In re Christian P.

Filed 5/1/07 In re Christian 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Michael Imhoff, Commissioner. Affirmed.

Keith P. appeals the judgment terminating his parental rights over Christian P. and William P. He contends the adoptability finding is unsupported by substantial evidence, the juvenile court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code,  366.26, subd. (c)(1)(A)) (statutory references are to the Welfare and Institutions Code unless otherwise specified), and the court violated his due process rights by terminating his parental rights absent clear and convincing evidence of his unfitness. We affirm.

BACKGROUND

Christian and William's mother, Tiffanie P., engaged in domestic violence with her boyfriend, Robert C. Tiffanie also consumed alcohol to excess. In June 2003, she was involved in an automobile accident while driving under the influence of alcohol. Christian and William were passengers in the car. Tiffanie was subsequently arrested and incarcerated. Accordingly, in July, when Christian was four years old and William was nearly three years old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions.

The children were detained at Polinsky Children's Center and later placed in a foster home. In April 2004, they were moved to another foster home. In September, they were moved to a new foster home. By August 2005, they were living in separate foster homes. In November or December, they were moved to a prospective adoptive home. According to the social worker, this was the children's eighth placement.

The section 366.26 hearing took place in September and October 2006.

ADOPTABILITY

"The issue of adoptability posed in a section 366.26 hearing 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, italics omitted.) "[A] prospective adoptive parent's 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." (Id. at p. 1650, italics omitted.) An adoptability finding does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' [Citations.]" (Id. at p. 1649.) "All that is required is clear and convincing evidence . . . that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406, citing In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) The Agency bore the burden of proof on this issue. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) Here, there is substantial evidence supporting the adoptability finding. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re J.I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

At the time of the section 366.26 hearing, Christian was eight years old and William was six years old. Keith asserts that they "are older children with significant psychological and behavioral problems." While psychological and behavioral problems, as well as age in children make it more difficult to find adoptive homes, they do not necessarily preclude an adoptability finding. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Jennilee T., supra, 3 Cal.App.4th at pp. 224-225.)

A September 2005 psychological evaluation noted that Christian suffered from enuresis, engaged in destructive behavior at times, lied and had poor hygiene. The evaluation further stated that her "significant behavioral problems . . . impacted her psychological development," and were apparently the result of "past family dysfunction, chaos, and child neglect." The psychologist noted, however, that Christian was articulate, engaging and capable of bonding. He recommended that she participate in mental health services to ameliorate her behavioral issues, and believed that her prognosis was "fair to good" because she was "bright, quick-witted, and intelligent."

William also had a psychological evaluation in September 2005. The psychologist found him engaging, and although he was easily distracted, he was amenable to redirection. He had academic delays, which needed to be addressed by his teacher, but was eager to learn. He was not exhibiting any significant emotional or behavioral problems, and was "a resilient child who ha[d] rebounded from the potentially lasting and harmful effects of family dysfunction primarily due to his young age." Like Christian, he was capable of bonding. The psychologist believed that William needed "a loving, nurturing, and stable home environment where he can feel safe" in order to avoid the risk of "developing serious behavioral problems . . . ."

By the time the section 366.26 hearing concluded, Christian and William had been in their prospective adoptive home for approximately 10 months. They were doing well there and appeared to be very attached to their caregivers. Both children reported that they were happy and expressed a desire to be adopted. The caregivers had completed their home study and remained committed to adopting. They acted as advocates for the children's educational, social and emotional needs. They participated in family therapy, worked closely with William's teacher and took William for a developmental evaluation. In addition to the prospective adoptive family, the Agency had identified seven families with completed home studies who "would consider adopting children like William and Christian." Keith argues it is unclear if these seven homes would be willing to adopt the children individually or as a sibling set. In the former case, however, the social worker would have said that they "would consider adopting a child like William or Christian."

Section 366.22, subdivision (b)(5) provides that the adoption assessment shall include "a statement from the child concerning placement and the adoption . . . , unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." Citing section 366.22, subdivision (b), Keith argues the social worker "spoke to the caregivers who implied the children wished to be adopted" but "apparently failed to talk to the children directly" and "failed to verify their true wishes . . . ." Construing the record in the light most favorable to the judgment (In re Josue G., supra, 106 Cal.App.4th at p. 732; In re J.I., supra, 108 Cal.App.4th at p. 911), it does not show that the social worker "failed to talk to the children directly" or "failed to verify their true wishes." The social worker's reports reflect statements by the children with no indication the statements were made through an intermediary. Furthermore, on September 1, 2006, the social worker testified that he talked to Christian at "[t]he last court date," which was in August.

