In re D.W.

Filed 6/23/06 In re D.W. CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Cynthia Bashant, Judge. Affirmed.

Samantha W. appeals the judgment terminating her parental rights over D.W. Samantha contends the juvenile court erred by declining to apply the beneficial relationship exception to termination. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).)^[1] We affirm.

BACKGROUND

In January 2004, a few days after D.W.'s birth, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition because Samantha had a history of an unstable income, relationships with homeless drug addicts, and failing and refusing to provide D.W.'s siblings with the necessities of life; one sibling was removed due to Samantha's refusal to provide adequate shelter and one was removed due to her mental illness, dysthymic disorder; and her parental rights to both siblings were terminated. D.W. was detained in the hospital, then in a foster home. In March, she was placed in another foster home, where she remains. Her foster parents wish to adopt her. The section 366.26 hearing took place in January 2006.

DISCUSSION

Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but 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)(A).) 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.) "[T]he 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." (Ibid.) The existence of a beneficial relationship is determined, in part, 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.) The parent has the burden of proof. ((Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) We apply the substantial evidence test. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)^[2]

Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's finding Samantha did not have a beneficial relationship with D.W.^[3] Two-year old D.W. had never been in Samantha's custody and Samantha never progressed to unsupervised visits. Although Samantha was affectionate with D.W., she was unfamiliar with age appropriate behavior. She appeared to view D.W. as a doll and became frustrated and distressed when D.W. was fussy or tired or did not follow directions. While D.W. was affectionate with Samantha and enjoyed playing with her during the visits, D.W. often paid more attention to the social worker.

Throughout the dependency, psychologists expressed concern regarding Samantha's parenting ability. She was not stable or high functioning, had not shown that she could provide regular care for herself, and had not shown that she could provide security, safety, and the necessities of life for D.W. The demands of parenting were simply too complex and demanding for Samantha. The social worker believed that while Samantha loved D.W., they did not have a beneficial relationship. On the other hand, D.W. had lived with her foster parents since she was not quite three months old. They met her needs for safety, stability, developmental and medical attention, nurturing, food, and shelter. She was happy in their home, attached to them, and viewed them as her parents. The foster parents loved her dearly and wanted to adopt her.

The juvenile court did not err by applying section 366.26, subdivision (c)(1)(A).

DISPOSITION

Judgment affirmed.

McCONNELL, P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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

^[2] We decline Samantha's invitation to disapprove In re Autumn H., supra, 27 Cal.App.4th at page 567, and In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, which agreed with the analysis in In re Autumn H.

^[3] While the court did not make an express finding regarding Samantha's visitation and contact with D.W., it did state that Samantha had "done everything [the Agency] ha[d] asked her to do." The record supports the conclusion that Samantha visited regularly.