Opinion
B166967.
10-31-2003
In re JASON W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GINA E., Defendant and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Gina E. appeals from the order terminating her parental rights over her children, Jason W., Serena E. and Paulena E. (Welf. & Inst. Code, § 366.26.) Ginas sole contention on appeal is that the exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A), precluded termination of her parental rights. We disagree and affirm the order.
In the dependency petition and throughout the appellate record, Paulena is referred to as "Paulina." We will spell the childs name as it appears on her certificate of birth.
All statutory references hereinafter are to the Welfare and Institutions Code.
FACTS
As a result of Ginas long history of substance abuse, the Department of Children and Family Services (DCFS) filed a petition pursuant to section 300, subdivision (b), on behalf of the children. At the time the petition was filed, Jason was 4, Serena was 3 and Paulena was 1. Paul E., Serena and Paulenas presumed father, had died of cancer. The whereabouts of Jasons alleged father, Joe A., were unknown.
The dependency court detained the children and ordered monitored visitation for Gina. The court later determined that the home of Serena and Paulenas paternal great aunt and uncle, Manuel and Helen S., was suitable for placement and ordered all three children detained in that home.
Gina signed a waiver of rights and pled no contest to an amended petition. The court sustained the petition and proceeded to disposition. The court declared the children dependents of the court and removed them from Ginas custody. Family reunification services and monitored visits were ordered. The court further ordered Gina to complete a program of substance abuse counseling with random drug testing, parenting and individual counseling.
During the first six months of the reunification period, Gina continued to abuse drugs. She failed to comply with case plan objectives and had minimal contact with her children. She had been incarcerated in County Jail and had three pending criminal proceedings, including arrests for possession of a controlled substance, for being under the influence of a controlled substance and for disorderly conduct/prostitution. Nevertheless, based on DCFSs recommendation, the trial court ordered another six months of reunification services for Gina.
Thereafter, although Gina missed some drug tests and had a short relapse, her compliance with the case plan improved remarkably. Gina visited the children weekly, and her visits were positive. The social worker who monitored the visits described Gina as "nurturing and supportive." Gina displayed "knowledge of age appropriate behavior of her children" and "maintain[ed] a relationship with her children by following the conditions of the visitation plan." Although Jason was reported to be "distant" from Gina, Serena and Paulena were very bonded to her.
At the 12-month review hearing held on June 13, 2002, although noting that "this is a close case," the juvenile court found by a preponderance of the evidence that there was a substantial probability that the children would be returned to Gina by the 18-month date of October 18, 2002. The court determined that Gina had "consistently and regularly contacted and visited the child[ren]," that she had made significant progress in resolving the problems that led to the childrens removal and had demonstrated the ability to complete the programs. Based upon its findings, the court ordered reunification services to continue to the 18-month date.
By the time of the 18-month review hearing (§ 366.22) held on October 18, 2002, Gina had experienced substantial setbacks, prompting DCFS to recommend termination of family reunification services. On June 25 and August 15, Gina had tested positive for drugs. She had missed other drug tests and had been terminated from her program. Gina had not been in contact with the social worker, and, until she appeared in court, her whereabouts had been unknown.
The social worker changed Ginas visits, which had been unmonitored until July, to monitored due to her positive drug tests. Prior to the change, Gina had had 11 unmonitored and appropriate visits with her children. After the change, Gina missed some of her monitored visits.
Jason had become closer to his mother. He sought her attention and her conversation. Jason kissed and hugged her hello and goodbye. Jason was disappointed when Ginas visits reverted to monitored ones. He also was disappointed that he would not be returned to her. Serena asked about her mother and when she would be able to live with her. She "often ha[d] a hard time saying goodbye at the end of a visit" and "appear[ed] to have a strong bond and attachment with the mother, caregivers and siblings." Paulena showed affection toward her mother, siblings and caregivers.
The trial court determined that Gina had complied only partially with her case plan. Although she had been doing well, she relapsed. The court found by a preponderance of the evidence that continued jurisdiction was necessary and the children could not be returned to Gina. The court terminated family reunification services after first finding that reasonable reunification services had been provided. The court determined that it was in the childrens best interests for visitation with their mother to continue and ordered that visits continue to be monitored.
The court scheduled a selection and implementation hearing (& sect; 366.26) and advised Gina of her right to seek writ review of its ruling. The court addressed Gina, stating: "I found this report very sad because your children seem to love you and they seem to need you. They are upset and disappointed that your visits have gone back to being monitored. They miss you, and theyre about to be adopted. So I dont know what to tell you. You need to get yourself back into a program and try again for you and for them because even if they are adopted by their paternal aunt, you may well still be a part of their lives. Theyre going to need you to be clean." Gina said she understood. The court added, "And you were doing great. You need to get back up on the horse."
At the time of the February 18, 2003, selection and implementation hearing, Gina was in custody again. In its initial section 366.26 report, DCFS recommended termination of Ginas parental rights and adoption for all three children by their paternal relatives. The prospective adoptive parent was Desiree S., the daughter of the paternal great aunt and uncle who were the childrens foster parents. Desiree lived with her parents and was 36 years old.
DCFS reported that since the last hearing, Gina had visited her children only twice, on October 22 and November 19, 2002. On December 4, Gina had been incarcerated, and since that date, she had minimal contact with her children. The matter was continued for a contested section 366.26 hearing.
That hearing was held on May 1, 2003. DCFS continued to recommend termination of Ginas parental rights. The children, who were doing well, had not seen their mother since February 14. Gina had called them three times, however. When Gina was released from jail, she asked to visit with her children. She was hospitalized, however, and was unable to attend the visit that had been arranged. DCFS further reported that the children were attached to Desiree S. who wanted "to provide the minors with a stable and loving home." Desiree had been a part of the childrens life "since the beginning," and she had played an active part as an aunt. "She is ready to have the official role of being the mother."
