Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. Super. Ct. Nos. JJV064093A, JJV064093C, JJV064093B, Charlotte Wittig, Commissioner.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Carol Helding, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
M.V. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her three children. She contends she maintained a beneficial relationship with the children such that the court should have found termination would be detrimental to the children. Mother also challenges the juvenile court’s finding that the children were likely to be adopted. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In late 2008 and the first half of 2009, respondent Tulare County Health and Human Services Agency (agency) received repeated referrals that narcotics sales, substance abuse and domestic violence occurred in the residence occupied by mother, her three children, and the father of the two younger children. Then in July 2009, law enforcement served a search warrant on the adults’ home. Officers found paraphernalia for selling and distributing drugs as well as stolen property. At least part of the stolen property was found in mother’s purse. The adults were arrested. Upon the adults’ arrest, they attempted to leave the children with a man whom they did not know and who was wanted in connection with a local homicide.
Before mother was transported to jail, she handed a wallet to a detective. She stated it had “a few bills in it” and wanted to make certain it went with the children. The few bills were actually 50 bills totaling more than $1,300.
In addition, the family home was filthy and had no working toilet. The children, 7-year-old J., 23-month-old A. and 8-month-old E., were poorly dressed and had dirt caked on their bodies and clothing.
The agency detained the children in late July 2009 and initiated juvenile dependency proceedings based on these recent events. Mother denied any wrongdoing and offered excuses for the property seized and for the children’s condition. At most, she revealed the younger children’s father smoked methamphetamine the night before authorities served the search warrant.
In a jurisdictional/dispositional report, a social worker opined that the children appeared to be “very bonded” with both parents. The social worker, however, provided no foundation for her opinion. She did describe two August visits she supervised. Everyone, but especially the oldest child J., cried at the start of the first visit. During the visit, mother mentioned to J. that J. had to watch over the little ones. At the end of the first visit apparently everyone was tearful. A few days later, J. asked the social worker for phone calls with her parents. During the family’s second visit, the children seemed calmer.
In August 2009, court appointed special advocates (CASA) visited with and assessed the children. During the visit, J. said she loved her parents and missed them. The foster mother added J. sometimes cried at night because she missed her parents. J. also would ask how her parents were doing. Approximately two-year-old A. appeared very close and dependent on her older sister J. In addition, A. did not verbally communicate. The baby, E., was described as vibrant.
The juvenile court in August 2009 exercised its dependency jurisdiction (§ 300, subd. (b) [neglect]) over the children, adjudged them dependents and formally removed them from parental custody. It also granted the agency discretion to increase visitation and even place the children with mother, provided the father of the younger children was not residing in the home. In early September 2009, the agency returned the children to mother’s care.
The agency, however, redetained the children in November 2009 because the children had been left without provision for support. Authorities recently arrested mother on some outstanding warrants. Prior to her arrest, there was also evidence, which mother denied, that she planned to abscond with the children to Mexico. Mother also recently dropped out of her parenting classes. The father’s whereabouts were unknown, yet there were indications he had been residing with mother. The agency alleged these facts in a supplemental petition (§ 387) declaring that the children’s placement with mother had not protected them.
A new social worker assigned to the case, Angelita Saenz, reported to the court when the children were redetained. She repeated the earlier characterization of the children as bonded to mother without any foundation. Saenz did report that, in early December 2009, the oldest child J. said “I know I need to be good and listen and take care of my brother and sister. If I do this, I know I will be able to go home to my mom. I want to go home to my mom.” The child also stated “I miss her and I love her. My mom takes good care of us. I want to go home.” The other children were too young to make statements about their perceived needs.
Saenz also described mother as very appropriate during her visits and offered a positive assessment of mother’s prognosis. In the meantime, however, mother was a repeated “no show” for drug testing. She claimed she had been drug testing.
In late December 2009, mother submitted to the agency’s supplemental petition allegations and the court found the supplemental petition true. It also found mother made minimal progress. The court in turn removed the children once again from mother’s custody, ordered services for her, and set a review hearing in February 2010.
By the time of the February 2010 review hearing, mother had not made substantial progress. She also tested positive for methamphetamine.
In her review hearing report, Saenz described having supervised two visits in November 2009 between mother and the children. According to Saenz, mother interacted very appropriately with the children, redirected them when necessary, and played games with the children. Mother and the children were very affectionate towards each other, giving hugs and kisses at the beginning and end of the visits. Otherwise, an aide supervised the bulk of the visits; Saenz did not include the aide’s description of those visits.
