In re Dulce N.
Filed 1/9/13 In
re Dulce N. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DULCE N.
et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
GUADALUPE A.,
Defendant and Appellant.
D062127
(Super. Ct. No.
J516031A-C)
APPEAL
from an order of the Superior Court of
County, Carol Isackson, Judge.
Affirmed.
Guadalupe
A. appeals
an order denying her Welfare and Institutions Code
section 388 petition for modification and terminating her
366.26. She asserts the court did not
consider her children's wishes about their permanency plans, as required under
section 366.26, subdivision (h), and the evidence is insufficient to support an
adoptability finding. Guadalupe also
challenges the court's findings the beneficial parent/child relationship and
sibling relationship exceptions to termination of parental rights did not
apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
nine-year-old Dulce N., eight-year-old Jose N. and six-year old B.N.
(collectively the children), and Baby V., a nondependent infant. The children's father left the family in
2007.
In October 2005, the
the children in protective custody after B.N. tested positive for
methamphetamine at birth. Guadalupe,
then 20 years old, acknowledged she had been using methamphetamine for
approximately six years. The court
returned the children to Guadalupe's custody under a plan of family maintenance
services in August 2006 and dismissed dependency jurisdiction in August 2007. The Agency provided voluntary services to the
family from November 2007 to June 2008.
In November 2009, the Agency detained the children in
exposed to repeated incidents of domestic violence between Guadalupe and her
boyfriend. The social worker said
Guadalupe genuinely loved her children but could not manage daily parenting
responsibilities. Guadalupe did not
comply with her court-ordered case plan.
In February 2011, the juvenile court terminated family reunification
services and set a section 366.26 hearing.
The section 366.26 hearing was heard over six days in
September, October and November 2011 (first section 366.26 hearing). The Agency recommended the court find that
the children were difficult to adopt, and continue the matter for six months to
allow the social worker to locate an adoptive home for them. The Agency's request
required the court to first consider whether termination of parental rights
would be detrimental to the children under section 366.26, subdivision (c)(1)
(in which case there would be no need to pursue adoption). If no exceptions applied, the court would
determine whether the children had a probability for adoption but were
difficult to place for adoption.
(§ 366.26, subd. (c)(3) [authorizing the court to identify adoption
as the permanent goal and, without terminating parental rights, order that
efforts be made to locate an appropriate adoptive family for the child within
180 days].)
Dr. Beatriz Heller conducted bonding studies between
Guadalupe and the children. Heller
testified Jose was enthusiastic about seeing his mother. He was very loving with her and enjoyed being
with her. Jose said adoption meant
"you could not see your mother ever, ever again." According to Heller, Dulce was emotionally
attached to her mother. In the short
term, severing Jose's and Dulce's contact with Guadalupe would not affect them
because Guadalupe's visitation with the children had been irregular at times. In the long term, severing Jose's and Dulce's
relationships with their mother would be detrimental to them. Heller said B.N.'s relationship with
Guadalupe was not as strong as her siblings' relationships with Guadalupe. The effects of adoption on B.N. would depend
on her siblings' reactions.
Social worker Jose Santana said the children loved their
mother. They were well behaved,
respectful, sweet children. Jose and
Dulce said they wanted to live with their mother. Santana believed adoption was in the
children's best interests. It was important
for them to have a home, family, love, security, stability and parents who
could meet their physical and emotional needs.
Guadalupe was content visiting the children two hours every weekend. She did not ask to expand visitation.
The children's foster mother said Dulce was a sweet child
who was doing well in school. She
enjoyed visiting her mother. When Jose
learned he was to be adopted, he became very depressed. He was not sleeping well and awoke crying,
saying his mother was speaking to him in his dreams. B.N. had tantrums. When Guadalupe was late for visits, the
children would sit on the sofa by the window watching for her.
Dr. Martha Hillyard conducted
Dulce. She testified Jose was an
affectionate little boy who had signs of depression. His capacity for attachment indicated
adoption could be successful. Dulce
could accept an adoptive placement with a family that respected her attachment
to her biological family.
