Opinion
E046593 E046992
4-28-2009
In re L.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN and FAMILY SERVICES, Plaintiff and Respondent, v. D. F., Defendant and Appellant. In re L.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. L.C. et al., Defendants and Appellants.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant D.F. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant L.C. Ruth E. Stringer, County Counsel, and P. Joanne Fenton and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent. Neil R. Trop, under appointment by the Court of Appeal, for Minors.
Not to be Published in Official Reports
I. INTRODUCTION
D.F. (Mother) is the mother of six dependent children. She appeals from an order denying her Welfare and Institutions Code section 388 petition, in which she sought additional reunification services and liberalized visitation with her children (case No. E046593). She separately appeals from a further order terminating parental rights and placing each of her six children for adoption (case No. E046992). L.C., the father of Mothers youngest child, L., appeals solely from the order terminating parental rights to L. and placing L. for adoption (case No. E046992). No other persons are parties to these appeals.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Case No. E046593, in which Mother appeals from the section 388 orders, and case No. E046992, in which Mother and L.C. appeal from the section 366.26 orders, have been consolidated for purposes of briefing, oral argument, and decision. Case No. E046593 has been designated the master file.
Regarding her section 388 petition, Mother claims the juvenile court violated her due process rights in refusing to hold a "full evidentiary" hearing or receive live testimony on her petition, and abused its discretion in denying the petition on its merits. Regarding the section 366.26 orders, Mother claims: (1) the court violated her due process rights in refusing to allow her to further cross-examine the adoptions social worker concerning L.s adoptability; (2) there was insufficient evidence L. was adoptable; and (3) the court erroneously concluded that the parental benefit exception to the adoption preference did not apply to any of the six children. In his appeal from the section 366.26 orders, L.C. claims there was insufficient evidence L. was either "generally" or "specifically" adoptable. Mother and L.C. join each others claims. We find no error and affirm the orders.
II. FACTS AND PROCEDURAL HISTORY
L., the youngest of Mothers six children, was born in May 2007 at only 29 weeks gestation, weighing only three pounds one ounce. Mother and L. tested positive for amphetamines at the time of L.s birth, and Mother had no prenatal care. L. suffered from major disabilities and was hospitalized in intensive care. When L. was only two weeks old, he had a blood transfusion and a shunt was placed in his head to drain excess fluid (hydrocephaly). Mother did not regularly visit L. at the hospital, appeared not to understand the seriousness of his health problems, and missed several appointments designed to train her to care for L.s special needs.
Mothers five older children were living with Mother when L. was born. Her twin boys, J.V. and I.V., were just over one year old. Her only daughter, J.F., was age two, and her oldest boys, J.G. and M.G, were ages four and five, respectively. Like L., the twins J.V. and I.V. were born at 29 weeks gestation, suffered from major disabilities, and tested positive for methamphetamine at the time of their birth in May 2006. As with L., Mother failed to follow through with medical care and appointments for the twins, including appointments at Inland Regional Center. J.G. also suffered from major disabilities and tested positive for methamphetamine at the time of his birth in 2003. J.G. was receiving services at Inland Regional Center to address his developmental delays. Of Mothers six children, only J.F. and M.G. did not suffer from disabilities; however, M.G. appeared to be parentified.
In June 2007, Mothers home was dirty and cluttered, with numerous flies and no screens on the doors or windows. In July 2007, Mother admitted using methamphetamine for the previous eight years. On July 17, she refused to drug test because the test would be positive for methamphetamine, and she feared the test would be used to remove her older children from her care. She also refused to allow the staff at Central Valley Recovery Center to confirm her claim that she had made an intake appointment. She also claimed she had not visited L. in the hospital because she had no transportation or child care for her older children. Mother identified L.C. as the father of L. and three other men as the fathers of her five older children. L.C. was in violation of parole and a warrant was out for his arrest. The other three fathers were in local custody or prison.
San Bernardino County Children and Family Services (CFS) initially recommended maintaining the five older children in Mothers care pursuant to a family maintenance plan while detaining L. in CFS custody, but later changed its recommendation to removing all six children from Mothers care after minors counsel objected and set a contested detention hearing. At a July 18, 2007, detention hearing, the juvenile court ordered all six children removed from Mothers care. Mother was to receive no fewer than two visits each week with the children. L. was placed in a foster home for medically fragile children, and the older children were placed with various relatives.
