In re Eddie G.
Filed 3/19/07 In re Eddie G. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re EDDIE G., a Person Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTY G., Defendant and Appellant. | G037419 (Super. Ct. No. DP011183) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Dana J. Stits and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
Christy G. (the mother) appeals the termination of her parental rights under Welfare and Institutions Code section 366.26.[1] She contends that the section 366.26, subdivision (c)(1)(A) exception should have been applied and that there was insufficient evidence to support the trial courts finding that the exception was inapplicable. Substantial evidence supports the courts finding. We affirm.
I
FACTS
The mother is an admitted methamphetamine user. She and her boyfriend were arrested on December 16, 1994 for possession of stolen goods. At the time of her arrest, the mother had her 10-month-old son, Eddie G., with her and had a methamphetamine pipe hidden in her bra. The child was then taken into protective custody.
The Orange County Social Services Agency filed a juvenile dependency petition on behalf of the child on December 20, 2004. By minute order of December 21, 2004, the child was detained.
On December 22, 2004, the child was placed in the custody of his maternal great-aunt and great-uncle. The great-aunt later reported that the mother visited the child inconsistently, even when he was ill and hospitalized.
The social worker assigned to the case provided the mother with instructions for twice-weekly drug testing and encouraged her to immediately begin a perinatal drug treatment program. The mother tested positive for amphetamine/methamphetamine on December 27, 2004. She did not engage in further drug testing until she was released from jail shortly before the May 2006 trial. At that point, she began Prop. 36 drug treatment to stay out of jail.
On February 2, 2005, the court ordered the child declared a dependent child of the court under section 360, subdivision (d). It also approved the social workers January 20, 2005 case plan.
On February 24, 2005, the great aunt and uncle informed the social worker that they were unable to continue to take care of the child. In early March 2005, the child was placed in a potential adoptive home.
The mother did not comply with her case plan. She continued to use methamphetamine, was arrested numerous additional times, failed to drug test, failed to undergo drug treatment until right before trial, and failed to maintain stable housing.
In an August 25, 2005 addendum report, the social worker stated that the child had developed a loving and trustful relationship with his foster parents. In the 366.26 report of December 15, 2005, the social worker reported: The concurrent-planning parents have had [the child] in their home since March 10, 2005. The concurrent planning parents deeply care for and love [the child]. [The child] is also attached to them and comfortable in their home.
In an April 11, 2006 addendum report, the social worker stated: On March 24, 2006, the undersigned met with the child and his foster father at Social Services Agency. . . . The child appears very close with his foster father. He calls him daddy. She also stated that the child continues to do well at his concurrent, foster/adoptive placement, where the child has been placed since March 4, 2005 when he was around 14 months old. He has a close and secure relationship with his caretakers and is developing without any concerns or delays. He calls his foster parents mom[] and dad. The child appears happy, healthy and stable.
In that addendum report, the social worker opined: Taking into consideration section 361.3 of the Welfare and Institutions Code, removing the child from his home with his fost./adoptive parents is not in the childs best interest. The undersigned believes it would be detrimental to the childs emotional health to be removed from his caretakers, whom he is bonded with and considers his parents. The child has now lived half of his life with the current caretakers and, due to his tender age, does not understand the concept of any one else being his parents.
On June 8, 2006, the court terminated the mothers parental rights.
II
DISCUSSION
A. Introduction:
The mother argues that the court erred in finding the section 366.26, subdivision (c)(1)(A) exception inapplicable. For reasons we shall show, we disagree.
At the selection and implementation hearing held pursuant to section 366.26, the court must choose a permanent plan for the dependent child. The court may terminate parental rights and order adoption; identify adoption as the permanent goal and order efforts made to locate an adoptive family within [180] days without terminating parental rights; order legal guardianship without terminating parental rights; or order long-term foster care without terminating parental rights. ( 366.26, subd. (b).) (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1534.)
Under section 366.26, subdivision (c)(1), [t]he court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted . . . . If the court finds the child adoptable, it must terminate parental rights unless it finds that termination would be detrimental to the child due to one of four circumstances. The one pertinent to our case is section 366.26, subdivision (c)(1)(A): The parents . . . have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship. (In re Brandon C., supra, 71 Cal.App.4th at p. 1534, fn. omitted.)
B. Visitation:
At the outset, we observe that while the mother had many visits with the child between the time he was removed from her custody in December 2004 and the date her parental rights were terminated in June 2006, it is also the case that her visits were inconsistent. She missed at least 14 scheduled visits during that period of time. At trial, the mother testified that she missed two or three visits between March 2005 and January 2006 because she had been arrested. In her opening brief, she notes that she was in jail on the date of a missed visit in April 2006. Even so, that leaves at least 10 visits that were missed for other reasons. Given this, it is difficult to characterize her visits as regular, within the meaning of the statute. However, we need not determine whether the inconsistent visits alone would be sufficient to find the section 366.26, subdivision (c)(1)(A) exception inapplicable, because we conclude that there is substantial evidence to show that the continued benefit requirement of that subdivision is not met.
C. Continued Benefit:
With respect to section 366.26, subdivision (c)(1)(A), 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. 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The burden is upon the parent to make this showing. (Id. at p. 574.)
Here, the mother has failed to meet her burden. It is true, as the mother notes, that she took care of the child for nearly the first 11 months of his life. It is also the case, as the mother stresses, that she visited the child many times during the course of the proceedings. In addition, the record reflects that the mother was very affectionate with the child and made great efforts to interact with him during the visits. She gave him hugs and kisses, and, at least sometimes, he was receptive to her. However, [c]ourts have required more than just frequent and loving contact to establish the requisite benefit for this exception. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child. . . . (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.)
The social worker assigned to the case testified that the mother makes great effort in engaging the child in the visit but the child doesnt respond much. She also stated that the child is sometimes hesitant to respond to the mother when she displays affection towards him. The social worker said that the child has a hard time when the foster father drops him off for the visits with his mother. The child wants to go with his foster father and cries for his daddy when the foster father departs. He often cries for his daddy during the visits as well. On the other hand, he demonstrates no difficulty in separating from his mother.
The social worker said the child has a very close and very secure relationship with his foster parents, who are interested in adopting him. However, she opined that the child does not have a strong bond with his mother.
On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.] (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Given the evidence of a strong bond between the child and his foster parents, and the lack of a strong bond between the child and his mother, there is substantial evidence to support the finding that the child would not suffer great harm if his relationship with his mother were severed.
III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
OLEARY, ACTING P. J.
IKOLA, J.
Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line attorney.
[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise specifically noted.