Saenz again opined that the children were bonded to mother. This time, however, the social worker added “because when the visits are over, they begin to cry for her and do not want to leave her.” In addition, Saenz reported that in January 2010, J. stated “I have been good and I have been listening. I want to go home with my mom. I love my mom.”
Saenz later submitted two adoption assessments, which an adoption social worker purportedly conducted but did not sign. According to the first assessment, completed in late January 2010, the adoption social worker stated the children were a large sibling set with one older child and recommended that matching efforts be made to locate an adoptive family. The assessment added that the foster parents, with whom the children were placed in November 2009, were unwilling or unable to adopt.
The same adoption worker prepared a second assessment in early February 2010. According to the second assessment, J. asked about her mother every day and told the foster parent that mother was doing classes so she (J.) could go home. The second assessment also mentioned the younger girl A. called her foster parent “mom” and had a different term for her birth mother. In her recommendation, the adoption social worker reiterated the fact that the children were a large sibling set with one older child, but added the following:
“It appears that the two girls, J[.] in particular are very attached to their birth mother. The current care giver is willing to keep the sibling set intact with a plan [of] PPLA or LG. The birth mother has indicated she may file a 388. It does not appear that termination of parental rights at this time is in the children’s best interest.”
We assume on this record that “PPLA” is an abbreviation for planned permanent living arrangement and “L.G.” is an abbreviation for legal guardianship.
At a February 2010 hearing, the juvenile court found mother made minimal progress and terminated services. During the proceedings, the children’s attorney voiced her disagreement with the latest adoption assessment. She asked the court to find the anticipated permanent plan for the children was adoption given their ages and the closeness of the sibling group. County counsel on behalf of the agency submitted the matter. The court identified the children’s anticipated permanent plan as adoption. It also set a section 366.26 hearing to select and implement permanent plans for the children. Although the court gave mother notice of her writ remedy to challenge the court’s decision, she did not pursue writ relief.
After the court identified the children’s anticipated permanent plan as adoption, the agency located potential adoptive parents for the children. During transitional visits between them in March 2010, J. became upset and stated she did not want to be adopted. According to one of her caregivers at the time, J. also threatened to hurt or kill herself if she was moved.
The agency placed the children with their potential adoptive parents on May 10, 2010. That same day a different social worker, Roberto Chavez, was assigned to the case. Meanwhile, the potential adoptive parents followed through on the agency’s referral for counseling on J.’s behalf. In counseling, the therapist addressed the statements J. allegedly made that she was going to hurt herself. J., however, either did not remember or questioned even making those comments.
In June 2010, Chavez submitted a “366.26 WIC REPORT” to the court in which he recommended the court free the children for adoption. The same adoption social worker, who previously recommended against adoption as a permanent plan for the children, endorsed Chavez’s report and recommendation.
Each child was in good general health and appeared to be developmentally on target. As for the children’s mental and emotional status, Chavez reported the two girls had difficulties during parent-child visits, as discussed below, while he described the youngest child as a “happy and active little boy.”
Although the potential adoptive parents had parented the children for only a short time, they were clear in their desire to adopt the children together. The potential adoptive parents also expressed a commitment to learning each child’s individual needs and exhibiting an ability to successfully address those needs. The children were beginning to grow in their relationship to the potential adoptive parents. The children, A. and E. in particular, were too young to fully understand the long term implications of adoption.
Chavez also summarized mother’s one-hour, weekly visits with the children, which he had been supervising since mid-May. In Chavez’s opinion, the visits were emotionally negative experiences for J. and behaviorally negative experiences for A. The visits were of no value or benefit to E. The visits did not appear to be of any significant benefit to the minors.
At each of the visits Chavez supervised, J. was very hesitant and was opposed to attending. According to her potential adoptive mother, J. said she did not care if she visited or not. During the visits, J. consistently presented as irritated, rude and somewhat angry. She was verbally critical of mother, in particular, and recounted negative events from the past that reflected poorly on the parents’ care of the children. Mother responded calmly and confirmed J.’s anger. In social worker Chavez’s view, J.’s relationship with the parents, but especially with mother, appeared negative.
Meanwhile, A. was the most consistently aggressive during visits. She frequently looked for objects to throw randomly during the visits. The parents were unable to ameliorate A.’s behavior.
