Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIJ109010 Robert Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Dolores H.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Daniel B.
Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Dolores H. (mother) and Daniel B. (father) appeal from the termination of their parental rights under Welfare and Institutions Code section 366.26 as to their seven children. Mother and father contend the evidence of the children’s adoptability was insufficient, and the juvenile court should have applied the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). Counsel for minors joins the position of the Riverside County Department of Public Social Services (Department) requesting this court to affirm the judgment. We find no error, and we affirm.
All further statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, former subdivision (c)(1)(A) of section 366.26 has been renumbered as subdivision (c)(1)(B)(i). For consistency with the juvenile court record, we will use the former subdivision number in this opinion.
II. FACTS AND PROCEDURAL BACKGROUND
Mother and father are the parents of seven children: Daniel (born in 1997) Paul (born in 1998), Lisa (born in 2001), Matthew (born in 2002), James (born in 2004), Mary (born in 2006), and Christopher (born in 2007). The family came to the attention of the Department in October 2001, when a report was received that mother had struck the children, did not feed them, and did not potty train the older children. The report was closed as unfounded. The family again came to the attention of the Department in August 2002, when a report was received stating that mother constantly yelled at the children and did not keep them clean, there were numerous cats in the home, and the home smelled of urine and feces. The family received family maintenance services from September 2002 through January 2003, and the case was closed.
In November 2004, when James was four months old, he weighed less than eight pounds; his birth weight had been seven pounds. He was diagnosed as suffering from failure to thrive, and he was admitted to the hospital. He was released to the parents, but he was rehospitalized for failure to thrive a few days later.
The Riverside County Department of Public Social Services (Department) filed a petition in November 2004 alleging the children came within section 300, subdivision (b) (failure to protect). The petition alleged that (1) the family home was cluttered and roach infested, had exposed wires and holes in the wall, and a strong odor of cat urine, feces, and mildew; (2) the Department had offered family maintenance services from September 2002 to January 2003, but the parents did not benefit from them; and (3) the parents had neglected James’s medical needs, Lisa and Matthew had chronic severe diaper rash, and Paul and Matthew had impetigo.
At the detention hearing, the juvenile court found that the Department had established a prima facie case and ordered the children detained in foster care. The court ordered reunification services and supervised visitation for parents, as well as sibling visitation.
The Department filed a jurisdiction/disposition report in December 2004. The report stated that all the children except James were medically and developmentally normal, and James was catching up developmentally “but ha[d] a long way to go.” Daniel and Paul had been referred to counseling to address behavioral problems. The parents visited the children consistently, and the visits were appropriate and affectionate. The children were “very bonded to their parents,” and were “sad when the visits end[ed].”
The Department filed an addendum report in January 2005 recommending that all the children except James be returned to the parents’ home on a family maintenance plan. The report stated that the condition of the home showed “definite improvement.”
At the jurisdiction/disposition hearing, the juvenile court sustained the allegations of the petition. The court declared the children dependents and found that parents had complied with their case plans. The court placed all the children except James with the parents on a family maintenance plan. The court found that it would create a substantial risk to James’s emotional and physical well-being for him to remain in the parents’ home. The court ordered reunification services for James.
In June 2005, the Department filed a section 387 petition as to Daniel, Paul, Lisa, and Matthew, alleging that the disposition plan had not been effective. The petition alleged that more than 20 cats were living in the home; the home smelled like cat urine and feces, and mother and the children had feces on their feet. The court again detained the children and ordered reunification services and “frequent and liberal” visitation.
In June 2005, the Department filed a jurisdiction/disposition report relating to the section 387 petition. Daniel, Paul, Lisa, and Matthew had been placed together in foster care. In June and August 2005, the Department reported that the children were in good health, were developing appropriately for their ages, and were adjusting to their current placement.
The juvenile court held a jurisdictional hearing on the section 387 petition and a six-month review hearing in October 2005. The court found the allegations of the section 387 petition true and found that return of the children to their parents’ care would be detrimental. The court ordered reunification services. The court also found that parents’ progress on their case plan had been unsatisfactory.
