In Re Beatrice M.
OPINION
Mario M. (father) and Christina C. (mother) appeal a judgment terminating their parental rights to their twin daughters, Beatrice and Lupe M. They argue on appeal that their case came within the exception in
Beatrice and Lupe were born on May 17, 1990, suffering from prenatal exposure to heroin and cocaine. They were placed on the following day with their maternal aunt Natalie A., and have lived with her since. A public health nurse has followed the girls’ progress since that time.
Petitions under
The six-month review hearing was held on December 14, 1990. Mother was in drug rehabilitation, and regularly visiting the girls. Father had made telephone contact with the social worker and signed a service plan. While still showing the effects of prenatal drug exposure, the girls were doing well in their aunt‘s care. The social worker recommended a continuation of reunification.
The 12-month review hearing under
The 18-month,
Starting in July, mother did not show up for chemical testing, and also failed to attend Narcotics Anonymous/Alcoholics Anonymous meetings, as required by the service plan. Father was incarcerated and was believed to be unavailable for at least two years. Due to the parents’ continuing problems with substance abuse, and mother‘s failure to complete the goals of her service plan, the social worker recommended termination of reunification services. The juvenile court made orders effectuating these recommendations, and scheduling a
This hearing was conducted on April 13, 1992. The social worker recommended long-term relative care with the maternal aunt. Mother was then incarcerated for a probation violation, and father was also in state prison. The aunt had applied to adopt the minors, but the adoptive home study had not yet been completed, and due to an inadequate number of bedrooms, she could not be licensed as a foster home in the interim. A permanent plan of adoption would replace the current permanent plan in the near future. Guardianship was not recommended because it would result in a reduction of the aunt‘s already marginal income which could result in detriment to the children. A permanent plan of long-term foster care was adopted.
A contested
Mother appealed from these orders, and her appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]). We reviewed the entire record, concluded there were no arguable issues on appeal, and affirmed the juvenile court‘s orders. (In re Beatrice M. (Oct. 5, 1993) H010694 [nonpub. opn.].)
Mother filed a
The second
Mother and father both appeal these orders.
Discussion
A. Section 366.26, Subdivision (c)(1)(A)
At the selection and implementation hearing held pursuant to
The social worker testified at the
The social worker also testified that during the previous year, mother‘s visits had been regular, and that her visits were beneficial to the girls; “[c]hildren benefit from having a lot of family who love them. It has to be beneficial. . . . [¶] The more family they have, the better it is for them.” She also opined, however, that if the mother were no longer able to visit the girls, “It would be sad but it wouldn‘t be detrimental.”
Mother testified that she saw both herself and Natalie as mothers to the girls, but since they had been with their Aunt Natalie since birth, she considered her their “primary mother.”
At the end of the hearing, the juvenile court stated: “[I]t is my understanding that the Legislature intended in the 366.26(c)(1) to refer to circumstances where children would benefit from a continuing parent/child relationship with the parent, and that in those circumstances it would be inappropriate to terminate parental rights. And, in fact, the Code section says termination would be detrimental to the child because the parents have maintained regular visits, and the child would benefit from a continuing parent/child relationship. I don‘t believe the evidence shows that in this case. [¶] The evidence does indicate that the children do benefit from the relationship and the contacts that they have with their parents, and I don‘t think there‘s any question about that. But the evidence does not place these children within that exception. [¶] I think [the social worker] is right, to the extent that she indicates [aunt] Natalie has done beautifully. Despite all the things that have happened, despite the father was in prison or jail for a long period of time in these children‘s lives, when he comes out, she immediately allows him to begin a relationship with these children, and she has allowed this mother to have an ongoing relationship with these two girls. . . . Natalie has been able to . . . do what she feels is appropriate for the best interests of the children, and she apparently feels that having contact and a relationship with the parents, with the biological parents benefits these children. . . . [¶] Termination of parental rights would not be detrimental to these children, as defined by Section 366.26(c)(1) of the Welfare and Institutions Code.”
(1a) Appellants argue that since there was evidence the parents regularly visited the girls and that the girls would benefit from continuing the relationship, the juvenile court erred in concluding appellants did not come
(2) Although the kind of parent/child relationship which must exist in order to trigger the application of
(1b) We agree with this analysis. The purpose of
At this point the focus of the dependency proceedings shifted, properly, to planning an alternative to the girls’ return to mother and father. The social worker had reported from the time of the six-month review that the girls were thriving in the care of their Aunt Natalie, who had expressed a desire to care for them permanently. Since the juvenile court found the girls adoptable, a finding appellants do not contest, the juvenile court was required to choose adoption as the permanent plan, absent detriment to the girls from terminating parental rights. (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250 [264 Cal.Rptr. 4].)
