Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 515364D, Ronald F. Frazier, Judge.
Sara N. appeals from an order terminating parental rights under Welfare and Institutions Code section 366.26.
Unless otherwise indicated, further references are to the Welfare and Institutions Code.
AARON, J.
FACTUAL AND PROCEDURAL BACKGROUND
Seven-year-old Robert W. is the son of Sara N. and Craig W. Sara has a history of methamphetamine use, involvement with child welfare services and drug-related crimes. In 2004, before Robert's birth, Sara's three older children were removed from her care after she was arrested during a drug raid. Law enforcement officers found methamphetamine, baggies containing methamphetamine residue and $2,600 in cash in Sara's home. Sara pleaded guilty to child cruelty. She eventually lost custody of her older children to the children's fathers.
Robert does not know his father. Craig did not participate in Robert's dependency proceedings and has not appealed the order terminating his parental rights.
In 2007 the San Diego County Health and Human Services Agency (Agency) offered voluntary services to Sara. Rather than comply with the case plan, Sara placed Robert in the care of a family friend from July 2007 to December 2008.
In April 2009, law enforcement officers raided Sara's home and found methamphetamine, marijuana, drug paraphernalia and weapons. Sara admitted that she used methamphetamine. The Agency detained Robert in protective custody and initiated dependency proceedings.
Robert was placed with his paternal aunt and uncle and their three children. The social worker said that Robert was a bright little boy who appeared to have anxiety and attachment disorders.
Sara visited Robert in the relatives' home. During visits, Sara instructed Robert not to speak to the social worker. After his visits with the social worker, Robert was afraid that Sara would be angry with him. Robert bit his fingernails to the fingernail bed. He displayed behavioral issues, including refusing to eat, not listening, talking back, throwing tantrums and hitting his aunt. Robert counted the days until he could return home. He frequently drew pictures of himself and his mother. Robert's therapist said that Robert showed symptoms of reactive attachment disorder. Robert was extremely angry and worked hard to hide his emotions and to stay in control.
Robert's visits with Sara became inconsistent and sporadic. Sara missed approximately 14 of 41 visits. Robert's negative behaviors escalated after he visited Sara, and he became violent toward his caregiver. When the social worker met with Robert after one visit, Robert became hysterical. A man whose identity was unknown to the Agency was picking up Robert for his visits with Sara. Robert said that Sara had told him to lie about his means of transportation to their visits, which were unsupervised at that time.
After the Agency imposed a requirement that Sara's visits with Robert be supervised, Robert told the social worker, "We don't like people watching us." The social worker was concerned about the manner in which Sara interacted with Robert. However, the social worker stated that Robert was clearly attached to Sara and looked forward to spending time with her. He was "extremely giggly and happy" when he was with her. Robert hoped to return to Sara's care.
Sara tested positive for methamphetamine in May 2009, on two occasions in October 2009 and in January 2010. In approximately October 2009, Sara became pregnant. In January 2010, Sara entered a six- to 12-month inpatient substance abuse treatment program. Sara left the program after three months. She tested positive for methamphetamine in June. Her baby was born in July. Sara retained custody of the baby on the condition that she participate in an inpatient substance abuse treatment program. Sara lost custody of the baby in December 2010 after she tested positive for drugs.
In January 2010, the juvenile court approved an application for psychotropic medication to control Robert's aggression and agitation.
In June 2010, after Sara pointed out a bruise on Robert's ear, Robert disclosed that his uncle hit him, that there was domestic violence in the home and that a young cousin was touching him inappropriately. The juvenile court granted the Agency's section 387 petition to remove Robert from the care of his relatives.
The Agency placed Robert with a foster family (caregivers) and provided in-home services to build Robert's attachment to the caregivers. Robert adjusted well to the placement. The caregivers reported that Robert's behaviors had stabilized and he was no longer taking psychotropic medication.
In August 2010, at the 12-month status review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing.
Robert completed a psychological evaluation shortly before the section 366.26 hearing. Robert was diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct, neglect and physical abuse, and with suspected, but not fully substantiated diagnoses of posttraumatic stress disorder, attention deficit hyperactivity disorder and sexual abuse. The therapist stated that if Robert resided in a safe, stable, loving home environment and received the necessary services, his problematic behaviors would decrease and his functioning and adjustment would improve.
