In re Destiny C.

Filed 5/9/07 In re Destiny C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Nicole C. (mother) appeals from an order terminating her parental rights to her twin daughters Destiny and Jasmine C. (Welf. & Inst. Code,  366.26.)[1] She contends: (1) the eligibility of the childrens guardians as prospective adoptive parents had not been adequately assessed because respondent San Francisco Department of Human Services (DHS) did not comply with the Interstate Compact on the Placement of Children (ICPC) before the girls moved from California to Texas with their guardians and prospective adoptive parents; (2) the evidence was insufficient to prove the children were adoptable; (3) termination of parental rights was detrimental to the children because it would interfere with sibling relationships; and (4) the trial court abused its discretion in denying mothers section 388 motion seeking additional reunification services and erroneously precluded mother from eliciting evidence of the childrens best interests for purposes of that motion. We affirm.

BACKGROUND

Mother gave birth to Destiny and Jasmine in September 2002. In April 2004, DHS filed a petition to declare them dependents under section 300, subdivision (b), after they were discovered to be malnourished, dirty and ill with diarrhea after being left in respite care without adequate clothing or diapers. The petition also named the twins half-sister D.C., who was then six years old. D.C. and her brother T.C. had been removed from mothers custody in an earlier proceeding, but mother had reunified with D.C.

The court sustained the petitions in July 2004 and mother was given a reunification plan which included components of residential drug treatment, counseling and supervised visitation. The twins and D.C. were initially placed in the home of their maternal great-aunt, Bernadette M., where they gained weight and their medical condition improved. In July 2004, Bernadette informed DHS that she would be unable to care for the twins after July 31, and the twins were moved to the home of Juliana and Victor M., who were the aunt and uncle of the alleged father. Mother visited the twins at the same time she visited D.C. at Bernadettes house, with Bernadette supervising these visits.

Mother made minimal progress on her reunification plan, and services were terminated after a six-month review hearing held in April 2005.[2] A permanency planning hearing under section 366.26 was held in August 2005, at which time the juvenile court followedDHSs recommendations and placedthe twins in a guardianship with Juliana and Victor. The social worker believed the twins were well cared for and had bonded with Julianna and Victor, but the caretakersdid not wish to adopt the twins because they believedmother would be able to regain custody one day. The court therefore found that terminating parental rights would be detrimental because the twins were living with a relative or foster parent who was unable or unwilling to adopt because of exceptional circumstances. ( 366.26, subd. (c)(1)(D).) It ordered that the twins be placed with Juliana and Victor under a guardianship and terminated the dependency.

Mother stopped visiting the twins in September 2005, after she had an argument with Bernadette. According to mother, Bernadette became upset because mother was playing too loudly with the children on one of the visits. According to Bernadette, she reproached mother after mother told the twins to call her boyfriend daddy. The twins continued to visit with D.C. and T.C.

In December 2005, Juliana contacted DHS to inform them that her family was moving to Texas and that she and Victor now wanted to adopt the girls. Mother had not contacted the twins for several months, and the twins were bonded with the family. In January 2006, DHS filed a petition under section 388 to reinstate dependency proceedings and hold a new permanency planning hearing under section 366.26. DHS noted in its status review report for the hearing that it would ordinarily require the guardians to complete a home study before making this request, but it wanted to reestablish the dependency before the familys move so it could ask the Texas authorities to complete a study of the adoptive home in that state under the ICPC. Juliana and Victor moved to Texas with the twins and the rest of their family on January 29, 2006. The court reinstated the dependency and on February 1, 2006, DHS prepared an ICPC Placement Request.

In May 2006, DHS filed a section 366.26 hearing report recommending adoption as the permanent plan. The report noted that the twins were lovingly cared for, but had regressed in their toilet training and sometimes threw tantrums following the relocation to Texas. In addition to the twins, the family included a seven-year-old biological child, two adopted children ages two and nine, and two children subject to a guardianship, ages twelve and seventeen. Juliana and Victor were previously certified as foster parents and DHS was confident the adoption home study would be completed and accepted. The social services agency in Texas had assigned a social worker to the case, but it would not begin the adoptive home study until parental rights had been terminated, which practice DHS identified as standard with such cases in which adoption is the case plan.

Meanwhile, mother contacted DHS and received permission to make telephone calls to the twins. These calls were reduced to one per month after Juliana reported that the twins behavior was disrupted by the calls. Mother did not follow through with the telephone contact she was allowed. The twins had some telephone contact with their half-brother T.C. after their move to Texas, but they did not have telephone contact with their half-sister D.C.