The court placed greater weight on Hillyard's testimony than
it did on Heller's testimony. The court
described social worker Santana as credible, honest, caring, forthright and
well-informed about the children. The
court found that the children's mother was a symbol of family to them. During their two dependency proceedings, they
were out of her care for more than three years.
Guadalupe did not participate in services and did not demonstrate a
commitment to her children.
After concluding the beneficial parent/child relationship
and the sibling relationship exceptions to termination of parental rights did
not apply, the juvenile court found the children had a probability for adoption
but were difficult to place. Without
terminating parental rights, the court directed the Agency to try to locate an
adoptive home for the children within 180 days.
(§ 366.26, subd. (c)(3).)
Guadalupe appealed. This court
affirmed the juvenile court's findings and orders. (In re
Dulce N. (June 6, 2012, D061082) [nonpub. opn.].)
At the end of November 2011, the Agency placed the children
in the approved adoptive home of Mr. and Mrs. L. (the L.'s). The children's transition to the L.'s care
was easy and they appeared to be happy in their new home.
Prior to the section 366.26, subdivision (c)(3), hearing
(second section 366.26 hearing), the court granted Guadalupe's request
under section 388 to reconsider its previous findings the beneficial
parent/child relationship and sibling relationship exceptions to termination of
parental rights did not apply. Guadalupe
asserted she continued to visit the children regularly, they enjoyed the
visits, she was appropriately caring for their sibling, and B.N.'s behaviors in
the L.'s home were challenging and concerning.
Not terminating parental rights would be in the children's best
interests because they had a strong bond with her and with each other, and
there were reports of alarming behaviors in the L.'s home.
A hearing under sections 388 and 366.26 was held on June 8,
2012. The court admitted the Agency's
reports in evidence, heard testimony from Mrs. L. and social worker Santana and
accepted Guadalupe's stipulated testimony.
The parties stipulated the court could consider the evidence from the
first 366.26 hearing.
Mrs. L. said Dulce was a happy, easygoing little girl. She was slightly behind her peers
academically and developmentally. When
Dulce arrived in the L.'s home, they told her she could call them by their
first names or "mom" and "dad." Dulce chose to call them "mom" and
"dad." Dulce enjoyed her
visits with Guadalupe.
When Jose first arrived in the L.'s home, he would cry and
sulk because he did not want to do his schoolwork. That problem had been resolved. Jose had fun visiting Guadalupe and was sad
when the visits ended. Mrs. L. said Jose
was "not really quite sure why -- why he is with us still and not with his
mom." After visits, Mrs. L. would talk
to Jose until he asked if he could go play.
Mrs. L. said B.N.'s behaviors were problematic. When B.N. became angry, she would destroy
items or hit and bite and scream. In
December, B.N. bit Mrs. L. when Mrs. L. would not let her jump up and down in
the bathtub. B.N. "cried and
cried." She said, "I just feel
mad. I just feel mad." B.N. bit Mrs. L. several more times after the
December incident. Mrs. L. discussed
B.N.'s behavior with social worker Santana and the children's therapist. After therapy, B.N. stopped biting but would
still kick or punch when she was angry.
B.N.'s teacher said B.N. was "a very angry little girl." She had kicked the teacher several times and
slammed a desk at another child, almost breaking the child's finger. Mrs. L. and school staff developed an
intervention that appeared to be working.
During the last three weeks, B.N. was doing well at school.
Mrs. L. said she and her husband were committed to adopting
the children. The children were not to
blame. They were angry because the
adults in their lives had failed them.
Mrs. L. said, "[T]hese are our kids. And I wouldn't trade them for
anything."
Social worker Santana testified that Dulce, Jose and B.N.
were generally and specifically adoptable.
The children were young and healthy, and did not have any major
developmental delays. They were friendly,
social and likeable. They were placed in
an approved adoptive home with a family that wanted to adopt them. In addition, there were 34 out-of-county
homes interested in adopting a sibling group like the children. The Agency did not intend to place the
children in separate adoptive homes.
