Opinion
D071411
07-21-2017
In re A.J. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. N.B. et al., Defendants and Appellants.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant F.L.J. Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant N.B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J515689) APPEAL from a judgment and orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant F.L.J. Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant N.B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Appellants F.L.J. (Father) and N.B. (Mother) appeal a juvenile court judgment terminating their parental rights to seven-year-old A.J. and three-year-old F.J. (the children), and choosing adoption as the permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code unless noted.) Father also appeals the court's order denying his modification petition seeking custody and placement of the children with him, or placement with family maintenance services. (§ 388.) He argues that under section 361.2, he as a noncustodial parent was entitled to a grant of custody at the modification stage. Mother joins in his arguments, which are opposed by respondent San Diego County Health and Human Services Agency (the Agency).
Section 361.2, subdivision (a) provides in relevant part: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child."
Each parent additionally contends there was no clear and convincing evidence presented in support of the juvenile court's findings of adoptability for this sibling set. The children had undergone 10 placements in the two-year pendency of these proceedings, and at times, they had been evaluated as difficult to place for various behavioral reasons. (§ 366.26, subds. (c)(1), (c)(3).) The parents thus argue the juvenile court erred or abused its discretion in denying a 180-day continuance of the permanency planning hearing which would have delayed termination of their rights and enabled the Agency to make further efforts toward locating an adoptive home that could accommodate both children. (§ 366.26, subds. (b)(4), (c)(3).)
The parents further challenge the sufficiency of the evidence to support the court's finding that no exception to adoption preference applied, i.e., their beneficial parent-child relationships. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) Mother adds an argument that a different exception to adoption preference exists, due to an existing beneficial sibling relationship that outweighed any advantages of termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v).)
The Agency's brief contends the record shows no abuse of judicial discretion or lack of supporting evidence. The Agency admits the juvenile court erred in one respect when ordering adoption as the permanent plan, by stating the Agency could only place the children in an adoptive home that would take them together. The Agency agrees with the parents that this purported order on placement exceeded the court's jurisdiction. The Agency, however, characterizes any such error as harmless, in view of the remainder of the record.
We previously denied the Agency's request to augment the record with material postdating the November 23, 2016 orders on appeal. The requested augmentation would have added change of placement orders for the two children, identifying a potential adoptive home where they were placed in.
We conclude the record supports the juvenile court's determinations and affirm the judgment and orders.
I
BACKGROUND
A. Jurisdiction and Placement with Mother; Reunification Services
A.J. was born in May 2009 and F.J. in May 2013. In July 2014, the Agency filed a dependency petition alleging they were at substantial risk of suffering serious physical harm due to the failure or inability of the parents to supervise or protect them adequately. (§ 300, subd. (b)(1).) Father had lived with Mother and the children off and on since A.J.'s birth, but he was incarcerated as of July 2014. That week, Mother had more than one violent confrontation with the maternal grandmother and the maternal aunt, in view of the children, at the place where they all lived. The children and Mother had lived in a converted room there for about six months and were given only partial access to the toilet, running water, and kitchen inside the home.
After the July 23, 2014 confrontation, Mother was arrested on various charges (assault, battery, vandalism, and resisting arrest). The responding officers decided to remove the children from the home due to concerns about their safety with the relatives. The children were taken to Polinsky Children's Center (PCC) and detained together in foster care.
From its investigation, the Agency learned that Mother has a lengthy child welfare history involving herself as a child and also her treatment of her two older children, who had been permanently removed from her custody. Both Mother and Father had arrest records and histories of criminal convictions. Since A.J. was born, Father had been arrested 14 times. From April 2014 through November 2014, Father was in jail for felony grand theft.
The Agency found records of a March 2014 domestic violence incident between Mother and Father. Around 2012, Mother had obtained a restraining order to keep Father away from her, apparently because of his gun use. He believed it was still in effect in 2014, but it was just a case of mistaken identity.
The parents did not contest the petitions and submitted to the jurisdiction of the court. The court made true findings about the domestic violence allegations involving the maternal grandmother, and declared the children to be dependents of the juvenile court, removing them from Mother's custody. Father was deemed to be a noncustodial, nonoffending parent, but the court determined that placement with him would be detrimental to the children due to his incarceration. The children were placed in foster care and both parents were to receive reunification services. Mother entered residential drug treatment in December 2014. The children's initial placement had to be changed when there were allegations that A.J. had been sexually abused there. A court appointed special advocate (CASA) was appointed to assist in the children's proceedings, and she supported returning the children to Mother's care.
At the six-month review hearing in March 2015, the juvenile court placed the children with Mother on several conditions, including obtaining services for the children, participating in her drug tests and services, and remaining sober. Both parents were to receive further services. Father visited the children between late December 2014 and February 2015.
Mother was testing negative for drugs through the beginning of April 2015, when she completed her residential drug program. She started living in motels and then returned to the grandmother's home between April and September 2015. Mother and Father had disputes about his access to the children, and he did not see them after March until October 2015.
