Derek W. v. David W.

Opinion

YEGAN, J. David W. appeals from the judgment terminating parental rights to his son, Derek. (Welf. & Inst. Code, § 366.26.)1 He contends the trial court erred when it changed Derek’s permanent plan from guardianship to adoption because David W. has maintained regular visitation with Derek, and Derek would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) We affirm the judgment because substantial evidence supports the trial court’s order.

Derek, who is of “mixed race but dark skinned,” was bom in 1989, addicted to cocaine and amphetamine. He was removed from the custody of his biological parents, Adele B. and David W., and placed in foster care with Stephanie and John K., who are Caucasian. Derek has lived with the K.’s since he was nine days old. Derek is developmentally delayed, suffers from a respiratory condition similar to asthma, and has behavioral and emotional problems.

Derek’s biological mother relinquished her parental rights almost immediately. His father, David W., who claims that he is African-American and an American Indian, regularly visited Derek, but failed to complete the parenting classes and drag treatment programs required for reunification. In [826199]1, the trial court terminated reunification services for David W., found that Derelc was not adoptable, and selected long-term foster care as the permanent plan. In 1992, we affirmed that order in a nonpublished opinion. (In re Derek W. (Apr. 28, 1992) B059107 [nonpub. opn.].)

Between 1991 and 1997, David W. was permitted visitation with Derek each month. For the most part, David visited Derek, missing visits only when he was in jail or participating in a residential drug rehabilitation program.

The parties agree that David W. and Derek have an emotional bond and that Derek knows David W. is his father. They both find the visits enjoyable, but the K.’s report that Derek often returns home wheezing from his father’s cigarette smoke and that he misbehaves or withdraws for one or two days following each visit. David W. has never contributed financially to Derek’s support.

Although unwilling to adopt in 1991, the K.’s requested that opportunity in March 1998. They informed the court that, if allowed to adopt, they would continue Derek’s visits with David W. David W. does not believe the K.’s will allow him access to Derek and that Derek needs an African-American role model in his life. Following a contested hearing, the trial court terminated David W.’s parental rights and freed Derek for adoption. This appeal followed.