Opinion
F052634
4-19-2007
In re ROBERT H. et al., Persons Coming Under the Juvenile Court Law. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. LINDA H., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory J. Oliver, County Counsel, and Christopher J. Schmidt, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Linda H. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her three young children. She challenges the courts finding that it was likely the children would be adopted because adoption assessments in their cases failed to address the nature of their sibling bond with her older children. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Appellant has a long history of child welfare intervention dating back to 1985. Her eldest of seven children was born in 1983. Over the years, she neglected and endangered her children, emotionally and physically abused them, exposed them to sexual abuse, and engaged in domestic violence.
This case concerns appellants three youngest children (the children). In March 2005, six-year-old Robert, four-year-old Bethany, and two-year-old Christopher were placed in protective custody after the two-year-old was found for the second time in a month wandering in the middle of a busy, highway intersection. Christopher was almost hit by three cars. There had also been two occasions when four-year-old Bethany was also seen wandering around the same intersection.
Although two of the childrens older siblings were still minors and lived with appellant in March 2005, they were not removed. They were 14 and 17 years old at the time.
Following the childrens removal, the Tuolumne County Superior Court detained them and sustained allegations that appellant failed to provide adequate supervision, shelter and clothing and that she failed to protect them from sexual abuse perpetrated by a live-in relative. (§ 300, subd. (b).) At the dispositional hearing, the court formally removed the children from parental custody and ordered reunification services for appellant as well as the childrens father who had not been living in the home at the time. Court-ordered services included weekly visitation.
Over the course of the next six months, appellant failed to comply with her case plan. Consequently, in November 2005, the juvenile court terminated her services and reduced her visits to once-a-month. Despite an additional six months of services for the childrens father, he failed to complete the objectives of his case plan. The juvenile court in turn terminated his services in April 2006 and reduced his visits to once-a-month. The court also set a section 366.26 hearing to select and implement a permanent plan for the children.
Appellant appealed from the juvenile courts order terminating her reunification services, a decision we affirmed in In re Bethany H., F049385.
In advance of the section 366.26 hearing, respondent Tuolumne County Department of Social Services (department) and the California Department of Social Services (CDSS) conducted a joint assessment regarding permanency planning for each child. In turn, the department prepared and filed with the court a "366.26 WIC Report" for each child which contained a "PERMANENCY PLANNING ASSESSMENT." Attached to each report was the CDSS "W.I.C. 366.26 ADOPTION ASSESSMENT" for each child.
In summary, both sets of assessments characterized the children as likely to be adopted and recommended the court terminate parental rights. Consistent with statutory requirements, these assessments: evaluated each childs medical, developmental, scholastic, mental and emotional status (§ 366.21, subd. (i)(3)); contained preliminary assessments of the eligibility and commitment of the childrens identified prospective parents (§ 366.21, subd. (i)(4)); described the childrens relationships with their prospective adoptive parents (§ 366.21, subd. (i)(5)); contained statements from Robert and Bethany concerning placement and adoption (§ 366.21, subd. (i)(5)); and analyzed the likelihood of each childs adoption (§ 366.21, subd. (i)(7)).
Christopher was deemed to be too young to provide such a statement.
Once a section 366.26 is set, the agency supervising the child and either the licensed county adoption agency or CDSS prepares an adoption assessment. (§ 366.22, subd. (b); see also § 361.5, subd. (g) & § 366.21, subd. (i).) This assessment provides the information necessary for the juvenile court to determine the likelihood of the dependent childs adoptability (§ 366.26, subd. (c)(1)). The assessment shall include:
"(1) Current search efforts for an absent parent or parents.
"(2) A review of the amount of and nature of any contact between the minor and his or her parents or other members of his or her extended family since the time of placement. Although the extended family of each minor shall be reviewed on a case-by-case basis, `extended family for the purposes of this paragraph shall include, but not be limited to, the minors siblings, grandparents, aunts, and uncles
"(3) An evaluation of the minors medical, developmental, scholastic, mental, and emotional status.
