In Re Brittany C.
Statement of Facts
Appellant has five children. Brittany, who was born on July 15, 1991, is her third child. Brittany and her half-siblings, Michael B. and Anastasia B., became the subjects of a dependency action on February 6, 1997. When
After petitions were filed in the juvenile court, the children were detained. The report, which was prepared for the jurisdictional hearing, disclosed appellant‘s long history of drug and alcohol abuse. Appellant told the social worker that she and her companion had problems paying for food and rent due to their drug use. Appellant also admitted that she continued to use methamphetamine after her children had been detained. Appellant had ten previous referrals to the Department for physical abuse and neglect. Appellant‘s criminal record included three convictions for driving under the influence and one conviction for willful cruelty to a child. The jurisdictional report also noted that appellant‘s two oldest children, Sy G. and Nadien G., lived with their father. Based on psychological damage inflicted by appellant, there was a restraining order that prevented appellant from contacting these children.
On March 13, 1997, the juvenile court declared Brittany and her siblings dependents of the court. The juvenile court removed the children from appellant‘s custody and ordered family reunification services. At an interim review on April 24, 1997, the Department informed the juvenile court that appellant had not met with the social worker to discuss her case plan and had not complied with the court‘s orders. The Department also reported that one of appellant‘s visits with the children had been canceled, because she was under the influence of drugs. Appellant also failed to appear for other scheduled visits.
The six-month review report stated that Brittany continued to live with Carol R. and was attending therapy. Appellant‘s visitation with the children was partially supervised due to her difficulty in managing three children. Brittany had nightmares after difficult visits with appellant. She also acted out during and after visits by kicking and pushing the social worker.
An addendum, which was dated October 2, 1997, stated that appellant had been terminated from her clean and sober living environment for failure to follow the rules. Appellant had attended one of her children‘s soccer games and AA group meeting while under the influence of alcohol. Appellant also failed to communicate with the social worker for one month.
At the six-month review hearing on October 2, 1997, the juvenile court ordered that reunification services to appellant be continued.
The 12-month review report, which was dated March 26, 1998, recommended termination of reunification services. Appellant had tested positive for methamphetamine once, and she had failed to test several times. She had also submitted one abnormally dilute test. Appellant failed to provide attendance sheets that documented 12-step meeting attendance. However, appellant had made progress in having consistent visits. The report also stated that Brittany continued to be cared for by Carol R. Brittany was described as active and independent. She constantly tested limits set by Carol R., and she was also occasionally angry and defiant. Brittany‘s therapist reported that her progress with interpersonal skills was marginal.
A memorandum, which was dated April 23, 1998, informed the juvenile court that appellant had failed to visit her children for the last four visits and had failed to appear for drug testing since March 30, 1998.
An addendum, which was dated May 23, 1998, informed the juvenile court that appellant had been arrested for driving under the influence on February 9, 1998. Appellant was subsequently jailed for an outstanding warrant related to that offense. Appellant was still in custody on June 5, 1998, the date of the contested 12-month review hearing. Following the hearing, the juvenile court terminated reunification services and referred the matter for a
Appellant did not file a petition for writ relief.
On September 17, 1998, appellant filed a
On December 8, 1998, the juvenile court held both the
The juvenile court denied the
The
In an addendum, which was prepared on February 22, 1999, Brittany‘s statements regarding adoption were summarized. Brittany had told a friend that her foster parent was going to adopt her. When the social worker asked Brittany if she wanted to be adopted, she said that she wanted Jon Carter (her siblings’ father) to adopt her. She then said that she wanted appellant, whose name she spelled, to adopt her. Brittany explained that both Jon and Debby let her do what she wanted. Brittany also said that she would be “s.a.d.” if she did not see “Debby” any more. When she was informed of Brittany‘s statements, her therapist stated that Brittany has “a connection” with appellant and that it is understandable that she would be sad about not seeing her.
