Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Deborah DanielSuper.Ct.Nos. J209782 & J209783, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant Cristy S.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Angel G.
Ruth E. Stringer, County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
OPINION
MILLER, J.
INTRODUCTION
Cristy S. (mother) and Angel G. (father), parents of Kirsten G. (born July 2006) and Alejandro G. (born July 2005), challenge the juvenile court’s orders terminating their parental rights under Welfare and Institutions Code section 366.26. Mother contends the court erred in denying her a hearing on her section 388 modification petition and also in refusing to find applicable the beneficial relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) Father contends the court’s adoptability finding is not supported by substantial evidence. Finding no merit to any of these contentions, we affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Kirsten was three weeks old when, in August 2006, she sustained serious nonaccidental injuries while in the care of father. These injuries included a subdural hematoma, a lacerated liver, a fractured right humerus, and bruises to various parts of her body. Kirsten and her brother, Alejandro, were removed from the custody of their parents. Alejandro was detained in a confidential foster home; Kirsten was hospitalized.
Mother and father had been dating for about two years. At the time of the incident mother was staying in father’s home and father was taking care of Kirsten. Following the incident, father was arrested, taken into custody, and charged with cruelty to a child. (Pen. Code, § 273a.) Mother was also charged, but was not taken into custody. Both eventually entered guilty pleas, although only father was incarcerated as a result.
The social worker described the case as being “among the most heinous ones brought before DCS.” When she interviewed father in jail, he denied causing any of the injuries to Kirsten, “at first stat[ing] that the baby had rolled off of the bed.” When the social worker showed him pictures of Kirsten, he began to cry. Later, after retracting his initial account of what had happened, he said he did not know how the baby sustained her injuries, but “‘had a feeling’” that mother had something to do with it. Yet, he denied ever seeing mother hurt the baby. For her part, mother denied any responsibility for the injuries, insisting she should never have taken the children to father’s home as she was aware that his family “participates in drug behavior.” According to the maternal grandmother, mother had a history of being hospitalized pursuant to section 5150 as she had attempted suicide approximately three times.
Dependency petitions were filed as to both children. In addition to allegations of severe physical abuse inflicted upon Kirsten, the petitions alleged that mother failed to protect her child, that father has a substance abuse problem impairing his parental abilities, and that mother failed to provide Alejandro with a hearing aid.
At the jurisdictional hearing, the court found the allegations to be true and that the minors came within section 300, subdivisions (a), (b), (e) and (g) as to Kirsten, and subdivisions (b), (g) and (j) as to Alejandro. Father was present at the hearing, but waived his right to appear at any further proceedings. At the dispositional hearing, the court found that father was the children’s presumed father. Through his attorney, father agreed it was inappropriate for the children to visit him while he was incarcerated, but asked that he be allowed to write and have pictures sent or to send any appropriate correspondence. The court declared the children dependents of the court and removed custody from the parents. Neither parent was provided with reunification services. Father waived his right to such services and mother was denied services under section 361.5, subdivision (b)(5) and (6), the court finding this to be “a very severe case of physical abuse and severe physical harm to the child.” Mother would continue to have supervised visits and father would be permitted to send letters to the San Bernardino County Department of Children’s Services (DCS) to be held for the children’s benefit until they were old enough to understand them. The court scheduled a hearing for February 21, 2007, to implement a permanent plan pursuant to section 366.26. Pending that hearing, mother would be permitted to continue her visitation with the children.
On February 21, 2007, at the request of father’s counsel, the court continued the hearing to March 27, 2007, so that father could be transported from prison.
On February 26, 2007, mother filed a form JV-180 in which she asked the court to modify its previous order denying family reunification services. She wanted the court either to return the children to her under a family maintenance plan or to provide her with six months of reunification services and liberalized visitation. The request was summarily denied, the court indicating that the facts did not support what was requested and there was no showing that the requested change would be in the children’s best interests.
