Opinion
NOT TO BE PUBLISHED
Before Vartabedian, A.P.J., Wiseman, J., and Hill, J.
APPEAL from orders of the Superior Court of Fresno County, Super. Ct. No. 05CEJ300165. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21).
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelly, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Mother appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her five children. We will affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Appellant and S.G., Sr. (S.G.) are the parents of the five children at issue on this appeal. In November 2005, the juvenile court exercised dependency jurisdiction over the children, then ranging in age from two months to seven years, because of appellant and S.G.'s methamphetamine use. The court ordered the social services department (department) to implement a plan of reunification for both parents, which included supervised visitation. Meanwhile, the children were placed in separate foster homes.
By March 2007, appellant and S.G. had completed their reunification services and had progressed to liberal visitation with the younger two children and weekend visitation with the older three. However, allegations of physical abuse lodged against appellant and S.G. by the children's foster parents, though unsubstantiated, prevented appellant and S.G. from reuniting with the children. As a result of the allegations, the court reinstated supervised visitation in March 2007. That same month, appellant and S.G. relapsed by using methamphetamine.
In March and April 2007, appellant and S.G. either arrived late for or cancelled the six visits arranged and failed to follow through on promises they made to the children during telephone conversations. As a consequence, the children began acting out in ways the department considered detrimental to their emotional and physical well-being.
In May 2007, at a contested 18-month review hearing, the juvenile court terminated reunification services for appellant and S.G. and set a section 366.26 hearing for September 2007. In August 2007, the court reduced visitation to one-hour supervised visits twice a month pursuant to a section 388 petition filed by the department. Neither parent appealed from the court’s order modifying visitation.
Neither parent sought writ relief from the court's setting order. (Cal. Rules of Court, rule 8.452.)
In its September 2007 report for the section 366.26 hearing, the department advised the court the children were likely to be adopted but that their care providers were not willing to provide them a permanent home and the department had not found any relatives suitable for placement. The department further reported it was taking measures to locate an adoptive family. Consequently, the department requested a 180-day continuance to assess the most appropriate placement. In September 2007, at the time originally set for the section 366.26 hearing, the court continued the section 366.26 hearing to February 2008.
In the intervening months, appellant and S.G. failed to maintain regular visitation. They did not show up for the first visit in October and were not allowed their second visit the same month because they tested positive for methamphetamine. They visited the children twice in November, once in January, and once in February. They did not visit the children at all in December.
Also during this time frame, the children were placed in two separate prospective adoptive homes. The two younger children were placed in November 2007 and the older three were placed in February 2008.
According to the department in its February 2008 section 366.26 report, the three older children had special needs. The nine year old was receiving special education and therapy for a variety of problems, including anxiety. The seven year old was disruptive in class and was receiving services to improve his speech and individual therapy for Attention Deficit Hyperactivity Disorder. The four year old was also in therapy to address her disruptive behavior, including fighting. In addition, the two younger children were participating in early intervention services for speech delay.
Despite these challenges, the older children’s adoptive parents had taken an active role in coordinating with the children’s therapists and teachers. They also forged a good relationship with the children and were committed to adopting them. Equally motivated to adopt were the adoptive parents of the younger two children who appeared bonded to them and the children called them “mom” and “dad.”
The department concluded the three oldest children, though not generally adoptable because of their behavior, were likely to be adopted by their prospective adoptive family. The department further concluded the younger two children were generally adoptable because of their age. In addition, the department reported the children did not appear to have a strong parent/child relationship with appellant and S.G. and did not believe maintaining their relationship with their parents outweighed the benefit they would gain by a permanent adoptive home. Consequently, the department recommended the court terminate parental rights and free the children for adoption.
In February 2008, at the time set for the continued section 366.26 hearing, the court set a contested hearing for April 2008. The court also set an interim hearing two days later to consider appellant and S.G.’s request for a bonding study.
At the interim hearing, the court concluded the request for a bonding study was untimely and the parties were on notice that adoption was being contemplated as a permanent plan. The court also concluded that it did not need a bonding study to help determine whether the children shared a significant positive attachment to their parents so as to overcome the legal preference for adoption. Rather, the court stated the chances of that occurring was “practically nil,” citing the parents’ poor visitation record and reports of the children’s aggressive acting out during visitation, including calling the parents liars and the seven year old defecating in his pants. Consequently, the court denied the request which neither appellant nor S.G. appealed.
In March 2008, the court convened the section 366.26 settlement conference hearing. Neither appellant nor S.G. personally appeared despite having been previously advised of the default consequences. Not finding good cause to continue the matter for trial, the court conducted the section 366.26 hearing, and after the parties submitted the matter, found the children likely to be adopted and terminated appellant and S.G.’s parental rights. During the course of the hearing, minors’ counsel informed the court the children were doing well in their adoptive homes and were having sibling visits. This appeal ensued.
DISCUSSION
Bonding Study
Appellant argues the juvenile court abused its discretion and violated her due process right in denying her request for a bonding study. She asserts the department’s reports were positive with respect to her bond to the children until the setting of the section 366.26 hearing after which the department’s opinion shifted. Consequently, she claims, she was entitled to an expert’s opinion on the nature and extent of the children’s bond to her.
As a preliminary matter, we note the court’s order denying the request for a bonding study was issued at an interim hearing in February 2008, making it an appealable order. Since appellant did not appeal the order, she technically waived her right to review. However, though her notice of appeal makes no reference to the order denying her section 388 petition, it was filed within 60 days of the court’s order denying the section 388 petition. In an analogous situation, we liberally construed a notice of appeal to include a challenge to the denial of the section 388 petition. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.) For the same reasons, we will do so here. However, as we now explain, we find no merit to appellant's claim of error.
