IN RE JAMIE R

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Docket Number

B144451

Attorney(S)

Linda L. R. Johnson, under appointment by the Court of Appeal, for Appellant. Stephen Shane Stark, County Counsel, County of Santa Barbara and Gustavo E. Lavayen, Deputy, for Respondent.

Judges

Kenneth R. Yegan

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Smart Summary

Factual and Procedural Background

On October 17, 1997, Santa Barbara County Child Protective Services (CPS) filed petitions alleging that Robyn R. neglected her three children, Jamie R., Dylan R., and Marke R., and failed to provide proper care. The petitions were based on appellant's history of drug abuse, arrests for methamphetamine possession, and failure to comply with services offered, including substantial financial support for childcare. The trial court sustained the petitions and initially placed the children in foster care, providing appellant with reunification services. The children were returned to appellant in November 1998 under a family maintenance plan but were removed again following appellant's arrests and admissions of drug use in December 1998 and September 1999. After the third removal, family reunification services were terminated in November 1999, and the matter was referred for a permanent placement hearing under Welfare and Institutions Code section 366.26.

In March 2000, the trial court ordered CPS to find an adoptive home, and the children were placed in a foster/adoptive home in June 2000. Appellant filed a section 388 petition to return the children to her custody, which was denied after a hearing. The trial court found the children adoptable and terminated appellant's parental rights under section 366.26, subdivision (b)(1).

Legal Issues Presented

Whether the trial court erred in conducting an in camera interview of the children without appellant's counsel present, and whether appellant validly waived her right to counsel during this proceeding.
Whether the trial court erred in terminating appellant's parental rights under Welfare and Institutions Code section 366.26, subdivision (b)(1), specifically considering whether the children would benefit from continuing the parent-child relationship under the statutory exception in subdivision (c)(1)(A).

Arguments of the Parties

Appellant's Arguments

Appellant contended that her due process rights were violated when the trial court interviewed the children in camera without her counsel present, relying on In re Laura H. to argue that a personal waiver was required to bypass counsel at such hearings.
She argued that the trial court erred in finding that the children would not benefit from continuing the parent-child relationship and thus erred in terminating parental rights.

Respondent's Arguments

CPS recommended denying appellant's section 388 petition, emphasizing appellant's repeated failure to provide adequate care due to ongoing substance abuse and related issues.
Respondent contended that appellant waived the right to counsel at the in camera hearing by stipulation through her attorney and that the children were adoptable, making adoption the least detrimental alternative.
Respondent argued that the benefits of a permanent adoptive home outweighed any detriment from severing the parent-child relationship, negating the statutory exception to termination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Laura H. (1992) 8 Cal.App.4th 1689	Parents are entitled to counsel presence during in camera testimony of children unless there is a personal waiver.	The court distinguished this case, finding appellant waived her right to counsel by acquiescence and stipulation through counsel, and thus In re Laura H. was inapplicable.
In re Meranda P. (1997) 56 Cal.App.4th 1143	A parent may waive the right to counsel at an in camera hearing by acquiescence in a civil dependency proceeding.	The court adopted this reasoning, concluding appellant waived her right to counsel by silence and stipulation.
In re Ebony W. (1996) 47 Cal.App.4th 1643	Right to counsel at in camera hearings may be waived if parent does not request counsel.	Supported the court’s conclusion that appellant waived her right to counsel.
In re Derek W. (1999) 73 Cal.App.4th 823	When a child is adoptable, termination of parental rights is required unless a statutory exception applies.	The court applied this standard to uphold termination since no exception was established.
In re Autumn H. (1994) 27 Cal.App.4th 567	Statutory exception for continuing parent-child relationship requires showing substantial positive emotional attachment outweighing adoption benefits.	The court found no such attachment that would outweigh the benefits of adoption.
In re Zachary G. (1999) 77 Cal.App.4th 799	Adoption is preferred even if parent-child visits are cordial but not nurturing.	Used to support the conclusion that visitation was insufficient to prevent termination.
In re Casey D. (1999) 70 Cal.App.4th 38	Trial court’s decision on termination will not be reversed for reweighing evidence; adoption is preferred permanent plan.	The appellate court deferred to trial court’s factual findings favoring adoption.
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242	Adoption offers the prospect of a secure permanent home and is the preferred placement.	Supported the court’s preference for adoption over parental rights continuation.
In re Brian R. (1991) 2 Cal.App.4th 904	Cordial visits alone do not mandate a permanent plan other than adoption.	Reinforced that visitation quality was insufficient to preclude termination.
In re Tabatha G. (1996) 45 Cal.App.4th 1159	No "best interests" exception to termination of parental rights.	Court rejected appellant’s argument that adoption was not in children’s best interests.
In re Brittany C. (1999) 76 Cal.App.4th 847	Parents with substance abuse issues often delay recovery, impacting reunification efforts.	Used to highlight appellant’s delayed recovery and its effect on the children’s placement.
NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64	Counsel is presumed to act with the authority of the client.	Supported presumption that appellant authorized counsel’s stipulation waiving counsel’s presence at in camera hearing.
People v. Barton (1995) 12 Cal.4th 186	Invited error doctrine bars a party from claiming error where party induced the trial court’s procedure.	Applied to bar appellant’s claim of error regarding in camera hearing procedure.
People v. Hardy (1992) 2 Cal.4th 86	Same as Barton regarding invited error.	Reinforced application of invited error doctrine.

