Opinion
C043639.
10-23-2003
In re DIANA H. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. CHRISTINA M., Defendant and Appellant.
Christina M. (appellant), the mother of Diana H., Esmeralda H., Letticia H., Annaliza G., Maria Louisa G., and Amelia G. (the minors), appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further statutory references to sections of an undesignated code are to the Welfare and Institutions Code.) Appellant contends the juvenile court committed prejudicial error in terminating her parental rights when it failed to apply a statutory exception to adoption. Disagreeing with that contention, we affirm the order terminating appellants parental rights.
FACTS AND PROCEDURAL HISTORY
On September 12, 2000, the Yolo County Department of Employment and Social Services (DESS) filed original juvenile dependency petitions pursuant to section 300 on behalf of all six minors, who at that time ranged in age from three to 11 years old. Those petitions alleged that appellant and the father of the youngest minors had a history of domestic violence. According to the petitions, in 1996 appellant stabbed the father, and appellant was on probation for infliction of corporal injury on Amelia in 2000.
Appellant has a history of eight referrals to DESS for neglect, lack of supervision, and physical abuse of the minors. Moreover, in 1997 appellant received probation in connection with the 1996 stabbing incident, which had resulted in a conviction for inflicting corporal injury on a cohabitant. Thereafter, appellant also was convicted of grand theft.
The juvenile court sustained the petitions as amended, adjudged the minors dependent children, and ordered appellant to participate in reunification services. Thereafter, appellant failed to complete her plan. She continued to use illegal drugs, and had to enroll in the same programs multiple times. However, appellant visited the minors regularly, and those visits went well.
After the juvenile court terminated appellants reunification services, DESS recommended adoption as the appropriate permanent plan for the minors. The minors were doing well. Diana, Esmerelda, and Letticia lived together in one placement, while Annaliza, Maria Louisa, and Amelia lived in another. All of the minors expressed a desire to be adopted. However, in general, the visits between appellant and the minors continued to go well, and the minors wanted to maintain contact with appellant even after they were adopted.
The minors were identified as Native American children with a relationship to the Cherokee Nation tribe in Oklahoma. That tribe recommended that appellants parental rights be terminated. The tribe also agreed with DESS that adoption was in the best interests of the minors.
The counselor for Annaliza, Maria Louisa, and Amelia recommended a reduction in the frequency of visitation between appellant and those minors from once weekly to once monthly. According to that counselor, "I see the children every Wednesday afternoon, the day after their visit with their mother. I often see their conflicted feelings. They have told me on many occasions that they are very happy living with [their prospective adoptive parents]. At other times, they will say they want to go home to live with their mother. On one occasion, Annaliza told me if she could have a wish it would be to go live with Mom and Dad. I responded, `You want to go back to see and hear them fighting and hurting each other.[] She said, `Oh, no. I want them to be nice.[] I then asked if what she really wanted was for them to change. She said, `Yes. [¶] What I see are the children struggling, between wanting to be adopted by [their prospective adoptive parents] and wanting to be with their mother and father. But the truth is, they dont want to be with the mother and father that they had at the time they were removed from their home. What they really want is their idealized idea of what their mother and [father] could be. Changes have not occurred. The idealized is not a reality. Continuous visits with their mother keep this conflict going. It is my clinical opinion that weekly visits with their mother make their transition into adoption more difficult. For this reason I recommend that visitation with their mother be reduced to once a month."
At the section 366.26 hearing, social worker Lauri Neilson testified she believed that the benefits of adoption for the minors outweighed the benefits to them of their continued relationship with appellant. According to Nielson, ending future visits between appellant and the minors would be traumatic for the minors, but not a "crippling trauma." Nielson believed it would be more damaging to the minors to leave them in a less than permanent or stable situation if they were not adopted.
Nielson told the juvenile court that compared to other visitation situations she had witnessed, there was a superficial aspect to the visits occurring between appellant and the minors. Although, in general, she believed the visits had been positive for the minors, Nielson had observed that food and gifts were important elements of the visits. Nielson did acknowledge that on occasion, appellant had demonstrated her relationship with the minors was based on more than merely gift giving. Nielson also admitted that the minors had indicated they wished to maintain contact with appellant.
Letticia testified. She wanted to be adopted but also expected to continue to see appellant. Annaliza told the juvenile court she also wanted to be adopted but would be unhappy if she never saw appellant again. Esmerelda testified she would not favor adoption if it meant she would no longer have contact with appellant. According to Diana, she had maintained a good relationship with appellant. Diana assumed she would continue to see appellant after her adoption, which she favored.
