Opinion
A148890
02-03-2017
In re CHRISTIAN P. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. K.P. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J15-00525, J15-00526)
K.P. (mother), the mother of three-year-old Christian P. and two-year-old Andrew L., appeals from juvenile court orders terminating her parental rights under Welfare and Institutions Code section 366.26. Patrick L. (father), Andrew's father, also appeals from the order terminating parental rights to his son. Mother contends that the court erred by finding both children adoptable, and father contends that the court erred by finding that the beneficial-relationship exception to termination did not apply. We affirm.
All further statutory references are to the Welfare and Institutions Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In May 2015, after mother and father had had "numerous police contacts for domestic violence" perpetrated by father, the Contra Costa County Children & Family Services Bureau (Bureau) filed petitions alleging that the juvenile court had jurisdiction over then two-year-old Christian and nine-month-old Andrew under section 300, subdivision (b) based on mother's failure to protect them from father's domestic violence. The court ordered the children detained, and they were placed in the same foster home. The court found that father was Andrew's presumed father, and it ordered genetic testing to determine whether he was Christian's biological father. Mother and father were permitted to have weekly supervised visitation with both boys.
The Bureau also filed a petition for the children's then three-year-old maternal half brother. We do not discuss facts related to him, as the juvenile court eventually terminated jurisdiction over him after he was placed with his father.
Testing ultimately revealed that another man was Christian's biological father. The juvenile court denied that man's request for presumed-father status and reunification services, made shortly before the section 366.26 selection and implementation hearing, and he did not appeal from the order terminating parental rights to Christian.
The following month, the juvenile court found true amended allegations under section 300, subdivision (b) that there was a substantial risk of harm to Christian and Andrew based on the ongoing domestic violence between the parents. Mother did not contest the allegations, and father, who had recently been hospitalized after a suicide attempt and diagnosed with schizophrenia, did not appear to contest jurisdiction. The court characterized the matter as "truly one of the most dangerous cases of domestic violence [it had] ever seen in this courtroom," based on father's stalking of mother and his apparent mental illness.
The July 2015 disposition report stated that Andrew had been diagnosed with cystic fibrosis. He "was severely malnourished" because despite his high-calorie diet "his body was not able to absorb the nutrients." In addition, "[h]is pancreas functioning was severely compromised." To address these issues, he was placed on a "high fat, high calorie diet" and prescribed enzymes and vitamins. His condition also required him to have "twice daily breathing treatments," increased to four if he was sick, followed by "percussion (pounding on his front and back) to loosen the mucu[]s," a thirty-minute process each time. In addition, he "ha[d] to be kept away from anyone who is sick" and required that everything in his environment "be kept as clean as possible." The medical team later tested the foster mother "on her understanding of the disease, the systems it affects, and her knowledge of how the disease is manifesting in Andrew" as well as how she administered his care and handled his feeding, and she was deemed to be "doing very well." The report also stated that father had appeared for his first two scheduled visits with Andrew, during which father acted appropriately, but that father stopped appearing for visits at the end of May.
Father was arrested a few days before the dispositional hearing in late July, and he appeared at the hearing in custody. As to both Andrew and Christian, the juvenile court ordered services for mother and continued her visitation. As to Andrew, the court also ordered services and supervised visitation for father, but it provided that while incarcerated father was to have no contact with his son. Father's visits did not begin until October, however, because of the social worker's mistaken belief that father had to begin cystic-fibrosis training before they could occur.
In December 2015, the Bureau submitted a memo to the juvenile court reporting that Andrew had recently spent 20 days in the hospital "in isolation because of an infection he acquired involving multiple strains of treatment-resistant bacteria." Mother failed to appear at the hospital to give her consent to a necessary follow-up medical procedure. She later claimed that she had forgotten the appointment, which required Andrew "to go without food for more than twelve hours and travel more than ninety miles round trip." Based on this and other missed visits, the Bureau requested that drug testing for mother be ordered, that Andrew's counsel be given the right to authorize his medical treatments, and that the frequency of mother's visitation with both children be reduced. Mother agreed to drug test, and the court granted the other two requests.