Father was not in touch with the Agency between March and July 29, 2015. He was charged with violating his parole conditions in May 2015, but was back in compliance by August 2015. At that time, he told social workers he had been having trouble complying with services because he was helping his sick father. Father made some efforts to participate in therapy and in-home parenting through Community Services for Families (CSF), and told CSF staff members that he was homeless. He attended some of his scheduled visits with the children. As of July 2015, A.J. was given a diagnosis of adjustment disorder with disturbed emotion and conduct, and problems with her primary support group.
After the 12-month review hearing on September 24, 2015, the children continued to be placed with Mother and she received continuing services. Father was ordered to submit to drug testing, as was Mother. The Agency continued to provide Father with mandatory services through March 2016.
B. Agency's Supplemental Petition in October 2015
In early October 2015, the attorney for the children filed a modification petition to change their placement. Shortly thereafter, the Agency filed a supplemental petition seeking to have the children removed from Mother's custody. (§ 387; the children's attorney then dropped that petition.) Although Mother had completed a parenting course, she seemed to be struggling to apply the skills discussed there and had no stable housing. She and the children were again living with the grandmother, with whom she often argued, and they did not have regular access to the facilities in the main residence. Mother admitted she had been using alcohol to excess and methamphetamine, and she had not followed up on prescribed services for herself and the children. Father was in and out of contact with the Agency's social workers.
As of October 6, 2015, the children were detained at PCC and the Agency's assessment was that neither parent would be available for placement of the children. A detention hearing was set for October 7 on the section 387 petition, which was sustained. For about six weeks, the children were placed in separate out-of-home care facilities, with supervised visitation and more reunification or enhancement services ordered for the parents. The children were returned to a placement together in November 2015.
By the time of a December 11 hearing on the supplemental petition, Mother had entered another residential drug treatment program and agreed to participate in dependency drug court, among other services. The Agency recommended that Father continue to receive enhancement services, including therapy, participation in in-home parenting instruction (through CSF), and visits. The court scheduled an 18-month permanency review hearing in March 2016.
C. 18-month Hearing; Termination of Reunification Services
In preparation for the 18-month review hearing in March 2016, the Agency reported that as of February 2016, Father was continuing to stay with friends and family or in a motel room. He was starting a business and applying for governmental benefits. Father continued to engage in therapy and CSF services, drug testing and weekly visitation, and he kept in contact with the Agency. In February 2016, he agreed not to drink alcohol before visiting the children, and started weekly unsupervised visits. Mother was also planning to begin unsupervised visits
As of February and March 2016, the children's foster parent was requesting that they be removed from her home, due to her struggles with their behaviors. When Mother's visits were scheduled, A.J. sometimes acted out. The children were detained at PCC until another foster home could be found, which was not until mid-April 2016.
At the contested 18-month hearing in March 2016, the juvenile court received documentary evidence and the Agency's reports and heard testimony. The Agency was requesting that Father obtain its approval of the homes that he wanted to utilize for overnight visits with the children. He did not yet have a plan for supplying childcare or transportation for A.J.'s therapy or school. Father's therapist was helping him to access community resources for housing. Father was in the process of obtaining a studio apartment, and said it was hard to do everything the Agency wanted while earning money for housing.
After the presentation of evidence and argument, the juvenile court found the Agency had provided each parent with reasonable services. The parents did not qualify under section 366.22, subdivision (b) for continued services through the 24-month date. Although Father had engaged in visitation and some services, there were no extraordinary circumstances or apparent best interests of the children that would have justified extending more services to him. His mandated services were terminated, but he continued to participate in enhancement services.
With respect to Mother, the court noted she had not met the children's needs when they were returned to her care. The court terminated her mandatory services and set a permanency planning hearing for July 2016. Although both parents filed notices of intent to petition for writ review, no viable issues for review were identified and this court dismissed that case.
By April 18, 2016, the children had been moved to a confidential foster home placement (designated CFP). The juvenile court approved the CASA as the holder of the children's educational rights.
In June 2016, the Agency requested permission from the court, which was granted, to begin recruitment activities to find adoptive homes for the children. The Agency represented that the children were difficult to place for one or more reasons and no adoptive home for them had yet been found.
Father visited the children regularly. In June 2016, Mother's family had a chaotic visit with the children at a visitation facility, when Mother yelled at the foster caregivers for yelling at the children, and told the children to report that behavior to her. When it was time to leave, the maternal aunt told the foster father, " 'Now I know what you look like,' " and told the foster mother she planned to " 'burn their house down.' " Mother and the maternal grandmother loudly criticized the foster caregivers. After law enforcement was called, the children agreed to leave the visitation facility with the caregivers. The adoptions social worker talked to the children afterwards, and they said the caregivers had not in any way abused them. Mother's and the grandmother's visits were moved to the Agency's office under a given set of conditions that restricted their behaviors.
