In re Baby Girl M.

38 Cal.Rptr.3d 484

135 Cal.App.4th 1528

In re BABY GIRL M., a Minor.

R.S. et al., Petitioners and Respondents, v. Robert W., Objector and Appellant.

Carla W., Plaintiff, v. Robert W., Defendant.

No. D046838.

Court of Appeal, Fourth District, Division One.

January 27, 2006.

Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and Appellant.

Law Office of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman, Burlingame and Seth F. Gorman for Petitioners and Respondents.

Andrea R. St. Julian, under appointment by the Court of Appeal, San Diego, for the Minor.

IRION, J.

In this appeal we review a juvenile court judgment terminating the parental rights of Robert W. under Family Code¹ section 7825 (section 7825) as to his biological daughter, Baby Girl M. Section 7825 authorizes the termination of parental rights when a parent has been convicted of a felony the facts of which "are of such a nature so as to prove the unfitness of the parent" to have "future custody and control of the child." (Id., subd. (a)(2).) In accordance with this statutory language, and the fact that the involuntary termination of parental rights is an extreme measure implicating core constitutional rights, section 7825's reach traditionally has been limited to those situations where a parent commits a heinous felony offense, often against a family member, which in and of itself demonstrates that the parent will be forever unfit to have any measure of custody of his or her children.

In the instant case, the juvenile court terminated Robert's parental rights based on: felony convictions for burglary, attempted burglary and drug possession; an extensive misdemeanor criminal record; and the court's finding that Robert had not "adequately addressed the problems which have led to his criminality." While we recognize the juvenile court's legitimate misgivings about Robert's parental fitness based on his general criminal record, the court's ruling revoking his parental rights on this basis is contrary to the Legislature's intent as expressed in the statutory text of section 7825 and the corresponding legislative history. Our review of those materials demonstrates that the Legislature, in amending the statute in 1976, clearly intended that section 7825 apply to terminate parental rights only where a parent's unfitness is demonstrated by the facts underlying a felony conviction. (Stats.1976, ch. 940, § 2.) Where — as in this case — a parent's fitness is called into question by factors other than the facts underlying a felony conviction, the Legislature intended that courts would apply other statutory provisions relating to child welfare, which as a general matter contain more gradual termination procedures and include procedural safeguards absent from section 7825. Consequently, we reverse.

We also remand, as requested by Baby Girl M.'s prospective adoptive parents, R.S. and K.S. (the S.'s), for the juvenile court to determine guardianship and custody — matters that are by no means resolved by our conclusion that the extreme measure of the permanent termination of Robert's parental rights was unauthorized.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2005, Robert's estranged wife Carla W. gave birth to Baby Girl M. Carla, who claimed that Baby Girl M.'s biological father was not Robert but a man named "Justen," authorized Baby Girl M.'s adoption by the S.'s. Baby Girl M. was placed in the S.'s care shortly after her birth. In March 2005, the S.'s filed a petition in superior court to adopt Baby Girl M. Robert contested the adoption alleging that he was the child's biological father, an allegation that was proven by subsequent genetic testing.

Robert subsequently filed a petition seeking visitation rights and custody of Baby Girl M. In support of his petition, Robert submitted reports by a private investigator who interviewed Robert, his fiancée and his mother. These reports, and later hearing testimony, stated that Robert has been living with his mother, sister, and his other three children since his release from custody in December 2004 and was, according to the interviewees, a good father to these children.

In June 2005, the S.'s filed a petition under section 7825 to terminate Robert's parental rights with respect to Baby Girl M., alleging that Robert's prior felony convictions rendered him an unfit parent; they also petitioned for guardianship of Baby Girl M. The various petitions were consolidated and the juvenile court acted first on the S.'s section 7825 petition, deferring ruling on the guardianship petition and other related petitions filed by the parties.

In July 2005, the juvenile court held a hearing on the section 7825 petition at which the S.'s, Robert, Robert's fiancée, two social workers, and a psychologist testified. The hearing lasted approximately three hours. The evidence adduced at the hearing, examined in the light most favorable to the prevailing party (In re James M. (1976) 65 Cal.App.3d 254, 265, 135 Cal.Rptr. 222 (James M.)), is as follows.

