Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J515454 Hideo Chino, Juvenile Court Referee.
McCONNELL, P. J.
Juan M., the father of Isabella M., appeals the judgment terminating his parental rights pursuant to Welfare and Institutions Code, section 366.26. Juan contends there was insufficient evidence to support the juvenile court's finding that Isabella was likely to be adopted within a reasonable time. Additionally, Juan contends the court erred by finding the beneficial parent-child relationship exception to adoption did not apply.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
In May 2004, the San Diego County Health and Human Services Agency (Agency) took Isabella, then three years old, into protective custody after her mother was arrested on two outstanding felony warrants. At the time, Juan was incarcerated in Las Vegas, Nevada. Agency filed a dependency petition on behalf of Isabella, alleging she had been left without provision for support. (§ 300, subd. (g).)
The mother is not a party in this appeal.
On July 21, the juvenile court sustained the petition, declared Isabella a dependent child, removed her from the mother's custody and placed her in foster care. The court ordered Agency to conduct a search to find Juan and notify him of the proceedings.
In early September, Agency reported that Juan had been located in an immigration holding facility in North Las Vegas and was willing to participate in services. The court appointed counsel to represent Juan as an alleged father.
Juan was released from the detention center in November and remained on parole until January 15, 2005. According to his parole officer, Juan successfully completed programs in substance abuse, anger management, life skills orientation and adult assessment systems. Juan obtained a general education degree and attended Narcotics Anonymous meetings and English classes.
Juan said he could not afford to travel to San Diego to visit Isabella, but he telephoned her weekly. The foster parents reported Isabella enjoyed the calls. At the six-month review hearing, the court continued Isabella in foster care.
On February 16, 2005, the court found Juan to be Isabella's presumed father and entered a judgment of paternity. The court also ordered an evaluation for Juan in Nevada under the Interstate Compact for the Protection of Children (ICPC) and ordered Agency to provide services to him.
In May, the State of Nevada denied ICPC approval because Juan had not completed at least 75 percent of his case plan.
Over the next two months, Juan participated in his services and received good reports from his service providers. On July 17, Juan visited Isabella for the first time in her foster home. The foster mother reported that Juan appeared interested and focused on interacting with Isabella. The court ordered a new ICPC evaluation for Juan in Las Vegas.
At the 12-month review hearing in September, the court found Juan had made substantive progress with his case plan and ordered six more months of services for him, but terminated services for the mother.
In early November, the social worker observed a visit between Juan and Isabella. The worker reported Isabella "seemed shy" around Juan.
The State of Nevada continued to deny Juan's ICPC applications.
On November 29, Juan brought two friends with him to a visit with Isabella at a McDonald's restaurant; Juan spent most of the visit talking to his friends. When the social worker rebuked Juan, he replied he did not see anything wrong with having his friends attend the visit. Juan said he was able to interact with Isabella and his friends at the visit.
On February 1, 2007, the court terminated services and set a section 366.26 hearing.
In Agency's adoption assessment report, the social worker opined that Isabella was likely to be adopted because her current caretaker, with whom she had lived for three years, wanted to adopt her. "Isabella appears happy and well adjusted with the family; she refers to her caregiver as her 'mama' and the caregiver's partner as 'papa'[;] she also calls the caregivers['] son, her 'hermanito' [or] 'little brother,' " the social worker noted. If the current caregiver did not adopt Isabella, there were 30 other approved prospective adoptive families in San Diego County who were willing to adopt a child with Isabella's characteristics.
In a later addendum report, the social worker said there were 34 other prospective adoptive families interested in adopting a child with Isabella's characteristics.
The social worker noted that Juan had visited Isabella five times during the dependency. His last visit was in January 2007. The caregiver reported that Isabella did not inquire about Juan and had minimal interaction with him when he telephoned. On one call, Isabella handed the telephone to another child in the home.
At the contested section 366.26 hearing on July 18, Juan did not cross-examine the social worker and did not offer any affirmative evidence. After argument of counsel, the court terminated parental rights and selected adoption as Isabella's permanent plan.
DISCUSSION
I. Finding of Adoptability
Juan contends there was insufficient evidence that Isabella was likely to be adopted in 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.)
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.
"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.) The court may consider the existence of a prospective adoptive family because such existence "generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics omitted.) Although it is not determinative (In re David H. (1995) 33 Cal.App.4th 368, 378), the fact that Isabella was living with foster parents who wanted to adopt her 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 Isabella was likely to be adopted within a reasonable time. She was bonded with the foster parent, with whom she had lived for three years. The foster parent wanted to adopt her. The foster parent was fully aware that Isabella had cognitive and behavioral problems and was working with Isabella's school to deal with those problems. The foster parent also enrolled Isabella in therapy.
In the event the caregiver did not adopt Isabella, Agency identified 34 other approved adoptive families willing and able to adopt a child with similar characteristics to Isabella. The evidence of these families "willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of a child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) In addition, it was the social worker's expert opinion that notwithstanding Isabella's problems, she was 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].) 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 Isabella was likely to be adopted within a reasonable time.
Juan challenges the adoptability finding because shortly before the section 366.26 hearing, Isabella had regressed in her school performance and her behavior, and there was a report of recent sexualized behavior. Juan claims Agency failed to provide sufficient information or explanation about these developments, which raised questions about the suitability of the foster parent.
To the extent that Juan is attacking the adoption assessment report for not including required information, Juan has forfeited any assignment of error because he did not object to the report below. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411.) In any event, Agency provided further information and explanation of these developments. In August 2006 after a two-year absence, Isabella's mother started visiting on a weekly basis for eight months, then abruptly stopped. The social worker attributed Isabella's recent problems and regression to her mother's reappearance and then sudden departure in the child's life.
As to the one incident of sexualized behavior, it occurred in a bathroom at the school and another girl and a boy were also involved. According to Isabella's therapist, Isabella needed boundaries as far as touching others. The therapist reported Isabella was "making progress in setting more appropriate behavioral boundaries at home and at school."
Contrary to Juan's brief, there is nothing in the record to suggest that Isabella acted out sexually in the foster home or that the foster mother is unsuitable. The questions he raises about the caregiver are wholly unfounded speculation.
II. Beneficial Parent-Child Relationship Exception to Adoption
Juan contends that the court erred by finding that the beneficial parent-child relationship exception to adoption did not apply.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Section 366.26, subdivision (c)(1), allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The exception exists only if both prongs are met. (Ibid.)
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.) On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Juan visited Isabella only five times. Through much of the dependency, Juan telephoned weekly, but Isabella was not engaged during the calls. Assuming arguendo that Juan satisfied the first prong, he cannot prevail because he did not meet the second prong.
A beneficial relationship is one that "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by "[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.) The juvenile 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." (Id. at p. 575.)
"To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) "To overcome the preference for adoption . . . 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.)
Substantial evidence supported the court's finding that the benefits of preserving Juan's parental ties to Isabella were outweighed by the permanence and stability she would gain from a permanent adoptive home.
Isabella had little if any relationship with Juan. During Juan's five visits he failed to engage Isabella, who was more interested in interacting with the social worker than spending time with Juan. Further, Isabella was not interested in Juan's telephone calls; on one occasion, she handed the phone to someone else.
Isabella, who spent half her life living with her foster family, was bonded to her caregivers. The foster family had been meeting all of Isabella's needs for three years and was committed to adopting her. The juvenile court did not err by failing to apply the section 366.26, subdivision (c)(1)(A), exception to termination of parental rights and adoption.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., HALLER, J.