Opinion
D059917
10-28-2011
In re D.J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DIANA A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SJ11900C)
APPEAL from a judgment of the Superior Court of San Diego County, Peter Fagan, Temporary Judge. (Pursuant to Cal. Const., Art. VI, § 21.) Affirmed.
Diana A. appeals a juvenile court judgment terminating her parental rights to her son, D.J., and choosing adoption as the preferred permanent plan. (Welf. & Inst. Code, § 366.26.) Diana challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to the adoption preference (§ 366.26, subd. (c)(1)(B)(i)) is inapplicable. We affirm the judgment.
Further undesignated statutory references are also to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Diana has a lengthy history with child protective services. She was a dependent child herself because of lack of parental care. Her case was open between 1990 and 2001 when she reached the age of majority.
Diana began abusing drugs at 17 years of age. In 2007 she gave birth to her second son, D.A., and they both tested positive for methamphetamines. She admitted drug use during her pregnancy, that she received no medical care, and that she was under stress and could not care for another baby. She had left her first son, three-year-old D.N., in the care of a relative who smoked marijuana on a daily basis. The San Diego County Health and Human Services Agency (the Agency) took the children into protective custody and filed petitions on their behalf. Diana's services were eventually terminated as to both boys.
After D.J.'s birth in late 2008, the Agency took custody of him and filed a petition under section 300, subdivision (b) based on Diana's drug use, lack of consistent drug treatment, and D.A.'s removal from her care. She was required to participate in reunification services, including SARMS (Substance Abuse Recovery Management System).
A few months later the Agency filed a petition for modification under section 388 and recommended the termination of services. Diana had failed to regularly attend treatment programs or drug test, and in March 2009 she tested positive for methamphetamines. Diana "became very aggressive" with the social worker and "was yelling and cursing." In Diana's view, she was entitled to unsupervised visitation with her children whenever she desired. The court denied the petition.
At the six-month review hearing, the court continued services. Diana was living in a residential drug treatment facility, KIVA, and reported she was beginning to take her recovery seriously.
As the 12-month date neared, the Agency recommended the termination of services and the scheduling of a selection and implementation hearing under section 366.26. Diana had been discharged from KIVA after testing positive for alcohol, and she was out of treatment for more than two months before she began a nonresidential program. She had also become noncompliant with SARMS. At the hearing held several months later, however, the Agency recommended the continuation of services. Diana continued in drug treatment and had negative tests, her therapist gave her a positive report, and she was committed to reunification. The court continued services.
At the 18-month date, the Agency recommended D.J.'s placement with Diana under family maintenance services. Diana had returned to KIVA and was attending drug court. She had been drug free for about a year and alcohol free for six months. At the hearing in June 2010, the court placed D.J. with Diana on the condition she adhere to her treatment plan at KIVA.
Two months later, Diana tested positive at KIVA for methamphetamines and required detoxification treatment. She admitted to drug use at the home of relatives. The Agency returned D.J. to protective custody and filed a supplemental petition for him under section 387. Diana vowed to the Agency that she would "get right back on track," but she used drugs again two days later.
At the October 2010 hearing, the court denied Diana's request for a continuation of services beyond the 18-month date. It terminated her services and scheduled a section 366.26 hearing.
The Agency recommended adoption as the preferred permanent plan. D.J.'s attributes include being healthy, developmentally on target, free of "emotional distress," outgoing, talkative and bilingual, inquisitive, active, and happy. He "is an adorable two-year old bi-racial boy with black hair and brown eyes. He [has] a cheerful loving demeanor." His current foster parents have cared for him since September 2010, they want to adopt him, and they were also trying to adopt his brother D.A. Additionally, there were seven approved adoptive families for him in San Diego County and 32 other potential placements. The social worker believes the benefits of adoption outweigh the benefits of a continued parent-child relationship.
At the section 366.26 hearing, the court found by clear and convincing evidence that D.J. is adoptable and none of the statutory exceptions to adoption is applicable. The court terminated parental rights and found adoption is in his best interests.
DISCUSSION
I
Diana challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption is inapplicable. "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
Adoption is the Legislature's preferred permanent plan. (Autumn H., supra, 27 Cal.App.4th at p. 573.) At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable within a reasonable time, and the parents have not shown that termination of parental rights would be detrimental to the child under any of the statutory exceptions to adoption found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) One of the exceptions applies if 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)(B)(i).)