Mary was born in January 2006, and the Department filed a petition as to her under section 300, subdivisions (b) and (j) (abuse of sibling) alleging that her siblings were dependents, and the parents had failed to complete their case plan and continued to reside in an unsafe home. The juvenile court detained Mary and ordered reunification services and supervised visitation for parents.
The Department filed a report in January 2006 recommending that the juvenile court terminate reunification services. The children were reported to be in good health and developing normally, although Lisa and Matthew had had speech and language assessments because of concerns they were delayed in that area. In addition, Daniel and Paul were performing below grade level and were receiving after-school tutoring. The children were adjusting to their current placements. The parents were living with the paternal grandmother and were looking for an apartment. Mother had completed a parenting class, but the parents had not followed up on referrals the social worker had given them for landlords and therapists. The social worker described the visitations between the parents and children as nonchalant and not filled with care or love. The social worker observed poor parent-child attachment, especially with James.
In February 2006, the juvenile court conducted a jurisdiction/disposition hearing as to Mary. The juvenile court sustained the allegations of the petition, declared Mary a dependent, and removed her from the parents’ care. The juvenile court ordered reunification services.
The Department filed a report in February 2006 recommending termination of reunification services, although services were later recommended as to Mary. The paternal grandmother and great-grandmother wanted custody of the children, and the Department recommended placing the children with the paternal grandmother. The children were placed with the paternal grandmother and great-grandmother in March 2006.
In April 2006, the court conducted a 12-month review hearing as to Daniel, Paul, Lisa, Matthew, and James. The court found that return of those children to the parents would create a substantial risk of detriment. The court terminated reunification services and set a section 366.26 hearing.
In July 2006, the Department filed a report recommending termination of reunification services as to Mary.
In July 2006, the Department filed a section 366.26 report as to the five oldest children. The report stated that Daniel and Paul were developmentally on target. Daniel and Paul had visited a counselor to address “emotional issues of foster care placement and separation from [their] natural parents.” Lisa and Matthew were receiving special services for speech and language. James had been referred for assessment for delay in speech and possibly in other developmental areas. The report noted that parents’ interaction with the children was “very poor and lacking in emotion and attachment,” and visitation had been “quite sporadic and infrequent.” The Department noted that the paternal grandmother wished to adopt the children and it recommended that she be evaluated for psychological and neurological issues.
The court ordered a psychological evaluation of the paternal grandmother. The evaluation found her to be functioning in the mild range of mental retardation and recommended denial of her proposal to adopt the children. In November 2006, social workers responded to a report of possible child abuse or neglect of Matthew at the grandmothers’ home. It was determined that Matthew had not been abused, but had been jumping on the bed and had fallen. However, in a safety inspection, the social workers found an exposed electrical socket with exposed wiring, a 100-gallon fish tank that was full of mold, and cockroach infestation. The children were removed from the home and placed in foster care homes.
In November 2006, Daniel, Paul, and Lisa were placed with prospective adoptive parents who had indicated a willingness to adopt all six children as a sibling set. Matthew, James, and Mary were placed in the same home in December 2006. However, in January 2007, Matthew was hospitalized for injuries suspicious for abuse or neglect. He had sustained a duodenal tear that required surgery, and he was in critical condition. He remained hospitalized for a month. James was found to have three healing rib fractures. The Department conducted an investigation concerning the children’s injuries; however, the record on appeal does not include the findings from that investigation.
Christopher was born in January 2007, and the Department filed a petition as to him under section 300, subdivisions (b) and (j). The juvenile court found a prima facie showing that Christopher came within those subdivisions and removed him from parental custody. The court ordered reunification services and visitation for parents. At the jurisdiction hearing as to Christopher, the juvenile court found the allegations of the petition to be true. At the disposition hearing as to Christopher, the juvenile court ordered that no reunification services would be provided, and the juvenile court set the matter for a section 366.26 hearing.
The Department filed a section 366.26 report as to Mary in February 2007. The report stated that Mary, then 13 months old, was developmentally and physically delayed, in that she was underweight and was unable to stand or communicate except by cooing and babbling.