As of July 2016, the Agency made a preliminary assessment that the children were generally adoptable, based on their appearances, personalities and activities. Although there were numerous approved preadoptive homes for the children individually, there were fewer for them as a sibling set (5). The CFP foster parents were not available for adoption or guardianship. The maternal grandmother's application to be a de facto parent was denied. At the section 366.26 hearing in July, the court granted the Agency's request for a 60-day continuance to further assess the most appropriate permanent plan for the children. The new hearing was set for September 15 and later continued to October and November 2016.
In August 2016, the Agency developed concerns that Mother was attending at least one of Father's visits, based on statements the children made that were contradictory. A.J. told the foster mother that she was supposed to lie about seeing Mother then, to protect the family's ability to be together.
By August 23, Father had a place to live but was not sure if it was feasible for the children. He continued to have unsupervised visits and the children were affectionate with him. When they left visits, they did not seem to become distressed about separating from him.
D. Modification Petitions and Permanency Planning Hearing; Rulings
In the discussion portions of this opinion, we will outline more of the evidence presented at the October-November 2016 hearings, relevant to the modification requests and the permanency planning issues. In this introduction, we briefly note that in September 2016, both parents filed section 388 petitions seeking modification of the existing orders. Father's petition requested that the children be placed with him, with or without custody and services. Father had obtained a job, completed an in-home parenting class, and been discharged from therapy after meeting his major treatment goals. He had support from his church in making good decisions for providing the children with a loving, safe, and healthy home.
Mother's section 388 petition requested return of the children with termination of jurisdiction or in the alternative, placement with Mother or Father with services and unsupervised visits. Since Mother's services were terminated in March 2016, she had successfully completed her second entry into the Kiva inpatient drug program and had graduated from dependency drug court. She was eligible to participate in NA/AA and had obtained a sponsor. Mother had plans to start an aftercare program, therapy and a new job. She was again living with the grandmother but hoped to obtain a new home.
The court found both modification petitions had met their threshold burden of proof and set evidentiary hearings for October 27 and 28, along with the permanency planning issues. The court also approved requests for bonding studies.
As of the continued hearing dates in October through November 2016, the Agency's addendum report recommended denying the modification petitions and granting an order for adoption. The Agency was still evaluating the homes of the paternal cousin and maternal grandfather as placements. In opposition to the modification requests, the Agency pointed to Father's lack of stable housing and his inability to show he had a current driver's license. Father and Mother were making plans to marry, although they were working on separate living situations. The Agency's staff recognized that the children "love their parents dearly and would like to return to their care."
Over seven days of hearings on the section 388 petitions, the juvenile court considered the parties' evidence, which was also offered on the section 366.26 issues. Testimony was taken from Father, his aunt, Father's therapist, the psychologist who performed Mother's bonding study, and the adoptions social worker. A.J. started to testify but could not continue, and a stipulation was reached that she would have said she loves her parents and wants to live with them. The court admitted exhibits such as drawings by the children, curriculum vitae of the professionals involved, the parents' section 388 petitions and attachments, and visitation narratives from several facilities.
The court also received the Agency's reports. The Agency's representative deemed the children adoptable, and stated that one applicant had expressed interest in adopting the children together following televised recruitment efforts. Based upon the June 2016 incident of Mother's family making threats to the current foster parents, and because there were dual pending section 388 petitions, the Agency believed that the children's best interests would be served by waiting to transition them into an adoptive home, after the upcoming hearing on permanency planning.
As will be further described in part I, post, the juvenile court denied the section 388 petitions, finding the children's best interests would not be served by modification. The court then found by clear and convincing evidence the children were likely to be adopted and a statutory exception to adoption preference, a beneficial parental relationship exception, did not apply. (§ 366.26, subd. (c)(1)(B)(i).)
On the sibling issues, the court noted that although the children's bond was important, and the court was ordering that they be placed together, the need to rule upon that particular statutory exception was "obviated" because of the intended placement plan. Thus, no exception to the adoption preference applied. (§ 366.26, subd. (c)(1)(B)(v).) The court declined to continue the hearing pursuant to section 366.26, subd. (c)(3), because it did not make any "difficult to place" finding. Parental rights were terminated and the children were referred to the Agency for adoptive placement. Each parent has appealed.
DISCUSSION
I
MODIFICATION PETITIONS
A. Applicable Standards: Two Prongs
In deciding whether the petition makes the necessary showing of changed circumstances, of such a nature that a modified order will promote the best interests of the child, the juvenile court may consider the entire factual and procedural history of the case. (§ 388, subd. (a); In re Justice P. (2004) 123 Cal.App.4th 181, 189.) Here, the court accepted that the parents had made a prima facie showing on the first prong of the analysis, that some changes in circumstances had been demonstrated. The court heard evidence on the second prong for modification, the best interests factor.
