In re Isabel A.
In re Isabel A.
Filed 8/20/08 In re Isabel A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ISABEL A., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JENNIFER G.,
Defendant and Appellant. |
D052655
(Super. Ct. No. SJ11649) |
APPEAL from an order of the Superior Court of San Diego County, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Jennifer G. appeals an order terminating parental rights to her daughter, Isabel A., under Welfare and Institutions Code section 366.26.[1] She contends the court erred when
it determined section 366.26, subdivision (c)(i)(B)(i), (the beneficial parent-child relationship exception) did not apply to preclude termination of parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006 the San Diego County Health and Human Services Agency (Agency) detained Isabel at birth after she and her mother, Jennifer, tested presumptively positive for methamphetamine and marijuana. Jennifer acknowledged she used methamphetamine and marijuana two to three times a week and denied she had a substance abuse problem. She had not realized she was pregnant.
The court made a jurisdictional finding under section 300, subdivision (b), removed Isabel from parental custody,[2]and ordered the Agency to provide reunification services to Jennifer. In September 2006 Isabel was placed with her maternal grandparents. Isabel was a happy, healthy and friendly baby. During frequent visits at the grandparents' home, Jennifer was loving and appropriate with Isabel. They developed an affectionate relationship.
Jennifer actively participated in her case plan, which required her to complete substance abuse treatment, parenting education, a psychological evaluation and counseling. She successfully completed some components of the case plan. However, Jennifer was not able to maintain her sobriety. In December 2006 she was dropped from one drug treatment program for nonattendence shortly after she was admitted. After June
2007 Jennifer was "Missing In Action" from the Substance Abuse Recovery Management System program, did not drug test as required and did not maintain contact with Children's Services.
At the July 2007 12-month status review hearing, the court found that Jennifer had not made substantive progress with her case plan and terminated reunification services. The Agency recommended the court terminate parental rights to allow Isabel's adoption by her maternal grandparents.
Jennifer and her mother had a dispute in July 2007. As a result, all visitation was to be supervised by the Agency. Jennifer continued to telephone the grandparents' home to speak to Isabel. She was instructed to contact the Agency for visitation. Jennifer did not contact the social worker until November 2. After Jennifer contacted the social worker, visitation resumed within the week.
In reports prepared for the section 366.26 hearing, the Agency reported Jennifer maintained supervised visitation with Isabel during the dependency proceedings, but her visits became inconsistent. Isabel enjoyed her visits with Jennifer. Jennifer assumed a parental role during visits. Isabel called Jennifer "Mama." When it was time to leave, Isabel cried and clung to Jennifer.
In December 2007 Jennifer was admitted to an inpatient drug treatment program. She stayed overnight and left the program the next day. Jennifer did not have any visits with Isabel after she left the program.
The section 366.26 hearing was held on February 28, 2008. Jennifer did not appear at the hearing.
The social worker testified that Isabel never lived with Jennifer. All visitation had been supervised. According to the grandmother, the number of Jennifer's visits with Isabel varied from month to month. The social worker testified that Jennifer did not have a parent-child relationship with Isabel and continued contact with Jennifer did not outweigh the benefits of adoption to Isabel.
The court found that although there was positive interaction between Jennifer and Isabel, and Jennifer assumed "some parental role" during visits, Jennifer did not maintain consistent visitation with Isabel. Jennifer's substance abuse problems remained untreated, which may have contributed to Jennifer's poor performance. The court found by clear and convincing evidence the beneficial parent-child relationship exception did not apply and terminated parental rights.
APPELLATE PROCEEDINGS
On June 20, 2008, minor's counsel requested that this court augment the record with postjudgment evidence regarding the status of Isabel's proposed adoption by her grandparents. Jennifer opposes the request. She contends the postjudgment evidence is not relevant to her contention that the beneficial parent-child relationship should preclude termination of parental rights and any subsequent adoption. We agree the proffered postjudgment evidence is not relevant to the issues raised in this appeal and deny the motion to augment.
DISCUSSION
Jennifer contends the evidence is insufficient to support the court's finding that adoption was in Isabel's best interests. She asserts the court erred when it based its finding that there was not a beneficial parent-child relationship on the lack of daily contact between Jennifer and Isabel. Jennifer notes the court observed that she assumed some parental role during visits, and Isabel referred to her as "Mama" and cried when separated from her. Jennifer contends that in view of the court's observations, the finding Isabel had only a friendly or familiar relationship with her is not supported by substantial evidence.
The Agency contends substantial evidence supports the court's determination the beneficial parent-child relationship did not apply and termination of parental rights would not be detrimental to Isabel. The Agency argues Jennifer did not prove either prong of the exception, and the evidence demonstrated Isabel would benefit more from adoption than she would from maintaining a relationship with Jennifer. Minor's counsel joins with the Agency's arguments.
At a permanency plan hearing, the court may order one of three alternativesadoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809; but see 366.26, subd. (c)(1)(A), eff. Jan. 1, 2008.)
After the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.), we interpreted " 'benefit from continuing the . . . relationship' " to mean "the relationship 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." We further explained "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." (Ibid.)
Neither section 366.26, subdivision (c)(1)(B)(i), nor Autumn H. require the parent to prove the child has a "primary attachment" to the parent or the parent has maintained day-to-day contact with the child. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(B). (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Jennifer asserts she maintained regular visitation and contact with Isabel, and Isabel would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) Although Jennifer maintained regular visitation and contact with Isabel until July 2007, there were no visits from July 30 to November 6 and from mid-December to February 28, 2008, except for brief encounters on October 6, 2007 and February 1, 2008, at the grandparents' home. The record shows Jennifer was instructed to telephone the social worker if she wanted to visit Isabel. When visits ended in July 2007, Jennifer did not contact the social worker for three months. After Jennifer abruptly left a substance abuse treatment program in December, she waited two months before trying to arrange visitation. Supervised visits were available to Jennifer through the Agency; she chose not to arrange for visits. We conclude there is sufficient evidence to support the court's finding Jennifer did not meet the first prong of the exception.
Further, had Jennifer met the visitation requirement, we would conclude she did not establish a beneficial relationship with Isabel. During the dependency proceedings, Jennifer did not make any reasonable effort to stabilize her situation to allow her to meet Isabel's physical and emotional needs. The record shows Jennifer did not make even a minimal effort to address her substance abuse problems, despite multiple opportunities to do so. Parental substance abuse is presumptively detrimental to the safety, protection and physical and emotional well-being of the child. ( 300.2.)
Considering Jennifer's disregard of Isabel's needs for a stable, committed and responsible parent, and her decision to forgo visitation with Isabel for almost six months, the court could reasonably infer Jennifer did not demonstrate the kind of long-term commitment to Isabel's welfare necessary to establish the beneficial parent-child relationship exception. Although Jennifer had positive, affectionate visits with Isabel within a structured setting, Jennifer did not visit Isabel as often as was allowed and did not complete "virtually [everything] asked of her to regain custody." (In re Amber M. (2002) 103 Cal.App.4th 681, 690-691.) Substantial evidence supports the court's findings Isabel does not have a beneficial parent-child relationship with Jennifer and adoption is in Isabel's best interests.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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[1] Further statutory references are to the Welfare and Institutions Code.
[2] Isabel's alleged father was located on or about October 2007. He does not appeal.
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