Opinion
A100525.
7-22-2003
In re NYLES S., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. KIMBERLY C., Defendant and Appellant.
Appellant Kimberly C. is the mother of Nyles S., who was made a dependent of the juvenile court. In this appeal from the order terminating her parental rights, appellant contends the juvenile court should have applied one of the statutory exceptions of Welfare and Institutions Code section 366.26, subdivisions (c)(1)(A) or (c)(1)(E). We affirm the order.
All undesignated section references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
Nyles S. was born in October 1998, the fourth child of appellant Kimberly C. Kimberlys three older children have been living with Kimberlys mother. Kimberly has a long history of drug abuse, including cycles of recovery and relapse. That history was repeated during this dependency proceeding.
A petition was filed on August 28, 2000, alleging that Kimberly had neglected Nyles due to her substance abuse. In the preceding month of July 2000, Kimberly had become homeless and had relinquished Nyless care to her own mother. The maternal grandmother, in turn, had asked the paternal grandmother to care for the child as the maternal grandmother was already taking care of Kimberlys other children. Nyles was detained and placed with his paternal grandmother.
The jurisdictional hearing was successively continued until January 2001 in order to obtain a bonding assessment. In the interim, Kimberly entered a residential treatment program, the Healthy Babies Program, and visited weekly with Nyles in supervised visits. In the initial visits, Nyles appeared to be frightened of his mother, but the interaction between them improved over time. However, Nyles became quite "clingy" with his paternal grandmother after the visits.
In November 2000, Kimberly was discharged from the Healthy Babies Program without completing the program, and her whereabouts were unknown for several months. She missed her visits with Nyles and had no contact with the paternal grandmother, except for a single phone call on Christmas Eve. She also failed to complete the bonding study. Kimberly did appear at the jurisdictional hearing held January 2, 2001, and she submitted to the courts jurisdiction.
At that hearing, the juvenile court sustained the petition and declared Nyles a dependent child. The court found that Nyles should not be returned to Kimberly, and Nyles was placed in the home of his paternal grandmother. The court denied reunification services based upon Kimberlys failure to reunify with her daughter, then age 12, who had been permanently placed with the maternal grandmother under a legal guardianship. The court set a section 366.26 hearing for April 2001, and the court ordered Kimberly to complete the bonding study within 30 days.
The section 366.26 hearing was continued from April 2001 to July 2001 for a contested hearing and to receive the results of the bonding study. The social workers report prepared for the section 366.26 hearing recommended termination of parental rights to free Nyles for adoption. The adoption assessment found Nyles to be adoptable, and his paternal grandmother was identified as a prospective adoptive parent. The social worker reported that Nyles was very attached to his paternal grandmother and called her "Mommy." Kimberly had no contact with Nyles from November 2000 to March 2001. In March Kimberly entered a new residential drug treatment program at The Orchid Womens Recovery Center, and in April she resumed supervised visits with Nyles every week. Those visits were held at the offices of the Alameda County Social Services Agency (SSA) and supervised by an SSA worker or the paternal grandmother. Nyles continued to be extremely clingy with his paternal grandmother after the visits. The bonding assessment concluded that Nyles should not be returned to Kimberly. The report found that Kimberly cared about Nyles, and he was attached to her in some ways, but Kimberlys inconsistency was harmful to the child.
At the section 366.26 hearing held in July 2001, the court referred the matter to mediation. As a result of the mediation, the parties agreed that beginning in November 2001 Kimberly would have weekend visits with Nyles, from Friday evening to Sunday evening, every other week at the home of the maternal grandmother, where Kimberly also visited her older children. Nyless caretaker, his paternal grandmother, was to transport the child from her home in Oakland to the maternal grandmothers home in San Francisco for these weekend visits. The section 366.26 hearing was continued until November 2001.
For that hearing, the social worker changed the recommended permanent plan from adoption to guardianship by the paternal grandmother without terminating Kimberlys parental rights. This change was based on the new consistency of Kimberlys visits with Nyles and the benefits to Nyles of continuing a relationship with his mother. In November 2001 the court adopted the recommendations of the social workers report, approved the mediated visitation arrangements, and appointed the paternal grandmother as Nyless legal guardian.