We do not review the denial of Mother's petition, which is not challenged on appeal. Instead, we consider whether Father carried his burden of showing by a preponderance of the evidence that the proposed change would promote the best interests of the children. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The juvenile court properly evaluated (1) the seriousness of the problems leading to the dependency; (2) the relative strength of the children's bonds with the parents or caretaker; and (3) the degree to which the problems could be easily resolved. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
This court reviews the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We inquire if the lower court exceeded the limits of legal discretion by making any arbitrary, capricious, or patently absurd determinations. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
B. Father's Reliance on Section 361.2, Noncustodial Parent's Custody Request
The modification petition was heard together with the permanency planning matter, and the same reports and evidence were considered. (§§ 366.26, 388.) Father sought placement of the children with him, with or without custody and family maintenance services. He points out that the juvenile court made an express detriment finding about placement with him only in September 2014, when he was incarcerated when the proceedings began. Effectively, the children were not removed from his custody then, and he did not expressly seek custody until the fall of 2016 in his modification request.
From this sequence, Father claims statutory entitlement as a noncustodial parent to reversal and remand for a detriment determination. He claims he, as a noncustodial parent, made a prima facie case that the children's best interests would be served by placement with him. Father seeks to have us apply section 361.2 and rule that the burden was shifted to the Agency to show detriment from such a plan. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1082-1083 (Liam L.); In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256 (Jonathan P.).)
In Liam L., supra, 240 Cal.App.4th 1068, this court relied on the Supreme Court's decision in In re Zacharia D. (1993) 6 Cal.4th 435, 453 (Zacharia D.), which held that section 361.2 "applies only when the minor is first removed from the custodial parent, generally at the time of the disposition hearing. Under the current statutory scheme, a noncustodial parent who requests placement or custody for the first time after disposition must file a modification petition under section 388 to make such a request." (Liam L., supra, at p. 1073.) Regardless of the Agency's forfeiture claim, we shall address this argument on appeal as a question of law involving statutory interpretation. (Jonathan P., supra, 226 Cal.App.4th 1240, 1252.)
We disagree that the court in this case misapplied the burden of proof standards of section 361.2 as compared to section 388. The Supreme Court indicated in Zacharia D., supra, 6 Cal.4th at page 453, that nothing in section 361.2 "suggests that custody must be immediately awarded to a noncustodial parent regardless of when in the dependency process the parent comes forward. Rather, its language suggests that the statute is applicable only at the time the child is first removed from the custodial parent or guardian's home." (Zacharia D., supra, at p. 453.) In the case before us, Father is far from a newcomer to the proceedings. Upon his release from incarceration in November 2014, he became involved in visitation and services, a few months after the court asserted jurisdiction. He got a slow start, in part because Mother tried to keep the children from him while she had them, but he became more involved after September 2015, when he was receiving enhancement services. Once the children were placed at PCC in October 2015, he began to visit them regularly and successfully, but did not seek custody until September 2016.
Regardless of the timing of his participation in the case, Father contends that his noncustodial status invoked due process principles at the modification stage, such that the court should have given greater weight to his showing of the bonds he had worked to develop with them, on the best interests question. Due to the children's behavioral problems over time, and since they were not yet in an adoptive placement, he argues the court should have required the Agency to make a heightened showing of detriment from placement with him.
Other courts considering a noncustodial parent's delayed request for custody, made after the disposition hearing, have applied the terms of section 361.2, subdivision (a). However, those factual contexts did not involve a parent located by an agency early in the proceedings, who consistently seemed to take a back seat to the other parent during significant portions of the dependency matters. (Jonathan P., supra, 226 Cal.App.4th 1240, 1255 [social services agency failed to adequately search for the parent]; In re Suhey G. (2013) 221 Cal.App.4th 732, 744-745 [agency's failure to properly serve father impeded his opportunity to appear at the disposition hearing and seek custody earlier]; Liam L., supra, 240 Cal.App.4th 1068, 1082-1083 [father contacted the Agency prior to disposition and appeared then, but excusably delayed in requesting custody].)
The manner in which Father's modification request came before the court was not within the statutory context described by section 361.2, in which a noncustodial parent who appears relatively late in dependency proceedings may request placement. (Zacharia D., supra, 6 Cal.4th at pp. 453-454.) We accordingly reject Father's argument that simply because he was originally a nonoffending, noncustodial parent, he made a presumptively adequate showing for modification that should have been more strongly rebutted by the Agency. (Liam L., supra, 240 Cal.App.4th at pp. 1085-1086.)
C. Ruling and Analysis
We evaluate the ruling denying the petition in light of the showing Father made about the best interests portion of the statutory requirements for modification. In arguing the court abused its discretion in denying modification, Father points out that he consistently participated in visitation and a parenting program even after his mandatory services were terminated. He relies on authorities that his indigency alone is not a valid basis for asserting juvenile court jurisdiction. (E.g., In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212.) It was not disputed that the children love him and enjoy being with him and that during unsupervised visitation, he was able to act in a supportive, stabilizing parental role with them.
