Opinion
A100148.
7-23-2003
In re MARICELLA M. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. KIM M., Defendant and Appellant.
Appellant is the mother of four children who were made dependents of the juvenile court, three of whom are the subject of this appeal. Appellant challenges the order terminating her parental rights and placing her three children for adoption. We affirm the order.
A fifth child, Maria, then age 15, was pregnant and living with relatives.
PROCEDURAL AND FACTUAL HISTORY
Petitions were filed in January 2000 to remove four children of Kim and Mario M. from parental custody: Cristal, then 13, Maricella, then 10, Lorena, then 9, and Edgar, then 14 months. After a settlement conference, both parents submitted to the jurisdiction of the juvenile court based upon the social workers report, and an amended petition was sustained. The juvenile court found true that the family home was unsanitary and unsafe, that the children had been found in a similar environment about a year earlier, and that the parents had been convicted of child endangerment as a result of that previous situation.
Cristal is not a subject of this appeal. She was eventually found not likely to be adopted in light of her age (then 14) and behavioral difficulties, and was placed in a separate foster home.
A reunification plan was established for both parents, and reunification services were extended until November 2001, over 19 months. During the reunification period, Maricella, Lorena, and Edgar were placed in the home of their maternal great aunt and uncle, Sonija and Ken S., who expressed their willingness to adopt all the children and demonstrated an ability to deal with the childrens special needs. The girls, Maricella and Lorena, were found to be developmentally disabled. Maricella has an IQ of 72 and was placed in special education classes for the severely handicapped. She was functioning at the kindergarten to first grade level. Lorena, too, has a learning disability. She was in the fifth grade but functioning at the second or third grade level.
The mother and father regularly visited the children. Once the family home was cleaned up, the children visited the parents in their home. The parents also had an overnight visit over the Christmas holiday (December 2000) in the home of the great aunt and uncle. In February 2001, however, the visits were changed to supervised visits and reduced from six to three hours per week at the request of the girls, who were distressed that their parents were fighting in their presence. Visits were then held at the home of the great aunt and uncle and supervised by the great aunt. But the visits continued to be problematic. The girls felt ignored by the parents excessive attention to Edgar. This problem was alleviated by restructuring the visits to two children at a time. The parents were unreliable about appearing for the visits on time-sometimes showing up very early or very late or even on unscheduled days. This inconsistency by the parents was viewed by the childrens therapist as a cause of the childrens anxiety and tantrums surrounding the visits. Supervision of the visits was eventually changed from the great aunt to a staff member of the Department of Human Services (DHS).
A psychological evaluation of the mother revealed that she has limited cognitive functioning. She was unable to understand the safety issues underlying her unsanitary home. She was also in denial about the history of domestic violence and abuse of an older daughter. She exhibited little insight into her situation and proved unable to integrate the information provided to her in parenting classes and psychotherapy.
At the 18-month status review hearing held in November 2001, the court terminated reunification services and set a hearing under section 366.26 of the Welfare and Institutions Code. That hearing was ultimately held in May 2002. The social workers report prepared for that hearing contained an adoptions assessment that concluded all three children were likely to be adopted by their great aunt and uncle. The children had been preliminarily assessed for adoptability early in the proceedings, in March 2000, and had been determined at that time to be adoptable. Throughout the reunification period, while in their prospective adoptive home of the great aunt and uncle, the children had adapted well. Maricella was making good progress in her special education classes. Though in the seventh grade, she was functioning at the second grade level. She was well-behaved in school and had good social skills. Lorenas learning disabilities were less pronounced than Maricellas, and she was making good progress in making up for her lack of basic skills. She was well-motivated and exhibited no behavioral problems at school. At home, however, she was having daily tantrums, which were diagnosed as acting out for attention, a common occurrence in cases of parental neglect. Lorena told the social worker she could see a "new Lorena" who does not throw tantrums, but she believed the new Lorena would go away if she were returned to her parents. Edgar was three years old by the time of the section 366.26 hearing. He showed no signs of the developmental disabilities of his sisters and was thriving in his prospective adoptive home.
