Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD222752, JD222753, JD222754, JD222755, JD224587.
BLEASE, Acting P. J.
Appellants Renee C. (mother) and William C. (father) (hereafter collectively referred to as appellants) appeal from the juvenile court’s orders terminating their parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants contend: (1) there was insufficient evidence the minors were adoptable; (2) the beneficial parent-child relationship exception to adoption should have been found; (3) the sibling relationship exception to adoption should have been found; and (4) separate counsel should have been appointed for the minors. In addition, mother contends that the juvenile court erred in denying her petition for modification. We shall affirm.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
We take the facts up through the disposition hearing from our previously filed opinion. (In re S.C. (Apr. 12, 2007, C058843 [nonpub. opn.].)
On July 18, 2005, the Department of Health and Human Services (DHHS) received a call regarding two small children home alone. When law enforcement arrived, they located six children, along with appellants, living in filthy conditions, including rotten food, flies, feces smeared on the floor and no electricity. The minors were taken into protective custody.
On July 21, 2005, DHHS filed section 300 petitions on behalf of B.R., J.C., C.C., and S.C. The petitions alleged the minors’ home did “not meet the basic health and safety standards in that the [minors] appeared filthy, the home was filthy, dirty dishes were inside and outside the home with flies, feces smeared on the floor, and the electricity had been off for approximately a month and a half.” The petitions also alleged that mother and father have a history of domestic violence, which includes father punching holes in walls and “smacking” mother in the head in the presence of the minors. Finally, the petitions alleged the minors’ cousin, T.J., had been examined at a medical center on July 18, 2005, and was found to have curvilinear marks and bruises to his back and upper arm that were consistent with physical abuse. T.J. reported that father hit him with a belt and shot him with a pellet gun.
T.J. was living in appellants’ home at the time of the initial detention.
At the detention hearing, the court ordered DHHS to provide services to appellants. The social worker referred mother to WEAVE and father to early intervention for drug and alcohol testing. A contested jurisdiction hearing was held on August 30, 2005. Evidence was presented to the juvenile court through the social worker’s report and the testimony of mother, the paternal aunt and the paternal grandmother.
Women Escaping a Violent Environment program.
As previously stated, the minors’ cousin, T.J., had been examined at a medical center on July 18, 2005, and found to have curvilinear marks and bruises to his back and upper arm that were consistent with physical abuse. T.J. reported that father had hit him with a belt and shot him with a pellet gun. T.J. later refused to answer questions about father shooting him with a pellet gun. T.J. had also been caught lying on several occasions.
Seven-year-old B.R., however, confirmed that father had shot T.J. with a BB gun and that the family had laughed but T.J. had cried. B.R. described the incident as the family “having a good time together.” B.R. also stated that father had previously shot her in the leg with a BB gun, and she showed a small scar to the social worker. B.R. said mother and father do not hurt each other when they fight, but also reported that father “smacks the mother in the head when they argue” and he also “punches holes in the walls.”
According to five-year-old J.C., mother and father “fight and say bad words.” Father punched mother in the face and has also punched J.C. Father also “throws stuff at mom,” including an incident where he “threw a vacuum at her leg.” J.C. said father was “trying to kill mom.” J.C. also reported that father had instructed him to beat up his cousin, T.J., and had specifically told J.C. to “hit [T.J.] in the face.” Finally, J.C. stated that father spanks him with his hand and a belt and throws the minors on the couch when he is upset.
Mother admitted to domestic violence in the past, but claimed it had occurred almost three years earlier, while they lived in Illinois, and that she and father had never engaged in a physical altercation in front of the minors. The family had been in California for over two and a half years at the time of the jurisdictional hearing. Mother admitted that father has punched holes in the walls and that he would “smack” her as “a warning to back away before he hurts me.” B.R. reported that the incidents of father punching holes in the walls occurred in California.
Mother stated father is an alcoholic and was violent when he drank, but has been sober for approximately two years. He is still tempted to drink on occasion and has brought beer into the house, but poured it down the sink. Neither mother nor father had attempted to participate in any counseling or other services to address domestic violence.
