In re Brandon T.

Filed 10/4/06 In re Brandon T. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed. Motion to augment the record on appeal. Denied.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Jerry T.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Wendy T.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

* * *

Introduction

Jerry T. and Wendy T. are the parents of Brandon T., now six years old, and Troy T., now five years old. In May 2006, after receiving family reunification and family maintenance services for five years, Jerry and Wendy’s parental rights to Brandon and Troy were terminated. Jerry and Wendy separately appeal from the order terminating their parental rights.

Jerry argues the notice given under the Indian Child Welfare Act (ICWA) was improper, because the Orange County Social Services Agency (SSA) sent notice to the tribes via certified mail, return receipt requested, rather than via registered mail, return receipt requested. SSA’s notice to the relevant tribes was proper under California law, and resulted in actual notice to the tribes. There was no error. Additionally, Jerry’s argument that one of the six tribes potentially involved in the case did not respond is factually incorrect.

Both Jerry and Wendy argue the juvenile court erred in determining Brandon and Troy were adoptable under Welfare and Institutions Code section 366.26, subdivision (c)(1). (All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.) Substantial evidence supports the juvenile court’s finding that Brandon and Troy were adoptable, based on their ages, their physical and emotional characteristics, and the fact they had bonded with their caretakers, who were committed to adopting them.

Jerry and Wendy also argue the juvenile court erred by concluding the parental bond exception to adoption, section 366.26, subdivision (c)(1)(A), did not apply. While Jerry and Wendy’s visits were generally consistent and appropriate, and Brandon and Troy enjoyed their company, substantial evidence supported the court’s finding that Jerry and Wendy did not occupy parental roles in the lives of their children.

Finally, Jerry argues the juvenile court should have found the exception to adoption under section 366.26, subdivision (c)(1)(D) applied. That exception is applicable when exceptional circumstances prevent a relative with whom a dependent child is living from adopting the child. Even if this argument had been raised in the juvenile court, we would find no error because Brandon and Troy’s paternal aunt and uncle, with whom they have been living, are neither unwilling nor unable to adopt them.

We therefore affirm the order terminating Jerry and Wendy’s parental rights to Brandon and Troy.

Statement of Facts and Procedural History

In May 2001, Troy was born three months premature. On the day of Troy’s birth, Wendy tested positive for amphetamine and barbiturates. Both Jerry and Wendy had lengthy histories of unresolved substance abuse; Wendy admitted using methamphetamine a few days before Troy’s birth, and Jerry admitted using methamphetamine even after Troy’s birth. SSA placed Troy and his 15-month-old brother Brandon in protective custody. SSA then filed a juvenile dependency petition, alleging Brandon and Troy were within the juvenile court’s jurisdiction under section 300, subdivisions (b) and (j). (Jerry’s daughter, Desiree V., was declared a dependent of the juvenile court in 1998, after her brother Drew H., apparently not Jerry’s child, had suffered shaken baby syndrome as a result of his parents’ physical abuse. Desiree was returned to her mother’s care. Wendy also has three daughters, Ashley S., Cassandra S., and Danielle S. A child abuse report for Wendy’s daughters was substantiated for general neglect. A child abuse report for emotional abuse of Danielle and a child abuse report for sexual abuse of Ashley by an unknown perpetrator were also substantiated. Wendy admitted Cassandra and Ashley “do not want anything to do with her” and live with their paternal grandmother, who has legal guardianship. Danielle lives with her maternal grandparents.)

The juvenile court ordered Brandon and Troy detained on June 1, 2001. Jerry and Wendy pleaded no contest to the petition. On July 11, 2001, the juvenile court found the allegations of the petition true by a preponderance of the evidence, declared Brandon and Troy to be dependents of the juvenile court, found by clear and convincing evidence it would be detrimental to Brandon and Troy’s welfare to return Brandon and Troy to their parents, removed the children from Jerry and Wendy’s custody, and ordered SSA to provide reunification services to Jerry and Wendy.

Brandon experienced severe behavioral problems, including frequent and extreme tantrums, and failure to speak, attach emotionally, and make eye contact. Troy remained in the neonatal intensive care unit of the hospital for an extended period, due to his acute prematurity. Troy suffered from serious respiratory problems after his hospital discharge, requiring multiple trips to the emergency room; Troy’s doctors believed his “susceptibility to RSV [Respiratory Syncytial Virus] and other respiratory problems is a serious issue that will be on-going into his early childhood.”

