In re N.P.
Filed 1/28/14 In re N.P. CA4/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
THE STATE OF CALIFORNIA
In re N.P. et
al., Persons Coming Under the Juvenile Court Law.
_________________________________
RIVERSIDE
COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
J.P.,
Defendant and Appellant.
E059359
(Super.Ct.No.
SWJ1100116)
APPEAL
from the Superior Court of Riverside
County. Donna L. Crandall,
Judge. (Retired judge of the Orange
Super. Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the
Cal. Const.) Affirmed.
Lisa
A. Raneri, under appointment by the Court
of Appeal, for Defendant and Appellant.
Leslie
A. Barry, under appointment by the Court of Appeal, for Respondent Minors.
Pamela
J. Walls, County Counsel, and
Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
J.P.
(Mother) appeals after the termination of her parental rights to N.P. and L.P. at
a Welfare and Institutions Code section 366.26
permanent plan of adoption.
Mother
makes the following claims on appeal:
(1) the juvenile court lacked substantial evidence of the wishes of L.P.
and N.P. as to whether they understood that adoption would preclude contact
with Mother or that legal guardianship was an alternative plan to adoption as
required by section 366.26, subdivision (h); (2) the beneficial parent
exception to terminating Mother’s
subd. (c)(1)(B)(i)) applied to preclude termination of her parental rights; (3)
the sibling exception to terminating Mother’s parental rights (§ 366.26, subd.
(c)(1)(B)(v)) applied; and (4) the juvenile court erred by finding N.P. was
We affirm the
juvenile court’s order terminating Mother’s parental rights and finding N.P.
and L.P. adoptable.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Detention
L.P. (who was 5
years old) and N.P. (who was 11 years old) were put into protective custody on February
14, 2011, along with their older half sister, La.P (who was 12 years old)
Social Services (the Department). There
were a series of incidents which led to the children being detained.
On January 22, 2011, a social worker responded to the home occupied by the family. It was reported that Mother had beat La.P a
week before. Mother held La.P on the
couch and punched and choked her. Mother
claimed that La.P had Multiple Personality Disorder and Dissociative
Disorder. On the day of the incident, La.P
had become enraged and violent and Mother was trying to restrain her. If she hit La.P, it was only in self defense. La.P had a “busted lip†from the incident but
La.P claimed she bit her own lip during the struggle. She confirmed her Mother’s story.
Another
referral was received on January 27, 2011. Mother had been seen choking and hitting La.P. The children’s stepfather, who also lived in
the house, had been seen throwing La.P against a wall. N.P. had been encouraged by Mother to hit La.P
with a broom. Stepfather and Mother were
suspected of using methamphetamine.
Stepfather had been reported to shoot pellets from an air gun at the
children.
On
January 28,
2011, it was reported that Mother had
previously attempted to commit suicide by taking 50 antidepressants and other
pills. La.P had not been regularly
attending school.
A
social worker went to the house on January 31, 2011. Mother and stepfather
denied abusing the children. Mother was
attempting to get psychological counseling for La.P. Stepfather used marijuana to help with pain
but did not have a medical marijuana card.
He considered shooting pellets at the children to be fun but agreed he
would stop. Mother admitted that she had
previously attempted to commit suicide.
La.P
was interviewed at school on February 1, 2011. She denied she was hit or beaten by Mother or
stepfather. La.P accepted responsibility
for the altercations with Mother. La.P
reported that A.H., who was her father, sexually abused her when she was
“little.†N.P. and L.P. were interviewed
the same day. N.P. denied knowing about
any drug or alcohol abuse in the home.
He also denied that Mother and stepfather hit him. L.P. said it was fun at home and that there
were no problems at home.
A report was
received on February
14, 2011, that Mother had beaten the
stepfather with a chair and punched him in the face. It was reported that Mother had attempted to
commit suicide by taking an entire bottle of prescription medication. She was currently hospitalized. Mother was combative and in an altered state
when she was admitted. She was in
critical condition and placed on a ventilator.
She was being moved to an intensive care unit. The children were present during the altercation
and the suicide attempt.
