IN RE AUTUMN H

Citation Codes

Equivalent Citations

citation codes

Docket Number

Docket No. D020708.

Advocates

COUNSEL Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent. Carol Archer, under appointment by the Court of Appeal, for Minor.

See more information ...

Smart Summary

Factual and Procedural Background

Alan H.'s four children were taken into protective custody on September 13, 1991, after Alan inflicted serious physical harm by kicking his three-year-old son Stephen, causing significant injuries. Alan's wife Patricia and the older children Michelle and Christine witnessed the abuse. The three older children had previously been dependents of the court due to prior abuse, and a son born during the first dependency had died of sudden infant death syndrome. Autumn, the youngest child, was one year old at the time of removal.

The court declared the children dependents again on October 2, 1991, finding Alan had inflicted serious physical harm, Patricia had failed to protect the children, and the children were at substantial risk of physical abuse. The children were placed with relatives and foster homes. Alan’s reunification plan included parenting classes, alcohol testing, and counseling.

Alan was incarcerated during much of the initial reunification period, then entered residential alcohol rehabilitation and visited the children weekly. Patricia’s reunification services were terminated after 12 months, but Alan’s were extended an additional six months. At the 18-month review hearing, the court ordered the children’s permanent plan to be long-term foster care, as Alan had not demonstrated readiness to care for the children despite some progress.

By October 1993, the Department of Social Services requested a hearing to change Autumn’s permanent plan from long-term foster care to adoption and to terminate Alan’s parental rights. Alan’s counselor reported Alan was unable to care for Autumn full-time and had ceased pursuing reunification. Alan’s visits with Autumn were infrequent and limited, and Autumn was bonded to her foster family, who wished to adopt her.

At the section 366.26 hearing, testimony from the court-appointed special advocate, social worker, foster mother, and adoption social worker described Alan’s relationship with Autumn as that of a "friendly visitor" or "playmate," lacking a strong parental bond. Alan acknowledged the relationship but did not pursue expanded visitation or overnight visits. The court found Autumn adoptable and that terminating Alan’s parental rights would not be detrimental, concluding Alan did not have a father/daughter relationship with Autumn.

Legal Issues Presented

Whether the exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A)—specifically the phrase "benefit from continuing the relationship"—is unconstitutionally vague.
Whether there was substantial evidence that Autumn would benefit from continuing her relationship with Alan so as to preclude termination of his parental rights and changing her permanent plan to adoption.

Arguments of the Parties

Appellant's Arguments

The statutory exception allowing retention of parental rights if the child would "benefit from continuing the relationship" is unconstitutionally vague because it does not define "benefit," leaving too much discretion to the trial court and risking arbitrary enforcement.
There was substantial evidence demonstrating that Autumn derived benefit from continuing her relationship with him, and no changed circumstances justified terminating his parental rights and changing the permanent plan to adoption.

Respondent's Arguments

The statute is not unconstitutionally vague and provides sufficient guidance for courts to determine whether the parent-child relationship confers a benefit to the child.
Substantial evidence supports the termination of Alan’s parental rights because Autumn’s relationship with Alan was limited and more akin to a "friendly visitor," and she was bonded to her foster family who sought to adopt her.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Heather B. (1992) 9 Cal.App.4th 535	Adoption is the preferred permanent plan under dependency law.	Supported the court’s preference for adoption over other permanent plans unless exceptional circumstances exist.
In re Brian R. (1991) 2 Cal.App.4th 904	Parent bears burden to prove exceptional circumstances to avoid termination of parental rights after failed reunification and adoptability finding.	Guided the court in evaluating whether Alan met the burden to show benefit from continuing the relationship.
In re Jesse B. (1992) 8 Cal.App.4th 845	Standard of review for sufficiency of evidence in parental rights termination cases.	Instructed the court to review evidence in the light most favorable to the order sustaining termination.
In re Tracy Z. (1987) 195 Cal.App.3d 107	Presumption in favor of the juvenile court’s order and standard of appellate review.	Applied in reviewing the sufficiency of evidence supporting termination of parental rights.

