Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.Nos. J202305, J202306
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P.J.
Appellant G.S. (mother) appeals from the juvenile court’s orders terminating her parental rights to her daughters A.R. and G.R. at a hearing held on April 29, 2008, pursuant to Welfare and Institutions Code, section 366.26. Mother argues: 1) the juvenile court erred in finding the children adoptable because they have a strong bond with their three siblings; and 2) the court erred when it found that the parental benefit exception to adoption does not apply. The children’s father, E.R., (father) joins in this appeal, pursuant to California Rules of Court, rule 8.200(a)(5). As discussed below, we reject these arguments and affirm the juvenile court’s orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
A.R and G.R. lived with mother, father and their three older half-sisters before being removed from the home in June 2005. At the time, A.R. was 1 year old, G.R. was 3, and the half-sisters were ages 7, 9 and 10. The Department of Children’s Services (DCS) had received three referrals since November 2004 regarding the half-sisters, alleging that they had chronic head lice and serious dental issues. The family had been on voluntary family maintenance since February 2005, and mother had not complied with DCS recommendations and services during that time.
Section 300 Petition
The section 300 juvenile dependency petitions alleged that mother and father had failed to protect the children (§ 300, subd. (b)), specifically: 1) mother had failed to follow up with the dental provider regarding the three half-sisters’ urgent need for dental care, and had failed to maintain Medi-Cal coverage necessary for the girls to receive dental care; 2) mother suffers from mental illness or depression, and had told family members “I don’t give a damn about life any more and I want to end my life and take my daughters with me;” 3) both mother and father suffer from substance abuse that impacts their judgment and ability to care for the children; and 4) father failed to provide for the physical and emotional needs of the children.
Detention
In the detention report, filed June 21, 2005, the social worker recommended A.R., G.R., and their half-sisters be detained in foster care. Mother had failed to follow up on treatment for fungus on the gum line for one of the half-sisters. The girl had received antibiotics in April 2005, but had run out and mother had missed two scheduled follow-up appointments. Another of the half-sisters missed seven dental appointments between December 2004 and May 2005, including two follow-up appointments after an April 2005 appointment in which the girl had teeth extracted and a root canal performed. Mother also failed to follow up with the third half-sister’s need for extractions and pulpotomy. Mother had allowed her Medi-Cal insurance coverage to lapse.
The half-sisters told social workers that their mother often did not get out of bed in the morning to help them get to school, and that they go to school unwashed and in soiled clothing. Social workers had on four occasions provided mother with lice shampoo and had instructed her on its use, but the older girls stated that they washed their own hair and helped each other to comb out the nits. The younger children, A.R. and G.R., were found to be unwashed and in soiled clothing. The older girls told social workers that mother cries often and is sad about not having money or food in the home.
Relatives told social workers that mother and father have histories of methamphetamine use and that the maternal grandfather, who resides at the same residence, was arrested in June 2005 for possession and sale of a controlled substance.
The father of the older half-siblings was at that time in federal prison for transporting illegal substances across state lines and was expected to be deported upon release.
At the detention hearing held June 21, 2005, the juvenile court detained all five children and ordered visitation. The hearing had to be continued from the morning session because mother had taken the youngest three children to the home of a friend after learning the oldest two had been taken into DCS custody while at school. The court ordered mother to tell the social worker where the three children were so they could be taken into custody. The court reconvened the hearing in the afternoon after the three children were located.
