Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J204011. Kyle S. Brodie, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant A.G.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.J.
Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
A.G. (Mother) and S.J. (Father) are the parents of J.J. (born in January 2004). Mother and Father appeal from the juvenile court’s ruling terminating their parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Both parents contend that substantial evidence does not support the juvenile court’s finding the child was likely to be adopted and that the “beneficial sibling relationship” exception under section 366.26, subdivision (c)(1)(B)(v), applied. For the reasons described below, we affirm the juvenile court’s ruling.
All statutory references herein are to the Welfare and Institutions Code unless otherwise stated.
I. PROCEDURAL BACKGROUND AND FACTS
On August 1, 2005, the Department of Children’s Services (the “Department”) received a report that J.J. and her two half siblings, B.G. and T.G., suffered from neglect due to a lack of utilities in the home, and the home was dirty. J.J. also had a severe diaper rash. The social worker made several unsuccessful attempts to contact the family.
T.G. and B.G. (the half siblings) are not parties to this appeal; however, they will be referred to as relevant to the facts in this case. The father of T.G. and B.G. is Larry M.
The Department filed a dependency petition on September 23, 2005, alleging that J.J. came within section 300, subdivisions (b) and (j). The petition alleged that (1) Mother suffered from a substance abuse problem which interfered with her ability to parent, (2) the parents failed to provide reasonable medical care, adequate food, and shelter, and (3) because J.J.’s half siblings were abused and neglected, there was a substantial risk J.J. would also be abused and neglected if she remained in the home. The petition was amended on October 14 with similar, though slightly changed, allegations; specifically, it added the allegation that Father had a substance abuse problem that interfered with his ability to parent.
According to the detention report, there were dead mice in the home and the children’s rooms contained dirty bed linens and clothing. Doors and gates were left open, disabled cars filled the yard, and a partially drained swimming pool was on the premises. The home contained minimal food and lacked adequate milk for J.J., who was suffering from an unattended diaper rash, an ear infection, a sore throat, a smashed finger, a cough, congestion and a fever.
At the detention hearing, the juvenile court found that the Department had established a prima facie case and ordered J.J. detained. The court ordered visitation and reunification services and ordered the parents to submit to drug testing that day.
The Department filed a jurisdiction/disposition report on October 13, 2005, which recommended removal of J.J., placement in out-of-home care, and family reunification services. The parents failed to drug test as ordered by the court. J.J. was having a difficult time adjusting to her foster care placement and showed signs of aggressive behavior. The social worker opined that it was in the best interests of the child to be with family members and identified the maternal grandparents as a placement option. A November 10 addendum report noted Mother’s positive drug test. However, Mother was beginning to engage in the dependency process. She was visiting with J.J. and agreed with the recommended reunification services.
At the jurisdiction/disposition hearing, the juvenile court sustained the allegations of the amended petition, declared J.J. to be a dependent of the juvenile court, removed her from her parents, and placed her in a confidential foster home. The court also found that the siblings needed to be together and they should be separated only as a last resort. The court approved and ordered reunification services for the parents.
On December 15, 2005, J.J. and her half siblings were placed with the maternal grandmother. However, due to the children’s behavioral problems, they were removed after less than two weeks. On December 28, J.J. and her half siblings were placed with the paternal grandparents of the half siblings. On March 6, 2006, the Department filed a section 387 supplemental petition to remove the children from the home of paternal grandparents. The children were defiant, destroyed the home, cursed at the paternal grandmother, and did not listen. Thus, they were removed and placed in a confidential foster home.
At the second detention hearing held on March 7, 2006, the court found the previous disposition with relatives had been ineffective in rehabilitating and protecting J.J.
The second jurisdiction/disposition report filed on March 23, 2006, highlighted the difficulties the grandparents experienced with the children and the reasons for the request for their removal. Both grandparents worked full time and had little time to supervise J.J., who was noncompliant, defiant, cried much of the time, and emulated the negative behaviors of her half siblings. J.J.’s foster parents noted the same type of behavior, including her difficulty in listening and the need for constant supervision. The report also noted that J.J. was diagnosed with reactive airway disease. At the March 28 hearing, J.J. was continued as a dependent of the court. Because placement with relatives was no longer appropriate, she was placed in a confidential foster home.
