Opinion
No. D046406.
February 8, 2006.
Appeal from the Superior Court of San Diego County, No. J514984A/B, Cynthia Ann Bashant, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant Andrew C.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Jamie C.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Suzanne F. Evans, under appointment by the Court of Appeal, for Minors.
OPINION
Andrew and Jamie C. (Parents) appeal a judgment terminating their parental rights to their children, P.C. and G.C. Parents argue the exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(D) is unconstitutionally vague. Nevertheless, they assert section 366.26, subdivision (c)(1)(D) precludes termination of parental rights because there was insufficient evidence to support the court's finding the maternal grandfather (Grandfather) was willing to adopt the children. Parents further assert there was insufficient evidence to support the court's finding the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply.
All statutory references are to the Welfare and Institutions Code unless otherwise specified. Rule references are to the California Rules of Court.
We conclude substantial evidence supports the trial court's determination the exceptions under section 366.26, subdivision (c)(1)(A) and (D) did not preclude termination of parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2003 three-year-old P.C. and four-month-old G.C. were removed from parental custody after Jamie slapped P.C. in the face and pushed him into a shopping cart. Store officials stopped Jamie on suspicion of shoplifting and found methamphetamine in G.C.'s diaper bag. Jamie admitted she "smoked crystal" earlier that day.
The San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivisions (a) and (b) alleging P.C. was at substantial risk of serious physical harm or illness because of Jamie's excessive physical discipline and drug abuse and Andrew's inability to protect him. Agency alleged under section 300, subdivisions (b) and (j) that G.C. was also at substantial risk of serious physical harm or illness.
At the time the children were detained, Andrew was deployed with the United States Navy. He obtained early return and was present at the combined jurisdiction and disposition hearing. Parents submitted to jurisdiction and the children's placement in foster care. The court ordered a reunification plan and granted Agency the authority to return custody of the children to Parents on a 60-day trial visit.
P.C. had behavioral problems in foster care. Four caretakers, including his paternal grandparents, concluded they could not adequately care for him and G.C. and requested the children be removed from their care. In October 2003, instead of placing P.C. for a fifth time in foster care, Agency allowed him to return for an extended visit to Parents, who were close to completing their case plans. In November 2003, at the six-month review hearing, the court returned both children to Parents' custody with ordered family maintenance services.
In April 2004 Agency filed a supplemental petition under section 387, alleging Andrew was no longer able to adequately care for the children. Andrew was detained in the United States Navy brig after pleading guilty to charges of methamphetamine possession and use, providing a false official statement and being absent from his unit. Andrew admitted he was a "heavy user of methamphetamine" when he was younger and had been using "on [and] off." Jamie acknowledged she began using methamphetamine at age 16 and, before she began treatment, used as often as every day. Jamie successfully completed a drug treatment program in April 2004 and entered an aftercare program. However, she too relapsed.
Jamie and Andrew's relationship was historically volatile, and domestic violence continued after the children were returned to their custody. In February 2004 Andrew threw a peanut butter jar at Jamie, bruising her. P.C. reported "when daddy hits mommy, she sits on the couch and cries and I go and hug her." PC's behavior deteriorated. School personnel reported he was defiant, aggressive and out of control. Jamie was approximately seven weeks pregnant and appeared "frazzled." At the second disposition hearing, the court allowed Jamie to retain custody of the children on the condition Andrew remain out of the home.
In May 2004 Jamie and the children became homeless after Andrew was dishonorably discharged from the United States Navy. The children were placed in respite care. After Jamie obtained assistance from the United States Navy, she and the children stayed in a motel. Agency investigated reports Andrew was living with them. A motel neighbor said she heard Jamie screaming and Andrew beating her. P.C. asked a social worker "if someone could tell daddy not to hit his mommy anymore." In July 2004 Agency detained the children and filed a second section 387 supplemental petition. After the children were removed from parental custody, Jamie and Andrew tested positive for methamphetamine.
