In re A.C.

Filed 2/28/07 In re A.C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. Da Vanzo, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Appellant Javier C., a parent of. A. C. and R. C., appeals from the order terminating his parental rights under Welfare and Institutions Code section 366.26.[1] Javier contends the juvenile court erred in failing to apply the exception to adoption found in section 366.26, subdivision (c)(1)(D) for situations in which a relative caregiver, although unwilling to adopt, is willing to provide a permanent home for the child. The mother of the two children (Claudia R.) is not a party to this appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother had two children, J. M. (born in 2001) and A. S. (born in 1996). Her parental rights as to both children had been terminated. Mother had a long history of substance abuse. Appellant had a history of criminal convictions including inflicting corporal injury to a spouse/cohabitant and possession of a controlled substance.

Appellant, who was 33 years of age in 2005, and mother are the parents of A. C. who was born in January 2003. A. C. lived with appellant at the home of appellants parents. Appellants daily routine consisted of feeding A. C. before he left to work the graveyard shift until 6:30 a.m., when he came home to play with A. C. and then place her in day care. A. C. seemed attached to appellant.

On March 21, 2005, mother gave birth to R. C. Mother and R. C. tested positive for methamphetamine. The nurses observed that mother was not bonding with the child. Appellant denied paternity and stated that he was not willing to care for R. C., pending paternity test results. The social worker took R. C. into protective custody, while A. C. remained with appellant.

On March 23, 2005, the social worker went to the paternal grandparents home. Appellant stated he was thinking of giving A. C. to his parents. A. C.s grandmother stated she had cared for A. C. in the past and would continue to do so. A week earlier, appellant had begun to move out of his parents home.

On March 28, 2005, a dependency petition was filed with regard to A. C. and R. C. ( 300.)

At the initial hearing on March 28, 2005, mother and appellant appeared with counsel. Both children were detained. The juvenile court found appellant to be the presumed father of A. C. and ordered paternity testing to determine if appellant was R. C.s biological father. A. C. was placed with appellant. R. C. was detained in a shelter. The juvenile court gave the Department of Children and Family Service (DCFS) discretion to place R. C. with any approved and appropriate relative. Appellant was to receive reunification services. The paternal grandmother had informed the social worker that she was willing to care for A. C., whom she had cared for in the past. The paternal grandmother also had stated that appellant had gotten into trouble in the past and would disappear for days.

On April 11, 2005, the juvenile court heard DCFSs ex parte application requesting that A. C. be removed from appellants custody because subsequent to the last hearing, appellant had placed A. C. in danger by permitting her to stay with mother. The juvenile court placed A. C. with her paternal grandparents.

The April 20, 2005, jurisdiction/disposition report stated that appellant was currently living in San Pedro. He had informed the social worker that he did not believe he could provide care for A. C. because his work hours varied. Appellant requested his parents be given custody of A. C. The matter was continued.

The June 8, 2005, interim review report indicated A. C. continued to be placed with her paternal grandparents and R. C. was in foster care with another family.

On June 8, 2005, the jurisdiction/disposition hearing was held. Mother and father were represented by counsel, but they did not personally appear. Based upon the paternity testing, appellant was declared the biological father of R. C. Appellant had not been visiting A. C. nor had he been calling to inquire about her well-being. The juvenile court sustained the petition regarding mothers drug use and that the children had failed to reunify with siblings. ( 300, subds. (b), (j).) A. C. and R. C were declared dependents of the court. ( 300, subds. (b), (j).) The juvenile court denied reunification services for mother, but ordered appellant to receive them. Both parents were to receive parenting classes and monitored visitation. Additionally, mother was to receive other services. The children were to remain as placed.

In a November 1, 2005, permanent planning adoption assessment report, the social worker indicated that the paternal grandparents wanted to adopt A. C. and R. C. However, the grandfather had expressed concern about his abilities to care for R.C. by himself, while the paternal grandmother was at work.

On November 14, 2005, the paternal grandparents informed the social worker that they were still very interested in adopting both A. C. and R. C. It appears that prior to November 14, 2005, R. C. had been placed in the home of the paternal grandparents.

On December 7, 2005, the six-month status review report ( 366.21, subd. (e) & 366.22) showed that both parents were in custody, although appellant appeared for the hearing on that date. Appellant had been arrested in September 2005 for possession or purchase of cocaine for sale. Prior to his arrest, appellant had been attending parenting classes, although he had not completed the program. Also, while appellant had visited R. C., appellant had not visited A. C. Both A. C. (who was almost three) and R. C. were living with their paternal grandparents, who were willing to adopt them. The paternal grandparents told the social worker that in the beginning it had been difficult taking care of A. C., but he and his wife were happy to have both A. C. and R. C. in their home. Both children were adjusting. The social worker recommended reunification services for appellant be terminated. The matter was continued and set for a contested hearing.

On January 24, 2006, the juvenile court denied appellants request to extend services and appellants reunification services were terminated. The court continued the matter to May 23, 2006 for a section 366.26 permanency planning hearing for both children.

In February 2006, appellant was out of jail. He visited the two children two times during February and March. A. C. would cry when appellant left his parents home.

The adoption assessment report of May 23, 2006, showed that the paternal grandparents had been married for over 35 years. They were committed to adopting both children, with whom they had been involved since their birth. The grandparents wanted the family to raise the children, rather than others. The report further stated that although at times the grandparents had been uncertain as to the specific permanent plan they were willing to pursue, they have been unwavering in their commitment to provide these children with a safe, stable, and permanent home.

At the May 23, 2006, hearing mother and appellant were incarcerated.[2] Neither counsel requested that the paternal grandparents be ordered to appear at any future hearings. The matter was continued so appellant and mother could personally appear.

