Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. DPSQ06-6162-6169
BLEASE, Acting P. J.
Reynaldo C., Jr. and Karen B., parents of the eight minors, appeal from orders of the juvenile court denying Reynaldo C.’s petition for modification and terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395 [further undesignated statutory references are to this code].) Appellants contend substantial evidence does not support the juvenile court’s finding of adoptability as to Al. C. and Ar. C. and that the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(iii), i.e., the minor is in a residential treatment facility and is not adoptable, should have applied to Al. C. Reynaldo C. also argues the court abused its discretion in denying his petition for modification. We affirm.
Appellants do not raise issues as to K. C., Am. C. or S. C. However, facts relating to these minors are included for clarity.
This case began in June 2003 in Sacramento County where seven of the eight siblings, K. C., R. C., J. C., C. C., Am. C., Al. C. and Ar. C., ranging in age from 10 months to 10 years old, were removed from parental custody due to physical abuse, which included handcuffing K. C. to her bed after she attempted suicide and permitting the other children to hit and kick her, domestic violence and parental substance abuse. The eighth child, S. C., was adjudged a dependent in 2004, shortly after birth, but remained in appellants’ home during the dependency. Extensive reunification services were provided to address appellants’ substance abuse and parenting problems. The minors were returned to parental custody with family maintenance services and the Sacramento County juvenile court terminated the dependency in December 2005.
In April 2006, police were called to a domestic incident at a gas station and found Reynaldo C., who was extremely intoxicated, chasing the oldest child, K. C. Reynaldo C. had struck K. C. during the incident. The minors’ mother, who had been driving and was watching over the other children in the car, was catatonic, lethargic and speaking slowly. The car had no adequate room or restraints for the eight children. The minors’ mother minimized the incident. The Department of Human Services (DHS) removed the minors due to appellants’ intoxication and arrests for child endangerment and filed new petitions alleging the minors came within the provisions of section 300.
The court sustained the petitions and continued the minors’ placement in foster care. After the jurisdiction hearing, both parents participated in psychological evaluations which concluded each had a personality disorder which rendered them unable to benefit from reunification services. One evaluation noted Reynaldo C. continued to physically abuse his children despite anger management and parenting classes. At the disposition hearing in October 2006, the court denied services to appellants pursuant to section 361.5, subdivisions (b)(2) and (b)(13).
In February 2007, Reynaldo C. filed a petition for modification (§ 388) seeking return of the minors based upon his participation in services without DHS assistance.
The assessment for the section 366.26 hearing, filed in April 2007, stated the minors were generally healthy and developmentally on track with the exception of Al. C. who had some delays. The assessment recommended identifying adoption as the permanent plan and continuing the case for homefinding. An addendum in June 2007 updated information on the placements and behavioral problems of R. C., Am. C and Al. C. A second addendum in July 2007 informed the court the minors were currently stable in their placements. A third addendum stated that Am. C. had been moved to K. C.’s placement and S. C. had been moved to a placement with appellants’ ninth child, who was also in foster care. A fourth addendum, filed in October 2007, stated that the state Department of Social Services assessed all eight minors as adoptable. K. C., Ar. C., and S. C. were in adoptive placements and Al. C.’s parents were interested in adoption despite his history of aggression. Al. C. had a partial hearing loss and had a heart murmur. All the minors were reacting negatively to continuing visits with appellants and appellants had been inappropriate in visits. Due to negative reactions, Al. C. no longer visited with appellants and even the minor’s visits with siblings were difficult. A final addendum in January 2008 recommended termination of parental rights as to all eight children, although Al. C. had been placed in a residential treatment facility due to severe behavioral problems. Visits continued to cause behavioral and emotional problems for the minors, particularly Ar. C., who had to re-enter therapy to deal with them. The minors were also being traumatized by the extended court proceedings.
The hearing on the petition for modification and the selection of permanent plans for the minors commenced April 1, 2008. At the hearing, various service providers testified that the parents had participated in services after the minors’ redetention. The parents attended parenting classes; completed a substance abuse treatment program; submitted to drug tests, which were negative; and were involved in both individual and couples’ counseling. Reynaldo C.’s counselor believed he had changed, noting he was no longer drinking, partly due to health concerns, and, as a result, there had been no domestic violence. The counselor did not see that either parent displayed the personality disorders diagnosed in the prior psychological examinations. Three of the minors, R. C., J. C. and C. C. testified they wanted to return home and believed their parents had changed. R. C. and J. C. were over 12 years old and C. C. was nearly 12 years old.
Dr. Wuehler, who had evaluated both parents, described the personality disorders as learned behavior which is not susceptible to being cured although it may ease with age. Dr. Wuehler had reevaluated petitioner in August 2007 and was of the opinion he was making progress in his services, but was not asked at that time about returning the minors to his care. In Dr. Wuehler’s opinion both in 2006 and at the time of the hearing, it would be damaging to the minors to return them to parental custody despite Reynaldo C.’s progress since the 2006 evaluation.
Appellant testified about the services he participated in and his commitment to sobriety in response to a medical condition. He also discussed his supervised visits with the minors. Karen B. also testified about the services she had attended.