Jurisdiction and Disposition
In the jurisdiction and disposition report filed with the court on July 11, 2005, the social worker recommended the children remain in foster care and the parents receive reunification services. The report detailed mother’s numerous prior referrals for physical abuse and/or general neglect: one in 1994, one in 1999, three in 2000, one in 2002, two in 2003, three in 2004, and one in March 2005. All were determined inconclusive or unsubstantiated, with the exception of the last two. The report detailed mother’s failure to follow through with plans for dental care for the three oldest children and to keep their Medi-Cal coverage current. In March 2005, during the family maintenance period, mother contacted the social worker and stated father was hardly working and they had no money for food. The social worker provided the family with a grocery voucher, which the parents allowed to expire unused. The social worker also reported that, during the family maintenance period, all of the children except A.R. were found on each visit to be heavily infested with head lice, and that the home was usually “in a deteriorated condition due to lack of general cleaning and maintenance.” A health aid at the school attended by the three older half-sisters stated that the school amended its policy for head lice just for this family, because if the girls were sent home they may not return for several weeks. During this period, the social worker warned mother that she could lose her children if she did not take steps to clean her home and maintain Medi-Cal coverage for her children. Mother replied that “DCS could try and find her children before they were taken, you will not find them.” On another occasion, mother told the social worker that she would take her children to Mexico so DCS would never find them.
The jurisdiction and disposition hearing held on July 12, 2005, was continued to August 10, 2005, for trial.
The social worker filed an addendum report on July 21, 2005, in which she detailed DCS efforts to work with mother and father during the voluntary family maintenance period. Mother had been generally uncooperative with the social workers’ efforts to address the older girls’ dental issues and lack of school attendance, Medi-Cal coverage, lice infestations and housecleaning deficiencies. The report also addressed mother and father’s failure to drug test when requested by DCS, and later by the juvenile court.
On July 28, DCS filed amended section 300 petitions alleging that father’s ability to parent is unknown (no provision for support, § 300, subd. (g)).
At the jurisdiction and disposition hearings held on August 10 and 11, 2005, mother and father testified, along with two social workers. On the witness stand, mother denied taking illegal drugs in the last three years. She also denied any mental illness or depression, and specifically denied having said “I don’t give a damn about life anymore, and I want to end my life and take my daughters with me.” Mother admitted to having refused to drug test on four separate occasions during family maintenance, stating it was not necessary because she did not have a drug problem. Mother denied that any of the older children had serious dental problems, except for the one with the gum fungus. She admitted that her children suffered from head lice, but stated that the lice “wouldn’t stay more longer than basically two or three weeks. Maybe a month. . . . [¶] . . . I didn’t see a problem, so long as I . . . not let it go on for a year or two years, you know.”
Father testified that he attempted to drug test three times, but could not because there were problems with his identification or paperwork. He denied having been arrested for possession, sale or transportation of drugs. He denied any responsibility for the children’s head lice, their dirty clothing, or the housekeeping issues, because he works five days per week.
Social worker Ivery testified about her efforts to contact and then work with mother beginning in December 2004, after the latest referral in November 2004. She stated that she started visiting the home in December, but after having left “so many cards” with the children’s caretakers, she was not able to contact mother until February 2005. Ivery stated that she provided mother with lice shampoo and instructions on how to rid the children and the home of lice. She stated the case was transferred to another social worker because her supervisor and other social workers agreed that the family needed a higher level of intervention because of their “ongoing chronic problem[s].”
Social worker Roberg testified that she had provided counseling referrals to both mother and father, and that both had attended intake appointments, but had not returned to begin sessions. She also stated that she had provided father with identification so that he could drug test, but that he had subsequently failed to drug test three times. Roberg described in detail the efforts DCS had made to keep the children in the home, including 23 home visits by a social worker, five home visits by the public health nurse, providing lice shampoo on four or five occasions, a food voucher that went unused, and an offer of transportation to the transitional welfare office to get the Medi-Cal issues straightened out. However, Roberg testified that DCS decided to remove the children because the parents were not motivated to improve, and that after nine months of family maintenance, conditions for the children had gotten worse rather than better. Finally, Roberg testified that mother was arrested in February 2005 for an “educational code violation” because the older three girls had missed so much school, currently had a warrant out for her arrest on that matter, and was again taken into custody after testifying at the jurisdiction and disposition hearing.