The youngest child E. was the most compliant and unaffected by the visits. He engaged with the parents, but only if they engaged with him. He was affectionate and laughing if everyone played with him. He was the first to run to the door when the worker announced the end of a visit. He would run to the arms of the potential adoptive mother. He freely referred to both mother and the potential adoptive mother as “mommy.”
A CASA assigned to the two younger children in March 2010 also reported to the court. Her June 2010 report added the following details about the children’s circumstances.
In their previous foster placement, A. would hit her siblings and often run around the house while J. would separate herself from her siblings. When their previous foster parent would call to them, the children did not appear to respond or listen. The children had noticeably changed since their new placement, in the CASA’s opinion. They had learned manners and listened and responded when their potential adoptive parent called them. The children also ate together and played together on a regular basis. In addition, A.’s behavior was not as intense as it previously had been. The potential adoptive mother stayed at home with the children while her husband worked. The children had grown accustomed to the routine in the home with set times to eat, sleep, and do other activities.
J. initially had a hard time with the change in placement, but was currently doing well. A. and E. appeared to be bonding well with the potential adoptive parents. All the children had quickly adapted and appeared comfortable.
J. called the potential adoptive mother by her first name, while A. and E. call her “mom.” The younger children appeared to trust her as they automatically sought her out for security when the CASA came to visit.
According to the CASA, J. once told her “I miss my mom, my dad, and my grandma. I miss my whole family.” The CASA did not indicate when J. made this statement. J. also apparently told the potential adoptive parents that she wanted to go back to her parents, even if the house was dirty and there was no food. The child further stated if her parents continued to fight, she would just yell at her dad.
J. was apparently referring to her stepfather.
The juvenile court eventually conducted a contested section 366.26 hearing in August 2010. The court began by taking judicial notice of the entire case file. It then heard testimony from mother and social worker Chavez.
Mother testified that before the children were placed in foster care, she was their primary caretaker and they were always in her care. Since they were placed in foster care, she attended all of her supervised visits with the children. When the children saw her, they would run to hug her and she would hug them. She would ask them how they were and what they had to eat. She always asked J. if she missed her (mother), as well as if the siblings were doing fine, and if they did not fight. Mother also asked J. what she missed the most about her (mother) or her food. Otherwise, the family would play and reminisce during their weekly visits.
The past week J. wrote mother a note as well as whispered to her stating she wanted to go home. Mother added “She and I would never ever, ever get apart from each other. She was my best friend, and I was her best friend.” Counsel did not clarify whether this was something J. said to mother or whether this was what mother felt. At the end of visits, there was kissing.
Since the children’s placement had changed, J. kept everything to herself and did not speak or would say “I don’t know.”
Following mother’s testimony, the children’s attorney made the following offer of proof. Although J. did not want to be present at the hearing, she did want the court to hear from her. She would testify she was doing well. She had been having fun and trying new things. She liked swimming and skating. She also was going to try to do gymnastics. Sometimes at night she felt sad “just because she prays for her family to be safe, and she names her brothers, her mom, her dad, and her cousins.” The juvenile court accepted the offer of proof based on the parties’ stipulation that if J. were called, that would be her testimony.
Social worker Chavez testified he had spent 16 of his 19 years in the agency assigned to adoption services. Since he had been assigned to the case in May 2010, he had supervised 10 of 12 visits between the children and the parents. Of those visits, the first two or three were very intense and negative. Since then, both he and the parents worked to make the visits more positive. Chavez wanted the visits to be a neutral, if not a positive, experience for the children so that the children would have good memories and he would be able to fully assess what the parent/child relationship was like.
J. had been occasionally resistant to visit with the parents. She came to the first two or three visits “with a very calm sense of anger.” Chavez described it as very odd. J. would ask mother if she remembered different episodes of neglect or abuse. Mother would just smile and acknowledge J. and not reprimand her. Eventually, mother said very calmly to J. “I think you are very angry at me. I think that you think that I’m not doing anything to get better, don’t you?” J. replied “yes.” Once this was acknowledged, J. stopped recounting the abuse and neglect stories and the visits became more neutral or not overly emotional.
Chavez also testified that A. threw toys at the wall and laughed throughout the first few visits he supervised. He could not tell if A. was joking or exhibiting anger but it seemed like odd and consistent behavior on her part. Of the three children, A. had changed the most since placement in the potential adoptive home. She seemed calmer and happier. Her toy-throwing behavior also stopped. She seemed to be in a better place.
