In re Brendan C.

In re Brendan C.

Filed 8/5/08 In re Brendan C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re BRENDAN C. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNIFER C., Defendant and Appellant.	D052231 (Super. Ct. No. NJ13388A-C)

APPEAL from orders of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Jennifer C. appeals orders terminating her parental rights to her children, ten-year-old Brendan C., eight-year-old Conor C., and four-year-old Victoria C. She contends the juvenile court erred by terminating her parental rights because substantial evidence supported a finding the beneficial parent-child relationship exception to termination of parental rights and adoption applied in this case. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On May 11, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on behalf of Brendan, Conor and Victoria, alleging they were at substantial risk because, despite extensive voluntary services, Jennifer used alcohol to excess, had been in and out of alcohol treatment for three years and had suffered five relapses. (Statutory references are to the Welfare and Institutions Code.)

The social worker reported the family's involvement with the Agency began in May 2003. The Agency provided extensive voluntary services beginning in April 2004, but Jennifer continued to relapse and drove while intoxicated on at least three occasions. The children were detained with the maternal aunt and uncle (the aunt and uncle). Jennifer enrolled in the Substance Abuse Recovery Management System program and was ordered to attend an outpatient program. Jennifer's therapist opined she suffered from severe alcoholism, but said that after each relapse she had quickly returned to a recovery program.

On June 28, 2006, the court found the allegations of the petition true, ordered the children placed with the aunt and uncle and ordered Jennifer to participate in her reunification plan, which included counseling, a psychological evaluation and substance abuse treatment. She complied with her service plan, had unsupervised visits with the children and was active in their various activities. The children were doing well, and Victoria, who had been born with fetal alcohol syndrome, was able to have her feeding tube removed. At the six-month review hearing, the court continued services.

The psychologist who performed an evaluation of Jennifer said she presented a risk to the children. He opined she had a poor to fair prognosis and little emotional connection to the children.

In May 2007 the court granted the Agency's petitions under section 388, by which it requested Jennifer's visits be supervised because she had relapsed and had been arrested for driving under the influence of alcohol. In June 2007 the social worker reported Jennifer's whereabouts were unknown, and she had not visited the children since May 13. The aunt and uncle were willing to provide a permanent home for the children.

At the 12-month review hearing on July 25, 2007, the court found returning the children to their parents' custody would create a substantial risk of detriment and there was no substantial probability they could be returned with six more months of services. It terminated services and set a section 366.26 hearing.

The social worker assessed the children as adoptable. The aunt and uncle's adoptive home study was in progress. In addition to the aunt and uncle, other approved adoptive families were willing to adopt a sibling group with these children's characteristics. Jennifer had been incarcerated and had only telephone contact with the children from May 2007 until her release in November 2007. The social worker observed two visits, during which Jennifer and the children were very loving toward one another, and Jennifer played with them and helped Brendan with homework. A bonding study was scheduled for December 11, but the evaluator would not perform the study because Jennifer had arrived reeking of alcohol.

At the section 366.26 hearing on January 3, 2008, after receiving evidence and hearing testimony and argument, the court found the children were likely to be adopted if parental rights were terminated and none of the statutory exceptions to adoption applied. It terminated parental rights and ordered a plan of adoption.

DISCUSSION

Jennifer contends the court erred by not finding the beneficial parent-child relationship exception to termination of parental rights and adoption applied in this case. She argues the children spent a majority of their lives in her custody, she maintained regular visits and contact with them, they have strong, positive emotional parent-child relationships with her and it is in their best interests to maintain the relationships.

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.)

Jennifer met the first prong of the exception by maintaining regular visitation and contact with the children. They had loving relationships with her, and her visits with them were appropriate. However, substantial evidence supports the court's finding that the benefits of maintaining the relationships did not outweigh the benefits to them of having a permanent, secure adoptive home.

Jennifer was unable to provide daily, stable, positive care because of her severe alcoholism and frequent relapses. The parental role had, instead, been assumed by the aunt and uncle, who had provided a safe, secure and consistent home and had been designated the children's prospective adoptive parents. During the time the children lived with the aunt and uncle, they had made good progress and were developmentally on track. Jennifer could not maintain a sober lifestyle and had lost her privilege for unsupervised visits when she drove while intoxicated. She was not able to support her argument of a strong bond with the children through a bonding study because the evaluator refused to conduct the study after Jennifer arrived for the appointment smelling of alcohol. The record does not support Jennifer's argument that continuing her relationship with the children would outweigh the benefits they would gain from adoption. Substantial evidence supports the court's finding the beneficial parent-child relationship exception to termination of parental rights and adoption does not apply.

DISPOSITION

The orders are affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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