After argument, the court made true findings as to A.R. and G.R., under failure to protect, section 300, subdivision (b), only as to the allegations that mother failed to obtain dental care for the children’s older half-sisters and this put the children at risk for serious health problems and that the parents failed to adequately provide for the children’s physical and emotional health, as evidenced by the chronic lice and failure to maintain the home in a safe and healthy condition. The court found “not true” as to the allegation that mother suffers from a mental illness and found insufficient evidence to establish that either parent had a drug problem.
The court removed all five children from parental custody and placed them in foster care. The court granted parents weekly one-hour supervised visitation and ordered reunification services.
Six-Month Review
In the six-month review report filed with the juvenile court on February 8, 2006, DCS recommended the children remain in foster care and the parents continue to receive reunification services. The social worker reported that all five children were initially placed together in the same foster home, but the oldest girl was moved to another home after she exhibited extreme parentalization that interfered with the foster mother’s direction of the other children. The children visited with each other weekly. The social worker commented that both A.R. and G.R. appeared bonded with their siblings and parents during visits, and particularly so with father, and he was affectionate with both girls.
The social worker reported that the parents attended only about one-half of the scheduled visitations, either because they did not show up, or arrived more than fifteen minutes late so that the visits had to be cancelled. The social worker set up a time for weekly phone calls between the children and the parents, at the children’s request. However, of the two numbers the parents provided for the children to call, one number was consistently out of service and the other was unanswered.
Mother saw a therapist for ten sessions. The therapist concluded that mother would not take responsibility for her part in the children’s removal, and consistently blamed others. The therapist diagnosed mother with a narcissistic personality disorder, and stated that in such cases the health, safety and welfare of a person’s children is generally not a priority.
The parents set the hearing contested because they wanted to have the children returned to them.
In an interim review report filed on March 9, 2006, the social worker reported that on February 14, mother once again arrived at the DCS for a visit with the children after the children had already left. Mother then went to the home of the foster mother, whose address is supposed to be confidential, and demanded to see the children. During another visit, mother told the children that they would be coming home in March.
After the contested hearing, the court ordered the children to remain in foster care and authorized six more months of reunification services. The court continued visitation and authorized the social worker to liberalize as to duration and frequency if appropriate.
12-Month Status Review
In the 12-month status review report filed with the juvenile court on July 27, 2006, CPS recommended terminating reunification services because the parents had shown little or no change and shown no motivation to reunify, because of either substance abuse issues or indifference. The parents had progressed from supervised visitation at the DCS office to regular, unsupervised visits at a local restaurant. However, the goal of having visits progress to the parents’ home was not reached because the parents continued to live with the maternal grandfather, who had a history of selling illegal drugs from the home. The social worker expressed concern that if the children were returned to their parents, DCS would eventually have to detain them again.
At the hearing held on August 8, 2006, the court terminated reunification services and set a section 366.26 selection and implementation hearing. Visitation was continued.
On October 12, 2006, the social worker filed an ex parte packet asking the court to suspend visitation with the parents until all five children were placed at the concurrent planning home of their paternal cousin, E.H. The social worker requested that visitation be resumed on a monthly basis. The reasons for this request were: 1) mother became angry with one of the older girls and twisted her wrist after mother found out the girl had hoped mother would not show up for the visit so they could instead have an overnight visit with E.H., the prospective guardian; 2) the girl told the social worker that mother had told the girls she will kidnap them; 3) both parents had been arrested and arraigned for drug possession and sales; and 4) the parents were having marital problems, and the mother had been physically abusive toward father, and had thrown boiling water on him. On November 1, 2006, the juvenile court suspended visits until December 1, and reduced mother’s visits to once per month, father’s visits to twice per month, and to be separate from each other.
E.H. is related to the father of the three older girls.
