In re J.V.
Filed 10/11/11 In re J.V. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| In re J.V. et al., Persons Coming Under the Juvenile Court Law. | |
| ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. H.V. et al., Defendants and Appellants. | G044850 (Super. Ct. Nos. DP017426 & DP017427) O P I N I O N |
Appeal from orders of the Superior Court of Orange County, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant H.V.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant M.C.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
H.V. (father) and M.C. (mother) appeal from the juvenile court’s order terminating their parental rights to their now three-and-a-half year old twin boys J.V. and T.V. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code.) They contend the court erred in finding the children adoptable and that the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. We disagree and affirm the order.
FACTS
Born severely premature in March 2008 at 24 weeks, the children weighed less than two pounds and had various medical problems. J.V. had an inguinal hernia, a club foot, and breathing problems necessitating oxygen at night and a pulse oxymeter. T.V. suffered from chronic lung disease, eye problems requiring numerous surgeries, and an underdeveloped neurological system.
When they were five months old, Orange County Social Services Agency (SSA) took the children into protective custody after T.V. received emergency treatment for blisters on his hands, feet, and abdomen, which doctors determined were non-accidental burns for which the parents had no adequate explanation. The parents pleaded no contest to the dependency petition in November and the children were placed with foster parents.
For the six-month review, the children were doing well medically and showed progress in their weekly physical therapy sessions. They no longer needed certain shots or to be seen by a retinologist. T.V.’s adjusted age was just over five months and his developmental assessment ranged from four to six months. J.V. was monitored every three months for his chronic lung disease but had not required albuteral breathing treatments during the last supervision period. The use of a sleep apnea monitor was also discontinued. At night, he wore a special foot brace, which he tolerated well but would need until age four or five. His developmental assessment ranged from three to six months.
The parents did well on their case plans, with consistent and positive supervised visits, which had been increased to nine hours a week. They fed, changed and played with the children, who “appear[ed] happy” in their care. They also went to their medical appointments and asked appropriate questions. Mother brought to the visits a diaper bag and formula for the children and took care of the children’s needs. Father missed or was late to several visits but was appropriate during the ones he attended.
By the 12-month review period, mother was visiting the children 26 hours a week, including one weekly overnight visit, while father’s visits had increased to four supervised and five unsupervised visits per week. The parents attended to the children’s needs, provided the necessary items to care for them during the visits, and went to their medical appointments. Both parents received positive reviews for their participation in their case plans, although the social worker indicated concern father had not addressed certain issues.
The children were stable and had met all previous physical therapy goals in their weekly sessions. Both generally appeared happy and responded to smiles and voices.
For the 18-month review set for March 2010, SSA reported the children began a 60-day trial visit with mother at the maternal grandparents’ home, during which mother appeared to make progress and it was likely the children would be returned to her. Father’s visitation increased to 12 hours a week and he demonstrated progress in his case plan but did not currently have the means to have the children placed with him. SSA recommended the termination of reunification services and the setting of a section 366.26 hearing.
Because of their prior history of domestic violence, SSA suggested limited contact between the parents except to arrange the children’s visitation, medical appointments and for emergencies. Nevertheless, in February, without authorization, the parents took the boys to Chicago, where they met father’s family and father proposed to mother. Upon their return, SSA detained the children but agreed to reinstate the 60-day trial visit with mother if the parents participated in various programs. Unmonitored visitation resumed at 11 hours a week for father and 24 hours a week for mother.
In April, SSA received an anonymous tip that one of the children ingested marijuana during a visit at father’s home. Although SSA determined the allegation was unfounded, the court ordered father to test for drugs. After father tested positive twice for marijuana and missed two tests, his visitation status was changed to monitored two times a week.
Upon telling SSA she did not plan on continuing the relationship with father and “guarantee[ing]” he would not be at any unannounced visit, mother was granted another 60-day trial period conditioned on father not having unauthorized contact with the children. The children were reportedly happy with mother, who provided good physical care and arranged their medical appointments. But in August an investigator for minors’ counsel observed the parents together in a truck with two small children in the back. The court terminated reunification services and set a section 366.26 hearing, finding the parents had not sufficiently benefitted from services to protect the children from further abuse. The parents were allowed four hours of supervised visits, during which they fed and played with the children, changed their diapers, and appropriately disciplined them.
