In re C.S.

Filed 10/2/07 In re C.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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L.S., father of the minors C.S. and A.S., appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; unspecified section references that follow are to the Welfare and Institutions Code.) Appellant contends (1) the evidence does not support the juvenile courts finding the minors are adoptable,

(2) the juvenile court abused its discretion in finding the beneficial relationship exception ( 366.26, subd. (c)(1)(A)) does not apply, and (3) [u]nder the circumstances of this case, guardianship is a more appropriate permanent plan than adoption. We shall affirm.

Factual And Procedural Background

In August 2005, the Placer County Department of Health and Human Services (Department) filed section 300 petitions on behalf of two-month-old C.S. and three-year-old A.S., alleging the minors were at substantial risk of suffering serious physical harm or illness due to appellants and mothers substance abuse problems and failure to comply with a voluntary family maintenance agreement; and mother breastfeeding C.S. while under the influence of methamphetamine. ( 300, subd. (b).)

The juvenile court sustained the petitions and adjudged the minors dependent children. The minors were placed with their maternal aunt and uncle and reunification services were ordered. The parents initially visited with the minors twice a week. Over time, however, the frequency of the visits decreased, and by the end of 2006, the visits were so infrequent that the parents were more like distant relatives than parents.

In June 2006, a suspected child abuse report alleged that [A.S.] had been sexually abused. In the course of the investigation, mother advised the social worker that prior to the minors detention, appellant walked around the house naked and masturbating, and . . . watched a lot of pornography. Mother said A.S. witnessed this behavior and that [mother] tried to get [appellant] to stop, but he wouldnt.

In October 2006, the juvenile court found returning the minors to parental custody would be detrimental to the minors, determined there was no substantial probability the minors would be returned to parental custody within six months, terminated reunification services, and scheduled a section 366.26 hearing.

The social workers report prepared for the section 366.26 hearing describes C.S. (then 18 months old) and A.S. (then four and one-half years old) as healthy, active children with some special needs. C.S. displayed normal growth and development at his most recent physical exam, and his chronic constipation had been resolved due the diligent efforts of his aunt. While he sometimes had trouble breathing, he was on an inhaler. He also attended occupational therapy to improve his motor skills and speech.

A.S. attended preschool and was doing well there. She was developmentally on track. While earlier reports indicated her speech was delayed, it was being addressed, and the section 366.26 report does not mention it. Although A.S. suffered from various ailments while in her parents care, including eight upper respiratory and viral infections, she had been healthy this past year except for colds and flu. She attended weekly therapy sessions to address her sexual preoccupation (and masturbation), past abuse and neglect, and grief and loss issues.

The social worker concluded that both C.S. and A.S. were adoptable. In support of her conclusion, the social worker noted that the relative caregivers want to adopt the minors and are in the process of completing an adoptive home study. They are not interested in legal guardianship. They had been married for 10 years and had a six-year-old daughter of their own. The minors looked to them for reassurance and guidance, and they were supportive of continued contact with the minors siblings and birth family.

At the contested section 366.26 hearing, the Department and mother submitted on the section 366.26 report. Appellant testified that he is and always will be a recovering addict. He takes his fatherhood responsibilities very seriously and is not ready to give up his parental rights. While he believes he has accomplished a lot, he candidly acknowledges he still has not learned to deal with [his] emotions. [T]his will be a never-ending learning process. So I dont claim to have gotten there yet. I am still working very hard towards the possibility that I can still be their father, and like I said, keep my parental rights intact. He described his relationship with A.S. as very close and said that [t]here has been consistent regular visits with the children. He asked the court to select legal guardianship as the permanent plan.

The juvenile court found by clear and convincing evidence that the minors are adoptable, selected adoption as the permanent plan, and terminated parental rights. While the court acknowledged that the minors do have some special needs, it nevertheless concluded they are adoptable given their very young age[s], the significant amount of time they have been out of [the parents] home and in their current placement, and the fact they are very bonded to their current caregivers. The court rejected appellants claim that the strength of his relationship with the minors provided an exception to the termination of his parental rights. [L]ooking at everything, the totality of the circumstances, the court could not find that there exists such a benefit for continuing [the] parent/child relationship . . . that it outweighs the benefit that [the minors] would obtain from a permanent adoptive home.

Discussion

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, quoting In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416, italics added by Ronell A.)

I

Appellant contends the adoptability finding is not supported by substantial evidence because: (1) the minors were described as special needs children with a long history of medical, developmental and emotional problems . . . which precluded them from being considered generally adoptable should the current prospective adoptive placement fail; (2) although [the minors] were in a prospective adoptive home, there was no showing the prospective adoptive parents had been approved for adoption; and (3) there was no showing there were other families available who were interested in adopting children with similar problems to those exhibited by the minors.

In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164;

366.26, subd. (c)(1).)

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the [minor] are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents 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. (Id. at pp. 16491650.)