Santana said Guadalupe was attentive and loving with the
children during visits. The children
enjoyed the visits and were happy to see their mother. Their relationships with her were
positive. When asked whether the
children would suffer detriment if they did not have contact with their mother,
Santana said it was not easy to answer that question. In the short term, the children would be
adversely affected. In the long term,
they would benefit from the permanency and stability of their adoptive
home. The children appeared to be less
attached to their mother than they had been at the first section 366.26
hearing.
Minors' counsel asked Santana about his field notes
concerning a December 2011 incident. He
had written, "[B.N.] also touched
a kid at school in her private area and said her sister does that to her. When she was questioned by the school she
said that that did not really happen."
Santana said he recently discussed the allegation with Mrs.
L. Over a hearsay objection, Santana
said ". . . [Mrs. L.] would bathe
both girls, [B.N.] and Dulce, in the shower tub. And the girls would start playing and
kicking, and they would actually hit or kick their private parts. [¶] [O]ne day, at school, in the playground,
[B.N.] fell from either the monkey bars or a slide, and she accidentally hit
another child in his or her private parts." Santana believed the touching was
inadvertent and did not constitute sexual abuse. He
did not have concerns about sexual abuse in the home.
The parties stipulated that if Guadalupe were to testify,
she would say she did not want the children to be adopted, or if they were to
be adopted, she wanted them to be adopted by a family member. At visits, the children hugged and kissed her. Guadalupe and the children played together
and talked, and she read to them and helped them with schoolwork.
The juvenile court found the children were likely to be
adopted within a reasonable time if parental rights were terminated. Mrs. L. was credible and intelligent, and she
and her husband were committed to being parents to the children. The court reiterated its prior findings about
Santana's credibility. Based on Mrs.
L.'s and Santana's testimony, the court accepted the explanation the alleged
sexual touching was inadvertent. The
L.'s were fully aware of the children's issues and were committed to adopting
them. B.N.'s behaviors, including the
allegation of sexual touching, did not undermine her adoptability.
The court found Guadalupe did not meet her burden under
section 388 to show an exception to termination of parental rights. The sibling relationship exception did not
apply. The Agency was not considering placing
the children in separate adoptive placements.
The children's relationships with Guadalupe remained limited, and did
not weigh more heavily than their needs for permanency and stability. The court rejected the argument B.N.'s
negative behaviors were caused by her separation from her mother, stating
B.N.'s behaviors were caused by her lifetime of disruption and
disappointment. Noting Baby V.'s
unhappiness during the courtroom proceedings, the court said Guadalupe's
attention was by necessity focused on caring for her new baby and would limit
her ability to appropriately interact with the children. The court found adoption was in the
children's best interests and terminated parental rights.
DISCUSSION
A
Guadalupe contends the evidence
is insufficient to support the finding the children were likely to be adopted
within a reasonable time because the social worker did not consider the
children's wishes to live with their mother, B.N.'s negative behaviors and
B.N.'s and Dulce's sexual acting out when evaluating their adoptability. She argues B.N.'s difficult behaviors
constituted changed circumstances under section 388, and the court improperly
relied on hearsay when it determined Dulce and B.N. did not engage in sexual
contact. Guadalupe contends the Agency
did not present evidence of the children's wishes, as required by section
366.26, subdivision (h), and the court erred when it selected the children's
permanency plans without considering their wishes. Finally, Guadalupe challenges the findings
the beneficial parent/child relationship and sibling relationship exceptions to
termination of parental rights did not apply.
B
Legal Framework for the Selection of Permanency Plans for
Difficult to Adopt Children
If the court finds that termination of parental rights would
not be detrimental to the child and the child has a probability for adoption
but is difficult to place for adoption
parent, the court may identify adoption as the permanent placement goal and,
without terminating parental rights, order that efforts be made to locate an
appropriate adoptive family for the child, within the state or out of the
state, within a period not to exceed 180 days.
At the expiration of the 180-day period, another hearing shall be held
and the court shall proceed pursuant to section 366.26, subdivision (b)(1),
(3), (5) or (6).
At the second hearing, the court is required to review the
agency's section 366.26 report and receive other evidence that the parties may
present, and make findings and orders in the following order of
preference: Terminate the rights of the
parent or parents and order the child placed for adoption (§ 366.26, subd.
