Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. SJ10494C, Martin W. Staven, Judge.
McCONNELL, P. J.
Elizabeth H. appeals a juvenile court order terminating her parental rights to her minor daughter, Summer I., under Welfare and Institutions Code section 366.26. Elizabeth contends: (1) the court erred by selecting adoption as Summer's permanent plan without sufficient evidence of Summer's relationship with her siblings, her developmental status or the eligibility and commitment of her caregivers to adopt; (2) Agency failed to give proper notice of the selection and implementation hearing to some of Summer's siblings; and (3) the beneficial parent-child relationship exception applied to preclude terminating her parental rights. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2008, 11-month-old Summer became a dependent of the juvenile court under section 300, subdivisions (a) and (b), and was removed from parental custody based on findings her parents, Elizabeth and Kenneth I., exposed her to domestic violence and drug abuse, neglected her medical needs and failed to provide her with a clean and adequate home. The court placed Summer in foster care where her seven-year-old half sister Skylar also lived and ordered Elizabeth to participate in reunification services.
Kenneth has not appealed.
Elizabeth has a long history of instability and has had more than 50 contacts with child protective services. Elizabeth's four older children—Mark, Matthew, Desiree and Damien—were raised by their grandparents. Her youngest child, Jack, was born during Summer's dependency proceedings and was removed from Elizabeth's custody when he was six months old. Kenneth had four children (including Skylar), all of whom were or had been juvenile court dependents in out-of-home care.
Mark (age 20) and Matthew (age 19) were both involved in the juvenile delinquency system.
During the reunification period, Elizabeth participated in services, including substance abuse treatment, parenting classes and individual therapy. She had supervised one-hour visits with Summer twice a week. Elizabeth was appropriate with Summer, played with her, fed her and was able to redirect her.
According to a psychological evaluation, Elizabeth's ability to benefit from therapy was compromised by her limited intellectual functioning. Elizabeth's therapist reported Elizabeth had not made progress in addressing issues of domestic violence. At a 12-month hearing, the court terminated her services and set a section 366.26 selection and implementation hearing.
Agency social worker Bethany Schramm assessed Summer as adoptable and recommended the court terminate parental rights. Summer was a healthy, attractive, friendly two-year-old girl with no significant developmental delays. According to a 2009 comprehensive developmental screening, Summer had age-appropriate motor skills, but possible speech and language delays. No further evaluation was necessary until September 2010. Summer was thriving in the home of her caregivers, who wanted to adopt her and who were in the process of adopting Skylar. There were 23 other approved families in San Diego County willing to adopt a child with Summer's characteristics.
The follow-up evaluation was to occur two months after the assessment report was prepared.
Schramm believed Summer did not have a sibling relationship with Jack, and she had not developed a relationship with her other half siblings (other than Skylar) because they had never lived together. In Schramm's opinion, there was no beneficial parent-child relationship to preclude adoption.
At a contested selection and implementation hearing, Elizabeth's counsel unsuccessfully sought a continuance on the ground Summer's siblings, Mark, Matthew, Desiree and Damien, had not received notice of the hearing as required by section 294, subdivision (a). The court found the siblings, who were now adults, were not entitled to notice under the statute because they were no longer juvenile court dependents.
Schramm testified Elizabeth consistently visited Summer. During visits, Summer sought attention from anyone willing to give it to her. She ran to Elizabeth when she saw her and they exchanged hugs and kisses. Summer and Elizabeth played together. Sometimes Elizabeth changed Summer's diaper and brought food for her, but overall, their interactions were not typical of a parent-child relationship. When Elizabeth brought Jack to visits, she focused on him rather than on Summer. Schramm described Elizabeth's parenting ability during visits as "marginal."
For the past six months, 20-year-old Desiree accompanied Elizabeth to visits. According to Schramm, Summer did not cry when visits ended, ask to go home with Elizabeth and Desiree, or ask about Elizabeth or her siblings, other than Skylar.
Elizabeth testified Summer called her "mommy, " and they shared a strong, friendly, loving relationship. Summer cried sometimes when visits ended. Elizabeth further testified Mark, Damien and Desiree lived with Summer for the first six months of her life. After Summer was removed from Elizabeth's custody, Damien visited her only once, and Mark and Matthew saw her twice.
Desiree testified she lived with Summer for six months before Summer was removed from Elizabeth's custody. During that time, she helped care for her. After Summer's removal, Desiree visited her occasionally. She said she did not want her relationship with Summer to end because they were bonded siblings.
After considering the evidence and argument of counsel, the court found Summer was likely to be adopted and none of the exceptions to adoption applied. The court terminated parental rights and referred Summer for adoptive placement.
