In re Ryan F.

Filed 7/7/06 In re Ryan F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Referee. Affirmed.

Candace G. appeals a judgment of the juvenile court terminating her parental rights to her minor son Ryan F. under Welfare and Institutions Code^[1] section 366.26. Candace challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Candace also contends there was insufficient evidence of Ryan's adoptability based on an incomplete adoption assessment of Ryan's caregivers. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

In January 2004, one-year-old Ryan became a dependent of the juvenile court and was placed in out of home care based on findings his parents exposed him to domestic violence (§§ 300, subd. (b), 361, subd. (c)). Candace had a history of mental health problems, was hospitalized for a suicide attempt and required psychotropic medication. She also admitted a history of illegal drug use.

As part of her reunification plan, Candace submitted to a psychological evaluation and participated in domestic violence counseling, individual therapy and parenting classes. During supervised visits twice a week, Candace was attentive to Ryan and he enjoyed playing with her. However, by the 12-month review hearing, Candace's compliance with services had substantially diminished. Visitation with Ryan was cancelled because of Candace's excessive nonattendance. She required psychiatric treatment for depression and again attempted suicide. Based on Candace's failure to make substantive progress with the provisions of her reunification plan, the court terminated services and set a selection and implementation hearing under section 366.26.

According to an assessment report, Candace had not visited Ryan for a period of five months, and just recently resumed visits. Ryan appeared distant toward Candace and did not initiate any physical contact with her. In the opinion of social worker Joseph West, Candace and Ryan did not have a parent-child relationship.

West recommended adoption as Ryan's permanent plan. Ryan had been in his foster home for 18 months. His caregivers were providing excellent care and wanted to adopt him. West assessed Ryan as adoptable because of his young age, good health, normal development, sociability, and other factors. If the current caregivers were unable to adopt Ryan, there were six other approved families willing to adopt a child like Ryan.

Candace filed a section 388 petition for modification, seeking to vacate the selection and implementation hearing and have Ryan returned to her care, or alternatively, to have reunification services reinstated. As changed circumstances, Candace alleged she was drug free and making progress in the Kiva residential drug treatment program (Kiva) by regularly attending parenting and addiction classes, individual and group therapy and psychiatric treatment sessions. As to Ryan's best interests, Candace alleged she consistently visited him since her services were terminated, she was committed to providing him with a safe and healthy environment, and Kiva allowed Ryan to live with her.

In his addendum reports, West continued to recommend adoption as Ryan's permanent plan. He noted Candace had been at Kiva for only five months. Ryan had begun to warm up to Candace during visits and greeted her with a smile and a hug. At the end of one recent visit, Ryan said he wanted to stay longer and continue playing with Candace. By this time, Ryan had been in his foster home for more than two years. His caregivers had completed the initial adoption paper work and they remained fully committed to adopting him.

At a hearing on the section 388 petition, Candace's counselor at Kiva testified about Candace's participation in various workshops. Candace submitted to regular substance abuse testing and had no positive tests. The counselor observed a few minutes of each weekly visit between Candace and Ryan, noting Ryan was becoming increasingly comfortable with Candace, and Candace was attentive to him.

Candace's therapist, Chienthang Nguyen, testified he had nine sessions with Candace in individual therapy. He discussed Candace's illegal drug use, which began at age 17, including methamphetamine, heroin, PCP, alcohol and Ecstasy. She stopped using heroin and methamphetamine six months before the section 388 hearing. When Candace felt overwhelmed, she heard voices that were negative and critical of her. She recently stopped self-mutilating behaviors. In Nguyen's opinion, Candace had taken responsibility for her actions and had developed insight into the events leading to her current situation. Although Candace had made a great deal of progress, Nguyen had no target date for when she might meet her therapeutic goals.

West testified Candace initially visited Ryan only sporadically, and then she did not visit him for a five-month period because she had a contagious illness and was using heroin and methamphetamine. When visits resumed, Ryan was "standoffish" with Candace for the first few months, but he eventually warmed up to her and their visits were very positive. Candace assumed a parental role with Ryan and he viewed her as a parent rather than a playmate. After recent visits, Ryan cried and did not want to leave, sometimes because he wanted to continue playing, and other times because he wanted to stay with Candace. However, on the way home from visits, Ryan was not upset, did not cry, had a positive demeanor and talked about other things. He did not ask for Candace between visits.

West did not recommend placing Ryan with Candace because her progress had been achieved in a controlled setting. Candace's recovery from drug abuse and domestic violence had not been tested in the "real world," and she had not parented Ryan on a day-to-day basis. West continued to recommend adoption for Ryan.

West had observed Ryan with his foster parents, noting he was interactive with them, called them "Mom" and "Dad," and viewed them as parental figures. In West's opinion, Ryan's relationship with his foster parents was deeper than his relationship with Candace and he engaged his foster parents on his own initiative.

