COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
June 17, 2010
IN RE ISABELLA G., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
D.G. ET AL., DEFENDANTS AND APPELLANTS.
APPEALS from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. (Super. Ct. No. J516567).
The opinion of the court was delivered by: O'rourke, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
D.G. and Elisa F. appeal a judgment terminating their parental rights to their minor daughter, Isabella G., under Welfare and Institutions Code*fn1 section 366.26. The parents argue the evidence was insufficient to support the court's findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude termination of their parental rights.
FACTUAL AND PROCEDURAL BACKGOUND
In February 2007 Isabella was taken into protective custody two days after her birth. The San Diego County Health and Human Services Agency (the Agency) reported that Isabella's parents had a history of domestic violence. Following Isabella's birth, D.G. acted violently toward Elisa in the hospital in the presence of Isabella. Elisa also suffered from a drug and alcohol abuse problem. She acknowledged abusing heroin, cocaine, methamphetamines and marijuana. The Agency further reported that Elisa had been diagnosed with severe bipolar disorder and she sometimes manifested psychotic symptoms. She had a history of psychiatric admissions and numerous mental health assessments that confirmed her diagnosis. Elisa also had a criminal history that included arrests for drug-related offenses, including possession and being under the influence of a controlled substance.
D.G. had a history of mental illness and an extensive criminal history. He had a prior diagnosis of schizophrenia, and the record shows he had been hospitalized and treated with psychotropic medications for hallucinations. His criminal history consisted of arrests for domestic violence and battery. D.G. had violent confrontations with Elisa, the most recent of which was one month before Isabella's birth. During the confrontation, D.G. pushed Elisa and threatened to slit her throat and beat her.
The Agency filed a petition on behalf of Isabella under section 300, subdivisions (a) and (b), citing domestic violence and Elisa's mental illness as primary factors requiring the Agency to take Isabella into protective custody.
Gregory F. Bishop, M.D., a psychiatrist, assessed the parents and recommended that reunification be approached slowly. He stated both parents needed medication to treat their mental illnesses and needed to participate in individual counseling. Elisa required parenting and life skills courses. D.G. needed to participate in stress and anger management courses. Dr. Bishop did not believe D.G. could be the sole caregiver for Isabella given that he had a history of not being able to provide himself with proper mental health care.
The court declared Isabella a dependent of the court and removed her from parental care. The Agency placed Isabella in foster care and ordered reunification services for the parents.
From March 2007 through June 2008 Elisa participated in reunification services. In April 2007 the police responded to a domestic violence incident between Elisa and D.G. The court issued a no contact order against D.G.
In a six-month review report, the Agency reported Elisa had enrolled in a domestic violence program and had been participating in individual counseling sessions. Elisa complied with her medication regimen and was not abusing illegal drugs. In August 2007 Elisa progressed to unsupervised visits with Isabella. During an unannounced visit, the social worker observed that Isabella was doing well in Elisa's care and the interactions between Elisa and Isabella were appropriate. Isabella's foster mother did not report concerns about the visits between Elisa and Isabella. The court continued services for an additional six months at the six-month review hearing.
In a 12-month review report, the social worker reported that D.G. and Elisa had made significant progress with their case plan. The couple participated in conjoint therapy and the therapist opined the couple was doing "extremely well." Elisa continued to participate in unsupervised visits with Isabella. The court held a 12-month review hearing and continued Elisa as a dependent. The court ordered the parents to continue with their services and to participate in unsupervised visits.
In June 2008 Isabella began a 60-day visit with her parents. During this visit, there was one report of domestic violence between Elisa and D.G. Isabella was not removed from her parents' home.
At the conclusion of the 60-day visit, the social worker reported the visit was a positive one. The parents had established a safe home environment for Isabella and they were happy to have Isabella in their care. Elisa continued to participate in therapy. Her therapist reported Elisa's attendance had improved. She remained sober from controlled substances and was compliant with her prescribed medications.
In July 2009 the court found Elisa and D.G. had made substantive progress with their case plans and ordered Isabella placed in her parents' care. The Agency was ordered to provide family maintenance services.
