In re Marvin F.

Filed 1/26/09 In re Marvin F. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Jacqueline F. (Mother) is the mother of dependent children Michael F. and Marvin F. After a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing), the juvenile court terminated Mothers parental rights.[1] Mother contends there was insufficient evidence that the children were adoptable. She also contends the court should have found applicable an exception to adoptability: that adoption would be detrimental due to the parents ongoing relationship with the child. ( 366.26, subd. (c)(1)(B)(i).) We disagree and affirm for the reasons explained below.

I. FACTS

On January 12, 2006, plaintiff Contra Costa County Bureau of Children and Family Services (Bureau) filed juvenile dependency petitions on behalf of Michael, age 10, and Marvin, age four (the children). The petitions alleged that Mothers husband had repeatedly sexually abused the childrens older siblings over a period of eight years, that Mother had failed to protect the children, and that Mother allowed her husband to stay in the home after she learned of the abuse. ( 300, subds. (b) & (j).)

The petitions were later amended to add detailed allegations of the sexual abuse, and to allege that Mother had also failed to protect the siblings from the sexual abuse and had physically abused one of them.

On July 19, 2006, Mother pleaded no contest to the material allegations of the petitions.

The disposition report indicated that the children had been placed together in a licensed Alameda County foster home. The report describes Michael as articulate and friendly; he can interact well with adults, but suffers from hyperactivity. He was in therapy and expresses ambivalence regarding his bond with Mother. Marvin was often shy and quiet, and tends to follow . . . Michaels direction. He was also hyperactive. Although often shy and withdrawn, he is starting to open up more to his foster parent.

On September 29, 2006, the juvenile court ordered reunification services for Mother and set the matter for review on February 26, 2007.

In the status review report for the February hearing, the Bureau recommended termination of reunification services and a permanent plan of long-term foster care. The children remained in the foster home, where they appear[ed] to be doing well. Mother showed remorse. But a psychological evaluation of Mother showed major depression and impaired cognitive functioning and judgment. It also showed strong evidence of suicide risk. The psychologist concluded Mother would have a difficult time taking care of anyone other than herself and was likely to have impaired parenting abilities. She may need psychotropic medication. In the opinion of the psychologist, reunification at this current time is not good.

The Bureau reported that Michael was in the sixth grade at a private school in Oakland and was performing reasonably well academically. He was in therapy. According to his therapist, he has suffered emotional trauma as a result of Mothers conduct and has stated he does not want to reunify with, or even visit Mother. He does not trust Mother and does not feel she can protect him and help him feel safe. He wants to live with his foster mother because he likes her and trusts her. The therapist recommended that Michaels wishes be respected.

The Bureau reported that Marvin was developmentally on target and was in the process of registering for kindergarten. He tends to show his emotions in negative ways, such as hitting, kicking, and throwing tantrums, but despite these behaviors [he] shows affection towards his foster mother through hugs and smiles. He has been participating in visits with Mother, along with his therapist (who is also Michaelss). The visits go well and Marvin is happy to see Mother, but is also happy to return to his foster mother. He is too young to differentiate between the two. He feels safe and secure with his foster mother. The therapist explained that at this point, removing him will interrupt the feeling of permanence and safety that his current home provides.

On May 3, 2007, the juvenile court terminated reunification services and ordered a permanent plan of long-term foster care. The court set a further review hearing for October 18, 2007.

In the status review report for the October hearing, the Bureau recommended that the court set a .26 hearing for a permanent plan of guardianship. The children continued to do well in their placement with their foster mother. Court-ordered therapeutic visits between Michael and Mother were apparently not very successful. Michael stated several times he did not want to see Mother. Michael was now in the seventh grade at the private school, and is capable of achieving academic success . . . but allows himself to be easily distracted. He is well adjusted and comfortable in his placement. He is progressing well and feeling more like a member of [the] household. He believes he and Marvin are safer living with their foster mother.

The Bureau reported that Marvin was doing well in kindergarten. He is attached to his foster mother and appears to feel secure in her care. He still shows his emotions in negative ways, but still shows his affection for his foster mother through smiles and hugs. His bi-monthly visits with Mother tend to go well, but he twice refused to attend and on two other occasions exhibited traumatic behavior after the visit. Mother would sometimes ask inappropriate questions such as, Who am I? and Do you miss me? which confused Marvin and had a negative effect on his behavior in the foster home and at school. During the visits Mother seemed more like a friendly visitor than a parent.

