Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, No. EJ2699B-C Ernest Borunda, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
IRION, J.
James B. appeals judgments terminating his parental rights to two of his children, Michael B. and M.B. He contends insufficient evidence supported the juvenile court's finding Michael and M.B. were adoptable, and the court erred by not finding under Welfare and Institutions Code section 366.26, subdivision (c)(3) that they were difficult to place for adoption. He also asserts the court reversibly erred by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (a)(1)(A) and the sibling relationship exception of section 366.26, subdivision (c)(1)(E). Finally, James asserts the court prejudicially erred by not inquiring sua sponte why Michael did not attend the section 366.26 hearing and by depriving James of the opportunity to be present. We affirm the judgments.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 2005, the Riverside County Department of Social Services petitioned under section 300, subdivisions (a), (b), (c) and (g) on behalf of 10-year-old Marcus B.; eight-year-old Michael B.; five-year-old M.B.; and two-year-old Miranda F. Only Michael and M.B. are the subjects of this appeal. The petitions alleged the children's mother, Natalie L., physically abused them; engaged in domestic violence with various partners in the children's presence; called the children derogatory names; threatened them; and did not protect M.B. from Natalie's boyfriend. The petition additionally alleged James had a criminal history, which included domestic violence and making terrorist threats, and that he was incarcerated and unable to provide care and support.
James told the social worker he had never hurt his children, but he had just been released from jail and could not then care for them. The children were detained with the maternal grandmother.
The social worker reported the family's child welfare history included claims of neglect, inadequate food, domestic violence and reports that James physically abused Marcus. James had an extensive criminal history. He was then on parole. The social worker noted the children were violent toward one another. Various relatives came forward offering to provide care. In August 2005 the social worker reported James was complying with the conditions of his parole, visiting the children and attending an anger management course. When asked to drug test, he produced diluted samples. He said he planned to move out of state to live with the paternal grandmother and he did not object to placing the children with Natalie once she completed services and had her own home. The maternal grandmother was struggling to care for all four children.
By September 2005, Natalie had completed an anger management class and had an apartment. James refused to have a hair follicle drug test because of his past drug use. He was visiting the children regularly.
At the jurisdictional and dispositional hearing held on October 19, 2005, the court ordered the children placed with Natalie and the case transferred to San Diego County, where she was living. Subsequently, the social worker reported the three younger children had gone to live with Natalie, and Marcus had stayed with the maternal grandmother.
On January 12, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 387 on behalf of the children, requesting they be removed from Natalie's care because of domestic violence. The court ordered the children detained. It was anticipated that Miranda would be placed with her paternal grandmother, and this grandmother would adopt her or become her legal guardian. Marcus, Michael and M.B. were to be placed with their paternal grandmother (the paternal grandmother) in Idaho. At the section 387 hearing on February 7, the court found placement with James would be detrimental at that time, ordered services and placed the children in relative care.
In June 2006, the social worker reported James had been arrested for being under the influence of methamphetamine. He subsequently moved to Idaho. At the 12-month review hearing, the court authorized placement for Marcus, Michael and M.B. with the paternal grandmother in Idaho and continued services for James.
In December 2006, the social worker reported Marcus had remained with the maternal grandmother in Riverside County, and Michael and M.B. were living with the paternal grandmother in Idaho. James had completed a parenting class, but had been terminated from anger management and substance abuse classes because of his absences. He had had two positive drug tests. He said he had changed, but contended his past was being held against him. The paternal grandmother was unsure whether her health problems would prevent her from providing long-term care for Michael and M.B. James visited them several times each week.
At the 18-month review hearing held in March 2007, the court terminated James's services and set a section 366.26 hearing.
In June 2007, the paternal grandmother requested M.B. be removed from her care. She had difficulty managing M.B., hitting her on at least two occasions, and admitted to having allowed James to live in her house with the children for at least two days. The Agency recommended placing Michael and M.B. with a maternal aunt and uncle (the aunt and uncle) in Riverside County. At the time, James was incarcerated on charges of burglary and possession of drug paraphernalia. The court authorized Michael to visit the aunt and uncle and M.B. to be placed there.
