Opinion
2d Juv. No. B207332
10-29-2008
In re Y.V., a Person Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. L. C. et al., Defendants and Appellants.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant Father, L.C. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Mother, M.V. Dennis A. Marshall, County Counsel and Toni Lorien, Deputy County Counsel for Plaintiff and Respondent.
Not to be Published
L.R. (father) and M.V. (mother) appeal from the order terminating their parental rights to their daughter, Y.V. (Welf. & Inst. Code, § 366.26.) Both parents contend that the court lacked clear and convincing evidence to make a finding that Y.V. was likely to be adopted. They also contend that the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v), bars a termination of rights in this case. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, mother and her toddler daughter, L.V.S., lived with mothers aunt in Lompoc. On September 9, 2006, mother gave birth to Y.V. at home, in an empty bathtub. Because mother did not want her parents to know about her pregnancy, she did not seek prenatal care or postnatal medical care for Y.V. or herself. She and L.V.S. had received such care during and after mothers prior pregnancy and delivery.
On the night Y.V. was born, mother cleaned and dressed her and put her in a duffle bag. She carried her in the duffle bag to the home of J.N., a female customer of a restaurant, where mother formerly worked.
J.N. named Y.V. She took Y.V. to Los Angeles County, where her niece took care of her. J.N. or her niece, or both, later "gave" Y.V. to a woman in Anaheim. J.N. has a record of abducting children.
Later in September, the Lompoc Police Department and the Santa Barbara County Children Welfare Services (CWS) received reports that mother had delivered a baby at home, and left her in the care of a friend who might have given the baby away. After an initial investigation, attorneys for CWS (Santa Barbara County Counsel) concluded that, in order to link her to her mother, Y.V.s true identity must first be determined. Pending such determination, CWS asked the Los Angeles County Department of Children and Family Services (DCFS) to assume responsibility for Y.V.s care and well-being. On September 21, 2006, Maywood police officers located Y.V. and took her into protective custody. She was placed in DCFS foster care that night.
On September 26, 2006, the DCFS filed a petition to declare Y.V. a dependent child under section 300. The Los Angeles dependency court ordered that Y.V. be detained, and that mother undergo DNA testing to confirm parentage.
In October 2006, Y.V. was diagnosed with pyloric stenosis, a condition that interferes with digestion and impairs growth. She entered the hospital for corrective surgery and went home the next day. Consequently, Y.V. ate well and grew normally.
In November 2006, Y.V.s father appeared in dependency court and requested DNA testing to confirm his paternity. The court later found that mother and father were Y.V.s biological parents.
On March 8, 2007, the Los Angeles County dependency court transferred the case to Santa Barbara County. The Santa Barbara dependency court conducted a disposition hearing on May 10, 2007. At that time, Y.V. had already been placed with her maternal great aunt in Lompoc. Her parents had also married and were living together with Y.V.s half-sister.
The May 2007 disposition report indicates that Y.V. was healthy, and generally a happy child. The social worker expressed concern about the possible absence of a bond between mother and Y.V., and mothers failure to accept responsibility for her conduct that led to the dependency. Consequently, upon CWSs request, the court ordered a psychological evaluation for mother. The court also ordered a psychological evaluation for father; ordered that CWS provide them family reunification services; and scheduled an interim review hearing.
Before the interim review hearing, the case worker made repeated attempts to contact the parents by telephoning and sending them registered letters, and by leaving a card at their home. Mother left one message stating she could not receive calls at work. Because parents failed to maintain contact with her, CWS could not assess whether they had complied with the case plan. Mother did meet with a psychologist who expressed concern about her lack of emotional responsiveness and limited ability to sense the needs of an infant and respond appropriately. The psychologist felt that mother needed to address her mental health problems in order to parent Y.V.
Parents visited Y.V. CWS learned that during mothers visits with Y.V., she did not engage or interact with Y.V. Mother often left her on the floor surrounded by toys. Mother completed some parenting classes. In other respects, however, CWS reported that parents failed to comply with the case plan. CWS recommended the termination of reunification services and asked the court to set a section 366.26 permanency hearing.
On December 19, 2007, after learning that Y.V.s maternal great aunt could no longer care for her, CWS filed a section 387 petition requesting Y.V.s removal from that placement. On that date, the court granted the petition and held a contested six-month review hearing. The court terminated family reunification services for mother and father and set a section 366.26 hearing for April 17, 2008.
The section 366.26 hearing report stated that after Y.V.s removal from her maternal great aunts home, Y.V. was placed in shelter care where she was "clingy." She was next placed in a foster home where she went through a very difficult transition period but ultimately adjusted, resumed eating normally, and seemed to be happy. CWS placed her in a concurrent planning home on April 1, 2007, and she quickly adjusted to her new home and family.
