Opinion
A100037.
7-25-2003
In re ALLEN K., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S. J., Defendant and Appellant.
The juvenile court terminated the parental rights of appellant S. J. to her son Allen K. and selected a permanent plan of adoption. S.J. appeals, contending that her bond with Allen was too strong for the trial court to terminate her parental rights. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) We affirm the juvenile court order.
All statutory references are to the Welfare and Institutions Code.
I. FACTS
A. Initial Dependency
On October 14, 1996, appellant S. J. was injured in the stomach by the father of her unborn child. She was six months pregnant at the time. Although he was arrested at her request, she refused to prosecute the father for this assault. Ten days later, S.J. went into premature labor and was admitted to Summit Hospital. At that time, her pregnancy was of almost 29 weeks gestation. Minor Allen K. was born premature at 34 weeks, weighing four and one-half pounds. His hospital recuperation was difficult, particularly because of his fathers disruption of his recovery in the intensive care nursery. On November 19, 1996, police took Allen into protective custody at the request of hospital officials because of his fathers endangerment and because S.J. appeared unable to protect the minor.
As Allens father does not challenge the termination of his parental rights, we omit all but essential references to his part of the underlying proceedings.
On November 25, 1996, respondent Alameda County Social Services Agency filed a petition in juvenile court seeking to have Allen declared a dependent child. (See § 300, subd. (b).) The petition alleged that S.J. failed to protect Allen and failed to provide him with needed medical care. It alleged that she was homeless, that she was a fugitive on a municipal court warrant for petty theft, that she had used marijuana three times a week during the first three months of her pregnancy and that a substance abuse problem rendered her incapable of caring for Allen. The petition also alleged that she and Allens father were abusive to one another in the hospital, that they disrupted the intensive care nursery and that she refused to prosecute the father after he injured her while she was six months pregnant.
On November 27, 1996, the juvenile court ordered Allen to be detained in a shelter, but allowed the social worker to release the minor to S.J., if she satisfied certain conditions. S.J. sought a restraining order to protect herself and the minor, should he be released to her custody. Allen was discharged from Summit Hospital and placed in a foster home for high-risk, medically fragile infants. He was admitted to Childrens Hospital on an outpatient basis for treatment of a high bilirubin level.
In December 1996, the juvenile court ordered Allen to be detained in the home of S.J.s cousin. S.J. appeared in criminal court on the petty theft warrant and was granted probation. The agency filed an amended petition, adding an allegation that Summit Hospital officials concluded that S.J. was under the control of Allens father and was unable to protect the minor without court intervention. The juvenile court struck the allegation that S.J. was homeless. At the request of the agency, it also struck the allegation that she had failed to prosecute the father for the October 1996 incident. It amended allegations of the amended petition, noting that she had cleared her outstanding warrants and stating that she had not had stable housing in the recent past. As amended, the juvenile court found the amended petitions allegations to be true. Allen was declared to be a dependent child.
S.J. was advised that she might regain custody of Allen if she allowed the minor to have no contact other than that approved by the social worker with the father; she remained in contact with the social worker; she obtained a temporary restraining order against the father; she obtained legal housing; she continued to attend a domestic violence program; and she cooperated in obtaining appropriate medical treatment for Allen.
In January 1997, the social worker applied for and obtained a restraining order on S.J.s behalf to protect S.J. and Allen from his father. About this time, S.J. was granted custody of Allen. In February 1997, the social worker reported that S.J. had moved twice with the minor; she had been in regular contact with Allens father; the mother had been in an automobile accident involving the father while S.J. was driving and Allen might have been in the vehicle; and her meeting attendance had lessened in the past month. After a hearing, S.J. was permitted to retain custody of Allen, but was ordered not to move without advising the social worker.
In March 1997, S.J. moved to a small hotel room. She was able to care for Allen despite her lack of kitchen facilities. However, S.J. had missed more of her parenting and domestic violence classes than she attended, had not followed through on a referral for therapy, and had not begun a psychological evaluation. After an April 1997 hearing, the juvenile court continued Allen as a dependent child.
