In re D.R.

Filed 1/22/10 In re D.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6, of the Cal. Const.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant I.R.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant E.C.

Ruth E. Stringer, County Counsel, and Sandra D. Baxter and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants, E.C. (Mother) and I.R. (Father), the parents of D.R., a girl born in February 2007, appeal from July 20, 2009, orders terminating their parental rights to D.R. and selecting adoption as her permanent plan. Father claims insufficient evidence supports the courts determination that D.R. was adoptable. (Welf. & Inst. Code,  366.26, subds. (b), (c).)^[1] Mother claims insufficient evidence supports the courts determination that the parental benefit exception to the statutory preference for adoption did not apply. ( 366.26, subd. (c)(1)(B)(i).) The parents join each others contentions. We affirm. For the reasons we explain, substantial evidence supports the courts determinations that D.R. was adoptable and that the parental benefit exception did not apply.

II. FACTS AND PROCEDURAL HISTORY

A. Background

D.R. came to the attention of the San Bernardino County Children and Family Services (CFS)^[2]in October 2007, when she was eight months old. On that date, Mother reported to police that Father had thrown a stuffed animal at D.R. and, when D.R. began to cry, Father placed his hand over her mouth and struck her multiple times with his hand. D.R. had abrasions on her forehead and redness in her right eye. Police escorted Mother to the apartment she shared with Father to retrieve clothing, and took Mother and D.R. to the home of the maternal grandmother where Mother and D.R. were to stay.

One week later, the maternal step grandfather reported that Mother had only stayed with him and the maternal grandmother for a couple of hours, then called a friend to take her and D.R. back to Father. The social worker went to the parents apartment. Mother insisted that everything was fine now, Father had only hit D.R. a couple of times, and she intended to stay with Father and D.R.

Although D.R. showed no signs of further trauma, the social worker believed she was at risk of further abuse because Mother was not protecting her. D.R. was taken into protective custody and placed in the home of a paternal great aunt, great uncle, and paternal great-grandparents in Phelan. D.R. was still living in that home at the time of the section 366.26 hearing.

CFS filed a petition alleging Father had physically abused D.R. and Mother had failed to protect her. An amended petition was later filed, further alleging the parents had a domestic violence problem which placed D.R. at risk of physical harm.

When interviewed on October 29, Mother said she lied about Father hitting D.R. Mother said she became jealous and argued with Father after a woman called asking for Father. Mother then called the maternal grandmother to pick her up, but the maternal grandmother refused to do so unless Mother first called police. Mother did so, and was afraid to change her story after a police officer threatened to arrest her if she was lying. Mother claimed D.R. suffered her injuries in two separate accidentsby hitting her head on a coffee table and rolling off a bed.

The parents lived with the paternal grandmother, her boyfriend, and three uncles. The paternal grandmother said the parents were immature and argued about silly things, but she had not seen any violence.

The parents met while in high school and Mother became pregnant. Neither parent completed high school. The parents were both 19 years old in October 2007, and had previously lived with maternal relatives other than the paternal grandmother. The parents were not married.

The maternal grandmother expressed concern that the parents were involved in domestic violence. She had seen bruises on Mother several months earlier and police had taken photographs of the bruises, but Mother had declined to prosecute Father. Mother had been back and forth between her home and Fathers home several times. Each time Mother left Father, he would call constantly and pressure Mother to return to him. The maternal grandmother believed Mother was fearful of Father.

The social worker who was initially assigned to the case reported that D.R. was very bonded to the parents and cried for them following her removal. D.R. was described by most everyone as a good baby, in good health, and within normal developmental limits. The home in Phelan where D.R. was placed was a spacious home. The paternal great-grandparents lived in the home with the paternal great aunt and great uncle and two of D.R.s minor cousins. These paternal relatives all adore[d] D.R. and participated in her care.

Following a contested jurisdictional and dispositional hearing in December 2007, the juvenile court sustained the allegations of the amended petition, and found that Father was D.R.s presumed father. The court ordered reunification services for the parents, and supervised visitation, twice weekly. CFS was encouraging the parents to visit D.R. as often as possible, and gave them gas cards and bus vouchers for transportation.

Fathers visitation was discontinued in April 2008 following his guilty plea to willful cruelty to a child based on the October 2007 incident. As conditions of his probation, he was ordered to spend 30 days in jail and complete a parenting class. His visitation was reinstated in June 2008 following a modification of his probation conditions.

B. The Six-month Review Hearing (June 2008)

At the six-month review hearing in June 2008, the court ordered further services for both parents. The parents had completed a parenting class in March 2008, were participating in individual counseling, and had been visiting D.R. approximately twice each month. They would usually spend the night in the Phelan home, and the paternal great aunt or great-grandmother would supervise the visits. Visitation was continued at twice per week, supervised.

