In re Destiny L.

Filed 8/1/07 In re Destiny L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.

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Sandra C. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her daughters, D. and S.^[1] She contends the court erred in reaching its decision because there was insufficient evidence of the girls adoptability and, based on their parent/child relationship, termination would be detrimental. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In September 2005, police received a report that appellant and her husband were using methamphetamine and neglecting their daughters, two-year-old D. and one-year-old S. The report led police to a relatives home where the couple and the children were living in a backyard tent. The tent was dirty and lacked basic necessities for the children; the parents were under the influence of methamphetamine. Upon the couples arrest, the Kings County Human Services Agency (agency) took the children into protective custody and commenced the underlying proceedings.

At a November 2005 hearing, the superior court assumed dependency jurisdiction over the children ( 300, subd. (b)), adjudged them dependents, and removed them from parental custody. The court also ordered reunification services for each parent as well as weekly supervised visitation with the children.

Appellant initially made some progress with her court-ordered services. However, at a June 2006 status review hearing, the court determined both she and the father failed to regularly participate and make substantive progress in their court-ordered reunification plans. The court further found there was not a substantial probability D. and S. could be returned to either parent within another six months. Consequently, the court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child.^[2]

The court would eventually conduct its section 366.26 hearing in January 2007. In the interim, Anna Pedrali, an adoption specialist with the California Department of Social Services (CDSS), filed a 366.26 WIC Report in September 2006, assessing the childrens adoptability. According to her report, it was highly likely that the children would be adopted if parental rights were terminated. Pedrali evaluated each child as follows.

Three-year-old D. was in good health and was developmentally on target in all areas of growth. At this time, she was too young to attend school. Her mental and emotional status appeared to be good.

She is a sweet, quiet and shy child who enjoys playing with other children. The foster parent stated that she and her sister have a tendency to fight with each other. [D.] also throws a fit when she does not get to eat all the food that she wants and during naptime. She sleeps through the night with no problems. The foster parent also indicated that [D.] has tantrums throughout the day but they have lessened as she has adjusted into her foster home. [D.] was observed to be a reserved, polite and happy young girl.

Two-year-old S. was also in good health and was on target in most areas of developmental growth. Her speech/vocabulary skills were somewhat delayed. Nevertheless, she did learn new words every day. Her foster parent reported S. had a problem with sitting still long enough to watch a television program or have a book read to her. Like her sister, she was too young to attend formal education. Her mental and emotional status appeared to be healthy.

She is a happy, outgoing and curious toddler. Her behaviors are typical of a child her age. She likes to play with other children and has a typical sibling relationship with her older sister. The foster parent stated that [S.] has a problem with throwing screaming tantrums during the entire day for just about any reason,. The child was observed by the undersigned in her home to throw a tantrum, which is quite typical of a toddler, but she was crying and whimpering, not screaming as the foster parent stated she usually does. The undersigned asked the previous social worker, the current social worker as well as the staff person who supervises the visits between the child and her birth family if they have observed [S.] throwing any hysterical, screaming tantrums. They all stated they have never observed this type of behavior by [S.]. It appears she only behaves in such a manner in her current foster home. [S.] is a tomboy who loves to play outside and get dirty. She was observed by the undersigned to be a strong-willed, happy and independent child.

Both sisters had lived together in a total of five placements over the course of their dependency. Although Pedrali did not discuss the childrens placement history, authors of earlier reports did. Prior to their November 2005 disposition hearing, the girls experienced, in quick succession, three different placements. D.s behavioral problems caused one of those changes. At that time, D., who was only two years old, was very parentified and overprotective of S. D. became angry towards other persons who tried to get close to S. D. also would hit and bite. The girls fourth placement failed due to their caregivers health problems. They entered their current placement in February 2006 and were happy and adjusted. Their foster parents, however, were not interested in adoption.

The adoption specialist also reported the childrens maternal grandparents had been identified as their prospective adoptive parents. The girls had a very positive and strong relationship with their grandparents, who shared a strong desire to adopt them. The children were too young to verbalize their feelings about the pending adoption.

Pedrali further reported the parents consistently visited the children over the course of their dependency. During the reunification period, visits occurred once a week for one hour. Those weekly visits gradually increased in length to two hours. Once the court set the section 366.26 hearing, it also reduced visitation to once a month.

Pedrali described the parent/child relationship as typical and loving. Because it was apparent there was a strong attachment between the children and the parents, she expressed a belief that it was best if the grandparents adopted the children so that they would continue to have an ongoing relationship with their birth parents.

