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In re D.W.

California Court of Appeals, Fourth District, First Division
Mar 6, 2008
No. D051673 (Cal. Ct. App. Mar. 6, 2008)

Opinion


In re D.W., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALEXIS M., Defendant and Appellant. D051673 California Court of Appeal, Fourth District, First Division March 6, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court No. J516127 of San Diego County, Yvonne Campos, Judge. Affirmed.

HALLER, J.

Alexis M. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter D.W. under Welfare and Institutions Code section 366.26. Alexis challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. We affirm the judgment.

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, p. 4999.) The beneficial parent-child relationship exception, 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.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2006, newborn D. became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings Alexis suffered from a mental illness. Reports submitted by the San Diego County Health and Human Services Agency (Agency) showed Alexis had a long history of suicidal ideation, bipolar disorder, and major depression. These conditions rendered Alexis unable to provide D. with regular care.

During the next six months, D. remained in foster care. She was doing well in her placement and appeared to be bonding with her caregiver. Alexis submitted to a psychological evaluation that showed she suffered from anger management difficulties and had tendencies toward aggressive behavior. Alexis received services, including therapy, parenting classes, and anger management courses. She participated in these services and her therapist noted she had made some progress. Alexis also visited D. on a weekly basis. At a six-month review hearing, the court continued services for an additional six months.

At the 12-month review hearing, the social worker recommended terminating services. Alexis did not participate in anger management classes or therapy sessions on a regular basis. The social worker observed Alexis did not show appropriate parenting skills and when redirected, acted hostile toward the social worker. Alexis's therapist noted Alexis did not have the ability to provide D. with a safe home and would place a child in her care at risk. The court terminated reunification services and set a section 366.26 selection and implementation hearing.

The social worker assessed D. as adoptable based on her good health, young age, and lack of developmental problems. D.'s caregivers had cared for D. since birth and wanted to adopt her. There were numerous other families interested in adopting a child like D. in the event the caregivers could not adopt.

Alexis continued to have some visits with D. During the last two visits, D. showed signs of distress. D. often cried for her foster mother and did not want to be held by Alexis. Alexis discontinued visiting D. in the month before the selection and implementation hearing.

At the selection and implementation hearing, the court found D. was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court referred D. for adoptive placement.

DISCUSSION

Alexis challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited D. and the two shared a strong bond.

A

We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if 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." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "promotes the well-being of the minor to such a degree as to outweigh the well-being the minor 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 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; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

During the 17 months of this dependency proceeding, Alexis initially visited D. on a weekly basis and then missed visits for about two months before the selection and implementation hearing. Even if visitation is considered to be regular, Alexis did not meet her burden of showing her relationship with D. was sufficiently beneficial to outweigh the benefits of adoption. Visits did not always go well between D. and Alexis. Alexis sometimes was distant from D. and on occasion, the social worker had to provide Alexis with suggestions on how to read, play, and talk to D. During two visits, D. cried when she saw Alexis and remained inconsolable. D. separated easily from Alexis at the end of visits and eagerly reached for her caregiver. There was no evidence of a "significant, positive, emotional attachment" from D. to Alexis such that terminating the parent-child relationship would result in great detriment to the minor. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) D., whose needs Alexis could not meet, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.

DISPOSITION

The judgment is affirmed.

WE CONCUR: NARES, Acting P. J., McINTYRE, J.


Summaries of

In re D.W.

California Court of Appeals, Fourth District, First Division
Mar 6, 2008
No. D051673 (Cal. Ct. App. Mar. 6, 2008)
Case details for

In re D.W.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 6, 2008

Citations

No. D051673 (Cal. Ct. App. Mar. 6, 2008)