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Orange Cnty. Social Serv. Agency v. Kathy M. (In re Jack D.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 24, 2012
G045593 (Cal. Ct. App. Jan. 24, 2012)

Opinion

         NOT TO BE PUBLISHED

         Appeal from an order of the Superior Court of Orange County No. DP019289, Barbara H. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

          Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.

          Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

          No appearance for the Minor.


          OPINION

          RYLAARSDAM, ACTING P. J.

         Kathy M. (mother) appeals from the juvenile court’s order terminating her parental rights to her now 2-year-old son, Jack D. (child). (Welf. & Inst. Code, § 366.26; all statutory references are to this code.) She contends the court erred in finding the “benefit exception” under section 366.26, subdivision (c)(1)(B)(i) did not apply. We disagree and affirm.

         FACTS

         In a prior opinion, we affirmed a dispositional order terminating reunification services at the 12-month review and setting a permanency planning hearing. (Kathy M. v. Superior Court (May 26, 2011, G044895) [nonpub. opn.].) We incorporate by reference the facts from our prior opinion without repeating them here and add information relevant to the issues on appeal.

         SSA recommended the termination of mother’s parental rights. The child was a healthy and “adorable one year old” who displayed age-appropriate skills in all developmental areas. He remained with the same foster parents he been placed with since initially detained and they wanted to adopt him. He was “very attached” to them, “seek[ing] them out for attention and affection” and calling them “‘ma’” and “‘pa’” and his foster sister “‘sis.’” According to the social worker, the child “refers to the care provider[s] for his needs and wants. The child appears comfortable in the home... [and] [t]he prospective adoptive family accepts the child as if he was their own by showing him affection and love.”

         Mother’s visits with the child, during which she fed and played with him and took care of his needs, mostly went well and he did “not appear to be cranky or uncomfortable during the visit[s] however he has problems at night.” Because the child went directly to the food brought by mother, it was unclear if the child was excited to see her or to eat. Visits ended calmly and the child did not cry.

         After mother missed a few visits, the child took “a little bit of time to warm up” to her and cried for a while. He also “had a hard time transitioning to” her at the next visit and “cried loudly” when carried into the visitation area.

         The court found mother’s visits with the child had been good and appropriate and “her interactions with him are certainly those of a caring mother.” But it determined the mother-child relationship did not provide a “compelling reason not to provide [the child] with a permanent home with people who have expressed and demonstrated that they are capable of caring for him and they love him and he loves them[.]”

         The court was concerned mother believed she only had one relapse when the record showed she had two months of positive drug tests, viewing “that as a serious demonstration of a serious inability to put the needs of her child before her desire to use [controlled] substances... [which]... would pose a potential and very real harm to the child if he had been in her care.” It also noted mother’s priorities appeared “askewed” when she canceled visitations in June to handle her recently deceased mother-in-law’s estate, concluding mother “could have found some time for her son....” The court found the benefit exception to adoption inapplicable and terminated parental rights.

         DISCUSSION

         Mother contends the court erred in terminating her parental rights because she satisfied the benefit exception of section 366.26, subdivision (c)(1)(B)(i) by showing she had “affectionate and consistent visitation with” the child, who would “benefit from a continued relationship with his mother through legal guardianship instead of adoption....” The contention lacks merit.

         Once the court determines under section 366.26 a child is likely to be adopted, it “shall terminate parental rights” (§ 366.26, subd. (c)(1)) and order the child placed for adoption unless it “finds a compelling reason for determining that termination would be detrimental to the child” because of one of the statutory exceptions. (§ 366.26, subd. (c)(1)(B).) One exception is where a “parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The parent has the burden of proving the exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

         A beneficial parent-child 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.) A parent must establish more than merely some benefit to the child by continuing the parent/child relationship, as “[i]nteraction between natural parent and child will always confer some incidental benefit to the child.” (Ibid.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

         When determining whether a parent/child relationship confers more than incidental benefit to a child, courts have noted that such a “‘relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]’” (In re S.B. (2008) 164 Cal.App.4th 289, 297.) The exception does not require “proof that the child has a ‘primary attachment’ to a parent or that the noncustodial parent has maintained day-to-day contact with the child. [Citations.]” (Id. at p. 300.) Nevertheless, a “parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.]... [T]he parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must establish that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

         Mother contends the court erred in concluding placing the child with her posed a risk of harm to the child because she was not requesting placement but only that her parental right not be terminated given her “tight bond with her son” and absence of excuse for her relapses. Mother claims she had “a caring and loving parent-child relationship” because the child called her “mom” and ran to her with his hands open when she said “‘come to mom, ’” she brought “age-appropriate books and toys, ” which they read and played with together, and she “fed him, changed his diaper, and comforted him when he cried.”