At the six-month review hearing held in April 2002, the social worker changed the recommended permanent plan again, this time recommending adoption. This change was based upon concerns about Kimberlys weekend visits with Nyles. The paternal grandmother reported that Nyles was using profane language that he could only have learned during the weekend visits. Further, Nyles was increasingly resistant to going to see his mother, and he was having tantrums afterward. In January 2002, Nyles was ill and missed a visit. Later, during a visit held in February 2002, Nyles arrived for the visit screaming that he did not want to go. Kimberly in turn became upset and began screaming at her own mother. The paternal grandmother heard the ranting in her phone call to the maternal grandmother, and she called the police to assure Nyless safety. After that disastrous visit, the maternal grandmother declined to host future visits between Kimberly and Nyles. Supervised visits were then arranged beginning in May 2002 at the SSA offices every two weeks.
The court set a section 366.26 hearing for August 2002. The social workers report for that hearing revealed that Kimberly had been regularly visiting Nyles at the SSA offices and the visits were going well. However, the social worker further reported that Nyless primary parental figure was his paternal grandmother, who had provided consistent care since July 2000. The paternal grandmother wanted to adopt Nyles to provide some permanency and stability for him.
At the hearing the juvenile court heard testimony from Kimberly, from the paternal grandmother, and from the maternal grandmothers husband. At the conclusion of that hearing, the court found that none of the statutory exceptions to termination of parental rights applied. The court terminated Kimberlys parental rights and ordered Nyles placed for adoption. Kimberly appeals.
DISCUSSION
I. Continuing Beneficial Relationship
Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, the court shall terminate parental rights and order the child placed for adoption. The fact that reunification services were denied or ultimately terminated "shall constitute 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: [P] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (This exception will sometimes be referred to as the (c)(1)(A) exception.)
In the present case, the juvenile court considered the (c)(1)(A) exception. First, the court gave Kimberly the benefit of the doubt and found that Kimberly met the first prong of the (c)(1)(A) exception in maintaining regular visits with Nyles. But the court further found that Kimberly had failed to establish the second prong, that the benefit to Nyles of maintaining the parental relationship outweighs the benefit of adoption. Kimberly challenges the latter finding.
A. The Meaning of the (c)(1)(A) Exception
Beginning with In re Autumn H. (1994) 27 Cal.App.4th 567, 575, the case law interpreting section 366.26, subdivision (c)(1)(A) has characterized the determination under the second prong as a determination whether the benefit to the child of maintaining the relationship with the parent outweighs the benefit of adoption. That is, the court "balances 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." (In re Autumn H., at p. 575.) The determination must be made on a "case-by-case basis," taking into account the many variables that affect a parent/child relationship, such as the age of the child, the portion of the childs life spent with the parent, the effect of interaction between parent and child, and the childs particular needs. (Id . at p. 576; see also In re Zachary G. (1999) 77 Cal.App.4th 799, 811; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729;In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
Kimberly first argues that this case law is incorrect and contrary to the plain wording of the (c)(1)(A) exception. Kimberly asserts that the statute does not call for a balancing between the benefits of continuing the childs relationship with the parent, on the one hand, and the benefits of placing the child in an adoptive home, on the other. She contends that the statute requires only that the child benefit from a continuing relationship with the parent. We cannot agree.
The (c)(1)(A) exception must be read within the context of section 366.26, subdivision (c)(1), which reflects the Legislatures intent that adoption is the preferred permanent plan unless extraordinary circumstances exist. The (c)(1)(A) exception applies only when the benefit to the child from maintaining the parental relationship constitutes a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." ( § 366.26, subd. (c)(1).) In other words, not every beneficial relationship will overcome the preference for adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349; In re Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) The child must benefit from continuing the relationship with the parent to such a degree that terminating parental rights would be detrimental to the child. "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." (In re Autumn H. , at p. 575.)
We believe Autumn H. and its progeny correctly interpreted the (c)(1)(A) exception and correctly applied a balancing test for the purpose of assessing the benefit to the child from continuing the parental relationship and the detriment to the child from a termination of parental rights. (See In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1417-1418 [confirming the interpretation of In re Autumn H.].)
We note that in 2001 the Legislature added another exception to termination of parental rights for interference with a sibling relationship. ( § 366.26, subd. (c)(1)(E).) (See discussion in part II, post.) The language of that exception is strikingly similar to the balancing test employed by Autumn H: "whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E); see In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.) We must presume that the Legislature was aware of the case law interpreting section 366.26, subdivision (c)(1)(A), and we confidently infer that by leaving the (c)(1)(A) exception intact while changing other parts of section 366.26, subdivision (c)(1), the Legislature approved the judicial interpretation that has been given to the (c)(1)(A) exception.
