In re JASMINE D., a Person Coming Under the Juvenile Court Law.
Alameda County Social Services Agency, Plaintiff and Respondent,
v.
Tammy D. et al., Defendants and Appellants.
Court of Appeal, First District, Division Three.
*646 Mara Carman, Alameda, under appointment by the Court of Appeal, for Appellant.
Richard E. Winnie, County Counsel in and for the County of Alameda;. Anthony E. Scarr, Deputy County Counsel, for Respondent.
*645 PARRILLI, J.
Here we consider an issue that often arises when a juvenile dependency proceeding reaches the stage at which a permanent plan must be selected for an adoptable child. If a parent has maintained a good relationship with the child through visitation, is that a reason to select a plan less permanent than adoption? This court has interpreted a former statute governing permanency planning as requiring the juvenile court to find the child would not benefit from continuing the parental relationship before it orders the termination of parental rights and places the child for adoption. (In re Cory M. (1992)
If the child is likely to be adopted, the Welfare and Institutions Code directs the court to terminate parental rights and order the child placed for adoption. (Welf. & Inst.Code, § 366.26, subd. (c)(1).)[1] The court's previous orders keeping the child out of parental custody and terminating reunification services are "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 or more of the following circumstances: ¶ (A) The parents ... have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship...." (Ibid.)[2] If the court finds that termination of parental rights is not in the child's best interest, adoption is no longer an option and the court must consider first legal *647 guardianship, then long-term foster care as alternate permanent plans. (§ 366.26, subd. (c)(4).)
Tammy and Kenneth D. appeal from an order terminating their parental rights and finding their daughter Jasmine likely to be adopted. They contend the juvenile court should have found that Tammy's regular visitation and contact with Jasmine justified the preservation of her parental rights under section 366.26, subdivision (c)(1)(A). We conclude the court properly applied the statute and freed Jasmine for adoption.[3]
DISCUSSION
1. The Findings Below
In its ruling from the bench, the court recognized Tammy had been consistent in her visitation with Jasmine, who was three years old at the time of the hearing. However, Tammy never progressed from supervised to unsupervised visits, which the court considered a significant failure. The court acknowledged, though, that "by the definition that we have from the child welfare worker here of what is a parental relationship and what would be the indicia in a visiting context the mother has exhibited many if not all of those qualities. ¶ She has been nurturing and has provided for the child's needs to be taken care of, and feeding and guidance and discipline. However, this Court does not believe that it has adequate evidence to conclude that in addition to those overall positive visits and the connection between the mother and the minor which leads the minor to call her mom that there is, in fact, the type of relationship here between the mother and the minor which would outweigh this child's right to have a stable home. ¶ This child has ... been within the custody of the court within a few days of two years. During that time ... the mother has had at all times ... available to her the possibility of unsupervised visits and of reuniting with her child and has not done so."
The court observed that other than being regular in her visitation, Tammy had complied with none of the requirements of her reunification plan. Services had been terminated after Tammy failed to participate in drug treatment or to obtain housing, despite referrals provided by the social worker. Tammy was homeless, except when she stayed with her father-in-law. She had no employment or other resources to meet Jasmine's needs. Her appearance during visits with Jasmine and with the social worker had led the worker to believe she was still using drugs. The court concluded: "I can't find that there has been ... the type of relationship between the mother and her daughter Jasmine that would overcome the minor's right to have permanency. ¶ By law, the Court must find that the most permanent plan is, in fact, adoption. The preliminary finding having already been made by this Court the only issue before it really is whether the evidence presented rises to the level of ... satisfying the requirements for an exception, and I don't find that the evidence presented is persuasive enough that there is, in fact, a parental relationship between the mother and the minor Jasmine such that to terminate this supervised visitation would, in fact, be detrimental to the minor."
The court added: "I find that the mother certainly has a special relationship with Jasmine, that the mother's relationship is the equivalent of a known family member like that of an aunt, of someone who is special, perhaps even a closer family member than an aunt. This is not a parental relationship."
2. Tammy's Claims on Appeal
Tammy recognizes the court followed the guidelines established by In re Autumn *648 H. (1994)
Tammy argues these cases go far beyond the statutory provision for a finding that termination of parental rights would be detrimental to the child due to the benefit conferred by a continued relationship with the parent. She points out that in Cory M., we required the juvenile court to find the minor would not benefit from continuing the parental relationship before proceeding to terminate parental rights. (Cory M., supra,