Stepfather
reported that in the evening on February 13, he was sitting in the living room
on the couch. Mother emerged from the
bedroom and started yelling at him. She
began beating him. N.P. was sitting on a
nearby chair. She pulled the chair from
underneath N.P., causing him to fall on the floor. N.P. hit his knee and had a small bruise on
his knee. Mother hit stepfather in the
chest with the chair. She dropped the
chair and hit him with her fists. She
ordered stepfather to pack his things and leave. He refused because the children needed him.
Mother
went back to the bedroom. She sat on the
bed and started swallowing her prescription medications. Stepfather asked her what she was doing, and
she said, “I am just trying to be happy.â€
Stepfather dialed 911. Both
Mother and stepfather tested positive for marijuana.
N.P.
and La.P were present when Mother was hitting stepfather and both children were
crying. The children were all taken into
protective custody. After being taken
into custody, La.P stated she had been watching television with N.P. in the
living room. La.P said that Mother came
out yelling at stepfather. Mother
started hitting stepfather with the chair.
Mother hit stepfather with her fists.
La.P and N.P. were crying. N.P.
essentially confirmed the story of stepfather and La.P. He was hurt on his knee but the wound was
healing. L.P. had heard yelling and saw
Mother being taken away in an ambulance.
Mother
was able to speak with the social worker on February 15. She stated she had a miscarriage on February
2 that caused her to be depressed. She
was taking antidepressants. She awoke on
Feburary 13 and stepfather was smoking marijuana in the bedroom. She was mad and told him she did not want the
children to be taken away because of his “stupidity.†She did not recall anything regarding her
beating the stepfather. She did not
recall taking all of her medication. Mother
denied smoking marijuana despite her drug test showing otherwise.
Mother
claimed that R.P., who was the father of N.P. and L.P., was abusive toward the
children. While Mother was married to
R.P., he was abusive to her. Between
2007 and 2009, La.P had been admitted to a children’s psychiatric hospital. La.P claimed during her hospitalization that
she had been molested by A.H. when she was nine years old. Mother believed that A.H. was incarcerated. Mother was being evaluated by mental health
professionals before being released from the hospital.
R.P.
contacted the Department once he found out the children had been removed from
Mother. He had an interest in all of the
children living with him. He denied any
abuse of Mother or the children.
On
February 16,
2011, a section 300 petition was filed by
the Department against A.H., R.P. and Mother.
It alleged against Mother, under section 300, subdivision (b), that she
had unresolved mental health issues, she had attempted suicide in the presence
of the children, she engaged in domestic violence with the children’s
stepfather, and she abused controlled substances in the home, including
marijuana. As for A.H, it alleged he had
a prior criminal history and was incarcerated, and had failed to protect La.P despite
obvious awareness of her mental health issues.
It was alleged against R.P. that he had failed to protect N.P. and L.P.
when he must have been aware of Mother’s mental health problems. The petition also alleged against A.H. and
Mother a failure to provide support for the children.
At a detention hearing
held on February
17, 2011, the juvenile court found a prima
facie case and ordered La.P, N.P. and L.P. detained. R.P. was named the presumed father of N.P.
and L.P., and A.H. was named the alleged father of La.P.
B. Jurisdictional/Dispositional
Report and Hearing
In
a jurisdictional/dispositional report filed on March 9, 2011, the Department recommended that Mother, A.H. and R.P. be granted
reunification services. It was also
recommended that the children remain detained together. Mother was to submit to a psychological
evaluation.
R.P.
reported that he was granted joint legal custody of N.P., L.P. and La.P in New Mexico. Mother took the children to California without
his permission. There were unsubstantiated
reports to New Mexico social services while the children lived with him and Mother
between 2000 through 2009. These
included reports of filthy conditions in the home, poor supervision, La.P
having trouble at school, physical abuse by R.P. against N.P. and La.P, and
physical abuse by Mother against La.P. R.P.
denied abusing the children.
On
March 20, 2010, New Mexico Social Services received a referral that Mother had
attempted suicide while the children were present. R.P. took custody of the children. A.H. had numerous prior convictions. A.H. was interviewed and claimed he had been
off parole for three years. He had been
looking for La.P for five years but could not find her. A.H. wanted custody of La.P.