Father testified that he now understood that problems could arise if Mother participated in his own visits, and since August 2016, he had fully complied with his individual visitation conditions. He took the position that the Agency had originally cut him off from the case, by placing the focus on Mother to accomplish reunification. He always felt like he and Mother would reunify together, and they talked often about trying to be together as a family. He said they needed to start all over again and eventually get married. He believed that Mother had adequately addressed her issues and could care for the children.
The court commented that the psychologist who performed the bonding study for Mother appeared to have a very incomplete grasp of the facts of the case and had changed her position when asked about additional facts. The court accordingly determined that the testimony Mother presented on bonding, or about support from her own relatives, was entitled to very little weight.
The adoptions worker's addendum report from mid-October 2016 evaluated Father's modification request. Although Father's therapist had discharged him in March 2016 as having reached his goals, and for lack of continuing funding, Father had not made significant progress since then toward increasing the stability of his housing or being able to show he had a valid driver's license, for purposes of transporting the children. He explained in early October to the social worker that if the children were placed with him, they could all live with relatives, in hotels, or be homeless together, and he asked her for more time to develop a plan.
On his ability to implement principles he learned in parenting class, the adoptions worker noted that Father interacted well with the children at visits, but she remained concerned about his ability to show insight into how parental behavior affects the children's well-being. Father had been raised in foster care and had some understanding of the dynamics of his family of origin and how patterns of interaction from generation to generation may repeat. Despite his empathy toward the children, the adoption worker thought that Father still lacked insight into the reasons for the children's removal from Mother's care, or into their "desperate" need for stability and permanence.
In its ruling, the court identified ongoing concerns about Father's apparent allegiance to and reliance on Mother to assist in childrearing, in view of his possible failure to grasp that her conduct posed continuing risks to the children in the form of repeated domestic violence at the grandmother's home or from Mother's continuing substance abuse. Father did not appear to have been truthful about allowing Mother to participate in visits with the children, and he did not hold her accountable for problems in the family relationships. The court acknowledged that Father engaged in positive visitation with the children and acted in a parental role with them, but said he had historically taken a backseat to Mother and could not demonstrate an ability to coparent with her effectively. The protective issues were still a concern. Father's employment was not of long standing (four months), and his housing situation was only in the process of changing rather than clearly changed.
The evidence also showed that since the children were placed in the CFP home in April 2016, they were showing fewer concerning behaviors and seemed to benefit from the consistency and stability it provided. The court properly took into account the degree of attachment between the children and Father, as well as Father's attachment to Mother, all in view of the months of services that had been provided without generating a significant degree of progress. There was support in the evidence for the court's belief that Father did not appear to understand that Mother still had a problem with alcohol and that she continued to have conflicts living with the maternal grandmother, and this would likely continue to affect the children adversely. Father had not participated much as a parental figure in the children's school activities or doctor appointments. Although the Agency was investigating relative placements, no clear alternatives to continued foster care or adoption had been discovered, and the Agency was reluctant to make a definitive adoptive placement while the section 388 petitions were pending and in view of the volatility of Mother's family's relationship with the Agency and caregivers.
The court accordingly concluded Father had not shown by a preponderance of the evidence that return of the children to his custody would be in their best interests. The record supports this determination. Even though Father was able to show that his life circumstances were beginning to change, he did not make a significant showing of how the requested change of placement or custody was in the best interests of the children. The court had reason to be concerned that the dynamics of his relationship with Mother would likely continue to be adverse to the interests of the children. (In re Justice P., supra, 123 Cal.App.4th at p. 190.) It was within the bounds of the court's discretion to determine that a placement in Father's care for the first time, in the environments he was proposing, would not promote the best interests of the children. Even though another judge could have made a different decision, in view of all the relevant factors, we cannot say that the modification ruling amounted to an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
II
ADOPTABILITY FINDINGS
A. Issues Presented and Applicable Standards
To challenge the judgment terminating parental rights, Father and Mother each claim insufficient clear and convincing evidence was presented to show that these children were adoptable or likely to be adopted within a reasonable time. They make related contentions that a 180-day continuance should have been granted, for further search efforts by the Agency for an adoptive family for those children who are deemed "difficult to place." (§ 366.26, subd. (c)(3).) Mother next claims the court made a harmful error in attempting to order that the children must be placed together, even without making a related beneficial sibling relationship finding pursuant to section 366.26, subdivision (c)(1)(B)(v).
In part III, post, we shall separately address the parents' arguments that their beneficial relationships with the children were each so significant as to provide exceptions that outweigh any potential benefits from adoption. (§ 366.26, subd. (c)(1)(B)(i).) --------
"To select adoption as the permanency plan, the court must find by clear and convincing evidence the child is likely to be adopted within a reasonable time. The fact that the child is not yet placed with a family 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).) If the court finds that the child is likely to be adopted, it must order adoption unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions." (In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) "The question of adoptability usually focuses on whether the child's age, physical condition and emotional health make it difficult to find a person willing to adopt that child. [Citation.] [¶] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home." (Ibid.; In re Brian P. (2002) 99 Cal.App.4th 616, 623-624; In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) More than an unsupported opinion from a social worker is required to support a finding of adoptability. (In re Brian P., supra, at p. 624.) Even where the evidence shows a child may have future problems, a finding of adoptability may still be appropriate. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.)
