Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. EJ2717 A-C, Gary M. Bubis, Judge.
AARON, J.
Jenny C. and Victor L., the parents of Romeo, Alexandria and Jasmine, appeal judgments terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. Jenny and Victor contend that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
In October 2004 Jenny and Victor entered into a voluntary services contract with the San Diego County Health and Human Services Agency (Agency). Jenny and Victor were homeless, had a history of domestic violence, and were overwhelmed with their responsibilities as parents to one-year-old Romeo. Although Jenny and Victor received 15 months of voluntary services, they showed no improvement.
On January 27, 2006, police took Romeo and his twin six-month-old sisters, Alexandria and Jasmine, into protective custody after Jenny slapped Romeo on his left leg during a fight with her 14-year-old sister. Jenny was angry because her sister criticized how she cared for the children. Jenny was arrested for child abuse.
On February 17 Agency filed dependency petitions on behalf of Romeo, Alexandria and Jasmine alleging that the children were at risk because Jenny physically abused Romeo. (§ 300, subd. (a).)
On March 27 the juvenile court sustained the petitions, declared the children dependents, ordered Jenny and Victor to comply with their case plans, and placed the children in the home of a maternal cousin.
In June Victor waived his right to receive reunification services.
Jenny participated in services: she enrolled in KIVA, an inpatient drug treatment program; underwent therapy; and attended a domestic violence treatment program. Although Jenny was in good compliance with the Substance Abuse Recovery Management System (SARMS), other service providers reported poor progress. Jenny's therapist repeatedly expressed concern that Jenny could not safely parent her children because of her low cognitive abilities, her dependency on others, and her inability to take responsibility for her actions.
A psychological evaluation revealed that Jenny had faulty judgment, that she suffered from anxiety and depression, and that she exhibited a lack of control and was "at high risk for future acting out behaviors towards her children." The evaluator also noted that Jenny had borderline intellectual functioning and that she would require assistance in "everyday living."
On November 13 Agency filed petitions on behalf of Romeo, Alexandria and Jasmine under section 387 after the relative caregiver requested that the children be removed. The court ordered that the children be placed in a licensed foster home. On the same date, Agency reversed its position that services should be terminated; services were continued to the 12-month date.
Jenny visited Romeo, Alexandria and Jasmine weekly at Crisis House. The three children overwhelmed her at times. Visitation monitors reported that Jenny occasionally was inattentive to safety risks, such as one of the twins having a small object in her mouth. The visitation monitors said that Jenny did not follow their suggestions for activities with the children; instead, Jenny usually watched a movie with them. The monitors also noted that Romeo appeared uncomfortable during the visits and wanted to leave after about an hour.
On April 5, 2007, Victor began visits for the first time in five months.
On May 15 at the contested 12-month review hearing, the court found that Jenny had made some progress with her case plan, but that there was no substantial probability that the children would be returned by the 18-month date. The court terminated services and scheduled a section 366.26 hearing.
In the adoption assessment report, social worker Lizann Camacho opined that the children were adoptable because of their young age, good health and appropriate development. The caregivers wanted to adopt Romeo, Alexandria and Jasmine, who had lived with them since November 2006. Camacho reported that the caregivers and the children were bonded to each other.
At the section 366.26 hearing on November 14, 2007, Camacho testified that she had observed five visits between Victor and the children. The children seemed to enjoy the visits because they were allowed to play. However, Camacho opined that the children would have enjoyed the play time with anyone. Camacho reported that Victor expressed genuine verbal affection toward the children. At times, Romeo ignored Victor. Camacho opined that Romeo did not view Victor as a father figure and that they did not have a parent-child relationship.
Camacho observed eight visits between Jenny and the children. Although Alexandria and Jasmine sometimes went to Jenny for affection and hugs, Romeo did so only rarely. Based on her observations of the visits, Camacho testified that Jenny did not have the ability to parent the three children. In addition, the children were not excited to see Jenny at the beginning of the visits nor upset at the end of the visits.
The social worker believed that termination of Jenny's parental rights would not be detrimental to any of the children because none of the children was bonded to Jenny. Camacho also testified that termination of Victor's parental rights would not be detrimental to any of the children, and that in her view, Victor did not have a parent-child relationship with any of the children. According to Camacho, the benefits of adoption for all three children outweighed the benefits the children would derive from continuing their relationships with Jenny and Victor.
The court found that Romeo, Alexandria and Jasmine were likely to be adopted and that none of the statutory exceptions to adoption applied. The court ordered that Jenny's and Victor's parental rights be terminated and selected adoption as the permanent plan for Romeo, Alexandria and Jasmine.
DISCUSSION
Jenny contends that the juvenile court erred by terminating her parental rights because she shared a beneficial parent-child relationship with Romeo, Alexandria and Jasmine. Victor also contends that the beneficial parent-child relationship exception to adoption applied with respect to him. These contentions are without merit.
Adoption is the preferred permanent plan. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Termination of parental rights is allowed upon clear and convincing evidence of adoptability. (§ 366.26, subd. (c)(1).) An exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).) The exception applies only if both prongs exist.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because these proceedings occurred before the statutory change, we shall refer to the earlier version of the statute.
The parent has the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) On appeal, we review the juvenile court's findings to determine whether there is substantial evidence to support them. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Agency does not contest the court's finding that both Jenny and Victor satisfied the first prong of former section 366.26, subdivision (c)(1)(A). Hence, the only issue before this court is whether there is substantial evidence to support the finding that neither Jenny nor Victor shared a beneficial parent-child relationship with the children.
A beneficial relationship is one that "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.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) The court balances "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Id. at p. 575.)
"To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) "To overcome the preference for adoption . . . the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
There is substantial evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply with respect to either parent. Neither Jenny nor Victor occupied a parental role with respect to the children, and had not for nearly two years. The twins, Alexandria and Jasmine, had lived three-quarters of their lives in out-of-home placements. Despite her participation in more than a year of services, Jenny still did not have the skills to safely parent the children. Jenny was unable to control Romeo's behavior. Victor waived services and displayed little if any interest in reunifying with the children. During their visits with the children, Jenny and Victor interacted with them as friendly visitors—not as parents.
The children were bonded to the caregivers, to whom they looked to for their daily needs, comfort and nurture. The caregivers provided the children with stability and a sense of permanency—something that had been sorely missing during their young lives.
Additionally, the social worker gave expert testimony that the children would not be harmed by the termination of Jenny's and Victor's parental rights and that the benefits of preserving the parental ties were outweighed by the permanence and stability the children would gain from a permanent adoptive home. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 [social worker is qualified as expert under Evid. Code, § 720 to opine about a child's appropriate permanent plan].)
In light of the overwhelming evidence supporting the court's findings that former section 366.26, subdivision (c)(1)(A) did not apply with respect to either parent, and the utter lack of evidence to the contrary, it would have been appropriate for appellate counsel for each parent to have filed a brief in accordance with In re Sade C. (1996) 13 Cal.4th 952.
DISPOSITION
The judgments are affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.