Opinion
C052475
12-12-2006
In re JUAN E., JR., a Person Coming Under the Juvenile Court Law. AMADOR COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SONIA A., Defendant and Appellant.
Sonia A. (appellant), mother of Juan E., Jr. (the minor), appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code unless otherwise specified.) She contends the court abused its discretion in failing to find that there was a beneficial relationship between appellant and the minor and, thus, that termination of parental rights would be detrimental to the minor. We disagree and shall affirm the orders.
FACTS
In January 2003, the one-month-old minor was removed from appellants custody, and was placed with his paternal grandparents, due to appellants alcohol abuse and negligent care that resulted in injury to the minor.
After 12 months of services were provided to appellant, she regained custody of the minor under a court-supervised family maintenance program. They lived with the maternal grandmother and moved to Stockton with her. Appellant participated in services but continued to display behavior that had led to the minors removal from her custody. For example, appellant resumed her substance abuse, using methamphetamine and marijuana; left the minor with grandparents and did not return on time; and failed to follow up on speech therapy for the minor.
In August 2005, appellant appeared to be making progress. However, over the next two months, she regressed due to ongoing drug and anger problems.
In October 2005, the minor was again removed from appellants custody and placed with the paternal grandparents in Amador County, and a supplemental petition was filed, alleging that appellant had twice tested positive for marijuana; had refused to take a drug test in October; had not complied with a court order to get an assessment from "Alcohol and Drug Services in San Joaquin County"; and had a "physical and verbal argument" with the maternal grandmother in front of the minor, and was told she no longer could live there.
The juvenile court found the allegations to be true and scheduled a section 366.26 hearing to determine a permanent plan for the minor.
The Department of Social Services recommended a permanent plan of adoption, opining that the minor was adoptable and stating that the paternal grandparents were willing to adopt him. Appellant, who continued to live in Stockton, had failed to attend most of the scheduled weekly visitations with the minor, even after the schedule was changed to accommodate her. The social worker had met with appellant to discuss transportation issues, offering bus passes and gas vouchers; but appellant rejected public transportation because it took too much time; instead, appellant chose to rely on the maternal grandmother, even though she was not always available to drive appellant from San Joaquin County to Amador County. Appellant had not visited at all in the month of March 2006.
At the contested hearing, the maternal grandmother testified appellant had a normal "loving relationship" with the minor and did not mistreat him. She acknowledged, however, appellant often left the minor to go away on weekends.
Appellant testified she had seen the minor only once in the last thirty days. She admitted she got angry and left a visit in February 2006 when the minor did not come to her willingly, but she blamed the paternal grandfather for the minors behavior.
Finding the minor was likely to be adopted, the juvenile court terminated appellants parental rights.
DISCUSSION
"At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416, italics added.) Thus, if the court concludes the child is adoptable, it must terminate parental rights unless it finds a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The party claiming an exception to the termination of parental rights has the burden of establishing the existence of circumstances justifying the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 1463(e)(3); Evid. Code, § 500.)
One circumstance in which the termination of parental rights would be detrimental to the minor is that the "parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) However, the benefit to the child must promote "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 other words, 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." (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Appellant contends the juvenile court abused its discretion in failing to find that she had established the benefit exception. Pointing out the court noted it was "very clear" appellant "still cares very much and loves her child" and it was the courts "hope" that, upon adopting the minor, the paternal grandparents "will see that continued contact [between appellant and the minor] take[s] place," appellant argues the evidence established she maintained regular visitation with the minor and had a "close parental bond [with him]," such that "severing [their] relationship" would cause the minor to be "greatly harmed." We are not persuaded.
From the evidence, the juvenile court was entitled to conclude that appellants relationship with the minor showed that she was more concerned about her own needs and convenience than the best interests of the minor. For example, after appellant moved out of the county and the minor was removed from her care for the second time, appellant made little effort on her own to continue regular visitation. Despite the repeated attempts of the social worker to provide her assistance with transportation, appellant chose to rely instead on the maternal grandmother, who was often not available. As a result, appellant had practically no visitation in the months leading up to the section 366.26 hearing. Even during the period when the minor was returned to her care, the evidence indicated that appellant was content to leave her childs care to others while she was away with friends for extended periods. In other words, the juvenile court reasonable could conclude appellants relationship with her son was only on appellants terms, as shown by the visit two months before the section 366.26 hearing at which appellant got angry because the minor did not immediately react to her as she expected and, thus, appellant left the visit rather than attempt to engage the minor.
In sum, it was reasonable for the juvenile court to find that the quality of appellants relationship with the minor was not strong enough to outweigh the benefits the minor would gain from an adoptive placement. The courts remark that it hoped the paternal grandparents would allow appellant to continue to see the minor after adoption was not inconsistent with a finding that appellant failed to establish the benefit exception to adoption.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur:
MORRISON, J.
ROBIE, J.