On December 19, 2007, the court set a .26 hearing for April 3, 2008.

In the report for the .26 hearing, the Bureau recommended that the court terminate Mothers parental rights and find that adoption was in the best interests of the children. The foster mother was the prospective adoptive parent. Michael was still in the seventh grade and was considered intelligent. He was still in therapy and was getting better dealing with his impulsive behavior and hyperactivity. His therapist believed he was doing well in his placement with the foster mother and supported her adopting Michael. She believed that adoption was in Michaels best interests, and that his issues regarding attachments and trust would continue to positively progress if he was adopted.

Michael had only one visit with Mother since January 2006. He has repeatedly stated his desire to have no further contact. He has clearly stated his desire to be adopted by [his foster mother]. He emphatically states that he wishes to remain in his current placement, along with his brother [Marvin], on a permanent basis.

Marvin was still in kindergarten. His negative behaviors had subsided and improved greatly in the last six months. He also indicated that he wanted to live permanently with his foster mother and wanted to be adopted―although due to his age he is likely influenced by Michael. But, like Michael, Marvin has blossomed in his current placement and has made tremendous strides intellectually, socially, and emotionally. . . . His foster mother has given him a home in which he can experience safety and stability.

Mother does not provide a consistent parental role for the children. In the foster home, the childrens daily needs are being met, they have a sense of security and trust within the home, and each has the benefit of living with his brother . . . .

The foster mother is a single 69-year-old woman with two adult daughters. In addition to being a licensed foster mother, she runs a large family daycare facility in her three-bedroom home in a well established neighborhood. She is a warm and kind woman with the time and energy to provide for the children. Her relationship with the children has blossomed such that she strongly desires to provide a permanent home for them.

The Bureau reported that the children are adoptable children . . . thriving in [their] current placement. The foster mother is committed to the long term plan of adoption and [is] willing to provide the children with a lifetime of stability, permanence, diligent care, and love.

The .26 hearing commenced April 29, 2008. The childrens social worker, Victoria King, testified that Michael has never wavered in his position that he did not want to see Mother. Four days before the .26 hearing, Michael told King he does not want Mother to be his mother, and that he wanted to stay with his foster mother. He had expressed a desire to be adopted by his foster mother, but he was not positive he wanted to be adopted just yet because he didnt want to have a legal mother right now. Four days before the hearing, Marvin told King that if he could live anywhere, it would be with his foster mother.

King also testified that the foster mother clearly expressed that she wishes to adopt the children, but that if Michael wasnt ready for adoption she will be whatever she needs to be for him.

The .26 hearing was continued to May 12, 2008. Mother testified that Marvin told her over and over and over again that he wanted to return home to her.

The court continued the .26 hearing to May 19 in order to review case law and to carefully review the evidence, to give its decision the careful consideration it deserves.

On May 19, 2008, the juvenile court found by clear and convincing evidence that both children were adoptable. [T]hats evidenced throughout the reports. Weve got both children. Theyre healthy. Theyre developmentally on target. Theyre with a caretaker who has indicated her willingness and desire to adopt both of the children, and they have shown an ability to form healthy relationships, both with adults, so they are clearly adoptable.

The court then considered whether the evidence showed the exception to adoption based on a parental relationship that promotes the well-being of the child to the extent that it outweighs the benefit that would flow from being in an adoptive home. [H]ere the Court is balancing the strength and the quality of the natural parent-child relationship against the security and the sense of well-being for the child.

With regard to Michael, the court found the exception was not proven by the evidence. The court noted there had been no visitation with Mother since 2006. And certainly theres no indication that [Michael and Mother have] established such a bond that there would be anything here to outweigh the benefit of this child being adopted. So the Court is finding by clear and convincing evidence that it would be detrimental for this child to be returned.