In September 2007, Mother submitted to the juvenile courts jurisdiction based on allegations her substance abuse interfered with her ability to parent and she was unable to care for her children who had special needs. Mother was granted six months reunification services. Her case plan included general counseling, medical training to learn how to care for L.s special needs, a parenting program, an outpatient or inpatient drug program, random drug testing, and 12-step meetings. Her supervised visitation was continued.
During the six-month reunification period, Mother barely attempted to participate in her case plan and failed to stay in contact with the social worker. She left an inpatient drug program after only three days, twice dropped out of a perinatal program, failed to complete an outpatient program, and failed to drug test. She did not participate in her parenting program or in general counseling. She began her medical training to meet L.s special needs but did not complete the training. Relatives reported Mother had been arrested several times for shoplifting and had stolen merchandise from a family friend.
Near the beginning of the six-month reunification period, Mother was "very consistent" in visiting the children, but later visited them only sporadically. She did not visit L. for over one month. She frequently spoke with M.G. on the telephone, but often broke promises to visit him. She told relative caretakers she was unable to visit because she had no gas money, although she had been given gas scrip. When she did visit, Mother engaged well with the children and the children enjoyed the visits.
On April 3, 2008, the court terminated Mothers services and set a section 366.26 hearing for the children. Around the same time, Mother began consistently visiting with all of the children. Earlier, in February 2008, she enrolled in a six-month outpatient perinatal drug treatment program and successfully completed the program on August 29. Based largely on her newly-found sobriety, she filed a section 388 petition on August 14, seeking reinstatement of her services and liberalized visitation, with the goal of returning the children to her care. The court denied Mothers petition at a hearing on September 2. At the section 366.26 hearings on September 8 and October 29, 2008, the court terminated parental rights and placed all six children for adoption.
Mother filed a notice of intention to file a writ petition challenging the order terminating her services. The case was dismissed after Mothers counsel affirmed there were no legal or factual issues upon which the writ petition could be based.
III. DISCUSSION
A. The Juvenile Court Properly Refused to Receive Live Testimony at the Hearing on Mothers Section 388 Petition
Mother claims the juvenile court violated her procedural due process rights and abused its discretion in refusing to hold an "evidentiary hearing" on her section 388 petition—that is, in refusing to allow her to present live testimony from herself and her substance abuse counselor, Daniel Peters, at the hearing on her petition. We conclude that the court neither violated Mothers due process rights nor abused its discretion in refusing to receive the live testimony Mother proffered.
1. Background
Mother filed her section 388 petition on August 14, 2008, on Judicial Council of California form JV-180 (form JV-180). She sought reinstatement of her reunification services, which the court had terminated on April 3, 2008, and liberalized visitation with all six children, with the goal of returning the children to her care. She attached her own declaration, in which she claimed she had entered a six-month outpatient perinatal drug and alcohol treatment program on February 22, 2008. She was scheduled to complete the program on August 29. She was participating in weekly group sessions and Narcotics Anonymous meetings and had a sponsor. She had had seven random drug tests, all of which were negative. The dates of the random drug tests were not provided. Mother attached three letters from counselors and others from her outpatient program, affirming Mother was making satisfactory progress.
Mother had been regularly visiting all six children. The five older children were excited to see her during visits and often cried when the visits ended. The three oldest children, M.G., J.G., and J.F., often told her they wanted to return home with her. She was visiting L. in his medically fragile foster home twice each week for two hours. She had learned to detect shunt failure and seizure activity in L., how to feed him, how to administer his medication, and how to exercise him. She had also attended all of J.G.s medical appointments. Mother did not specifically mention the twins, I.V. and J.V., or whether she had learned to care for their medical needs. Mother claimed she intended to seek job training, employment, and low income housing services.
The juvenile court immediately set "a hearing" on the petition by checking box 13a. on form JV-180, on the same day the petition was filed. On August 15, the day after the petition was filed, CFS filed an addendum report in anticipation of the pending section 366.26 hearings, in which it continued to recommend termination of Mothers parental rights and placement of all six children for adoption. M.G. and J.G. were continuing to reside with their paternal grandparents, and J.F. was continuing to reside with the maternal grandmother. The twins were in an adoptive foster home, and L. was still in his group foster home for medically fragile children. The report included visitation logs indicating Mother had been regularly visiting L. and the other children.
On August 25, social worker Kari DeMayo (SW DeMayo) prepared a section 366.26 report which included a response to Mothers petition. The social worker reported Mother was still using drugs, engaging in criminal activity, and moving from home to home at the time her services were terminated on April 3; thus, she claimed Mother had only been sober for four months. Around the time Mothers services were terminated, the maternal grandmother allowed Mother to move into her home and began assisting Mother with completing her drug program and visiting the children. SW DeMayo opined that the maternal grandmothers "intervention" was the "only reason" for Mothers "current success" in her treatment and regular visitation. Mother would often promise M.G. she would visit, but not show up for several days. This occurred because Mother depended upon the maternal grandmother to transport her to the visits "rather th[a]n taking the bus and coming on her own."