E. was by far the most neutral. He was a very joyful little boy who enjoyed being wherever he was and with whomever he was.
As time passed, Chavez noticed it was growing more difficult for the younger children to separate from the potential adoptive parents at visits. This led him to believe there was a growing sense of bond between them.
None of the children’s visits with the parents ended with complaints by the children or any clinging. Any hugging or kissing at the end of visits was initiated by the parents, particularly mother. She always made sure everybody kissed one another. He could not remember J. initiating any affection. Also, there had not been a visit he observed in which any of the children had not wanted to leave. The children never asked for additional visits or more contact.
According to Chavez, he had seen “fairly dramatically [and] in a fairly short time” that the children were beginning to heal, become happier and enjoy each other’s company more. He credited the potential adoptive parents for working hard and providing consistency, nurturing and understanding.
Once again, A. demonstrated the most dramatic change. Currently she was happy all the time. That was not the case when Chavez first met her.
J. seemed more age appropriate, more like a little girl. In the beginning she had a “hard edge” to her. She seemed to be trying to act three times her age. He agreed that the hardness J. displayed was due to the number of placement changes she experienced.
J. was currently more age appropriate and childlike, in terms of her demeanor and how she reacted to adults, which Chavez attributed to the care provided by the potential adoptive parents. The potential adoptive mother was able to give J. a role model, sounding board and support to become more like a child.
In Chavez’s opinion, the younger children would take termination of visits with their parents in stride. There was no sense that the relationship was part of their day-to-day existence. He also “absolutely” believed it would be detrimental if the bond between the siblings were severed.
During closing arguments, mother’s counsel urged that terminating parental rights would be detrimental for the children. Counsel relied on mother’s testimony and previous social worker reports that the children, especially J., were bonded to mother and J. repeatedly said she missed mother. Counsel speculated J.’s recent anger was due to the fact she could not return to mother.
The juvenile court observed it was not just a question of whether there was a bond between the children and the parents. Although it was clear the parents loved the children, the court concluded there was not enough evidence to outweigh the sense of security and belonging that an adoptive home would provide the children. Having found the children were likely to be adopted, the court terminated parental rights.
DISCUSSION
I. Parent/Child Relationship
Section 366.26, subdivision (c)(1)(B) acknowledges parental rights termination may be detrimental to a dependent child under specifically designated circumstances. In particular, section 366.26, subdivision (c)(1)(B)(i) permits a finding of detriment in situations where a parent has maintained regular visitation and contact with his or her children and the children would benefit from a continued relationship with the parent. For the beneficial relationship exception to apply,
“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: ‘balance... the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1342 (Lorenzo C.).)
This statutory exception merely permits a court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The statutory presumption is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); Lorenzo C., supra, 54 Cal.App.4th at p. 1343-1344.) Furthermore, it is an opposing party’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Mother contends the juvenile court erred by rejecting her argument that terminating parental rights would be detrimental to the children. She relies upon her testimony and earlier social worker reports as proof that she and the children shared a strong, loving relationship and her visits provided security for the children in the form of an emotional anchor, which the court should have preserved. In her view, there was insufficient evidence to support the juvenile court’s decision. As discussed below, we disagree.
When a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to prove a negative, i.e. termination would not be detrimental, as mother contends, but whether the juvenile court abused its discretion in rejecting a claim that termination would be detrimental. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Thus, from the outset, mother’s argument fails because she relies upon an incorrect standard of review.
In addition, for this court to conclude the juvenile court abused its discretion, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised in only one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) In this case, it is undisputed mother maintained regular visitation with the children. Otherwise, there was conflicting evidence, as detailed above, regarding the nature and extent of her relationship with each of the children.
Mother emphasizes oft-repeated social worker statements in the early stages that there was a bond between the children and mother. Yet, she ignores the lack of supporting evidence for those statements. At most, there was evidence that the children cried at the end of some early visits. Consequently, the juvenile court properly may have attached little weight to those early statements about a bond.