First Section 366.26 Selection and Implementation Hearing
In the section 366.26 report filed with the court on November 29, 2006, DCS recommended all five children be placed under the guardianship of E.H. In an addendum filed on December 5, 2006, the social worker discussed the suitability of E.H. to act as legal guardian. The social worker also reported that the oldest girl had disclosed that father (her step-father) had sexually abused her on more than one occasion. The three older girls had also disclosed that a paternal uncle had molested each of them on more than occasion while they were living at home. The girls said they did not tell their mother, but that mother suspected what was happening and confronted the uncle, but quickly believed him when he denied it. The girls stated they were afraid to say anything more for fear that they would be abused more severely. The social worker also reported that mother and father had violated the court’s order by showing up at E.H.’s home while her visitation was suspended, causing one of the older girls to be terrified.
At the section 366.26 hearing, the parties submitted on the report and addendum. The court appointed E.H. the children’s guardian. While the court found that a termination of parental rights would not be detrimental to the children, it found that guardianship was an appropriate permanent plan because E.H. was unable or unwilling to adopt. The court also ordered supervised monthly visits for both parents.
On February 28, 2007, the social worker filed an ex parte request asking the court to suspend mother’s visitation for interfering with the placement. E.H. had come to the DCS office asking to have A.R. and G.R., to whom she is not related, removed from her care because mother was making it difficult for the children to stabilize and move forward emotionally. Mother had sent an unknown person to E.H.’s home to deliver a handwritten letter to the children. E.H. believed the letter was a friendly one and began to read it to the children. However, the letter became more disturbing, including accusations that the three older girls had lied about the sexual abuse. Both E.H. and the children became very upset. After a hearing on April 4, 2007, the juvenile court suspended mother’s visitation.
Section 387 Petition
On April 13, 2007, DCS filed a section 387 supplemental petition for more restrictive placement for A.R. and G.R. E.H. was requesting that both girls be removed from her care immediately because they require more time and attention than she is willing to give. The two girls were placed with their former foster parents the next day. At the detention hearing held on April 19, 2007, the juvenile court detained the two children, authorized unmonitored weekly visitation with E.H., and reinstated weekly monitored visitation with mother and father.
In the jurisdiction and disposition report filed with the court on May 4, 2007, DCS recommended the two children remain with the foster parents. The social worker noted that the children had rapidly adjusted to this placement and were doing well. At the hearing held on May 10, 2007, the juvenile court terminated the guardianship and authorized continued weekly monitored visits with mother and father. The court set the section 366.26 hearing for September 10, 2007.
On July 6, 2007, the social worker filed an ex parte packet regarding a visit to the foster parents to discuss permanency. The foster mother was unable to consider adoption because her husband had become ill and required a great deal of care.
Second Section 366.26 Selection and Implementation Hearing
On August 22, 2007, DCS filed a motion asking to postpone the section 366.26 hearing. A.R. and G.R. were still with the original foster parents. The social worker required more time to find a concurrent home for them, allowing additional time for A.R. and G.R. to adjust prior to the section 366.26 hearing. The court granted the motion and continued the hearing to December 10, 2007.
A.R. and G.R. were placed in a prospective adoptive home on October 23, 2007.
In the section 366.26 report filed with the court on November 20, 2007, DCS recommended the court select adoption with the prospective adoptive parents as the permanent plan. A.R. and G.R. were adjusting well to their new home. Mother had been visiting them consistently and was arriving on time. Mother was mostly appropriate with the children, except that she caused G.R. to have nightmares when she whispered into her ear at a visit that she was going to live with mother. Mother was in custody from June 1 to August 20, 2007 for violating a warrant. Upon her release, mother attempted to have an unauthorized visit by showing up at the foster home. At the time of the report, father was incarcerated.
The adoptions social worker filed an interim report and adoption assessment on December 7, 2007. The social worker reported that the children, ages three and five, appeared happy in their new home, and that the prospective adoptive parents had already bonded to them. The social worker also reported that the two girls have a strong sibling bond with each other. The girls do not ask about their three older siblings, or about their mother. The social worker concluded that “It is likely that G.R. and A.R. were affected from their separation of their older siblings. Although they have not demonstrated any adverse reaction to that separation it is in their best interest to allow the children to maintain a level of relationship that will promote a healthy sibling bond.” The social worker recommended quarterly sibling visits. The main conclusion of the report was that the girls were young enough and carefree enough to bond with the prospective adoptive parents and that the prognosis for successful bonding was good.