N.P.
stated that R.P. beat him and his siblings, and locked them in the house. N.P. liked being in foster care because the
people were nice to him. N.P. claimed
the house in New Mexico was haunted; ghosts followed him around the house and La.P talked
to them. L.P. liked her foster home.
Mother
admitted she had attempted suicide and it was not a “smart†decision. She denied that she used drugs. She believed her mental health issues were
more intense than just depression. Stepfather
claimed that he was the one who took care of the children. Mother just stayed in her bedroom. Stepfather insisted that Mother had a serious
mental illness. Stepfather’s ribs were
broken when Mother hit him with the chair.
He and Mother were getting a divorce and he would not be considered for
placement.
The
jurisdictional/dispositional hearing was conducted on March 14, 2011. The petition was amended to
strike the section 300, subdivision (g) allegations and an allegation against
A.H. The juvenile court found the
allegations in the amended petition true after R.P., A.H. and Mother waived
their rights to a hearing. R.P., A.H.
(who was declared the biological father of La.P) and Mother were granted reunification
services.
C. Six-Month
Status Review Report
A
six-month status review report was filed on September 1, 2011. It was recommended that La.P
be placed with A.H. under Family Maintenance.
At the time of the report, La.P was in a different foster home than N.P.
and L.P.
Mother
was living with a friend. Mother
reported that she was pregnant with another baby. The father of the baby was “Mr. Lopez.†Mother was participating in services but was
not benefiting from them. Mother
reported that La.P lied and had mental problems. Mother had failed to participate in a
psychological evaluation or individual therapy.
Mother could not take medication for her mental illness since she was
pregnant.
A.H.,
who was married, wanted placement of La.P in their home. La.P wanted to be placed with A.H. and did
not want to be with Mother. La.P got
into an argument with her foster brother in her new foster home and La.P threw
a remote control at the boy’s face. La.P
felt bad and went into her room. She cut
her arm with a bottle-cap opener. She
cut her wrist with a ball point pen. She
was taken to the hospital. She was
prescribed medication by the mental health hospital.
N.P. was
enrolled in honor classes at school. The
social worker recommended therapy for N.P.
L.P. was doing well in school.
N.P. was mature
for his age. He had adjusted well to his
placement. He was not sure he wanted to
be with either R.P. or Mother. L.P. had
reported that R.P. had asked her to touch him in the groin area. N.P. and L.P. were going to be moved because
the foster mother was sick.
Mother had
visited regularly with N.P. and L.P. She
oftentimes brought the children very expensive gifts. However, Mother was not attentive during
visits, oftentimes talking on her telephone or talking to the social worker.
At the six-month
review hearing held on September 13, 2011, La.P was
placed with A.H. on a Family Maintenance plan.
Her case was transferred to San Bernardino County. Mother’s reunification services were
continued for N.P. and L.P.
On
November 7,
2011, it was reported by Mother’s roommate
that she had left town and stolen items from her. Mother missed a visit on November 3, 2011, and never contacted the social worker. Mother had been sporadic in her visits with
L.P. and N.P. She brought inappropriate
music and movies for the children. A.H.
had reported that La.P had been caught having sex at school with another
student and had given her psychotropic medication to other students.
D. 12-Month
Review Report and Hearing
The
12-month review report filed on February 28, 2012, recommended that Mother’s
and R.P.’s reunification services be terminated. It also recommended that a section 366.26
hearing be set and that the permanent plan be adoption.
Mother delivered
her new son, K.B.,
name="_ftnref4" title="">[4] on January 14, 2012. He was also detained by the Department.
On
February 3, 2012, Mother was arrested for inducing a minor to sell drugs and
child endangerment.
name="_ftnref5" title="">[5] She pleaded guilty and was
scheduled to be sentenced on March 14, 2012.
She was currently incarcerated.
N.P.
was developing normally. He was doing
well in most of his classes at school. He
showed no signs of mental illness but he did receive counseling to
differentiate between fantasy and reality.
