In re D.B.

Filed 7/19/06 In re D.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Julia Kelety, Judge. Affirmed.

Derrick B. appeals a judgment of the juvenile court terminating his parental rights to his minor daughter D.B. under Welfare and Institutions Code section 366.26.^[1] Derrick challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2004, one-year-old D.B. became a dependent of the juvenile court under section 300, subdivision (b) based on findings her mother, Christina J., had a substance abuse problem and sold drugs from the home. The court removed D.B. from Christina's custody and placed her in foster care. D.B.'s father, Derrick, was in prison with a scheduled release date of October 2005.

In March 2005, the social worker for the San Diego County Health and Human Services Agency (Agency) interviewed Derrick in prison by telephone. Derrick said he wanted to visit D.B. when he was released and he wanted to reunify with her. The social worker mailed Derrick a prison packet, community service information and parent rights information.

By the six -month review hearing, Derrick was still incarcerated and waived his appearance. The court continued D.B. as a dependent placed in foster care, terminated reunification services and set a selection and implementation hearing under section 366.26.

Five months later, Derrick filed a section 388 petition for modification requesting placement of D.B. with him and reunification services. As changed circumstances, Derrick alleged he had been out of prison for three months, he was in compliance with parole requirements, had stable housing and was enrolled in a parenting class. As to best interests, Derrick alleged D.B. should have the opportunity to be placed with him.

After a hearing, the court denied Derrick's section 388 modification petition, finding Derrick's circumstances were changing but had not changed, and it was not in D.B.'s best interests to be placed with him.

At a contested selection and implementation hearing, the court considered the evidence presented at the section 388 hearing and received into evidence the social worker's assessment report. The court accepted a stipulated offer of proof that Derrick's parole officer would testify Derrick would be returned to prison if he did not comply with his parole conditions.

According to the assessment report, Derrick was living with Christina. Christina had not completed any part of her case plan and did not regularly visit D.B. D.B. did not have a beneficial relationship with either parent and she would not suffer any detriment if parental rights were terminated.

D.B. was recently moved to her fourth foster home. She was happy, healthy and developmentally on target. D.B. was adoptable because of her age, good health and engaging personality. There were five approved adoptive families in San Diego County and 12 out-of-county families willing to adopt a child with D.B.'s characteristics. Additionally, two families who were friends of D.B.'s current caregiver expressed an interest in adopting her. The social worker recommended adoption as D.B.'s permanent plan, noting she deserved stability and permanency.

Derrick testified he began using drugs as a young teenager. He was convicted in August 2003 of possessing and being under the influence of cocaine, alcohol, marijuana and PCP. He had not used drugs since his release from prison three months ago. He was complying with his parole conditions, which required him to drug test once a month, find employment, maintain a stable residence and remain law abiding. Derrick was working part time and looking for full-time employment. He lived with his uncle and aunt and their 13-year-old son in a three-bedroom apartment. Christina also lived there. If D.B. were placed with him, she could sleep in the third bedroom. Derrick would hire a babysitter or ask relatives to care for D.B. while he worked.

Derrick was enrolled in a parenting class and was willing to participate in other services to reunify with his daughter. He visited D.B. once a week for two hours. He had six or seven visits with her and missed two visits because of transportation problems. If the court were to order him to have Christina move out of the residence, he would follow that order.

In 1991, Derrick was sentenced to prison on a robbery conviction. He attended a substance abuse program in prison, but relapsed into drug use one month after he was paroled. Since then, he had not participated in drug treatment. He acknowledged his continued substance abuse problem, but claimed he no longer used or thought about using drugs.

Derrick testified Christina was a good mother and he believed it would be safe for her to care for D.B. However, if Christina used drugs, he would prohibit her from having contact with D.B. He believed he could stay clean and sober for D.B.

Social worker Carol Fowler testified she had not observed visits between Derrick and D.B., but she had spoken to and reviewed reports by the visitation monitors. D.B. was guarded during the first visit, but gradually warmed up to Derrick during subsequent visits. One time, D.B. ran up to Derrick, jumped on his lap and wanted him to hold her the entire visit. She separated easily from him when visits ended. Fowler characterized Derrick's relationship with D.B. as that of a kind and loving playmate or visitor, but not a parent. D.B. looked to her current caregiver as her parent, called her "Momma," and clung to her. She had lived in this home for eight months.^[2]

After considering the evidence and hearing argument of counsel, the court found by clear and convincing evidence D.B. was likely to be adopted and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred D.B. for adoptive placement.

DISCUSSION

Derrick challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. He asserts he visited D.B. as much as he was allowed, and D.B. enjoyed visits with him.

A

We review the judgment for substantial evidence. (In re Autumn H. ( 1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship 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 Autum H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, although Derrick regularly visited D.B. for three months following his release from prison, he did not meet his burden of showing there was a beneficial parent‑child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). D.B. was one month old when Derrick went to prison and she had no relationship with him during the next two years of her life. D.B. gradually warmed up to Derrick and enjoyed visits with him. However, she separated easily from him after visits. In the social worker's expert opinion, Derrick's relationship with D.B. was that of a kind and loving playmate or visitor, but not a parent. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421 [social worker is an expert in the assessment and selection of permanency planning for a dependent minor].) D.B. looked to her current caregiver as her parent and called her "Momma." There was no evidence of a "significant, positive, emotional attachment" from D.B. to Derrick. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, Derrick did not show his relationship with D.B. was sufficiently beneficial to outweigh the benefits of adoption. Although Derrick recently began participating in parenting classes, he had not yet sought treatment for his drug problem. He was living with Christina who caused D.B.'s dependency by her drug-related arrest and who failed to reunify with D.B. Derrick showed a lack of insight by his statements Christina was a good mother and D.B. would be safe in Christina's care.

Moreover, there was no evidence that severing the parent-child relationship would greatly harm D.B. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) D.B., whose needs could not be met by Derrick, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Derrick's parental rights.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McDONALD, J.

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

^[2] Minor's counsel informs us D.B.'s current caregiver wants to adopt her.