In September 1997, the juvenile court held a review hearing. By this time, the social worker reported that S.J. was living in an apartment in Hayward. She had complied with or appeared to be complying with most conditions of the family maintenance plan. She had reported several of the fathers attempts to contact her to the social worker and to police. However, her compliance with the condition that she participate in domestic violence counseling was only partial and she did not submit to a psychological evaluation, having failed to return to counseling after a single session. It was also noted that S.J. was young and had poor impulse control. Allen and S.J. appeared to be bonded. The social worker recommended continuing Allen as a dependent child and permitting him to remain in S.J.s home. The juvenile court approved this recommendation.
In March 1998, a second review hearing was held. Initially, the social worker recommended that the dependency be dismissed. However, while waiting for the hearing to begin, S.J. was observed repeatedly lifting Allen by one arm. At the hearing, the social worker changed the recommendation to one of continued dependency because of this incident and S.J. had not undergone a psychological evaluation or continued with domestic violence counseling, which she discontinued in July 1997. After a contested review hearing, the juvenile court continued to find Allen to be a dependent child. S.J. was advised that at the next review hearing, it would be determined whether she was in compliance with her family maintenance plan-a key factor in its determination of whether it would be detrimental to Allen to remain in her custody.
The social worker issued the next review hearing report in August 1998. The agency recommended that Allens dependency be continued for at least another six months. At that time, S.J. had not resumed attending domestic violence counseling and had received referrals for a psychological evaluation but had not yet scheduled an appointment for one. In September 1998, the juvenile court ordered S.J. to attend parenting or domestic violence classes and to complete a psychological evaluation or attend psychological counseling. Allen continued to be a dependent child.
In February 1999, the agency recommended that the juvenile courts jurisdiction be terminated and Allens dependency be dismissed. Although S.J. had not participated in domestic violence counseling, she continued a parenting support group at which these issues were discussed. A psychological evaluation completed in January 1999 showed that S.J. functioned as a normal adult. The social worker concluded that there appeared to be no detriment to Allen and the risk to him had greatly diminished. In February 1999, the juvenile court accepted the agencys recommendation and dismissed the dependency. It awarded S.J. legal and physical custody of Allen, with the understanding that no visitation or contact would be allowed with the father.
B. Second Dependency
In April 2000, a caretaker notified Oakland police that S.J. had abandoned Allen for almost 10 days. Allen was taken into protective custody, detained and placed in foster care. The agency filed a new petition, alleging that S.J. failed to protect Allen. (See § 300, subd. (b).) The petition alleged that S.J. had a history of substance abuse, that she left him without any provision for his support, did not make her whereabouts known to the caretaker, and failed to return in three days as promised. At the detention hearing, the juvenile court approved removing Allen from S.J.s custody.
S.J. denied the truth of the alleged circumstances surrounding Allens abandonment. The social worker noted in the jurisdiction report that S.J.s version of events had changed several times, concluding that her statements were fabrications. S.J. appeared to be homeless and was involved with a man who had committed drug violations in the past. In May 2000, the agency recommended that Allen be declared to be a dependent child, that he continue to be placed out of S.J.s home, and that she receive reunification services. Also in May 2000, the agency told S.J. to undergo drug testing and treatment.
By July 2000, it reported to the juvenile court that S.J. had received a referral but had not followed up on it. At supervised visits, S.J. was found to be cold to Allen and unable to interact with him in a loving manner. The social worker advised the juvenile court that S.J. had made no progress since removal, even though time was running out. It recommended that the juvenile court order S.J. to enter a residential drug treatment program. At the jurisdiction hearing, the juvenile court concluded that the allegations of the petition were true, based on S.J.s admission. She was ordered to submit to drug testing. In August and September 2000, S.J. repeatedly tested positive for marijuana, although she denied using drugs. She refused to enroll in a drug treatment program. She missed some visits with Allen, but demonstrated better parenting skills when she did attend visits.
