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In re Daniel C.

Court of Appeal of California
Apr 23, 2009
No. D054001 (Cal. Ct. App. Apr. 23, 2009)

Opinion

D054001.

4-23-2009

In re DANIEL C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.C. et al., Defendants and Appellants.

Not to be Published in Official Reports


D.C. and Jessica C. appeal a judgment terminating their parental rights to their son, Daniel C. D.C. contends the adoption assessment report was inadequate, and, thus, substantial evidence did not support the finding Daniel is adoptable. Jessica asserts she regularly visited and contacted Daniel, and they have a beneficial parent-child relationship that outweighs the benefits of adoption. Both parents contend the judgment must be reversed because terminating their parental rights will interfere with Daniels sibling relationships. Jessica joins D.C.s arguments. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Daniel under Welfare and Institutions Code section 300, subdivision (b), alleging Jessica used marijuana during her pregnancy with him, and she had lost custody of her other children because of her substance abuse. The paternal grandmother (the grandmother) had adopted Jessica and D.C.s other two children. The court ordered Daniel detained.

D.C. said he and Jessica were no longer in a relationship. Both parents wanted Daniel placed with the grandmother.

The court found the allegations of the petition true. It ordered Daniel removed from parental care and placed with the grandmother, the parents to comply with their case plans and Jessica to enroll in the Substance Abuse Recovery Management System (SARMS) program. Jessica was in custody for petty theft and false impersonation. The court authorized her to live with the grandmother when she was released.

Subsequently, the social worker reported Jessica was living with relatives, attending parenting classes, and marginally complying with SARMS requirements. She later was found to be in poor compliance with SARMS and a bench warrant was issued for her arrest. D.C. was in prison. Each parent had visits with Daniel, but D.C. was not able to visit after he went to prison.

At the six-month hearing on April 18, 2008, neither parent was present and Jessicas whereabouts were unknown. The court found the parents had not made progress with their case plans, and there was no substantial probability Daniel could be returned to parental custody by the next review hearing. It terminated services and referred the case for a section 366.26 hearing.

The social worker recommended Daniel be adopted. He was healthy and easy going and was meeting developmental milestones. The social worker reported Jessica visited Daniel while she was in custody and, after her release, she had visits at the grandmothers home. The social worker said if Daniels grandparents did not adopt him, there were 11 other families in San Diego interested in adopting a child with his characteristics.

In August 2008 Jessica took Daniel to Las Vegas without the Agencys knowledge or consent. The Agency petitioned under section 387, alleging the grandmother was no longer able to provide adequate care. Daniel was soon returned to San Diego and the court ordered him detained. He was placed in the home of another paternal relative in October 2008. Jessica had some visits with him but did not always appear for scheduled visits. D.C. began visits with Daniel after his release from custody.

At the section 366.26 hearing on October 28 and 30, 2008, it was noted that Daniel had broken his leg while in his new placement and there was a pending investigation. The social worker testified she believed Daniel was comfortable with Jessica, but he had never lived with her, and Jessica did not visit him on a consistent basis. The social worker did not see evidence of Jessica being in the grandmothers home during some of the times Jessica said she was living there and providing care for Daniel. The social worker opined Daniel did not have a parent-child relationship with either parent. She said the relatives who were Daniels current caregivers had applied to adopt him, and, at the time of the hearing, there were 15 other families interested in adopting a child with his characteristics.

Jessica testified she believed Daniel was bonded to her and his siblings. She did not want him to be adopted. She agreed she should not have taken Daniel from the grandmothers home. She explained she had missed visits because of transportation problems and claimed to have provided most of Daniels care when she was living with the grandmother.

D.C. testified he visited Daniel as soon as he was released from prison, and Daniel was always happy to see him and cried when he left. He wanted Daniel to be placed with him.

After considering the evidence and argument, the court found Daniel was generally adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. It terminated parental rights and referred Daniel for adoption.

DISCUSSION

I. Substantial Evidence Supports the Finding Daniel Is Adoptable

D.C. contends the assessment report was inadequate, and, thus, the court erred by finding Daniel was generally adoptable. He argues by the time of the section 366.26 hearing in October, the August assessment report was stale and Daniels situation had changed. He points out by the time of the hearing, Daniel had broken his leg and an investigation was pending on his placement with his relatives. He further argues Daniels delayed speech and motor skills may affect his being adopted by someone who is not a relative.

The Agency argues D.C. forfeited this argument because he did not raise it in the juvenile court. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] . . . [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)

Although D.C. did not challenge the quality of the assessment report at the section 366.26 hearing, we exercise our discretion to address the issue he raises and in so doing hold he has not shown the evidence was insufficient to support a finding that Daniel was likely to be adopted within a reasonable time.

Before a court frees a child for adoption it must determine by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child—whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) "On appeal, we review the factual basis for the trial courts finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show that the evidence is insufficient to support the courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the finding Daniel is adoptable. The social worker described him as a very young, healthy, happy and easy baby. He was meeting developmental milestones and had no emotional problems or behavioral difficulties and only minor speech delays. At the time of the August 13, 2008 assessment report, the social worker said there were 11 families who were interested in adopting a child with Daniels characteristics. At the section 366.26 hearing three months later, the social worker testified 15 families in San Diego County were interested in adopting a child like Daniel.

