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In re R.E.

California Court of Appeals, Fourth District, First Division
Mar 4, 2008
No. D051665 (Cal. Ct. App. Mar. 4, 2008)

Opinion


In re R.E. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RAE H., Defendant and Appellant. D051665 California Court of Appeal, Fourth District, First Division March 4, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County No. J516147A-D, George W. Clarke, Judge.

McCONNELL, P. J.

Rae H. appeals a juvenile court judgment terminating her parental rights over her four children and choosing adoption as the preferred permanent plans. (Welf. & Inst. Code, § 366.26.) Rae challenges the evidentiary grounds for the court's findings that the children are adoptable and the "sibling bond" exception to adoption (§ 366.26, subd. (c)(1)(B)(v)) is inapplicable. We affirm the judgment.

All statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Rae's children are a daughter, R.E., born in 1997, and three sons: N.L., born in 2000; N.J.L., born in 2003; and J.C., born in 2006, after these proceedings began.

Rae has a history of child protective services referrals dating back to 2001, which were based on domestic violence between Rae and her boyfriends, including most recently Jose C., J.C.'s presumed father. Rae had obtained a restraining order against Jose, and he was arrested on January 17, 2006, for violating it by going to her home.

In January 2006 the San Diego County Health and Human Services Agency (the Agency) removed the eldest three children from Rae's custody and filed petitions on their behalves. The petition for N.J.L. stated he had suffered second degree burns to his feet that appeared nonaccidental and required hospitalization. Rae's history of the incident was unreliable and she delayed in obtaining medical care. Rae reported that she had left N.J.L. alone in the bathtub to answer the door. She returned to him when he began screaming and found him standing with his feet under running hot water. She did not take him to the doctor until the next day. The petitions for the other children were based on the injuries to N.J.L.

In February 2006 the hospital that treated N.J.L. concluded his injuries were not inflicted intentionally. The Agency, however, was concerned that Rae left him in the bathtub unattended and delayed in obtaining medical care for his serious injuries. It was also concerned with her repeated involvement in violent relationships and her unawareness of the effect on her children.

The Agency filed amended petitions on behalf of the children, adding a count based on their exposure to domestic violence and the attendant risk of harm. The court had detained the children with Rae, on the Agency's recommendation, and it ordered her to comply with her case plan.

In early May 2006 the Agency removed the children from Rae's home and filed subsequent petitions on their behalves, based on R.E.'s report to the social worker that Rae often struck N.J.L. with a belt, and she had struck him in the eye with a belt buckle because he would not eat dinner. Rae reported that N.J.L. fell down the stairs. Later, however, Rae admitted she hit N.J.L. in the eye with " 'the fringes on the belt.' "

In mid-May 2006 J.C. was born. The Agency filed a petition on his behalf based on domestic violence between Rae and Jose, and her allowing him in her home despite a restraining order, and on the injuries to N.J.L.

By November 2006 Rae had been arrested and charged with four counts of child cruelty, stemming from the belt and burn injuries to N.J.L. Rae entered a guilty plea and was sentenced to eight years and four months in prison. In February 2007 the court terminated reunification services for all four children and scheduled a selection and implementation hearing in June.

In its assessment report, the Agency recommended the termination of parental rights and adoption as the preferred permanent plans. R.E. was living with her paternal grandmother, who wanted to adopt her and had begun the home study process. The three boys were living with their maternal aunt, and they had visits with R.E. However, N.J.L. and N.L.'s maternal grandfather, who lived out-of-state, had an approved Interstate Compact on the Placement of Children home evaluation and wanted to adopt the boys, and J.C.'s paternal grandmother wanted to adopt him and planned to complete a home study. Additionally, the Agency had identified two other prospective adoptive homes.

The section 366.26 hearing was continued, and the court allowed the Agency to move N.J.L. and N.L. to their grandfather's home. Further, J.C. was placed with his grandmother.

The section 366.26 hearing was held in September 2007. Social worker Lisa Salsbury testified she had explained adoption to R.E., and R.E. wanted her grandmother to adopt her. Salsbury understood that R.E. had good relationships with her brothers, she missed them, and her grandmother told her she may have telephone contact with them "whenever she wants to." Salsbury testified that all the relative caretakers wanted the sibling relationships to continue, and R.E.'s grandmother talked of taking her to visit N.J.L. and N.L. out of state. Further, Salsbury believed the benefits of adoption outweighed the sibling relationships the children enjoyed.