In May 2006, the six-month status review report was filed with recommendations of out-of-home placement and continued reunification services for Mother and Father. Neither J.J.’s behavior nor her medical condition had changed. On April 4, the foster parents had also asked that the children, preferably J.J.’s half brother, be removed from their care. The next set of foster parents reported the same behaviors. The social worker opined that if the behavior of J.J.’s half brother continued to sabotage J.J.’s placement, then he would need to be placed by himself. J.J. was described by the Department as having a probability for adoption, but she would be difficult to place because she was a member of a sibling group and the sibling group had health problems. Mother and Father were sporadically visiting J.J., and Mother had made some minimal progress with her case plan. She informed the social worker that she wanted to complete her parenting classes and counseling before she entered a substance abuse program; however, the social worked informed Mother that she needed to begin a substance abuse program immediately. According to the addendum to the six-month review report, both parents failed to drug test in May, and the Department subsequently concluded that reunification failed because the parents were unable to show their commitment to remaining drug free. Despite the parents’ poor performance, the juvenile court provided them with an additional six months of reunification services with the condition that they participate in drug court and treatment services.
The 12-month status review report filed on October 17, 2006, recommended continuing services to Mother but terminating services as to Father. Mother had given birth to another child, Kevin, in August 2006, and they were living at New House Inpatient Program for women and children. Mother wanted J.J. placed with her and planned to move to a sober living apartment upon her release. Mother’s drug counselor reported that Mother was doing very well and was motivated to succeed. Mother was working on her case plan, attending parenting classes, Narcotics Anonymous (NA) meetings, and relapse prevention. Mother’s visitation with J.J. also went well. Father, on the other hand, had not visited with J.J. since June, and he had not entered any inpatient programs. He claimed he would lose his job and home if he entered such an inpatient program. He had been terminated from drug court on September 22, 2006, and had an outstanding warrant for his arrest. As for J.J., things were improving. She had been placed with new foster parents on June 21, where she was compliant and getting along with other children. The foster parents were not interested in adopting, only fostering. J.J. was developmentally delayed with very low fine-motor functioning. She suffered from pica and reactive airway disease.
Pica is a behavior that is described as an appetite for nonfood items such as dirt, clay, chalk, baking soda, feces, ice, glue, paper, sand, soap, cornstarch, and toothpaste. Warning signs that suggest a person has pica include: repetitive consumption of these nonfood items for more than one month, child’s age or developmental stage (older than 18 to 24 months), and the behavior is not part of a cultural, ethnic, or religious practice. ( [as of November 17, 2008].)
At the 12-month review hearing on November 8, 2006, the juvenile court ordered Mother to participate in a family maintenance plan but ordered Father’s reunification services terminated. The court further authorized the placement of J.J. with Mother, who had made substantial progress on her reunification plan.
The Department filed the 18-month review report on March 7, 2007. It recommended that J.J. remain with Mother, who was residing in a sober living transitional apartment with her son, Kevin. Although Mother continued to attend drug court and her outpatient services, she began to struggle. Father had not contacted the Department since his services had been terminated. At the March 7 hearing, the court allowed J.J. to remain in Mother’s care if Mother remained in her aftercare program and submitted to random drug testing.
On March 21, 2007, the Department filed a supplemental petition under sections 342 and 387. The petition alleged that Mother had placed J.J. at risk by using illegal substances while in Mother’s care. Mother failed to participate in family maintenance services, failed to drug test as ordered by the court, and then tested positive for methamphetamine while J.J. was in her care. On March 22, J.J. was removed from Mother’s care.
On April 10, 2007, the Department filed a jurisdiction/disposition report recommending that the allegations in the supplemental petition be sustained and that no family reunification services be provided. The foster parents reported that J.J. was not adjusting well. She exhibited very negative and emotional behavior, including screaming, kicking, and violently hitting adults and her eight-month-old brother. Mother agreed to enter an 18-month inpatient treatment program. On May 24, the Department requested a continuance to consider a change of recommendation. Given Mother’s agreement to enter another program, the Department was willing to place J.J. with her and offer family maintenance services but wanted Mother to remain at the program for a longer period of time before taking such actions. The court authorized the Department to implement a change in J.J.’s placement.
At the June 18, 2007, jurisdiction/disposition hearing on the supplemental petition, the juvenile court found some of the allegations to be true, continued J.J. as a dependant of the court, and terminated Mother’s reunification services. The court found that although Mother complied with initial services ordered at detention, she did not make enough progress in alleviating the underlying reasons for J.J.’s removal. Mother was informed of the provisions of section 366.26, and a permanency planning hearing was scheduled.
On August 22, 2007, the Department filed an interim review report recommending that the parental rights of Mother and Father be terminated and that the permanent plan of adoption be implemented. Mother had entered the inpatient rehabilitation program on June 8; however, before J.J. could be placed with her (on August 28), Mother left the program on July 22 for unknown reasons. Mother’s whereabouts were unknown. Mother was pregnant again and due in December. A paternal aunt and uncle in the State of Washington (Washington) came forward for placement, and the Department initiated an Interstate Compact on the Placement of Children (ICPC). The Department opined that J.J. was adoptable.
