In re Nicholas P.

Filed 6/5/08 In re Nicholas P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.

Daniel P. and Cheryl P., the parents of Nicholas P., appeal the judgment terminating their parental rights under Welfare and Institutions Code^[1]section 366.26. Daniel and Cheryl contend that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(B)(i), formerly  366.26, subd. (c)(1)(A)). Daniel also contends there was insufficient evidence that Nicholas was likely to be adopted within a reasonable time.

FACTS

In October 2005 the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of three-day-old Nicholas under section 300, subdivision (b). The petition alleged that Nicholas was at risk in the parents' care because Daniel had mood and impulse control disorders, Cheryl had borderline intellectual functioning and mild mental retardation; and Nicholas's older brother, Daniel P., Jr. (Daniel Jr.), was a dependent child, who had not been returned to his parents.^[2]The petition further alleged Daniel's and Cheryl's mental health and cognitive problems rendered them incapable of providing regular care for Nicholas.

On October 24 the juvenile court sustained the petition, noting that Daniel and Cheryl had limited ability to care for Nicholas without Agency involvement.

On December 15 Nicholas began living in the licensed foster home where he has continued to reside throughout these proceedings.

On January 12, 2006, the court declared Nicholas a dependent child, continued him in foster care, denied services under section 361.5, subdivision (b)(10), and set a section 366.26 hearing. Cheryl and Daniel challenged these orders by filing petitions with this court. We granted the petition in part and ordered the juvenile court to vacate its previous order denying services and to issue new orders directing the Agency to provide services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99-100.)

Agency developed service plans for Daniel and Cheryl, and on May 8, the juvenile court ordered them to comply with their service plans. The service plans included therapy, another psychological evaluation for Daniel, services through the San Diego Regional Center for Cheryl, in-home parenting instruction and supervised visitation.

On July 12 Agency recommended suspension of Daniel's visitation because he refused to feed Nicholas the organic baby food that he was fed at the foster home. Instead, Daniel fed Nicholas a brand of baby food, which was higher in calories and had a high sodium and potassium content. As a result, Nicholas was having severe diarrheasometimes lasting 12 hourswhen he returned to the foster home after visits. Also, during visits Daniel used a loud and hostile voice, which startled Nicholas and caused him to cry, and was verbally abusive when dealing with the visitation center staff. At a special contested hearing on July 25 the court suspended Daniel's visitation.

Daniel was granted a supervised visit with Nicholas on the child's birthday in October; the visit went well. The social worker recommended Daniel's supervised visits be reinstated. At the six-month review hearing on November 6 the court reinstated supervised visits for Daniel and ordered six more months of services for him and Cheryl. Daniel and Cheryl had twice weekly supervised visits with Nicholas; one of the visits was in their home.

According to the social worker, Daniel and Cheryl participated in services but did not demonstrate the ability to be competent parents.

In March 2007 Daniel's in-home visits were terminated after he became upset and verbally abused Cheryl.

At the 12-month review hearing on June 25, the court concluded it would create a substantial risk of detriment to return Nicholas to the parents' care, and, although Cheryl and Daniel had made some progress, there was not a substantial probability that Nicholas could be returned by the 18-month date. The court terminated services and set a section 366.26 hearing.^[3]

Social worker Linda Johanesen assessed Nicholas as likely to be adopted based on his young age, good health, normal development, attractiveness, and happy and friendly disposition. Nicholas showed some speech delays, but was developmentally on target in all other areas. Also, Nicholas's caregivers, with whom he had lived since he was two-and-one-half months old, wanted to adopt him and Daniel Jr. The caregivers had an approved home study. Additionally, 17 other prospective adoptive families indicated they wanted to adopt a child with Nicholas's characteristics.

Johanesen reported Daniel and Cheryl had visited Nicholas on a regular basis. Of the 20 visits that the social worker did not observe, the visitation monitor assessed nine of them as positive visits. During the other 11 visits, Daniel had expressed anger toward Agency and the social worker in Nicholas's presence, and the visitation monitor had to redirect Daniel.

Johanesen, who had observed three visits between Cheryl and Nicholas, reported that Cheryl played with Nicholas, brought snacks for him and was attentive to him throughout the visits; Cheryl and Nicholas were mutually affectionate. Johanesen also observed a visit between Nicholas and both parents. Both parents interacted well with Nicholas, but Daniel also spent time complaining about his dealings with government agencies.