Father admitted that he was “a bad alcoholic in Illinois[,]” but he has been sober for two years. He had not participated in any recovery program or attended any AA meetings. Father also admitted that there are “quite a few holes” in the walls of the home. He denied, however, that he hit T.J. with a belt or anything else or that he ever abused his family.
At the time of the minors’ initial removal, they were mildly anemic and their dental care had been badly neglected. While in out-of-home placement, two-year-old C.C. was behaving aggressively. J.C. was also aggressive. According to the social worker’s report, this aggressive behavior is directly related to the aggressive behavior the minors had observed in their home and the minors had learned to communicate physically when they have a conflict.
The social worker visited the home on August 25, 2005. Appellants had made efforts to clean the house but it still did not meet basic health and safety standards. The house had electricity and plumbing but had a “strong odor throughout.” The carpets were “extremely filthy” and contained numerous sharp objects and cigarette butts. The backyard had a “large junk pile full of sharp, dangerous objects” and a large section of the back fence was missing, which allowed access to an alleyway. At the hearing, however, mother and the paternal aunt testified that the house had since been cleaned and the junk pile secured.
Based on this evidence, the juvenile court sustained the petitions and found the minors were persons described by section 300, subdivision (b). Because of the conflict in evidence regarding the current condition of the home, the court continued the disposition hearing for two weeks to allow the social worker to submit an updated report.
The social worker filed an addendum report regarding the condition of the home at the time of her September 9, 2005, visit. The home appeared much cleaner but there were “still numerous cigarette butts on the floor throughout the home, and pellet gun bullets spilled across the stove.” The fence was still not fixed and the junk pile was not secured. The social worker also reported that father had not submitted any urine tests for detection of drugs and alcohol, and mother had not begun any drop-in group sessions at WEAVE, as they had been instructed. The social worker also reported that she had received several incident reports from the receiving home about the minors. J.C. was using extremely inappropriate language with staff and residents, including telling them “I’m going to kill you.” C.C. was physically aggressive toward other children. She had scratched a child’s face and arms, pinched a child’s arm, and was scratching staff and her sibling, S.C.
No further testimony was presented at the September 14, 2005, continued disposition hearing. The court noted that, while the continuance was primarily to address the current condition of the home, domestic violence was also an issue. The court also found that, although appellants were offered services (WEAVE for mother and alcohol/drug testing for father), neither had participated in those services. Finding that reasonable efforts had been made to eliminate the need for removal of the minors and that there was a substantial danger to the minors if they were returned home, the juvenile court adjudged the minors dependent children of the court, ordered the minors to remain in out-of-home placement and ordered appellants to participate in reunification services. The reunification services included counseling regarding domestic violence for the mother and, for the father, counseling regarding anger control and outpatient substance abuse services.
The juvenile court set a review hearing for November 18, 2005, with the intent of returning the minors to appellants’ custody if they had made progress with the reunification services.
In its November 2005 progress report, DHHS stated that appellants had made progress toward cleaning up the home. Both mother and father were scheduled to begin parenting classes but they had missed their counseling session. Father had agreed to drug testing but had yet to test. DHHS recommended the minors remain in foster care until appellants were able to comply with the case plan. At the hearing, the juvenile court denied mother’s request for overnight and weekend visitation.
The report prepared for the March 17, 2006, permanency planning hearing indicated that the paternal grandmother was being assessed for placement. The minors were currently in two different foster homes. At the hearing held March 17, 2006, the juvenile court ordered the minors placed together in the home of the paternal grandmother.
At the time of the April 7, 2006, addendum report, appellants had been participating in personal counseling and parenting education. Visitation, which had previously been somewhat inconsistent, was now going well. The minors were ordered to remain with the paternal grandmother and services were continued.
