In re G.R.

Filed 9/28/06 In re G.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

L.D. and Edward R. appeal the judgment terminating their parental rights over G.R., A.J.R., A.R., and D.R. They contend the juvenile court erred by finding the children adoptable, declining to apply the sibling relationship exception to termination of their parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(E)),^[1] and declining to apply the beneficial relationship exception to termination of L.D.'s parental rights (§ 366.26, subd. (c)(1)(A)). We affirm.

BACKGROUND

In October 2003, when G.R. was two years old and A.J.R. was a newborn, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions. The petitions, as amended, alleged L.D. had a history of drug use, tested positive for marijuana throughout her pregnancy with A.J.R. and at his birth, had little prenatal care, and continued to use marijuana during pregnancy after the doctor told her to stop; Edward knew L.D. was using drugs while pregnant but was unable to stop her; they were chronically homeless but refused to pursue community referrals; and they failed to follow through with referrals concerning the speech and developmental delays of L.D.'s older son, Brandon L.^[2]

G.R. and Brandon were detained in one foster home and A.J.R. was detained in another. On November 5, 2003, G.R. and Brandon were moved to a new foster home. On November 20, the court entered true findings on the amended petitions, declared G.R. and A.J.R. dependents, and ordered them placed in foster care. In December, Brandon was moved to the home of a maternal great aunt, then to the home of a maternal aunt. A.J.R. was moved three times between December 2003 and January 2004, then placed in the aunt's home in April. G.R. was also moved to the aunt's home in April.

In July 2004, the court terminated reunification services and set a section 366.26 hearing for November. In November, the Agency requested a 180-day continuance of the hearing so it could decide which permanent plan to recommend. The court granted the request and continued the hearing to May 17, 2005.

In late November 2004, L.D. gave birth to twins, A.R. and D.R., then disappeared with them. In January 2005, the Agency filed dependency petitions for A.R. and D.R. The petitions alleged L.D. had a history of using marijuana and amphetamines, tested positive for marijuana and amphetamines while pregnant with the twins, had not addressed her drug problem or reunified with her three older children, and remained chronically homeless; and Edward had been unable to protect the twins. The court ordered A.R. and D.R. detained. While L.D. and the twins were still missing, in February the court entered true findings on the petitions, and in April, denied L.D. reunification services, ordered the twins placed in foster care, and set a section 366.26 hearing for July 27.

In February 2005, G.R., A.J.R., and Brandon were removed from the aunt's home because she allowed the maternal grandmother to live in the home and the maternal stepgrandfather to visit, despite the fact the grandmother used corporal punishment on Brandon and the grandmother and stepgrandfather were violent in the children's presence. Brandon was detained in Polinsky Children's Center (Polinsky) then in a group home and G.R. and A.J.R. were detained in Polinsky. On May 17, the Agency requested a second 180-day continuance of G.R.'s and A.J.R.'s section 366.26 hearing. The court identified adoption as the permanent plan for them, but deferred termination of parental rights and set a section 366.26 hearing for November 14. On June 3, G.R. and A.J.R. were placed in a foster home. In August, Brandon was moved to a new group home.

L.D. appeared in court on May 17, 2005 and testified that A.R. and D.R. had been in Texas with a relative since January 29. She refused to give their address or telephone number. The court found she knew where the twins were but refused to say, invited counsel to file a declaration and order to show cause re contempt, and ordered L.D. to return on May 20. L.D. did not appear on May 20. On June 7, the social worker learned that L.D., A.R., and D.R. had been living at the KIVA Options treatment program since June 2. The social worker went to KIVA, removed A.R. and D.R. over L.D.'s objections, and took them to Polinsky. In June, they were moved to a foster home, then back to Polinsky. On July 13, L.D. left KIVA under the threat of being discharged for sexual misconduct. By July 27, 2005, the twins had been matched with a prospective adoptive family. At their section 366.26 hearing that day, the Agency requested the matter be continued to coincide with the older children's section 366.26 hearing. The court granted the request and continued the twins' hearing to November 14. In August, they were moved to a foster home. In October, they were moved to a prospective adoptive home.