DISCUSSION
I
Elizabeth contends the court erred by selecting adoption as Summer's permanent plan without the benefit of information required by statute: (1) an adequate review of contact between Summer and her siblings; (2) an adequate evaluation of Summer's developmental status; and (3) an adequate assessment of the eligibility and commitment of Summer's caregivers to adopt her. She asserts that in the absence of this evidence, the court improperly relied on the social worker's unsupported opinion of Summer's adoptability.
A
Before selecting and implementing a permanent plan for a minor, the court must order Agency to prepare a written assessment of specified relevant factors, including: (1) the amount of contact the child has had with his or her parents and other relatives since the time of out-of-home placement; (2) an evaluation of the child's medical, developmental, scholastic, mental and emotional status; and (3) a preliminary assessment of the eligibility and commitment of any prospective adoptive parent (particularly the caregiver) and that person's ability to meet the child's needs. (§ 366.21, subd. (i)(1)(B), (C) & (D).) The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) When an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant unless they are so egregious as to undermine the court's permanent plan decision. (In re Valerie W. (2008) 162 Cal.App.4th 1, 14-15; In re John F., supra, at p. 1378; In re Crystal J. (1993) 12 Cal.App.4th 407, 413.)
B
Here, the assessment report substantially complied with statutory requirements. It contained a history of contacts between Summer and Elizabeth, including detailed descriptions of visits as observed by social worker Schramm and other visitation monitors. Although the assessment report provided few details about Summer's contact with her siblings, it explained that Summer had never developed a relationship with her siblings other than Skylar because she never lived with them. This information was clarified and supplemented by other evidence before the court indicating Skylar was the only sibling with whom Summer had lived since being removed from parental custody. (See In re Crystal J., supra, 12 Cal.App.4th at p. 413.) Desiree had been visiting Summer during the past six months, Damien visited Summer once, and Mark and Matthew saw her twice. Summer had not visited her paternal half siblings. After reviewing prior case records and other information, and consulting with the prior social worker, Schramm concluded Summer had no relationship with these siblings. As to her brother Jack, Summer never lived with him, and although they did have positive visits, they never developed a sibling relationship. Thus, the court had ample evidence of the amount and nature of contact between Summer and her siblings as required by section 366.21, subdivision (i)(1)(B), to allow a proper evaluation of whether adoption was in Summer's best interests.
Elizabeth testified Summer lived with several of her siblings before her removal. But the statute requires only an assessment of the amount and nature of sibling contact "since the time of placement." (§ 366.21, subd. (i)(1)(B).)
Elizabeth complains the assessment report did not contain sufficient information about Summer's developmental status as required by section 366.21, subdivision (i)(1)(C), because there was no follow-up evaluation necessary to address concerns about her speech delays. Preliminarily, we note Elizabeth did not object to the absence of this information when Agency filed its assessment report. (In re Crystal J., supra, 12 Cal.App.4th at p. 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) At the selection and implementation hearing, Elizabeth's counsel cross-examined the social worker who prepared the assessment report, and counsel did not challenge the absence of a further evaluation. Because Elizabeth did not object to any deficiencies in the assessment report, and she tested its sufficiency through cross-examination of the preparer and agreed to its admission into evidence, she is precluded from making this argument on appeal. (In re Crystal J., supra, at p. 411.)
In any event, the assessment report contained sufficient information about Summer's developmental status, noting Summer had received two developmental screenings and was scheduled for a third one. The results of the first two screenings had been submitted to the court. Summer was reported to have age-appropriate motor skills, but possible speech and language delays. In Schramm's opinion, Summer had no significant developmental delays that would prevent her from being adopted. Even without the results of the third evaluation, the assessment report contained sufficient information about Summer's developmental status to allow the court to find her adoptable. (See In re Heidi T. (1978) 87 Cal.App.3d 864, 875 [possible deficiencies in assessment report harmless error in light of other evidence].)
Elizabeth asserts the assessment report contained only cursory information about the eligibility and commitment of Summer's caregivers to adopt her. Again, Elizabeth has forfeited the right to raise this issue by not objecting in the juvenile court. (In re Crystal J., supra, 12 Cal.App.4th at p. 411.) Even had Elizabeth properly preserved the issue, the assessment regarding Summer's caregivers was sufficient for the court to find adoption was in Summer's best interests.
Section 366.21, subdivision (i)(1)(D), requires only a "preliminary assessment" of the caregivers' eligibility and commitment to adopt and their ability to meet the minor's needs. Here, Summer had lived with her caregivers for two years, and information about them, including their social history, motivation to adopt and ability to meet Summer's needs, is found throughout the assessment and other reports prepared by Agency. The caregivers had an approved home study and were financially stable. Further, because the caregivers were in the process of adopting Skylar, it is reasonable to infer they understood the responsibilities and legal and financial rights of adoption.
