Opinion
E053746
01-04-2012
In re A.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant I.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.Nos. J232143 & J232144)
OPINION
APPEAL from the Superior Court of San Bernardino County. William J. Schneider, Jr., Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant A.M.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant I.C.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Defendants and appellants A.M. (Mother) and I.C. (Father) appeal from the termination of their parental rights as to their two children, A.C. and I. On appeal, the parents contend (1) the juvenile court erred in finding that A.C. was adoptable; and (2) the juvenile court should have applied the beneficial parental relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)) to the termination of parental rights. We reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) in March 2010 after hospital emergency staff reported that six-week-old A.C. had sustained injuries suspicious of child abuse. The treating emergency room doctor noted A.C.'s injury to be "'a crack in the skull resulting from a light blunt trauma.'" The doctor did not believe A.C.'s fracture was a result of shaking the baby and concluded the injury had occurred within the last 24 hours. The doctor explained that A.C. had a "left occipital skull fracture with subdural hematoma and a subarachnoid hematoma."
A.C. was eventually transferred to Loma Linda University Medical Center (LLUMC) to be treated by pediatric specialists. Staff at LLUMC reported that A.C. was in "'extremely critical' condition." A.C. had received emergency neurosurgery "where the right side of the skull was removed to allow room for swelling, a portion of the brain was removed to prevent hemorrhaging, and a large amount of blood had been drained from the brain." Despite the surgery, a medical examination of A.C. the following day revealed more swelling in the brain.
At the time of the incident, Mother, Father, and Mother's adult niece cared for the children. A.C.'s older sibling, I., appeared to be well taken care of. However, due to A.C.'s severe injuries, and the parents' failure to reasonably explain the injuries, I. was taken into protective custody to assure his safety. In addition, the matter was being investigated by the Upland Police Department as a severe felony child abuse case.
On April 5, 2010, CFS filed petitions on behalf of the children under section 300, subdivisions (a) (serious physical harm), (e) (severe physical abuse), and (j) (abuse of sibling). The children were formally detained on April 6, 2010; A.C. was detained at LLUMC and I. was placed in a confidential foster home.
A.C. remained at LLUMC's Pediatric Intensive Care Unit, but was eventually transferred to a "'step-down' unit," due to his ability to breathe on his own. However, A.C., still had swelling in his head, "a bone flap on the right side of the head," and was being fed through a gastrostomy tube (G-tube). Medical personnel explained that the right side of A.C.'s head had no bone or skull because it had to be removed, and it was unknown when a new bone would be reinserted. Amy Young, M.D., a forensic pediatrician at LLUMC, stated that A.C. had sustained "'severe traumatic brain injury'" and that the findings were "'highly suggestive of inflicted head trauma.'" According to Don Shu, M.D., who performed a neurology consultation on A.C., "'this child will most likely have significant and life long neurological problems, including global developmental delay, with a very poor prognosis of any meaningful cognitive or motoric function.'"
I. appeared to be adjusting very well in his foster home. He was attached to his foster mother and her six-year-old son. I.'s foster mother reported that she was concerned about I. not being able to walk or lift himself up from the ground, despite being 15 months old. The foster mother believed that I. was neglected and that his leg and hand muscles were weak from lack of movement. Medical staff was concerned that I. may have had old injuries; X-rays were therefore ordered for I.
The parents had been regularly visiting the children, and the visits had been reported to be appropriate. However, a social worker reported that when the parents approached I., the child backed up and did not appear comfortable. A monitored visit between I. and the parents showed that I. did not willingly go to Mother. However, he happily went to his half-brothers and appeared attached to them.
Mother has two older sons from a previous marriage who reside with their father.
The social worker recommended that reunification services be denied to the parents. The social worker believed that one of the parents "brutally attacked" A.C. "while the other parent allowed this to happen." The parents had continued to deny any wrongdoing and had continued to allow Mother's niece to reside with them.
