Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ05000315-01
Kline, P.J.
Appellants Heather H. (mother) and Robert H. (father) appeal from the juvenile court’s orders, pursuant to Welfare and Institutions Code section 366.26, terminating their parental rights with respect to their son, Thomas H. (now three years old). Mother contends (1) the juvenile court’s findings that the sibling, parent-child, and “other family members” relationship exceptions to adoption did not apply were not supported by substantial evidence, and (2) the juvenile court failed to require and consider an adequate assessment report before terminating parental rights. Father joins in the arguments raised by mother, and also contends (1) his constitutional and statutory rights to notice were violated when the juvenile court failed to ensure he was properly renoticed regarding the continued section 366.26 hearing, and (2) the order terminating his parental rights must be reversed because the court never made a finding that he was an unfit parent. We shall affirm the juvenile court’s orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL BACKGROUND
On January 11, 2005, the Alameda County Social Services Agency (Agency) filed an original petition alleging that Thomas (then four months old) and his older siblings, Robert H., Jr. (then almost nine years old), and Hope H. (then five years old), came within the provisions of section 300, subdivision (b). Specifically, the petition alleged that mother had a history of substance abuse that interfered with her ability to care for the children, that Thomas was born with a positive toxicology screen for methamphetamine, and that Thomas was placed into custody on January 5, 2005 after mother was arrested for sale of methamphetamine. The petition also alleged that father had a substance abuse problem that interfered with his ability to care for the children and that father had a history of domestic violence against mother.
In the report prepared on January 12, 2005 for the detention hearing, the social worker reported that Kaiser Hospital first referred the family to the Agency after Thomas was born with a positive toxicology screen for methamphetamine. Kaiser again made a referral when mother missed her first well baby appointment with Thomas. Another referral was made when mother brought Thomas to the hospital emergency room after he fell out of his car seat.
The criminal charges against mother for sale of a controlled substance and child endangerment had been dropped. Mother claimed that she had been set up by father and his friend on the drug deal. She also said that she had a restraining order against father and that he was “totally out of the picture when it comes to raising her children.”
Officer Horton of the Livermore Police Department stated that he had helped mother obtain a restraining order against father, which included an order to stay away from the children.
The exact whereabouts of father were unknown. He apparently was living in his car somewhere in Livermore, Pleasanton, or Dublin.
The social worker recommended that the two older children remain with mother and that Thomas be released to her after the detention hearing.
At the January 12, 2005 detention hearing, the juvenile court released Thomas to mother.
In the report prepared on January 24, 2005 for the jurisdiction/detention hearing, the social worker reported that mother was living with her three children in the home of the maternal grandfather. The mother said her arrest was a wake-up call about not getting involved with or trusting people who are involved with drugs. Several days in jail and loss of Thomas were very traumatic for her.
The children appeared to be well cared for and were happy to be back together. The Agency recommended that the children be placed in mother’s home with family maintenance services. The case plan also included services for father, whose whereabouts continued to be unknown to the Agency. His criminal record included an arrest for domestic violence, various drug-related arrests, and arrests for driving without a valid license and disorderly conduct.
At the January 25, 2005 jurisdiction/disposition hearing, the court found true the allegations in the section 300 petition, adjudged Thomas a dependent child, and ordered family maintenance services for mother.
In the report prepared on July 8, 2005 for the six-month review hearing, the social worker reported that mother and the three children were still living in the home of the maternal grandfather. The children were healthy and within normal limits developmentally. Mother was looking for housing for herself and the children; she said her father needed more privacy. Mother was not in compliance with her case plan and still needed to participate in a drug treatment program and participate in drug testing. Father’s whereabouts remained unknown. The social worker recommended that the children remain in mother’s home with another six months of services.
At the July 12, 2005 review hearing, the court continued family maintenance services for another six months.
On July 21, 2005, the Agency filed a supplemental petition, pursuant to section 387, alleging that mother had been arrested for possession of narcotics and that the children had been left in the care of father, against whom a restraining order had been filed, in the grandfather’s home.
In the detention report prepared on July 22, 2005, the social worker reported that, after the Agency learned that mother had been arrested, the three children were placed in emergency foster care. The two older children were placed together and Thomas was placed separately. The Agency discovered that father had been living in the home of the maternal grandfather with the mother and children. The children all appeared to be healthy, clean, and well-groomed.
At the July 22, 2005 detention hearing on the supplemental petition, the court ordered Thomas removed from his parents’ custody, but ordered him to be placed with mother in the home of the maternal grandmother until mother could get into a residential drug treatment program that would take Thomas. Mother was to submit to drug testing.
In the jurisdiction/disposition report on the supplemental petition, prepared on August 17, 2005, the social worker reported that the three children and mother were living with the maternal grandmother. The social worker recommended that family maintenance services to mother continue and that the supplemental petition be dismissed.
At a hearing on August 17, 2005, the court dismissed the supplemental petition.
