Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. J973789 Anthony Trendacosta, Commissioner.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant M.H.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant M.T.H.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liza Samuelson, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, Acting P. J.
Father, M.H., and mother, M.T.H., appeal from the juvenile court’s order terminating parental rights in their daughter, T.H. Father contends the juvenile court erred in terminating parental rights because (1) the court lacked sufficient information about the prospective adoptive parents’ ability to meet the minor’s needs, (2) the court lacked sufficient information about the minor’s wishes and best interests to make an informed finding of her adoptability, and (3) there was insufficient evidence to support the juvenile court’s finding the parental relationship exception to adoption does not apply to father. Mother contends (1) there is no substantial evidence supporting the finding the minor is adoptable and (2) the juvenile court failed to select the plan best suited to the minor’s needs and circumstances. We affirm.
FACTS AND PROCEDURAL HISTORY
The minor is the youngest of four children by the same mother (M.T.H.) but different fathers. The minor and her three siblings were declared dependents of the juvenile court as a result of mother’s sexual abuse of the minor’s sibling.
The minor’s siblings are not subjects of this appeal.
The minor was first detained under Welfare and Institutions Code section 300 in July 2000, within days of her birth. The juvenile court found true allegations that (1) mother had sexually abused the minor’s nine-year-old sister, and the conditions of mother’s parole required that mother register as a sex offender and have no contact with any child under the age of 18; and (2) father had a history of domestic violence and was unable to provide care for the minor due to a chronic mental condition.
All further statutory references are to the Welfare and Institutions Code.
Mother received no reunification services and no visitation in view of the conditions of her parole. Father was ordered to attend domestic violence counseling, parent education and individual counseling to address his mental health concerns. The juvenile court terminated reunification services for father in February 2001, because he failed to comply with court orders and the case plan. In August 2001, the minor’s case was terminated with the maternal grandmother appointed as her legal guardian.
In January 2005, when the minor was four and a half years old, respondent the Los Angeles County Department of Children and Family Services (Department) filed a second section 300 petition on the child’s behalf after the maternal grandmother gave the child and her siblings to mother and father. The juvenile court detained the minor from the maternal grandmother, gave the Department discretion to release the child to mother, granted both parents reunification services, and ordered the minor’s visits with mother and father to be monitored.
The petition as amended alleged the maternal grandmother placed the minor and her siblings in an endangering situation by allowing them to reside in the home of mother and father, knowing mother was a registered sex offender.
At the time of this detention, the minor was not potty trained and still wore diapers; she told the social worker she could not yet go to school because she wore a diaper. The child’s siblings stated the parents had her sleep in a crib with netting and a lock over the top because the minor got up during the night and would roam through the house. After her detention with the foster parents, the minor rapidly became potty trained, entered kindergarten and became developmentally on target.
The following month, the juvenile court sustained an amended petition for the child. Father submitted to the court’s jurisdiction, and the court dismissed father from the petition without prejudice.
In April 2005, the juvenile court terminated the maternal grandmother’s legal guardianship and ordered reunification services for mother. Because mother had recently tested “dirty,” the juvenile court ordered her visits to be monitored but allowed unmonitored visitation for father.
The juvenile court subsequently, in October 2005, found both parents were in compliance with the case plan. The court granted the Department discretion to return the minor home and ordered the parents’ visitation with the child to be unmonitored. The child started having overnight visits with her parents.
Mother gave birth to a baby girl in February 2006. About one week after the baby’s birth, father awoke and found the baby not breathing. The coroner’s report ruled out SIDS (sudden infant death syndrome) as the cause of death. The juvenile court ordered grief counseling and “wraparound” services for the family. The minor completed her individual counseling and conjoint counseling with both parents, and she expressed a desire to return home.
A later autopsy attributed the immediate cause of death to “amniotic fluid aspiration/pneumonia and other undetermined factors.”
At the Department’s recommendation, the minor returned home to her parents in June 2006.
Thereafter, the family’s situation deteriorated. Father stopped taking his prescribed psychiatric medication regularly and was hospitalized after attempting suicide by overdosing on his medication. The juvenile court maintained jurisdiction over the minor, ordered father not to reside in the family home and ordered father’s visits to be monitored. Father subsequently returned to the home despite the juvenile court’s orders and refused to leave. Mother concealed father’s presence from the social worker and social services staff. At the Department’s recommendation, mother obtained a temporary restraining order barring father from the family home so her children could remain in her home. The juvenile court allowed the minor to remain in mother’s home but ordered counseling for the parents and individual counseling and family preservation services for father.
