In re T.A.

Filed 4/3/06 In re T.A. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Mary A. (mother) appeals the juvenile court order terminating her parental rights to her son, T.A., and establishing adoption as his permanent plan (Welf. & Inst. Code,^[1] § 366.26). She contends that the beneficial and sibling relationship exceptions to adoption (§ 366.26, subds. (c)(1)(A), (E)), precluded the termination of her parental rights. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 27, 2004, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition as to 20-month-old T.A. and his siblings, 8-year-old brother A.W. and 11-year-old sister K.C. The petition alleged that the children had been removed from their home on February 25, 2004, after T.A.'s father^[2] was arrested on a probation violation for being under the influence of methamphetamine. The police had gone to the residence on that date after they discovered A.W. playing in the street during a severe thunderstorm. The house was in a state of filth and there was no food, and T.A. "was found to be unkept [sic], dressed in dirty clothes, and smell[ed] of cigarette smoke and was coughing." At the time of the children's detention, mother's whereabouts were unknown. The following day, T.A. was taken to the hospital and diagnosed with severe bronchitis and asthma. The petition further alleged that A.W. was in mother's care when he helped start a fire in a neighbor's garage on February 18, 2004. When the police brought A.W. home, mother indicated that she had no idea how long he had been gone.

Mother's history with CWS dates back to 1998. A.W. and K.C. had been detained and returned to mother on two separate occasions. In October of 2001, the juvenile court ordered that she be provided family maintenance services. On August 22, 2000, mother was arrested on a probation violation when she tested positive for drugs shortly after another child's birth. In its detention report, CWS indicated "it is safe to say that [mother] has failed to successfully comply with any of the Service Objectives in the October case plan. [¶] Since [mother] was ordered to receive Family Maintenance Services she has become pregnant, gotten married to a convicted felon [T.A.'s father], and been arrested. She remains incarcerated for probation violations. She has admitted to using methamphetamines [sic], and Vicodin on more than one occasion during her current pregnancy. She has also admitted to initially lying to Probation and [CWS] about her methamphetamine use. . . . [Mother] knew her behavior violated the terms and conditions of her probation. This Court also warned her that a potential consequence of her Vicodin use could be to lose her children. In spite of this warning, she was arrested less than 3 weeks later, on the eve of an arraignment for one violation, for being under the influence of a controlled substance, Vicodin."

At the jurisdictional hearing on April 8, 2004, the allegations in the petition were found true. Mother and father were offered reunification services and were ordered to submit to mental health evaluations. The psychologist who evaluated mother and father in June of 2004 concluded that mother "cannot manage the simplest of personal matters. It is, thus, highly unlikely that she can integrate and relate effectively and manage the demands of even one . . . child . . . . [She] appears to need a combination of individual personal counseling and comprehensive drug treatment in order to function effectively. Such treatment will require many months to years in order to produce stability . . . ."

At the six-month review hearing, CWS recommended the termination of reunification services for T.A. At the time, A.W. and K.C. were living with a maternal aunt, while T.A. was in a foster home. CWS reported that mother had failed to comply with her case plan by participating in drug and alcohol treatment. It was also noted that mother had supervised visitation with T.A. at least once a week, although she often overslept and arrived late. At the conclusion of the hearing, the court found that mother and father had not complied with their case plans, and that adequate services had been provided. Accordingly, reunification services as to T.A. were terminated and the matter was set for a permanency planning hearing.

In preparation for that hearing, CWS filed a report on February 24, 2005, recommending a permanent plan of adoption for T.A. The report indicated that T.A. had been placed in a prospective adoptive home on January 3, 2005, and that he was thriving in that placement. The social worker observed that the prospective adoptive parents "have welcomed [T.A.] with open arms and hearts into a home tailor-made for young children. There is ample room to run in the backyard, as well as a nearby park for [T.A.] to run off his normal 2 year old energy surplus. The family dog is completely smitten with [T.A.] and he with the dog. 'That's my dog,' he says to visitors attempting to pet the dog." The social worker added that T.A. "has claimed them, that is, he calls them Mommy and Daddy, looks to them for comfort and respects their authority. . . . [The prospective adoptive parents] love [T.A.] and are looking forward to him becoming their son. . . . [¶] This is [T.A.'s] home, [T.A.'s] dog, [T.A.'s] mommy and daddy." The social worker also recommended that the prospective adoptive parents continue to support T.A.'s relationship with his siblings after his adoption.

Regarding T.A.'s relationship with mother and father, the report stated: "Prior to the last review on 11/08/2004, [T.A.] had been having supervised visits with his parents one time per week at a park in Lompoc. During this past review period, [T.A.] has been having supervised visitation with his biological parents every other week. Although the reduction in frequency of visitation was upsetting to [T.A.'s] biological mother, [T.A.] did not show any deleterious effects from the reduction in the frequency of the visitation. [¶] Visits this review period have been unremarkable and involve the biological parents meeting [T.A.] at a park . . . . [T.A.] does not manifest distress or separation anxiety when it comes time to end the visit and leave his biological parents at the park to return to his care provider. At this time, [T.A.]'s contact with his biological parents has been fading . . . ."

