Opinion
C043474.
10-23-2003
In re DONOVAN J., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. KRISTINA J., Defendant and Appellant.
Kristina J. (appellant), the mother of the minor, appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends there was insufficient evidence that the minor was adoptable. She also maintains the juvenile court erred by failing to apply the exception to adoption for interference with a sibling relationship. We shall affirm.
Further undesignated section references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
A dependency petition was filed concerning the 11-month-old minor in April 2001 based, in part, on appellants substance abuse and mental health problems, as well as a history of domestic violence. The petition alleged that appellant had failed to reunify with two other children, and that she "admitted to using methamphetamines at least three times during [her] current pregnancy."
According to the report for the jurisdictional hearing, since being removed from appellant, the minor had been in three different foster homes, in part, because the minor was "an extremely needy child" who was difficult to care for. The minor had no health problems except for severe eczema, but had some language delays. In June 2001, the minor was placed with his paternal grandmother.
During a bonding assessment, appellant reported that the minor had a heart murmur requiring "no special treatment." The record contains no further reference to this condition.
A bonding assessment concluded that the minor "appears to have developed a secure attachment" and that he "sees both his mother and paternal grandmother as care[]takers upon whom he can rel[]y [] and go to in order to get his needs met." The evaluation also noted the minor "was particularly interested in visiting with his baby brother in the waiting room" but that he showed no distress when it was time to leave the visit. During the assessment, the paternal grandmother reported that when the minor was first placed with her, he had behavior problems, which had since decreased.
In August 2001, the juvenile court sustained the petition with amendments and ordered reunification services.
During the reunification period, the minor had weekly visits with appellant, during which he saw his younger sibling. It was noted that the minor "ha[d] made positive interaction with" appellant and the sibling. Although the visits appeared to be going well, the paternal grandmother reported that, after overnight visits with appellant, the minor "act[ed] out" or was "hyperactive."
At a review hearing in July 2002, appellants reunification services were terminated due to her minimal progress in completing the case plan objectives, and a hearing was set to select and implement a permanent plan for the minor pursuant to section 366.26.
According to the report for the section 366.26 hearing, the minor, now two and a half years old, was healthy but he continued to have some language delays and had been evaluated by the regional center. It was noted that the minors language had improved, and he could "say a few sentences." The minor "appear[ed] to be emotionally stable" in the paternal grandmothers home.
Regarding contact with the sibling, the social worker reported that during the minors last visit, he "bus[ied] himself playing with" toys but had "some interaction with [appellant] and his [sibling]." The minor "went to the car readily when it was time to leave, with no crying."
Initially, the paternal grandmother stated she was committed to adopting the minor, although she expressed some concerns about her health. The social workers report requested that the hearing be continued 90 days to assess if the paternal grandmother was able to adopt the minor and to "work on [] permanency" in the event the paternal grandmother could not adopt.
The proposed findings attached to the social workers first report for the section 366.26 hearing contained the following proposed finding: "It would not be detrimental to the [minor] . . . to terminate parental rights and the child has a high probability for adoption, but is difficult to place for adoption and there is no identified or available prospective adoptive parent because [¶] [t]he [minor] has a diagnosed medical, physical or mental handicap." The social workers report does not explain the basis for this proposed finding, which was not contained in recommendations in the social workers subsequent addendum reports and was never adopted by the juvenile court.
Prior to the section 366.26 hearing, the paternal grandmother requested that the minor be removed from her home because her medical problems rendered her unable to care for him. Three weeks before the section 366.26 hearing, the minor was placed in a foster home where he had previously received day care, and he appeared to adjust well in the new home. The foster parents were interested in adopting the minor but, as of the section 366.26 hearing, were not committed. The social worker opined that the minor was "generally adoptable," and she reported she would continue to work with the current foster parents or would look for another prospective adoptive home if the current placement did not commit to adoption.
At the section 366.26 hearing, appellants attorney conceded that the minor "probably [wa]s generally adoptable." However, citing section 366.26, subdivision (c)(1)(E), appellants attorney requested that appellants parental rights not be terminated so that the minors bond with his younger sibling could be maintained. The minors attorney asked the court to maintain the sibling relationship even if parental rights were terminated.
The juvenile court found the minor "generally adoptable" and found no reason to "not go forward with adoption as the permanent plan." The court ordered a permanent plan of adoption, ordered sibling visitation between the minor and his younger sibling and terminated parental rights.
DISCUSSION
I
Appellant claims there was insufficient evidence to support the juvenile courts finding that the minor was adoptable. We disagree.
"`At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) "In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings. [Citations.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) On the other hand, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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." (Id. at pp. 1649-1650, italics omitted.)
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence—that is, evidence which is reasonable, credible, and of solid value—to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, 222 Cal.App.3d at p. 1214.)
Applying these principles here, we conclude that substantial evidence supports the juvenile courts finding of adoptability. The record reflects that the minor was under three years old and, other than a history of eczema, was in good physical health. Although it was reported that the minor had been challenging to care for when he was first placed in foster care, by the time of the section 366.26 hearing, the minors only reported behavior problems occurred after visits with appellant. Although the minor displayed some delays in language, his skills were developing, and there was no evidence to suggest this would be an obstacle to adoption. In fact, the paternal grandmother had wanted to adopt the minor, impeded only by her own medical problems, and the minors current foster parents were considering adoption. Moreover, the minor had demonstrated a capacity to bond with adult figures, as indicated by the bonding assessment conducted early in the proceedings as well as the minors relationship with the paternal grandmother. Based on this evidence, the juvenile court could reasonably find that the minor was likely to be adopted.