Father twice attempted suicide, in August 2006 and October 2006. On the second occasion, the minor observed a man lying at the curb in the street in front of the family home and became emotional when she realized it was father.
In December 2006, the Department filed another section 300 petition for the six-year-old minor. The petition alleged mother had neglected and failed to protect the minor and knew the minor’s brother had sexually abused her. The minor was removed from the family home and detained once again. Mother refused to believe the minor was sexually abused by the minor’s brother, choosing to believe her son’s denials.
At mother’s request, the juvenile court allowed father to return to the family home on condition he take his medication. The juvenile court ordered the Department to contact father’s therapist and, if appropriate, arrange for a conjoint consultation with the minor to ascertain whether father presented a risk to the child.
In March 2007, father was hospitalized for psychiatric treatment. Upon his release, father expressed an intention to discontinue his medication. Mother now began to demonstrate mental instability as well as problems with substance abuse. In April 2007, both parents were hospitalized for psychiatric care.
Mother and father had a long history of mental, emotional and substance abuse issues.
The Department filed a subsequently amended section 342 petition in April 2007, alleging additional facts or circumstances bringing the minor within the juvenile court’s jurisdiction.
In July 2007, the juvenile court sustained the allegations of the amended section 342 petition. The juvenile court found that mother suffered from mental and emotional problems including auditory and visual hallucinations, depression and suicidal ideation; mother had a number of physical and emotional conditions, for which she was medicating herself with both illegal and legal substances to the extent that she was unable to protect her children, and the conditions placed her children at risk of harm. The court also found that father suffered from certain psychological and mental conditions, including a schizoaffective disorder that resulted in periodic hospitalizations and affected his ability to properly care for the children, which placed the children at risk of harm. The court further found that the minor and her sibling had exhibited sexualized acting out behaviors symptomatic of sexual abuse, and the parents were unable to protect them from those activities and abuse, placing them at risk of harm. Noting that numerous reunification services had been provided the parents without success, the juvenile court ordered no further reunification services.
By this time, mother had received reunification services for one or more of her children for over 11 years, starting in 1996. Both parents had received reunification services for the minor since 2000. The juvenile court stated that the parents had received much more than their allotted reunification time and found “[i]f anything has occurred, it has been that the parents have deteriorated . . . .”
The minor thrived away from her family home. She was familiar with her caregivers, with whom she was placed when she was detained in January 2005. The child lived with this foster family from January 2005 to June 2006 and returned to them in December 2006. She was relatively developmentally on target, although she had to repeat kindergarten. The foster parents provided a safe, stable and loving home, and they indicated a commitment to provide the minor with a legally permanent home through adoption. The foster family had a daughter near the minor’s age, with whom the minor got along well. An adoptive home study was approved for the foster family in June 2007. The adoption social worker informed the court the minor considered the foster and prospective adoptive parents, whom she called “mom” and “dad,” to be her parents and that the minor supported a plan of adoption. The minor loved her biological parents, and the foster parents had assured the child she could maintain contact with her biological family after adoption.
In June 2007, the social worker observed that the child appeared to be “confused” as to what she wanted but noted the child was too young to understand the concept of adoption. The child later indicated to another social worker she was not ready to go home to the biological parents and, just prior to the permanency planning hearing, displayed hostility when the worker visited the foster home, asking, “Are you going to take me away from here?”
After a contested hearing, the juvenile court found in January 2008 that the minor was adoptable, and it terminated parental rights. Both parents timely appealed.
The juvenile court stated: “I have been involved with this family off and on since 2000. I have eight volumes, plus the case involving the adult sibling and her own children, who grew up in a chaotic family. Throughout the history of this case and this family in front of this court, the family has lived a chaotic lifestyle. Every hearing has been a problem. Every hearing there’s issues. Every hearing something’s happening. [¶] . . . [¶] All of this is a subtext to the issue of whether or not these two people can parent this child. It’s clear that they cannot. That’s why [the] court terminated reunification services. . . . I’ve heard no evidence or no argument that [the child’s] not adoptable -- the burden shifts to the parents to show the court a compelling reason why parental rights ought not to be terminated. And there’s nothing that I’ve heard in the evidence that compels the court.”
