Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J515689, Carol Isackson, Juvenile Court Judge.
HALLER, Acting P. J.
Nina B. appeals a judgment terminating her parental rights to her minor daughter S.G. under Welfare and Institutions Code section 366.26. Nina contends: (1) the court erred by finding S.G. adoptable on the basis of an inadequate adoption assessment report; (2) the court lacked sufficient evidence to support its finding that S.G. was adoptable; and (3) the court lacked sufficient evidence to support its finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) and sibling relationship exception of section 366.26, subdivision (c)(1)(E) did not apply to preclude terminating her parental rights.
All statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship exception, formerly section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i). The sibling relationship exception, formerly section 366.26, subdivision (c)(1)(E) is now section 366.26, subdivision (c)(1)(B)(v). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
Samuel G., S.G.'s father, joins in Nina's assertions and further claims the judgment should be reversed because the trial court failed to produce him from custody for the section 366.26 hearing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2005 two-year-old S.G. came to the attention of the San Diego County Health and Human Services Agency (Agency) when Nina attempted to stab Samuel with a knife and then poured bleach on him. The Agency filed a petition in the juvenile court under section 300, subdivision (b) alleging the parents had exposed S.G. and her half sister, Tatianna B., to domestic violence.
Tatianna is not a party or subject of this appeal.
The detention report indicated the parents had an extensive history of domestic violence resulting in police intervention and the arrest of either one or both of the parents. The violence included situations during which Samuel threatened to kill Nina, burned her clothes and brandished a weapon during a fight with Nina. Nina had also threatened Samuel with a knife and following at least one altercation, both parents had human bite marks on their bodies. In addition, there was evidence that the parents used methamphetamine in the presence of S.G.
The court held a detention hearing and the social worker informed the court that the whereabouts of S.G. and her parents were unknown. The social worker had made numerous attempts to locate the family at S.G.'s maternal grandmother's home but the maternal relatives did not cooperate with the police or social workers. The social worker recommended that the court issue a pick up and detain order, which the court ordered. The whereabouts of Nina and S.G. remained unknown for the next several months. Nina finally appeared at a May 2005 settlement conference but would not disclose S.G.'s location. The court held her in contempt and Nina was incarcerated. Nina, however, remained uncooperative and thwarted efforts of the court and social workers to locate S.G. Nina either maintained she did not know where S.G. and Tatianna were or she gave the court misinformation.
By late May 2005 S.G.'s maternal grandmother left S.G. and Tatianna in the care of Tatianna's biological father, Jason B. The court subsequently held a jurisdiction hearing and made a true finding on the petition by clear and convincing evidence. The court detained S.G. with Jason.
In June 2005 police arrested Nina following another incident of domestic violence involving Samuel. A few days later, Samuel was arrested for being under the influence of a controlled substance. Both parents were jailed following these arrests. The court held a disposition hearing and removed S.G. from her parents' custody. The Agency reports submitted to the court indicated Nina had not enrolled in a substance abuse program. The court ordered that S.G. remain detained in out-of-home care with Jason.
In its six-month review report, the Agency requested that the court place S.G. in a licensed foster home and remove her from Jason's home. Jason and his girlfriend recently had a child and Jason stated he did not have the time to participate in or provide the care that S.G. needed. Jason claimed S.G. had some behavioral problems but his descriptions of these problems were vague and inconsistent with the social worker's observations. The social worker reported S.G. exhibited the behavior of a normal three year old.
Nina continued to have difficulty complying with her case plan and maintaining regular visits with S.G. Samuel had not participated in any services or visited S.G. At the contested six-month review hearing, the court terminated Samuel's reunification services and although the court found Nina's progress with services to be minimal, it continued services for an additional six months. S.G. was removed from Jason's custody and placed in licensed foster care.
During the next six months, the social worker had little contact with Nina because her whereabouts were unknown. Nina had sporadic visits with S.G. Concerning her case plan, Nina did not submit to her psychological evaluation or participate in reunification services. The court, at the 12-month review hearing, found Nina's visits were sufficiently consistent but that she did not participate in her case plan. The court terminated reunification services and scheduled a section 366.26 selection and implementation hearing.
