Opinion
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Orange County Nos. DP016363, DP016364, DP016365, DP016366, DP016367 & DP016617, Douglas Hatchimonji, Judge.
Baron & Behrndt and Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
J.D. (father) appeals the juvenile court’s Welfare and Institutions Code section 366.26 orders in the consolidated dependency cases of his six children. The court found by clear and convincing evidence that the children were likely to be adopted and that none of the statutory exceptions to a termination of parental rights applied. (§ 366.26, subd. (c)(1).) The court then terminated father’s parental rights and approved a permanent plan of adoption for the six children. (§ 366.26, subd. (b)(1).) Father claims the court committed two errors: (1) finding the children were likely to be adopted (§ 366.26, subd. (c)(1)); and (2) not finding father “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship” (§ 366.26, subd. (c)(1)(B)(i)). We affirm, as there is substantial evidence in the reports submitted by the Orange County Social Services Agency (SSA) supporting the court’s findings and orders.
All statutory references are to the Welfare and Institutions Code.
Father and mother submitted the matter for determination on the reports, declining to exercise their right to present testimony or other evidence at the section 366.26 hearing.
FACTS
Following a series of inquiries into alleged abuse and neglect, Kern County’s Department of Human Services (DHS) detained seven children from the care and custody of father and mother in June 2006. At the time the children were taken into protective custody, their ages were 14 years, 10 years, six years, five years, three years, two years, and two months. DHS reported their home “had no running water. The water pipes in the home had been burst for approximately two months and had to be turned off because they were flooding the mobile home. The mobile home had mildew underneath the carpet, which created a foul odor. On the inside of the mobile home, the temperature was ninety-nine degrees.” DHS also alleged use of methamphetamine by mother in the months preceding the detention of the children. The Kern County juvenile court sustained the dependency petitions, declared the children to be dependents of the juvenile court, and ordered reunification services.
The eldest two of mother’s children, are not subjects of this appeal.
In September 2006, the children were placed with relatives in Orange County. At the 12-month review (§ 366.21, subd. (f)), the Kern County juvenile court continued reunification services for father but terminated mother’s services. At the 18-month review (§ 366.22) in November 2007, the court ordered custody of the five youngest children returned to father and ordered the transfer of proceedings to Orange County, as father was now living with his sister in Costa Mesa, California.
Mother gave birth to another child in April 2007. The new baby was placed with a foster family in Bakersfield, California. In February 2008, the Kern County juvenile court ordered the new child placed with father and ordered the case transferred to Orange County. The Orange County juvenile court accepted the transfer of the six dependency cases.
Thus, as of February 2008, all six children at issue in this appeal were living with father, his sister, sister’s husband, and sister’s two adult children in Costa Mesa, California. Father was receiving family maintenance services.
On April 4, 2008, SSA detained all six children, claiming, among other things, father allowed the children to have unauthorized contacts with mother. The children were placed with various relatives. Father was granted monitored visitation. At the dispositional hearing (conducted on July 28, 2008), the court declared the children dependents of the juvenile court and denied reunification services to father. The court set a section 366.26 hearing.
At the section 366.26 hearing (conducted on January 27, 2009), father and mother submitted the matter for determination on the reports, declining to exercise their right to present testimony or other evidence at the section 366.26 hearing. The court announced its decision, finding in relevant part: “pursuant to section 366.26 (c)(1)... it is likely the children will be adopted. The court accordingly will order the parental rights terminated and the children will be placed for adoption.... [¶] The court will find that the provisions of section 366.26 (c)(1)(A) and (B), specifically (B)(1), (2), (3), (4), (5) and (6) do not apply in the case. The court will find that adoption of the minor children and that termination of parental rights is in the best interest of all of the children in this instance. [¶] The court approves the case plan pursuant to report of November 25, 2008, approves visitation pursuant to report of November 25, 2008, [and] adopts [the] recommendation of [SSA] pursuant to the report of November 25, 2008.”
We will discuss the content of the reports below in our analysis of the evidence.
ANALYSIS
Section 366.26, subdivision (c)(1), provides in relevant part: “If the court determines... by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding... that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services[] shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) 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)(B)(i); see also Cal. Rules of Court, rule 5.725(e).)
Father challenges the court’s findings that his children were likely to be adopted, as well as the court’s determination that one of the statutory exceptions to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply in this case. Father did not forfeit his right to appeal these determinations by his failure to contest the adequacy of the SSA reports or submit additional evidence at the section 366.26 hearing. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.) But the evidentiary record is necessarily limited to the information provided by SSA to the court. Father did not call his own witnesses or cross-examine the individuals who prepared the SSA reports relied on by the court for its findings.
Adoptability of Children
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) “‘In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming.” (In re Gregory A., supra, 126 Cal.App.4th at pp. 1561-1562.)
“A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) “‘“[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.”’” (Ibid.)
“If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption.” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
There is sufficient evidence in the record to support a finding that each of the children are generally adoptable. First, the children were each placed with paternal relatives who expressed a desire to adopt the children. The children’s placement with related caregivers who wish to adopt the children supports the court’s findings of adoptability.