SW DeMayo further opined that neither Mother nor the maternal grandmother were "stable people." Before L. was born, the maternal grandmother had custody of the other children pursuant to a legal guardianship, but "arbitrarily decided" to return them to Mother although, according to the paternal grandparents of M.G. and J.G., it was obvious that Mother was not ready to care for the children. More recently, the maternal grandmother indicated she was planning to move to Arizona. Thus, it appeared to the social worker that the maternal grandmother "may or may not be around to continue helping" Mother.
SW DeMayo emphasized that the children were all under the age of seven and most were in need of "top notch caretakers who can devote intensive time and attention to their special needs." M.G. was being evaluated for attention deficit hyperactivity disorder and was having increasing severe "anger outbursts." J.G. was "profoundly developmentally delayed and . . . likely autistic." The twins were also delayed and L. had severe medical and developmental problems. SW DeMayo opined that the "health and . . . future success" of these children depended upon them "having every possible resource available and the full commitment of parents who will read to them, play with them, work with them and be fully tuned into their health and development." The social worker did not believe Mother was "able to come close to meeting this standard," even with the aid of the maternal grandmother, and giving her additional time or services would not make a difference.
SW DeMayo further opined that, although M.G. was bonded with Mother, he had held a parentified role in the family and viewed himself more as Mothers caretaker than she as his. He felt a need to protect Mother and worried about her and the other children. He viewed his paternal grandparents as his caretakers and was bonded to them. The social worker described the other childrens bond with Mother as not "any more significant" than "a close extended family member who they enjoy spending time with, not as a parent."
A hearing on Mothers petition was held on September 2. Mothers counsel asked the court to find good cause to hold an "evidentiary hearing." He submitted documentation showing that Mother had completed her six-month perinatal outpatient program as scheduled on August 29, and other classes that the program required. The next step for Mother was aftercare. He said Mother had "been in this program for six months" and did not stop using drugs only four months earlier, as SW DeMayo had claimed. He also said Mother had been visiting regularly with the children, including M.G., and Mother would testify to "a number of contradictory things" stated in the social workers response.
The court asked whether Mother would be able to address the special needs of the children "with regard to the care and treatment" they were receiving. Mothers counsel responded "yes," and that Mother had been taught "how to do certain things" with L. She had also gone to medical appointments for the children, had maintained her sobriety, and her next step was finding employment. Counsel emphasized Mother was "getting out on her own" and had proven herself, and the children were bonded with her. For these reasons, counsel argued Mother "deserves a right to have an evidentiary hearing."
In response, county counsel argued that Mothers sobriety was very young and the case involved numerous children with special needs. Mothers circumstances were changing, but had not changed. Counsel argued that, if the court was inclined to grant the evidentiary hearing, she wanted the authors of the three letters that were attached to Mothers petition to testify. Counsel was willing to receive the letters for the purpose of showing Mothers attendance but not for the purpose of showing how much Mother had benefited from the services provided. Mothers counsel responded that if the court held an evidentiary hearing he would call her substance abuse counselor, Mr. Peters, to testify concerning her progress and participation. Mr. Peters had been in close contact with Mother throughout her participation in the programs. The court denied Mothers request for a further evidentiary hearing, and denied her petition based on the papers submitted by Mother, which the court said it had read and considered.
2. Applicable Law and Analysis
Section 388 allows a parent or other person with an interest in a dependent child to petition the juvenile court "to change, modify, or set aside" any previous court order on grounds of "change of circumstance or new evidence." (§ 388, subd. (a); In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) Former subdivision (c) of section 388, in effect at the time of the hearing on Mothers petition, provided that, "[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (Former § 388 subd. (c), italics added; In re Lesly G. (2008) 162 Cal.App.4th 904, 912 (Lesly G.).)
Section 388, subdivision (c) was redesignated subdivision (d) effective January 1, 2009. (Stats. 2008, ch. 457, § 2.)
