Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J515921B, Blaine K. Bowman, Judge.
O'ROURKE, J.
Armando N. and J.Z. appeal from an order of the juvenile court terminating their parental rights and selecting adoption as the permanent plan for their son, A.Z. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code.) They contend the juvenile court erred in finding that the beneficial relationship exception to placing a child for adoption set forth in section 366.26, subdivision (c)(1)(B) was inapplicable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.Z. was born to Armando and J.Z. in March 2007. As a result of J.Z.'s history of drug use and mental illness, hospital staff contacted the San Diego County Health and Human Services Agency (the Agency), which filed a petition on A.Z.'s behalf pursuant to section 300, subdivision (b), alleging that he was at risk of harm as a result of J.Z.'s mental illness and Armando's inability to protect him. The court detained A.Z. at the Polinsky Children's Center and ordered liberal supervised visitation for both parents.
Armando, who had a lengthy criminal history and was then on parole, initially did well on his case plan, testing clean for drugs and attending weekly Narcotics Anonymous meetings. He also had positive visits with A.Z., although he frequently arrived 45 minutes to an hour late and on a couple of occasions, did not appear at all. At the jurisdictional hearing, the court continued A.Z.'s placement in foster care and reunification services for Armando.
Ten days later, Armando was arrested on drug-related charges and incarcerated for violating parole and he thereafter had no contact with the Agency or visits with A.Z. Because J.Z.'s reunification efforts were also poor, the Agency initially recommended that the juvenile court terminate reunification services for both parents at the six-month review hearing, but changed that recommendation based on Armando's reinstitution of regular visits with A.Z., enrollment in a parenting class and completion of a psychological referral after his release from custody in late 2007. At that hearing, the court terminated reunification services for J.Z., but continued them for Armando.
The court ordered reunification services for Armando again at the 12-month review hearing and Armando continued to make substantial progress on his case plan, completing a parenting class, maintaining a home appropriate for A.Z. to live in, participating in therapy and having regular unsupervised visitations with A.Z. beginning in May 2008. Based on Armando's progress, the Agency prepared a report recommending that the court facilitate ultimate placement of A.Z. with him.
Unbeknownst to the social worker at the time of the report, Armando had recently been arrested for drunk driving and evading police after an accident that resulted in significant injuries to his passenger. Once the Agency became aware of the incident, it obtained a court order requiring that Armando's visits with A.Z. be supervised. At the 18-month review hearing in October 2008, the court terminated Armando's reunification services and set a permanency planning hearing. (See § 366.26.)
Armando was arrested for extortion and possession of heroin shortly thereafter and the Agency recommended that the court terminate parental rights and place A.Z. for adoption. At the permanency planning hearing, the court followed the Agency's recommendations. Armando appeals the termination of parental rights and J.Z. joins in his arguments.
DISCUSSION
The purpose of the selection and implementation hearing is to "provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) Thus, a juvenile court at a section 366.26 hearing must select one of three plans for the child: adoption, guardianship or long-term foster care. (§ 366.26, subd. (b)(1)-(4); In re Taya C. (1991) 2 Cal.App.4th 1, 7.) Because a plan of adoption is the legislatively preferred plan, the statutory scheme requires that, if a court finds that the child is adoptable, it must terminate parental rights unless a statutory exception, setting forth circumstances in which such a termination is deemed detrimental to the child, applies. (§ 366.26, subd. (c)(1); In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.)
Here, Armando and J.Z. contend that the juvenile court abused its discretion in terminating parental rights in light of the statutory exception set forth in section 366.26, subdivision (c)(1)(B). That statute provides parental rights should not be terminated where "[t]he parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid.) To succeed in establishing the applicability of this exception, a parent must show that his or her relationship with the child is so beneficial to the child "as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents" and that, through regular visits and contact, he or she had maintained or developed a significant, positive, emotional parent-child attachment with the child. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
More than just frequent and loving contact, an emotional bond with the child or pleasant visits, each of which confers some benefit to the child, is required. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Rather, the parent must have had such contacts with the child that he or she occupied a parental role in the child's life, resulting in a "significant, positive, emotional attachment," the termination of which would "greatly harm" the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Here, the juvenile court concluded that the nature of Armando's relationship with A.Z. did not rise to the level necessary to outweigh the benefits of placing A.Z. for adoption. In determining whether sufficient evidence supports this finding, we review the evidence in the light most favorable to the court's order, giving the benefit of every reasonable inference, and resolving all conflicts, in support of it. (In re Autumn H, supra, 27 Cal.App.4th at p. 576.) Substantial evidence amply supports the court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(B), did not apply in this case.
Here, although the evidence was essentially undisputed that Armando had an affectionate relationship with A.Z., the visits between them were sporadic over substantial periods of time during A.Z.'s detention. Further, although A.Z. enjoyed his visits with father, he would get upset at separating from his foster parents at the beginning of those visits, and readily returned to them after the visits were over.
This evidence, as well as other evidence in the record, established that A.Z.'s foster parents, not Armando, fulfilled the parental role for A.Z. and that the relationship between A.Z. and Armando was more analogous to one between a child and a nonparent family member. For example, on numerous occasions Armando returned A.Z. to the foster parents without having tended to A.Z.'s needs to be fed or to have his diaper changed. The absence of a parent-child type relationship, standing alone, is sufficient to establish that section 366.26 (c)(1)(B) is inapplicable here. (See In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576 [the necessary relationship is one of parent and child rather than one of being a friendly visitor or friendly nonparent relative].)
Moreover, the evidence also supports the juvenile court's conclusion that A.Z. would benefit substantially from being adopted. As of the time of the permanent plan selection hearing, A.Z. had been in his foster parents' care, and in the stable and nurturing environment of their home, for almost two years. A.Z. had strongly bonded with his foster parents, who were eager to adopt him. By contrast, Armando's lengthy criminal history, including his three arrests during the pendency of these proceedings, suggested that A.Z. would not have similar stability and certainty if he was placed with Armando. Additionally, A.Z.'s foster parents had expressed their willingness to facilitate a continuing relationship between him and Armando if A.Z. was placed with them permanently.
After weighing the strength and quality of A.Z.'s relationship with Armando against the potential benefit of placing A.Z. for adoption, the juvenile court could have reasonably concluded that A.Z. would not be greatly harmed by a termination of Armando's parental rights and that he would be better off if placed "in the most permanent and secure alternative that can be afforded [to him]." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) The evidence before the court supported a finding the preference for adoption had not been overcome and that section 366.26 (c)(1)(B) did not preclude a termination of parental rights. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
WE CONCUR: McINTYRE, Acting P. J., AARON, J.