L.D. did not appear in court for the November 14, 2005 section 366.26 hearing. Her attorney requested a contested hearing and the court set it for January 31, 2006. In December 2005, G.R. and A.J.R. were moved to a prospective adoptive home. The section 366.26 hearing for all of the children began in January 2006 and concluded in March. For Brandon, who was still in the group home, the court ordered another permanent planned living arrangement.

ADOPTABILITY

"The issue of adoptability posed in a section 366.26 hearing 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, italics omitted.) "[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 Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) An adoptability finding does not require "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., supra, 22 Cal.App.4th at p. 1649.) "All that is required is clear and convincing evidence . . . that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 506, citing In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) The Agency bore the burden of proof on this issue. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.)

Here, all four children were healthy, although the twins had eczema and D.R.'s breathing was sometimes labored. The children had been in multiple placements and the three boys had developmental issues. G.R. had low average mental development and language skills and trouble following directions and resting during naptime. A.J.R. had low average cognitive development and an adjustment disorder. D.R. had mildly delayed cognitive and motor development. Neither a risk of future developmental problems (In re Jennilee T., supra, 3 Cal.App.4th at pp. 224-225) nor the onset of behavioral problems (In re Lukas B., supra, 79 Cal.App.4th at p. 1154), however, necessarily precludes an adoptability finding.

By the time the section 366.26 hearing concluded, the twins had been in their prospective adoptive home for nearly five months, and G.R. and A.J.R. had been in their prospective adoptive home for three months. Both families had approved home studies and, according to the Agency's reports, were committed to adopting the children. There were two other approved families in San Diego waiting to adopt a sibling set with characteristics similar to G.R.'s and A.J.R.'s, and 87 out-of-county approved families waiting to adopt such a sibling set. For the twins, there were three other approved adoptive applicant families in San Diego and 74 out-of-county approved adoptive families.

Substantial evidence supports the adoptability findings as to all four children. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re J.I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)^[3]

THE BENEFICIAL RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but an exception exists if "[t]he 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).) 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "[T]he 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 parent's rights are not terminated." (Ibid.) The existence of a beneficial relationship is determined, in part, 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." (Id. at p. 576.) The parent has the burden of proof. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) We apply the substantial evidence test. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Examining the evidence in the light most favorable to the judgment, we determine substantial evidence supports the juvenile court's conclusion L.D. did not maintain regular visitation and contact and did not have a beneficial relationship with her four children.

While L.D. visited G.R. and A.J.R. at the outset of the case, her visits later became sporadic. Her whereabouts were unknown for long periods. She did not visit G.R. and A.J.R. at all from February to late April 2005. From late June to late October, she visited them 11 times, cancelled one visit, and was 30 minutes late to another. She visited the twins six times between late August and late October. In November, she had one visit with G.R. and A.J.R. and two visits with the twins. In December, she visited the twins once but did not visit G.R. and A.J.R. In January 2006, she had one visit with G.R. and A.J.R. and one visit with the twins. She had one visit with G.R. and A.J.R. about a month before the section 366.26 hearing concluded and one visit with the twins the week before the hearing concluded. She never progressed beyond supervised visits. She had little contact with the children aside from visits.

By the end of the section 366.26 hearing, G.R. was four years old, A.J.R. was two years old, and A.R. and D.R. were one year old. The two older boys had been out of L.D.'s custody for more than two years. The twins had been out of her care for nine months, and would have been out of her care longer had she not absconded with them. The twins had been in their prospective adoptive home for nearly five months, G.R. and A.J.R. had been in their prospective adoptive home for three months, and both families wanted to adopt.

For the most part, L.D. was appropriate with the children. At times, she was loving and nurturing. At other times, however, she did not exhibit proper parenting skills. For example, she told the children she would not visit if they misbehaved. She never brought diapers to visits and only occasionally brought food. She brought clothing two or three times, but some of it was the wrong size.