All undesignated section references are to the Welfare and Institutions Code.
At the section 366.26 hearing, the juvenile court heard testimony from both parents and from the social workers. Evidence was presented that Lorena was no longer living with her great aunt and uncle but had moved in with her maternal cousin (the son of the great aunt and uncle) and his wife. After taking the matter under submission, the juvenile court found the children were likely to be adopted, and the court found no statutory exception had been proven for termination of parental rights. Accordingly, the court terminated parental rights.
DISCUSSION
I. Adoptability
At the section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether the child will likely be adopted if parental rights are terminated. ( § 366.26, subd. (c)(1).) Appellant contends that the juvenile courts finding that Lorena and Maricella are adoptable is unsupported by clear and convincing evidence. What appellant overlooks is that the "clear and convincing" standard is one employed at the trial level. On appeal, that standard disappears, and the question for our review is whether the juvenile courts findings are supported by substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Appellant argues that Lorena should not have been found adoptable because by the time of the section 366.26 hearing she was no longer living with her maternal great aunt and uncle, the prospective adoptive parents; she was living instead with her maternal cousin. We reject the argument.
A finding of adoptability does not require that the child be in a preadoptive home. ( § 366.26, subd. (c)(1).) What is required is the likelihood of adoption within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) The focus is on the characteristics of the child-whether the childs age, physical condition, and emotional health will create difficulty in locating a family willing to adopt. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, the existence of a prospective adoptive family is unquestionably relevant, as the willingness of a prospective adoptive parent to adopt the child generally indicates that the childs characteristics are not likely to dissuade persons from adopting the child and indicates the likelihood that the child will be adopted within a reasonable time, either by the identified prospective adoptive parent or by some other family. (In re Lukas B., at p. 1154; In re Sarah M., at pp. 1649-1650.)
Here, Lorena had been determined by the early adoptions assessment (made in March 2000) to be adoptable. She was described in the social workers report of September 2001 (for the 18-month review hearing) as having tantrums related to her history of parental neglect and requesting, during those outbursts, to leave the great aunt and uncles home. Nevertheless, the social workers report prepared for the section 366.26 hearing indicated the great aunt and uncle were ready, willing and able to adopt her. There was nothing to indicate that their willingness to adopt ended after Lorena began living with their son. The record shows that the great aunt and uncle had expressed their willingness to adopt Cristal, the older sister, even after she was moved to a foster home.
During the pendency of this appeal, we granted appellants request to augment the appellate record with the transcript of the post-termination status review hearing held in November 2002, together with the social workers report prepared for that hearing. Appellant asks that we consider the evidence adduced in that proceeding in support of her argument that Lorena is not likely to be adopted by her great aunt and uncle.
We recognize that the courts have not taken uniform approaches on whether postjudgment events should be considered on the issue of a dependent childs adoptability. In In re Jayson T. (2002) 97 Cal.App.4th 75, 85, 88-90, the Court of Appeal for the Fourth District took into account evidence of postjudgment events to reverse the order terminating parental rights. (See also In re Elise K. (1982) 33 Cal.3d 138, 139, 187 Cal. Rptr. 483, 654 P.2d 253 [parties stipulated to reversal of judgment terminating parental rights]; In re Junious M. (1983) 144 Cal. App. 3d 786, 796-797, 193 Cal. Rptr. 40 [settlement on Indian Child Welfare Act issue].) A week later, the Fifth District decided In re Heather B. (2002) 98 Cal.App.4th 11 and held that the appellate court would not take evidence that the childrens adoptive placements had failed in order to make an independent finding on adoptability. We find it unnecessary to delve into that issue here, because the evidence adduced at the posttermination status review hearing here does not affect the juvenile courts finding of adoptability. (See In re J. I. (2003) 108 Cal.App.4th 903, petn. for review pending, petn. filed June 19, 2003, S116888.)