According to DCS’s report prepared for the upcoming permanency hearing, Kirsten had suffered some brain damage, the extent of which “will become known as she grows.” Kirsten had undergone a recent CAT scan, but the results had not been received. Thus, the report stated “[i]t remains unknown the extent of the delays the child may experience as a result of her abuse[, although] at this time she is pleasant and appears to interact with her caregivers.” Alejandro, who was totally deaf in one ear and had only 50 percent hearing in the other, was receiving services for his hearing problem. He was developmentally on target and apparently heard and responded to sounds. He was given a hearing aid, but would not leave it in his ear for any length of time. When he was first placed in his foster home, he would hide under tables and wince whenever someone approached him. However, “[o]nce he gained trust in his caregivers, those actions became a thing of the past and he interacts freely.” Further, “[h]e was unable to walk [at first] but is now walking, climbing and appears completely secure.”
DCS’s adoption assessment report indicated that Kirsten “has very poor muscle tone in her legs but it appears that she may be gaining strength.” She had been placed in the same home as Alejandro in mid-January. However, the prospective adoptive mother had already become acquainted with her during visits and had held the baby, “knowing that she wanted to adopt her as well as Alejandro.” According to the assessment report, the prospective adoptive parents, who have two children (ages 10 and 16) of their own, “want to give these little ones a home and want them to stay together. If they have any concerns, it is with regards [sic] to the help they will receive in financing the medical care that Kirsten may need in the future. The Adoption Assistance Program was explained to them and they will take advantage of the program to guarantee that the children receive the help they may need. They understand the legal and financial responsibilities that accompany adoption. They had been fostering children for about three years, but will not continue to foster children once the adoption is done.”
The report indicated that the children are “emotionally attached” to their prospective adoptive parents, who are eager to adopt the children, and that the children consider them parental figures. The foster mother had taken it upon herself to learn sign language to help Alejandro and to improve her communication with him. She had also followed up with Kirsten’s immunizations and medical appointments. The social worker was informed by the foster mother that Kirsten had started to say “mama” and that her leg muscles were getting stronger, making her less fragile when standing. The social worker opined, “[t]he children are doing exceptionally well in this home. This is a great home, which will meet these children’s needs while providing them love and sense of safety.”
The social worker reported that mother had not missed any of her scheduled visits and during those visits engaged well with the children. The social worker’s concern was that mother “continues to tell the foster mother that she will be getting the children back at the next court hearing . . . so she tries to be overly involved. When Kirsten had her scheduled CAT scan appointment and [mother] was to provide consent for treatment she also provided the medical staff with all of her contact information and did not allow foster mother to provide her information in order to obtain test results.”
The permanency hearing proceeded as scheduled on March 27, 2007. Mother testified that she was then having monitored visits with the children on a weekly basis, for an hour. She explained that the visits previously had been as long as three to four hours, but that had changed about three weeks earlier. She felt that the visits were positive. When she visits at the park, they play ball and she brings books to read to them. When they visit at the office, they play either with stuffed animals or inside the playhouse. She helps take care of the children during the visits if help is needed, noting that the foster mother generally feeds the children and changes their diapers before the visits begin. She attended two doctor’s visits for Kirsten and two for Alejandro. She disagreed with the social worker’s recommendation, stating that she wants the court to give her a chance to try to get them back, “so [she] can try to prove to them that [she] can be a good mother.” No affirmative evidence was presented on father’s behalf.
During closing argument, counsel for father voiced his client’s objection to termination of parental rights. Counsel for mother asked the court to refrain from terminating parental rights in that mother had maintained contact with the children since the inception of the case and that their relationship “outweighs the permanency that the children would receive in adoption.” The court rejected that argument, explaining that it had “review[ed] many of the cases that address that exception to the termination of parental rights, and it is very clear to me that the contact in this case does not come remotely near the relationship level or contact that is required . . . .” Thus, the court terminated parental rights and selected adoption as the children’s permanent plan.
