In re Pauline H.

Filed 4/4/07 In re Pauline H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Pauline H. appeals from an order of the juvenile court terminating her parental rights to her daughter Pauline H. (born 2004) and selecting adoption as the permanent plan. (Welf. & Inst. Code, 366.26.)[1] She principally challenges the evidence supporting the juvenile courts finding that Pauline likely would be adopted and rejection of her evidence and argument that the case came with the exceptions to termination described by section 366.26, subdivisions (c)(1)(A) (no termination if termination would be detrimental to the child because the parents maintained regular visitation and the child could benefit from continuing the relationship), and (c)(1)(E) (no termination if there would be substantial interference with a sibling relationship). We affirm the order.

legal background

Section 366.26 sets forth the procedure for permanently terminating parental rights concerning a child who has been removed from parental custody and declared a dependent child of the juvenile court. The statute states that the court shall terminate parental rights if it determines . . . by a clear and convincing standard, that it is likely the child will be adopted. ( 366.26, subd. (c)(1).) If the court determines it is likely the child will be adopted, certain prior findings by the juvenile court (e.g., that returning the child to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the child) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court finds one of six specified circumstances in which termination would be detrimental. (Ibid.) The first of these circumstances states: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(A).) The fifth states: There 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. (Id., subd. (c)(1)(E).)

background

Appellant had a history of domestic violence and drug abuse that resulted in protective custody for two-month-old Pauline and her sisters Isabel (born 1990) and Breanna (born 1991).

We rely on and appreciate the juvenile courts oral decision, which includes a succinct summary of the evidence that is relevant at this stage of the proceedings.

The Court read and reviewed the [section] 366.26 report dated October 26th of 2005. There were three addendum reports which were previously admitted but which I also considered for the purposes of todays hearing, and those were January 3rd, 2006; February 6th, 2006; March 2nd, 2006; and March 6th, 2006. Then, in addition, there are two addendum reports of April 19th and May 17th, both of 2006, that are admitted into evidence.

The Court heard testimony from Sharon Jenkins, the supervising social worker. The Court acknowledged her expertise in assessing the permanent plans for dependent children. The Court heard testimony from [appellant].

The Court heard testimony from . . . the paternal grandmother of Pauline . . . . The Court heard testimony from Michael Gammino, the social worker from the District Attorneys office. The Court acknowledged his expertise in the assessment of placement of children as it relates to permanency.

At a [section] 366.26 hearing the first issue is whether it is likely that the child will be adopted. And in this matter its rather easy for the Court to make the finding that by clear and convincing evidence it is likely Pauline will be adopted. She is young and healthy and adorable and intelligent and developmentally on track, notwithstanding the mothers concerns about the asthma that Pauline has.

There is nothing that would prevent Pauline from being adopted. She is a good candidate for adoption, and the Court does find by clear and convincing evidence that she is likely to be adopted.

The burden then switches to the parents to prove the exceptions to adoption to the Court, and there are two exceptions that were brought up, [section] 366.26[, subdivisions] (c)(1)(A) and (c)(1)(E). Before I get to the analysis of each of those, I would indicate that generally at a [section] [366.]26 hearing how the parents are doing is not supposed to be an issue. The Court is not supposed to hear about that at all. It doesnt figure in the [section 366.]26 analysis.

But here we have Pauline, who is one of four siblings,^[[2]] and all the four siblings are on different tracks. The two older sisters are still in reunification. The baby brother is predisposition. And even with what the Court knows about this family and about the case, the circumstances of the siblings cases, the Court cannot, as I sit here today, predict what will happen with those children, Breanna and Isabel. The 18-month review is set off for some time.

Bryan, I believe we have arguments scheduled for later--in a couple of weeks. And in fact when Bryans case was set, Counsel asked this Court for an indicated ruling, and I indicated then, and still feel today, that I have no idea what I will rule on that. I am very open to the arguments, and I know counsel will all do a good job with those arguments.

I bring this up because the uncertainty in the siblings cases makes it tremendously difficult for this Court to consider the siblings cases in terms of my decision for Pauline, because their outcomes today are totally unknown to this Court. There are too many unknowns in the equation for me to actually consider what could happen with them. Say that again just to preface the comments for my analysis of the . . . exception[s].

