Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge, Super. Ct. No. NJ13356
IRION, J.
Darlene K., the mother of Ashton P., appeals the judgment terminating her parental rights under Welfare and Institutions Code section 366.26. Darlene contends the juvenile court erred by finding the beneficial parent-child relationship exception to adoption (former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i)) did not apply.
All statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship, formerly section 366.26, subdivision (c)(1)(A), is now section 366.26, subdivision (c)(1)(B)(i). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTS
On March 28, 2006, Ashton, who was then two years old, was taken into protective custody after police arrested Darlene and his father, Carlos P., both of whom have long histories of drug abuse. Carlos was arrested after the officers found heroin in his automobile. Darlene was later arrested on an outstanding felony warrant in the family home, where officers found drug paraphernalia. Ashton tested positive for opiates when he was admitted to the Polinsky Children's Center. Ashton was withdrawn, did not speak and was poorly socialized. Ashton also repeatedly banged his head against walls and had tantrums.
Carlos is not a party to this appeal and will not be mentioned further.
Ashton was later diagnosed as having autism and developmental delays.
The San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Ashton alleging (1) he was at substantial risk of harm because his parents failed to provide him a safe home and (2) his parents left him with no provision for support because they were incarcerated. (§ 300, subds. (b), (g).)
The juvenile court sustained the petition, declared Ashton a dependent child, removed custody from Darlene and placed him with his maternal aunt.
Darlene was in jail through much of the first six months of the dependency. When she was out of custody, Darlene did not comply with her case plan even though she expressed an interest in drug rehabilitation. Darlene entered the drug treatment program at Serenity House on August 28, but left the program the same day. Darlene visited Ashton only one time before Christmas.
At the six-month review hearing on December 6, the court terminated reunification services and set a section 366.26 hearing.
In her adoption assessment report, social worker Susan Minas opined that Ashton was likely to be adopted notwithstanding his autism and developmental delays. The maternal aunt and her husband wanted to adopt him, and there were nine other approved adoptive families in San Diego County interested in adopting a child with Ashton's characteristics. Minas reported that Ashton had done well living with his relative caregivers and appeared happy and comfortable with them. Ashton was bonded to his aunt and uncle, whom he addressed as "Mama" and "Dada." Ashton was no longer withdrawn and had stopped banging his head against the walls. Ashton was speaking and using pictures to communicate with others.
Ashton was active to the Regional Center, where he received services for his autism and developmental delays. Ashton attended a special education pre-school four times a week in the mornings and a regular pre-school with children of his own age in the afternoon to develop his social skills.
Darlene visited Ashton three times in January 2007. When Ashton fell down and cried, he sought comfort from the maternal aunt─not Darlene. During a February 14 visit, Ashton resisted kissing and hugging Darlene when she arrived, but later permitted her to hold him on her lap. Ashton had no difficulty separating from Darlene at the end of the visit.
Minas opined it would not be detrimental to Ashton to terminate parental rights. Further, the social worker said there was not a beneficial parent-child relationship that would outweigh the benefit of adoption; Minas characterized the relationship between Ashton and Darlene as "tenuous at best."
On May 11, the court found Ashton was likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and referred Ashton to Agency for adoptive placement.
DISCUSSION
Darlene contends the court erred by not applying the beneficial parent-child relationship exception to adoption (former § 366.26, subd. (c)(1)(A)). The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the section 366.26 hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the statutory exceptions applies. (Former § 366.26, subd. (c)(1)(A)-(E), now § 366.26, subd. (c)(1)(A) & (B)(i)-(vi).) A parent bears the burden to show by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Under the beneficial parent-child relationship exception, once the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination 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." (Former § 366.26, subd. (c)(1)(A), italics added.) The exception applies only if both prongs are met.
On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Although the court indicated that Darlene had maintained visitation with Ashton while she was out of custody, Agency contests this point because it claims Darlene's visits were sporadic and inconsistent. We need not dwell on the visitation issue because, even assuming Darlene satisfied that prong of former section 366.26, subdivision (c)(1)(A), she failed to demonstrate that Ashton would benefit from continuing his relationship with her to such an extent as to outweigh the benefits of a stable and secure adoptive home.
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show 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." (Italics added.) The juvenile court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.)
"To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Substantial evidence supports the court's finding that Darlene did not have the requisite beneficial relationship with Ashton under former section 366.26, subdivision (c)(1)(A), and, therefore, the benefits of continuing her relationship with Ashton were outweighed by the benefits he would gain from a permanent adoptive home.
When Ashton lived with Darlene, she exposed him to a drug and criminal lifestyle. Ashton's well-being and developmental delays were ignored until he was taken into protective custody. By the time of the section 366.26 hearing, Ashton had shown great improvement while in the care of the maternal aunt and uncle. Ashton looked to them to fulfill parental roles for him. In contrast, Darlene's role was that of a visitor.
Ashton's need for permanence and stability through adoption outweighed any interest in preserving Darlene's parental ties to him. Where 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 a 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.)
Darlene argues unpersuasively that (1) her parental relationship with Ashton is a significant one that should not be severed, (2) terminating parental rights would serve no purpose in this case because the aunt and uncle are adopting Ashton and therefore she and he will remain in the same family, and (3) termination will eliminate any chance she has of reunifying with Ashton in the future. First, as indicated above, there is substantial evidence that Darlene and Ashton did not have the beneficial parent-child relationship envisioned by the statute. Second, the aunt and uncle have indicated that as Ashton's adoptive parents they would allow Darlene to have contact with Ashton only if she is sober; given Darlene's drug history, it remains to be seen whether she can remain drug free. Third, Darlene ignores the fact that the time for reunification has long since passed. We also note that placement with relatives who are willing and able to adopt is not an exception to adoption.
Although the new version of section 366.26, subdivision (c)(1) (see fn. 2, ante), establishes an additional exception to adoption when a child is living with relatives who are unable or unwilling to adopt but able and willing to assume guardianship of the child, that situation is not present in this case. (See new § 366.26, subd. (c)(1)(A).) The maternal aunt and uncle are willing and able to adopt Ashton.
Further, Darlene's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 is misplaced as that case is readily distinguishable. In In re Amber M., supra, at pages 689-690, a psychologist who conducted a bonding study opined termination of parental rights would be detrimental because the mother and child shared a primary attachment and primary maternal relationship. The child's therapist and the child's court-appointed special advocate believed the relationship should continue because the mother and child shared a strong bond. (Ibid.) Darlene did not present similar expert bonding evidence or expert evidence that severing her legal relationship with Ashton would be detrimental to him. Rather the only expert evidence before the court was the social worker's report that termination of Darlene's parental rights would not be detrimental to Ashton. The court was entitled to accept the social worker's expert opinion and rely on it. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
DISPOSITION
Judgment affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.