(b)(1)); appoint a relative or nonrelative guardian for the child
(§ 366.26, subd. (b)(3), (5)); or order the child placed in long-term
foster care, subject to the periodic review of the juvenile court
(§ 366.26, subd. (b)(6)). In
choosing among the above alternatives, the court shall proceed pursuant to
section 366.26, subdivision (c), which directs the court to first consider
whether it is likely the child will be adopted.
(§ 366.26, subd. (b).)
A finding of adoptability requires
"clear and convincing evidence of the likelihood that adoption will be
realized within a reasonable time."
(In re Zeth S. (2003) 31 Cal.4th 396, 406; § 366.26, subd.
(c)(1).) The question of adoptability
usually focuses on whether the child's age, physical condition and emotional
health make it difficult to find a person willing to adopt that child. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
If the child is considered generally adoptable, there is no need to
examine the suitability of a prospective adoptive home. (In re
Scott M. (1993) 13 Cal.App.4th 839, 844.)
When the child is deemed adoptable based solely on a particular family's
willingness to adopt the child, the trial court must determine whether there is
a legal impediment to adoption. (
1051, 1061.)
If the court determines the child is
likely to be adopted within a reasonable time, the court is required to
terminate parental rights unless the parent shows that termination of parental
rights would be detrimental to the child under one of the exceptions listed in
section 366.26, subdivision (c)(1)(B)(i-vi).
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330,
1343-1345.) At all proceedings under
section 366.26, the court is required to consider the wishes of the child and
act in the best interests of the child.
(§ 366.26, subd. (h).)
the record contains substantial evidence from which the court could find clear
and convincing evidence that the child was likely to be adopted within a
reasonable time, and for substantial evidence to support the juvenile court's
finding the child will not be greatly harmed by termination of parental
rights. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562;
p. 406.) If the findings
are supported by substantial evidence, the reviewing court must affirm the
juvenile court's rejection of the exceptions to termination of parental
rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (
C
At a pretrial conference on May 16,
2012, the court clarified "what can and cannot be litigated" at the
second 366.26 hearing. It said the
Agency had the burden of proving the children were likely to be adopted within
a reasonable time,
had to file a section 388 petition to relitigate the court's previous findings
there were no exceptions that would make termination of parental rights
detrimental to the children. A section
388 petition requires the petitioner to show changed circumstances and that the
child's best interests require the modification requested. (§ 388.)
The court said the use of a section 388 petition at a second section
366.26 hearing was generally the procedural practice in the San Diego County
Juvenile Court.
The issue
whether a section 388 petition is required in this context is not before this
court.
name="_ftnref7" title="">[7] We neither approve nor disapprove the
practice. "It
is . . . well established that courts have fundamental
inherent equity, supervisory, and administrative powers, as well as inherent
power to control litigation before them.
[Citation.] . . .
'That inherent power entitles trial courts to exercise reasonable
control over all proceedings connected with pending
litigation . . . in order to insure the orderly
administration of justice.' "
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967;
Cal.4th 1337, 1351.)
However,
the use of a section 388 petition as a procedural mechanism to control
litigation and promote the wise use of judicial resources at a second section
366.26 hearing adds unnecessary complexity on review. After a parent's petition for a hearing to
relitigate the exceptions is granted, and the court has made findings whether
any exceptions to termination of parental rights apply, review of the section
366.26, subdivision (c)(1)(B), findings will generally resolve those
issues. The best interests requirement
of section 388 is problematic in this context because "there is no 'best
interests' exception to termination of parental rights." (In re
Jose C. (2010) 188 Cal.App.4th 147, 163, citing In re Tabatha G.
(1996) 45 Cal.App.4th 1159, 1165, fn. 2.)
Accordingly, we need not address Guadalupe's contentions she showed
changed circumstances and that the children's best interests required the
modification requested.
