In re Gabriella B.

Filed 2/6/07  In re Gabriella B. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Julia Kelety, Judge.  Affirmed.

            Barbara B. appeals a judgment terminating her parental rights to her minor daughter, Gabriella B., under the Welfare and Institutions Code section 366.26.^[1] 

She contends the court erred by failing to appoint a guardian ad litem (guardian) for her at the section 366.26 hearing resulting in the denial of her due process rights.  Barbara also challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship exception (§366.26, subd. (c)(1)(A)) did not apply to preclude terminating parental rights.  We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            In November 2005, Gabriella was born with a positive toxicology for methamphetamine.  The San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of Gabriella under section 300, subdivision (b) alleging Barbara used drugs during her pregnancy and her history of drug use rendered her unable to care for Gabriella. 

            According to the detention report, Barbara met with social workers and admitted she had not received prenatal care and abused drugs while pregnant with Gabriella.  She further admitted she abused drugs most of her adult life and had not been sober for 16 years.  Barbara reported she had been diagnosed with bipolar disorder about 10 years ago.  Barbara was homeless and had been living in a canyon for about one year.  She claimed she was committed to becoming sober and was attending Alcoholics Anonymous meetings three or four times a week.  In addition to her history of drug use, Barbara had an extensive history of involvement with Child Protective Services.  She had four other children and none of them was in her custody because she had not successfully participated in services, addressed her drug abuse, or been able to provide them with a stable home. 

            At the detention hearing, the court made a prima facie finding on the petition and ordered Gabriella detained.  The court also appointed counsel and ordered Barbara to have supervised visits with Gabriella. 

            In the jurisdiction/disposition report, the Agency recommended Gabriella be placed in out-of-home care and that Barbara not be provided reunification services.  Barbara's long substance abuse history and difficulty with her ability to follow through her responsibilities would result in placing Gabriella at risk.  Barbara did not successfully participate in reunification services when offered to her in the past.  In addition, she had not contacted social workers concerning Gabriella's dependency since her initial interview with the Agency.  The report noted Barbara suffered from a history of mental illness and had a history of domestic violence incidents as both the perpetrator and the victim. 

            At a contested jurisdiction and disposition hearing, the court made a true finding on the petition and declared Gabriella a dependent.  The court removed Gabriella from Barbara's custody, placed her in foster care, and denied reunification services.  A section 366.26 selection and implementation hearing was scheduled to select and implement a permanent plan. 

            During the next six months, social worker David Smith observed visits between Barbara and Gabriella.  Before January 2006, Barbara visited Gabriella about once a week.  After January, Barbara's whereabouts became unknown because she remained homeless and had not secured a stable residence.  Visits resumed in April 2006.  Smith noted Barbara behaved appropriately during the initial visits and was very affectionate with Gabriella.  Barbara told Smith she was living " here and there" but did not provide an address.  She indicated her life was " crazy" and she was not prepared to care for Gabriella although she sometimes wanted to be a parent.  In subsequent visits Smith observed Barbara exhibited odd behaviors and on several occasions referred to Gabriella by a different name.  In a few instances, Smith had to intervene and asked Barbara to be careful with Gabriella because she handled the infant in a " haphazardly" manner.  Smith believed Barbara possessed some basic parenting skills but her behavior remained unstable and she openly admitted to regularly drinking alcohol and being addicted to drugs. 

            Smith assessed Gabriella as being very adoptable because of her very young age, excellent health, and normal development.  Gabriella had been living with the same caregivers since her removal and her caregivers wanted to adopt her.  The caregivers described Gabriella as being a happy baby with a calm demeanor.  Smith believed Gabriella and Barbara did not share a beneficial parent-child relationship and recommended terminating parental rights. 

            In an addendum report, Smith noted Barbara continued her weekly visitation with Gabriella through June 2006 with the exception of two visits.  However, by August 2006, Smith report Barbara's visits had become sporadic and she had not visited with Gabriella since mid-June 2006. 