On May 12, 2010, A.C. was placed at Mountain Shadows Special Kids Homes (Bain House), a licensed home for the developmentally disabled and special needs children. A.C. was diagnosed with numerous mental and physical ailments, including at risk for "developmental delay secondary to S/P right crainectomy and right lobectomy," "Severe CNS injury," "Laryngomalacia," "Probable visual deficit," "Hypoglycemia secondary to growth hormone deficiency," "Right/Left retinal hemorrhage," "Spastic Quadriplegia," "Cerebral Palsy," "Profound Developmental delay," "PEG GT" (percutaneous endoscopic gastronomy), and "Resolved Klebiella pneumonia." A.C. had been referred to Inland Regional Center (IRC) and California Children's Services for ongoing assessment of his special needs. On June 30, 2010, A.C. was diagnosed with "Cortical Visual Impairment."
I. had also been referred to IRC for a neurological assessment and screening due to his developmental delays. His treating pediatric neurologist concluded that he had "'global developmental delay which may be related to several factors including suspected intrauterine alcohol/TOB exposure (based on history and dysmorphism) and suspected postnatal neglect (based on history).'" Mother denied drinking alcohol or using illegal substances during her pregnancies.
The parents attended monitored visits with A.C. on a weekly basis for one hour at his licensed medical home. The visits appeared to be appropriate and the parents were cooperative. The parents also regularly visited I. with extended family members and appeared to be appropriate and cooperative at the visits. However, because I. appeared overwhelmed by all the people and extended family members made the foster mother feel uncomfortable, the social worker did not believe it was in I.'s best interest to continue visits with the extended family members. The social worker also noted that I. did not appear to be bonded or attached to the parents. I. continued to thrive in his foster home and was bonded and attached to his foster mother.
In regard to relative placement, there were several family members interested in having the children placed with them. However, none of the family members' homes had been approved due either to failure to pass the background check or failure to complete the paperwork. In addition, the social worker was concerned that the relatives were protecting the parents and blaming everyone else for A.C.'s injuries. Some of the relatives believed that A.C. was born with the injuries or that the hospital was at fault.
Mother's ex-husband, J.L., had also requested that I. be placed in his home. J.L.'s home was approved and his background check was cleared; however, the social worker did not believe J.L.'s home would be an appropriate placement for the child. The social worker explained that J.L. was "enmeshed" with Mother and not willing to believe that the parents had any role in A.C.'s injuries. J.L. had previously stated that he did not believe A.C.'s injuries were nonaccidental and that A.C.'s injuries were a result of Mother having problems during her pregnancy. The social worker concluded that J.L. would not be able to protect I. or place limits on the parents' access to the child. The social worker also noted that I. had been placed in his foster home since April 1, 2010, and was wholly bonded and attached to his foster mother. He continued to thrive in his foster mother's home and was "now walking and acting like a typical 20 month old child."
In June 2010, the parents had been referred to the Bilingual Family Counseling and Para Los Ninos Counseling Center for individual counseling to address the issues that led to A.C. suffering a nonaccidental head trauma. The parents had continued to deny any responsibility for their actions, instead claiming they did not know what had happened to A.C. In addition, the parents had been uncooperative in signing a consent form to release information for case management and had requested a new social worker for the case. They had also continued to blame others for their predicament, including the social worker, the translator, the foster mother, and the relative approval unit. On several occasions, the parents raised the issue about a translator being provided for them. The social worker believed the parents were continuing to raise the translation issue "to deflect the severity of the allegations against them." The social worker noted that both parents understood and spoke English, as evidenced by the parents answering the social worker's questions before the translation is complete, the parents speaking to I. in English during visits, and Mother being in the United States for over 15 years.
In July 2010, the maternal aunt and uncle requested de facto parent status. They complained about numerous inaccuracies in the social worker's reports, the translator's inadequacies, the foster mother's goal in intentionally impeding the children's relationship with their family, and the failure of relatives to be considered as adoptive parents. The request was denied on July 16, 2010.
On July 14, 2010, Mother substituted counsel, replacing her court-appointed counsel with retained counsel. Mother again substituted new counsel on September 16, 2010.
By September 2010, A.C. continued to reside at Bain House due to his diagnosis and need for continued long-term care. The parents continued to visit A.C. on a weekly basis and were appropriate during the visits. However, the parents visit with I. on September 9, 2010, did not go well once it was discovered the parents were videotaping the child. When the social worker asked the parents if they were videotaping I., Father became upset and yelled. He also became outraged and hostile, telling Mother to leave the visit. When Mother would not leave, Father grabbed Mother by the hand, called her a "'fucking whore'" in Spanish, and led her out of the visitation room.