On June 30, 2006, mother gave birth to W.C. A section 300 petition was filed on behalf of W.C. on July 17, 2006, alleging the minor was at risk because appellants had failed to protect the minor’s siblings and had failed to utilize housing services. Appellants were homeless and not in compliance with services. The juvenile court sustained the petition, ordered W.C. detained, and the minor was placed in foster care.
At the August 3, 2006, progress review hearing, the court found there were services available to allow W.C. to remain in the home with appellants and W.C. was returned to the care of appellants. On August 11, 2006, the court adjudged W.C. a dependent child of the court and placed him with appellants under supervision.
By September 20, 2006, appellants had a home with bedrooms for the minors, although they had not yet obtained beds. Both mother and father were participating in counseling. On October 6, 2006, the juvenile court found that appellants had been visiting regularly and their progress with the case plan was “fair.”
On November 6, 2006, however, DHHS filed a petition to modify the court’s prior order to require appellants to participate in drug testing. DHHS had received a report that appellants were using drugs. The social worker investigated and found some clothing lying on top of a duffel bag on the porch that smelled of marijuana; she also found a marijuana stem and some marijuana leaves in an ashtray in the living room. Mother tested positive for amphetamine and methamphetamine on October 13, 2006, and father admitted to having used marijuana in early October 2006. Appellants agreed to submit to drug tests and attend drug court and were ordered to do so.
In late November 2006, appellants tested positive for and admitted using amphetamines. W.C. was detained on November 28, 2006, and placed with the paternal grandmother, at whose home the four other minors resided.
In its December 15, 2006, report, DHHS stated that appellants were homeless and did not qualify for housing services because of their history of evictions. Appellants had not been drug testing regularly and had not tested since November 28, 2006, the date on which W.C. was detained. Although mother had requested residential treatment, she missed her appointment and was, consequently, not referred. W.C. was continued as a dependent child of the court.
In its permanency review report dated January 8, 2007, DHHS reported that mother was in residential treatment. She admitted she had used methamphetamine “‘on and off’ for the past three years.” Mother stated she last used methamphetamine on December 16, 2006. Father had been in inpatient transitional housing since approximately December 21, 2006, having stated that he had begun using methamphetamine daily 18 months prior, and had begun drinking alcohol again in October 2006.
DHHS filed an addendum report on January 18, 2007, which stated that appellants had both left their residential treatment on January 10, 2007. In addition, appellants had not visited the minors for three weeks. The juvenile court terminated appellants’ reunification services and scheduled a section 366.26 hearing. The court ordered a bonding assessment as to the four older minors.
On May 11, 2007, DHHS petitioned the court to remove the minors from the paternal grandmother’s home, in part because of an altercation that had occurred on May 6, 2007. On that date, appellants went to the home of the paternal grandmother and attempted to abscond with the minors. A physical altercation ensued, during which father hit the grandmother and held a knife to her throat. Appellants claimed the confrontation resulted from their concern that the grandmother was using alcohol with the minors in the home. The minors witnessed the altercation and B.R. received a scratch under her eye. Father was arrested. DHHS had concerns about the paternal grandmother’s ability to protect the minors because of her inability to set boundaries with appellants. On May 14, 2007, the court ordered the minors temporarily removed from the grandmother and placed in foster care.
In the report for the June 8, 2007, jurisdiction and disposition hearing, DHHS reported that father admitted he had been residing in the paternal grandmother’s driveway, and occasionally in her home, for the prior three to four months. He also acknowledged that the grandmother was unable to set limits for appellants and that, despite his and the grandmother’s earlier denial, he had been in the grandmother’s home on previous occasions. Father also told the social worker he had concerns about the paternal grandmother’s alcohol use.
On June 22, 2007, the juvenile court ordered the minors removed from the paternal grandmother’s care and placed in foster care. The juvenile court ordered sibling visitation, as well as counseling for B.R. and J.C.