Mothers parental rights were terminated at a section 366.26 hearing which she did not attend. The court vacated this order and set a new hearing after mother filed a motion for reconsideration stating that she had not received notice of the hearing date. Mother then filed a section 388 petition asking that she be given an additional six months of reunification services. Her petition alleged that she was employed part-time, was studying to be a massage therapist, had obtained stable suitable housing, and planned to pursue an outpatient drug treatment program.

The court denied mothers motion for modification in August 2006 and issued a new order terminating her parental rights.

DISCUSSION

Compliance with ICPC

Mother argues that the order terminating parental rights should be reversed because DHS did not comply with the ICPC before allowing the twins to move to Texas with Juliana and Victor. We disagree.

The ICPC is an agreement entered into by California and other jurisdictions regulating the interstate placement of children. (Fam. Code,  7901.) It requires that one signatory state give notice to another [b]efore sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption. . . . (Id., art. 3, subd. (b).) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child. (Id., art. 3, subd. (d).)

Mother complains that DHS allowed the twins to move to Texas with their guardians before it received written notice from Texas that the placement was not contrary to their best interests. DHS aptly notes that the ICPC does not apply to [t]he sending or bringing of a child into a receiving state by his or her . . . guardian . . . . (Fam. Code, 7901, art. 8, subd. (a).) Moreover, it would have been impossible for the Texas authorities to conduct an evaluation of the guardians home before they moved to that state. The law does not require futile acts (Civ. Code,  3532), and it would surely have been futile for DHS to wait for approval of a home that was not yet in existence.

Mother contends that DHS forfeited the right to claim the ICPC did not apply when it reinstated the dependency for the specific purpose of obtaining an adoption home study from Texas under the compacts provisions. We are not persuaded. DHS reasonably concluded that Texas would be in a better position to conduct the home study once Juliana and Victor moved to Texas. Texas assigned a social worker to the case, although it advised DHS that no home study would be conducted until parental rights were terminated. Although DHS utilized the ICPC as a method of securing the cooperation of Texas, this does not mean it was required to follow the ICPCs prior notice provisions in a case where they did not apply.

Even if the ICPC did apply, reversal would not be required. Mothers complaint is that Texas did not approve of the placement before the minors moved to Texas. By the time of the section 366.26 hearing, however, a social worker had been assigned to the case in Texas and the placement had been approved.

Adoptability

The juvenile court may not terminate parental rights unless it finds by clear and convincing evidence that it is likely the child will be adopted. ( 366.26, subd. (c)(1).) Mother contends there was no substantial evidence supporting the finding of adoptability in this case. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.) We disagree.

When determining adoptability,  the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family.  (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) Our power to assess the sufficiency of the evidence  begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. [Citation.] (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

The evidence showed that at three and a half years old, Destiny and Jasmine present[ed] as adorable little girls who appear genuinely bonded with their caretakers. As described by [Juliana], the twins are seen as full members of their family. Their health is described as being generally good with no medical or developmental issues to report. Although they had regressed in their toilet training and required counseling after the move to Texas, they had been enrolled in Head Start at the time of the permanency planning hearing and appeared to be back on track. The guardians interest in adopting the twins after living with them for over two years was additional evidence that others would not be discouraged from adopting if for some reason the guardians were unable to do so. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400.)

Mother argues that the finding of adoptability was based solely on the guardians willingness to adopt, and that there was insufficient evidence of the twins suitability for adoption. There is nothing in the record to show that the guardians willingness was the only basis for finding the girls adoptable. In any event, it was reasonable for the court to conclude they were suitable parents when they had competently and lovingly cared for the twins for over two years, had been certified as foster parents, and had adopted other children.

In a related vein, mother contends the adoption assessment prepared by DHS was inadequate to apprise the court of the twins adoptability. We disagree. The assessment was not as detailed as some, but it described the adoptive parents and their relationship with the children. Mother complains that the report barely addressed the fact there were five other children in the home, including a two year-old child . . . and failed to provide information on the guardians ability to care for the twins, given their special needs and the number of other children in the home. The twins had lived with the guardians for a considerable period and were doing well in the home notwithstanding some behavioral issues. Substantial compliance with the assessment provisions are sufficient, and that standard was easily satisfied in this case. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)[3]

Sibling Relationship Exception

Mother contends that adoption would be detrimental to the twins because it would substantially interfere with their relationship with their half-siblings, D.C. and T.C., notwithstanding the guardians avowed intention to promote those relationships in the future. We disagree.

Adoption is the preferred permanent plan unless there is a compelling showing that the termination of parental rights would be detrimental to the child under one of five statutory exceptions. (In re Celine R. (2003) 31 Cal.4th 45, 49-50;  366.26, subd. (c)(1).) Under the sibling relationship exception, parental rights should not be terminated when [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)

In determining whether a child would be so harmed by terminating a sibling relationship that an adoption should not go forward and the permanent plan should be diverted to guardianship or long term foster care, the juvenile court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) We review a juvenile courts ruling under the deferential abuse of discretion standard and will reverse only if the court acted arbitrarily or capriciously when it determined that on balance, the child would benefit from adoption. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342, 1351.)