In August 2004, at the third disposition hearing, the court terminated reunification services and referred the matter to a section 366.26 permanency plan hearing (permanency hearing). By that time, each child had been in six foster care placements. After a positive visit with the children in September 2004, Parents moved out of San Diego County. In late October 2004 Jamie gave birth to another son. Parents' visitation with the children became less frequent because of the distance and expense of travel and because Parents feared Agency would remove the baby from their custody. By December 2004, PC's behavior had stabilized in foster care. He and G.C. both appeared happy and well-adjusted.
On December 7, 2004, at the initial permanency hearing, Agency recommended termination of parental rights and adoption. Parents submitted on the report. The court did not determine if the children were adoptable but found adoption was in the children's best interests and no exceptions to termination of parental rights applied. The court continued the permanency hearing for 60 days to allow Agency to find an adoptive home for the children, either with a relative or in foster care. The children's attorney, Jeanette Day, requested Agency evaluate Grandfather's home.
In January 2005 the children were placed with Grandfather. Grandfather asked Parents to forgo visitation until he established a relationship with the children. The social worker reported the placement was "going very well." Grandfather told the social worker he preferred to remain the children's "Grandpa" but would not insist on guardianship for fear of losing his grandchildren to an adoptive placement. He was committed to offering the children a permanent and stable home.
On March 2, 2005, at the continued permanency hearing, Day informed the court Grandfather might prefer guardianship over adoption. The court set that issue for trial. Andrew requested a contested hearing on the issue of the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). The court instructed Andrew to file a section 388 petition and said it would include that issue at trial if Andrew alleged changed circumstances. The court granted Andrew a hearing on his section 388 petition.
Andrew's section 388 petition is not in the appellate record.
On March 7, 2005, county counsel asked the court to set aside its findings of December 7, 2004, because "technically the adoptability finding must precede the [section 366.26, subdivision] (c)(1)(A) exception finding." On March 9, 2005, the court determined to hear the matter anew as a contested permanency hearing under section 366.26. Agency agreed to disregard the section 388 petition and reassume the burden of proof to support termination of parental rights.
Social worker Larks testified Parents visited the children approximately once every other week from September 2004 until October 2004, when visitation stopped. Larks observed one visit in September 2004. P.C. called out "mommy" and "daddy" when he first saw Parents. Parents were affectionate with the children. However, in Larks's opinion, the relationship between Parents and children waned after the children were removed from Jamie's custody in July 2004. At Grandfather's request, Parents did not visit the children after their placement with him in January 2005. Larks concluded P.C. and G.C. knew their father and mother but did not look to them for day-to-day care or interaction.
Larks testified P.C. was an adoptable child. He was healthy, friendly, affectionate and engaging. G.C. also was adoptable. Both children would benefit from permanency, consistency and a sense of belonging. Larks believed adoption to be a more binding commitment than guardianship. In the event Grandfather was unable to adopt the children, she could ensure the children remained together in an adoptive home. Larks did not believe termination of parental rights would be emotionally detrimental for either child.
Grandfather believed Parents needed his help with the children because they had become homeless, did not have a support system in San Diego, and needed more time to stabilize than the dependency system allowed. He was aware of only one incident concerning Andrew's drug use. Grandfather hoped he would be able to maintain a guardianship to allow Parents the opportunity to raise the children after their situation stabilized. Grandfather thought P.C. would suffer if Parents' rights were terminated. He tucked P.C. into bed every night. P.C. missed his father and mother and was having a difficult time adjusting. The children loved their parents.
Grandfather was asked if he would be willing to adopt the children were the court to terminate parental rights, and he replied, "Of course." Grandfather said he was told he had no choice in the matter: Larks, Day, and others informed him the children were "going to be adopted one way or the other." Grandfather strongly believed it was better for the children to be with him rather than in a nonrelative adoptive home.
Andrew testified he and P.C. shared a strong bond. He had not visited the children recently. Grandfather gave him a set of guidelines to follow and he agreed it was the right thing to do. He and G.C. shared a strong bond and the children were bonded to each other and to Jamie.