Candace testified about her substance abuse recovery efforts, including 298 days of being drug-free. She was benefiting from Kiva, seeing a psychiatrist, participating in group and individual therapy, and had recently joined an anger management group. She no longer heard voices or tried to physically hurt herself. She was working 40 hours a week, and would soon be moving to a Sober Living Community where she would be under curfew and randomly tested for drugs. Ryan would not be able to live there with her, but he could visit. Alternatively, another facility was available where she could live with Ryan if he were returned to her.

After considering the evidence and hearing argument of counsel, the court denied Candace's section 388 modification petition, finding Candace met her burden of showing changed circumstances, but she did not show returning Ryan to her custody or ordering further reunification services was in Ryan's best interests. Candace appealed, and in an unpublished opinion, we affirmed the court's order. (In re Ryan F., supra, D047647.)

At a selection and implementation hearing, the court considered the reports and testimony from the section 388 hearing. The parties stipulated that if Candace were called to testify, she would say she had been visiting Ryan every Sunday for at least the past month, she loved her son and was opposed to a plan of adoption for him. The court found by clear and convincing evidence Ryan was likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and referred Ryan for adoptive placement.

DISCUSSION

I

Candace contends there was insufficient evidence of Ryan's adoptability because the adoption assessment report on the caregivers did not include any criminal or child abuse history as required by section 366.21, subdivision (i)(7).

A

To the extent Candace is challenging the sufficiency of the assessment report, she has forfeited the issue by failing to raise it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) When the court received the assessment report into evidence at the selection and implementation hearing, Candace did not object to its adequacy with respect to the caregivers' criminal or child abuse history, or otherwise claim the report was deficient. As a general rule, a party may not assert new theories on appeal that were not raised in the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) Thus, Candace is precluded from raising this issue on appeal. (In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412.)

B

In her reply brief, Candace clarifies she is challenging the sufficiency of the evidence in its totality, not just the contents of the assessment report, to support the court's finding of adoptability. Under the substantial evidence rule, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting a 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.)

Before selecting and implementing a permanent plan for a minor, the court must order the Agency to prepare a written assessment of specified relevant factors, including "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent . . . to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption . . . ." (§ 366.21, subd. (i)(4).) The assessment report need not be entirely complete, as long as it is in substantial compliance with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1482.) When an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., supra, at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.)

C

In West's expert opinion, Ryan was generally adoptable because of his young age, good health, normal development, sociability, and other factors. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421 [social worker is an expert in the assessment and selection of permanency planning for a dependent minor].) If Ryan's current caregivers were unable to adopt him, there were six other approved families willing to adopt a child like Ryan. Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.)

Further, at the time of the selection and implementation hearing, Ryan's caregivers had been providing him with excellent care for two years and he was thriving in this positive, stable and loving environment. Ryan saw his caregivers as parental figures and he called them "Mom" and "Dad." They were committed to adopting him, the adoptive home study had been initiated and the social worker had no concerns about their qualifications to adopt.^[3] The social worker noted a thorough criminal and social assessment would be completed, and the legal and financial rights and responsibilities of adoption would be discussed before the home was approved. In spite of any deficiencies, the assessment report contained other substantial evidence of Ryan's adoptability, including his general characteristics and the interest of several approved adoptive families. The totality of the circumstances shows the court had sufficient information to determine there were no problems that would interfere with Ryan being adopted and that adoption was the appropriate permanent plan for him.

II

Candace challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights to Ryan. Candace asserts because Ryan had a strong parent-child relationship with her and she could provide stability and permanence for him, the benefit of continuing this relationship outweighed any need for adoption. We review the court's finding for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

A

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child 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 child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship 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 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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, Candace regularly visited Ryan, but she did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Although Candace assumed a parental role with Ryan during weekly supervised visits and he viewed her as a parent, Ryan also viewed his caregivers as parental figures. He had a deeper emotional attachment to his caregivers and looked to them, rather than to Candace, for security and guidance. Ryan enjoyed his time with Candace, but he transitioned well after visits and did not ask for her between visits. There was no showing Ryan would be "greatly harmed" if he no longer had contact with Candace. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

Further, Candace did not show her relationship with Ryan was sufficiently beneficial to outweigh the benefits of adoption. West testified that in his assessment, adoption was in Ryan's best interests. At the time of the selection and implementation hearing, Ryan had been out of Candace's care for two of the three years of his life. He is in a stable, nurturing environment with a family who is committed to adopting him. Despite Candace's preference for a permanent plan other than adoption for Ryan, the Legislature has decreed that a permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.)

The juvenile court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive family for Ryan based on his particular needs. The evidence before the court supported a finding the preference for adoption had not been overcome. (See In re Alexis M. (1997) 54 Cal.App.4th 848, 852 [decision must be viewed in context of specific facts of case].) Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not preclude terminating Candace's parental rights. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

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

^[2] Our unpublished opinion in Candace's prior appeal (In re Ryan F. (May 10, 2006, D047647)) of which we take judicial notice, contains a more detailed account of the facts and procedure.

^[3] Contrary to Candace's position, the court was not required to evaluate the prospective adoptive parents at the selection and implementation hearing. (Fam. Code, § 8712.)