In re Armando E.
Filed 2/6/07 In re Armando E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
In re ARMANDO E. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TEODORO H., Defendant and Appellant. | D048990 (Super. Ct. No. J51519F,G) |
APPEAL from judgments of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.
Teodoro H. appeals judgments of the juvenile court terminating parental rights to his children, Armando E. and Antonio H. He contends insufficient evidence supports the court's findings the children were likely to be adopted, and the beneficial parent-child relationship and sibling relationship exceptions to termination of parental rights did not apply. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Teodoro H. is the father of Armando E., born April 1999, and Antonio H., born October 2001 (together, children). On their mother's side, the children have four older half-sisters, Cynthia O., Jessica E., C.E. and L.E, and an older half-brother, Carlos E. (together, siblings.)[1] The children's mother[2] ended her relationship with Teodoro in December 2002 after Cynthia, then age nine, and Jessica, then age eight, complained Teodoro had sexually molested them for more than two years, and alleged he had also abused their cousin. When mother confronted Teodoro, he assaulted her, and he was arrested on charges of domestic violence.
After a 150-day incarceration, Teodoro was deported to Mexico. He returned to the United States two days later, and resumed contact with Armando and Antonio, their mother and their siblings, including Cynthia and Jessica.
In October 2003, the San Diego County Health and Human Services Agency (Agency) detained the children and their siblings. The Agency filed petitions under Welfare and Institutions Code section 300, subdivision (j)[3] alleging Armando and
Antonio were at substantial risk of abuse or neglect in that Teodoro had sexually abused their sisters, Cynthia and Jessica, and their mother had allowed Teodoro to have unsupervised contact, including overnight visitation, with the children and their siblings.
On January 8, 2004, Teodoro and the mother submitted to jurisdiction. The court removed the children from parental custody, placed them in foster care, and ordered family reunification services. With the exception of Antonio, who was initially placed in a separate foster home until late November 2004, and then placed with Armando and Carlos, the Agency placed each child with one sibling in separate foster homes: Cynthia and Jessica stayed together, as did C.E. and L.E., and Armando and Carlos.
During the first six-month reunification period, Teodoro participated in Substance Abuse Recovery Management Systems program (SARMS), individual therapy, group counseling for sex offenders, a domestic violence treatment program and a parenting education class. He visited Armando and Antonio every week and the children looked forward to seeing him. Teodoro completed a psychological evaluation with psychologist Beatriz Heller, who concluded Teodoro had " extremely limited skills," but the risk of molest to Armando and Antonio appeared to be " greatly reduced" by the fact they were boys. In July 2006, the court ordered father to have short, unsupervised visitation with the children, and set a review hearing in December 2004.
At the 12-month review hearing, the Agency recommended the court extend the reunification period to the 18-month date. Teodoro had unsupervised visits with Armando and Antonio every Saturday for two hours. The children's foster parents reported the children returned from visits " clean and happy." The court ordered Teodoro to participate in psychophysiological and behavioral assessments, and continued reunification services.
Psychologist Marvin Galper assessed Teodoro as an intellectually limited adult who had adequate contact with reality. Teodoro's overall level of intellectual functioning tested in the range of mild mental retardation. Because Teodoro participated responsibly in reunification services, Galper did not believe unsupervised overnight visits would place Armando and Antonio at risk of physical or sexual abuse. Galper opined Teodoro may be capable of safely parenting and protecting his sons if provided with adequate ongoing guidance and support, but reunification appeared to be of " very limited feasibility" without long-term, in-home assistance.
In May 2005, shortly before the 18-month review hearing, Teodoro was arrested and incarcerated on charges he sexually assaulted his girlfriend's two-year-old daughter. Teodoro told a police detective that he instructed the child to touch his penis with her hand, which she did, and to put his penis in her mouth, which she also did. A witness observed the interaction. Teodoro also said he performed sexual acts on Cynthia and Jessica because he " needed to be satisfied sexually," and admitted the age of the child was insignificant to him. The detective referred the case to the district attorney's office with recommendations that it charge Teodoro with five counts of oral copulation with a child under age 14, four counts of sodomy with a child under age 14, and nine count of lewd acts with a child under age 14. Teodoro was incarcerated pending trial.
In June 2005, at the 18-month review hearing, Teodoro and the children's mother submitted on the reports. The court terminated reunification services and set a permanency plan selection and implementation hearing under section 366.26 (permanency plan hearing). In October, the Agency assessed the five youngest siblings, including Armando and Antonio, as " hard to place for adoption" due to the size of the sibling group. There were 10 out-of-county families willing to adopt the five siblings, but none in San Diego County. As an alternative, the Agency considered separating the siblings into two groups to increase their opportunities for adoptive placement. The permanency plan hearing was continued several times to allow the Agency to locate an adoptive home for the children as a sibling group.
On May 1, 2006, the Agency reported that it had located a prospective adoptive family in Maryland willing to adopt the five siblings, and requested a 60-day continuance of the permanency plan hearing to allow the state of Maryland to approve the adoptive placement. The Agency received formal approval for the placement before the July 11 permanency plan hearing.
