In re M.D.

Filed 10/25/06 In re M.D. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

M.D.’s father appeals the termination of his parental rights. He argues that there was no substantial evidence to support the juvenile court’s findings that (1) M.D. was adoptable and (2) her adoption is more beneficial for her than continued relationships with Father and an adult half brother. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2001, when M.D. was two years old, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition on her behalf pursuant to Welfare and Institutions Code section 300, subdivision (b).^[1] M.D. and her then six-year-old brother Martin were removed from their parents’ custody and placed in a foster home. In September 2001, following a no contest plea to an amended petition, the court found true allegations that her parents had a history of and ongoing problem with mutual domestic violence, that her Mother had a history of mental illness that potentially interfered with her ability to provide care for M.D., and that the family home was hazardous and M.D. was once found wandering outside the home.

At a dispositional hearing in November 2001, M.D. was adjudged a dependent child and removed from her parents’ care pursuant to section 361, subdivision (c)(1). The court ordered visitation at a minimum of one hour twice a month, to be extended into unsupervised overnight visits.

At the six-month review in February 2002, the court ordered family reunification services and twice monthly visitation.^[2] After an incident of domestic violence occurred in front of the children, the Bureau recommended terminating reunification efforts and setting a hearing pursuant to section 366.26. But the court continued reunification services and supervised visitation.

At the 18-month hearing, the court found that a section 366.26 hearing was not in the children’s best interests at that time, and that the children were not adoptable. The parents were then divorcing, and neither was able to care for the children. The court ordered long-term foster care.

In May 2003, Father sought to modify the court order and filed a section 388 petition seeking return of the children to his home. The social worker recommended the return of M.D.’s brother Martin, with family maintenance services. The Bureau was then investigating allegations regarding Martin’s inappropriate sexual behavior toward M.D., who remained in long-term foster care.^[3] Father withdrew his section 388 petition. At a May 2004 review hearing, the court ordered a section 366.26 hearing for M.D.^[4] The social worker recommended guardianship as the permanent plan.

In September 2004, M.D.’s foster mother since March 2002 was appointed her legal guardian.^[5] In July 2005, a social worker reported that M.D. was doing well, and that the guardian’s daughter and son-in-law were interested in adopting her.^[6] Father objected to the guardian’s proposed move out of the county, and the court reduced Father’s visitation to once every two months.

In November 2005, the Bureau recommended termination of parental rights, and identified the guardian’s daughter and son-in-law as M.D.’s prospective adoptive parents. The social worker’s report noted Father visited every two months, but that M.D. recently said she did not want to see her father any more. She said she was uncomfortable around him and afraid of him. The court set a hearing pursuant to section 366.26.

The report prepared for the section 366.26 hearing stated that the guardian’s daughter and son-in-law were committed to adopting M.D., and that the guardian was “willing and able to adopt [M.D.] if something unforeseen arises.” At the April 2006 hearing, the social worker testified that M.D. lived with her prospective adoptive parents since August 2005, and had not seen her father since she stated she no longer wanted to visit with him. Father testified his visits with M.D. went fine, and she was never uncomfortable with him. He felt connected to her and did not want their relationship to end.

The court found M.D. was adoptable, and that her relationships with her father and her half-brother Mario did not outweigh the benefits of adoption for her. The court terminated Father’s parental rights, and he timely appealed.

DISCUSSION

To terminate parental rights pursuant to section 366.26, the juvenile court must find by clear and convincing evidence that it is likely the dependent child will be adopted. (Subd. (c)(1).) We determine whether there is substantial evidence to support the trial court’s findings. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510; In re Brian P. (2002) 99 Cal.App.4th 616, 619-620].) “We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) The burden is on appellant to demonstrate there is no substantial evidence to support the court’s findings. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

“Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s 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 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. [Citation.]”^[7] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650; accord, In re Asia L., supra, 107 Cal.App.4th at p. 510.)

