Opinion
NOT TO BE PUBLISHED.
APPEAL from judgments of the Superior Court of San Diego County, Carol Isackson, Judge, Super. Ct. No. J515132D-E.
McCONNELL, P. J.
Sally S., the mother of Faith S. and K.W., appeals the judgments terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Sally contends the juvenile court erred by finding the children likely to be adopted and by not applying the parent-child beneficial relationship and/or the sibling relationship exceptions to adoption. (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i), and former § 366.26, subd. (c)(1)(E), now § 366.26, subd. (c)(1)(B)(v).)
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because these proceedings occurred before the statutory change, we shall refer to the earlier version of the statute.
FACTS
In August 2003 Faith, then six years old, and K.W., then two years old, were taken into protective custody, along with three older sisters, because Sally was incarcerated and had left them with an inappropriate caretaker. The caretaker's residence did not have electricity or running water; the children described it as "filthy." All five children had untreated lice, and one of the older girls had an untreated tooth infection. The children had not seen Sally for about six weeks; she had gone to Las Vegas where she was arrested for shoplifting.
The San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of the five children under section 300, subdivisions (b) and (g). The children were detained in licensed foster homes. Faith and K.W. were detained in the same foster home.
Faith and her three older sisters, who were 14, 13 and 11 years old when these proceedings began, share the same father, Michael S. The three older sisters are not subjects of this appeal. Michael S. molested and impregnated his stepdaughter, Sally's oldest daughter. Michael S. is incarcerated in Texas and will not be released from custody until 2017; he is not a party to this appeal. The whereabouts of K.W.'s alleged father, Augustus W., were never discovered; he is not a party to this appeal.
On October 31 the juvenile court sustained the dependency petitions.
On January 5, 2004, the court declared Faith and K.W. dependent children, placed them in licensed foster care and ordered Sally, who had been reincarcerated in Las Vegas, to participate in reunification services.
At the six-month review hearing on July 6, the court found Sally had made moderate progress with her case plan and ordered six more months of services.
At the 12-month review hearing on January 25, 2005, the court terminated Sally's services and set a section 366.26 hearing. Earlier that month, Sally had been released from prison and was living in a residential drug treatment center. The court gave the social worker discretion to expand Sally's visits.
The three older sisters did not want to be adopted, and their caregivers were willing to care for them under another permanent planned living arrangement. A nonrelated, extended family member was interested in adopting Faith and K.W. The section 366.26 hearing was continued for 90 days to assess the most appropriate permanent plan for Faith and K.W.
In August the court followed Agency's recommendations to place Faith with Sally at the residential drug treatment center and continue K.W.'s case for 180 days for further assessment of the most appropriate permanent plan for her. The nonrelated extended family member caregiver said she was no longer willing to care for Faith and K.W. because of their behavior problems. The caregiver also believed Faith was too bonded to Sally to be adopted. A foster care placement was available for K.W., but not for Faith.
In February 2006 the court continued Faith's placement with Sally and ordered another permanent planned living arrangement for K.W. The court also granted the social worker discretion to initiate a 60-day trial placement of K.W. with Sally and to maximize Sally's visits. Agency planned to ask the court to place K.W. with Sally at the end of the school year. K.W.'s caregiver no longer wished to adopt her; the caregiver felt like she was a babysitter and K.W. was not bonded to her. The caregiver told the social worker that K.W. was very bonded with Sally.
Sally did not contact Agency for three months and missed several months of visits with K.W., who started calling Sally by her first name. Sally dropped out of treatment. By August Sally and Faith were living in a women's shelter. K.W.'s caregiver could no longer care for her because of medical problems, and Agency filed a section 387 petition seeking a new placement for K.W.
On September 25 the court sustained the section 387 petition and set a section 366.26 hearing in K.W.'s case.
On October 31 Sally was arrested in San Bernardino County for shoplifting. Sally and Faith were returning to San Diego after a short visit to Las Vegas. Agency filed another section 387 petition, alleging Faith's placement was no longer effective because of Sally's arrest. Faith was detained in out-of-home care.
On January 10, 2007, the court ordered Faith placed in licensed foster care, ordered no more services be provided to Sally and set a section 366.26 hearing.
On February 10 Faith was placed with K.W. and her caregivers.