The [subdivision] (c)(1)(A) exception has to do with the relationship between Pauline and her parents. The law indicates, and theres quite a bit of case law, that for the parents to prevail on the [subdivision] (c)(1)(A) exception, the Court must be able to find, first of all, that there has been consistent visitation and contact, and the Court does make that finding. The parents have visited consistently.

The Court must also find that the benefit to Pauline of maintaining the relationship with her parents outweighs the benefits of adoption. Again, there is quite a bit of case law that indicates--that informs this Court on how to assess that.

Case law indicates that the permanence achieved through adoption is very paramount in the equation, that it weighs quite heavily, that it is not easily outweighed. Case law indicates that the relationship the child must have with the parents for the parents to prevail on this exception, that relationship must be more than a friendly visitor relationship, it must be more than a--it has to be substantial. It has to be that the child looks to the parents to fulfill her needs, that she considers them as her parents.

In this situation we have a child who has been in the same home with her grandmother since three months old. Most of her life shes been with her grandmother, so its very difficult for this Court to find that she turns to the parents to get her needs met. It is difficult for the Court to believe that she considers her parents as her parents, because it is her grandmother who is her day-to-day caretaker.

The Court is going to find that the parents have not shown this Court that the benefits to adoption are outweighed by the benefits to maintaining the relationship, so the parents have not prevailed in the 366.26[, subdivision] (c)(1)(A) exception.

The Court now turns to the [subdivision] (c)(1)(E) exception, which is--which relates to siblings and the sibling relationship. And actually much of the trial was spent on this issue in particular, given that Pauline has been placed with her two siblings in the home of her grandmother, and they apparently share a very close sibling relationship. This was where the Court really had some--where the Court spent some time analyzing the relationship, and counsel all made very good arguments about this.

My introductory comments indicate that it was impossible for the Court to know whats going to happen with Breanna and Isabel. I have no idea if theyre going home to mom and dad together, to mom or dad separately. I have no idea if they will remain with their grandmother.

And I again bring that up because that has some bearing on whether there is interference with the sibling relationship. And we have a situation here where Pauline is with a relative, her grandmother. She is currently with her two sisters, and there is definitely a sibling bond there and a very strong relationship.

I would specifically indicate that I am not nearly as concerned about the relationship between Pauline and Bryan. Hes a newborn. They havent been raised together. Certainly they visit, but thats not the relationship Im concerned about.

The relationship I am concerned about is the one between Pauline and Breanna and Isabel. I cannot find that there is going to be any substantial interference with the relationship. I have a family with children who are, even if the children are returned to their parents, they will have a relationship with Pauline.

Counsel argued, and I believe this was counsel for the Department, argued also that we have teenagers who are very likely going to be leaving the nest soon, at some point, making their own way, either by going to college or being on their own, and I just cant find that the relationship--that there will be a substantial interference with the relationship between the siblings; therefore, the Court will find that the parents have not prevailed on the [section] 366.26[, subdivision] (c)(1)(E) exception.

adoptability

Appellant contends that no substantial evidence supports the juvenile courts likely-to-be-adopted finding. We disagree.

On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

The clear and convincing standard specified in section 366.26, subdivision (c)(1), is for the edification and guidance of the trial court and not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750; In re Heidi T. (1978) 87 Cal.App.3d 864, 871.) The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Crail v. Blakely, supra, 8 Cal.3d at p. 750.) Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears. . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 365, p. 415.)

In making the determination of 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 Erik P. (2002) 104 Cal.App.4th 395, 400.) A childs young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)

Here, as reflected in the juvenile courts remarks, the juvenile court focused on Paulines age, physical condition, and emotional state, and those factors unquestionably support a general adoptability finding. Thus, contrary to appellants argument, neither the suitability of the paternal grandmothers home nor the grandmothers supposed preference for guardianship over adoption was relevant to the question whether Pauline was adoptable. (In re T.S. (2003) 113 Cal.App.4th 1323, 1329; In re Jose V. (1996) 50 Cal.App.4th 1792, 1797, 1801.) [T]he courts task [was simply] to select the plan which best served [Paulines] interests. (In re Jose V., supra, 50 Cal.App.4th at p. 1801.)