On September 23, 2005, the Agency filed a second supplemental petition on behalf of Thomas, pursuant to section 387, alleging that mother had violated a court order not to remove Thomas from the maternal grandmother’s home, and had not lived there since the detention hearing on July 22, 2005. The petition also alleged that mother had failed to comply with the Agency’s request to drug test randomly and attend an outpatient drug treatment program until an inpatient treatment program was available.
A separate section 387 petition was filed on behalf of the two older children, Robert and Hope.
In the detention report on the second supplemental petition, prepared on September 26, 2005, the social worker reported that she had learned from the uncle that mother no longer lived in the maternal grandmother’s home, that she came around every once in a while, but was currently living in the home of her boyfriend or the maternal grandfather. When the social worker was able to make contact with mother, on September 9, 2005, mother said that she was in a treatment program called Westfield in Dublin. The phone number provided by mother was for an unidentified voicemail and directory assistance had no listing for a program by that name. When told that she was violating court orders by having Thomas in her care away from the maternal grandmother’s home, mother said she would return him to her mother’s home that day.
The social worker also told mother she would have to begin drug testing, as ordered. The social worker was later informed that a test submitted on September 13, 2005 was invalid and that mother was a no-show on September 16.
On September 22, 2005, the maternal grandmother informed the social worker that Thomas had not lived in her home for two months. She said that she was willing to care for the two older children, but was too old to care for a child of Thomas’s age. The social worker also learned from the maternal grandmother that the phone number mother had given for the Westfield treatment program was in fact a new phone for the paternal grandfather. While the social worker was at the grandmother’s house, father came and visited with the two older children. The father said he rents a room in a home and sometimes stays with a family friend. He said he was willing to care for Thomas.
On September 23, 2005, Thomas was taken into protective custody and placed in an emergency foster placement. When the social worker met with mother to remove Thomas, the social worker offered to find her a bed at an inpatient treatment program to expedite the return of Thomas to her care. However, mother said she would not go into an inpatient drug treatment program. The social worker recommended that Thomas be detained pending further investigation.
At the September 26, 2005 detention hearing on the second supplemental petition, Thomas was ordered detained, but could be released to a suitable adult relative, at the social worker’s discretion.
In an interim review report, prepared on September 29, 2005, the social worker reported that Thomas remained in emergency foster care and the older children remained with the maternal grandmother. Thomas was a happy baby who would go to anyone. Robert and Hope showed comfort in the presence of the maternal grandmother and the parents. Robert was very emotional at the thought of Thomas being in foster care. Mother had failed to drug test on September 27, 2005. The Agency recommended that family reunification services be offered to mother and father.
At an October 3, 2005 hearing, the court continued Thomas as a dependent child.
In a jurisdiction/disposition report on the second supplemental petition, prepared on October 12, 2005, the social worker reported that, on October 4, 2005, mother had signed an acknowledgment of drug/alcohol use at the time she was due to drug test, and said she had used methamphetamine two days earlier. The social worker advised mother she needed to enroll in a residential treatment program immediately. The social worker had visited the home of a close friend of mother’s, as a possible placement for Thomas. After two visits to the home, during which the social worker noted some problems, mother told the social worker that she had concerns about her friend being considered for placement, but did not know how to express those concerns without causing conflict between herself and her friend.
The children appeared to be happy and healthy in their current placements and continued to have ongoing contact with their parents. The social worker recommended that the children continue as dependents of the court, with reunification services to the parents. Services for mother and father were to include parenting education, counseling, substance abuse testing, and inpatient substance abuse treatment.
In an addendum to the October 12, 2005 report, prepared on November 2, 2005, the social worker reported that mother was visiting the children on a weekly basis. However, she had failed to drug test on October 7 and 11, 2005.
At the November 4, 2005 jurisdiction hearing, the court adopted the social worker’s recommendations to continue Thomas as a dependent of the court, with reunification services for the parents.
In a report prepared on January 31, 2006 for an interim review hearing, the social worker reported that mother had been fairly consistent in her weekly visitation with Thomas, although she was repeatedly late for visits. During a visit the social worker attended, mother was very affectionate and appropriate with Thomas; he was familiar and affectionate with her. At these visits, Thomas also visited with his siblings. He was very affectionate with them, as they were with him. Thomas had had three extended overnight visits with mother, which were supervised by the maternal grandmother. Mother reported in early January that she had been clean for four months, with two relapses. The social worker gave mother referrals for substance abuse counseling and testing, inpatient drug treatment programs, parenting classes, housing, and transportation.
The maternal grandmother said father, who was homeless, stopped by every couple of weeks to see the two older children. The social worker had recently learned that father was now incarcerated, with a release date of February 28, 2006. Father had not made any progress on his case plan before his incarceration, but now agreed with the social worker’s recommendation that he participate in an inpatient substance abuse program.
The social worker recommended that Thomas remain in his placement and that the parents continue to receive reunification services.
At the February 8, 2006 review hearing, the court continued all present orders and set the matter for a further review hearing on March 29, 2006.