Both Jerry and Wendy made progress in completing their case plans. Both completed parenting education courses, participated in substance abuse programs, and tested negative for drugs. Both regularly attended visits with Brandon and Troy and interacted appropriately with them. In January 2002, the juvenile court found Jerry and Wendy had made substantial progress with their case plans and granted them six additional months of reunification services.

By June 2002, both Jerry and Wendy were continuing to make progress in their case plans, and the family had had successful overnight visitations. Brandon and Troy were returned to Jerry and Wendy’s care and custody for a 60-day home trial visit on June 14, 2002, despite SSA’s concerns regarding Jerry and Wendy’s financial stability. SSA provided family maintenance services.

During the family maintenance period, the children were well cared for and Troy’s health continued to improve. Brandon experienced some emotional problems and threw tantrums to express his frustration. The family experienced serious problems regarding its financial situation, however; in early 2003, Jerry advised SSA he had been laid off. Jerry also failed to attend Alcoholics Anonymous or Narcotics Anonymous meetings, or to drug test regularly, citing logistical problems. SSA offered Jerry the chance to wear a drug--testing patch, but he failed to take advantage of that service.

In February 2003, the family was evicted due to delinquent rent and moved into a motel; as of January 31, 2003, the children had lost their insurance coverage through Medi-Cal because they were no longer under SSA’s care. In August 2003, the family’s struggles led Wendy to place Brandon and Troy in respite care for two weeks while she and Jerry tried to find adequate housing and employment and applied for the CalWORKS program. In September 2003, the parties stipulated to continue supervision for another six months.

Brandon and Troy were again taken into protective custody by SSA on October 7, 2003. They were placed with Lisa and Patrick O., their paternal aunt and uncle. SSA filed a supplemental juvenile dependency petition under section 387 alleging Jerry and Wendy had not fulfilled their case plan objectives, had not maintained a stable, suitable residence, and had not adequately provided for the children’s health and safety. Jerry and Wendy pleaded no contest to the supplemental petition’s allegations. The juvenile court found the allegations true by a preponderance of the evidence, and ordered SSA to provide further reunification services to Jerry and Wendy.

Brandon and Troy adjusted well to their new placement. Meanwhile, Jerry began consistently drug testing, and Wendy continued in counseling. Both Jerry and Wendy failed to attend Alcoholics Anonymous or Narcotics Anonymous meetings, and Jerry failed to attend individual counseling. SSA remained concerned that Jerry and Wendy would not be able to correct their precarious financial situation. (During this period, Wendy gave birth to another child -- Zachary -- who is not involved in this appeal.) In September 2004, SSA recommended that reunification services be terminated and a permanency hearing set, given Jerry’s and Wendy’s unsatisfactory progress with their case plans. Nevertheless, all parties stipulated to extend reunification services until December 2004.

By October 2004, given their participation with the case plans and their good status at a temporary housing shelter, Jerry and Wendy had again progressed to overnight visits with Brandon and Troy. SSA remained concerned about Jerry’s and Wendy’s lack of financial, personal, and therapeutic progress, their failure to attend counseling and drug therapy appointments, Jerry’s minimal interactions with Brandon and Troy, and Wendy’s inability to care for three young children.

On January 19, 2005, Lisa and Patrick received de facto parent status from the juvenile court. Brandon and Troy continued to do well in Lisa and Patrick’s care. Lisa and Patrick expressed a willingness to care for the children long-term if reunification failed.

In February 2005, Jerry and Wendy requested that Brandon and Troy be returned to their care; SSA requested that services be terminated and a permanency hearing set. In January and February 2005, the juvenile court conducted a 12--month review hearing. Ultimately, the juvenile court ordered Brandon and Troy returned to Jerry and Wendy’s custody, and ordered SSA to provide further family maintenance services. The juvenile court made clear to Jerry and Wendy what would be required if they desired to maintain custody of Brandon and Troy. “Mother and dad, you have got a lot of work to do for your children and for yourselves. I’m willing to work with you. You need to work with me. I want you to succeed, and I believe that you will succeed. Otherwise, I would not be sending these children home with you. . . . I want to make it clear that the only reason these kids can go home is because of the structure and the security provided by the shelter and because of you, your stated willingness, what you’ve said, that you are going to abide by the rules of the shelter, you are going to cooperate with social services agency, and your willingness to comply with the court’s orders.”

