In re Y.S.
Filed 6/5/13 In re Y.S. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re Y.S., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JENNIFER D. et al,
Defendants and Appellants.
D062872
(Super. Ct.
No. NJ14558)
APPEAL from
orders of the Superior Court
of
County, Laura Birkmeyer, Judge. Affirmed.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant
Joseph S.
Cristina
Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant Jennifer D.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer D.
and Joseph S. appeal orders terminating their
under Welfare and Institutions Code section 366.26.
FACTUAL
AND PROCEDURAL BACKGROUND
Jennifer D.
is the mother of 11 children.
Joseph S. is the father of Jennifer's three youngest children,
Victoria S., N.S., and Y.S. This
proceeding concerns only Y.S. Jennifer
and Joseph have a history of domestic violence.
In March 2009, Jennifer's nine oldest children, including newborn Victoria,
were removed from her custody through Los Angeles
County
relatives. N.S. was born in April
2010. She remained in Jennifer and
Joseph's care under a voluntary services plan.
Six months later, the court returned Victoria
to her parents' home.
In April
2011, two-year old Victoria died
from injuries sustained while in the parents' care. The Los
Angeles County Department of Children and Family Services (DCFS) detained
N.S. in protective custody. Jennifer and
Joseph moved to San Diego County,
where they lived with Jennifer's aunt and uncle, the T.'s. Y.S. was born in October 2011.
In December
2011, the San Diego County Health and
Human Services Agency (Agency) detained Y.S. in protective custody and
filed a petition alleging she was at substantial risk of abuse or neglect
because her sibling had suffered fatal injuries while in the parents'
care. (§ 300, subd. (j).) In January 2012, the medical examiner
concluded that Victoria's death
was a homicide caused by blunt force trauma to her chest and abdomen. At the time of her death, Victoria
was suffering from acute
pneumonia, which had not been diagnosed or treated. Victoria
had not grown in height and had lost weight after she was returned home. Witnesses reported that her parents did not
feed her when she was hungry. The Agency
filed an amended petition alleging Y.S. was in need of protection because her
parents had caused the death of another child through abuse or neglect. (§ 300, subd. (f).)
On March 1, 2012, Jennifer and Joseph
were arrested and charged with Victoria's
murder. (Pen. Code, § 187.) They remained in custody throughout the
remainder of Y.S.'s dependency proceedings.
In June,
the juvenile court adjudicated Y.S. a dependent of the juvenile court and set a
section 366.26 hearing. The Agency later
placed Y.S. with the T.'s.
The section
366.26 hearing was heard on October
18, 2012. Jennifer and
Joseph were represented by counsel but were not present. They did not object to the admission of the
Agency's section 366.26 reports in evidence, cross-examine the social worker or
present any affirmative evidence. Jennifer asked the court to apply the
beneficial parent/child and sibling relationship exceptions to termination of
parental rights. Without specifying any
legal grounds for his request, Joseph asked the court to maintain his parental
rights and select a plan of guardianship or long-term foster care for Y.S.
The Agency
reported that Y.S. was happy and healthy.
She was in the care of the T.'s, who wished to adopt her. Until her arrest, Jennifer had maintained
consistent visitation and contact with Y.S.
Jennifer did not believe that it was in Y.S.'s best interests to visit
her while she was incarcerated but continued to contact the social worker to
ask about Y.S.'s welfare. The relative
caregivers of Y.S.'s siblings facilitated some visitation between Y.S. and her
siblings, and remained in contact with the T.'s.
The court found that Y.S. was
likely to be adopted within a reasonable time if parental rights were
terminated. The court noted that the
Agency's report indicated that the T.'s were dedicated to adopting Y.S., and
did not express an interest in guardianship.
The court found that none of the exceptions under section 366.26,
subdivision (c)(1) applied, and terminated parental rights.
DISCUSSION
Jennifer
asserts the court erred when it determined the beneficial parent-child
relationship exception did not apply and terminated her parental rights. (§ 366.26, subd. (c)(1)(B)(i).) Joseph argues the court should not have
selected a plan of adoption because there was not
caregivers had been informed that they could choose guardianship over adoption. Alternatively, he contends the court lacked
sufficient evidence to terminate parental rights because the evidence
demonstrated that guardianship was Y.S.'s preferred permanency plan. Joseph also contends the court failed to make
the finding that he was Y.S.'s presumed father.
Each parent joins in and adopts the other parent's arguments. (Cal. Rules of Court, rule 8.200(a)(5).)
A
The Court Did Not Err When It Denied Joseph's
Request to Select
A Permanent Plan of Guardianship for Y.S.
At a permanency plan hearing, the
court may order one of three alternatives
guardianship or long-term foster care.
