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In re STEPHANIE F., a Person Coming Under the Juvenile Court Law. v. ALONZO F

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


November 30, 2010

IN RE STEPHANIE F., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
ALONZO F., DEFENDANT AND APPELLANT.

APPEAL from orders of the Superior Court of San Diego County, Peter Fagan, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super. Ct. No. J516863a)

The opinion of the court was delivered by: Aaron, J.

In re Stephanie 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Alonzo F. appeals orders terminating his parental rights to his daughter, Stephanie F., and referring Stephanie for adoption. He contends that the court erred by terminating his parental rights because he showed that the benefits to Stephanie of their beneficial parent-child relationship outweighed the benefits that she would gain from adoption, within the meaning of Welfare and Institutions Code*fn1 section 366.26, subdivision (c)(1)(B)(i). We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Stephanie under section 300, subdivision (b), based on her mother, Ursula D.'s, use of cocaine and marijuana.

Ursula stated that during her pregnancy with Stephanie, she hid her drug use from Alonzo by lying to him and leaving their home for days at a time. When the social worker asked Alonzo to test for marijuana use, he refused and said that he did not want to incriminate himself.

Stephanie was initially detained in foster care and later went to live with her maternal grandfather and stepgrandmother (together, the grandparents). On November 7, 2007, the court found the allegations of the petition true, declared Stephanie a dependent child of the juvenile court, placed her in out-of-home care and ordered Ursula and Alonzo to comply with the provisions of their case plans.

Alonzo and Ursula participated in reunification services. Alonzo reported that he worked part time for the paternal grandmother, and lived in a condominium that the paternal grandmother owned. Later, after foreclosure of the condominium, he lived with friends and in hotels. Alonzo lost his job, but then worked two jobs to sustain himself. He attended parenting classes, began attending Al-Anon meetings and therapy, and struggled to find suitable housing for himself and Stephanie. He and Ursula had appropriate visits with Stephanie, including unsupervised visits, but the grandparents complained that Alonzo sometimes missed visits and later made excuses. At the six- and 12-month review hearings, the court continued Stephanie's dependency and continued services.

On September 25, 2009, at the 18-month permanency hearing, the court found that Alonzo had made substantive progress with the provisions of his case plan and that Ursula had made some progress. The court ordered Stephanie placed with both Alonzo and Ursula.

Five days later, however, the maternal grandfather left a message for the social worker, reporting that Alonzo and Ursula had "got[ten] into it," and that Ursula was in jail. Police learned that Ursula had arrived at the apartment she shared with Alonzo very early in the morning and started banging on the door. Alonzo was angry at being awakened. At 2:00 a.m., Ursula began cooking. Alonzo threw a skillet on the floor, and, as he walked behind Ursula, she cut him with a knife.*fn2 Alonzo called a friend to take him to the hospital and told the friend that he did not want the police involved. Alonzo's friend nevertheless called police. Alonzo suffered two stab wounds and required surgery to repair his colon. Ursula was arrested for inflicting injury on a spouse and assault with a deadly weapon.

The Agency filed a supplemental petition, alleging that Alonzo and Ursula were no longer able to provide adequate care for Stephanie. On December 1, 2009, the court sustained the petition, continued Stephanie as a dependent child, ordered her placed in relative care, terminated reunification services and set a section 366.26 hearing. Stephanie was returned to live with the grandparents. The court issued a temporary restraining order to protect Alonzo from Ursula.

The social worker assessed Stephanie as adoptable. She was healthy, smart and engaging. She had lived with the grandparents for most of her life. She was bonded to them, and they wanted to adopt her. In addition, there were other approved adoptive families that wanted to adopt a child with her characteristics.

The grandparents reported that both Alonzo and Ursula began visiting less often than they did the first time that Stephanie was placed with them. The social worker described a visit between Alonzo and Stephanie that was very pleasant and appropriate, but noted that out of 11 visits that had been scheduled in 2010, Alonzo had missed five. The social worker expressed concern that Alonzo did not have a stable residence or source of income, and that he remained in a relationship with Ursula despite the restraining order against Ursula. At the section 366.26 hearing on August 3, 2010, the court received the social worker's reports in evidence and accepted testimony to which the parties had stipulated. It was stipulated that if Alonzo were to testify, he would say that the reason he had missed visits was because of work obligations.

