In
re A.H.
Filed 8/21/12 In re A.H. CA6
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re A.H., a Person Coming Under the Juvenile Court Law
H037911
(Santa Cruz County
Super. Ct. No. DP002066)
SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
S.V.,
Defendant and Appellant.
Appellant challenges the termination of her
have applied the parent-child beneficial relationship exception to overcome the
statutory preference for adoption of an adoptable child. But appellant did not appear at the hearing
terminating her parental rights, did not ask the juvenile court to apply this
exception, and arguably forfeited her right to have the exception considered on
appeal. Although we exercise our
discretion to consider the exception on appeal, we conclude that it would not
have been an abuse of discretion for the juvenile court to have found there was
no “compelling reason†to determine that terminating appellant’s parental
rights would be detrimental to the child. Therefore, we affirm the order terminating
appellant’s parental rights.
FACTS AND PROCEDURAL BACKGROUND
Appellant is the mother of A.H. She has another son, who is 11 years older
than A.H. Her parental rights to another child had been terminated some time
before, apparently because of appellant’s inability to conquer
On March 6, 2009, when A.H. was a month
old, the Department filed a petition to make him a dependent of the juvenile
court under Welfare and Institutions Code
protect) and (j) (abuse of child’s sibling).
The petition alleged that
appellant had a history of drug abuse and was using marijuana during her
pregnancy and after A.H. was born. She
had a medical marijuana card; marijuana use was authorized because of back
pain. She also had
abuse problems and a record of eight arrests for drug-related crimes between
2006 and 2008. Appellant and the father were homeless.
The Department’s initial
investigation revealed that appellant was caring adequately for A.H. despite
the fact that she and A.H.’s father were homeless. A.H.’s brother was under the Department’s
jurisdiction, but, like A.H., was living with appellant in temporary housing,
and appellant was satisfying the requirements of a family maintenance services
plan with regard to him.
At
a contested jurisdiction/disposition
hearing held on April 29, 2009, the juvenile court
sustained the dependency petition. The
court disagreed with a social worker’s written recommendation that appellant
keep custody of A.H.—apparently the court was of the view that it might be
unsafe for A.H. to be living with appellant—and so it ordered a disposition
hearing on that question.
The
Department’s report for the disposition hearing adhered to the prior
recommendation to provide family maintenance services. The report stated that appellant was
complying with the child-rearing and substance abuse programs in which she was
enrolled. A.H. was healthy. But appellant was still testing positive for
marijuana, as was A.H.’s father, and appellant admitted that “her marijuana use
may be beyond her control.†The parents
had, however, found housing for themselves and the two boys. At the disposition hearing held on June 5, 2009, the court changed
its view about A.H.’s presence in the home and ordered
parents for six months.
The six-month family
maintenance review hearing was held on December 1, 2009.
Appellant was still testing positive for marijuana, and a psychological
examination showed that she had problems achieving sobriety and finding stable
housing and work—although by the time of the six-month hearing the family had
found stable housing. The Department
recommended continued family maintenance services and the juvenile court
agreed. Shortly afterward, the
Department filed an interim review report stating that A.H.’s older brother,
who had special needs and had been a physical danger to A.H. before, was
treating him better now.
The Department’s 12-month
review report was much the same: the
parents were making progress and A.H. was doing well, even though appellant
continued to use marijuana—a choice she justified by stating it was less
harmful than her prior methamphetamine use.
She claimed to have abstained for the past two years from
methamphetamine, which, as the social worker quoted her, had been “my primary
drug of choice.†The father had missed
numerous drug tests and in the three he underwent he tested positive for
marijuana. Despite these difficulties,
the Department recommended continuing family maintenance services and stated
that the family’s progress was good enough that the case should be considered
for dismissal at a hearing to be scheduled two months later.
Before the dismissal hearing
could happen, however, the Department filed a supplemental dependency petition
under section 387 on October 28, 2010, because of emergency circumstances. The petition alleged that the father engaged
in an argument with appellant and broke windows in the home as he was
withdrawing from a self-administered dose of methamphetamine. A.H.’s brother, who was now 13 years old,
wielded an ax and, screaming and cursing, threatened to kill appellant. Appellant did not call law enforcement
authorities for help—instead, a neighbor did after hearing the commotion. A.H. was found walking barefoot amid remnants
of the broken glass. Despite all of
this, responding sheriff’s deputies did not take the children away, although
they arrested the father for trying to fight with a neighbor. But the Department sought to have A.H.
removed from the home forthwith, and it changed its prior recommendation to one
that would instead have proceedings begin that could lead to appellant’s
parental rights being terminated and A.H. freed for adoption. The social worker opined that appellant had
failed to benefit from years of social services and, because of her continued
drug abuse and inability to control the children’s father, could not safely
rear A.H. After the failure of an
initial plan in which the juvenile court and parties agreed to place both boys
with A.H.’s day-care provider, with appellant allowed to visit so as to
breastfeed A.H., A.H. was placed in foster care. The father became homeless again.
