In re Ricardo L.

Filed 8/10/06 In re Ricardo L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments of the Superior Court of San Diego County, Hideo Chino, Judge. Affirmed.

Ricardo L., Sr., (the father) and Virginia R. (the mother) (together the parents) appeal judgments terminating their parental rights to five of their seven children, Angelina, Ricardo, Alfonso, Nicole, and Lisa. They contend substantial evidence did not support the juvenile court's finding the children were likely to be adopted, and the court erred in not applying the sibling exception to adoption of Welfare and Institutions Code section 366.26, subdivision (c)(1)(E).^[1] In addition, the father contends he showed the beneficial parental relationship exception to adoption of section 366.26, subdivision (c)(1)(A). We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the San Diego County Health and Human Services Agency (the Agency) in January 2002 when 12-year-old Andrea^[2] and six-year-old Ricardo were arrested for shoplifting. The children were taken into protective custody when police could not locate the parents. The children said the parents used drugs and hit them and the mother was mentally ill. The Agency petitioned under section 300, subdivision (b) on the basis of the parents' substance abuse, their failure to search for Andrea and Ricardo for 48 hours and the mother's mental illness.

The parents' history with child welfare services dated to 1996. The mother said she had been living in shelters with five of the children and the father had been living with the other two.

At the jurisdictional and dispositional hearings on February 20 and March 4, 2002, the court found the allegations true, declared the children dependents, removed them from the parents' care and placed them in foster care. The parents' case plans included therapy, psychological evaluations, parenting classes, and substance abuse treatment programs. In addition, the mother was to have a psychotropic medication evaluation.

In August 2002 the social worker reported the children had been placed in three different foster homes. The mother struggled with mental illness, refused to go to therapy and did not enroll in a parenting class. The father began drug treatment, but declined therapy and was not visiting the children. On December 2, 2002, the court found the parents had not made substantive progress in their case plans and continued the children dependents placed in foster care.

Subsequently, the social worker reported the parents had enrolled in in-patient drug treatment programs and the father was visiting the children sporadically. The children were well behaved and doing well in school. They missed each other and the foster parents facilitated visits for them. At the 12-month hearing on April 24, 2003, the court found the parents had made substantive progress and continued the children as dependents in foster care.

For the 18-month hearing the social worker reported the father had completed a drug treatment program, but rarely visited the children. The mother did not complete drug treatment and continued to struggle with sobriety and mental health issues. The social worker recommended terminating services.

On October 21, 2003, the court granted the application of Larry and Kathy S. to be de facto parents of Ricardo, Angelina, Nicole, and Lisa.

In January 2004 the social worker reported the father had satisfactorily completed the first phases of a drug treatment program. He was employed full-time, contributing part of his income to savings and having some visits with the children.

At the 18-month permanency review hearing on January 9, 2004, the court found the father had made progress with his case plan, but reasonable services had not been provided to him. It ordered six more months of services for the father, but found the mother had not made substantive progress and terminated her services. It continued the children in foster care.

In June 2004 the social worker reported the father was allowing the mother to see the children during his unsupervised visits even though he had been told not to do so.

In July 2004 the social worker recommended returning the children to the father with six months of family maintenance services. The father had located suitable housing, continued drug treatment, completed a parenting course and was having twice-weekly therapy. The children were doing well in foster care, but Angelina, Ricardo, Alfonso and Nicole said they wanted to live with the father.

In September 2005 the social worker reported the father had completed a substance abuse program and was in aftercare. He had weekly-unsupervised visits. Ricardo and Alfonso wanted to live with him, but during visits Nicole missed her foster mother. Angelina said she had to take care of Lisa during visits and the father blamed her for anything that went wrong. The social worker said the father's home was appropriate for the children and he was receptive to suggestions and to working through issues. He was not allowing the mother access to the children when they were in his care. The children's therapist said Nicole was ambivalent about visits with the father, Angelina did not want to live with him and Lisa had been so young when she was removed she had no bond with him.

Then, after the father denied at a review hearing that he had been addicted to drugs or alcohol and indicated the children had become dependents because the family was homeless, the social worker changed her recommendation and proposed terminating services and setting a section 366.26 hearing. She said the father had shown he did not recognize why the children had been removed, he minimized his drug addiction and did not see the mother as a danger even though he knew she was using drugs again.

On October 21, 2004, the court found reasonable services had been offered or provided and the father had made some progress, but returning the children to him would create a substantial risk. It continued the children dependents, terminated services and set a section 366.26 hearing.

For the section 366.26 hearing, the social worker reported the father had been having overnight visits with the children. His interactions with them were appropriate and affectionate. Lisa, Angelina and Nicole reportedly did not want to go to visits, but Ricardo and Alfonso enjoyed them. Angelina, Ricardo and Lisa were living with the de facto parents, with whom they had lived since 2002. Alfonso was moved there in April 2005. Nicole was moved from the de facto parents' home to another foster home in March 2004.