The social worker recommended the children be adopted. She reported they were in good health, were attractive and had no developmental problems. However, they had some behavioral issues and were part of a sibling group. The maternal grandmother planned to adopt Marcus. The aunt and uncle were willing to adopt Michael and M.B., the paternal grandmother was willing to adopt Michael or become his legal guardian and there were other families in San Diego County willing to adopt the children. James had regular unsupervised visits until he was incarcerated, and had telephone contact with the children after that time. Michael and M.B. had regular telephone contact with Marcus. Michael said he would not mind if he lived in Idaho and M.B. lived in Riverside.
Subsequently, the social worker reported that after Michael and M.B. went to the aunt and uncle's home, the family called her repeatedly about intra-family squabbles. Marcus and the maternal grandmother arrived at the aunt and uncle's home unannounced and were asked to leave after Marcus led the other children into mischief. Michael said he wanted to return to Idaho, but M.B. was happy with the aunt and uncle. The social worker recommended parental rights be terminated, Marcus continue to live with the maternal grandmother, Michael with the paternal grandmother and M.B. with the aunt and uncle.
At the section 366.26 hearing in July 2007, the social worker testified M.B.'s behavior improved after she was placed with the aunt and uncle. The social worker said she believed the paternal grandmother would allow Michael and James to remain in contact, and that the relatives were willing to maintain the sibling relationships. She testified M.B. was not upset to leave Idaho. She discounted Michael's and the paternal grandmother's statements that M.B. was unhappy at the aunt and uncle's home and said that there were other relatives willing to adopt the children if these placements did not work out. Marcus testified he believed M.B. was afraid of the uncle.
The paternal grandmother testified James had spent a lot of time with Michael and M.B. when they lived with her, and she believed they would suffer emotionally if they did not have contact with him. She did not know how long James would be incarcerated.
James asked to have Michael testify, but Michael's counsel and the Agency objected on the basis that Michael was only 10 years old. The court determined Michael's testimony would not be helpful and denied James's request.
After considering the testimony, the other evidence and argument, the court found the children were adoptable. It continued Marcus's case for 180 days so the social worker could meet with him further. For Michael and M.B., it found none of the legal exceptions to adoption were present and terminated parental rights.
DISCUSSION
I
Adoptability
James contends insufficient evidence supports the finding that Michael and M.B. are adoptable. He argues the children's ages and their social and emotional problems preclude a finding that they are likely to be adopted. James points out the children are older, M.B. had difficult behavioral issues and was diagnosed with adjustment disorder, and Michael was aggressive, had anger issues and problems with self-control. He argues the court did not sufficiently assess the prospective adoptive parents' abilities to meet the children's needs and it should have found under section 366.26, subdivision (c)(3) that the children were difficult to place for adoption.
Section 366.26, subdivision (c)(3) provides that if a court finds a child is hard to place for adoption because "there is no indentified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more," the court may identify adoption as the permanent plan and order efforts to locate an adoptive family within 180 days.
Before a court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child- -whether his age [or her age], physical condition and emotional state make it difficult to find a person willing to adopt him [or her]." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) The fact children are with families who want to adopt them supports a finding they are generally adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
"On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) "[W]e must indulge all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the court's finding Michael and M.B. are likely to be adopted. Neither child has special needs or developmental problems and, despite their ages, both were placed with relative caregivers who wanted to adopt them. The paternal grandmother testified she would like to adopt Michael. Although M.B. had had behavior problems when she was living at the paternal grandmother's home, at the time of the hearing, the social worker reported her placement with the aunt and uncle was stabilizing and the aunt had told her M.B. was behaving well and was a happy, healthy little girl. M.B. reported that she had made new friends and played with them almost every day. There were no concerns these relatives would not be approved to adopt. It was not required that the relatives' home studies be completed. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.) In addition, the social worker stated if these foster parents did not adopt, there were other relatives who were interested in adopting the children and other families who were willing to adopt children with their particular characteristics. The social worker's training and experience qualified her to offer an opinion as to the children's adoptability. The court was entitled to rely on the social worker's opinion. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.) We therefore determine sufficient evidence supports the court's adoptability finding and reject James's argument that it was reversible error for the court not to find the children were difficult to adopt under section 366.26, subdivision (c)(3).
II
The Beneficial Parent-Child Relationship Exception to Adoption of Section 366.26, Subdivision (c)(1)(A)
James contends the court erred by not applying the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) because he regularly visited the children and they would benefit from continuing their relationships with him.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because one of the specified exceptions to section 366.26. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."
In In re Autumn H., supra, 27 Cal.App.4th at pages 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the 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." (Id. at p. 575.)