On October 4, 2007, the Department filed its section 366.26 report requesting a termination of parental rights, adoption as the permanent plan, and a continuation of the hearing to pursue placement of the child with paternal relatives in Washington. In an addendum, the Department noted that J.J. interacted appropriately with the children in her placement; however, she also exhibited concerned behaviors such as poor impulse control and banging her head on the wall. On November 13, J.J. and her younger sibling were placed in Washington. This placement lasted less than one month, when the paternal relatives indicated they were unable to provide care for J.J. and requested her removal. The aunt was 10 weeks pregnant and on bed rest. She was having problems with her pregnancy. Also, her son was not adjusting well to having J.J. and her younger sibling placed there. She felt the placement of the children was “bad timing.”
On December 5, 2007, the court found the previous disposition had not been effective and placed J.J. in foster care. Mother agreed to waive the jurisdictional hearing, and the court found the allegations in the supplemental petition to be true.
According to the Department’s addendum reports, J.J. remained in foster care pending the location and assessment of an adoptive placement. Despite her notable behaviors and psychological problems, the social worker was still of the opinion J.J. was adoptable. J.J. was described as a pretty three-year-old who did not have any health problems. She is “an active, affectionate, content, and inquisitive toddler, with a great gusto for life. She will be a great addition to an adoptive family.” She was meeting her age-appropriate milestones without any difficulties. However, the social worker noted that J.J. suffered from posttraumatic stress disorder, had poor impulse control, trouble listening, and banged her head on the wall. In February 2008, the social worker reported that the current foster parents “remain open” to adopting J.J. and her siblings.” However, the adoption department wanted to continue seeking a home that could address J.J.’s behaviors.
The contested section 366.26 permanency planning hearing was held on February 13 and 14, 2008. Mother was present. Two social workers, Mother, and Father testified.
Father testified that he had used drugs for 14-16 years, and that he had been clean for six months. He was currently attending an outpatient treatment program. He explained his lack of visitation was due to his school schedule and transportation problems. Mother testified she had not used drugs since April 2007. She attributed her lack of visitation to the children being on vacation, the social worker being on “sick leave,” her lack of a gas card, and her lack of a vehicle.
The juvenile court found by clear and convincing evidence that J.J. would be adopted. It terminated all parental rights and set adoption as the permanent plan.
II. FINDING OF ADOPTABILITY
Both parents contend the evidence is insufficient to support the juvenile court’s finding that J.J. is adoptable. Father also claims the adoption assessment reports were deficient.
Citing In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 and In re Aaron B. (1996) 46 Cal.App.4th 843, 846, the Department argues the issue was forfeited for failure to raise it below. In response, Father claims, “When the merits are contested, a parent is not required to object to the agency’s failure to carry its burden of proof on the question of adoptability.” In our view, because the adoption assessment was the only evidence presented to the court at the section 366.26 hearing, any deficiency should have been brought to the court’s attention at that time. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) Nonetheless, we shall consider Father’s argument as further support for his claim of insufficiency of evidence.
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] ‘“‘“Clear and convincing evidence” requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]’” [Citations.]’ [Citation.] Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061.)
“The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.]” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, “the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent[s’] adoption and whether [they are] able to meet the needs of the child. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
Both parents challenge the sufficiency of the evidence to support the juvenile court’s finding of adoptability by noting: (1) J.J. was not in a concurrent home; (2) the current foster parents “‘remained open’ and were willing to be considered as an adoptive placement’”; (3) J.J. has “lifelong special needs”; (4) J.J. had had several placements, including with relatives, that did not work out because of her behavior problems; and (5) evidence of J.J.’s significant behavior issues was absent at the time of the permanency planning hearing.
Regarding J.J.’s placement, the record shows that she and her siblings were living with a foster family which had expressed a desire to adopt all of the children. The adoption department had identified other possible adoptive families and wanted to continue searching for one “to address [J.J.’s] behaviors.” While the relative placement in Washington did not work, the reason was attributed to “bad timing.” To the extent the parents argue that one family’s desire to adopt a child should not be sufficient to support a finding of adoptability because the child may become a legal orphan if the adoption fails, we disagree with such an argument. The Welfare and Institutions Code provides that if a child has not been adopted within three years of the termination of parental rights, then parental rights may be reinstated. (§ 366.26, subd. (h)(3)(C)(i)(2).) Accordingly, because statutory provisions are in place to protect children from becoming legal orphans, we are not persuaded by the argument that one family’s willingness to adopt should not be sufficient to support a finding of adoptability.