DISCUSSION
A. The juvenile court did not err in denying a hearing on mother’s section 388 petition.
To justify a hearing on a section 388 petition, “[t]he parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “‘The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would support a favorable decision on the petition.’ [Citation.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
A parent is “not required to establish a probability of prevailing on [the] petition” (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414), but rather “need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) A determination as to whether a parent has made a prima facie showing entitling him or her to a hearing depends upon the facts alleged in the petition, “as well as the facts established as without dispute by the court’s own file . . . . ” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
Moreover, “[t]he petition may not be conclusory. ‘Specific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. [Citation.]” (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
Section 388 serves as an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “[It] provides a means for the court to address a legitimate change of circumstances” to afford the parent one last opportunity to reinstate reunification services prior to final resolution of custody status. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) “[S]ection 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular. [Citation.]” (In re Kimberly F., at p. 528.) It follows that to deprive a parent of this “one last opportunity” is contrary to law and a denial of due process. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1416.) We review denial of a section 388 hearing for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)
Citing Aquino v. Superior Court (1993) 21 Cal.App.4th 847 and Looney v. Superior Court (1993) 16 Cal.App.4th 521, mother insists our review is de novo because the dispositive issue is a question of law. She argues In re Angel B., supra, 97 Cal.App.4th 454 and In re Anthony W., supra, 87 Cal.App.4th 246 are incorrect insofar as they assert the standard is abuse of discretion and that their reliance on In re Jeremy W., supra, 3 Cal.App.4th 1407 is misplaced. She argues: “When deciding whether or not to grant a hearing on a section 388 petition, the juvenile court is determining whether the party has met the threshold burden of pleading and is not ‘required to make any factual determination or to become involved in any weighing process in deciding whether a prima facie case . . . exists.” In urging us to reject mother’s position, DCS asserts In re Stephanie M. (1994) 7 Cal.4th 295 “clearly held that the standard of review in section 388 cases is abuse of discretion.” In any event, we do not reach mother’s claim because we find that the juvenile court correctly denied a hearing under either standard.
In the present case, mother’s modification petition alleged the following changed circumstances: “The mother has made significant progress to address the issues which brought her family before the court. She feels that she has benefited from her counseling, parenting, domestic violence support group, classes through the San Bernardino Adult school and has undergone a psychiatric evaluation that declares mother is mentally fit to take care of her children. Mother has strong family support.” Attached was documentation demonstrating her participation in parenting classes and a domestic violence support group, as well as a report of the psychiatric evaluation to which she referred.
The petition further alleged that the requested modification would be in the children’s best interests because mother “has spent a lot of time addressing the issues that brought her before the court. Mother is consistently visiting with her children. The visits are appropriate and she engages well with her children. Mother attends many of the children’s doctor’s appointments. Mother is also seeking to obtain a restraining order against the children’s father. Mother has strong family support, housing and appropriate child care.”
The court denied a hearing on the basis that mother had failed to make a prima facie showing that the children’s best interests would be promoted by granting her request. In so doing the court did not abuse its discretion. Mother’s petition alleged no facts indicating that the children’s best interests would be served by returning them to her custody or by providing her with reunification services. “[S]ection 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G., supra, 77 Cal.App.4th at p. 807, fn. omitted.)
In denying a hearing, the court marked two boxes on mother’s form JV-180 which read: “The facts do not support what is requested,” and “The request does not show that it will be in the best interest of the child to change the order.” The court did not, however, mark the box which reads: “The request does not state new evidence or a change of circumstances.” Thus, we presume the court was satisfied that the petition was sufficient for purposes of the first prong of the statute.
A best-interests inquiry implicates such factors as “the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem,” and “the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Here, consideration of these factors supports the court’s decision.
Significantly, the initial problem leading to the dependency was the severe physical abuse inflicted upon Kirsten. In this regard, we agree with DCS that the same restrictions on providing reunification services at disposition are applicable in deciding a petition under section 388 seeking an order for reunification services in the first instance. As DCS aptly points out, services were denied to mother pursuant to section 361.5, subdivision (b)(5) and (6), which permit a court to refrain from providing reunification services where the dependency results from the infliction of severe physical harm by a parent and the court finds that it would not benefit the child to pursue reunification with that parent. Further, subdivision (c) of section 361.5 instructs the court not to order reunification services in such instance unless it finds by clear and convincing evidence that reunification is in the child’s best interest. Subdivision (c) also provides, “the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” (§ 361.5, subd. (c).) Moreover, in taking this position, DCS reminds us that “[d]ependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. One section of the dependency law may not be considered in a vacuum. It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. [Citation.]” (In re Marilyn H., supra, 5 Cal.4th at p. 307.)