STANDARD OF REVIEW
Our Supreme Court has yet to determine whether an order terminating parental rights is viewed under the substantial evidence or abuse of discretion standard of review. Under the circumstances, whether the juvenile court’s order is viewed under either standard of review makes no substantive difference. (Compare In re Derek W. (1999) 73 Cal.App.4th 823, 827, with In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 (Aaliyah R.) & In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) In either case, we view the facts in the light most favorable to the juvenile court’s decision and accord deference to the decision. (Jasmine D., supra, at p. 1351.) We review a finding of adoptability for substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) We give the juvenile court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
We find the order terminating parental rights proper because substantial evidence supports the court’s determination the minor was adoptable and the juvenile court did not err in ruling the parental relationship exception does not apply.
DISCUSSION
1. Substantial Evidence of Minor’s Adoptability
Mother and father argue that substantial evidence does not support the juvenile court’s finding of adoptability because the Department prepared an “inadequate” assessment report that failed to assess the child’s medical or psychological needs, lacked sufficient information regarding the prospective adoptive and foster parents’ ability to meet the child’s needs, lacked sufficient information about the child’s wishes, and lacked sufficient information about her best interests, all precluding the court from making a finding of adoptability.
Mother contends the assessment for the minor’s permanency planning hearing was deficient because the capability of her prospective adoptive parents to meet her needs could not be determined as there was no evidence they were informed of (1) her history of multiple placements and personal traumas, (2) her genetic inheritance, (3) her developmental and medical issues, and (4) the mental, emotional and behavioral issues in her family of origin. Mother argues that because the present and anticipated consequences of those variables were not assessed, the prospective adoptive parents lacked necessary information to determine their willingness and ability to meet the child’s needs. Mother further contends that the juvenile court failed to select the plan best suited to the child’s needs and circumstances, because the adoption assessment did not discuss the child’s adoptability apart from her relationship with her current caregivers and her adoptability was not measured by characteristics specific to her.
When a juvenile court selects adoption as the permanent plan for a minor, it may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) Whenever a dependency case is referred for a permanency planning hearing, the juvenile court is required to direct the agency supervising the child to prepare an assessment as part of its report to the court. (§ 366.21, subd. (i)(1).)
The assessment shall include “[a]n evaluation of the child’s medical, developmental, scholastic, mental, and emotional status” and other elements. (§ 366.21, subd. (i)(1)(C).) The juvenile court may rely upon the assessment report together with any other evidence presented by the parties. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 503 [failure to provide preliminary assessment harmless error when juvenile court received same information in other forms].) Substantial compliance with the statutory requirements is sufficient. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482.) Even when an assessment is deemed incomplete, the court will look at the totality of the evidence before it, and any deficiencies will go to the weight of the evidence. (John F., supra, at p. 1378.)
Section 366.21, former subdivision (i)(3) was renumbered, effective January 1, 2008, as subdivision (i)(1)(C) without any substantive change. Section 366.21, subdivision (i) directs that the assessment include: (1) search efforts for absent parents; (2) the amount and nature of contact between the biological parents, relatives, and the child; (3) an evaluation of the child’s medical, developmental, scholastic, mental and emotional status; (4) a preliminary assessment of the prospective adoptive parents, including screening for criminal records and child abuse, the ability to meet the child’s needs, and the understanding of the legal and financial rights of adoption; (5) information on the relationship between the potential adoptive parents and the child including a statement by the child about the placement and adoption or legal guardianship unless the child’s age or physical, emotional or other condition precludes his or her meaningful response; (6) efforts to identify prospective adoptive parents; and (7) an analysis of whether the child is likely to be adopted. (See § 366.21, former subd. (i)(1)-(7).)
Neither mother nor father objected to the adequacy of the adoption assessment in the juvenile court. The parents concede an argument that an adoption assessment was inadequate, if not made at trial, is deemed forfeited on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 (Crystal J.).) The parents assert, however, that an attack on the sufficiency of the evidence may be asserted for the first time on appeal although no objection was made in the trial court. (See In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561 (Gregory A.); In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
In the present case, the Department’s section 366.26 reports and subsequent reports provided all the information required under section 366.21, subdivision (i). Both parents’ whereabouts were known. The Department’s reports described the visits of the parents, as well as the child’s extended family, and their contact with the child. Mother and father had weekly monitored visits, then unmonitored visits including weekend and overnight visits for a period, resulting in the child’s brief return to the family home. However, after six months, the child reentered foster care and returned to the home of the foster parents. Once the child was detained from her biological parents a second time, their visits reverted to weekly monitored visits. Mother and father failed to take full advantage of such visits and failed to visit the child at all for several months.
