In re Alexis B.
Filed 7/10/06 In re Alexis B. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re ALEXIS B., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KELLY A., Defendant and Appellant. | D048199 (Super. Ct. No. EJ2510) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary Bubis, Referee. Affirmed.
Kelly A. appeals the judgment terminating her parental rights over Alexis B. Kelly 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 December 2004, when Alexis was one year old, the San Diego County Health and Human Services Agency filed a dependency petition because Kelly used marijuana to excess but denied that this had any negative effect on Alexis. Alexis was detained in foster care then placed with a nonrelative extended family member. In November 2005, she was moved to a new foster home. Her foster parents wish to adopt her. The section 366.26 hearing took place in February 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.)
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's implied finding that Kelly did not maintain regular visitation and contact and did not have a beneficial relationship with Alexis.
Kelly acknowledges that her "visits were somewhat inconsistent" yet inexplicably claims they were regular. The record shows that in late May 2005, the visitation facility cancelled her supervised visitation because she failed to appear too many times. Visits resumed but were cancelled again for similar reasons. In October, visitation was moved to the social worker's office. Between October 17 and December 9, Kelly visited Alexis only twice. Those two visits ended at Kelly's request because she believed that Alexis
was unhappy and it was becoming increasingly difficult for her to keep Alexis in the visitation room. Kelly cancelled numerous visits, explaining that she was entering CRASH, a substance abuse treatment program, but then did not enroll in the program. She failed to appear for visits on December 14 and 16 and was late for a December 19 visit. She never progressed beyond supervised visits and continued to use drugs.
During visits, Alexis was sometimes affectionate with Kelly and sometimes ignored her. Alexis called her "mama," but also used this name for the foster parent and the social worker. Alexis threw tantrums and did not follow directions when Kelly gave them. Although Kelly was affectionate with Alexis and praised her, she gave in to Alexis's tantrums and was inconsistent in attending to her and following through with consequences for misbehavior. Alexis did, however, follow her foster parents' directions. Alexis parted from Kelly without showing distress.
At the time of the section 366.26 hearing, Alexis was nearly two and one-half years old and had been out of Kelly's custody for more than two years. Even before the dependency proceedings were instituted, Alexis was at times in the care of a nonrelative extended family member. Alexis was comfortable in her foster home and looked to her foster parent to meet her needs. The foster parent aided Alexis's language development by working with her to use words instead of emotions to get her needs met. The attachment between Alexis and her foster family continued to grow and the family remained committed to providing her a permanent home.
The juvenile court did not err by applying section 366.26, subdivision (c)(1)(A).DISPOSITION
Judgment affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.
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[1] All further statutory references are to the Welfare and Institutions Code.