In a status review report, prepared on March 17, 2006, the social worker reported that mother apparently was living between the homes of her boyfriend and her mother and was unemployed. She had complied only minimally with her case plan. She was resistant to participating in either inpatient or outpatient drug treatment, said she had completed a parenting class but had not produced a certificate of completion, and said she had attended weekly substance abuse counseling sessions. On March 15, 2006, mother told the social worker that she felt adoption was the best plan for Thomas because she knew she could not care for him in the near future and wanted him to have stability in his life. She wanted her two older children to stay in the care of her mother, since they were doing very well.
Father was out of jail and was homeless. He had also been minimally compliant with his case plan. He had been given referrals for drug treatment programs, but had not yet enrolled in one.
At visits, Robert and Hope were always overjoyed to see Thomas. They played with him and entertained him, and were both very affectionate with him. The children seemed to be developmentally appropriate for their ages except that Thomas appeared to have a speech delay. Thomas was healthy and happy and had bonded securely with his foster parent.
The maternal grandmother was committed to raising the two older children as their legal guardian if the parents were unable to reunify. She felt unable to have Thomas placed with her due to his age. The paternal grandparents, paternal great grandfather, and paternal aunt had been contacted and stated that they could not provide care for Thomas. An adoption assessment had been done and Thomas was found adoptable. A prospective adoptive home had been identified.
The social worker recommended that reunification services for both parents be terminated and that a section 366.26 hearing be set to terminate parental rights and free Thomas for adoption and Robert and Hope for legal guardianship.
At a March 29, 2006 review hearing, the court continued the matter and, the next day, signed an ex parte order to move Thomas to a fost/adopt home.
In an addendum report, prepared on May 3, 2006, the social worker reported that, on April 6, 2006, she saw mother with a black eye, a result of domestic violence with her boyfriend. Mother had tested positive for THC (marijuana) twice in March, but had twice tested clean later in March. Mother did not drug test in April. She was no longer attending individual counseling because she had missed two appointments and her case had been closed. In April, mother said she was employed as a waitress at a restaurant. Mother had missed one of five visits with Thomas since the last court hearing.
Father was still homeless, but had stated that he recently became employed. He had tested clean for drugs four times, but then had tested positive for THC on April 17, 2006. He had not shown up for tests in late April and early May. He had not participated in a drug treatment program, substance abuse counseling, or parenting classes. Father visited the older children at the maternal grandmother’s house about once a week. He had missed all of the previous six visits with Thomas. To the knowledge of the social worker, father had not visited with Thomas since March 22, 2006 and, prior to that, since September 2005.
Thomas was doing very well in his fost/adopt home. He was bonding with the foster mother, her four-year-old son, and the foster mother’s mother. Although he still appeared to have a speech delay, Thomas was talking a great deal more than previously.
At the contested six-month review hearing, which took place on May 12, 2006, social worker Sarah Lusardi testified that father was offered services before and after his incarceration and that parenting classes and drug treatment were available at the jail. Father had continued to visit with Robert and Hope, but had visited Thomas only once. He attempted to visit another time, but arrived an hour late. Father was opposed to Thomas being adopted.
Mother testified that she had had a drug problem for 12 to 13 years. She had recently started drug treatment (counseling) after her children were taken from her. She had completed some individual counseling and done some drug testing; the last four to six drug tests were clean. She had not enrolled in a parenting class yet because, having been a methamphetamine user and being clean for just three or four months, she felt she could only do one thing at a time. She was never in a drug treatment program because, at first she was in denial, and now she believed that one-on-one counseling would help her more than a live-in program, which would just depress her. She felt that she needed to do things slowly, only one or two things at a time, as she came out of drugs and tried to live a normal life. She did not feel she was ready to have her children back as she continued learning to be responsible.
Mother had been working full-time as a waitress at Chili’s Restaurant for more than two months. She was staying with her ex-boyfriend until she could find a place of her own. She visited Thomas weekly and also visited Robert and Hope regularly. She had observed the older children with Thomas; they loved and missed him. She believed it would be detrimental to all of the children to be separated.
The maternal grandmother, Judy R., testified that she had not observed mother with symptoms of being under the influence of methamphetamine for a couple of months. In the last three months, she had seen mother, for the first time, making an effort to better her life and get off drugs. Judy R. did not believe that, if given another six months of services, mother could take care of her children, although she might think differently if mother were to participate in a program that gave her structure and guidance.
Mother’s counsel submitted to the recommendation of termination of reunification services and legal guardianship with respect to Robert and Hope, but requested six more months of services with respect to Thomas, stating that mother was willing to enter a residential drug treatment program. Counsel for the older children objected to termination of reunification services, saying that it would be in the children’s best interests to have mother continue to receive services. He also said it would be in his clients’ interests to try to keep the family intact so that they would not lose their brother forever. Counsel for Thomas said he believed it was in Thomas’s best interest for mother to receive six more months of services, to give her a chance to get into a residential treatment program and reconstruct her life. This would also potentially keep Thomas from being isolated from his siblings.
