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In re Fabian T.

California Court of Appeals, Fourth District, First Division
Feb 22, 2011
No. D058050 (Cal. Ct. App. Feb. 22, 2011)

Opinion


In re FABIAN T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MONICA A., Defendant and Appellant. D058050 California Court of Appeal, Fourth District, First Division February 22, 2011

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No. J516413D, Laura J. Birkmeyer, Judge.

IRION, J.

Monica A. appeals an order terminating parental rights to her son, Fabian T., under Welfare and Institutions Code section 366.26. We affirm the order.

Further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Monica has a history of methamphetamine use and mental health issues. In 2006 her three young children were removed from her care after she threatened to hurt them. She was unable to reunify with them and they were freed for adoption in March 2008.

Fabian was born healthy and drug-free in 2008. Because of Monica's substance abuse and mental health history, and her failure to reunify with her other children, the San Diego County Health and Human Services Agency (the Agency) filed a petition on Fabian's behalf. The juvenile court maintained Fabian in Monica's custody under a family maintenance plan. Monica completed a substance abuse program and participated in individual therapy.

The identity of Fabian's biological father was not determined.

In early September 2009 Monica tested positive for methamphetamine and amphetamine. To avoid further dependency proceedings, she left the state with Fabian. The Agency was not able to locate Monica and Fabian for more than a month, when it received a telephone call from a family member in Florida. In mid-November Monica released Fabian to child protective services and he was returned to San Diego.

On a supplemental petition, the juvenile court removed Fabian from Monica's care, denied reunification services and set a section 366.26 hearing. The Agency placed Fabian in a concurrent placement with caregivers who were willing to adopt him if circumstances permitted.

The section 366.26 hearing was held on July 22, 2010. The juvenile court admitted the Agency's reports and exhibits log in evidence. The parties waived their rights to cross-examine the social worker and did not present affirmative evidence. Without objection, the court accepted Monica's stipulated testimony.

At the time of the section 366.26 hearing, Fabian was 19 months old. The social worker recommended the court select a permanent plan of adoption for Fabian. Fabian was a healthy child who was apprehensive around strangers but happy and secure in the presence of his caregivers. The social worker stated Fabian had a difficult relationship with Monica and did not appear to have a significant bond with her. During visits, he cried and appeared to be afraid of her. Monica did not comfort Fabian when he was upset. Although Fabian became more comfortable with Monica as visitation continued, the social worker did not believe they had a parent-child relationship. He did not look to Monica to meet any of his needs.

The parties stipulated that if Monica were to testify she would state that she believed she had a bond with Fabian and loved him very much.

The court found that Monica had regular visitation and contact with Fabian but she did not establish that the benefit of maintaining the parent-child relationship outweighed the benefits of adoption to Fabian. The court found that Fabian was adoptable and terminated parental rights.

DISCUSSION

A

The Parties' Contentions

Monica contends the juvenile court erred when it determined there was not an exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i), (beneficial parent-child relationship exception) and terminated her parental rights.

B

Legal Framework and Standard of Review

At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)

Once the court determines that 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). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

"Benefit from continuing the relationship" means the [parent-child] 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "the court balances the strength and quality of the natural parent/child 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." (Ibid.)

We determine whether there is substantial evidence to support the 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. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H., supra, 27 Cal.App.4th at p. 576; In re S.B. (2008) 164 Cal.App.4th 289, 298.)

Substantial evidence supports the court's finding the beneficial parent-child relationship did not apply. Monica did not have a history of stability, and Fabian had a chaotic childhood. Although Monica maintained her sobriety for seven months after his birth, she lived with Fabian in a home in which others were using methamphetamine. Monica relapsed on methamphetamine. The record permits the reasonable inference Monica did not provide Fabian with a safe home. (§ 300.2 [the provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection, and physical and emotional well-being of the child].)

Further, after Fabian was removed from Monica's care, the social worker observed that Fabian was distressed during visits with Monica and she was unable to comfort him. At times, Fabian appeared to be afraid of Monica and cried during the visit. Over several months, with the social worker's assistance, Fabian became more comfortable with Monica but remained attentive to the social worker's whereabouts. On occasion, Fabian allowed Monica to hold him. At other times he appeared apprehensive of contact with Monica and cried when she held him. The social worker stated she did not observe a parent-child relationship between Monica and Fabian.

The juvenile court did not err when it concluded that maintaining Fabian's relationship with Monica would not promote his well-being to such a degree as to outweigh the well-being he would gain in a permanent, safe and secure adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

DISPOSITION

The order is affirmed.

WE CONCUR: McCONNELL, P. J., McDONALD, J.


Summaries of

In re Fabian T.

California Court of Appeals, Fourth District, First Division
Feb 22, 2011
No. D058050 (Cal. Ct. App. Feb. 22, 2011)
Case details for

In re Fabian T.

Case Details

Full title:In re FABIAN T., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

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

Date published: Feb 22, 2011

Citations

No. D058050 (Cal. Ct. App. Feb. 22, 2011)