As of January 2011, SSA reported the children were “difficult to place, adoption probable,” despite not having located any prospective adoptive parents. Although SSA identified a permanent placement, the parents objected because it was not in Orange County. Placement with the paternal great grandmother in Illinois was denied because her home study was not approved. Two great aunts expressed interest in adopting the children but did not follow through with the necessary steps.
In an addendum report the next month, SSA advised it identified a prospective adoptive family with an approved home study 18 days after the children were referred to the adoption unit. The family, which the children knew through school, had “expressed [its] desire to care and ultimately if considered, to adopt the children,” and SSA was “planning to hold a presentation with [them] as soon as possible.” SSA stated it would provide additional information to the court once the children were placed with the family and that it was also assessing a paternal aunt in Illinois in the event that family was unable adopt. As of the section 366.26 hearing it was unknown if a home study had been initiated for the paternal aunt.
The children displayed some age-appropriate skills but had severe delays in the areas of receptive and expressive language, cognitive, social emotional, and adaptive/self-help. Both were recommended to receive Regional Center services to address these delays.
SSA opined that despite their developmental delays the children were adoptable as they were “very cute and loveable.” They had shown great improvement in their speech and communication skills, had developed a positive bond with adults, and were able to respond to “behavioral techniques.” SSA recommended termination of parental rights to give the children the permanency and stability they deserved and needed.
At the section 366.26 hearing, the social worker testified the children had been placed with the prospective adoptive parents only that day, although they had been made aware of the children’s developmental delays. Following further testimony by the social worker and the parents, the court found it “abundantly clear” by clear and convincing evidence the children were generally adoptable and likely would be adopted despite their special needs. It described them as “very engaging, wonderful little boys” whose tantrums, oral fixation and eating issues were somewhat age appropriate and improving with nurturing, counseling, and physical therapy. It also noted the existence of people wanting to adopt the children and the identification of a prospective adoptive home.
Citing mother’s concession she did not understand the children’s physical therapy because the caretaker had been responsible for that, the court rejected her claim of having unique information about the children. It concluded the parent-child benefit exception to adoptability did not apply and terminated parental rights, finding insufficient evidence the parent-child relationship was more than incidental and that any “pleasant and enjoyable contact is far outweighed by the benefit the children will receive as a result of a permanent and stable home. . . . .”
DISCUSSION
1. Adoptability Finding
Highlighting the children’s medical problems, developmental delays, and status as a sibling set, the parents argue the court’s finding the children are adoptable is not supported by substantial evidence. The contention lacks merit.
We review an adoptability finding for substantial evidence, deferring to the juvenile court’s determinations with respect to the weight of the evidence, the credibility of witnesses, and the resolution of conflicting evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Further, we “accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
When determining the issue of a child’s adoptability, a court must consider whether factors such as the child’s “age, physical condition, and emotional state make it difficult to find a person willing to adopt the [child]. [Citations.] . . . [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [child’s] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.) “[A child] who might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.” (Id. at p. 1650.)
Here, the prospective adoptive parents were interested in adopting both children despite their medical and developmental issues. A paternal aunt was interested as well. Thus, the children’s problems and their sibling set status did not preclude the juvenile court from finding they were likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The parents contend the prospective adoptive parents’ interest did not constitute substantial evidence because no adoption assessment report was prepared as required by section 366.21, subdivision (i). But their failure to object to its absence forfeits this claim (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 [mother’s failure to object at trial to lack of statutorily required preliminary assessment report regarding prospective guardian deemed waiver]) and distinguishes this case from In re Valerie W. (2008) 162 Cal.App.4th 1, on which both parents rely.
The parents maintain that without the additional information SSA promised the court, it could not be determined whether the pre-adoptive family had the capability and willingness to meet the children’s special needs. But they acknowledge the family had an approved home study and that the social worker testified the prospective adoptive family had been advised of the children’s “various and several developmental delays” and “all of the children’s special needs were identified . . . before [the family] agreed to accept them . . . .”