At the conclusion of the hearing, the juvenile court acknowledged mother’s apparently successful struggle with a very serious addiction, but concluded that the record did not support “the extension of services to her past those which she’s already been offered and which I think the record clearly reflects she has not availed herself of.” The court made “the same finding with respect to the father whose compliance with the case plan has been negligible at best . . . .” The court terminated reunification services as to both parents and set the matter for a section 366.26 hearing.
On May 31, 2006, counsel for Robert and Hope filed a section 388 petition to assert a sibling relationship and request that parental rights not be terminated with respect to Thomas.
In a report prepared on August 24, 2006 for the section 366.26 hearing, the social worker reported that Thomas was developmentally on target except for some apparent speech delay. The fost/adopt parent was committed to adopting Thomas should parental rights be terminated. She was not interested in a legal guardianship.
Mother continued to visit Thomas and was observed to be appropriate with him during visits. She was attentive and met his needs, such as changing diapers and eating. The two older siblings played appropriately with Thomas during visits. Thomas smiled at mother during visits and separated from her without tears. The foster mother reported that Thomas’s behavior had been angrier as visits progressed. He had become more aggressive, with hitting, biting, kicking, and screaming, which was indicative of his being irritable and confused.
The section 366.26 hearing took place on September 28, 2006. Mother was present at the hearing, but father was not.
Sandra W., the fost/adopt parent, testified that Thomas had been in her care since April 2006. She had supervised some of the visits between mother and Thomas. Thomas was very active and they would run around and play. Mother had said she was willing to have Sandra W. adopt Thomas if she could continue to have weekly visitation. Sandra W. testified that it was a hard situation because she felt like she was stealing someone’s child, but she was concerned because she was not very assertive and did not know if she could keep the boundaries with mother where they needed to be. She was therefore not open to post-adoption visitation with mother. She never told mother she wanted to be Thomas’s legal guardian. She did agree to post-adoption contact between Thomas and his older siblings, who seemed to be very attached to him. Sandra W. had never supervised any visits with father, and he had never called Thomas at her home.
Erica Reis, a social worker who supervised some visits between Thomas and mother since visits had started about a year previously, testified that mother was appropriate and loving during visits, which mainly took place at the maternal grandmother’s home. She took care of his needs and acted as a parent. She also intervened with problem-solving when, for example, Thomas wanted to play with a toy his brother was playing with. Thomas seemed excited and happy to come to the visits and would spend a lot of the visit with mother and his siblings. In the beginning Thomas did not cry on leaving visits, but after the last three visits he whimpered and it was clear from his body language that it was hard for him. Mother would try to help him by not getting too emotional herself, putting him in his car seat, making sure he had something to drink, telling him she loves him, and trying to comfort him. He usually would sleep or snack on the way back to his foster home.
Thomas’s relationship with the siblings was also appropriate. They would hug and kiss him and interact with him in a way that was common for siblings. He would hug them back and play with them; he seemed comfortable. His older brother especially was really close to him. As with mother, he seemed visibly upset and confused when leaving his siblings after a visit.
Reis only saw father at one visit with Thomas. Father came as they were leaving at the end of the visit and visited with Thomas for about 15 minutes in the parking lot, during which time he played with Thomas and held him.
Robert R., the maternal grandfather, testified that, after Thomas was born, he and mother lived with him for about seven months. Since then, he had seen Thomas almost every weekend at the maternal grandmother’s house. At mother’s request, Robert R. contacted a social worker about having Thomas placed with him. He said he would be willing to do anything, including becoming the legal guardian or adopting Thomas, that would keep Thomas in the family. He went to the office in Oakland and had his fingerprints taken; he also took a urine test. When he did not hear back with the results, he contacted the social worker and she said he was no longer being considered as an adoptive parent due to something mother had said.
Robert R. would need to get a two-bedroom home if Thomas were to be placed with him. He owned his own limousine service and was employed by another limousine company. If Thomas were placed with him, he would arrange for childcare. He would be able to take care of Thomas financially and emotionally.
Robert R. had observed Thomas interact with his siblings. Robert was a very good big brother and interacted a great deal with Thomas. With Hope, Thomas would get in her lap and give her hugs and kisses. They also drew pictures together. Robert R. and Thomas had a bond, and Thomas cried when leaving him. Thomas also knew that mother was his mother and still showed a very strong attachment to her.
Social worker Sue May testified that a home study for the prospective adoptive parent, Sandra Wells, had been completed and Wells had been approved for the adoption of Thomas. May also testified that the previous social worker had said that the paternal grandfather was interested in placement, but that such a placement was inappropriate because family members had said that he had some history of substance abuse and paranoia.
Finally, Lorene Shimamoto, a neighbor of the paternal grandfather, testified that she had known Thomas since he was four months old. Mother had left Thomas in her care and she fell in love with him. Shimamoto was interested in having Thomas placed with her; she would be willing to become his legal guardian or to adopt him. She had done fingerprinting for the Agency over a month earlier and had called the Agency when she had not heard back about the possible placement. She received no response.