D
There Was
Sufficient Evidence of the Children's Wishes at the
Second Section
366.26 Hearing
Guadalupe contends the evidence of
the children's current wishes at the second section 366.26 hearing was
insufficient, and therefore terminating parental rights violated section
366.26, subdivision (h). She argues the
social worker did not ask the children about their wishes pursuant to court
order
name="_ftnref8" title="">[8] and the Agency
did not present any evidence about the children's discussions about adoption
with their therapist. Guadalupe states
the children's wishes can be inferred from indirect statements they have made
and their demeanor after visits, and argues that evidence indicates the
children want to live with her.
At all proceedings under section
366.26, the court is required to consider the wishes of the child and act in
the best interests of the child.
(§ 366.26, subd. (h).)
Evidence of the child's wishes may be presented
by direct formal testimony in court, informal direct communication with the
court in chambers, reports prepared for the hearing, letters, telephone calls
to the court or electronic recordings. (In
re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) The court must consider the child's wishes
only to the extent those wishes are ascertainable. (In re Amanda D. (1997) 55 Cal.App.4th
813, 820; In re Joshua G. (2005) 129
Cal.App.4th 189, 201.)
Guadalupe
has forfeited her argument on appeal. (
212, 221-222.) Guadalupe's counsel was
present when the court issued an order preventing the social worker from asking
the children direct questions about their permanency plan wishes. She did not object to that order. Guadalupe did not object to the sufficiency
of the Agency's assessment report. She
did not cross-examine the social worker about the therapist's report. She did not call the therapist to testify
about any statements the children may have made concerning their wishes. Guadalupe cannot stand silently by until the
conclusion of the proceedings to raise an issue she had the opportunity to
address at trial. (Id. at p. 222.)
Even
were the issue not forfeited, we would reject Guadalupe's argument. Section 366.26, subdivision (h), does not
require a direct statement from a child about a termination proceeding. (In re
Leo M. (1993) 19 Cal.App.4th 1583, 1591-1592.) Here, minors' counsel informed the court the
social worker's conversations about adoption distressed Dulce and confused Jose
and B.N. Under the circumstances, the
court appropriately limited any discussions with the children about adoption to
a therapeutic setting. There was
sufficient evidence from which the court could consider the children's current
wishes. The children's therapist said
the children had attached to the L.'s and were settling into their home. They wrote notes to Mr. and Mrs. L. stating,
"I love you mommy and daddy."
The children did not show any adverse reaction when visits with their
mother were cancelled. They called the
L.'s "mommy and daddy." Social worker
Santana said the children appeared to be less attached to their mother than
they had been at the first section 366.26 hearing. The record shows the children loved their
mother but were bonding to a family that had provided a safe, stable and loving
home to them for more than six months and wanted to adopt them.
Further, assuming
live with their mother, their wishes did not control the court's selection of
their permanency plans. Section 366.26,
subdivision (h), imposes a duty on the court to consider the child's wishes and
act in the best interests of the child.
The court is not obligated to follow the child's
wishes unless the child is 12 years of age or over. (§ 366.26, subd. (c)(1)(B)(ii).) Considering the length of time the children
had been out of Guadalupe's care and her inability to provide a safe home for
the children after receiving more than three years of court-ordered and
voluntary services, the court reasonably concluded adoption was in the
children's best interests.
E
There Is
Substantial Evidence to Support the Court's Finding the Children Were
Likely to Be
Adopted Within a Reasonable Time
Guadalupe argues the juvenile
court did not properly consider the children's wishes to live with her, B.N.'s
negative behaviors in the L.'s home, and Dulce's and B.N.'s sexualized contact
when it determined the children were likely to be adopted within a reasonable
time. Guadalupe states the children want
to live with her, making adoption difficult because it is contrary to the children's
wishes. She argues the evidence does not
support the court's finding B.N. consistently demonstrated difficult behaviors
throughout the dependency proceedings and those behaviors did not change after
she was placed with the L.'s. Guadalupe
further contends the court erred when it relied on hearsay
in finding the alleged sexual touching between Dulce and B.N was
inadvertent. Guadalupe argues the
sexualized play behaviors had profound implications for the children's
adoptability, and the social worker ignored those behaviors in determining the
children were adoptable.
Even were Guadalupe's factual assertions supported by the
record, she does not acknowledge that by the time of the second section 366.26
hearing, the children were living with an approved adoptive family committed to
adopting them. "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."