The court specified for Jerry and Wendy what would be required of them in terms of counseling, abiding by the shelter’s rules, completely avoiding alcohol or drugs, attending a 12-step program, and cooperating with SSA. Finally, the court warned Jerry and Wendy that they needed to change their manner of dealing with problems in order to make the reunification work. “If you don’t accept the responsibility and fix the problems -- not look for excuses, but fix the problems -- it’s going to happen. And it’s up to you. There is not anybody in this room that can do it but you. You’ve got to fix the problem. The decision is yours. . . . And mother, these are your problems, too, because they affect your children. And you have got to be willing to enter into a partnership to get these problems fixed. A responsible parent does not wait for the sky to fall, then make excuses or blame others. A responsible parent gets the problems fixed, even though it’s really complicated. Even though it’s really hard. . . . I have made this decision to send these kids home to you. Now the ball is in your court. And you are going to tell me by your actions, by keeping your agreements with me, by acting responsibly, by taking care of problems before they become huge problems. You are going to tell me if you want to be a parent. And it’s up to you two. If you don’t do these things, then you will be making the decision that will remove these children from your life per[manent]ly. You will be making that decision.”

Lisa and Patrick visited Brandon and Troy weekly after they were returned to Jerry and Wendy’s care, and the children enjoyed the visits. Brandon and Troy remained healthy, and Brandon’s behavior problems continued to improve. Jerry and Wendy were asked to leave the temporary housing shelter in August 2005. As of September 2005, the family was living in a motel in Anaheim and seeking a more permanent residence through the local housing authority.

On September 22, 2005, SSA once again took Brandon and Troy into protective custody and placed them with Lisa and Patrick. A new supplemental juvenile dependency petition alleged the family’s motel room was filthy and unsafe; Jerry and Wendy had failed to adequately supervise the children; Jerry and Wendy were not providing for the children’s medical needs; Jerry and Wendy continued to smoke despite Troy’s and Zachary’s respiratory problems; both Jerry and Wendy had tested positive for methamphetamine; Jerry and Wendy failed to comply with their case plans by not attending counseling, not consistently drug testing, and failing to find a suitable residence; and after 51 months of reunification and family maintenance services, “[t]he parents have failed to adequately benefit from said services and continue to parent the children in a neglectful manner.”

On January 12, 2006, the juvenile court sustained the supplemental petition, noting Jerry and Wendy had sunk into “chaos and instability, and it’s consistent with drug use.” The court bypassed further reunification services and set a permanency hearing pursuant to section 366.26. Jerry and Wendy continued to visit Brandon and Troy, and the children genuinely seemed to enjoy their visits.

On January 18, 2006, at Jerry and Wendy’s request, the juvenile court ordered a bonding study to be conducted to assess the bond between Jerry and Wendy, and Brandon and Troy. The assigned evaluator was unable to complete the bonding study, however, because Jerry and Wendy failed to attend their scheduled appointments.

Jerry and Wendy cancelled, missed or arrived late for many visits with Brandon and Troy from December 2005 through March 2006. The visits were generally pleasant, although Jerry and Wendy’s discipline was inconsistent. Although Brandon and Troy often wanted the visits to continue, they did not have emotional problems separating from Jerry and Wendy at the end of most visits.

In analyzing the likelihood of adoption, the social worker described Brandon as “a fun--loving and engaging six-year[-]old Caucasian boy with blonde hair, big blue eyes, and a big smile. He is in good physical health and does not require any prescribed medication. Brandon appears to be developmentally on-target for his age and likes doing activities most six[]year olds enjoy. He likes baseball and soccer, as well as Spiderman and video games. Over the course of the Court dependency, Brandon has improved on his behavioral difficulties, such as severe tantruming, defiance, and hyperactivity, with the assistance of behavioral coaching. He can be an endearing child. He enjoys the attention he receives from adults and is affectionate. Brandon is quite protective of his two brothers, and enjoys roughhousing with Troy. He is a helpful ‘big brother’ who wants to feed or hug Zach[a]ry. He also instructs Troy to not participate in a certain negative attention-seeking behavior, though he usually will imitate the same attention-seeking behavior exhibited by Troy. At the same time, Brandon takes pleasure in spending one--on--one time with his caretakers, and enthusiastically seeks them out for comfort and support.”