Johanesen opined that although Nicholas enjoyed his visits with Daniel and Cheryl, there was not a parent-child bond. The social worker explained that Nicholas was removed from Daniel and Cheryl at birth and had never lived with them. Johanesen also noted neither parent realized how Daniel Jr., had been neglected while in their care and the seriousness of the problem presented by their mental health and cognitive deficiencies.

Subsequently, the social worker reported that Daniel's outbursts at visits had led the visitation center to raise the security level for his visits to "high risk," and hebut not Cherylwas limited to one visit per week rather than two.

Daniel continued to become angry at visits. Johanesen reported that Nicholas did not have difficulty separating from his parents at the end of the visits.

At the section 366.26 hearing on January 7, 2008, Johanesen expanded on Nicholas's speech delays, noting that the child had only a few words in his vocabulary and was able to put only two to three words together. Johanesen testified that the caregivers were aware of Nicholas's speech delays; they had taken him to Children's Hospital for a developmental evaluation, which showed below average to borderline nonverbal cognitive development and a relative weakness in expressive communication. The evaluation indicated Nicholas's motor development was in the average range, and his social and emotional development was on target for his age.

Johanesen testified that the 17 families, who had been identified as potential adoptive placements for Nicholas, had not been informed of his speech delays, but had been told of the parents' mental health and cognitive problems.

Angela Edwards, who served as the monitor for the parents' visits with Nicholas for seven months, testified that at the beginning of each visit Nicholas went willingly to his parents. Nicholas sought his parents' help when he was hungry, thirsty or needed his diaper changed. Both parents displayed a lot of affection toward Nicholas, who enjoyed the visits.

Daniel testified that during visits he played with Nicholas, fed him and used his parenting skills to make sure the child was safe. Daniel said he was not a danger to Nicholas. Daniel enjoyed his visits with Nicholas and believed Nicholas also enjoyed them.

The court found Nicholas was likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as Nicholas's permanent plan.

DISCUSSION

I. Adoptability Finding

Daniel contends there was insufficient evidence to support the court's finding that Nicholas was likely to be adopted within a reasonable time. Cheryl joins in this argument. (Cal. Rules of Court, rule 8.200(a)(5).)

The juvenile court may terminate parental rights only if it finds by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)

The adoptability issue at a section 366.26 hearing focuses on the dependent childthat is, whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt the child. (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.' " (Ibid.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the child's age, physical condition, mental state, and other relevant factors are not likely to deter individuals from adopting the child. (Id. at pp. 1649-1650.) In other words, a prospective adoptive parent's 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. (Id. at p. 1650.) The court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt the child. (Id. at pp. 1649-1650.)

The Agency bears the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) On review from an adoptability finding, we determine whether the record contains substantial evidence from which the court could make its ruling by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.)

Here, substantial evidence supports the court's finding that Nicholas was likely to be adopted within a reasonable time. Nicholas was young, in good health, developmentally on target except for some speech delays, attractive in appearance and sociable. Nicholas's caregivers, with whom he had lived for nearly his entire life, wanted to adopt him and his older brother, Daniel Jr., who also lived in the caregiver's home. Nicholas and Daniel Jr., shared a bedroom for two years and had many shared experiences. The fact that Nicholas and his brother were living with foster parents who wanted to adopt them is an important consideration in support of the court's adoptability finding. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Furthermore, the caregivers had an approved adoptive home study and were aware of Nicholas's speech delays.

Daniel attacks Agency's use below of evidence that 17 other prospective adoptive families were willing to adopt a child with Nicholas's characteristics because these families were not informed of Nicholas's speech delays. Further, the record does not indicate whether they were informed that Nicholas was a member of a sibling group. Daniel's point that the existence of these 17 families should have been disregarded is well-taken. Nonetheless, the record contains clear and convincing evidence to support the adoptability finding without consideration of the 17 other prospective adoptive families. Hence, any error in this regard was harmless.