The social worker opined the children were adoptable. They were healthy and developing normally. The de facto parents wanted to adopt Angelina, Ricardo and Lisa, who had been in their care for three years. The Agency was confident their adoptive home study would be approved. Because of the strong bond between Ricardo and Alfonso, the de facto parents were willing for Ricardo to be adopted by another family if he could be with Alfonso. In July 2005 the social worker reported Ricardo and Alfonso were moved to the home of prospective adoptive parents, who were extended family members of the de facto parents. The children were in agreement with this move.

The psychologist who completed an evaluation of Alfonso in July 2005 stated it was important for him to continue his relationship with his siblings. Alfonso agreed to be adopted because he knew the prospective adoptive parents. He said it did not matter to him if he continued to see the parents, but he wanted to be with Ricardo. The psychologist who performed an evaluation of Angelina reported her early life contributed to her having poor self-esteem, a lack of coping skills and difficulty with managing anger. The psychologist recommended adoption for Angelina and opined she would be distressed if she did not see the parents, but proposed she have only infrequent contact with them. The psychological evaluation of Nicole showed she had some emotional problems and mild anxiety. The psychologist said her several foster placements had impeded developing a healthy personality. She recommended Nicole be placed in a permanent home as soon as possible to provide her with a sense of security. In November 2005 Nicole was placed with a family with an approved adoptive home study. She wanted to be adopted by this family and they wanted to adopt her. The psychologist who performed an evaluation of Ricardo said he lacked confidence and had some anxiety. Ricardo said he had no problem moving to a new home to be with Alfonso, but would miss living with his sisters.

At the section 366.26 hearing on September 29, 2005, and February 9, 2006, the social worker testified that in her opinion the children were adoptable. Angelina and Lisa saw their prospective adoptive parents as their parents. Ricardo and Alfonso were excited to see the father during visits and played and interacted with him. Ricardo's psychological evaluation indicated he idealized his father, but understood the father was unable to take care of him. He and Alfonso wanted to continue to see the father. Nicole had been with her prospective adoptive parents only since November 2005, but they had known her for about one year before the placement and had actively sought her being placed with them. She was doing very well in her new home.

The psychologist who conducted a bonding study for the father and the children concluded they had a strong relationship. The children appeared to enjoy their interaction with the father and expressed affection. The psychologist said the attachment approached a primary bond and the children would likely experience some grief and loss if separated from him.

The children visited together three to five times each month. The social worker opined it was important for them to have continuing contact with each other and said the prospective adoptive parents were committed to supporting their having ongoing relationships.

The court accepted an offer of proof that if Ricardo and Alfonso were to testify they would say their first preference would be to live with the father, but if that were not possible, they would want to stay with their foster parents and be adopted. If Angelina were to testify she would say she wanted continued contact with the father.

The court found by clear and convincing evidence it was likely the children would be adopted if parental rights were terminated and none of the exceptions to adoption of section 366.26, subdivision (c)(1) were present. It terminated parental rights and referred the children to the Agency for adoptive placement.

DISCUSSION

I

The parents contend substantial evidence did not support the court's finding it is likely the children will be adopted if parental rights are terminated. They argue Angelina, Ricardo, Alfonso and Lisa are placed in homes which have not been approved for adoption, and, although Nicole is placed with a family who has an approved adoptive home study, her multiple placements because of her behavioral problems bring into question whether this family will, in fact, adopt her. They contend the findings were based only on the caregivers' willingness to adopt and because of the children's ages, Nicole's problems and the fact they are a bonded sibling group, it is unlikely they will be adopted within a reasonable time.

Before a 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 ¾ 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 determinative by itself. (Ibid.)

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in 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.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) 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.)

Substantial evidence supports the court's finding the children are adoptable. The social worker reported they were generally adoptable, and there were specific families who wanted to adopt them and other families who wanted to adopt children like them. Angelina was described as attractive, bright and caring, and Ricardo as attractive and appealing. Alfonso was reported to be attractive, intelligent and articulate, Lisa cute and affectionate, and Nicole pretty. The children were in good health and displayed good development.

All five children were living with caregivers who wanted to adopt them. Angelina and Lisa had lived with their prospective adoptive parents since 2002 and Alfonso and Ricardo with theirs since July 2005. There was no reason to believe the home studies of these families would not be approved.

Although Nicole had had emotional and behavioral problems and anxiety because of her multiple foster placements, her psychological evaluation indicated placing her in a secure, permanent home as soon as possible would provide her with a sense of security. Nicole's prospective adoptive parents had known her for one year before she was placed with them and had actively requested her placement with them. It was reported she was happier and more comfortable with this family.