Agency recommended a permanent plan of adoption for both Faith and K.W. The caregivers wanted to adopt both girls. The girls were comfortable in the caregivers' home and referred to the foster parents as "Mom" and "Dad." The caregivers planned to continue sibling contact with the three older sisters through visits, telephone calls and letters. Faith wanted to be adopted by her caregivers. During a sibling visit, one of Faith's older sisters told her to tell the social worker that she wanted to live with the older sister. Faith replied, "I don't want to."
The older sisters successfully petitioned the court for standing pursuant to section 388 and requested the court apply the sibling relationship exception to adoption (former § 366.26, subd. (c)(1)(E)) in the upcoming section 366.26 hearing.
On October 19 the court found the children were likely to be adopted and none of the statutory exceptions to adoption existed. The court terminated parental rights and selected adoption as the permanent plan for Faith and K.W.
DISCUSSION
I. Adoptability Finding
Sally contends the court erred by finding that Faith and K.W. were likely to be adopted within a reasonable time. The contention is without merit.
The juvenile court may terminate parental rights only if it finds by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Neither a risk of future developmental problems (In re Jennilee T., supra, 3 Cal.App.4th at pp. 224-225) nor the onset of behavioral problems (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154) necessarily precludes an adoptability finding.
An adoptability finding does not require " 'that the minor already be in a potential adoptive home or that there be a proposed adoptive parent "waiting in the wings." ' " (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) "All that is required is clear and convincing evidence . . . that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
"[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 Lukas B., supra, 79 Cal.App.4th at p. 1154.) Although it is not determinative (In re David H. (1995) 33 Cal.App.4th 368, 378), the fact that Faith and K.W. were living with foster parents who wanted to adopt them is an important consideration in support of the court's adoptability finding. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) The court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt the child. (Ibid.)
The Agency bears the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) On review from an adoptability finding, we determine whether the record contains substantial evidence from which the court could make its ruling by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.)
Here, substantial evidence supports the court's finding that Faith and K.W. were likely to be adopted within a reasonable time. Both children were in good health, developmentally on target and attractive in appearance. Although each child had emotional problems at various times during these protracted four-year dependency proceedings, both Faith and K.W. had adjusted well to their latest placement and no longer presented behavioral problems. The children were bonded to their caregivers, who wanted to adopt them. Faith was adamant that she wanted to be adopted by these caregivers. The caregivers were aware of the close relationships Faith and K.W. had with their older sisters and were committed to maintaining the relationships.
We have no doubt that Faith and K.W. fall within the category of specifically adoptable children as opposed to the category of generally adoptable children because of certain factors. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) A specifically adoptable child is one "who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability [but] is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Factors that may make it difficult to find a person willing to adopt a child include "membership in a sibling group," "diagnosed medical, physical, or mental handicap[s]" (§ 366.26, subd. (c)(3)); physical, developmental or emotional problems (In re Sarah M., supra, at p. 1650; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065); or a child's age of "seven years or more" (§ 366.26, subd. (c)(3)). Since Faith was 10 years old at the time of the section 366.26 hearing, and she and K.W. were members of a sibling group, they were properly considered as difficult to adopt as a pair. (§ 366.26, subd. (c)(3).) Because their caregivers were willing to adopt them, Faith and K.W. were specifically adoptable.
These caregivers had an approved home study and, therefore, their suitability to adopt Faith and K.W. was not at issue. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Additionally, it was the social worker's expert opinion that Faith and K.W. were likely to be adopted. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 [social worker is qualified as expert to opine about child's adoptability under Evid. Code, § 720].) Given the opportunity, Sally's counsel did not cross-examine the social worker. The court was entitled to find that the social worker's opinion was credible and to give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Substantial evidence supports the court's finding that Faith and K.W. were likely to be adopted within a reasonable time.
Sally challenges the adoptability finding because Agency failed to report whether the caregivers remained committed to adoption after several lengthy continuances to verify that the notice requirements of the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) were satisfied. To the extent Sally contends the adoption assessment report and addendum reports were insufficient, she has forfeited the issue by not raising it below. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411.) In any event, Sally has not pointed to anything indicating that the caregivers' commitment to adopting Faith and K.W. had waned; in other words, the challenge is based on unfounded speculation.
II. Statutory Exceptions to Adoption
Sally contends the court erred by failing to apply the beneficial parent-child relationship and sibling group exceptions to adoption. The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the six statutory exceptions applies. (Former § 366.26, subd. (c)(1)(A)-(F).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)
Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577.)
A. Beneficial Parent-Child Relationship
Former section 366.26, subdivision (c)(1)(A) provided that after the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination 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." (Italics added.) The exception applied only if both prongs were met.
