Opinion
C042906.
7-22-2003
In re K.H., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. G.H., Defendant and Appellant.
G.H. (appellant), the father of the minor, appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant makes several claims of alleged error. We disagree with each of those claims and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On October 31, 2000, the Sacramento County Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the seven-year-old minor, who lived with appellant. That petition alleged in part that the minor was at a substantial risk of suffering serious physical harm because appellant struck the minor and the minors sibling with a cane and a belt. An amended petition filed on June 4, 2001, alleged in part that the minors sibling sustained a fractured arm after appellant grabbed and twisted it. The minor was detained.
Appellant was charged with child endangerment in connection with other injuries suffered by the minors sibling. In November 2001 appellant entered a plea of no contest to child endangerment and was placed on probation.
Appellant denied any physical abuse. However, appellant admitted the past use of corporal punishment, imposed with his hand. Moreover, under further questioning, appellant acknowledged the occasional use of a belt in the past. Although the minor told the social worker that appellant had whipped her with a cane, a belt, and his hand, she was not afraid of appellant and wanted to visit with him.
On July 19, 2001, the juvenile court sustained the amended petition and adjudged the minor a dependent child. The court also ordered DHHS to provide appellant with reunification services. Appellant was granted supervised visits with the minor.
The minor, who had been in six different foster homes, required counseling for emotional problems. However, she was doing better and was "emotionally connected" to her sibling, with whom she was placed.
Appellants counselor described appellants relationship with the minor as "very involved, positive." However, appellant continued to deny the allegations of physical abuse and appeared to be "avoiding confronting the issues in therapy by bringing his significant other with him to sessions." The therapist believed appellant required additional counseling. Moreover, appellant had failed to maintain a regular pattern of visitation with the minor.
The minor adjusted well in her then-current foster home placement and was in good health. Moreover, with the exception of a "minimal cognitive deficiency," the minor appeared to be developmentally on track. Weekly visits with appellant went well for the minor. The minor continued to enjoy a "strong bond" with her sibling.
In a May 2002 report from the court appointed special advocate (CASA), the CASA reported the minor had stated in April that she wanted to live with appellant, but in May she stated she wanted to live with her sibling at the Georgia residence of an aunt. According to the CASA, "as of right now, [the minor] wants to go live in Georgia . . ., but then she feels . . . guilty if she does not stay with her father."
On May 16, 2002, the juvenile court terminated appellants reunification services. The court found it would be beneficial for the minor and her sibling to maintain contact with each other. Adopting recommendations made by DHHS, the court also found it was unlikely the minor was adoptable and it would be detrimental to the minor to terminate parental rights.
In July 2002 the minor was placed in Georgia with her sibling at the home of an aunt. The social worker now recommended adoption as the appropriate permanent plan for the minor. According to the social worker, the minor was in good health and adjusting well in her placement. Other than in mathematics, the minor was doing well in school. Moreover, the minor had "almost stopped having temper tantrums."
At the December 12, 2002, section 366.26 hearing, counsel for appellant argued to the juvenile court that terminating parental rights would be detrimental to the minor because of the significant relationship that existed between the minor and appellant. Counsel for the minor supported the recommendation to terminate parental rights. At the conclusion of the hearing, the court found it likely the minor would be adopted and also found termination of parental rights would not be detrimental to the minor. The court stated it had "considered the wishes of the [minor] as expressed by her counsel" and was acting in the best interests of the minor. The court then terminated appellants parental rights.
DISCUSSION
I
Appellant contends the finding by the juvenile court that the minor was adoptable is not supported by substantial evidence. In support of his claim, appellant emphasizes the minors behavioral problems and other difficulties, the unlikely prospect that another adoptive home could be found if necessary, the minors unsuccessful previous placements, and the minors age and the fact that she is so closely attached to a sibling.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence — that is, evidence that 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, 171 Cal. Rptr. 637, 623 P.2d 198; In re Jason L. (1990) 222 Cal. App. 3d 1206, 1214, 272 Cal. Rptr. 316 (Jason L.).) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706;Jason L., supra, 222 Cal. App. 3d at p. 1214; In re Steve W. (1990) 217 Cal. App. 3d 10, 16, 265 Cal. Rptr. 650.)
The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal. App. 3d 326, 333, 258 Cal. Rptr. 448.) An important aspect of this goal "is to provide children with stable, permanent homes." (In re Heather P. (1989) 209 Cal. App. 3d 886, 890, 257 Cal. Rptr. 545.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal. App. 3d 754, 760-762, 225 Cal. Rptr. 460.)