Following several continuances, the contested jurisdictional hearing was held on September 30, 2010. At that time, Dr. Young and two social workers testified. At the conclusion of the hearing, the juvenile court found the allegations in the petitions true.
The contested dispositional hearing was held on October 7, 2010. At that time, social worker Paula Johnson and J.L. testified. After submission of evidence and arguments from counsel, the children were declared dependents of the court and the court denied reunification services for the parents pursuant to section 361.5, subdivision (b)(5), (b)(6), and (b)(7). A section 366.26 hearing was thereafter set for both children, and the parents were advised of their appellate writ rights.
On October 7, 2010, the parents filed notices of intent to file writ petitions pursuant to California Rules of Court, rule 8.450. On December 14, 2010, this court dismissed the matter (case No. E051960) after the parents failed to actually file the petitions.
The social worker recommended the permanent plan of adoption for both children. A.C. continued to reside at Bain House and continued to be fed by a G-tube. He, however, ate primarily from his mouth and it was anticipated that he would be off the G-tube soon. Due to A.C.'s brain injuries, he would have ongoing medical appointments with numerous doctors, including a neurologist, endocrinologist, audiologist, ophthalmologist, gastro-intestinal doctor, and pediatrician. A.C.'s neurologist indicated that he wanted to schedule a surgery to replace the bone flap that was removed from A.C.'s skull. Additionally, A.C. was receiving somatropin injections due to his pituitary being damaged as a result of his brain injuries. A.C.'s blood sugar was also being tested twice a day and was reported to be normal. In the future, A.C. may be taken off the somatropin injections, as well as the blood sugar monitoring. A.C. was also found to have a mild hearing loss and acortical vision impairment.
A.C. was described as being "severely developmentally delayed," with cerebral palsy and weakness and some spasticity on his left side. He was also diagnosed with quadriplegia. A.C.'s nurse explained that with brain injury in infants their brains can sometimes "'rewire itself,'" but "[a]ny adoptive parents should be prepared for the fact that he will likely never walk, talk or progress developmentally." A.C.'s teacher continued to work with A.C. to encourage his development; some days, A.C. appeared well and other days he did not. On a recent visit, the social worker noted that A.C. was "much more alert and animated than in the past."
A.C. was also described as being "social," "playful," and "quick with a smile." He was "very good natured" and "nothing" bothered him. He enjoyed "being around people and getting attention." On a recent visit, the social worker noted that A.C. had waved at her. He was also able to shake his head back and forth, roll from his tummy to his back, and verbalize some. He was heard saying, "'ma ma ma ma,'" and "'da da da da.'"
On March 11, 2011, A.C. had an operation to replace the part of the skull that was previously removed and had recovered well from the surgery. Additionally, following a visit with his gastro-intestinal doctor, it was determined that A.C. would remain with a G-tube for another six months. He had, however, made substantial progress on his eating and his blood sugar level had been stable for over a year. A.C. had continued to make minor improvements, such as sitting unassisted for about a minute. He had also continued to develop socially and learned to say the word "'no,'" shake his head from side to side, give "'raspberries,'" wave goodbye, and give a "soft 'high five.'" He also loved to be talked to and play with and jump in his "saucer" jumper.
The social worker concluded that A.C. was an adoptable child, despite his special needs and developmental delays. A.C. was placed on the California Kids Connection Web site on May 4, 2011. As of May 25, 2011, eight inquires had been received from prospective adoptive families. Additionally, a case manager at A.C.'s placement, Mr. C., expressed a strong interest in adopting A.C., and was being assessed as a nonrelated extended family member. Mr. C. was currently in a master's program for special education and psychology and was expected to graduate in six weeks. He had been working at A.C.'s placement (Bain House) as a facility qualified mental retardation professional/administrator for about six months. He had also worked part-time as a behavioral specialist. Prior to his employment at Bain House, he had worked for a school district for children with disabilities. He had also worked with an autistic child for several years, and was proud to report that while it took three years, he had taught the child how to tie his shoes. The social worker noted that "Mr. C. appeare[d] to have a great deal of patience and a passion for working with the disabled population."
