Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J204308, Marsha Slough, Judge.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST J.
A juvenile court terminated the parental rights of appellant Paula L. (mother) as to her daughter, Destiny H. (the child). On appeal, mother claims: 1) there was insufficient evidence to support the finding that the child was likely to be adopted; and 2) the beneficial relationship exception applied. (Former Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted. Furthermore, we note that the beneficial relationship exception to the termination of parental rights has recently been renumbered to section 366.26, subdivision (c)(1)(B)(i), effective January 1, 2008. For purposes of clarity, we will refer to it as former section 366.26, subdivision (c)(1)(A).
Counsel for the child filed a letter brief on April 1, 2008, urging us to affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2005, the San Bernardino County Department of Children’s Services (the department) filed a section 300 petition on behalf of the child, who was three months old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). Specifically, the petition included the allegations that: 1) the child’s sibling, Krystal R., was physically abused by the child’s father, Randall H. (father), who was mother’s boyfriend; 2) mother knew or reasonably should have known that father was physically abusing Krystal R. and failed to protect her; furthermore, the child was at risk of similar physical abuse; 3) father was incarcerated for physically abusing Krystal R.; and 4) mother was incarcerated for child endangerment for leaving the child with an unsuitable caretaker.
We note that the section 300 petition states the child’s birthdate was in July 2003. However, this appears to be an error, since subsequent reports list her birthdate as being in July 2005.
Father is not a party to this appeal.
Detention
The social worker filed a detention report and noted that mother had a prior substantiated referral for physical abuse on April 12, 1999, plus three prior dependencies from June 23, 2003, to October 2, 2003; June 1, 2001, to November 26, 2002; and April 12, 1999, to August 18, 1999.
The detention hearing was held on October 13, 2005. The court detained the child in foster care and ordered that mother have weekly supervised visits for one hour.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on November 1, 2005, recommending that the child be declared a dependent of the court and maintained in foster care, and that reunification services be offered to mother. The social worker reported that the child was seen at a pediatric clinic, but there were no noted developmental concerns.
In an addendum report filed on December 6, 2005, the social worker reported that, since November 3, 2005, mother had actively participated in visitation. The visits were not scheduled regularly, but were based on the availability and cooperation of the individuals involved.
At a jurisdiction/disposition hearing on January 6, 2006, the court declared the child a dependent and ordered mother to participate in reunification services. Mother’s case plan objectives included obtaining resources to meet the child’s needs and to provide a safe home; being willing and able to have custody; maintaining a relationship with the child by following the visitation plan; meeting the child’s physical, emotional, medical, and educational needs; and showing that she knew age-appropriate behavior for the child. Her case plan required her to participate in general counseling and a parenting education program.
Six-month Status Review
In the six-month status review report, the social worker recommended a continuance of 60 days so that the department could have mother complete a psychological evaluation. The social worker reported that mother was not employed and had never been employed; rather, she was receiving Social Security benefits for her developmental disabilities. Mother was participating in therapeutic counseling with Dee Dee Hamilton, who recommended that mother not be reunified with the child at that time. The therapist stated that if the court was considering adoption, mother was likely to respond with suicidal gestures and threats. The social worker previously requested that mother complete a psychological evaluation to assess future services, since mother stated that she suffered from mental illness and multiple personalities. Mother was referred to psychologist, Dr. Nick Andonov, who opined that she was incapable of providing adequate care to the child. Mother had a dissociative disorder, delusions and psychosocial problems. She had never been employed and had financial problems. He also noted that mother was illiterate and was “near the mean of [the] mild mental retardation range of intelligence.”
As to visitation, the social worker reported that mother attended the majority of her weekly visits from January 2006 to April 2006. She noted, however, that at a visit in April 2006, mother allowed the child to be fed red-hot Cheetos, even though she knew the child had acid reflux and eating problems. The child’s foster mother reported that during the visits in May 2006, mother was “very rude, loud, ignorant, and obnoxious.”
In addition, the social worker reported that the child was almost one year old, that she appeared to be meeting her developmental milestones, and she did not display emotional or mental health problems.
In an addendum report filed on August 15, 2006, the social worker reported that mother was evaluated by Dr. James Pace, who diagnosed her as having bipolar disorder and a personality disorder “with borderline narcissistic and dependent features.” Dr. Pace reported that mother had not benefitted from many years of counseling. She had a consistent history of domestic violence and the inability to make good decisions for herself and her children. She was also predisposed to selecting “dysfunctional, drug[-]involved and violent males as domestic partners.” Dr. Pace recommended that mother not be reunited with the child.