Unlike the cases cited by appellant, the court here did not rely solely on the social worker’s opinion that M.D. was adoptable. The record shows that the daughter of M.D.’s guardian planned to adopt her, and in the unlikely event that did not happen, the guardian was “willing and able” to do so. (Cf. In re Brian P., supra, 99 Cal.App.4th at pp. 621, fn. 2, 624 [social worker testified the agency did not currently have an adoptive home]; In re Kristin W. (1990) 222 Cal.App.3d 234, 253 [social worker had not discussed adoption with the foster parents].) Both the guardian and her daughter knew M.D. and were aware of her age, physical condition, and emotional state. M.D. lived with her guardian for approximately three and a half years, and with her guardian’s daughter for more than six months.^[8] This was substantial evidence to support the trial court’s finding that M.D. was likely to be adopted. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400; see also In re Sarah M., supra, 22 Cal.App.4th at p. 1651 [foster mother’s willingness to adopt them supported the determination that the minors were likely to be adopted within a reasonable time]; cf. In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 [assessment report did not consider minor’s close relationship with his mother or his prosthetic eye, and failed to address prospective adoptive parent’s criminal and child protective services history as required by statute].)

The court’s earlier finding that M.D. was not adoptable is not determinative. The record shows that M.D.’s behavioral problems greatly improved, and both the guardian’s daughter and the guardian were prepared to adopt her.^[9] (Cf. In re Jayson T. (2002) 97 Cal.App.4th 75, 78, 81-82, 90-91 [remanding for updated review hearing on adoptability, an issue not litigated in the original juvenile court proceeding, after prospective adoptive parents returned minors to a children’s home because one child suffered from reactive attachment disorder], disapproved in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

Even if M.D. was adoptable, Father claims statutory exceptions to termination of parental rights apply (1) when a parent has maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship; or (2) when a child’s interest in preserving a sibling bond outweighs the benefits of adoption. (§ 366.26, subd. (c)(1)(A), (c)(1)(E).) Substantial evidence supports the juvenile court’s findings that Father failed to prove that either exception applies in this case. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345 [burden is on parent to prove exception applies]; accord, In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re L. Y. L., supra, 101 Cal.App.4th at p. 947.)

Father argues that when permitted he visited regularly with M.D., and that he maintained a parental relationship.^[10] He contends he was more than a friendly adult visitor, and that “[M.D.]’s recent lack of desire to visit with [him] does not necessitate a finding that the relationship was not a ‘parental’ one.” But he cites no significant evidence or authority to support this argument. The juvenile court also concluded that the parental relationship with Father did not outweigh the benefits of adoption, and had evidence that M.D. did not want to see her father. The evidence of M.D.’s preference not to see her father, coupled with her improvement and emotional attachment to her guardian, may not “necessitate” a finding that her relationship with her father was not parental, but it is enough to support such a finding.

M.D. was not yet three years old when she was removed from Father’s care, and spent the last four years with her guardian and her guardian’s family, with whom she was thriving. The court did not abuse its discretion when it concluded that “the benefits from a stable and permanent home provided by adoption outweigh[ed] the benefits from a continued parent/child relationship” (In re Zachary G. (1999) 77 Cal.App.4th 799, 811), and that termination of Father’s rights would not “deprive [M.D.] of a substantial, positive emotional attachment such that the child would be greatly harmed . . . .” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re L. Y. L., supra, 101 Cal.App.4th at p. 953; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 [exception “must be considered in view of the legislative preference for adoption when reunification efforts have failed”]; cf. In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [social worker was “the only dissenting voice among the experts” who testified to the strong bond between child, who had been in mother’s care for most of her life, and mother, who “was devoted to [her children] and did virtually all that was asked of her to regain custody”].)

