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In re O.I.

California Court of Appeals, Fourth District, First Division
Jul 16, 2008
No. D052538 (Cal. Ct. App. Jul. 16, 2008)

Opinion


In re O.I., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KIMBERLY I., Defendant and Appellant. D052538 California Court of Appeal, Fourth District, First Division July 16, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. J515584B, Carol Isackson, Judge.

O'ROURKE, J.

Kimberly I. appeals an order terminating her parental rights to her daughter, O.I. She contends substantial evidence did not support the juvenile court's finding that adoption was in O.I.'s best interests because the beneficial parent-child relationship exception to termination of parental rights and adoption applied in this case. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 6, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant O.I. under Welfare and Institutions Code section 300, subdivision (j), alleging she was at substantial risk because Kimberly had hit her sibling, Joanna I., in the face causing bruising. Eight-year-old Joanna had been removed from Kimberly's care in September 2004, and had not been returned. Kimberly's three other children lived with their fathers.

Statutory references are to the Welfare and Institutions Code.

The Agency originally also petitioned under section 300, subdivision (b), alleging Kimberly was mentally ill. The court later dismissed that portion of the petition.

The psychologist who evaluated Kimberly opined her parenting skills were very deficient, but she might be able to acquire adequate skills through successful participation in parenting classes and long-term psychological therapy. He said Kimberly grew up in a highly dysfunctional home with an alcoholic mother who rejected her and was often frighteningly violent. He diagnosed Kimberly as suffering from an adjustment disorder with mixed anxiety and depressed mood and as having a personality disorder.

The court found the allegations of the petition to be true, declared O.I. to be a dependent child, ordered her placed in foster care and ordered Kimberly to comply with her case plan.

By the six-month review hearing on February 8, 2006, Kimberly was living in a sober living residence and having supervised visits. The court found she had made some progress, continued O.I. in out-of-home care and continued services. Kimberly continued to work on reunification services, but had inconsistent visitation with O.I. At the 12-month hearing on October 6, the court continued services and continued O.I. in foster care.

Kimberly and O.I. had their first unsupervised visit on December 3, 2006. The foster mother reported that when they returned from the three-hour visit, O.I. was limping because she would not allow Kimberly to pick her up. Supervised visits resumed after an unsupervised visit during which Kimberly did not feed O.I. anything, although the visit took place over the noon hour.

By May 2007 the social worker reported Kimberly had been having weekly supervised visits at the foster mother's home, but she was using this time to talk on the telephone, check her email or talk with the foster mother. At the 18-month hearing on June 20, the court found reasonable services had been provided and returning O.I. to Kimberly's care would pose a substantial risk. It terminated services and set a section 366.26 hearing.

The social worker assessed O.I. as adoptable due to her age and good health and development. During visits Kimberly interacted with O.I. appropriately, but O.I. did not always want to hug or kiss her and always separated easily from her at the end of visits and ran happily to her foster mother, with whom she had lived since she was a few days old. The foster mother wanted to adopt her and there were 21 families with approved adoptive home studies who wanted to adopt a child like O.I.

At the section 366.26 hearing on February 13, 2008, after hearing testimony from the social worker and from Kimberly, the court found O.I. was likely to be adopted if parental rights were terminated, and none of the statutory exceptions to termination of parental rights and adoption applied. It terminated parental rights and referred O.I. for adoption.

DISCUSSION

Kimberly asserts the court erred by finding the beneficial relationship exception to termination of parental rights and adoption did not apply. She argues she had completed her case plan and the only thing standing in the way of return was her lack of suitable housing. She claims she and O.I. shared a loving and positive relationship worthy of preserving.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."

In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Even assuming this record demonstrates regular visitation and contact, Kimberly did not show a parent-child relationship so beneficial that termination of parental rights would be detrimental to O.I.

Kimberly had never acted as O.I.'s parent. This responsibility had always been fulfilled by the foster mother, who had cared for O.I. for more than two years. Kimberly acted appropriately during visits and she and O.I. played together, but often O.I. had to be urged to hug or kiss Kimberly, she sometimes repeatedly said no when Kimberly tried to engage her, she always separated easily from Kimberly when visits ended and she appeared happy to return to her foster mother. Kimberly did not show that continuing their relationship outweighed the benefits of adoption to O.I. The court did not err by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption.

DISPOSITION

The order is affirmed.

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


Summaries of

In re O.I.

California Court of Appeals, Fourth District, First Division
Jul 16, 2008
No. D052538 (Cal. Ct. App. Jul. 16, 2008)
Case details for

In re O.I.

Case Details

Full title:In re O.I., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

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

Date published: Jul 16, 2008

Citations

No. D052538 (Cal. Ct. App. Jul. 16, 2008)