At the conclusion of the hearing, the court terminated the parental rights of both parents. The court also signed an agreement for post-adoption sibling contact, thereby making it a court order.
On September 29, 2006, father filed a notice of appeal and, on October 25, 2006, mother filed a notice of appeal.
DISCUSSION
I. Applicability of the Parent-Child, Sibling, and “Other Family Member” Relationship Exception to Adoption
Mother contends there is insufficient evidence to support the juvenile court’s findings that none of the statutory exceptions to adoption applied, in light of the evidence of the close bond between Thomas and his siblings, his mother, and his maternal grandparents.
At the end of the section 366.26 hearing, the juvenile court found that neither the parent-child nor the sibling relationship exception applied, stating: “I think in this case on my mind is the sufficiency, the intensity, the duration, and the basic nature of the relationship between the mom on the one hand and the child on the other and also the siblings on the one hand and their younger brother on the other.
“Putting all those together and weighing them in the fashion that the statute requires me to do, I can’t conclude and I don’t conclude that that bond, that that relationship, is strong enough or sufficient enough or material enough to outweigh Thomas’s right and interest to have a permanent, loving, caring adoptive home . . . .”
Although adoption is the preferred plan of care once reunification services have been terminated, the Legislature has provided various exceptions to the general rule of adoption. (See § 366.26, subdivision (c)(1); In re Casey D. (1999) 70 Cal.App.4th 38, 50.) As relevant here, section 366.26, subdivision (c)(1), provides in relevant part: “A finding under . . . Section 366.21 or 366.22, that the court has continued to remove the child from custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
“(A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ¶ . . . ¶ (E) There would be 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.”
The parent has the burden of proving applicability of the exceptions set forth in subdivision (c)(1) of section 366.26. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review the juvenile court’s determination regarding whether an exception applies to determine if it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; but see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [finding abuse of discretion standard of review appropriate].)
The Agency urges that we utilize the abuse of discretion standard of review in determining whether any of the exceptions to adoption apply here. We decline to do so, and also observe that, as the In re Jasmine D. court stated, the practical differences between the abuse of discretion and substantial evidence standards of review “are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Indeed, if we were to apply an abuse of discretion standard to the facts of this case, the result would be the same.
A. Sibling Relationship Exception
In In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952, the appellate court explained the process for deciding whether the sibling relationship exception applies: “Under section 366.26, subdivision (c)(1)(E), the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. (§ 366.26, subd. (c)(1)(E).) . . . ¶ To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (Fn. omitted; accord, In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017-1018.)
If the court finds that “a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953; accord, In re Jacob S., supra, 104 Cal.App.4th at pp. 1018-1019.)
In the present case, the juvenile court observed, during the section 366.26 hearing, that “[t]he relationship between the children, of course, has been going on for no more than two years because that is how old Tommy is. Tommy is pre-verbal, everyone agrees. He doesn’t use words to describe his feelings or his closeness to [his siblings]. Moreover, it [the relationship] takes place currently in the context of two hour visits once a week. [¶] I’m guessing that the exception that we are talking about here is one that applies to sibling relationships of considerably greater duration and intensity. Children who have grown up in a family together for five, six, seven, ten years and the Court is suddenly faced with a need to separate them. [¶] . . . [¶] I’m concerned that we don’t have a strong enough hook to hang this on, that really what we are talking about here is throwing away the possibility of a permanent home for a very, very young child on the basis of the fact that he reacts well to his sibs when he sees them.”
Mother has mistakenly stated in both her briefs that counsel for Thomas, as well as counsel for mother, father, and the older siblings advised the court that the evidence supported a finding that the sibling relationship exception applied here. Both mother’s and father’s counsel so argued, and counsel for the older siblings also said that, his personal feeling aside, his clients’ position was “that their relationship is strong enough to have the Court not order termination of parental rights.” However, counsel for Thomas actually said that, through the post-adoptive contact agreement, “the minor’s siblings have some sort of assurance that in the future, they will not be precluded from contact with Thomas.” Counsel went on to say that he believed that it was in Thomas’s best interest to be adopted by the fost/adopt parent. His only concern was whether the unclear situation with the maternal grandfather, in terms of whether he was properly considered for placement, should be factored into the court’s decision about termination of parental rights.
There is evidence in the record that Robert and Hope were attached to Thomas and were upset at the thought of his being adopted outside of their family. However, the ultimate question is whether adoption would be detrimental for Thomas. (See In re Celine R. (2003) 31 Cal.4th 45, 54-55.) The evidence shows that Thomas greatly enjoyed his visits with his older brother and sister and that he seemed upset and confused at the end of some visits. The evidence also shows, however, that Thomas lived with his siblings for, at most, the first half (one year or less) of his short life and, thereafter, only visited with them weekly. Thus, it cannot truly be said that Thomas “was raised with [his siblings] in the same home [and] shared significant common experiences” with them, under section 366.26, subdivision (c)(1)(E).