Evidence of the children’s individual characteristics (submitted by the social worker in her report, based on her observations, interactions, and investigations of the children) also supports the court’s findings. The children are all relatively young: as of November 2008, their ages were eight years, seven years, six years, four years, two years, and one year. This factor, particularly as to the younger children, supports the adoptability findings. Furthermore, none of the children have current medical issues, as determined by pediatrician examinations.
The children all exhibited healthy social development and formed emotional connections with their caregivers. M.D. “appears happy in her current prospective adoptive home. The child appears social as evidenced [by] her interaction with peers who live near her home and her interaction with the [social worker]. The child reports that she enjoys living in her current home and would like to remain in the care of her prospective adoptive parents.” The seven year old “appears quiet and reserved as she usually responds only when the undersigned asks the child a question directly. The child appears happy and the prospective adoptive parent does not report any mental or emotional issues.” The six year old “appears happy in his current prospective adoptive home. The child interacts well with the other children in the home.... The child is playful and talkative.” The four year old “appears happy in the current prospective adoptive home. The child is verbal and appears to enjoy interacting with people as observed in her interaction with the undersigned and her cousins[] whom the child lives with.” The two year old “appears happy in her current home. There have been no mental health or emotional issues of concern noted by the undersigned or... by the caretakers.” The one year old “appears happy and he smiles when he observes other people smiling.... There have been no mental health or emotional issues of concern noted....”
As father points out, five of the six children face developmental and educational challenges. M.D. has been previously diagnosed as mentally retarded and receives language and speech services at her elementary school. The seven year old has a speech and language impairment and participates in special services at her elementary school. The six year old has “significant deficits in both cognitive and adaptive functioning” and has been diagnosed with mild mental retardation; he receives speech and language services at his elementary school. The four year old has a speech impairment and has been referred to a speech therapist. The one year old has “delays in areas such as expressive language, [and] cognitive and physical development,” and receives “home infant stimulation services one hour per week.” The two year old is not eligible for speech or other services through the Regional Center, indicating her mental development is progressing in a satisfactory fashion at this stage of her life. Each of the four older children are able to attend public elementary schools.
There was substantial evidence supporting the juvenile court’s findings. Most of the evidence in the record suggests the children are physically healthy, emotionally stable, happy with their current arrangements, and generally capable of becoming loving (and loved) family members (whether with their current prospective families or others). The court could reasonably have discounted, due to a lack of substantiation, certain additional evidence relied on by father in his appellate briefs. For instance, M.D.’s caretaker reported in April 2008 she was inserting objects into her vagina. This information triggered an inquiry into the possibility M.D. had been sexually abused, but the SSA’s report ultimately deemed this allegation to be “unfounded” due to lack of evidence.
None of the children suffer from such serious mental and intellectual limitations that a finding of adoptability must hinge on the ability of the prospective adoptive families to complete the adoption. (See In re Carl R., supra, 128 Cal.App.4th at pp. 1058, 1061-1062 [child with cerebral palsy, severe quadriparesis, a seizure disorder, and a severe psychomotor delay, who required “total care,” was not generally adoptable and a finding of “adoptability” necessarily required finding a particular family was willing and able to legally adopt the child].) Father points to several obstacles in the way of the children’s current prospective families adopting the children (e.g., one prospective mother needs to obtain consent for the adoption from a spouse from whom she is separated; one prospective father has a criminal history and an alcohol habit that may affect the probability of him being approved as an adoptive father). The juvenile court was not required under the facts of this case to assess whether these particular families will complete the adoptions, only whether these particular children will be adopted within a reasonable time. The court’s findings are supported by the record.
The “Benefit” Exception
The court did not find a “compelling reason for determining that termination [of father’s parental rights] would be detrimental to” the children. (§ 366.26, subd. (c)(1)(B).) Father claims the court should have done so because he “maintained regular visitation and contact with the child[ren] and the child[ren] would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
“Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than ‘frequent and loving contact.’ [Citation.] ‘[T]he 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 parent’s rights are not terminated.’” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) We review the entire record to determine whether substantial evidence exists supporting the court’s finding on this issue. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)
Our review of the record indicates father maintained visitation and contact with his children. But even assuming father “maintained a relationship that may be beneficial to some degree” with his children (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350), such showings are insufficient to derail the legislative preference for adoption at this stage of the proceedings if the relationship “does not meet the child’s need for a parent.” (Ibid.)
There was substantial evidence supporting the court’s finding that the children would not benefit from continuing filial relationships with father. Father never fulfilled his role as a responsible parent. As evidenced by the conditions of the children’s residence when they were detained in June 2006 and by father’s inability to maintain a separate residence for the children when the juvenile court temporarily awarded him custody during the dependency case, father was unable and/or unwilling to provide the basic necessities of life to his children. While the children were in father’s custody, teachers reported the children were dirty, smelled of urine, had lice, and suffered frequent minor physical injuries (which were attributed to insufficient supervision of the children at home). The children showed marked improvement after being turned over to the custody of their current caretakers. Father allowed unauthorized contact between the children and their mother. The children were able to bond with their caretakers (some referring to the caretakers as “mom” and “dad”) and some have expressed preferences for staying in their current residences with their caretakers. As noted above, father did not introduce any evidence to support his claim that eliminating his parental rights would negatively influence the children.
DISPOSITION
The postjudgment orders are affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.