Opinion
A112974
12-11-2006
In re S.A., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. WALTER A., et al., Defendants and Appellants.
Walter A. and V.B. appeal an order terminating their parental rights to their child S.A. They argue there was insufficient evidence to support the juvenile courts finding that S.A. was likely to be adopted within a reasonable time. V.B. also contends that the "beneficial relationship" exception precluded termination of parental rights. We affirm.
BACKGROUND
On August 7, 2003, the San Joaquin County Human Services Agency filed a petition alleging that S.A., born in February 2003, was a minor within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). S.A.s parents are V.B. ("Mother") and Walter A. ("Father"). The petition alleged that S.A. was at risk of harm to due her special medical needs and her parents inability to meet those needs. The petition further alleged that S.A. was admitted to Childrens Hospital in Oakland due to poor heart function, S.A. requires extensive medical care and medication, and she could die with inappropriate care. The petition further alleged that the parents relationship involves domestic violence, that Father could not provide a home for S.A., and that Mother lived with her own mother, who used drugs. S.A. was ordered detained August 8, at the age of six months.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
On December 16, 2003, the juvenile court adjudged S.A. a dependent child of the juvenile court under section 300, subdivision (b). Subsequently, the court transferred the dependency proceeding to the juvenile court for Contra Costa County. A February 2005 Children & Family Services Bureau (CFS) status review report recommended that the juvenile court terminate reunification services and set a section 366.36 hearing. The report stated that S.A. had been diagnosed with Wolff-Parkinson-White Syndrome, which can result in a rapid heartbeat and which caused the enlarged heart that led to S.A.s hospitalization in July 2003. Since her hospitalization, it had been necessary to constantly monitor S.A.s heartbeat and give her medications several times a day. Father had not yet begun to participate in his case plan activities. Mothers participation had been inadequate. She missed meetings with the social worker, did not enroll in therapy or parenting classes, and demonstrated an inadequate understanding of S.A.s medical needs. On March 29, 2005, the juvenile court terminated reunification services and scheduled a hearing under section 366.26 to consider a permanent placement for S.A.
In July 2005, CFS filed a section 366.26 report. Subsequently in November 2005 and January 2006, CFS filed addenda. S.A. had been placed with her paternal grandmother in March 2005. CFS twice requested that the hearing date be moved in order to provide further opportunity "to review the current caretakers commitment and ability to become an approved adoptive parent." CFSs reports provided information regarding S.A.s adjustment to her grandmothers care, S.A.s medical condition and physical and emotional development, S.A.s relationship with her parents, and the grandmothers progress towards completion of an adoption home study.
At the section 366.26 hearing in January 2006, both parents objected to termination of their parental rights but did not present any evidence. The juvenile court found that S.A. is adoptable and terminated the parental rights of Mother and Father.
DISCUSSION
I. Adoptability Finding
Both Mother and Father contend that there was insufficient evidence to support the juvenile courts finding that S.A. is adoptable. A juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (Welf. & Inst. Code, § 366.26, subd. (c)(1); In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) Clear and convincing evidence is evidence that establishes a high probability and leaves no substantial doubt. (In re Carl R., at pp. 1060-1061.) We review the juvenile court order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that S.A. is likely to be adopted. (§ 366.26, subd. (c)(1); In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.) We review the evidence in the light most favorable to the juvenile court order, drawing every reasonable inference and resolving all conflicts in support of the order. (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
Generally, "[t]he issue of adoptability requires the court to focus on the child, and whether the childs 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.) The fact that prospective adoptive parents have expressed interest in adopting a child is evidence that the childs age, physical condition, and emotional state are not likely to dissuade others from adopting the child. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Mother and Father contend that S.A. was not "generally adoptable" because of her medical problems, and that the juvenile court could not rely on the existence of a prospective adoptive parent because the grandmother was not yet fully approved.
By the time of the section 366.26 hearing in January 2006, S.A.s health had considerably improved as a result of heart surgery in September 2005. It was no longer necessary to continually monitor her heart, she no longer took heart medication, and an EKG showed her heart rate was "slightly high but within normal range." S.A. still has Wolff-Parkinson-White Syndrome, she takes asthma medication and medication to help with water retention, and uses a prescription cream for eczema behind her knees and on her elbows. Otherwise, CFS characterized S.A. as a "vibrant and affectionate two-year old" who "appears to be developmentally on target." Her paternal grandmother, the prospective adoptive parent, reported no concerns about S.A. and stated that S.A. is "very bright" and "a happy and easygoing little girl." In light of S.A.s youth and the lack of any behavioral problems or other obstacles to adoption in the record, S.A.s medical condition alone did not preclude a finding of adoptability.
The willingness of S.A.s paternal grandmother to adopt further supports the juvenile courts finding of adoptability. S.A. has been placed with her grandmother since March 2005. The Bureau reported that S.A. "adjusted well" to the placement and "appears very comfortable in [her grandmothers] care." The grandmother "is very committed to adopting [S.A.] and providing her with a stable nuturing and loving home. She has been a great advocate for [S.A.], and has provided her with exceptional medical care." As of January 2006, the grandmother had "completed all aspects of her adoptive home study including finding her husband in Columbia and obtaining a notarized signature from him to allow the homestudy to be completed." Grandmother had a "clean Child Abuse Index."