Troy was described as “an adorable four (almost five-) year--old boy with light brown hair, fair complexion, and a cute smile. When initially meeting with Troy, he tends to be shy and timid. However, once engaged, he is affectionate, generous, and sociable. Troy is also full of energy and likes to be chased and tickled. Troy presents with no major medical concerns, though is prescribed an Albuterol inhaler for periodic use. He is quite an intelligent and insightful child who appears to be developmentally on--target for his age. Troy demonstrates behavioral difficulties including sibling rivalry and competition with his brother, aggressiveness towards others, defiance, and encopresis [soiling of the underwear with stool by children after toilet training]. Troy is currently participating in behavioral coaching to address these behavioral difficulties. According to his counselor at his Head Start school, Troy appears to have exhibited improved behavior in response to the stability of the home environment. It is anticipated that Troy will respond positively to the behavioral coaching and show marked improvement, much like Brandon had done so when receiving said services.”

SSA considered Brandon and Troy generally adoptable, based on their physical, developmental, and emotional characteristics, even independent of their placement with Lisa and Patrick.

At the time of the permanency hearing, Lisa and Patrick’s adoptive home study was ongoing. Lisa and Patrick were effectively providing for Brandon’s and Troy’s care and were well aware of their particular medical and therapeutic needs. Both Brandon and Troy stated they loved Lisa and Patrick and were happy living with them. Both of the children were well adjusted to Lisa and Patrick’s home and were “securely attached” to Lisa and Patrick. The children occasionally referred to Lisa and Patrick as “‘mom’” and “dad.’” Lisa and Patrick expressed a willingness to facilitate contact between Jerry and Wendy and the children, even after adoption; no formal agreement was reached at that point, however.

The social worker reported that on March 15, 2006, Lisa had reported an incident of child abuse. Lisa stated that while Troy was having a tantrum, she had momentarily grabbed his ears, leaving a mark. The social worker met with Lisa and Troy the next day, and observed slight red marks on Troy’s ears, though he had no bruising and did not complain of pain. A child abuse registry report was filed and deemed inconclusive. Lisa was very remorseful and contrite, and agreed to attend parenting classes.

SSA recommended termination of parental rights, despite the fact Brandon and Troy still had a bond with and feelings of loyalty toward Jerry and Wendy. The social worker stated the need for stability was “imperative in the children’s lives,” particularly because of the “tremendous amount of loss, confusion, and instability” that marked their early formative years.

At the permanency hearing on May 11, 2006, the juvenile court found Brandon and Troy to be adoptable, “given their young ages, their happy disposition[s], their attractive features” and the fact they have already bonded with Lisa and Patrick, who remain committed to adoption and “have not wavered in their commitment to these children.” The court then incorporated by reference its February 2005 ruling, in which it stated the parents needed “to show that [they] occupy a parental role” to meet the parental bond exception. The court noted that the “entire history of this case,” including missed visits, the lack of structure for the children during visits, and the failure to attend appointments for a bonding study, showed Jerry and Wendy “do not occupy that type of parental role.” The court then found the parental bond exception to termination of parental rights did not apply. Because Jerry and Wendy’s relationship with Brandon and Troy did not outweigh the benefits of adoption, the juvenile court terminated Jerry and Wendy’s parental rights. Lisa and Patrick were designated as the children’s prospective adoptive parents. Jerry and Wendy both filed timely notices of appeal from the order terminating their parental rights.

Discussion

I.

The ICWA notice was proper.

Jerry argues SSA failed to comply with the notice provisions of ICWA. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 1439(f)(5).) Federal law requires that ICWA notice be provided to the tribes by “registered mail with return receipt requested.” (25 U.S.C. § 1912(a).) California law, however, permits notice to be provided by either “registered or certified mail with return receipt requested.” (Cal. Rules of Court, rule 1439(f)(1).) Because the notices were sent to the tribes via certified mail, they were in strict compliance with the California Rules of Court, and complied with the substance of ICWA’s notice requirements.

Jerry also argues one of the noticed tribes failed to respond. SSA sent notice via certified mail to six tribes and the Bureau of Indian Affairs (BIA). Return receipts were received from all six tribes and the BIA. All six tribes to which notice was provided responded, and each stated Brandon and Troy were neither enrolled nor eligible to enroll in the tribe. Jerry’s argument is factually incorrect.

II.

The juvenile court’s findings under section 366.26, subdivision (c)(1) were supported by substantial evidence.

Under section 366.26, subdivision (c)(1), parental rights shall be terminated if there is clear and convincing evidence of adoptability. Exceptions exist where a parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship” (§ 366.26, subd. (c)(1)(A)), and where “[t]he child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child” (§ 366.26, subd. (c)(1)(D)).

A.