On August 20, 2007, mother filed a section 388 petition requesting modification of the June 22, 2007, order and seeking placement of the minors with her or, alternatively, reassessment of the paternal grandmother for placement. The petition stated that mother had attended a substance abuse program and had received a certificate of completion, was attending weekly NA/AA meetings, had obtained full-time employment and suitable housing, had not used drugs since February 2007, had provided a clean drug test in connection with her employment, had regularly visited the minors, and was attending school. The petition further alleged that the minors were currently in three different homes, that they previously had resided together for a year with their paternal grandmother, that they were bonded to each other and it would be detrimental for them to be separated, that the paternal grandmother was attempting to become certified as a foster home, and that they wanted to live with their mother or the paternal grandmother. The juvenile court scheduled a hearing on the petition.
In a report dated September 11, 2007, DHHS reported that B.R. and J.C. were in a foster home that wanted to adopt them. The prospective adoptive parents reportedly recognized the importance of sibling contact and were open to maintaining contact with the remaining sibling group. The social worker was still looking for a prospective adoptive home for S.C., C.C. and W.C.
A bonding study was prepared on July 20, 2007, regarding the relationship between the four older minors and mother. The interviews for the assessment were performed in March 2007, but the evaluator had taken into account the minors’ subsequent removal from the paternal grandmother and placement in foster homes.
The evaluator opined that B.R. had a relatively strong, positive emotional attachment to mother and would likely experience some detriment to her emotional functioning if her contact with mother were to be severed. B.R., however, was reasonably accustomed to living separately from mother and going long periods of time without seeing her. The evaluator stated B.R. would likely need some supportive counseling if parental rights were terminated to help her work through whatever feelings of loss she experienced.
The evaluator opined that J.C. showed a rather insecure emotional attachment to mother. The evaluator stated that J.C. would likely experience some detriment to his emotional functioning if his relationship with mother were to be severed but that the detriment would “almost certainly” be offset by the advantages of permanency. J.C.’s future caretakers should be alerted to his attachment difficulties and be prepared for an initial difficult adjustment. He also recommended that J.C. be referred to counseling to help him work through whatever feelings of loss and abandonment he experienced upon termination of parental rights.
The evaluator did not anticipate C.C. or S.C. would experience any significant detriment to their emotional functioning as a result of mother’s parental rights being terminated. Optimally, the twins would be placed with their siblings and supportive services should be put in place to help them adjust to a new home.
A bonding study was prepared on November 5, 2007, regarding the relationship between the four older minors and father. The evaluator concluded that all four minors retained a positive emotional attachment to father and will likely “‘miss’” him and occasionally think about him. The evaluator did not believe, however, that the minors consider father a primary source of safety, security, or nurturance or that termination of his parental rights would result in any detriment that would not be outweighed by the advantages of permanency.
DHHS filed an addendum report on January 8, 2008. B.R. and J.C. were still placed together in the home of the prospective adoptive family and, although a home study had not been yet been completed, there was no reason to believe it would not pass an adoption home study. The prospective adoptive parents recognized the importance of sibling contact and were open and committed to maintaining sibling contact through regular visitation and telephone contact.
A prospective adoptive home had also been identified for C.C., S.C. and W.C. A home study had been completed and approved, and preplacement visits with the family had begun on December 27, 2007. The prospective adoptive parents were open and committed to maintaining sibling contact through regular visitation and telephone contact.
DHHS also reported that mother had not continued to drug test, was not participating in drug treatment or attending 12-step meetings, and had not participated in a domestic violence program. Appellants were living together and currently staying with the paternal grandmother while they looked for a new apartment. Father was not employed. DHHS recommended that the court terminate appellants’ parental rights and free the minors for adoption.
A contested hearing on the petition for modification, followed by the section 366.26 hearing, began on January 9, 2008. B.R. testified that her prospective adoptive home was “great” and that her foster parents did not “fight like her mom and dad used to.” She said it was good to live with her paternal grandmother, but she did not want to go back and live with her because she drank. She did not want to live with appellants because they fought, but would like to continue seeing her mother and would be sad if she did not see appellants again. She would also be sad if she never saw C.C., S.C. or W.C. again.