The section 366.26 hearing was first continued to December 19, 2007 because mother wanted to contest based on her parental bond with the girls. DCS then twice requested the hearing be continued so it could perfect notice under the Indian Child Welfare Act. The hearing was to be held on April 15, 2008.
In an addendum report filed March 17, 2008, DCS again recommended termination of parental rights and adoption by the prospective adoptive parents. The social worker reported that the girls call them “mom” and “dad” and five-year-old G.R. “constantly seeks reassurance that they are a family.” The social worker concluded that the sibling bond should not be a barrier to adoption because the girls do not ask about their older siblings or exhibit any behavioral or emotional problems because of the separation, and the prospective adoptive mother had only heard the girls mention one of the siblings on one occasion. A.R. and G.R. had not yet visited with their older siblings since coming to live with the prospective adoptive parents, who state they have left an open invitation to E.H., but E.H. has indicated she and the older girls and her own three children “lead quite busy lives.”
An addendum report filed April 14, 2008, was similarly positive, describing that A.R. and G.R. enjoy their visits with mother, but “also appear to anticipate when the adoptive mom returns to pick them up and run to her and hug her once they see her.” The social worker noted that the younger girl, A.R., at times pretends to regress to baby talk and pouting during some visits with mother.
On April 15, 2008, the minors’ counsel requested a continuance to inquire into the position of the two oldest siblings regarding the proposed adoption of the youngest two. The matter was continued to April 29, 2008. At the notice review hearing on April 24, 2008, the minors’ counsel stated that a notice had been sent to the home of the older siblings, but no reply had been received. The minors’ counsel indicated this would be taken as a lack of objection, and was prepared to proceed with the hearing as scheduled.
At the section 366.26 hearing finally held on April 29, 2008, mother was the only person to testify. Mother testified that she visits A.R. and G.R. weekly, that they call her “Mommie” and that G.R. says “I love you.” After argument from the parties, including mother’s argument that the parental benefit exception should apply, the juvenile court terminated mother and father’s parental rights and selected adoption as the girls’ permanent plan. This appeal followed.
Discussion
1. Adoptability
Mother contends that insufficient evidence supports the finding that A.R. and G.R. are adoptable, because they are part of a closely bonded sibling group. Mother further argues that the “issue of adoptability, when coupled with the fact that these two children are part of a bonded sibling group, triggers an analysis of the case in light of the ‘beneficial sibling relationship’ exception to adoption of section 366.26, subdivision (c)(1)(B)(v).” DCS counters that, because mother did not raise the sibling bond issue below, she is precluded from arguing it on appeal.
Mother could have asserted the sibling relationship exception in the trial court at the selection and implementation hearing as affecting her own rights. She did have standing to raise it there because under general standing requirements, she is a party directly aggrieved by a decision concerning whether that exception applies since it directly impacts the parent’s interest in reunification. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948-950; In re Erik P. (2002) 104 Cal.App.4th 395, 402.).
Mother would have born the burden of proof of establishing the exception in the trial court. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Mother made no attempt in the trial court to present evidence on the issue or to argue that the sibling relationship exception applied. Since she did not raise the issue below, she has forfeited the right to raise it on appeal. (In re Erik P., supra, 104 Cal.App.4th at pp. 401-403.)
However, a claim that the evidence was insufficient to support the finding of adoptability is not waived by failure to argue the issue in the juvenile court. (In re Erik P., supra, 104 Cal.App.4th at pp. 395, 399.) We will therefore consider this issue on the merits. The juvenile court’s determination that a child is adoptable is reviewed under the substantial evidence test. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights “[i]f the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21[] or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted . . . .” In determining adoptability, the focus is on whether the child’s age, physical condition, and emotional state will create difficulty in locating a family willing to adopt. (In re Sarah M.(1994) 22 Cal.App.4th 1642, 1649.) The social services agency bears the burden of proof that a dependent child is adoptable. (§ 366.26, subd. (c)(1).)
