Marcelo B: No abuse of discretion in denying F reunification bypass order where he could not show alcohol treatment led to change in circumstances.
By Garrett C. Dailey, family law specialist
FACTS: Alcoholic parents appealed from orders denying father’s (F’s) request to change an order to bypass family reunification services per Welfare and Institutions Code section 388, and terminating their parental rights to their 5-yr.-old son (C). They contended juvenile ct. abused its discretion when it denied the section 388 petition because F showed as changed circumstances his participation in alcohol abuse treatment. They also contended the court erred in terminating their parental rights because they maintained regular visitation with C and he would benefit from continuing their relationship. Court of Appeal affirmed.
HELD: No abuse of discretion in denying F’s request to change reunification bypass order where he could not show alcohol treatment was changed circumstance; parental rights properly terminated based on a history of alcoholism and DV.
(1) F’s participation in 12-meetings, completion of a substance abuse program and attendance at parenting classes was not prima facie evidence of a change in circumstances because he had already received extensive treatment for his alcoholism. Treatment allowed him a period of sobriety, but he relapsed four months after reunifying with C. He again lost custody, and re-entered alcoholism treatment, but continued to deny his history of domestic violence (DV) and the negative impact his alcoholism had on C. Juvenile ct. properly found F’s “belated choice to return to treatment [wa]s no guarantee that he will achieve or maintain the sobriety required for him to be a parent to [his child].” (In re Marcelo B., supra, 209 Cal.App.4th at p. 642.) No abuse of discretion.
(2) Welfare and Institutions Code section 366.26(c)(1)(B)(i) beneficial relationship exception.
Court of Appeal noted a prior dependency case established that parents’ alcohol abuse caused them to neglect C and expose him to DV. After resulting family reunification, parents promptly relapsed, and both denied the extent of their alcohol abuse and its negative impact on their ability to parent C. Both parents missed numerous supervised visits and court hearings because of alcohol abuse. Even after the present dependency proceeding began, parents were involved in alcohol-fueled violence toward each other.
F testified, and mother agreed, that they were a “very loving family[,]” and that their family environment was “wonderful.” Social worker testified that C sometimes seemed excited to see his parents and that the family was affectionate with each other during supervised visits. On the other hand, C easily separated from parents when the visits were over and returned to his caregivers with no behavioral issues. Court noted C had lived nearly half of his life with his caregivers, a paternal aunt and her husband, who were involved with him since his birth and provided him with “a loving, safe and nurturing home environment.”
The above was substantial evidence supporting the court’s findings that C would not suffer detriment from the termination of the parent-child relationship. Juvenile ct. properly found no beneficial parental relationship sufficient to overcome the statutory preference for adoption.
“We affirm the trial court’s orders which rescue [this child] and allow him the opportunity for a normal childhood. We are sorry for the parents who, notwithstanding their alcoholism, love their son. This is not enough. To the extent they had a choice, they have chosen alcohol instead of their son. If deeply entrenched alcoholism deprived them of choice, it matters not. The Legislature has determined that the protection of the child is paramount.” (In re Marcelo B., supra, 209 Cal.App.4th at pp. 644-645
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
Comprised of family law judges, lawyers, and psychologists, the Custody Committee of the American Bar Association’s Family Law Section is working hard to consider how to balance the weighty considerations on all sides of often difficult child custody issues.