Mother and CFS dispute the extent of the "hearing" the court was required to hold once it determined—by checking box 13a. on form JV-180—that it would hold "a hearing." Mother claims she had a procedural due process right to a "full evidentiary hearing" once the court set the matter for a hearing. Our state Supreme Court has observed that section 388 petitions are to be "liberally construed in favor of granting a hearing to consider the parents request," and "[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310, italics added.) A prima facie showing has been analogized to a showing of probable cause. (In re Aljamie D., supra, 84 Cal.App.4th at p. 432.) "`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.]" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 (C.J.W.).)
For purposes of our discussion, we assume, without necessarily deciding, that Mothers petition satisfied both elements of the required prima facie showing and triggered a right to a "full hearing" on the petition. The question presented is whether, as CFS argues, a hearing based solely on documentary evidence constitutes a "full hearing," or whether Mother was entitled to present additional evidence at the hearing in the form of her own and others live testimony in order to refute the documentary evidence submitted in opposition to her petition. Although our state courts have not squarely addressed this question, existing case law and rule 5.570 of the California Rules of Court indicate that the juvenile court has discretion to determine what, if any, additional evidence to receive at a hearing on a section 388 petition, in addition to the documentary evidence previously submitted, except when the petitioner has a procedural due process right to confront and cross-examine witnesses.
All further references to rules are to the California Rules of Court.
Rule 5.570(h) governs the conduct of hearings on section 388 petitions. (Lesly G., supra, 162 Cal.App.4th at p. 913.) It provides that a hearing on a section 388 petition "must be conducted as a disposition hearing under rules 5.690 and 5.695 if: [¶] . . . [¶] . . . There is a due process right to confront and cross-examine witnesses. [¶] Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court." (Rule 5.570(h)(2).)
Rule 5.570(h) reflects well established case law. First, it has long been held that juvenile proceedings, including hearings on section 388 petitions, "need not be `conducted with all the strict formality of a criminal proceeding. [Citations.]" (Lesly G., supra, 162 Cal.Ap.4th at p. 914.) "Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.]" (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817 (Jeanette V.); accord, Lesly G., supra, at p. 914, citing In re Malinda S. (1990) 51 Cal.3d 368, 383 ["`"Procedural due process is not absolute. `[O]nce it has been concluded that a due process right exists, we balance . . . factors . . . to decide what process is due. [Citation.]""].)
Furthermore, and as a general rule, "[t]he due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court." (Jeanette V., supra, 68 Cal.App.4th at p. 817.) Indeed, even in criminal proceedings, "the trial court may properly request an offer of proof if an entire line of cross-examination appears to the court to be irrelevant to the issue before the court." (Ibid., citing People v. Allen (1986) 42 Cal.3d 1222, 1270 & fn. 31.) The juvenile court also has a statutory duty and power to identify issues relevant to the particular hearing and to make relevancy determinations. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 760; § 350, subd. (a)(1).)
Still, parents in dependency proceedings have a due process right to be "heard in a meaningful manner." (Lesly G., supra, 162 Cal.App.4th at p. 915 & cases cited.) This means that, "in particular circumstances," a parent must be afforded "a `meaningful opportunity to cross-examine and controvert the contents" of CFS reports, including hearsay statements contained within those reports. (Jeanette V., supra, 68 Cal.App.4th at pp. 816-817; accord, Lesly G., supra, at p. 915.) "The essential characteristic of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parents rights." (In re James Q. (2000) 81 Cal.App.4th 255, 265.)
Mother maintains she had a procedural due process right to present her own and her substance abuse counselors testimony at the hearing for the purpose of contradicting SW DeMayos statements, as set forth in CFSs response to Mothers petition, once: (1) the juvenile court determined, by checking box 13a. on form JV-180, that her petition stated a prima facie showing of changed circumstances that her requested relief would serve the best interests of the children, (2) CFS filed a written response to the petition, and (3) her counsel requested a "full evidentiary hearing" on the petition. We disagree.
As the foregoing discussion demonstrates, a section 388 petitioner has no absolute, unfettered right to present live, direct testimony at a hearing on the petition, once the court determines the petitioner has made the required prima facie showing. Juvenile courts are not required to allow section 388 petitioners to present any and all additional evidence they may wish to present at a hearing on the petition, simply because the petition states a prima facie case or because the proffered evidence is relevant to the issues presented in the petition. A "full hearing" on a section 388 petition is not synonymous with allowing the petitioner to control the proceedings or present unnecessary, duplicative, or irrelevant evidence.