J.C., who was three years younger than B.R., also testified. He said it was “[a] little bit good” living with his foster parents, but he missed appellants and would like to live with them. He stated that he would feel “[r]eally, really sad” if he could not see his mother again. He also liked seeing his younger siblings. He wished his family could all be together.
Mother testified that she had been sober for nearly a year, but could not afford drug testing. She had a support system, which included a 12-step meeting that she attended. She said her current employer did random drug testing. She and father were working a 12-step workbook and were both looking for sponsors. She and father were living with the paternal grandmother and looking for another place together. They no longer fought like they used to and were looking into getting counseling. She stated she would live apart from father if it meant she could get her children back, but also said she had no current intention of divorcing or separating from father. She testified that C.C. called her “‘mommy’” and had asked if she could come home with her, and that, during every visit, J.C. asked if he could live with her. She stressed that the minors were bonded and needed to be together.
The juvenile court denied mother’s petition for modification. Although the court found a change of circumstances in that mother was more stable, had been participating in some services, had completed outpatient substance abuse services, and had secured employment, the court did not find that the best interests of the minors would be served by granting the request.
With respect to the section 366.26 hearing, appellants argued that the parent-child and sibling relationship exceptions to adoption set forth in section 366.26, subdivisions (c)(1)(B)(i) and (c)(B)(v) applied.
The paternal grandmother testified that the minors were very bonded and she believed they should be placed together. The minors were excited about visits with appellants and did not want them to end, and visits were positive. Mother testified that the paternal grandmother had allowed her and father to have unmonitored visits as often as they wanted. She described how positive the visits were and stated that the minors would all ask when they could be together again. Father also testified as to the close bond between the minors and appellants, as well as the close bond among the minors.
At the conclusion of the testimony, the minors’ counsel stated that the minors wanted to continue to have contact with each other but “I cannot say that there would be any detriment in comparison to the permanency of adoption of both of these placements.”
The juvenile court found the minors were adoptable. The court found that mother had visited regularly, that father’s visitation had been less consistent, but even assuming father’s visitation was sufficiently regular, the parent-child exception to adoption did not apply. The court found that, although there would be some emotional detriment to the minors from termination of parental rights, the benefits of permanency outweighed that detriment. The court also found that, while the minors had significant sibling relationships, the severing of which would be detrimental to the minors, the sibling relationship exception did not apply. The court noted that the current prospective adoptive parents were open and committed to maintaining sibling contact and the benefits of the permanency of adoption outweighed any detriment to the minors.
The juvenile terminated parental rights and freed the minors for adoption.
Discussion
I Section 388 Petition for Modification
Mother contends the juvenile court erred in denying her section 388 petition for modification. DHHS argues that this court does not have jurisdiction to address the issue because (1) she should have sought review of the order denying her section 388 petition by extraordinary writ; and (2) mother’s appeal purports to include the ruling on the section 388 petition, but the notice includes only the date on which appellants’ parental rights were terminated and the minors were freed for adoption. In any event, the juvenile court did not abuse its discretion in denying the petition.
Although mother did not state that she was appealing the order denying her section 388 petition in her notice of appeal, we will address her challenge to the denial of this order in the present appeal.
In In re Madison W. (2006) 141 Cal.App.4th 1447 (Madison W.), the parent filed a notice of appeal from the order terminating parental rights, but did not refer to the order denying the section 388 petition. (Madison W. supra, at pp. 1449-1450.) The court explained that it would “liberally construe a parent’s notice of appeal from an order terminating parental rights to encompass the denial of the parent’s section 388 petition, provided the trial court issued its denial during the 60-day period prior to filing the parent’s notice of appeal.” (Id. at p. 1451.) The court reached this decision for the following reasons: “First, the denial of such a section 388 petition is an appealable order. (§ 395.) Second, the parent’s notice of appeal is entitled to our liberal construction. (Vibert v. Berger (1966) 64 Cal.2d 65, 67.) Third, appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) Fourth, the notice of appeal would be timely as to the denial of the parent’s section 388 petition, provided the trial court denied the parent’s section 388 petition within 60 days of the date on which the parent filed the notice of appeal. (Cal. Rules of Court, [former] rule 2.) And, finally, respondent is not prejudiced. (Vibert v. Berger, supra, 64 Cal.2d at p. 67.)” (Madison W., supra, 141 Cal.App.4th at p. 1450.)