At a July 2002 hearing, S.J. denied using marijuana since April 2000.
In January 2001, the agency recommended that at the upcoming review hearing, the juvenile court should order continued reunification services to S.J. At the hearing, the juvenile court found that reasonable reunification services had been provided or offered to S.J. and that those services would be continued. In February 2001, she stopped attending parenting and drug counseling classes.
In June 2001, the agency recommended that at an upcoming review hearing, reunification services be continued for S.J. By this time, S.J. told the juvenile court that she had an apartment in Oakland and was living alone. The man she had been living with had moved out and she was waiting for Allen to return home to her. Allen was determined to be adoptable, but adoption was not recommended as the permanent plan because S.J. continued to work toward reunification. At the hearing, the juvenile court ordered reunification services to continue. Before a hearing in July 2001, S.J. verbally threatened the social worker.
In October 2001, the agency recommended the termination of reunification services, and the setting of a date for a permanency planning hearing. (See § 366.26.) S.J. had not completed parenting classes, had not completed a drug treatment program, and had permitted an unauthorized person to be present during unsupervised visitation. In November 2001, S.J. asked for drug testing forms and was given a referral for testing. The hearing to set a permanency planning hearing was continued.
In December 2001, the juvenile court found that reasonable reunification services had been offered or provided. S.J.s progress was characterized as minimal. The juvenile court found that returning Allen to her custody would create a substantial risk of detriment to him. S.J.s reunification services were terminated. She was ordered to continue attending parenting and drug treatment classes. Later that month, Allens father reappeared after a long absence. At that time, the focus of the case turned to whether the agency had exercised due diligence in its efforts to locate him and whether Allen might be eligible for enrollment as a child of a Native American tribe.
In March 2002, the agency recommended a permanent plan of adoption for Allen. In June 2002, S.J. petitioned for modification-alleging that she was in substantial compliance with the conditions of her case plan and seeking to have Allen returned to her. (See § 388.) The petition was opposed by Allens counsel at the July 2002 hearing on it. The juvenile court ruled that S.J. did not meet her burden of proving changed circumstances and denied the motion. In August 2002, S.J.s parental rights were formally terminated.
II. BENEFIT OF CONTINUING RELATIONSHIP
In her sole contention on appeal, S.J. argues that the juvenile court erred in failing to apply an exception precluding termination of parental rights. She reasons the bond between Allen and herself is strong and that he would benefit from a continuation of their relationship. If the juvenile court finds by clear and convincing evidence that it is likely that a dependent child will be adopted, its continued removal of the child from the parents custody combined with the termination of reunification services constitutes a sufficient basis for terminating parental rights. However, the juvenile court may find that termination of parental rights would be detrimental to the child if the parent has maintained regular contact with the minor and the child would benefit from continuing the relationship. (See § 366.26, subd. (c)(1)(A).)
In this matter, when the juvenile court terminated S.J.s reunification services in December 2001, it found that she had made only minimal progress toward meeting the goals of her case plan and concluded that returning Allen to her custody would be detrimental to him. In July 2002-one month before terminating her parental rights-the juvenile court rejected S.J.s motion for modification seeking to have Allen placed with her, concluding that she had not rebutted a presumption that his return to her custody would be detrimental to him. It also found again that she had not complied with her case plan.
At the August 2002 hearing at which the juvenile court ultimately terminated her parental rights, it did note that S.J. had worked hard to stay connected to Allen. However, the juvenile court found that there was clear and convincing evidence that Allen would be adopted; it selected a permanent plan of adoption of him; and it concluded that the agency had made reasonable efforts to return Allen to S.J. It then terminated S.J.s parental rights to Allen.
Preliminarily, the agency contends that S.J. has waived the right to raise on appeal the issue of the applicability of subdivision (c)(1)(A) of section 366.26 because she did not assert its applicability in the juvenile court. Although a party is generally required to raise an issue in the lower court in order to be able to challenge it on appeal, we have found no cases applying this general rule to any of the four exceptions contained in subdivision (c)(1). Thus, it is unclear to us whether or not S.J. has waived this issue.