The issue of adoptability "focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
The record in this case reflects the minor was in good health. Moreover, she was performing well in school and adjusting positively to the placement with her aunt. Although she expressed conflicting feelings, the minor had told her CASA that she wanted to live in Georgia with her sibling and her aunt. Based upon this evidence, the juvenile court reasonably could find, as it did, that although the record reflects a history of problematic placements, the minor was likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
The record reflects that the problems with the placements centered primarily on issues with the foster parents rather than difficulties with the minor.
The cases cited by appellant do not compel a different conclusion. For example, In re Amelia S. (1991) 229 Cal. App. 3d 1060, 280 Cal. Rptr. 503 involved 10 brothers and sisters described as "hard to place." (Id. at p. 1063.) In this case, however, the evidence suggested the minor had the capacity to bond with adult figures and wanted to become part of a family unit. Although the minor had been with her aunt for only a short period of time, she had adjusted well in past placements and the prospects for success in the aunts home appeared favorable. In any event, even failing to identify another adoptive home does not preclude a finding that the minor was likely to be adopted. (Sarah M., supra, 22 Cal.App.4th at p. 1649.) And the possibility that there might be special issues arising from the minors age, placement history, and personality also did not foreclose a finding of adoptability. (Cf. In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225 (Jennilee T.).)
In In re Jayson T. (2002) 97 Cal.App.4th 75, there was evidence the adoptability finding was problematical even though a prospective adoptive home had been located; the placement later failed. (Id. at pp. 77, 82-83, 90.) Here, the minor was in a prospective adoptive placement and was doing well in that placement. And, as we have suggested, the possibility the minor might have some future developmental difficulties did not foreclose a finding of adoptability. (Jennilee T., supra, 3 Cal.App.4th at pp. 224-225.)
The minor in In re Jeremy S. (2001) 89 Cal.App.4th 514, also cited by appellant, had sufficient positive characteristics that he was generally adoptable. (Id. at p. 525.) The record suggests the minor here was similarly situated. She interacted well with adults, was in good health, and her behavioral problems had subsided.
Evidence of prospective adoptive parents willing to adopt the minor — evidence supported by the observations of professionals in this case — supports a finding of likely adoptability. The emphasis by appellant on the minors difficulties and the recency of the minors placement, and his suggestion that perhaps another family could not be located for the minor if need be, amount to nothing more than sheer speculation. The record suggests DHHS was optimistic that the prospective adoptive family would be successful. The opportunity of appellant to make his case was at the section 366.26 hearing, not on appeal in the absence of any evidence.
We reject appellants suggestion that the minor was a "difficult to place child" because of her age, sibling group membership, and because allegedly she had behavior problems. By statute, a child is "difficult to place" only if no adoptive parent exists for the child, which is not the case here. ( § 366.26, subd. (c)(3).)
In sum, substantial evidence supports the juvenile courts determination that the minor was likely to be adopted. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
II
Appellant claims the order terminating parental rights must be reversed because the juvenile court failed to consider the wishes of the minor. Appellant also argues that counsel for the minor failed to advise the court of the wishes of the minor. According to appellant, as there was little information in the record reflecting the minors feelings, the court had no way of ascertaining the wishes of the minor. Appellant emphasizes the importance of the courts obtaining such information in light of the fact that the minor was an older child who loved appellant.
It is true that, pursuant to subdivision (h) of section 366.26, the juvenile court must "consider the wishes of the child." However, as that statute also provides, the court must "act in the best interests of the child." In performing its duties, the court should evaluate the reports by the social workers and others, any documents submitted by the parties, and testimony adduced at the hearings. However, the court is not required to hear testimony by minors. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820 (Amanda D.).) Moreover, for very young minors, it is likely ascertainment of their wishes will be problematical.
In this case, the record contains ample evidence of the wishes of the minor. Much of that evidence is found in the May 2002 CASA report. Although the report prepared for the section 366.26 hearing contains no direct evidence of the minors wishes, appellant does not allege error based on a lack of timely information, nor did he make such a claim in the juvenile court.
We presume the juvenile court read and considered all of the evidence before it, including the CASA report. (Evid. Code, § 664.) As the report noted, the minor had conflicting feelings about where she wanted to live. She did not want to "betray" appellant but also expressed the desire to go to Georgia in order to maintain her bond with her sibling.
Appellants reliance on In re Julian L. (1998) 67 Cal.App.4th 204 is misplaced. There, the record contained no evidence of the minors feelings toward his parents or of his thoughts about his living situation. (Id. at p. 209.) Here, by contrast, the record reflects that despite some expression of conflicting loyalties, the minor had indicated she wished to live in Georgia with her sibling and was happy there.
Counsel for the minor is charged by statute with the duty to represent the interests of the minor by making an investigation of the facts and circumstances surrounding the case. Moreover, "in any case in which the child is four years of age or older, counsel shall interview the child to determine the childs wishes and to assess the childs well-being, and shall advise the court of the childs wishes." ( § 317, subd. (e).)