While we are unaware of any published decision in which this precise position was advocated, a similar argument was made in In re Manolito L. (2001) 90 Cal.App.4th 753. There, a section 388 petition was brought by the social services agency to modify visitation which had been allowed pursuant to section 366.22, subdivision (a). Looking to that section, the juvenile court granted the petition, finding that visitation would be detrimental to the children. The reviewing court, faced with the question of whether section 366.22 applied in the context of a section 388 petition, determined “it would be anomalous to dispense with the requisite finding of detriment simply because the question of visitation is adjudicated pursuant to a petition for modification under section 388.” (In re Manolito L., at p. 760.)
Pursuant to section 366.22, subdivision (a), after terminating services and scheduling a permanency hearing, “[t]he court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child.”
The same rationale applies here. Where reunification services are denied to a parent whose child was brought into the dependency system due to severe physical harm at the hands of that parent, either directly or indirectly, with the court finding that services would not likely prevent reabuse or continued neglect of the child, a request to modify an order denying reunification services by providing for reunification services should not be granted in the absence of evidence that the services requested are likely to prevent reabuse or continued neglect of the child.
Under the circumstances presented in this case, this rationale makes sense. This is not simply a case in which reunification services were terminated and a parent seeks to have them reinstated. Rather, it is a case in which services were never provided—and for good reason. Thus, in order to establish a prima facie case for a hearing under section 388, the moving party would be required to show not only that reunification would be in the best interests of the child, but also that the services sought would likely prevent a recurrence of the circumstances that brought the child into the system. To require less would be to permit a parent who was initially denied services for a particular reason to obtain services without demonstrating that he or she has taken steps to remedy the precise problem that led to the dependency and, in essence, to eliminate the particular reason for initially denying services. However, as DCS points out, the petition contains no account of mother’s role in the abuse and no indication that mother has done anything to change the circumstances that brought Kirsten into the dependency system. Nor, as DCS asserts, has mother demonstrated she has “gained [any] practical experience or instruction in the care of special needs children, which Kirsten now is and Alejandro has always been.”
Mother insists her allegation that she addressed the issues which brought the children before the court was enough to show the requested modification may be in the children’s best interests. Not so. In conclusory fashion, mother simply states that she addressed the issues. Nothing more. For example, what did she do to become educated about child abuse? Did she have a role in the abuse? If so, what was her role? If not, why did she allow it to happen? Nor do mere allegations that visitation has been consistent, and housing and child care available, translate to a showing of best interests. Mother seems to say that just being a parent, without more, is enough to show that maintaining the parent-child relationship would be in the child’s best interests. While mother is to be commended for taking the initiative of taking parenting classes and participating in a domestic violence support group to improve her life, those activities were not enough to demonstrate that her children’s best interests would be served by providing services to her. In short, nowhere in her request is there any statement that even remotely resembles an assertion that the children’s interests would be served by granting the requested relief. Even the most liberal construction of her allegations does not rise to the level of that needed to warrant a hearing. Indeed, that mother participated in a few parenting programs has little if any weight in establishing that she had taken steps to rectify the problem that led to the dependency—or that she was even aware of the need to take such steps.
Contrary to mother’s assertion, we do not believe that DCS is advocating that mother be required to “reach back to jurisdiction and prove [DCS’s] case in order to get a hearing on her section 388 petition.” Rather, we construe DCS’s position as an assertion that mother has done nothing to demonstrate she learned from the underlying incident. For example, the psychiatric evaluation does not mention the abuse inflicted upon Kirsten or the role mother played in the abuse. Nor does mother acknowledge she played a part in the abuse. In short, we agree with DCS that mother needed to present more about what she had done to alleviate the specific problem which brought Kirsten into the system. “The requirement to petition the court for a hearing must be viewed in the context of the dependency proceedings as a whole . . . . [¶] The ‘best interests of the child’ standard is sufficiently clear. Although the specific factors a court must consider vary with each case, each child’s best interests would necessarily involve eliminating the specific factors which required placement outside the parent’s home.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891-892.)