The
jurisdiction/disposition hearing on the supplemental
petition occurred on January 31, 2011.
The juvenile court sustained the petition’s allegations but, against the
Department’s recommendation with regard to appellant, ordered that family reunification
services be provided to both parents regarding A.H., including supervised
visitation. The court formally warned the parents that further lack of progress
could result in their losing their parental rights.
The juvenile court ordered a six-month review
hearing on the supplemental petition for July 28, 2011. Again,
however, events intervened. On
June 13, 2011, the Department filed a modification petition under section 388
to terminate the family’s reunification services. It alleged that appellant had effectively
abandoned her case plan. Except for
attending two counseling sessions, she was not participating in the services
being provided to her. Though maintaining
successful visitation with A.H. in March, beginning in April she had missed
three visits and was late for another three.
She showed up for one visit apparently intoxicated. Both parents were again homeless; appellant
stated that she was sleeping in a park and complained that she had no way to
ascertain the time of day to be on time for visits. Appellant had been convicted of burglary in
April and was on probation for the offense.
At a hearing on July 14,
2011, at which appellant failed to appear despite having notice of it, the
juvenile court granted the Department’s modification petition. It terminated the parents’ reunification
services and scheduled a section 366.26 hearing to decide on a permanent plan
for A.H.’s future. Meanwhile, it allowed
appellant to visit A.H. This she had to
do in jail initially, because she had been arrested for fraud. The alleged fraud involved one or more credit
and/or automated teller machine cards.
On being released, appellant canceled the next scheduled visit, set for
August 31, 2011, and no visits occurred in September. According to appellant, between then and December 9,
2011, when the section 366.26
hearing was scheduled, there is no record of whether she visited or did not
visit A.H.
The
Department’s report for the section 366.26 hearing, which was in fact held on December 9, 2011, recommended terminating appellant’s parental rights and preparing for
A.H.’s adoption. The report
explained that A.H. “is an active, affectionate happy 2-year-old boy. . .
.†It stated: “The quality of the
relationships between [A.H.] and his parents and half brother is not one of a
family unit. The minor has not lived
with his family since October of 2010.
While in [the parents’] care he experienced neglect [and] exposure to his
parents’ untreated mental health issues, . . . their substance abuse
and his brother’s mental health issues.
[The] parent/child relationship has been disrupted by his placement in
foster care and his parents[’] absence from his day to day life. . . . [T]he parents’ mental health issues,
substance abuse, incarcerations, lacking parenting skills, domestic violence,
and their inability to provide adequate/consistent care for the minor have all
interfered with the parent/child relationships between the minor and his
parents.â€
A.H.
had been placed in an adoptive foster home on August 22, 2011. The Department viewed the placement
positively and contended that it would be good for A.H. to be adopted by his
foster parents. “[A.H.’s] prospective adoptive parents have
expressed a desire to move forward with adopting [A.H.] and a commitment to caring for him permanently.†“[T]he
prospective adoptive family [is] very loving and [is] developing a close
relationship with [A.H.]. They are
dedicated to making sure that [A.H.’s] needs are met and addressed and that he
is loved and cared for within their family.
They are very committed to enriching [A.H.’s] life and integrating him
in to their lives and creating a family that is child-centered.â€
Ordinarily
a section 366.26 hearing is contested, with the affected parent or parents
appearing and testifying. A.H.’s
parents, however, did not show up for the hearing despite having notice of
it. Their counsel requested a
continuance but the juvenile court denied it and proceeded to terminate parental rights for both appellant
and A.H.’s father. The court found the
existence of clear and convincing evidence that A.H. was likely to be adopted
and anticipated that A.H.’s adoption would be finalized by June 5,
2012.
DISCUSSION
Appellant
argues that the parent-child beneficial relationship exception to the statutory
preference for adoption applies to her.
The
Department observes, accurately, that because appellant failed to appear for
the hearing at which the juvenile court terminated her parental rights, the
court was never expressly asked to consider the applicability of the
parent-child beneficial relationship exception.
In the Department’s view, appellant has forfeited this claim on
appeal. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
In
turn, appellant argues that the juvenile court had to be aware of the possible
applicability of the exception and, in making its ruling terminating her
parental rights, it implicitly found it inapplicable. She also argues that this court should
exercise its discretion to decide her claim on the merits even if arguably she
forfeited it on appeal.
In
most cases, unless a statutory provision disallows it, “an appellate court may
review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to
its discretion.’ †(
887, fn. 7.) We will exercise our
discretion to consider appellant’s claim on the merits. Terminating a parent’s rights vis-à -vis her
natural-born child is a most serious matter and determining the merits of a
claim on appeal after this has occurred is desirable if the law will allow for
it.