296-297.) If a child is adoptable, there
is a strong preference for adoption over the alternative permanency plans. (Id.
at p. 297; San Diego County Dept. of Social Services v. Superior Court
(1996) 13 Cal.4th 882, 888.) If the
court determines that a child is likely to be adopted, the court must order a
plan of adoption unless a party proves that termination of parental rights
would be detrimental to the child under one of the exceptions listed in section
366.26, subdivisions (c)(1)(A) or (c)(1)(B). (§ 366.26, subd. (c)(1); cf. In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
One of those exceptions occurs when
the child is living with a relative who is unable or unwilling to adopt the
child (for reasons other than an unwillingness to accept legal or financial
responsibility for the child) but who is willing and capable of providing the
child with a stable and permanent environment through legal guardianship, and
the removal of the child from the custody of his or her relative would be
detrimental to the emotional well-being of the child. (§ 366.26, subd. (c)(1)(A).)
Whenever the court orders a hearing
under section 366.26, it is required to direct the social services agency to
prepare an assessment that shall include, as relevant here: "[t]he relationship of the child to any
identified prospective adoptive parent or legal guardian, the duration and
character of the relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or adoptive
parent's strong commitment to caring permanently for the child, [and] the
motivation for seeking adoption or guardianship . . . ." (§§ 366.21, subd. (i)(1)(E), 366.22,
subd. (c)(1)(E).) The social worker is
required to include in the assessment the prospective relative guardian or
adoptive parent's "understanding of the legal and financial rights and
responsibilities of adoption and guardianship." (§§ 366.21, subd. (i)(1)(D), 366.22,
subd. (c)(1)(E) (italics added).)
Joseph has forfeited his argument
the assessment did not include information showing that the T.'s understood the
legal and financial rights and responsibilities of both adoption and
guardianship. "A party forfeits the
right to claim error as grounds for reversal on appeal when he or she fails to
raise the objection in the trial court. [Citations.]
Forfeiture, also referred to as 'waiver,' applies in juvenile dependency
litigation and is intended to prevent a party from standing by silently until
the conclusion of the proceedings. [Citations.]" (In re
Dakota H. (2005) 132 Cal.App.4th 212, 221-222 (Dakota H.).)
Joseph did not bring to the court's
attention his assertion that the section 366.26 assessment was inadequate or
that the T.'s wished to pursue guardianship and not adoption. Had he done so, the court could have
considered his claim and, if it found his argument meritorious, determined and
applied the appropriate legal standard. A party may not assert theories on appeal
which were not raised in the trial court. (Fretland v. County of Humboldt (1999)
69 Cal.App.4th 1478, 1489.) Joseph did
not object when the court found that "the [assessment] indicates that [the
T.'s] do not wish to be [Y.S.'s] legal guardians, they are dedicated to the
concept of adoption." The record
also shows that while Joseph asked the court to order a plan of guardianship or
long-term foster care for Y.S., he did not attempt to show that the T.'s were
unable or unwilling to adopt Y.S. Joseph
has forfeited the right to assign error on appeal.
Even were the matter not forfeited
on appeal, we are not persuaded that the court erred when it found that the T.'s
wanted to adopt Y.S. Although the
social worker should have included a discussion of the T.'s understanding of
the legal and financial rights and responsibilities of both adoption
there is no evidence in the record to support the argument that the T.'s were
unwilling to adopt Y.S. and preferred to become her legal guardians. "[E]ven if the assessment is incomplete
in some respects, the court will look to the totality of the evidence;
deficiencies go to the weight of the evidence and may ultimately prove
insignificant." (
1365, 1378.) The record clearly shows
that the T.'s were committed to adopting Y.S.
The uncontroverted evidence shows that the T.'s were actively completing
their adoptive home study and looking forward to making Y.S. a permanent member
of their family as soon as possible.
They were participating in an adoptive home study. The T.'s loved Y.S. as their own child and
wanted to make her a permanent part of their family. They wanted to move forward with the adoption
as soon as possible. The social worker
had no concerns about the T.'s commitment to adoption. She believed that the T.'s adoptive home
study would be completed in a timely manner.
On this record, the court could reasonably find that the T.'s were
willing and able to adopt Y.S., and the relative guardianship exception under
section 366.26, subdivision (c)(1)(A) did not apply.
B
There Is Substantial
Evidence to Support the Finding the
Parent/Child
Beneficial Relationship Exception to Termination of
Parental Rights
Did Not Apply
Another
exception to termination of parental rights applies when "[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).) To overcome the statutory preference for
adoption, the parent must prove that he or she occupies a parental role in the
child's life, resulting in a significant, positive emotional attachment of the
child to the parent. (
Cal.App.4th 823, 827; In re
Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
This court
has recognized that interaction between parent and child will almost always
confer some incidental benefit to the child.
