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In re Gavin S.

California Court of Appeals, First District, First Division
Mar 5, 2008
No. A119029 (Cal. Ct. App. Mar. 5, 2008)

Opinion


In re GAVIN S., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. A.C. et al., Defendants and Appellants. A119029 California Court of Appeal, First District, First Division March 5, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Humboldt County Super. Ct. No. JV050247

MARGULIES, J.

Gavin S. was detained by the local social services agency when A.C. (Father), with whom Gavin was living, was arrested for narcotics offenses. At the time, Gavin was recovering from cancer treatment, yet the police found him unkempt and hungry. During the next two years, Gavin lived with a foster parent. For the entire period, Father struggled with unemployment, mental illness, drug addiction, and homelessness. He visited frequently with Gavin but played no other role in his life. R.S. (Mother) lived with family members and visited Gavin only irregularly.

The juvenile court eventually terminated parental rights and permitted Gavin to be adopted by his foster mother. Father and Mother contend that the juvenile court should have invoked the parental relationship exception and authorized only a guardianship, rather than an adoption. We affirm.

I. BACKGROUND

Alameda County Social Services detained Gavin and filed a juvenile dependency petition with respect to him on July 14, 2005. (Welf. & Inst. Code, § 300.) At the time, Gavin, then six years old, was suffering from cancer and recovering from a recent bone marrow transplant, which compromised his immune system and required a special diet and care. The petition was filed after Father, who had sole care of Gavin, was arrested on narcotics charges. At the time of his arrest, Father was under the influence. He had a history of mental illness, and the social services agency concluded that he was an active user of both marijuana and methamphetamine. Gavin’s medical social worker claimed that, until that time, Father had taken good post-operative care of Gavin, but on the day in question Gavin was hungry, unkempt, and had not bathed in days. Mother was living outside the Bay Area and had little current involvement in Gavin’s life, although she had cared for him in the recent past. Gavin was placed in a clinic for temporary care while undergoing chemotherapy. In the days immediately following Gavin’s detention, Father’s erratic behavior caused him to be taken to a psychiatric hospital for evaluation.

All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.

Mother and Father waived their hearing rights and submitted on the dependency petition. The juvenile court sustained the petition, established visitation rights, precluded Mother and Father from visiting Gavin simultaneously as a result of conflicts, and ordered the provision of reunification services.

During the following months, Gavin was placed in the home of a longtime family friend, Karen P., in southern Humboldt County, and Father moved to Humboldt County. Mother, who was also living in southern Humboldt County, saw little of Gavin, although they spoke on the telephone. The dependency proceeding was transferred from Alameda to Humboldt County in November 2005. Responsibility for Gavin was assumed by respondent Humboldt County Department of Health & Human Services (Agency).

In February 2006, at the time of the six-month review hearing, Father was homeless, unemployed, and living in a vehicle. He had been evaluated by the local office of the Department of Health and Human Services in connection with his mental health problems. Father was cooperating with reunification services, but he acknowledged that the symptoms of his illness interfered with his daily life. Mother was unemployed and living with her parents in rural Humboldt County. She experienced difficulty in finding employment because of the remote location of her home, her lack of a high school diploma, and her use of medical marijuana. Mother was not participating in reunification services and “appear[ed] to become agitated and upset when presented with adult responsibilities.” Gavin was “bright and articulate,” developing normally, and adjusting well to foster care. Because his susceptibility to infection prevented his attendance at public school, Gavin was being taught at home by Karen, who also catered to his unusual health care needs. With Karen’s cooperation, Father was visiting with Gavin weekly, but Mother had had only two visits in a period of two months. Gavin looked forward to and enjoyed the visits of both parents.

At the time of the 12-month review in August 2006, Father was still homeless, living essentially as a transient, with no steady work. For a time he had participated in mental health counseling, but he eventually stopped appearing for appointments, and his mental illness, diagnosed as “severe bipolar disorder,” was untreated. He continued to visit often with Gavin. Mother had become employed and moved from her parents’ home into the home of friends. Her visitation with Gavin and her cooperation with reunification services had increased considerably. She resisted any mental health treatment, despite suffering from considerable anxiety. Gavin continued to be free of cancer, but he could not yet participate in activities that might cause bone fracture. His emotional development was normal; he continued to adjust well to his foster home; and he was slated to begin school in the fall. He looked forward, however, to living with his parents again.