Isabella remained in her parents' care until February 2009 when Elisa and D.G. engaged in an argument resulting in D.G.'s arrest. The Agency filed a section 387 petition requesting that Isabella be detained in foster care. The Agency reported that the police had responded to three domestic violence incidents that had taken place since Isabella was returned to her parents' custody. At the time of D.G.'s arrest, he was not taking his psychotropic medication. The Agency assessed that although the parents had completed services, including therapy and domestic violence courses, they had not benefited from the services.
The social worker met with Elisa and reported that Elisa did not accept responsibility for exposing Isabella to domestic violence in the home. Elisa admitted she had not been forthcoming during therapy sessions and that her situation with D.G. had been "bad" for a long time. D.G. minimized the acts of violence but admitted to the social worker that Isabella was scared and cried during one of the domestic violence incidents.
The court scheduled a hearing for the section 387 petition. In the interim, the Agency reported that Elisa had been taken to the hospital on at least two occasions. During one stay at the hospital, Elisa was taken to the psychiatric wing for exhibiting delusional behaviors. This was an indication that Elisa was not taking her medication. She also tested positive for marijuana.
The social worker reported that when she visited Elisa at the hospital, D.G. was also present despite a newly issued no contact restraining order prohibiting D.G. from having contact with Elisa. The parents remained in a relationship together, and Elisa wanted to lift the restraining order. The parents also admitted to being homeless.
The court held a contested hearing on the section 387 petition. The court found the Agency's allegations in the petition to be true, terminated reunification services for both parents and removed Isabella from their care. The court scheduled a selection and implementation hearing for October 2009.
In July 2009 the Agency requested that the court order all future visits between Elisa and Isabella as suspended. During one supervised visit, Elisa became extremely upset, pushed the visitation monitor against the wall and threatened to kill the monitor. This act of aggression took place in front of Isabella. Isabella's caregiver reported that Isabella suffered from nightmares following the incident. The court granted the Agency's request and suspended visitation.
The Agency further reported that D.G. had been incarcerated from February 2009 until June 2009. He was incarcerated again in July 2009 after violating his probation by continuing to have contact with Elisa.
The Agency submitted an assessment report in anticipation of the section 366.26 hearing. The social worker assessed Isabella as adoptable based on her good health, lack of developmental delays and her sociable and affectionate nature. Isabella's caregiver reported that Isabella was a sweet and active child. Isabella refers to her current caregivers as "mommy and daddy." The caregivers had an approved home study and are committed to adopting Isabella. In addition to the caregivers, the Agency identified five families in San Diego county interested in adopting a child like Isabella. The Agency also identified 78 out of county homes.
The social worker did not believe Elisa had a beneficial parent-child relationship with Isabella that would outweigh the need for permanency and stability. Elisa expressed love for Isabella and displayed affection toward her during visits. However, Elisa repeatedly put Isabella's safety at risk by exposing her to violence. Elisa had received extensive treatment and monitoring but continued to regress.
D.G. also did not have a beneficial parent-child relationship with Isabella. D.G.'s visits with Isabella generally were appropriate. They would laugh and play together. At times, Isabella did not want to leave and wanted to continue playing with D.G. However, D.G. had not shown that he could provide Isabella with a stable home.
In an addendum report, the social worker reported that the pattern of domestic violence, police intervention and mental health concerns continued to present obstacles toward reunification. The parents had participated in more than two years of services and the underlying issues surrounding the dependency had not been resolved. The social worker noted that in October 2009 D.G. was taken into custody after hitting Elisa. Elsa reported to the police that D.G. had punched her in the face and raped her. Elisa told the police she feared for her safety. Elisa later denied the accusations against D.G. and reported that she had recommenced therapy with D.G. Elisa indicated that she planned to remain in a relationship with D.G. In addition to the violence, Elisa had been hospitalized eight times during the last four months, was not medication compliant and continued to show signs of anger and aggression.