Nevertheless, and as noted, a section 388 petitioner has a due process right to be heard in a meaningful manner. (Lesly G., supra, 162 Cal.App.4th at p. 915 & cases cited.) The question before the court on Mothers petition was whether her circumstances had changed such that the best interests of the children would be served by reinstating her services and liberalizing her visitation with the goal of returning the children to her care. The question we must determine is whether the court abused its discretion in refusing to hear her testimony and that of her substance abuse counselor, Mr. Peters, and whether Mother had a procedural due process right to present that testimony. We believe Mother had a due process right to present the testimony if, without it, she would not have been heard in a meaningful manner.
As discussed, Mother wanted to present her testimony and that of Mr. Peters to refute the hearsay statements made by SW DeMayo in her response to the petition. More specifically, Mother wanted to show she had been sober for six months, not four, she had been regularly visiting with the children, she was capable of caring for the childrens medical needs and other special needs, the children were bonded with her, and she was well on her way to being capable of having the children returned to her care. The six-month duration of Mothers recent sobriety and her regular visitation with the children were not seriously disputed issues. But how much Mother had learned and was likely to learn from her sobriety were seriously disputed.
SW DeMayo did not believe Mother could "come close" to meeting the childrens special needs even with the continued help of the maternal grandmother, further services, and liberalized visitation. Mother did not want to directly confront or cross-examine the social worker at the hearing. Rather, she wanted to refute the social workers hearsay statements through her own testimony and that of Mr. Peters. If that was allowed, county counsel wanted to examine Mr. Peters and the others who had signed letters on Mothers behalf to determine "how much Mother had benefited" from her services. In sum, Mother wanted to present her testimony and that of Mr. Peters to show that, with additional time, services, and liberalized visitation, she would become capable of meeting her childrens special needs and having them returned to her care.
Given the high level of care and attention the children required, their young ages, and Mothers very recent sobriety, we cannot say the juvenile court abused its discretion in refusing to allow Mother to present her testimony and that of Mr. Peters. Nor can we say Mother had a procedural due process right to present the proffered testimony or that presenting the testimony was necessary for her to be heard in a meaningful manner. It was undisputed that the children required an extremely high level of intensive care and attention in order to develop and thrive. What was disputed was whether Mother was or soon would be capable of meeting the childrens needs. On this record, the juvenile court reasonably determined that even if Mother was fully dedicated to meeting the childrens needs, it was unlikely she was or would soon be able to provide the intensive care and attention the children required. Mother was on the verge of entering an aftercare program after having been sober for only six months of the previous several years. The challenge of remaining sober, obtaining job training and employment, and becoming independent of the maternal grandmother was a lot for Mother to contend with, in addition to learning to care for six children under the age of seven, four of whom had severe medical and other special needs.
This is not to say that juvenile courts should blithely or routinely refuse to hear the proffered testimony of parents and others at section 388 petition hearings. The parent who appears in court at the time his or her services are terminated may be a changed person by the time he or she appears in court on a section 388 petition several months later. Furthermore, juvenile courts should, to the extent humanly possible, allow parents to leave court believing they have been heard in a meaningful manner. A parents interest in the companionship, care, custody, and management of his or her children "is a compelling one, ranked among the most basic of civil rights." (In re Marilyn H., supra, 5 Cal.4th at p. 306, citing In re B.G. (1974) 11 Cal.3d 679, 688.) And, although the childs interest in permanency and stability "takes priority" after the parents services have been terminated (In re Marilyn H., supra, at p. 309), section 388 plays a vital role as an "escape mechanism" or "a means for the court to address a legitimate change of circumstances while protecting the childs need for prompt resolution of his custody status." (Ibid.) The vital role section 388 plays in protecting parental rights in the dependency scheme cannot be underestimated, much less disregarded.
Mother urges this court to follow the reasoning of Lesly G., supra, 162 Cal.App.4th 904. There, the parents claimed the juvenile court violated their procedural due process rights in failing to hold any hearing on their section 388 petition after the court ruled the parents made the required prima facie showing. (Id. at p. 912.) Lesly G. is distinguishable because there the court indeed failed to hold any hearing on the petition. It neither took testimony nor received documentary evidence, and denied the petition without allowing the parents counsel an opportunity to argue its merits. "In short, [the court] provided no hearing whatsoever." (Id. at p. 915.) Here, in contrast, the court held a hearing on Mothers petition. It considered the documentary evidence filed in support of and in opposition to the petition, and allowed Mothers counsel to argue the merits of the petition and why the court should have heard additional, live testimony from Mother and Mr. Peters. Nothing in Lesly G. suggests that the court in this case violated Mothers procedural due process rights in failing to hear the proffered testimony of Mother and Mr. Peters.
