In re Violet G.

Filed 5/29/07 In re Violet G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Irwin Garfinkel, Juvenile Court Referee. Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.

__________________________

Mother Susana appeals from the trial courts order terminating her parental rights in her twelve-year-old daughter, Violet, and seven-year-old son, Ismael. We affirm.

FACTS AND PROCEEDINGS

In February 1999, police officers pulled mother Susana over because she was driving with her then four-year-old daughter, Violet, unrestrained by a car seat. In searching the car, police found drug paraphernalia, including a crack pipe and uncapped syringes. Accordingly, the Department of Children and Family Services filed a dependency petition, which is not in the record, making Violet a ward of the court.

Two mothers later, mother gave birth to Ismael, at which time she tested positive for cocaine. The department detained mothers four minor children and filed a second petition, which is in the record and is the operative petition in these proceedings. Two of those children Victor and Desire have since turned 18 and are not part of this appeal. The other two children are still minors and involved in the appeal: Violet born in October 1994, and Ismael born in April 1999. (Unless the context indicates otherwise, when we refer in this opinion to the children, we mean Violet and Ismael.)

The court sustained the petitions allegations that mother had exposed Ismael to drugs in utero and Violet to drug paraphernalia. It further found that mothers history of drug abuse meant she could not care for her children, and neither childs father could care for them because both men were incarcerated.[1]The department placed Violet and Ismael with their maternal Aunt Yolanda. The court ordered the childrens aunt not to leave them alone with mother.

In July 1999, the department redetained Violet and Ismael because Aunt Yolanda had permitted mother to have unmonitored contact with them. Mothers unauthorized visits came to the departments attention after police arrested her for endangering the children while being under the influence of heroin. The department placed Violet and Ismael with their maternal Aunt Paulette. Since then, the children have, with a few days exception, remained in Paulettes custody throughout these proceedings.

In May 2000, the court terminated family reunification services because mother was not complying with the reunification plan and court orders. She was arrested in July 2000 and sent to state prison in October, where she remained until she was released sometime before September 2001. She was thereafter arrested twice for drug offenses and sent to county jail. Paulette took the children to visit mother while she was in jail, but they did not visit after authorities moved her to state prison in March 2002, where she remained until freed in July 2002. Throughout mothers stints in and out of custody, Violets relationship with her continued to be strong, but Ismael, having never bonded with her, cried during visits.

When the department initially placed the children with Paulette, she expressed interest in adopting them, but within a month or two decided against it in order to give mother more time to reunite. In October 2002, the court appointed Paulette the childrens legal guardian, and in June 2003, it terminated jurisdiction. Paulette then began to allow mother to stay at her home every other weekend to visit the children when she was not incarcerated. In March 2005, the department recommended the court reinstate jurisdiction over Violet and Ismael to allow the department to regain control over mothers visitation. The court did so, and ordered mother to have only monitored visits with the children and not to discuss the dependency case with them. Despite the courts order, she repeatedly talked to the children about their case. Moreover, her aggressiveness and erratic behavior during visits often upset the children, leading the case social worker to end many of the visits early. Eventually, all visitation ended for not being in the childrens best interests.

In August 2005, the department moved to terminate mothers parental rights. The following March, Violet announced she longer wanted to visit mother. The department honored her wish because mother had traumatized Violet during visits by trying to get her to turn against Paulette. After a two day contested hearing in October 2006, the court terminated mothers parental rights in Violet and Ismael and ordered their placement for adoption by Paulette. The court ordered mother not to contact the children until the courts further order. This appeal followed.

DISCUSSION

Mother contends the court committed three errors in terminating her parental rights in Violet and Ismael. None of her contentions is convincing.

1. Substantial Evidence of Ismaels Adoptability

Mother contends the court erred in terminating her parental rights in Ismael because he is unlikely to be adopted. We disagree.

A dependency court may terminate parental rights only if it finds clear and convincing evidence the minor is likely to be adopted. (In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806; Welf. & Inst. Code,  366.26, subd. (c)(1); see In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 [minors age, physical condition, and emotional state affect childs adoptability].) Here, Paulette wanted to adopt Ismael. Her desire was, by itself, substantial evidence of his adoptability. As one court explained,  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.  (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154, italics in original; In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550 [foster parents desire to adopt is substantial evidence of likelihood of adoption]; but see In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 [that some prospective families are considering adoption is not clear and convincing evidence of the childs likelihood of adoption].)

Although Ismael was described as a personable and healthy boy who made friends easily and whom his social worker believed to be adoptable, mother contends there was no clear and convincing evidence of his adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224 [social workers opinion of adoptability is evidence of adoptability].) Her contention requires her to paint as grim a picture of Ismael as possible. The paintbrush she uses is a psychological report about him prepared for the termination hearing. It stated he had a number of disorders affecting behavior, such as attention deficit hyperactivity, obsessive compulsive tendencies, and posttraumatic syndrome that contributed to temper tantrums, bedwetting, impatience, and fighting with other children. In addition, he suffered reading and language delays. The report recommended further counseling and medical evaluation to determine if physiological reasons caused his problems or were treatable with psychotropic medication.