S.J. filed no reply brief to challenge this assertion.
Even if we assume arguendo that S.J. did not waive this issue, we would uphold the juvenile courts implied conclusion that the statutory exception she cites did not apply. By law, the juvenile court may not terminate parental rights if the parent maintained regular visitation and the minor would benefit from a continuing relationship with him or her. ( § 366.26, subd. (c)(1)(A) .) By its finding of the adoptability of the minor and its decision to terminate S.J.s parental rights, the juvenile court necessarily found that no exceptional circumstances existed to prevent termination. (See § 366.26, subd. (c)(1).)
Thus, S.J.s challenge is-in essence-one to the sufficiency of the evidence supporting the juvenile courts implied finding that subdivision (c)(1)(A) of section 366.26 did not apply. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) When reviewing such a challenge, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence supporting termination of parental rights. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal. Rptr. 637, 623 P.2d 198; In re Rico W. (1986) 179 Cal. App. 3d 1169, 1173, 225 Cal. Rptr. 472; but cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 [abuse of discretion is appropriate standard].) We have no power to reweigh the evidence, but determine only if there is sufficient evidence to support the juvenile courts finding. (In re Jacqueline G. (1985) 165 Cal. App. 3d 582, 585, 211 Cal. Rptr. 827; see In re Katrina C. (1988) 201 Cal. App. 3d 540, 547, 247 Cal. Rptr. 784.) As the juvenile court concluded that she failed to reunify and that Allen was adoptable, S.J. bears the burden of proving that the statutes exceptional circumstances exist. (See In re Autumn H., supra, 27 Cal.App.4th at p. 574 [applying substantial evidence]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying abuse of discretion].)
We note that the agency argues for application of the abuse of discretion test.
Courts interpreting subdivision (c)(1)(A) of section 366.26 have noted that its application must be determined on a case-by-case basis. In all cases, interaction between a natural parent and a child confers some incidental benefit to the children. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (Id. at p. 575.) The exception applies only when regular visits continue or develop a significant positive, emotional attachment between child and parent. (Ibid.; see In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [parent incarceration may be factor in decision that exceptional circumstances did not exist].)
The relationship described in the statute must be sufficiently strong that the minor would suffer detriment if it were terminated. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) When determining applicability of the exception, the court considers whether the relationship with the parent "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., supra, 27 Cal.App.4th at p. 575 .) The juvenile court balances the strength and quality of the relationship between the child and the natural parent against the security and sense of belonging that the child would enjoy in a new family. If severing the relationship between the natural parent and the child would deprive that child of a substantial, positive emotional attachment to his or her great harm, then the legislative preference for adoption is overcome and the natural parents rights may not be terminated. (Ibid.)
A child has the right "to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (In re Marilyn H. (1993) 5 Cal.4th 295, 306, 851 P.2d 826.) Adoption is the preferred plan for a dependent child because it gives him or her the best chance of receiving this commitment. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The evidence before the juvenile court supports the conclusion that the relationship between S.J. and Allen-even assuming its beneficial aspects-was not so strong that it would outweigh the need for the stability and permanency of an adoptive home. S.J. made fairly regular visitation with Allen, but was sometimes inattentive to him and often displayed a lack of emotional connection with him that concerned observers.
Substantial evidence supports the juvenile courts implied finding that this statutory exception did not apply. We conclude that it acted within its authority when it determined that the benefits to Allen from adoption outweighed the benefit of continuing his relationship with S.J. (See § 366.26, subds. (c)(1)(A), (c)(3).) Thus, the juvenile court properly terminated S.J.s parental rights.
In light of our conclusion that substantial evidence supports the juvenile courts implied finding that the statutory exception did not apply, we are satisfied that its termination of parental rights was not an abuse of its discretion, either.
The order is affirmed.
We concur: Sepulveda, J., Rivera, J.