Similarly, Mother urges this court not to follow the reasoning of this courts decision in C.J.W. on the grounds the case is distinguishable for several reasons. We agree C.J.W. is distinguishable, but that does not change our conclusion that the juvenile court neither violated Mothers procedural due process rights nor abused its discretion in refusing to hear the proffered live testimony. In C.J.W., we held the juvenile court did not violate the parents procedural due process rights in refusing to allow them to cross-examine the social workers and present unspecified evidence in addition to the documentary evidence they presented in support of their petition. Thus, in contrast to the court in Lesly G., in C.J.W. this court received written evidence and heard argument from counsel for the parties. (C.J.W., supra, 157 Cal.App.4th at pp. 1080-1081.) Furthermore, the parents in C.J.W. failed to identify what additional evidence they wanted to present, and a fair reading of the record showed the juvenile court denied the parents petition based on the "paucity of evidence" supporting it rather than on information or hearsay statements provided by the social workers. Thus, the hearing in C.J.W., as conducted by the juvenile court, comported with due process. (Id. at p. 1081.) For the reasons explained, the same is true here.
B. Mothers Section 388 Petition Was Properly Denied On Its Merits
Mother further contends the juvenile court abused its discretion in denying her section 388 petition on its merits. She argues she met her burden of proving she had changed her circumstances and that granting her additional services and liberalized visitation would have served the childrens best interests. She further argues that her live testimony and that of her substance abuse counselor, Mr. Peters, would have further supported her petition had the court allowed her to present it.
For purposes of section 388, the determination of a childs best interests involves an evaluation of several factors, including, but not limited to: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) 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. (1997) 56 Cal.App.4th 519, 532.) The petitioner has the burden of proving by a preponderance of the evidence that the modifications he or she is seeking would serve the childrens best interests, and that there are changed circumstances or new evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
Mother had indeed made substantial progress in ameliorating her long-standing drug problem which led to the childrens dependency. She regularly visited all of the children, attended J.G.s medical appointments, and was learning to care for L.s special needs. The children were bonded to her and happy to see her during visits. Still, the court did not abuse its discretion in denying her petition on its merits.
As discussed, Mother had been sober for only six months at the time her petition was heard, and she had yet to enter her aftercare program. As county counsel argued, Mothers circumstances were changing, but had not changed. The challenge of staying sober after such a short period of sobriety, obtaining job training and employment, and becoming independent of the maternal grandmother was a lot for Mother to handle—above and beyond caring for six children under the age of seven, at least four of whom had severe medical and other special needs.
At most, the proffered testimony of Mother and Mr. Peters would have shown that Mother had benefited greatly from her outpatient and related programs, and that the children were bonded to Mother as a parental figure. But in view of the extensive needs of the children, it is not reasonably likely the proffered testimony would have persuaded the court to grant the petition. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) Indeed, with or without the testimony, there was no showing of how granting the petition would have served the best interests of the children.
C. The Juvenile Court Properly Refused to Allow Mother to Ask the Adoptions Worker Whether L. Would Have a Shortened Life Span Due to the Shunt in His Head
At the section 366.26 hearings for the children, Mother called the adoptions social worker Josephine Escalante (ASW Escalante) to testify concerning L.s adoptability. Mothers counsel asked ASW Escalante whether, in her working experience, children with VP shunts in their heads, such as L., have shortened life spans. County counsel objected on foundational grounds, and the court sustained the objection. Through further questioning, Mothers counsel established that ASW Escalante had worked with approximately 10 children with shunts in their heads, but had not had an opportunity to follow any of them for any length of time.
Mothers counsel then asked ASW Escalante whether she was aware of anything that had happened to any of the children with shunts "even after they were not working with them." ASW Escalante responded "no," and county counsel objected on relevancy grounds. Mother argued that L.s life span was relevant to whether he was adoptable because "[y]ou have to disclose the conditions of children to prospective adoptive parents, and they also need to know if they have a shortened life span." In response, county counsel argued, "[t]hat doesnt have to do with disclosure." The court responded, "Its the nature of the medical condition. No one can estimate how long a child will live[,]" and sustained the relevancy objection. Immediately thereafter, the court sustained county counsels further relevancy objection when Mothers counsel asked ASW Escalante whether she had "ever talked to a doctor about the life span of a child who has a VP shunt in their brain."
Mother claims these evidentiary rulings violated her procedural due process right to present evidence "challeng[ing] the question of [L.]s adoptability." She relies on In re Thomas R. (2006) 145 Cal.App.4th 726, 731, which stands for the general proposition that a court "cannot, consistent with due process, preclude a parent from testing the evidence supporting the child welfare agencys position that the child is likely to be adopted." (Italics added.) The court recognized, however, that "the usual evidentiary objections contained in the Evidence Code are available to the parties" at section 366.26 hearings, and "the court may limit any examination within the confines of what is permissible under the Evidence Code . . . ." (In re Thomas R., supra, at pp. 731, 734.)