After Jamie moved from San Diego, she visited the children every other week and telephoned them every night. She last saw the children in October 2004. She did not visit after the baby was born because she was afraid the social worker would detain him. The baby was not exposed to drugs at birth and remained in her care.
The court believed Grandfather minimized the children's exposure to Parents' "extremely chaotic environment." The children, especially P.C., needed stability and that need outweighed their love for Parents. The court did not believe guardianship reflected a permanent commitment to a child. Adoption was in the children's best interests and no exceptions under section 366.26, subdivision (c)(1)(A), (D) precluded termination of parental rights. The court was concerned visitation would be detrimental to the children but deferred to Grandfather the decision on contact between the children and Parents. The court found the children were adoptable and terminated Jamie's and Andrew's parental rights to the children.
Andrew filed a timely notice of appeal. Jamie filed a notice of appeal within the timelines set forth by rule 37(d)(4).
DISCUSSION
Parents assert the court erred when it terminated parental rights and freed the children for adoption. They argue they and the children shared a beneficial parent-child relationship sufficient under section 366.26, subdivision (c)(1)(A) to preclude termination of parental rights. Parents also contend Grandfather was unwilling to adopt the children and the court should have applied section 366.26, subdivision (c)(1)(D) to preclude termination of parental rights. Notwithstanding their argument to apply the section 366.26, subdivision (c)(1)(D) exception, Parents argue the subdivision is unconstitutionally vague because the term "exceptional circumstances" is not defined and can encompass countless situations, so that "reasonable [persons] differ greatly as to the meanings to be ascribed to the term. . . ." ( In re Newbern (1960) 53 Cal.2d 786, 795 [ 3 Cal.Rptr. 364, 350 P.2d 116].)
Agency argues this court does not have jurisdiction to hear Jamie's appeal because she filed the notice of appeal "three days late." It further contends Parents' claims under section 366.26, subdivision (c)(1)(D) are forfeited because at trial Parents did not raise a constitutional challenge to the subdivision and did not object to the sufficiency of the evidence supporting the court's finding that the subdivision (c)(1)(D) exception to termination of parental rights did not apply.
On the merits, Agency asserts substantial evidence supports the court's findings that the exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(A) and (D) did not apply. Agency argues section 366.26, subdivision (c)(1)(D) is not unconstitutionally vague because the phrase "exceptional circumstances" is sufficiently certain by its plain meaning and "reference to other definable sources."
I Timeliness of Appeal
Agency contends Jamie's appeal is not timely because she filed it more than 60 days after the rendition of the judgment she appeals. Jamie asserts she filed a timely notice of appeal.
Rules 37 through 38.6 specifically govern appeals in dependency cases under the Welfare and Institutions Code. Rule 37 states in part:
"[(d)](1) Except as provided in (2) and (3), a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. . . . ¶ . . . ¶
"(4) If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal."
Judgment was rendered March 9, 2005. On May 6, 2005, Andrew timely filed a notice of appeal. Rule 37(d)(4) extends the time for another party to file an appeal from the same judgment for 20 days after notification of the first notice of appeal; here, May 26, 2005. Jamie filed a notice of appeal on May 11, 2005. Her appeal is timely. (Rule 37(d)(4).)
II Forfeiture
Agency contends Parents forfeited their right to challenge on appeal the constitutionality of section 366.26, subdivision (c)(1)(D) by not raising the issue at trial."As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided based on undisputed facts." ( Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983 [ 105 Cal.Rptr.2d 88]; see People v. Superior Court ( Zamudio) (2000) 23 Cal.4th 183, 195 [ 96 Cal.Rptr.2d 463, 999 P.2d 686].) Here, the meaning of the phrase "exceptional circumstances" does not implicate any disputed fact. When the facts are not disputed, the effect or legal significance of those facts is a question of law. ( Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [ 35 Cal.Rptr.2d 418, 883 P.2d 960].) A question of law is not subject to the doctrine of forfeiture. ( People v. Butler (1980) 105 Cal.App.3d 585, 588 [ 164 Cal.Rptr. 475]; Ward v. Taggart (1959) 51 Cal.2d 736, 742 [ 336 P.2d 534].) Parents' right to challenge the constitutionality of the statute is not forfeited on appeal.
