and emotional needs. She deserves stability, continuity and permanence that only an adoptive home can provide. "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.) The court was entitled to accept the social worker's opinion that the benefits of adoption for Savannah outweighed the benefits of maintaining a relationship with the parents. (In re Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in stable and permanent home is paramount once a parent's interest in reunification is no longer at issue].) 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.)
C
Tonya argues "[t]he notion that adoption is not just more permanent than guardianship, but [is] also always appropriate and desirable, is fiction . . . ." We agree the selection of adoption as a minor's permanent plan is not always appropriate and must be decided on the particular facts of a case, as was done here. However, as we previously discussed, adoption is the Legislature's clear preference for an adoptable child. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) 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.)[2]
D
Tonya asserts "elevated" reunification standards do not apply at a selection and implementation hearing to terminate parental rights. Thus, she argues, her failure to reunify with Savannah was not a proper factor in deciding there is no beneficial parent-child relationship. Our analysis, however, does not conflate the two standards. Even without evidence of her personal setbacks and inability to remain drug-free and law abiding, Tonya did not carry her burden of showing she and Savannah shared such a significant, positive emotional attachment that Savannah would be greatly harmed if parental rights were terminated. In this regard, we did not improperly consider Tonya's failure to reunify with Savannah in evaluating whether substantial evidence supported the court's finding there was no beneficial parent-child relationship to preclude terminating parental rights.
E
Tonya relies on In re S.B. (2008) 164 Cal.App.4th 289, 298-300 to support her argument she had a beneficial parent-child relationship with Savannah. We are compelled to reiterate "S.B. is confined to its extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558.) In S.B., the evidence 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 she shared with her father. Additionally, the father in that case had complied with every aspect of his case plan and the child wanted to live with him. (In re S.B., supra, at pp. 300-301.) Here, in contrast, Tonya made no such showing. There was no evidence, direct or by inference, Savannah 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 Savannah based on the evidence and on the statutory preference for adoption as the most permanent plan, and thus the plan that served her best interests. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) Savannah, whose needs could not be met by her parents, deserves to have her custody status promptly resolved and her placement made permanent and secure. There is no reason, supported by policy or the law, to deviate from the Legislature's preference for adoption here.
DISPOSITION
The order is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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