Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County Super. Ct. No. J510251 A-C, Gary M. Bubis, Judge.
McCONNELL, P. J.
Jeannie M. and Christopher E. appeal from judgments terminating parental rights to their children under Welfare and Institutions Code section 366.26. We affirm the judgments.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2005, the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300 on behalf of Jeannie's three children, J.H., Gage E., and Samantha E. (children), then ages 11, three and two years respectively. The Agency alleged that Christopher E., the father of Gage and Samantha, used methamphetamine when J.H. was present, offered the drug to her and touched her breasts and vaginal area. The Agency alleged Gage and Samantha were at risk because of Christopher's abuse of J.H. Jeannie and Christopher had a lengthy history of drug use, primarily methamphetamine, and chronic domestic violence.
J.H.'s biological father was not identified.
Jeannie and Christopher submitted to jurisdiction. The court removed the children from parental custody and ordered a plan of family reunification services.
The Agency initially placed the children with Christopher's aunt, Cathy, but moved Gage to Polinsky Children's Center after Cathy reported she could not manage Gage's special needs and behaviors. Gage's evaluation at Polinsky Children's Center indicated he may have developmental delays. The Agency considered placing Gage in specialized foster care but instead placed him with his grandmother, Sharon. Samantha visited her grandmother and brother on weekends.
Sharon had helped care for Gage and Samantha since their births. In September 2005 the court granted her request for de facto parent status to both children.
At the 12-month review hearing, the court determined that it could not safely return the children to parental custody and set a hearing to select and implement a permanency plan for the children (permanency plan hearing).
In its permanency plan report, the Agency noted that Samantha was doing well in Cathy's home and in preschool. J.H. had made progress addressing sexual abuse, and learning boundary and safety skills. Cathy was willing to adopt J.H. and Samantha.
Sharon wanted to adopt Gage, who had lived in her home since birth. On occasion, Gage displayed violent and aggressive behaviors. He severely bit a staff member which necessitated emergency room treatment and resulted in the termination of supervised visitation services at one agency. In February 2006 Gage received a psychological evaluation by Dr. Gordon Caras, Ph.D. Dr. Caras concluded that Gage functioned below the borderline range in overall intellectual functioning but did not have Pervasive Developmental Disorder. In March the San Diego Regional Center for the Developmentally Disabled (Center) determined that Gage functioned in the low average cognitive range and was not substantially impaired by a developmental disability. Gage did not qualify for Center services. The Center recommended Gage continue with school-based services for severe delays in language skills.
The Agency noted that each child would require a developmental or psychological evaluation as part of the adoption process. The social worker was to arrange the evaluations.
The Agency reported that J.H., Samantha and Gage were a sibling group. Samantha was attached to both her siblings, and would suffer if either relationship were severed. Cathy and Sharon had initiated adoptive home studies. Cathy was willing to continue to facilitate weekend visitation between Gage and Samantha. If the relatives were unable to adopt the children, the Agency had other approved adoptive homes willing to adopt a sibling group of three.
Jeannie had weekly supervised visits with J.H. J.H. did not feel safe being alone with her mother. Christopher and Jeannie had weekly supervised visits with Gage and Samantha. Gage and Samantha enjoyed the visits.
At the permanency plan hearing, social worker Reed testified the children were adoptable. The children lived with their prospective adoptive parents. Reed anticipated that Cathy's and Sharon's homes would be approved for adoption. She opined that the children were generally adoptable and the fact that Gage and Samantha had asthma, and Gage and J.H. received special education services, did not affect their adoptability.
Reed testified that Samantha and Gage were happy to see Jeannie and Christopher, and enjoyed their parents' attention. She opined that termination of parental rights would not be detrimental to the children. Samantha and Gage had lived with their respective caregivers for almost 18 months and looked to them for stability, support and their daily needs. J.H. understood the concept of adoption and wanted to live with Cathy.
Christopher testified that Gage and Samantha were generally well behaved during visits. Occasionally, Gage would be hard to control and Christopher would redirect him. Gage's learning disabilities did not make it difficult to parent him. Gage loved dinosaurs, and Christopher would teach him dinosaur names and read to him and Samantha. Samantha cried when Christopher left the visits. Christopher testified that the relationship between his aunt and his mother had been acrimonious for 14 years. He was concerned that Samantha and Gage would not be able to visit each other if adopted separately.
The court found that the children were likely to be adopted within a reasonable time and none of the exceptions listed in section 366.26, subdivision (c)(1) applied. The court determined that adoption was in the children's best interests and terminated parental rights.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52, pp. 4999-5000.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
DISCUSSION
A
Adoptability
Jeannie and Christopher contend insufficient evidence supports a finding that Gage is generally adoptable. They argue the Agency did not provide the court with the requisite appraisal and study of Gage's developmental status; thus the court did not have before it a credible analysis of the likelihood that Gage would be adopted within a reasonable time. Christopher and Jeannie posit that a legal impediment to adoption exists because Sharon's adoptive home study had not been completed. Jeannie and Christopher assert that if Sharon is unable to adopt Gage, the Agency will not be able to locate an adoptive home for Gage because of his developmental delays, difficult behaviors and the lack of a current developmental evaluation.