Because of her young age, normal development and lack of behavioral and emotional issues, CWS assessed Y.V. as being generally adoptable. The care providers who accepted Y.V. in April 2007 were willing and able to adopt her. CWS indicated that if the placement did not work out, it would have no trouble finding her an adoptive home and that she would be able to make the transition, if necessary.
Two of the parents three visits before the April hearing were very difficult for Y.V. She cried excessively before, during, and after the visits. CWS could not prepare an adoption assessment in the short time between her placement and the section 366.26 hearing. CWS indicated it would be detrimental to Y.V. to delay the termination of parental rights for that purpose because it would require 90 more days to do so.
During the section 366.26 hearing, neither mother nor father presented any evidence or offered any comments. The court adopted the report of the social worker and found that there was clear and convincing evidence that it was likely that Y.V. would be adopted. It ordered adoption as the permanent placement goal for Y.V. and terminated the parental rights of Y.V.s mother and father.
DISCUSSION
Substantial evidence supports the courts finding of adoptability
Father and mother each claim that the court lacked clear and convincing evidence to make a finding that Y.V. was likely to be adopted. The record belies their claim.
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26; see In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) " . . . In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.] [Citations.]" (In re Gregory A., supra, at pp. 1561-1562.) "We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]" (Ibid.)
"A childs young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.]" (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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 Asia L. (2003) 107 Cal.App.4th 498, 510.) In this case, there was clear and convincing evidence that Y.V. met all of these criteria.
Mother and father rely on inapposite cases in claiming the absence of clear and convincing evidence to support the courts finding of adoptability. For example, father cites In re Jerome D. (2000) 84 Cal.App.4th 1200, where the reviewing court reversed a termination of parental rights because there was insufficient evidence of general adoptability. (Id. at pp. 1205, 1210.) In re Jerome D. involved a minor who was more than seven years old, had lived with his mother for many years, had a close relationship with her, and also had a prosthetic eye that required care and treatment. In addition, the childs adoption assessment did not indicate whether any approved families were willing to adopt a child of his "age, physical condition, and emotional state." (Id. at p. 1205.) Here, in contrast, Y.V. never lived with mother, who personally removed her from her home, never obtained medical care for her, and left her with an acquaintance hours after her birth. Y.V. was very young and lacked any condition that required special treatment. Social workers and psychologists expressed doubt about the existence of any bond between mother and Y.V. Despite the lack of an adoption assessment, at the time of the section 366.26 hearing, Y.V. was with caregivers who were able and willing to adopt her.
Even when a child is not placed with prospective adoptive parents at the time of the permanency hearing, the focus remains on the childs physical and emotional state. "The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(1).) "[I]t is not necessary . . . that the child, at the time of the termination hearing, already be in a potential adoptive home. Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation & fn. omitted.]" (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) Substantial evidence supports the courts finding that it was likely that Y.V. would be adopted within a reasonable time.
The Sibling Relationship Exception
Mother and father contend that the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v), bars a termination of rights in this case. We disagree.
The sibling exception bars the termination of parental rights when "[t]here would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) The focus of this exception is on the welfare of the child who is being considered for adoption, not that of the sibling. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) The party seeking to establish its existence must carry the burden of producing evidence on the issue. (In re Megan S. (2002) 104 Cal.App.4th 247, 252-253.)
During the section 366.26 hearing below, neither mother nor father raised the section 366.26, subdivision (c)(1)(B)(v), sibling relationship exception to adoption. Respondent argues that their failure to do so waived the issue. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) Even assuming that there was no waiver, mother and father failed to carry their burden of producing evidence on the issue. Y.V. had one sibling, a sister, who never lived with her. Mother and father argue that severing the sibling bond would be emotionally harmful to Y.V. and that the sibling relationship exception bars the termination of parental rights.
Neither parent testified regarding visits between Y.V. and her sister or any other aspect of their relationship. On appeal, they refer to the "[a]ge appropriate play" that occurred between Y.V. and her sister during parental visits. They also refer to a page in a status review report that states: "The mother reportedly does not engage [Y.V.] or interact with her on a consistent basis. The mother reportedly will sit her on the floor with several toys surrounding her and will let her play by herself or with her older sister . . . ."
As the proponents of the sibling relationship exception, mother and father bore the burden of producing evidence on that issue. (In re Megan S., supra, 104 Cal.App.4th at pp. 252-253.) They failed to present any evidence showing that there was a sibling bond between Y.V. and her half sister, or that Y.V. would suffer detriment if they were separated. Our task on appeal is limited to assessing whether substantial evidence supports the trial courts ruling. (Id. at pp. 250-251.) Substantial evidence supports the courts finding that Y.V. would benefit from a permanent home through adoption. The claimed sibling relationship exception does not bar the termination of parental rights in this case. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)
The judgment is affirmed.
We concur:
GILBERT, P.J.
YEGAN, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code.