1. K.W.
Although Sally maintained regular contact and visitation with K.W. at various points during these four-year dependency proceedings, there also were periods in which there was no contact and visitation. Some of the no-contact periods were caused by Sally's repeated incarcerations or by her vagabond lifestyle when she was out of custody.
In the second half of 2006, Sally significantly reduced her telephone calls and visits with K.W. and then stopped telephoning and visiting the child. K.W. felt abandoned by Sally. Even if we were to consider Sally's contact with K.W. throughout the entire dependency and conclude that she satisfied the first prong of the beneficial parent-child relationship exception, Sally cannot prevail because she did not meet the second prong of the statute─demonstrating that she had a beneficial parent-child relationship with K.W.
In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the "relationship 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.)
K.W., who was two years old when these dependency proceedings began, had six placements after she was removed from Sally's custody in 2003. K.W. desperately needed a sense of stability and permanence. By the time of the section 366.26 hearing, K.W. had lived with her caregivers for more than one year and was thriving in the placement. K.W. wanted to be adopted. To K.W., adoption meant "stay[ing] with someone." Sally had not filled a parental role to K.W. for more than four years. K.W. had to look to others to provide her with food, shelter, protection and guidance on a daily basis.
There was an abundance of evidence that Sally and K.W. did not have a beneficial parent-child relationship.
2. Faith
As to whether Sally and Faith had a beneficial parent-child relationship, the case is much closer with respect to both prongs of the statute.
Faith lived with Sally from August 2005 until October 31, 2006, when Sally was arrested for shoplifting in San Bernardino County. Shortly after her arrest, Sally began writing monthly letters to Faith. Faith read and kept Sally's letters, but did not respond to them. Sally's contact with Faith far exceeded her contact with K.W. We shall assume for purposes of this appeal that Sally met the first prong of the statute in light of the constraints of her incarceration.
Nonetheless, Sally cannot prevail because she did not establish a beneficial relationship with Faith within the meaning of former section 366.26, subdivision (c)(1)(A). We realize that Faith had a closer attachment to Sally than any of the other children. Also, Sally filled a parental role to Faith during part of the dependency proceeding─namely, when Faith was placed with Sally for more than a year. But Sally's life had deteriorated to a revolving door of jail/prison commitments because of her propensity to shoplift. Like K.W., Faith needed stability and a sense of permanence. Faith had nine different placements during these dependency proceedings. Faith wanted to be adopted by her caregivers─even more than she wanted to be reunited with her older sisters. Faith was mature enough to realize that adoption was in her best interests. As sad as it is, Sally's continuing criminal conduct precluded her from fulfilling her parental role to Faith and from providing needed stability to Faith.
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Ibid.)
Substantial evidence supported the court's finding that the exception under former section 366.26, subdivision (c)(1)(A) did not apply with respect to either Faith or K.W.
B. Sibling Relationship
Former subdivision (c)(1)(E) was added to section 366.26, effective January 1, 2002, as a then fifth enumerated exception to adoption relating to the relationship between siblings. "Thus, adoption shall now 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 child's sibling relationship . . . .' ([Former] § 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) 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. (Former § 366.26, subd. (c)(1)(E).) The court must also consider " 'whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption.' [Citation.]" (In re Daniel H., supra, at p. 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, 99 Cal.App.4th at p. 813.) It focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.; see also In re Celine R. (2003) 31 Cal.4th 45, 54.)
"Under [former] section 366.26, subdivision (c)(1)(E), the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship . . . ." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) It is only after the court concludes that adoption would result in a substantial interference with a sibling relationship, that the court moves on to the second step─weighing the child's best interests in continuing the sibling relationship against the benefit the child would receive by the permanency of adoption. (Id. at p. 952.)
Here, there was substantial evidence that adoption of Faith and K.W. by their caregivers would not substantially interfere with the girls' relationships with their older sisters. Since the girls were placed with them, the caregivers promoted visits with the older sisters. The caregivers repeatedly said they would continue to maintain contact with the older sisters after they adopted Faith and K.W.
Given the absence of evidence that termination of parental rights would substantially interfere with the sibling relationship, neither Sally nor the older sisters could prevail in their claim that the sibling relationship exception to adoption applied.
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
"[T]he 'sibling relationship exception . . . only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citations.]"
The juvenile court did not err by finding the exception to adoption under former section 366.26, subdivision (c)(1)(E) did not apply.
DISPOSITION
The judgments are affirmed.
WE CONCUR: McDONALD, J., AARON, J.