Brittany subsequently told the social worker that she wanted to be adopted by her foster mother, because she “love[d] her.” Brittany stated that she wanted the juvenile court to know “just that.” The social worker asked Brittany‘s therapist if she felt Brittany was saying what she felt the social worker wanted to hear. The therapist stated that Brittany had always been “very vocal about her needs” and that she would not make a statement just to please the social worker. The therapist reported that Brittany was in denial about terminating visits with appellant and wanted to live with appellant or Jon Carter. The therapist also concluded that Brittany does not see her needs being met by appellant in a parental role.
When the
Justin Henry, the social worker, testified that Brittany did not look to appellant to provide her basic needs. He described Brittany‘s relationship with appellant as positive, but that it was a relationship of friendship and play, not a parent/child relationship. In Henry‘s view, it would not be detrimental to Brittany for appellant‘s parental rights to be terminated.
Appellant testified that her relationship with Brittany was very healthy and improved. While she was incarcerated from July 1998 to November 1998, appellant had visited once a month with Brittany. Since December 1998, she had visited for one hour each week. All visitation had been supervised during this period. Brittany interacted positively with appellant during the visits. Appellant brought food and they discussed school and friends. Appellant also read to Brittany and corrected her inappropriate behavior. At the time of the hearing, appellant was working as a waitress. She planned to move to a three-bedroom house in February.
On March 9, 1998, the juvenile court terminated appellant‘s parental rights. The juvenile court also stated: “The relationship with her mother is a comfortable relationship in the aspect that Brittany enjoys seeing her mother, she enjoys her as a friend, and I think that, yes, she will miss that relationship, but it is not a parental relationship, and the court must balance the loss of a friend with the guarantee of having a permanent adoptive home, and the guarantee of the adoptive home weighs in favor of the child.”
Discussion
When a hearing is held pursuant to
Appellant contends that the language of
This court interpreted
Contrary to appellant‘s position, Autumn H.‘s requirement that the parent prove that the child would be greatly harmed by termination of parental rights must be seen in context. Where a parent has failed to reunify with his or her child, and the juvenile court has found that the child is likely to be adopted, then the burden shifts to the parent to show exceptional circumstances. (In re Brian R., supra, 2 Cal.App.4th 904, 923-924.) To require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law, that is, the protection of “children who are physically, sexually or emotionally abused, neglected or exploited. (
We also interpret the statute as requiring that the parent must show that he or she has a parent/child relationship with the child, rather than a friendship. While friendships are important, a child needs at least one parent. Where a biological parent, such as appellant, is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. Thus, we agree that “[I]nteraction between [a] natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Beatrice M. at pp. 1418-1419.) To hold otherwise would deprive children of the protection that the Legislature seeks to provide. (
Here the evidence supports the juvenile court‘s finding that appellant failed to establish that she had maintained regular visitation with Brittany and that Brittany would benefit from continuing the relationship. Appellant has a substantial history of alcohol and drug abuse. As in almost every dependency case involving substance abuse, appellant waited far too long to take the necessary steps toward recovery. During the first 12 months of reunification services appellant did not visit Brittany consistently, and she failed to stop using drugs and alcohol. Between April 7, and November 4, 1998, appellant was incarcerated, and thus she was able to visit Brittany only once a month. Between December and March 1998, appellant visited Brittany once a week, and was strictly monitored in a substance abuse program. Thus, appellant visited consistently while she was incarcerated and during the three months following her release. However, Brittany did not see her needs being met by appellant in a parental role. Instead it was Carol R. who had provided Brittany with food, shelter, and guidance each day for two years. Though appellant and Brittany enjoyed a friendship, it did not resemble the daily nurturing that is characteristic of a parental relationship. Accordingly, the juvenile court did not err in concluding that the
Appellant next contends that the juvenile court retroactively applied the 1998 version of
Disposition
The order is affirmed.
We concur:
BAMATTRE-MANOUKIAN, Acting P.J. WUNDERLICH, J.