L.P. was developing normally and doing well in school. Both were adjusted to their foster care.
Mother
had not attended individual counseling.
A psychiatric evaluation was completed on November 16, 2011, by the
Riverside County Department of Mental Health and she was found not to need
therapy or medication. Mother had
regularly attended visitation since November 14, 2011, until her incarceration. Both N.P. and L.P. were thriving in the
foster home.
An
addendum report was filed on March 29, 2012.
Mother had been sentenced to a three-year prison sentence.
On April 4,
2012, Mother waived her rights to a hearing and submitted on the reports. Mother was incarcerated and expected to serve
at least one year in custody. The
juvenile court terminated reunification services for Mother and ordered monthly
visitation. N.P. and L.P. were present
at the hearing and were interested in possibly being placed with R.P. His reunification services were continued.
An
addendum report was filed on September 21, 2012. It was recommended that reunification
services be terminated as to R.P. Mother
was still incarcerated. N.P. was
reported as developing normally and was doing well in school. He had been diagnosed with ADHD but was not
taking medication. He still displayed
behaviors of living in a fantasy world. L.P.
was also developing normally and was doing well in school.
During the
reporting period, R.P. had not contacted the Department and had not spoken with
the children. No visitation between
Mother and the children occurred due to her incarceration and the decision by
the Department that it would be harmful for the children to visit her in prison. N.P. had told a social worker he would like
to visit Mother in prison. N.P. had
cried for “hours†when he received a letter from Mother. He had to read the letters with his
therapist.
The
contested review hearing was conducted on November 6, 2012. R.P. was not present and the parties
submitted on the reports filed. R.P.’s reunification
services were terminated. The matter was
set for a section 366.26 hearing.
Adoption was the permanent plan. The
juvenile court noted that placement of L.P. and N.P. with La.P was not a
consideration because she was on a different track since she had been placed
with her father.
On
December 7, 2012, the Department filed an ex parte application requesting an order
for a psychological evaluation of N.P. N.P.
was being aggressive with other children and having difficulties with
socialization. There was a chance he
suffered from Asperger’s Syndrome.
Finding an adoptive home for N.P. and L.P. was difficult due to his
behavior.
E. Section
366.26 Report
The
section 366.26 report was filed on January 17, 2013. N.P. was now 13 years old and L.P. was 7
years old. Additional time was needed to
find an adoptive home for N.P. and L.P. N.P.
had an active imagination and liked to tell stories. He was very sensitive. He was upset by information from his Mother
that he knew was false. He was doing
well in school. A psychological
evaluation was pending for N.P. N.P. was
an avid reader and loved science fiction.
N.P.
and L.P. had expressed that they wanted to live in their former foster home and
be adopted by the former foster mother.
The former foster mother had been contacted, she expressed interest in
adopting them, and they were returned to her care. N.P. and L.P. were happy to be back with the
foster mother.
N.P. and L.P.
had one visit with Mother while she was in prison, which took place through a
glass window and over the telephone.
Mother told the children she would be out of custody and they would be
returning to her care. She blamed her
incarceration on La.P, who she claimed told lies about her. N.P. and L.P. started crying. Mother knew she had two years to complete on
her sentence. The Department recommended
that no further visitation be authorized.
N.P.
and L.P. were happy about being with the foster mother but were confused by
Mother’s promises. One of the service
providers disagreed that N.P. needed a psychological evaluation and refused to
approve the evaluation.
On
February 4, 2013, the matter was continued in order to find a suitable adoptive
home. At the hearing, the juvenile court
noted, “I’m not sure, no matter what happens, whether [N.P.] is going to agree
to be adopted at any point, which is his right.
He must consent. I’m not so sure
whatever we do or the Department does, whether he’s going to want to agree to
that.†Minor’s counsel had no comment on
N.P.’s wishes.
The Department
filed an addendum report on the day of the hearing requesting a restraining
order against Mother to protect the children and the foster mother. They also requested that visitation be
terminated. An anonymous phone call was
received by the Department that reported that Mother had paperwork in prison reflecting
the address of the foster mother. Upon
her release, Mother planned to pick up the children and take them to Las Vegas. The Department’s request for a restraining
order against Mother was denied.