The January 2016 six-month-review report stated that in early November, Christian and Andrew were placed with relative caregivers, a maternal cousin and her husband. After Andrew was hospitalized, the children's foster mother had given her notice "because she felt that Andrew's ongoing and then-current medical needs were overshadowing the needs of her own biological family." Recognizing that "finding a loving home for Andrew that could accept responsibility for his high level of need had the potential of being a very difficult task," the report noted that fortunately, the maternal cousin was willing to care for both boys. She "was the former long-term caretaker for [mother's] brother who also had cystic fibrosis" and was "well aware of what it would take to care for Andrew," and "she had the stability and family resources that Andrew's care necessitates." The cousin had begun attending classes on cystic fibrosis, and the class coordinator gave the " 'opinion that she ha[d] retained a working knowledge of CF over the years and [would] be adept at providing care for Andrew with the appropriate guidance and support from the CF medical team.' " (Italics omitted.)
Meanwhile, according to the six-month-review report, mother and father were "struggl[ing] to maintain stability in their lives." Mother had begun living in domestic violence shelters in May, but in November she was kicked out of the most recent shelter for violating the rules. In addition to missing Andrew's follow-up medical appointment, mother had missed several visits with the children in the latter part of 2015. She had attended some domestic violence and parenting classes, but she had not sought therapy despite several referrals. Father had made efforts to visit with Andrew, but father's housing situation was also unstable. He had failed to enroll in a domestic violence program and had not sought therapy. The Bureau recommended terminating mother's and father's reunification services.
In a memo submitted shortly before the February 2016 six-month review hearing, the Bureau reported that since father had begun drug testing in late August, he had missed seven tests and had four diluted tests. He also missed three visits with Andrew in December and January. Father admitted that he "had been living on the streets" and using methamphetamine and was attempting to find an appropriate inpatient drug- treatment program. Mother, who had begun drug testing in December, tested positive for methamphetamine in mid-January and missed a subsequent test. She had also attempted to visit with Andrew in late January while she had "flu-like symptoms, endangering his health and safety," and missed a treatment meeting for him the following week.
At the February 2016 six-month review hearing, mother and father contested the termination of their reunification services. The social worker reported that father had missed another visit with Andrew the week before because father was briefly incarcerated for charges that were eventually dropped. The social worker testified that father usually behaved appropriately at visits, although during the most recent visit father had expressed a concerning "abrupt anger and alarm at Andrew" while changing the child's diaper.
Based on their behavior in the courtroom, the juvenile court ordered mother and father tested for drugs during a break in the hearing. Mother tested positive for methamphetamine, and father tested positive for methamphetamine and THC (marijuana). The court then continued the hearing and ordered mother's and father's visits suspended until they entered a drug treatment program.
At the continued hearing in March, the juvenile court terminated mother's and father's reunification services and set a selection-and-implementation hearing under section 366.26. The court also found that further contact between mother and both children and father and Andrew would be detrimental and ordered that no further visitation occur.
The section 366.26 report filed in June 2016 recommended that mother's and father's parental rights be terminated and that adoption be ordered as both children's permanent plan. The report stated that the prospective adoptive parents, the relative caregivers with whom the children had now been living for seven months, were "skilled and trained to meet Andrew's medical needs and meet Christian's developmental needs," had "wholeheartedly accepted these children as . . . member[s] of their family," and could not "imagine their lives without these children." The children had not been in mother's or father's care for over a year and the last visits had been in January. The report therefore concluded that terminating parental rights would "not interfere with an existing parent/child relationship."
A contested section 366.26 hearing was held in late June 2016. Father testified that he loved Andrew "a lot," that they had had a "very great" relationship during visits, and that he wished to maintain contact with his son. Father asked that the juvenile court order legal guardianship because he was "on a straight, narrow path now, staying clean and sober from drugs, working, stable, and [could] take care [of his] son and all his needs."
The juvenile court found by clear and convincing evidence that Christian and Andrew were adoptable, a fact neither parent disputed. The court assumed without deciding that both parents had had regular visitation and contact with Andrew, but it determined that although they loved him, the benefit he derived from his relationship with them did not outweigh the benefit of adoption. It therefore terminated parental rights to both children.
II.
DISCUSSION
A. Substantial Evidence Supports the Findings of Adoptability.
Mother claims that we should reverse the orders terminating her parental rights because the juvenile court incorrectly found that Christian and Andrew were adoptable. We are not persuaded.
Father joins this claim on the basis that if we reverse the termination of mother's parental rights to Andrew, we should reverse the termination of father's parental rights as well. (See Cal. Rules of Court, rule 5.725(a)(1) [prohibiting termination of parental rights of only one parent except in limited circumstances].)
