Filed 12/3/14 In re J.G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.G., a Person Coming Under the Juvenile Court Law. D066011 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J512087G) Plaintiff and Respondent,
v.
A.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Tahra C. Broderson, Deputy County Counsel, for Plaintiff and Respondent. Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and
Susan Lake for Minor.
A.G. (Mother) appeals an order granting a Welfare and Institutions Code1 section
366.26 petition filed by the San Diego County Health and Human Services Agency
(Agency) to terminate her parental rights to her daughter, J.G., and finding a permanent
plan of adoption is appropriate for J.G. On appeal, Mother contends the evidence is
insufficient to support the juvenile court's findings that (1) J.G. is adoptable, and (2) the
beneficial parent-child relationship exception to termination of parental rights did not
apply to preclude a permanent plan of adoption for J.G.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the mother of J.G., born in 2007. Dependency cases were filed
regarding Mother's six older children based on domestic violence, substance abuse, and
failure to protect them from physical abuse. Mother had a criminal history, including
arrests for battery and inflicting corporal injury on a spouse or cohabitant. She did not
reunify with her other children and her parental rights to most of them were terminated.
In July 2012, Agency investigated a report that J.G. had been endangered by
Mother's domestic violence with her live-in boyfriend, A.S. Mother acknowledged she
and A.S. engaged in a physical confrontation with a couple at a mall and, the following
day, she and A.S. argued about the incident in J.G.'s presence. A.S. told police their
argument involved scratching, biting, and punching. An officer saw injuries on A.S.'s
1 All statutory references are to the Welfare and Institutions Code.
2 chest, neck, and arms. After Mother was arrested, she screamed, kicked the side of the
patrol car, and deliberately hit her head against the car's windows and bars. Mother
admitted she had a history of violence with the father of her older children. J.G. stated
Mother and A.S. had argued many times in the past with their "words and hands."
Agency filed a section 300, subdivision (b), dependency petition to protect then-
five-year-old J.G., alleging Mother and A.S. exposed her to violent confrontations and
Mother had not reunified with her six other children based on her failure to protect them
from domestic violence, physical abuse, and her substance abuse. At the detention
hearing, the juvenile court ordered that J.G. be detained in out-of-home care and granted
Mother supervised visitation with her. Thereafter, Mother attended weekly supervised
visits with J.G.
At the September 2012 contested jurisdictional hearing on the petition, the court
found the petition's allegations were true, removed custody of J.G. from Mother, and
ordered reunification services for Mother. During the following six months, Mother
participated in classes and received other reunification services, but reportedly was
involved in another domestic violence incident with A.S. in October. In November,
Mother tested positive for methamphetamine use and did not attend her drug treatment
program in November and December. In October, J.G. was placed with her maternal
grandmother, who thereafter supervised Mother's visits. Her grandmother reported
Mother was under the influence of alcohol at an October visit.
At the March 2013 six-month review hearing, the court found it would be
detrimental to return J.G. to Mother's care, found reasonable services had been provided
3 to Mother, and ordered that reunification services be provided to Mother for another six
months. During the following six-month period, the maternal grandmother moved to
Florida and J.G. was placed with her maternal aunt and uncle. The aunt reported J.G.
was well-behaved and bright, and had adapted well to her new home and maternal
cousins.
In April 2013, Mother married A.S. In May, A.S. was arrested for inflicting
corporal injury on a spouse or cohabitant. Mother acknowledged another incident of
domestic violence had occurred between them.
Mother's visitation with J.G. was consistent through May while she attended a
parenting program, but became less regular thereafter. After A.S. was released from
custody in August, Mother missed several visits with J.G. The maternal aunt reported the
frequency of Mother's calls to J.G. went from daily to a couple of times per week and she
visited more irregularly.
In June 2013, Mother was intoxicated when she attended a meeting with substance
abuse treatment staff. In July, she did not submit to drug testing. In September, she was
discharged from the outpatient treatment program for excessive absences. The maternal
aunt told Agency that should J.G. not be returned to Mother, the aunt and uncle would
prefer to adopt J.G. rather than assuming guardianship of her.