Father claims it was “doubtful” SSA had informed the prospective adoptive parents of all the children’s problems because they had not yet been presented to them. He also notes the social worker had delegated much of the work to staff and thus was unfamiliar with the record, not even knowing if the family identified in the addendum report was the one with whom the children were placed. These were all credibility issues for the juvenile court, to which we defer. (In re Sheila B., supra, 19 Cal.App.4th at p. 199.)
Mother asserts the social worker’s testimony did not explain whether the prospective adoptive family was willing and able to meet the children’s needs or whether it was a medically trained and licensed home, which was “surely needed for a permanent placement” since one was needed at detention. But a prospective adoptive parent’s general suitability to adopt is not at issue during the permanency hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) That question is “reserved for the subsequent adoption proceeding.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) And even if the prospective adoptive parents do not adopt the children, their interest and that of the paternal aunt and other family members, as well as the fact that the family was identified within 18 days of the children being referred to the adoption unit, is evidence that another family will be found within a reasonable time.
Moreover, the court did not rely solely on the prospective adoptive parents’ willingness to adopt, as the parents maintain, to change its opinion from the children being difficult to place to being adoptable within a reasonable time. Although SSA reported the children were “difficult to place,” it also stated “adoption probable” within the same sentence. Additionally, the court indicated it had “read and considered the reports . . . submitted into evidence,” which made it “abundantly clear” “the children will be adopted and that the children are adoptable.”
According to SSA’s reports, the then almost three-year-old children were “very cute and lovable[,] . . . show[ed] a lot of improvement in their speech and communication skills with other children and adults in their environment,” and were “able to express their needs.” They also “appear[ed] to have developed a positive bond with adults and [were] learning and capable of responding to behavioral techniques to get along with each other and other individuals in their lives.” The reports constituted competent evidence to support the juvenile court’s findings. (§ 281; In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1571-1573.)
The parents argue the children were “anything but ‘healthy’” and had “severe developmental delays and serious medical conditions.” But despite their delays, both children showed “age appropriate scattered skills in all [their] developmental domains.” Additionally, T.V. no longer needed to see an opthamologist, pulmonologist or retinologist and J.V. required follow-ups for opthamology and pulmonology only once a year. Although J.V. saw his orthopedist every six months he wore his foot brace just at night. Neither child had vision or hearing problems and the use of a sleep apnea monitor was discontinued for both. Moreover, “[n]owhere in the statutes or case law is certainty of a child’s future medical condition required before a court can find adoptability. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 79.)
Father maintains the record does not show the children’s eating habits were “‘getting better,’” or that they had made “‘a lot of improvement in their speech and communication skills.’” But the reports demonstrate the children’s eating and language problems had improved significantly in the past year. Whereas before they only chewed crackers or finger foods and spoke a single word, they now chewed textured foods, had vocabularies of between 20 (J.V.) and 30 (T.V.) words, and were able to use short phrases.
Father also asserts the report’s use of conclusory adjectives like “‘lovable’” or SSA’s argument the children were “‘great, great kids’” have no significance in determining adoptability. To begin with, it was minors’ counsel who argued the children were great, not SSA. Furthermore, the record contained evidence supporting those descriptions. Both children generally appeared happy and responded to smiles and voices. They initiated play with their foster mother and enjoyed interacting with her. They also played with toys, each other, and other children appropriately. Both attended preschool, understood basic questions, followed simple commands, and used words to describe photographs in a book and short phrases to communicate needs. Because these facts support the court’s determination the children were “very engaging, wonderful little boys,” we reject father’s claim to the contrary.
The record demonstrates the court’s adoptability finding was not based on the social worker’s opinion of adoptability alone or without supporting facts and thus In re Asia L (2003) 107 Cal.App.4th 498 and In re Brian P. (2002) 99 Cal.App.4th 616, cited by mother, are distinguishable. We conclude there was sufficient evidence to support the court’s finding of general adoptability. Because this is not a case where the children were deemed adoptable “based solely on a particular family’s willingness to adopt” (In re B.D. (2008) 159 Cal.App.4th 1218, 1232), we reject the parents’ contention it was necessary for the juvenile court to determine whether there was a legal impediment to adoption.