(In re Sarah M., supra,
22 Cal.App.4th at pp. 1649-1650; In re
Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Thus, with respect to the finding of adoptability, it is
immaterial whether B.N.'s behaviors were problematic before she was placed with
the L.'s or worsened in their home, or whether she engaged in sexualized
behaviors with her sister or another child.
The children's ages, mental states and behaviors did not dissuade the
L.'s from adopting the children. The
L.'s were effectively working with the children's therapist, social worker and
school staff to help B.N. moderate her behaviors. Mrs. L. observed Dulce's and B.N.'s alleged
sexualized behaviors. That incident, whether characterized as
inadvertent or sexually inappropriate contact, did not dissuade the L.'s from
adopting the children.
Mrs. L. testified at length about B.N.'s problematic
behaviors. She did not mention any
concerns about sexual acting out. The
children's love for their mother did not prevent them from becoming attached to
Mr. and Mrs. L. as "mommy" and "daddy," and settling into
their home. The L.'s had cared for the
children and observed their behaviors for more than six months. When asked whether she was committed to
adopting the children in view of their histories and behaviors, Mrs. L. said,
"Yes. [¶] Because it's not
their fault. They have been failed in
their lives and they are angry. But they
are going to get past that. They need --
they need their parents to step up and say, You know what, this is the way it
is. This is your life. You need a permanent home. You have . . . a mom and
a dad. You are not going to leave here
until you get married. And that's what
we want to give them. We want to give
them everything."
Guadalupe does not claim, and the evidence does not show,
any legal impediment to the L.'s adoption of the children. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
They were approved to adopt and committed to adopting the children. There is substantial evidence in the record
to support the finding the children were specifically adoptable.
In addition, there is
substantial evidence to support the finding the children were generally
adoptable. Santana testified
Dulce, Jose and B.N. were generally adoptable.
The children were young and healthy, and did not have any major
developmental delays. They were
friendly, social and likeable. Dulce and
Jose did not have any unusual behavioral problems. B.N. was responding to therapy and other
interventions. There was no current
evidence of any sexual acting out. The
children were placed in an approved adoptive home with a family that wanted to
adopt them, indicating they were likely to be adopted within a reasonable time
by the prospective adoptive parent or
by some other family. (In re
Sarah M., supra, 22 Cal.App.4th
at pp. 1649-1650.) We conclude there is substantial evidence to support the court's finding
that the children were likely to be adopted within a reasonable time if
parental rights were terminated.
(§ 366.26, subd. (c)(1).)
F
There Is Substantial Evidence to Support the Court's Finding
the
Beneficial Parent/Child Relationship Exception Did Not Apply
Guadalupe contends the evidence is insufficient to support
the juvenile court's finding the beneficial parent/child relationship exception
to termination of parental rights did not apply. She argues her relationships with the
children were positive and should be allowed to continue, and B.N.'s negative behaviors show that
termination of parental rights would be detrimental to her.
Guadalupe asserts the court
improperly considered her decision to have another baby and the baby's behavior
during the hearing in terminating her parental rights.
Section 366.26, subdivision (c)(1)(B)(i), provides an
exception to termination of parental rights when "[t]he
parents . . . have maintained regular visitation and
contact with the [child] and the [child] would benefit from continuing the
relationship." This court has
interpreted the phrase " 'benefit from continuing
the . . . relationship' " to mean "the [parent/child]
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." (Autumn H.,
supra, 27 Cal.App.4th at pp. 575,
574.) Where the parent has continued to
regularly visit and contact the child, and the child has maintained or
developed a significant, positive, emotional attachment to the parent,
"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 parent's rights
are not terminated." (Id. at p. 575.)
In balancing the benefits of adoption against the strength
and quality of the parent/child relationship, the court determined the benefits of adoption outweighed any detriment to the children
caused by terminating parental rights. (
evidence, the reviewing court must affirm the court's rejection of the
exceptions to termination of parental rights.
(Id. at p. 576.)