In advance of the six-month review hearing, social worker Frances Quintana (SW Quintana), who was assigned to the case in January 2008, reported that both parents had expressed a willingness to complete their case plan, but had demonstrated an unwillingness to cooperate with CFS in order to resolve the problems that led to D.R.s removal. Both parents continued to deny Father had hit D.R. And, until May 2008, they failed to provide a birth certificate and other information necessary to obtain medical and other services for D.R. Accordingly, SW Quintana recommended continued therapeutic services for each parent to help them deal with issues of denial and change.

C. The 12-month Review Hearing (March 2008)

By November 2008, SW Quintana recommended terminating the parents services at the 12-month review hearing. The court followed CFSs recommendation and terminated the parents services at a contested 12-month review hearing in March 2009.

By December 2008, Mother had completed 12 therapy sessions with Dr. James B. Pace. Father had attended only three therapy sessions with his therapist, Dr. Beth A. McGuire, and had missed several scheduled sessions. Both parents continued to deny Father had abused D.R. And, according to SW Quintana, both parents continued to lack understanding of D.R.s needs and had failed to modify their behaviors that placed the child at risk. In a March 2009 addendum report, SW Quintana opined that the parents had failed to gain any insight from their services.

Mothers therapist, Dr. Pace, testified at the 12-month review hearing. In a December 5, 2008, report, Dr. Pace opined that Mother was emotionally immature, insecure, and prone to jealousy, but did not appear to be at high risk of intentionally harming D.R. He recommended that Mother, who was learning impaired, complete her GED, and referred her to the state department of vocational rehabilitation. He also recommended that Mother reunify with D.R. During her 12 therapy sessions, Mother consistently denied Father had physically abused her or D.R. At the hearing, Dr. Pace opined that if Father had physically abused D.R., that would mean Mother had lied during her 12 therapy sessions and D.R. would be at risk in the parents home because the issues have not been addressed.^[3]

Mother also testified at the 12-month review hearing. She continued to deny Father had ever hit her or D.R., and she felt it was her fault that Father had gotten in trouble in October 2007. She had been visiting D.R. on weekends. She and D.R. both enjoyed the visits, and she comforted D.R. when she became upset. D.R. called her Ma and would run to hug her. D.R.s caretaker and paternal great aunt also testified at the hearing. She said the parents visited D.R. twice weekly, once on Saturday and again on Sunday. D.R. appeared to be bonded with both parents and sometimes cried when they left.

SW Quintana also testified at the hearing. She believed the paternal great aunt had been untruthful in her testimony concerning the frequency of the parents visits. Before December 2007, the great aunt told SW Quintana that the parents had been visiting D.R. around once each month. Later, the great aunt said the parents had visited D.R. only once during February 2008. The parents had also failed to pick up bus vouchers that SW Quintana had made available to them. SW Quintana also believed Mother would not visit D.R. unless Father accompanied her or she had Fathers approval, and Father had not been visiting D.R. on weekends during the summer of 2008 because he was serving time at Glen Helen in order to meet the terms of his probation. SW Quintana had visited D.R. once each month and had not supervised any of the parents visits.

In addition to her 12 sessions with Dr. Pace, Mother had received counseling through Catholic Charities. She had been referred to a literacy program because she was unable to read. In terminating the parents services, the juvenile court opined that it firmly believe[d] Mother was lying when she testified Father had not physically abused her or D.R. The court then scheduled a section 366.26 hearing on July 6, 2009.^[4]

D. The Section 366.26 Hearing (July 2009)

In adoption assessment and section 366.26 reports filed in early June 2009, CFS recommended that the court terminate parental rights and place D.R. for adoption. D.R was described as a cute two-year-old little girl who appeared to be comfortable and happy in the home she had been sharing with her paternal great aunt, great uncle, cousins, and great-grandparents since October 2007. She was developmentally on target, her behaviors were age-appropriate, and she had formed appropriate attachment bonds to her paternal great aunt and great uncle, who were willing to adopt her. She was too young to understand the concept of adoption.

According to SW Quintana, Mother had been visiting D.R. monthly, but Father had visited only once since March 2009. D.R. was resistant to the visits and required a lot of coaxing to interact with the parents. The paternal great aunt and great uncle labor[ed] to convince D.R. to stay with her parents during the visits, and demonstrated empathy toward the parents. According to SW Quintana, D.R. had demonstrated no attachment bonding with her parents.