The social worker noted that Isabella had witnessed the violence between her parents. She was in need of stable placement with a family that could protect her from emotional and physical harm.
At the section 366.26 hearing, the court received in evidence the Agency's reports and stipulated testimony of the social worker. Elisa and D.G. presented no affirmative evidence. After hearing argument from all parties, the court found Isabella to be adoptable and that none of the exceptions under section 366.26, subdivision (c)(1) applied. The court terminated parental rights.
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 contact with Isabella and shared a significant relationship with her.
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of 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.) The parent 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.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (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 six specified exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i), provides 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 [parent-child] 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." (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. (1999) 73 Cal.App.4th 823, 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." (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 positive and emotional attachment from child to parent. (Autumn H., supra, at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Elisa and D.G. did not have regular visitation with Isabella. Elisa did have regular contact with Isabella from the initial removal in February 2007 through June 2008, when Isabella was placed with her parents. However, upon Isabella's second removal, visitation was not regular. Between February 2009 and June 2009 Elisa missed three visits. Visits resumed in June but were discontinued in July 2009 after Elisa threatened visitation staff. Elisa did not visit Isabella again after her conduct resulted in the suspension of visitation.
D.G. also did not have regular visits with Elisa. D.G. was in and out of custody throughout the proceedings. From February 2009 until the December 2009 hearing to terminate parental rights, D.G.'s visits were sporadic and he participated in about six visits during a 10 month period. We acknowledge he made efforts to see Isabella when he was not in custody but his actions and behavior continued to prohibit him from seeing Isabella on a regular basis.
Even if Elisa's and D.G.'s visitation is considered to be regular, they did not establish there was a beneficial parent-child relationship sufficient to apply the statutory exception to adoption. We recognize that following the initial removal, the parents made progress and Isabella eventually was placed in her parents' care. About eight months later, Elisa and D.G. returned to their patterns of domestic violence and Isabella was removed from the home for a second time. It became evident to the social worker that the issues leading to the dependency had not been resolved. Following the second removal, visits between Isabella and her parents became sporadic and the visits were not always appropriate. Elisa acted aggressively toward the Agency staff members and Isabella suffered nightmares following the incident. Elisa had several hospitalizations for being noncompliant with her medication and tested positive for drug use. Elisa's behavior during visits showed she had yet to benefit from the more than two years of services she had received. Concerning D.G., he minimized the acts of domestic violence and was repeatedly incarcerated for having contact with Elisa. The parents continued to remain in a relationship with one another and they had yet to show they could provide Isabella with a safe and stable home. In the social worker's opinion, the permanency and stability that adoption would bring Isabella outweighed the benefits of maintaining her relationship with Elisa and D.G. (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].) "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 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 of an adoptive home for Isabella. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Further, the parents needed to show Isabella would suffer detriment if their relationships were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Elisa argues Isabella was attached to her. D.G. asserts that in June 2008 the social worker noted Isabella was "very attached" and bonded to both parents. After June 2008, however, Isabella was exposed to more domestic violence, was removed a second time from her parents' care and did not have regular contact with her parents. The evidence did not show terminating parental rights would likely cause Isabella great harm and deprive her of a substantial, positive emotional attachment. (Ibid.) We acknowledge the record shows that Isabella did not want one of her visits with D.G. to end because she wanted to continue playing with him. Isabella, however, did not show signs of undue distress upon separating from her parents. Isabella instead showed signs of stress as a result of Elisa's aggressive behavior toward the Agency staff members. We recognize Isabella may feel a sense of loss if she no longer has contact with Elisa and D.G., but there was no showing Isabella would be greatly harmed by terminating parental rights. Instead, she was thriving in her caregivers' home. Isabella referred to her caregivers as "mommy and daddy," and further, the caregivers were committed to adopting Isabella and providing her with a safe and stable home. To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Substantial evidence supports the court's finding that the section 366.26, subdivision (c)(1)(B)(i) exception is inapplicable. (See In re Clifton B. (2000) 81 Cal.App.4th 415, 425.)
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., MCINTYRE, J.