Regarding J.J.’s special needs, the families who have more recently cared for her note that she interacts appropriately with the children in her placement. She was described as a pretty child who was active, affectionate, content and inquisitive. She was meeting her age-appropriate milestones without difficulties. The absence of evidence of J.J.’s significant behavior issues at the time of the permanency planning hearing may be attributed to the fact that she was growing out of such behaviors and was adjusting. As her foster parents opined, her behaviors will reduce with stability and consistency in parenting.
Notwithstanding the above, both parents rely on In re Amelia S. (1991) 229 Cal.App.3d 1060 (Amelia) and In re Tamneisha S. (1997) 58 Cal.App.4th 798, to support their argument that the evidence is insufficient to support a finding of adoptability.
In Amelia, the adoption assessment report indicated that some of the foster parents for a set of 10 siblings who suffered from “various developmental, emotional and physical problems, some of a serious nature,” were “considering adoption.” (Amelia, supra, 229 Cal.App.3d at pp. 1062-1063.) The court stated, “This is a far cry, however, from the clear and convincing evidence required to establish the likelihood of adoption.” (Id. at p. 1065.) As discussed above, the record in the present case reveals that there was more than one prospective adoptive family committed to adopting J.J. and her siblings; however, the Department wanted time to confirm which family could best meet J.J.’s needs. The existence of prospective adoptive parents, although not determinative, is nonetheless a factor in determining whether a child is adoptable. (In re Erik P. (2002) 104 Cal.App.4th 395, 400 [“[a] prospective adoptive parent’s . . . interest in adopting is evidence that the child’s age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child”].) Amelia S. is distinguishable from the instant case because it did not involve a committed adoptive family.
Likewise, In re Tamneisha, supra, 58 Cal.App.4th 798, is distinguishable because in that case, the court upheld the juvenile court’s finding that the child was not adoptable. (Id. at p. 803.) At the time of the section 366.26 hearing, the Department had not found an adoptive home for the child after searching for 10 months, although it reported it had found a potential adoptive family who indicated an interest in the child. (In re Tamneisha, supra, at p. 807.) Here, J.J. and her siblings had been living with one of the prospective adoptive families for over two months at the time of the section 366.26 hearing.
Furthermore, although a child has a history of behavioral and psychological problems, when the social worker is aware of the child’s medical, developmental or mental problem, but believes the problems do not impede the child’s chances for adoption, the problems do not render the child unadoptable. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 523-525, overruled on other grounds In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Here, the social worker stated she believed J.J. was adoptable despite her behavior problems, many of which had subsided. Moreover, the prospective adoptive parents were aware of the child’s history of problems and had encountered them but were nevertheless willing to adopt her.
Based on the above, there was sufficient evidence to support a finding that J.J. was adoptable.
III. SIBLING RELATIONSHIP EXCEPTION
Mother contends, and Father joins in such contention, that the trial court erred in failing to find the sibling relationship exception to termination of parental rights. Section 366.26, subdivision (c)(1)(B)(v) applies if “[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 . . . as compared to the benefit of legal permanence through adoption.”
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It 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.’ [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.)
As Mother points out, from the inception of this case, the juvenile court found that J.J. and her siblings needed to be together and that separation should occur only as a last resort. Thus, J.J. lived with her half siblings, and later one of her younger siblings, for significant portions of time during the dependency. In fact, the social worker testified that it would be detrimental for J.J. and her younger sibling to be split up because they had always been together, and they were bonded to one another. However, as the Department notes, there is no evidence in the record that the Department intended to separate the siblings upon termination of parental rights. Rather, the evidence shows that the Department was working “very hard to find a home for all four of the children to keep the sibling group together.” Two separate families had been identified and had indicated a willingness to adopt the sibling set. The social worker stated that the Department was looking for other possible adoptive homes that may be able to best meet the needs of the sibling set. Thus, there is no evidence in the record that the termination of parental rights will substantially interfere with the sibling relationship.
To the extent the siblings have to be separated, the record shows there were periods of time when they were separated. During one period, the half siblings were residing with their father. There was no sibling visitation; however, it was the fault of the half siblings’ father because he did not follow through. Although J.J.’s younger sibling was born in August 2006, he did not live with J.J. until November 2006. Both children were removed from Mother’s care in March 2007. J.J. and her younger sibling were not residing with the half siblings. Given the various periods of separation, the fact that there are different tracks that each child is on, and the number of children involved, as the juvenile court observed, “I don’t think you can leap the hurdle that you need to show that the sibling bond requires not terminating parental rights at this point.”
Given the above, substantial evidence supports the juvenile court’s finding that the sibling relationship exception did not apply.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: RAMIREZ, P.J., GAUT, J.