Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Nos. J1139240 & J1139241, Thomas R. Adams, Judge
Jennifer Mack, under appointment by the Court of Appeal, for Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara and Toni Lorie, Deputy, for Respondent.
YEGAN, Acting P.J.
Leticia Y. appeals from an order terminating parental rights to her children, Rita and Jacob Y., and establishing adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) Appellant claims that the parental relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) precludes termination of her parental rights. We affirm.
All statutory references are to the Welfare and Institutions Code.
Facts and Procedural History
In September 2004, Jacob Y. and appellant tested positive for methamphetamine, when Jacob was only a day old. Appellant admitting using drugs "throughout her pregnancy" and was offered family maintenance services but failed to attend meetings.
On September 30, 2004, appellant attempted suicide and was readmitted to the hospital for a drug overdose. Appellant was unconscious and tested positive for opiates, benzoids, and amphetamine. She had graffiti written all over her body and a large burn on her thigh. Family members told a social worker that appellant had a history of substance abuse, was emotionally unstable, and was not motivated to "get her life back together."
Jacob, his sister Rita (age one), and four older siblings were taken into protective custody.
On October 28, 2004, Santa Barbara County Department of Social Services (DSS) filed a juvenile dependency petition alleging that appellant and the father (Daniel Y.) had failed to protect or care for Jacob and Rita. (§ 300, subds. (b) & (g).) The petition stated that the father had a criminal history which included drug arrests and was living in a residential drug treatment program that did not allow children.
Appellant admitted allegations that she suffered from substance abuse and depression, that she used drugs during her pregnancy, that she was hospitalized for a drug overdose shortly after Jacob's birth, and that she had tested positive for opiates, benzoids and amphetamine.
The trial court declared the minors dependents of the court, ordered reunification services, and ordered DSS to place the minors with relatives.
At the six month review hearing, Rita was living with her maternal aunt (Angela O.) and Jacob was living with his maternal cousin (Theresa M.). The four older siblings were living with their great-grandparents. DSS reported that appellant had not completed a parenting class and had tested positive for drugs. Appellant told a case worker that she "could not handle the stress of reunification" and failed to regularly attend a Life Skills class or go to therapy as ordered.
The trial court found it would be detrimental to return the minors to appellant and continued reunification services.
At the twelve-month review hearing, evidence was received that appellant was hospitalized for an arm infection after injecting heroin with a dirty needle. Appellant was released two weeks later, lost her housing assistance, and arrested on a warrant. Appellant was ordered to attend a drug rehabilitation program, left the program after testing positive for drugs, and failed to go to therapy and NA/AA meetings.
The trial court found that reasonable reunification services had been provided and terminated reunification services.
At a combined section 388/366.26 hearing on December 11, 2006, the trial court denied a section 388 petition to place Jacob with the maternal aunt, Angela C. The trial court found that Jacob had lived with his maternal cousin (Theresa M.) for most of his life and there was no evidence that it would be in Jacob's best interest to change the placement.
The trial court further found that Rita and Jacob were likely to be adopted and that appellant, who was living in a residential drug treatment program, was not acting in a parental role. The court terminated parental rights and referred the minors for adoption.
Discussion
Where, as here, the parent has failed to reunify and it is likely the child will be adopted, the trial court must select adoption as the permanent plan unless it finds "a compelling reason for determining that termination [of parental rights] would be detrimental to the child" under certain statutory exceptions. (§ 366.26, subd. (c)(1); In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) The "beneficial relationship" exception exists where the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
The parent, however, has the burden of demonstrating that the parent-child relationship promotes the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with adoptive parents. (See e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) It is not enough to show that the child would receive some incidental benefit from a continued relationship with the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The trial 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.)
The evidence shows that Jacob and Rita have bonded with their relative caregivers. Although appellant regularly visits the minors, she functions as an extended family member. Jacob has spent most of his life with his maternal cousin (Teresa M.), calls her "mom," and has thrived under her care. Rita has lived with her maternal aunt (Angela C.) more than half her life, calls her "mom," and relies on her for day-to-day parental care and emotional support.
Appellant's contact with the minors was minimal and did not advance past supervised visitation despite 12 months of reunification services. Appellant was granted unlimited visitation but slept during visits. Visitation was modified after appellant had an altercation with her sister in front of the minors. At the recommendation of Jacob's therapist, visits were limited to four hours a week because prolonged visits caused him nightmares and restlessness.
Rather than reunify with the minors, appellant was in and out of the hospital for a drug overdose and an arm infection caused by heroin use. Visitation was sporadic. Appellant entered a residential drug rehabilitation program, left the program, and dropped out of contact. She was incarcerated and then released to a residential drug treatment program. At the section 366.26 hearing, visitation was supervised and limited to one day a week.
The trial court properly found that the visitation, even if emotionally significant, was not enough. "The parent must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental role' in the child's life. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
Ruby Meza, the case worker, testified that appellant had not assumed a parental role with the children and functioned as an extended family member. Rita and Jacob were thriving under the loving care of their prospective adoptive parents and needed a stable and safe home. Meza opined that Rita and Jacob would suffer no detriment if they had no further contact with appellant.
Meza's testimony was corroborated by family members and a 2005 psychological evaluation. Appellant lacked parenting skills, quarreled with family members in the presence of the children, and suffered from a long term substance abuse problem that included a suicide attempt/drug overdose, jail, and two hospitalizations. Although appellant maintained sobriety for seven months, it occurred while she was incarcerated and living in a highly structured residential drug treatment program. Appellant admitted that the program did not allow Rita or Jacob to live with her and that appellant could only visits Sundays or if she got an overnight or holiday pass.
Jacob and Rita enjoyed the visits, but there was no evidence that the emotional attachment between appellant and the minors outweighed the benefits of adoption. Appellant's relationship with the minors "bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship." (In re Derek W., supra, 73 Cal.App.4th at p. 827.)
We reject the argument that the trial court abused its discretion or that the judgment is not supported by the evidence. (See e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351; In re Fernando M. (2006) 138 Cal.App.4th 529, 535.) "[A]doption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption. That showing [is] difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
The judgment (order terminating parental rights and identifying adoption as the permanent plan) is affirmed.
We concur: COFFEE, J. PERREN, J.