The Agency concedes that Diana maintained regular visitation with D.J. throughout most of the case, but it asserts the contact became sporadic before the section 366.26 hearing. We need not decide the issue, however, because even assuming visitation was adequate, substantial evidence supports the court's finding on the second prong of the test.
We have interpreted the term "benefit from continuing the relationship" in section 366.26, subdivision (c)(1)(B)(i) to mean a relationship 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 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 parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
A parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) We consider the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interactions between parent and child, and the child's particular needs. (In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)
However, as we clarified in In re Casey D. (1999) 70 Cal.App.4th 38, 51: "Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Italics added.)
Diana cites the Agency's report for the six-month review hearing, which states that during supervised visits Diana "is very hands on and she is bonded with the minor." The Agency's report for the 18-month review hearing states D.J. "is very bonded to his mother." The Agency's assessment and addendum reports describe numerous supervised visits. D.J. was consistently happy to see his mother and he usually greeted her with a smile and a hug. He called her "Mom" or "Mommy," and she "took on a parental role" by, for instance, being watchful, offering him food, washing his hands, changing his diaper, wiping his nose, and redirecting his attention when necessary. D.J. once became tearful when Diana went into the restroom without him. She immediately came out of the restroom and said she would wait.
At the end of one visit D.J. "whined" briefly. Ordinarily, however, he showed no distress at the end of visits. He smiled at his foster mother, whom he called "Mama," and went easily to her. When told twice that Diana had not shown up for visits, D.J. did not cry or become unhappy.
At the section 366.26 hearing, the social worker was asked whether Diana and D.J. had a bond, and she testified, "they have a bond, yes." The social worker also testified D.J. is bonded with his foster family and is doing "very well" in his placement. He has become part of the family, and he is "very close to the family members and his brother." The social worker also explained that D.J. had "multiple placements, and . . . he's been able to attach and bond with his caregivers, and he doesn't have any significant attachment issues."
While Diana loves D.J., and they have enjoyed pleasant visits, she has not shown the benefits of continuing the parental relationship outweigh the benefits of permanent placement with an adoptive family, or that termination of parental rights would cause him to suffer great harm or detriment. There is no evidence that at D.J.'s young age he has any needs only Diana can satisfy or that he has an overwhelming emotional attachment to her. D.J. was about two and a half years old when the section 366.26 hearing was held. He was taken into protective custody at birth and lived nearly all of his life with other caregivers, to whom he readily attached. He lived with Diana for only two months at KIVA, and that period ended in August 2010, long before the May 2011 hearing.
Diana testified that D.J. was placed with a relative for an unspecified period early in the case, and the relative allowed her to be "there every day, morning to [n]ight."
The court reasonably found D.J. is entitled to the security and sense of belonging that adoption confers. "Where a biological parent . . . is incapable of functioning [as a parent], the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) "Unlike adoption, other permanency options are not equivalent to the security of a permanent home." (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.)
D.J.'s appointed appellate counsel agrees with the Agency's position.
--------
II
Diana criticizes this court's "greatly harmed" standard in Autumn H., supra, 27 Cal.App.4th at p. 575, as deviating from the statutory language of section 366.26, subdivision (c)(1)(B)(i), that the beneficial parent-child relationship exception applies when the visitation component is satisfied "and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) She argues, "There are instances where termination of parental rights would be detrimental to a child because he would be deprived the benefit of continuing a valuable parent-child relationship and yet, if that relationship were to be severed, the child would not necessarily be 'greatly harmed.' "
We disagree that the beneficial parent-child exception applies merely when a parent shows the child would benefit from continuation of the parent-child relationship. If that were the case, the exception would swallow the rule of adoption preference. As the Sixth District Court of Appeal has explained.: "Autumn H.'s requirement that the parent prove that the child would be greatly harmed by termination of parental rights must be seen in context. Where a parent has failed to reunify with his or her child, and the juvenile court has found that the child is likely to be adopted, then the burden shifts to the parent to show exceptional circumstances. [Citation.] To require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law, that is, the protection of 'children who are physically, sexually or emotionally abused, neglected or exploited.' [Citation.] Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home." (In re Brittany C., supra, 76 Cal.App.4th at p. 853.) Here, there are no exceptional circumstances.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
MCINTYRE, J.