Social worker Tolson prepared an assessment report for the section 366.26 hearing recommending that parental rights be terminated. Tolson assessed S.G. as adoptable. She was physically healthy, developmentally on target and bright. S.G.'s developmental evaluation showed S.G. to be performing at her age level for the various developmental skills tested. She attended school, was doing well and required little intervention. S.G.'s current caregivers wanted to adopt her and had an approved home study. In the event the caretakers were unable to adopt S.G., there were eight other families interested in a child with S.G.'s characteristics.
Concerning S.G.'s relationship with Nina, Tolson believed the relationship that existed between the two of them was comparable to a sibling relationship instead of a parent-child relationship. Tolson observed very little parenting by Nina during visits and noticed S.G. exhibited anxious and defiant behaviors following contact with Nina. Tolson believed adoption outweighed any benefits of maintaining the parental relationship. Tolson further believed that the sibling relationship exception under section 366.26, subdivision (c)(1)(E) did not apply as it relates to Tatianna and S.G. Tatianna had moved to Maine with Jason and his family. Tatianna remained in telephonic contact with S.G., and S.G.'s caregivers stated they would allow S.G. to have future visits and contact with her half sister.
At the contested section 366.26 hearing, Nina and Samuel did not appear. Samuel's attorney indicated Samuel was in custody in Los Angeles County but believed he had been recently released. The social worker indicated Samuel was still in custody. Samuel's attorney did not request a continuance to produce father from custody.
The court proceeded with the hearing, received the Agency's reports in evidence, and heard testimony from S.G.'s therapist, Ms. Ring. Ms. Ring opined S.G. did not have a "very strong" or "very healthy" attachment to Nina. S.G. made statements that indicated she did not want to see Nina and had told Ms. Ring that Nina "wasn't a good mommy." Ms. Ring further testified S.G. would display negative reactions after her visits with Nina, including bouts of anxiety.
The therapist indicated S.G.'s last foster placement ended because the prospective adoptive parent became ill and could no longer care for S.G. S.G. was also about to be moved from her current placement because her foster parents had not grasped the amount of work needed to make a child's transition into a new home a successful one. Ms. Ring stated that despite these changes in placement, S.G. would be successfully adopted because she was a young child and able to form new attachments.
Social worker Ms. Shreckengost testified S.G. was adoptable and although her current placement had not gone well, it was because the foster parents were unprepared to handle emotional aspects of a placement. S.G. did display all the typical responses of a dependent child, including clinginess and defiance. However, the social worker did not view these responses as an impediment to adoption. The social worker suggested that the next prospective adoptive family receive counseling to learn how to prepare S.G. for her transition into a new home.
The court found S.G. was likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court further found S.G. did not exhibit any extreme behaviors that would render her unadoptable. The court terminated parental rights and referred S.G. for adoptive placement.
DISCUSSION
I
Adequacy of the Assessment Report
Nina contends the court erred by relying on an inadequate assessment report to support terminating her parental rights. Specifically, she argues the adoption assessment submitted by the Agency did not contain sufficient information concerning the history of contacts between herself and S.G.
A
To the extent Nina challenges the sufficiency of the assessment report, she has waived this issue by failing to timely raise it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) Here, the Agency filed its assessment report on November 3, 2006, in anticipation of the selection and implementation hearing originally scheduled for November 14 but continued to March 16, and preceded by a status conference on January 3. Thus, Nina was aware the Agency was recommending terminating her parental rights based on its assessment of S.G.'s adoptability and best interests. At the selection and implementation hearing, Nina's counsel did not object to the court receiving the report into evidence or give any indication that it should be considered deficient in any way. (In re Crystal J., supra, 12 Cal.App.4th at p. 411.) Nina has waived this argument on appeal.