After considering the evidence presented at the hearing, the court found that Stephanie was likely to be adopted if parental rights were terminated, and that no statutory exception to termination of parental rights applied. The court found that neither parent had maintained regular visitation, and that Stephanie would not benefit from continuing the parent-child relationship.

DISCUSSION

Alonzo contends that the court erred by not finding that the benefits to Stephanie of their beneficial parent-child relationship outweighed the benefits that she would gain from adoption. He claims that he visited her regularly, and that the evidence showed that they shared a loving and close relationship.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because a specified statutory exception exists. (Id. at p. 574 .) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show that 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 In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted that "[c]courts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception." In interpreting the meaning of "benefit" in section 366.26, subdivision (c)(1)(B)(i), this court stated in In re Autumn H., supra, at page. 575:

"In the context of the dependency scheme prescribed by the Legislature, 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 reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the trial 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.)

Even if we were to assume that Alonzo showed that he maintained regular visitation and contact with Stephanie, he did not show that his relationship with Stephanie was parental in nature, that severing the relationship would cause Stephanie great harm, or that the benefits to her from preserving their relationship would outweigh the benefits that she would gain from adoption.

Alonzo had pleasant, affectionate visits with Stephanie and she expressed happiness at seeing him, but their relationship was like that of friendly playmates. He usually did not bring any food, clothing or toys to visits. The grandparents reported that he rarely called and that he made excuses why he could not visit. According to the grandparents, when Stephanie returned from unsupervised visits, she often smelled of smoke. This was of particular concern because Stephanie suffers from asthma. Alonzo and Ursula did not show that they were committed to providing parental care for Stephanie. Two days after Stephanie was placed with them, she caught a cold and they returned her to the grandparents until she recovered. Also, Alonzo often told Stephanie that he would be coming for a visit, only to disappointed her by canceling the visit. The social worker concluded that Alonzo's relationship with Stephanie was not parental in nature.

The court did not err by finding that Alonzo did not show that the benefits of continuing the parent-child relationship outweighed the benefits to Stephanie of adoption. Stephanie had lived with the grandparents for most of her life. She was bonded to them and they wanted to adopt her. The record shows that Alonzo's life continued to be unstable. He did not have steady employment and spent much of his time living in hotels or with friends. In addition, he remained in a relationship with Ursula even though she continued to use drugs and she had stabbed him, causing wounds that required surgery. He was at Ursula's home, despite the restraining order, when she was arrested for selling methamphetamine just a few weeks before the section 366.26 hearing.

Alonzo's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 and In re S.B. (2008) 164 Cal.App.4th 289 is misplaced. In In re Amber M., supra, at pages 689-690, this court reversed a judgment terminating parental rights, stating that the common theme of the evidence in the case was that the beneficial parent-child relationship outweighed the benefits to the child of adoption. The mother in that case had visited often and fulfilled a parental role during her visits. Here, Alonzo did not present evidence that he fulfilled a parental role for Stephanie, or that they shared a strong emotional attachment. Instead, the evidence showed that adoption would provide Stephanie with stability and security and would outweigh any benefits that she would gain from continuing her parent-child relationship with him.

In re S.B., supra, 164 Cal.App.4th 289, similarly does not support Alonzo's position. In In re S.B., this court reversed the trial court's finding that the beneficial parent-child relationship exception did not apply after concluding that the child would be greatly harmed by loss of the significant positive relationship she shared with her father. The father had complied with every aspect of his case plan, frequently visited his daughter, and was devoted to her. She loved him and wanted to live with him. (Id. at pp. 294-295.) Alonzo did not make such a showing.

Further, while factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that, on the facts of this case, the court's findings are fully supported.

DISPOSITION

The orders are affirmed.

WE CONCUR: McCONNELL, P. J. HUFFMAN, J.


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