Court's Reasoning and Analysis

The court first addressed the constitutional vagueness challenge to the phrase "benefit from continuing the relationship" in section 366.26, subdivision (c)(1)(A). It explained that the dependency law’s purpose is to protect abused and neglected children and provide them with stable, permanent homes, preferably through adoption. The court reasoned that the "benefit" exception requires the parent to show the parent-child relationship promotes the child’s well-being to such a degree that it outweighs the benefits of adoption.

The court emphasized that the exception applies only when there is a significant, positive emotional attachment resulting from regular visitation and contact, not merely incidental benefits. The court noted that the statute must be interpreted in light of the dependency process, which typically lasts 12 months or more, allowing the nature of the parent-child relationship to be assessed with input from social workers and professionals.

The court concluded the statute’s language was not vague and sufficiently clear to guide judicial discretion, making it impractical for the Legislature to draft a more precise standard.

On the sufficiency of the evidence, the court reviewed the record in the light most favorable to the order terminating parental rights. It found substantial evidence that Autumn’s relationship with Alan was limited to that of a "friendly visitor" or "playmate," lacking a strong parental bond. Autumn was bonded to her foster family, who provided a stable and structured environment suited to her developmental needs. The court found no exceptional circumstances to forego adoption and concluded that terminating Alan’s parental rights served Autumn’s best interests.

Holding and Implications

The Court affirmed the order terminating Alan H.’s parental rights and changing Autumn H.’s permanent plan from long-term foster care to adoption.

The decision directly affects the parties by legally freeing Autumn for adoption and terminating Alan’s parental rights. The court’s interpretation clarifies the meaning of the "benefit from continuing the relationship" exception under section 366.26, reinforcing the legislative preference for adoption and establishing that only a substantial, positive emotional attachment can preclude termination. No new precedent beyond this interpretation was set.

Show full summary ...

In re AUTUMN H., a Person Coming Under the Ju v. nile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

OPINION

WORK, J.

Alan H. appeals after the court changed his dependent daughter Autumn H.'s permanent plan from long-term foster care to adoption and terminated Alan's parental rights under Welfare and Institutions Code section 366.26. Alan contends the exception to termination of parental rights in section 366.26, subdivision (c)(1)(A), is unconstitutionally vague because it does not define the word "benefit." Alan further contends there was substantial evidence showing his daughter derived benefit from continuing her relationship with him and no change of circumstances existed to warrant terminating his rights and changing the plan to adoption. We affirm the order.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND

Alan's four children were taken into protective custody on September 13, 1991, after Alan kicked three-year-old Stephen, causing head, facial and back lacerations. Alan's wife Patricia, seven-year-old Michelle and six-year-old Christine saw the kicking. The girls reported Alan hit them with a paddle. Autumn was then a year old. The three older children were dependents of the court between 1988 and 1990 after Stephen's arm was nonaccidentally fractured. A son born during the first dependency died of sudden infant death syndrome at four months of age.

Patricia did not reunify with the children and does not appeal.

Autumn was born on August 25, 1990.

The court declared the children dependents a second time on October 2, 1991, finding Alan had inflicted serious physical harm on a child, Patricia had failed to protect the children and the children were at substantial risk of physical abuse. (§ 300, subds. (a) and (j).) The court placed Michelle and Christine with their maternal grandparents and Stephen and Autumn in foster homes. Alan's reunification plan included parenting classes, alcohol testing and counseling.

The parents did not successfully reunify with their children. Alan was incarcerated during most of the first six months of reunification, apparently as a result of kicking Stephen. Upon release, Alan entered a residential alcohol rehabilitation facility. He visited the children on a weekly basis. Alan was unemployed and lived on disability benefits for anxiety disorder. He experienced panic attacks. On November 25, 1992, the court terminated reunification services for Patricia after 12 months, but continued Alan's services for an additional 6 months.

At the 18-month review hearing on April 7, 1993, the social worker reported Alan wanted custody of the children but had a limited understanding of the children's day-to-day caretaking and emotional needs. Alan's counselor reported Alan made progress, but the counselor doubted Alan's commitment to reunification because Alan ceased attending alcohol abuse aftercare. The counselor thought Alan was not ready to care for the children, but unsupervised and overnight visits should be considered. The counselor commented "[M]y report speaks only to Alan's perspective, and that the children's long-term stability might well be more effectively served by a long term plan. However, I urge that some consideration be given to the possibility that Alan's changes will become permanent, and make him a serious option in his children's future." The court ordered the children's permanent plan to be long-term foster care.