The minors’ social worker testified she was aware appellants were doing services but based her recommendations on appellants’ historical inability to apply services or benefit from them. The social worker felt that Karen B. had made no progress because Karen B. had no real comprehension of the situation and did not accept responsibility for it, she simply wanted to have more children. The social worker testified that the basic pattern of neglect and abuse would eventually recur. The social worker stated that, despite years of services, the mother recently made statements which showed her total lack of insight into what the minors had suffered from poor parenting. The social worker reviewed the current status of each child. K. C. was likely to be adopted in the current placement and was doing well there. R. C., when first removed, was introverted and depressed but was now quite different in his current placement and was likely to be adopted. J. C. initially had a lot of behavioral problems but had improved in foster care. The social worker believed an adoptive home could be found for J. C. but, if not, guardianship was a possible alternative. C. C. vacillated about returning home, was very happy in the current placement and was likely to be adopted when a home was found. Am. C. had not been able to get over past trauma and had multiple placements due to behavioral issues. However, there had been some improvement since Am. C. was placed in the same home as K. C., as the minor showed improved self-esteem and greater focus on the present. The social worker testified Am. C. was likely to be adopted. Al. C. had a hearing loss and behavioral problems including sexualized behavior and was in a level 14 diagnostic facility after a series of foster placements. Al. C. is doing better in the facility, with a decrease in medication and improved behavior and stability. Although Al. C. would need a specially trained home, the social worker testified that adoptions has found homes for children with similar issues and concluded he was adoptable. Ar. C. initially had significant behavior problems and possible Fetal Alcohol Syndrome. Although the current foster family was initially interested in adoption, they eventually gave notice for Ar. C.’s removal due to the two year delay in termination of parental rights, however Ar. C. remained adoptable.
At the conclusion of the testimony on April 10, 2008, the court denied the petition for modification, finding appellants had made progress but that it was not in the best interests of the minors to modify the court orders. At a subsequent hearing, the court denied reconsideration of the petition for modification, ruled that returning the minors would result in damage to them, found R. C., J. C, and C. C were not adoptable because they were old enough to express an opinion and had testified they did not want to have parental rights terminated. However, the court found the other five minors were likely to be adopted and terminated parental rights as to them.
DISCUSSION
I
Appellant Reynaldo C. contends it was an abuse of discretion to deny the petition for modification as to R. C., J. C., C. C., Al. C. and Ar. C. because he established changed circumstances and the order was in the minors’ best interests since three of the minors wanted to return home and the two who were not in stable placements would do better at home.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388 provides, in part: “(a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . . [¶] . . . (d) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, termination of jurisdiction,. . . the court shall order that hearing be held . . . .”
The juvenile court found that, although appellants had made progress, returning the minors home was not in their best interests. The minors needed permanence and stability but they also needed homes that were safe and did not expose them to further abuse and neglect. There was evidence that, without intervention either by DHS or another county’s welfare agency, appellants would return to the behavior which had led to past removals and had seriously traumatized the minors. Both the social worker and Dr. Wuehler testified that returning the minors would be dangerous to them.
The fact that three of the minors wanted to return home did not mean that it would be safe or in their best interests for them to do so. The minors’ wish to return was based, in part, on their beliefs that appellants had changed. J.C. believed things would be different because K. C., who appellants blamed for the current dependency, would not be there and because appellants seemed to be taking parental responsibility in supervised visits. R. C. also believed appellants had changed and were taking responsibility for being parents and thought that Reynaldo C. would not get drunk again. However, the juvenile court was not required to accept the minors’ beliefs in the face of contrary evidence, appellants’ history and the need to protect the minors from further abuse.
It is true that Al. C. and Ar. C. were not yet in stable placements. However, as to Al. C., this was the direct result of the abuse and neglect suffered in appellant’s custody and the degree of trauma which the minor had to overcome. The only way Al. C. had a chance to stabilize was in a placement where trained, caring individuals could set limits and create a safe atmosphere. The evidence showed that this was occurring and Al. C. had improved while in the diagnostic facility although he still could not tolerate even sibling visits. Ar. C.’s current lack of stability was a direct result of the extended proceedings, not any behavioral problems.
The juvenile court did not abuse its discretion in denying the petition for modification. Indeed, granting the petition would have further traumatized and destabilized minors who desperately needed the permanence and stability available in a permanent plan.
II
Appellants contend there was insufficient evidence the minors Al. C. and Ar. C. were likely to be adopted within a reasonable time.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
“If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1).)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “[T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
Al. C. had a difficult set of behaviors which led to a series of failed placements and the current residential diagnostic placement. However, the behavioral problems were beginning to resolve and the minor had been in at least one placement interested in adoption. Moreover, the state Department of Social Services assessed Al. C. as adoptable and the social worker testified homes had been found for children with problems like his in the past.
Ar. C. initially had behavior problems when placed. The problems had resurfaced when the court proceedings delayed permanency and continued to expose her to appellants in visitation. However, she was young, healthy and developmentally on target. The only reason the foster family decided to have the minor removed was the extended delay in terminating parental rights. Ar. C. was assessed as adoptable by both the social worker and the state Department of Social Services.
While Al. C.’s characteristics presented barriers to adoption, the evidence before the court was that similar children had found adoptive homes and the state agency believed a home could be found for Al. C. The circumstances of Ar. C.’s placement change did not make her less adoptable. Substantial evidence supported the juvenile court’s finding that both minors were likely to be adopted in a reasonable time.
III
Appellants argue that Al. C. came within the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(iii) because the minor was in a residential treatment facility and not adoptable.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’ If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, citations omitted.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
One of the circumstances in which termination of parental rights would be detrimental to the minor is: “The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.” (§ 366.26, subd. (c)(1)(B)(iii).)
Appellants are unable to establish the factual basis for this exception to termination because, as we have seen, the juvenile court’s finding that the minor was likely to be adopted was supported by substantial evidence. Thus, one of the key conditions for application of the subdivision did not exist and the court could not employ it to avoid termination of parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: HULL, J., ROBIE, J.