In re K.G.

Filed 6/4/07 In re K.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Ellen L. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Defendant and appellant Peggy S. (mother) is the mother of five young children^[1]who were made dependents of the juvenile court. Mothers parental rights were terminated, and she appeals, asserting that the findings of adoptability as to three of the children were not supported by the evidence. Mother further argues that the beneficial relationship exception or the sibling relationship exception should have applied to prevent termination of her parental rights. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2003, plaintiff and respondent Riverside County Department of Public Social Services (DPSS) received a report that the children were endangered, when Child 2, then three years old, wandered from the home and crossed a busy street. Mother left the other children unsupervised while she went out looking for Child 2. DPSS filed a dependency petition, alleging that mother had disabilities attributable to brain surgery, which impaired her ability to care for the children. Ronald H. (Ronald), father of some of the children, had previously refused voluntary family maintenance services. Ronald also suffered from mental illness and did not take his prescribed medications, which impaired his ability to care for the children.

Child 1, the oldest child, was residing with the maternal grandparents. Child 2, Child 3, and Child 4 remained placed with mother and Ronald. DPSS recommended providing family maintenance services for the parents. DPSS filed an amended petition in October 2003. The court declared that the children came within the dependency statute, assumed jurisdiction, and ordered all four children placed directly with mother, under family maintenance services, until the next hearing.

In March 2004, DPSS filed a supplemental petition under Welfare and Institutions Code section 387, alleging that the previous disposition had been ineffective in alleviating the familys problems. Ronald continued to use controlled substances but failed to take his prescribed medications for paranoid schizophrenia. In addition, the family had lost their apartment and currently were homeless.

While the dependency was proceeding, mother had become pregnant again and gave birth to Child 5. DPSS filed a new original dependency petition on behalf of Child 5 in March 2004. The juvenile court detained Child 5 and ordered her into an appropriate placement selected by DPSS. As to the supplemental petition, the court also ordered the other children removed from parental custody and placed with DPSS.

Child 1, Child 2, and Child 5 were placed together in one placement; Child 3 and Child 4 were placed together in a different home. Later, Child 5, the newborn, was moved to a separate placement.

The court ordered a psychological evaluation for mother, so that services could be appropriately tailored to her needs. The report indicated that mother suffered from mild mental retardation and that she had a dependent personality disorder. Mothers cognitive functioning was on the level of an eight- or nine-year-old child, and mother was not able to benefit from services, either now or in the future.

In May 2004, the court found true all the allegations in the supplemental petition as to the older children, as well as the allegations of the original petition for Child 5. The court ordered reunification services for mother but denied them to Ronald. DPSS submitted a service plan for mother, which included mental health counseling, domestic violence counseling, and parenting classes.

At the six-month review, mothers progress was incomplete. The court ordered further reunification services. At a further 12-month review, in July 2005, the court found that DPSS had not made reasonable efforts to finalize the permanent plan for all the children and ordered mothers reunification services extended an additional six months.

At the 18-month review, in a report prepared in January 2006, DPSS recommended terminating reunification services. All of the children except Child 1 had adoption as their permanent plan. Since the last hearing, Child 1 had been moved to a new placement, separate from his siblings. DPSS also reported that a four-day visit with mother over the Christmas holiday had gone very badly. All the children were traumatized from the visit. Ronald had also evidently been present the whole time, even though the court had ordered in March 2004 that placement with mother was to be on condition that Ronald not reside in the home.

On April 3, 2006, the court terminated mothers reunification services and set a selection and implementation hearing. DPSS submitted a permanency plan report in July 2006, recommending adoption for Child 3 and Child 4, who had remained placed together. In an addendum report in November 2006, DPSS further recommended adoption as the permanent plan for Child 1 and Child 5. DPSS needed more time to prepare an adoption home study as to Child 2.

The contested selection and implementation hearing took place in November 2006; the court terminated mothers parental rights as to Child 1, Child 3, Child 4, and Child 5.

Mother appeals from the termination order.

ANALYSIS

I. The Evidence Was Sufficient to Support Findings of Adoptability

Mother first argues that the order terminating her parental rights should be reversed, because the evidence was insufficient to support the juvenile courts predicate findings that Child 1, Child 3, and Child 4 were adoptable.

Child 1, the oldest, displayed aggressive behavior and had been moved to a separate foster home from Child 2 because of behavior problems. Child 1 also had some issues with sexual acting out. He appeared to have an attention or hyperactivity disorder, and he had academic and social problems in school.

Child 3 and Child 4, who were placed together, had similar difficulties, including aggressive behavior, inattentiveness, and other issues. These two children were evaluated by a psychologist, who concluded that each had an attachment disorder and suffered from posttraumatic stress disorder.

Mother argues that, because these children would require long-term care for their special needs, the court erred in finding that they were adoptable.