At the hearing, mother's attorney stated that he hoped to establish the exception to adoption codified in section 366.26, subdivision (c)(1) "specifically the (A) section related to parents . . . [who] have maintained regular visitation and contact with the child, [such] that [the] child would benefit from continuing [the] relationship." In support of that position, mother testified that T.A. screamed out "mommy" whenever she arrived, that he was always happy to see her, and that he told her he loved her. She believed that T.A. was "so confused being taken away from us" and that "you need to know who your family is . . . no matter who takes you away or tries to take you away, you got to know that. [¶] And if you try to take that away it's going to ruin a child. He's going to be lost. He's going to be confused. It's not good for him. . . . He needs me and he needs daddy, and he needs his brothers and sister. Nobody else in the world can give him love like we do."

Mother also called Gustavo Prado, the social worker who supervised visits between T.A. and his biological parents. Prado testified that although T.A. enjoyed the visits and appeared comfortable with his biological parents' expressions of affection, he was primarily attached to his prospective adoptive parents.

At the conclusion of the hearing on April 19, 2005, the court concluded that while mother and father had maintained regular visitation with T.A. as contemplated by section 366.26, subdivision (c)(1)(A), "I don't find that at this point it's anything more than continuing contact that they have. [¶] There really is the self-serving statement of mother that [T.A.] calls her mom and father da da . . . . The report also indicates that he calls the fost-adopt parents mommy and daddy. I think it's simply a reflection of the fact that [T.A.] is a well adjusted child and doing well. [¶] There's no indication that he's traumatized in any way by a separation at the end of the visitations, again, other than mother's self-serving statements. And to the extent I'm evaluating the character and quality of testimony, I am not impressed by the testimony. [¶] I really see it as mother projecting on [T.A.] her feelings . . . ." Having concluded that mother had failed to establish that T.A. would benefit from continuing his relationship with her as contemplated by section 366.26, subdivision (c)(1)(A), the court terminated parental rights, established adoption as T.A.'s permanent plan, and set the matter for a section 366.3 hearing.

DISCUSSION

I.

The Beneficial Relationship Exception to Adoption (§ 366.26, subd. (c)(1)(A))

Mother contends the juvenile court erred in terminating her parental rights to T.A. because the evidence is insufficient to support a finding that the minor would not benefit from continuing the parent/child relationship. Parental rights regarding an adoptable child will not be terminated where the court finds "a compelling reason" that termination would be "detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent has the burden of providing that this exception to adoption applies, and that burden is met only in exceptional cases because, at the time of the section 366.26 hearing, the child has been removed from parental custody and reunification services have been unsuccessful or denied. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) In determining whether that burden has been met, "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. (1994) 27 Cal.App.4th 567, 575.)

Substantial evidence supports the finding that T.A. would not benefit from continuing his relationship with mother, as contemplated by section 366.26, subdivision (c)(1)(A). To overcome the presumption in favor of adoption, mother had to show not only that she had a continuing relationship with T.A., but also that the relationship promoted his well-being to such an extent that it outweighed the well-being he would gain in a permanent home with his prospective adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As the juvenile court noted, mother's evidence in this regard consisted of her self-serving statements that T.A. enjoyed her visits and "needed" his biological family. Even if we were to accept these statements at face value, the record indicates that T.A. is settled with his prospective adoptive parents, and that he does not appear to have an attachment to mother as anything other than a friend. To the extent mother purports to assert T.A.'s relationship with his father as a basis for rejecting adoption, father did not appeal from the court's order, and mother lacks standing to assert any rights on his behalf.

II.

The Sibling Relationship Exception to Adoption (§ 366.26, subd. (c)(1)(E))

Mother also contends that the court abused its discretion in terminating her parental rights because she met her burden of showing that the "sibling relationship" exception to adoption (§ 366.26, subd. (c)(1)(E)) applied with regard to T.A.'s relationship with his siblings A.W. and K.C. That exception applies where "[t]here would be substantial interference with a child's 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 child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Ibid.)

We agree with CWS that mother has waived this claim by failing to raise it below. "If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence. Therefore, [mother] has waived [her] right to raise the exception. [Citation.]" (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Mother's attorney never argued that the sibling relationship exception applied and, contrary to mother's position, she did not effectively raise the issue by merely referring to T.A.'s relationship with his siblings during her testimony.

In any event, mother did not offer any evidence from which the court could have found that the exception applied. The determination whether the exception applies requires the juvenile court to take into consideration the nature and extent of the sibling relationship, for example, whether the siblings were raised in the same home, whether they shared significant common experiences, and whether they share a strong bond. The trial court must also consider the child's long-term emotional interest as compared to the benefit of legal permanence and stability through adoption. (In re L.Y.L. (2002) 101 Cal. App.4th 942, 951.) Although T.A. lived the first 20 months of his life with his siblings, there is no indication that the children shared significant common experiences or a strong bond. Moreover, the prospective adoptive parents have been encouraged to continue T.A.'s relationship with his siblings after his adoption. Under the circumstances, T.A.'s adoption was not precluded by the sibling relationship exception found in section 366.26, subdivision (c)(1)(E).

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

Stephen Shane Stark, County Counsel, David C. McDermott, Deputy County Counsel, for Plaintiff and Respondent.

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

^[2] All three children have different fathers. T.A.'s father is not a party to this appeal.