            Barbara testified at the section 366.26 hearing.  At the start of direct examination, Barbara clearly and appropriately answered counsel's questions.  She admitted she did not visit Gabriella frequently but expressed wanting to provide for Gabriella and become a good parent.  As questioning continued, Barbara's testimony became difficult to understand.  Barbara asked that her counsel be relieved.  When the court asked Barbara if she had made provisions for a new attorney, Barbara replied " No.  No, but I want to slap her [counsel] or have sex with her and I don't think that's good."   The court spoke with counsel as to whether a guardian should be appointed and counsel believed one should be appointed.  The court asked Barbara if she preferred to proceed with the hearing without a guardian.  Counsel stated Barbara should receive a psychiatric evaluation.  The court then asked Barbara's attorney to give an offer of proof as to the remainder of Barbara's testimony.  Counsel agreed and met off the record with Barbara.  After reconvening, Barbara's attorney made an offer of proof that if Barbara were to continue testifying, she would state she had visited Gabriella as frequently as possible but at times, Gabriella was not present for visitation.  Barbara would also have testified she loved Gabriella, wanted to remain a part of her life, and believed it was in Gabriella's best interests to maintain a relationship.  All counsel stipulated to the testimony and the court received it into evidence.  Barbara's attorney did not make a request for a guardian or indicate Barbara had difficulty understanding the proceedings or her stipulated testimony. 

            After considering the evidence and hearing argument of counsel, the court found by clear and convincing evidence Gabriella was likely to be adopted if parental rights were terminated.  It further found none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude termination of parental rights.  The court terminated Barbara's parental rights and referred Gabriella for adoptive placement.

DISCUSSION

I

            Barbara asserts the court erred by failing to appoint her a guardian ad litem at the section 366.26 hearing therefore violating her due process rights.  She claims she was incompetent and the court should have appointed a guardian on its own motion under the guidelines of section 372 and 373 of the Code of Civil Procedure. 

            Code of Civil Procedure section 372 provides, in relevant part, " A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the .  .  . incompetent person."   Section 373 of the Code of Civil Procedure further provides, " When a guardian ad litem is appointed, he or she shall be appointed as follows: [¶]  .  .  .  [¶]  (c)  If an .  .  . incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such .  .  . incompetent person, or of any other party to the action or proceeding, or by the court on its own motion."   When determining whether a guardian should be appointed, courts have considered whether the parent involved in the dependency proceedings "   'underst[ood] the nature of the proceedings .  .  .  and was able to meaningfully participate in [such] proceedings and to cooperate with .  .  . counsel in representing [such] interests.'  "   (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367, citing In re R.S. (1985) 167 Cal.App.3d 946, 979-980.)

            The court in In re R.S., supra, 167 Cal.App.3d 946 acknowledged the mother appearing before it suffered from mild mental retardation and from a personality disorder.  However, even though the mother's abilities were limited, she was still able to understand the nature of the proceedings or to assist her counsel in representing her interests.  (In re Ronnell A., supra, 44 Cal.App.4th at p.  1367.)  Further, in In re Ronnell A., supra, the father suffered from chronic mental illness and substance abuse yet the evidence before the court clearly indicated the father was able to understand and participate in the court proceedings.  (Id. at pp.  1367-1368.)

            Similarly here, the record shows that although Barbara exhibited odd behavior at the hearing, she sufficiently understood the nature of the proceedings.  The court and counsel were aware of Barbara's long history of mental illness and substance abuse problems.  At the beginning on the section 366.26 hearing, counsel informed the court Barbara had taken medications resulting in negative side effects.  Counsel did not seek appointment of a guardian.  Counsel instead began Barbara's direct examination and shortly thereafter, Barbara made inappropriate statements in response to questions.  At that point in her testimony, Barbara's counsel did not indicate to the court that Barbara should be appointed a guardian.  The court instead interrupted Barbara's testimony to inquire as to whether Barbara needed a guardian.  Barbara stated she had taken medications to calm her and was going through withdrawals from alcoholism.  The court requested Barbara's attorney to make an offer of proof as to what Barbara would testify at the hearing.  Counsel then discussed the matter with Barbara off the record.  When the hearing reconvened, counsel did not request a guardian for Barbara.  She instead made an offer of proof as to the remainder of Barbara's testimony.  Barbara was satisfied with the offer of proof, added that it " sounds good," and all counsel stipulated to the testimony. 

            The proceedings between counsel and Barbara show Barbara was able to assist with the preparation of her testimony.  There was no indication from counsel Barbara had difficulty with understanding the offer of proof.  Further, counsel did not reconvene proceedings and represent Barbara was incompetent, failed to understand discussions, or request a guardian on her behalf.  At the conclusion of the section  366.26 hearing, the court stated Barbara was able to offer her testimony as she wanted and a guardian would not change the proceedings.  Although there is evidence to show Barbara was experiencing difficulties at the hearing, there is no evidence to show she was incompetent to understand the nature of the proceedings.  The court did not abuse its discretion by not exercising its ability under section 373 of the Code of Civil Procedure to act sua sponte to appoint a guardian for Barbara.