Agency urges us to apply the principle of forfeiture as a ground to avoid addressing the constitutional issue raised here. As a general rule constitutional issues are resolved on appeal only if absolutely necessary. ( People v. Marsh (1984) 36 Cal.3d 134, 144 [ 202 Cal.Rptr. 92, 679 P.2d 1033]; Estate of Johnson (1903) 139 Cal. 532, 534 [ 73 P. 424].) However, we are not persuaded by Agency's assertion the constitutional challenge "can be determined on grounds of forfeiture rather than on the constitutional issue itself, and this Court need not, and should not, consider appellant's constitutional challenge." Forfeiture is a legal principle, not a legal ground. Because the principle of forfeiture does not apply to a question of law, it is inappropriate for the purpose of defeating an inquiry into the constitutionality of a statute.
A ground is defined as "[t]he reason or point that something (as a legal claim or argument) relies on for validity." (Black's Law Diet. (8th ed. 2004) p. 723, col. 1.)
Agency also argues Parents' challenge to the sufficiency of the evidence was forfeited because Parents did not state specifically "the section 366.26, subdivision (c)(1)(D) exception precluded adoption." The general principle of forfeiture prohibits parties from addressing on appeal issues not raised at trial.
However, the argument that a judgment is not supported by substantial evidence is an "obvious exception to the rule." ( Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [ 92 Cal.Rptr. 704, 480 P.2d 320].)
Here, the parties litigated the applicability of section 366.26, subdivision (c)(1)(D). Although the parties did not refer to the exception by its subdivision heading, the exception was raised by minor's trial counsel and Parents and considered by the court. The issue is not forfeited on appeal.
Unlike the commonly used references to section 366.26, subdivision (c)(1)(A) as the "beneficial parent/child relationship exception" or more simply, "(c)(1)(A)," we have not seen an equally accepted shorthand reference to section 366.26, subdivision (c)(1)(D). Here, the term "adoptability" was apparently used to refer to both the finding required under section 366.26, subdivision (c)(1) ("it is likely the child will be adopted") and to the exception to termination of parental rights under section 366.26, subdivision (c)(1)(D):
"The Court: . . . I already ruled on all issues, with the exception of the adoptability of the children, but I now have a [section] 388 [petition] in front of me requesting return to that original hearing and the [section 366.26, subdivision] (c)(1)(A) exception. ¶¶ . . . ¶
"[Father's Attorney]: Your Honor, we would be requesting that the finding that none of the [section 366.26, subdivision] (c)(1) [(A)-(E)] exceptions apply be returned to that point in the case, so I have those issues available for trial. As of the last hearing it sounds as if there may be some possibility that the current caregivers are leaning towards guardianship rather than adoption, so —
"The Court: (c)(1)(A) plus his adoptability.
"[Father's Attorney]: And adoptability as well."
III
See footnote, ante, page 279.
