In re K.T.

Filed 7/3/07 In re K.T. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

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L.T., Sr. appeals from orders terminating his parental rights (Welf. & Inst. Code,  366.26) to his six-year old daughter and five-year-old son.^[1] At the section 366.26 hearing, the attorneys for the parents and the children disputed the likelihood that the six-year-old would be adopted, based on her age and by challenging the suitability of her prospective adoptive parents. Counsel also urged termination would be detrimental to the children based on their sibling relationship. The superior court was not persuaded. It found each child was generally adoptable and therefore rejected any bid to evaluate the suitability of the older childs prospective adoptive parents. It also determined the sibling relationship exception to adoption did not apply. ( 366.26, subd. (c)(1)(E).)

On appeal, appellant contends there was no clear and convincing evidence of his daughters adoptability and in any event the court should have found termination would be detrimental to the children based on their sibling relationship. He also joins in arguments raised in the childrens separate appeal. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Commencing in May 2002, when appellants daughter was two years old and his son was nine months old, respondent Kern County Department of Human Services (the department) received and substantiated referrals regarding parental neglect and lack of supervision. By August 2002, the parents had separated. In the process, the mother kept the infant son to live with her in Bakersfield while appellant took his daughter to live with him in Taft.

The mothers neglectful conduct led to additional referrals in late 2004. Her home, which she shared with her live-in boyfriend, appellants son and another son of hers was filthy and posed a health and safety hazard. Then, in January 2005, she left both boys outside, lightly clothed and unattended. They eventually ran out onto a road and were nearly struck by a car. This incident led to their detention and the initiation of dependency proceedings. Underlying the mothers neglect was her methamphetamine abuse.

At the detention hearing for the boys, the court asked the mother [d]o you know where [appellant] is these days other than the [cell] phone number that we have? The mother replied: I dont know. All I know is hes in Taft.

Later that same day, appellant contacted a department social worker, in apparent response to a message the social worker left on his cell phone. Appellant stated he lived in Taft with his five-year-old daughter and his father. Appellant added he did not visit his son very often and the mother visited his daughter when she could. The little girl stated she did not want to visit her mother because the mothers live-in boyfriend hits the kids, and [she] is afraid.

In considering whether to place appellants son with him, the department discovered appellant also abused methamphetamine and was facing recent drug charges. The departments discovery eventually led to the initiation of separate dependency proceedings for appellants daughter and her detention on March 15, 2005.

Meanwhile, on March 8, 2005, the superior court conducted a combined jurisdictional and dispositional hearing as to appellants son. The court exercised its dependency jurisdiction ( 300, subd. (b) [neglect]), removed him and his younger half-brother from the mothers custody, and ordered six-months of reunification services for each of the parents. The children were placed in foster care.

After the detention of appellants daughter, the paternal grandfather requested placement of all three children. The department denied his request for a number of documented reasons in April 2005. Meanwhile, the department placed appellants daughter in a separate foster home where she has remained ever since.

In late April 2005, the court exercised its dependency jurisdiction ( 300, subds. (b) [neglect] & (j) [sibling neglect]) over appellants daughter, removed her from his custody, and ordered reunification services for the parents. Because other paternal relatives might seek placement of the young girl, the court granted them an additional 10 days to do so. According to the record, no such applications were received.

The dependencies of appellants son and daughter continued along separate procedural paths until June 2006. By that time, the son had been placed with a paternal uncle and aunt who were interested in providing him a permanent home. The court conducted a joint hearing in June 2006 on each childs dependency. It made the necessary findings to terminate all reunification efforts as well as to set a section 366.26 hearing to select and implement a permanent plan for each child.

Social Study for Section 366.26 Hearing

In advance of the section 366.26 hearing, the department prepared a SOCIAL STUDY detailing its recommendation that the court find appellants daughter and son, as well as their younger half-brother adoptable and order parental rights terminated. The department identified each childs caregivers as the prospective adoptive parents. The social study included an adoption social workers evaluation of each child and a preliminary assessment of each prospective adoptive family.

The adoption social worker opined that the children are adoptable due to their young age and absence of any significant medical problems or developmental delays. She described them as loving and healthy. The adoption social worker added that each child lived with committed prospective adoptive parents with whom he or she shared a bond. Further, it was the adoption social workers opinion if the current caretakers were unable to adopt the children for any reason, it would not be difficult to find another adoptive home for the children.