Mr. C. lived with his mother, who was excited about the probability of A.C. being placed in her home, and the plan was for his mother to watch A.C. while Mr. C. was at work. Both Mr. C. and his mother were willing and capable of being trained by Bain House to care for A.C.'s special needs. When asked if he had any concerns about A.C., Mr. C. reported that he was "'confident'" in his "'skills and knowledge'" that he could "'handle and love'" A.C. Mr. C. also stated that he could provide A.C. with a family instead of a facility with a constant changing staff. Mr. C. believed he was the person best suited to adopt A.C. based on his patience and experience as an advocate for the developmentally disabled population. He further noted that he had a "'great bond'" with A.C.; that A.C. lit up when he walked into his room; and that he loved "'the little guy.'"
I. also continued to thrive emotionally and developmentally in his foster mother's home. He had been in the foster home since April 1, 2010. He was described as a "darling toddler, with blond curly hair and brown eyes." He was very active, with a good appetite, and a good sleeper. I. enjoyed coloring, playing with anything electronic, and being outdoors. He was extremely attached to his foster mother and sought her out for comfort and attention. He called his foster mother "'mama,'" and arrived at and left the visits with his parents without distress. The foster mother and her fiance were eager to adopt I. and make him a part of their family. In fact, on March 17, 2011, I.'s foster mother filed a request for de facto parent status.
Meanwhile, relatives were still being assessed and considered for placement. At the close of the assessment, the social worker concluded that all of the relatives seeking placement of the children should be considered inappropriate because they were found to be nonprotective and posed a risk to the children. All of the relatives were in denial that A.C.'s injuries were nonaccidental. In addition, the relatives who had been approved to have A.C. placed in their care appeared disinterested in visiting A.C. and learning about his medical needs.
Additionally, the parents continued to regularly visit both children and the visits appeared to be appropriate. Staff at A.C.'s placement reported that Father often engaged with A.C. and played with him on the floor with the developmental toys, while Mother held A.C. until he fell asleep. A.C. responded positively to the parents, "just as he responds to anyone who devotes time to him." The parents often brought toys and clothing items for the children.
The visits with I. also went well. The parents attempted to verbally and physically engage the child. However, I. spent most visits wandering the room from one toy to another, and had to be prompted to smile for the pictures taken by the parents. At the end of the visits, the parents were appropriate, and I. would "eagerly" go to his foster mother. I. did not show any emotional differences at the beginning or at the end of the visits when he said his goodbyes.
The social worker concluded that both children were adoptable. In regard to I., the social worker noted that he was very adoptable due to his age and the foster mother's desire to adopt him. The social worker also concluded that A.C. was adoptable, despite his special needs.
The contested section 366.26 hearing was held on June 6, 2011. At that hearing, the adoption social worker, a social service practitioner, and Father testified.
In pertinent part, the adoption social worker testified that I.'s foster mother had done a great job in caring for I., making him feel secure, disciplining him in his behavioral areas, and fostering his development. In regard to A.C., the adoption social worker stated that A.C. was adoptable based upon her investigation and the time she spent with him. She explained that her conclusion was not based solely on Mr. C.'s desire to adopt A.C., but that A.C. was young, beautiful, playful, social, and had a sweet disposition. She further noted that A.C. was the highest functioning child at the home, different from what one would picture for a child with his disabilities. Also, because A.C. was still young, there was a possibility for his brain to rewire itself. She acknowledged that Mr. C. did not have children of his own or foster children. She also noted that even though she was unaware if Mr. C.'s mother had any special training to deal with medically fragile children, Bain House provided special training and A.C. would not be released without the special training. Additionally, she explained that Mr. C. "stayed in the background" until the relatives were ruled out.
The social service practitioner, in relevant part, stated that Mr. C. was scheduled to complete the medical training for A.C. and then the transition to placement would occur. Father testified that he had attended all of the scheduled visits, and that the children recognized him, were happy to see him, and enjoyed playing with him. He believed that the children, especially I., wanted to leave the visits with him on numerous occasions.
Following argument, the juvenile court found the children to be adoptable and terminated parental rights.
II
DISCUSSION
A. Adoptability
Both parents contend that the juvenile court erred in determining that A.C. was generally adoptable due to the extreme nature of A.C.'s emotional and physical developmental delays. They also argue that A.C. was not specifically adoptable because Mr. C.'s willingness to adopt A.C. was insufficient. We hold that substantial evidence supported the juvenile court's adoptability finding.