"(4) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the minors needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship.
"(5) The relationship of the minor to any identified prospective adoptive parent or guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the minor concerning placement and the adoption or guardianship, unless the minors age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.
"(6) An analysis of the likelihood that the minor will be adopted if parental rights are terminated." (§ 366.21, subd. (i); see also § 361.5, subd. (g) & § 366.22, subd. (b).)
The assessments also contained information regarding contact between the children and their family since the time of placement (see § 366.21, subd. (i)(2)). Relevant to this appeal, the department assessments included the following:
"Ms. [H.] attended semi-regular visits with her children during the course of the childrens juvenile court dependency. The maternal grandmother called the undersigned occasionally to inquire about how the children were doing. She also attended some of the visits with the mother and children. Additionally, the childrens older siblings, [S.], [T.], and [M.] attended the visits with the mother and children occasionally.
"Mr. [H.] attended regular visits with his children during the course of the childrens juvenile court dependency. During a period of several months in which Mr. [H.] received unsupervised visits with his children, he provided occasional contact between the children and their adult sibling, [C.G.] and [her three children].
"[C.G.] also attended one short impromptu visit with [T.], [B.], and [C.] at the Child Welfare Services office. [C.G.] did not request further visitation with her younger siblings. [¶] . . . [¶]
"Ms. [H.] has attended visits with the children once monthly since the six-month review hearing. The children have adjusted to the infrequency of the visits with their mother and older siblings. Although they enjoy the visits, their interaction with Ms. [H.] is limited. Ms. [H.] often brings other individuals to the visits, including her significant other, the maternal grandmother, and several of their older siblings, [S.], [T.] and/or [M.]. In addition, a teenage couple, who are friends with [M.] attended the June 2006 visit. [Robert], Bethany, and Christopher did not display an attachment to them. Further, they presented as a distraction. Ms. [H.]s ability to supervise all three of her children continues to be limited."
As it had been necessary to place Robert in a separate adoptive home from Bethany and Christopher, the CDSS assessments added in this regard:
"Both prospective adoptive families are committed to an ongoing relationship for the three children. The children live geographically close which will make ongoing contact between the children easier."
Because the parents contested the joint recommendation to terminate their rights, the court continued the section 366.26 hearing to late September 2006. At the contested hearing, there was no dispute that the children were adoptable. Instead, the hearing focused on whether termination would be detrimental to the children. The evidentiary phase commenced with the department calling Renee DeVol, its social worker assigned to the case since April 2005. Much of her testimony pertained to visitation between the children, their parents and their older siblings. Asked how often the children had visited their older siblings, DeVol replied:
"Less than once a month. They come — you know, therell be maybe one, two, three months at a time and then they wont be there for a month, so I would say over the course of the last six to eight months, they probably visited them four times."
The social worker also testified the children never asked to visit their older siblings nor did the children express any distress when such visits ended. DeVol described the sibling interaction she observed during visits in the following terms:
"Fun and playful. [T.] is I think 17 or 18 now, just kind of comfortable, playful. The older brother, [S.], the same way. [M.] is — I believe now shes 15, she doesnt really engage with the children that much, maybe shes on the phone or says hello. Theres not a real strong negative that Ive seen in them being around the children or real strong, you know, connection. I have not seen any, you know, upset when visits end, that kind of thing."
During cross-examination by appellants trial counsel, the social worker further testified there was no reason to disallow the older siblings from joining appellant in some of her visits with the children. When asked if some of the older siblings had a role in raising the children, the social worker replied she was unaware of any such role.
The childrens attorney questioned the social worker about whether there was a plan for continued visits with the older siblings. Answering there was no such plan, the social worker explained:
"In terms of terminating parental rights, the older siblings again would be a connection to past neglect, past chaos, past problems that would continue to tie the children into that lifestyle. The hope of Adoptions and our office would be for them to be able to move ahead and lead functional lives. The relationship that I have seen with the siblings and with the parents has been more of peers than as of a strong family bond, like people that you might get together with and have played with and have fun and then leave. I dont see that they have been — they have never cried, or at least in the last 15 months, or demonstrated any upset when leaving visits with their siblings."
