In re J.F.
Filed 3/13/07 In re J.F. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.F. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JESSE F., Defendant and Appellant. | D049531 (Super. Ct. No. J515131 A/B) |
APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.
Jesse F. appeals a judgment of the juvenile court terminating his parental rights to his minor children J.F. and Nathaniel F. (together the minors) under Welfare and Institutions Code[1]section 366.26. Jesse challenges the sufficiency of the evidence to support the court's finding that 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 September 2003 one-month-old J.F. became a dependent of the juvenile court under section 300, subdivision (b) based on findings that he was at substantial risk of harm because his parents, Jesse and Tiffany R., abused drugs. The court placed J.F. with Jesse and Tiffany and ordered them to comply with their case plans.
The next month J.F. was placed with Tiffany in her residential drug treatment program. Jesse, who lived with paternal relatives, cared for J.F. on weekends. Although Jesse had enrolled in a drug treatment program, he relapsed into drug use. He was incarcerated from May to August 2004, and again from December 2004 to February 2005. After his release, he visited J.F. on weekends. J.F. was very attached to him.
Jesse had not complied with his case plan requirements of drug treatment, parenting classes or therapy, and had repeatedly violated parole conditions. Jesse continued to visit J.F. almost every weekend at the home of the paternal grandmother, who reported that Jesse was appropriate during visits.
Tiffany gave birth to Nathaniel in April 2005. Six months later, Nathaniel became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings that Tiffany was continuing to use drugs.
During the next six months, Jesse had no stable housing and was living with various friends and relatives. He was arrested for possessing and using methamphetamine and failing to report to his parole officer. Because the parents had not made substantive progress with their case plans, and returning the minors to parental custody would be detrimental to them, the court terminated reunification services and set a section 366.26 selection and implementation hearing.
The social worker assessed the minors as adoptable due to their young ages, good health and sociable personalities. The minors had been placed with the maternal grandmother in Florida, and were adjusting well. The maternal grandmother was committed to adopting them. If she were unable to adopt them, there were 18 approved adoptive families willing to adopt a sibling set like the minors.
Jesse had been visiting the minors every week except when he was incarcerated. The interaction between Jesse and the minors was positive. J.F. looked forward to seeing his father and was affectionate during visits. However, in the social worker's opinion, there was no parent-child relationship between Jesse and the minors, and any relationship they had did not outweigh the benefits of adoption for the minors.
At a contested selection and implementation hearing, Jesse testified that he loved his sons and did not want his parental rights terminated. He had visited the minors as often as possible. He planned to enroll in a drug rehabilitation program and look for a job as soon as he was released from prison.
After considering the evidence and hearing argument of counsel, the court found that the minors were likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
Standard of Review
We review the judgment to determine whether there is substantial evidence to support it. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) 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 that would support a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing that 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.)
"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 that 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 Eric P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides 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 Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
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. (1999) 73 Cal.App.4th 823, 827.) The parent must show that he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
II
There is Substantial Evidence Supporting the Court's Finding of
No Beneficial Parent-Child Relationship
Here, Jesse maintained regular visitation and contact with the minors when he was not incarcerated. However, he did not meet his burden to show that his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. Jesse clearly loves the minors, and was attentive to them and appropriate during visits. However, Jesse's substance abuse, his repeated incarcerations and his failure to participate in reunification services prevented him from being a consistent parental figure for the minors. Although the minors enjoyed their visits with Jesse and were affectionate toward him, there was no evidence of a "significant, positive, emotional attachment" from the minors to Jesse such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
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.) The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for the minors based on their particular needs. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The minors, whose needs Jesse cannot meet, deserve to have their custody status promptly resolved and their placement made permanent and secure through adoption. There is substantial evidence supporting the court's finding that the exception of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P.J.
HUFFMAN, J.
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[1] Statutory references are to the Welfare and Institutions Code.