In addition, even assuming that Thomas would suffer detriment if his relationship with his siblings were to end, we conclude that substantial evidence supports the juvenile court’s finding that Thomas’s interest in his sibling relationships was outweighed by the benefits he would receive from the permanency of adoption. (See § 366.26, subd. (c)(1)(E); In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) First, there is no real likelihood that Thomas would be able to live in the same home as his siblings in the foreseeable future. The maternal grandmother made clear that she could not care for Thomas, and mother plainly was not nearly ready to assume care for all three children.
Moreover, the agreement for post-adoption sibling contact, signed, pursuant to former Family Code section 8714.7 (now Family Code section 8616.5), by the prospective adoptive parent and the court, requires a minimum of four sibling visits annually. (See also § 366.29.) Although the parents argue that such an agreement will not guarantee future contact, the agreement, as well as the prospective adoptive mother’s testimony that she would facilitate sibling contact, provide strong evidence that the sibling bond will continue to be nurtured, even if visits do not continue on a weekly basis. (See In re Megan S. (2002) 104 Cal.App.4th 247, 254 [where social worker wanted to place child in one of 25 possible adoptive homes that would allow sibling contact, there would be no substantial interference with sibling relationship].)
Finally, the evidence in the record shows that Thomas has been thriving in his fost/adopt home. In the five months he had been placed in that home, he had been bonding with the foster mother, her four-year-old son, and the foster mother’s mother. His speech delay had improved a great deal in the time he had been in the home and the foster mother was committed to adopting him. (See In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.)
Substantial evidence thus supports the juvenile court’s finding that the sibling relationship exception did not apply. (See § 366.26, subd. (c)(1)(E).)
B. Parent-Child and “Other Family Members” Relationship Exception
In In re Autumn H., supra, 27 Cal.App.4th 567, the appellate court discussed the parent-child relationship exception: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship 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. 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.
“Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Casey D., supra, 70 Cal.App.4th at p. 50.)
In the present case, the juvenile court found that the bond between Thomas and his mother was not sufficiently strong to outweigh Thomas’s interest in a permanent home.
At the time of the section 366.26 hearing, Thomas had been out of mother’s custody for at least half of his two years of life. Mother was fairly consistent in her weekly visits with Thomas and there was plainly evidence of great affection between them. During visits, mother was appropriate with Thomas and provided care for him. Nonetheless, substantial evidence supports the juvenile court’s finding that the benefit of the relationship with mother did not outweigh Thomas’s interest in a permanent, stable adoptive home. In other words, the bond between them was not such that Thomas would be greatly harmed were it severed, and the preference for adoption was therefore not overcome. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Several cases cited by mother for the proposition that a child may benefit from continuing interaction with a parent merely through consistent and positive contact are inapposite. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [several experts opined that beneficial parental relationship outweighed benefits of adoption, there was no challenge to fact that two older children had strong primary bond with mother, and grandmother was willing to adopt or be legal guardian]; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207-1208 [child had lived with mother for first six and one-half years of his life, there was expert testimony regarding positive effect of mother-child interaction, and there was no evidence that stability of current placement would be jeopardized if mother’s parental rights remained intact]; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 [substantial evidence supported juvenile court’s order for legal guardianship (in lieu of adoption)].)
Mother also argues that Thomas has a positive relationship with both maternal grandparents and that, if mother’s parental rights are terminated, Thomas will be estranged from his grandparents as well. Mother provides no additional argument and cites no authorities in support of her claim that Thomas’s relationship with his grandparents satisfies section 366.26, subdivision (a)’s parent-child exception to adoption. The fact that, in addition to mother and the older siblings, Thomas has grandparents who also love him dearly, makes this case a particularly distressing one. However, it does not alter the requirements of subdivision (a) of section 366.26, and does not support mother’s contention that that subdivision applies here.
We also note that, while the prospective adoptive mother said she would not allow visitation by the mother, the post-adoption sibling contact agreement provides that the maternal grandmother, who would be facilitating Thomas’s visitation with the older children, may be present at sibling visits.
II. Adequacy of the Assessment Report
Mother contends the juvenile court failed to require and consider an adequate assessment report before terminating parental rights.
Section 366.21, subdivision (i) provides, in relevant part: “Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency, or the State Department of Social Services when it is acting as an adoption agency in counties that are not served by a county adoption agency, to prepare an assessment that shall include: [¶] . . . .
“(2) A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, ‘extended family’ for the purpose of this paragraph shall include, but not be limited to, the child’s siblings, grandparents, aunts, and uncles.
“(3) An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.”
Section 366.26, subdivision (b), requires that the juvenile court “review the report . . ., indicate that the court has read and considered it, [and] receive other evidence that the parties may present . . . .”
Here, the assessment report prepared on August 24, 2006, after the parents’ reunification services were terminated and before the section 366.26 hearing took place, contained mother’s visitation history with Thomas and included information about who else was present at the visits (siblings, uncle, and maternal grandmother). It also stated that mother continued to maintain regular visitation and that she was very affectionate with Thomas during visits. The report further stated that father had had two visits with Thomas, one in September 2005 and one on March 22, 2006.