In light of the reports diagnoses, mother predicts Paulette will waver in her willingness to adopt Ismael. The prediction is unpersuasive because Paulette has reared Ismael since he was three months old, and thus the report likely does not tell her anything she does not know about Ismaels behavior; the report instead merely labeled it. Mother also dismisses Paulettes expressed desire to adopt Ismael as somehow false because Paulette had a long-standing relationship with him, as if to suggest the relationship might weaken her resolve. To the contrary, the long-standing relationship likely cuts the other way, making her probably that more attached to Ismael and that much more informed about what adopting him entails. (See In re Jennilee T, supra, 3 Cal.App.4th at pp. 223-224 [social workers opinion that child generally adoptable because family expressed interest to adopt despite childs risk for developmental problems was substantial evidence that there was clear and convincing evidence of likelihood of adoption].)

Finally, mother contends Paulettes willingness to adopt Ismael is, without more, insufficient evidence of adoptability. That is not the law. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650 [existence of prospective family for otherwise unadoptable child may be relied upon as sole evidence of adoptability unless family legally barred from adopting].) Moreover, her authorities do not support her contention. She cites In re Amelia S., supra, 229 Cal.App.3d at page 1065, but the facts there bear no similarity to Ismael and Violets life with Paulette. Amelia S. involved ten children. The appellate court found the dependency court erred in finding clear and convincing evidence of adoptability of five children, when the foster parents of three of them were considering adoption, and the two sets of foster parents for the other two did not want to adopt at all. (Amelia S., at pp. 1062-1063.) And In re David H. (1995) 33 Cal.App.4th 368, also cited by mother, stands for the proposition that dependency authorities need not identify a specific prospective family for a child to be deemed adoptable the opposite of what we have here. (David, at p. 378.)

2. Sibling Exception Did Not Apply

Mother contends the court erred in terminating her parental rights because a statutory exception to adoption to preserve sibling relationships applied. Welfare and Institutions Code section 366.26, subdivision (c)(1)(E), provides for a childs placement short of adoption if termination of parental rights would be detrimental to the childs existing sibling ties. Mother contends Paulettes adoption of Violet and Ismael will interfere, and possibly end, their relationship with their now-adult siblings, Victor and Desire.

Our Supreme Court explained in In re Celine R. (2003) 31 Cal.4th 45, that 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. (Id. at p. 61.) For a court to find the sibling exception applies, the relationship must be currently close and strong, such as one finds among children who grew up in the same house and shared common experiences. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) The exception applies only under compelling or exceptional circumstances. (In re Celine R., supra, 31 Cal.4th at pp. 53, 61.) Those circumstances do not exist here. Ismael has not lived with Victor or Desire since his detention at birth. Violet last lived with them in 1999, when she was four years old. The overnight visits at their Aunt Yolandas home during which the four children saw each other in the course of the dependency proceedings are not exceptional or compelling circumstances, and in any event stopped two years before the October 2006 termination hearing. Violet testified she liked visiting her siblings and missed not seeing them but whatever the pleasure or sadness connected to those visits and their end, they are not exceptional circumstances that justify blocking Paulettes adoption of the children. (In re L.Y.L., supra, at p. 952.) Mother thus fails to show the sibling exception to adoption applies.

3. Substantial Parental Relationship Exception

Mother contends the court erred in terminating her parental rights because Violet and Ismael will suffer a substantial detriment if she is no longer legally their mother. We disagree.

Mother cites the statutory exception to adoption when parent and child have had regular contact from which the child would benefit if continued into the future. (Welf. & Inst. Code,  366.26, subd (c)(1)(A).) The childrens benefit must be more than the good feelings that typically arise from warm interaction between a child and adult. Instead, the parent must play a parental role in the childs life. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Those conditions do not exist here. Mothers contact with the children was inconstant, with periods during which she did not see them at all because she was incarcerated. There were other unexplained absences in which she disappeared for months at a time. Moreover, the children did not want to see her because the visits upset them, and the department respected their wishes because mother undermined the childrens sense of well-being. (In re Amber M. (2002) 103 Cal.App.4th 681, 690 [quality of relationship is most important factor in analyzing exception].) Ismael viewed Paulette, the only caregiver he knew, as his mother. And although Violet had maintained contact with mother for several years after being detained, she broke off all contact after March 2006. Thus, by the time of the hearing to terminate parental rights, mother had not seen Violet in eight months and Ismael in two years. The statutory exception to adoption for a substantial parental relationship therefore did not apply.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

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[1] Violets father has since been deported to Mexico, and Ismaels father has died from a drug overdose.