At the November 2002 status review hearing, the social worker reported that Lorena was continuing to live with the maternal cousin and his wife, who have a daughter close to Lorenas age. The couple live near the home of the great aunt and uncle, and both families allow contact with the biological parents and siblings. The cousin and his wife are interested in adopting Lorena, and the great aunt and uncle are fully supportive of that arrangement. In short, Lorena remains likely to be adopted and there is no reason to disturb the juvenile courts finding of adoptability.
Finally, appellant makes the unfounded assertion that neither Lorena nor Maricella were adoptable because a child aged 12 or over must consent to an adoption (Fam. Code, § 8602) and it is unlikely the girls would consent. As discussed in part III, post, both girls expressed a desire to be adopted.
II. Continuing Beneficial Relationship
Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, the court shall terminate parental rights and order the child placed for adoption. The fact that reunification services were denied or ultimately terminated "shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [P] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (This exception will be referred to as the (c)(1)(A) exception.)
Here, there was no dispute that appellant met the first prong of the (c)(1)(A) exception. She visited the children weekly and telephoned them frequently. The trial courts finding that appellant failed to establish the (c)(1)(A) exception was necessarily based upon the second prong.
The question for determination under the second prong is whether the benefit to the child of maintaining the relationship with the parent outweighs the benefit of adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) That is, not every beneficial parent/child relationship will overcome the statutory preference for adoption. (Ibid.; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349; In re Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) The child must benefit from continuing the relationship with the parent to such a degree that terminating parental rights would be detrimental to the child. "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., at p. 575.) 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." (Ibid.) The determination must be made on a "case-by-case basis," taking into account the many variables that affect a parent/child relationship, such as the age of the child, the portion of the childs life spent with the parent, the effect of interaction between parent and child, and the childs particular needs. (Id. at p. 576; see also In re Zachary G. (1999) 77 Cal.App.4th 799, 811; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729;In re Beatrice M . (1994) 29 Cal.App.4th 1411, 1418.)
Moreover, Autumn H. and its progeny have further established that the (c)(1)(A) exception applies only when the parent has maintained a parental role with the child, a role above and beyond the incidental role of a "friendly visitor." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . [Citation.] The exception applies only when the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Id. at p. 575; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [more than a "friendly or familiar" relationship is required]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [a "pleasant and emotionally significant" relationship not the same as consistent daily nurturing]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 563 [a "peer" relationship not the same as a parent]; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [occupying "a pleasant place" in childs life not enough]; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1420 [frequent and loving contact, without occupying parental role, not enough].)
Autumn. H. applied the substantial evidence test for review of the juvenile courts findings on the (c)(1)(A) exception. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575, 576.) Subsequent decisions have also employed the substantial evidence test. (E.g., In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533, 1534, 1538; cf. In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017 [substantial evidence test applies to findings under the § 366.26, subd. (c)(1)(E) exception for sibling bond].) Division Three of this court, however, has disagreed with that standard and held that the abuse of discretion standard should be applied. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) So far, no published decision has followed Jasmine D. on this point, but we find it unnecessary to resolve the conflict. (See Seiser & Kumli, California Juvenile Courts: Practice and Procedure (2003) § 2.171[5][a][i], p. 2-276 [criticizing In re Jasmine D.].) As the Jasmine D. court pointed out, the practical differences between the two standards are "not significant," as both give broad deference to the trial courts judgment. (In re Jasmine D., at p. 1351.)
The juvenile court found that the childrens need for the stability and safety of adoption was paramount and "no sufficient evidence [was] presented to support [an] exception to this conclusion." In fact, the court found that the children would suffer detriment if they were not placed for adoption. Appellant contends there was evidence before the juvenile court that all three children were bonded to her and that the girls in particular considered her a parent, not just a friendly visitor. Appellant argues that in light of this evidence the juvenile court erred in finding the (c)(1)(A) exception not proven.
Appellant misapplies the substantial evidence rule. Under that standard of appellate review, we examine the record for substantial evidence in support of the lower courts findings. The fact that substantial evidence may also exist to support a contrary finding is irrelevant for purposes of our review.