Exceptions to Termination of Parental Rights Under Section 366.26 The purpose of the California dependency system is to protect children from serious harm and to preserve families when safe for the child. (§ 300.2.) If reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster care. (§§ 366.21, 366.22, 366.26.) Adoption is the permanent plan preferred by the Legislature. ( In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) If reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds terminating parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) If an exception applies to preclude termination of parental rights, "the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the child or order that the child remain in long-term foster care." (§ 366.26, subd. (c)(4).) A. The Beneficial Parent/Child Relationship Exception Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will always confer some incidental benefit to the child. ( In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. ( In re Derek W., supra, 73 Cal.4th at pp. 826-827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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 Autumn H., supra, 27 Cal.App.4th at p. 575.) We review the trial court's findings for substantial evidence. ( In re Autumn H, supra, 27 Cal.App.4th at pp. 575-576.) Substantial evidence must be reasonable in nature, credible and of solid value. ( In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. ( In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. ( Ibid.; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) A beneficial parent-child relationship is based on trust, safety, security and responsibility, including a parent's ability to place the child's needs above his or her own. Here, substantial evidence supports the court's finding that the parent-child relationship was not sufficiently beneficial to overcome the children's need for the security and safety they would find in a permanent home with a committed, responsible adult. Agency urges us to conclude Parents did not meet the requirements of the first prong of the beneficial parent-child relationship exception: regular visitation and contact with the children. Although it is true visitation declined after the Parents moved from San Diego and stopped when the children were placed with Grandfather, we believe Parents' consent to Grandfather's rules reflected their wish to place the children's needs above their own. The trial court did not base its decision on the lack of regular visitation and contact, and we need not address the details of argument and counter-argument here. The trial court recognized that Parents, especially Jamie, had several very difficult years. The court believed Parents loved their children and the love was mutual. However, after 22 months of dependency, the court was properly focused on the children's needs. The children's home environment with Parents was extremely chaotic. It included chronic methamphetamine abuse, domestic violence in the children's presence, physical abuse, Andrew's incarceration and dishonorable discharge (resulting in unemployment and homelessness), and maternal depression, poor impulse control, and lack of insight. To their credit, Parents realized they could not care for the children and were pleased the children were in a stable home. G.C. was four months old when he was first removed from Parents' custody. At the time of the permanency hearing, he was almost 26 months old and had lived with Parents less than half his life. Parents did not provide G.C. with a safe, secure and stable environment. His needs were consistently met by other caretakers. Social worker Larks testified G.C. did not display a significant attachment to either parent and termination of the relationship would not be detrimental. Substantial evidence supports the court's finding that the beneficial parent-child relationship exception did not apply to G.C. Although G.C. was young enough to be relatively unscathed emotionally, the effect on P.C. of his parents' instability and volatility was profound. Because of his behaviors, he had four foster placements in six months. By age four, P.C. assumed a caretaker role for Jamie's benefit, trying to comfort her after Andrew hit her. Even though he reported Andrew had hit both him and his mother, he asked social workers to intervene to protect his mother. His behavior improved briefly after he was returned to Parents' custody but quickly deteriorated along with conditions in the home. P.C. was defiant, aggressive and out of control. Jamie again resorted to physical force to control his behavior. A court could reasonably infer the only period of time P.C. did not display serious acting-out behaviors was when visitation with Parents was limited or did not occur. Although Grandfather presented evidence P.C. missed Parents, the court reasonably concluded that not only was the parent-child relationship detrimental to P.C., further delay in permanency served to keep him emotionally conflicted. P.C. needed resolution and, as his Grandfather was the first to recognize, the five-year-old's need for a bonded relationship with a responsible, committed caretaker outweighed even minimal contact with Parents. Substantial evidence supports the court's finding that the beneficial parent-child relationship did not preclude termination of parental rights to P.C. B. The Section 366.26, Subdivision (c)(1)(D) Exception A party seeking to establish an exception to termination of parental rights under section 366.26, subdivision (c)(1)(D) must prove the following elements: (1) The caretaker is unable or unwilling to adopt because of (2) exceptional circumstances that do not include an unwillingness to assume legal or financial responsibility for the child; (3) the caretaker is nevertheless willing and capable of providing the child a permanent home; and (3) removal of the child from the caretaker's physical custody would be detrimental to the child's well-being. Notwithstanding