In re Jasmine S.

Filed 2/3/09 In re Jasmine S. CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, FOURH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

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

Susan S. appeals a judgment terminating her parental rights to her daughter, Jasmine S. She contends in light of the beneficial parent-child relationship she had with Jasmine, the juvenile court erred by not finding the exception to termination of parental rights and adoption of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] applied in this case. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 13, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of one and one-half-year-old Jasmine S. under section 300, subdivisions (b) and (g), alleging Susan's alcohol abuse rendered her unable to care for Jasmine and Susan's whereabouts were unknown.[2] Susan had been living at a residential substance abuse treatment facility with Jasmine, but had appeared drunk at the facility two times in a two-day period. She had a long history of substance abuse and referrals to Child Protective Services. The court ordered Jasmine detained.

At the jurisdictional and dispositional hearing on January 9, 2007, Susan submitted to the allegations of the petition, and the court found them true and declared Jasmine a dependent of the court. It ordered Susan to participate in services, including enrolling in the Substance Abuse Recovery Management System.

Susan was provided reunification services for 12 months, but she continued to have difficulty with substance abuse. She had appropriate visits with Jasmine. At the 12-month hearing the court terminated services and set a section 366.26 hearing.

For the section 366.26 hearing the social worker reported Jasmine was healthy and had normal development and no significant emotional problems. She and Susan had shared regular, enjoyable visits, but Jasmine had no trouble separating from Susan at the end of visits. Jasmine had told her foster mother she liked Susan, but did not want to visit her anymore. The social worker opined they did not have a parent-child relationship. She said Jasmine's foster parents had been approved to adopt her and wanted to do so.

Susan petitioned under section 388, requesting the court place Jasmine with her at St. Vincent de Paul Village, where she was then living. The court denied her petition without a hearing.

At the section 366.26 hearing on August 12, 2008, Susan testified she did not want Jasmine to be adopted. She said she was doing well in treatment and believed she could take good care of Jasmine.

After considering the testimony, documentary evidence and argument, the court terminated Susan's parental rights, finding Jasmine was adoptable and none of the exceptions to termination of parental rights and adoption were present.

DISCUSSION

Susan contends the court erred by not finding the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i) applied in this case. She argues she maintained consistent visitation, Jasmine was bonded to her and it would be detrimental to Jasmine to sever their relationship. Susan has not shown a lack of substantial evidence to support the court's finding the exception did not apply.

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 parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1) exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in subdivision (c)(1)(B)(i), the parent must 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 of section 366.26, subdivision (c)(1)(B)(i)]."

In In re Autumn H., supra, 27 Cal.App.4th, at pp. 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:

"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception 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." (Id. at p. 575.)

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.)

Susan maintained regular visitation and contact during the dependency period. However, by the time of the hearing, Jasmine was calling Susan by her first name, was ambivalent about seeing her, did not want to talk with her by telephone and had been saying she did not want to go to visits. Jasmine appeared to see Susan as a friendly visitor or an extended family member, not a parent. The court did not err by not making a finding that Jasmine and Susan's relationship was more beneficial to Jasmine than the stability and permanency of an adoptive home. Susan has not shown a lack of substantial evidence to support the court's finding that the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply in this case.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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[1] Statutory references are to the Welfare and Institutions Code.

[2] At the jurisdictional hearing, at the Agency's request, the court dismissed the allegation under section 300, subdivision (g).