At the contested hearing, Teodoro, who had been incarcerated for 11 months pending trial, testified he maintained weekly contact with his children by telephone and had one recent visit with the children at the detention facility. He said he loved his sons, and preferred they be placed with his cousins. He did not know how long he would remain incarcerated, and asserted his innocence.
The social worker reported Teodoro's cousin declined placement and she tried unsuccessfully to contact other relatives. She opined Teodoro made no progress with treatment and therapy and his relationship with his children had been sporadic; therefore, severing the parent-child relationship would not be detrimental to Armando and Antonio. The prospective adoptive placement offered the children and three of their siblings the opportunity to live together as a family. During a recent visit with Cynthia and Jessica, all the siblings had a good time playing and eating together.
The court found there was clear and convincing evidence the children were likely to be adopted if parental rights were terminated in that the Agency located an adoptive home willing to adopt the five youngest children as a sibling group. The court determined the children's relationships with Cynthia and Jessica did not outweigh the benefits of a permanent home with their other siblings. The court found that Teodoro's contact with the children had been regular and frequent considering his circumstances, and he had tried his best to maintain the parent-child relationship. However, from the time the children were very young, they looked to others to meet their primary needs; therefore, termination of the parent-child relationship would not be detrimental to them. The court terminated parental rights and ordered a permanency plan of adoption.
DISCUSSION
I
Substantial Evidence Supports the Court's Finding the Children
Were Likely to be Adopted Within a Reasonable Time
Teodoro contends the court did not find that Antonio and Armando were generally adoptable, and therefore insufficient evidence supports the finding the children were likely to be adopted within a reasonable time. He asserts the court improperly relied on the Maryland family's willingness to adopt the sibling group as a dispositive factor without regard for the children's general adoptability or their ongoing developmental problems.
The purpose of the California dependency system is to protect children from serious harm and to preserve families when safe for the child. (§ 300.2.) If family reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by means of adoption, guardianship or placement in long-term foster care. (§§ 366.21, 366.22, 366.26.) Adoption is the preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
Unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions, section 366.26, subdivision (c)(1) requires the juvenile court to terminate parental rights upon clear and convincing evidence the child is likely to be adopted within a reasonable time (finding of adoptability). The court may continue the permanency plan for a period not to exceed 180 days if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven or more years old. (§ 366.26, subd. (c)(3).)
The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, the trial court does not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
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. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) We give the court's finding of adoptability the benefit of every reasonable inference, and resolve any evidentiary conflicts in favor of the trial court's ruling. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Teodoro asserts Antonio and Armando were difficult to place for adoption because they had ongoing developmental problems. The record shows each child had speech delays and would require special education services, but otherwise they were friendly, healthy, social and had age-appropriate skills and behaviors. The Agency assessed the children as difficult to place for a different reason -- their membership in a sibling group of five children. Even if we assume for argument the children's needs for special education services and speech therapy might have diminished the general pool of available adoptive parents willing to adopt the children,[4] the question of adoptability is resolved by the presence of an approved adoptive family willing to adopt the children. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time.].)
Here, the record shows the Agency located a prospective adoptive family willing to adopt the sibling group. The Agency requested a continuance of the permanency plan hearing to allow the state of Maryland to complete an adoptive home study. The family was approved for adoptive placement. The approval of the adoptive home allows the court to reasonably infer there was no legal impediment to the children's adoption. (In re Carl R., supra, 128 Cal.App.4th at p. 1061; see also §§ 361.5, subd. (g)(4), 366.21, subd. (i)(4), 366.22, subd. (b)(4).) We conclude that substantial evidence supports the court's finding the children were likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1).)
II
The Court's Findings Under Section 366.26, Subdivisions (c)(1)(A) and (c)(1)(E)
Are Supported By Substantial Evidence
If reunification efforts have failed and the child is adoptable, the court must select adoption as the child's permanent plan unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) If an exception under section 366.26, subdivision (c)(1), applies to preclude termination of parental rights, " the court shall either order that the present caretakers or other appropriate persons shall become legal guardian of the child or order that the child remain in long-term foster care." (§ 366.26, subd. (c)(4)(A).)
A. Substantial Evidence Supports the Court's Finding the Beneficial Parent-Child Relationship Exception Did Not Apply
Teodoro contends the court's finding he did not have a beneficial parent-child relationship with Antonio and Armando was not supported by substantial evidence and thus the court erred when it terminated his parental rights. He asserts the children benefited from visitation and he remained involved and interested in their lives during his incarceration.
Section 366.26, subdivision (c)(1)(A), provides an exception to termination of parental rights when " [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In determining whether the exception applies, this court has recognized that interaction between parent and child will always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W., supra, 73 Cal.4th at p. 827.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) In other words, the trial court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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., supra, 27 Cal.App.4th at p. 575.)
