Opinion
F042140.
7-24-2003
In re JESSICA G. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. MELISSA P., Defendant and Appellant.
Valerie E. Sopher, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Melissa P. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughters, seven-year-old Cecilia and one-year-old Jessica. Appellant challenges the termination orders on grounds the court: should have found termination would be detrimental to the minors based on their relationship with her; failed to consider the older child Celicias wishes; and should have required a post-adoption contact agreement. On review, we find no error and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In August 2001, respondent Stanislaus County Community Services Agency (the Agency) initiated juvenile dependency proceedings as to Cecilia after appellant attempted suicide in the childs presence. On admission to the hospital following her suicide attempt, appellant also had a high blood alcohol level and tested positive for methamphetamine. By the following month, the Stanislaus County Superior Court adjudged Cecilia a dependent child of the court, removed her from appellants custody, and ordered reunification services.
In November 2001, appellant gave birth to Jessica. Appellant, at the time, was in a residential treatment program where she appeared to be make progress. Thus, while the court also exercised its dependency jurisdiction over Jessica, the court allowed the infant to remain with appellant. This placement was short-lived, however, when in the beginning of 2002 appellant was asked to leave the program. By February 2002, the court adjudged Jessica a dependent child of the court, removed her from appellants custody, and ordered reunification services.
Despite the provision of reasonable reunification services, appellant was unable to make sufficient progress to reunify with either of her daughters. The court consequently terminated reunification services in August 2002 and set a section 366.26 hearing to select and implement a permanent plan for each minor.
In anticipation of the section 366.26 hearing, the Agency prepared an assessment recommending that the court find each minor adoptable and terminate appellants parental rights. At the hearing, the Agency submitted the matter on its assessment.
For her part, appellant introduced the testimony of a social worker who had supervised visits between the minors and appellant as well as her own testimony in favor of a continued relationship with her daughters. Both the social worker and appellant described the relationship between Celicia and appellant as one of mother and daughter. There was no dispute that the two were bonded. There was conflicting testimony, however, with regard to the relationship between appellant and Jessica. Also, the witnesses offered conflicting evidence regarding appellants attendance at visitation. According to the social worker, appellant attended only three out of six scheduled visits since the court terminated services. Appellant testified she missed fewer visits and appeared to blame the Agency for the missed visits.
After the evidentiary phase, counsel for Celicia advised the court that she spoke with her seven-year-old client who wanted the court to know that: she enjoyed her visits with her mother; she loved her mother; and she would like to continue spending time with her mother. Counsel also reported Celicia was "a little troubled by the recommendation that visitation with her mother be suspended." The social worker had reported that the prospective adoptive parents were opposed to future visitation if the minors were freed for adoption. However, when the court directly asked counsel whether she recommended that the court terminate, counsel replied in favor of termination but urged continued visitation if at all possible.
Upon submission of the matter, the court expressly found no evidence that termination would be detrimental and thereafter terminated parental rights. It also initially authorized continued visitation pending the mothers anticipated appeal but then vacated its order. The court also urged Celicias caretaker to consider some kind of future contact between the child and appellant and ordered that the possibility of a post-adoption contact be discussed.
DISCUSSION
Appellant contends she established that she maintained regular visitation with her daughters and they would benefit from a continued relationship with her. Thus, she argues the court abused its discretion by not finding termination would be detrimental under section 366.26, subdivision (c)(1)(A). As discussed below, we disagree.
Assuming a dependent childs adoptability, the law presumes termination is in the childs best interests and therefore not detrimental. (§ 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) In other words, the decision to terminate parental rights at the section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) As the state Supreme Court has observed, by the time of a section 366.26 hearing for a child who is adoptable, "it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, 851 P.2d 1307.) It is truly only in the exceptional case that a court may select a permanent plan other than adoption. (§ 366.26, subd. (c)(1); In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. (Id. at p. 1351.)
On review of the record, we find no abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318, 867 P.2d 706.) Section 366.26, subdivision (c)(1)(A) does authorize a finding of detriment when a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. However, the court in this case could have properly rejected appellants argument given the conflicting evidence on the question of regular visitation. Furthermore, we agree with the juvenile court that, despite the evidence of an emotional attachment between Celicia and appellant, there was no evidence that the lack of continued relationship would be detrimental to the child.
We add, as this court ruled in In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342:
"the existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.)"
To the extent appellant asks this court to reject the holding in In re Autumn H., supra, particularly the balancing test, we decline the invitation and stand by our position in In re Lorenzo C., supra.
In addition, we reject as utterly meritless appellants claim that the court failed to consider Cecilias wishes as required under section 366.26, subdivision (h).
To the extent appellant claims the law requires a statement by the minor which shows she understands that the proceedings involve termination of parental rights and her wishes regarding that (see In re Diana G. (1992) 10 Cal.App.4th 1468, 1480), this court has expressly rejected such an interpretation of the statute (see In re Leo M. (1993) 19 Cal.App.4th 1583, 1592). Also, while it is true that the Agencys social worker did not take a statement from the seven-year-old in the belief that she was too young, appellant never challenged the assessment on this point and has waived that challenge. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) In any event, the attorney for Cecilia made clear to the court the childs wishes which the court in turn considered, as evidenced by its remarks.
Section 366.26, subdivision (h) states in this regard:
"(h) At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child."
Last, although appellant complains the court should have withheld its termination orders until the prospective adoptive parents entered into a post-adoption contact agreement with her, she cites and our research discloses no authority for such a proposition. Indeed, post-adoption contact agreements are voluntarily entered in by birth relatives and adoptive parents. (Fam. Code, § 8714, subd. (a).) Thus, we also reject this last contention.
DISPOSITION
The orders terminating parental 10 rights are affirmed.