The evidence established that Destiny and Jasmine had lived with D.C. when they were very young and had visited her several times after they were placed with Juliana and Victor. The twins had visited T.C. as well, though they had never lived with him. There had been no face-to-face contact with either D.C. or T.C. since their move to Texas. The relationships between the half-siblings, while positive, was not so close that we can say the court abused its discretion when it determined that it did not outweigh the benefit of a secure, permanent placement in an adoptive home.

Mother compares the case to In re Naomi P. (2005) 132 Cal.App.4th 808, in which the juvenile court ordered a permanent plan of guardianship after finding that the sibling exception applied. (Id. at pp. 823-824.) The appellate court in that case concluded that substantial evidence supported this finding because the three-year-old childs visits with her three older siblings had been a constant thread in her life and the juvenile court had reasonably determined that continuing contact was important to her emotional well-being.[4] (Id. at p. 824.) The visits between the twins and their half-siblings in this case were more sporadic and there was no evidence suggesting the twins would suffer any harm outweighing the benefit of adoption if contact were not continued. The juvenile court reasonably concluded that mother did not carry her burden of proving that the severance of a sibling relationship would be detrimental to Destiny and Jasmine. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)

Section 388 Motion for Additional Reunification Services

Mother contends the trial court abused is discretion when it denied her motion under section 388 for an additional six months of reunification services. We disagree.

A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that new evidence or changed circumstances are presented and the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Section 388 provides an escape mechanism for a parent who, after reunification services are terminated, is in a better position to regain custody of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528-530.)

Mother filed her section 388 petition on August 7, 2006, after she learned that DHS was recommending that the permanent plan be changed to adoption. She requested additional reunification services based on the following facts: she was employed part time and was receiving government aid; she was studying massage therapy; she had not used marijuana or any other illegal substances since September 2005; she had started a two-week pre-treatment in an outpatient program for substance abuse prevention and would thereafter enter that six-month program; once when she spoke to the girls on the telephone, they cried and told her they wanted their mommy back.

The court denied the petition after a hearing, noting that while mothers circumstances were changing, they had not yet sufficiently changed, and there was no evidence suggesting that more services for mother would bein Destiny and Jasmines best interests. This was not an abuse of discretion. Mother had made no significant progress on her reunification plan during twelve months of services, and had virtually no contact with the twins after September 2005. At the time of the hearing on the section 388 petition, her economic situation was stabilizing, but she was just entering an outpatient drug program, having previously been ordered to complete a residential program but having failed to do so.[5] There was no showing that an additional six months of services would be in the twins best interests.

Mother complains that the court excluded evidence regarding the nature of her bond with the twins, which was relevant to their best interests. At the section 388 hearing, the court at first sustained an objection to questions about mothers visitation with the children. It later reconsidered this ruling, stating that testimony about visitation would be allowed, but that other questions going to bond . . . [were] still out of bounds. Mother does not explain what evidence, if any, was excluded as a result of this general statement or how that evidence would have changed the result of the proceeding. In general, a judgment may not be reversed for the erroneous exclusion of evidence unless the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means. [Citations.] (People v. Anderson (2001) 25 Cal.4th 543, 580, quoting Evid. Code,  354, subd. (a).)

DISPOSITION

The judgment (orders terminating parental rights and denying mothers motion under section 388) is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Parrilli, J.

_________________________

Siggins, J.

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[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Although denominated a six-month review hearing, this status review took place approximately twelve months after the filing of the dependency petition.

[3] DHS has filed a motion asking that we consider additional evidence or take judicial notice of a status review report that was filed after entry of the order terminating parental rights. This report notes that an adoptive home study was completed and approved in December 2006, information that DHS argues is relevant to refute mothers claims regarding noncompliance with the ICPC and proof of adoptability. It is unnecessary to consider this request in light of our rejection of mothers claims, and we therefore deny it as moot.

[4] Most published cases have applied a substantial evidence standard when reviewing the applicability of the sibling exception. (In re Naomi P., supra, 132 Cal.App.4th at p. 824; In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) For the reasons stated in In re Jasmine D., supra, 78 Cal.App.4th at p. 1342, 1351, which discussed the appropriate standard of review for the beneficial parental contact exception to adoption under section 366.26, subdivision (c)(1)(A), we believe the appropriate standard is abuse of discretion. Were we to apply a substantial evidence standard to the facts of this case, however, the result would be unchanged.

[5] Mother claims this was not a substance abuse case, but T.C. tested positive for drugs at birth and there was no evidence mother had dealt with her drug problem.