Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County No. 115844, Robert J. Anspach, Judge.
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Judy M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
A.M. (Mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, A. She challenges the court’s finding that it was likely A. would be adopted and its rejection of her claim that termination of her rights would be detrimental to A. due to their parent/child relationship. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
For the majority of A.’s life, his maternal grandmother was his and his older brother’s primary care provider. Mother and the child’s father worked at county fairs and carnivals across the county. Mother had a history of substance abuse predating A.’s birth as well. She also had a criminal history and was a registered narcotics offender. In December 2006, when A. was seven years old, the maternal grandmother died.
As time passed, mother’s life “spiraled out of control.” She and A.’s father separated in early 2007 and he continued to travel with the carnival. Mother could not provide a stable and safe environment for the boys. She was using marijuana and methamphetamine, involved in a physically and verbally abusive relationship with her boyfriend, and could not maintain a clean and safe residence for the boys. Mother also failed to protect the boys from her boyfriend who struck them.
Eventually, in October 2007 respondent Kern County Department of Human Services (department) detained A. and his brother and initiated the underlying juvenile dependency proceedings (§ 300, subd. (b)). Not long after the onset of the dependency, mother was arrested and incarcerated on drug charges.
A.’s brother is now an adult.
In February 2008, the Kern County Superior Court adjudged A. and his older brother dependent children of the court and removed them from parental custody. It also ordered mother to participate in a variety of reunification services that it offered since the boys’ detention. Despite approximately 12 months of reunification services, mother made minimal effort and progress towards alleviating the causes for the boys’ out-of-home placement. Consequently, the court terminated services in November 2008 and set a hearing pursuant to section 366.26 to select and implement permanent plans for each boy.
Meanwhile, in the summer of 2008, a psychiatrist diagnosed A. with Attention Deficit Hyperactivity Disorder (ADHD). For several years, A. had exhibited symptoms of lack of attention, hyperactivity, and impulsiveness. Counseling had been tried as an alternative treatment. The doctor recommended, and the court later granted, a six-month course of treatment on Adderall to address A.’s symptoms.
In December 2008, the department placed A. and his brother with their maternal grandfather and his wife (the grandparents) in Florida. They loved A. and were willing and able to adopt. They wanted to make sure he had a stable and happy childhood.
Although the court set the section 366.26 hearing for a March 2009 date, it did not conduct the trial until May 2009. In the interim, the department’s adoption social worker submitted multiple reports in which she recommended the court find A. adoptable and terminate parental rights. A. expressed a desire to live with mother if the court would permit, but if that were not possible he would like to stay with the grandparents and was agreeable to adoption.
At the May 2009 trial, mother testified she had been drug-free since October 2008 and was participating in a parent support group. Since A. moved to Florida, she maintained regular telephone contact with him calling once to twice a week. She also claimed that prior to A.’s dependency, he lived with her and his father as a family. In mother’s conversations with A., he consistently expressed a desire to live with her.
Mother believed it would be better for A. to be in her care than with his grandfather. She had a very strong “mother and son” bond with A. He had always been with her and she spent quality time with him.
A. testified by telephone from Florida. He confirmed telling a social worker that he would like to live with mother. “[S]he’s the only one that I care about the most[.]” He loved and missed her as well as got excited when he had the chance to speak with her on the phone. If he could not live with her, he would want to be adopted. If he could never see or speak to mother again, it would make him sad and he would not want to be adopted. He never had any problems with his grandfather in terms of being able to talk with mother.
A. could not remember the last time he lived with mother. He did remember his mother traveling while he lived with his grandmother. When he was “little,” his grandmother, grandfather and brother took care of him.
In closing arguments, mother urged “the benefit exception clearly ha[d] been established” so that the court should not terminate parental rights. The court found mother had not satisfied it that the benefit of a continued relationship would outweigh the benefits of adoption. Having found clear and convincing evidence that A. was likely to be adopted, the court terminated parental rights.
DISCUSSION
I. Adoptability
A. was described as a funny, intelligent and sensitive nine-year-old boy who loved to read. Due to his age, however, the department determined it would be difficult to find A. an adoptive home if it were not for the grandparents’ willingness to adopt him. Mother questions for the first time the grandfather’s suitability to adopt A. She consequently challenges the court’s finding that it was likely A. would be adopted. As discussed below, we conclude the court’s adoptability finding was proper.
A.
The suitability of a potential adoptive family to adopt is ordinarily irrelevant to a child’s likelihood of adoption. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, where the social worker opines that a dependent child is likely to be adopted based solely on the existence of an individual willing to adopt the child, a limited inquiry may be made into whether there is any legal impediment to that individual’s ability to adopt. (Ibid.) Examples of legal impedimentsare contained in Family Code sections 8601 [a prospective adoptive parent ordinarily must be at least 10 years older than the child], 8602 [the consent of a child over age 12 is necessary for adoption], and 8603 [a married person, not lawfully separated, may not adopt a child without the consent of the spouse, provided the spouse is capable of giving consent]. (In re Sarah M. (1994)22 Cal.App.4th 1642, 1650.) General suitability to adopt, however, “does not constitute a legal impediment to adoption.” (In re Scott M., supra, 13 Cal.App.4th at p. 844.)
