Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Super. Ct. No. 06CEJ300058-1
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
On February 20, 2007, Heather M.’s parental rights were terminated at the conclusion of a hearing pursuant to Welfare and Institutions Code section 366.26. On appeal, Heather M. argues that she maintained regular visitation with her daughter, her daughter would benefit from a continued relationship (§ 366.26, subd. (c)(1)(A)), and the trial court erred in terminating her parental rights.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEEDINGS
Nevaeh R. was born in October 2004. On April 20, 2006, officers from the Fresno Police Department, responding to domestic disturbance between Heather M.’s father and her boyfriend, placed a protective hold on Nevaeh because of neglect and caretaker absence. The father stabbed the boyfriend in Nevaeh’s presence. Heather M. was arrested for a parole violation when she was found to be under the influence of methamphetamine. The residence was dirty and had no food or electricity.
The Fresno County Department of Children and Family Services (department) filed a petition pursuant to section 300, subdivisions (b) (failure to protect) and (g) (failure to support). On April 26, 2006, the juvenile court ordered Nevaeh detained.
In the department’s report for the jurisdictional hearing, the social worker stated Nevaeh was placed in foster care and visitation with Heather M. was scheduled once a week. Heather had a criminal history dating back one year for forgery, assault with a deadly weapon, making a criminal threat, burglary, and possession of a bad check or money order. Heather was in jail for violation of felony probation.
The social worker reported that Heather was holding Nevaeh while the stabbing occurred. Investigating officers noticed that Heather appeared to be under the influence of a controlled substance. The family residence did not have electricity, but there was an extension cord leading from a neighboring apartment. The refrigerator was not working. The only food in the residence was potato chips and ramen noodles. Clothing, stuffed animals, and toys were scattered around the apartment. The carpets were matted with food and dirt. There was a makeshift stove attached to a propane tank in the kitchen. There were no diapers, baby wipes, food, or milk for Nevaeh.
When investigators questioned Heather, she was crying, paranoid, and nervous. Her speech was rapid. Heather often repeated questions she was asked. Her eyes were glassy and watery. Heather admitted smoking methamphetamine and that she used it once a month. As of the filing of the report on May 17, 2006, Heather was still in jail. Heather denied having a substance abuse problem.
On April 20, 2006, a social worker was unable to find any bedding for Nevaeh. The bedroom had a small generator plugged into a lamp for lighting. Nevaeh was removed from Heather’s custody. At the jurisdiction hearing on June 13, 2006, the juvenile court found the allegations of the petition true and set the matter for a disposition hearing.
The social worker’s disposition report was filed on August 23, 2006. On June 23, 2006, Nevaeh was brought current with her immunizations. She was, overall, developmentally on target. An observer from Youth Link noted delay in Nevaeh’s social-emotional development. Nevaeh’s caregiver reported that Nevaeh had trouble sleeping and that she screamed at night. Nevaeh pulled her hair and banged her head when she was upset. Nevaeh also had temper tantrums each day which increased after visits with her mother.
Heather only participated in a substance abuse treatment program for three days and failed to enter a new program. The social worker recommended that Heather be denied reunification services. Nevaeh’s foster mother was meeting her emotional and physical needs, but not doing all she could to help Nevaeh cope. The foster parents were not willing to pursue a permanent plan of adoption. Heather had supervised visits with Nevaeh beginning May 9, 2006, at the jail. Although Heather was usually appropriate in her interactions with Nevaeh, she did give Nevaeh sips of soda despite being warned not to do so by staff. Once, Nevaeh threw up from eating too many gummy worms and Heather gave Nevaeh soda to drink. Heather had not yet begun the Nurturing Parenting Program. Heather told social workers that she did not believe she was in need of substance abuse treatment and had made herself unavailable to discuss entering a substance abuse program.
The department recommended that the court deny reunification services with a plan of adoption. The social worker noted that Nevaeh’s behavior problems could decrease the likelihood of her adoption. The disposition hearing was held on August 23, 2006. The court denied Heather further reunification services and found that reasonable efforts had been made to prevent removal of the minor. Heather filed a writ petition to this court which was denied on December 12, 2006. (Dec. 12, 2006, F051174 [nonpub. opn.].)
The department filed its report pursuant to section 366.26 on February 20, 2007. The social worker described Nevaeh as developmentally on target. The care provider described her as a fast learner, who can walk, run, jump, and eat cereal with a spoon. In July 2006, Nevaeh completed an infant mental health evaluation with Deborah Patterson of Youth Link. Patterson reported that Nevaeh had significant delays in social-emotional development and in early October 2006, she was placed in a risk adopt home. Nevaeh was scheduled to begin therapy in early January 2007.