The adoption social worker also reported that neither child had a significant emotional attachment to the parents. Appellant apparently last visited with his children in October 2005. The mother took advantage of less than half of her opportunities to visit. In the six months leading up to the termination hearing, she visited the children on only four occasions, despite a court order for weekly visitation.

In addition, the adoption social worker stated appellants two children did not share a sibling relationship. They had been placed in different homes and, until March 2006, the contact between the children was limited to the parents visits. Thereafter, the department supervised weekly, one-hour visits between the children. Their interactions with one another were described as appropriate. They viewed each other as playmates. The adoption social worker interviewed both children, the girl in July 2006 and the boy in August 2006. The adoption social worker asked appellants daughter where she would like to live forever. [She] indicated that she wants to live forever with her mamas and her papa. These are names the child has for her caretakers. When the adoption social worker interviewed appellants son, she asked if he liked living with the caretakers. The child did not appear to comprehend the question and was unable to provide a concrete answer.

The social study also included a preliminary assessment of each child s prospective adoptive family.

Section 366.26 Hearing

The court conducted the section 366.26 hearing in early November 2006. At the outset, the childrens attorney, Erin Dietrich, expressed concern about the girls prospective adoptive parents. She also claimed appellants daughter was not a generally adoptable child and there was a sibling bond issue.

County counsel challenged Dietrichs effort, arguing that the threshold issue was whether the children were adoptable and the evidence supported such a finding. County counsel further argued: the departments preliminary assessment of the prospective adoptive parents sufficed; and Dietrichs challenge to the couples suitability to adopt was not the proper subject of a section 366.26 hearing.

Following these arguments, the court made a tentative finding that there was clear and convincing evidence all three of the children were generally adoptable and no statutory exceptions applied. In light of its tentative finding, the court announced it would find the availability of prospective adoptive parents was irrelevant to the section 366.26 hearing.

Notably, counsel did not contest the tentative finding. The childrens attorney instead voiced her belief that there was a sibling bond between her clients which had not been addressed. The court reminded counsel that if it did find clear and convincing evidence of the childrens adoptability, the burden would be on the party opposing termination to show that termination would be detrimental on such a ground.

Dietrich claimed the departments delivered service logs, which were described as 66 pages in length, supported her claim of a sibling bond. However, she did not offer them into evidence. Instead, Dietrich called the adoption social worker and the childrens current placement worker as witnesses in an apparent effort to introduce two entries from the logs. Initially unable to overcome the departments hearsay objection, counsel elicited limited testimony from these witnesses.^[2]

The adoption social worker testified she once observed the children together. She also separately saw each child. When asked whether she knew if it was the girls desire to live with the relatives with whom her brother was placed, the adoption social worker replied No. She never indicated that to me.

The placement worker saw both children in their respective placements as well as supervised one visit between them in September. During the supervised visit, the placement worker observed the children having fun. [a]s kids do playing together. They were primarily jumping all over the sofa, running around the room, rough housing, throwing toys.

Following this testimony, the court accepted Dietrichs offers of proof of what each child would say if called as witnesses. The court did so, subject to whatever weight the court would give the statements, other evidence and argument. Appellants daughter would testify that she wants to live with her brother [] and her aunt and uncle in Taft. And that she doesnt want to lose contact with her mother. Appellants son would testify that he loves his sister 100 and wants to live with her.

Dietrich next called the childrens mother as a witness. The mother confirmed that when she and appellant separated in 2002, their daughter moved with him. When asked to describe the childrens relationship then, the mother replied Well, [her son] was 11 months old. After the separation, the children saw each other [p]robably every weekend for overnight visits. The daughter would come to visit. According to the mother, the children knew each other as brother and sister. The two would play together, with the boy following whatever his older sister did. The mother also claimed she tried to call her daughter every day and when she did so, the girl would speak to her brother as well.

Once their dependencies commenced, the children saw each other when they visited their parents. The mother described them as bonded in that they knew each other and played with one another as brother and sister. According to the mother, there were visits which her son missed and her daughter would ask where he was. Otherwise, the visits started with the children greeting one another and then playing. At the end, the girl would kiss her brother goodbye. Asked if there was any crying or tears, the mother replied Just from me.