The juvenile
court admonished Mother not to promise anything to N.P. and L.P. and visitation
was continued. The juvenile court
suggested that the Department consider legal guardianship if N.P. would not agree
to the adoption.
An
addendum report was filed on May 9, 2013.
The recommendation was to terminate Mother’s parental rights and free
N.P. and L.P. for adoption. The
prospective adoptive mother, the former foster mother, had custody of N.P. and
L.P. since December 2012. She loved the
children and wanted to adopt them. A
preliminary adoption assessment had been completed.
N.P.
was still receiving counseling. The
report stated, “[N.P.] states that he likes living with the prospective
adoptive mother and states that this means he gets to change his name. He is happy that the prospective adoptive
mother wants to adopt him.†L.P. was
very excited to be adopted by the foster mother. She was very bonded to the foster family. The prospective adoptive mother had two
children close to the children’s ages and they were like siblings to N.P. and
L.P. The prospective adoptive mother
worked and had the means to support N.P. and L.P. She had a very supportive family who would
help her.
The
prospective adoptive mother was amenable to exchanging photographs and letters
with the birth family. She was not
willing to maintain face-to-face contact.
Both N.P. and L.P. called her “mom.â€
They both wanted to be adopted.
F. Section 366.26 Hearing
The section
366.26 hearing was held on July 8, 2013.
None of the parties involved were present. The Department submitted on the reports. Minors’ counsel did not object to the reports
and agreed with the recommendations. Mother’s
counsel requested that Mother’s parental rights not be terminated and that the
parental bond exception be applied. The
juvenile court found “clear and convincing evidence†that the children would be
adopted. The parental rights of Mother
and R.P. were terminated and L.P. and N.P. were freed for adoption.
II
AGREEMENT TO ADOPTION BY MINORS
Mother claims
that section 366.26, subdivision (h) required that the juvenile court consider
the wishes of N.P. and L.P. prior to freeing them for adoption and terminating
Mother’s parental rights. Further,
section 366.26, subdivision (c)(1)(B)(ii) provided an exception to termination
of her parental rights if N.P. objected to the adoption.
Section
366.26, subdivision (h)(1) provides as follows:
“At all proceedings under this section, the court shall consider the
wishes of the child and shall act in the best interests of the child.†Section 366.26, subdivision (c)(1)(B)(ii)
provides an exception to the termination of parental rights when a child 12
years of age or older objects to the termination of parental rights.
Mother claims
that the juvenile court needed to inquire further of L.P. and N.P. about the
consequences of adoption. Mother insists
that the record is silent as to whether N.P. and L.P. were aware of the difference
between legal guardianship and adoption, and that they were aware that adoption
would preclude further contact with Mother.
Mother has forfeited this issue by failing to raise it in the juvenile
court. (See In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820 [“[Father]
raised no issue below that the juvenile court should have obtained the minors’
testimony regarding their wishes for a permanent plan. [Citation.] He is precluded from presenting it hereâ€].) Moreover, the party claiming an exception to
adoption has the burden of raising the issue below and by failing to do so
“waived the right to raise the issue on appeal.†(In re
Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) Mother failed to claim in the juvenile court that
the section 366.26, subdivision (c)(1)(B)(ii) exception applied, and thus has
forfeited the claim on appeal.
Even
considering the issue on the merits, Mother cannot prevail. “[I]n considering the child’s expression of
preferences, it is not required that the child specifically understand the
proceeding is in the nature of a termination of parental rights.†(In re
Leo M. (1993) 19 Cal.App.4th 1583, 1593 (Leo).) “To ask . . .
children to choose whether they ever see their natural parent again or to give
voice to approving that termination†can traumatize youngsters and is not
statutorily compelled. (
is ‘to explore the minor’s feelings regarding his/her biological parents,
foster parents, and prospective adoptive parents, if any, as well as his/her
current living arrangements. . . .’†(
at p. 820.) The “evidence need not be in
the form of direct testimony in court or chambers; it can be found in court
reports prepared for the hearing. [Citation.]â€
(Ibid.)
