Opinion
D041720.
7-31-2003
In re JAMES S. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TIFFANY P. et al., Defendants and Appellants.
Tiffany M. appeals the judgments terminating her parental rights to her children, James S., Ashley S., Troy M., Kyle S., and Vanessa P., under Welfare and Institutions Code section 366.26. She asserts the court erred in terminating her parental rights because insufficient evidence supported the findings that the children were adoptable. Paul P. appeals the judgment terminating his parental rights to Vanessa. He contends he had a beneficial relationship with her within the meaning of section 366.26, subdivision (c)(1) (A). Because we conclude substantial evidence does not support the findings that James, Ashley, Troy, and Kyle are adoptable, we reverse the judgments terminating Tiffanys parental rights to those children and direct the court to hold a new section 366.26 hearing. However, we affirm the judgment terminating Tiffanys and Pauls parental rights to Vanessa.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Paul attempts to join Tiffanys brief. However, as he did not father any of her children at issue here except Vanessa, he has no standing to join the arguments Tiffany makes with regard to James, Ashley, Troy, and Kyle. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, the San Diego County Health and Human Services Agency (the Agency) removed 12-year-old James, 10-year-old Ashley, eight-year-old Troy, and five-year-old Kyle from Tiffanys custody and filed a section 300, subdivision (g) petition on each childs behalf because Tiffany had been incarcerated and could not arrange for the childrens care and each childs father was unknown. The Agency detained and temporarily placed Ashley and M. with their maternal uncle and aunt, John and Sharon P., and detained and temporarily placed Troy, James, and Kyle with their maternal great-grandmother, Helen P. The five children and three adults shared one home.
The Agency also removed one-year-old M. H. and filed a petition on her behalf, but she is not a subject of this appeal.
In June 2001, the court made true findings on the petitions. Two months later, the court declared the children to be dependents, removed them from Tiffanys custody, and ordered reunification services. In September, the children were placed with the relatives with whom they had been detained.
Vanessa was born in November 2001. The Agency removed her at birth and filed a section 300, subdivision (b) petition on her behalf because her parents used drugs and did not protect her. In December, the court made a true finding on the petition and ordered reunification services.
In June 2002, the court terminated Tiffanys services to reunify with James, Ashley, Troy, and Kyle and scheduled a section 366.26 hearing. The next month, the court terminated Tiffanys and Pauls services to reunify with Vanessa and scheduled a section 366.26 hearing.
In July 2002, the Agency filed section 387 supplemental petitions on behalf of James, Ashley, Troy, and Kyle because Helen, Sharon, and John were unable to provide adequate care and supervision for the children. The Agency asserted they did not keep their garage clean and allowed adults not approved by the Agency to live in the garage. Moreover, Sharon and Johns adult sons had engaged in domestic violence involving a deadly weapon in the home. The court subsequently dismissed the section 387 petitions. The Agency placed Troy and Kyle with Helen, James with Barbara S., his maternal grandmother, and Ashley in foster care.
By October, Sharon had moved to Texas and the Agency commenced an evaluation under the Interstate Compact on the Placement of Children (ICPC) to determine whether the home would be an appropriate placement for Ashley. The same month, the Agency asked the court to continue the section 366.26 hearing because it wanted additional time to make sure the adoptive placements were suitable. Although it is not clear from the record, the court apparently granted that continuance.
At the February 2003 section 366.26 hearing, the court found the children were adoptable. Finding none of the section 366.26, subdivision (c)(1) exceptions applied, the court terminated parental rights. The next month, the Agency received a positive home evaluation from Texas authorities and placed Ashley with Sharon in Texas.
DISCUSSION
I
Tiffany asserts the court erred in terminating her parental rights because substantial evidence did not support the findings that the children were adoptable. The minors also challenge those findings.
Although Tiffany raises this argument as to all five children, she makes no argument that Vanessa is not adoptable. Because her argument with regard to Vanessa is not supported with sufficient authority or citation to the record, we disregard it. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, 981 P.2d 499.) In any event, the record shows Vanessa was adoptable. The social worker believed she was highly adoptable due to her young age, personal characteristics, and good health. There were 59 approved adoptive applicants waiting for a child with her characteristics. Moreover, because she was not bonded to her siblings, she did not need to be placed with any of them. Tiffany introduced no contrary evidence.