At the September 2013 contested 12-month permanency hearing, the juvenile
court terminated Mother's reunification services and set a section 366.26 hearing
regarding termination of her parental rights and selection of an appropriate permanent
plan for J.G.
4 At the May 2014 contested section 366.26 hearing, the parties did not present any
witnesses, and therefore the court considered only those documents admitted into
evidence. The court considered the section 366.26 report of Agency social worker
Dannielle Moores, along with the addendum thereto. Moores recommended that the
parental rights of Mother to J.G., as well as those of J.G.'s alleged father(s), be terminated
and a permanent plan of adoption be selected by the court. Moores concluded J.G. was
adoptable because she was attractive, intelligent, in good health, and had a pleasant
personality. J.G.'s maternal aunt and uncle wanted to adopt her, but did not want a
guardianship. They had been cleared by Agency for J.G.'s placement, but had not yet
been evaluated for adoption of J.G. However, Moores had no reason to believe they
would not be approved to adopt J.G. Moores stated that "[i]n the unlikely event that they
could not adopt [J.G.,] there are 50 approved adoptive families in San Diego County
alone that have requested a child matching the characteristics of [J.G.]."
Moores reported there were times when Mother consistently visited J.G., but there
were other times she did not consistently visit her. Several times, Mother showed up at
the caregiver's home without first scheduling a visit. Mother began visiting and calling
J.G. less often. Mother visited J.G. once in October and once in November. At a
scheduled November visit, Mother arrived at the caregiver's home under the influence
and was asked to leave. Mother did not visit J.G. in December 2013, January 2014, and
February 2014. Mother missed a scheduled visit on March 18, 2014, and was late for her
April 2 visit. Mother attended visits at Agency on April 17 and May 7.
5 When Moores observed the visits, Mother was affectionate with J.G. and gave her
gifts. They shared snacks and played games. At the end of Mother's visits, J.G.
reciprocated Mother's affection, but had no trouble separating from her.
In January 2014, J.G. reported being sad when Mother did not call or visit and that
she missed Mother sometimes because she did not visit as often as she had previously.
J.G. stated she wanted to stay in the care of her maternal aunt and uncle because she liked
living with them. J.G. did not want to live with Mother and A.S. because they yelled and
fought.
In recommending adoption as the permanent plan for J.G., Moores concluded none
of the exceptions to adoption applied. J.G. had a relationship with Mother, but that
relationship was not so strong that J.G. would suffer detriment if it ended. J.G. enjoyed
seeing Mother during visits, but Mother was more like an aunt to her than a parent.
Moores concluded J.G. needed a stable home to grow and develop normally. Mother had
a long history of domestic violence and substance abuse and had not yet overcome those
issues. Although maintaining contact with Mother would provide J.G. with some benefit,
Moores believed that benefit would not outweigh the benefits J.G. would receive from a
loving, safe, and stable adoptive home.
The court-appointed special advocate (CASA) reported she had interacted several
times with J.G. and had observed her interactions with her maternal aunt and uncle. J.G.
was flourishing in their home. They had a great relationship with J.G. and wanted to
adopt her. During a November 2014 visit, Mother showed up intoxicated and cursed at
6 the caregiver. When J.G. told Mother not to say bad words, Mother replied: "I am an
adult and can say whatever the fuck I want to say."
At the conclusion of the hearing, the juvenile court found it likely J.G. would be
adopted were parental rights terminated, none of the exceptions to termination applied,
and adoption was in J.G.'s best interests. Accordingly, the court terminated parental
rights to J.G., found the permanent plan of adoption was appropriate, and referred her to
Agency for adoptive placement. Mother timely filed a notice of appeal.
DISCUSSION
I
Substantial Evidence to Support Court's Finding of Adoptability
Mother contends the evidence is insufficient to support the juvenile court's finding
that J.G. is adoptable.