With regard to Marvin, the court noted there had been some visitation, which had been positive, but the reports noted that Mother sometimes asked Marvin confusing questions. But the court stressed that young Marvin was blossoming in his current placement and has shown tremendous strides intellectually, socially, and emotionally. Balancing all the factors, including Marvins age, the court concluded that Marvin would also benefit from the permanency of adoption. [A]lthough there has been positive interaction between him and [Mother], the Court notes that interaction will always confer some incidental benefit to the child, but this is not enough. The exception would apply when they have developed at such a significant and positive and emotional attachment that it would outweigh the benefit of permanency that adoption would give, and the Court does not find that in this case that that burden has been met.

The court terminated Mothers parental rights to the children and ordered a permanent plan of adoption.

II. DISCUSSION

Adoptability

Mother contends there was insufficient evidence that the children were adoptable. We disagree because the record shows substantial evidence to support the juvenile courts adoptability finding.

We review the record to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that it is likely that the children will be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The adoptability issue presented at a .26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.] (Id. at pp. 1649-1650.)

This is called general adoptability, as opposed to specific adoptability, which focuses on the appropriateness of a specific adoptive parent. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1062 (Carl R.).)

Ample substantial evidence supports the courts finding in this case that the children are adoptable. As the court pointed out, they are healthy and developmentally on target. They have shown an ability to form healthy relationships with adults. They are making tremendous strides intellectually, emotionally, and socially. They are thriving and blossoming in the home of their foster parent. The willingness of the foster parent to adopt adds to the strong evidence that the children are adoptable by any family, i.e., are generally adoptable.

Mother selectively cites from the record, such as the childrens behavior problems including hyperactivity, to argue against the general adoptability finding. But viewing the record as a whole, and noting the behavioral improvement and the other positive factors we have discussed above, Mothers argument is meritless and pales against the substantial evidence of general adoptability.

Mother also relies on In re Asia L. (2003) 107 Cal.App.4th 498. That case is distinguishable. Two of the three children in that case had extreme emotional and psychological problems and required specialized placement. There was no evidence of any prospective adoptive family willing to adopt any of the three. (Id. at pp. 510-512.) Asia L. is a case of far more extreme facts that the one now before us.

We uphold the finding of general adoptability.

At a .26 hearing, the issue of general adoptability forecloses an inquiry into the suitability of a specific prospective adoptive parent. (See Carl R., supra, 128 Cal.App.4th at pp. 1061-1062.) Having upheld the juvenile courts determination of general adoptability, we need not reach Mothers secondary contention that the Bureau did not show sufficient evidence of specific adoptability, i.e., adoption by the foster mother.

The Ongoing Relationship Exception to Adoption

Once a juvenile court makes a finding of adoptability at a .26 hearing, the court must terminate parental rights and order that the child be adoptedunless the parent can prove one or more of five statutory exceptions to termination of parental rights. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731 & fn. 2.) The exception at issue in this case is found in section 366.26, subdivision (c)(1)(B)(i): The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

This exception means that the parent has continued to exercise a parental role (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419), and the benefit of continuing that parental role would outweigh the well-being the child would gain in a new adoptive home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Ibid.)

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. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

That is not the case here. The juvenile court carefully weighed the evidence and balanced the strength and quality of the childrens relationship with Mother against the security and sense of belonging in an adoptive family―and found there is no ongoing parental relationship sufficient to cause detriment to the children if adopted. There is substantial evidence to support that finding.

As to Michael, the court noted there had been no contact between Michael and Mother for over two years. Michael did not even want to see Mother. There is not only no parental relationship, there is hardly a relationship at all. Indeed, Mother does not even argue that the juvenile court erred in finding she had no relationship with Michael.

As to Marvin, there is some evidence of a relationship, but the juvenile court properly found it was not sufficiently strong to outweigh the benefits of adoption. There had been some visitation, but it did not always go well. The contact was of incidental benefit to young Marvin, but the evidence simply does not show, as the juvenile court found, that Marvin and Mother had developed such a significant and positive and emotional attachment that it would outweigh the benefit of permanency that adoption would give.[2]

We uphold the juvenile courts finding that the ongoing relationship exception to adoption does not apply.

III. DISPOSITION

The order terminating parental rights is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Graham, J.*

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Subsequent statutory references are to the Welfare and Institutions Code.

[2] In both her opening and reply briefs, Mother cites page 42 of the reporters transcript for testimony of the social worker that Mothers interactions with Marvin were parental in nature. Those words, or anything close to them, do not appear on that transcript page.

* Retired judge of the Marin Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.