On review, we examine the record for substantial evidence from which the juvenile court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re B.D., supra, 159 Cal.App.4th 1218, 1231-1232.) "The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court." (Ibid.)
B. Availability of Continuance for "Difficult to Place" Children
Section 366.26, subdivision (c)(3) includes a definition of the statutory term, "difficult to place for adoption," as applicable to children for whom "there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older." (Ibid.) If the court finds that termination of parental rights would not be detrimental to the child, and that the child is probably adoptable "but is difficult to place for adoption and there is no identified or available prospective adoptive parent" (ibid.), section 366.26, subdivision (c)(3) prescribes the following procedure. The court may identify adoption as the permanency plan goal, but delay the termination of parental rights and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. (In re B.D., supra, 159 Cal.App.4th 1218, 1238.) " 'Although difficult to place initially, the child's odds for adoption may improve to "likely" by the end of the 180-[day] period.' " (Ibid.)
After taking time to research section 366.26, subdivision (c)(3) during the hearing, the juvenile court expressly found that these children were not difficult to place under its definitions. The court acknowledged that no adoptive home was in place, evidently accepting the Agency's explanation that the pending petitions for section 388 modifications and the June 2016 threat incident involving Mother's family and the CFP caregivers gave some valid cause for delay in making such a placement. As of June 2016, the Agency admitted that additional and publicized recruitment efforts were necessary for a sibling set with this background, and obtained permission to pursue those efforts. At the later hearing, the court notified the parties that although the Agency had supplied statistics on adoptive homes available for the children as individuals, the court was only going to consider the number of homes accommodating a sibling set, a smaller number. The Agency concurred that was an appropriate approach in this case, even though previous separate placements had been necessary at one time in the proceedings.
On appeal, the parents continue to question whether the children are likely to be adopted, or instead, if they remain difficult to place for adoption, such that a continuance should have been granted under section 366.26, subdivision (c)(3). As previously explained, we have found it appropriate to deny the Agency's request to augment the appellate record with subsequent change of placement orders for the two children, identifying a potential adoptive home placement for them together. (In re Zeth S. (2003) 31 Cal.4th 396, 407; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1421-1422.) We are mindful that the children's situation has been a fluid one. Section 366.26, subdivision (c)(1) does not require an existing potential adoptive placement for an adoptability finding. Instead, it is appropriate to focus upon the individual characteristics of the children, and the court did so. Specifically, the court discussed the Agency's adoption worker's October 2016 evaluation of the children, which was consistent with the CASA volunteer's July 2016 report, as showing they have many positive and appealing characteristics, even in light of their ongoing behavioral issues. (See pt. II.D, post, regarding sufficiency of the evidence on adoptability.)
The court then declined to order a continuance pursuant to section 366.26, subdivision (c)(3), on the ground that these children did not have any diagnosed medical, physical, or mental handicaps that would qualify them as difficult to place, and even though A.J. was now seven years old, she was not seen to be aging out of adoption possibilities. There were up to 13 approved families in San Diego County who had shown interest in adopting two children with such characteristics, and this was not such a large sibling group as to present special problems. The court noted that the Agency expressed confidence that an appropriate home would be found, which also supported the conclusion that no continuance was required. (§ 366.26, subd. (c)(1) [lack of adoptive placement "shall not constitute a basis for the court to conclude that it is not likely the child will be adopted"].) The court's conclusions are well supported that this was not an appropriate case to delay the termination of parental rights pursuant to section 366.26, subdivision (c)(3).
C. Sibling Exception; Relationship of Ruling on Sibling Placement
An exception to termination of parental rights exists when such termination of rights would cause "substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship." (§ 366.26, subd. (c)(1)(B)(v).) Mother argued the applicability of this exception in the juvenile court. On appeal, she contends that the court made a significant error in attempting to order that only a dual placement could be considered for adoption, and in stating that such an order would "obviate" any need to rule on the sibling exception to termination under section 366.26, subdivision (c)(1)(B)(v). (See Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1341-1342 [juvenile court has very limited authority to restrict adoptive placement].) Mother claims that the erroneous order is inextricably related to the adoptability issues, and accordingly, any potential preference for adoption must yield to the preservation of the meaningful sibling relationship.
Here, as in the case of In re B.D., supra, 159 Cal.App.4th 1218, "the record leaves no doubt the nature and extent of the children's sibling relationships were strong and important, and the parties and the court believed that maintaining the sibling relationships were crucial." (Id. at p. 1236.) Out of the 10 placements that the children had undergone in two years, they were separated only once for about six weeks. Once they were placed together in the CFP home in April 2016, their behaviors appeared to be improving, which the social worker attributed to the programs they were encouraged to participate in there and the increased stability they were experiencing.