A
"At a section 366.26 hearing the court is charged with determining a permanent
plan of care for the child. If the child is likely to be adopted, adoption is the plan
preferred by the Legislature." (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) "The
juvenile court may terminate parental rights only if it determines by clear and convincing
evidence that it is likely the child will be adopted within a reasonable time." (In re Carl
R. (2005) 128 Cal.App.4th 1051, 1060.) "[W]hat is required is clear and convincing
evidence of the likelihood that the [child] will be adopted within a reasonable time either
by the prospective adoptive family or some other family." (In re Scott M. (1993) 13
Cal.App.4th 839, 844.) "The question of adoptability posed at a section 366.26 hearing
7 usually focuses on whether the child's age, physical condition, and emotional state make
it difficult to find a person willing to adopt that child. [Citation.] If the child is
considered generally adoptable, we do not examine the suitability of the prospective
adoptive home. [Citation.] However, where the child is deemed adoptable based solely
on the fact that a particular family is willing to adopt him or her, the trial court must
determine whether there is a legal impediment to adoption." (In re Carl R., supra, at
p. 1061.) "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.) When a child is generally adoptable, "the suitability or
availability of the caregiver to adopt is not a relevant inquiry." (In re R.C. (2008) 169
Cal.App.4th 486, 493.) On appeal, we apply the substantial evidence standard of review
when considering an appellant's challenge to a juvenile court's determination regarding
the adoptability of a child under section 366.26. (Carl. R., at p. 1061.)
B
Based on our review of the record, we conclude there is substantial evidence to
support the juvenile court's finding that J.G. is likely to be adopted within the meaning of
section 366.26. Moores stated J.G. is adoptable because she is attractive, intelligent, in
good health, and has a pleasant personality. She stated "there are 50 approved adoptive
8 families in San Diego County alone that have requested a child matching the
characteristics of [J.G.]." Furthermore, J.G.'s maternal aunt and uncle want to adopt her,
but do not want a guardianship. Although they had not yet been evaluated for adoption
of J.G., they had been cleared by Agency for her placement with them. Also, Moores had
no reason to believe they would not be approved to adopt J.G. That evidence is sufficient
to support the court's finding that J.G. is likely to be adopted. In effect, Moores
concluded―and the court implicitly found―that J.G. was generally adoptable. There are
at least 50 adoptive families in San Diego County that have asked to adopt a child with
J.G.'s characteristics. Furthermore, the fact J.G.'s maternal aunt and uncle want to adopt
her "generally indicates [J.G.] is likely to be adopted within a reasonable time either by
[them] or by some other family." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)
There is overwhelming evidence in the record showing J.G. is likely to be adopted within
the meaning of section 366.26.
Contrary to Mother's assertion, the juvenile court's finding of adoptability was not
based solely on the fact J.G.'s maternal aunt and uncle are willing to adopt her. (Cf. In re
Carl R., supra, 128 Cal.App.4th at p. 1061.) Rather, construing the evidence and making
all reasonable inferences to support the court's order, we conclude the court impliedly
found J.G. is generally adoptable and not just adoptable by her maternal aunt and uncle.
As we concluded above, there is substantial evidence to support that finding.