In re Jerome D. (2000) 84 Cal.App.4th 1200 does not support the father's position. In In re Jerome D., supra, the child had a prosthetic eye apparently requiring care and treatment. The mother's former boyfriend wished to adopt him, but had a criminal history and had not yet been approved for adoption. This court agreed with the mother's and the child's arguments that there was not substantial evidence to find the child adoptable. (Id. at pp. 1202-1203, 1205-1206.) Here, there was no indication the prospective adoptive parents had backgrounds that would prevent them being approved to adopt.

The father also misplaces reliance on In re Amelia S. (1991) 229 Cal.App.3d 1060. In that case there were 10 children with various physical, emotional and developmental problems. Five were in homes where the foster parents were considering adoption and the other five were in homes where the foster parents did not intend to adopt. The reviewing court held there was not substantial evidence to support the court's finding they were likely to be adopted. (Id. at pp. 1062-1066.) Here, by contrast, all five children were with families who wanted to adopt them. Nicole's prospective adoptive parents had already been approved. The other two homes were in the process of being evaluated and the Agency did not foresee any difficulties.

In addition, substantial evidence supports the court's finding the children were generally adoptable. The social worker opined they were adoptable and, besides the prospective adoptive families, four families were requesting a child like Alfonso and two of these would adopt him with Ricardo. If Angelina's prospective adoptive family were not able to adopt her, one other adoptive family was available. Fifteen families wanted to adopt a child with Lisa's characteristics. Substantial evidence supports the court's finding the children were adoptable.

II

The parents assert the court reversibly erred in not applying the exception to adoption of section 366.26, subdivision (c)(1)(E). They argue the children clearly had strong sibling bonds and there was ample evidence that severing their relationships would be extremely detrimental.

Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that a child is adoptable, it will terminate parental rights unless it finds termination would be detrimental because of one of five exceptions listed in section 366.26, subdivision (c)(1). Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If a child is found to be adoptable it becomes the parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1) exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.)

The exception to adoption of section 366.26, subdivision (c)(1)(E) relates to the relationship among siblings. It requires that adoption must be ordered if the court finds the child will be adopted within a reasonable time " 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)

The threshold showing for the sibling relationship exception is that, with termination of parental rights, "[t]here would be substantial interference with a child's sibling relationship . . . ." (§ 366.26, subd. (c)(1)(E).) Here, the children could not be safely placed together with the parents, but there was a strong indication their relationships and contact would continue after adoption. Angelina and Lisa had been living together with their prospective adoptive parents since 2002. Ricardo and Alfonso also were together in a prospective adoptive home, and the members of this family were extended family members of those who were planning to adopt Angelina and Lisa. Nicole did not have as strong a relationship with her siblings as the other children did. Nevertheless, the social worker reported the three prospective families had been very cooperative in facilitating family visits and all five children had been regularly visiting each other. The social worker opined these visits would continue. The parents did not show the exception to adoption of section 366.26, subdivision (c)(1)(E).

III

The father contends substantial evidence does not support the court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to defeat the termination of his parental rights. He argues he visited the children regularly and has a strong relationship with them that outweighs the benefits of adoption.

Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." "The [section 366.26, subdivision (c)(1)(A)] exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 the parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) In reviewing whether sufficient evidence supports the trial court's finding the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (Id. at p. 576.).

The father did not show he maintained regular visitation throughout the four-year dependency. During some periods of time, he did not visit or call the children on a consistent basis. He cancelled visits or did not appear when the children were expecting him.

The psychologist who conducted an attachment study for the father and the children said they had a strong relationship, and, although the attachment was not a primary bond, it "certainly approaches one." However, Lisa had been only two months old when she was removed. She cried for her foster mother during visits with the father and did not want to go on visits. Lisa and Nicole's therapist said the girls did not have a bond with the father. He did not pay much attention to Lisa during visits and Angelina complained the father expected her to take care of Lisa and blamed her for anything that went wrong. Nicole also did not have a beneficial parental relationship with him. She did not attend some of the visits and did not want to spend the night at his home. Ricardo idealized the father, fantasized about living with him and said he would be sad if he did not see him anymore. But he recognized the father was not able to care for him. Alfonso agreed to be adopted by his caretakers. When asked about continued contact with the parents he said it did not matter to him.

The children's psychological evaluations indicated adoption was in each child's best interests. By the time of the section 366.26 hearing, they had been out of the parents' care for four years. They had been able to adjust to their placements and develop attachments to their caregivers. The social worker opined maintaining the father's relationships with the children did not outweigh the benefit they would gain from being adopted into stable, permanent homes. The court was entitled to rely on the social worker's opinion. (In re Casey D. (1999) 70 Cal.App.4th. 38, 53.) Substantial evidence supports the court's finding the exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

The judgments 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.

^[2] Andrea and the oldest sibling, Andres, are not part of this appeal.