While the juvenile court must make its finding of adoptability by clear and convincing evidence (In re David H. (1995) 33 Cal.App.4th 368, 378), on appeal we review the juvenile courts determination under the substantial evidence standard. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523.)

In making the determination whether a child is likely to be adopted, the juvenile court must focus on the child and whether the childs age, physical condition, and emotional state may make it difficult to find a person willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) As mother acknowledges, [u]sually, 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. (Id. at pp. 1649-1650.)

In addition, however, the factors relating to the children themselves militate in favor of a finding of adoptability. The children were of a relatively young age, ages nine, five, and four, respectively, at the time of the termination hearing. They are physically healthy and active. The behavioral problems they suffer are attributable to the instability of mothers home and Ronalds violent behavior. One way to address the problem is to give the children a permanent, stable home. (See In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1438 [[a]lthough [the childrens] behavioral problems could make placement difficult, the social worker believed that a stable adoptive home might be the way to address those problems].) We believe the evidence was sufficient to support a finding of probability of adoption.

In re Asia L. (2003) 107 Cal.App.4th 498, on which mother relies, is distinguishable. There, the childrens behaviors were more severely maladaptive than the children here. Also, there was no identified prospective adoptive parent for any of the three children in Asia L., so the case was lacking the evidence, found here, that a prospective adoptive parent was willing to adopt. Here, the childrens various problems have improved in their placements with their prospective adoptive parents. Asia L. does not support mothers contention that the children here were not adoptable.

II. The Beneficial Relationship Exception Did Not Apply

If the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of five specified exceptions. [Citations.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) One such exception is the beneficial relationship exception. Welfare and Institutions Code section 366.26, subdivision (c)(1) provides that the court shall terminate parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance[]: (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

We review the courts finding that the beneficial relationship exception did not apply under the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

A finding that the beneficial relationship exception applies connotes that the 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. In other words, the 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 parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)

There was no evidence of such a beneficial attachment here. Child 3 and Child 4 were often aggressive after returning from visits with mother, and Child 3 became so upset at one point that he clung to his teacher and did not want to go to the visit. Eventually, visitation with Child 3 and Child 4 had to be suspended.

In some of the visits, mothers interaction with the children was very limited. On one visit, mother did not initiate any hugs or kisses with the children and appeared to ignore the baby, Child 5. This mirrored mothers behavior when she had custody of the children: While mother and Ronald were staying with his relatives, it was reported that mother and Ronald were watching TV and the one and two year old[s were] in the car. The newborn infant was lying on the mattress crying and neither [Ronald] nor [mother] bothered to check on the child.

Mother argues that her case was unfairly influenced by the actions of the childrens father, but there was nothing at all unfair about that influence. Mother continued to bring Ronald to the visitations, even though he was restricted from visiting the children. Mother consistently displayed poor judgment by allowing [Ronald] to harass the social worker and behave erratically in front of her children. In addition she has also yelled and cussed out the social worker in front of her children with threats of violence to the staff causing the children to cry and cling to the social worker.

Severing the parental relationship here would not deprive the children of any substantial, positive emotional attachment and certainly none to outweigh the benefits to be gained from adoption. The beneficial relationship exception did not apply.

III. The Sibling Relationship Exception Did Not Apply

Welfare and Institutions Code section 366.26, subdivision (c)(1)(E) provides an additional exception to termination of parental rights, if the court finds that [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.

As before, we review the juvenile courts determination for substantial evidence.

The parent seeking to establish this exception has a heavy burden. There must be a compelling reason to conclude that termination of parental rights would be detrimental to the child because of a sibling relationship. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)

Here, Child 1 had been living with the maternal grandmother at the time the dependency began, not in the home with the other siblings. Child 2 was three years old, Child 3 was 22 months old, and Child 4 was eight months old when the dependency began. Child 3 and Child 4 were not yet talking at the time they stopped living in the same household. Child 1 and Child 2 were initially placed together, but Child 1 was disruptive and did not get along with Child 2 and had to be moved. Child 5 was taken into custody almost since she was born, and she was placed separately from the other children. Only Child 3 and Child 4 remained placed together, and they were to be adopted together.

There was little common bond of shared experience, as the children were quite young when they were removed from parental care. The only siblings with significant shared experience were Child 3 and Child 4, who remained together. Child 5 had no experiences in common, aside from visitation.

The stability and legal permanence of adoption far outweighed any marginal benefit from sibling contact with their siblings who did not share the same home. Mother failed to carry her burden of showing a compelling reason or any substantial detriment to the childrens sibling relationships if her parental rights were terminated. The sibling relationship exception did not apply.

DISPOSITION

The order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1]To protect the childrens privacy, their distinctive names are not used. We cannot substitute initials, however, because some of the children have the same initials. We therefore refer to them as Child 1, Child 2, Child 3, Child 4, and Child 5, respectively, in chronological age from oldest to youngest.