The reasoning and holding of Madison W. apply to this case. Although mother did not refer to the order denying her section 388 petition in her notice of appeal, we will liberally construe the notice to include her challenge to that order. Here, the juvenile court denied the section 388 petition on January 15, 2008. Mother filed a notice of appeal from the order terminating parental rights on March 20, 2008. The notice of appeal was timely, in that it was filed during the 60-day period after the order denying the section 388 petition became final. Furthermore, DHHS is not prejudiced by a liberal construction of the notice of appeal.
The section 388 order was entered by a referee. The California Rules of Court provide that the 60 days within which to file a notice of appeal begins to run from the date the order becomes final--that is, 10 calendar days after service of the referee’s order and findings. (Cal. Rules of Court, rules 5.540(c), 5.585(f), 8.400(d)(2).)
Reaching the merits, we reject mother’s contention that the juvenile court abused its discretion by denying her section 388 petition. The juvenile court ruled as follows:
“On the petition filed by the mother, the [section] 388 [petition], the first issue is whether there’s a change of circumstances. The court does find there is a preponderance of the evidence there’s a change of circumstances. The mother is more stable, has been participating in some services and completed outpatient substance abuse and has a job, has employment. So I do find the first prong of the [section] 388 [petition] has been proven.
“The next issue is whether the proposed changes would be in the best interest of the children. The evidence presented has not convinced me by a preponderance of the evidence that it would be in the best interest to order placement with the mother or placement with the grandmother or reevaluation of the grandmother. The court recognizes that drug testing is expensive, but at the same time the mother’s claim of sobriety must be backed up by hard evidence especially in light of the history here. Having a job and going to outpatient treatment and support groups is certainly some evidence of that, but considering the history to prove by a preponderance of the evidence sobriety must have a pattern of clean testing and that has not been proven. In conjunction with that the mother has not shown proof of participating in important services like [a] domestic violence program or counseling. She’s looking for counseling she said and at this time for these kids who have been through a lot of chaos, it’s not in their best interest at this point to wait even longer for [appellants] to find, look for, participate and make substantive progress in services which obviously should have been done already unfortunately.
“In addition to that, the mom and dad live together. This court does not see how the kids can be returned to the mother to share a home with the father when essentially [appellants] have not made progress in domestic violence and drug abuse to a certain extent, especially the father. There’s no evidence that the father has made progress in those service areas, so putting the kids back in the home at this time presents a huge risk to the children. What would happen to the children if [appellants] engage only one time in a domestic violent incident or temporarily relapse[]? They would be subjected to just total chaos in their lives. Granting the modification at this late date would put the children in a total state of limbo and we would be crossing our fingers and hope we will –- that it would work out. We would be going back to square one to a certain point.
“Unfortunately I’m compelled –- I’m not convinced by a preponderance of the evidence that it would be in the best interest of the children to grant this and there’s no evidence presented that the decision to remove from the grandmother should be changed at this time, so the [section] 388 [petition] is denied.”
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification, but to the needs of the child for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).) Thus, in most cases, if a parent’s circumstances have not changed sufficiently to permit placement with that parent of an otherwise adoptable child, reopening reunification “does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (Jasmon O., supra, 8 Cal.4th at p. 415.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . .” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Applying these principles here, we conclude that the juvenile court did not abuse its discretion by denying mother’s request for modification. Although mother emphasizes her positive relationship with the minors, and mother had made some progress in her substance abuse and stability problems, her circumstances had not changed sufficiently to permit placement of the minors in her care. She had not provided a series of clean drug tests, she was living with father in the paternal grandmother’s home, she had not completed a domestic violence program, and she was still “looking into counseling” with father. Considering the history of domestic violence and mother’s lengthy history of substance abuse and instability, the juvenile court did not abuse its discretion in determining that this was insufficient progress to permit placement of the minors with mother. No evidence was presented to support a reassessment of the paternal grandmother’s home as a suitable placement.