Court's Reasoning and Analysis

The court first addressed appellant's contention that her due process rights were violated by the in camera interview of the children without counsel present. The court noted that appellant’s counsel stipulated to the procedure in open court, effectively waiving appellant’s statutory right to counsel at the hearing. The court adopted precedent holding that a parent may waive this right by acquiescence in civil dependency proceedings. The court further held that even if error occurred, it was invited error and harmless beyond a reasonable doubt because appellant failed to demonstrate any determinative difference in outcome that counsel’s presence would have made.

Regarding termination of parental rights, the court applied the statutory framework under Welfare and Institutions Code section 366.26. It recognized that adoption is the preferred permanent plan when the child is adoptable unless one of four statutory exceptions applies. The court found no evidence that continuation of the parent-child relationship would benefit the children to a degree outweighing the benefits of adoption. Although appellant had some visitation, these visits were not nurturing and the children exhibited emotional trauma and conflicted feelings toward appellant. The court credited testimony that a stable, adoptive home would best serve the children’s needs.

The court emphasized that it must defer to the trial court’s factual findings and not reweigh evidence on appeal. It rejected appellant’s argument that a “best interests” exception existed, reaffirming that no such exception applies under the governing statute. The court concluded that termination of parental rights and placement for adoption was proper given the children’s adoptability and appellant’s failure to rehabilitate adequately over time.

Holding and Implications

The Court of Appeal affirmed the trial court’s orders terminating appellant’s parental rights and denying her section 388 petition to return the children.

The decision directly results in the termination of Robyn R.’s parental rights and the placement of the children in a permanent adoptive home. The court’s ruling confirms that a parent may waive the right to counsel at in camera hearings by stipulation through counsel and acquiescence, and that adoption is the preferred permanent plan when children are found adoptable absent a statutory exception. No new legal precedent was established beyond applying existing California dependency law and appellate authority.

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In re JAMIE R., DYLAN R., and MARKE R., Persons Coming Under the Ju v. nile Court Law; SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent,

YEGAN, Acting P.J.

Robyn R. appeals from an order terminating her parental rights (Welf. Inst. Code, § 366.26, subd. (b)(1)) and an order denying a section 388 petition to return her children. The trial court found that the children were adoptable and that adoption was the least detrimental placement alternative. (§ 366.26, subd. (c)(1).) We affirm.

All statutory references are to the Welfare and Institutions Code.

Facts and Procedural History

On October 17, 1997, Santa Barbara County Child Protective Services (CPS) filed petitions on behalf of Jamie R. (dob 7/11/90), Dylan R. (dob 2/9/94), and Marke R. (dob 7/28/95) alleging that appellant had neglected the children and was not providing for their care. (§ 300, subds. (b) (g).) Appellant had a long history of drug abuse and had been arrested several times for possession of methamphetamine and testing positive for drugs. The petitions alleged that CPS "has repeatedly tried to work with the mother for over a year and a half. The mother has been offered services, including $27,451.51 towards full time child care, to help her regain custody of the child[ren]."

The trial court sustained the petitions and placed the children in foster care. Appellant was provided reunification services. On November 4, 1998, the children were returned to appellant's custody subject to the condition that appellant comply with the family maintenance case plan.

CPS detained the children a second time following appellant's December 18, 1998 arrest on a felony warrant. A supplemental petition was filed alleging that appellant had neglected the children and exposed them to violent drug offenders. (§ 387.) Appellant admitted the allegations. The children were placed in foster care and returned to appellant April 28, 1999.

CPS detained the children a third time on September 10, 1999, after appellant admitted using drugs, was arrested, and tested positive for amphetamine use. A new supplemental petition was filed alleging drug abuse, violation of the family maintenance case plan, and failure to adequately feed the children. Appellant admitted the allegations.

On November 10, 1999, at the combined disposition hearing and 18-month review hearing, the children were removed from appellant's custody. The trial court terminated family reunification services and referred the matter for a section 366.26 placement hearing.