The Department’s assessment also reported on the child’s medical, developmental, scholastic, mental and emotional status. The child was relatively developmentally on target, and her foster mother reported she was slightly socially and emotionally behind but was making progress. The child’s doctor concluded her bone development was behind her stated age, but reported no other concerns. The child had to repeat kindergarten, but keeping her back led to an improvement in her skill level, progression to reading at grade level and steady improvement in math. She had received counseling since the inception of the family’s involvement with the Department and had met with a family therapist weekly since May 2007. The Department reported that the therapist indicated in October 2007 that the child was attending play therapy with a focus on the child-parent relationship and displayed a “very positive” relationship with the foster mother.
The juvenile court limited mother and father’s educational rights for the minor in June 2007, giving the child’s foster mother authority to make educational decisions for her.
The Department’s reports included an assessment of the foster and prospective adoptive parents’ ability to meet the child’s needs. Mother and father contend there was insufficient information in this regard. We find substantial evidence in the record to support the juvenile court’s implied findings on this issue. The prospective adoptive parents had a home study approved in June 2007. The Department’s assessment included a criminal records screening and review of the foster parents’ social history. The report reflected that they understood the legal and financial responsibilities of adoption and that they were not interested in a formal written kinship agreement. Significantly, except for about a six-month period when the child returned to her biological parents’ home, the foster parents had provided a loving and nurturing home for the child since 2005. The Department’s reports and the fact that the foster parents had day-to-day interaction with the child for two and a half years provided sufficient information for the court to determine that the foster parents had the ability to see to her needs.
The juvenile court had further information regarding the child’s views on adoption. Although father asserts the child appeared “confused” as to her wishes regarding adoption, the record before the juvenile court indicated that when the social worker asked the child if she wanted to live with the foster parents “for a long long long time,” the child stated she did. The worker indicated the child appeared “confused” as to what she wants but also observed the child was only “five [sic] years old” and “will not understand adoption.” The worker suggested to the foster parents that they notify the therapist once the juvenile court set the permanency planning hearing so the therapist could discuss adoption with the child. There was thus sufficient evidence to inform the juvenile court regarding the child’s view of adoption. Father argues there was conflicting information regarding the child’s best interests. To the extent the evidence on this score was in conflict, the juvenile court properly weighed the conflicting evidence and inferences to be drawn, and we will not disturb its findings.
The child actually was six years old at this time, almost seven. The worker’s oversight regarding the child’s actual age is not material, as adoption with potential maintenance of contact with the biological family would be a concept difficult to grasp even for an older child.
In further compliance with section 366.21, subdivision (i), the Department’s assessment identified the foster parents as the prospective adoptive parents. Indeed, the foster parents had from the beginning indicated a willingness to adopt the child.
As to the final element, adoptability, mother contends there was insufficient evidence for the juvenile court to find the child is adoptable. We disagree. Neither parent raised the issue of adoptability in the juvenile court. When the court in ruling observed, “I’ve heard no evidence or no argument that [the child’s] not adoptable,” neither counsel objected or attempted to correct the court. There was no dispute that the foster parents wished to adopt the minor. “[T]he 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. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650; see also In re Asia L. (2003) 107 Cal.App.4th 498, 510.)
In any case, there was substantial evidence beyond the foster parents’ desire to adopt the minor to establish adoptability. “A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.]” (Gregory A., supra, 126 Cal.App.4th at p. 1562.) The assessment in this instance showed the child was young, in good physical and emotional health and well capable of forming positive interpersonal relationships. The totality of the evidence before the juvenile court provides substantial evidence to support the finding the child is adoptable. (Crystal J., supra, 12 Cal.App.4th at p. 413.)
2. Parental Relationship Exception to Adoption Not Applicable
When a dependent child is not reunified with a parent and the child is adoptable, adoption is the preferred permanent plan when possible. (In re Celine R. (2003) 31 Cal.4th 45, 49, 53; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Absent circumstances not present here, the court must select adoption as the permanent plan unless there is compelling reason to find that termination of parental rights would be detrimental to the child under one of several statutory exceptions, including the beneficial parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i)); Aaliyah R., supra, 136 Cal.App.4th at p. 449; In re Angel B. (2002) 97 Cal.App.4th 454, 466-467 (Angel B.).) That exception applies when the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Angel B., supra, at pp. 466-467.)