The juvenile court is not bound by statute or case law to obtain a bonding study prior to terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) Further, once the court terminates reunification services, “[f]amily preservation ceases to be of overriding concern” and “the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability.” (Id. at p. 1340.) By the time termination of parental rights is possible, the parent’s unwillingness or inability to provide a normal home for the child is clear and “the state’s interest in finding the child a permanent alternative home is fully realized.…” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)
Here, appellant requested a bonding study in February 2008, long after the court terminated her reunification services in May 2007. Appellant excuses her delay by asserting there was confusion about whether adoption would be the recommended permanent plan. However, as the court noted, appellant had a clear indication as early as September 2007 that adoption was a possibility. While it is not beyond the juvenile court’s discretion to order a bonding study so late in the process, the court’s denial of appellant's belated request for a bonding study was fully consistent with the dependency statutory scheme and with due process. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)
Further, it is difficult to imagine how the juvenile court abused its discretion in not ordering a bonding study in this case. “The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering a bonding study. [Citation.]” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.) Under these circumstances, it is unlikely that a bonding study would have assisted the court. On the contrary, it would have required the court to revisit family reunification, an issue previously decided, and caused a lengthy and unnecessary delay in expeditiously resolving this dependency case. In addition, a bonding study would not have better assisted the court in deciding whether to terminate appellant’s parental rights. With more than two years worth of reports addressing the interactions between appellant and her children, the court was well aware of the nature of appellant’s bond with them. Further, given the evidence in this case, we cannot imagine nor does appellant explain what information the court would have gleaned from a bonding study that would have made a difference in this case. Accordingly, we find no abuse of discretion.
Adoptability
Appellant argues the juvenile court erred in concluding the children are adoptable. She points to the department’s concession the oldest three children were only generally adoptable and challenges the department’s conclusion the younger two were generally adoptable, citing evidence they were struggling with developmental delays. Further, she contends the children’s strong sibling bond and newness to their adoptive placements threaten the permanency of those placements and place them at risk of becoming legal orphans should adoption fail.
Before a juvenile court may terminate parental rights at the section 366.26 hearing, it must find by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) In assessing a child’s adoptability, the court considers whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A prospective adoptive parent’s 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. (Id. at pp. 1649-1650.) Notably, the child need not be in a potential adoptive home nor must there be a proposed adoptive parent “waiting in the wings” for a court to find a child adoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
The record before us contains substantial evidence that each of appellant’s children were likely to be adopted. At the time of the section 366.26 hearing, the children were all healthy and doing well in their adoptive homes. The adoptive parents for the older three children were well aware of their educational and therapeutic needs and were actively engaged in meeting their needs. Further, the younger two were receiving services to improve their speech and reportedly the older of the two was making good progress.
Further, there is no evidence the children would disrupt their adoptive placements because of their separation. The children remained separately placed throughout these proceedings without incident. All the while, they remained in contact through sibling visitation, an arrangement their adoptive parents continued to facilitate. Consequently, there is no reason to believe any problems among the siblings would jeopardize their adoptive placements.
Finally, even assuming arguendo, appellant’s children were not generally adoptable, they were living in the adoptive homes of eligible and committed adoptive parents and they were maintaining sibling contact. To entertain the possibility that these adoptive parents may not adopt the children, as appellant would have us do, is mere speculation. Rather, we take the more commonsensical view that “when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because ‘it is likely’ that that particular child will be adopted.” (In re Jayson T. (2002) 97 Cal.App.4th 75, 85.) For all the reasons stated above, we conclude there was substantial evidence to support the court's adoptability finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
Beneficial Relationship Exception to Adoption
When the juvenile court makes a finding of adoptability, it must terminate parental rights unless it finds a compelling reason that termination of parental rights would be detrimental to the child under one of the exceptions contained in section 366.26, subdivision (c)(1)(B). The exception at issue in this case, subdivision (c)(1)(B)(i) of section 366.26, applies in circumstances where the parent maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. This exception is often referred to as the “beneficial relationship” exception.
In determining whether the beneficial relationship exception applies, the juvenile court “balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child.” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
Appellant argues the juvenile court could not properly find the beneficial relationship exception to adoption did not apply in her case because it previously and erroneously decreased visitation. As a result of its error, she claims, her once strong bond with her children was eroded, which disadvantaged her in those critical months leading up to the section 366.26 hearing.
For purposes of our review, we assume, because appellant does not specify, that she is referring to the court’s order issued in August 2007 decreasing visitation to twice a month. What appellant fails to acknowledge is that she waived her right to appellate review of the court’s visitation order by failing to timely challenge it by direct appeal. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) We presume, therefore, that visitation as ordered was proper.
Further, the parent bears the burden of proving that termination of parental rights would be detrimental. (In re Lorenzo C., supra, 54 Cal.App.4th, supra, at pp. 1343-1344.) Here, appellant is in no position to complain about the court’s decision in view of the fact that she never asked the court to consider the beneficial exception to adoption. When the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. Appellant failed to do so and thus waived her right to raise this issue now.
In addition, the statutory exceptions merely permit the court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) However, the record, as summarized above, does not rise to the level of exceptional circumstances so as to compel the court to find termination would be detrimental to the children. (Ibid.) Appellant’s visitation record was poor and she was still struggling with drug use. In addition, she offered no evidence that the children would suffer any harm, much less great harm, if her relationship with them was severed. Conversely, there was evidence the children were happy and doing well in their adoptive homes. In light of the foregoing, we find no abuse of discretion in the court’s order terminating appellant’s parental rights.
DISPOSITION
The order terminating parental rights is affirmed.