On March 8, 2000, the trial court ordered CPS to find an adoptive home for the children and continued the matter to August 30, 2000. CPS placed the children in a foster/adoptive home on June 7, 2000.

Appellant filed a section 388 petition requesting that the children be returned to her custody. CPS recommended that the children not be removed from the foster/adoptive home. The case worker reported that appellant "has failed over and over again to provide adequate care and supervision for her children. [¶] The children have been returned to [appellant] on two occasions and then removed from her care due to numerous issues including ongoing substance abuse, incarceration, poor parenting skills and an inability to provide a safe and adequate home for her children. The children have incurred great emotional trauma as a result of being removed from their mother, and then returned to her to a marginal situation where their needs were not met, only to be removed again. All three children have acted out aggressively; the boys['] behavior has included tantrums, emotional outbursts and defiance. Jamie [R.] has demonstrated inappropriate sexualized behavior, defiance and running away. All three children have expressed anger toward their mother for her continual neglect of them and refusal to put their needs above her own."

The children's therapist, Judith Nishimori, reported that the children were doing well in the foster/adoptive home. Dylan and Marke told the therapist that they wanted to live with the foster parents. Jamie said that her first preference would be to live with her previous foster mother.

Evidence was also received that appellant refused to submit to a hair follicle drug test on August 3, 2000. The test would have revealed drug usage in the last 90 days. Appellant offered to take a urine test which was refused because she had a history of adulterating urine samples. Although appellant paid for a urine test, the case worker was skeptical of the test results and believed that appellant was using drugs. Appellant had lost a large amount of weight over a short period of time and claimed that she was disabled. When asked about the injury, appellant said that she was taking pain medication and that "when you're in recovery, especially in the early stages of recovery as I am . . ., you have a tendency to cross addict to other things, food, other drugs, anything."

At the outset of the section 388 hearing, appellant's counsel told the trial court that there was a stipulation and that the trial court could interview the children outside the presence of counsel. The trial court spoke to the children and then summarized their testimony. It found that the children had a "definite bond" with the prospective adoptive parents and denied the section 388 petition. The trial court terminated appellant's parental rights based on clear and convincing evidence that the children were likely to be adopted. (§ 366.26, subd. (c)(1).)

In Camera Hearing

Appellant contends that the in camera interview of the children violated her due process rights. At the hearing on the section 388 petition, counsel for appellant stated: "[A]ll counsel have agreed and will stipulate that your honor may privately interview the children in chambers without counsel being present, and subject to that agreement th[at] neither side would call the children as witnesses at this hearing."

Citing In re Laura H. (1992) 8 Cal.App.4th 1689, appellant contends that the stipulation was invalid because she did not personally waive her right of representation and confrontation. In In re Laura H., the trial court interviewed the minor outside the presence of counsel and the parties. The parent's attorney did not object. The Court of Appeal held that "section 366.26, subdivision ([h]) reflects a legislative intent that courts consider, when possible, a minor's wishes before ruling in a termination proceeding. When that expression takes the form of in camera testimony, however, a parent is entitled to the presence of counsel at the in camera proceeding." ( Id., at p. 1697.) The court stated that the parent's right to have counsel present at the in camera hearing "required a personal waiver in order to be bypassed." ( Id., at p. 1695, fn. 8.)

In In re Meranda P. (1997) 56 Cal.App.4th 1143, the Court of Appeal declined to follow In re Laura H., supra, and held that a parent, by acquiescence, may waive his/her right to counsel. The court reasoned that "a dependency proceeding is civil, not criminal, in nature. Thus, a parent in a dependency is not `entitled to full confrontation and cross-examination. . . .' [Citation.] . . . The objective of a civil proceeding to terminate parental rights is not to `prosecute and punish the indigent parent but to protect the child.' [Citation.]" ( In re Meranda P., supra, 56 Cal.App.4th at p. 1157, fn. 9.)

We adopt the same reasoning and conclude that appellant, by her silence and acquiescence, waived her statutory right to have counsel at the in camera hearing. ( Id., at pp. 1155-1158; In re Ebony W. (1996) 47 Cal.App.4th 1643, 1646-1648 [right to counsel waived where parent did not request counsel].) Appellant, through her attorney, invited the trial court to interview the children alone in chambers. Counsel stated: "We just felt it would be appropriate that they not be cross-examined or subject to that on the stand in this hearing." The stipulation was made in open court, in appellant's presence. It is presumed that counsel acted with appellant's authority. (E.g., NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 78-79.) "Once a waiver has occurred, as here, it is unimportant whether the right to counsel is merely statutory (§ 317) or is a right of constitutional significance, as argued by appellant." ( In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.)