Here, substantial evidence clearly supports the juvenile court’s conclusion that A.R. and G.R. are adoptable. First, at the time of the section 366.26 hearing, the girls were ages four and six, and, according to the adoption assessment, still young enough to form a new child-parent bond. Second, neither A.R. nor G.R. faced significant health or emotional problems that would be a barrier to adoption. The girls are described as active and happy, with no physical or emotional problems, and no learning deficits or developmental delays. This evidence is sufficient to support the juvenile court’s conclusion that DCS had met its burden to show that the girls are adoptable.
2. Parental Benefit Exception
A. Introduction and Standard of Review
At a hearing held pursuant to section 366.26 to select and implement a permanent plan for a minor whose parent has failed to reunify, the juvenile court must first determine whether the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) Once the juvenile court has made the finding of adoptability, “the court shall terminate parental rights and order the child placed for adoption,” unless it also determines that this would be detrimental to the child under one or more of the six circumstances set forth in subdivisions (c)(1)(B)(i) through (c)(1)(B)(vi). (§366.26, subd. (c)(1).) In cases where the parent has failed to reunify with the minor and the juvenile court has found the minor to be adoptable, the burden then shifts to the parent to establish that one or more of these exceptional circumstances exists. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) The appellate court must affirm the trial court’s conclusion that none of these exceptional circumstances is present if the ruling is supported by substantial evidence. (In re Zachary G., supra,77 Cal.App.4th at pp. 799, 809.)
B. Benefit of Relationship with Mother
Mother argues that there is not substantial evidence in the record to support the juvenile court’s findings that the parental benefit exception applies. This exception is found in section 366.26, subdivision (c)(1)(B)(i): “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
There is no question that mother “maintained regular visitation and contact” with the children. However, mother was also required to establish that the children would benefit from continuing the mother-child relationship. The courts have clarified this 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. . . . 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.) The courts have also clarified that even “frequent and loving” contact between parent and child is not enough to establish that the child would “benefit from a continuing relationship” as required by statute, where the parent does not occupy a “parental role” in the child’s life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) “Interaction between natural parent and child will always confer some incidental benefit to the child. . . . 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, there is substantial evidence on the record to support the juvenile court’s finding that the children would not benefit from a continuing relationship with mother. First, at the time of the selection and implementation hearing, the four-and six-year-old children had been out of their mother’s care for nearly three years. Second, in the latest addendum to the section 366.26 report, the social worker notes that the children “continue to do exceeding well in their [prospective adoptive] home.” A.R. and G.R. appear to be very bonded to their prospective adoptive parents and call the adoptive mother mommy. The children repeatedly tell the adoptive mom “I love you” and “kiss her goodbye” when they are dropped off for visits with mother and they “appear to anticipate when the adoptive mom returns to pick them up and run to her and hug her once they see her.” Third, as counsel for A.R. and G.R. points out, by the time the section 366.26 hearing was held, the mother no longer played a parental role in the children’s lives. Both parents had failed to take the steps necessary to obtain liberalized visits, in that they consistently chose not to drug test, remained in the maternal grandfather’s home where illegal drug activity took place, and failed to complete their reunification plan.
Nowhere in the record is there any indication that mother occupies a “parental role” in A.R. and G.R.’s lives, nor that the children have a “substantial, positive emotional attachment” to mother such that the children would be “greatly harmed” if adopted and mother’s and father’s parental rights were terminated. Therefore, we conclude that substantial evidence supports the juvenile court’s conclusion that the children’s attachment to mother was not so strong that they would suffer detriment from the severing of that relationship, especially when compared with the benefit the children will receive from having a stable and permanent adoptive placement.
Disposition
The juvenile court’s orders are affirmed.
We concur: RICHLI, J., MILLER, J.