Appellant also testified about his childrens contact with one another. He claimed he took his daughter to Bakersfield every chance I got which was at least every weekend if not more. When the children saw each other, they would give one another a hug or kiss and then play side-by-side. According to appellant, his daughter would ask to see her brother approximately every day. Since the childrens out-of-home placements, appellant saw them together at visits. They wanted to constantly play. At the last visit appellant attended, approximately four months earlier, the children had [b]ig old smile [sic], hugs and kisses, and then went about their playing. At the end when they had to part, it was sad.

Finally, the mothers attorney recalled the adoption social worker to testify about a July 2006 conversation she and another worker had with the girls prospective adoptive parents. The adoptive parents sought the social workers advice about telephone calls the adoptive parents were receiving from the boys relative caregivers. According to the departments delivered service log, the prospective adoptive father made a statement that it would be better if there was little or no contact with those relatives. The adoption social worker testified it was her recollection that the other social worker, not the adoptive father, who actually made the little or no contact statement.

In closing argument, Dietrich claimed appellants daughter was not adoptable due to her age and the lack of evidence that anyone other than her foster parents had been identified as prospective adoptive parents for her. The childrens attorney also asked the court not to terminate parental rights based on the sibling relationship between the children. Counsel for the parents made similar arguments. County counsel countered, urging the court to follow the departments recommendations.

Upon submission, the court confirmed its tentative finding, by clear and convincing evidence, that each of the children was generally adoptable and the suitability of the girls prospective adoptive parents was irrelevant. In addition, the court ruled it did not find a sibling relationship existed between any of the three children which was so strong that its severance would cause detriment. Further, even assuming termination would cause detriment, the court weighed the benefit to the children of continuing the sibling relationship against the benefit that adoption would provide and found the latter outweighed the former. The court then terminated parental rights to each of the three children.

DISCUSSION

Adoptability

The issue of adoptability posed in a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)

Usually, the fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the childs age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parents willingness to adopt generally indicates the child 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.)

Although the juvenile court must make its adoptability finding by clear and convincing evidence ( 366.26, subd. (c)(1)), the clear and convincing standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.)

In this case, there was substantial evidence that appellants six-year-old daughter was likely to be adopted. Appellants daughter had no medical concerns or issues and was age-appropriate in terms of her development. In addition, there were no concerns regarding her emotional and mental health status. She was enrolled in the first grade and there were no concerns regarding her scholastic needs.

In addition, appellants daughter lived with committed prospective adoptive parents with whom she shared a bond. Moreover, if her current caretakers were unable to adopt her for any reason, the evidence was undisputed that it would not be difficult to find another adoptive home for her.

Appellant overlooks this evidence and accuses the department of offering nothing more than vague conclusions which were almost meaningless that his daughter was adoptable. The record, as summarized above, is neither vague nor meaningless.

He also characterizes his daughter as nearly seven years old at the time of the courts decision and consequently difficult to adopt. Notably, he cites no authority or evidence to support his position.

Further, he infers from the offer of proof regarding his daughters wishes that his daughter does not want to remain in her adoptive home, is not bonded with her prospective adoptive parents and therefore is difficult if not impossible to adopt. To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Not only does appellant draw inferences to reverse the judgment, his inferences are less than reasonable. He also overlooks other evidence that his daughter wished to live with her adoptive parents.

Sibling Relationship

Appellant also argues the court should have invoked the sibling relationship exception, defined in section 366.26, subdivision (c)(1)(E), and found termination would be detrimental to the children He relies in large part on his testimony and that of the mother as well as the accepted offers of proof as to the childrens testimony. He claims it shows the children lived together from birth until the commencement of the dependency proceedings, were very bonded, and wished to live together. He also cites the reluctance of his daughters adoptive parents to allow her contact with her brother and family as a basis to find termination would be detrimental. As discussed below, we disagree and conclude the court did not err.

To begin, appellant overlooks the superior courts focus at this stage of the dependency proceedings. Once reunification services are ordered terminated, the focus shifts to the childs need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Because each child was likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

In addition, although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Rather, it is the burden of a party opposed to termination to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Moreover, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues. Instead, it is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.