Here, there was indeed some evidence of an emotional attachment between appellant and her children. The social workers report for the jurisdictional hearing (April 2000) noted "an obvious bond . . . which reflects the fact that she does love them and that the children have received something positive from both parents in spite of the serious environmental neglect." At the section 366.26 hearing two years later (May 2002), both appellant and the childrens father testified that the children were happy to see them at the visits, that they had fun during the visits and were sad at the end of the visiting time. Both also testified that the girls said they wanted to come home.
But there was also evidence that during the visits appellant acted like a visiting relative, not like a parent. The social worker who had observed one visit reported that appellant "presented as very young and immature, more of a sister than a parent. She seemed unable to take charge of the situation and presented as quite helpless and anxious. . . . The visit had the quality of visiting relatives rather than parents." The psychological report about appellant, too, indicated that she has limited abilities to act as a parent. The girls themselves expressed mixed feelings about the visits. Early on, they told the social worker they did not like the visits and resented their parents attention to Edgar. Later, they seemed to have fun. However, the girls consistently told the social worker they did not want to return to live with their parents.
The record contains substantial evidence in support of the trial courts finding that appellant failed to establish that the children would benefit to such a degree from continuing their relationship with her that they would be harmed by a termination of parental rights.
III. Childs Wishes for Adoption
Section 366.26, subdivision (h), provides that at a proceeding to select and implement a permanent plan, "the court shall consider the wishes of the child and shall act in the best interests of the child." That language has been construed to mean that the juvenile court has a mandatory duty to consider the childs wishes to the extent ascertainable prior to terminating parental rights. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) Here, both Lorena and Maricella were interviewed in advance of the section 366.26 hearing by Pat Ray, the social worker from DHS, and Susan Scibona, the state adoptions case worker. Appellant complains that the evidence fails to show that the girls were adequately informed about the implications of adoption, namely, the possible termination of contact with their natural parents. We reject the argument.
Edgar, age three, was not interviewed. (See In re Cody S. (1997) 56 Cal.App.4th 230, 233-234 [four-year-old child too young to provide meaningful statement about his wishes for adoption].) The adoption assessment noted, however, that Edgar calls his caregivers "mama" and "papa" and regards them as his parents.
Evidence of a childs wishes need not be expressed in direct formal testimony; it can be found in reports prepared for the hearing. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820; see In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) What is required is a "reasonable basis for inferring the [childs] wishes." (In re Amanda D., supra [childs wishes could be inferred from contentment in foster home and apathy toward visits with father].)
The social workers report indicated that Lorena and Maricella were happy in their prospective adoptive home and wanted to remain there permanently. Although it is true that by the time of the section 366.26 hearing Lorena was no longer residing with her great aunt and uncle, there was nothing in that evidence to undermine Lorenas wish for a permanent home. Both Ms. Ray and Ms. Scibona testified that they discussed adoption with Lorena and Maricella and the girls understood that their adoptive parents (the great aunt and uncle) would become their permanent parents. The girls were told that adoption would mean that their adoptive parents would have authority to decide about their education, their medical treatment, and their visits with the biological parents. Ms. Scibona testified expressly that she told the girls their adoptive parents could decide that the girls should not see their biological parents.
The girls were also told that adoption was something the court would be deciding. They were not asked to make a choice.
Ms. Ray, on the other hand, testified that she did not tell the girls that adoption could mean the end of parental contact, because she had no reason to believe the adoptive parents would terminate the contact. Indeed, the prospective adoptive parents were relatives of appellant-her aunt and uncle. They had already extended visits between the children and appellant beyond what had been ordered by the court, including extending the length of the visits and organizing additional family gatherings. And they had expressed their intention to maintain visits by the children with their extended family after the adoption.
We see no inadequacy in the efforts to obtain the girls wishes. "To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. We must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma. . . . Therefore, we conclude that in considering the childs expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." (In re Leo M., supra, 19 Cal.App.4th at p. 1593; accord, In re Amanda D., supra, 55 Cal.App.4th at p. 820.) The record supports the juvenile courts finding that the wishes of Lorena and Maricella were considered.
DISPOSITION
We concur. JONES, P.J., STEVENS, J.