Christopher and Jeannie join the arguments presented in the other's brief.
The Agency maintains that substantial evidence supports the finding Gage was likely to be adopted within a reasonable time. The Agency contends it provided the court with the evaluation of Gage's developmental status completed in February 2006 by Dr. Gordon Caras, Ph.D. Minors' counsel joins the Agency's argument and asserts the evidence demonstrates that notwithstanding Gage's special needs, Gage is both generally and specifically adoptable, and is in the home of a very committed relative.
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
When the court orders a permanency plan hearing, it must direct the Agency to prepare an assessment report. The Agency is required to include "[a]n evaluation of the child's medical, developmental, scholastic, mental, and emotional status." (§ 366.21, subd. (i); see also § 366.22, subd. (b).) The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
If the child is considered generally adoptable, reviewing courts do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) The juvenile court should also explore a child's feelings toward his or her parents, foster parents and prospective adoptive family. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334; see § 366.26, subd. (h)(1).)
On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Substantial evidence supports the court's finding that Gage was likely to be adopted within a reasonable time. Gage's grandmother, Sharon, with whom he had lived since he was born, had taken steps to adopt him. She had status as his de facto parent, had initiated an adoptive home study and was working with an adoption applicant worker. Social worker Reed observed that Sharon was "very committed to adoption." Reed opined that Sharon's home study would be approved.
The record shows that Gage's language delays and behaviors were not an impediment to adoption. Sharon was fully conversant with Gage's level of functioning and needs, and had been involved with his evaluations. Reed reported that Sharon "focused all her attention on Gage." Although the task had not been easy, Sharon was doing a "great job" and Gage was making progress. The Agency did not have any concerns about her ability or capacity to meet Gage's needs. The record supports a finding that Sharon was a qualified, committed caregiver and there was not a legal impediment to adoption. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
In addition, the record contains sufficient evidence to support a finding that Gage was generally adoptable. He was an attractive, healthy five year old and had the ability to sustain close attachments to adults. Gage was not autistic and did not have pervasive developmental delays. He responded to school-based speech and language services. Although Gage displayed tantrums and aggressive behavior during supervised visitation during the reunification period, he made considerable progress with a capable caregiver and appropriate services.
Finally, we conclude that the record contains an adequate evaluation of Gage's medical, developmental, scholastic, mental and emotional status. (§ 366.21, subd. (i); see also § 366.22, subd. (b).) The Agency's evaluation includes reports of Gage's medical, educational and emotional status as well as summaries of his psychological evaluation by Dr. Caras and his developmental assessment by the Center. The fact that Gage would undergo an additional developmental assessment before the adoption could be finalized does not indicate the status of his development was an issue. All children who are under five years of age who have been freed for adoption undergo a formal developmental assessment. (Cal. Code Regs., tit. 22, § 35127.1(b)(2)(A); see also Fam. Code, §§ 8706, 8817, 8909.)
Substantial evidence supports a finding that Gage was likely to be adopted by his grandmother Sharon within a reasonable time. A finding that Gage is generally adoptable is also adequately supported by the record.
B
The Beneficial Parent-Child Relationship Exception
Christopher and Jeannie maintain the court erred when it did not find that termination of parental rights would be detrimental to Gage and Samantha under the beneficial parent-child relationship. (§ 366.26, subd. (c)(1)(A).)
The Agency contends substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply. (§ 366.26, subd. (c)(1)(A).) Minors' counsel joins the Agency's arguments.
Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To overcome the statutory preference for adoption, the parent must prove, by a preponderance of the evidence, that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In the context of section 366.26, subdivision (c)(1)(A), "benefit" means the parent-child 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. . . . If severing the natural parent/child parental relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.)
We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c)(1). (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
The record shows that Jeannie and Christopher did not have a parental relationship with J.H., Gage and Samantha. Instead, Jeannie and Christopher placed the children at serious risk of harm through drug use and chronic domestic violence. Jeannie began using methamphetamine in 1993, and cocaine and intravenous heroin the following year. In 1994 the Agency removed J.H. from her custody and she went into treatment. Jeannie relapsed after six years of sobriety. She was arrested on drug charges in 2000, and again underwent treatment. In 2002 Jeannie tested positive for methamphetamine when she was seven months pregnant with Samantha. She was arrested on drug charges, and again participated in treatment programs. The Agency received reports Jeannie constantly yelled and screamed profanities at the children, and the reporter heard Gage crying for long periods of time.