Standard of Review

“‘The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

The juvenile court found none of the exceptions to adoptability applied in this case. On appeal, we consider whether there was substantial evidence supporting the juvenile court’s decision. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) We presume the juvenile court’s order is correct, and draw all reasonable inferences in support of the court’s findings. (Ibid.) “[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence.” (In re Megan S. (2002) 104 Cal.App.4th 247, 252; see also In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119-1120.)

B.

Adoptability

When making a finding regarding the adoptability of a dependent child, the juvenile court focuses “on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A minor’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. (Id. at p. 1651.) “‘Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s 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.’” (In re Asia L. (2003) 107 Cal.App.4th 498, 510.)

The juvenile court’s finding that Brandon and Troy were adoptable was amply supported by substantial evidence. Both Brandon and Troy were described as attractive, affectionate, and developmentally on target. While Troy exhibited some behavioral problems, they were mainly attributable to the lack of stability throughout his life. Additionally, there was reason to believe behavioral coaching would correct many of those problems, as such coaching had demonstrated remarkable success in rectifying Brandon’s earlier behavioral problems. While Troy had some ongoing medical issues, primarily the occasional need for an inhaler, his health was remarkably good for a child born so prematurely (as a result of Wendy’s prenatal drug use) and who had experienced severe respiratory problems as a newborn.

Additionally, Lisa and Patrick were prospective adoptive parents for Brandon and Troy, and had received de facto parent status from the juvenile court. While Lisa and Patrick’s home study was ongoing, there was no reason to believe it would not be resolved favorably.

C.

Section 366.26, subdivision (c)(1)(A) exception

The juvenile court’s finding that the parental bond exception of section 366.26, subdivision (c)(1)(A) did not apply was also supported by substantial evidence. Jerry and Wendy visited regularly during the first few years of the dependency proceeding. During the period immediately before the permanency hearing, however, they missed many visits and were late for many others. While the visits were generally positive, the monitors frequently noticed a lack of structure, and the children did not have a difficult time separating from Jerry and Wendy and returning to Lisa and Patrick. Most importantly, Jerry and Wendy showed a lack of prioritizing the needs of their children above their own throughout the proceedings. This was evidenced most profoundly by their continued use of drugs during pregnancy and during the dependency proceedings. Additionally, Jerry’s and Wendy’s failure to participate in the bonding study they had requested, which was intended by them to show their bond with their children outweighed the benefits of adoption, further supported the juvenile court’s finding.

D.

Section 366.26, subdivision (c)(1)(D) exception

Jerry contends, on appeal, substantial evidence supported application of the section 366.26, subdivision (c)(1)(D) exception to termination of parental rights. Neither Jerry nor Wendy, however, argued the application of this exception in the juvenile court. The issue has therefore been waived. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)

Even if we were to consider the issue as part of the adoptability analysis (see, e.g., In re P.C. (2006) 137 Cal.App.4th 279, 288 & fn. 4), we would conclude there was substantial evidence supporting the juvenile court’s finding that the exception did not apply. Jerry and Wendy bore the burden of proving any exception to adoption. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Jerry and Wendy did not provide evidence that Lisa and Patrick were unable or unwilling to adopt Brandon and Troy due to exceptional circumstances. (§ 366.26, subd. (c)(1)(D).) To the contrary, all of the evidence indicated Lisa and Patrick were willing to adopt the children, their adoption would be the ideal placement for the children, and the home study was in progress. There was no evidence the home study would establish Lisa and Patrick’s home would not be appropriate. Finally, the self-reported child abuse incident, though regrettable, does not change this analysis. Lisa promptly informed SSA of her overreaction to Troy’s bad behavior, appropriately expressed remorse, and agreed to undergo parenting classes.

III.

Motion to Augment

SSA filed a motion to augment the appellate record with three documents: (1) an interim review report dated June 27, 2006; (2) a stipulation of the parties at the June 27 hearing, submitting the matter on the interim report; and (3) the juvenile court’s minute order from the June 27 hearing.

Generally, we are prohibited from considering postjudgment evidence on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413.) A limited exception exists for postjudgment evidence proving the appeal is moot, and thereby justifying its dismissal. (In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422.)

In this case, the evidence with which SSA seeks to augment the record does not prove Jerry’s and Wendy’s appeals are moot. At most, it shows Brandon and Troy’s prospective adoptive parents are cooperating in the continuing attempt to authorize them to adopt the children. We deny SSA’s motion to augment the record.

Disposition

The order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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