The court also determined that a significant bond between M.D. and her 18-year-old half brother Mario, whom she knew little about, was unproven, and that whatever bond existed between them did not outweigh the benefits of adoption. Father argues M.D. had “an ongoing close and strong bond” with Mario, but the record shows otherwise. Although Mother testified that Mario lived with her and M.D. for an unspecified period after M.D. was born, and that they celebrated some holidays together, there was little evidence of an ongoing or close relationship.^[11] The evidence shows that M.D. remembered Mario when he accompanied Mother on a February 2006 visit, and was excited to see him, but does not demonstrate a bond of sufficient import to outweigh the benefits of adoption.^[12] No abuse of discretion has been shown. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352.)

DISPOSITION

The orders of the trial court are affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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

^[2] The social worker initially recommended returning the children to their parents with family maintenance services. The recommendation was changed to family reunification after the social worker learned of a recent incident when Mother slapped Martin when she could not stop him from hitting M.D.

^[3] In July 2003, the court ordered no contact between M.D. and Martin.

^[4] With regard to the prospects of returning the children to their parents, the social worker’s report stated that neither parent is “able or willing to understand the destructive relationship between Martin and [M.D.] Their denial places both children, especially [M.D.,] at risk.” Father appealed the court’s decision to continue jurisdiction as to Martin. In March 2005, this court dismissed the appeal as moot, because the juvenile court had subsequently set a permanency planning review hearing and father had failed to seek writ review of the later order. Martin is not a subject of the current appeal.

^[5] The foster mother apparently did not want to adopt M.D. at that time.

^[6] M.D. had reportedly known the guardian’s daughter and her family for four years, and had become particularly close to them during the previous year. M.D. was excited about being adopted by them. Both the guardian and her daughter’s family planned to move out of the county at the beginning of August, and all parties had been notified of the proposed move. Father continued to visit M.D. monthly, with supervision, at the Bureau office.

^[7] “The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P., supra, 99 Cal.App.4th at p. 624.)

^[8] Father concedes that “[M.D.] was thriving in the home of her guardian.” The social worker’s report stated: “The prospective adoptive parents live on the same road as the legal guardian; thus [M.D.] will continue to have contact with her legal guardian, whom she refers to as her ‘grandmom.’ [M.D.] refers to her prospective adoptive parents as ‘mom’ and dad.’ . . . The prospective adoptive parents are in the beginning stages of their home study, however the initial background check has revealed no criminal or child abuse history. Given the fact that they have previously adopted, it is anticipated that their adoptive home study will be favorable.”

^[9] In June 2003, when M.D. was four years old, her therapist observed “symptoms of reactive detachment disorder, probably due mostly to too many changes in primary caregiver.” But in April 2006, when the court terminated parental rights, the social worker testified M.D.’s behavioral problems were a thing of the past, and the record indicated M.D. was flourishing in the care of her long-term guardian and her family. Under these circumstances, the apparent absence from the record of a formal adoption assessment report was not of critical significance. (Cf. In re Brian P., supra, 99 Cal.App.4th at pp. 624-625.)

^[10] The social worker also testified that Father visited M.D. on a regular basis until M.D. reported she did not want to see him, and visits were suspended.

^[11] M.D. did not recall ever living with Mario, and told the social worker she “[didn’t] know anything about him.” According to the report prepared for the October 2001 dispositional hearing, Mario’s father had custody of him. Subsequent reports indicated Mario lived separately from M.D.’s mother and father. In the report prepared for the March 2006 termination hearing, Mario was listed as residing with Mother. The juvenile court’s finding at the dispositional hearing that M.D. was part of a sibling group apparently referred to M.D.’s relationship with her brother Martin. M.D. had not seen or communicated with Martin since the court ordered no contact between them in July 2003.

^[12] The social worker’s report stated that “[M.D.] appeared to be relieved that Mario was at the visit, as she learned that he is living with her mother and taking care of her mother. It appears that this was an important visit for [M.D.] as she does care about her mother and it is important to her to know that her mother is okay. Since this visit [M.D.] has talked a great deal about Mario being at the visit and how he is taking care of her mother.”