Appellant suggests that the grandmothers motivation for not pursuing adoption was her unwillingness to adopt, not an inability caused by her medical problems. Even if there were some evidence in the record to support this theory, we would be obliged to resolve this conflict in favor of the prevailing party.
The cases on which appellant relies do not compel a different conclusion. For example, In re Asia L. (2003) 107 Cal.App.4th 498, 510-511, involved siblings, five and seven years old, who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported that her agency was "confident" an adoptive home could be located, the minors current foster parents were not committed to adoption and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under these circumstances, the appellate court reversed the juvenile courts finding of adoptability. (Id. at pp. 512, 515.)
Here, there was no evidence that the minors delayed language skills would necessitate a specialized placement or that his delays were so severe as to pose an obstacle to adoption. Nor, contrary to appellants assertion, was there anything else about "the minors age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt the minor." (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
In In re Brian P. (2002) 99 Cal.App.4th 616, 624, also cited by appellant, the social workers opinion that a child was adoptable was held insufficient to sustain a finding of adoptability where the social worker provided no facts to support her opinion. In contrast to the characteristics of the four-and-one-half-year-old child in that case—he had only recently begun to speak, had problems with his "gait," was still learning to dress himself and was only recently toilet-trained—the record here does not reflect that the two-and-one-half-year-old minors language delays would create any difficulty in terms of placing him for adoption. (Id. at p. 619.)
In In re Amelia S. (1991) 229 Cal.App.3d 1060, a finding of adoptability was reversed where 10 siblings had "developmental, emotional and physical problems, some of a serious nature" and only two of the siblings five foster families were even "considering" adopting the large sibling group. (Id. at pp. 1062-1063, 1065-1066.) The minors circumstances here are readily distinguishable—he is not a member of a sibling group for purposes of locating an adoptive placement, nor does the record reflect that his language delays rendered him hard to place.
Finally, appellant cites In re Jerome D. (2000) 84 Cal.App.4th 1200, 1203, 1205, in which the prospective adoptive parent of a nearly nine-year-old child was the mothers former boyfriend, who had various potential legal impediments to adoption. As there was insufficient evidence of the childs "general adoptability," the appellate court reversed the finding of adoptability. (Id. at pp. 1205-1206.) The reasoning in that case does not apply to a child such as the minor, whose tender age and good physical and mental health support the juvenile courts finding of adoptability.
Appellant makes much of the fact that the minor was moved from three different foster homes at the beginning of the dependency proceedings. Given the chaotic conditions the minor apparently was subjected to prior to the initiation of dependency proceedings, it is hardly surprising that it took a period of time for him to settle down. In any event, by the time of the section 366.26 hearing, there was no evidence of the problems alluded to by the initial foster parents.
Accordingly, we conclude that substantial evidence supports the juvenile courts finding that the minor is adoptable.
II
Appellant claims the juvenile court erred by failing to apply the exception to adoption contained in section 366.26, subdivision (c)(1)(E). Again, we disagree.
Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption "unless the court finds a compelling reason for determining that termination would be detrimental" due to one of the enumerated exceptions. "The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.) The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 1463(d)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.)
The exception to adoption at issue here applies if, as a result of the termination of parental rights, "[t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (& sect; 366.26, subd. (c)(1)(E).)
The first step for the juvenile court in evaluating whether this exception applies is to consider whether terminating parental rights actually would cause substantial interference with a sibling relationship. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952.) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship. To determine the significance of the sibling relationship, the court considers the factors set forth in Section 366.26, subdivision (c)(1)(E)." (Id. at p. 952, fn. omitted.) If the court determines that termination of parental rights would substantially interfere with a sibling relationship, the court moves to the second step of the analysis, in which it "weigh[s] the childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. [Citation.]" (Id. at p. 952.)
Here, we need go no further than to examine the minors relationship with his sibling, which did not satisfy the criteria for finding an exception to adoption under section 366.26, subdivision (c)(1)(E). The minor was not raised in the same home with his sibling and did not share significant common experiences with him. Moreover, although the minor had some "positive interaction" with his sibling, he separated easily from him at the end of visits, reflecting that terminating the relationship would not be detrimental to the minor.
Appellant references the fact that the minors attorney requested continued sibling contact at the section 366.26 hearing. But, the minors attorney did not suggest that this be accomplished at the expense of a permanent plan of adoption for the minor. Appellant also refers to the opinion of a psychologist that the minor and his sibling "would benefit from having a sibling relationship with each other . . . ." However, the psychologists opinion does not address the issue of possible detriment to the minor, nor was it based on any contact with the minor. No reason for this conclusory opinion was offered.
It was appellants burden to establish a compelling reason for determining that severing the sibling relationship would be detrimental to the minor. Substantial evidence supports the juvenile courts determination that appellant did not meet her burden.
DISPOSITION
The juvenile courts order is affirmed.
We concur: BLEASE, Acting P.J., and RAYE, J.