The social worker noted that she received three reports from three different professionals in the community, and they all made the same recommendation that mother not receive reunification services. They also stated that the child should not be returned to mother because of her psychiatric instability. They all agreed that her prognosis was poor.
The social worker further reported that the department received another referral for mother. The person who called said she had lived with mother and her children (the child and Krystal R.) from August 2005 to October 2005, and that mother allowed Krystal R. to have sex with her (the reporter’s) 16-year-old son (the boy). The reporter also stated that mother had sex with the boy. Furthermore, mother reportedly slammed the child down, out of frustration, while changing her. Mother denied all of the allegations. The social worker interviewed the boy, who admitted that he had sex with mother one time. He also said mother would buy him cigarettes and alcohol, and even offered to buy him marijuana. The social worker found the boy to be credible.
In an addendum report filed on December 5, 2006, the social worker reported that, during the supervised visits from November 2005 to November 2006, mother kept treating the child like an infant, even though she was 16 months old; mother was holding her, rocking her, and feeding her a bottle. The social worker constantly had to inform mother to allow the child to explore and move around. Mother was also reportedly on her cell phone during the entire duration of the visits. Mother had to be prompted several times to spend time with the child.
The six-month status review hearing was continued several times. The social worker consistently recommended that reunification services be terminated. She reported that mother completed her court-ordered service objectives, but did not benefit from program services, as evidenced by the opinion of the three psychologists who stated that mother should not have the child returned to her. In another addendum report filed on July 24, 2007, the social worker reported that mother had not had contact with the child in the previous seven weeks, due to reported illness.
At the six-month review hearing held on July 26, 2007, the court found that mother had completed her case plan, but had not benefitted from the services provided. It thus ordered reunification services to be terminated.
Section 366.26 Report and Hearing
The social worker filed a section 366.26 report on November 6, 2007, and recommended that parental rights be terminated and that adoption be selected as the permanent plan. The social worker attached a report from a neurological examination that the child had undergone in August 2007 to evaluate her development. The report stated that the child had difficulty sleeping sometimes, and that she had marked delays in motor skills, language and social skills. However, the child was improving. The doctor further noted that the child had “mixed cerebral palsy,” but stated that she was improving with physical therapy.
The social worker reported that the child’s foster parents, with whom the child had been placed since April 2006 (when she was eight months old), were committed to providing a stable home environment for the child. The social worker attached an adoption assessment report stating that the child was an appropriate child to be adopted due to her age and her current caretakers’ willingness to adopt her. The child was described as “a cute, active and friendly” two-year-old Caucasian girl. She was physically healthy and had no major medical problems, aside from being developmentally delayed. The child was participating in a treatment program and was seen weekly by the program’s occupational and physical therapists. The child was making progress in all areas except communication. She was unable to formulate words yet, but she often cooed or shrieked, and she tended to have tantrums. The child was emotionally attached to the prospective adoptive parents and considered them her parental figures. The social worker reported that the child was happy and doing well, and that her developmental needs were being met in her current placement.
The prospective adoptive parents stated that the child fit right into their family, that they loved her and were eager to provide a stable and nurturing home for her. The social worker observed that the prospective parents and the child had a supportive and loving parent/child relationship. The child seemed content with them. The social worker described the prospective adoptive parents as caring and nurturing, and concluded that they were willing, committed and able to meet the special needs of the child on a permanent basis. They had already demonstrated that they could meet all of the child’s medical, psychological, educational and emotional needs.
A contested section 366.26 hearing was held on December 10, 2007. The social worker testified that, from June 2007 until the first week of December 2007, mother had only visited the child eight times. In other words, she had weekly supervised visits scheduled, but missed 20 out of 28 visits. She failed to show up for three of the visits, but did call to say she was not feeling well for the other missed visits (she had migraine headaches.) The social worker further testified that, at the visits, the child recognized mother, but did not call her “‘mom.’” When the visits were over, the child was happy to see the foster mother and went right to her. The child called the foster mother “‘mom.’” The social worker opined that there would be no detriment to the child if mother’s parental rights were terminated.
In contrast, mother testified at the hearing that she recently had 16 visits at the department’s office, plus additional visits when father brought the child over to her house. When it was father’s day for visitation with the child, he would pick her up and bring her to mother’s house, and the child would stay all day. Those visits occurred every other weekend. Mother said that the child called her “‘momma’” and did not want to leave. On cross-examination, mother was asked whether she got migraine headaches on the weekends, and whether they affected her visits with the child. She said she got them on the weekends, but she would take ibuprofen and “push through” them.
