In re C.P.

Filed 5/17/06  In re C.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Gary Bubis, Referee.  Affirmed.

            Deborah P. appeals a judgment terminating her parental rights to her daughter, C.P.  She contends the court erred in not finding the beneficial parent-child relationship exception to adoption of Welfare and Institutions Code section 366.26, subdivision (c)(1)(A).^[1]  We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            On March 21, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b), on behalf of then eight-year-old C.P., who has Down's Syndrome, alleging she was at risk of harm because Deborah had not obtained services at the Regional Center for her since 1998 and had not provided required dental treatment.

            For the detention hearing, the social worker reported Deborah had had 20 referrals to Child Welfare Services for neglect, absent or incapacitated caretaker issues and physical, sexual and emotional abuse.  Deborah also had an extensive drug abuse history, including several arrests and convictions for possessing a controlled substance.  In February 2003, there were three child welfare referrals.  The referrals included allegations that C.P. had bruises, Deborah abused drugs and alcohol, C.P. complained of vaginal pain and said Deborah had hurt her, and C.P. had very poor school attendance.  Deborah admitted using drugs occasionally, but said she never used them in C.P.'s presence.  She denied any abuse.  C.P., who functioned at the level of a three-year-old, had not been receiving Regional Center services since 1998 because Deborah did not keep in contact with C.P.'s caseworker.  Deborah was in a relationship with Olivia  K., with whom C.P. had lived for much of her life and on whom Deborah depended for housing.  Olivia could not be approved for placement because of her criminal history.  The court ordered C.P. detained.

            The social worker reported C.P.'s father, George M., did not want C.P. to live with Deborah and Olivia and alleged they were drug addicts.^[2]  When C.P. was detained she was dirty, appeared confused and could not express herself.  The foster mother reported C.P. showed affection to Olivia and said she wanted to live with her.

            Deborah submitted to the allegations of the petition, and the court declared C.P. a dependent child of the court, removed her from her parents' care and ordered Deborah to comply with reunification services, which included a psychological evaluation, therapy, anger management and parenting classes, and the Substance Abuse Recovery Management System program (SARMS).

            For the six-month review hearing, the social worker reported C.P. was doing well in a foster home, but sometimes had tantrums.  Deborah was living at the KIVA Women and Children's Learning Center (KIVA) and complying with SARMS requirements.  She was discharged from KIVA in May 2003 for inappropriate sexual behavior, but was allowed to return the next day.  She and C.P. enjoyed affectionate weekly visits.  The psychologist who evaluated Deborah concluded she should continue the KIVA program with a goal of staying sober so she could regain C.P.'s custody.  He said the prognosis was favorable, but only if Deborah remained free of her addictions.

            At the six-month review hearing on November 13, 2003, the court found Deborah had made substantive progress and continued C.P. in foster care.

            In May 2004 the social worker reported Deborah was complying with her case plan and continuing to live at KIVA.  Deborah's therapist reported she was progressing in therapy.  C.P. was doing well in her foster home and enjoying overnight visits with Deborah at KIVA.  A behavior management specialist helped Deborah to manage C.P. during the visits.

            On May 19, 2004, at the 12-month review hearing, the court found Deborah was maintaining substantive progress and continued C.P. in foster care.

            On June 23, 2004, the court placed C.P. with Deborah for a 60-day trial visit, and in August, at the social worker's request, terminated Deborah from the SARMS program, with which she had complied since May 2003.

            For the 18-month review hearing, the social worker recommended C.P. stay with Deborah with six more months of services.  C.P. was in special education classes and receiving home behavior management services from the Regional Center.  Deborah continued to comply with her case plan, which included domestic violence classes, therapy and random drug testing.

            At the 18-month hearing on September 16, 2004, the court found Deborah had made substantive progress and continued C.P.'s placement with Deborah.

            In March 2005, the social worker recommended six more months of services.  Deborah and C.P. were doing well, but the social worker expressed concern that C.P. had missed a lot of school.  Deborah had cancelled the services of the behavior management specialist in November 2004.  Deborah's therapist recommended closing the dependency case.

            On April 1, 2005, the Agency petitioned under section 387, alleging Deborah was no longer able to provide adequate care and supervision for C.P. in that she had left her with a roommate Deborah had known only two weeks, who allowed C.P. to go to a friend's house and then did not pick her up.  C.P. was found by a stranger, sitting alone on a curb, crying and unable to say where she lived.  The petition also alleged Deborah had failed to complete three on-demand drug tests and, reportedly, had been drinking beer and wine in violation of her case plan.  C.P. was detained with her former foster family.  Deborah said she was happy C.P. was with them and wanted them to adopt C.P.  She said she was going to Chicago to visit family and did not know when she would return.  She submitted to the allegations.  The court found them true, removed C.P. from Deborah's custody, placed her in foster care, terminated services and set a section 366.26 hearing.