Gina objected to the termination of her parental rights. Her attorney advised the court that Gina admitted that "because of the time shes spent [in jail], sometimes shes not been able to visit with the children as much as she could have; however, given the circumstances, shes tried very hard to maintain a bond with her children, and she loves her children very much."
Counsel asked the court to view the adoption assessment and pay particular attention to the statement that Serena appears bonded to her mother and wants to be returned to her. Based on this statement, counsel asked the court to find that the parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) applied. Counsel further urged the court to find that, since Serena was part of a sibling group, all the children fell within the exception and therefore not to terminate Ginas parental rights.
After entertaining argument by all counsel, the court found by clear and convincing evidence that the children were adoptable and that it would be detrimental to return the children to their mother. The court found the section 366.26, subdivision (c)(1)(A), exception to be inapplicable and noted that "[t]he fact that the five year old cares about the mother does not rise to the level needed." More specifically, the court stated that Gina had not visited her children regularly. She therefore could not meet the first prong of the exception.
The court stated, "The bottom line here is this case came in, for the most part, based on drug issues and the neglect that often goes along with that. Nothing has changed. [¶] So mothers statements that she would like to reunify and that she loves her children are well and good, but whats clear to me is mother does not love her children as much as she loves her drugs. That kind of love can certainly not outweigh the benefit to these children of staying together in a home where they are [a] priority, they are loved, where they are together and a home that wants the most permanent plan for them." The trial court terminated Ginas parental rights over Jason, Serena and Paulena and transferred their care, custody and control to DCFS for adoptive planning and placement.
CONTENTION
Gina contends there was a compelling reason to apply the exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A), and substantial evidence does not support the courts finding that the exception did not apply. For the reasons that follow, we conclude that the trial court properly determined the exception to termination of parental rights did not apply.
DISCUSSION
Section 366.26 provides for the termination of parental rights or the establishment of a guardianship or other permanent plan for dependent children of the juvenile court who have not been reunified with their parents within the statutory time period. In determining which of these alternatives to choose, the court must adhere to the procedures set forth in subdivision (c). (Subds. (b), (c).)
Subdivision (c)(1) of section 366.26 provides in pertinent part that "[i]f the court determines, . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. . . ."
When dependency proceedings reach the permanency planning stage, "`. . . the goal of the proceedings changes from reunifying the family to locating a permanent home for the child apart from the parent. [Citation.] The permanency planning hearing aims `to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker. [Citation.] The abiding principle at the permanency planning hearing is the welfare and best interests of the child. [Citation.]" (In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.)
Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573; In re Jesse B. (1992) 8 Cal.App.4th 845, 851.) Only if adoption is not possible or is not in the minors best interests, or exceptional circumstances exist, should a less permanent plan, such as guardianship, be considered. (In re Autumn H., supra, at p. 574.) Once the trial court has found by clear and convincing evidence that the child should not be returned to the parent and the child is likely to be adopted, it is the parents burden to show exceptional circumstances exist, making it proper to implement a permanent plan other than adoption. (Ibid.)
There is always "some incidental benefit" to a minor from the "existence of interaction between natural parent and child." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) This incidental benefit is insufficient to meet the requirements of the exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A), however. (In re Lorenzo C., supra, at p. 1342.)
The parent must demonstrate "that there exists `a significant, positive, emotional attachment from child to parent and that [the] relationship of the parent to the minor is one of parent and child rather than one of being a friendly visitor or friendly nonparent relative such as an uncle." (In re Jason E., supra, 53 Cal.App.4th at p. 1548; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1319.) The parent must show that the benefit to the child from maintaining the relationship "outweighs the well-being the child would gain in a permanent home with new, adoptive parents." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342; In re Beatrice M., supra, at p. 1418.) Evidence of some bonding and visitation between parent and child, "`frequent and loving contact" (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534), is insufficient. (Ibid; In re Lorenzo C., supra, at p. 1342; In re Jason E., supra, at pp. 1548-1549.)
On appeal from an order terminating parental rights pursuant to section 366.26, the question is whether the trial court abused its discretion in deciding to terminate parental rights. (In re Jessie G. (1997) 58 Cal.App.4th 1, 9; In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.) The trial courts decision will be upheld if supported by substantial evidence. (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250; see also In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Substantial evidence supports the juvenile courts determination that Gina did not maintain regular visitation and contact with her children. Although at times Gina visited her children regularly, she did not do so consistently throughout the entire reunification period. Between the time of the 12-month and 18-month review hearings, as a result of her addiction, Gina suffered a number of setbacks that prevented her from visiting with her children regularly. Gina had enjoyed unmonitored visits with her children until July 2002 when the social worker changed her visits to monitored due to her positive drug tests.
That Gina visited her children when she could is not sufficient. Her inability to visit her children was related directly to her drug addiction. Ginas failure to establish the first prong of the exception was sufficient reason alone to conclude, as the juvenile court did, that Gina had not established the section 366.26, subdivision (c)(1)(A), exception to termination of parental rights.
Apart from the issue of visitation, Gina also failed to establish that her relationship with her children "`promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109; In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342; In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Loving contacts and an emotional bond simply are not enough to establish a parent/child relationship sufficient to overcome the preference for adoption. (Andrea R., supra, at p. 1108.) We conclude that the trial courts decision to terminate Ginas parental rights over Jason, Serena and Paulena was the correct one.
The order is affirmed.
We concur, VOGEL (MIRIAM A.), J. and MALLANO, J.