Apparently unbeknownst to Pedrali at the time she authored her 366.26 WIC Report, the agency had denied the maternal grandparents request for placement due to the lack of space in their home. The couple in turn told Pedrali they could not financially afford to move into a larger home. Therefore, as Pedrali explained in an addendum report, CDSS could no longer consider the maternal grandparents to be the childrens prospective adoptive parents.

Thereafter, out-of-state paternal relatives, who were interested in placement and adoption emerged. The relatives contacted the agency social worker and requested placement consideration. Pedrali also spoke with the couple to discuss permanency planning. In early December 2006, the relatives spent a week in California visiting with the children each day. Their positive visits with the girls confirmed the paternal relatives desire to adopt. The girls appeared comfortable and content with their relatives. Not only did the paternal relatives quickly make positive efforts to establish a relationship with the children, the couple was very open to allowing continued contact between the children and their birth family so long as it was in the childrens best interests. As a result, the agencys social worker planned to request an investigation for foster care placement as soon as possible pursuant to the Interstate Compact for Placement of Children (ICPC). For her part, Pedrali continued to recommend adoption as the permanent plan for the children.

At the January 2007 hearing, county counsel, on behalf of the agency, submitted its case on Pedralis reports. The fathers counsel called Pedrali as a witness. Pedrali testified she had been a CDSS adoption specialist for over seven years. Prior to that, she was an adoption specialist with Fresno County for four years. Over the course of her career, she had assessed the adoptability of 250 to 300 children.

On the subject of adoptability, Pedrali testified she was unconcerned about finding another adoptive home for the children if the paternal relatives were unable to adopt. She did not anticipate any problems whatsoever in locating an adoptive home for the girls.

When questioned about the childrens behavioral problems, Pedrali explained she had received second-hand reports from the paternal grandmother that the children had acting out behaviors in the foster home with regard to overeating, hording food and very extreme temper tantrums and screaming. According to Pedrali, the foster parent never reported all of this information. In addition, those behaviors reportedly only occurred in the foster home.

When asked whether her adoptability assessment was in fact based on the relatives interest in adoption, Pedrali replied she focused on the individual child and not on whether the relative was available for adoption. D. and S. were adoptable whether it be by a relative or a stranger.^[3]

Counsel also asked whether either child was receiving mental health services at the time. Pedrali replied in the affirmative for both children. She explained such services were for the reported food hording, overeating and tantrum behaviors. To Pedralis knowledge, neither child had a diagnosed mental health problem.

Based on her information, it was Pedralis belief that the childrens reported behavior problems were related to the foster home environment. They were only reported to occur in the foster home. It was also her opinion that those behaviors were not that extreme. The hording was considered mild and the tantrums were a typical toddler behavior. She added there were no other reported behavior problems, including no behavioral problems after visits with the parents.

Pedrali had assessed children with more significant behavioral problems than D.s and S.s reported behaviors and was able to find adoptive placements for such children. D.s and S.s reported behavior problems would not prevent her from finding an adoptive home for them if the relatives were unable to adopt.

While on the witness stand, Pedrali also reiterated her reports description of the parents visitation with the children and the parent/child relationship. When asked for the basis of her opinion that there was a strong attachment between the girls and their parents, Pedrali explained she reviewed contact narratives from those who supervised the visits and also took into account her own observations from one visit. Notably, during the visit she observed, the girls were well-behaved. She concluded the girls had a good relationship with the parents. It was her departments position that the children would benefit from continuing their relationship with their parents and being adopted by a relative. If the court terminated rights and there was no further contact, it would be hard over the short-term for any young child who was close to her parents. However, over time, such a child would adjust so long as the child were in a loving adoptive home that was providing some continuity as well as a stimulating, safe and stable environment.

The father also testified at the hearing. He described his visits with his daughters. At first, it was especially hard when visits came to an end, but gradually they became easier. He had not observed tantrums or any behavioral problem. According to the father, the children called him Daddy and their mother Mommy. Although S. was not verbal, D. indicated [a]ll the time that she wanted to go home with him and she missed him. The father also testified he called every day to see how the children were doing. The foster parent would tell him the children were doing well and wanted to talk to him.

During closing arguments, appellants counsel disputed the childrens adoptability and also argued termination would be detrimental based on the parent/child relationship. The fathers attorney similarly claimed termination would be detrimental based on the parent/child relationship. The childrens counsel advised the court she could not agree to termination at the present time. She argued strong family ties and the mental health testimony supported her position. Counsel voiced a preference for long-term foster care as a permanent plan until the ICPC was completed.

Upon submission, the court found the only question mark about the childrens adoptability was the fact they had some behavioral problems and were receiving counseling. Nonetheless, it found it highly likely the children would be adopted. It also considered the comments of the childrens attorney as an expression of the childrens wishes. The evidence regarding the visits and what the children expressed at those visits was not enough to persuade the court that any of the exceptions to adoption applied. The court in turn made the requisite findings to terminate parental rights.