The maternal aunt who had cared for the three boys testified that the children had always been close, they played well together and loved each other, and if they did not see each other for awhile they missed each other. Further, the aunt testified the boys "still today . . . ask about their sister," and she asked the aunt about her brothers and said she missed them. Also, when N.J.L. and N.L. moved to another state R.E. took it very hard and cried "because she knew that she couldn't just walk next door and see them." The aunt believed the children would be hurt "a lot" if they could never see one another again, and it would not be "fair to separate them at this age." The aunt had good relationships with the relative caretakers and intended to facilitate telephone, mail and personal contact among the siblings to the extent possible. She agreed that N.J.L. and N.L. should stay with their paternal grandfather so they would have a male figure in their lives, and that all the placements were working well.

The parties stipulated that Rae would testify she preferred a guardianship over adoption.

The court found by clear and convincing evidence that the children are adoptable and none of the section 366.26, subdivision (c)(1) exceptions to adoption applies. The court terminated Rae's parental rights and selected adoption as the preferred permanent plans.

DISCUSSION

I

Standard of Review

"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We review "the factual basis of an adoptability finding by determining whether the record contains substantial evidence from which a reasonable trier of fact could make the finding made by the trial court." (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.)

II

Adoptability

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable, and none of the exceptions of section 366.26, former subdivision (c)(1)(A) through (E) [now § 366.26, subd. (c)(1)(A) & (B)] applies to make termination of parental rights detrimental to the child. " 'Clear and convincing' evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt." (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) "If the government is going to terminate a child's ties to his or her natural parents, then there must be reasonable certainty that the child is not going to be left a legal orphan." (In re Jayson T. (2002) 97 Cal.App.4th 75, 78, disapproved of on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

" 'The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]' " (In re Zeth S., supra, 31 Cal.4th at p. 406.) "Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

Rae contends the evidence does not support a finding of adoptability as to the three eldest children, R.E., N.L. and N.J.L., because of their older ages and because they "suffered medical, behavioral and developmental issues." Rae points to comments in the Agency's report for the section 366.26 hearing that "[a]ll of the children have asthma and use a nebulizer as needed"; the children were in therapy; N.L. "did not begin speaking until he was 5 years old, and continues to have some speech delays," for which he was receiving speech therapy at school; and N.J.L. "is very active and appears to have some attention difficulties." Additional evidence showed N.L. was also receiving physical and occupational therapy at school, but his primary problem was speech or language impairment, and he had some difficulty maintaining focus during tasks.

The Agency's section 366.26 report also states, however, that the "children are currently experiencing excellent health"; the "children are doing well in school"; R.E. is polite, well behaved, active and articulate, participates in dance and gymnastics in school, enjoys riding her bike and playing with friends, and appears to be on target developmentally; N.L. "is an active boy who is large for his age," and he is well behaved and quiet; and N.J.L. "is an extremely active, generally happy child" who appears to be on target developmentally. The Agency considered the children adoptable because they "are healthy and happy children," and while they had "some minor developmental and behavioral challenges, they have made some good strides in these areas and are continuing to make improvements in their current placements."

The court's adoptability finding is amply supported by the evidence. "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective 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." (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Further, "[n]owhere in the statutes or case law is certainty of a child's future medical condition required before a court can find adoptability." (In re Helen W. (2007) 150 Cal.App.4th 71, 79 (Helen W.).)

The young girl in Helen W. was diagnosed with "an autism spectrum disorder and possibly a bipolar disorder"; she had "reactive attachment disorder"; she was "significantly below average in intellectual, speech and language, and adaptive functions"; and she "exhibited violent behavior towards the other children in . . . class and towards the school's staff." (Helen W., supra, 150 Cal.App.4that p. 75.) Additionally, the girl "exhibited poor judgment, a short attention span, inability to adapt to change, and exaggerated emotional responses," and she "had problems with toilet training and had smeared feces on the toilet and on her face." (Ibid.) Her younger brother "vomited repeatedly and had problems swallowing," and tests "revealed that he was suffering from infantile reflux." (Id. at p. 74.) Further, a neurologist found the boy "was developmentally delayed and exhibited skin lesions symptomatic of neurofibromatosis." (Ibid.) The boy also had significant delays in gross motor skills and could not sit without support, and he had a "left foot abduction." (Id. at p. 75.)