The parental role must involve something beyond merely “frequent and loving contact” between the child and parent (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418) or an “emotional bond” with the child (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108). “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “The parent has the burden of showing that continuation of the parent-child relationship will promote ‘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 Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The balancing of the competing considerations is made on a case-by-case basis, taking into consideration such factors as the age of the child, the portion of his or her life spent in the parents’ custody, the positive or negative effect of interaction between parent and child, and the child’s needs. (Aaliyah R., supra, 136 Cal.App.4th at p. 450; Angel B., supra, 97 Cal.App.4th at p. 467.)
In the present case, father testified that he had two-hour visits with the child weekly between March 2007 and July 2007, and he missed only a couple of weeks due to illness. He testified that mother, the grandmother, the foster father and sometimes the grandfather too were present during the visits, and they would go to the park, petting zoos, McDonald’s and Chuck E. Cheese. Father stated he also had occasional phone conversations with the minor, during which he asked about her school and how her day went. He testified the minor called him “Daddy.”
Mother confirmed in her testimony that the parents visited their child once a weekend for two hours in the last seven months. They would play cards or play ball and push the child on the swing. Mother would ask the child on the phone if “her school is doing good and does she like any of the curriculums.” They celebrated the child’s birthday with a family party. Mother testified the child called her “Mommy.”
The Department’s reports, on the other hand, indicated the parents did not regularly visit the child or make contact with her. The parents made only occasional visits, and they failed to visit the child at all from March 2007 to July 2007. They saw the child several times in the summer of 2007 and only had some phone contact with her thereafter. They began visiting again just before the permanent plan hearing.
The minor’s counsel joined with the Department in asking for termination of parental rights. Counsel stated that the minor was doing well and had a stable home with the foster parents with whom she had a chance for a permanent home. Although the minor loved her parents, her counsel argued, they had not acted in a parental role. Even if it were assumed the parents visited weekly, counsel noted two-hour monitored visits gave the parents no opportunity to act in a parental role sufficient for the beneficial parental relationship exception to apply. The child’s counsel argued the prospective adoptive parents were willing to continue the sibling relationship and visitation with the parents if it were in the child’s best interests.
The juvenile court found that, even giving the parents the benefit of the doubt on visitation, the parents had not established a compelling reason not to terminate parental rights. The court stated, “it’s not the kind of visit that I would call the kind that case law points to as exercising the parental role. In fact, what they were doing was playing ball, going to the park, playing on the swings. That’s not exercising a parental role. . . .” There was abundant evidence that, although the child loved her biological parents, the parents did not act, nor had they the ability to act, in a parental role. From all appearances, the parents were incapable of caring for the child. The child was first detained only a few days after her birth and spent a scant few months over her lifetime in the parents’ custody. Although the parents may have visited the child and had some telephone contact with her, they failed to attend to her needs for “physical care, nourishment, comfort, affection and stimulation.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The parents ultimately did not progress beyond monitored visitation and, even when they visited, were little more than “friendly visitors.” (Id. at pp. 573, 576.) Father in particular failed to show any detriment to the child would result if the parental relationship was severed. (Aaliyah R., supra, 136 Cal.App.4th at p. 450; Angel B., supra, 97 Cal.App.4th at p. 468.)
The juvenile court properly concluded the well-being the child would gain in a permanent home with new, adoptive parents outweighed any benefits obtained from continuing the parental relationship.
DISPOSITION
The order is affirmed.
We concur: BIGELOW, J., O’NEILL, J.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Mother was adopted and did not know her biological family history. She had limited cognitive ability that impaired her functioning. She started using drugs at a young age, had a history of alcohol abuse and had an extensive criminal history of arrests and convictions. She was convicted of lewd and lascivious acts with the minor’s older sister, was imprisoned for three years and was a registered sex offender. In April 2007, a social worker responding to a referral found mother unkempt, in poor hygiene, making bizarre statements and exhibiting abnormal behavior. Mother stated she had endured verbal and physical abuse for seven years from father, who was currently hospitalized in a psychiatric hospital. Mother admitted she smoked marijuana in the presence of her minor son and was taking Vicodin, which the son had obtained from a friend.
Father suffered from emotional and cognitive delays. He was diagnosed with paranoid schizophrenia and bipolar manic depressive disorder that required treatment with psychotropic medications. Father started using drugs as a child, and he was placed in foster homes and group homes from ages 11 to 17 as a result of anger and behavior problems. He sustained a serious head injury, had a conservator, attempted suicide with his medications, was emotionally unstable, was hospitalized for psychiatric treatment several times and suffered a conviction for domestic violence.