Accordingly,
we turn to the merits of appellant’s claim.
With
regard to dispositions in juvenile dependency cases, the best interest of the
child controls. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) Adoption is the preferred alternative. (§ 366.26, subd. (b), (b)(1), (b)(2),
(b)(5).) “ ‘The permanent plan
preferred by the Legislature is adoption.
[Citation.]’ [Citation.] ‘ “The Legislature has decreed
. . . 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 plan and
secure alternative that can be afforded them.†’ †(In re
Josue G. (2003) 106 Cal.App.4th 725, 732.)
As
noted, appellant claims that even if she did not bring the matter to the
juvenile court’s attention, the court erred by not finding the existence of a
statutory exception to the adoption preference, specifically the parent-child
beneficial relationship exception to adoption defined in section 366.26,
subdivision (c)(1)(B)(i).
“Adoption
must be selected as the permanent plan for an adoptable child and parental
rights terminated 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: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.[’] [¶] . .
. [¶] . . . (§ 366.26, subd. (c)(1)(B)(i).) ‘[T]he burden is on the party seeking to
establish the existence of one of the section 366.26, subdivision (c)(1)
exceptions to produce that evidence.’
[Citation.]†(In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.)
Review of a juvenile court determination of the
applicability of the parental relationship exception under section 366.26
occurs under a hybrid substantial evidence–abuse of discretion standard. (In re Bailey J., supra,
189 Cal.App.4th at pp. 1314-1315.)
“Since the proponent of the exception bears the burden of producing
evidence of the existence of a beneficial parental . . .
relationship, which is a factual issue, the substantial evidence standard of
review is the appropriate one to apply to this component of the juvenile
court’s determination.
Thus, . . . a challenge to a juvenile court’s finding
that there is no beneficial relationship amounts to a contention that the
‘undisputed facts lead to only one conclusion.’
[Citation.] Unless the undisputed
facts established the existence of a beneficial parental . . .
relationship, a substantial evidence challenge to this component of the
juvenile court’s determination cannot succeed.
[¶] The same is not true as to
the other component of . . . the parental relationship exception
. . .[,] . . . [namely] the requirement that the juvenile
court find that the existence of that relationship constitutes a ‘compelling
reason for determining that termination would be detrimental.’ (§ 366.26, subd. (c)(1)(B), italics
added.) A juvenile court finding that
the relationship is a ‘compelling reason’ for finding detriment to the child is
based on the facts but is not primarily a factual issue. It is, instead, a ‘quintessentially’
discretionary decision, which calls for the juvenile court to determine the importance
of the relationship in terms of the detrimental impact that its severance can
be expected to have on the child and to weigh that against the benefit to the
child of adoption. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review
applies.†(Ibid.)
Applying
the foregoing standard of review to the record before us, we will affirm the
juvenile court’s decision to terminate appellant’s parental rights. The record in this matter does not establish
the existence of a beneficial parental relationship that would provide a
compelling reason to overcome the preference for adoption.
As
noted in other cases, “[i]f 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 parent’s rights are not terminated.†(In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.) “The factors to be considered when looking
for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of
the child’s life spent in the parent’s custody, (3) the positive or
negative effect of interaction between the parent and the child, and
(4) the child’s particular needs.†(In re Bailey J., supra,
189 Cal.App.4th at p. 1315.) To
qualify for the exception, appellant had to do “more than demonstrate ‘frequent
and loving contact’ [citation], an emotional bond with the child, or that [she]
and [her] child find their visits pleasant.
[Citation.] Rather, [she] must
show that [she] occup[ies] ‘a parental role’ in the child’s life.†(In re
Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parent-child relationship must “promote[] the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.†(
The
juvenile court would not have abused its discretion (In re Bailey J., supra, 189 Cal.App.4th at
p. 1315) if it had been called upon to consider the beneficial
relationship exception and found that appellant had not shown a “compelling
reason†(§ 366.26, subd. (c)(1)(B)) to qualify for it. In addition, substantial evidence would have
supported a court finding that the relationship did not “promote[] the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.†(
p. 575.) Not only does the record
fail to show that A.H. would be “greatly harmed†(In re Autumn H., supra,
27 Cal.App.4th at p. 575) by terminating appellant’s parental rights, but
all of the evidence is that appellant’s ties to A.H. were tenuous, problematic,
and marked at times by seeming indifference or by the need to attend to her
overwhelming personal problems. From all
that appears, appellant did not occupy anything approaching a parental role in
A.H.’s life. (In re Andrea R., supra,
75 Cal.App.4th at p. 1108.)
CONCLUSION
The order is affirmed.
______________________________________
Márquez,
J.
WE CONCUR:
______________________________________
Elia,
Acting P. J.
______________________________________
Mihara,
J.
name="_ftn1" title="">[1] All statutory references are to the Welfare and Institutions Code.