         At most, mother has shown a bond may have existed between her and the child and that they had pleasant visits and loving contact. But she has not demonstrated their relationship outweighs the benefits of adoption or that she occupied a parental role in the child’s life. To the contrary, the child had never had a weekend visit with mother, due to her relapse in early 2011. Nor had he ever lived with her, having been detained while still in the hospital following his birth and placed with foster parents who now wanted to adopt him and with whom he was “very attached.” He called them “‘ma’” and “‘pa’” and sought them “out for attention and affection.” That he may also have referred to mother as “mom” or ran to her with open hands does not alter our analysis as “[w]e review the evidence in the light most favorable to the trial court’s determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court’s findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]” (In re H.G. (2006) 146 Cal.App.4th 1, 12-13.)

         Mother also has not established the child would suffer great harm if her parental rights were terminated. The child did not cry when visits ended and had trouble warming up to mother after she missed a few visits. Additionally, he had some problems at night after visits with mother and it was unclear whether he was excited to see mother or to eat the food she brought.

         Mother argues “[i]t would be detrimental to” the child to sever their relationship “because [she] had raised her two older children... with her parental rights intact and maintained a relationship with them.” According to her, as the child got older he would know mother was in the lives of his siblings but not in his and that “[s]uch an emotional loss could be avoided through legal guardianship.” But such speculation about the future fails to show the child would be deprived “of a substantial, positive emotional attachment such that [he] would be greatly harmed” and the preference for adoption overcome if mother’s parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “‘Adoption, where possible, is the permanent plan preferred by the Legislature.’ [Citation.] If the court finds that a child may not be returned to his... parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child.... [Citation.]” (In re Derek W., supra, 73 Cal.App.4th at p. 826.) Where, as here, adoption is possible and detriment to the child has not been shown, legal guardianship is not an option. (In re Jose C. (2010) 188 Cal.App.4th 147, 157-158.)

         Mother analogizes this case to In re S.B., supra, 164 Cal.App.4th 289, which held the beneficial parental exception may apply, even in the absence of either “day-to-day contact” (id. at p. 299) or a “‘primary attachment’” (ibid.). She claims that just like “in [In re] S.B., the [admittedly close] relationship between the [child] and his foster parents did not ameliorate the emotional attachment and beneficial relationship with his mother.” But the trial court never said it did. Its reference to the foster parents related to its analysis of whether the child’s well-being was promoted by the mother-child relationship to such an extent as to outweigh that which he would receive in a permanent home with the prospective adoptive parents.

         Moreover, In re S.B. recognized the exception requires evidence the child would be “‘greatly harmed’” by the severance of the parent/child relationship. (In re S.B., supra, 164 Cal.App.4th at p. 297.) In that case, the father had been the child’s primary caregiver for three years and a bonding study indicated that “because the bond between [him] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at p. 296.) The social worker also admitted “there would be some detriment to [the child] [if] parental rights [were] terminated” (id. at p. 295) and the juvenile court found the father and the child had “an emotionally significant relationship[]” (id. at p. 296). No similar evidence exists here.

         DISPOSITION

         The order is affirmed.

          WE CONCUR: O’LEARY, J.MOORE, J.


Summaries of

Orange Cnty. Social Serv. Agency v. Kathy M. (In re Jack D.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 24, 2012
G045593 (Cal. Ct. App. Jan. 24, 2012)
Case details for

Orange Cnty. Social Serv. Agency v. Kathy M. (In re Jack D.)

Case Details

Full title:In re JACK D., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 24, 2012

Citations

G045593 (Cal. Ct. App. Jan. 24, 2012)