It is clear from the record that ASW Escalante was not qualified to testify whether the shunt placed in L.s head meant he would have, probably would have, or may have a shortened life span. That was a question for a medical expert, and ASW Escalante was not a medical expert. (Evid. Code, § 801; see People v. Chapple (2006) 138 Cal.App.4th 540, 547 [expert witness must possess uncommon, specialized knowledge].) Simply put, ASW Escalante was not qualified to testify whether the shunt placed in L.s head meant he certainly would have, probably would have, or may have a shortened life span. Furthermore, whether ASW Escalante had ever spoken to a doctor about the life span of a child with a "VP shunt" called for inadmissible hearsay to the extent it was offered to show that L. would have a shortened life span. (Evid. Code., § 1200.)
Although county counsel did not object to ASW Escalantes proffered testimony on these grounds, the testimony could have been properly excluded on these grounds. Thus here, the exclusion of ASW Escalantes proffered testimony did not deprive Mother of her due process right to present evidence challenging CFSs evidence of L.s adoptability.
D. Substantial Evidence Supports the Courts Determination That L. Was Adoptable
Mother further claims there is insufficient evidence to support the courts determination that L. was adoptable, in view of his developmental disabilities and special needs. Similarly, L.C. argues there was no evidence that L. was "generally" adoptable or likely to be adopted within a reasonable time. We disagree with both arguments.
A juvenile court may terminate parental rights if it finds by clear and convincing evidence that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "`"`Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]" [Citations.]" (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) On appeal, we will uphold a juvenile courts finding that a child is likely to be adopted if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The question of adoptability requires the court to focus on the child and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt the child. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) An adoptive parents willingness to adopt a child indicates that the child is adoptable, meaning he or she is likely to be adopted within a reasonable time either by the adoptive parent or "by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) But an adoptive parents willingness to adopt the child is not solely determinative of whether the child is adoptable. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) Instead, it is a factor to be considered, together with the childs age, physical condition, and emotional state. Thus, it is not necessary that a child be placed in a prospective adoptive home in order for the court to find the child is adoptable. (In re Sarah M., supra, at p. 1649.)
At the time of the section 366.26 hearings, L. was 17 months old and continued to live in the special care home for medically fragile children where he had been placed shortly after his birth. He had severe, grade III hydrocephalus and a right intraventricular shunt in his head. He also had spastic cerebral palsy and severe developmental delays. He suffered from seizures, which were being controlled with "a lot" of medication. He had a misshapen head; it was flat on the sides and back, but his face was described as "very cute and normal looking."
L. was able to hold his head up and was learning to roll over on his stomach. He could not walk or bear weight on his legs, however, and was able to stand for only a few seconds. His muscle control of his arms and hands was good but not completely controlled. He reached for toys and was able to grasp things with his hands and arms. For example, he could hold a pacifier and bring it to his mouth. He was "very social/responsive" and alert, tracked people with his eyes, and laughed. His prognosis was "guarded" and his needs were "profound." He was likely to have "at least some level of mental retardation."
By the time of the continued section 366.26 hearings on October 29, 2008, a prospective adoptive family had been located for L.; however, the family had yet to meet L. The family had been located through a federally supported Internet site known as Kids Connection. The family had viewed a photograph of L. and his medical history had been disclosed to them. The prospective adoptive mother was a pediatric nurse. Other families had also expressed an interest in adopting L. ASW Escalante testified that, in her experience, CFS had been able to find adoptive homes for children like L. She believed that if L.s current prospective adoptive family did not adopt him another family would.
Mother argues there was insufficient evidence L. was likely to be adopted within a reasonable time in view of his profound special needs. We disagree. The willingness of L.s current prospective adoptive family to adopt him generally indicated he was likely to be adopted within a reasonable time, either by that family or another family capable of meeting his special needs. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Indeed, the current prospective adoptive family was willing to adopt L. despite knowing his medical history and special needs, and the family was capable of meeting L.s special needs. The Kids Connection site, through which the prospective adoptive family was found, was designed to find adoptive homes for children with special needs. L.s listing on the site included a description of the qualities a prospective adoptive family would need to have in order to provide for L. Thus, the other families who expressed an interest in adopting L. were presumably aware of his special needs and capable of addressing them. Furthermore L.s young age and positive social characteristics indicated he was likely to be adopted within a reasonable time.
