Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. J202906, J202908 & J202910. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
King J.
I. INTRODUCTION
Appellant Judy S. (mother) is the mother of three girls (Hailey S., R.S., & Melissa S.) and two boys (Justin S. & Jordan S.). The children’s father is Rudy M. At a hearing held pursuant to Welfare and Institutions Code section 366.26, the juvenile court terminated the parents’ parental rights as to the three girls and approved a permanent plan of adoption. The court found that the boys were not currently adoptable. On appeal, mother contends the court erred by: (1) ruling that the girls were adoptable; (2) failing to find that the beneficial relationship exception to adoption applied; and (3) failing to find that the sibling bond exception to adoption applied. We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the girls filed a letter brief joining in the brief submitted by the San Bernardino County Department of Children’s Services (DCS).
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
A. Background
On July 19, 2005, the five children were detained by DCS because of unsanitary conditions at their residence. Two days later, DCS filed petitions alleging that the children were within the juvenile court’s jurisdiction pursuant to section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). On the date of the detention, the children’s ages were: Melissa (11 years); Justin (9 years); R. (8 years); Jordan (3 years); and Hailey (1 year).
The children had extreme cases of head lice, multiple insect bites, and decaying teeth. Melissa, who was 11 years old at the time, stated that her parents routinely called her and the other children names like bitch, asshole, little fucker, and bastard. She also said that her parents hit the children. An adult living with the family confirmed that the parents verbally abused the children and called them profane names.
At a detention hearing, the court ordered the children detained in foster care. The boys were placed in one foster home, the girls in another.
In a jurisdictional/dispositional report, the social worker reported that the “children miss their parents and would like to have visitation with them,” and that “the siblings also miss [each other] and it is difficult for them to be separated from one another.” The social worker further stated that the “parents have expressed their desire to comply with [DCS] and to complete all services ordered to successfully reunify with their children. Both parents have expressed love for their children.” However, the social worker described the prognosis for reunification as “guarded.” The parents, she reported, have not taken responsibility for the actions that led to the removal of the children, and “have a history of neglecting their children’s needs and allowing them to live in filth.”
Following a mediation session at which the parties resolved issues concerning the allegations in the petitions, the court found that it had jurisdiction over the children under section 300, subdivisions (b) and (c). The children were made dependents of the court and placed in DCS’s custody. The court ordered weekly supervised visitation between the parents and children. The court also approved the social worker’s case plan and ordered the parents to participate in reunification services.
In February 2006, the social worker reported that the parents had completed parenting education and were participating in counseling. They consistently visited the children, maintained telephone contact with the girls, and spent additional time with them outside of normal visitation days. The social worker further reported that the parents did not have a suitable residence for the children and had not completed their case plan. Therefore, the social worker opined that returning the children would create a substantial risk of detriment to the children.
At the review hearing on February 24, 2006, the court ordered that the children remain in DCS’s custody. The court found, however, that there was a substantial probability that the children could be returned to the parents within six months, and set a permanency hearing under section 366.21, subdivision (f), for August 24, 2006. The court ordered weekly unsupervised visits.
In the status review report for the permanency hearing, the social worker reported that the parents have consistently visited the children and maintained telephone contact with the girls. The social worker reported that “Melissa has been observed being distant from her parents during the visits [and] . . . has refused to visit because of fear of her parents yelling at her for disclosing something they told her.” The parents’ housing situation remained a concern. According to the social worker, they live in homes unsuitable for children and “have not shown . . . that they can adequately maintain a residence.” They had not completed the requirements of their case plan and poor attendance for counseling resulted in termination with one agency. The social worker concluded that the prognosis of reunification was poor, primarily because the parents lack the motivation needed to make lifestyle changes.
At the August 24, 2006, hearing, the court found that the parents had made moderate progress towards completing their case plan and alleviating or mitigating the causes that necessitated the children’s placement in foster care. The court ruled that the children continue in foster care with the goal of returning them to the parents’ custody by January 2007.
In the status review report for the January 2007 permanency review hearing, the social worker reported that the parents “have maintained regular weekly visits with the children. The parents have maintained their relationship as a couple and with the children. During visits with the children extended ‘family’ members have surfaced. All of the children, except Melissa, seem to enjoy seeing other relatives.” Melissa does not enjoy the visits and stated that her parents are mean to her. With the help of her therapist, she composed a written list of the reasons why she did not want to return to her parents and wanted to continue living at her foster home. These include: she does not feel safe with her parents; they do not take care of her; although her parents say they have changed, they will go back to doing the same things as before; they are not affectionate toward her; her foster parents treat her well; she eats healthy food in the foster home instead of junk food; her sisters like it better at the foster home; she likes taking care of herself; and her foster parents take care of them.