Appellant nevertheless argues that Paulines asthma was chronic and rendered her a special-needs child, which constituted exceptional circumstances triggering the need to inquire into the suitability of the grandmother for purposes of adoptability. But this type of argument is patently insufficient. It is essentially a reargument of evidence that favors appellants version of adoptability rather than a focus on the evidence supporting the juvenile courts finding and an explanation why that evidence fails to constitute substantial evidence. It is sufficient to say that the severity of Paulines asthma was disputed and litigated. The juvenile court undoubtedly accepted Jenkinss testimony that Pauline had some breathing issues but nothing--nothing significant or hardly even worth mentioning over appellants testimony that Pauline has asthma really bad.

Appellant cites In re Fernando M. (2006) 138 Cal.App.4th 529, apparently in support of her argument against the adoptability finding. Fernando, however, is inapposite because the relevant evidence in the case was undisputed and the trial court used an incorrect legal test to evaluate the evidence. Moreover, the issue in the case was not adoptability but the exception to termination specified in section 366.26, subdivision (c)(1)(D) (no termination if caretaker is unable or unwilling to adopt due to exceptional circumstances).[3]

We also observe that the section 366.26, subdivision (c)(1)(D) exception does not apply here in any event because, notwithstanding appellants arguments about the grandmothers supposed preference for guardianship, appellant failed to prove that the exception applied given that the grandmother testified yes to County Counsels question asking whether she was willing to adopt Pauline.

EXCEPTIONS TO TERMINATION

Appellant contends that the (1) parental exception to termination applies because she maintained regular visitation and Pauline would benefit from continuing the relationship, and (2) sibling exception applies because Paulines adoption would substantially interfere with Paulines sibling relationships.

[T]he burden [of proof] is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)

To meet the burden of proving the section 366.26, subdivision (c)(1)(A) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits--the parent must show that he or she occupies a parental role in the life of the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) To meet the burden of proving the section 366.26, subdivision (c)(1)(E) exception the parent must show (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child being adopted if the relationship ended. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)

As is apparent from the way appellant frames her contentions, appellant is essentially urging that there was insufficient evidence to support the juvenile courts finding against her position because evidence supports her position. Her main point on the parental exception is that she maintained visitation, a fact that the juvenile court acknowledged. She otherwise disagrees with the testimony discounting that a significant bond existed between her and Pauline and the juvenile courts evaluation of whether the evidence showed that she occupied a parental role under the circumstances. Her main point on the sibling exception is that she and her sisters had a significant bond, a point that the juvenile court acknowledged.[4] She otherwise disagrees with the juvenile courts evaluation and urges that the evaluation relied on the faulty premises that (1) the sisters would continue to live with Pauline and (2) in the event the sisters did not because they reunified with her, the grandmother would continue to live in the area rather than move to the Marysville area to care for elderly parents. We see this type of presentation in dependency cases too frequently and are constrained to offer the following.

We generally apply the familiar substantial evidence test when the sufficiency of the evidence is at issue on appeal. Under this test, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment . . . . In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing. [Citation.] All conflicts, therefore, must be resolved in favor of the respondent. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.)

But this test is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of facts unassailable conclusion that the party with the burden did not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness,even if that testimony is uncontradicted]).

Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellants evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Roesch v. De Mota, supra, 24 Cal.2d at p. 571.)

Here, as in many dependency cases, the case posed evidentiary conflicts. And, as is common in many dependency cases, this case obligated the juvenile court to make highly subjective evaluations about competing, not necessarily conflicting, evidence. As reflected in the juvenile courts ruling, the juvenile court considered the conflicting, competing evidence and essentially discounted appellants evidence in concluding that appellant had failed to carry her burden of proof. It is not our function to retry the case. We therefore decline appellants implicit invitation to review the record so as to recount evidence that supports her position (reargument) with the object of reevaluating the conflicting, competing evidence and revisiting the juvenile courts failure-of-proof conclusion. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [arguments should be tailored according to the applicable scope of appellate review]; James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 [failure to acknowledge the proper scope of review is a concession of a lack of merit]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 102 [failure to acknowledge the proper scope of review is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent--an appellant is not permitted to evade or shift his or her responsibility in this manner].) This is simply not a case where undisputed facts lead to only one conclusion. (See, e.g., In re Fernando M., supra, 138 Cal.App.4th 529.)

