In re Damien R.

Filed 8/6/08 In re Damien R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Caryl Lee, Judge. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No Appearance for the Minors.

Robert R. appeals from the order terminating parental rights to his son, Damien R. (Welf. & Inst. Code,  366.26.)[1] He contends there is insufficient evidence to support the adoptability finding and the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. ( 366.26, subd. (c)(1)(B)(i).) We find no error and affirm the order.

FACTS

In 2001, then one‑month‑old Damien was born with a positive toxicology screen. His mother, Christina, had an extensive history of drug abuse and admitted using heroin during her pregnancy. Christinas parental rights to another child were terminated in 1999. Although married, Christina and Robert were not living together at that time. Robert also had an extensive history of drug use and several drug‑related arrests. Damien was taken into protective custody. Christina did not complete her service plan, but Robert did, and in February 2002, the dependency was terminated and Damien was placed in Roberts custody.

In July 2006, Damien (now age five) and his newborn sister, Angela, were taken into protective custody by the Orange County Social Services Agency (SSA). Christina and Robert had been living together in the paternal grandmothers house following Christinas release from prison. At birth, Angela tested positive for methamphetamines and showed signs of withdrawal. The social worker made an unannounced visit to the house. The outside was filthy and cluttered; Robert would not allow the social worker inside. Damien was very large for his ageweighing 83 pounds. His front teeth were visibly rotted, and Robert admitted the child had never seen a dentist. Damien was covered with flea bites, and he later told the social worker the house had lots of cockroaches and fleas. Damien suffered speech delays and encopresis.

Both children were originally placed at Orangewood Childrens Home, but on August 1, 2006, Angela was placed in the home of a paternal cousin. The paternal cousin would not accept placement of Damien. SSA wanted to keep the children together, but had not yet found a foster home that would accept both. Damien had a dental examination and required extensive dental work. His teeth had severe decay and he had abscessed teeth that caused him extreme pain, requiring he be placed on a soft diet.

In mid‑August 2006, Angela and Damien were placed in the foster home of Norma and Robert A., where they have remained throughout the dependency proceedings. In November, SSA reported Robert and Christina were visiting, but had not begun any of their services. The foster mother was working with Damien on potty training.

In its February 7, 2007, report for the six‑month review hearing, SSA recommended terminating reunification services. Angela was doing very well in her placement, but Damien was having difficulties. In addition to his obesity (147 percent over his ideal body weight), Damien suffered from a skin disorder causing his skin to be thickened and discolored in places, and he was deemed to be at a higher risk of developing diabetes. He had been diagnosed with posttraumatic stress disorder, and continued having problems with encopresis and enuresis. He no longer wore diapers to school, but continued to have frequent accidents. He was in kindergarten and did well in school.

The social worker noted, caregiver relational problems[] as far as Damien was concerned. Norma was reluctan[t] to implement interventions suggested by therapist and mental health[] worker, and Damien [had] strained relationship and ambivalent attachment to his foster family. On March 14, the social worker met with Damien at his foster home. When asked if he wanted to stay in his current placement, Damien said, No, and he would rather live with his godmother or another foster family.

At the six‑month review hearing, services were terminated and a permanency planning hearing was set for July 17, 2007. In May, the social worker further investigated the paternal grandmother as a placement. Christina and Robert continued to reside in the paternal grandmothers house and the deplorable conditions that existed at the home when Damien was initially taken into protective custody remained unresolved. The grandmother was eliminated as a possible placement.

In the July 17 report for the permanency planning hearing, SSA recommended the court find termination of parental rights would not be detrimental, but the children were difficult to place. It recommended a 180‑day continuance to locate an adoptive family. Angela and Damien continued in their placement with Norma and her husband. Damien was in therapy with Rachel Tapscott, who was working with Damien and Norma on their relationship. Tapscott believed Norma was inexperienced in parenting and challenged by Damiens special needs. Norma tended to be directive and negative with [Damien] during their play sessions[,] and she once commented to Tapscott that it was her husband who had the stronger bond with Damien. Nonetheless, Tapscott believed both Damien and Norma were making progress in their relationship and Damien was showing signs of attachment to Norma. Damien had stopped making negative comments about his foster parents and had stopped talking about the possibility of returning to his parents. Tapscott believed Damien had an anxiety disorder, not posttraumatic stress disorder. Damien had recent incidents of encopresis, which Tapscott thought were possibly related to visits with his parents.