A letter from a social worker at Sierra Vista Child & Family Services (the agency supervising visits) was attached to the report and contained relevant information related to visitation, including that, during visits, mother “is attentive, meets [Thomas’s] needs like changing diapers and eating. Two older siblings play appropriately with Thomas during the visit. Thomas smiles at birth mom, and separates without tears.” The letter also noted that, according to the foster mother, Thomas had become more aggressive as visits progressed, which was “indicative of a young child who is irritable and confused.” The letter further stated that mother had become harassing toward the foster mother.
The report also contained information regarding Thomas’s medical, developmental, and mental/emotional status. The report further indicated that Thomas was likely to be adopted because his current caretaker was committed to adopting him should he be freed for adoption. She was not, however, interested in legal guardianship.
Near the conclusion of the section 366.26 hearing, mother’s counsel, counsel for Robert and Hope, and father’s counsel opined that the report was inadequate. The court stated, however: “I believe that it is appropriate for me to take into account the evidence that came in today, not just the report. I am not going to comment on the sufficiency of the report or any lacks in it because I don’t believe I have to. I have in front of me a body of evidence that is sufficient for the purposes of making this very difficult decision and having the Agency go back and write down the things that I heard in court today is not going to make the decision any less difficult or change its outcome frankly.”
We find that, while not extensive, the information contained in the assessment report sufficiently described the amount and nature of mother’s contacts with Thomas since placement. In addition, although the assessment report did not contain significant information regarding the amount and nature of the contact between Thomas and the maternal grandfather, the maternal grandmother, and the siblings, or the nature of the contact between Thomas and father, these inadequacies were remedied by additional evidence contained elsewhere in the record and, particularly, by the testimony of social worker Erica Reis, social worker Sue May, and the maternal grandfather at the section 366.26 hearing. Indeed, the juvenile court itself so found.
Accordingly, “[r]eviewing the totality of the evidence before the court, including not only the assessment [report] but [also evidence from prior reports and hearings] and the live testimony of social workers familiar with the case, we conclude there was ample evidence to support the court’s findings and judgment.” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413; accord In re John F. (1994) 27 Cal.App.4th 1365, 1378 [where assessment report is prepared, there is no due process violation and “even if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence and may ultimately prove insignificant”].) Also, to the extent the parents believed additional evidence regarding detriment would have been useful to the court in assessing whether one of the exceptions found in subdivision (c)(1) of section 366.26 applied, the burden was on them to produce such evidence (e.g., a parent and/or sibling bonding study). (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
Mother’s reliance on Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 14 is misplaced. There, the reviewing court found that neither the Social Service Department’s report nor the court’s findings complied with the requirements of subdivision (e) of section 366.21 to consider various factors, including closeness and strength of the sibling bond and the detriment to each child if that bond is not maintained before a section 366.26 hearing is ordered. Subdivisions (e) and (i) of section 366.21, however, require discussion and consideration of distinct factors at distinct phases of the proceedings.
III. Notice to Father Regarding the Continued Section 366.26 Hearing
Father contends his constitutional and statutory rights to notice were violated when the juvenile court failed to ensure he was properly renoticed of the continued section 366.26 hearing. Specifically, he argues that, although he received proper notice of the section 366.26 hearing scheduled for September 7, 2006, he did not receive notice of the continued section 366.26 hearing date of September 28, 2006. He also claims that the notice of the continued hearing was improper because it erroneously stated that the Agency’s recommendation was for legal guardianship, rather than adoption. According to father, these notice errors precluded him from establishing that the parent-child exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) applied to him.
Section 294, subdivision (d), discusses the type of renotice required when a section 366.26 hearing is continued: “Regardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, or to any person entitled to receive notice pursuant to this section, subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent, and to any person entitled to receive notice pursuant to this section, regarding that subsequent hearing.”
Assuming, without deciding, that father’s constitutional due process right to proper notice of the continued hearing was violated, we find that any such error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) The evidence in the record shows that father visited with Thomas perhaps four times. He never contacted Thomas at the fost/adopt parent’s home. Even father acknowledges, in his opening brief, that the evidence was not as strong in establishing the exception for father as it was for mother (to whom we have found the exception does not apply). We find that father cannot satisfy the initial requirement of subdivision (c)(1)(A) of section 366.26 that he has “maintained regular visitation and contact with [Thomas].”
Our Supreme Court has explained that, in general, the Watson standard of harmless error (People v. Watson (1956) 46 Cal.2d 818, 835-836) applies in dependency cases. (In re Celine R., supra, 31 Cal.4th 45, 59-60.) Some courts have found, however, that a due process violation is subject to the Chapman standard (Chapman v. California, supra, 386 U.S. at p. 24) of beyond a reasonable doubt. (E.g., In re Angela C. (2002) 99 Cal.App.4th 389, 394-395.) More recently, Division Four of this District held that procedural due process violations in dependency cases should be subject to a standard of clear and convincing evidence of harmless error. (Denny H. v. Superior Court (2005)131 Cal.App.4th 1501, 1514-1515.) Father argues that the Chapman standard applies here, while the Agency asserts that the clear and convincing evidence standard discussed in Denny H. should apply. We will give father the benefit of the doubt and assume, for purposes of this case only, that the Chapman standard of review applies.