Assuming for purposes of this appeal that Nicholas's speech delays and membership in a sibling group rendered him difficult to adopt^[4]and, therefore, not generally adoptable, there is clear and convincing evidence that Nicholas was specifically adoptable because his caregivers, who were aware of his speech delays, wanted to adopt both him and his brother. A specifically adoptable child is one "who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability [but] is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Nicholas's caregivers had an approved home study and, therefore, their suitability to adopt Nicholas was not at issue. (Ibid.)

II. Beneficial Parent-Child Relationship Exception to Adoption

Daniel and Cheryl contend the court erred by not applying the beneficial parent-child relationship exception to adoption.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Section 366.26, subdivision (c)(1), allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ( 366.26, subd. (c)(1)(B)(i).) This exception applies only if both prongs are met. (Ibid.) The parent has the burden of proof to show that the beneficial parental relationship exception applies. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.)

The standard of review is the substantial evidence test. "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) "Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) Our power "begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact." (Ibid.)

It is undisputed that Daniel and Cheryl maintained regular visitation and contact with Nicholas; hence, at issue is only whether Nicholas would benefit from continuing his relationship with Daniel and Cheryl within the meaning of the statute.

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.)

"[M]ore than frequent and loving contact or pleasant visits" is required. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.)

"Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation]" (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

"The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent." (In re L.Y.L., supra, 101 Cal.App.4th at p. 954.)

In balancing the varied interests, relevant factors include the "age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We affirmed this balancing test, explaining that the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)

"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

It is abundantly clear from the record that Daniel and Cheryl love Nicholas, and even though the child never lived with them, all three of them enjoyed a positive relationship. Further, their weekly or twice weekly two-hour visits went well but for the occasional angry outbursts of Daniel, and both parents performed parental acts and showed appropriate affection during their visits. However, all this did not translate into a beneficial relationship within the meaning of section 366.26, subdivision (c)(1)(B)(i).

At the time of the section 366.26 hearing, Nicholas was two years and three months old. Nicholas had been living with his caregivers for two years and was bonded with them. The caregivers had provided Nicholas with the only home he had known. Nicholas had never lived with Daniel and Cheryl. The caregivers occupied the parental role in Nicholas's life, not Daniel and Cheryl. The caregivers had provided Nicholas with stability and continuity and were committed to adopting both him and his brother.

Whatever detriment Nicholas would suffer from the severing of all ties with Daniel and Cheryl did not outweigh the benefits of a permanent adoptive home. (In re Teneka W. (1995) 37 Cal.App.4th 721, 729.) After 18 months of services in Daniel Jr.'s dependency case and 12 months of services in Nicholas's case, neither Daniel nor Cheryl recognized the protective issues that brought the two children into the dependency system.

The juvenile court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.) "To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

The court did not err in finding that the exception to adoption under section 366.26, subdivision (c)(1)(B)(i) did not apply.

Daniel's and Cheryl's reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 is unavailing because that case was in a different posture than this case. The juvenile court in In re Brandon C., supra, 71 Cal.App.4th 1530 found the beneficial relationship exception did apply, and the Court of Appeal declined to reweigh the evidence, holding there was substantial evidence to support the finding. (Id. at pp. 1537-1538.) Here, the juvenile court found the beneficial relationship did not apply. We, too, decline to reweigh the evidence and hold substantial evidence supports the court's finding that the exception to adoption under section 366.26, subdivision (c)(1)(B)(i) did not apply.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] In May 2004 police took Daniel Jr., then two years old, into protective custody after finding him and his parents asleep on a downtown sidewalk and were unable to wake the adults. At the time, Daniel Jr. had 12 decayed teeth and needed three extractions and four root canals and crowns. Daniel and Cheryl received 18 months of services in Daniel Jr.'s dependency case, but showed no improvement. Services in Daniel Jr.'s case were terminated in January 2006 and Daniel's and Cheryl's parental rights were terminated in June 2006.

^[3] We denied Daniel's and Cheryl's petitions for relief. (Daniel P. v. Superior Court (Oct. 4, 2007, D051165) [nonpub. opn.].)

^[4] Factors that may make it difficult to find a person willing to adopt a child include "membership in a sibling group," "diagnosed medical, physical, or mental handicap[s]" ( 366.26, subd. (c)(3)); physical, developmental or emotional problems (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065); or a child's age of "seven years or more" ( 366.26, subd. (c)(3)).