Mother also ignores the testimony of Chavez, the children’s current social worker, who supervised many more visits than had the previous social workers and described a very different situation, so far as parent/child relationships were concerned. Some of those early visits were very intense and negative. J., in particular, was very angry at mother. In time, through the efforts of Chavez and the parents, the visits became neutral or not overly emotional. At the end of their visits, the children did not complain, cling, or otherwise express that they did not want to leave the parents. The children did not initiate any show of affection. They also never asked for additional visits or more contact.
Mother also relies on the contents of the second adoption assessment conducted in February 2010, which recommended against adoption. She overlooks, however, the juvenile court’s rejection of that assessment when it instead identified adoption as the anticipated permanent plan.
To the extent mother relies on her own testimony, she neglects the law that credibility issues are matters for the juvenile court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) From the outset of these proceedings, mother’s truthfulness repeatedly came into question. Under these circumstances, the juvenile court properly may have also given her testimony little weight.
In any event, the evidence before the juvenile court did not compel a finding that terminating parental rights would deprive any of the children of a substantial, positive emotional attachment such that anyone of them would be greatly harmed. (Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) Of the three children, J. had the closest relationship with mother. Yet, there was no evidence that J. so benefited from it to compel a finding that she would be greatly harmed if rights were terminated.
The other two children had at most a visiting relationship with mother, by the time of the section 366.26 hearing, and would take an end to visits in stride. Thus, the record as to the younger children virtually compelled termination.
Furthermore, there was also the undisputed evidence that it would be absolutely detrimental to separate the children. The juvenile court properly could have taken this into consideration in its balancing of each child’s interests.
For all of the reasons stated above, we conclude the juvenile court did not abuse its discretion by rejecting mother’s detriment claim.
II. Adoptability
Mother also questions the juvenile court’s finding that the children were likely to be adopted. In her view, the court’s finding was premature because: they had been in their potential adoptive home only a few months, which mother describes as a honeymoon phase; J. was just beginning therapy to address complex emotional conflicts; and there was no therapist report. Mother further cites A.’s prior aggressive behavior as an apparent cause for concern. Mother contends the court should have continued the section 366.26 hearing to assess their adjustment in their new home and obtain a status report of J.’s therapy.
The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “‘waiting in the wings.’” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Conversely, the existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. (In re A.A. (2008) 167 Cal.App.4th 1292, 1311.) A prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (Sarah M., supra, 22 Cal.App.4th at pp. 1649–1650.) Having reviewed the record as summarized above, we conclude there was substantial evidence to support the court’s adoptability finding.
There was no evidence that any of the children’s age, physical condition, and emotional state made it difficult to find a person willing to adopt them. These were young and healthy children.
It is true that J. was participating in counseling. However, there was no showing that her participation in counseling made her an unlikely candidate for adoption. The counseling was triggered apparently by her former foster mother’s claim that J. threatened harm to herself because she did not want another change of placement. However, J. did not remember ever making such a statement. Also, J.’s earlier statements strongly suggest she had blamed herself for the out of home placement. Her outbursts during visits supported a reasonable inference that J. was coming to grips with the fact that she was not responsible for the family’s breakup. Mother also would have us minimize the evidence of J.’s adjustment to and progress in the potential adoptive parents’ home.
As for her younger daughter A., mother ignores the undisputed evidence that of all the children, A. had made the most positive change and was happy all the time.
In addition, the three children did form a sibling group, which should not be separated. That fact, however, apparently did not interfere with locating an adoptive family for them.
To the extent mother argues the children’s placement was too recent for the court to make a legally sufficient adoptability finding, she fails to cite and we do not know of any authority to support her argument. While she also appears to question the potential adoptive parents’ level of commitment, she ignores social worker Chavez’s testimony crediting the children’s fairly dramatic progress to the potential adoptive parents’ efforts. They were working hard and providing consistency, nurturing and understanding to the children. On such a record, the juvenile court may well have been persuaded of not only the potential adoptive parents’ commitment to adopt the children but also the couple’s ability to meet these children’s needs.
Finally, mother’s argument that the juvenile court should have continued the section 366.26 hearing for more evidence is not persuasive. Mother has forfeited her argument by failing to raise it below. (Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) Neither she nor anyone else for that matter asked the court to exercise its discretion and continue the hearing (§ 352, subd. (a)) for more evidence. Also, her argument is based on little more than her speculation that the positive review of the children’s new placement was indicative of nothing more than a honeymoon period, which would end and cause the potential adoptive parents’ commitment to adoption to falter. We disagree.
DISPOSITION
The order terminating parental rights is affirmed.