3. Cory M.
Cory M. was decided under former section 366.25, which governed permanency planning hearings for children declared dependents of the juvenile court prior to January 1, 1989. (See In re Marilyn H. (1993)
In terms similar to section 366.26, subdivision (c)(1), former section 366.25, subdivision (d)(1) provided: "If the court finds that it is likely that the minor can or will be adopted, the court shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code unless the court finds that any of the following conditions exist: [¶] (A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing this relationship...." (Cory M., supra,
While the exception provided in former section 366.25, subdivision (d)(1)(A) was continued in section 366.26, subdivision (c)(1)(A), the legislation including section 366.26 made major changes in the statutory scheme. To address the problem of lengthy delays in dependency proceedings, particularly when adoption was selected as the permanent plan, the Legislature comprehensively revised the dependency statutes based on recommendations by a task force of experts. The legislation "substantially changed the procedure for permanently severing parental rights in cases where the child is a dependent of the court. It eliminated the need to file a separate Civil Code section 232 proceeding and brought termination of parental rights for dependent children within the dependency process through a selection and implementation hearing pursuant to section 366.26. The task force reasoned that by eliminating the need for a separate action, 'minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.'" (In re Cynthia D. (1993)
Unlike former section 366.25, section 366.26 specified that if an adoptable child had not been returned to parental custody during the period when reunification services were available, this circumstance in itself is "a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental...." Our Supreme Court has read this provision to mean that "in order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D., supra, 5 Cal.4th at pp. 249-250,
It is clear that the statutory revisions including section 366.26 swept away the requirement we identified in Cory M. for a finding of no benefit from a continuing parental relationship before a parent's rights can be terminated. Moreover, the rule of court governing selection of a permanent plan now mirrors the statutory language, instead of stating a positive requirement for such a finding. (Cal. Rules of Court, rule 1463(d)(1).) It is of course proper for the juvenile court to respond to a parent's request for a finding on the *650 exception provided in section 366.26, subdivision (c)(1)(A), as the court did in this case.[4] But a finding of no detriment is not a prerequisite to the termination of parental rights.
4. The Governing Standards
We turn now to Tammy's contention that the Autumn H. and Beatrice M. courts applied an "overbroad statutory construction" to section 366.26, subdivision (c)(1)(A) by requiring the benefit of a continuing relationship with a parent to be balanced against the benefits of adoptive placement, and by ruling that the parent must stand in a "parental" role for the exception to apply. We disagree. Autumn H. has been widely followed by the Courts of Appeal, and both decisions are consistent with the statutory scheme and its interpretation by our Supreme Court.
By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount. (Marilyn H., supra,
The exception provided in section 366.26, subdivision (c)(1)(A) must be considered in view of the legislative preference for adoption when reunification efforts have failed. (Marilyn H., supra,
Construing sections 366.26 and 388 together and in the context of the statutory scheme, the Marilyn H. court stated "[t]he parent's interest in having an opportunity to reunify with the child is balanced against the child's need for a stable, permanent home." (
"The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption." (In re Casey D. (1999)
In Casey D., the Autumn H. court (Fourth District, Division One) noted the other Courts of Appeal that have adopted the Autumn H. standard. (
Tammy notes that whereas Autumn H. suggested the kind of relationship meeting the requirements of the exception "arises from day-to-day interaction, companionship, and shared experiences," the court clarified and broadened its view in 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. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Case D., supra,
We observe that the same court has recently characterized the nature of the determination required under section 366.26, subdivision (c)(1)(A) in an even more flexible way, which we believe is most appropriate: "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child's life spent in the parent's custody, the `positive' or `negative' effect of interaction between parent and child, and the child's particular needs. (Citation.) When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Zachary G. (1999)
*652 We do agree, however, with the implication in Beatrice M. that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one. (Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419,
To sum up, when the court has not returned an adoptable child to the parent's custody and has terminated reunification services, adoption becomes the presumptive permanent plan and parental rights should ordinarily be terminated at the section 366.26 hearing. The parent has the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(A). (Derek W., supra, 73 Cal.App.4th at pp. 826-827,
5. Standard of Review
We arrive last at what is usually the starting point the standard of review. A look at the cases cited in the preceding section of this opinion will disclose that courts subscribing to the Autumn H. standard have routinely applied the substantial evidence test to the juvenile court's finding under section 366.26, subdivision (c)(1)(A). We conclude the abuse of discretion standard is in order. The juvenile court is determining which kind of custody is appropriate for the child. Such a decision is typically reviewable for abuse of discretion. (In re Stephanie M. (1994)
The practical differences between the two standards of review are not significant. "[Evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. *653 Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." (Robert L., supra,
It requires little discussion to conclude the court did not abuse its discretion in this case. The benefit of a stable, permanent adoptive home for Jasmine clearly outweighed the benefit of a continued relationship with Tammy, who despite her successful visitation record had made no steps toward overcoming the problems leading to Jasmine's dependency on the juvenile court. The social worker reported: "Jasmine has lived with the prospective adoptive parents for four months and has adjusted well to the family. She calls the prospective adoptive parents `mommy' and `daddy.' She is particularly close to the 10 year old son. When asked about Jasmine's transition into the family, the prospective adoptive mother stated, `it's like she's always been here.'" This is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A).
DISPOSITION
The order is affirmed.
CORRIGAN, Acting P.J., and WALKER, J., concur.
NOTES
Notes
[1] Further statutory references are to the Welfare and Institutions Code.
[2] None of the other exceptions is at issue here. They arise when:
"(B) A child 12 years of age or older objects to termination of parental rights.
"(C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
"(D) The child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child. This subparagraph does not apply to any child who is living with a nonrelative and who is either (i) under six years of age or (ii) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together." (§ 366.26, subd. (c)(1).)
[3] Kenneth joined in Tammy's briefing but filed no brief of his own. His standing to complain about the termination of his wife's parental rights is questionable, to say the least. (See, e.g., In re Jasmine J. (1996)
[4] An express finding is required by statute only when the court finds that terminating parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1), final par.; see In re Jesse B. (1992)