CFS requests that we augment the record to include postjudgment minute orders dated June 29, 2011, and July 7, 2011, indicating A.C. was placed with the prospective adoptive father Mr. C., and that Mr. C. was subsequently appointed A.C.'s educational representative. Because these documents are not necessary to resolve the issues the parties raise on appeal, we deny CFS's motion to augment the record or take additional evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We note, as our Supreme Court reiterated, "'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.' [Citation.]" (Ibid.)
The juvenile court cannot terminate parental rights unless it finds by clear and convincing evidence "that it is likely the child will be adopted . . . ." (§ 366.26, subd. (c)(1).) "Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]" (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e view the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.]" (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
In reviewing the juvenile court's implicit ruling that A.C. was likely to be adopted within 12 months, we must explain the roles of specific and general adoptability in the adoptability calculus.
The juvenile court did not set forth with specificity, either in open court or in the written order that followed, its reasons why A.C. is likely to be adopted in a reasonable time or within 12 months, nor did the juvenile court elaborate on how considerations of general or specific adoptability entered into its determination. It would have been helpful if the juvenile court had done these things on the record. However, its failure to do so does not preclude review of its orders. The adoptability finding "need not always be express. [Citation.] [The reviewing] court can imply [sic: infer] a finding if there is substantial evidence to support it." (In re Kristin W. (1990) 222 Cal.App.3d 234, 253.)
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Specific adoptability bears on general adoptability and likelihood of being adopted but is not determinative. "'The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]' [Citation.]" (In re Zeth S., supra, 31 Cal.4th at p. 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "'"Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family."' [Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562; see also In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)
Similarly, general adoptability bears on the ultimate question whether the child is likely to be adopted (§ 366.26, subd. (c)(1)) but likewise is not determinative. "[T]he law does not require a juvenile court to find a dependent child 'generally adoptable' before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. [Citations.] The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family ""waiting in the wings.""" (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.)
Regardless of what may be said about A.C.'s developmental delays and serious medical issues, substantial evidence supports the juvenile court's implicit ruling that A.C. is both generally and specifically adoptable and is likely to be adopted in a reasonable time.
Mr. C. was willing and waiting to adopt A.C., so A.C. was specifically adoptable. There was also substantial evidence that he was adoptable because of his general characteristics. As previously noted, whether A.C. is generally adoptable rests on such factors as his age, cognitive ability, health, and sociability. "'A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.'" (In re I.W., supra, 180 Cal.App.4th at p. 1526.) Although there is no question that A.C. suffers from serious medical issues and developmental delays, A.C. was about 16 months old at the time of the section 366.26 hearing and was continually showing signs of improvement both medically and developmentally. There was also evidence that A.C.'s positive personal qualities made him generally adoptable. He was able to sit up unassisted, shake his head from side to side, give "'raspberries,'" wave goodbye, and give a soft high-five. He was growing socially, and was described as a happy, beautiful, social, and playful child. That constituted substantial evidence. In addition, there is no doubt that Mr. C. was willing to adopt A.C. A.C.'s specific adoptability also supports the juvenile court's implicit finding that A.C. was generally adoptable. In sum, substantial evidence showed that A.C. was specifically and generally adoptable.
Regarding specific adoptability, the parents emphasize their doubt that Mr. C. is a suitable adoptive parent and raise numerous issues concerning Mr. C.'s suitability to adopt A.C. At this stage, however, such considerations are immaterial in a case in which, like this one, our attention is not called to any claim before the juvenile court of a legal impediment to adoption such as those statutory impediments set forth in Family Code sections 8601-8605 and 8712, subdivision (c)(1). (See In re G.M. (2010) 181 Cal.App.4th 552, 561-564 (G.M.) [discussing Fam. Code, §§ 8601-8603].)
In such a case, "[q]uestions regarding an individual's suitability to adopt are 'reserved for the subsequent adoption proceeding,' not the section 366.26 hearing at which parental rights may be terminated." (G.M., supra, 181 Cal.App.4th at p. 563.) "'General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme.'" (Ibid.) "If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
Family Code section 8601 requires, in general, that an adoptive parent be at least 10 years older than the child. Family Code section 8602 requires the child's consent if he or she is over the age of 12 years. Family Code section 8603 prohibits adoption by a married person, who is not lawfully separated, unless the spouse consents or is incapable of giving consent. Also, as alluded to in In re K.B. (2009) 173 Cal.App.4th 1275, 1293, and In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, a criminal and/or child protective service (CPS) history would be a serious impediment to adoption.
