In re Evelyn S.

Filed 10/16/08 In re Evelyn S. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Dawn L. and H.S. appeal the judgment terminating their parental rights over Evelyn S. and Diego S. H.S. contends the juvenile court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code,  366.26, subd. (c)(1)(B)(i)).^[1] Dawn's counsel filed a brief pursuant to In re Sade C. (1996) 13 Cal.4th 952 (Sade C.), but later filed a letter and a reply brief joining in H.S.'s contention. We affirm.

BACKGROUND

Upon her birth in August 2007, Evelyn tested presumptively positive for opiates and suffered severe withdrawal symptoms. Dawn had no prenatal care and admitted using drugs during pregnancy. H.S. had a history of drug use, knew Dawn was using drugs during pregnancy and was unable to stop her. Accordingly, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition. Evelyn was detained in the hospital and then with relatives. In September the Agency filed a petition for one-year-old Diego based on the above facts. He was detained with the same relatives as Evelyn. Both children remain with the relatives, who wish to adopt. The section 366.26 hearing took place in May 2008.

H.S.'S APPEAL

Section 366.26, subdivision (c)(1) allows termination of parental rights upon clear and convincing evidence of adoptability. 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." ( 366.26, subd. (c)(1)(B)(i).) 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.) Examining the evidence in the light most favorable to the judgment, we conclude H.S. failed to meet his burden of showing a beneficial relationship. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

At the time of the section 366.26 hearing, Evelyn was eight months old and Diego was 22 months old. H.S. had been incarcerated all of Evelyn's life and had no contact with her. Diego lived with H.S. for the first year of his life but had been out of H.S.'s custody for nine months. The only contact they had during this case was when Diego's relative caregivers put the telephone up to him during some of H.S.'s occasional calls. Evelyn and Diego were bonded with the caregivers. The court did not err by declining to apply the beneficial relationship exception.

DAWN'S APPEAL

Dawn's joinder in H.S.'s contention contradicts the implied assertion in the Sade C. brief that there are no arguable issues. (See In re Josiah Z. (2005) 36 Cal.4th 664, 677.) We deem the Sade C. brief withdrawn and affirm for the reasons stated above.

DISPOSITION

Judgment affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

HALLER, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.