Parents' argument that the subdivision is constitutionally infirm, they contend the court should have applied the section 366.26, subdivision (c)(1)(D) exception to termination of parental rights and ordered a permanent plan of guardianship. They argue that but for Agency's and the court's coercion, Grandfather would have been unwilling to adopt the children because he believed it would be detrimental to the children to terminate parental rights. Parents also assert the court erred when it expressed a bias against guardianship and refused to consider a permanent plan other than adoption. Agency responds Grandfather clearly expressed his willingness to adopt the children and therefore the section 366.26, subdivision (c)(1)(D) exception did not apply. In addition, Agency argues guardianship is not as stable as adoption and the court did not err when it expressed its dislike of guardianship. Finally, Agency, without analysis, asserts the evidence is sufficient to support a finding that the circumstances underlying Grandfather's reluctance to adopt were not exceptional and did not preclude termination of parental rights. Although Parents and Agency agree we should undertake a substantial evidence review, the issues raised present a mixed question of law and fact. We therefore review the trial court's resolution of disputed historical fact under the deferential substantial evidence rule, exercise our independent judgment of what law should be applied and apply the law to the facts as a question of law. ( Ghirardo v. Antonioli, supra, 8 Cal.4th at pp. 800-801.) "Unwilling to Adopt" Parents assert Agency and the court coerced Grandfather to adopt the children; therefore, his stated willingness to adopt the children was not volitional. Grandfather wanted to be the children's legal guardian. He believed termination of parental rights was not in the children's best interests, but when presented with the choice between adopting the children or losing them to a nonrelative adoptive home, he was committed to adopting them. Agency does not respond to Parents' assertions that Grandfather was coerced by Agency and the court to adopt the children. It concedes Grandfather preferred guardianship over adoption. Agency asserts there is no need for further analysis because Grandfather stated he was committed to adopting the children and adoption is the preferred permanency plan in California. In support of her assertion that the court joined with Agency in coercing Grandfather to adopt, Jamie cites the court's statement:
The parties do not contest the other requirements under section 366.26, subdivision (c)(1)(D): Grandfather was willing to accept financial and legal responsibility for the children, he was capable of providing them a stable and permanent environment, and removal from his physical custody would be detrimental to the children's well-being.
"Here's the thing. Ms. Day. I am going to order adoption today if you submit. If I order adoption and the paternal [ sic] grandparents are not willing to accept adoption, the Agency is going to find an adoptive home for the children. If you want them to remain [with] the grandparents, perhaps we should explore this issue."Jamie argues the court intended to convey the message that if Grandfather was unwilling to adopt, the court would "order the boys removed and placed with strangers." We believe the court's comment merely reflected the current state of the evidence before it. The court previously found none of the exceptions under section 366.26, subdivision (c)(1)(A) through (E) applied. Even though Parents previously submitted on Agency's permanency plan report, the court vacated its prior findings and set a new hearing under section 366.26 to explore the issue of Grandfather's willingness to adopt the children. We are more troubled by the possibility Agency did not accurately inform Grandfather of Agency's role in adoptive placements. The social worker in her March 9, 2005 report wrote: "Mr. [D.] told me that he does not want to lose the status of being "Grandpa" for these boys. However, he more keenly does not want the boys placed anywhere else." It appears that Grandfather understood he would have to adopt the children or he would lose them. Even were the social worker not responsible for Grandfather's misimpression, she did nothing to correct it. Andrew contends what he terms "Grandfather's agreement to adopt the children" must be set aside under the principle stated in In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1047.) In that case, the court concluded a marriage settlement agreement awarding the husband all community assets could be set aside by the wife if she proved her consent was obtained by coercion. ( Id. at pp. 1040, 1047.) Brockman does not apply here. This process was not a negotiated settlement between two parties. No legally binding agreement resulted from Agency's discussions with Grandfather. Instead, Grandfather had a full opportunity to present his views to a neutral trier of fact. After hearing the evidence and assessing the credibility of the witnesses, the court found there was "no question [Grandfather] has expressed on the stand that he is absolutely committed to adopting the children." This statement appears to be factually accurate. At the start of his testimony, County Counsel asked Grandfather:
However, through no fault of its own, the court's remarks may have been misinterpreted. We believe it likely Grandfather was not correctly informed of his legal rights as the children's caretaker. (See Discussion, part III.C.)
"[County Counsel]: [I]f the court was to terminate the parental rights today, would you be willing to adopt the children?
"[Grandfather]: Of course."After Grandfather expressed his reasons for believing guardianship was in the children's best interests, on redirect examination County Counsel asked:
"[County Counsel]: And understanding your preference [for guardianship], you are still willing to provide an adoptive home for the boys?
