In re Patricia E.

Filed 9/4/07 In re Patricia E. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Lisa E. appeals orders terminating her parental rights to her children, Patricia E. and Steven E., Jr. (Steven). She contends insufficient evidence was presented to support findings the children are adoptable, and her due process rights were violated because the San Diego County Health and Human Services Agency (the Agency) did not adequately facilitate sibling visitation. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2005, the Agency petitioned on behalf of four-year-old Patricia and 18-month-old Steven under Welfare and Institutions Code section 300, subdivision (b),^[1]alleging their family home was filthy, unsanitary and in severe disrepair, and the parents had not benefited from voluntary services. The court ordered the children detained.

The family had been provided voluntary services from January 2004 to January 2005. The parents appeared to be developmentally delayed and the children were dirty and unkempt. Patricia was diagnosed as autistic with mild mental retardation. Steven had significant speech, language and motor function delays. He had not grown adequately while in his parents' care, but after he was removed and given a healthy diet, he started growing normally. The psychologist who conducted an evaluation of him said his behavior suggested an autism spectrum disorder and that he was mildly mentally retarded. Both children were diagnosed with borderline to mildly impaired adaptive skills.

On April 24, 2006, the court found the allegations of the petitions true, declared the children dependents, removed physical custody from the parents and ordered services. The parents appealed, and, in a nonpublished opinion, this court found substantial evidence supported the jurisdictional and dispositional findings and orders, but reversed to allow proper notice under the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). This court directed the juvenile court to reinstate the orders if, after proper notice, no tribe intervened in the matter. (In re Patricia E. et al. (Oct. 6, 2006, D048506) [nonpub opn.].)

The parents did not comply with services. Although Lisa initially visited the children, she began missing visits in August 2006. At the six-month review hearing on November 9, 2006, the juvenile court found the ICWA did not apply and reinstated the jurisdictional and dispositional orders. The court then terminated services and set a section 366.26 hearing.

In the assessment report for the section 366.26 hearing scheduled for March 1, 2007, the social worker stated both children were likely to be adopted. They were in good health and were in homes with families who wanted to adopt them. The social worker stated if these caregivers were unable to adopt, six out-of-state families were interested in adopting a child like Patricia and nine were interested in adopting a child like Steven.

The social worker opined the children did not have parent-child relationships with their parents. At a visit in October 2006, Patricia greeted Lisa with a smile and a hug, and Lisa directed most of her attention to Patricia, while ignoring Steven. The children did not cry when visits ended. They had lived together with the parents for one and one-half years, but Steven had been kept in his crib for much of that time and was described as unresponsive. The children visited each other only during visits with Lisa. The social worker said they had had few shared experiences and, because of their autism, did not have the emotional and social reciprocity necessary to form a strong sibling bond. The social worker noted that during a visit on March 12, 2007, each child played alone. At the end of this visit, their caregivers exchanged telephone numbers and agreed to meet each month so Patricia and Steven could spend time together.

At the section 366.26 hearing on March 15, 2007, after receiving evidence and hearing argument from counsel, the court found the children were likely to be adopted and none of the statutory exceptions to adoption were present. It terminated parental rights and found adoption was the appropriate permanent plan.

DISCUSSION

I. Adoptability

Lisa contends insufficient evidence was presented to show Patricia and Steven are likely to be adopted. She argues the children are not generally adoptable and their adoption hinges on whether their current foster parents will ultimately adopt them.

Before the court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child─whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not itself determinative. (Ibid.)

"On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) "[W]e must indulge all reasonable inferences to support the findings of the juvenile court [citation], and we must also ' . . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

In the assessment report and addendum, the social worker opined the children were adoptable. They were in good physical health and were described as happy children. Each child was in a prospective adoptive home. Patricia's prospective adoptive parent had been caring for Patricia for more than one year. She was a widow who had adopted three children and had two other foster children. She was familiar with Patricia's special needs and was able to focus a lot of attention on her. She wanted to make Patricia a permanent part of her family. Steven's prospective adoptive parents had cared for him for more than three months. They had grown children and grandchildren and one other foster child. They were at home during the day, were able to give Steven the special attention he needs and wanted to provide a permanent home. They said they adored Steven, and he responded to them with frequent smiles and some eye contact. Both families understood the responsibilities of adoption and their legal and financial rights.^[2] The fact the children were with families who wanted to adopt them further supported the finding they are generally adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) In addition, the social worker stated if these foster parents did not adopt, there were other families who were willing to adopt children with their particular characteristics. The social worker's training and experience qualified her to offer an opinion as to the children's adoptability. The court was entitled to rely on the social worker's opinion. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.) Substantial evidence supports the finding the children are adoptable.

II. Sibling Visitation

Lisa asserts the Agency violated her due process rights by not facilitating visitation between Patricia and Steven. She argues this failure eliminated any realistic opportunity for them to maintain a bond and prevented application of the section 366.26, subdivision (c)(1)(E) exception to adoption.

The Agency argues Lisa has forfeited this argument. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] . . .  [] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.)

Lisa did not bring the lack of sibling visitation to the court's attention until the section 366.26 hearing, and she never argued in juvenile court that the lack of sibling visits violated her right to due process. Moreover, she has not shown she was denied due process. The statutory procedures for termination of parental rights satisfy due process requirements because of the demanding requirements and multiple safeguards built into the dependency scheme. But "[i]f a parent is denied those safeguards through no fault of her own, her due process rights are compromised." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) A parent's due process rights may be violated if she is denied the opportunity for meaningful visitation with her child. But, unlike the parent's requirement to show regular visitation and contact with the child to establish the beneficial parent-child relationship exception to adoption, the parent is not required to show the siblings have maintained regular visitation and contact to establish the exception to adoption of section 366.26, subdivision (c)(1)(E). To show this exception, the parent must show adoption would cause substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship. ( 366.26, subd. (c)(1)(E).) Sibling visitation in this case was limited during the dependency period to when Lisa was visiting the children. However, the small number of visits did not stop Lisa from having the opportunity to establish the sibling exception to adoption. The nature and extent of the children's sibling relationship here was more a result of their autism disorders and the fact they had few shared experiences than the lack of regular sibling visitation. Lisa has not shown a denial of due process.

DISPOSITION

The orders are affirmed.

McCONNELL, P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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

^[2] We note Patricia and Steven's appellate counsel states that at the time of her brief on August 1, 2007, Patricia was still living in her prospective adoptive home, where she had been for almost two years, and Steven remained with his prospective adoptive family, with whom he had lived for nine months. Both families remained very committed to adopting the children.

Accepting this evidence is not prohibited by In re Zeth S. (2003) 31 Cal.4th 396. There, our Supreme Court held the appellate court erred by accepting evidence of subsequent events presented through unsworn statements of counsel and using that evidence for the purpose of reversing the judgment. (Id. at pp. 410, 411-413.) Here, evidence of the children's continued placement in their prospective adoptive homes and the prospective adoptive parents' commitment to adoption supports upholding, rather than reversing, the judgment.