If the record contains no direct
evidence of the child’s thoughts on the matter, but includes evidence from
which the child’s feelings can be inferred, the court may draw such inferences.
(Leo,
at pp. 1593-1594.)
While a court
must consider the child’s wishes, it must also act in the child’s best
interest. (§ 366.26, subd. (h)(1).) A “child’s wishes are not necessarily
determinative of the child’s best interest [citation].†(In re C.B.
(2010) 190 Cal.App.4th 102, 125.) An
appellate court may presume the juvenile court performed its statutory
obligation, if that presumption is supported by sufficient evidence in the
record. (Leo, supra, 19 Cal.App.4th at p. 1594.)
Here,
N.P. and L.P. were not present at the section 366.26 hearing and did not
provide direct testimony as to their preference for placement. However, there was ample evidence in the
reports reviewed by the juvenile court that L.P. and N.P. wished to be
adopted. N.P. and L.P. had asked to be
placed back with the prospective adoptive mother. Once in her care, N.P. expressed on several
occasions he wanted to be adopted and was excited to change his name. L.P. was very excited about being adopted by the
prospective adoptive mother.
Even
if the children were advised that legal guardianship would allow them to
maintain contact with Mother, and they expressed their preference for legal
guardianship, this would not have been in their best interests. (In re C.B.,
supra, 190 Cal.App.4th at p. 125.)
Mother attempted suicide on two prior occasions and had injured N.P.
during the altercation with stepfather. Mother
made no progress in her plan and was sporadic in her visitation. During the dependency proceeding, she was
convicted of child endangerment and inducing a minor to sell drugs. She was sentenced to three years in prison. Mother upset the children during visitation,
lying to them about her circumstances. Based
on the foregoing, even if the juvenile court erred by failing to fulfill its
duty under section 366.26, subdivision (h) by inquiring further of N.P. and
L.P., any error was harmless.
Further,
the exception pursuant to section 366.26, subdivision (c)(1)(B)(ii) was not
applicable. The record supports that
N.P. wanted to be adopted by the foster mother.
The reports filed by the Department set forth that N.P. wanted to change
his name and was happy that he was being adopted. This report was filed after the juvenile
court had stated at a hearing that it was not sure that N.P. would agree to the
adoption. The reports establish that
N.P. did not object to the adoption, and Mother’s speculation that he was not
properly informed as to the consequences of the adoption simply is not
supported by the record.
The juvenile
court properly determined that it was in the children’s best interests to be
freed for adoption.
III
BENEFICIAL PARENT AND SIBLING EXCEPTIONS
Mother argues
that the beneficial parent exception of section 366.26, subdivision
(c)(1)(B)(i) and the sibling exception under section 366.26, subdivision
(c)(1)(B)(v) applied to preclude the termination of her parental rights.
At
the section 366.26 hearing, Mother’s counsel stated that Mother wished to take
care of her children upon release from custody.
Mother’s counsel stated, “So I would just simply at this time object to
any termination of parental rights and ask the Court to consider any exceptions
including the parent/child relationship exception, your Honor.†Mother’s counsel provided no further argument
and the juvenile court found the exception was not applicable
A. Standard
of Review
At
the section 366.26 hearing, the sole issue “‘is whether there is clear and
convincing evidence that the child is adoptable.’ [Citations.]â€
(In re Josue G. (2003) 106
Cal.App.4th 725, 733; see § 366.26, subd. (c).)
“Adoption, where possible, is the permanent plan preferred by the
Legislature. [Citation.]†(In re
Autumn H. (1994) 27 Cal.App.4th 567, 573.)