The section 366.26 hearing was held on February 18, 2011. The juvenile court received the social worker's reports in evidence. The social worker testified that Robert was adoptable because of his age, lack of developmental delays and overall demeanor. He was a happy, positive, friendly and attractive child. Robert's diagnosis of adjustment disorder was not an impediment to his adoption. Most of his problematic behaviors occurred only after he visited or talked with Sara. The social worker stated that there were 20 families with approved home studies that were willing to adopt a child like Robert. Robert's current caregivers were willing to adopt Robert if parental rights were terminated. They had an approved home study. Robert was slowly attaching to the caregivers and their extended family members. The caregivers were expecting their first child.
The social worker observed four visits between Sara and Robert. Sara and Robert played together. He engaged with her. Sara brought snacks to the visits. They played ball or watched movies together. Sara told Robert that she loved him and he responded in kind. However, the social worker did not believe that Robert considered Sara to be a parental figure.
The social worker testified that terminating parental rights would not be detrimental to Robert because he would gain permanency and stability through adoption. When the social worker told Robert that if he were adopted he might not see his mother again, Robert wanted to talk about changing his last name to the caregivers' last name.
Sara testified that Robert called her "mommy." She acknowledged that it was difficult to maintain a personal relationship with Robert because she saw him only an hour and a half each week. Sara took responsibility for the fact that their visitation schedule was so limited.
The parties stipulated to the testimony of Armando L., who was a friend of Sara's and had known Robert since birth. If Armando were to testify, he would state that Robert had a very special relationship with Sara.
The juvenile court found that Robert was generally and specifically adoptable. The juvenile court found that there was a parental bond between Sara and Robert, but that the benefits of adoption outweighed any detriment that might be caused by the severance of the natural parent/child relationship. The juvenile court terminated parental rights.
DISCUSSION
Sara contends that there is not substantial evidence to support the juvenile court's finding that Robert was likely to be adopted within a reasonable time if parental rights were terminated (adoptability finding). Sara asserts that the caregivers will not be able to meet Robert's special needs once their first child is born. She argues that Robert's behavioral issues would make it difficult for the Agency to locate an alternative adoptive home if his caregivers are not able to adopt him.
Sara further contends that termination of parental rights would be detrimental to Robert because they shared a beneficial parent/child relationship. She argues that there is not substantial evidence to support the juvenile court's finding that any detriment caused by terminating Robert's relationship with her is outweighed by the benefit that Robert would gain from adoption.
A
Legal Framework for Termination of Parental Rights
At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406; § 366.26, subd. (c)(1).) The question of adoptability usually focuses on whether the child's age, physical condition and emotional health 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 Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is any legal impediment to that adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
Once the court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Section 366.26, subdivision (c)(1)(B)(i), provides that there is an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
"Benefit from continuing the relationship" means that "the [parent/child] 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.) Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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." (Ibid.)
On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child is likely to be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562; see also Zeth S., supra, 31 Cal.4th at p. 406.) The reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c), if the finding is supported by substantial evidence. (Autumn H., supra, 27 Cal.App.4th at p. 576; In re S.B. (2008) 164 Cal.App.4th 289, 298.)
B
There is Substantial Evidence Supporting the Court's Finding that Robert Is Likely To Be Adopted Within a Reasonable Time
Sara contends that there is not substantial evidence to support the finding that Robert is generally adoptable. She argues that his serious unresolved behavioral and emotional issues, and his need for continued support services, would make it difficult to locate an adoptive home for Robert with a new family. Sara also points out that under section 366.26, subdivision (c)(3), Robert may be found to be difficult to place for adoption because of his age.
Even if a child is considered difficult to place for adoption because of the child's age or the presence of a diagnosed medical, physical, or mental handicap, the court may not delay permanency if there is an identified or available prospective foster parent, as here. (§ 366.26, subd. (c)(3).) Despite Robert's significant behavioral and emotional needs, Robert's caregivers expressed their willingness to adopt him if parental rights were terminated. They obtained an approved home study to adopt Robert. Thus, even assuming that Robert is not generally adoptable, there is substantial evidence to support the juvenile court's finding that Robert is specifically adoptable by his caregivers.