Although the parents had “made steps towards the completion of their case plan,” the social worker reported that they have not “gained new parenting skills after taking parenting education” or “obtained resources to meet . . . the needs of their children.” They had moved four times during the preceding 12 months and made no attempt to obtain employment during the reunification period. The social worker concluded that “the only significant change that the parents have made since initial detention is a change of residence.” Accordingly, DCS recommended that reunification services be terminated and a hearing be set pursuant to section 366.26 to establish a permanent plan for the children.
Following a contested hearing on the request to set the section 366.26 hearing, the court found, among other facts, that the parents had failed to make substantive progress in their case plan and that returning the children to the parents would create a substantial risk of detriment to the children. The court then set a date for a section 366.26 hearing and terminated reunification services.
B. Section 366.26 Hearing
For the section 366.26 hearing, DCS submitted four reports: a section 366.26 report, an adoption assessment, a July 26, 2007, addendum to the section 366.26 report, and an August 1, 2007, adoption assessment addendum. In the section 366.26 report, DCS recommended that a plan of adoption be implemented for the three girls and parental rights be terminated; for the two boys, DCS recommended a “Planned [P]ermanent Living Arrangement.”
In the adoption assessment, DCS reported that the foster parents—with whom the girls have lived for the preceding two years—desire to adopt them. Although R. has been diagnosed as mentally retarded and the other two girls present developmental challenges, the prospective adoptive parents “love the children and are happy that they came to live with them. They are able to meet their individual needs . . . [and] willingly accept the birth parents’ background and risk of future problems, which the children might develop as a result of this background and other unknown factors.”
Neither parent personally appeared at the hearing. Melissa testified telephonically. Upon examination by mother’s counsel, Melissa testified that she and her sisters have lived with their foster parents for approximately two years. She visited with her parents and brothers once each week. When asked by mother’s counsel if she would be bothered if she was not able to see her brothers in the future, she answered, “No.” Although she enjoys the visits with her brothers, loves them, and has a good relationship with them, she did not want to continue the visits because she does not “get along with [her] parents.” If her parents were not at the visits, she would like to continue visiting her brothers. However, she would be “okay” with not seeing her brothers even if her parents were not at the visits.
When questioned by counsel for the boys, Melissa said that she enjoyed being with her brothers and hoped to continue their relationship into the future.
In response to questions from her attorney, Melissa said that she would feel sad if she were not adopted, that she calls her foster parents “mom and dad,” and that she would be “okay” if she were not allowed to visit her brothers.
A social worker testified that the children would not benefit from maintaining the bond they have with their parents. She explained that the girls consider their foster parents to be their parents and do not desire to have a parental relationship with the parents. She did not think there would be any harm to the girls by terminating parental rights.
Regarding the sibling relationship, the social worker acknowledged that a bond existed between the girls and boys and that this bond could be severed if parental rights were terminated. Nevertheless, she said that it would be better for the girls to have parental rights terminated. Whatever emotional attachment the siblings have, she testified, was outweighed by the benefit of adoption for the girls. She did not feel that the girls would be harmed emotionally if they were never able to see the boys again.
Following argument, the court ruled that there was clear and convincing evidence that the girls will be adopted. With respect to the parental benefit exception under former section 366.26, subdivision (c)(1)(A) (now § 366.26(c)(1)(B)(i)), the court stated that there was insufficient evidence that the benefit of maintaining the parental relations outweighed the benefits of adoption. Relative to the sibling relationship exception under former section 366.26, subdivision (c)(1)(E) (now § 366.26(c)(1)(B)(v)), the court found that despite evidence of a sibling bond, there was no evidence to support a finding that severing that bond would cause detriment to the three girls. The court then terminated parental rights and ordered adoption as the permanent plan for the girls.
III. ANALYSIS
A. Adoptability
Mother argues that the court erred in finding the children were adoptable. We disagree.
“The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) “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 adoptive 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. (1994) 22 Cal.App.4th 1642, 1649-1650.) We review the court’s finding of adoptability for substantial evidence. (In re Brian P., supra, at pp. 623-624.)
Mother relies upon the following evidence to support her claim that the children are not adoptable: (1) two of the three girls—Melissa (age 13) and R. (age 10)—are not young children; (2) Melissa, who was in the sixth grade, was still reading at a second grade level; (3) R. had been diagnosed as mentally retarded and will need special care throughout her life; (4) Hailey, at three years of age, has shown signs of less than normal language development, throws excessive tantrums, and is struggling with potty training.
Other evidence, however, supports the court’s finding of adoptability. Although Melissa was reading at a second grade level, she “has worked hard, and with lots of encouragement and tutoring, she has made progress and has a positive attitude about school.” She is in good health and “has made tremendous improvements in all areas that were concerning when she was initially taken into custody.”
Although R. “will always require some level of assisted living,” she “has made much improvement.” She is attending elementary school and is enrolled in special education classes. Despite her mental retardation, the foster parents who have cared for her for the preceding two years, love her and are committed to providing a good family and home for her.