The grandparents were later granted guardianship of Christine and Michelle and Alan did not appeal that order. Stephen remains in long-term foster care.

Autumn

By October 5, 1993, the department of social services (Department) requested a selection and implementation hearing to change Autumn's permanent plan. Alan's counselor reported Alan was not able to care for Autumn on a full-time basis. Alan said he did not want to pursue reunification with Autumn because she was bonded with her foster family and would suffer if her placement were changed. Alan had been evicted from his home and lived with his girlfriend in a one-bedroom motel. He lost his Alcoholics Anonymous sponsor.

For five months the social worker urged Alan to follow a step-by-step process which would prepare Autumn for expanded visitation, but Alan did not make any attempt. He visited Autumn one hour per week but only once took her out of the foster home.

Autumn's developmental evaluation in April 1993 revealed she had made good progress in foster care. Autumn initially had low-muscle tone and was unable to walk until 15 months of age. Approaching three years of age, Autumn was outgoing, inquisitive and vivacious. She had excellent self-help abilities and a wide-ranging vocabulary. The evaluating psychologist noted Autumn's high activity rate may foreshadow hyperactivity or attention deficit disorder and Autumn "will continue to benefit by placement in a structured, stable home environment that can provide her with predictable routines."

Autumn's foster parents wished to adopt her and were willing to continue contact with her siblings and Alan. The court set a selection and implementation hearing on October 5, 1993.

Section 366.26 Hearing

Autumn's court-appointed special advocate (advocate) testified she observed four visits between Alan and Autumn. Alan allowed Autumn to do whatever she wished, including dangerous activities. He visited her 22 times in 1993. The advocate described Autumn's interaction with Alan "as with a family friend." The advocate did not think a strong bond existed between Autumn and Alan.

The social worker testified she initially recommended long-term foster care for Autumn because she believed Alan would "take the initiative to reunify." By October 1993, the social worker realized Alan had not developed a father/daughter relationship with Autumn. She thought Autumn enjoyed her visits with Alan.

The foster mother testified Alan visited Autumn about half of the time offered. Alan did not ask the foster mother about Autumn but discussed his own personal problems. Autumn viewed Alan as a "play mate" and directed the activity between them. Autumn's sisters stayed with the foster mother on certain weekends and when the grandparents vacationed. The foster mother said she wanted to adopt Autumn and intended to continue contact with Autumn's birth relatives.

The adoptions social worker testified she did not feel it would be detrimental to Autumn to terminate Alan's parental rights. After observing Alan's visits with Autumn, the adoptions social worker believed Autumn thought of him not as a parent but as a "friendly visitor." The adoptions worker was of the opinion Alan did not have the capacity to form a parent/child relationship.

Alan testified Autumn referred to him as "Daddy Alan." He acknowledged there were times he should have set limits for Autumn but it was "tough" for him because they were trying to have a good time. Alan knew the social worker encouraged him to work toward overnight visits but he did not "see why there would be any reason for it."

On February 16, 1994, the court found by clear and convincing evidence Autumn was adoptable and it would not be detrimental to her to terminate Alan's parental rights. The court further found Alan did not have a father/daughter relationship with Autumn but a "friendly visitor" relationship, which would not preclude severing parental rights. The court severed Alan's rights and referred Autumn for adoptive placement.

DISCUSSION Constitutionality

The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. (§ 300.) Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. (§ 366.25, subd. (a); § 366.26, subd. (b).) That child must be placed for adoption, in guardianship, or in long-term foster care. (§ 366.26, subd. (b).)

(1) Adoption, where possible, is the permanent plan preferred by the Legislature. ( In re Heather B. (1992) 9 Cal.App.4th 535, 546 [ 11 Cal.Rptr.2d 891], citing the Sen. Select Com. on Children and Youth Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes and Child Welfare Services (1987-1988 Reg. Sess.) p. 11.) "Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered." ( In re Brian R. (1991) 2 Cal.App.4th 904, 924 [ 3 Cal.Rptr.2d 768].) Adoption, of course, requires terminating the natural parents' legal rights to the child; guardianship and long-term foster care leave parental rights intact. After the parent has failed to reunify and the court has found the child likely to be adopted, it is the parent's burden to show exceptional circumstances exist. ( Id. at pp. 923-924.)