The record does not support Sara's contention that there is a legal impediment to adoption by Robert's caregivers. (In re Carl R., supra, 128 Cal.App.4th at p.1061.) The caregivers have an approved home study. By the time of the section 366.26 hearing, they had cared for Robert for six months and were familiar with his behaviors, his emotional needs and the support services that he requires. The caregivers filed a petition for de facto parent status before the section 366.26 hearing. They were appointed to make educational decisions for Robert in August 2010. At the close of the section 366.26 hearing, the juvenile court granted the caregivers' requests for de facto parent status and designated them as Robert's prospective adoptive parents.
Sara argues that when the caregivers' first child is born, they will have a difficult time giving Robert the attention, care, discipline and services that he needs. She contends that there is no evidence to show that the caregivers have a plan to address Robert's often out-of-control behaviors and psychological issues, which include aggressive acts toward other children and pets, throwing tantrums, biting his nails, refusing to eat and hyperactivity. Sara speculates that once the caregivers' baby is born, they will no longer be able or willing to adopt Robert.
Sara's argument is not persuasive. The Agency is required to conduct a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent, including the capability of the prospective adoptive parent to meet the child's needs, and their understanding of the legal and financial rights and responsibilities of adoption. (§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D).) The social worker is also required to assess the relationship of the child to any identified prospective adoptive parent, the degree of attachment of the child to the prospective adoptive parent and the strength of the adoptive parent's commitment to caring permanently for the child. (§§ 366.21, subd. (i)(1)(E), 366.22, subd. (c)(1)(E).)
At the time the social worker conducted the preliminary adoption assessment, the social worker knew about the caregiver's pregnancy. The caregivers' home study was subsequently approved. We draw the reasonable inference that the Agency was fully aware of Robert's special needs and the impending birth of the caregivers' first biological child before it approved the caregivers' home for adoption.
We conclude that the court's adoptability finding is supported by substantial evidence. The evidence regarding the caregivers' willingness and suitability to adopt Robert is sufficient to sustain the adoptability finding on appeal. Thus, we need not consider the parties' arguments concerning the juvenile court's finding that Robert is generally adoptable.
D
There is Substantial Evidence Supporting the Court's Finding that the Beneficial Parent/Child Relationship Exception Did Not Apply
Sara contends that there is not substantial evidence to support the juvenile court's finding that the beneficial parent/child relationship exception did not apply to preclude termination of parental rights.
During his psychological evaluation, Robert said that he was confused about his feelings for Sara and that he did not know whether he wanted to continue to visit her. He reported that he looked forward to the visits, but he worried about them. The psychologist observed that Robert's affect was somewhat anxious during the evaluation, particularly when he was asked questions regarding his mother. Robert reacted hysterically when Sara told him to lie about his transportation to their unsupervised visits. (In re Angel B. (2002) 97 Cal.App.4th 454, 467 [the positive or negative effect of interaction between parent and child is a factor in determining whether the relationship is beneficial to the child].)
The record contains substantial evidence to support the juvenile court's determination that Robert would not be greatly harmed by termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Sara acknowledged that Robert's relationship with her had become attenuated. Robert said that his caregivers were nice and that he felt safe living with them. When Robert was recently asked to draw a picture of his family, he drew a picture of himself and his caregivers playing a video game together. All three figures were smiling happily. The psychological report stated that Robert's decision not to include biological family members in his drawing indicated that he no longer viewed them as part of his family unit.
The juvenile court did not err when it concluded that the stability and security of adoption outweighed any detriment to Robert from the severance of the parent/child relationship. The record supports the conclusion that stability is of the utmost importance to Robert's well-being. The psychologist stated, "If Robert is in a secure and stable home environment, he will likely progress in therapy more rapidly. If he transitions again between caregivers and homes, his behaviors and symptoms are expected to escalate. [¶]... Robert should receive consistent and frequent reassurance that he is loved and will not be abandoned. The therapist and social worker should monitor/consider whether continued contact with his biological mother is in his best interest[s]."
We conclude that there is substantial evidence to support the court's findings that Robert's interests in a continued relationship with his parents did not outweigh his interests in the security of an adoptive placement with a safe, stable, and loving family that was capable of meeting his needs for attentive, consistent and nurturing care, and that termination of parental rights would not be detrimental to Robert. (Autumn H., supra, 27 Cal.App.4th at p. 575 ; § 366.26, subd. (c)(1)(B).)
DISPOSITION
The findings and order are affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.