Opinion
D041557.
7-8-2003
In re RAYSHAWN P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LASHURN P., Defendant and Appellant.
Lashurn P., the mother of Rayshawn P., appeals the termination of her parental rights pursuant to Welfare and Institutions Code section 366.26. Lashurn contends there was not substantial evidence presented that Rayshawn was likely to be adopted within a reasonable time, and the court erred by failing to apply the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rayshawn, the son of Lashurn and Ray F., was born in June, 2002. The same day, a hospital hold was placed on Rayshawn, which prevented his parents from removing him from the hospital. Although Rayshawn tested negative for drugs, the hospital reported Rayshawn was showing mild withdrawal symptoms, including undisturbed tremors, poor feeding, difficulty eating and sucking, increased muscle tone, regurgitation and difficulty maintaining body temperature. Hospital staff also reported Lashurn had admitted using drugs during the second month of her pregnancy.
Ray F. is not a party to this appeal. He will be discussed only as relevant to the issues raised by Lashurn.
When interviewed by social workers, Lashurn denied ever using drugs and denied telling hospital staff she used drugs until the second month of her pregnancy.
Lashurn received Supplemental Security Income (SSI) benefits because she had an intellectual/learning disability caused by her premature birth. Prior to Rayshawns birth, Lashurn had lost custody of two other children — Aylia P., who was born in March, 1998, and Ray P., who was born in September, 2000 — and failed to reunify with them. Lashurns parental rights over Aylia were terminated in March 2002; her parental rights over Ray P. were terminated in July 2002. Ray P. and Rayshawn have the same father. A psychological evaluation prepared for Ray P.s dependency case indicated Lashurn had below average intelligence and was not able to make informed decisions regarding Ray P.s medical and educational special needs without supervision.
Lashurn also has another child, Chrishan, who lived primarily with her paternal grandmother. Chrishan, who was born in December, 1996, has not been the subject of dependency proceedings.
On June 19, the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of Rayshawn under section 300, subdivision (b). The petition alleged Rayshawn was at risk because Lashurn had a history of drug abuse, which rendered her unable to care for him. The petition further alleged Lashurn had failed to reunify with Rayshawns siblings and failed to follow through with the reunification plans in the juvenile dependency cases of two other children.
Lashurn submitted to the section 300, subdivision (b) allegation in the petition. The juvenile court took jurisdiction, finding the allegations to be true by clear and convincing evidence.
The agency recommended Lashurn and Ray F. be denied reunification services under section 361.5, subdivisions (b)(10) and (11). Following Agencys recommendation, the court ordered no reunification services be provided to Lashurn and Ray F., and scheduled a section 366.26 hearing.
Section 361.5, subdivision(b)(10) provides the court need not offer reunification services to a parent who had previously had reunification services terminated as to a sibling or half-sibling and the parent has not made reasonable efforts to treat the problem that led to the removal of the sibling or half-sibling. Section 361.5, subdivision (b)(11) provides the court need not offer reunification services to a parent whose parental rights over any sibling or half-sibling previously had been terminated and the parent has not made reasonable efforts to treat the problem that led to the removal of the sibling or half-sibling.
Rayshawn was placed with a relative caregiver on August 13. Lashurn continued to regularly visit Rayshawn, as she had done while he was in the hospital.
Agencys assessment report for the section 366.26 hearing recommended a permanent plan of adoption for Rayshawn. Rayshawn had been placed with his paternal aunt and was thriving; the aunt wanted to adopt him. The social worker opined Rayshawn had bonded with his caregiver and did not have a primary attachment with his parents even though they visited him regularly.
At the section 366.26 hearing conducted January 23, 2003, the court accepted Lashurns offer of proof that she visited Rayshawn, loved him very much and did not want her parental rights terminated.
The court found, by clear and convincing evidence, it was likely Rayshawn would be adopted. The court also found Lashurn and Ray F. did not have a parental relationship with Rayshawn and none of the exceptions to terminating parental rights applied. The court terminated parental rights and selected a permanent plan of adoption for Rayshawn.
DISCUSSION
I
Sufficiency of Evidence that Rayshawn was Adoptable
Lashurn contends there was insufficient evidence that Rayshawn was likely to be adopted within a reasonable time. The contention is without merit.
At the section 366.26 hearing, the juvenile court is required to select and implement a permanent plan. If the child is likely to be adopted, adoption is the preferred permanent plan. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) The court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subd. (c)(1); see also In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The determination of whether a child is likely to be adopted focuses first upon the characteristics of the child that could create difficulty in locating a family willing to adopt — i.e., age, physical condition, and mental or emotional state. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "The fact that a prospective adoptive parent has expressed interest in adopting [a child] is evidence that the [childs] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]." (Id. at pp. 1649-1650.)
Furthermore, whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (In re David H. (1995) 33 Cal.App.4th 368, 378.) "It is not necessary that the [child] already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings." (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) What the law does require is clear and convincing evidence that the child likely will be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.)
Our review of the juvenile courts findings and orders is limited to considering whether substantial evidence supports them. (See In re Derek W. (1999) 73 Cal.App.4th 823, 825.) In making this determination, we view the record in the light most favorable to the prevailing party. (In re Luwannna S. (1973) 31 Cal. App. 3d 112, 114, 107 Cal. Rptr. 62.) We do not reweigh the evidence, but resolve all conflicts in favor of the prevailing party. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706.)