B. Need for Parental Role
Autumn H. and its progeny have further established that the (c)(1)(A) exception applies only when the parent has maintained a parental role with the child, a role above and beyond the incidental role of a "friendly visitor." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . [Citation.] 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." (Id. at p. 575; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [more than a "friendly or familiar" relationship is required]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [a "pleasant and emotionally significant" relationship not the same as consistent daily nurturing]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 563 [a "peer" relationship not the same as a parent]; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [occupying "a pleasant place" in childs life not enough]; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1420 [frequent and loving contact, without occupying parental role, not enough].)
Kimberly argues that such a standard is impossible for a parent to meet when the child has been removed from the parents custody, because the parent is necessarily deprived of the opportunity to provide daily care. In Casey D., the court considered just such an argument and reexamined its decision in Autumn H. (In re Casey D., supra, 70 Cal.App.4th at pp. 50-51.) The court concluded that the Autumn H. standard, "while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact." (In re Casey D. , at p. 51.) The court noted that the difficulty facing a parent in making the requisite showing under the (c)(1)(A) exception is caused by the factual circumstances of the case, e.g., the parents own failure to reunify with the child. And the court observed that "particularly in the case of an older child," a strong and beneficial relationship may exist despite the absence of daily contact and care. (In re Casey D., at p. 51; accord, In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349 [affirming In re Autumn H.].)
Indeed, several cases have demonstrated that the parental burden can be met. (In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [child had strong primary bond with mother and mother acted in loving parental role during visitation]; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207 [child lived with mother for first six and one-half years, identified her as primary parent, and expressed desire to live with her again]; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1537 [children had close bond with mother while living with grandmother].) We find no reason to stray from the standard set out in Autumn H. for determining whether the benefit to the child of maintaining the parental relationship outweighs the benefit of a permanent plan of adoption.
C. Sufficiency of the Evidence
Autumn. H. applied the substantial evidence test for review of the juvenile courts findings on the (c)(1)(A) exception. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575, 576.) Subsequent decisions have also employed the substantial evidence test. (E.g., In re Amber M., supra, 103 Cal.App.4th at p. 689; In re Jerome D., supra, 84 Cal.App.4th at p. 1207; In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; In re Brandon C., supra, 71 Cal.App.4th at pp. 1533, 1534, 1538; cf. In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017 [substantial evidence test applies to findings under the § 366.26, subd. (c)(1)(E) exception for sibling bond].)
Division Three of this court, however, has disagreed with that standard and held that the abuse of discretion standard should be applied. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) So far, no published decision has followed Jasmine D. on this point, but we find it unnecessary to resolve the conflict. (See Seiser & Kumli, California Juvenile Courts: Practice and Procedure (2003) § 2.171[5][a][i], p. 2-276 [criticizing In re Jasmine D.].) As the Jasmine D. court pointed out, the practical differences between the two standards are "not significant," as both give broad deference to the trial courts judgment. (In re Jasmine D., at p. 1351.)
Kimberly argues that substantial evidence exists to support a finding that Nyles would benefit from a continuing relationship with his mother. In so arguing, she emphasizes that no psychological study or other expert evidence was presented to undermine her evidence of a beneficial relationship. This argument turns the substantial evidence rule on its head. Under that standard of review, we assess whether substantial evidence exists to support the finding of the trial court. The fact that substantial evidence also exists to support a contrary finding is irrelevant for our purposes. Moreover, Kimberlys argument is based on the erroneous premise that proof of a beneficial relationship will suffice under the (c)(1)(A) exception; she ignores the requisite showing that the child would suffer detriment by a termination of the parental relationship.
In the present case, we find sufficient evidence to support the juvenile courts finding that Kimberly did not meet her burden. Nyles was only 22 months old when he was removed from Kimberlys custody. Even those 22 months in her care were not marked by nurturing attention to Nyless needs. Nyles suffered from parental neglect, and Kimberly eventually relinquished care to the maternal grandmother. By the time of the section 366.26 hearing, Nyles had lived with his paternal grandmother for two years, over half his life, and he was very attached to her. Nyles was aware he had "two mommies" and he calls his mother "Mommy Kim." But the evidence showed that Nyless caregiver, the paternal grandmother, occupied the parental role, not Kimberly. The bonding study submitted in June 2001 recommended that Nyles not be reunited with Kimberly because Kimberly had failed to maintain sobriety and had only inconsistent contact with Nyles. Indeed, from November 2000 through March 2001, Kimberly missed her visits with Nyles due to drug relapse. As Kimberly progressed in her recovery program at Orchid she did visit regularly, and her visits were eventually expanded to weekend visits. Yet there was scant evidence of any emotional attachment developed or maintained in those weekend visits. To the contrary, Nyles was resistant to going to see his mother. Only when visits were resumed in a supervised setting, with the paternal grandmother waiting outside, was Nyles happy to see Kimberly. In short, Kimberly made no showing that Nyles would be harmed by the termination of her parental rights.