Between visits, the children did not ask to see L.D. or call her. They related to her as a distant relative. The twins were excited to see her at visits, but interacted with the monitor and social worker as well as L.D. G.R. and A.J.R. were excited to see her, and called her mom, but parted from her easily. The twins were very attached to their caretakers and thriving in their home. All of the children turned to their caretakers to meet their physical and emotional needs. The social worker believed the benefits of adoption outweighed any detriment the children might suffer from termination of parental rights. L.D. has an extensive history of referrals for child neglect and abuse. She did not take full advantage of the services she was offered. At the section 366.26 hearing, she testified that her drug use hurt the children only in that it resulted in their removal from her custody.

The juvenile court did not err by applying section 366.26, subdivision (c)(1)(A).

THE SIBLING RELATIONSHIP EXCEPTION

Another exception to termination of parental rights exists if "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).) The juvenile court is "to balance the benefit of the child's relationship with his or her siblings against the benefit to the child of gaining a permanent home by adoption in the same manner the court balances the benefit of the child's continued relationship with the parent against the benefit to the child of gaining a permanent home by adoption when considering the section 366.26, subdivision (c)(1)(A) exception. The court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L.Y.L., supra, 101 Cal.App.4th at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "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." (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)

L.D. and Edward contend "[a]ll of the siblings were closely bonded, particularly the older three boys."'' Examining the evidence in the light most favorable to the judgment, we determine substantial evidence supports the conclusion the sibling relationship exception did not apply. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 947, 953.)

By the time the section 366.26 hearing concluded, one-year-old A.R. and D.R. had been in their prospective adoptive home for nearly five months. They had never lived with G.R., A.J.R., or Brandon. Clearly, the exception does not apply to the twins.

For most of his life ¾ except for a hiatus of about four months ¾ four-year-old G.R. had lived with Brandon. By the time the section 366.26 hearing concluded, however, they had not lived together for more than a year. Two-year-old A.J.R. had lived with Brandon for 10 months, but they too had been living apart for more than a year. Since their separation from Brandon, G.R. and A.J.R. had visited him about once a month.^[4] They shared a bond with him and interacted with him during visits, but also functioned independently. G.R. and A.J.R. did not ask about Brandon unless L.D. prompted them. While G.R. and A.J.R. were in a prospective adoptive home, Brandon had behavioral problems and needed a more structured environment. It would have been unfair to G.R. and A.J.R. to deprive them of the permanency of adoption solely because Brandon was not adoptable. The benefits of adoption outweighed the benefits G.R. and A.J.R. would derive from continuing their relationship with him, even if termination of parental rights resulted in a substantial interference with the sibling relationship. (In re L.Y.L., supra, 101 Cal.App.4th at p. 953.) The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(E).

DISPOSITION

Judgment affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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

^[2] Brandon is not a subject of these appeals.

^[3] L.D. contends the children's brief contains postjudgment evidence this court should not consider. Edward goes one step farther, contending the children's argument concerning adoptability should be stricken because it states the two sets of children have now been in their homes for nine and 10 months. We decline to strike any portion of the children's brief.

^[4] L.D. argues the juvenile court "did not apply the sibling exception because it believed the [A]gency would ensure sibling contact." The court's statements, while somewhat unclear, do not support this argument. In its discussion of the sibling relationship exception, it did not mention the apparent willingness of G.R. and A.J.R.'s prospective adoptive parents to continue contact with Brandon. The court stated:

"There doesn't seem to be much of a sibling relationship between the two youngest children and the other grouping. So [there do not] seem to be any indications of any sort of substantial interference with the relationships of ¾ Both sides seem to be both progressing. It seems to be ¾ At least those two prongs are not evident.

"And as to these youngest minors, the three older minors appear to have a relationship. They appear to have a sibling relationship; but there's no indication, as well, there's going to have any interference with the two children being adopted, and the one child, Brandon, who is going into a permanent planning living arrangement.

"So it doesn't appear to the Court this [section 366.26, subdivision (c)(1)(E)] exception applies, either. And the [A]gency -- Well, there's no showing there to be any interference."