Los Angeles County Department of Children & Family Services v. Gale G.
Los Angeles County Department of Children & Family Services v. Gale G.
Opinion of the Court
Gale G. (mother) appeals the termination of her parental rights. She argues that legal guardianship was the appropriate permanent plan because her daughter, Jasmine, was placed with a relátive who could provide a stable home as a legal guardian. We conclude the trial court appropriately ordered adoption and affirm the judgment.
Factual and Procedural Summary
Jasmine was bom on October 31, 1994.
DCFS filed a petition under Welfare and Institutions Code section 300 alleging that mother left Jasmine alone in her apartment without making provisions for Jasmine’s care.
In December 1997, the court found that mother had an extensive history of alcohol abuse. It denied reunification services under section 361.5, subdivision (c).
A social worker report prepared on July 14, 1998, recommended that parental rights be terminated. Mother had not called or visited Jasmine since June 8, 1998. Linda W. had begun, but had not completed, the clearance process for adoption. Linda W. was eager to adopt Jasmine and the home
A September 10 report asked that parental rights be terminated, indicating that there was little interaction between Jasmine and mother. A psychologist, Dr. Ronald Fairbanks, found that Jasmine had a positive relationship with her paternal grandmother and a relatively positive relationship with mother. He evaluated the attachment between Jasmine and mother as minimal or nonexistent.
From February 16, 1998, to June 26, 1998, mother tested negative for alcohol. Mother enrolled in a program to receive aid in finding employment and secured her own residence.
The court terminated parental rights and recommended a kinship adoption. Mother filed a timely notice of appeal.
Discussion
The sole issue is whether the trial court properly terminated parental rights. As we explain, it did.
At the selection and implementation hearing the court must order one of three permanent plans for the dependent child — adoption, legal guardianship, or foster care. Adoption is the preferred permanent plan. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416 [35 Cal.Rptr.2d 162].) Freeing a child for adoption requires termination of parental rights. “[I]n 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. v. Superior Court (1993) 5 Cal.4th 242, 249-250 [19 Cal.Rptr.2d 698, 851 P.2d 1307].) Under section 366.26, subdivision (c)(1), there are four exceptions to this rule.
Mother does not dispute that Jasmine is likely to be adopted, as Linda W. clearly expressed a desire to adopt the child. Mother does not
Instead mother seeks to create an additional exception when the potential adoptive parent is a relative to the birth parent. She argues that Jasmine’s placement with her paternal grandmother fulfilled the goal of family preservation (§§ 202 and 300.2), and thereby permitted the court to select legal guardianship as a permanent plan. Selection of legal guardianship, she argues, would permit her to maintain her relationship with Jasmine.
First, and most importantly, family preservation has not been achieved in this case. Both mother and father failed to reunify with Jasmine.
Pursuant to section 366.26, subdivision (c)(1), absent one of four specific exceptions, the court must order adoption as the permanent plan for a child found likely to be adopted. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1420.) The fact that a potential adoptive parent is a relative does not
Mother’s reliance on Moore v. East Cleveland (1977) 431 U.S. 494 [97 S.Ct. 1932, 52 L.Ed.2d 531] is misplaced. In that case, a plurality found that a housing ordinance which limited the categories of family members that could reside together violated the Fourteenth Amendment. “ ‘[F]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ ” (Id. at p. 499 [97 S.Ct. at p. 1935], quoting Cleveland Board of Education v. LaFleur (1974) 414 U.S. 632, 639-640 [94 S.Ct. 791, 796, 39 L.Ed.2d 52].) “Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307 [19 Cal.Rptr.2d 544, 851 P.2d 826].)
Disposition
The judgment is affirmed.
Vogel (C. S.), P. J., and Curry, J., concurred.
Mother’s three other children are not included in this appeal.
All further statutory citations are to this code unless otherwise indicated.
Reunification services need not be provided if: “[T]he parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(12).)
The four exceptions under section 366.26, subdivision (c)(1) are as follows: “(A) The parents or guardians have maintained regular visitation and contact with the child and the
In the dependency context, even with a kinship adoption, the adoptive parent may decide that the birth parent cannot maintain contact with the child. (In re Kimberly S. (1999) 71 Cal.App.4th 405, 411-412 [83 Cal.Rptr.2d 740]; see Fam. Code, § 8714.5 et seq.)
Father is not a subject of this appeal.
Reference
- Full Case Name
- In re JASMINE T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and v. GALE G., and
- Cited By
- 1 case
- Status
- Published