The social worker responded that she knew about the unauthorized visits and had told father not to take the child to visit with mother.
After hearing the testimony, the court noted that mother’s credibility was questionable, since she said her migraines were so bad that she could not attend the visits at the department’s office, yet she could spend eight hours a day with the child, every other weekend at home. The court also noted that the visits did not demonstrate much bonding between mother and the child. The court further stated that mother would certainly not be able to provide the child with four days a week of medical treatment, since she had her own issues, including her migraines. The court found clear and convincing evidence that the child was going to be adopted, and it terminated mother’s (and father’s) parental rights. The court selected adoption as the permanent plan.
ANALYSIS
I. The Court Properly Found That the Child Was Adoptable
Mother contends that the court’s finding of adoptability was not supported by substantial evidence. We disagree.
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family.” (In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.).) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).) “In reviewing the juvenile court’s order, [we determine] whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]” (Erik P., supra, 104 Cal.App.4th at p. 400.)
There was substantial evidence to support the court’s finding of adoptability. The child was a two-year old Caucasian girl who was “cute, active and friendly.” She appeared to be “a smiling and happy child.” She was physically healthy, and she enjoyed playing, running around outdoors, and exploring her environment.
Moreover, by the time of the section 366.26 hearing, the child had lived with the prospective adoptive parents for almost two years. The prospective parents were fully aware of the child’s developmental delays, and had demonstrated their dedication to the developmental, physical and emotional growth of the child. The social worker observed that the child received regular medical care and that her medical, physical, and developmental needs were being met by the prospective adoptive parents. As a result, the child was emotionally attached to them and considered them her parental figures. The prospective adoptive parents stated that they wanted to protect the child, provide a permanent, stable and nurturing home for her, and loved her as if she were their own daughter. They are not likely to be dissuaded.
Mother points out that “[o]ther than the current caretaker, there [was] no evidence that anyone else was willing to adopt [the child.]” She further states that the child had numerous health and developmental problems, and that the prospective adoptive mother had expressed concerns about her. Mother argues that the child’s problems were “significant and likely lifelong” and that they would “require significant financial resources to address.” She then asserts that there was no information in the assessment report indicating that the prospective adoptive parents had “the financial and emotional resources to deal with [the child’s] problems over a lifetime.”
First, to be considered adoptable, “it is not necessary that the [child] already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.]” (Sarah M., supra, 22 Cal.App.4th at p. 1649.) Thus, mother’s assertion that there was no evidence that anyone, other than the current caretakers, wanted to adopt the child, is irrelevant. Second, mother’s claim that child’s problems were “likely lifelong” is pure speculation. To the contrary, the evidence showed that the child was improving with the help she was receiving. Third, the prospective adoptive parents’ financial resources were not at issue, since “[t]he issue of adoptability posed in a section 366.26 hearing focuses on the minor.” (Ibid.)
We conclude that the court properly found clear and convincing evidence that the child was adoptable.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A). We disagree.
If the court finds that a child may not be returned to her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in former section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in former section 366. 26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The phrase “benefit from continuing the relationship” refers to a parent/child relationship that “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother asserts that she had “frequent and continuing contact with [the child]” and that the record showed that “a positive relationship exist[ed]” between her and the child. Mother points out that she and the child loved each other, that they had a close, bonded relationship, that the child called her “momma,” and that the child ran to her at the start of visits in her home and cried when she had to leave.
To the contrary, the social worker testified at the section 366.26 hearing that, from June 2007 until the first week of December 2007, mother had only visited the child eight times. In other words, she missed 20 out of 28 visits. The social worker further testified that, at the visits, the child recognized mother, but did not call her “mom.” When the visits were over, the child was happy to see the foster mother and went right to her. The child called the foster mother “mom.” This evidence does not demonstrate a close, bonded relationship.
Assuming arguendo that mother’s contentions are true, mother’s interactions with the child, when she did visit, do not even begin to demonstrate that her relationship with the child promoted her well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has proffered no evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that [she] would be greatly harmed” if the relationship was severed. (Ibid.) In contrast, the record showed that the child was bonded with the prospective adoptive parents and considered them her parents. The prospective adoptive parents and the child had a supportive and loving parent/child relationship, and the child seemed very happy and content with them. The prospective adoptive parents met all of the child’s medical, psychological, educational and emotional needs, and she was doing well in their home.
We conclude that the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply here.
DISPOSITION
The order is affirmed.
We concur: RAMIREZ P.J., KING J.