Robert has three felony convictions: (1) a 1991 conviction for attempted burglary; (2) a 1993 conviction for possession of methamphetamine; and (3) a 1997 conviction for burglary. The evidentiary record reveals these convictions to be based on the following facts:

(1) 1991 Attempted Burglary: Robert knocked on the door of a residence and when no one answered drove his car into the driveway, climbed the fence to the backyard and tried to pry open a window with a stick. Robert's unsuccessful efforts to enter the residence were observed, the police were called and he was arrested. Robert pleaded guilty to attempted burglary.

(2) 1993 Possession of Methamphetamine: There was no evidence admitted at the hearing with respect to the facts underlying this conviction, except that Robert pleaded guilty.²

(3) 1997 Burglary: Robert and an accomplice climbed a wall into the backyard of an unoccupied home and opened a bedroom window. After removing a screen, the accomplice went through the window, unlocked a sliding glass door, and both men removed valuables from the house. As they were exiting, a neighbor yelled at them and they dropped some of the valuables and fled in their car. The neighbor recorded the license plate number of the car and they were later apprehended.³

Robert testified at the hearing. He admitted to having the three felony convictions, as well as a number of misdemeanor convictions, including two convictions for domestic violence. He also admitted using methamphetamine extensively in the past, failing to enroll in a spousal abuse treatment course required by the terms of his probation for the most recent misdemeanor domestic violence conviction, and not being currently enrolled in any drug treatment program. Robert's fiancée, a supervisor for the Department of Social Services in Victorville, testified on Robert's behalf, stating that Robert was a good parent to his children and very involved in their lives. She also acknowledged that she had visited Baby Girl M. in the S.'s home and the child appeared comfortable there.

The S.'s each testified, explaining that they had been caring for Baby Girl M. since her birth and she was flourishing in their home. In addition, they stated that were they to be awarded custody of Baby Girl M., they would remain open to her forming and maintaining a relationship with Robert and her biological siblings, Robert's other children. A psychologist, Patricia Yglesias, testified that Baby Girl M. is closely attached to the S.'s, who have become her "psychological parents," and is "thriving" in their home. Yglesias opined that there was a "high likelihood of detriment" if Baby Girl M. were removed from the S.'s care. In part, Yglesias testified, this was because Baby Girl M. had been exposed to methamphetamine and alcohol prior to her birth, making her more vulnerable to negative effects of disruption. If removed from the S.'s custody, Yglesias testified, Baby Girl M. "may have difficulty reestablishing a parent/child relationship that's secure and loving and reciprocal."

At the conclusion of the hearing, the court terminated Robert's parental rights. The court subsequently issued a written ruling with the following pertinent findings:

"(1) Robert W[.] is the biological and presumed father of . . . Baby Girl M[.]

"(2) Robert W[.] is a parent within the meaning of [section] 7825, in that he has been convicted of a felony, the facts of which are of such a nature so as to prove the unfitness of the parent to have the future custody and control of the child.

"(3) In making this determination, the court considered the fact that Mr. W[.] has been convicted of three felonies, as well as having a long history of misdemeanor criminal convictions, and that he has never adequately addressed the problems which have led to his criminality and has failed to show rehabilitation."

"(5) Granting the petition is necessary to serve the child's best interests, and placement of the child with [Robert] would be detrimental to her."

"(7) The parental rights of Robert [W.] to . . . Baby Girl M[.] are terminated."

DISCUSSION

Robert appeals the juvenile court's termination of his parental rights. While Robert frames his appeal as a challenge to the sufficiency of the evidence to support the juvenile court's ruling, his contention is primarily a legal one. Robert contends that a termination of parental rights is not authorized by section 7825 absent some evidence that the facts underlying a felony conviction, as opposed to the mere existence of the conviction or convictions, prove parental unfitness. In light of the express language of the statute, and the case law interpreting it, we are compelled to agree.

I The Fundamental Nature of Parental Rights and Standard of Review for a Termination Order

The termination of parental rights is "a drastic remedy to be resorted to only in extreme cases." (In re Terry E. (1986) 180 Cal.App.3d...