Father nonetheless asserts that, without evidence from him regarding the extent of his contact with Thomas, there was no way for his counsel to argue that the parent-child relationship exception applied. However, father makes no claim that the evidence in the record is incorrect or incomplete or that he would have provided any different evidence at the section 366.26 hearing had he received proper notice. Because we conclude that father could not have shown that he satisfied the requirements of section 366.26, subdivision (c)(1)(A), even had he received adequate notice of the continued hearing, any error in renoticing father regarding the continued section 366.26 hearing was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24; see also In re Angela C. (2002) 99 Cal.App.4th 389, 394-395.)
Indeed, father did not even appear at the originally scheduled section 366.26 hearing, for which he does not dispute he received proper notice.
IV. The Court’s Findings as to Father’s Parental Fitness
Father contends the order terminating his parental rights must be reversed because the court never made a finding that he was an unfit parent.
“ ‘Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.’ [(Santosky v. Kramer (1982) 455 U.S. 745, 747-748.)] ‘After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.’ (Id. at p. 760.) ‘But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.’ (Ibid.) ¶ California’s dependency system comports with Santosky’s requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.)” (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.)
“Indeed, our scheme requires: (1) a court finding that ‘there is a substantial risk of serious future injury’ to the minor in order to establish dependency (§ 300, subd. (a)); (2) a finding by clear and convincing evidence that there is ‘substantial danger to the physical health of the minor’ in order to remove the child from parental custody (§ 361, subd. (b)(1)); and (3) repeated findings by a preponderance of the evidence that return ‘would create a substantial risk of detriment to the physical or emotional well-being of the minor’ (§§ 366.21, subds. (e), (f), 366.22, subd. (a)).” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-255.)
Here, on January 25, 2005, the court found true the allegations in the original petition filed pursuant to section 300, subdivision (b), and adjudged Thomas a dependent of the court. The petition contained allegations against father, including that father had a substance abuse problem that interfered with his ability to care for the minors and that he had a history of domestic violence against mother.
Father asserts that the court only found true the allegations against mother, probably because the order stated that Thomas was a person described by section 300, subdivision (b): “Allegation 1 (WI 300(b)).” However, “Allegation 1” appears to refer to the section 300 petition generally, not a particular allegation within that petition, just as later orders refer to “Allegation 1 (WI 387), ” in describing each of the two supplemental petitions. In the order in question, the court also adopted and incorporated by reference the findings and orders in the social worker’s report, which included the finding that “[t]he allegations of the petition are true.”
Later, at the July 22, 2005 detention hearing on the first supplemental section 387 petition—which alleged that father, against whom a restraining order had been filed, was left to care for the children—the juvenile court adopted the social worker’s recommended findings and orders, which stated, inter alia, that removal from the parents’ home was necessary because of the substantial danger to the physical or emotional health of the child.
That petition was ultimately dismissed on August 17, 2005, although not because of any determination that the allegations were untrue.
Then, at the November 4, 2005 jurisdictional hearing on the second supplemental section 387 petition (which contained allegations solely concerning mother’s recent activities), the court again adopted the social worker’s recommended findings and orders, including the finding that the allegations of the petition were true, the children continued to be dependents of the court, and both parents were to be provided with reunification services.
Finally, at the May 12, 2006 six-month review hearing on the original petition, the court found that father’s progress toward alleviating the causes necessitating placement had been minimal and terminated his reunification services. The court also adopted the social worker’s recommended findings that return of the children would create a substantial risk of detriment based, inter alia, on the fact that father had not alleviated or mitigated the causes necessitating out-of-home placement.
Father appeared personally or through counsel at all hearings since July 22, 2005. He never claimed that he was a non-offending parent. Certainly by the time of the six-month review hearing, at which the court found that return of the children to father would create a substantial risk of detriment and terminated reunification services, it cannot be argued that no finding of unfitness had been made. (See Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-255.)
This case is thus distinguishable from In re Gladys L., supra, 141 Cal.App.4th 845, 847, cited by father, in which the reviewing court held that termination of a father’s parental rights violated due process because there had been no finding by clear and convincing evidence that the father was unfit as a parent. In that case, however, no petition had ever been filed alleging that the father had violated section 300 and no findings had been made as to the father because he disappeared after the detention hearing and did not reappear until the section 366.26 hearing. Nor had any finding of detriment ever been made with respect to the father. (Id at p. 848.) In the present case, father was represented by counsel and participated in the proceedings, including—albeit minimally—in his case plan, from early in the case through termination of his parental rights.
DISPOSITION
The orders appealed from are affirmed.
We concur: Haerle, J., Lambden, J.