II

            Barbara contends the evidence was insufficient to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply  to preclude terminating her parental rights.  Barbara asserts she maintained regular visitation and contact with Gabriella, who would benefit from continuing the parent-child relationship.

A

            We review the court's finding the beneficial relationship exception does not apply under the substantial evidence standard.  (In re Casey D. (1999) 70 Cal.App.4th 38, 53; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)  If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings.  We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence.  (In re Casey D., supra, 70  Cal.App.4that p. 52.)  Rather, we " accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact."   (Id. at p. 53.)  The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

            " Adoption, where possible, is the permanent plan preferred by the Legislature."   (In re Autumn H., supra, 27 Cal.App.4th at p. 573.)  If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specified exceptions.  (§  366.26, subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek  W. (1999) 73 Cal.App.4th 823, 826.)

            Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because " [t]he parents  .  .  .  have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."   We have interpreted the phrase " benefit from continuing the relationship" to refer to a " parent-child" relationship that " promotes

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.  In other words, 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.  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 parent's rights are not terminated."   (In re Autumn  H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) 

            To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits.  (In re Derek W., supra, 73 Cal.App.4th at p. 827.)  " Interaction between natural parent and child will always confer some incidental benefit to the child.  .  .  .  The relationship arises from the day-to-day interaction, companionship and shared experiences."   (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)  Although day-to-day contact is not required, it is typical in a parent-child relationship.  (In re Casey D., supra, 70 Cal.App.4th at p. 51.)  The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent.  (In re Autumn H., supra, 27 Cal.App.4th at p.  575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

            The record contains substantial evidence that neither prong of section 366.26, subdivision (c )(1)(A) was met.  Barbara did not have regular, supervised visits with Gabriella.  Between January 2006 and early April 2006, Barbara's whereabouts where unknown and social workers were initially unable to schedule visits.  Barbara then contacted Smith wanting to see Gabriella.  Visits continued on a weekly basis until mid June.  Barbara stopped attending visits at that time and did not see Gabriella again until August 2006.  Such irregular visitation by a parent throughout the dependency of a minor does not constitute " regular visitation."  

            Even had Barbara regularly visited Gabriella, she did not meet her burden of showing there was a beneficial parent-child relationship.  During visits, Barbara hugged and kissed Gabriella.  The social worker believed Barbara appeared genuinely loving and caring around Gabriella.  Barbara, however, displayed instances of odd and impulsive behavior and at times held Gabriella in an inappropriate manner.  In the social worker's opinion, Gabriella did not have a beneficial relationship with Barbara and their relationship did not outweigh the benefits to Gabriella of a permanent home.  The court was entitled to find the social worker's opinion credible and give great weight to her assessment and testimony.  We cannot reweigh the evidence or substitute our judgment for that of the trial court.  (In re Casey D., supra, 70 Cal.App.4th at p.  53; cf.  In re Amber  M. (2002) 103 Cal.App.4th 681, 690.)

            Moreover, no evidence showed severing the parent-child relationship would likely cause Gabriella great harm and deprive her of a substantial, positive emotional attachment to Barbara.  (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)  Any possible benefit to Gabriella of continuing a relationship with her mother was outweighed by the benefits of adoption.  The record here shows Barbara continued to struggle with her drug and alcohol addiction, she behaved strangely during visits, and made no efforts to access services.  Although Barbara was affectionate toward Gabriella during visits, the relationship did not benefit Gabriella enough to outweigh her need for the permanence and stability of adoption.  Gabriella instead had been living with the same caregivers since her birth, was thriving in their care, and the caregivers wanted to adopt her.  Because Gabriella's needs could not be met by Barbara, she deserves to have her custody status promptly resolved.  Where, as here, the biological parent does not fulfill the parental role, " the child should be given every opportunity to bond with an individual who will assume the role of a parent  .  .  .  .  To hold otherwise would deprive children of the protection that the Legislature seeks to provide."   (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)  Substantial evidence supports the court's finding the beneficial parent-child relationship did not apply to preclude terminating Barbara's parental rights.

DISPOSITION

            The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                          NARES, J.

                                McDONALD, J.

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^[1]           All statutory references are to the Welfare and Institutions ode.