Before selecting adoption as a child's permanent plan at the section 366.26 hearing, a juvenile court must find by clear and convincing evidence that " 'the minor will likely be adopted if parental rights are terminated.' " (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408; see § 366.26, subd. (c)(1).) In most cases, the inquiry focuses on whether the minor is generally adoptable, that is, " 'whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.' [Citation.] However, 'in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.' " (Brandon T., at p. 1408; see also In re K.B. (2009) 173 Cal.App.4th 1275, 1292-1293.) " '[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because "it is likely" that that particular child will be adopted.' " (K.B., at p. 1293.)
We review the juvenile court's determination that a child is adoptable for substantial evidence. (In re R.C. (2008) 169 Cal.App.4th 486, 491.) In doing so, "[w]e give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Although mother did not object below that proof of adoptability was lacking, "a claim that there was insufficient evidence of [a] child's adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court." (In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
We agree with the Bureau that the adoptability finding here was premised on the relative caregivers' willingness to adopt Christian and Andrew and was therefore a finding that the children were specifically adoptable, not generally adoptable. Although mother argues that the juvenile court found that the children were generally adoptable, she also acknowledges that the adoptability finding was "based upon the caretakers' desire to adopt" and raises several arguments that are also applicable to a finding of specific adoptability. We therefore assume without deciding that the children were not generally adoptable and address only whether they were specifically adoptable, an analysis that focuses on "whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
Initially, mother argues that it is unclear whether the relative caretakers were willing to adopt Andrew because she claims that "where the [section 366.26] report lists whether a caretaker was interested in adopting the children, the report only indicates 'Yes' for Christian and is blank with respect to Andrew" and because in two other places the report refers to a singular "child" instead of "children." This argument borders on frivolous. The "Yes" answer is next to a single entry for both Christian and Andrew, whose names are joined with an ampersand. And the report repeatedly refers to the children in the plural when noting the caregivers' intent to adopt them, confirming that the stray references to a singular child were typographical errors. There is no ambiguity in the report, much less anywhere else in the record, about the caregivers' willingness to adopt both children.
Mother also argues that "there was simply too much 'unknown' information that the [section 366.26] report failed to address" because "Christian and Andrew still had outstanding medical, behavioral, and psychological issues that had yet to be evaluated and assessed." In particular, she points to the report's indication that Christian had a pending referral for an autism assessment and that Andrew needed "therapeutic services" based on his recent behavior of "stomping his feet, throwing his toys, hitting, kicking his caregivers[,] or tantrums" when he was told "no." She relies on In re Valerie W. (2008) 162 Cal.App.4th 1, which held that substantial evidence of a child's adoptability was lacking where, among other deficiencies in the record, the child had potential neurological and genetic problems but "[t]he [juvenile] court and the parties were not informed of [his] diagnosis or possible diagnoses, prognosis or any needs for treatment or special care," preventing the court from assessing whether the prospective adoptive parents could meet the child's needs. (Id. at pp. 6-7, 15.)
In re Valerie W., supra, 162 Cal.App.4th 1, is distinguishable. In that case, there was very little information about the child's potential medical conditions or the prospective adoptive parents' capability to address them. Here, in contrast, there is sufficient evidence in the record to support the conclusion that the relative caregivers were willing and able to meet Christian's and Andrew's needs. First, Christian's referral for an autism assessment was based on "a concern about [his] language development and his inability to communicate with others." This concern was not new, however: Christian had "entered the foster care system with a noticeable speech delay," and subsequent Bureau reports discussed this issue. The relative caregivers were thus aware of Christian's challenges in this area, and the section 366.26 report specifically noted that they were "skilled and trained to . . . meet Christian's developmental needs." Although it remained to be seen whether Christian was autistic, "[n]owhere in the statutes or case law is certainty of a child's future medical condition required before a court can find adoptability." (In re Helen W., supra, 150 Cal.App.4th at p. 79.)
Second, Andrew's behavioral issues had resulted in a referral for therapy, but there is no indication in the section 366.26 report that they might be rooted in some unknown underlying condition or sufficiently severe to cast doubt on the relative caregivers' willingness or ability to address them. This is particularly true given that the record reveals the caregivers' exemplary dedication to providing the special care Andrew needed because of his cystic fibrosis. Some level of uncertainty about how his behavioral issues would play out is insufficient to undermine the conclusion that the caregivers wanted to adopt him and could meet his needs.
Mother also argues that there was insufficient evidence that the relative caretakers could meet Christian's and Andrew's needs because the caretakers worked full-time and there was no information given about who cared for Andrew while they were at work. Mother fails to cite any authority to support the proposition that an adoption assessment must address the caregiving arrangements a prospective adoptive parent has made if that parent is employed. In any event, there was significant evidence that the relative caregivers were well-prepared to meet Christian's and Andrew's needs, and it is reasonable to infer from that evidence that they would make appropriate arrangements for the children's care when they could not be with the children themselves. We also disagree with mother that it is necessary to remand for the juvenile court to determine whether the relative caregivers could meet the children's needs, as the court's finding of specific adoptability encompassed that determination.