Even had the court considered only the willingness of J.G.'s maternal aunt and
uncle to adopt her, we nevertheless would conclude there is substantial evidence to
support the court's finding she is likely to be adopted. The record does not show any
9 legal impediment to their adoption of J.G. (In re Carl R., supra, 128 Cal.App.4th at
p. 1061.) Although Agency had not, by the time of the section 366.26 hearing, completed
a preliminary assessment of the eligibility and commitment of J.G.'s maternal aunt and
uncle as prospective adoptive parents, that deficiency did not deprive the court of
sufficient evidence on which to make a determination that J.G. was likely to be adopted
by her maternal aunt and uncle (and, if not by them, by other prospective adoptive
parents). The record shows they were married, employed, had no criminal history, had
passed background clearances, and their home had been approved through the relative
home approval process. They understood the responsibilities of becoming adoptive
parents, their legal and financial rights, and wanted to raise J.G. to adulthood. The record
also showed J.G. was flourishing in their home and that they had a great relationship with
her. Moores stated there was every reason to believe they would ultimately be approved
to adopt J.G. There is substantial evidence to support a finding that J.G.'s maternal aunt
and uncle would be approved to adopt J.G., and therefore it is likely J.G. would be
adopted. Any deficiencies under section 366.21, subdivision (i)(1)(D), in Agency's
failure to timely prepare a preliminary assessment of their eligibility to adopt J.G. was
harmless error. (In re Michael G. (2012) 203 Cal.App.4th 580, 590-593.) Furthermore,
contrary to Mother's assertion, the court's refusal to continue the section 366.26 hearing
until Agency completed a preliminary assessment of their eligibility to adopt J.G. was not
an abuse of its discretion and, even if it was, that error was harmless. (Ibid.) Because the
court had overwhelming evidence showing it is likely J.G. will be adopted, a continuance
10 would have only resulted in delays in the court's selection of a permanent plan for J.G.
and her adoption.
II
Substantial Evidence to Support Court's Finding That the Beneficial Parent-child Relationship Exception Did Not Apply
Mother contends the juvenile court erred by selecting a permanent plan of
adoption for J.G. because there is substantial evidence showing she had regular contact,
and a beneficial parent-child relationship, with J.G.
At a section 366.26 hearing, the juvenile court selects a permanent plan of care for
the child. If the court finds the child is likely to be adopted, it generally must select
adoption as the permanent plan unless an exception to that general rule applies, namely,
"the court should not order a permanent plan of adoption when 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.' " (In re Casey D., supra, 70 Cal.App.4th at p. 50, quoting
former § 366.26, subd. (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)).)
"In the context of the dependency scheme prescribed by the Legislature, we
interpret the 'benefit from continuing the [parent/child] relationship' exception to mean
the relationship 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
11 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. (1994) 27 Cal.App.4th 567, 575, italics added.)
"Interaction between [the] natural parent and child will always confer some
incidental benefit to the child. The significant attachment from [the] child to [the] parent
results from the adult's attention to the child's needs for physical care, nourishment,
comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day
interaction, companionship and shared experiences. [Citation.] The exception applies
only where the court finds regular visits and contact have continued or developed a
significant, positive, emotional attachment from [the] child to [the] parent." (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
"The factors to be considered when looking for whether a relationship is important
and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the
parent's custody, (3) the positive or negative effect of interaction between the parent and
the child, and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th
454, 467, fn. omitted.) "[F]or the [beneficial relationship] exception to apply, the
emotional attachment between the child and parent must be that of parent and child rather
than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (Id.
at p. 468.) Frequent and loving contact between parent and child, without the existence
12 of a parental role to the child, may be insufficient to justify the selection of a permanent
plan other than adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1420.)
"Once the court determines the child is likely to be adopted, the burden shifts to
the parent to show that termination of parental rights would be detrimental to the child
under one of the exceptions listed in section 366.26, subdivision (c)(1) [e.g., the
beneficial relationship exception]." (In re S.B. (2008) 164 Cal.App.4th 289, 297.) On
appeal, "[w]e determine whether there is substantial evidence to support the trial court's
ruling by reviewing the evidence most favorably to the prevailing party and indulging in
all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] If the
court's ruling is supported by substantial evidence, the reviewing court must affirm the
court's rejection of the exceptions to termination of parental rights under section 366.26,
subdivision (c)." (Id. at pp. 297-298.) "Under the substantial evidence rule, we must
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." (In re Casey
D., supra, 70 Cal.App.4th at p. 53.)
