In re David W.

Filed 7/26/07 In re David W. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

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Anelia G. appeals from orders terminating her parental rights (Welf. & Inst. Code,  366.26) to her sons.^[1] She contends the court erred by rejecting her argument that termination would be detrimental to the children. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In late December 2004, law enforcement officials found appellant and five-year-old Alex living in an abandoned and uninhabitable trailer. The trailer was filthy and had no utilities. Appellant was arrested on a child endangerment charge and respondent Kern County Department of Human Services (the department) placed Alex in protective custody. Within days, the department located appellants older son, 13-year-old David. He had been staying off and on for about a year with a concerned family who had tried to befriend and help appellant. David claimed he only went home when appellant picked him up to help her. The department detained David as well and initiated the underlying dependency proceedings as to both children.

The Kern County Superior Court thereafter exercised its dependency jurisdiction over both children ( 300, subd. (b)), adjudged them dependent children, and removed them from appellants custody. Despite 12 months of reunification services, appellant made minimal progress. Accordingly, in March 2006, the court terminated reunification efforts and set a section 366.26 hearing to select and implement permanent plans for the two boys.

The court eventually conducted its section 366.26 hearing in December 2006. The unknown whereabouts of the boys alleged fathers, coupled with a change in appellants trial counsel and appellants belated attempt ( 388) to regain custody, delayed the proceedings.

In the interim, the departments social workers filed a series of social study reports recommending that the court find each child adoptable and terminate parental rights. Since early 2005, the department had placed the children in the home of the C. family, the same family who previously cared for David. The C. family and the children were developing a strong parent/child relationship and the couple was committed to adopting the children. Each child had benefited from the loving care and stability the C. family provided. The children made a great deal of progress socially, academically, and developmentally while in the C. home. They also liked having a father figure in their lives. In particular, Alex had come a long way since the department placed him with the C. family. When he entered their home, he lacked many basic skills. Although he was five years old at the time, he did not speak and did not even know his colors. The caregivers worked scholastically with him so that by mid-2006, he completed first grade at grade level.

Relevant to the issue on appeal, the department reported visitation between appellant and her sons had been supervised throughout the proceedings and, at best, occurred one hour a week. Once the court set the section 366.26 hearing, it reduced visits to once a month. For the most part, appellant consistently attended visits. However, once the court set the section 366.26 hearing and for at least the next five months, she did not visit her sons.

During their visits, there was virtually no interaction between appellant and David and relatively little interaction between her and Alex. In addition, appellant tended to show little, if any, affection towards her sons. In March 2006, the boys told a department staff member that they did not want to go home with their mother and wished to be adopted by their caregivers. In May 2006, David reported he was unsure about his feeling toward visiting his mother but did not wish to live with his mother again. Alex wanted to see his mother but wanted to live in his current placement. Both boys believed the C. family took good care of them. According to the departments assessment, there was no substantial relationship between appellant and either of her sons.

When visitation resumed in September 2006, the children appeared antsy at the start and, as the visit progressed, they asked Is the visit over yet and When will it be over? Appellant greeted the children with a handshake and ended the visit with a hug. The boys were eager to get into the car and leave.

At the December 2006 hearing, the court began by hearing appellants evidence in support of her petition to regain custody. The court later announced it would consider the evidence in connection with her claim that termination would be detrimental.

First, Alex took the witness stand in open court. When asked how he referred to appellant, he replied other mom. He testified he enjoyed his visits with her and would be sad if he could not visit her anymore. He also stated he loved her but he would rather live with his foster parents.

David testified next. He identified appellant by her first and last name. In answer to questions about the departments adoption recommendation, David stated he understood it, wanted to be adopted, and had no reservation about it. He wanted the C.s to be his new parents. It would not bother him if he could never see appellant again.

Last, appellant testified. In her opinion, her visits with the boys were great because she had the chance to talk to and play different games with them. She also believed it would be in the boys best interests to return home because she gave birth to and took care of them. She did not think they would be happy elsewhere.

After argument on the matter, the court denied appellants petition and found each child adoptable. Addressing appellants issue of whether the beneficial relationship exception applied, the court announced it had assumed, for the sake of argument, that appellant maintained regular visitation and contact with both children. Nonetheless, the court specifically found the benefit of adoption clearly outweighed the benefit to the children of maintaining the parent/child relationship. The court added appellant failed to prove otherwise. In turn, the court terminated parental rights.

DISCUSSION

Appellant contends the court erred when it declined to find termination would be detrimental to the childrens best interests. She claims there was substantial evidence in the record that she maintained regular visitation and contact with her sons and they would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)). As discussed below, we disagree.

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues, but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Having reviewed the record as summarized above, we find no abuse of discretion.

We will assume, as did the superior court, that appellant maintained regular visitation with her children throughout their dependency. However, the law required more and the evidence in this case did not compel the juvenile court to find that termination would be detrimental to the children.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, no such evidence was introduced. Such a showing is particularly difficult to make when, as here, appellant never advanced beyond supervised visitation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Further, as the superior court pointed out, what evidence there was clearly weighed in favor of termination of rights and adoption.

Although each child was older and had apparently lived a majority of his life in appellants custody, there was virtually no evidence of any positive effect emerging from the boys interaction with appellant. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Neither child wished to live with appellant. David, the older of the two, had no reservation about being adopted. He even testified it would not bother him if he were never to see appellant again. The younger child, Alex, was not as strident and expressed conflicting views. Nevertheless, the fact that he expressed love for his mother did not necessarily mean he had such an attachment to her that he would be greatly harmed if rights were terminated.

Under these circumstances, we conclude the superior court did not abuse its discretion by rejecting appellants argument and terminating parental rights.

DISPOSITION

The orders terminating parental rights are affirmed.

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^* Before Levy, Acting P.J., Cornell, J., and Gomes, J.

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