"[Grandfather]: Of course, yes."The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. ( In re L.Y.L., supra, 101 Cal.App.4th at p. 947; In re Geoffrey G., supra, 98 Cal.App.3d at p. 420.) Here, Grandfather's testimony supports the court's finding he was willing to adopt the children, and therefore the exception to termination of parental rights under section 366.36, subdivision (c)(1)(D) did not apply. This position is in accord with our decision in In re Zachary G. (1999) 77 Cal.App.4th 799. In that opinion, we concluded the section 366.26, subdivision (c)(1)(D) exception was inapplicable where the caretaker preferred guardianship but stated his willingness to adopt were parental rights terminated. ( Zachary G., at p. 810.) Furthermore, the record supports the inference that had Grandfather been fully apprised of the true nature of Parents' chaotic life and its effect on the children, he would not hesitate to adopt them. Grandfather believed the children were in his care because their parents had fallen on hard times and needed to re-establish a support system. If these were the only reasons for the children's placement, it is understandable Grandfather would believe Parents needed only more time before they could provide the children a stable and safe environment. However, when Grandfather was asked if he believed the stability of his home outweighed the risk of exposing the children to drug use and drug behaviors, he replied, "Yes. Definitely." Grandfather knew of only one incident concerning Andrew's drug use. He did not realize the extent and longevity of both Parents' chronic methamphetamine abuse and resistance to treatment. Grandfather did not appear to have been informed of Andrew's history of domestic violence, including assaulting Jamie during her pregnancy in the children's presence. The court reasonably concluded Grandfather's main reason for guardianship, his desire for Parents to one day be able to raise the children, was not grounded in fact. " Exceptional Circumstances" Because we resolve the inapplicability of section 366.26, subdivision (c)(1)(D) on the basis that there is substantial evidence to support the court's finding Grandfather was willing to adopt the children, we need not address Parents' constitutional challenge to section 366.26, subdivision (c)(1)(D). (See People v. Marsh, supra, 36 Cal.3d at p. 144; Estate of Johnson, supra, 139 Cal. at p. 534.) However, even if the outcome of this controversy depended on the meaning of the phrase "exceptional circumstances," we would find it unnecessary to address that issue in this case. Jamie asserts the "exceptional circumstances" precluding adoption were P.C.'s "strong bond with his parents, his desire to be with them, and the importance of keeping the biological relationships intact." Similarly, Andrew contends Grandfather's unwillingness to adopt was based on his belief the children were "strongly bonded to their parents." Grandfather expressed his view that termination of parental rights would be detrimental to the children because of the strength of the parent-child bond. Parents' argument challenging the court's findings under section 366.26, subdivision (c)(1)(D) is based on the same facts and circumstances the trial court considered and rejected under the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). As we have discussed, substantial evidence supports the court's finding the beneficial parent-child exception did not apply. Even were the phrase "exceptional circumstances" stricken from subdivision (c)(1)(D), we do not believe section 366.26, subdivision (c)(1)(D) provides an exception to termination on the same facts the court considered and found insufficient under section 366.26, subdivision (c)(1)(A). The court still must find "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1).) If "[n]one of the impediments to termination of parental rights under subdivision (c)(1)(A) through (D) [are] present," a caretaker's preference for guardianship is not relevant. ( In re Jose V. (1996) 50 Cal.App.4th 1792, 1801; see In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298.)
DISPOSITION
The judgment is affirmed.
Huffman, Acting P. J., and Nares, J., concurred.
Although we conclude Grandfather was not coerced to adopt, this is not the first time a complaint of this type has been lodged against Agency. (See In re Zeth S. (2003) 31 Cal.4th 396, 407 [ 2 Cal.Rptr.3d 683, 73 P.3d 541]; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1294, 1296 [ 7 Cal.Rptr.3d 153]; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1261 [ 101 Cal.Rptr.2d 548]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1800 [ 58 Cal.Rptr.2d 684].) It is important to emphasize the Legislature's clearly expressed preference for caretaker adoption.