Finally, mother argues that we also must remand for a finding on whether there are any legal impediments to adoption. She fails to identify any such impediments that may exist here, and the record reveals none. The section 366.26 report states that the relative caregivers' "fingerprints and clearances [were] on file," that "[t]here [was] no known criminal [or] child abuse history," and that "[t]here [were] no known impediments to the approval of this adoptive home." Thus, this is not a case like In re Jerome D. (2000) 84 Cal.App.4th 1200, cited by mother, which held that a prospective adoptive parent's desire to adopt the child did not support a finding of specific adoptability because the adoption assessment did not address the prospective adoptive parent's known history of domestic violence and emotional abuse of other children. (Id. at pp. 1203, 1205.) Because there is no indication of any legal impediment to the relative caregivers' adoption of Christian and Andrew, the juvenile court's adoptability findings are not subject to reversal on this basis either.
B. The Juvenile Court Correctly Found that the Beneficial-relationship Exception Did Not Prevent Termination of Father's Parental Rights.
Father claims that the juvenile court erred by terminating his parental rights to Andrew, relying on the statutory exception that applies when there is "a compelling reason for determining that termination would be detrimental to the child" because a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (the beneficial-relationship exception). (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
Mother joins this claim on the same basis that father joins her claim. (See Cal. Rules of Court, rule 5.725(a)(1).)
After a juvenile court has determined that a child is adoptable, it must "terminate parental rights and order the child placed for adoption" unless a statutory exception applies. (§ 366.26, subd. (c)(1).) To show that the beneficial-relationship exception applies, a parent must establish two prongs: "regular visitation" and "benefit to the minor[] of continued contact with the parent[] that outweigh[s] the benefits of adoption." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) As mentioned above, the court assumed that father had maintained regular visitation, and only the second prong is at issue here.
Appellate courts have reviewed determinations about the applicability of the beneficial-relationship exception for substantial evidence, abuse of discretion, or a combination of both. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7 [discussing cases].) We will review for substantial evidence, the standard the parties agree upon, while recognizing that the "practical differences between the two standards of review are not significant." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
"The 'benefit' prong of the [beneficial-relationship] exception requires the parent to prove his or her relationship with the child '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 re K.P. (2012) 203 Cal.App.4th 614, 621.) "To meet the burden of proof for the [beneficial-relationship] exception, the parent must show more than frequent and loving contact or pleasant visits." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.) "No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, '[a] parent[] must show that [he or she] occup[ies] "a parental role" in the child's life.' [Citations.] The relationship that gives rise to this exception . . . 'characteristically aris[es] from day-to-day interaction, companionship[,] and shared experiences. . . . [Citation.] '[B]ecause a section 366.26 hearing occurs only after the [juvenile] court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.' " (K.P., at p. 621.)
Although father acknowledges that we review for substantial evidence supporting the juvenile court's determination, his arguments pay no attention to this standard. He lists details about the visits he had with his son early in the case and contends that they demonstrate a positive relationship, but having generally good visits with a child does not suffice to establish the beneficial-relationship exception, much less justify reversal of a court's determination that the exception is not met. (See In re L. Y. L., supra, 101 Cal.App.4th at pp. 953-954.) And the record includes ample other evidence to support the conclusion that father did not share a parental relationship with Andrew, especially given the infrequency of their contact.
We do not rely on father's failure to reunify in reaching this conclusion, and we therefore need not address his claim that the extent of his rehabilitation and compliance with services is irrelevant to whether the beneficial-relationship exception applies. --------
Father also claims that there was evidence that terminating his parental rights would be detrimental because of Andrew's cystic fibrosis. Father argues that because the previous foster family decided it was unable to care for Andrew, it was "a real possibility" that Andrew's prospective adoptive parents would "abandon" him too, leaving him without familial ties if parental rights were terminated. This argument is speculative, particularly given the evidence we have already discussed that Andrew's relative caregivers were well-prepared and willing to address his needs. In any case, father makes no attempt to demonstrate that the benefit to Andrew of continuing a relationship with father outweighed the benefit of eventually being adopted. The juvenile court correctly concluded that the beneficial-relationship exception did not apply.
III.
DISPOSITION
The orders terminating parental rights to Christian P. and Andrew L. are affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.