(In re
Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
Under section 366.26, subdivision (c)(1)(B)(i), "benefit"
means that the parent-child relationship "promotes the well-being of the
child to such a degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents." (Autumn H., at p. 575.) "If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for
adoption is overcome and the natural parent's rights are not terminated." (Ibid.)
We determine whether there is substantial evidence to
support the court's ruling by reviewing the evidence most favorably to the
prevailing party, and indulging in all legitimate and reasonable inferences to
uphold the court's ruling. (
(1991) 2 Cal.App.4th 538, 545.) We do not
reweigh the evidence, evaluate the credibility of witnesses or resolve
evidentiary conflicts. (
Jennifer argues she maintained regular
visitation and contact with Y.S. and continuing the parent/child relationship
would promote Y.S.'s well-being to greater extent than adoption. Although the juvenile court noted that
Jennifer did not maintain regular visitation and contact with Y.S. after she
was incarcerated, it placed greater emphasis on weighing the benefits of
maintaining the parent/child relationship against the benefits that Y.S. would
gain by adoption. The court found that
in view of Y.S.'s brief relationship with her parents and their history and
circumstances, Y.S. would gain more benefit from adoption than she would from
maintaining her relationship with her parents.
There is ample evidence to support
the court's finding that termination of parental rights would not be
detrimental to Y.S. Y.S. was two months
old when she was removed from her parents' custody. Although Jennifer consistently visited Y.S.
and was attentive to her needs for approximately two-and-a-half months, she was
subsequently incarcerated on charges that she murdered her two-year old child. Jennifer remained in jail during Y.S.'s
dependency proceedings. She was unable
to maintain any type of relationship with Y.S. that would be meaningful or
beneficial to her one-year old daughter.
Jennifer's record as a parent to her ten other children sadly speaks for
itself.
The T.'s were present at the
hospital when Y.S. was born. She lived
in their home for the first two months of her life. The T.'s consistently visited her in foster
care until the Agency placed her in their home in August 2012. At the time of the section 366.26 hearing,
Y.S. was doing well and was very attached to her caregivers. She was happy and meeting all her
developmental milestones. The T.'s loved
Y.S. as their own child and provided a safe, stable and secure home to
her. They remained in contact with her
siblings' relative caregivers and facilitated visits with her siblings. The record fully supports the court's finding
that Y.S. would greatly benefit from the security of a stable, permanent home with committed,
capable adoptive parents. (§ 366.26,
subd. (c)(1)(B)(i); Autumn H.,
p. 575.)
C
Presumed Father
Finding
Joseph was
married to Jennifer at the time of Y.S.'s birth. (Fam. Code, § 7540.) He contends the court did not make a finding
that he was Y.S.'s presumed father, and requests that this court correct the
error or remand the matter to the juvenile court with instructions to make the
appropriate finding. Joseph acknowledges
the court apparently intended to make a presumed father finding and treated
Joseph as if he were Y.S.'s presumed father, the court did not in fact find
that he was the presumed father.
Joseph's
argument lacks merit. The record shows
that the court amended the petition by interlineation at the December 7, 2011
detention hearing "to reflect presumed status for father, Joseph S." Joseph did not include the record transcript
of the December 7, 2011 hearing in the record on appeal. "It is the appellant's affirmative duty
to show error by an adequate record. [Citation.]
'A necessary corollary to this rule [is]
that a record is inadequate, and appellant defaults, if the appellant
predicates error only on the part of the record he provides the trial court,
but ignores or does not present to the appellate court portions of the
proceedings below which may provide grounds upon which the decision of the
trial court could be affirmed. [Citation.]' " (Osgood
v. Landon (2005) 127 Cal.App.4th 425, 435.) Any further references in the minute orders
describing Joseph as an alleged father appear to be clerical error, which could
have been easily corrected had the error been brought to the juvenile court's
attention. (Dakota H., supra,
132 Cal.App.4th at pp. 221-222 [explaining principles of
forfeiture].) In addition, the issue of
Joseph's status as alleged or presumed father has been rendered moot by the
termination of his parental rights to Y.S.
(In re Noreen G.
(2010) 181 Cal.App.4th 1359, 1391 [an order terminating parental rights
effectuates a complete and final legal termination of the parental
relationship].)
DISPOSITION
The
findings and orders are affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Other permanency options are available for the child if he
or she is an Indian child within the meaning of the Indian Child Welfare
Act. (25 U.S.C. § 1901
et seq.; § 366.26, subd. (b).)