B
Even had Nina not waived this issue, an assessment report need only substantially comply with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Section 366.21, subdivision (i) requires the Agency to prepare an adoption assessment report that includes an evaluation of the minor's medical, developmental and emotional status. (§§ 366.21, subd. (i)(3), 366.22, subd. (b)(3).) The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F., supra, 27 Cal.App.4th at p. 1378; In re Diana G., supra, 10 Cal.App.4th at p. 1481.) Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., supra, 27 Cal.App.4th at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.) Thus, if an assessment report does not fully comply with all statutory requirements, it may still provide sufficient information to assist the juvenile court in finding adoption is in the minor's best interests.
Here, the assessment report substantially complied with statutory requirements listed above. The report contained a detailed description of S.G.'s developmental status as observed by social worker Tolson. In addition, Tolson summarized a total of five visits between S.G. and Nina. Tolson submitted an addendum report that provided extensive details about the nature of these visits and the negative impact the visits had on S.G. Based on these visits, Tolson believed S.G. and Nina shared more of a sibling relationship than a parent-child relationship. After considering all the evidence, Tolson assessed S.G. as adoptable because she was young, in excellent health and developing appropriately. At this point in the proceeding, S.G. needed a permanent home. Further, there was no indication S.G. had any severe problems that would render her unadoptable. The assessment report substantially complied with statutory requirements.
II
Adoptability
Nina challenges the sufficiency of the evidence to support the court's finding S.G. was adoptable. She claims the evidence showed S.G. had significant attachment issues and emotional problems that render her unadoptable and there is no evidence suggesting S.G. would be adopted within a reasonable time.
A
When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) We review the court's finding of adoptability for substantial evidence. (In re Josue G., supra, 106 Cal.App.4th at p. 732; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)
B
Nina asserts the court did not have sufficient evidence to support its finding that S.G. was adoptable. Nina claims S.G. suffered from "significant attachment disorder" and had been rejected by multiple caretakers. The record shows, however, that there was no evidence showing S.G.'s problems, if any, were so great as to preclude a finding of adoptability. The social worker's reports indicate S.G. was a healthy, attractive four-year-old child. She was developing according to her age and considered a bright child. The instances during which S.G. did show signs of anxiety often correlated with visits and telephone calls she had with Nina and Samuel. Further, S.G. had not been rejected by multiple caretakers. Her first placement with Jason, who was not her father, ended because Jason and his girlfriend had a newborn child and he did not feel he could adequately provide for S.G.'s needs. The same problem arose in S.G.'s most recent placement. The social worker reported the caregivers did not invest enough effort to make the placement work. Another placement failed because the caregiver became too ill to care for S.G. Thus, the changes in placement took place not because of S.G.'s behavior but because of other circumstances. Instead, the social workers and S.G.'s therapist all agreed that S.G. was highly adoptable and was a resilient child who would be able to form a new attachment with future prospective adoptive parents. Given this evidence, the court had sufficient evidence to support its finding of adoptability.
III
Beneficial Parent-Child Relationship Exception
Nina contends the evidence is insufficient to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating her parental rights. We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
A
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 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 of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1) (A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." 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 sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
During the dependency proceedings, Samuel had little or no contact with S.G. and had not participated in services. Nina had made some contact and had some visitation with S.G. However, her contact with S.G. was sporadic at best. Even if Nina's visitation is considered to be regular, Nina did not meet her burden of showing her relationship with S.G. was sufficiently beneficial to outweigh the benefits of adoption. Although Nina and S.G. had appropriate and pleasant visits, Nina did not have a parental role in S.G.'s life. S.G.'s therapist instead opined that S.G. did not have a "healthy" or "strong" attachment to Nina. S.G. would exhibit anxiety and nightmares that, according to the therapist, showed a "negative connotation" to Nina. On other occasions, S.G. told her social worker she did not want to visit Nina. There was no evidence of a "significant, positive, emotional attachment" from S.G. to Nina such that terminating the parent-child relationship would result in great detriment to S.G. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence shows S.G.'s need for permanence and stability through adoption outweighed any interest in preserving parental ties.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) S.G., whose needs Nina could not meet, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
IV
Beneficial Sibling Relationship Exception
Nina contends the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E) applied to compel a permanent plan other than adoption. She asserts S.G.'s sibling, Tatianna, had a close and significant relationship with S.G. and that ongoing contact with Tatianna was in S.G.'s best interests.