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. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind." (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, internal quotation marks omitted.) Review of a determination of adoptability is limited to whether those findings were supported by substantial evidence. (In re Lucas B. (2000) 79 Cal.App.4th 1145, 1154.)
The question of adoptability posed in a section 366.26 hearing usually focuses on whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Jayson T. (2002) 97 Cal.App.4th 75, 85.) Here, however, because the parties agree that James, Ashley, Troy, and Kyle are adoptable only because their relatives are willing to adopt them, the trial court had to determine the relatives were likely to adopt the children within a reasonable time in order to find they were adoptable. (See, e.g., In re Sarah M., supra, 22 Cal.App.4th at p. 1650; see also In re Jerome D., supra, 84 Cal.App.4th at p. 1205.)
Substantial evidence does not support the implied findings that the childrens relatives were likely to adopt the children within a reasonable time. Barbara, Jamess prospective adoptive parent, allegedly slapped and hit some of the children. She had been turned down as a placement for the children in 2001 because of the condition of her home. When James was placed with her in early September 2002, her home was filthy. Although she agreed at that time to remove the boxes and debris, the next month the social worker found the home to be unkempt, dirty, and "far worse" than on other visits. The childrens counsel reported the home was extremely cluttered with boxes, newspapers, and other items heaped on the furniture and floor. There was "an unpleasant acrid odor about the house" that made it difficult for counsel to interview James inside. While, as the Agency asserts, a dirty home may not be considered a risk to a teenager (see In re Paul E. (1995) 39 Cal.App.4th 996, 1005), it is certainly a factor the reviewing Agency should consider in determining whether Barbara will be approved to adopt.
We have granted the childrens request to take additional evidence. Generally, we do not review matters occurring after judgment has been entered. (In re Daniel C. H. (1990) 220 Cal. App. 3d 814, 830, 269 Cal. Rptr. 624.) However, in dependency cases, we deviate from that rule under Code of Civil Procedure section 909 to effectuate a just and final resolution for the benefit of the children involved. (In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1236, fn. 2.)
Moreover, in October 2002, the social worker was concerned about Barbaras parenting skills. There is no evidence these concerns had been rectified by the February 2003 section 366.26 hearing. She was also concerned Barbara had not completed the requirements to adopt James. However, shortly before the February 2003 section 366.26 hearing, Barbara was only beginning to complete the adoption application process. There is no evidence in the record that she had been approved to adopt by the time the hearing occurred.
Substantial evidence also does not support the implied finding that Sharon and John, Ashleys prospective adoptive parents, would be approved to adopt her. In June 2002, the social worker told the family to keep the garage free of debris and to not use the garage as living or sleeping quarters. However, later that month, the social worker received a referral that drug dealers, presumably Sharon and Johns adult sons, were present in the home. In July, their sons were in a physical altercation involving a meat cleaver at the home. Both men had drug-related arrest histories. The police who came to the home as a result of the altercation saw drug implements in the garage and said the residence was "cluttered." That month, the social worker said John and Sharon had "failed to provide a safe and stable home for the children despite being warned and counseled about safety concerns and exposing the children to known drug abusers." Consequently, she filed section 387 supplemental petitions and removed the children.
Three months later, the social worker was still concerned about Sharons ability to provide a safe and stable home. She wanted Sharon and John to receive parenting classes and support services and was concerned that Sharon was torn between caring for her adult children and providing for Ashleys safety. Sharon had allowed Tiffany to live in the home without receiving permission from the social worker and allowed both adult sons, who had been arrested for and convicted of drug charges, to live in the home and visit the children, despite being told they could not do so. The social worker believed Sharon needed to learn how to be aware and proactive in preventing and eliminating risks to the children. Sharon acknowledged she needed the skills and she and John agreed to participate in parenting classes and receive support services. However, there was no evidence in the record she had done so. Moreover, they had received counseling in the past but "resisted recommendations specifically put forth by previous social workers to eliminate risk and detriment to the [children]."