Mother also contends the juvenile court’s erroneous denial of a hearing deprived her of her constitutional right to due process. She maintains the error was not harmless beyond a reasonable doubt in that section 388 did not function as intended as an “‘escape mechanism,’” and the denial therefore unduly eliminated her last chance to prevent termination of parental rights. Because we find the juvenile court did not abuse its discretion in denying mother a hearing on her section 388 petition, we do not reach her claim of prejudice.
B. Substantial evidence supports the juvenile court’s determination that the beneficial relationship exception did not apply.
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, “‘[f]amily preservation ceases to be of overriding concern . . . [and then] the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]’” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
However, the court may refrain from taking this drastic step if it finds a compelling reason for determining that termination would be detrimental to the child due to any one of six specified circumstances. (§ 366.26, subd. (c)(1)(A)-(F).) The parent opposing termination has the burden of showing that termination would be detrimental to the minor under one of the specified statutory exceptions. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949.) The exception relevant here is as follows: “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).)
For the so-called “benefit exception” to apply, the parent must have maintained regular visitation with the child, and the court must determine that the parent/child relationship “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, “the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348; italics added.)
We review the juvenile court’s ruling on the applicability of a section 366.26 subdivision (c)(1) exception for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at p. 576.) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered “in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order.” (Autumn H., at p. 576.)
We recognize that some courts have applied the abuse of discretion standard. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying parental benefit exception is a “quintessentially discretionary determination”].) However, “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .”’ [Citations.]” (Ibid.)
Citing In re Brandon C. (1999) 71 Cal.App.4th 1530, mother contends the benefit must be considered in the context of the limitation placed on visitation. In Brandon C., the juvenile court’s selection of a plan of legal guardianship was upheld, the Court of Appeal noting that “[t]he benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have.” (Id. at pp. 1537-1538.) There, however, “[i]t [was] undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case . . . [and] [t]he trial court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children.” (Id. at p. 1537.) Thus, although there may have been a dearth of evidence that the mother provided her sons with “‘comfort, nourishment or physical care,’” on a day-to-day basis, in light of the fact there had been consistent visitation and a close bond, the court was satisfied that a benefit would be derived by continuing the relationship. Here, in contrast, there is little, if any, evidence of a bond.
In addition, we find nothing in the record indicating that the children viewed mother as a parent. Rather, mother was, at most, only a familiar playmate. To meet the burden of proof for the section 366.26, subdivision (c)(1)(A) exception, the parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show that he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.) Moreover, even if a child loves his or her parents, the court may nonetheless terminate parental rights if doing so is in the child’s best interests. (§ 366.26, subd. (h).) That mother loves her children and that her visits with them were positive is apparent from the record. But this, without more, is not evidence sufficient to overcome the section 366.26, subdivision (c)(1)(A) hurdle.
As DCS points out, Kirsten spent only three weeks in mother’s care, during which time she suffered severe physical abuse, which drastically changed the course of her life. She was placed with her prospective adoptive parents in January 2007, and since then had improved dramatically. Similarly, Alejandro had shown marked improvement since his placement in the same home. He was also receiving special services for his hearing impairment and was learning sign language. All in all, the children were doing exceptionally well in their new home and were bonding with the prospective adoptive family. In contrast, evidence of a bond between mother and her children was lacking.
Accordingly, the juvenile court did not err in concluding that the children’s need for permanency outweighed any benefit that they might have derived from maintaining their biological connection with mother, and, therefore, the section 366.26, subdivision (c)(1)(A) exception therefore did not apply.
C. Substantial evidence supports the court’s finding that the children were adoptable.
Before a juvenile court may terminate parental rights, it must find by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “‘“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.]’ [Citation.]” (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) “In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.]” (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) “A prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).)