If a caretaker of a child believes Welfare and Institutions Code section 366.26, subdivision (c)(1)(D) should apply to preclude termination of parental rights, the caretaker may seek an alternative permanency plan and also remain entitled to the statutory preference for caretaker adoption under section 366.26, subdivision (k). That section provides:
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
A party to the case may also assert this exception applies.
" Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal . . . would be seriously detrimental to the child's emotional well-being.
"As used in this subdivision, `preference' means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child." (Italics added.)
Legal professionals and social workers working with caretakers considering adoption should inform them they may seek an alternate permanency plan under section 366.26, subdivision (c)(1)(D) without fear of losing their statutory preference as adoptive parents. For the exception to apply, termination of parental rights must be significantly detrimental for the child. The court will not grant an exception under subdivision (c)(1)(D) based only on a preference for guardianship or family antipathy to adoption. ( In re Jose V, supra, 50 Cal.App.4th at pp. 1800-1801.) If the court finds termination of parental rights would not be detrimental to an adoptable child under section 366.26, subdivision (c)(1)(D) and terminates parental rights, the caretaker nevertheless remains entitled to preferential consideration for adoptive placement. (See § 366.26, subd. (k); Fam. Code, § 8730; In re Sarah S. (1996) 43 Cal.App.4th 274, 285 [ 50 Cal.Rptr.2d 503].)
Caretakers should not be advised they will lose their opportunity to provide a permanent home for the children in their care if they are unwilling (or unable) to adopt at the time of the permanency hearing. As the person who meets the child's day-to-day needs, a caretaker's observations concerning any potential detriment to the child caused by terminating parental rights is vitally important to the court. The court, in making the critical decision to terminate parental rights or to choose another permanency plan, should be able to hear from a caretaker who does not fear losing the child to another adoptive placement.
Subdivision (n), a new provision in section 366.26 effective January 1, 2006, provides that a court may designate the child's current caretaker as the designated prospective adoptive parent at the section 366.26 hearing or "anytime thereafter." (§ 366.26, subd. (n).) To qualify, the caretaker must have cared for the child at least six months, currently express a commitment to adopt the child and have taken at least one step to facilitate the adoption process, like applying for an adoption home study, being designated by the court or the licensed adoption agency as the adoptive family, or requesting de facto parent status. (§ 366.26, subd. (n)(1), (2).) A designation (or eligibility for that designation) as the prospective adoptive parent gives the current caretaker the right to notice before a change in placement and to petition for a hearing in the event a decision is made to remove the child from the home. (§ 366.26, subd. (n)(3); but see § 366.26, subd. (n)(4) [right to notice not applicable if there is a risk of physical or emotional harm to child].)
Although section 366.26, subdivision (n) provides an incentive for a caretaker to commit to adoption before the permanency hearing, a caretaker who meets threshold eligibility requirements nevertheless retains the right to petition for status as the prospective adoptive parent after the permanency hearing. Section 366.26, subdivision (n) does not alter the view that a child's interests are better served when a caretaker is not pressured to immediately commit to adoption if he or she believes termination of parental rights may be substantially detrimental to the child.
At a permanency hearing in which an alternate permanency plan is sought under section 366.26, subdivision (c)(1)(D), the question, "Are you willing to adopt if parental rights are terminated," puts the cart before the horse. The proper question to ask the caretaker is, "What are your reasons for believing termination of parental rights will be detrimental to the child?" (See § 366.26, subd. (c)(1).) If the court finds termination of parental rights will not be detrimental and adoption is in the child's best interests, Agency's question to the caretaker should be, "Will you adopt this child?" (See § 366.26, subd. (k).)
Before a permanency hearing is held, Agency is charged with preparing a " preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker. . . ." (§ 366.21, subd. (i)(4), italics added.) Agency is not legally entitled before the permanency hearing to promise the caretaker an adoptive placement and threaten to rescind it if the caretaker does not immediately commit to adoption.
The right of the child's current caretaker to postpone a decision on adoption until the court has determined the appropriate permanency plan should be respected.