As the court explained in G.M., supra, 181 Cal.App.4th at page 562, "evidence of a legal impediment to adoption . . . by an identified prospective adoptive parent is relevant" and an inquiry may be made "when a social worker's opinion that a dependent child will be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent." "[T]he existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Here, none of the parties, including Mother and Father, raised a question regarding any legal impediment to adoption by Mr. C. Having not raised a legal impediment question in the juvenile court, the parents failed to properly preserve their dispute over a possible legal impediment for appellate purposes. (G.M., supra, 181 Cal.App.4th at pp. 563-564.) They also did not object to the social worker's preliminary assessments as inadequate in this regard. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) In any event, the record affirmatively establishes that there was no legal impediment under the Family Code to Mr. C. adopting A.C. Mr. C., who is single and was never married, was clearly more than 10 years older than A.C. In addition, A.C. is clearly younger than 12 years of age. Also, according to the social worker's preliminary assessments of Mr. C., neither Mr. C. nor his mother had either a criminal record or a CPS history. Furthermore, "where there is no evidence of any specific legal impediments to completing the adoption process, parental rights may be terminated to a specifically adoptable child regardless of whether a home study [of the adoptive parent] has been completed." (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410.)
Father also fears that A.C. has a high risk of becoming a legal orphan, and argues that insufficient evidence supports a finding that Mr. C. could meet A.C.'s needs. In support, Father relies on In re Carl R., supra, 128 Cal.App.4th 1051. In Carl R., the child had "cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe psychomotor delay." (Id. at p. 1058.) At age eight, he had the emotional maturity of an eight-month-old child. (Ibid.) The child was therefore at great risk of becoming a legal orphan if parental rights were terminated and the prospective adoptive family was later determined to be unsuitable. (Id. at p. 1062) The juvenile court terminated parental rights and found the child to be adoptable solely because a family was willing to adopt him and that family had been approved for adoption. (Id. at pp. 1060, 1061, 1072.) The Court of Appeal affirmed, concluding that when a child is deemed specifically adoptable, and the child has special needs, the juvenile court must consider whether the prospective adoptive parents can meet those needs. (Id. at p. 1062.) The evidence supported a finding that the prospective adoptive parents would meet the child's special educational needs. (Id. at pp. 1064-1065.)
The evidence in this case also supports a finding that Mr. C. would meet A.C.'s special needs. The assessments showed that Mr. C. was well aware of A.C.'s needs, since he had worked at the facility where A.C. was placed, caring for disabled children. Mr. C. was also in the process of completing a master's program in special education and psychology and had previously worked with disabled children. Mr. C.'s accomplishments and experience clearly indicated that he was capable of caring for A.C.'s needs. Moreover, Mr. C. stated that he was confident in his skills; that he had the knowledge to handle A.C.; and that he was committed to providing A.C. the love and patience he required. Mr. C. believed that he could provide A.C. with everything he required to help A.C. maximize his potential. There is sufficient evidence in the record to establish that Mr. C. would and could meet A.C.'s special needs and that Mr. C. was capable of caring for A.C.
Under all of these circumstances, we reject the parents' arguments and conclude there was substantial evidence to support the juvenile court's adoptability finding as to A.C.
B. Beneficial Parental Relationship Exception
Father contends that the juvenile court erred by failing to find that the "beneficial parental relationship" exception to termination applied as to I. Mother contends this exception applied as to both children.
This "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re Zeth S., supra, 31 Cal.4th at p. 413.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
"When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of 'a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.]" (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
"'[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' [Citation.]" (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) "'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' [Citation.]" (Id. at p. 937.)