In the present case, the social worker found adoption to be appropriate for Kirsten and Alejandro “due to their ages and their current caretaker’s willingness to pursue legalizing the parental relationship to the children through adoption.” Upon that recommendation, the court made the requisite finding of adoptability.
Challenging the sufficiency of the evidence to support that finding, father maintains the court failed to consider “the nature and extent of Kirsten’s seizures and possible developmental delays, and of the likelihood of adoption of this sibling pair if the present adoption should fail.” In the absence of this evidence, he contends the adoptability finding was premature.
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 which is reasonable, credible, and of solid value—to support the finding. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) 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.)
Father’s argument focuses on what he surmises are potential consequences of the physical abuse inflicted upon Kirsten. That is, although Kirsten has been making marked progress and her prospective adoptive parents have made a commitment to adopt her, he maintains that insufficient data was given to the prospective adoptive parents—to which they were entitled and which DCS was obliged to obtain—to enable them to make a firm decision to adopt Kirsten to ensure that adoption will in fact take place. Quoting from DCS’s report, father points to the social worker’s comment that “‘[i]t remains unknown the extent of the delays [Kirsten] may experience as a result of her abuse.’” He also relies on events that took place shortly after Kirsten was injured, including a statement by her treating physician that she “‘has suffered some damage to her brain, but that the extent of the damage will become known as she grows.’” Further, he points to the fact that Kirsten underwent another CAT scan shortly before the permanency hearing, the results of which were unavailable at the time of the hearing.
Father’s position is flawed. There is no evidence that Kirsten’s developmental status will hamper her adoption. Indeed, there is no indication that the prospective adoptive parents are unaware of what the future might hold. Nor does the fact that Kirsten’s recent CAT scan was unavailable at the hearing mean that the court had insufficient information upon which to base an adoptability finding, that the finding was premature, or that the proposed adoption must be put on hold. The essence of father’s position is that when the extent of Kirsten’s problems becomes known, the foster parents will in all likelihood back out. This is nothing more than speculation.
Father is using the children’s frailties to create an adoptability issue when none exists. He asserts: “As they grow older and more demanding, the combination of Kirsten’s developmental delays and Alejandro[’s] hearing loss will increase the difficulty of caring for them. Should this adoptive placement fall through due to these difficulties, the siblings are not likely to find another placement.” However, as we have already said, while it is true that Kirsten’s physical situation may ultimately change, her prospective adoptive parents are aware of this possibility and are willing to adopt her in any event.
Indeed, a delay such as that suggested by father is clearly not in the child’s best interests, nor is it compatible with the legislative goal underlying the dependency scheme. If we were to adhere to father’s way of thinking, no child with any developmental impediment or delay could be freed for adoption until sufficient time had elapsed within which a determination could be made with absolute certainty as to the child’s physical, mental, and emotional health. That is not the law.
A child with a disability, whether it be physical, mental, or emotional, is not necessarily unadoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) As was recognized by the court in Sarah M., supra, 22 Cal.App.4th at page 1650, “[I]n some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.” Thus, the fact Kirsten has encountered difficulties as a result of her abuse does not mean she is unadoptable.
In re Helen W. (2007) 150 Cal.App.4th 71 (Helen W.) is factually similar to our case. There, two young children “suffered from various physical and developmental conditions that required a series of evaluations and tests during their dependency.” (Id. at p. 74.) One was developmentally disabled and had serious neurological abnormalities; the other was mildly autistic, was “significantly below average in intellectual, speech and language, and adaptive functions,” and exhibited violent behavior towards other children. (Id. at p. 75.) According to the social services agency, “even though the children have significant medical and developmental challenges, they each exhibited likeable qualities, and the foster mother was committed to adopting both of them.” (Id. at p. 76.) Nonetheless, the mother argued on appeal that the court’s adoptability finding was not supported by substantial evidence. Rejecting that argument, the appellate court explained: “Both children suffer from conditions that require time to determine the full severity of the issues they will face. But [the agency] methodically reported the children’s medical, developmental, emotional, and behavioral conditions throughout the two years of their dependency. The adoption assessment included a synopsis of the children’s conditions. And the foster mother—the prospective adoptive parent—accompanied the children to appointments, advocated for services, and was fully aware of their medical and psychological conditions. Nowhere in the statutes or case law is certainty of a child’s future medical condition required before a court can find adoptability. [Citation.]” (Id. at p. 79.)