The home study was completed on July 17, 2006. The report stated there were no obvious impediments to adoption.

On July 18, 2006, a permanency planning hearing was held. ( 366.26.) Appellant and mother both personally appeared, with counsel. The social workers report stated that A. C. and R. C. were in a safe, stable, and loving environment in the paternal grandparents home. The report also stated that the children were doing well and that the paternal grandparents continued to meet the childrens physical, emotional and medical needs. Further, the paternal grandparents were happy to have A. C. and R. C. in their home and were willing to adopt them. The trial court found no exceptions to adoption applied. The juvenile court found clear and convincing evidence that A. C. and R. C. were adoptable and ordered that they remain in the home of the paternal grandparents. Mothers counsel stated that mother did not agree with the recommendation that parental rights be terminated and stated that mother did not wish her parental rights terminated or the children be placed for adoption. Appellants counsel joined in this objection and objected to the juvenile court going forward. The parental rights of both parents were terminated.

Appellant appealed from the order terminating his parental rights.

DISCUSSION

The exception to adoption in section 366.26, subdivision(c)(1)(D) does not apply.

Appellant does not challenge the finding that A. C. and R. C. are adoptable. Appellant also does not challenge the order that terminated reunification services. Rather, he contends his parental rights should not have been severed because the relative care-giver exception to adoption found in section 366.26, subdivision (c)(1)(D) applied. Appellant did not raise this issue below. Thus, there is a question as to whether or not he may raise it on appeal as the juvenile court does not have a sua sponte duty to determine whether an exception to adoption applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) In any event, this contention is not persuasive.

The Legislature has declared that adoption is the preferred permanent plan. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) It is well established that [i]f there is clear and convincing evidence that the child will be adopted, and there has been a previous determination that reunification services should be ended, termination of parental rights at the section 366.26 hearing is relatively automatic. [Citation.] (In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Adoption is not selected as the permanent plan only if the court finds that termination of parental rights would be detrimental to the child under one of the delineated exceptions ( 366.26, subd. (c)(1)). (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) One exception is when the relative or foster parent caretaker is unable or unwilling to adopt because of exceptional circumstances ( 366.26, subd. (c)(1)(D)).

Section 366.26, subdivision (c )(1)(D) reads in pertinent part:

(c)(1) If the court determines, . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:

[] . . . []

(D) The child is living with a relative, foster parent, or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include 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 and the removal of the child from the physical custody of his or her relative, foster parent, or Indian custodian would be detrimental to the emotional well-being of the child. . . .

This exception recognizes that it may be in the best interests of children to leave them in the home of family members who are committed to caring for them, but do not wish to adopt. Some courts discussing this exception have dealt with situations in which family-member caretakers have been coerced into adopting the children, rather than seeking placement in the home pursuant to this exception. (In re Fernando M. (2006) 138 Cal.App.4th 529; In re Rachel M., supra, 113 Cal.App.4th 1289.)

The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Derek W., supra, 73 Cal.App.4th at p. 826.) We review the juvenile courts decision for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Autumn H., supra, 27 Cal.App.4th at p. 576.)[3]

Appellant did not provide evidence that his parents were unable or unwilling to adopt A. C. and R. C. due to exceptional circumstances. ( 366.26, subd. (c)(1)(D).) Rather, the evidence indicated the grandparents were able and wanted to adopt the children and the adoption would be the ideal placement for them. The paternal grandparents always had been in the lives of A. C. and R. C. A. C. lived with her paternal grandparents prior to the DCFS becoming involved. In April 2005, when A. C. was a little over two years of age, she was placed with the grandparents by the juvenile court where she stayed. Sometime between June 8, 2005, and November 14, 2005, R. C. was placed with the paternal grandparents. The grandparents were committed to adopting both children, who were doing well in their home. And, there was no indication in the record that appellant or mother could provide for A. C. and R. C.

Appellant points to one statement in the November 1, 2005, permanent planning adoption assessment report and one statement in the May 23, 2006, adoption assessment report to argue the grandparents were unwilling to adopt. From these statements, appellant suggests his parents must have been coerced into the adoption decision. In the November 2005 statement, the grandfather expressed some concern as to his ability to care for R. C. while his wife, the paternal grandmother, was at work. In the May 2006 statement, the grandparents acknowledged that at times they had been uncertain as to the specific plan they wished to pursue, however, they were unwavering in their commitment to provide and care for the two children. These comments fail to show that the grandparents did not wish to adopt the children. Rather, they show a natural hesitancy by the grandparents to bring infants into their home, yet a growing commitment to them. They also demonstrate a desire and willingness to care for the children. Further, if there was any question as to the grandparents desire to adopt the children, it was eliminated by the time the parental rights of appellant and mother were terminated in July 2006. At that time the grandparents expressed a clear and unwavering desire to adopt R. C. and A. C. The grandparents were not coerced into the adoption decision. (See In re P.C. (2006) 137 Cal.App.4th 279, McDonald, J., conc. opn. [urging professionals in the juvenile court not to coerce caretakers into adoption].)

The section 366.26, subdivision (c )(1)(D) exception does not apply. (Compare with, In re Fernando M., supra, 138 Cal.App.4th 529 [special needs child is placed with his maternal grandmother who also cared for childs two siblings; neither the grandmother nor the grandfather wished to adopt; however, the grandmother was pressured into doing so by the social worker who had threatened to remove the child from her house].)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

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

[2] It appears that appellant was incarcerated off and on beginning in September 2005.

[3] Some courts review the trial courts decision for an abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Under either standard, we conclude there was no error.