DISCUSSION

I. Adoptability

Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted. ( 366.26, subd. (c)(1).) The adoptability question focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)

In this case, there was substantial evidence each of appellants daughters was likely to be adopted. Both were quite young, healthy and, except for two-year-old S.s minor speech/language delay, developmentally on target. There were concerns in the foster home about the girls behavior, although elsewhere they were notably well-behaved. In any event, the alleged food hording and overeating were considered mild problems for which they were receiving counseling. The temper-tantrums were typical for their young ages.

Moreover, there was Pedralis opinion, based on her 11 years experience as an adoption specialist, that it was highly likely the children would be adopted if parental rights were terminated. She did not anticipate any problems whatsoever in locating an adoptive home for the girls.

Appellant overlooks this evidence and instead concentrates on the fact that her daughters had experienced five placements over the course of their dependency and were not in an adoptive placement at the time of the section 366.26 hearing. With regard to the childrens placement history, appellant claims their behavioral problems, which in her estimation were not minimal, had contributed to the multiple placements. She also argues, because there was little information about the paternal relatives and the court foreclosed questioning about the couples suitability to adopt, the court should have followed the suggestion of the childrens counsel and awaited the results of the ICPC before terminating rights. She therefore concludes there is no clear and convincing evidence that her daughters were adoptable. We disagree.

First, although the superior court must make its adoptability finding by clear and convincing evidence ( 366.26, subd. (c)(1)), the clear and convincing standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). 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. (Ibid.)

Second, the record discloses that only one of the childrens initial placements failed due to behavioral problems, specifically those of the older child, D. At the outset, two-year-old D. was very parentified and so overprotective of her younger sister that she tried to make a bottle for S. and change her diaper, became angry towards others who tried to get close to the younger child and would hit and bite. Those behaviors, however, apparently subsided.

To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Not only does appellant draw inferences to reverse the judgment, her inference drawing, that is the number of placements means the children are not adoptable, is less than reasonable. In addition, appellant overlooks the adoption specialists experience. Pedrali had assessed children with more significant behavioral problems than D.s and S.s reported behaviors and was able to find adoptive placements for such children. Also, in Pedralis opinion, D.s and S.s reported behavior problems would not prevent her from finding an adoptive home. The superior court could have properly relied on such evidence in reaching its conclusion.

Last, appellants argument, both in the superior court and on appeal, about the lack of information regarding the paternal relatives is frankly a red herring. As the adoption specialist testified, in assessing the childrens adoptability, she focused on the individual child and not on whether a relative was available for adoption. D. and S. were adoptable whether a relative or a so-called stranger adopted them. In other words, these children were generally adoptable. This was not a case where the childrens adoptability was based solely on their prospective adoptive parents willingness to adopt. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) It is only in that situation where an inquiry into legal impediments to adoption may be made. (Ibid.)

Under these circumstances, we conclude there is no merit to appellants argument. Substantial evidence supports the courts adoptability finding.

Parent/Child Relationship

Appellant also contends the court erred when it declined to find termination would be detrimental to the childrens best interests. She claims she was entitled to such a finding because she maintained regular visitation and contact with her children and they would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)). She also joins in a similar argument made by the father in his appeal (In re Destiny L., et al., F052091 [nonpub. opn.].)

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no merit to the parents arguments and conclude the superior court did not abuse its discretion.

In this case, there is no dispute that: both parents maintained regular visitation and contact with the children throughout their dependency; there was a strong attachment between the girls and their parents; and the children would benefit from future contact. However, as positive as this evidence was, it did not compel the juvenile court to find termination would be detrimental to the children.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, there was no evidence the parent/child relationship would promote the childrens well-being to such a degree that it outweighed the well-being the children would gain through adoption. In addition, there was no showing that severing the natural parent/child relationship would deprive either child of a substantial, positive emotional attachment such that she would be greatly harmed. At most, the adoption specialist acknowledged the loss of contact would be hard over the short-term for any young child who was close to her parents. However, over time, the child would adjust. In addition, although Pedrali obviously tried to find a relative adoptive placement for the girls, there was no evidence only a relative adoptive placement would serve the childrens best interests.

Under these circumstances, we conclude the superior court did not abuse its discretion by selecting adoption as the permanent plan and terminating appellants rights.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] This court upheld the superior court when it denied appellants subsequent petition for writ of extraordinary relief (F050638; Sandra C. v. Superior Court).

^[3] Based on this testimony which was not refuted throughout the remainder of the proceedings, the court sustained relevance objections to questions regarding the number of placement changes and the suitability of the paternal relatives to adopt.