In the adoption assessment, SSA reported it was likely the children would be adopted. They were very bonded to one another and both were happy, healthy, and sweet natured. The current foster parents wanted to adopt both children, but SSA was not yet recommending them as prospective adoptive parents. The social worker was concerned about the quality of care the children received and the lack of relationship that existed between Damien and Norma. But Damiens relationship with Normas husband was always good, and Damien really likes and looks up to [him]. It was agreed a bonding study should be done first to assess their relationships. The permanency hearing was continued to August 8.

On August 8, SSA reported Damien and Norma continued to have joint therapy and were doing well. Damiens encopresis had become worse, and it appeared to be related to Christinas lack of attendance at visits. Robert attended most of his scheduled visits, but was usually late. SSA was awaiting the results of the bonding study between Damien and the foster parents. The court continued the hearing to September 17 and ordered an Evidence Code section 730 bonding study between Damien and Angela and Damien and his biological parents.

On September 17, SSA reported Damien and Norma were doing much better, they appeared to be bonded, and Damien called Norma mom without prompting. The bonding study on the children and the foster parents resulted in a recommendation of [p]lacement together[.] There had been some disruptive visits with Robert, and Christina continued to fail to show up for several visits. Robert insisted Damien was scared of the foster parents when visits ended, but the visitation monitor said Damien went to them willingly and was always happy to see them. Some visits with Robert were terminated when Robert made negative comments to the children about the caretakers. Damien was having some difficulty with his school work. His IQ was in the low average range and he had some communication deficits, but no developmental delays. Damien continued to have problems with encopresis, which the social worker believed was due to inconsistent visits with the parents, feelings of abandonment, and anxiety.

On October 30, SSA reported Damien continued to suffer encopresis after visits with his parents. Damien was doing well in his placement, called his foster parents mom and dad[,] and said he was happy in their home. Damien did not cry when visits with his parents ended. Robert continued to have somewhat regular visits, but still arrived late for many and sometimes he ended the visits early. Christina missed most of her visits. Damiens therapist, Tapscott, reported Damien suffered encopresis after every monitored visit with the parents. He was having feelings of rejection by them. She recommended reducing the time allowed for visits. Tapscott also reported Damien was confused about his permanency. The parents kept telling him he was coming home with them and scolded him when he referred to the foster parents as mom and dad. Damien was starting to show separation anxiety with [Norma] and  . . . gets very nervous when she leaves the (therapy) room.

On December 11, SSA reported that when observed at school in late November, Damien was restless and unfocused. Damiens therapy was at a stand still[.] Tapscott had no concerns about the foster parents. Damien was showing increasing signs of separation anxiety with Norma. He increasingly told Tapscott about his sadness when the parents did not come for scheduled visits. The therapist believed Damien had increased anxiety over visits with the parents, his encopresis continued after visits, and she thought visits should be cut back. There were some problematic visits with Robert. He dozed off during visits, did not interact much with the children, and the monitor thought he was under the influence of an illegal substance. He was late for some visits and missed some visits.

The bonding study between the children and Robert and Christina had been completed. It recommended, the children should continue to reside together through [l]egal [p]ermanency through adoption or long‑term foster care. The relationship between Damien and the parents was minimally reciprocal and poor with regards to the parents being cognizant of Damiens developmental and emotional needs.

On January 17, 2008, SSA reported Robert continued to have fairly regular visitation, but during visits he still did not interact very much with the children. At one visit, he was extremely combative with the monitor and others. Christina continued to miss most of her scheduled visits. Damiens therapist continued to report visitation with the parents was causing further anxiety to Damien. He had increasing separation anxiety with his caregivers and encopresis after visits.

On January 30, SSA reported Robert had missed one of three scheduled visits with the children, but the ones he attended were problem free. Damiens therapist again reported Damiens encopresis was related to the quality of visits with the parents and he only discussed his feelings about them in negative terms. Damien had made a very good adjustment to living with the foster parents, he sought comfort from them, and Norma had made great improvements in caring for and proving for [him].

SSA changed its recommendation to terminating parental rights and referring the children for adoption. Damien was a very sweet little boy[] with no developmental delays. The foster parents were committed to providing both children a permanent home. Angela had lived with them almost her entire life; Damien had been with them for 18 months and had bonded with them.