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
James regularly visited and spent time with Michael and M.B. However, he did not show he had parent-child relationships with the children so beneficial that maintaining them would outweigh the benefits to the children of adoption. James was not able to have the children placed with him because of his criminal behavior. When the children were first removed from Natalie's care, James had just been released from jail and said that he needed to get his life together before he could have them placed with him. During the two years the children were dependents of the court, he never was able to reach that point and, at the time of the hearing, he was again incarcerated. The paternal grandmother testified he did not yet know the length of his term. Although she said the children loved James and would suffer emotionally were his parental rights terminated, she admitted that she was in a difficult position between her son and her grandchildren. Thus, the record fails to support James's claim of error under section 366.26, subdivision (c)(1)(A).
III
The Beneficial Sibling Relationship Exception to Adoption of Section 366.26, Subdivision (c)(1)(E)
James next asserts the court reversibly erred by not applying the beneficial sibling relationship exception to adoption of section 366.26, subdivision (c)(1)(E). He argues Michael and M.B.'s sibling relationship meant more to their emotional well-being than the "hypothetical" permanency they might find with various relatives.
Under section 366.26, subdivision (c)(1)(E), if the court finds the child will be adopted within a reasonable time, adoption must be ordered
" 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811, italics added.)
The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) Factors for the court to consider under section 366.26, subdivision (c)(1)(E) include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond and whether continued contact is in the child's best interests, as compared to the benefits of adoption. (§ 366.26, subd. (c)(1)(E).) The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
Although Michael and M.B. had lived together for all but one month of M.B.'s life, James did not show that the children would be significantly harmed were they adopted by different relatives. The paternal grandmother had asked that M.B., but not Michael, be removed from her care. After M.B. and Michael went to the aunt and uncle's home, Michael said he wanted to return to Idaho, but it was reported that M.B. was happy to stay with the aunt and uncle. Michael told the social worker he would not mind if he lived in Idaho and M.B. lived in Riverside. The social worker opined the children's lives would remain unstable were they not adopted and they would benefit from the stability of permanent homes with adoptive parents. Given the evidence, there was no error in the court's finding that the exception to adoption of section 366.26, subdivision (c)(1)(E) did not apply.
IV
Michael's Lack of Attendance at the 366.26 Hearing
James maintains the court reversibly erred by not asking sua sponte why Michael was not present at the section 366.26 hearing and by denying James's request to have Michael testify by telephone.
Assuming, without deciding, that James has standing to make this argument, James did not object that 10-year-old Michael was not present at the section 366.26 hearing or ask for further discussion when the court determined that Michael's testimony would not be helpful to the court in making its decision. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] . . . [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) James has forfeited his argument.
We note that Michael was represented by counsel at the hearing. Michael's counsel raised no objection to his client's absence from the hearing.
Moreover, even were we to determine that the court erred in not inquiring under section 366.26, subdivision (h)(2) as to why Michael was not present at the hearing, James has not shown any prejudice. The record indicates that James's attorney wanted Michael to testify about the allegation that M.B. was afraid of the uncle. The court found this testimony would not be helpful. James's appellate claim that his parental rights might not have been terminated had Michael been able to testify about their relationship and his relationships with other members of his family do not help his cause. The record does not show that James requested that Michael testify for this purpose, or that he made an offer of proof that would support his appellate argument. James's appellate claim is thus speculative and without foundation.
V
James's Lack of Attendance at the Hearing
James contends he was deprived of his opportunity to be present at the section 366.26 hearing. He acknowledges he received notice of the hearing, but argues that because he was incarcerated the court was compelled under Penal Code section 2625 to require his presence or have him execute a waiver. However, James was represented by counsel, who made no objection to the fact that James was not present. He has thus forfeited this issue.
Moreover, even were James's argument not forfeited, it is lacking in merit. When a parent is in custody in a California state prison or county jail and a hearing to terminate parental rights is pending, the juvenile court is required under Penal Code section 2625 to issue an order to remove the parent temporarily from the penal institution for the hearing if the parent wants to appear. However, the California Superior Court does not have power to issue an enforceable order to an out-of-state facility. (In re Gary U. (1982) 136 Cal.App.3d 494, 498-499.) James's argument fails.
DISPOSITION
The judgments are affirmed.
WE CONCUR: HUFFMAN, Acting P. J. McINTYRE, J.