The 18-month review hearing occurred in March 2007, 20 months after Gavin was detained. In the interim since the last hearing, Father had several different living situations, but none had been suitable for living with Gavin, and they were interspersed with periods of apparent homelessness. Father had obtained and maintained treatment for his mental illness, and he had been granted Social Security disability benefits to supplement his income. Father was frequently difficult to locate, however, which caused difficulties when his consent was necessary for Gavin’s medical treatment, and on one occasion it was necessary to obtain a court order to authorize treatment. Father’s judgment was called into question when he took Gavin for a ride on a motor scooter, unwise because of the continued fragility of Gavin’s bones. Father continued, nonetheless, to show great devotion to Gavin and visited him frequently.

Mother had moved in with family members in Mendocino County. She had only sporadic contact with Agency officials and very limited participation in reunification services. She had little contact with Gavin. Gavin was off medication and cancer-free. He had entered the second grade, was described as “psychologically healthy,” and was enjoying the society of schoolmates tremendously.

Based on the above reports, the juvenile court terminated services to the parents and scheduled a selection and implementation hearing for July 2007.

At the selection and implementation hearing, the Agency proposed that Gavin be adopted by his foster mother, Karen. As the Agency explained, “Gavin has an established loving and nurturing familial relationship with [Karen] and her family. Gavin wants to belong to a family knowing that he is not going to move somewhere or not have [Karen’s] family in his life daily. Gavin has overcome significant early life trauma with the help of [Karen’s] family. This permanent connection and the substantial progress Gavin made . . . while with [Karen’s] family makes adoption the most appropriate plan for Gavin.”

Both Mother and Father testified at the hearing. While they did not oppose Karen’s continued primary care of Gavin, their attorneys argued that because of Gavin’s acknowledged love for both of them, the court should appoint Karen as guardian, rather than terminate parental rights and allow Gavin’s adoption.

With the consent of the parties, the court interviewed Gavin in camera. The transcript of the interview fully supports the Agency’s frequent characterization of Gavin as unusually intelligent and articulate. At the outset of the interview, the court explained to Gavin the implications of adoption by Karen—primarily, that he would live in Karen’s home and that she would make decisions about his care. Gavin said that he would “feel good” about adoption by Karen. When it was explained to Gavin that adoption might mean that he would not be able to visit his birth parents any longer, he responded that this was “okay,” although the court noted that he became subdued at the thought.

After taking the matter under submission, the juvenile court terminated parental rights and permitted adoption by Karen. In explanation, the court noted that “the security and sense of permanency that adoption will provide for Gavin outweighs the benefits of continuing a parent/child relationship. I could put it the other way that it hadn’t been shown to the Court that the benefits of continuing the parent/child relationship outweighs the security of permanency that will come from adoption for Gavin. [¶] . . . [¶] [T]he parents in this case have received 18 months of reunification services and have not done what was required or what was asked for them to regain custody of Gavin. I did not find that the evidence, in any way, shows any semblance of any consistent . . . parenting going on by the parents that would make the parent relationship outweigh, again, the permanency of adoption in this case. [¶] While it has been shown that there has been contact, visitation and contact, by the parents, it has been somewhat sporadic. Father, . . . as the report has indicated, is in incarceration; mother’s whereabouts being unknown for many various times. . . . I can’t say that [contact] has been consistent or that the parents have stepped into a parenting role of any kind in this case.”

II. DISCUSSION

Both parents contend that the juvenile court abused its discretion in permitting an adoption, rather than appointing Karen guardian and preserving their parental rights.

“Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) After a child is found adoptable, the termination of parental rights and adoption is considered the best mechanism to ensure the child has “a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 306; In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Accordingly, if the court finds that a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of six specific exceptions. (§ 366.26, subd. (c)(1)(B); In re Mary G. (2007) 151 Cal.App.4th 184, 206–207 (Mary G.).)

The exception relevant here is section 366.26, subdivision (c)(1)(B)(i), which precludes adoption when “termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” It is generally “recognize[d] that interaction between parent and child will always confer some incidental benefit to the child.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) This is not enough to satisfy the parental relationship exception of section 366.26, subdivision (c)(1)(B)(i). “[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]” (In re Dakota H., at p. 229.) What is required is a relationship 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 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 parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575; Mary G., supra, 151 Cal.App.4th at p. 207.) “The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

The parties and case law cite the relevant statutory provision as section 366.26, subdivision (c)(1)(A). The subdivision was renumbered (c)(1)(B)(i) by a 2007 amendment without any apparent change to its substance. (Stats. 2007, ch. 583, § 28.5, p. 3919.)