We review the trial court's findings for substantial evidence. (In re Autumn H, supra, 27 Cal.App.4th at p. 575.) Substantial evidence must be reasonable in nature, credible and of solid value. (In re Laura F. (1983) 33 Cal.3d 826, 833.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court found that Teodoro maintained regular visitation and contact with Armando and Antonio, and that he did his best to maintain parent-child relationship with his sons. However, he had not lived with the children since his arrest for domestic violence in December 2002, when Armando was three years old and Antonio was 14 months old. As a result, although the children enjoyed visiting their father, they had looked to others to meet their primary needs for a substantial period of time. The court found that severing the children's relationships with their father would not be detrimental to them, and therefore section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights.
We conclude that substantial evidence supports the court's finding that any benefit from continuing the attenuated parent-child relationship did not outweigh the benefit Armando and Antonio would find in a permanent home with a committed, responsible adult. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As discussed above, the children had not lived with their father for more than three years, and he was incarcerated for approximately 16 months during that period. The record does not disclose with specificity the criminal charges pending against Teodoro; however, we note the allegations of sexual acts with children under 14 years might result in a lengthy incarceration followed by deportation, which would further attenuate the parent-child relationship.
Finally, Teodoro admittedly sexually molested a two-year-old child after participating for 18 months in therapeutic services, some of which were specifically designed to prevent further pedophiliac acts. Due to his lack of insight and control, it is reasonable to infer Teodoro's continued contact with his young sons places them at substantial risk of sexual and emotional abuse, and therefore his relationships with the children are neither parental nor beneficial in nature. We conclude that overwhelming evidence supports the court's finding the benefits provided by an adoptive home outweighed the benefit, if any, to the children of continuing the parent-child relationship. (§ 366.26, subd. (c)(1)(A); In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. Substantial Evidence Supports the Court's Finding the Sibling Relationship Exception to Termination of Parental Rights Did Not Apply
Teodoro contends insufficient evidence supports the court's finding that the sibling relationship exception to termination of parental rights did not apply. He asserts the court applied an incorrect legal standard when it compared the strength of the children's relationships with Cynthia and Jessica to the relationships they had with their other siblings. Teodoro argues Armando and Antonio enjoyed significant relationships with their two eldest sisters and the children's proposed adoption by a Maryland family would substantially interfere with those relationships.
Section 366.26, subdivision (c)(1)(E) applies to preclude termination of parental rights where " [t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and the 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 experience, 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." If adoption would interfere with a strong sibling relationship, the trial court must weigh the benefit of continuing the sibling relationship against the benefit the child would gain through adoption. (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523; In re Naomi P. (2005) 132 Cal.App.4th 808, 823.)
Thus, the issue before the court was whether preserving the children's relationship with their two eldest sisters outweighed the children's long-term interest in the benefit of legal permanence through adoption and the opportunity to be raised in a permanent home with three of their siblings. (§ 366.26, subd. (c)(1)(E).) Here, the court acknowledged the ideal permanency plan would allow the children to either live with Cynthia and Jessica, or would facilitate frequent visitation but found the children's relationships with Cynthia and Jessica did not outweigh the benefit Armando and Antonio would derive from a permanent, adoptive home.
Although the record shows the children shared a sibling bond with Cynthia and Jessica, substantial evidence supports the trial court's conclusion the benefits of legal permanence through adoption with three of their siblings outweighed the children' needs for more frequent contact with their two eldest sisters. Armando and Antonio lived with Carlos, and we infer from this fact the three brothers were closely bonded. They were closer in age to their two adoptable sisters, and had maintained more frequent contact with them throughout the dependency case. In contrast, the children had not lived with Cynthia and Jessica since October 2003, and visitation had been limited due to the distance of the eldest sisters' foster placement from the children and the other siblings. Visits with Cynthia and Jessica decreased significantly after August 2005, and there is no evidence in the record to show or suggest the decreased visitation was detrimental to the children.
Finally, we observe that despite the Agency's efforts to keep the siblings together during the dependency proceedings, the children and their siblings were placed initially in four and later, in three, separate foster homes. The availability of a family willing to provide a stable home for a group of five siblings is remarkable. Implementing an alternative permanency plan to facilitate occasional visitation with the children's eldest sisters would in all likelihood deprive the children of the opportunity to be raised as a family with three of their siblings in a stable, permanent home.
The sibling relationship exception to termination of parental rights is a balancing test. (§ 366.26, subd. (c)(1)(E); In re Valerie A., supra, 139 Cal.App.4th at p. 1523; In re Naomi P, supra, 132 Cal.App.4th at p. 823.) Teodoro did not meet his burden to show there is no substantial evidence to support the court's ruling. (In re L.Y.L., supra, 101 Cal.App.4th 942, 947.) We conclude the court properly considered the children's interests in a permanent, stable home and in maintaining their sibling relationships. The court did not err when it found that the exception to termination to parental rights under section 366.26, subdivision (c)(1)(E) did not apply.
DISPOSITION
The judgments are affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
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[1] A sixth half-sibling was born to the children's mother in 2005. Later, the social worker reported mother also had two older teenage sons who lived with their maternal grandmother.
[2] The children's mother does not appeal and is mentioned only when relevant.
[3] Statutory references are to the Welfare and Institutions Code.
[4] The court noted that a young child like Antonio might have been adopted " long ago" had the Agency not made determined efforts to find a home willing to adopt him as a member of a sibling group.