2. Benefit Exception
Once the court determines under section 366.26 a child is likely to be adopted, it “shall terminate parental rights” (§ 366.26, subd. (c)(1)) and order the child placed for adoption unless it “finds a compelling reason for determining that termination will be detrimental to the child” because of one of the statutory exceptions. (§ 366.26, subd. (c)(1)(B).) One exception is where a “parent[ ] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Parents bear the burden of proving both these factors and must also demonstrate they “occup[y] a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
The court found both parents maintained regular visitation but neither established “the nature of the relationship and benefit to the children would be more
than . . . incidental . . . [and] that that incidental benefit by way of pleasant and enjoyable contact is far outweighed by the benefit that the children will receive as a result of a permanent and stable home . . . .” The parents contend the latter finding was error. We disagree.
Where parents have continued to regularly visit and contact the child, and a significant, positive, emotional attachment has been maintained or developed between them, “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 to 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.) “A beneficial relationship is one 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.’ [Citation.] The existence of this relationship is determined by ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs . . . .’ [Citation.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
Here, the children were almost three years old at the time of the permanency hearing. As the court found, the parents had not provided regular care for them since they were about five months old.
Although mother cared for the children during trial visits, attended to their needs during monitored visits, and went to their medical appointments, she conceded at trial she did not understand what was going on with the children’s physical therapy because the caretakers had taken care of that. The court thus reasonably concluded “[t]he most recent caretaker knows more about the special needs of these children than mom does” and rejected her claim, which she repeats on appeal, she possessed special knowledge of the children’s needs and medical history. We are not persuaded as well.
Mother maintains the children were bonded to her. To this end, the record shows the children sought her out for affection during visits, went to her when someone came near them, and wanted to be held by her. Father similarly argues the children benefited from their relationship because they ran to him yelling “[d]addy, daddy” and became sad and cried sometimes when visits ended. He also taught them boundaries and how to read, and disciplined and attended to them appropriately during visits.
But although this may show the parents loved the children, it did not demonstrate the type of devoted commitment to them, and the willingness to sacrifice their own interests, that typically characterize a beneficial parent-child relationship. (In re S.B. (2008) 164 Cal.App.4th 289, 300.) Mother had progressed to the point of having the children placed with her on a trial basis and was close to having them returned to her when she took the children without authorization to Chicago to meet father despite SSA’s recommendation for limited contact between them due to their prior history of domestic violence. Although the children were detained upon their return, SSA reinstated the 60-day trial visit with mother. Even after father’s visits reverted to monitored status because of his refusal to give up his marijuana use, mother was granted another 60-day trial period conditioned on father having no unauthorized contact with the children. Yet not long thereafter an investigator saw the parents together in a truck with two small children in the back.
Father questions the need for the no-contact order, claiming “the prior incident of domestic violence was very mild . . ., was not repeated, and occurred when the children were not even present.” According to him, “if the domestic violence issues were no longer there, . . . then co-parenting would have been the optimal way to raise the children” and what SSA “conclusively interpreted as a failure to put the children’s needs first may very well have been [m]other’s attempt to do just that.” But the no unauthorized contact order resulted from father’s positive and missed drug tests, not the domestic violence. Nor will we reweigh the evidence in this regard. (In re Sheila B., supra, 19 Cal.App.4th at p. 199.)
The parents’ inability to place the children’s needs ahead of their own distinguishes this case from In re S.B., supra, 164 Cal.App.4th at p. 298 [termination of parental rights reversed where despite own disabilities, parent placed child’s needs ahead of own needs]), cited by mother. The court properly weighed the children’s age, needs, the length of time they had been in the foster care system, and their needs for a permanent, stable home. Having done so, it terminated parental rights based on these factors, and not the desire to punish the parents, contrary to their claims. Substantial evidence supports the court’s conclusion that the strength and quality of the parents’ relationship with the children did not outweigh the benefits they would receive from a permanent home with adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
DISPOSITION
The orders are affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
O’LEARY, J.
FYBEL, J.
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