II. Sibling Relationships
Subdivision (c)(1)(E) of section 366.26 (hereafter sometimes referred to as the (c)(1)(E) exception) establishes another exception to terminating parental rights when such termination would substantially interfere with the childs sibling relationship. The juvenile court must take into consideration the nature and extent of the sibling relationship, including, but not limited, to whether the children were raised in the same home, whether they shared significant common experiences, whether there is an existing close and strong bond, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared with the benefit of legal permanence and stability through adoption.
The parents first task under the (c)(1)(E) exception is to show that a significant sibling relationship exists. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.) "Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (Id . at p. 952.)
Here, the social workers report and the testimony revealed that Nyles has three older siblings, none of them living with Kimberly. Nyles has never lived with his siblings and has not visited with them regularly. He did have contact with them during the weekend visits at the home of his maternal grandmother, and there was evidence that the paternal grandmother initiated a family gathering involving Nyles and his siblings after those weekend visits ended. However, there was no evidence of an existing emotional attachment.
The juvenile court duly considered the (c)(1)(E) exception but found it a "non-issue" in light of the absence of any evidence of a significant relationship. Kimberly does not dispute that finding but asserts that insufficient evidence was presented to enable the juvenile court to evaluate the (c)(1)(E) exception. This assertion is meritless. As with the (c)(1)(A) exception, the burden is on the parent to show the exception applies, i.e., that a compelling reason exists for concluding that termination of parental rights would be detrimental to the child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) It is not the function of the SSA to prove the absence of an exception. (See In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) Insofar as Kimberly complains of the adequacy of the social workers report concerning the amount of sibling contact, the issue is waived by Kimberlys failure to raise the issue below. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
The statute requires that an assessment be prepared for every section 366.26 hearing to include "[a] review of the amount of and nature of any contact between the child and his or her parents . . . and other members of his or her extended family since the time of placement [including] . . . the childs siblings . . . ." ( § 366.21, subd. (i)(2).)
III. Guardianship as Alternative to Adoption
Kimberly contends the juvenile court should have ordered guardianship as an alternative to adoption so that Kimberly could continue her visits with Nyles. This contention reflects an erroneous reading of section 366.26, which provides that if the juvenile court finds the child will likely be adopted, the court must terminate parental rights and order adoption as the permanent plan unless one of the statutory exceptions applies. ( § 366.26, subd. (c)(1); In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1341-1342, 1343; In re Teneka W., supra, 37 Cal.App.4th at p. 728.) Because the court found no exception applicable, the court properly terminated parental rights and placed Nyles for adoption.
Kimberly relies on comments made by the juvenile court at the conclusion of the section 366.26 hearing expressing hope that Kimberly and Nyles would be able to continue their relationship through visits even after the adoption by the paternal grandmother. Kimberly argues that such comments are inconsistent with termination of Kimberlys parental rights.
The court said, "I, therefore, hold out the hope that the relationship really will be able to continue even beyond the adoptive process." "I think [Nyles] and his biological mother will continue to have some sort of a relationship. [But, it] is not a parental relationship." The court directed the social worker to talk to the paternal grandmother about "what she feels might be appropriate for the future. . . . I would hope that some sort of relationship could continue, if possible."
What Kimberly overlooks is that the law provides that adoptive parents may enter into an agreement with the natural parent to provide for visitation or other future contact after the adoption. (Fam. Code, §§ 8714.5, 8714.7.) Such an agreement cannot be compelled, but it is authorized to allow the adopted child to maintain continuing contact with birth relatives when that contact would be beneficial to the child. (Fam. Code, § 8714.7.) Here, the paternal grandmother had expressed a desire to enter into a "kinship adoption agreement" to allow for visitation. The juvenile courts remarks were nothing more than an expression of hope that such an agreement for postadoption contact might be reached. Nothing in those remarks negates or contradicts the juvenile courts finding that Kimberly failed to prove that the benefit to Nyles from continuing his relationship with Kimberly outweighs the benefit of legal permanence through adoption.
The issue of postadoption contact is an issue for the adoption hearing, not the Welfare & Institutions Code section 366.26 hearing. (Fam. Code, §§ 8714.5, subd. (d), 8714, subd. (a); see In re Kimberly S. (1999) 71 Cal.App.4th 405, 411-412.) The courts comments have no bearing on its findings for purposes of the Welfare & Institutions Code section 366.26 hearing.
DISPOSITION
The order terminating parental rights is affirmed.
We concur, JONES, P.J., GEMELLO, J.