Opinion
D041630.
7-9-2003
In re KASSANDRA R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MONIQUE P. et al., Defendants and Appellants.
Monique P. and Luis R. separately appeal an order under Welfare and Institutions Code section 366.26 terminating their parental rights and selecting adoption as the permanent plan for their daughter, Kassandra R. Both parents contend the court erred by not finding that the statutory beneficial parent-child relationship exception to termination of parental rights applied. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2002 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on behalf of three-month-old Kassandra under section 300, subdivisions (a) and (e), alleging Kassandra had suffered severe physical abuse and serious physical harm inflicted nonaccidentally by her parents. The Agency filed the petition and removed Kassandra from her parents custody after they took her to a hospital and it was determined she had a fractured elbow and other fractures in various stages of healing. Kassandra was evaluated by Childrens Hospital staff, who reported her injuries were "characteristic of inflicted trauma" and she would be "at risk for additional, even fatal, injury if [returned] home to the same environment." The parents denied inflicting the injuries and stated they did not know how Kassandra sustained them.
The court sustained the petition and, at a contested disposition hearing, removed Kassandras physical custody from her parents, denied them reunification services under section 361.5, subdivision (b)(5), and set a section 366.26 hearing. Monique and Luis filed writ petitions challenging the courts refusal to place Kassandra with a relative. This court denied the petitions in an unpublished decision. (Luis R. et al., v. Superior Court (Nov. 19, 2002, D040675.)
At the contested section 366.26 hearing, the court received into evidence the Agencys assessment report for the hearing and heard testimony from the social worker and maternal grandmother. The court terminated parental rights, finding it was likely Kassandra would be adopted and none of the section 366.26, subdivision (c)(1) exceptions applied.
DISCUSSION
Monique and Luis contend the court erred by not finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) precluded termination of their parental rights. "At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred by the Legislature. [Citation.] The Legislature has provided an exception to the general rule of adoption: the court should not order a permanent plan of adoption when termination of parental rights would be detrimental to the child because `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).)" (In re Casey D. (1999) 70 Cal.App.4th 38, 50.)
This court has interpreted "the benefit from continuing the parent[-]child relationship exception to mean 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. 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. 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 parents rights are not terminated. Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
After a parent has not reunified with a child and the court has found 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 because of a beneficial parent-child relationship or other circumstance specified in section 366, subdivision (c)(1). (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) The courts finding on the issue is reviewed under the substantial evidence rule. (Id. at p. 576.) Under that rule "we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, held that the standard of review for a finding under section 366.26, subdivision (c)(1)(A) is abuse of discretion rather than the substantial evidence test. The court noted, however, that "the practical differences between the two standards of review are not significant. Evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " if [it] finds that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . ." [Citations.]"
The courts rejection of the beneficial relationship exception to termination of parental rights is supported by substantial evidence. Although the social workers assessment report for the section 366.26 hearing noted Kassandra smiled and interacted with Monique and Luis during visits, the social worker also noted Kassandra was a friendly child who responded positively to new people and adults generally. At medical appointments, she willingly approached a nurse and doctor and smiled and cooed at medical students. When she went to a photography studio to be photographed, she reached her arms up to be picked up by the photographer. She willingly accompanied case aides who transported her to visits. She transitioned without duress to her parents, grandparents and cousins during visits, and did not appear to discriminate among her relatives and other adults she contacted. She interacted with her parents similarly to the manner in which she interacted with other adults and did not appear to have a child-parent relationship with them.
The social worker believed that although Monique and Luis acted appropriately during two-hour supervised visits, it was unlikely they would be able to provide Kassandra a safe environment while balancing the frustrations of everyday life. Kassandra would be at significant risk in their custody because neither had taken responsibility for the serious injuries she suffered in their care. The social worker concluded there was no beneficial parent-child relationship that would create an exception to termination of parental rights and adoption as Kassandras permanent plan.
At the section 366.26 hearing, the social worker testified she had observed 14 visits between the parents and Kassandra and her opinion about the absence of a parent-child relationship had not changed. Kassandra had no difficulty separating from her parents at the end of visits. The social worker characterized Kassandras relationship with Monique "as being an acquaintance, somebody that she sees every week, and somebody that plays with her, and somebody who is happy to see her." The social worker characterized Kassandras relationship with Luis as "very similar to the mother."
The court was entitled to find the social worker credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The social workers written report and testimony presented substantial evidence supporting the courts finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to Kassandras relationship with either parent.
Further, because no one had taken responsibility for the serious injuries inflicted on Kassandra, the problem leading to her dependency had not been resolved and the parents ability to provide her a safe home remained questionable. Given those circumstances, the court would have had difficulty finding the parents relationship with Kassandra beneficial. Notwithstanding the positive interaction between Kassandra and her parents during supervised visitation, the evidence reasonably supports a finding that her relationship with them did not promote a degree of well-being that outweighed the well-being she would gain in a permanent home with new adoptive parents. The court did not err by finding the beneficial relationship exception does not apply in this case. The order is affirmed.
WE CONCUR: BENKE, Acting P. J., and NARES, J.