On redirect examination of the social worker, the department brought out that previously there had been safety concerns when the children had been left solely in their older siblings care. It was on one of those occasions in 2005 when Christopher was found by himself on the highway.
Appellant, the childrens father and the childrens 15-year-old sister also testified at the section 366.26 hearing. Relevant to this appeal, all three testified there was a bond between the children and their older siblings.
Following closing arguments, the court found by clear and convincing evidence that the children were adoptable. Further, the court determined the parents had not overcome the preference for adoption with either evidence of a parent/child relationship or a substantial sibling relationship. The court thereafter terminated parental rights.
DISCUSSION
According to appellant, the department and CDSS failed to provide in their assessments a review of the nature and history of the childrens contact with their older siblings. As a consequence, appellant contends there was insufficient evidence to support the courts finding that the children were adoptable. We disagree.
To begin, the issue of adoptability posed in a section 366.26 hearing focuses on the child, that is whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Although the children here, particularly the eldest, displayed some challenging behaviors, they had other qualities that made them adoptable. They were ages seven years and younger. They had no serious medical problems. Further, they were pleasant, playful, generally optimistic and affectionate. Moreover, although it is not necessary that a dependent child, in order to be found adoptable, already be in a potential adoptive home or that there be a proposed adoptive parent "waiting in the wings" (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11), the children here were in potential adoptive homes with prospective adoptive parents committed to adopting them. Thus, there was substantial evidence to support the courts adoptability findings. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
To the extent appellant criticizes the adoption assessments as failing to include a review of the nature and history of the childrens contact with their older siblings, we are unpersuaded for the following reasons. One, appellant has waived the right to complain as to the adequacy of the adoption assessments, given her silence on the matter in the juvenile court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) Two, as mentioned earlier in this opinion, the law only requires vis-à-vis a dependent childs family members, "[a] review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement." (§ 366.21, subd. (i)(2).) Here, the departments assessment, as quoted above, arguably contained such a review of the childrens contact with their older siblings since the childrens out-of-home placement. According to the record, three of the older siblings occasionally attended the visits between the children and appellant. The fourth and eldest sibling had occasional contact with the children through their father. The children did not display an attachment to the older siblings.
Nevertheless, any shortcoming in the adoption assessments review of the amount and nature of any sibling contact was resolved by the social workers testimony, as summarized above. DeVol testified the older siblings were inconsistent in their attendance and, although their interaction was fun and playful, there was no "real strong" demonstrable connection. Further, she testified the children never expressed distress at the end of those visits nor did they ever ask to visit their older siblings. Finally, she compared the contact the children had with their older siblings to that of peers rather than family members. To the extent appellant now criticizes the social workers testimony as "nothing more than bald assertions that [the children] did not display an attachment to their older siblings," she misses the point. The social worker described what she observed as a percipient witness to the visits. In so doing, she reviewed the amount and nature of the sibling contact. We disagree with appellants characterization of the social workers testimony as nothing more than opinion. We also note in this regard that appellant never lodged any objection to the social workers testimony in this regard. (See Evid. Code, § 353.)
Finally, it appears from her argument that appellant actually attempts to transmute the statutory requirement for a review of the amount and nature of post-placement sibling "contact" into a requirement for a discussion of sibling "bond." We conclude there is no merit to her claim. First, her effort defies the actual statutory language, which merely requires "[a] review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement." Second, she ignores the law, section 366.26, subdivision (c)(1)(E), which places the burden on a parent, not the department or CDSS, to show termination would substantially interfere with a substantial sibling relationship. We note in this regard that appellant urged the court to find such an exception to termination existed in her childrens cases. However, she does not claim on appeal that the court abused its discretion by rejecting her argument.
DISPOSITION
The order terminating parental rights is affirmed.