To the extent that the court exceeded its jurisdiction in making these placement orders, we consider whether such an error was harmful. " 'It has long been the general rule and understanding that "an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." ' [Citations.] The state has a strong interest in expediting dependency proceedings and promoting the finality of the court's orders and judgment." (In re B.D., supra, 159 Cal.App.4th 1218, 1239-1240.) As one factor in the court's decision-making process, the court took into consideration that A.J. and F.J. clearly find security in being together. Even though the court attempted to place an unenforceable contingency on adoption placement, it also addressed the underlying adoptability issues in general. We are unable to find any harmful or egregious error in this respect, and consider, on the whole record, the sufficiency of the evidence on adoptability.
D. Sufficiency of Evidence on Adoptability
These relatively young children have demonstrated different kinds of emotional problems over the years, some of which interfered with previous foster care placements. To argue that the record did not support adoptability findings as of the time of the hearing, the parents mainly point to those failed placements and suggest that these problems will most likely continue.
In the addendum report of October 27, 2016, the children were evaluated as adoptable, and 13 local, approved families were identified as interested in adopting two siblings like these. A.J. was not displaying the same adjustment problems as before, and she presented as energetic, kind and intelligent, and able to warm up quickly to people after some initial reserve. She has participated in school programs and therapy, and has worked on appropriately expressing her feelings, including negative ones. She is generally healthy and has multiple interests in music, coloring, spending time with her brother, and being active. When in the presence of Mother, A.J. has shown some negative behaviors, but she has been able to improve her conduct when she is in a secure placement and has developed a relationship with a caregiver.
With regard to F.J., both the CASA volunteer and the adoptions worker described him as outgoing and engaging. Like his sister, he is physically healthy and can interact and express affection toward other children and adults. He has benefited from the school and therapy treatment programs in which he engages, and does not appear to have attention deficit disorder, despite his consistently high level of energy and activity.
During the hearing, A.J. became upset while giving her testimony and was unable to continue to express her preferences. The court did not infer from her behavior that she was unalterably opposed to adoption, however, because it could also be explained by the probably intimidating chambers and courtroom environment. Based on a thorough study of every page of the visitation reports, the court had been able to gain insights into A.J.'s personality and adaptability, and how she was able to behave differently with different people around her. In particular, A.J. had improved her school and home behavior when she was not exposed to Mother's negative behaviors toward the caregiver and other adults. Father was seen to be able to supply pleasant family-type visits, but the children were able to separate from him without distress.
Based on the young age of the children, the court felt that long term foster care was an unacceptable alternative, a "travesty." There were no identified guardians available or known relative placement opportunities. The record showed that the children had been able to adapt to changes in the past and even if there were difficulties in their transfers to an adoptive home, they would be able to be responsive to such a change, with appropriate assistance.
The court was well aware that these children will continue to face challenges. (In re Jennilee T., supra, 3 Cal.App.4th 212, 224-225.) However, based on the available evidence about the children's circumstances developmentally, and the emotional status of each, the court determined the children were likely to be adopted within a reasonable time. The parents have not shown how the problems that the children were encountering were of such a severe nature that adoption was not reasonably probable, or how the love they and the children share prevented an adoptability finding. Under a clear and convincing standard, the record supports the court's conclusion that adoption is feasible and will promote the children's best interests. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
III
BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
Mother and Father each contend the beneficial parental relationship exception to adoption properly applies in this case, because of the children's attachments to each of them. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.) They argue that insufficient evidence supports the court's decision to terminate parental rights, in light of their efforts to maintain the positive bonds they established with the children and since no potential adoptive family was in place at the time of the hearing.
A. Applicable Standards; First and Second Prongs
"Regular visitation and contact" are statutory threshold requirements for a claim that a beneficial parental relationship has been maintained. (§ 366.26, subd. (c)(1)(B)(i).) The Agency's respondent's brief concedes that the parents made a sufficient showing on the first prong, regular visitation. However, the juvenile court was next required to determine whether Mother and Father had shown that the children would substantially benefit from continuing the parental relationships. (In re Zachary G., supra, 77 Cal.App.4th 799, 810-811; In re C.F. (2011) 193 Cal.App.4th 549, 553.)
On review, we inquire if substantial evidence supports the trial court's conclusions on the factual issue of the existence of a beneficial parental relationship. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) An abuse of discretion standard applies to the next determination, whether there is "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) As a reviewing court, we make presumptions in favor of the judgment, viewing the evidence in the light most favorable to the Agency as prevailing party, and giving the judgment the benefit of all reasonable inferences. (In re C.F., supra, 193 Cal.App.4th at p. 553; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D., supra, 70 Cal.App.4th 38, 52-53.)
Section 366.26, subdivision (c)(1)(B)(i) requires that the juvenile court balance "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court must find "a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)), based on the parents' regular visitation and contact with the child that create benefits to the child in continuing the relationship. (In re C.F. , supra, 193 Cal.App.4th 549, 553.)