L.C. argues there was no evidence L. was "generally adoptable" or would likely be adopted "within the foreseeable future," due to his special needs and developmental disabilities and also because he had not yet been placed in a prospective adoptive home. A distinction has been made between children who are "generally" adoptable and "specifically" adoptable. (In re Carl. R. (2005) 128 Cal.App.4th 1051, 1061-1062.) A child is "specifically adoptable" if his adoptability is based "solely" on his caretakers willingness to adopt and "generally adoptable" if his adoptability is based on his age, physical condition, and emotional state. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; see also In re Jayson T. (2002) 97 Cal.App.4th 75, 88, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
A child who is only specifically adoptable "is at high risk of becoming a legal orphan" if parental rights are terminated and the adoption falls through. (In re Carl R., supra, 128 Cal.App.4th at p. 1062.) For this reason, it has been observed that juvenile courts must be careful not to "avoid confronting the childs general adoptability" at the section 366.26 hearing, particularly when the childs current caretakers are willing to adopt the child. (In re Jayson T., supra, 97 Cal.App.4th at p. 88.)
L.C. maintains that L. was neither generally nor specifically adoptable because there was "no prospective adoptive parent in [L.]s life," and L. "did not have appealing characteristics." The record belies these assertions. As discussed, a prospective adoptive family that both knew of and was capable of caring for L.s special needs was willing to adopt him, and other families had expressed an interest in adopting him. L. also had appealing characteristics despite his profound special needs. He was "very social [and] responsive." He laughed, was able to grasp a pacifier and other things with his hands, and was also described as "very cute and normal looking." For these reasons, substantial evidence supports the juvenile courts determination that L. was likely to be adopted within a reasonable time and its implicit determination that L. was both specifically and generally adoptable.
E. Substantial Evidence Supports the Courts Determination That the Parental Benefit Exception Did Not Apply to Mothers Relationship With Any of the Children
Lastly, Mother claims that insufficient evidence supports the courts determination that the parental benefit exception to the adoption preference did not apply to her relationship with any of her children. (§ 366.26, subd. (c)(1)(B)(i).) We reject this claim.
Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of the statutory exceptions set forth in section 366.26, subdivision (c)(1). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The parental benefit exception to the adoption preference is currently set forth in section 366.26 subdivision (c)(1)(B)(i). It applies when the parent has "`maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Ibid.) "The parent must do more than demonstrate `frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a `parental role in the childs life." (Id. at p. 827.)
The parent must also show 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. 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 Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
"`The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the "positive" or "negative" effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)
"`Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
There must be a "compelling reason" for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a "quintessentially discretionary determination." Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, "`[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 courts action, no judge could reasonably have made the order that he did. . . ." [Citations.]" (Ibid.)
Mother essentially argues that the juvenile court abused its discretion in refusing to apply the parental benefit exception to her relationships with any of the children, because she maintained regular visitation and contact, occupied a parental role in the childrens lives, and the children loved her and were bonded to her as a parental figure. We disagree there was any abuse of discretion. First, it was not substantially disputed that Mother had maintained regular visitation and contact with all six children, at least since the time her services were terminated in April 2008. Nor was it disputed that the children shared a bond with Mother and enjoyed her visits.
Substantial evidence showed, however, that none of the children were bonded to Mother as a parental figure. The paternal grandmother and caretaker of M.G. and J.G. testified at the hearings that M.G. saw Mother more as a "big sister" than a parental figure. And according to SW DeMayo, M.G. had occupied a "parentified" role in the family and viewed himself more as Mothers caretaker than she as his. M.G. was bonded to his parental grandparents as parental figures, not Mother. SW DeMayo further opined that the other children viewed Mother more like an extended family member whom they enjoyed spending time with, but not as a parental figure.
Moreover, the court reasonably determined that the benefits to the children of being adopted into a permanent stable home would outweigh any benefit they would realize in maintaining a relationship with Mother. All of the children were under the age of seven and four of them, namely, J.G., the twins, and L., had significant developmental delays and special needs. M.G. also had anger issues and possible attention deficit hyperactivity disorder. Only J.F. was not in need of specialized care. The childrens immediate need for permanency and stability, which adoptive homes would provide for them, outweighed any benefit they would find in continuing their relationship with Mother.
IV. DISPOSITION
The orders denying Mothers section 388 petition, terminating parental rights, and placing all six children for adoption are affirmed.
We concur:
Hollenhorst, Acting P.J.
Miller, J.