unwilling-caregiver exception

Appellant contends that section 366.26, subdivision (c)(1)(D), applies because Paulines grandmother was unwilling to adopt Pauline. As we have mentioned, appellants premise is incorrect given that the grandmother testified that she was willing to adopt. We nevertheless add the following.

As is apparent from the juvenile courts ruling articulating that only the parental and sibling exceptions were at issue, appellant did not advance the unwilling-caregiver exception below. If she had, she would have corrected the juvenile court when it misstated the issues to be decided. Appellant has therefore forfeited the point under ordinary principles of appellate review. (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [failure to raise sibling visitation issue in juvenile court].)

Appellant urges that she raised the issue and cites us to two record excerpts. We disagree that appellant raised the issue. The first excerpt simply mentions the exception during a colloquy in which appellant unsuccessfully sought to overcome a relevancy objection to her questions of the grandmother to the effect whether the grandmother preferred to adopt Pauline or become Paulines guardian. In the second, County Counsel mentions the exception because appellant brought [it] up when County Counsel opposed a relevancy objection interposed by the District Attorney. Sparring over evidence is not the equivalent of placing a dispositive issue before the court for decision. In any event, if the juvenile court misconceived the issues to be decided, it was appellants obligation to bring the misconception to the juvenile courts attention and secure a ruling on the issue. (Chyten v. Lawrence & Howell Investments (1994) 23 Cal.App.4th 607, 617-618 [acquiescence in court ruling forfeits issue on appeal].)

disposition

The order terminating parental rights is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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^1. Further unspecified statutory references are to the Welfare and Institutions Code.

[2] Appellant gave birth to another child (Bryan) during these proceedings.

[3] In Fernando, the child had special needs (reactive airway disease and slight developmental delay) and had been placed with his maternal grandmother when he was a few months old. The grandmother also cared for the childs two older siblings, neither of whom was a dependent of the juvenile court. Both grandparents had bonded with the child and had a warm and affectionate relationship with him. But the grandfather did not want to adopt the child. The grandmother also did not want to adopt because she considered the child as belonging to her daughter who would get him back one day. She testified that she had agreed to adoption only because the social worker had threatened to remove the child from her home if she did not. The juvenile court made no finding whether the grandmother was willing and able to adopt the child in light of the social workers threat and found against exceptional circumstances solely because this is a grandmother who has already taken care of two of this mothers kids already. (In re Fernando, supra, 138 Cal.App.4th at p. 536.) The appellate court observed that the juvenile court had used the incorrect legal test for evaluating whether exceptional circumstances existed within the meaning of section 366.26, subdivision (c)(1)(D). It reversed the termination of the mothers parental rights after examining the undisputed evidence and concluding that the grandmother was unwilling to adopt because of exceptional circumstances.

[4] In a related point, appellant argues that the juvenile court abused its discretion in rescinding an order to conduct a bonding study that it had made approximately two months before the trial. At the rescission hearing, Paulines counsel responded to appellants request by making the seemingly obvious point that, if the parties were willing to stipulate that the bond exists, then you dont need a bonding study. Though the parties did not so stipulate, it was undisputed that Pauline and her sisters had a significant bond. And the juvenile court rescinded the order for that very reason, as well as for the belated nature of appellants bonding-study request ([i]t doesnt appear to me that its necessary, and I, too, am just very concerned about the delay in this matter). It is true that the parties also argued about whether the bonding study was necessary given that the sibling relationship was to be undisturbed (unless Paulines sisters reunified with appellant), but appellant nevertheless fails to explain what circumstances compelled a bonding study for a relationship that was indisputably a bonded one. She argued at the rescission hearing that the purpose of the bonding study was to further assess that sibling relationship. No abuse of discretion appears. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197 [While it is not beyond the juvenile courts discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process].)