Even without day-to-day contact and interaction, a parental relationship may be so "strong and beneficial" that " 'termination of parental rights would be detrimental to the child.' " (In re C.F., supra, 193 Cal.App.4th at p. 555, fn. 5.) More than " 'some measure of benefit' " must be conferred through the relationship with the requesting parent. (Id. at pp. 558-559.) " 'Interaction between [a] natural parent and child will always confer some incidental benefit to the child.' " (Id. at p. 555.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The juvenile court considers the benefit issue on a case-by-case basis, taking into account the many variables that can affect the parent-child relationship. (Autumn H., supra, 27 Cal.App.4th at pp. 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532.) Among the variables to be considered in evaluating the benefits in a parental relationship are the child's age, the amount of time the child spent in the parent's care, whether the interactions are positive or negative, and whether the child has particular needs that the parent can satisfy. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
B. Application of Criteria: Extent of Beneficial Parental Relationships
The criteria for applying the beneficial parental relationship exception include consideration of the preliminary factual issue, whether the parent proved the existence of a relationship with the children that is beneficial in nature. (In re Anthony B., supra, 239 Cal.App.4th 389, 395; In re J.C., supra, 226 Cal.App.4th 503, 531.) It is not enough for a parent to show frequent and loving contact during pleasant visits. (In re C.F., supra, 193 Cal.App.4th at p. 555; In re Helen W. (2007) 150 Cal.App.4th 71, 81.) More than incidental benefits from maintaining parental contact are required for this exception to apply. (In re C.F., supra, at pp. 558-559.)
In attempting to supply a current picture of the children's needs and status, the adoptions worker's reports enunciate concerns about the qualities of the existing parent-child relationships. For example, Mother has continued to be impulsive and to show uncontrolled emotions and irritability during supervised visitation. When she made negative comments about the CFP foster mother, her behavior placed A.J. in a state of emotional confusion. Mother encouraged both F.J. and A.J. to speak negatively to the adoptions worker, other children, and other adults, thus encouraging oppositional behaviors. A.J. has showed uncertainties about whether Mother would be able to parent her, and seemed to be attempting to act in a parental role by saving food to eat during visits and giving Mother advice and instructions. F.J. does not respond much to Mother's directions about his behavior.
The adoptions worker was concerned that Father was sharing information with the children about the case that effectively added to their trauma. From her review of the file and personal experience in the field, she believed that both children had been subjected to a lifetime of instability and uncertainty as a direct result of the behavior of both parents. In her professional opinion, their need for permanency through adoption significantly outweighs any benefits from the relationship they share with the parents. Even though both children love their parents dearly, A.J. at least had been deprived of a childhood and was developing a skewed view about the ability to place trust in parents. Both children were at critical stages of mental development and in need of consistent parental figures who are able to provide them with stability and permanency.
In issuing the ruling, the court acknowledged that within the context of weekly visitation, especially during the past year, Father had acted in a parental role toward the children, behaving in a calm and affectionate manner, which was helpful and a stabilizing influence on them. F.J. had never lived with Father on a consistent basis, although F.J. was in need of consistent parenting and someone who was attentive to his needs. Both children were "heat seeking missiles for stability," and they showed negative responses to instability or ongoing changes in their lives. The court observed that despite some instabilities in Father's life, he acted in a parental role within the confines of visitation, but had not been able to provide the children with any positive, significant degrees of stability and attachment.
The court referred to the Agency's addendum reports filed in September and October as being particularly helpful in outlining recurring problems with Mother's visitation. With respect to Mother's interaction with the children, the adoptions worker had observed during visitation that Mother encouraged oppositional behavior and instructed A.J. to mock the social worker, the caregiver, and other adults and children. Mother scolded A.J. for making statements in front of the worker and asked her, "Whose side are you on?" The social worker concluded, "The emotional manipulation that A.J. is being subjected to is a strong indicator that a beneficial relationship does not exist."
The juvenile court had an adequate basis in the record to conclude that the children did not have special needs that only Father or Mother could satisfy. (In re Angel B., supra, 97 Cal.App.4th 454, 467; Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) The parents' presentations each fell short of showing that the roles they filled created substantial, overriding benefits to the children, such that it would be detrimental to terminate those parental relationships. (In re C.F., supra, 193 Cal.App.4th at p. 555.) The record does not demonstrate that the benefits of the parental relationships were of such a substantial, positive nature as to promote the children's well-being, in a manner outweighing the potential well-being to be gained in a permanent home with adoptive parents. (In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re C.F., supra, 193 Cal.App.4th at p. 555.) Continuing these parental relationships would effectively keep the children in limbo, contrary to the needs they have showed for, and benefits from, stability and permanence. Substantial evidence supports the juvenile court's findings and orders. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947; Autumn H., supra, 27 Cal.App.4th at p. 575.)
DISPOSITION
The judgment and orders are affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
NARES, J. /s/_________
O'ROURKE, J.