“[T]he party claiming an exception to adoption has the burden of proof of establishing by a preponderance of evidence that the exception applies. [Citations.] We review the juvenile court’s decision whether to apply the parental relationship exception to termination of parental rights for abuse of discretion. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)

We find no abuse of discretion in the juvenile court’s determination that neither Father nor Mother carried their burden of proof in claiming the parental relationship exception. There is no dispute that Gavin loves both his parents. Further, he valued and respected their efforts to overcome their own personal limitations to act as parents. Yet we cannot say that either relationship is of such intensity or importance that Gavin would be “greatly harmed” by its termination, should that occur.

Karen, a friend of the family before foster care began, worked hard to promote Gavin’s contact with his parents during his foster care, and she has said that she plans to encourage Gavin’s continued relationships with his parents. We do not take this into account in making our decision, however, because the adoption will give Karen discretion to terminate those relationships if she deems it in Gavin’s best interests.

Father struggled commendably to maintain his relationship with Gavin in the face of periodically untreated mental illness, unstable behavior, homelessness, and drug addiction. Following Gavin’s detention, Father fairly consistently saw Gavin weekly, if not more often, and Father occasionally took Gavin for longer periods. It is clear that Gavin enjoyed and valued their time together. Yet Father did not occupy a “ ‘parental role’ ” in Gavin’s life. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) He provided no significant or reliable care to Gavin after his detention beyond generally brief visits, and when Father was needed to approve medical treatment he was difficult to locate and only marginally cooperative. Father can certainly demonstrate “frequent and loving contact, an emotional bond with the child, or pleasant visits,” but he cannot demonstrate something more than that, as required by the exception. (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) The juvenile court did not abuse its discretion in concluding that the benefits of a stable and permanent placement with Karen outweighed the benefits of continued periodic visits with Father.

Father argues that the juvenile court could have obtained the same benefits for Gavin by appointing Karen his guardian while preserving Father’s parental rights. It is true that a guardian has effectively the same rights toward the child as an adoptive parent. (E.g., Guardianship of Howard (1933) 218 Cal. 607, 610 [“A guardian of the person of a minor stands in the place of a parent, whose duty it is to supply that watchfulness, care and discipline which are essential to the young”]; Prob. Code, § 2353, subd. (a); Fam. Code, §§ 302, subd. (b), 6950, subd. (a)(2).) Yet guardianship by its nature is tentative, in that it is subject to court oversight and can be modified at the court’s discretion. (Prob. Code,§ 2102; Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 61.) Neither Karen nor Gavin could be certain that one of the parents would not seek to have the guardianship terminated in the future. Further, Gavin’s position with Karen would be less secure than with an adoption because guardians themselves may request termination. (Prob. Code, §§ 1601, 2660.)

Because of this lack of security, it is simply not true that Gavin would gain the benefits of adoption if only a guardianship were authorized. Adoption is preferred because it provides “a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]” (In re Marilyn H., supra, 5 Cal.4th at p. 306.) It is because appointing a guardian undercuts this objective that a fairly high standard must be met under section 366.26, subdivision (c)(1)(B)(i) before the court will look beyond adoption. As the juvenile court held, the relationship between Father and Gavin was simply not of a quality that would justify depriving Gavin of the substantial benefits of adoption.

Mother was unable to satisfy the statutory requirement of “maintain[ing] regular visitation and contact” with Gavin, necessary to claim the parental relationship exemption. (§ 366.26, subd. (c)(1)(B)(i).) Following Gavin’s detention, Mother’s contact with him was sporadic. While she visited him frequently at times, during the early months and the last few months before the 18-month review hearing she had virtually no visits with him.

In any event, as noted in In re Casey D., “Another way of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) While it was clear that Gavin loved and appreciated his mother, there was no evidence they had the type of parent-child relationship required to invoke the parental relationship exception. We find no abuse of discretion in the juvenile court’s decision terminating Mother’s parental rights.

III. DISPOSITION

The judgment of the trial court is affirmed.

We concur: STEIN, Acting P.J., SWAGER, J.


Summaries of

In re Gavin S.

California Court of Appeals, First District, First Division
Mar 5, 2008
No. A119029 (Cal. Ct. App. Mar. 5, 2008)
Case details for

In re Gavin S.

Case Details

Full title:HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, First District, First Division

Date published: Mar 5, 2008

Citations

No. A119029 (Cal. Ct. App. Mar. 5, 2008)