The record shows the children loved their mother. They had a positive, affectionate
relationship with her and enjoyed visiting her for two hours each
Saturday. Guadalupe's history shows she
was not able to maintain her parental role.
The children were removed from her custody from October 2005 to August
2006, and from November 2009 to the present.
At the time of the second section 366.26 hearing, the children had been
out of Guadalupe's care for a total of more than three and one-half years. While they were in her care, the children
were exposed to methamphetamine use and domestic violence. They were neglected, their home was filthy
and they were not properly supervised.
During the 2009 dependency proceedings, Guadalupe was not compliant with
court-ordered reunification services.
Toward the end of the reunification period, she did not visit the
children regularly. Despite an open-door
policy by the children's previous caregiver, Guadalupe did not bathe the
children or feed them dinner. The
caregiver said Guadalupe did not show much interest in her children. According to a social worker, the case was
"sad" because Guadalupe loved her children but was not able to assume
daily parenting responsibilities. The
children were emotionally needy.
The children met the L.'s in late 2011. The Agency planned to slowly transition the
children to their home. After two
overnight visits, the children asked to live with the L.'s immediately. They adjusted well. They began calling the L.'s "mommy"
and "daddy." B.N. began
calling Guadalupe by her first name. The
L.'s were dedicated to the children.
Mrs. L. was at home with them.
Mrs. L. focused on the children, working with their therapist, social
worker and school to help meet their needs and stabilize them in their new
home. Where Guadalupe was content to
visit and play with the children two hours a week, the L.'s demonstrated
commitment to parental responsibilities.
Guadalupe argues the court improperly considered Baby V.'s
needs, based on her unhappy performance in the courtroom, as an impediment to
Guadelupe's ability to fully attend to the children in determining the
beneficial parent/child relationship did not apply. The record shows the court stated Guadalupe's
ability to attend to Baby V.'s needs was not a major factor in its decision to
terminate parental rights. In view of
the other evidence supporting the court's finding, we conclude that error, if
any, is harmless.
finding the children's interest in a continued relationship with their mother
did not outweigh their interest in the security of an adoptive placement with a
family that would provide a safe, stable, loving and permanent home to them. (Autumn H., supra, 27 Cal.App.4th at p. 575.) There is substantial evidence to support the
juvenile court's finding that termination of parental rights would not be
detrimental to the children under the beneficial parent/child relationship exception.
(§ 366.26, subd. (c)(1)(B)(i).)
G
The Sibling Relationship Exception Did Not Apply
The sibling
relationship exception applies when termination of parental rights would
substantially interfere with a child's sibling relationship, taking into
consideration the nature and extent of the relationship. (§ 366.26, subd. (c)(1)(B)(v).) Guadalupe contends the juvenile court erred
when it found the sibling relationship exception did not apply. She argues that had the Agency's adoptive
assessment included Dulce's and Jose's wishes to live with her, and B.N.'s
acting out behaviors, the court could find that either B.N., or Dulce and Jose,
were not likely to be adopted within a reasonable time, and apply the sibling
relationship exception to any adoptable sibling.
Guadalupe's
argument is not well taken. (See
Cal.App.4th 580, 595.) We review
the rulings the court made, not rulings the court could have made had other
circumstances existed. Further, were the
adoption assessment inadequate and the error prejudicial, as Guadalupe
contends, we would remand the matter to the juvenile court for adoptability
findings on an appropriate record. (
relationship exception de novo.
To the
extent Guadalupe asserts the evidence is insufficient to support the juvenile
court's finding the sibling relationship exception did not apply, the record
contains ample evidence to support the finding.
The Agency did not intend to separate the children. The social worker made diligent efforts to
locate an adoptive home for the children as a bonded sibling group, found an
approved adoptive home, and placed them with a family committed to adopting all
three children. The court did not err
when it terminated parental rights and found that adoption was in the
children's best interests.
DISPOSITION
The order is
affirmed.
McDONALD, J.
WE
CONCUR:
McCONNELL, P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Unless otherwise
indicated, further references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] During Mrs. L.'s
testimony about Dulce, the court halted the testimony and asked Guadalupe to
calm Baby V., noting the baby was not happy.