We do not agree that frequent and loving contact with the girls is sufficient to establish the “benefit from a continuing relationship” contemplated by the statute. No matter how loving and frequent their contact with
The social worker testified at the
The girls’ aunt had also determined that having contact with mother and father, once they were free from substance abuse and prison, would be beneficial to the girls. This is a credit to her judgment and generosity. It does not follow that since the girls have a loving and happy relationship with mother and father, however, that the juvenile court should have determined the statutory exception to termination of parental rights applied.
Appellants do not wish the girls returned to their custody, but argue that guardianship by Natalie would give them a better chance of ensuring their continuing relationship with their daughters. The Legislature has decreed, however, that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, “Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.” (Jones T. v. Superior Court, supra, 215 Cal.App.3d at p. 251.)
The social worker testified that it would not be detrimental to Beatrice to terminate her parental relationships with mother and father, because “The relationship that she has with her mother is a close relationship, as she has with the extended, with other members of the extended family. She sees her more in the role of an aunt. The relationship she has with her father is a developing relationship. She has only known him for the past few weeks.” As to Lupe, the social worker testified, similarly, that terminating parental rights would not be detrimental because “the relationship that she has with her mother is more like the relationship she has — that one would have with
Since the Legislature has mandated that dependent children who cannot be reunified with their parents be provided the most stable possible homes, we conclude the juvenile court correctly interpreted
B. Guardianship
The previous discussion also controls our resolution of the next issue raised by appellants; that guardianship, and not adoption, was in the best interests of the girls. They argue that guardianship would have ensured the continuation of their relationship with the girls, but that terminating their parental rights gave neither parents nor children any such guarantees.
They are correct that a permanent plan of adoption does not guarantee their continuing relationship with their daughters. But parental rights must be terminated to free children to be adopted into a new, permanent family. And guardianship is only the best possible permanent plan for children in circumstances where the exceptions to terminating parental rights in
C. Parental Relationship
There is little more to add to dispose of appellants’ third issue, that the juvenile court incorrectly concluded that mother did not have a parental relationship with the girls. As we have already discussed, the social worker testified that both girls view Aunt Natalie as their mother, and that while their relationship with mother was loving and affectionate, they viewed her more as an aunt than a mother. It is evident from this record that Natalie occupied the primary parental role for the girls, and that their relationship with their mother was akin to that of an extended family member. The juvenile court thus correctly concluded that mother‘s relationship with the girls was not a parental one.
D. Expert Witness
(3) Respondent Department offered the social worker as an expert “in the assessment and selection of permanency planning for a dependent minor.” All other counsel had an opportunity to question her on voir dire. The
The social worker testified she was not familiar with the legal process by which a guardianship is terminated. Father‘s counsel then asked her if, in light of this, she could really assess the permanency of a guardianship. She responded that one of the reasons she considered adoption more permanent than guardianship is that guardianship could be terminated. Counsel next suggested that “you don‘t know what the reasons for that termination would be, in terms of protecting the interests of the children.” The social worker replied that she did not know the “legal issues.” On this basis, counsel asked the juvenile court to strike the social worker‘s expert testimony in preferring adoption over guardianship, a request the court denied.
Appellants point only to the social worker‘s lack of knowledge of the legal procedures for terminating guardianship as a reason she should have been denied expert witness status. Her lack of knowledge of these procedures is unrelated to her expertise, however. She testified as to the girls’ adoptability; the suitability of adoption, rather than guardianship, as the appropriate permanent plan for them; and whether terminating mother and father‘s parental rights would be detrimental to them. Appellants have pointed to nothing which leads us to question the trial court‘s decision to allow her, on the basis of her education, training and experience, to testify as an expert on these matters. We therefore conclude the trial court properly exercised its discretion in qualifying the social worker as an expert witness.
Disposition
The judgment terminating parental rights is affirmed.
Premo, Acting P.J., and Bamattre-Manoukian, J., concurred.
Appellants’ petition for review by the Supreme Court was denied January 19, 1995.