At the conclusion of the February 5, 2003, section 366.26 hearing, counsel for appellant expressed appellants opposition to termination of appellants parental rights. Counsel asked the juvenile court to find an exception to adoption based on the regular contact appellant had maintained with the minors and on the beneficial relationship with the minors established by appellant.
The juvenile court found that the minors were adoptable and determined it would not be detrimental to the minors to terminate appellants parental rights. The court also noted that the minors deserved "permanency." However, after making its ruling, the court observed that ending contact entirely between appellant and the minors would be "very harmful" to the minors.
Discussion
Relying on one of the statutory exceptions to adoption, appellant contends the juvenile court erred in terminating her parental rights because appellant had visited regularly with the minors and they would benefit from a continued relationship with her.
"`At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (& sect; 366.26, subd. (c)(1)(A).) The benefit to the child must promote "the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
In this case, it is indisputable that appellant had visited the minors regularly and that a strong relationship existed. However, the record also showed there was "a great deal of superficial interaction, which is usually centered around gifts or food" at the visits. Moreover, appellant had begun to make inappropriate remarks to the minors. The record also demonstrates that the minors had the capability to develop relationships with other adult figures.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions were wrong to apply a balancing test and overemphasized the importance of the parental role, the record here does not support appellants suggestion that the minors would benefit from continuing their relationship with her just because she had maintained consistent visitation with those minors and because each of them expected contact with appellant to continue after adoption. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Appellant suggests the record establishes the existence of a beneficial relationship between the minors and herself, precluding a finding of adoptability. The juvenile court was authorized to conclude to the contrary. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minors that termination of parental rights would be detrimental to them. (& sect; 366.26, subd. (c)(1)(A).) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minors to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by appellant, the juvenile court found that it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held that substantial evidence supported the juvenile courts conclusion that terminating parental rights would be detrimental to the minors because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534, 1537, 1538.)
In re Brandon C., supra, 71 Cal.App.4th 1530, is distinguishable from the proceedings here. The In re Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile courts implied conclusion that there would not be sufficient benefit to the minors if their relationship with appellant were continued. As the record suggests, the minors had a great need for stability and security, which only adoption could afford.
Appellant suggests that because she maintained a significant parent-child relationship with the minors, which included regular contact, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, also cited by appellant, the Court of Appeal did not find an "exceptional case" where a beneficial relationship existed precluding adoption. Accordingly, the court in In re Casey D. affirmed the order terminating parental rights. (Id. at pp. 53, 54.) However, the court in In re Casey D. did recognize the possibility that a beneficial relationship may exist despite the absence of daily contact between parent and child. (Id. at p. 51.)
In support of her arguments, appellant relies in part on the testimony of four of the minors and on the recent case of In re Amber M. (2002) 103 Cal.App.4th 681. But as much as they wanted to continue some contact with appellant, the minors also made clear their strong desire to be adopted. Moreover, the record contains overwhelming evidence that adoption was in their best interests. In re Amber M. does not assist appellant because there, unlike here, the record contained substantial evidence from several sources of a beneficial relationship that "clearly outweigh[ed]" the benefits afforded by adoption. (Id. at p. 690.)
Here, the issue was as follows: In light of the minors adoptability, would a continued relationship with appellant benefit the minors to such a degree that it would outweigh the benefits the minors would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts implied answer in the negative. On the record before it, the juvenile court could conclude, as it did impliedly, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minors.
In her reply brief, appellant emphasizes both a statement by the juvenile court that ending contact would be very harmful to the minors and the fact that appellant was their parental figure for most of their lives. As to the latter, the record reflects that unfortunately for much of their lives in appellants custody the minors had been subjected to instability and trauma. It is not surprising, however, that in light of their years together, the minors would want to continue to see appellant. Acknowledging that fact is not inconsistent with the courts ruling that only adoption would serve the minors best interests.
After it became apparent that appellant would not reunify with the minors, the juvenile court had to find that an "exceptional situation existed to forego adoption." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this admittedly difficult case, to the contrary, the court determined that the minors would not benefit from continuing their relationship with appellant to such a degree that termination of parental rights would be detrimental to them. Appellant had the burden to demonstrate that the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating her parental rights. (In re Amanda D., supra, 55 Cal.App.4th at p. 821.)
Disposition
The order terminating appellants parental rights is affirmed.
We concur: BLEASE, Acting P.J., and DAVIS, J.