In re Mitchell N.

Filed 7/20/06 In re Mitchell N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Rebecca Y. appeals a judgment terminating her parental rights to her minor son, Mitchell N., under Welfare and Institutions Code section 366.26.^[1] Mother challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(A)) did not apply to preclude terminating parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2004, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of eight-year-old Mitchell under section 300, subdivision (b) alleging he was at a substantial risk of serious harm because Rebecca was unable to provide him with adequate shelter, protection, medical treatment, and clothing. In addition, Mitchell had been exposed to violent confrontations between Rebecca and Matt D., Rebecca's boyfriend. Specifically, Matt punched Rebecca, grabbed her neck and slammed her body against a gate. Matt later set fire to Mitchell's room. A few weeks later, Rebecca left Mitchell in the care of a friend without any money for food and clothing. Mitchell was found wandering to different homes and he did not know of Rebecca's whereabouts.

According to the detention report, prior referrals detailed Rebecca's history of neglect and emotional abuse of Mitchell. The social worker interviewed Beverly A., Mitchell's maternal grandmother. Beverly believed Rebecca had been using drugs and would leave Mitchell alone at night while she gambled at casinos. Beverly also had concerns that Mitchell may have been sexually abused.

When the social worker interviewed Mitchell, he reported that he had seen Matt punch and kick Rebecca. Another time, he had seen Matt pull a knife on Rebecca. Matt had also set fire to Mitchell's bed. Mitchell said he had seen his mother with bruises all over her body and he had seen her cry. Mitchell told the social worker Rebecca would go to casinos in order to win money for them. While gambling, Rebecca would leave Mitchell at home alone or with friends. Sometimes, Rebecca would be gone for days at a time.

In her interview with social workers, Rebecca admitted using methamphetamines n the past. She further admitted that she gambled at casinos about twice a week in order to earn money to pay her bills. She described incidents of domestic violence and stated that she suffered from a cracked chest plate from when Matt had beaten her. Rebecca told social workers Mitchell only had witnessed violence between herself and Matt on one occasion.

The court held a detention hearing, at which Rebecca was present. The court made a prima facie finding on the petition, detained Mitchell in out-of-home care, and ordered supervised visitation.

At the October 2004 jurisdiction and disposition hearing, the court received into evidence a jurisdiction and disposition report that noted Rebecca denied she had a substance abuse problem. Although Rebecca admitted she left Mitchell with neighbors while she frequented casinos, she denied that she left Mitchell without providing for him. The court sustained the petition, declared Mitchell a dependent under section 300, subdivision (b) and placed him in foster care. The court ordered Rebecca to submit to random drug testing.

During the next six months, Rebecca had not complied with her case plan and although she had called a few therapists, she had not attended any counseling sessions. The social worker reported Rebecca's visits had been "erratic, yet consistent" but Rebecca was often late to visits and she did not show up to an all day Thanksgiving Day visit with Mitchell. At Christmas time, Rebecca met with Mitchell at a bus stop, gave him a gift, and then got back on the bus even though she had an opportunity to visit with Mitchell. Mitchell's foster parents noticed Mitchell did not always seem interested in seeing his mother. At the six-month review hearing, the court found Rebecca had not made substantive progress with her case plan and that returning Mitchell to Rebecca would be detrimental to him. The court continued services for an additional six months. In addition, it authorized a 29-day visit in Washington for Mitchell with his maternal uncle, his uncle's wife and three cousins. Rebecca stated she was in agreement with the placement before Mitchell went to live with his relatives.

In an addendum report filed in June 2005, the social worker noted Rebecca had attended five parenting classes and one domestic violence class. She had not attended any therapy sessions and she failed to drug test when requested. The social worker reported that in January 2005, police officers found Rebecca in the car of a known drug dealer and she had hypodermic needles in her possession. Rebecca admitted to the officers that she was using methamphetamines. Six months later, Rebecca was again found carrying drug paraphernalia, including needles and some small baggies. As relates to her visitation with Mitchell, Rebecca had missed almost half of her visits with Mitchell. The social worker believed prospects of reunification appeared poor and Rebecca was not taking responsibility for her actions nor participating in services.

At the 12-month hearing, the court considered both the Agency's addendum and 12-month reports. The reports noted Rebecca had not participated in services. Mitchell had been living with his maternal uncle in Washington and as a result, visits with Rebecca were now limited to supervised telephone calls. Mitchell's uncle and aunt indicated they would be interested in adopting Mitchell if parental rights were terminated. Mitchell's school counselor stated Mitchell was doing well in school and appeared happy with his current placement. The court found Rebecca had not made substantive progress with her case plan, terminated services, and set a section 366.26 selection and implementation hearing.

At the section 366.26 hearing, the court considered an assessment report prepared by social worker Jodi Squires. Squires reported Mitchell had adjusted well in his relative placement. He was very social and had bonded with his relative caregivers including his three cousins whom he identified as his "three brothers." Mitchell was assessed as being developmentally on target and he no longer required therapy. His relative caretakers wanted to adopt Mitchell and Mitchell indicated that he wants to live with his relatives and be adopted by them. Rebecca testified at the February 2006 section 366.26 hearing stating she regularly called Mitchell and that she loved him.

After considering the evidence, the court found by clear and convincing evidence that Mitchell was likely to be adopted if parental rights were terminated. The court further found none of the exceptions to section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred Mitchell for adoptive placement.

DISCUSSION

I

Rebecca contends the evidence was insufficient 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. Rebecca asserts because she was Mitchell's primary caretaker the first eight years of this life, Mitchell would benefit from continuing the parent-child relationship.

A

We review the court's finding the beneficial relationship exception does not apply under the substantial evidence standard. (In re Casey D. (1999) 70 Cal.App.4th 38, 53; 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 uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 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.)

"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); see also 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., 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, although the court found Rebecca had maintained fairly regular contact with Mitchell, 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).

The record shows the quality of visits between Rebecca and Mitchell was meager at best. Specifically, Rebecca did not occupy a parental role in Mitchell's life. Before Mitchell moved to Washington, Rebecca's visits were often brief and her interaction with Mitchell was mediocre. Mitchell's initial foster parents noted he did not appear to have much interest in visiting with Rebecca. After Mitchell moved to Washington, the court ordered supervised telephone visits. Mitchell's relative caretakers reported Mitchell usually did not want to talk to Rebecca and that the conversations appeared to be "forced and awkward." Mitchell expressed he did not want to return to San Diego and instead wants to be adopted by this relatives and "three brothers." In the social worker's opinion, Mitchell did not have a beneficial parent child relationship with Rebecca. Rebecca had made no efforts to change her lifestyle and any further contact would not benefit Mitchell. Rather, Mitchell's need for a stable home that provides him with love and security is paramount. 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.)

The evidence did not show terminating Rebecca's parental rights would likely cause Mitchell great harm and deprive him of a substantial, positive emotional attachment. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The record here shows that after being placed in a stable and nurturing environment and bonding with his relatives, Mitchell experienced significant growth and development, he no longer required therapy, and he was happy. Any possible benefit to Mitchell of continuing a relationship with Rebecca 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.) Substantial evidence supports the court's finding that the beneficial parent-child relationship did not apply to preclude terminating parental rights.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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