In this case, mother made no effort to inquire whether there was any legal impediment to the grandfather’s ability to adopt A. This comes as no surprise given that none of the impediments listed above existed under the facts of this case.
Nevertheless, at the section 366.26 permanency planning stage, the law does require a “preliminary” assessment of a prospective adoptive parent’s eligibility and commitment to adopt as well as capability to meet the child’s needs (§ 366.21, subd. (i)(1)(D)). The appellate record here contains a favorable preliminary assessment of the grandparents’ eligibility and commitment to adopt as well as capability to meet A.’s needs.
Mother however argues the preliminary assessment contains “very significant signs of trouble.” In her view, it raises questions about whether A.’s grandfather engaged in child abuse and whether he was willing or able to provide for A.’s medical needs. We disagree with mother’s reading of the record on both points and conclude the court’s adoptability finding was supported by the record.
B.
Before a dependent child may be placed in a relative’s home, the department must request a search of the Child Abuse Central Index maintained by the Department of Justice. (§ 361.4, subd. (c); Health & Saf. Code, § 1522.1, subd. (a).) When, as in this case, the relative lives out of state, that state’s child abuse and neglect registry must also be checked. (Health & Saf. Code, § 1522.1, subd. (b).) In turn, the department shall investigate any reports received. (Health & Saf. Code, § 1522.1, subd. (a).) However, the department shall not deny a placement license or withhold approval for adoption unless child abuse or severe neglect is substantiated. (Ibid.)
In her briefing, mother mistakenly cites the statutory mandate to investigate whether a potential caregiver has a criminal history and that describes under what circumstances an exemption may be granted. (Health & Saf. Code, § 1522.) Neither of the grandparents, however, had any criminal history.
The department’s adoption social worker complied with these requirements in A.’s case. A search of the Child Abuse Central Index disclosed there were records for the grandfather, namely a June 26, 1985, record from Kern County Child Protective Services and a January 9, 1987, Bakersfield Police Department report. The adoption social worker requested the police report to clarify the allegation(s). However, as of March 2009 when she prepared her original assessment, the adoption social worker had not obtained the police report. Although she later filed supplemental social studies, they were silent regarding what, if anything, was found in the 1987 police report. In any event, the grandfather had no criminal history and, according to Kern County’s records, there was no record of child abuse concerning the grandfather. Given that the search of the Child Abuse Central Index revealed two reports out of Kern County but Kern County had no record of child abuse involving the grandfather, mother’s argument in this respect appears to be baseless.
In addition, the adoption social worker reported on three incidents. Mother speculates these incidents also raise serious questions about whether the grandfather was physically abusive.
On December 29, 2008, A. told his Florida case manager that his grandfather spanked him with a switch or stick after A. went into the woods and “got poison ivy.” According to the Florida case manager, “[t]his type of punishment was addressed with the grandfather and will not continue.” She saw it as a low risk situation.
On January 16, 2009, a physical abuse referral against the grandfather was generated in Florida. According to the Florida case manager, the referral, which was not described, was not substantiated.
Later still in January 2009, during a case manager visit to the grandparents’ home, A. and the grandfather reported that A. and his older brother fought often and the older brother hit A. The grandfather had instructed A. to always let him know when he was hit. The case manager checked A. for any visible bruises and found none. A. reported he was happy in his grandfather’s home. A. did state children on the bus sometimes hit him. The school and the bus driver had been advised of this. The case manager termed this visit and the child’s situation as an intermediate risk.
While mother interprets these instances as proof of child abuse attributable to the grandfather, the trial court properly could find otherwise. At most, the grandfather inappropriately spanked A. on one occasion. Having reviewed the record as summarized, we conclude it does not support mother’s child abuse accusation against the grandfather.
C.
Mother also complains the grandfather neglected A.’s need for ADHD medication and therefore would not provide for A.’s medical needs. She does so by highlighting one statement attributed to the grandfather, namely that A. did not have ADHD and was “just a mean little kid.” If that were the totality of the evidence on the subject, we too might share mother’s concern. However, it was not.
As of January 2009, A. was not taking any medication. He reportedly was doing well in the maternal grandparents’ home and was not having any problems with school. At that point, A. had been in the maternal grandparents’ home approximately one month. The adoption social worker recommended counseling for A. and to continue the medication prescribed for the child. However, the grandparents did not have insurance for A. at that point. At the time, A. was having trouble making friends in the neighborhood and dealing with bullies. His grandfather was helping him cope with the changes. The grandfather believed A.’s reactions were normal and would seek out counseling if A.’s behaviors increased and seemed harmful to the grandfather or others.