If the court finds that a child may not be returned to his or her
parents and is likely to be adopted, it must select adoption as the permanent
plan, unless it finds that termination of parental rights would be detrimental
to the child under one of the seven exceptions set forth in section 366.26,
subdivision (c)(1)(A) and (c)(1)(B)(i) through (v). (See In
re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
Appellate courts
have differed on the correct standard of review for determining the
applicability of a statutory exception to termination of parental rights. (Compare, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576 [applying
substantial evidence standard]; In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion
standard]; In re K.P. (2012) 203
Cal.App.4th 614, 621-622 [applying substantial evidence standard of review to
whether beneficial parent-child relationship exists and applying abuse of
discretion to standard to whether that relationship provides a compelling
reason to apply exception]; accord, In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) The “practical differences†among these
various standards of review “are not significant†(In re Jasmine D., at p. 1351), and, on this record, our conclusion
would be the same under any one of them.
B. Beneficial
Parent Exception
The
parental benefit or “beneficial relationship†exception is set forth in section
366.26, subdivision (c)(1)(B)(i). The
exception applies where “‘[t]he parents . . . have maintained regular
visitation and contact with the minor and the minor would benefit from
continuing the relationship.’
[Citation.]†(
823, 826.)
“The
parent must do more than demonstrate ‘frequent and loving contact[,]’
[citation] an emotional bond with the child, or that parent and child find
their visits pleasant. [Citation.] Instead, the parent must show that he or she
occupies a ‘parental role’ in the child’s life.†(In re
Derek W., supra, 73 Cal.App.4th at p. 827.)
“The ‘benefit’ prong of the exception requires the parent to prove his
or her relationship with the child ‘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.’
[Citations.]†(
621.) “‘The burden falls to the parent
to show that the termination of parental rights would be detrimental to the
child under one of the exceptions.
[Citation.]’ [Citations.]†(In re
C.B., supra, 190 Cal.App.4th at p. 122.)
Initially,
Mother’s visitation with N.P. and L.P. was not consistent. During the early period of the dependency,
Mother visited with N.P. and L.P., but was reported to not be attentive,
spending much of her time on the telephone or talking to the social worker. It was later reported that Mother was
sporadic in her visitation. When she did
attend visits, she brought inappropriate gifts, music and movies. Finally, Mother was incarcerated on February
3, 2012, and had only one visit with the children after her incarceration.
Mother blames
the lack of visitation on the Department not wanting to have the children visit
her in prison. However, prior to her
incarceration, Mother had missed visitation. Moreover, Mother could blame only herself for
becoming incarcerated. Additionally,
when the children visited with her, she told them lies and made them upset. Throughout the dependency proceedings, Mother
did not maintain consistent visitation, and therefore, fails to meet her burden
of establishing the first prong of the parental bond exception.
Moreover,
even if we were to consider that Mother maintained visitation, she cannot show
that their 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.’ [Citations.]†(In re
K.P., supra, 203 Cal.App.4th at p. 621.)
Here, although Mother
had been present for a large portion of the lives of N.P. and L.P., this did
not mean the relationship was beneficial.
“The factors to be considered when looking for whether a relationship is
important and beneficial are: (1) the
age of the child, (2) the portion of the child’s life spent in the parent’s
custody, (3) the positive or negative effect of interaction between the parent
and the child, and (4) the child’s particular needs.†(In re
Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
Mother
had a history of mental illness and she had attempted suicide on two occasions. During her altercation with stepfather, she
showed no concern for N.P., pushing him from his chair and hurting his knee. Mother was arrested during the dependency
proceeding for inducing a minor to sell drugs and child endangerment. Mother’s visits with N.P. and L.P. and her
letters to N.P. caused the children to be upset. Although there was some bond between Mother
and N.P. and L.P., she simply did not occupy a role of a parent. Mother failed to meet her burden of
establishing that the parental bond exception was applicable as to preclude
termination of her parental rights.
C. Sibling
Exception
Section 366.26,
subdivision (c)(1)(B)(v) provides an exception to the termination of parental
rights if the court finds a compelling reason for determining that termination
would be detrimental to the child due to a “substantial interference with a
child’s sibling relationship, . . . â€
The juvenile court
undertakes a two-step analysis in evaluating the applicability of the sibling
relationship exception. First, the court
is directed “to determine whether terminating parental rights would
substantially interfere with the sibling relationship by evaluating the nature
and extent of the relationship, including whether the child and sibling were
raised in the same house, shared significant common experiences or have
existing close and strong bonds. [Citation.] If the court determines terminating parental
rights would substantially interfere with the sibling relationship, the court
is then directed to weigh the child’s best interest in continuing that sibling
relationship against the benefit the child would receive by the permanency of
adoption.†(In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.)