The adoption assessment states that Hailey, at three years of age, “presents as a sweet, alert, curious, and strong willed child. She enjoys being with others, and is described by her caretakers as having a personality of a leader. . . . Overall, Hailey appears to be doing very well in the [foster] home, and has areas of development that will need to be assessed as she gets older.”
Even if “a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the children.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Here, the adoption assessment includes ample evidence concerning the prospective adoptive parents’ social history, their financial situation, and their understanding of the responsibilities of adoption. The prospective adoptive parents have previously adopted children, are familiar with the adoption process, and have “a full understanding of the level of commitment it requires to the children.” There is nothing in the record that suggests any legal impediment to adoption by the prospective adoptive parents. Viewing the evidence relevant to adoptability in its entirety, we hold that there is sufficient evidence to support the court’s finding of adoptability.
B. Beneficial Relationship Exception to Adoption
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in former section 366.26, subdivision (c)(1). (Former § 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 53.) One such exception is the so-called “beneficial relationship” exception set forth in former section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies “where termination of parental rights would be detrimental to the child because ‘[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.’” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
The parent has the burden of proving that the beneficial relationship exception applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826.) To satisfy this burden, the parent must show that his or her relationship with the child “‘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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.’” (Id. at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There must be a “compelling reason” for applying the beneficial relationship exception. (Former § 366.26, subd. (c)(1); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) This is a “quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.” (In re Jasmine D., supra, at p. 1351.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) The court’s discretion, however, “‘is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) In reviewing for an abuse of such discretion, we will reverse only if we conclude that the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, at p. 1351.) The appellants have the burden on appeal to establish an abuse of discretion. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624; see generally In re Stephanie M., supra, at pp. 318-319.)
Here, the court received evidence that Melissa expressed her desire to be adopted and testified that she did not want to continue with visits because she does not get along with her parents. The social worker for the children testified that the children do not desire a parental relationship with the parents, would not benefit from maintaining the parental bond with them, and would suffer no harm if their relationship with their parents was terminated. This constitutes substantial evidence supporting the court’s finding that the parental relationship was not so strong as to outweigh the benefits of adoption.
Mother relies primarily on two documents: a concurrent planning/adoption assessment prepared in January 2006, and a status review report prepared in August 2006. The first document states that Melissa “would benefit from continuing [the parental] relationship.” In the second document, a social worker reports: “The DCS 432.5 AD recommends that termination of parental rights would be detrimental to the children, as the parents are visiting regularly.” Neither of these reports were introduced into evidence at the section 366.26 hearing. Indeed, the documents were prepared approximately 18 months and 10 months, respectively, before the hearing and would have had little bearing on the issue even if they were admitted into evidence. Moreover, attached to the second document are five “DCS 432.5 AD” forms—one for each child. The forms pertaining to the two boys include a check mark in a box indicating, as the social worker stated, that termination of parental rights would be detrimental to the child. By contrast, the same box is unchecked on the forms for the girls. In light of these forms, the general statement in the August 2006 status report carries little weight as to the issue of the parental bond with the girls.
Mother also relies upon testimony of the social worker that the parents attended school functions with the children and that the four youngest children were always excited to see their parents at visits. This falls far short of satisfying mother’s burden on appeal of showing an abuse of discretion. Participating in school functions and evidence of the children’s excitement during visits is insufficient to demonstrate that mother’s relationship with the children “‘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.’” (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, the court did not abuse its discretion in finding that the beneficial relationship exception did not apply.
C. Sibling Relationship Exception to Adoption
Mother argues that the court erred in failing to find that the sibling relationship exception under former section 366.26, subdivision (c)(1)(E), applied. This subdivision provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a “substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (Former § 366.26, subd. (c)(1)(E).)
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (In re Celine R., supra, 31 Cal.4th at p. 61.)
At the section 366.26 hearing, Melissa testified that while she loves her brothers and enjoys visiting them, she would be “okay” if she did not get to visit them. Indeed, she would not be bothered if she was not able to see them at all in the future. The social worker testified that any emotional bond the girls had with the boys could be severed without emotional harm to the girls, and that loss of the relationship between the children was outweighed by the benefits of adoption.
As with her beneficial relationship argument, mother relies heavily upon documents prepared early in this two-year long proceeding that were not admitted into evidence at the section 366.26 hearing. The evidence she relies upon that was before the court essentially shows that Melissa loved her brothers and would prefer to have them live with her if possible. However, it is also clear from her testimony that she believed that adoption and the possible severance of her bond with her brothers outweighed her love for them.
The evidence cited by mother does not establish that the court’s finding regarding the sibling relationship exception constituted an abuse of discretion.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: McKinster Acting P.J., Gaut J.