The fact there were difficulties with Daniels placement with his paternal relatives was not significant to the courts finding of adoptability. The court stated it could not find Daniel was specifically adoptable by his current caregivers because at the time of the hearing there was an investigation regarding an injury Daniel had suffered in that placement. Instead, the court expressly found Daniel was generally adoptable, stating:

"[D]aniel is generally adoptable. He is young, which as we all know is a benefit to a child in the world of adoption. He is described as adorable. Hes engaging and an easy child, and his development is for all intents and purposes normal with some minor speech delay that does not appear to be a serious impediment to his development.

"The worker testified that there are 15 other families in San Diego who would be interested in adopting a child with his age, ethnicity, and other characteristics."

D.C. points out that in addition to Daniel breaking his leg in his placement with his relatives, later in November 2008 he suffered additional injuries and was subsequently removed from this home and placed in foster care. D.C. argues this evidence supports his argument that Daniel is not likely to be adopted within a reasonable time.

Although evidence that Daniel had broken his leg was before the court at the time of the hearing, the injuries he suffered in November occurred after the October 30 judgment from which D.C. has appealed. This evidence was made a part of the appellate record by mistake. (See In re Zeth S. (2003) 31 Cal.4th 396, 411-413.) Nevertheless, even considering this additional evidence of the injuries Daniel suffered in the placement with his relatives, we hold substantial evidence supports the courts finding that Daniel is generally adoptable. The court did not base its finding of adoptability on Daniels placement in his relatives home, and the courts finding of general adoptability is well supported by the social workers report of his positive qualities and the social workers testimony that at the time of the hearing there were 15 families willing to adopt a child with Daniels characteristics. D.C. has not shown a lack of substantial evidence to support the courts finding.

II. Substantial Evidence Supports the Courts Finding the Beneficial Parent-Child Relationship Exception to Termination of Parental Rights and Adoption Did Not Apply

Jessica asserts the court erred by terminating her parental rights because she visited and communicated with Daniel as often as she was able, and they had a beneficial relationship that outweighed the benefits to Daniel of adoption.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parents burden to show that termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show that termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just `frequent and loving contact to establish the requisite benefit for [the] exception."

In reviewing whether there is sufficient evidence to support the trial courts finding, the appellate court reviews the evidence in the light most favorable to the courts order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Substantial evidence supports the courts finding Jessica did not show she had a beneficial parent-child relationship with Daniel that outweighed the benefits he would gain from adoption. The juvenile court noted that even putting aside the inconsistencies between Jessicas testimony and statements in the record as to how much time she had spent with Daniel and how much care she had provided, she still did not meet her burden to establish the exception.

The facts of this case fully support the juvenile courts finding the exception did not apply. Daniel had been removed from Jessica at birth and had spent most of his life being cared for by others. As the court stated, Jessica did not offer any evidence that Daniel would suffer detriment if their relationship was terminated; there was no evidence that he distinguished her from the grandmother or from a babysitter and no evidence that he was upset when she left the grandmothers home or when she left him after a visit at the Polinsky Childrens Center. Jessica has not shown a lack of evidence to support the courts finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply.

Jessica relies on In re S.B. (2008) 164 Cal.App.4th 289, a case from this court, to support her argument the court should have applied the beneficial parent-child relationship exception. In In re S.B., we concluded the trial court erred by finding the beneficial parent-child relationship exception did not apply. We determined the evidence showed the minor would be greatly harmed by the loss of the significant positive relationship she shared with her father. (Id. at p. 301.) The father had complied with every aspect of his case plan, frequently visited the minor and was devoted to her. The minor loved him and wanted to live with him. (Id. at pp. 294-295.) Jessica did not make such a showing. Further, while factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial courts findings that the beneficial parent-child relationship exception did not apply.

III. Substantial Evidence Supports the Courts Finding the Sibling Relationship Exception to Termination of Parental Rights and Adoption Did Not Apply

D.C. and Jessica contend the court erred by finding the sibling relationship exception to termination of parental rights and adoption did not apply in this case.

Under section 366.26, subdivision (c)(1)(B)(v), if the court finds the child will be adopted within a reasonable time, adoption must be ordered " `unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child because `[t]here would be substantial interference with a childs sibling relationship . . . . " (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) 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. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, at p. 813.) Factors for the court to consider under section 366.26, subdivision (c)(1)(B)(v) include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond and whether continued contact is in the childs best interests, as compared to the benefits of adoption. The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, at p. 813.)

Jessica testified Daniels two siblings liked being with him and remembered him, but there was no evidence Daniel had a strong attachment to his siblings.

The court stated:

"As to the sibling exception, theres been no evidence of any compelling reason that termination of parental rights would be detrimental to this child because of the loss of his sibling relationship. He is 14 months old. He is preverbal. . . . He was with the siblings until he was a year old a couple of months ago. We have evidence that the siblings may have a bond [with] him, but the Court is to look at the impact of the loss of the relationship on the child who is being considered for adoption. And theres been no evidence of detriment to this child from the loss of a sibling relationship."

There was no evidence in the record that Daniel would be greatly harmed by severing his legal relationship to his siblings. The court did not err by finding the benefit to him of his relationships with his siblings did not outweigh the benefit he would gain from being adopted into a stable, permanent home.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

BENKE, Acting P. J.

OROURKE, J.

Statutory references are to the Welfare and Institutions Code.


Summaries of

In re Daniel C.

Court of Appeal of California
Apr 23, 2009
No. D054001 (Cal. Ct. App. Apr. 23, 2009)
Case details for

In re Daniel C.

Case Details

Full title:In re DANIEL C., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:Court of Appeal of California

Date published: Apr 23, 2009

Citations

No. D054001 (Cal. Ct. App. Apr. 23, 2009)