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In Re C.F. et al., Persons Coming Under the Juvenile Court v. Sara D

March 16, 2011

IN RE C.F. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
SARA D., DEFENDANT AND APPELLANT.



Super. Ct. No. J516-728 A-C APPEAL from a judgment of the Superior Court of San Diego County, Martin W. Staven, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

Terence M. Chucas, under appointment by the Court of Appeal, for minors.

Sara D. appeals a juvenile court judgment terminating her parental rights to her sons, C.F. and G.F., and her daughter, N.F., and choosing adoption as the appropriate permanent plan. (Welf. & Inst. Code, § 366.26.)*fn1 Sara challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption preference (§ 366.26, subd. (c)(1)(B)(i)) is inapplicable. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

In June 2007 the San Diego County Health and Human Services Agency (the Agency) filed petitions on behalf of the children, which alleged they had been exposed to domestic violence between Sara and her boyfriend. (§ 300, subd. (b).) The children then ranged in age between three and seven years. The oldest boy, C.F., has Down's syndrome and special needs.

The Agency intervened the preceding May. Sara agreed to voluntary services and to have her boyfriend move out of the home. She did not follow through with referrals, however, or keep in contact with the Agency. A maternal aunt reported she had not seen the family for some time, the oldest two children were truant from school, and she understood the family was living "at a known drug house" with Sara's boyfriend. The Agency located the family and took the children into protective custody. They were detained with the aunt. In addition to an ongoing domestic violence issue, Sara admitted she has a lengthy history of crystal methamphetamine use, and that "she would care for the children while being under the influence . . . for two to three days at a time."

The court ultimately allowed Sara 18 months of services, including participation in SARMS (Substance Abuse Recovery Management System), domestic violence and parenting programs, general counseling, and supervised visitation. At the 18-month review hearing in March 2009, the court found she was in compliance with her case plan and returned the children to her care, subject to family maintenance services.

In September 2009, however, the Agency filed supplemental petitions for the children (§ 387), alleging Sara had relapsed "because she felt overwhelmed with the care of the children and financial challenges." In July and August 2009 she tested positive for amphetamines and methamphetamines. She admitted to drug use. The children were returned to their maternal aunt and Sara voluntarily reentered treatment.

In February 2010 Sara again tested positive for methamphetamine. Further, despite a restraining order in place she had resumed a relationship with her boyfriend, and he had again physically abused her. In March Sara did not appear for a drug test.

In its assessment report for the section 366.26 hearing, the Agency recommended the termination of parental rights and adoption as the preferred permanent plan. During a contested hearing in October 2010, Sara argued for the preservation of her parental rights. The court found by clear and convincing evidence that the children are adoptable and none of the statutory exceptions to adoption is applicable. The court terminated parental rights and found adoption is in the children's best interest.*fn3

DISCUSSION

I Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) An exception to the adoption preference applies if termination of parental rights would be detrimental to the child because the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)

The issue is subject to a sufficiency of the evidence standard of review. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of ...


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