In late June 2009, CFS reported that Mother and D.R. were unable to complete their monthly visit on June 23 at CFSs central office due to D.R.s distress over the [M]others attempts to touch her. According to SW Quintana, D.R.s behaviors were triggered when Mother attempted to place a necklace on her, and included crying, hitting, yelling, and attempt[ing] to run away. According to the paternal great aunt, who was present during the June 23 visit, D.R. had exhibited anger, biting, and defiance following prior visits.

CFS therefore recommended that the court suspend further parental visits pending the section 366.26 hearing. On July 6, the court continued the section 366.26 hearing to July 20, and suspended further parental visits pending the outcome of the hearing.

Then, on July 17, CFS reported that on July 6 the parents had alleged misconduct on the part of the paternal great aunt and great uncle and, as a result, the paternal great aunt and great uncle were no longer willing to adopt D.R. Specifically, the parents alleged the paternal great aunt and great uncle had offered the parents methamphetamine at a surprise birthday party for the paternal great-grandfather. Mother also accused the paternal great aunt of not properly wiping D.R. during diaper changes.

The paternal great aunt said the parents general neglect and substance abuse allegations were upsetting to her and her husband, but she was not surprised by the allegations. Since February 2009, the parents had been spreading malicious gossip about her and her husband among family members. And, although she and the paternal great uncle were no longer willing to adopt D.R., they were willing to provide care for her in the home they shared with the paternal great-grandparents. The paternal great-grandparents said they allowed neither drugs nor alcohol in their home or at family gatherings. They had acted as back up caretakers for D.R. since October 2007, had formed a strong mutual attachment with her, and were eager to adopt her.

At the section 366.26 hearing on July 20, 2009, all of the parties submitted the matter to the court based on CFSs reports. Both parents counsel argued against terminating parental rights and placing D.R. for adoption on the ground the parental benefit exception applied because each parent had a bond with D.R. The court found the exception did not apply, terminated parental rights, and selected adoption as D.R.s permanent plan.

III. DISCUSSION

A. Substantial Evidence Supports the Courts Determination That D.R. Was Adoptable

Father claims insufficient evidence supports the courts determination that D.R. was adoptable. Mother joins Fathers claim without offering additional argument. For the reasons we explain, we find the claim without merit.

1. Applicable Law

A juvenile court may terminate parental rights if it finds by clear and convincing evidence that the child is likely to be adopted. ( 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) Clearandconvincing 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.] [Citations.] (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)

The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt [the child]. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) An adoptive parents willingness to adopt a child indicates that the child is adoptable, meaning he or she is likely to be adopted within a reasonable time either by the adoptive parent or by some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) An adoptive parents willingness to adopt the child is not solely determinative of whether the child is adoptable, however. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) It is a factor to be considered with the childs age, physical condition, and emotional state. Thus, it is not necessary that a child be placed in a prospective adoptive home in order for the court to find the child is adoptable. (In re Sarah M., supra, at p. 1649.)

We review a juvenile courts adoptability finding for substantial evidence. We determine whether the record contains substantial evidence from which the court could have reasonably found, by clear and convincing evidence, that the child is adoptable. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.) Substantial evidence is evidence which is reasonable, credible, and of solid value. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) The appellant has the burden of demonstrating there is no evidence of a sufficiently substantial character to support the courts finding. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

2. Analysis

Father claims the courts adoptability determination was premature because CFS did not adequately assess the childs new prospective adoptive parents, namely, the paternal great-grandparents, for adoption. CFS construes Fathers claim as not directed to the sufficiency of the evidence supporting the courts adoptability determination, but to the adequacy of CFSs adoption assessment. Indeed, Father argues there is no indication that CFS provided the paternal great-grandparents with information about the benefits/consequences of adoption and guardianship as required by law. (See, e.g., [] 366.21, subd. (i)(2)(B).) He further argues that the section 366.26 report lacked the requisite criminal/child abuse referral screens for the paternal great-grandparents . . . . (See, e.g., [] 366.21, subd. (i)(D) . . . .)

CFS argues, and we agree, that the parents have forfeited their right to challenge the adequacy of the adoption assessment because neither of them challenged it at the time of the section 366.26 hearing. (In re Brian P., supra, 99 Cal.App.4th at p. 623 [by failing to object in the juvenile court, a parent forfeited his claim on appeal that the adoption assessment did not comply with the requirements of  366.21, subd. (i), but the parent did not thereby waive his claim on appeal that insufficient evidence supported the juvenile courts adoptability finding]; accord, In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.)