            For the section 366.26 hearing, which was held on October 26, 2005, the social worker reported Deborah and C.P. remained in contact throughout the dependency period and C.P. looked forward to their visits and telephone calls.  The foster parents wanted to adopt C.P.  The social worker opined she deserved a stable, permanent home with a family who would respond to her special needs and take advantage of all available resources to ensure she reaches her full potential.

            Deborah testified she visited C.P. every week, they played together, and C.P. was happy to see her and told her she loves her.  She also telephoned C.P. twice each week.  She wanted to be in C.P.'s life and did not want her to be adopted.

            The court found by clear and convincing evidence it was likely C.P. would be adopted if parental rights were terminated and none of the exceptions of section 366.26, subdivision (c)(1) applied.  It terminated parental rights and referred C.P. for adoptive placement.

DISCUSSION

            Deborah contends because she regularly visited C.P. and nurtured a beneficial parent-child relationship the court erred in not finding the exception to adoption of section 366.26, subdivision (c)(1)(A).

            Adoption is the permanent plan favored by the Legislature.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)  If a child is found to be adoptable it becomes the parents' burden to show termination of parental rights would be detrimental because one of five specified exceptions listed in section 366.26, subdivision (c)(1) exists.  (In re Autumn H., supra, 27 Cal.App.4th at p. 574.)  Under the exception in section 366.26, subdivision (c)(1)(A), 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 reviewing whether sufficient evidence supports the trial court's finding the exception is not present, 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.)

            Deborah showed she had met the first prong of the section 366.26, subdivision (c)(1)(A) exception.  There is no question that throughout the dependency period she had regular, consistent contact and visits with C.P.  They interacted well and were affectionate with each other.  After successful overnight visits at KIVA, C.P. began a 60-day trial visit with Deborah and was then placed with her until April 2005.  Deborah testified C.P. called her " Mama" and told her she loved her.

            However, Deborah did not show they had a parent-child relationship or that the benefit of continuing their relationship would outweigh the stability C.P. would gain in an adoptive home.  In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court acknowledged " [i]nteraction between natural parent and child will always confer some incidental benefit to the child."   The court, however, characterized the beneficial relationship cited in section 366.26, subdivision (c)(1)(A) as 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 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."   (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418; In re Teneka W. (1995) 37 Cal.App.4th 721, 729.)

            Although C.P. lived with Deborah for much of her life and they had a continuing relationship, Deborah did not fulfill a parental role.  The foster mother said when C.P. was first removed from Deborah's care, C.P. showed affection to Olivia, and, when asked with whom she wanted to live, said she wanted to live with Olivia.  After she went into foster care, C.P. became attached to her foster mother and was able to be comforted by her when she did not have contact with Deborah.

            Deborah neglected C.P.'s special needs by not taking advantage of resources that would aid C.P.'s development.  She did not keep in contact with C.P.'s Regional Center caseworker and, as a consequence, C.P. did not receive Regional Center services from 1998 until she was removed from Deborah in 2003.  School attendance was essential to C.P.'s development, but Deborah did not ensure that she went to school.  C.P. had dental infections, which the doctor said were due to neglect.  During the months she was in foster care she received the services she needed.  Some months after C.P. was placed back with Deborah in April 2004, Deborah cancelled the services of the Regional Center behavior management specialist and C.P. again began missing school.  Thus C.P. did not accomplish the educational goals that had been set for her and missed the opportunity to be included in a regular education class.  Then, after Deborah left her with an inappropriate caregiver, C.P. was found lost and alone.

            The psychologist who conducted the psychological evaluation warned that a relapse would " signal a failure of [Deborah's] resolve and likely preclude further reunification plans, given her history of repeated failure."   After C.P. was returned to Deborah's care, Deborah did not appear for two drug tests.  Deborah's roommate said there was some drinking of alcohol in their apartment.  After C.P. was removed the second time, Deborah indicated she could not care for C.P. and would be happy if the foster parents would adopt her.  Deborah has not shown a substantial, positive emotional attachment such that would outweigh the well-being C.P. would gain from a stable, permanent adoptive home.

            Deborah's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 and In re Brandon C. (1999) 71 Cal.App.4th 1530 is misplaced.  In In re Amber M., supra, 103 Cal.App.4th 681, this court reversed the order terminating parental rights on the basis of the opinions of all the experts in the case that the beneficial parental relationship outweighed the benefits of adoption for the children.  (Id. at p. 690.)  Here, no experts disagreed with the social worker's opinion that C.P. should be adopted.  In re Brandon C., supra, 71 Cal.App.4th 1530 was in a different posture than the situation here.  There, the juvenile court found the beneficial relationship exception did apply and the reviewing court, declining to reweigh the evidence, held there was substantial evidence to support that finding.  (Id. at pp. 1537-1538.)  We, also, do not reweigh the evidence and hold substantial evidence supports the court's finding the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

            The judgment is affirmed.

HALLER, J.

WE CONCUR:

         NARES, Acting P.J.

   AARON, J.

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

^[2]             George voluntarily waived reunification services in January 2004.  He has not appealed.