In May 2007, the Department filed an ex parte application to authorize obtaining passports for the children and placing the children in the Netherlands. The Department reported that a prospective adoptive family in the Netherlands was willing to adopt all seven children. In a preliminary adoption assessment filed in July 2007, the Department found the family was well qualified to meet the children’s needs. The prospective adoptive father was a child psychologist who taught at the university level. The prospective adoptive mother was formerly a neonatal intensive care nurse, but she planned to stop working outside the home and to be a full time parent. They had successfully fostered other children, and they had adult children of their own who strongly supported the adoption. Extensive medical and mental health care services are automatically extended to all children in the Netherlands. An agency in the Netherlands had conducted an international home study and had approved the prospective adoptive home.
The children participated in extended overnight visitation with the prospective adoptive parents from May 17 through May 30. The children responded well to being placed together, and the children demonstrated a developing affectionate attachment to the prospective adoptive parents. The juvenile court authorized the Department to apply for passports for the children and to examine the effect of the adoption on the children’s citizenship. The Department reported that under the Intercountry Adoption Act of 2000, the adoption would be finalized in California, and the children would retain their United States citizenship.
In June 2007, the children were placed with the prospective adoptive parents in the Netherlands for an extended visit. The court continued the section 366.26 hearing to allow for an additional 30 days of extended visit.
The Department filed several addendum reports in August 2007 stating the children were thriving in their placement in the Netherlands. They developed a strong bond with the adoptive parents and adapted well to their new life. A social worker in the Netherlands provided weekly supervision and sent e-mail reports to the Department. The prospective adoptive parents also sent frequent e-mail communications to the Department. The prospective adoptive parents permitted the children to have e-mail contact with the birth family and stated they would allow the children to return to the United States when they were older to visit the birth family if the children wished to do so. The children were enrolled in school in the Netherlands and were developing Dutch language skills.
On August 29, 2007, the court held the section 366.26 hearing. The court found the children were adoptable, found no exception to adoptability had been established, and terminated parental rights.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Adoptability Finding
Both parents contend the juvenile court’s finding that the children were adoptable was not supported by substantial evidence.
1. Standard of Review
Before the juvenile court orders the termination of parental rights, the court must find by clear and convincing evidence that the children are adoptable. (§ 366.26, subd. (c)(1); In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804-805.) “‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt.” (In re Brian P. (2002) 99 Cal.App.4th 616, 623-624.) On appeal, we review the record in the light most favorable to the decision of the juvenile court to determine whether a reasonable trier of fact could have found by clear and convincing evidence that the minors were likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Moreover, “even if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence and may ultimately prove insignificant. [Citation.] Substantial compliance with the assessment provisions has been deemed enough. [Citation.]” (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
2. Forfeiture
The Department argues that parents’ challenge is to the sufficiency of the adoption assessment report, and such a challenge was forfeited because parents did not raise those challenges in the juvenile court. (See In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) We agree with the Department’s position with respect to the adequacy of the adoption assessment report. However, a challenge to the sufficiency of the evidence is preserved even if not raised below. (In re Brian P., supra, 99 Cal.App.4th at pp. 622-623.) Thus, to the extent parents challenge the sufficiency of the evidence to support the juvenile court’s finding of adoptability, we will address the issue on the merits.
3. Analysis
Parents contend the finding of adoptability overlooked significant factors, including that the children had been in Holland less than three months, the children had never before all lived together, some of the children had suffered serious physical injuries in previous foster placements, the social worker had no experience with transnational adoptions, and the children had multiple medical and developmental problems. They also contend the finding of adoptability was based on the existence of “a single identified prospective adoptive placement located in the Netherlands, the only potential adoptive placement for the minors in the world.”
Parents have joined each other’s contentions on appeal, and we will therefore treat all contentions as having been raised by both parents.
The issue of adoptability focuses on whether a minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) The fact that a prospective adoptive parent has expressed interest in adopting a minor is evidence of the child’s adoptability. (Ibid.)
Here, an appropriate and highly qualified family has stepped forward and expressed an interest in adopting all seven siblings. The prospective adoptive father is a psychologist, and the prospective adoptive mother was a neonatal intensive care nurse who plans to be a fulltime caregiver for the children after their placement. They are financially stable and own their own home large enough for each child to have his or her own room. Both have extensive experience with foster and special needs children. They have expressed their commitment to providing the children with a permanent, stable, and loving home.