The juvenile court’s analysis was sound. It was not an abuse of discretion to deny mother’s request for modification.
II Sufficiency of Evidence of Adoptability
Mother contends there was insufficient evidence that the minors were adoptable. We disagree.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 (Ronell A.), italics omitted.) “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.)
We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
Here, mother claims there was insufficient evidence that the minors were adoptable because three of the minors (J.C., C.C. and S.C.) are hyperactive and have poor anger control. She also emphasizes that the prospective adoptive home for B.R. and J.C. had not yet passed a home study and C.C., S.C., and W.C. had not yet been placed in the other prospective adoptive home.
By the time of the selection and implementation hearing, two prospective adoptive homes had been identified. There were no identified legal impediments to adoption in either of these homes. J.C. and B.R. had been in their prospective adoptive home for approximately seven months and, according to the prospective adoptive mother, were adjusting positively to the home. The prospective adoptive mother had identified J.C.’s hyperactivity and anger management issues, yet remained prepared to adopt the minor. C.C., S.C. and W.C. had been visiting frequently with their prospective adoptive parents since late December 2007. Although C.C. and S.C. were reportedly “rather hyperactive” and C.C. could be rather quick to anger, their current foster mother did not identify any issues of sufficient magnitude to deter adoption of these minors.
“‘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 Asia L. (2003) 107 Cal.App.4th 498, 510, quoting In re Sarah M. (1994) 22 Cal.App.4th 1643, 1649-1650, italics in Sarah M. omitted.)
Here, neither neither mother nor father suggested to the juvenile court that the minors were not generally adoptable. Although mother now argues that the prospective adoptive homes are not a certainty, the juvenile court found the minors to be generally adoptable. As such, questions regarding the suitability of prospective adoptive parents are irrelevant to the issue of the minors’ adoptability and should be “‘reserved for the subsequent adoption proceeding.’” (In re T.S. (2003) 113 Cal.App.4th 1323, 1329, see id. at pp. 1328-1319; cf. In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
In sum, the minors’ qualities, along with the fact that prospective adoptive parents had been identified who wanted to adopt them, provided ample support for the juvenile court’s finding of adoptability.
III Beneficial Parent-Child Relationship Exception
Appellants contend the juvenile court erred by failing to find an exception to adoption based on their beneficial relationships with the minors. We find no error.
“‘The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.]” (Ronell A., supra, 44 Cal.App.4th at p. 1368, italics in Ronell A. omitted.) If the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless the court finds a compelling reason for determining that to do so would be detrimental to the child because of one of the enumerated exceptions. (§ 366.26, subd. (c)(1).)
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to adoption when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” However, “a parent may not claim entitlement to the exception provided by subdivision [(c)(1)(B)(i)] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child must promote “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The detriment posed to the minors from terminating parental rights must be compelling to warrant a permanent plan other than adoption. (§ 366.26, subd. (c)(1).) Appellants emphasize that the evidence showed they had positive relationships with the minors and that visits went well. While there is evidence that the minors had a positive relationship with the mother and, to a somewhat lesser extent, the father, the juvenile court was required to weigh this against the benefits the minors would gain in permanent adoptive homes. The court engaged in this process, acknowledging that the minors would experience some grief and emotional detriment from severance of the relationship with appellants, but concluded that the detriment the minors would suffer if contact was terminated did not outweigh the benefits of adoption. This conclusion is supported by the bonding study. Substantial evidence supports the court’s determination that this exception does not apply.
Mother argues that guardianship would have protected the minors’ interests in stability and permanence while allowing the minors to maintain a relationship with appellants, as well as their siblings. But “‘“[t]he Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent plan and secure alternatives that can be afforded them.”’” (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) “[O]nce a juvenile court determines in a particular case that adoption is feasible, the less desirable and less permanent alternatives of guardianship and long-term foster care need not be pursued.” (In re Laura F. (2000) 83 Cal.App.4th 583, 595.)