The Helen W. court also rejected the mother’s contention that the juvenile court “impermissibly relied upon only the foster mother’s intention to adopt in finding the children adoptable.” (Helen W., supra, 150 Cal.App.4th at p. 79.) In so doing, the reviewing court pointed to evidence in the record describing the children’s appealing characteristics, including their young ages, their attractive physical appearances, and their affectionate personality traits. (Id. at p. 80.) Moreover, citing Sarah M., supra, 22 Cal.App.4th 1642, the court found that even if the juvenile court had relied solely on the willingness of the prospective adoptive parent to adopt, short of a legal impediment to adoption the willingness of the adoptive parent constituted clear and convincing evidence of adoptability. (Helen W., at p. 80.)
The issue presented in Sarah M. was whether the suitability of a particular prospective adoptive parent was relevant to a determination of adoptability and the court said it was not. The court recognized, however, that “[w]here the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent . . . .” (Sarah M., supra, 22 Cal.App.4th at p. 1650.) The court explained that the existence of a legal impediment to adoption was relevant if it “would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]” (Ibid.) In the present case, while it appears that the court’s adoptability finding was based at least in part on the existence of prospective adoptive parents who were willing to adopt and had already committed to the adoption, we are unaware of any legal impediment to that adoption.
And so it is here. Not unlike the children in Helen W., Kirsten and Alejandro are adoptable despite their physical conditions, not only because their prospective adoptive parents have made a commitment to adopt them, but also, because they are “friendly,” “outgoing,” “pleasant,” and “a delight to be around.” Moreover, the prospective adoptive parents feel that these children “are already part of the family.” Admittedly, they expressed some concern as to their financial ability to provide Kirsten with care in the future. However, they were well aware of the legal and financial responsibilities that accompany adoption and were informed by the social worker that the Adoption Assistance Program was available to them.
Nor is there merit to father’s position that the court’s adoptability finding cannot stand because it is based on nothing more than the fact that Kirsten was placed in an adoptive home along with Alejandro. As stated in Helen W., in the absence of a legal impediment to adoption, a prospective adoptive parent’s willingness and commitment to adopt constitutes clear and convincing evidence of adoptability. (Helen W., supra, 150 Cal.App.4th at p. 80.) We are unaware of any legal impediment to adoption by the children’s prospective adoptive parents.
Alluding to Helen W. and citing Sarah M., father contends: “While the law may not require certainty as to a child’s future medical condition, a child’s physical condition is a proper focus for an analysis of adoptability. The question is whether a child’s physical condition will make it difficult to find a person willing to adopt the child.” However, while a child’s physical condition may be a proper focus for an analysis of adoptability where the child is in poor health, has a physical disability, or is emotionally unstable, and an adoptive family has not been identified, that is not this case. Indeed, notwithstanding the difficulties resulting from the severe abuse inflicted upon Kirsten, the prospective adoptive parents are committed to adopting her.
Father does not challenge the adoptability finding as to Alejandro except to the extent that, in light of the fact they are a sibling pair, he might be unadoptable if Kirsten is found not to be adoptable. Because we conclude there is sufficient evidence to support the adoptability finding as to Kirsten, we need not comment on Alejandro.
Finally, with respect to DCS’s reference to the “chimera of ‘legal orphanage,’ whatever that is,” to which father takes exception, we emphasize that we do not take the concept of legal orphanage lightly. Indeed, we agree with father that “[t]he law requires clear and convincing evidence that a child is adoptable precisely because it abhors the creation of legal orphans.” However, on the record before us, any concern that either Kirsten or Alejandro is in danger of becoming a legal orphan is unfounded.
DISPOSITION
The orders terminating parental rights is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.