A
Section 366.26, subdivision (c)(1)(E) provides an exception to terminating parental rights when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to the child due to substantial interference with a child's sibling relationship. Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home and whether the child has strong bonds with a sibling. The court must also consider whether ongoing contact is in the child's best interests, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(E); see also In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children" whose lives are in turmoil. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The exception focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.) Similar to the beneficial parent-child relationship exception, application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) However, the parents have the burden to show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (Id. at p. 952.) Once the parent establishes that a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court then decides whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952-953.)
We consider first whether S.G. has a relationship with her half sister, Tatianna, sufficient to trigger the application of the section 366.26, subdivision (c)(1)(E) exception. Here, there was evidence showing that the sisters had at one time lived together in the same home. The girls lived together at Jason's home during S.G.'s first dependency placement but they no longer lived together and there was no evidence showing they would suffer detriment if separated. In fact, they had already been living apart for several months. Beyond the fact the siblings had lived together, Nina and Samuel did not present any evidence at trial that the siblings "shared significant common experiences or [have] existing close and strong bonds." (§ 366.26, subd. (c)(1)(E).) In any event, Tatianna lives with Jason in Maine and the two siblings remain in contact with one another. Jason is willing to allow the two half sisters to have contact in the future. The evidence was insufficient to establish the "existence of a significant sibling relationship." (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Substantial evidence supports the finding that the sibling relationship exception does not apply to preclude terminating Nina and Samuel's parental rights.
V
Transfer Orders
Samuel asserts the court erroneously terminated his parental rights because he had a statutory right under Penal Code section 2625 to be produced from custody and appear at the section 366.26 hearing.
A
Penal Code section 2625 governs actions affecting a prisoner's parental rights. Prisoners have a constitutional right of access to the courts and " 'absent a countervailing . . . interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' " (In re Jesusa V. (2004) 32 Cal.4th 588, 601 (Jesusa V.) quoting Boddie v. Connecticut (1971) 401 U.S. 371, 377.) Prisoners do not have a constitutional right to be personally present at every type of hearing. Due process guarantees notice and an opportunity for a hearing "appropriate to the nature of the case." (Boddie v. Connecticut, supra, at p. 378 (italics added).)
Penal Code section 2625 establishes a procedure through which state prisoners incarcerated in California are able to attend dependency hearings held in California. (In re Maria S. (1997) 60 Cal.App.4th 1309, 1312.) Penal Code section 2625 identifies the proceedings at which an incarcerated parent has a right to be present. It provides that "[n]o proceeding may be held" to terminate the parental rights of any prisoner or to adjudge the child of a prisoner a dependent of the juvenile court under Welfare and Institutions Code section 300, "without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by [a representative of the correctional institution] stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding." (§ 2625, subd. (d).)
Consequently, it was error for the juvenile court to proceed with the section 366.26 hearing without Samuel's presence or his waiver of that right. (Jesusa V., supra, 32Cal.4that p. 624.) However, violation of this statutory mandate is subject to a harmless-error analysis. (Jesusa V. at pp. 624-625.) Accordingly, the involuntary absence of an incarcerated parent from a dependency proceeding is reversible only if it is reasonably probable the result would have been more favorable to the parent absent the error. (Id. at p. 625)
B
Samuel does not offer any additional evidence that would have been presented had he been present at the hearing. He also makes no references to how the proceedings would have been different or what information he could have provided at the hearing. Instead, the record shows Samuel did not complete reunification services, did not attend the majority of the dependency hearings and did not consistently visit S.G. Samuel had not, therefore, occupied a parental role in S.G.'s life in about two years. On the occasion S.G. had contact with Samuel, she exhibited signs of anxiety. Samuel has not established that his presence at the hearing at which his parental rights were terminated would have resulted in a more favorable outcome. Any violation of the requirements of Penal Code section 2625 was therefore harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.