IV Sibling Relationship Exception
Appellants claim the juvenile court erred in failing to apply the sibling relationship exception to adoption. Again, we disagree.
Appellants’ claim is premised on the statutory exception to adoption contained in section 366.26, subdivision (c)(1)(B)(v). Under that provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where “[t]here would be substantial applies when adoption will result in a “substantial interference with a child’s sibling relationship.” (§ 366.26, subd. (c)(1)(B)(v).) In evaluating whether this exception applies, the court considers “the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (Ibid.) “[E]ven if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953 (L.Y.L.)
Here, although the minors wished they could visit their other siblings more often, the minors had separated into two homes without trauma, and both the foster parents and the bonding study evaluator indicated that the minors had exhibited no significant distress from being separated for the seven months prior to the section 366.26 hearing. Moreover, as the juvenile court noted, even under a plan of guardianship, it would be unlikely the minors would all be placed in the same home. Thus, the minors are likely to have at least as much, if not more, contact with each other if they are adopted as they would have if they were placed in a plan of guardianship. This is particularly true since both prospective adoptive families have stated they are open and committed to maintaining sibling contact.
In any event, the juvenile court was warranted in concluding that the detriment the minors would suffer in this case from potentially severing sibling relationships did not outweigh the benefit they would derive from being adopted. The authors of the legislation adding the sibling exception envisioned that its applicability would “‘likely be rare.’” (L.Y.L., supra, 101 Cal.App.4th at p. 950.) This language has been interpreted to mean “that the child’s relationship with his or her siblings would rarely be sufficiently strong to outweigh the benefits of adoption.” (Ibid.)
Under these circumstances, substantial evidence supports the juvenile court’s conclusion that the benefit to the minors of maintaining their sibling relationships was not sufficient to overcome the preference for adoption.
V Separate Counsel
Appellants claim reversal is required because separate counsel should have been appointed for the minor children. They argue the interests of the minors varied and were in conflict.
DHHS questions appellants’ standing to assert the minors’ right to independent counsel and argues that appellants forfeited the issue by failing to raise it in the juvenile court. DHHS further maintains that, in any event, there was no actual conflict or prejudice shown.
“[A] parent has standing to assert his or her child’s right to independent counsel because independent representation of the children’s interests impacts upon the parent’s interest in the parent-child relationship. [Citation.]” (In re Candida S. (1992) 7 Cal.App.4th 1240, 1252 (Candida S.).) Thus, appellants have standing to assert this claim.
It is, however, problematic to address appellants’ claim in this case because our review is necessarily limited by a record in which the issue was neither raised nor ruled upon. After the initial appointment, the juvenile court must relieve counsel from multiple representation if, but only if, an actual conflict arises. (In re Celine R. (2003) 31 Cal.4th 45, 58.) If a potential conflict of interest existed among the minors and the issue had been raised by any party, the court could have held a hearing to determine whether an actual conflict existed requiring the appointment of separate counsel. (See Candida S., supra, 7 Cal.App.4th at p. 1253.) Since the issue was not raised in the juvenile court, there is little in the record to facilitate meaningful review.
Appellants argue that the minors had differing barriers to adoption and that J.C., more than the other minors, wanted to live with appellants. It is, however, the obligation of counsel for a dependent minor to pursue whatever is in the minor’s best interest. This may or may not be what the minor wishes. Nothing precludes counsel from informing the court that one child wants to be adopted and another does not, or that one child has more emotional attachment to the parents than another. It is up to the court to determine whether to terminate the parental rights for each minor based on the evidence presented.
In the absence of any further facts, nothing in this record rises to the level of an actual conflict of interest requiring appointment of separate counsel.
Disposition
The orders of the juvenile court denying mother’s petition for modification and terminating appellants’ parental rights are affirmed.
We concur: RAYE, J., ROBIE, J.