Heather was again incarcerated at the time of the report for using methamphetamine. Her last visit with Nevaeh was on October 31, 2006. The social worker noted that the current care providers were committed to adopting Nevaeh, who had developed a strong relationship with them. The current care providers had been married for 10 years and had no children of their own. The social worker stated it was likely Nevaeh would be adopted if parental rights were terminated.
Nevaeh’s father had voluntarily signed a declaration of paternity and was listed on Nevaeh’s birth certificate. Since Nevaeh was placed in foster care, there had been no contact from her father. The father is not a party to this appeal.
The new care providers reported that when Nevaeh was initially placed with them, she did not eat well and would bang her head on the floor and couch. After this placement, Nevaeh’s appetite had increased and she was sleeping through the night. After Heather was incarcerated, Nevaeh stopped banging her head. The new caregivers reported “a huge change in Nevaeh’s personality and behavior since having her in their home.” The caregivers told the social worker they were very attached to Nevaeh and “would like very much to have her remain in their home and a part of their family.”
Heather had failed to demonstrate an ability to provide a stable home for Nevaeh. Heather was incarcerated twice since the removal of her daughter, did not have appropriate housing, was unemployed, and did not participate in any services until her recent incarceration.
The juvenile court conducted the termination hearing on February 20, 2007. Gilbert S. testified that he and Heather had been dating for two years since Nevaeh was two months old. Gilbert S. observed Heather and Nevaeh nearly every day and described a loving relationship between the two. Gilbert S. thought Heather was trying to be the best parent she was capable of being. During a visit with Nevaeh on her birthday, Nevaeh was excited. Heather held Nevaeh, who was happy with the embrace. Gilbert S. believed Nevaeh cared very much for her mother.
Heather testified that she had taken care of Nevaeh since her birth. Nevaeh knew Heather was her mother and called her mommy. Heather lived with her older sister and niece. Nevaeh did everything with her cousin and loved Heather’s sister. Nevaeh told Heather, “I love you mommy” and that she missed Heather.
Heather’s case manager, Cheryl O’Conner, testified that after Heather’s arrest there was a break in her visitation with Nevaeh until several weeks before the hearing. Heather had five visits with Nevaeh; most were 15 to 20 minutes long. O’Conner supervised three visits. Mother and daughter liked to play together. Heather had a visit with Nevaeh in jail for one hour. O’Conner described Heather as someone who played with Nevaeh on a weekly basis. Heather was a familiar face and Nevaeh did respond to Heather, but they did not have a parent-child relationship.
O’Conner stated that Nevaeh had been placed with her current care givers since October 2, 2006. The current care givers were willing to adopt Nevaeh.
The juvenile court found there was no evidence of a compelling reason that termination of parental rights would be detrimental to Nevaeh. The court found that although Nevaeh recognized her mother, “it was more of a familiar-type relationship rather than a parent-child relationship.” The court found the department made reasonable efforts to comply with the case plan. The court found by clear and convincing evidence it was likely Nevaeh would be adopted, that adoption was the appropriate plan and it terminated the parental rights of both parents.
DISCUSSION
Heather contends the juvenile court abused its discretion to terminate her parental rights because she visited Nevaeh on a regular basis, assuming a parental role. Heather argues Nevaeh’s counsel conceded at the hearing that there was a parent-child relationship and her substance abuse is irrelevant to the psychological and emotional connections Nevaeh developed for her mother.
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent’s burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
For the section 366.26, subdivision (c)(1)(A) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile 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 and positive emotional attachment so 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.)
To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) We view the evidence in the light most favorable to the trial court’s judgment and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
The parties did not dispute that Heather had a loving relationship with Nevaeh. Heather’s substance abuse, however, made it very difficult for her to maintain a proper residence and to hold a job. Heather had difficulty acknowledging a substance abuse problem and would not discuss treatment options with social workers. Heather failed to take advantage of reunification services available to her at an earlier stage of the proceedings when services could have led to reunification with her daughter.
Heather visited Nevaeh regularly, but did not demonstrate a strong parent-child bond. Heather made little showing at the termination hearing that termination of her parental relationship deprived her daughter of a substantial and positive emotional attachment and that the termination of parental rights would cause Nevaeh great harm. The concession of Nevaeh’s counsel that there was a parent-child relationship does fill this gap in the evidence. The juvenile court’s finding that the bond between Heather and Nevaeh was more of a familiar relationship than a parent-child relationship is supported by the social worker’s report and the testimony of case worker O’Conner. There was also evidence that Nevaeh’s head banging behavior and tantrums increased after visits with her mother. This behavior ceased in late 2006 after Nevaeh was placed with her new care givers and there was a gap in her visits with Heather.
On review of the record, we find no abuse of discretion. While there is no doubt that Heather maintained regular visitation with Nevaeh over the course of her dependency, the law required her to show that their relationship was of such benefit to Nevaeh that termination of parental rights would greatly harm Nevaeh. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) This she failed to do.
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
DISPOSITION
The judgment is affirmed.