Christopher used crystal methamphetamine in J.H.'s presence, touched her under her clothes and showed her pornographic movies. His psychological evaluation indicated he had developed strong narcissistic and antisocial personality traits, and was likely to place his own needs above the needs of others. Christopher had a long history of methamphetamine dependence and remained vulnerable to relapse. Testing indicated Christopher had mild to moderate neurological deficits that may negatively affect his parenting abilities and adversely impact his impulse control, judgment and insight. Christopher denied abusing J.H. and did not make progress in his case plan. Despite this history, Jeannie remained dependent on Christopher and wanted to continue their relationship.
Because of the continuing risks to the children, the Agency did not permit Jeannie and Christopher to have unsupervised visits with them. The Agency acknowledges that Jeannie and Christopher maintained regular visitation and contact with Gage and Samantha. Social worker Reed reported that Gage and Samantha were excited to see their parents and enjoyed their interactions. The supervised visits occurred for two hours a week.
Reed opined that Jeannie and Christopher did not have a parental relationship with Gage and Samantha, and the children would not experience any detriment from termination of parental rights. She believed the nature of Jeannie's and Christopher's relationship with the children was that of a caring relative, whereas the caregivers' relationships with the children were parental in nature. Gage had lived with his parents in Sharon's home from his birth in November 2001 to May 2005 when he was three and one-half years old. In July 2005 Gage was placed in Sharon's care. Sharon was dedicated to him and met his emotional, psychological and day-to-day needs. Samantha lived with her parents until she was placed in Cathy's care when she was 28 months old. Thus, at the time of the permanency plan hearing, the children had lived with their respective caregivers for almost two years, and in that time had visited their parents approximately two hours each week.
The record shows that Cathy and Sharon met the children's needs for stability, security and consistent parenting. Gage and Samantha flourished in their homes. Gage made progress at school and at home. When Jeannie and Christopher were present, the children looked to Sharon for direction and to meet their needs. At one visit, Samantha limited her contact with Christopher and sought out the social worker for direction and communication.
We conclude that Jeannie and Christopher did not show more than "frequent and loving contact" with the children (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418) or that they were more to the children than "friendly nonparent relative[s]" (In re Angel B. (2002) 97 Cal.App.4th 454, 468). Thus substantial evidence supports the court's finding that the beneficial parent-child exception did not apply to preclude termination of parental rights. (§ 366.26, subd. (c)(1)(A).) The court did not err when it found that the security, stability and loving care the children would receive in an adoptive placement outweighed maintaining their relationships with Jeannie and Christopher. (§ 366.26, subd. (c)(1)(A); In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
C
The Sibling Relationship Exception
Jeannie and Christopher contend the court's finding that the sibling relationship exception did not apply to J.H., Gage and Samantha is not supported by substantial evidence. (§ 366.26, subd. (c)(1)(E).) They contend there is an acrimonious relationship between Cathy and Sharon and their adoption of the children would interfere with the children's sibling relationships.
To establish detriment under the section 366.26, subdivision (c)(1)(E) exception, sufficient to avoid termination of parental rights, the parent must show, by a preponderance of the evidence, "[t]here would be substantial interference with a child's 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 child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Ibid.)
We review the record for substantial evidence to support the court's finding the sibling relationship exception to termination of parental rights did not apply. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
During the 18-month dependency proceeding, J.H. and Samantha lived with Cathy, and Gage with Sharon. Cathy and Sharon had a long-standing practice of arranging for Samantha to stay with Sharon from Friday afternoon to Sunday afternoon. The three children saw each other on Sunday afternoons. There is no indication in the record to show these arrangements caused a substantial interference with the siblings' relationships or were in some way detrimental to the children.
Any concern the caregivers would terminate visitation between Gage and Samantha is mere speculation. Sharon and Cathy stated their mutual concern for the children had helped mend their relationship. Although social worker Reed acknowledged that the caregivers did not have "the best relationship," she noted they ensured that Gage and Samantha had weekly contact during the dependency proceedings. Thus, the record permits the court to draw the reasonable inference the existing arrangements for sibling visitation would continue if parental rights were terminated.
The record also supports a finding that adoption would not substantially interfere with the sibling relationship between J.H. and Gage. J.H. had lived with Cathy for two years immediately preceding the dependency action and saw her siblings on weekends. During the dependency, Gage and J.H. saw each other for brief but regular visits on Sunday afternoons. J.H. was eight years older than Gage. There is no indication in the record to show their relationship was especially close or that either J.H. or Gage desired extended visits. From this we infer the arrangements for visitation met J.H.'s and Gage's emotional needs for continued sibling contact, and they would not suffer detriment from termination of parental rights.
Further, in the event the children were not adopted by their relative caregivers, the record shows the Agency planned to place the children for adoption as a sibling group of three. Thus, the record supports the finding that termination of parental rights would not substantially interfere with the siblings' relationships. (§ 366.26, subd. (c)(1)(E).)
DISPOSITION
The judgments are affirmed.
WE CONCUR: McINTYRE, J., NARES, J.