"The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) "We must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) "We . . . review[] the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.]" (In re B.D., supra, 159 Cal.App.4th at p. 1235.) Because the parents had the burden of proof, we must affirm unless there was "indisputable evidence [in their favor that] no reasonable trier of fact could have rejected." (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Although both parents had consistently visited both children and the visits were appropriate, they have failed to show that such a strong bond existed that it would be detrimental to the children to terminate parental rights. Father claims that I. would be happy to see him, greet him with a hug and kiss at the visits, want to leave with him, and become sad at the end of the visits. He also asserts that he would bring toys, clothing, and food for I., and that I. would sometimes feed Father. Mother argues that she provided maternal nurturing care to both children, and that I. was "'comfortable'" going to his parents and enjoyed seeing his extended family. She further maintains that she was "loving and caring" with A.C., and that A.C. responded positively. That, however, is not the standard. Rather, the juvenile court must look at whether the children are bonded to the parents; then it must weigh that bond (if any) against the benefit of adoption by the prospective adoptive parents.
There was no evidence that either child would be harmed, much less "greatly harmed," by termination of parental rights. I.'s primary attachment was with his foster mother, i.e., the prospective adoptive mother. I. was placed in his foster mother's home when he was about 15 months old. Although he had lived with his parents for the same period of time that he had lived with his foster mother, the parents were, at best, little more than an aunt or uncle or a "friendly visitor." Although Father claims I. was sad at the end of the visits, the record belies this contention. Rather, the record shows that I. was eager to leave with his foster mother, and that he had a strong attachment to her.
In regard to I., there is insufficient evidence to show that he would benefit more from continuing his parent-child relationship with the parents rather than from adoption. The parents simply did not meet their burden to show that the bond between them and the child was so strong and beneficial to the child that it outweighed the benefit the child would receive from having a stable, adoptive home. As the record clearly shows, I. was bonded to his foster mother and interacted with her as his parental figure. Despite the evidence that I. appeared to be happy at visits with his parents, the evidence simply is not enough to establish that he was so bonded with his parents that it would be in his best interest to forego the benefits of adoption.
In regard to A.C., he had been removed from his parents' care when he was only six weeks old. Thereafter, he spent almost his entire short life at the hospital and then at a medically licensed facility for disabled children. Although A.C. responded in a positive manner toward Mother during visits, the record also shows that A.C. responded positively to any visitor. In addition, there is nothing in the record to indicate that Mother's visits with A.C. had a positive effect on A.C. or that he recognized her as his mother. Moreover, due to A.C.'s numerous medical needs, there is no indication in the record that Mother was capable of handling A.C.'s many serious medical needs. On the other hand, A.C. was in the process of being placed with a caretaker who had the special training, experience, knowledge, and capabilities for caring for a child with special needs. The record shows that Mr. C. was fully capable and prepared to tend to A.C.'s medical, emotional, and developmental needs. All of the evidence indicated that A.C. would be better off being adopted by Mr. C.
Father's citation to In re S.B., supra, 164 Cal.App.4th 289 and In re Brandon C. (1999) 71 Cal.App.4th 1530, and Mother's reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200, are unavailing. In S.B., the father was the minor's primary caregiver for three years, he complied with "'every aspect'" of his case plan, and the minor expressed his desire to live with the father. (S.B., at p. 298.) In Brandon C., the mother had consistent visitation up to and including three hours twice weekly for the preceding three years, the mother fed and cared for the minors, the caretaker was ambivalent about adoption and believed the minors' relationship with the mother was beneficial and should continue. (Brandon C., at pp. 1533-1535, 1537.) In Jerome D., the nine-year-old minor expressed his desire to live with the mother, the court expressly found the mother's relationship to the minor as "parental," the minor had lived with the mother for six and one-half years, the mother progressed to unsupervised visitation with the minor including overnight visits, and the minor's counsel argued that suspension of visitation would "devastate" the minor. (Jerome D., at pp. 1204, 1206, 1207.) Here, aside from I.'s first 15 months and A.C.'s first six weeks, the parents simply never occupied a parental role with respect to the children such that it would counterbalance the security offered by the prospective adoptive parents.
Substantial evidence shows that I. was doing very well in his prospective adoptive home and that he was emotionally stable there. Likewise, substantial evidence shows that A.C. would be well taken care of in his prospective adoptive home. I. was happy in his placement, was building a strong bond with his prospective parents, and looked to them for comfort, love, and safety. Similarly, the record shows that A.C. would "light up" when Mr. C. visited, and that Mr. C. provided the patience, safety, love, and nurturing that a medically fragile child needs. Moreover, the prospective adoptive parents were committed to providing permanent homes for the children. We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), did not apply here.
III
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: KING
J.
CODRINGTON
J.