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

As a preliminary matter, we reject the Departments assertion that appellant forfeited his right to challenge the adoptability finding on appeal by failing to raise the issue in the juvenile court. [A] claim that there was insufficient evidence of the childs adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) As we shall explain, however, the juvenile courts adoptability finding is supported by substantial evidence.

At the section 366.26 hearing on the proposed termination of appellants parental rights, the juvenile court received into evidence the social workers report which states the likelihood of adoption is very good. According to the social worker, the minors are healthy and active, and the relative caregivers with whom they have resided for the past one and one-half years are committed to adopting them. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Although the minors have some special needs, those needs are being addressed by the relative caregivers. There is no evidence the minors special needs would necessitate specialized placement or that their difficulties are so severe as to pose an obstacle to adoption. On this record, the juvenile court reasonably could find, as it did, that although the minors may continue to present some challenges to their prospective adoptive parents, they are likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)

Appellant asserts that [w]here a childs physical, emotional or psychological development present a potential obstacle to adoption, adoptability is not shown in the absence of evidence there are approved families interested in adopting similar children. He also argues that an adoptability finding in this case requires evidence that families other than the relative caregivers are available and willing to adopt two children with [A.S.] and [C.S.s] physical and emotional health issues. Appellant is mistaken.

As previously discussed, there is no evidence the minors special needs are so severe as to pose an obstacle to adoption. Moreover, a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted [where] a prospective adoptive family has been identified as willing to adopt the [minor]. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Thus, even assuming the minors are not generally adoptable due to their special needs, as appellant contends, they nonetheless are likely to be adopted because their relative caregivers want to adopt them and no legal impediment to adoption by that family has been identified. (Ibid.) In re Asia L. (2003) 107 Cal.App.4th 498, relied on by appellant, does not require the existence of an approved family or families other than the relative caregivers, who are willing to adopt two children with needs similar to those of the minors, to support an adoptability finding. As that decision makes clear, such evidence can be used to evaluate the likelihood of the childs adoption. (Id. at p. 510.)

Accordingly, the juvenile courts adoptability finding is supported by substantial evidence.

II

Appellant next claims the juvenile court abused its discretion by failing to apply beneficial relationship exception to adoption contained in subdivision (c)(1)(A) of section 366.26. We disagree.

There are only limited circumstances which permit the court to find a compelling reason for determining that termination [of parental rights] would be detrimental to the child. ( 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3) (former rule 1463(e)(3)); Evid. Code, 500.)

One of the circumstances under which termination of parental rights would be detrimental to the minor is: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) The benefit to the child must promote 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Appellant failed to establish that either he or mother maintained regular visitation and contact with the minors or that the minors would benefit from continuing the natural parent/child relationship. The record reflects that the parents visitation decreased over time to the point where they functioned more as distant relatives than as parents. C.S. and A.S. were removed from the parents custody when they were just two-months-old and three-years-old, respectively, and at the time of the section 366.26 hearing, had been out of the parents custody for over one and one-half years. While appellant testified he and A.S. were very close, there is no evidence in the record to support a finding that either A.S. or C.S. had a substantial, positive emotional attachment to either appellant or mother at the time of the section 366.26 hearing. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) On this record, it cannot be said that any possible detriment to the minors would be so significant as to outweigh the benefits to them of a stable permanent home.

Accordingly, the juvenile court did not err in finding that the beneficial relationship exception does not apply to the termination of appellants parental rights.

III

Finally, appellant argues that [u]nder the circumstances of this case, guardianship is a more appropriate permanent plan than adoption because the minors (1) have a significant beneficial relationship with their birth parents and grandparents and (2) have older half siblings with whom continued contact would be important. He is mistaken.

If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A., supra, 44 Cal.App.4th at p. 1368, quoting In re Beatrice M., supra, 29 Cal.App.4th at p. 1416, italics added by Ronell A.) Here, the juvenile court found the minors are adoptable and the beneficial relationship exception to the termination of parental rights does not apply; and we concluded above that the adoptability finding is supported by substantial evidence and that the juvenile court did not err in finding the beneficial relationship exception does not apply. Appellant having failed to raise any other circumstance under which termination of parental rights would be detrimental to the minors, the juvenile court was required to terminate parental rights.

On appeal, appellant urges us to exercise our discretion to consider whether the sibling relationship exception to the termination of parental rights ( 366.26, subd. (c)(1)(E)) applies, even though he failed to raise the exception below. Although appellant arguably forfeited his claim by failing to raise it below, we will consider its merits if only to demonstrate why the sibling exception does not apply.

To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)

Here, there is no evidence in the record concerning the extent of the minors relationship, if any, with their siblings. Accordingly, the sibling relationship exception to the termination of parental rights does not apply.

Finally, contrary to appellants suggestion, guardianship is not the practical equivalent of adoption. The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible 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. [Citation.] A guardianship is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature. [Citation.] (In re Teneka W. (1995) 37 Cal.App.4th 721, 728.)

Accordingly, there is no basis to disturb the juvenile courts selection of adoption as the permanent plan.

Disposition

The judgment (order terminating parental rights) is affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

BLEASE , J.

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