Keith also notes that the court incorrectly referred to Christian's "fetal-alcohol affective disorder diagnosis," using the pronoun "his." This is evidently a misstatement. The children's younger brother, Devin, had fetal alcohol syndrome, and the court found that he was adoptable at the same time it found that Christian and William were adoptable. This in no way impairs the adoptability finding as to Christian.

Finally, the cases on which Keith relies are inapposite. In In re Jayson T. (2002) 97 Cal.App.4th 75, disapproved on another ground by In re Zeth S., supra, 31 Cal.4th at pages 413 to 414, the reviewing court reversed a judgment terminating parental rights where the adoptability finding was based solely on the foster parents' desire to adopt and the adoptive placement failed while the appeal was pending. (In re Jayson T., supra, at pp. 77, 83, 90-91.) In In re Asia L. (2003) 107 Cal.App.4th 498, the reviewing court reversed a judgment terminating parental rights where the foster parents were not committed to adopting and there was no evidence that there were approved families willing to adopt children with the various problems faced by the three children at issue. (Id. at pp. 503-504, 510-512.) In the instant case, the foster parents were committed to adopting, and there were seven other families with completed home studies who would consider adopting children like Christian and William.

The juvenile court did not err by finding Christian and William adoptable.

THE BENEFICIAL RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but 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)(A).) A beneficial relationship is one that "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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.) The existence of a beneficial relationship is determined, in part, by "[t]he 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 . . . ." (Id. at p. 576.)

Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the finding that Keith failed to meet his burden of showing regular visitation and contact and a beneficial relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

By the time of the section 366.26 hearing, eight-year-old Christian and six-year-old William had not lived with Keith in approximately four years. Keith had not visited them in approximately one and one-half years. He had not talked with them in approximately eight months. He claimed that since January 2006, the time of their last telephone conversation, he had tried to contact the children, but his calls were not returned. He did not mention this to the social worker until the week before the September hearing, however, a delay of approximately eight months.

William was not sure who his father was. At times Christian said that she wanted to live with her father, but she also expressed a desire to live in a zoo, with her grandmother and with her prospective adoptive parents. Christian and William had been in their prospective adoptive home for approximately 10 months. They were doing well in that positive and nurturing environment and appeared eager to be adopted. They referred to their caregivers as their parents and sought them out for comfort and security.

The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(A).

DUE PROCESS

Keith contends the court violated his due process rights by terminating his parental rights absent clear and convincing evidence of his unfitness.

The cases on which Keith relies are inapposite. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528 [termination of parental rights pursuant to Fam. Code,  7825]; In re Isayah C. (2004) 118 Cal.App.4th 684 [placement at dispositional hearing]; In re Johnny S. (1995) 40 Cal.App.4th 969 [placement at dispositional hearing].) Furthermore, the California Supreme Court has rejected Keith's argument:

"By the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer 'reason to believe that positive, nurturing parent-child relationships exist' [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. At this point, . . . it has become clear 'that the natural parent cannot or will not provide a normal home for the child' [citation], and the state's interest in finding the child a permanent alternate home is fully realized. In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness . . . . [] Considered in the context of the entire process for terminating parental rights under the dependency statutes, the procedure specified in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment . . . ." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)

At the beginning of this case, although Keith was a non-offending parent, by his own admission he was not ready to assume custody of the children. When he decided that he was ready, his home in Georgia was evaluated pursuant to the Interstate Compact on the Placement of Children (ICPC) (Fam.Code, 7900 et seq.). The evaluation was unfavorable for various reasons, including Keith's drug abuse history. The Department of Family and Children Services (the Department) in the county where Keith lived refused requests to re-evaluate his home until he met certain conditions, including at least six months of clean drug tests. After he tested positive for marijuana, the Department declined to re-evaluate the home. This court has already held that a favorable ICPC evaluation was required for placement, and the juvenile court did not err by failing to place Christian and William with Keith at the 18-month review hearing.

There was no due process violation.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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