The so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E), requires the court to find:

There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

In this case, there was relatively little evidence regarding the nature and extent of the childrens relationship. Certainly, they were not raised together in the same home, having lived apart since appellants daughter was a toddler and his son was an infant. As even the mother acknowledged about the childrens relationship before the couples separation, Well, [the boy] was 11 months old.

There was also no evidence that they shared significant common experiences. At most, there was conflicting evidence regarding the childrens visits with one another before their respective dependencies. The parents testified the children regularly and frequently visited one another and played together. For instance, each parent claimed the children saw each other probably every weekend, if not more frequently, with appellant delivering his daughter for visits to the mothers home. However, at the outset of the sons dependency, each parent made statements to the contrary. The mother told the court she did not know where appellant was except that he lived in Taft. Appellant meanwhile told the department he did not visit his son very often and the mother visited their daughter when she could. The daughter did not want to visit her mother out of fear of the mothers boyfriend.

As for existing close and strong bonds, the evidence was conflicting as well. The mother described them as bonded in that they knew each other and played with one another as brother and sister during their visits. On the other hand, the mother conceded the conclusion of their visits was difficult for her alone. Appellant described an affectionate and caring relationship between the children. While he claimed the conclusion of the childrens visits was sad, it appears he was speaking for himself. Further, given the lapse in the parents visits with their children for much of the year preceding the termination hearing, their testimony hardly related to the current state of the childrens relationship and thus may have deserved little weight in the courts mind. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860 [Issues of fact and credibility are for the trial court alone].) Meanwhile, the departments social workers described the children as relating to one another as playmates, not as siblings.

There were the offers of proof that both children wished to live with each other. However, their testimonial proffers deprived the juvenile court an opportunity to observe the children and assess the strength of their wishes and their purported bond. As described by another court, childrens testimony can be powerful demonstrative evidence. (In re Naomi P. (2005) 132 Cal.App.4th 808, 824.) Meanwhile, there was the departments evidence that appellants daughter wished to remain with her prospective adoptive parents and his son could not respond to questions about living his uncle and aunt.

Notably, absent from the record is any evidence that the children were distressed or suffered any harm by virtue of their limited contact with one another. Also, we note neither the parents attorneys nor the childrens counsel ever sought an outside assessment of the childrens relationship, such as a bonding study, by a mental health specialist.

As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:

the sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting 366.26, subd. (c)(1).)

Here, the evidence simply did not compel a finding that termination would substantially interfere with a sibling relationship. Appellant failed to satisfy his heavy burden of proof.

Finally, as the Celine R. court added,

even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re Celine R., supra, 31 Cal.4th at p. 61.)

Thus, assuming for the sake of appellants argument that a strong sibling relationship in fact existed, we would still find no error. The court clearly weighed the benefits of both and found in favor of adoption. For this court to overturn that finding would amount to our reweighing the evidence which is not our role. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Joinder

As mentioned at the outset, appellant also joined in the arguments raised in the childrens appeal. Their appellate counsel argued there was insufficient evidence to support the superior courts general adoptability finding as to each child as well as its rejection of the sibling relationship exception. She also urged that the court should have considered placing the children together with their paternal relatives for adoption purposes. We rejected each of these contentions in our opinion on the childrens appeal.

On the adoptability question, we noted that appellate counsel inappropriately relied on a very selective reading of the record. Her argument was all the more remarkable because no one at trial challenged the departments adoption assessment, let alone cross-examined the adoption social worker regarding the basis for her observations and opinions. In addition, appellate counsel buttressed her claim of insufficient evidence with a series of faulty legal arguments, each of which we analyzed and rejected. On the issue of the sibling relationship exception, appellate counsel made essentially the same argument appellant did in his appeal. Finally, as to appellate counsels claim that the court should have considered placing the children together with their paternal relatives for adoption purposes, we concluded the juvenile court did not abuse its discretion.

DISPOSITION

The orders terminating parental rights are affirmed.

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^*Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.

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

^[2] Eventually, Dietrich laid a foundation to qualify the entries as official records. Although the court admitted the two entries under the official records exception to the hearsay rule, it sustained an objection to the statements contained in the entries on multiple hearsay grounds. Consequently, the court explained, although it admitted the actual entries into evidence, it was not considering their content as they constituted multiple hearsay. Because appellant raises no issue regarding the courts ruling, we have not considered the content of either entry in our record review.