Moreover, nothing in the children’s health, development, or educational progress would preclude their adoptability. The Department’s report filed in May 2007 stated that Daniel, Paul, Lisa, and James were healthy, on track physically, and had met the developmental milestones appropriate for their ages. Matthew had met many of the developmental milestones for his age, but he was delayed in toilet training. Mary was delayed in her physical development, in that she could not stand or walk and had not begun to talk at almost 17 months old.
The social worker described Daniel as “a cheerful, talkative, loving child” although he was also described as emotionally immature and delayed academically. He was in special education and he read at only a grade 1.5 level.
The social worker stated that Paul had “a well-developed social poise” and exhibited “strong leadership skills.” Despite a report in February 2006 that Paul was performing below grade level in several areas, in May 2007, his reading level was on track for his age. The social worker described him as “a well-adjusted, insightful, thoughtful, emotionally expressive and loving child.”
The social worker described Lisa as a “well-adjusted, thoughtful, loving, and extremely friendly and cheerful child,” although she had “significant speech delay.” She was apparently behind her class level academically, but she was “a willing and cooperative student who seems to be progressing well towards catching up with her classmates.”
The social worker described Matthew as “a shy, introverted, watchful child, who warms well and becomes affectionate with familiar adults and children.” He was being evaluated for “possible intellectual delays, and his significant speech/language delays.” He “demonstrate[d] no mental or emotional problems.”
The social worker described James as “an intense, cheerful, feisty, secure toddler.” He had been throwing temper tantrums when he did not get his way, but their frequency had decreased as his ability to verbalize his needs increased.
The social worker described Mary as “a cheerful, quiet baby” who “demonstrate[d] no mental or emotional problems” and was “very affectionate.”
The social worker described Christopher as a happy baby who was “doing great.” Despite earlier concerns that he “wasn’t tracking well,” his doctor had said he was “fine.”
Courts have regularly affirmed findings of adoptability for children who have exhibited far more serious conditions. For example, in In re Helen W. (2007) 150 Cal.App.4th 71, 79, the court held substantial evidence supported the finding of adoptability as to two siblings. One of the children suffered, among other things, from infantile reflux, which had led to repeated vomiting and problems swallowing, was developmentally delayed and had been diagnosed with neurofibromatosis, had significant delays in gross motor skills, and had been referred to an orthopedist for a foot abduction. (Id. at pp. 74-75.) The other child was diagnosed as mildly autistic and possibly having a bipolar disorder, was significantly below average in “intellectual, speech and language, and adaptive functions,” exhibited violent behaviors at school, and had problems with toilet training. (Id. at p. 75.) (See also In re Elizabeth W. (2004) 120 Cal.App.4th 900, 903-904, 908 [summarily rejected a challenge to the juvenile court’s finding of adoptability as to an eight-year-old girl who had exhibited severe emotional difficulties, including violent tantrums, and compulsive self-mutilation during the dependency, but whose condition had improved and stabilized].) Here, likewise, we conclude the Department’s reports on the children’s progress amply support the finding that the children were adoptable.
Without citing authority, parents assert that the ages of the three oldest children (10, 9 and 6 when mother’s brief was filed) “mitigate [sic] against adoption.” We disagree. (See, e.g., In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1561-1563 [holding that substantial evidence supported the finding that a nine-year-old boy was adoptable].)
Parents also argue that placement in the Netherlands was premised on the Department’s assertion that the children would not lose their United States citizenship if they were adopted in the Netherlands. Parents assert that the documents the Department provided to support that assertion do not in fact do so.
We are aware of no statute or case law which requires that children retain United States citizenship as a condition of adoption in another country, and parents have failed to identify any such legal prerequisite to a finding of adoptability. We therefore conclude that even if the children would lose their United States citizenship by virtue of adoption in the Netherlands, such fact would not preclude a finding of adoptability.
B. Beneficial Relationship Exception to Termination of Parental Rights
Both parents contend the juvenile court erred in failing to apply the beneficial relationship exception to termination of parental rights under section 366.26, former subdivision (c)(1)(A). That subdivision provides that parental rights should not be terminated when (1) the parent has maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. (§ 366.26, former subd. (c)(1)(A).)
Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) The burden of proof is on the parent to establish the exception to termination of parental rights under section 366.26, former subdivision (c)(1)(A). (In re Mary G. (2007) 151 Cal.App.4th 184, 207.)
The Department concedes that parents maintained regular contact with the children. Thus, we assume for purposes of argument that the first prong of the exception was established.
To establish the second prong — that of benefit to the child from continuing the relationship — “[a] parent must show more than frequent and loving contact or pleasant visits.” (In re Mary G., supra, 151 Cal.App.4th at p. 207.) “The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (Ibid. )
Mother asserts that the record as a whole establishes significant positive emotional bonds between her and the children, and father similarly argues there was a bond between him and the children. However, the record does not show that the parents took a parental role with the children or that the children had a significant, positive emotional attachment to parents such that the children would suffer detriment from the termination of the parental relationship. The oldest five children had not lived with the parents since 2005, and the two youngest had never lived with the parents at all.
Early on, in December 2004, the social worker reported the children were “very bonded to their parents,” and were “sad when the visits ended.” However, by July 2006, the social worker reported that the children’s visits with the parents lacked “emotion, [and] healthy interaction, and [the children exhibited] no signs of attachment or bonding.” Later, the social worker reported that the parents often spent much of their one-hour monthly visits with the children “questioning the social workers about placement concerns in front of the children.” Father often arrived late for the visits and “then sat in the room in an angry stance or [went] to sleep during the visit.” At a visit on February 26, 2007, father “sat apart from the children, . . . shaking his head and looking away as the children played,” and “[t]he mother was available to the children when they approached her, but made no proactive moves towards the children.” The social worker observed, “There was little apparent attachment to the parents, as evidenced by the children turning to the social worker or to the grandmother for questions, attention, or interaction throughout the visit.” At a visit on May 21, 2007, “[t]he children did very little interacting with the . . . parents during the visit, spending most of the time playing with one another as siblings.” At a visit on May 29, 2007, father noticed a mark on Daniel’s finger and stated, “‘they have hurt you in the foster home.’” When Daniel explained he had stained his finger when coloring with a marker, the father insisted that Daniel had been hurt in the foster home. Daniel became unsettled, fidgety, tearful, and pensive. “The mother cried the entire time, and never spoke to the children.” The social worker summarized the children’s behavior during visits with the parents as “chaotic, unsettled, sad, and emotionally distressed.” Paul and Lisa became “protective and concerned when the father appeared to be angry,” and “[t]he children have evidenced weak attachment to the adults during the visits.”
Moreover, the social worker’s reports also indicate that during visits on March 27 and April 3, 2007, although mother fed, changed, and burped Christopher, she did not appear to know what to do when he urinated while his diaper was off and did not appear to be aware of the need to support his head when holding him. The social worker described the quality of the visits between mother and Christopher as “poor,” and stated that mother did not talk to him or play with him. However, the social worker described mother’s May 1, 2007, visit with Christopher as “appropriate” and noted that mother had held, fed, and changed him and “would speak softly” to him.
After the children were placed with their prospective adoptive family, the children reported “being afraid of their father . . . [and] seeing their mother allowing their father to act in a manner that scared them while under the influence.” The children did not ask to speak to or see parents and refused to send them e-mails.
In contrast to the evidence set forth above that supports the trial court’s finding, the evidence the parents cite as supporting their argument is scant and conclusionary. At the section 366.26 hearing, a social worker testified without elaboration that mother had interacted with the children during the visits, but she also testified the children were distraught after the visits. The parental grandmother testified the children were happy to see their parents at the visitations, and “[t]hey smiled.” The paternal grandmother was asked whether father attended to the children’s needs, and she responded that father had lent her money for diapers and medication for the children, but she had paid him back. Father testified his bond with the children was positive.
In light of the record as a whole, we conclude abundant evidence supports the juvenile court’s determination that parents failed to establish the beneficial relationship exception to termination of parental rights.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: RAMIREZ, P.J., GAUT, J.