Contrary to Elizabeth's argument, the juvenile court was not required to find the caregivers had made "an informed acceptance of responsibilities and obligations." Agency, not the court, determines whether a child's caregivers are qualified to adopt. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 7.) Here, the totality of the preliminary assessment provided an adequate basis for the court to select and implement adoption as Summer's permanent plan.
II
Elizabeth contends Agency failed to give proper notice of the selection and implementation hearing to some of Summer's siblings. She asserts Mark, Matthew, Desiree and Damien were entitled to notice under section 294, subdivision (a)(4), because each of them is a sibling of a dependent child and "either is the subject of a dependency proceeding or has been adjudged to be a dependent of the juvenile court."
We agree with Agency's position that Elizabeth lacks standing to raise this issue because she is not a party aggrieved by the lack of notice to Summer's siblings. A parent in a dependency matter cannot appeal issues that do not directly affect his or her own rights. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) The injury must be immediate and substantial rather than nominal and remote. (In re Joshua S. (1986) 186 Cal.App.3d 147, 150.)
The interests of siblings in their relationship with a minor are separate from those of a parent. (In re Frank L., supra, 81 Cal.App.4th at p. 703.) By claiming some of Summer's siblings were not properly notified of the selection and implementation hearing, Elizabeth is not asserting her own interest or right. Elizabeth's interest at the selection and implementation hearing was limited to preventing the termination of her parental rights by proving any of the exceptions to adoption, including the existence of a beneficial sibling relationship. (In re Celine R. (2003) 31 Cal.4th 45, 53-54; In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194.) Any claim by Elizabeth that the siblings should have been given an opportunity to be heard and to present their positions as to why the family should remain intact relates only to the siblings, not Elizabeth. This is especially true because these siblings are adults who are no longer bound by their relationship with Elizabeth and because they are fully capable of having a relationship with Summer regardless of whether Elizabeth's parental rights remain intact. (In re J.T. (2011) 195 Cal.App.4th 707, 719.) Elizabeth's rights are separate from, and not intertwined with, the adult siblings' interests, and thus, she lacks standing to raise issues affecting their statutory right to notice. (In re Caitlin B., supra, at p. 1193; see also In re Gary P. (1995) 40 Cal.App.4th 875, 876 [mother did not have standing to assert terminating parental rights interfered with her child's relationship with his grandmother]; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1561-1562 [parent did not have standing to raise child's right to visit her adult siblings after parental rights were terminated].)
At the selection and implementation hearing, Elizabeth argued the evidence showed Summer and Desiree had a beneficial sibling relationship. The court disagreed, and Elizabeth does not challenge that finding on appeal.
III
Elizabeth challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating her parental rights. She asserts she maintained regular visitation and contact with Summer, who would benefit from continuing the relationship with her.
A
After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the selection and implementation hearing, the court has three options: (1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, 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 cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of the specified exceptions. (§ 366.26, subd. (c)(1)(A), (c)(1)(B)(i)-(vi); In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) "The parent has the burden of establishing the existence of any circumstance that constitutes an exception to termination of parental rights." (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if terminating parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "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 sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at pp. 574-575; accord In re Jason J. (2009) 175 Cal.App.4th 922, 936-937.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937; In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment from child to parent. (In re Derek W., supra, at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We review the court's finding regarding the applicability of a statutory exception to adoption for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this regard, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence to support a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, Elizabeth had regular visitation and contact with Summer, but she did not meet her burden of showing their relationship was sufficiently beneficial to outweigh the benefits of adoption for Summer. Even after many years of services, Elizabeth continued to deny responsibility for her poor decision-making with respect to her children's safety. Her parenting skills were marginal. During supervised visits, Elizabeth had difficulty caring for both Summer and Jack, and had to be prompted to interact with Summer. Elizabeth also had difficulty ascertaining Summer's needs and developmental abilities. Although Summer reacted positively and affectionately when she saw Elizabeth, a positive bond, warmth and affection are insufficient to show the type of beneficial parent-child relationship required to overcome the legislative preference for adoption. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Moreover, Summer separated easily from Elizabeth at the end of visits, and there was no evidence she was negatively impacted by Elizabeth's absence from her daily life. Elizabeth did not show Summer had a "significant, positive, emotional attachment" to her so that terminating the parent-child relationship would result in "great harm" to Summer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jason J., supra, at p. 938.)
Further, Elizabeth did not show that maintaining a relationship with Summer outweighed the benefits of adoption for her. Summer was thriving in the home of her caregivers, with whom she had lived for most of her life. The caregivers were able to provide Summer with the love, safety, security, permanence and sense of belonging she needed. "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for Summer. We do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating parental rights.
DISPOSITION
The order is affirmed.
WE CONCUR: McINTYRE, J.AARON, J.