In any event, the evidence before the court at the time of the hearing overwhelmingly showed D.R. was generally adoptable. Her young age of two and one-half years, her physical condition, and her emotional state all showed it would not be difficult to find other persons willing to adopt her. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) It was therefore unnecessary for the juvenile court to inquire whether D.R.s paternal great-grandparents were suitable to adopt her, or whether there was some other legal impediment to their adopting her. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

Father relies on In re Jerome D., supra, 84 Cal.App.4th 1200, where Division One of this court reversed an order terminating parental rights on the ground there was insufficient evidence to support the juvenile courts finding that the child, Jerome, was adoptable. In re Jerome D. is distinguishable, because the juvenile courts adoptability finding was clearly based solely on the willingness of the childs step father to adopt him, rather than on his age, physical condition, and emotional state. (Id. at p. 1205.) That was not the case here, however. The record here clearly showed that D.R. was generally adoptable based on her age, physical condition, and emotional state. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

B. Substantial Evidence Supports the Courts Determination That the Parental Benefit Exception Did Not Apply

Mother claims insufficient evidence supports the courts determination that the parental benefit exception to the statutory preference for adoption as D.R.s permanent plan did not apply. Fathers joins this claim without offering additional argument. We find this claim, too, without merit.

1. Applicable Law

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) And once the court has determined that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re S.B. (2008) 164 Cal.App.4th 289, 297.)

The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). (In re S.B., supra, 164 Cal.App.4th at p. 297.) This exception applies where the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. (In re Derek W., supra, at p. 827.)

The parent must also show that his or her relationship with the child promotes the well-being of the child to such a degree as to outweighthe well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances 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. (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the 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. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)

Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

There must be a compelling reason for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a quintessentially discretionary determination. Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, [e]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Ibid.)

2. Analysis

Mother argues that insufficient evidence supports the courts determination that there was no beneficial parent-child relationship between D.R. and either parent, and that the parental benefit exception therefore did not apply. Mother asserts she maintained regular contact with D.R., and D.R. would benefit from continuing her parental relationship with Mother.

As Mother points out, there was a dispute concerning how often she visited D.R. CFS claimed she visited D.R. once each month throughout most of the dependency period. Mother claimed she visited more often, usually two times each month. Notwithstanding the dispute concerning the frequency of her visits, Mother argues she maintained regular contact with D.R.

Even if, as Mother argues, she maintained regular contact with D.R., she did not meet her burden of showing that D.R. would benefit from a continuing relationship with Mother, or, more specifically, that the benefits to D.R. of continuing her relationship with Mother would outweigh the benefits she would realize in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Indeed, there was no evidence that terminating parental rights would deprive D.R. of a substantial, positive emotional attachment with either parent, such that D.R. would be greatly harmed. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Although CFS reported that D.R. was very bonded to the parents and cried for them following her removal from their care in October 2007, later reports showed that D.R. had to be coaxed to interact with the parents during visits. And D.R. reacted violently when Mother attempted to put a necklace on her during her last visit on June 23, 2009.

Mother correctly points out that day-to-day contact between a parent and child is not required for the parental benefit exception to apply (In re Casey D., supra, 70 Cal.App.4th at p. 51) and that the benefit to a child of continued contact with a parent must be considered in the context of the limited visitation the parent was allowed (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538). But even considering Mothers limited contact with D.R. between October 2007 and July 2009, Mother did not show that D.R. had a substantial, positive emotional attachment with Mother, such that severing that bond would greatly harm D.R.

Mother also correctly points out that the juvenile court must determine whether the parental benefit exception applies on a case-by-case basis, taking into account the many variables which affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The 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 are some of the variables which logically affect a parent/child bond. (Ibid.; accord, In re Angel B., supra, 97 Cal.App.4th at p. 467; In re Jerome D., supra, 84 Cal.App.4th at p. 1206.)

Here, however, none of these factors favored the application of the parental benefit exception. First, D.R. was only two and one-half years old at the time of the section 366.26 hearingtoo young to understand the concept of a biological parent. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) Second, she was removed from her parents care when she was only eight months old and had spent the majority of her life in the care of her paternal relatives. Third, her interactions with Father were infrequent, and her interactions with Mother, at least generally, did not have a positive effect on her. Fourth, and finally, she did not have any particular needs that could be met only by her parents and not be met by an adoptive family. (Id. at pp. 467-468.)

IV. DISPOSITION

The orders terminating parental rights and placing D.R. for adoption are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] CFS was previously known as the San Bernardino County Department of Childrens Services.

^[3] At the time he wrote his report, Dr. Pace was not aware that Father had pleaded guilty to willfully injuring D.R. or that the juvenile court had found true allegations that Father had abused the child and the parents had a domestic violence problem which placed the child at risk.

^[4] This court denied Mothers petition for an extraordinary writ, challenging the juvenile courts termination of her services and setting a section 366.26 hearing. (In re D.R. (May 7, 2009, E047832 [nonpub. opn.]).)