Mother argues that without CFSs final approval of the grandmother as a prospective adoptive family there can be no clear and convincing evidence that the minor is adoptable. However, Mothers argument is premised on an assumption that S.A.s medical condition made it difficult to find a person willing to adopt and, thus, precluded a finding of general adoptability; as explained above, that assumption is incorrect. Instead, this case is subject to the standards normally applicable to adoptability determinations. In particular, "[i]t is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting." (In re Brian P., supra, 99 Cal.App.4th at p. 624.) Rather, the fact that S.A.s grandmother is willing to adopt S.A. is additional evidence that S.A.s age, physical condition, mental state are not likely to dissuade individuals from adopting her. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
The cases cited by Mother and Father in which adoptability findings were held unsupported are factually distinguishable. In In re Asia L., supra, 107 Cal.App.4th 498, three siblings were hyperactive, one suffered from enuresis, two required specialized placements, one had a bad temper, and despite a continuance to explore adoptive prospects, the only concrete evidence of a prospective adoptive home was an expressed willingness by the foster parents of two of the children to "explore the option" of adopting them and to bring the third child into the foster placement. (Id. at pp. 511-512.)
In In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, the adoption assessment gave no consideration to the childs close relationship with his mother or to the fact that the child had a prosthetic eye that apparently required care and treatment. The juvenile courts finding of adoptability rested completely on the expressed willingness of the mothers former boyfriend to adopt him. (Id. at pp. 1203, 1205.) The former boyfriend, however, had a criminal record based upon abuse of the childs mother and was listed as a perpetrator with Child Protective Services for emotionally abusing his nephews and niece, all of which created significant doubt he would ever be approved to adopt. (Id. at pp. 1204-1205.)
At the time of the section 366.26 hearing, there was substantial evidence of S.A.s adoptability. S.A.s medical problems were not an obstacle to adoption. There was nothing else about her age, physical condition, and emotional state that would make it difficult to find a person willing to adopt her. (In re Brian P., supra, 99 Cal.App.4th at p. 624.) S.A.s grandmothers commitment to adopting her was strong evidence of her adoptability. The juvenile court did not err.
II. The "Beneficial Relationship" Exception
Mother contends that even if the juvenile court did not err in finding that S.A. is likely to be adopted, the court erred in terminating her parental rights under the "beneficial relationship" exception of section 366.26, subdivision (c)(1)(A).
In general, if the court finds that a child is adoptable at a section 366.26 hearing, it must select adoption as the permanent plan; to that end, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule is subject to five statutory exceptions. (§ 366.26, subds. (c)(1)(A)-(c)(1)(E).) The "beneficial relationship" exception applies when "[t]he parents ... have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent has the burden of proof that the beneficial relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) We review the juvenile courts implied finding that the exception is inapplicable under an abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Jesse B. (1992) 8 Cal.App.4th 845, 85.)
At the time of the section 366.26 hearing, the childs interest in a stable and permanent placement is paramount. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) "The child has a compelling right `to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] Adoption is the Legislatures first choice because it gives the child the best chance at such a commitment from a responsible caretaker." (Ibid.) "`[A]doption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the childs need for a stable and permanent home that would come with adoption. " (Id. at pp. 1348-1349.)
Mother contends S.A. would benefit from a continued relationship with her because she maintained twice monthly, and subsequently once monthly, visitation with S.A. and the visits went well. Mothers visiting history is insufficient to establish a basis for the beneficial relationship exception. A parent who has failed to reunify may not prevent termination of parental rights "merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) "Interaction between natural parent and child will always confer some incidental benefit to the child," but the exception applies only when the relationship with a natural parent "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." (Autumn H. (1994) 27 Cal.App.4th 567, 575.) Similarly, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, held that parents "frequent and loving contact" with their children was not enough to establish the necessary benefit from continuing the relationship, when the parents "had not occupied a parental role in relation to them at any time during their lives."
At the time of the section 366.26 hearing, S.A. was almost three years old. She was removed from the custody of her parents at the age of six months. Mother had not acted in a parental role since then. Moreover, the juvenile court found that Mother had made no progress in addressing the circumstances that originally necessitated removal. Among other things, Mother had "experienced difficulty grasping the information and answering questions about her daughters health and well being" and appeared "to have great difficulty keeping track of information given to her and keeping appointments." Although S.A. was not as fragile at the time of the section 366.26 hearing as at the time of removal, she still needed a parent capable of addressing her medical needs. As In re Jasmine D. held, "a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The beneficial relationship exception permits the juvenile court to choose an option other than adoption in "exceptional circumstances." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The record in this case does not demonstrate such circumstances. The juvenile court did not abuse its discretion in finding the section 366.26, subdivision (c)(1)(A) exception inapplicable.
Mother contends that her counsel below was ineffective for failing to raise the beneficial relationship exception. We do not reach this issue because we hold that the juvenile courts implied finding that the exception is inapplicable was not an abuse of discretion. In any event, Mother has not shown a reasonable probability that a result more favorable to her would have been reached in the absence any error by her counsel below. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
DISPOSITION
The order is affirmed.
We concur.
JONES, P.J.
MILLER, J.