On February 4, SSA reported Angela was in therapy for some behaviors due to her confusion over her permanency. Damien was happy and said he wanted to live with his foster parents forever. At the most recent visits, the parents had very little interaction with the children. Damien referred to the foster parents as mom and dad and referred to is biological parents by their first names.

The contested permanency planning hearing took place on February 4, 2008. Tapscott testified her statements to the social worker concerning Damiens encopresis were largely based on information she obtained from the foster mother about when Damien had incidents. Damien had made statements indicating he was confused about his permanency (i.e., with whom he was going to live). Tapscott had not discussed the prospect of adoption with Damien. She did not have an opinion on the impact terminating parental rights might have on Damien as that was not in the scope of her therapy.

Robert testified he had missed some visits with the children. He did not believe it would be in Damiens best interests to terminate parental rights because they loved each other. In closing argument, Roberts attorney submitted on the issue of adoptability, stating there were no impediments to Angelas adoption. And, he noted despite Damiens encopresis, he was in a foster home enjoying permanence and stability[,] and encopresis was not an impediment to his adoptability. Roberts counsel argued the only contested issue was the applicability of the parental benefit exception. The trial court found Damien and Angela adoptable and none of the exceptions to adoptability applicable. It terminated Roberts and Christinas parental rights, and Robert appeals from that order.

DISCUSSION

1. Substantial Evidence Supports Adoptability Finding

Robert contends the juvenile court erred by finding Damien adoptable. ( 366.26, subd. (c)(1).) We find no error.

Before a juvenile court may terminate parental rights, it must find by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204-1205 (Jerome D.); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.] [Citation.] (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.)

We review the juvenile courts adoptability finding for substantial evidence. (In re Y.R. (2007) 152 Cal.App.4th 99, 112 (Y.R.).) We must presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Although the juvenile court must find the child adoptable by clear and convincing evidence ( 366.26, subd. (c)(1)), no heightened standard of proof entitles us to second‑guess the trial courts determination and if any credible evidence supports the juvenile courts adoptability conclusion, we must uphold the finding. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424‑425.) Our review of the record confirms substantial evidence supports Damiens adoptability.

Robert contends the adoption assessment SSA provided to the juvenile court was inadequate as it failed to sufficiently vet the eligibility and commitment of the prospective adoptive parents. He complains the report failed to discuss their ability to meet Damiens needs or their understanding of the legal and financial rights and responsibilities of adoption. (See  366.22, subd. (b)(4).) But any inadequacies are cured by the fact that because the prospective adoptive parents are licensed foster parents [they] have already been screened for the factors required in the assessment report. [Citation.] (In re L. Y. L. (2002) 101 Cal.App.4th 942, 956.)

Robert also complains the assessment of Damien as adoptable was too vague and general to support the finding he is adoptable. SSA contends Robert has waived any challenge to the adoptability finding because he did not raise the issue below. Indeed, Robert submitted on the issue of adoptability, expressly conceding there were no impediments to Damiens adoptability. In In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560‑1561, this court approved of, and followed, those cases concluding that in such circumstances a parent might have waive[d] the objection that an adoption assessment does not comply with the [statutory] requirements . . . , [but] a claim that there was insufficient evidence of the childs adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court. (See also In re Erik P. (2002) 104 Cal.App.4th 395; In re Brian P. (2002) 99 Cal.App.4th 616; In re Lukas B. (2000) 79 Cal.App.4th 1145 (Lukas B.).)

The juvenile courts inquiry at the permanency hearing focuses on whether the childs age, physical condition, [or] emotional state make it unlikely anyone will adopt the child within a reasonable time. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) Substantial evidence supports the finding Damien was adoptable. He was happy, healthy, and described as having a sweet nature. He was of low average IQ, had no developmental delays, performed at grade level, and did not need special education classes.

Robert points to several issues he contends were not adequately addressed by SSA and which, he believes, indicate Damien is not adoptable: Damiens encopresis, his obesity, his skin‑thickening condition, and his anxiety disorder. But Damiens encopresis and anxiety disorder appear to be largely related to his precarious relationship with the parents. And there is no indication the . . . problems were so severe as to make the courts finding of adoptability unsupported. (See Lukas B., supra, 79 Cal.App.4th at p. 1154.)