Substantial evidence supports the finding that Rayshawn was likely to be adopted within a reasonable time. Rayshawn was an "attractive, happy, six-month-old baby" who was developmentally "on target." Despite his premature birth and his prenatal exposure to drugs, Rayshawn was generally healthy and no longer had withdrawal symptoms. He also was bonded with his caregiver. Thus, Rayshawn had none of the characteristics that typically dissuades people from adopting a particular child. Moreover, Rayshawn had traits that would make him a desirable adoption candidate: his young age, and his ability to bond with a caregiver. Agency met its burden to produce clear and convincing evidence that Rayshawn was likely to be adopted.
Lashurn faults Agency for devoting only one paragraph of "boilerplate language" in its assessment report on the issue of Rayshawns adoptability. We reject this criticism. Contrary to Lashurns position, the report did impart specific information about Rayshawn and it was sufficient to show he had the characteristics that are typically found in children who are adopted. We do not normally factor in the number of paragraphs in our substantial evidence analysis. Moreover, we reject the boilerplate characterization.
The assessment report noted the current caregiver had provided excellent care for Rayshawn since he was two months old and was committed to adopting him. An adoptive home study of the caregiver was underway and the social worker expected the caregiver to be approved for adoption.
Because the home study of the current caregiver had not be completed, Lashurn argues there was insufficient evidence the caregiver would be approved and the planned adoption would take place. Lashurn also complains there was no evidence that other families were interested in adopting a child with Rayshawns characteristics.
We are not persuaded. Because the focus is on the child, the prospective parents suitability is not an issue. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) In Scott M., the Court of Appeal held that in a section 366.26 hearing a parent who faces termination of his or her parental rights may not inquire about the "suitability" of a potential adoptive family because the familys suitability to adopt is irrelevant to the issue whether the child is likely to be adopted. (Ibid.) However, evidence of "a prospective adoptive parents willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) It is Rayshawns attributes that make him adoptable. (Ibid.) The willingness of the caregiver to adopt Rayshawn allows the court to infer that in the event the adoption does not go through there would be other prospective adoptive parents similarly interested and Rayshawn is likely to be adopted within a reasonable time. (Ibid .) However, the availability of a caregiver as a prospective adoptive parent is not essential. (Ibid.)
Lashurns reliance on this courts opinion in In re Jerome D. (2000) 84 Cal.App.4th 1200 is misplaced as that case is readily distinguishable. In that case, the only basis for the juvenile courts finding the child was likely to be adopted was the willingness of the mothers boyfriend to adopt him; the child protective agency had failed to consider the childs physical problems (prosthetic eye that required special care), the childs close relationship with his mother, and whether there were other families willing to adopt the nine-year-old child with special medical needs. (Id. at p. 1205.) Furthermore, we found a legal impediment to the adoption by the mothers boyfriend — his criminal record, which must be considered under section 366.22, subdivision (b)(4). (Ibid .) The problems present in In re Jerome D. do not exist in this case.
II
The Beneficial Relationship Exception to Adoption Did Not Apply
Lashurn contends the court erred in not finding the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) did not apply. The contention is without merit.
Our standard of review is the substantial evidence test. (In re Autumn H . (1994) 27 Cal.App.4th 567, 576.)
As indicated above, adoption is the permanent plan preferred by the Legislature, and, at the selection and implementation hearing, the court must terminate parental rights if the child is adoptable. The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; Welf. & Inst. Code, § 366.26, subd. (c)(1); Evid. Code, § 115.)
The beneficial relationship exception is codified at section 366.26, subdivision (c)(1)(A), which provides that once the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because "the parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Section 366.26, subdivision (c)(1)(A) applies only if both prongs are met — namely, the parent has maintained regular visitation and contact, and continuing the relationship between parent and child will benefit the child.
In discussing the beneficial relationship exception to adoption in In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within this exception, a parent must show 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "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 . . . ." (Id . at p. 576.) Further, the parent must show the benefit arises from a parental rather than caretaker or friendly visitor relationship. We reaffirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [exception does not apply when a parent "has frequent contact with [dependent child] but does not stand in a parental role to the child"]; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [frequently visiting mother occupied pleasant place in childs life, but did not have parental role].)
The court found Lashurn maintained regular visitation, and Agency does not dispute the finding. However, satisfying the first prong alone is not enough to establish the beneficial relationship exception. And, Lashurn cannot meet the second prong of the exception — namely, that the benefit from continuing the relationship between her and Rayshawn would outweigh the benefit he would gain by being in a permanent adoptive home.
The juvenile court had ample basis to find that there was not the required beneficial relationship between Rayshawn and Lashurn. Lashurn did not occupy a parental role in Rayshawns life and never did. Although Lashurn visited Rayshawn often and the visits generally went well, a parent-child relationship did not develop during the visits. While Rayshawn recognized Lashurn when she visited, he did not have a primary attachment to her. Rayshawn looked to the caregiver as the constant parental figure in his life. Rayshawn wanted to be near the caregiver and cried when she left the room. Lashurn had not developed the type of parent-child bond with Rayshawn that would outweigh the legislative preference for adoption. The relationship between Lashurn and Rayshawn fell far short of the beneficial (to the child) relationship that section 366.26, subdivision (c)(1)(A) envisions. Rayshawns need for stability clearly outweighed the benefit he would obtain from continuing his relationship with Lashurn.
In sum, the juvenile court applied the correct balancing analysis to conclude whatever benefit Rayshawn would gain from continuing his relationship with Lashurn would be outweighed by the stability, security and sense of belonging that would be conveyed to him by a permanent adoptive home. Substantial evidence supported the courts finding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., and MCDONALD, J.