The Helen W. court rejected the mother's contention the lower court's finding of adoptability was not supported by substantial evidence. Despite the children's many problems, they also had appealing characteristics, such as "affectionate personality traits, positive interactions with others, and attractive physical appearances," that made adoption likely. (Helen W., supra, 150 Cal.App.4th at p. 80.) Further, the children's foster mother was committed to adopting them, and she had the skills to care for them and reasonable expectations. (Id. at p. 76.)

Here, the children's problems are relatively minor, and the record adequately shows their appealing characteristics outweigh those problems and make adoption likely. Further, R.E.'s grandmother is committed to adopting her, and N.L. and N.J.L.'s grandfather is committed to adopting them, and the record reveals no impediment to the adoptions. (See Helen W., supra, 150 Cal.App.4th at p. 80.) Further, the Agency had identified two other prospective adoptive homes.

Rae's reliance on In re Brian P. (2002) 99 Cal.App.4th 616, is misplaced. In that case, the court found the finding of adoptability was unsupported by the evidence because there was no assessment report, and the references in the record that the agency relied on were "devoid of any facts about Brian," and merely concluded without any support that he was adoptable. (Id. at p. 624.) The court did not, as Rae asserts, reverse the adoptability finding because the child suffered developmental delays. Rather, the court explained that the child's condition "raise[d] as many questions as assurances about his adoptability," and those questions had to be addressed in an assessment report. (Id. at pp. 624-625.) The opinion certainly does not stand for the proposition that a child with developmental delays is not adoptable.

Likewise, Rae's reliance on In re Tamneisha S. (1997) 58 Cal.App.4th 798, is unavailing. There, the appellate court affirmed the juvenile court's finding the child, who suffered from severe asthma and mild developmental delays, was not adoptable since the agency had more than 10 months to find an adoptive home but was unable to place the child. (Id. at pp. 802, 806-807.) The case does not hold that a child with those conditions is generally not adoptable, but rather that the record lacked evidence of adoptability. In this case, the children have been placed with grandparents who are committed to adopting them, and the issue is whether the court's finding of adoptability is supported by the evidence.

III

Sibling Bond Exception

Alternatively, Rae contends the court's finding against her on the sibling bond exception is not supported by substantial evidence.

Section 366.26, subdivision (c)(1)(B)(v) authorizes the court not to terminate parental rights despite an assessment of adoptability when "[t]here would be substantial interference with a child's sibling relationship." "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.) In determining whether the sibling bond exception applies, the "court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (Id. at p. 951.)

Rae contends that based on the aunt's testimony, the court should have applied the sibling bond exception to adoption. The aunt, however, was in favor of N.L. and N.J.L. being sent to live with their parental grandfather in another state, despite the resultant physical separation of siblings. Further, the aunt intended to continue to facilitate contact among all the children, and the prospective adoptive relatives were receptive and cooperative. Further, despite being separated from her brothers, R.E. told the social worker "she is excited to be adopted by her grandmother and wants to have a party once it happens." R.E. "has a good understanding of adoption and is able to articulate what it means to be adopted." Also, the aunt reported that N.L. and N.R.L. "have a very good relationship with their grandfather and are always very excited to see him," and the aunt "thinks that he will do an excellent job caring for the boys." Although J.C. was too young to form an opinion, "he does appear to be very bonded to his grandmother." Further, "the caregivers are very committed to continuing ongoing contact between the minors." Even with guardianships, the parties agree that N.L. and N.J.L. should remain out-of-state with their grandfather, and thus the only real issue is whether the grandfather will continue to facilitate contact if he is the adoptive parent rather than a guardian.

"Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.) The children do love each other and enjoy each other's company, and miss each other. There is, however, no compelling evidence that adoption, as opposed to guardianship, will cause any detriment, and to the contrary, it will provide the children with the permanent and stable homes they need and deserve.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, J., AARON, J.


Summaries of

In re R.E.

California Court of Appeals, Fourth District, First Division
Mar 4, 2008
No. D051665 (Cal. Ct. App. Mar. 4, 2008)
Case details for

In re R.E.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 4, 2008

Citations

No. D051665 (Cal. Ct. App. Mar. 4, 2008)