Appellant asserts that counsel for the minor failed to advise the juvenile court of the wishes of the minor. In essence, appellants argument appears to be that the minors counsel rendered the minor ineffective assistance. It is doubtful that appellant has standing to raise a claim of ineffective assistance on behalf of the minor. (Cf. In re Frank L. (2000) 81 Cal.App.4th 700, 703.) More importantly, any lapse on counsels part in advising the court of the minors wishes was rendered harmless by the ample evidence of those wishes set forth in the record. Appellant did not inquire during the hearing, but there is no reason to believe the advice offered by the minors counsel would have differed from the evidence of the minors wishes received from other sources.
In sum, we conclude the record does not support the claim by appellant that the juvenile court failed to consider the wishes of the minor, and we reject appellants claim of ineffective assistance.
III
Relying on one of the statutory exceptions to adoption, appellant contends the juvenile court abused its discretion by terminating his parental rights. According to appellant, he met his burden of demonstrating the existence of a beneficial relationship with the minor, and the record shows the minor shared a significant bond with appellant. Appellant also argues that severance of his relationship with the minor would "greatly harm" the minor.
"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. [Citation.] [Citation.] 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.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The benefit to the child must promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances 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 parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) "There is no requirement that an absence of benefit from continuing the relationship be proved as an element of termination." (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the "benefit from continuing the relationship" contemplated by the statute. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M. ); In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
In this case, it is indisputable that a significant attachment existed between the minor and appellant. On the other hand, the record also reflects appellant did not always maintain a regular pattern of visitation with the minor. Moreover, although he had completed parenting classes and participated in counseling, appellant steadfastly denied responsibility for the dependency and appeared to be avoiding therapy issues. According to the social worker, appellant did not appear to understand the seriousness of the dependency proceedings.
Section 366.26 requires both a showing of regular contact and a separate showing the child actually would benefit from continuing the relationship. Autumn H., supra, 27 Cal.App.4th 567 interprets the statutory exception to involve a balancing test, and both Autumn H. and Beatrice M., supra, 29 Cal.App.4th 1411 posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellants suggestion the minor would benefit from continuing her relationship with appellant in part because of the positive interactions they enjoyed. (Cf.Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
Appellant suggests the record establishes the existence of a beneficial relationship between the minor and appellant based on his appropriate visits with her and the fact that she had spent most of her life in appellants custody.
The juvenile court was entitled to conclude to the contrary. Evidence of a significant attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to her. ( § 366.26, subd. (c)(1)(A).) Here, the evidence suggested the most critical needs of the minor were for stability and placement with her sibling. Moreover, the record shows the minor was ambivalent about living with appellant. In the meantime, the minor was bonding with her aunt. She was happy in that placement and her needs were being met.
In In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C. ), the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held substantial evidence supported the juvenile courts conclusion that terminating parental rights would be detrimental to the minors since their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534, 1537, 1538.)
Brandon C., supra, 71 Cal.App.4th 1530 is distinguishable from the proceedings here. The Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast and contrary to appellants claim, the record supports the juvenile courts implied conclusion there would not be sufficient benefit to the minor if the relationship with appellant were continued. As the record suggests, the minor had a great need for stability and security, which only adoption could afford.
Appellant emphasizes that he maintained a significant parent-child relationship with the minor and suggests continuation of that relationship was consistent with the minors need for stability. We disagree that those circumstances are sufficient for the exception to apply here. In re Casey D. (1999) 70 Cal.App.4th 38 (Casey D.) found the absence of an "exceptional case" even as it acknowledged the relationship between the child and parent was "beneficial"; accordingly, the Court of Appeal inCasey D. affirmed the order terminating parental rights. (Id. at pp. 51, 52, 54.) However, the court inCasey D. did recognize the possibility of a beneficial relationship existing despite the absence of daily contact between parent and child. (Id. at p. 51.)
Here, the issue is as follows: In light of the minors adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefit the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts implied answer in the negative.
After it became apparent appellant would not reunify with the minor, the juvenile court had to find an "exceptional situation existed to forego adoption." (Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined impliedly that the minor would not benefit from continuing her relationship with appellant to such a degree that termination of parental rights would be detrimental to her. Appellant had the burden to demonstrate the statutory exception applied. We conclude appellant failed to make such a showing. Therefore, the court did not err in terminating appellants parental rights. (Amanda D., supra, 55 Cal.App.4th at p. 821.)
DISPOSITION
The order terminating appellants parental rights is affirmed.
We concur: NICHOLSON, Acting 21 P.J., KOLKEY, J.