In re Isaac M.

Filed 8/21/06 In re Isaac M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Reena B. appeals a judgment of the juvenile court declaring that her son is adoptable, and terminating her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On March 16, 2004, the Santa Barbara County Child Protective Services Agency ("CPS"), filed a petition on behalf of five-month-old Isaac M. During her pregnancy with Isaac, Reena B. used methamphetamine and barbiturates. When Isaac was two months old, police officers arrested Reena B. for driving without a driver's license and for being under the influence of methamphetamine. Isaac was then in the automobile. Consequently, Reena B. was confined to county jail from December, 2003 until February, 2004.

On March 9, 2004, Reena B. again was arrested and incarcerated for being under the influence of drugs. During her confinement, she left Isaac and his half-sibling in the care of Isaac's father, Jorge M. Jorge M. has a lengthy criminal history that includes infliction of corporal injury upon a child, spousal abuse, battery upon a police officer, and the use of illegal drugs.

In the dependency petition, CPS alleged that Reena B. was unable to care for her child due to her substance abuse, and that there was a substantial risk that Isaac would be abused or neglected in his father's care. (§ 300, subds. (b) & (j).)

On March 17, 2004, the juvenile court ordered Isaac detained. CPS placed him in the foster home of Ms. W. Reena B. later admitted the allegations of the dependency petition. The juvenile court sustained the allegations of the petition, continued Isaac in foster care, and ordered CPS to provide family reunification services to Reena B. and Jorge M.[2]

During the next twelve months, Reena B. completed residential drug treatment and complied with the requirements of her family reunification services plan. She remained drug-free, attended parent education classes, received counseling, and obtained a job and housing. Her CPS social worker stated that she made "excellent progress." On April 14, 2005, CPS recommended that Reena B. receive additional reunification services. The juvenile court then ordered six months of additional reunification services and permitted CPS to allow overnight visits between Isaac and Reena B.

By the time of the next review hearing, however, Reena B. was seven months pregnant and had been arrested for methamphetamine use. On October 27, 2005, the juvenile court terminated reunification services, and set the matter for a permanent plan hearing pursuant to section 366.26.

CPS evaluated the prospective adoptive parent, Ms. W., and concluded that it is in Isaac's best interests that she adopt him. Isaac had lived with Ms. W. for nearly two years.

At the section 366.26 permanent plan hearing, the juvenile court received evidence of CPS reports and memoranda, testimony from a social worker, and stipulated testimony from Reena B. The CPS social worker testified that Reena B. had been incarcerated and had not visited with Isaac for nearly six months. She opined that Isaac viewed Ms. W. as his mother. Reena B. argued that the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(A), precluded adoption as the permanent plan. She relied upon her stipulated testimony that Isaac referred to her as "Mom," that he was excited to see her and unhappy when taken away, and that she had unsupervised weekend visits with him prior to her recent incarceration.

The juvenile court concluded by clear and convincing evidence that Isaac is likely to be adopted, and it terminated Reena B.'s parental rights. (§ 366.26, subd. (c)(1).) The court specifically found that the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(A), did not apply. In ruling, the trial court stated that Reena B.'s relationship with Isaac was more like "a visiting relative" than a parent.

Reena B. appeals and contends that the juvenile court abused its discretion by terminating her parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352 [standard of review].)

DISCUSSION

Reena B. argues that she established that she had a beneficial relationship with Isaac sufficient to preclude termination of her parental rights. (§ 366.26, subd. (c)(1)(A).) She points out that she complied with her reunification services plan for most of the dependency, and that she held a nurturing and parental role for Isaac during their frequent and regular visits. Reena B. adds that she spoke frequently with Isaac by telephone during her recent incarceration, and that she visited with him the day prior to the section 366.26 hearing. She asserts that clear and convincing evidence does not support the juvenile court's order.

Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "the court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The beneficial parental relationship exception of section 366.26, subdivision (c)(1)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent bears the burden of proving the exception. (Ibid.) Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)

The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) A biological parent who has not reunited with a child may not derail an adoption by showing that the child derives some benefit from continuing the relationship. (In re Angel B., supra, 97 Cal.App.4th 454, 466.)

The juvenile court did not abuse its discretion by terminating Reena B.'s parental rights because she did not establish that her relationship with Isaac satisfies his "need for a parent." (In re Jasmine D., supra, 79 Cal.App.4th 1339, 1350.) Isaac was two and one-half years old at the time of section 366.26 hearing, and had lived with Ms. W. since the inception of the dependency (two years). For the first six months of Isaac's life, Reena B. frequently was incarcerated. Isaac viewed Ms. W. as his mother, cried when removed from her, and clung to her upon his return. Ms. W. satisfied Isaac's needs for protection, guidance, food, and shelter, and occupied the parental role in his life.

The juvenile court concluded, with sufficient evidentiary support, that Reena B. was more like a "visiting relative" to Isaac, than a parent. "Where a biological parent . . . is incapable of functioning in that 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.)

The juvenile court assessed the credibility of witnesses, weighed the evidence, and determined that Reena B. had not fulfilled a parental role. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1351 ["The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of . . . deference."].) She did not establish that this was "an extraordinary case" where the parental relationship exception of section 366.26, subdivision (c)(1)(A), applies. (Id., at p. 1350.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

Stephen Shane Stark, County Counsel, Laura Ornelaz, Deputy, County of Santa Barbara, for Plaintiff and Respondent.

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

[2] Jorge M. did not participate in the family reunification services plan and the juvenile court later terminated his parental rights. He is not a party to this appeal.