IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 19, 2011
IN RE J.H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN RESOURCES, PLAINTIFF AND RESPONDENT,
N.H. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. JD229759, JD229760)
The opinion of the court was delivered by: Hull , J.
In re J.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
N.H. (mother) and J.H. (father) appeal the juvenile court's orders terminating their parental rights as to minors J.H. (born March 2008) and I.H. (born February 2005). (Welf. & Inst. Code, §§ 395, 366.26; undesignated statutory section references that follow are to the Welfare and Institutions Code.) They contend there is insufficient evidence to support the juvenile court's finding that the beneficial parental relationship exception to adoption did not apply. We affirm the juvenile court's orders.
FACTS AND PROCEEDINGS
In May 2009, the Sacramento County Department of Health and Human Services (DHHS) received reports that the parents were using "crank" or "rock" in the home, the mother was buying drugs, there was a large amount of traffic in the home, and four-year-old I.H. had to ask people for money to buy food because the parents bought drugs with their welfare money. DHHS placed the children in protective custody and filed a dependency petition, alleging jurisdiction under section 300, subdivision (b).
The parents admitted smoking cocaine and methamphetamine, but denied using drugs in the children's presence. An unrelated minor residing in the parents' home said the mother offered her drugs before, and the mother would sell food stamps at 50 cents on the dollar. The mother denied selling the family's food stamps.
The juvenile court detained the children in June 2009. They were later placed with their maternal grandmother.
DHHS reported that out of eight drug tests between April 28, 2009 and June 30, 2009, the mother tested positive for methamphetamine and amphetamine on the first six tests, and presumptively positive for the drugs on the last two tests. Between April 28, 2009 and May 26, 2009, the father tested three times, testing positive for methamphetamine and amphetamine every time.
The mother said she had a drug problem which did not place the children at risk, while the father denied any substance abuse problem. The mother had not completed intake for her drug treatment program, and the father did not want to enter residential treatment.
The maternal grandmother reported the children's visits with the parents were appropriate. I.H. and J.H. appeared to have adjusted well to living with her. I.H. was very angry when he was first placed in her care, but now appeared to be calmer and happier.
The juvenile court sustained the petitions and ordered services for the parents in July 2009. The children were continued with the maternal grandmother.
The parents visited the children almost daily at the maternal grandmother's home until the mother entered residential drug treatment in November 2009. After the mother entered residential treatment, the parents were given weekly supervised visits of 90 to 120 minutes at the recovery program. They were given unsupervised visits at the maternal grandmother's home for three hours a week in December 2009, but the father's unsupervised visits were withdrawn in January 2010 after he tested positive for drugs.
The mother did not comply with her drug treatment program from July 2009 until she entered residential treatment in November. She tested positive for methamphetamine and amphetamine from May through November, and tested positive for PCP in August. The father did not begin working on his drug treatment program until November 2009.
The dependency was continued in February 2010. The juvenile court found the mother's progress was fair and the father's was minimal.
DHHS recommended terminating reunification services in a June 2010 report. The parents had not significantly participated in the services offered. In addition, the father admitted he continued to use illicit substances.
In March 2010, the maternal grandmother told DHHS that the parents were not regularly visiting their children or talking with them over the telephone. The parents resumed regular weekly visits after DHHS began supervised visitation in April 2010. The visits went well and the children enjoyed seeing their parents. However, the school and maternal grandmother reported the children were more aggressive after visiting their parents. In June 2010, the maternal grandmother reported I.H. had started to talk about domestic violence between the parents when he lived with them.
The juvenile court terminated the parents' reunification services in July 2010.
In November 2010, DHHS reported the parents had two hourly visits per month with the children since July 2010. After a family services worker expressed concerns the parents might be giving inappropriate messages to the children, the visits were reduced to one hour per month starting October 2010.
I.H. told the social worker he wished to be with his mother, but if that is not possible he is comfortable living with his grandmother. J.H. was building a healthy relationship with the maternal grandmother and appeared comfortable in her care.
DHHS reported I.H. and J.H. were in good health and developmentally on track. The maternal grandmother wanted to adopt the children, and would allow supervised visits for the biological parents after adopting.
At the January 2011 selection and implementation hearing, the mother testified that she and the children wanted to see each other more often. She did not want her parental rights terminated, preferring guardianship with the maternal grandmother until she got better and could try to get her children back.
The juvenile court terminated parental rights and found the beneficial parental relationship exception to adoption did not apply.
The parents' sole contention on appeal is the juvenile court's conclusion that the parental bond exception to termination of parental rights did not apply is not supported by substantial evidence.
At a hearing under section 366.26, if the juvenile court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless "[t]he court finds a compelling reason for determining that termination would be detrimental" due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).)
The parent has the burden of establishing an exception to termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) "Because a section 366.26 hearing occurs only 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.)
The juvenile court's ruling declining to find an exception to adoption must be affirmed if it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827].) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to adoption when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
However, a parent may not claim this exception "simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must promote "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.)
In support of their contention, the parents rely on their having raised I.H. for the first four years of his life, their consistent and beneficial visits with the children, and I.H.'s expressed preference for living with his mother.
The parents maintained regular visits for most, but not all of the dependency, and the children enjoyed their time with the parents. However, there is evidence these were not all to the children's benefit, as they were reported to act more aggressively after the visits. The mother made inappropriate remarks during at least some visits, promising to buy the children toys and that the children would be returning home.
The continued downward trajectory of the visits further diminishes their relevance to the parents' claim. The parents started the dependency visiting the children almost daily at the maternal grandmother's home, reducing visits to three hours a month when the mother entered residential drug treatment. Visits further diminished when the parents stopped visiting, restarting only after DHHS reinstituted supervised visits in April 2010. Even then, the parents visited no more than two hours a month, later reduced to one hour a month.
The other evidence cited by the parents is equally unconvincing. Although I.H. lived with his parents until he was over four years' old, he spent nearly 20 months--from May 2009 to January 2011--away from their care by the time of the termination hearing. Also, the time I.H. spent with the parents was far from uniformly beneficial--the four-year-old lived in a house where the parents used drugs, witnessed domestic violence between them, and had to ask others for money to buy food because the parents sold their food stamps.
I.H.'s behavior is further evidence of the damage he sustained in the parents' care. When I.H. was fist placed with his maternal grandmother, he had behavioral issues and said no one loved him. I.H.'s subsequent improvement after placement with the maternal grandmother suggests any bond with his parents is not to I.H.'s benefit.
J.H. was removed from the parents when he was eight months old and spent more than two-thirds of his life living apart from them. There was evidence that a continued relationship with the parents was detrimental to both children. Although I.H. had a more substantial relationship with the parents and expressed a preference for living with his mother, the juvenile court did not have to give credit to a five-year-old's ability to either understand or express his best interests.
The parents' minimal evidence that a continued relationship was in the children's best interests does not come close to establishing the extraordinary circumstances necessary to overcome the presumption in favor of adoption. Substantial evidence supports the juvenile court's finding that there was no exception to adoption.
The juvenile court's orders are affirmed.
We concur: NICHOLSON , Acting P. J. HOCH , J.
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