As of mid-February 2009, the grandfather still did not have health insurance for A. The Florida case manager explained to the grandfather how to access health insurance. He was reportedly resistant to her suggestions. It was a week later that the grandfather told the Florida case manager he was aware medication had been prescribed for A., but A. did not have ADHD. He was just a “mean little kid.” Nevertheless, the grandfather had applied for Medicaid for A. which would assist the grandfather in procuring the necessary medication to modify A.’s behavior in school. A. stated he was happy in his grandfather’s home. The risk to A. was determined to be low.
The record contains no description of what A.’s behavior was in the school at that time.
By April 2009, the State of Florida had denied the grandfather’s insurance application for A. and the grandfather was appealing that decision. He was also concerned about A.’s scholastic challenges and mental health. The grandfather reported A.’s grades had declined since he was placed in the grandparents’ home. The grandfather believed A.’s eye sight was the main cause for his declining grades. A. had reported having trouble seeing the front of the classroom. In mid-April, A. received eyeglasses and reported he could see the front of the classroom. The glasses also seemed to be aiding his classroom efforts.
By the mid-May section 366.26 hearing, the grandfather continued to attempt to obtain medical coverage for A. In addition, A.’s primary doctor, as well as the grandfather, perceived A. was in need of mental health counseling. They wanted the child reassessed, regarding his ADHD diagnosis, and treated if needed.
Taken as a whole, this evidence supports a determination that the grandfather was capable of meeting A.’s needs and in particular his medical needs. (§ 366.21, subd. (i)(1)(D).) Although mother considers the grandfather’s difficulty in procuring insurance as essentially an excuse, the trial court, as the trier of fact, properly could have determined otherwise. To the extent mother assumes A. should have been on ADHD medication and that the grandfather did not believe in the ADHD diagnosis, we note she ignores much of the evidence. The August 2008 order authorizing such treatment was only for six months, and the record contains no later request or order for further ADHD medication. Also, A.’s primary care physician wanted him reassessed. The doctor and the grandfather were in agreement as well that A. needed mental health counseling. The trial court could reasonably infer from this evidence, as well as the balance of the record, that the grandfather was sufficiently willing to provide for A.’s needs.
II. Beneficial Parent/Child Relationship Exception
Mother alternatively contends the court’s refusal to find that A. would benefit from a continued relationship with her was not supported by substantial evidence. As discussed below, her contention is both legally and factually meritless.
To begin, although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) The statutory presumption is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) Rather, it is the parent’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to support the court’s rejection of the detriment claim but whether the juvenile court abused its discretion in so doing. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
The beneficial parent/child exception in section 366.26, subdivision (c)(1)(B)(i) involves a two-part test, neither one of which mother met. Mother failed to both maintain regular visitation and contact with A. and show severing their relationship would deprive A. of a substantial, positive emotional attachment such that he would be greatly harmed (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342).
From the outset of the proceedings until it terminated reunification services and set the section 366.26 hearing in November 2008, the court ordered supervised visits twice a week for one hour. Mother however visited every other week for two hours. Sometimes she cancelled those visits and other times she did not show up for visits. Once the court set the section 366.26 hearing, it modified the visits to once a month for four hours. The following month, before A. was about to move to Florida to live with the grandparents, mother refused to attend a scheduled visit because she did not see the point in it. After A. moved, she called him every other week and spoke for 30 minutes. Out of approximately 132 opportunities for court-ordered visits with A., there were only 37 recorded visits between mother and him.
A. and mother nevertheless shared a friendly relationship. A. testified he did love mother, would like to live with her, and would be sad if he could not see her again. However, mother had to demonstrate more than this to compel a finding that termination would be detrimental to A. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 [A parent must demonstrate more than pleasant visits or loving contact.].)
For the beneficial relationship exception to apply,
“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: ‘balance... 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.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Here, mother introduced no evidence that terminating parental rights would deprive A. of a substantial, positive emotional attachment such that he would be greatly harmed. The court consequently did not abuse its discretion by rejecting her argument. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
III. A.’s Interests
Last, mother urges that A. had a constitutional right to be raised by her as his natural parent, a right which the court violated because, in her view, A. expressed a clear desire to maintain the parent/child relationship. Once again, we conclude her argument is meritless.
Assuming for the sake of argument that mother has standing to raise this issue, even she admits she cannot cite any authority to support her claim that A. had a constitutional right to be raised by her. She also overlooks the evidence that A. was not opposed to adoption. In fact, he wanted to be adopted if he could not live with her.
A parent and child do share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697.) By the point of a section 366.26 hearing to select and implement a child’s permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993)5 Cal.4th 242, 254.) Indeed, children have a fundamental independent interest in belonging to a family unit; and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H.(1993)5 Cal.4th 295, 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The court’s decision to terminate rights in A.’s case was consistent with, rather than violative of, his fundamental rights.
DISPOSITION
The order terminating parental rights is affirmed.