In March 2003, a Texas social worker approved the ICPC evaluation of Sharon and Johns home and the court placed Ashley there. However, the record shows the Agency did not ask the Texas authorities to examine the home as an adoptive placement. There is no evidence in this record that the appropriate Texas authorities believed the home was an appropriate adoptive placement. Further, John continued to live in San Diego. The Texas social worker believed that his absence might adversely affect his quality time with Ashley.
From this record, we also cannot conclude substantial evidence supports the implied finding that Helen will be approved to adopt Troy and Kyle. In March 1999, the Agency substantiated an allegation that she physically abused Ashley. During these proceedings, she allowed Tiffany to live in the home without getting approval from the social worker. She let one of her adult grandsons, who was arrested for drug possession, visit the home when the children were present. Although Helen did get a restraining order against one of her grandsons, she has a history of allowing him back into her home even after being told she was not supposed to do so.
Moreover, in the eight months preceding the section 366.26 hearing, the social workers expressed several concerns about Helens ability to care for these children. In July 2002, the social worker said Helen had "failed to provide a safe and stable home for the children despite being warned and counseled about safety concerns and exposing the children to known drug abusers." The next month, she reported "overcrowding and chaos in the home precluded [Helen] from adequately addressing the childrens needs and/or maintaining a stable environment." Helen needed support and training to be proactive in preventing risk to the children, including a behavior intervention program to help her learn appropriate discipline and behavior techniques. In October 2002, the social worker still had concerns about Helens parenting skills and ability to provide a safe and stable home. She struggled with setting limits and utilizing effective discipline techniques and needed support and training to help her prevent risk to the children.
By January 2003, the Agency still wanted Helen to receive support and parent training classes. There was no evidence she had received the support and training the social worker thought was necessary by the February 2003 section 366.26 hearing. Further, even if she had received additional support, there is no evidence it would have helped her because she had attempted similar changes without success in the past.
Moreover, according to minors counsel, Helen is 74. She is seeking to adopt a seven-year-old and 10-year-old child. By the time the seven-year-old is 18, Helen will be 85. Although we know of no rule or regulation that bars an elderly person from adopting a child, her age is a factor that must be considered when determining whether she is a suitable adoptive parent. Because she had only begun to complete the adoption process the month before the hearing, the record does not reflect her application was approved.
In sum, the record shows that each prospective adoptive parent had problems. Although it is commendable that each wanted to adopt these children, those wishes alone do not support the findings that the children are adoptable. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.) We also do not fault the Agency for trying to make the placements work; as acknowledged by minors counsel, the placements are the only chance the children have to be adopted. However, adoptability findings must be correct, because if any of the prospective adoptive parents are not approved, some of the children may become legal orphans, a consequence the law abhors. (In re Jayson T. , supra, 97 Cal.App.4th at p. 85.)
The Agency has said there are no other adoptive homes for James or for the sibling groups of Troy and Kyle and Ashley and M.
We recognize that an adoption cannot be finalized until the judgment terminating parental rights is final. ( § 366.26, subd. (e).) However, we have located no authority that prevents the Agency from approving the person to adopt before parental rights are terminated. Indeed, doing so would be appropriate, particularly where, as here, the children are adoptable only because of the existence of the prospective adoptive parents.
In reversing these judgments, however, we want to be very clear that nothing in this opinion should be construed to mean that we believe the children should be removed from their current placements. They have had significant disruptions in their lives and should not be removed from their placements unless there is no other means to keep them safe. Simply because substantial evidence does not support the courts February 2003 adoptability finding does not foreclose the court from making an adoptability finding in the future. By the time a new section 366.26 hearing occurs as a result of this remand, the prospective adoptive parents applications may have been completed and the Agency may have concluded their homes are suitable, which would resolve the concerns expressed in this opinion. If, however, the homes have not yet been approved or the applications have been denied, the court can select an alternate permanent plan, such as legal guardianship or foster care, which will allow these children to remain where they are, but also allow the court and the Agency to supervise the placements.
We do not comment on the minors recommendation that the court consider section 366.26, subdivision (c)(1)(D).
