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In Re Pedro V. Iii, A Person Coming Under the Juvenile Court v. A.S. et al

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


December 9, 2010

IN RE PEDRO V. III, A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
A.S. ET AL., DEFENDANTS AND APPELLANTS.

APPEAL from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. (Super. Ct. No. SJ12014)

The opinion of the court was delivered by: O'rourke, J.

In re Pedro V.

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Affirmed.

A.S. and Pedro V., Jr., appeal the judgment terminating their parental rights to their three-year-old son, Pedro V. III (Pedro). A.S. contends the court erred by declining to apply the beneficial relationship exception to termination of parental rights (Welf. & Inst. Code,*fn1 § 366.26, subd. (c)(1)(B)(i)). Pedro V., Jr., joins in this contention. We affirm.

BACKGROUND

In May 2008 A.S. left three-year-old Pedro with a caregiver who A.S. said was using controlled substances. A.S. did not make any provisions for Pedro's support or give the caregiver her contact information. Just before Pedro was detained by the San Diego County Health and Human Services Agency (the Agency), he tested presumptively positive for amphetamines and methamphetamines. In June 2008 the Agency filed a dependency petition based on the above facts. At the time the petition was filed Pedro V., Jr., was in prison.

In June 2008 Pedro was detained in Polinsky Children's Center for five days. He was then moved to a foster home where he remained for approximately three months. In August the court made a true finding on the petition and ordered Pedro placed in foster care. In September Pedro was moved to the home of his maternal grandmother. In March 2009 he was placed in a foster home. In September the court terminated A.S.'s reunification services and set a section 366.26 hearing. On March 13, 2010, Pedro was moved to a prospective adoptive home. The section 366.26 hearing took place in July.

DISCUSSION

If a dependent child is adoptable,*fn2 the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parent[ has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) 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.) The existence of this relationship is determined by considering "[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.) Examining the evidence in the light most favorable to the judgment, we conclude there is substantial evidence to support the court's finding that A.S. did not maintain regular visitation and there was no beneficial relationship. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

Before the inception of this case, A.S. demonstrated a lack of concern for Pedro. She hit him. She left him with others for long periods.*fn3 She did not meet his needs for nutrition, shelter, clothing, hygiene and medical care. She used illicit drugs. During this case, A.S. was offered substance abuse treatment, but was terminated from at least two programs and continued using drugs intermittently. A.S. had a criminal record. She was on probation and incarcerated for a probation violation during this case.

A.S. never progressed beyond supervised visitation. Except at the beginning of this case, she did not visit or contact Pedro regularly. During visits, A.S. sometimes demonstrated inappropriate parenting. She was impatient and often left visits early. Pedro looked forward to visits and expressed affection for A.S. During visits, however, A.S. "often appear[ed] to be out of touch" and this was evident to Pedro. As a result, A.S. and Pedro did not interact much or express much affection for each other. A.S. never accepted responsibility for Pedro's detention.

Pedro was detained when he was three years old. After four different detentions and placements, he was moved to the prospective adoptive home. At the time of the section 366.26 hearing he was five years old. He had been out of A.S.'s care for two years and in the prospective adoptive home for nearly four months. Pedro was adjusting well to the prospective adoptive home despite some anxiety. He called his caregivers "mommy" and "daddy" and the other child in the home "brother." The caregivers referred to Pedro as their son. Pedro deserved the stability, consistency and security of a permanent and loving home.

A.S. cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at p. 301.) That case is distinguishable. In In re S.B., supra, at p. 289, the child continued to display a strong attachment to the appellant father after her removal (id. at pp. 298-301) and they "had an emotionally significant relationship." (Id. at p. 298.) The father visited consistently (id. at pp. 293-294, 298, 300), "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Those factors are not present in the instant case.

Substantial evidence supports the conclusions that Pedro did not have "a substantial, positive emotional attachment" to A.S. that would outweigh the well-being he would gain in an adoptive home, and that he would not be greatly harmed by the severance of their relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court did not err by failing to apply the beneficial relationship exception.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J. IRION, J.


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