In re Samantha J.

Filed 7/5/06 In re Samantha J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 judgments of the Superior Court of San Diego County, Gary Bubis, Referee. Affirmed.

Heather S. and Richard J. appeal judgments terminating their parental rights to their daughter, Samantha J. They contend the juvenile court erred by not finding the exception to adoption of section 366.26, subdivision (c)(1)(A).^[1] We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of eight-month-old Samantha J. under Welfare and Institutions Code section 300, subdivision (b), alleging she was at risk of harm because she had been exposed to violent confrontations between her parents, Heather and Richard; Heather had been arrested for child endangerment; Richard smashed glass figurines during a fight in Samantha's presence; and the parents had a history of domestic violence, including Richard had thrown Heather to the ground, pulled her hair, choked her and covered her face with a pillow.^[2] The court detained Samantha in foster care and ordered supervised visitation.

The jurisdictional and dispositional report listed police reports of domestic violence between the parents in California and Washington. On February 2, 2004, the parents submitted to the petition on the basis of the social worker's reports and the court found the allegations true, declared Samantha a dependent child and ordered reunification services.^[3] Ten days later, on February 12, Richard was arrested following a domestic violence incident.

The parents visited with Samantha, but conflicts with the foster parent led to visits being held at Agency offices. In May 2004 Samantha was placed with her maternal grandparents (the grandparents) in Washington. After she was moved to Washington, visitation became infrequent because of the cost of travel and because of Heather's deployment with the United States Navy. Both parents participated in services, including parenting courses, psychological/psychiatric evaluations, therapy and 52-week domestic violence courses, and Richard attended Alcoholic Anonymous meetings. But the parents appeared to gain little from the services and continued their violent relationship. Heather and Richard had another domestic violence incident in June 2004. On the return flight home from a visit with Samantha in October 2004, they had a violent incident that resulted in Richard's arrest and incarceration. Heather later minimized the incident.

At the combined 12-month and 18-month review hearings on July 19, 2005, the court found Heather and Richard had not made substantive progress in their case plans, their progress in eliminating the causes of Samantha's removal from their care had been minimal, and returning her would put her at substantial risk. It terminated reunification services and set a section 366.26 hearing.

The social worker reported that after several months without visits, Richard moved to Washington and began visiting again, and Heather traveled to Washington for a series of visits. The social worker who supervised seven visits between Richard and Samantha reported that at first Samantha stood back and studied Richard, then became friendly, called him "Daddy" and played with him. At the end of the visit, she separated easily from him and went back to the arms of her grandparents. The social worker also reported that during visits with Samantha, Richard attempted to call Heather on his cellular telephone. For Samantha's visit with Heather, when the grandparents told Samantha she would be seeing Heather, she called, "Mommy," and ran to her. During the visit, however, she did not make eye contact or verbal contact with Heather and she appeared nervous.

In a report filed in January 2006, the social worker reported the parents appeared to be continuing to have contact with each other and in December 2005 there was another domestic violence incident.

At the section 366.26 hearing on January 11, 2006, the social worker testified that during visits Samantha referred to Heather and Richard as "Mommy" and "Daddy." She did not appear to be upset to see them or to leave when visits were over. The social worker said the grandparents fulfilled all of Samantha's basic needs and had acted as her parents for more than half her life. She opined Samantha was bonded to the grandparents and happy and secure with them.

Heather testified she opposed Samantha being adopted. She said she talked with Samantha by telephone almost every day. She could not always afford to fly to Washington, but had visited Samantha when she could. During visits she read to Samantha and bathed and fed her. She said Samantha called her "Mama," and called the grandmother "Donna." She said during the last visit Samantha clung to her and did not want to let her go. She asserted she could provide a safe and stable home for Samantha.

Richard testified after Samantha was placed in Washington, he tried to have regular telephone contact with her. He later moved to Washington and began visiting her regularly in November 2005. He said she was always happy to see him, called him "Daddy" and ran to him to have him pick her up. He said during visits he talked with her, they played, and she appeared disappointed when visits were over, but would give him a hug and a kiss and say, "bye, Daddy."

The court found it was likely Samantha would be adopted if parental rights were terminated, none of the exceptions to adoption of section 366.26, subdivision (c)(1) applied, and adoption was in Samantha's best interests. It terminated parental rights and referred the matter to the Agency for adoptive placement.

DISCUSSION

Richard and Heather contend the court erred in not finding the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A). Richard maintains his bond with Samantha makes the exception applicable to this case. Heather argues she and Samantha have a strong relationship and substantial evidence did not support a finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If a child is found to be adoptable it becomes the parents' burden to show termination of parental rights would be detrimental because one of five specified exceptions listed in section 366.26, subdivision (c)(1), exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]." "The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Substantial evidence supports the court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply. It is arguable that both parents met the first prong of the exception by maintaining consistent contact with Samantha. Although Heather's visitation was irregular, she visited as often as possible given the constraints of her enlistment with the United States Navy, her financial limitations, and the distance between San Diego and Washington. Richard visited until Samantha moved to Washington in May 2004 and resumed visiting regularly in November and December 2005. Both he and Heather had consistent telephone contact with Samantha.

However, substantial evidence supports a finding that neither parent showed a significant parent-child relationship with Samantha such that she would suffer detriment from severing the relationship or that the benefit to her of maintaining the relationship would outweigh the benefit of a stable, permanent adoptive home. Visits between Samantha and each parent remained supervised throughout the dependency period. Heather and Richard continued to have domestic violence incidents. There were at least three documented incidents: in February, in June and in October 2004. According to Washington reports the violent relationship continued in December 2005.

The social worker said Samantha saw Heather and Richard as "play pals," and opined they did not have parent-child relationships with her. Although Heather brought

food and clothing to visits and said she attempted to play a parental role by feeding and bathing Samantha, the grandparents were the ones who fulfilled this role on a daily basis. Samantha enjoyed visits with the parents, but she separated easily from them when visits ended and was happy to go back to the grandparents. There was no evidence presented to show that the benefit she received from her interaction with the parents would outweigh the benefit she would gain from adoption in a stable, permanent home.

The parents' reliance on In re Amber M. (2002) 103 Cal.App.4th 681 and In re Brandon C., supra, 71 Cal.App.4th 1530 do not help their positions. In In re Amber M., supra, 103 Cal.App.4th at page 690, this court reversed the order terminating parental rights on the basis of the opinions of all the experts in the case that the beneficial parental relationship outweighed the benefits of adoption for the children. Here, no experts disagreed with the social worker's opinion that Samantha should be adopted. In re Brandon C., supra, 71 Cal.App.4th 1530 was in a different posture than the situation here. There, the juvenile court found the beneficial relationship exception did apply and the reviewing court, declining to reweigh the evidence, held there was substantial evidence to support that finding. (Id. at pp. 1537-1538.) We, also, do not reweigh the evidence and hold substantial evidence supports the court's finding the beneficial parent-

child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION.

The judgments are affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Richard was named Samantha's presumed father under Family Code section 7611. Her alleged biological father did not participate in the dependency proceedings.

^[3] Richard appealed the order removing Samantha from his care. This court affirmed the order.