As the court noted in In re Jayson T., "the trial court cannot terminate parental rights unless the child is adoptable, because if the child [is not] adoptable, the proceeding will do nothing to benefit the child other than to permanently separate the child from the childs natural parents, and condemn the child to permanent foster care." (In re Jayson T., supra, 97 Cal.App.4th at p. 86.) Simply stated, "if parental rights are terminated, children should go to a better situation, a permanent adoptive home, not a worse one (permanent foster care and no parent). If the children are not adoptable, a series of foster care placements is the least preferable option, not the de facto second option because social workers want a natural parent completely out of the picture." (Id. at p. 88.) Substantial evidence does not support the trial courts findings that James, Ashley, Troy, and Kyle are adoptable.
Paul argues that if we reverse the judgments terminating Tiffanys parental rights, we must reverse the judgment terminating his parental rights as well. However, Vanessa is the only child fathered by Paul at issue here. As he is not the father of James, Ashley, Troy, or Kyle, there are no judgments that we are reversing that affect his rights.
II
Paul asserts the court erred in terminating his parental rights to Vanessa because he established he had a beneficial relationship with her within the meaning of section 366.26, subdivision (c)(1)(A).
A
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order and affirm the order if it is supported by substantial evidence, even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re Geoffrey G. (1979) 98 Cal. App. 3d 412, 420, 159 Cal. Rptr. 460.)
B
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1).)
The section 366.26, subdivision (c)(1)(A) exception to the adoption preference applies if termination of parental rights would be detrimental to the child because "the parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
1
Paul could not establish the first prong of the section 366.26, subdivision (c)(1)(A) exception because his visits were not regular. He did not visit Vanessa between March 1, 2002 and November 20, 2002. This is not regular visitation within the meaning of the statute. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
The record is silent as to whether Paul visited with Vanessa after November 2002, but we infer from his argument that he did not.
Paul contends his visitation should be considered regular because he visited Vanessa until she was three months old and was prevented from doing so thereafter because he used drugs, committed crimes, and was incarcerated. He cites no authority that such factors are relevant. Simply stated, at the time of the section 366.26 hearing, Vanessa was 14 months old and had not seen her biological father in 11 months. He chose to use drugs and engage in criminal acts; these choices resulted in him not visiting. Substantial evidence supports the trial courts finding that Paul did not regularly visit Vanessa within the meaning of section 366.26, subdivision (c)(1)(A).
2
Even if Paul had regularly visited with Vanessa, he did not demonstrate he had a beneficial relationship with her. We have interpreted the phrase "benefit from continuing the relationship" to refer 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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences. [Citation.]" (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.)
Here, there was no evidence that maintaining a relationship with Paul would be more beneficial to Vanessa than being adopted. Throughout the proceedings, he was not complying with the provisions of his case plan and tested positive for drugs. He has chosen a drug lifestyle. The trial court correctly concluded it was more beneficial for Vanessa to have a permanent home than to maintain a connection with a drug using criminal she did not know.
The only expert evidence showed there was no beneficial relationship between Vanessa and Paul. The social worker believed the child had no parent/child relationship with Paul. The social worker believed it was more beneficial for Vanessa to be adopted than it was to maintain a relationship with Paul. He had not completed the drug program or established a permanent residence. He had never provided for the childs daily needs, visited her consistently, or contributed to her care.
Paul argues that because Vanessa was very young, the limited circumstances under which he was allowed to visit prevented him from developing a bond with her. The record, however, shows Paul did not develop a bond with the child because he used drugs, engaged in criminal acts, and was incarcerated. Moreover, contrary to Pauls assertion that Vanessas long-term security interest in developing a relationship with her father needed to be protected, by the time of the section 366.26 hearing, the court considers Vanessas stability, and reunification with her parents is no longer at issue. (In re Marilyn H. (1993) 5 Cal.4th 295, 309, 851 P.2d 826.) Substantial evidence supports the trial courts finding that Paul did not have a beneficial relationship with Vanessa within the meaning of section 366.26, subdivision (c)(1)(A) exception.
DISPOSITION
The judgment terminating Tiffanys and Pauls parental rights to Vanessa is affirmed. The judgments terminating Tiffanys parental rights to James, Ashley, Kyle, and Troy are reversed. The trial court is directed to hold a new section 366.26 hearing consistent with the views expressed in this opinion.
WE CONCUR: McINTYRE, Acting P. J., McCONNELL, J.