“[T]he concern
is the best interests of the child being considered for adoption, not the
interests of that child’s siblings.†(
808, 822.) “Indeed, 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. [Citation.]†(In re Celine
R. (2003) 31 Cal.4th 45, 61.)
Initially,
Mother has waived her claim by failing to raise the exception in the juvenile
court. The party claiming an exception
to adoption has the burden of raising the issue below and by failing to do so
“waived the right to raise the issue on appeal.†(In re
Rachel M., supra, 113 Cal.App.4th at p. 1295.)
Even if we were
to consider the claim, it is clear that N.P. and L.P. were bonded to La.P. However, La.P had severe mental issues and
presented a danger to herself and possibly N.P. and L.P. La.P had spent several years in a psychiatric
facility in New Mexico because she was cutting herself and hearing voices. She was hospitalized during the dependency
proceedings because she cut her own arm.
She had also been violent with a foster child at her placement. La.P presented a real danger to N.P. and L.P.
Further, La.P
was placed with her own father, A.H., and he did not want to take custody of
all of the children. Even after La.P was
placed with A.H., it was reported that she got caught having sex at school and
giving other students her psychotropic medication. La.P’s future was uncertain. Continuing the sibling relationship did not
outweigh the benefit N.P. and L.P. would receive by gaining a permanent home
through adoption. (In re Celine R., supra, 31 Cal.4th at p. 61.) The sibling bond exception did not apply.
IV
ADOPTABLITY OF N.P.
Mother’s final
claim is that the juvenile court erred by finding that N.P. would be adopted
within a reasonable time.
We have previously
stated that adoption is the permanent plan preferred by the Legislature. (In re
Autumn H., supra, 27 Cal.App.4th at p. 573.) “The juvenile court may terminate parental
rights only if it determines by clear and convincing evidence that it is likely
the child will be adopted within a reasonable time. [Citations.]
‘“‘“Clear and convincing†evidence requires a finding of high
probability. The evidence must be so
clear as to leave no substantial doubt.
It must be sufficiently strong to command the unhesitating assent of
every reasonable mind.
[Citations]’†[Citations.]’ [Citation.]
Review of a determination of adoptability is limited to whether those
findings are supported by substantial evidence.
[Citation.]†(
1051, 1060-1061; see also In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)
General
adoptability “focuses on the minor, e.g., whether the minor’s age, physical
condition, and emotional state make it difficult to find a person willing to
adopt the minor.†(In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[I]t 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.]†(
“[I]n some cases a minor who
ordinarily might be considered unadoptable due to age, poor physical health,
physical disability, or emotional instability 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.) Thus, a child may be “deemed adoptable based
solely on the fact that a particular family is willing to adopt him or her . . .
.†(In
re Carl R., supra, 128 Cal.App.4th at p. 1061.)
Here, N.P. had been with the prospective adoptive mother for a period
of nine months in 2011, and was returned to her care in December 2012. By the time of the section 366.26 hearing,
N.P. had been in the adoptive mother’s care for over six months. The adoptive mother was excited about
adopting N.P. and loved him. The fact
that N.P. was sought to be adopted by the adoptive mother supports that he was
adoptable. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
We disagree with Mother that N.P. suffered from a mental illness that
precluded him from being found generally adoptable. N.P. did have an imagination, but was also
reported as being an avid reader and that he liked science fiction books. N.P. was enrolled in honor classes at school
and was doing well in school. One report
requested a psychological evaluation for N.P. because he was having trouble
with socialization and was aggressive with other children. However, another report stated that an
evaluation for N.P. was denied and not needed.
The record does not support a finding that N.P. was so emotionally unstable
as to be found unadoptable. We find the
juvenile court properly determined that both N.P. and L.P. were adoptable.
V
DISPOSITION
The juvenile
court’s judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
with the respondent that the juvenile court orders should be upheld.