Furthermore, Damien and his sister are in the same placement they have been in for the past 18 months with the foster parents who are committed to adopting the children. Although Damien and the foster mothers relationship was tenuous at first, there were never problems in his relationship with the foster father and in the months preceding the permanency hearing Damien and Norma had bonded. [T]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649‑1650.)

Finally, to the extent Robert contends the juvenile court impermissibly relied upon only the foster [parents] intention to adopt in finding the children adoptable[,] (see In re Helen W. (2007) 150 Cal.App.4th 71, 79), we reject that attack as well. Even if the juvenile court had relied solely on the foster [parents] willingness to adopt, the adoptability finding would be supported by clear and convincing evidence. When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parents adoption and whether he or she is able to meet the needs of the child. [Citation.] (Id. at p. 80.) We are unaware of any legal impediment to adoption by the foster parents with whom Damien lived throughout the dependency proceedings.

2. Parental Benefit Exception Does Not Apply

Robert contends the juvenile court erred in finding the parental benefit exception did not apply. We find no error.

At a permanency hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.).) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(B)(i), exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).)

In Autumn H.,supra, 27 Cal.App.4th 567,the court articulated a test for determining whether a child would benefit from continuing the parental relationship. To succeed under this test, the parent must establish that the relationship promotes the well‑being of the child to such a degree as to outweigh the well‑being the child would gain in a permanent home with new, adoptive parents. (Id. at p. 575.) In evaluating this issue, the court must 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (Ibid.) The exception must be examined on a case‑by‑case basis, taking into account the many variables which affect a parent/child bond[, including t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . . (Id. at pp. 575‑576.)

[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption. (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) [F]requent and loving contact may also be insufficient to establish the type of beneficial relationship contemplated by the statute. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.).) Interaction between [a] natural parent and child will always confer some incidental benefit to the child[,] but the basis of a beneficial relationship is that the parents have occupied a parental role[.] (Id. at pp. 1418‑1419.) While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. (Jasmin D., supra, 78 Cal.App.4th at p. 1350.)

Whether we apply the abuse of discretion standard or the substantial evidence standard (see Jasmine D., supra, 78 Cal.App.4th at p. 1351 [practical differences between the two standards of review are not significant]), the result on appeal is the same. We find the juvenile court did not err in concluding Damiens need for permanency outweighed any benefit which they might have derived from maintaining his biological connection with Robert.

Robert contends the Autumn H. factors favor him, and the parental benefit exception should have been applied. Robert argues he maintained regular visitation and Damien would benefit from continuing the relationship because Damien had lived with Robert, Robert was Damiens primary care giver for the first five years of his life, and they loved each other. Additionally, citing Jerome D., supra, 84 Cal.App.4th at pages 1207‑1208, Robert criticizes the court and SSA for not having made specific inquiries of Damien as to how he felt about the prospect of being adopted and for failing to tell him that if adopted he would never see his biological parents again. But Jerome D., in no way suggested such a specific dialogue with a young child was a prerequisite to selecting legislatively preferred permanent plan or adoption.

Despite his regular contact with Damien, Robert has not established the second prong of the benefit analysisthat Damien would benefit from continuing the relationship and severing the parental relationship would cause substantial harm to Damien. Damien was taken into protective custody at age five after being found living with Robert in a flea and cockroach infested house, morbidly obese, with his teeth rotted out. Robert made absolutely no effort to complete any of his reunification services so that he could regain custody of and care for his son. Although Robert did visit Damien regularly, he often did not interact with the children during visits. Damien suffered anxiety disorder and encopresis, which his therapist attributed at least in part to his visits with his parents. Tapscott noted Damien only discussed his feelings about his parents in negative terms and he referred to them by their first names. The bonding study between Damien and his parents concluded the relationship was minimally reciprocal and poor with regards to the parents being cognizant of Damiens developmental and emotional needs. By contrast, Damien was happy and healthy living with the foster parents. He had adjusted to living with them, was bonded to them, looked to them for comfort, referred to them as mom and dad, and when asked said he wanted to live with them forever.

DISPOSITION

The order is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. Robert does not challenge the termination of parental rights to his daughter, Angela R., who was also a subject of these dependency proceedings. Damiens mother, Christina P., does not challenge the order terminating parental rights.