Mother asserts the court erred by selecting a permanent plan of adoption for J.G.
because the evidence showed she had regular contact, and a beneficial parent-child
relationship, with J.G. However, in so arguing, Mother misconstrues and/or misapplies
the applicable substantial evidence standard of review. On appeal, we review the record
to determine whether there is substantial evidence to support the court's finding (e.g., in
Agency's favor) and not whether there is substantial evidence that could have supported a
13 contrary finding by the court (e.g., in Mother's favor). It is not our function to reweigh
the evidence or make inferences or deductions from the evidence; those are questions for
the juvenile court. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)
Based on our review of the record, we conclude there is substantial evidence to
support the court's finding that Mother did not maintain regular visitation and contact
with J.G. (§ 366.26, subd. (c)(1)(B)(i).) The court implicitly found Mother did not
maintain regular visitation or contact, stating her relationship with J.G. was "sporadic"
and "episodic." The record shows Moores reported that although Mother initially
regularly visited and contacted J.G., her visitation and contact soon became less regular.
Mother showed up at the caregiver's home without first scheduling a visit. Mother began
visiting and calling J.G. less often. Mother visited J.G. only once in October and only
once in November. Mother arrived at her scheduled November visit under the influence
and was asked to leave. Mother did not visit J.G. in December 2013, January 2014, and
February 2014. Therefore, over a five-month period, Mother visited J.G. only two times.
Mother missed a scheduled visit on March 18, 2014, was late for her April 2 visit, and
attended visits at Agency on April 17 and May 7. We conclude there is substantial
evidence to support findings by the court that Mother's visitation with J.G. was
"sporadic," or irregular, and that Mother did not carry her burden to show she maintained
regular visitation and contact with J.G. Contrary to her assertion, the court was not
required to disregard the import of the three-month gap in her visitation with J.G.
Likewise, we conclude there is substantial evidence to support the court's finding
that Mother did not carry her burden to show J.G. had a beneficial parent-child
14 relationship with her within the meaning of section 366.26, subdivision (c)(1)(B)(i).
Although J.G. lived with Mother during her first five years and presumably formed a
parent-child relationship with Mother during that period, Moores reported that during
J.G.'s dependency case J.G. viewed Mother more as an aunt than a parent. During visits,
J.G. enjoyed playing with Mother and spending time with her, but had no trouble
separating from Mother at the end of her visits. Furthermore, in Moores's opinion, J.G.
would not suffer any detriment if her relationship with Mother ended and, even if J.G.
would benefit from maintaining contact with Mother, that benefit would not outweigh the
greater benefit she would receive from adoption. J.G. was thriving in the home of her
maternal aunt and uncle. They could provide a stable and loving home in which she
could grow and develop. In contrast, Mother had a history of domestic violence and
substance abuse, which she had not overcome. Although in August 2012 J.G. expressed
sadness she could not live with Mother, in or about January 2014 J.G. stated she wanted
to remain living with her maternal aunt and uncle and liked living with them even though
she also missed her visits with Mother during that time. There is substantial evidence to
support a finding by the juvenile court that J.G. would not be greatly harmed if her
contact and relationship with Mother ended. (Cf. In re Beatrice M., supra, 29
Cal.App.4th at p. 1420.)
The cases cited by Mother (e.g., In re Bailey J. (2010) 189 Cal.App.4th 1308) are
inapposite and do not persuade us to reach a contrary conclusion. Likewise, we are not
persuaded by her assertion Agency could not consider her history of substance abuse and
domestic violence in recommending the juvenile court terminate her parental rights. In
15 weighing the benefit to J.G. of adoption against the benefit of maintaining a relationship
with Mother, Agency and the court properly considered Mother's history of substance
abuse, domestic violence, and her failure to reunify with her six other children. On
appeal, we do not reweigh the evidence or make inferences contrary to the court's
reasonable inferences. Because there is substantial evidence to support the juvenile
court's finding that Mother did not carry her burden to show she maintained regular
visitation and contact with J.G. and the benefit of continuing her relationship with Mother
outweighed the benefit of adoption, the court properly found the beneficial parent-child
relationship exception to adoption did not apply.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.