In re Laura H is inapposite because appellant invited the trial court to interview the children in camera to spare them the stress of testifying in open court. After the trial court spoke to the children, appellant did not challenge the children's testimony or request a readback of their testimony. (§ 366.26, subd. (h).) The present case is in stark contrast to In re Laura H., where the parent claimed that the "minor was an accomplished liar and . . . minor's testimony would have been different had she been present and able to look the minor in the eye." ( In re Laura H., supra, 8 Cal.App.4th at p. 1693.)

Section 366.26, subdivision (h) states in pertinent part: "The testimony of the child may be taken in chambers and outside the presence of the child's parent . . . if the child's parent or parents are represented by counsel, [and] the counsel is present. . . . [¶] . . . [¶] . . . [¶] After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents."

Although appellant had the statutory right to have counsel attend the in camera hearing, appellant initiated this procedure through her counsel. Assuming there was some error, the doctrine of invited error applies where a party, for tactical reasons, persuades the trial court to follow a particular procedure. The party is estopped from claiming that the procedure was unlawful. (E.g., People v. Barton (1995) 12 Cal.4th 186, 198 [trial court requested not to instruct on lesser included offense]; People v. Hardy (1992) 2 Cal.4th 86, 184 [same].)

Assuming, arguendo, that the trial court erred in not obtaining a waiver from appellant, the error was harmless beyond a reasonable doubt. We have reviewed the transcript of the children's testimony and conclude that counsel's presence at the in camera hearing would not have resulted in a more favorable result. "With respect to a parent's assertion of a violation of the constitutional right to counsel, the parent must also show there was a "determinative difference" in the outcome of the proceeding by reason of the parent's lack of counsel, such that the proceeding was rendered fundamentally unfair to the parent. [Citations.]" ( In re Meranda P., supra, 56 Cal.App.4th at p. 1153.) Appellant has made no such showing.

Termination of Parental Rights

Appellant contends that the trial court erred in finding that the children would not benefit from continuing the parent-child relationship. (§ 366.26, subd. (c)(1)(A).) The argument is without merit.

Where the trial court finds that the child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of four specified exceptions. ( In re Derek W. (1999) 73 Cal.App.4th 823, 826.) One statutory exception is that the "parents . . . have maintained regular visitation with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent has the burden on showing that continuation of the parent-child relationship will 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. . . . 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. (1994) 27 Cal.App.4th 567, 575.)

Here the benefits of a permanent, adoptive home outweighed any detriment the children might suffer if parental rights were terminated. (E.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 811-812; In re Casey D. (1999) 70 Cal.App.4th 38, 51-53.) Although appellant visited the children at least three times between March 8, 2000 and August 30, 2000, these were not positive or nurturing visits. The case worker reported that the children were "consumed with guilt, for being happy where they are and desiring to be part of the adoptive family." The report stated that "Jamie continues to ask for visits with her mother. Dylan and Markie do not. . . . Jamie expresses conflictual feelings about her mother. On the one hand, she wants to live with her mother and to believe that her mother can take care of her. On the other hand, she no longer trusts her mother[']s promises of a good life, and deep down knows that she is much between off where she is now."

Jamie's therapist, Judith Nishimori, voiced similar concerns and stated that "Jamie's perception of life with mother is taking care of mother and not mother taking care of Jamie. . . . [¶] . . . [¶] Jamie will do whatever is necessary to help her mother, even at her own expense. I believe the best placement for the children is one where they will have consistent people in their lives, a stable home life and parents would will set appropriate boundaries, rules and structure for them."

The trial court found that the benefits of a permanent, stable home with the prospective adoptive parents outweighed any detriment the children would suffer if appellant's parental rights were terminated. On review, we may not reweigh the evidence and substitute our judgment for that of the trial court. ( In re Casey D., supra, 70 Cal.App.4th at p. 53.) Adoption is the preferred placement because it offers the prospect of a secure permanent home. ( Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 258; In re Brian R. (1991) 2 Cal.App.4th 904, 924 [cordial father-son visits insufficient to mandate a permanent plan other than adoption].)

Appellant's argument that adoption is not in the "best interests" of the children is without merit. There is no "best interests" exception to the termination of parental rights. ( In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165, fn 2.) While the relationship between appellant and the children is pleasant and emotionally significant to appellant, it bears no resemblance to the daily nurturing that marks a strong parent-child relationship. The trial court did not err in terminating parental rights and placing the children for adoption. "As in almost every dependency case involving substance abuse, appellant waited far too long to take the necessary steps towards recovery." ( In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

The judgment is affirmed.

We concur:

COFFEE, J.

PERREN, J.