The four situations to forego adoption and retain parental rights are where the court finds that termination would be detrimental to the minor due to one of the following circumstances:

"(A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.

"(B) A minor 12 years of age or older objects to termination of parental rights.

"(C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.

"(D) The minor is living with a relative or foster parent who is unable or unwilling to adopt the minor because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the minor, but who is willing and capable of providing the minor with a stable and permanent environment and the removal of the minor from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the minor." (§ 366.26, subd. (c)(1).)

(2a) Alan contends the "benefit from continuing the relationship" exception to terminating parental rights is unconstitutionally vague because it fails to set forth guidelines on the type or extent of the "benefit" the parent must prove. He claims the vagueness confers unreasonable discretion on the trial judge, creating the danger of arbitrary and discriminatory enforcement.

(3) "As a matter of due process, a law is void on its face if it is so vague that persons `of common intelligence must necessarily guess at its meaning and differ as to its application.' Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork." (Tribe, American Constitutional Law (2d ed. 1988) § 12-31, p. 1033, fn. omitted.) The person challenging a statute as vague must ordinarily show he or she is one of the "entrapped innocent" and it would have been practical for the Legislature to draft more precisely. ( Ibid.)

(2b) We find no reported cases addressing the standard a court must use in determining if a parent/child relationship should continue under the section 366.26, subdivision (c)(1)(A) exception. A finding no exceptional circumstance exists is customarily challenged on the sufficiency of the evidence. (See In re Jesse B. (1992) 8 Cal.App.4th 845, 851 [ 10 Cal.Rptr.2d 516] ; In re Brian R., supra, 2 Cal.App.4th 904, 924.) We therefore treat the question as one of first impression.

In the context of the dependency scheme prescribed by the Legislature, we interpret the "benefit from continuing the [parent/child] relationship" exception to mean the relationship 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.

(4) Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. (See Goldstein et al., Beyond the Best Interests of the Child (1973) p. 17.) The relationship arises from day-to-day interaction, companionship and shared experiences. ( Id. at p. 19.) 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.

At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond.

(2c) We conclude the meaning of section 366.26, subdivision (c)(1)(A) is clear and it would not have been practical for the Legislature to draft the statute more precisely.

Sufficiency of the Evidence

(5a) Alan next argues the evidence shows Autumn would benefit from continuing her relationship with him and there was insufficient evidence to terminate his rights and change Autumn's permanent plan to adoption. (6) On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. ( In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 [ 240 Cal.Rptr. 445] ; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, p. 289.)

(5b) At the time of the selection and implementation hearing, Autumn was three and one-half years old. She had been removed from Alan's custody two and one-half years earlier. The social workers and foster mother uniformly characterized Alan's relationship with Autumn as that of a "friendly visitor" and "family friend." Alan conceded Autumn was bonded to her foster family and would suffer if she were disrupted. His relationship with Autumn consisted of visiting to play with her for approximately an hour every other week. He was unable to set limits for her.

Autumn's developmental report indicated Autumn had a greater than average need for a structured home environment with predictable routines because of her high activity level. Substantial evidence supports the court's finding terminating the relationship between Alan and Autumn would not be detrimental to her because the relationship was one of friends, not of parent and child. Autumn had been a dependent for three-quarters of her young life and needed a stable, permanent home. The court properly concluded no exceptional situation existed to forego adoption.

Circumstances did change from the time of the long-term foster care order in April 1993 and the selection and implementation hearing in February 1994. The long-term foster care order envisioned expanded visitation and active parenting by Alan. However, Alan did not follow through, his housing was not suitable and Autumn's need for stability because of her high activity level became known. It was undisputed Autumn was bonded to her foster family and the family wanted to adopt her. When a child is in long-term foster care and the court has not dismissed jurisdiction, the appropriateness of placement and the progress made to provide a permanent home must be regularly assessed. (§ 366.3.) Here substantial evidence supports the order terminating Alan's parental rights and freeing Autumn for adoption.

DISPOSITION

Order affirmed.

Kremer, P.J., and Froehlich, J., concurred.

Appellant's petition for review by the Supreme Court was denied October 27, 1994.